Attorney-General for the State of Queensland v HGD [2020] QSC 295
SUPREME COURT OF QUEENSLAND
CITATION: Attorney-General for the State of Queensland v HGD [2020]
QSC 295
PARTIES: ATTORNEY-GENERAL FOR THE STATE OF
QUEENSLAND
(applicant)
v
HGD
(respondent)
FILE NO/S: BS No 1363 of 2020
DIVISION: Trial Division
PROCEEDING: Originating Application
ORIGINATING
COURT:
Supreme Court of Queensland at Brisbane
DELIVERED ON: 25 September 2020
DELIVERED AT: Brisbane
HEARING DATE: 7 September 2020
JUDGE: Williams J
ORDER: THE COURT, being satisfied to the requisite standard that
the respondent, HGD, is a serious danger to the community
in the absence of an order pursuant to Division 3 of the
Dangerous Prisoners (Sexual Offenders) Act 2003 (the
DPSO Act), ORDERS THAT:
1. The order made on 7 September 2020 pursuant to
s 9A(2)(b) of the DPSO Act that the respondent be
detained in custody until 4pm on 7 October 2020 be
dissolved from today.
2. Pursuant to s 13(5)(a) of the DPSO Act, the
respondent be detained in custody for an indefinite
term for control, care, or treatment.
CATCHWORDS: CRIMINAL LAW – SENTENCE – SENTENCING ORDERS
– ORDERS AND DECLARATIONS RELATING TO
SERIOUS OR VIOLENT OFFENDERS OR DANGEROUS
SEXUAL OFFENDERS – DANGEROUS SEXUAL
OFFENDER – GENERALLY – where an application was
made pursuant to section 13 of the Dangerous Prisoners
(Sexual Offenders) Act 2003 (Qld) (‘DPSO Act’) – where the
respondent was examined by psychiatrists for the purposes of
the application – where the medical evidence recommended
further treatment before the respondent be released on a
supervision order – where the Public Guardian was appointed
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as guardian for the respondent – whether the respondent is a
serious danger to the community in the absence of a Division
3 order – whether the adequate protection of the community
could be reasonably ensured by the making of a supervision
order
Dangerous Prisoners (Sexual Offenders) Act 2003 (Qld),
s 11, s 13
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 S [2015] QSC
157, cited
Attorney-General for the State of Queensland v Sutherland
[2006] QSC 268, cited
Attorney-General v Francis [2007] 1 Qd R 396, cited
Turnbull v Attorney-General for the State of Queensland
[2015] QCA 54, cited
COUNSEL: M Maloney for the applicant
T Ryan for the respondent
SOLICITORS: Crown Law for the applicant
Cridland & Hua Lawyers for the respondent
[1] This is an application by the Attorney-General for the State of Queensland (the
applicant) for orders in respect of HGD (the respondent) pursuant to s 13 of the
Dangerous Prisoners (Sexual Offenders) Act 2003 (Qld) (the DPSO Act).
[2] The originating application dated 6 February 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, that pursuant to s 13(5)(b) of the DPSO Act, the respondent
be released from custody subject to such requirements as considered
appropriate.
[3] The application was originally listed for hearing on 8 June 2020 but was adjourned
to allow for:
(a) A further neuro-cognitive assessment to be undertaken and a report to be
prepared;
(b) Further information on appropriate accommodation, related treatments and
supports to be obtained; and
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(c) The psychiatrists to be able to consider the further material and provide
supplementary reports, particularly considering the assessment and the
available accommodation, treatment and supports.
[4] On 19 June 2020 Davis J ordered that pursuant to s 9A(2)(b) of the DPSO Act, the
respondent be detained in custody until 4pm on 7 September 2020.
[5] At the hearing of the originating application on 7 September 2020 I ordered that
pursuant to s 9A(2)(b) of the DPSO Act, the respondent be detained in custody until
4pm on 7 October 2020.
Factual background – criminal history and offences
Index offences
[6] The respondent is currently 41 years of age. He is currently serving the following
terms of imprisonment:
(a) three years for sexual assault and 6 months for an indecent act in any place with
intent to insult or offend any person, to be served concurrently (sentenced on
16 December 2016). Parole eligibility date of 27 February 2017.
(b) six months for indecent treatment of children under 16 child under 12
(sentenced on 13 July 2017), to be served cumulatively with the sentence in
(a). Parole eligibility date of 13 July 2017.
[7] On 16 December 2016 the respondent pleaded guilty in respect of offences which
took place on 11 October 2014 when the respondent was 35 years of age. The
offences concerned an adult female and occurred at a natural therapy centre, which
was the victim’s shop.
[8] Clare DCJ in her sentencing remarks noted that the attack was “bold, it was persistent,
and it was very forceful”.1
[9] In relation to the circumstances of this offending, Clare DCJ describes the attack as
follows:
“…you were drunk. When Mrs … left to have her lunch you followed,
pretending to need the toilet. Mrs … was in the kitchen. You stood
in the full view of her and exposed yourself. Mrs … had no romantic
interest in you at all. She had simply been kind to you. Your
behaviour must have been both offensive and alarming to her. She
moved from the kitchen to another room, a small back room with a
therapy bed. She was trying to eat her lunch in peace. You found her.
Your fly was still undone. You zipped it up. She tried to get rid of
you politely saying she said she was tired but she would return to the
shop shortly. But instead of leaving, you jumped on top of her. You
straddled her back and pushed her head face-first into the mattress so
she could not scream. You roughly groped and squeezed her body
which painfully sketched the stitches in her chest. You were
breathing heavily and simulating intercourse as you tried to pull
1 2016 Sentencing Remarks at page 2.
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down her jeans. She was fighting against you and you were rubbing
your fingers between her buttocks. Eventually, she managed to lift
her head and cry out for help. You got off the bed but as she cowered
from you, you decided to push forward, so you pulled your penis out
wanting her to take it. All of this while your sister and the other shop
owner were in the front of the shop, Mrs … screamed and kicked.
And finally, you left.
…… a victim in those circumstances would probably think that you
were going to rape her. It would not only be repugnant to Mrs …. but
terrifying - very, very frightening, as well as painful.”2
[10] On 13 July 2017 the respondent pleaded guilty to the charge of indecent treatment of
children under 16 child under 12 years. The offending occurred on 7 November 2015
when the respondent was 36 years of age. The offending occurred at Southbank
Parklands and the victim was a 9 year old girl. The girl was swimming at the
Southbank Parklands and the respondent swam up to the victim and “tickled” her on
the vaginal area before swimming away.
[11] At the time of the offending, the respondent was on bail for the offences for which
the respondent was sentenced on 16 December 2016.
[12] In sentencing the respondent,3 Farr DCJ commented as follows:
“The offence that I am concerned with is serious. You were a
complete stranger to the young girl in question. It is concerning
behaviour, to say the least. It was brazen; it was in public, and it was
quite determined. It required you to swim over to her and touch her
in the way that you did. Given the nature of that offending conduct
in the context of your criminal history, which includes numerous
offences, some of which are very serious, and include offences – sex
offences as well as dishonesty offences and property offences and
violence offences, results in this being a matter that would ordinarily,
in my view, have resulted in a sentence being imposed upon you,
were it not for the sentence imposed by Judge Clare, of something in
the order of 18 months to two years’ imprisonment.
That is not to say that you are being sentenced for your prior conduct
as indicated on your criminal history, but that is, of course – those
entries and your prior conduct is very relevant in determining the
appropriate degree of leniency. The fact that you were on bail for
sex offences at the time is also an aggravating feature which this
Court is quite entitled to take into account.
…
I note that you suffer from some intellectual problems, as indicated
on prior occasions before the Courts; that you have a serious alcohol
problem, and unless and until you overcome that alcohol problem,
you are likely to keep coming back before the Courts, having
committed criminal offences. I am told that you do not want to be
2 2016 Sentencing Remarks.
3 2017 Sentencing Remarks.
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committing offences, and that you realise that you have to stop
drinking for there to be any chance of that occurring.”4
Previous offending
[13] On 28 November 1997, the respondent was sentenced to 4 years and 6 months’
imprisonment in respect of rape and 3 years’ imprisonment in respect of assault
occasioning bodily harm whilst armed and in company, to be served concurrently.
Parole eligibility was set after 18 months’ imprisonment.
[14] At the time of this offending, the respondent was 18 years of age and the victim was
[intellectually impaired victim] (aged 15 years) and it was committed in the presence
of an 11 year old. The offending included the use of a hot cigarette lighter that was
used as a “form of threat so that [the victim] would not complain about what had
happened”.5
[15] On 28 February 2006 the respondent was sentenced to 6 years’ imprisonment in
respect of procuring an intellectually impaired person to commit an indecent act and
8 years’ imprisonment in respect of indecent dealing with an intellectually impaired
person and incest, to be served concurrently. Time declared was 386 days and parole
eligibility was set at 2 years and 6 months.
[16] At the time of this offending the respondent was 25 years of age and the victim, again,
was [intellectually impaired victim] (aged 21 years). Wolfe CJDC noted in her
sentencing remarks that these offences were committed whilst the respondent was on
bail but also:
“You are a violent man and an impulsive man and your family should
be protected from you …
The domestic violence orders are in respect of your former girlfriend,
your cousin and your cousin’s partner. ...
… you have been subjected to a considerable lengthy term of
imprisonment before and you have obviously learnt nothing from
that.”
[17] In addition to the offending outlined above, the respondent has a juvenile history
which includes dishonesty, property and violence offences, with periods being served
in juvenile detention.
Impaired capacity
[18] This application also has some further complicating features due to the respondent’s
extremely low range full scale IQ, which is congruent with a mild intellectual
impairment. On 29 July 2020, the Queensland Civil and Administrative Tribunal was
satisfied that the respondent met the DSMV diagnostic criteria for intellectual
disability – mild to moderate severity and determined that the respondent has
impaired capacity. As a consequence of this, the Public Guardian was appointed as
guardian for the respondent.6
4 2017 Sentencing Remarks at pages 2-3.
5 Sentencing remarks Forno DCJ.
6 See the affidavit of J Houghton affirmed 2 September 2020 at [3]-[5].
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History in prison
[19] The evidence relied upon by the applicant also outlines two issues in respect of the
respondent’s time in prison: his conduct, and that he has not completed a sexual
offender treatment program.
[20] In respect of his conduct, the respondent has a violation history at the Wolston
Correctional Centre as follows7:
(a) 26 October 2018:
(i) Incident: indecent acts on staff; and
(ii) Breach: acting in an indecent or offensive way in someone’s presence,
October 2018. The respondent served 5 days in the Detention Unit for
“attempts to lure an officer alone to his cell which culminated in him
masturbating in front of the officer”.8
(b) 28 July 2018 – Incident: assault, prisoner on prisoner.
(c) 3 February 2018:
(i) Incident: indecent acts on staff; and
(ii) Breach: acting in an indecent or offensive way in someone else’s
presence. The report describes the respondent as exposing his penis and
masturbating whilst looking directly at a female officer.9
(d) 28 January 2018:
(i) Incident: offensive behaviour; and
(ii) Breach: acting in a way contrary to the security or good order of a
corrective services facility. The incident report described that numerous
incidents of the respondent allegedly masturbating and touching his
genitals while a particular female officer was walking past his cell had
been reported in the respondent’s case notes.10
[21] The case notes relevantly record the further details of the nature of these
incidents/breaches as follows11:
(a) 2 August 2016 – purposively exposing himself to an officer.
(b) 5 April 2017 – displaying predatory behaviour towards female officers.
(c) 1 January 2018 – reportedly watching female officers whilst touching his groin
area.
(d) 25 January 2018 – allegedly making inappropriate comments about female
officers.
(e) 28 January 2018 – fixating on an officer.
7 See exhibit “SC-11” to the affidavit of S Collins sworn 17 January 2020.
8 See exhibit “SC-4” to the affidavit of S Collins sworn 17 January 2020, page 539.
9 See exhibit “SC-4” to the affidavit of S Collins sworn 17 January 2020, page 549.
10 See exhibit “SC-4” to the affidavit of S Collins sworn 17 January 2020, page 555.
11 See exhibit “SC-10” to the affidavit of S Collins sworn 17 January 2020.
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(f) 6 February 2018 – allegedly masturbating whilst in a group program.
(g) 11 July 2018 – allegedly making frequent sexual remarks about female officers
and grabbing his genitals.
(h) 25 October 2018 – during medical rounds observed masturbating whilst naked.
[22] The applicant also identifies that the respondent has not completed any sexual
offender treatment programs during his current period of custody. In early 2018 the
respondent was “exited” from the Inclusion Sexual Offender Treatment Program
(ISOP) as a result of inappropriate sexual behaviour.
[23] Whilst serving previous terms of imprisonment, the respondent:
(a) Completed the ISOP in 2010. The Completion Report noted various factors
including that he used entitlement as a justification for his offending and also
recommended he participate in a Sexual Offenders Maintenance Program
(SOMP).
(b) Completed the SOMP in 2012. The Completion Report again noted that he
used entitlement as a justification for his offending and recommended
professional support to assist him to abstain from the use of substances and
develop further skills in communication, managing emotions and building
social relationships.
(c) Participated in the Wechsler Adult Intelligence Scale (WAIS IV) assessment
in September 2010, which determined the respondent’s overall Full Scale IQ
of 55, functioning within the high moderate – low mild range of intellectual
disability.
[24] The respondent made applications for parole in 2017 and 2018. Both applications
were declined:
(a) In 2017, the Parole Board rejected the application due to outstanding treatment
needs, poor institutional behaviour and conduct and an unsuitable relapse
prevention plan.
(b) In 2018, the Parole Board declined the application due to outstanding treatment
needs, poor institutional behaviour and unsuitable accommodation.
Other background
[25] The applicant also identifies further relevant background, including the respondent’s:
(a) Education and employment history: the respondent was expelled from high
school for inappropriate sexual behaviour and criminal behaviour from
approximately the age of 11 years (commencing with stealing and
housebreaking). The respondent has a limited employment history, supporting
himself on a disability support pension.
(b) Sexual history: the respondent reported his first sexual contact at aged 9 years
(with a girl aged 11) and then with female school mates from age 13. He was
introduced to homosexual practices whilst in juvenile detention but now avoids
such behaviour. As an adult the respondent reported he frequently used
prostitutes.
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(c) Drug and alcohol history: the respondent reported a pattern of binge drinking,
with abstinence when in custody. The respondent acknowledges poor control
over his drinking. He has not completed any formal rehabilitation programs
either in the community or in custody. The respondent reported cannabis use
since he was a teenager, which increased to a daily habit. Further, the
respondent reported experimentation with amphetamines and cocaine, but not
as a regular habit.
Issues
[26] The issues for determination in respect of the application are as follows:
(a) Whether the Court is satisfied that 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.
Serious danger to the community
[27] Dealing with the first issue to be considered under the DPSO Act, it is necessary to
make a determination as to whether or not the respondent is a serious danger to the
community in the absence of a Division 3 order.
[28] 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.”
[29] 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.”
[30] 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 a psychiatrist under s 11 of the DPSO Act, any other
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medical, psychiatric, psychological, or other assessment relating to the prisoner, the
prisoner’s antecedents and their 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.
[31] “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.”
[32] 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).”
Which order, if any, should be made?
[33] If I am satisfied that the prisoner is a serious danger to the community, 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).”
[34] 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).
[35] 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.”
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[36] 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.”
[37] 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
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(b) for the prisoner’s rehabilitation or care or treatment.”
[38] The Court of Appeal in Attorney-General v Francis12 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
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.”
[39] Also relevantly, McMurdo J (as his Honour then was) in Attorney-General for the
State of Queensland v S13 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 for the State of Queensland,
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
12 [2007] 1 Qd R 396 at 405.
13 [2015] QSC 157 at [38].
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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)
[40] Chesterman JA, in Attorney-General for the State of Queensland v Fardon14 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.”
[41] Further, in Turnbull v Attorney-General for the State of Queensland,15 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.”
[42] The issue of whether a respondent will properly comply with a supervision order was
considered in the case of Attorney-General for the State of Queensland v Fardon.16
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’.”
14 [2011] QCA 111 at [29].
15 [2015] QCA 54 at [36].
16 [2011] QCA 155.
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Expert evidence
[43] In respect of the application the relevant expert evidence is as follows:
(a) Dr Michele Andrews, Neuropsychologist.
(i) An assessment report was provided dated 30 July 2020.17
(b) Dr Ken Arthur, Psychiatrist.
(i) A report was commissioned by Crown Law for the purpose of a risk
assessment in relation to a possible application under the DPSO Act.18
(ii) An initial report was prepared dated 26 July 2019, following an interview
with the respondent on 26 July 2019.19
(iii) An addendum report was provided dated 17 August 2020.20
(c) Dr Ness McVie, Court-Appointed Psychiatrist.
(i) Appointed at the preliminary hearing for the purpose of a risk assessment
report pursuant to s 11 of the DPSO Act.
(ii) An initial report was prepared dated 25 April 2020, following an
interview with the respondent on 7 March 2020.21
(iii) An addendum report was provided dated 24 August 2020.22
(d) Dr Josephine Sundin, Court-Appointed Psychiatrist.
(i) Appointed at the preliminary hearing for the purpose of a risk assessment
report pursuant to s 11 of the DPSO Act.
(ii) An initial report was prepared dated 13 May 2020, following an
interview on 20 March 2020.23
(iii) An addendum report was provided on 25 August 2020.24
[44] Each of the experts was required to attend the hearing in person to give evidence and
to be cross-examined.
Evidence of Dr Michele Andrews - Neuropsychologist
Report dated 30 July 2020
[45] Dr Andrews’ opinion is set out from line 981 on page 24 of her report as follows:
“Opinion
… Throughout the interview he tended to minimise his sexual
offending and highlight what changes he perceived he has made
17 Exhibit “SR-3” to the affidavit of SD Richards sworn 27 August 2020.
18 Exhibit “KA-1” to the affidavit of K Arthur affirmed 6 January 2020.
19 Exhibit “KA-2” to the affidavit of K Arthur affirmed 6 January 2020.
20 Exhibit “SR-4” to the affidavit of SD Richards sworn 27 August 2020.
21 Exhibit “SR-1” to the affidavit of SD Richards sworn 27 August 2020.
22 Exhibit “SR-5” to the affidavit of SD Richards sworn 27 August 2020.
23 Exhibit “SR-2” to the affidavit of SD Richards sworn 27 August 2020.
24 Exhibit “SR-6” to the affidavit of SD Richards sworn 27 August 2020.
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during his time in custody. With respect to the application for a
supervision order [the respondent] was of the opinion that he did not
require a supervision order and minimised any potential risk he may
be to the community.
…
With respect to his formal cognitive testing [the respondent’s] Full
Scale IQ fell within the extremely low range (FSIQ= 59 (56-64))
which is congruent with a Mild Intellectual Impairment. With respect
to his cognitive skills, [the respondent] is functionally illiterate; he
demonstrates a very minimal repertoire of sight words and his
performance on a word decoding task indicated that he does not
possess adequate basic word decoding skills. Similarly, his assessed
level of receptive vocabulary was equivalent to an individual of 9
years and 4 months old. Therefore, [the respondent’s] basic reading
and word comprehension skills are well below age expected limits.
However, functionally, [the respondent] does demonstrate a level of
comprehension of spoken language which appeared to exceed formal
testing. In my opinion his comprehension and understanding appears
to be more equivalent to early teenage years. Across broader
neuropsychology testing [the respondent] demonstrated impairments
across most cognitive domains including, verbal skills, auditory
attention, working memory, processing speed and learning and
memory for lengthy or complex material. He also demonstrated
impairments in tasks of executive functions/frontal lobe functioning
including planning, response inhibition, mental flexibility, abstract
thinking, problem solving and self-monitoring. He demonstrated a
personal strength in working with visuospatial information, however,
his performance on these tasks still only fell within the borderline
range (i.e. 2-5th percentile) when compared to similar aged peers. He
performed best on a verbal memory task, which provided 5 trials of
repetition of the same information (see above memory section)
demonstrating and ability to encode, retain and recall a reasonable
amount of information (low average range).
Overall, [the respondent] is an individual who functions well below
age expected limits and demonstrates cognitive deficits across most
areas of cognitive functioning. … In my opinion [the respondent]
meets DSM- V diagnostic criteria for of Intellectual Disability- Mild
to Moderate Severity. His formal intellectual capacity is well below
age expected limits. Whilst it was not possible to complete an
assessment of his adaptive functioning whilst he is incarcerated,
based upon his history inclusive of, schooling within the special
education system, illiteracy, lack of ability to acquire work, poor
behavioural and emotional regulation, lack of age appropriate
social/interpersonal skills, difficulties making and sustaining
friendships, lack of pro-social leisure activities, need for external
supports, lack of licence, management of finances by the Public
Trustee, poor ability to comply with orders and impairments in moral
reasoning and insight, highlight broad ranging deficits in his adaptive
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functioning across the conceptual, social and practical domains at a
mild to moderate level.
…
In relation to the neurodevelopmental domains [the respondent]
presents with clinically significant impairment across the domains of:
Intellectual functioning- demonstrates a Mild Intellectual
Impairment.
Attention, processing speed, working memory and aspects
of memory.
Affect and behavioural regulation.
Academic achievement
Executive function and impulse control
Adaptive Behaviour, Social skills or Social
Communication.
…
The possibility of an underlying Learning Disorder was raised by Dr
McVie. [The respondent] is functionally illiterate and as such he
cannot read or write and has very limited mathematical skills.
Essentially, he lacks the basic foundations of literacy and numeracy
and as such has not acquired even basic academic skills. His difficulty
in acquiring these skills was likely to be multifaceted including
impaired intellectual functioning during schooling impacting upon
the acquiring fundamental concepts and exposure early trauma and
neglect impacting upon his behaviour and cognitive development. In
my opinion [the respondent’s] learning difficulties are more
appropriately subsumed under the auspice of his Intellectual
Disability.
Regardless of the aetiology of his cognitive deficits, [the respondent]
suffers from at least a Mild- Moderate Intellectual Disability and
associated severe deficits across multiple domains of
neuropsychology functioning and adaptive functioning. These
deficits will have an ongoing impact in relation to his treatment
within and outside of custody, his risk of sexually inappropriate
behaviour in custody and sexual recidivism if released to the
community.
In the context of his Intellectual difficulties, of most concern, is [the
respondent’s] tendency to continue to engage in sexually disinhibited
and inappropriate behaviour whilst in custody. These behaviours
appeared in part to be triggered by his attendance at the ISOP,
however they also continued after being exited from this program.
His behavioural difficulties are underpinned by impairments in basic
intellectual skills and in particular higher order executive functions
such as inhibition, problem solving, social/moral reasoning,
judgment and insight.
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On formalised testing with the writer in a controlled environment
with no arousing stimulus, [the respondent] struggled to inhibit
inappropriate or pre-potent responses on tasks, and also made
atypical and overfamiliar comments to the writer. Therefore, in more
socially complex situations where there may be stimuli that he finds
arousing (e.g. females in a public space) he is likely [to] struggle to
inhibit inappropriate responses across time, and these difficulties
would be exacerbated by any intoxicant. [The respondent] possesses
the capacity to understand that behaviours such as staring at officers,
masturbating or exposing himself in front of others or in a program
setting is inappropriate. However, he appears to have continued
difficulties inhibiting such responses, despite multiple reprimands.
Such instances have been noted to occur up until 2019 (as
documented in the psychiatric reports). His impulsivity and
difficulties with disinhibition will continue to be a salient risk factors
for sexually inappropriate behaviour or sexual offending and form an
area of treatment need. Whilst engagement in psychological
intervention to with a focus on impulse control and skill development
may assist him to a degree, it is likely that supervision and support
will be the main mitigating factors.
With respect to the issue of ongoing treatment, I agree with Dr
Sundin, that it would not be appropriate to re-engage [the respondent]
in the ISOP. He is a man who will struggle to participate in a
meaningful manner. He is likely to struggle to inhibit inappropriate
responses and engage in challenging behaviours. Additionally, [the
respondent] is illiterate, has impairments in auditory attention,
working memory, reasoning and memory. As outlined above [the
respondent] demonstrates the capacity to learn with repetition,
however, he requires around 4-5 trials of the same information in a
consistent manner, to encode and reliably recall the information. This
level of repetition will not be available or feasible in a group
treatment program. Additionally, [the respondent] demonstrates
limited insight into his offending and a limited ability to generalise
information to his own situation, and therefore will receive little
benefit from listening to other people’s experiences. [The respondent]
appears to have gained very little from his previous programs (prior
to 2018) despite positive reports, however, he appears to have
presented himself in a reasonable manner in these programs to a level
that he was considered to have completed the program. Given [the
respondent’s] presentation and cognitive limitations he is likely to
benefit from individualised intervention with an experienced
psychologist, where intervention can be targeted and important points
can be repeated to assist with consolidation. [The respondent] stated
he is currently engaging with Dr. Luke Hatzipetrou for individual
intervention and in my opinion he is likely to have a greater chance
of therapeutic benefit for gain from individual therapy.
Within the psychiatric reports issues were raised in relation to [the
respondent’s] ability to meaningfully instruct a solicitor and consent
to anti-libidinal medications. Whilst I did not have the capacity to
assess each of these areas in detail it is evident from his assessment
-- 16 of 50 --
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results that [the respondent] will struggle with any comprehending
complex information. He has very basic verbal expression and
comprehension skills. He can interpret basic and literal information,
however, due to his cognitive impairments he does not have the
abstraction, reasoning or problem-solving skills to meaningfully
analyse complex information or weigh up possible outcomes for
himself or wider benefits in terms of risk reduction to others. When
asked questions about the purpose of a DPSO Act supervision order,
he had a very rudimentary understanding pertaining to the fact that
he was deemed “a danger to society”. However, he also rapidly
minimised the need for an order stating “I’m not waiting in bushes
for kids or girls… I shouldn’t be on it…. I took drugs and was
swimming and got too close I wouldn’t go out of my way to do it”
(referring to offending by inappropriately touching the young girl
under the water at Southbank). He was aware that if placed on a
supervision order he would be accommodated at the Wacol Precinct,
but could not provide any further information. With respect to court
proceedings [the respondent] will struggle to follow the course of the
proceedings due to his cognitive deficits. He will require extra time
to consult with his solicitor and have information explained in a very
simple manner. In my opinion he will require a reasonable level of
support throughout the legal process. He will not have the capacity to
comprehend or reason around points of legislation and weather they
apply to him. With respect to consent to anti-libidinal mediations,
again [the respondent] is likely to be able to develop a basic
understanding of the effect of the medication (e.g. reduce sex drive).
However, he is likely to struggle to appreciate the usefulness of such
medication in relation to risk mitigation, understand the longer-term
side effects and implications of non-compliance. Additionally I
would be concerned about his ability to be compliant with a
medication. He would need a very structured and more than likely
supervised medication routine. [The respondent] appears to have
limited external supports that could assist him and therefore an
application to QCAT for a Public Guardian may be required.
If [the respondent] was to be released to a supervision order at some
point in the future he will likely struggle with compliance with his
order due to his cognitive deficits, impulsivity, and his lack of insight
into his own risk factors and risky situations. The following may be
useful should he be considered for release:
Due to his cognitive difficulties he will struggle to
remember details of his order, and he will require regular
repetition of his order.
He is also likely to have difficulties with compiling and
remembering his pre-planned movements without a
reasonable amount of support and is likely to deviate from
his movements.
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He is likely to struggle with technology such as mobile
phones and will require a level of coaching so he can be
contacted.
He will need a routine and reminding to charge his GPS
device.
Based upon his current presentation he will have limited
insight into any risky situations and could not reliably
implement risk management strategies.
He will be at an increased risk of substance abuse due to
impulsive behaviours and difficulties with consequential
thinking.
He will struggle to implement strategies across different
environments without direct support and as such will likely
require support workers in the community to assist him
with everyday activities, planning and organisation and
transport within the community.
He will require support on a daily basis which is likely to
best be met through NDIS funding. If he was to be provided
with support workers I would suggest he only be provided
with male support workers due to his sexualised
behaviours toward females.
[The respondent] tends to present himself in a positive
manner and minimise his difficulties, as such support
workers involved in his case need to be aware of positive
impression management as do any QCS case managers.
Taking into account the outlined potential difficulties, it should also
be considered that [the respondent] does demonstrate a capacity for
learning. He has also held employment in custody. Therefore under
the right conditions, that is, one to one supported intervention,
supervision and support, he does have capacity to learn basic skills
and improve his functioning. Whist this may not reduce his level of
risk significantly, it would provide him with more meaningful
engagement with people and activities, which if in the community
would translate to more pro-social activities.
Finally due to his cognitive deficits and ongoing difficulties in
custody, I would recommend that supports be put in place and a
reintegration plan be developed prior to his release to a supervision
order. This could include ongoing intervention with a clinician who
he will also see when released from custody. Development of a basic
risk management plan with [the respondent] prior to his release, and
as much as possible, planning around NDIS supports that will be
available when he is released.” (Emphasis in original)
Oral evidence
[46] At the hearing on 7 September 2020 Dr Andrews gave oral evidence in relation to the
views expressed in her report. Dr Andrews’ evidence in chief included the following:
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(a) “However, on the basis of my cognitive assessment as well, I don’t believe that
he would be very appropriate for a group-based format, because of his
cognitive deficits. I think that he would get more therapeutic benefit in terms
of individual intervention that could be targeted specifically to him.”25
(b) “So he gets interference effects with learning. He learns slower. He needs
about four to five repetitions to get to what I would consider to be a low average
level of learning compared to similar aged peers. So whilst he has the capacity
to learn, it’s reduced compared to people of his chronological age. So he does,
under supported, structured conditions.”26
(c) “So, initially, I think that he would require – if you would like specifics, he
requires 24-hour supervision, initially. There would need to be, I think, some
improvements in his ability to regulate his sexual activities and that would also
include, certainly, supervision and support whilst he’s in the community and
around general community members. And my recommendation there would
be it should be male only, given his history of previous behaviour.”27
(d) “I think that he could understand the basics of that medication, that it reduces
your libido or sex drive. What I don’t believe he will really be able to
understand or will – or will struggle to appreciate is that – that that medication
is used to reduce risk and to reduce the risk of reoffending because, essentially,
he doesn’t believe that he needs to be on a supervision order, nor that he would
reoffend. So his ability to appreciate why he needs to take that, why it needs
to be consistent, why the levels need to be monitored, I don’t believe that he
will – he will be able to appreciate that very well. But I also don’t believe that
he would be motivated to comply with that either. I think that would be very
difficult.”28
[47] Further, at the hearing Dr Andrews was cross-examined by Counsel for the
respondent. This further evidence included the following:
(a) “… that issue of impulse control and developing better skills to control them
would be the subject of – you’d anticipate, of psychological intervention by Dr
Hatzipetrou?---Yeah, it would be the – so, yes, it would be the subject of the
intervention in terms of skill development or strategy development. Whether
he is able to then apply that independently is a – is a different question, yeah.
…
In part, I think, also, because of his intellectual disability difficulties with
executive function, he’s going to have significant difficulty transferring skills
from one environment to another. So if he does psychological intervention
with Dr Hatzipetrou and they go through various strategies or whatever they
may go through in terms of – to assist him, he then has to be able to take that
and then transfer that to a different environment. For example, it could be the
community – so it could be from a therapy room regardless of whether
community or custody, and then apply that in the community. That’s more of
an abstract process, and that will – he will have some level of difficulty with
25 T 1-4 L 33-37.
26 T 1-4 L 43-47.
27 T 1-5 L 24-29.
28 T 1-6 L 12-20.
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20
that. So the supervision and support, really, are also to support in situation
learning and corrective experiences in the situation; because we know that
individuals with an intellectual disability with significantly struggle with
generalisation of information.
So the in-situation learning that comes from someone – the imposition, say, of
restrictions on activities that he can engage in and reinforcing that’s going to
be a very important part of the process of rehabilitation for this man?---It will
– yes. It will be part of it, yes. Because I think that, in terms of skill
development – and he even says this himself – he – you know, his literacy
levels are extremely low, so the way he develops skills are by, for example,
watching what’s going on. So he really needs that one-to-one demonstration;
this is what you do, this is what you don’t do. Don’t engage in that, that’s
inappropriate; this is why it’s inappropriate. However, the difficulty is that, as
I can see from him being in custody, he’s already got that in custody. He’s
been corrected and reprimanded for inappropriate behaviours and he continues
to engage in them, so – but it does form a very important part, yes, in my
opinion.”29
(b) “… he has the capacity to learn; however, he requires, usually, around four to
five trials of repetition of information in a consistent manner. So I’m actually
referring to his process of learning on one specific task that I gave him. So it’s
a wordless task, and it looks very closely at how you acquire information with
repetition. And then I compare that to a task where he doesn’t have repetition
and he just has a bulk of information. So a small amount – or, well, a
reasonable amount of information, but simple information. He still requires up
to four to five trials of that repetition, consistently.”30
Evidence of Dr Ken Arthur - Psychiatrist
Report dated 26 July 2019
[48] Dr Ken Arthur, in his report dated 26 July 2019, provides the following opinion:
“233. Although [the respondent] accepts a degree of responsibility for
his offending behaviour, he displays incomplete insight into the
harm caused to his victims, minimises his use of
violence/coercion and continues to deny any sexual intent in
relation to the most recent sexual offence. He engages in positive
impression management. He does not believe that he requires a
supervision order, but admits to some apprehension about how
he will cope on release and whether he will be able to utilise
supports to avoid reoffending. His risk management strategies
rely heavily on support from other people and are poorly thought
out. He has unrealistic expectations regarding his capacity to live
independently.
234. He fulfils the criteria for a mild to moderate Intellectual
Disability, with impairment in perceptual, social and practical
domains. I have insufficient evidence to support a diagnosis of
Attention Deficit Hyperactivity Disorder. He has a Substance
29 T 1-7 L 41 to T 1-8 L 33.
30 T 1-9 L 19-27.
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Misuse Disorder, currently in remission in a controlled
environment, predominantly alcohol but also involving
cannabis and other drugs. Whilst [the respondent] has a long
history of sexual offending, it is difficult to place this into any
one specific paraphilic category, although his behaviour in jail
is suggestive of exhibitionism. Generally, his offences appear
unplanned and opportunistic. The more recent offences
occurred in the context of intoxication and were committed in
public places with a high chance of detection.
235. Whilst [the respondent] reports feeling remorse for his
offending, his emotional responses are shallow and lack
authenticity. It is possible that this may be a reflection of his
underlying Intellectual Disability.
RISK ASSESSMENT
236. Refer to Appendix A in relation to the assessments listed below.
Static – 99R
…
241. [The respondent’s] Static-99R score was 7 [which] places him
in the ‘well above average risk’ group.
The Hare Psychopathy Checklist (PCL-R)
…
243. Utilising this instrument, [the respondent] achieved a score of
23/40 which is within the range of scores found in the general
male prison population. As such, he did not reach the cut off
for a diagnosis of Psychopathic Personality.
RSVP
244. The RSVP (Risk for Sexual Violence Protocol) is a structured
professional judgement tool that aids risk assessment of sexual
violence. …
245. Utilising this instrument, I have identified the following factors
relevant to the future risk of sexual recidivism –
Sexual Violence:
Chronicity
Diversity
Physical coercion
Psychological Adjustment:
Attitudes supporting sexual violence
Problems with self-awareness
Problems with stress and coping
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Mental Disorder:
Problems with substance abuse
Social Adjustment:
Problems with intimate relationships
Problems with employment
Non-sexual criminality
Manageability:
Problems with planning
Problems with supervision
246. I have identified further possible risk factors of relevance –
Extreme minimisation or denial
Problems with nonintimate relationships
Problems with treatment
Sexual deviance
Risk Statement
247. [The respondent] is still a relatively young man who has a high
sex drive and history of sexual preoccupation. He has offended
against family members, both sexes and children. Although he
reports a reduction in sexual preoccupation and frequency of
masturbation whilst in jail, there have been multiple instances
where he has been either admonished or breached for
inappropriate sexual behaviour including masturbating in view
of female officers, verbalising sexual fantasies about officers
and allegations of exposing himself during group therapy.
248. It appears that substances such as alcohol and
methamphetamine have a significant disinhibiting effect on
him and were associated with the two most recent offences. He
also claims to have been intoxicated during the second assault
on his brother.
249. Due to his inappropriate behaviour, he was exited from the
Sexual Offender Treatment Program in 2018 as it was
considered that he was not ready, willing or able to engage. He
has previously completed a Sexual Offender Treatment
Program and Substance Abuse Program with positive exit
reports. However, he does not appear to have internalised much
from these programs and continued to offend. His custodial
record speaks to his limited capacity (and perhaps motivation)
to regulate his sexual behaviour. His intellectual disability is
likely to impact on his level of self-awareness and capacity to
engage in treatment.
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250. I strongly suspect that [the respondent] may struggle to live
independently without significant interpersonal support. His
identified supports consist of older women who may not be able
to provide an adequate level of authoritative supervision
required to reduce his risk of returning to substance use.
251. He has unmet treatment needs in regard to his sexual offending.
Whilst he displays some acceptance of responsibility for his
offending behaviour, he continues to engage in minimisation,
denial and projection of blame.
252. He has a history of reoffending whilst on bail. As such, it is
possible that he may sexually reoffend relatively soon after
being released from custody. In the context of a high level of
sexual preoccupation combined with a return to substance use,
[the respondent] may engage in opportunistic and impulsive
offending. This may involve inappropriate touching, exposing
himself or public masturbation. Given the history of physical
coercion and violence, it is possible that his offending may
progress to more serious sexual assaults.
253. Based on his behaviour whilst incarcerated, he is at risk of
offending even in the absence of intoxication should he find
himself sexually frustrated.
254. Factors increasing his risk of reoffending include a return to
substance use, sexual frustration, itineracy and a breakdown in
his social supports.
255. It is difficult to identify a particular victim group.
256. Based on the available information, I believe [the respondent]’s
risk of further sexual offending on release from jail is high.
Recommendations
257. [The respondent] has unmet treatment needs in regard to his
sexual offending, particularly in relation to self-awareness,
sexual preoccupation, denial/avoidance and sexual entitlement.
Given his significant intellectual disability, the Inclusions
Program would be most appropriate, as he may struggle with
the comprehension and retention of written and verbal
information. As far as I am aware, the Inclusions Program is
only available to offenders whilst in custody. He also requires
ongoing treatment addressing his risk of future substance
abuse, and should complete a group treatment program such as
the LISI.
258. A supervision order may reduce his risk of sexual recidivism.
259. He should abstain from all drugs of abuse including alcohol,
with restrictions placed on his access to licensed premises. He
should undergo regular breathalyser/urine drug tests and
engage in ongoing drug and alcohol counselling.
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260. Due to the variation in his victim types, reducing victim access
may prove challenging. His access to the community should be
closely scrutinised, with conditions in place to minimise contact
with children. Any future relationships or friendships should be
closely scrutinised and monitored.
261. [The respondent] would benefit from individual psychological
treatment addressing issues such as self-awareness/regulation,
sexual preoccupation and the development of adaptive coping
strategies. Given his intellectual disability, he may require the
provision of interpersonal supports in the community to
facilitate independent/semi-independent living. This would
most likely require a formal application of funding through the
NDIS.
262. He may benefit from the use of libido lowering agents such as
some SSRI antidepressants or anti-androgen medication. A
referral to a Psychiatrist with experience in forensic populations
and the use of anti-libidinals would be appropriate; particular
care should be taken in gaining informed consent given [the
respondent]’s apparent intellectual disability.
263. Due to the chronic nature of his sexual offending, his history of
reoffending whilst on conditional release, the presence of a
significant intellectual disability and apparent lack of social
supports, I believe that the duration of a supervision order will
need to be of sufficient length to ensure he is provided with a
reliable social support structure, has time to internalise the
relevant aspects of psychological therapy and show evidence of
enduring behavioural change. As such, I would recommend a
10 year order be considered.”
Supplementary Report dated 17 August 2020
[49] Following the consideration of some further material, Dr Arthur provided a
supplementary report dated 17 August 2020 which concluded:
“…
The relevance of the material for me was:
His prior reports of psychotic symptoms were considered
either pseudopsychotic or malingering. There is no
evidence of an underlying major mood or psychotic
disorder but clear evidence of chronic impairments in
affect regulation and poor coping.
He gives an inconsistent history of head injuries and
perinatal trauma which requires corroboration.
His earlier interactions with mental health up to 2004
indicate frequent non-attendances and patchy non-
compliance as well as a history of significant interpersonal
violence.
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He has previously been treated with SSRI antidepressants
and Valproate (an anticonvulsant) to try and treat
impulsivity and emotional dysregulation. It doesn’t seem
to have helped that much.
He has now been provided an Adult Guardian and Public
Trustee.
Michelle [sic] Andrews’ assessment of 30 July 2020
outlines the presence of significant cognitive impairment
and diagnosed a mild to moderate intellectual disability. It
was her opinion that [the respondent] would not be able to
engage in group programs because of this and will have
difficulty complying with the conditions of a supervision
order. She recommended individual therapy with much
repetition and a high level of supports provided to him at
the time of release from jail.
Prison records document ongoing inappropriate sexual
behaviour in the form of touching his groin around female
officers, inappropriate sexual talk and the used [sic] of
sexual innuendo with female prison staff.
This changes my opinion in regards to further treatment and
supervision needs as follows:
Engagement in the Inclusions program and the LISI appear
to be contraindicated, leaving individual therapy as the
only viable alternative.
Based on Dr Andrews’ report, I have significant concerns
about [the respondent]’s capacity to cope outside supported
accommodation. It seems that the precinct would be
unsuitable because he does not appear to have the requisite
skills to live independently, support staff could not assist
him there and it is likely he would breach his order due to
poor self-control and an inability to appreciate or
remember conditions. As such, he will require the
provision of supported accommodation with NDIS funded
interpersonal supports. He should initially only have male
support workers. His access to the community needs to be
restricted. He will require a thorough functional needs
assessment to determine the level of care required. Until
suitable accommodation and trained support workers can
be provided, I cannot see how he could be released under
the auspices of a supervision order without a high risk of
further inappropriate sexual behaviour or breaching his
order conditions.
I note Dr Andrews’ concern about his capacity to consent
to antilibidinals. I am not sure that I wholly accept this, but
I agree that this issue requires careful consideration.
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26
I remain of the opinion that he requires a 10 year
supervision order.”
Oral evidence
[50] At the hearing on 7 September 2020, Dr Arthur gave oral evidence in respect of his
report and some further issues. His views included the following:
(a) “Whilst he’s been in jail, I think he hasn’t had appropriate treatment for the
sexual offending. He was exited from the ISOP program. I think the first
program that he did, there’s not a lot of evidence that he took much away from
that. That’s probably due to a combination of factors. So he essentially
remains untreated. He started individual therapy with Dr Hatzipetrou but he’s
only just started that. I think he’s only had one or two visits, so that’s very
early days for this man. And despite that, there continues to be inappropriate
sexual behaviour. So I have concerns that this man would be able to regulate
himself if he was released.”31
(b) “So he certainly needs psychological therapy in order to address the – a better
understanding, the drivers for his sexual offending, to develop a relapse
prevention plan, all of those things. I think, though, that this is a man who also
needs some external regulation as well. My recommendations for medication
are really based on the fact that we have someone who can’t seem to regulate
himself even in a highly controlled environment. And in those cases, I would
clinically recommend the use of medication to improve someone’s self-control
but also reduce sexual preoccupation and libido. So I think that medical
treatments going to be very important for this man, as well as psychological
therapy.”32
(c) “So I accept that group programs may not be appropriate for him. So we’re
left with individual therapy. That’s going to take a long time, a long time. This
is a man who we’ve heard from Dr Andrews, he – he’s going to take some time
to be able to take on board information and process it, apply that to himself and
then generalise that to other aspects of his life. So we’re looking at a very long-
term process here.”33
(d) “What is his capacity to actually change. We know he can learn. We know
that he can regulate himself to some degree. But we don’t really know what
his capacity for self-regulation is going to be into the community. So for all of
those factors I think it’s really important that he not only start treatment whilst
he’s in custody, but that we actually see some benefit from that treatment. We
see some change which can give us, I suppose, comfort that, when he’s released
into the community, there is a greater degree of self-control.”34
(e) “So SSRI or antilibidinal. Is that what we’re talking about?---Look, I think that
they’re the two most obvious choices. SSRI medication particularly, there are
some that are more efficacious than others in regards to lowering libido.
Paroxetine is probably the gold standard. And that does help a number of
people to lessen their sexual preoccupation or the physical aspects. People who
31 T 1-12 L 16-24.
32 T 1-12 L 29-38.
33 T 1-12 L 45 to T 1-13 L 2.
34 T 1-13 L 16-22.
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27
use sex as a way of coping with negative emotional states, if we treat their
anxiety and their depression then that may reduce sexual acting out. So it can
be helpful but it’s certainly not helpful for everybody. It’s just that it’s a – it’s
an option because there’s less side effects, less irreversible side effects or
serious side effects and generally people have less opposition to taking it.
From the material that you’ve seen and according to the medical material in
relation to [the respondent], has an SSRI been trialled in the past?---Look, I
understand it has. I did review a – a large amount of material that was sent to
me. Unfortunately, I’ve made reference to it in my addendum but I don’t
actually note which SSRI it was. I don’t believe, from memory, it was
paroxetine and I’m not sure about the doses and his compliance with that
treatment. So it’s – it’s hard to know how effective that’s been.
So it’s something that would still be a consideration at this point in
time?---Look, I would certainly recommend it and, in lieu of – of more
definitive treatment with – with antilibidinals, it’s certainly an alternative. Not
as – not as – not as efficacious but it is an alternative.”35
“So I think without a very thorough capacity assessment of his functioning, the
risk is that he won’t be able to do these things very well. That will increase his
level of frustration and anxiety which may then lead to his sexual acting out,
which is a concern.
…
Look, I think a functional capacity assessment would be very important, and
perhaps if he had an assessment prior to being released, we would discover that
he has really good living skills. I don’t think so, but that’s a possibility. So I
think that would be really important to do regardless of whether he goes to the
precinct, or whether he goes to supported accommodation, but on the basis of
the neuropsychological evaluation and history, I don’t – I suspect very strongly
he doesn’t have adequate living skills. So supported accommodation in a place
where he doesn’t have to be – he doesn’t have to rely upon himself to manage
his finances, to manage his day to day cares, to manage paying bills. That
would be really, really important, and I think supported accommodation will
give him that and it will allow NDIS staff to come into the home and support
him with those aspects of his everyday life.”36
(f) “So at this point in time for [the respondent] is the primary focus at this point
in time that he needs to undergo some treatment?---Look, I – it – as far as his
risk, absolutely, yes.
And so he needs to commence individual – continue individual treatment with
Dr Hatzipetrou for risk of sexual reoffending. Should that also cover substance
use?---Look, I think substance use is very important. It has been a common
feature of [the respondent]’s adult life, and certainly it’s a major risk factor. It
adds a further level of disinhibition to someone who already has poor impulse
control. So, yes. I think that would be very important.
35 T 1-13 L 27 to T 1-14 L 2.
36 T 1-14 L 38 to T 1-15 L 26.
-- 27 of 50 --
28
And that should occur prior to release to a supervision order?---Certainly a
thing that would be beneficial to occur prior to release and to continue on
during his release in the community. Yes.”37
[51] At the hearing, Dr Arthur was cross-examined by Counsel for the respondent. Dr
Arthur’s evidence included:
(a) “People who are impulsive, highly impulsive, people who have a poor self-
awareness so that they may not necessarily recognise that the internal drivers
for sexual offending are escalating, people who are antisocial – so people that
aren’t – don’t usually follow the rules. And so they may not be internally
motivated to follow the rules unless it’s in their best interest as they see it, and
people who tend to engage in non-planned offences. So opportunistic
offending. So often what I’ve seen in my own personal experience in treating
people like this is that people who are opportunistic, impulsive, let’s say
random, they will offend randomly and you don’t predict it, or it can be difficult
to predict until afterwards, and through the retrospective scope the psychologist
like Dr Hatzipetrou can look back and say, “Well, what were you thinking and
what happened and what was that situation? Why did you do that?”, but unless
the person actually has the capacity to be aware of the risk factors and to
manage them appropriately, those communication requirements are of limited
value. They’re certainly more valuable later on in treatment when people are
having – you know, are given a little bit more leeway, but certainly when
they’re first released they’re of limited value, and I think the other points you
make about having to attend treatment and doing what you’re told, yes, they’re
all useful if someone complies with them, and I think the problem here is that
there’s a concern that [the respondent] may not have the capacity to retain the
information or to comply with or that his impulsivity will override that
capacity. So the concern is that he may not be able to comply with the order
and the limitations of that order when he’s released without significant external
support.”38
(b) “And at the moment he’s just started treatment; at the moment he has no
external regulation as far as medication to assist him in that regard. So I think
that there is a significant question mark over how much benefit a supervision
order would have on this man. And, certainly, if he’s on 24-hour curfew, if he
never leaves the precinct or his accommodation; then, yes, his risk of offending
against children will be low. I think there’s a risk that he will still engage in
inappropriate sexual behaviour because he continues to have a high sexual
preoccupation and low self-control. At some stage he has to go to the
community. And he’ll have NDIS funding and he’ll have NDIS staff to assist
him; but we don’t know the training of these people, we don’t know how well
they understand his risk. And, so, I think in a very careful planning, this man
may find himself in a position where he may offend. And that’s my concern.”39
(c) “Well, ideally, [treatment with SSRI medication or anti-libidinal medication]
should really start before he’s released. Because we don’t know his response
to it; he may respond well to it, he may not. He may not be able to tolerate the
medication. We may be able to start him on an SSRI in jail; although my
37 T 1-14 L 28-41.
38 T 1-17 L 6-28.
39 T 1-18 L 42 to T 1-19 L 7.
-- 28 of 50 --
29
understanding is that that’s going to be difficult, as the prison mental health
service have, essentially, stated they don’t have the capacity to be involved.
And the office of the adult guardian has certainly made it difficult to look at
antilibidinal; so I think that if he were started on the SSRI, he would need to be
on it for a period of at least some months. There would have to be some
objective measures as to behavioural change as well as subjective measures
through monitoring with Dr Hatzipetrou before we have some sort of sense of
how effective that treatment was. So it’s very important; but, again, it’s not a
panacea, and it may not be helpful.”40
(d) “So SSRIs are a type of anti-depressant. So they work mostly on regulating
certain serotonin receptors in the brain. The most focus has been on the frontal
lobes of the brain; and the frontal lobes are involved in behaviour and emotion.
So for people with depression, SSRIs tend to normalise changes in the brain
that occur in people that are several depressed. In people with anxiety, it tends
to regulate certain frontal lobe circuits which basically normalises the way your
brain works. In people with intellectual disability or impulse control disorders,
what we think happens is that the SSRIs improve their impulse control. And,
again, you know, the research on this is – is quite – is not – not comprehensive.
So we’re still dealing with empirical data here which is basically we see the
effect it has on a person and we try and understand how it works. What we
think it does is, the similar matter, it helps people – their brains to work more
efficiently. So the people who have a – a normal level of inhibition, so I want
to do this but I shouldn’t do it, so I won’t, people who are highly impulsive, a
very low level of inhibition, and so the antidepressants do tend to improve that
somewhat. That’s dependent on dose, it depends on the person. What we do
see, though, is that this may take some time to gain full benefit. So some people
respond quickly, some people take some months, and the dose range is quite
large. Unfortunately, drugs like paroxetine have significant side effects, so you
often have to balance out the benefits versus the risks. So, therefore, you start
very – at a low dose and titrate slowly and that can take time as well.” 41
(e) “And so it appears to me that individual therapy seems to be the best option at
this point.
You seem to be saying, Doctor, that you would anticipate that there would –
that [the respondent] would need to engage in treatment with Dr Hatzipetrou,
so on a weekly basis, for a long period of time?---Yes.
When you say that, are you meaning at least 12 months?---I think he’s going
to need treatment for a lot longer than 12 months. And, again, you know, there
are so many factors involved, it’s very difficult to predict how a person will
respond to treatment. It’s certainly – in the initial phases, it seems to be
beneficial for people to start treatment in jail simply because other – other
aspects of life are reasonably consistent and controlled which means that they
can focus their attention on the therapy and that may improve, I suppose, their
response to therapy in the early stages. What I do see and when I read through
the sessional summaries of people who have been treated in the community,
that often the therapy tends to get hijacked a little bit. So when people are in
the community there are often interpersonal difficulties, there may be issues
40 T 1-19 L 17-27.
41 T 1-20 L 6-26.
-- 29 of 50 --
30
with their supervision, there may be other issues with financial matters. And
often therapists tend to have to then focus on putting out, if you will, the – the
fires of the day rather than looking at their sexual offending. Whereas when
they’re in custody, those things usually aren’t so much an issue, so you can
focus more appropriately on the sexual offending.”42
(f) “Look, I think you can’t classify SSRIs and antilibidinals in the same class.
So SSRIs you can get relatively quickly, in psychiatric terms, which is four to
eight weeks. You can gauge the benefit, but with antilibidinals it can take a lot
longer than that, and that depends on how long it takes to titrate the dose. We
have to measure – testosterone doesn’t change very quickly. So I only measure
testosterone on a monthly basis. That’s about as frequent. So we may be
looking at six months before we ga – we get a person to the level of testosterone
suppression that would be indicative of a response, and we would then have to
assess from a psychological perspective whether there was evidence that that
had changed.”43
(g) “In an ideal world with all things being equal, being able to control for those
factors and just apply a treatment gives us the best chance of understanding
whether it’s effective or not. Of course, you know, if he starts treatment in jail
that doesn’t mean that when he gets out of jail his behaviour will be the same.
I mean, we then have to see the additional stressors, but it’s still more useful
for him to have been started on treatment and to have some idea of how
effective it was prior to release.”44
(h) “Now, he will have restrictions, but, of course, the other issue for [the
respondent] is whether he can comply with those restrictions, and whether he
has the cognitive capacity to comply without breaching and without causing
more problems for himself, and I suppose that’s the other concern. So that’s
why this whole argument is around his level of support is necessary for him to
be able to exist in the community in a way that he can comply with the
restrictions of his order, as well as maintain a reasonable degree of safety.”45
Evidence of Dr Ness McVie - Psychiatrist
Report dated 25 April 2020
[52] Dr McVie’s report dated 25 April 2020 states as follows:
“RISK ASSESSMENT:
PCL-R: ... I scored [the respondent] at 27 which is higher than the
average offender but below the cut off score for psychopathy (30/40).
This may indicate significant psychopathic traits or be an
exaggeration based on his attempts at positive impression
management.
Static 99R: … I have scored [the respondent] at 9, which is high and
well above the average score for a convicted sexual offender. This
score is based on the material which indicates at least ten charges and
42 T 1-20 L 39 to T 1-21 L 13.
43 T 1-24 L 16-24.
44 T 1-24 L 39-45.
45 T 1-25 L 21-27.
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31
four convictions for sexual offences prior to 2014, a past history of
convictions for violent offences, and victims which are male, female,
family, and strangers.
Stable 2007: … [The respondent] has a range of outstanding
treatment needs some of which have been previously identified by his
participation in assessments and courses in custody. His problem
areas include relationship stability, hostility towards women, poor
cognitive problem-solving skills, sex drive preoccupation and
cooperation with supervision.
RSVP: … [The respondent’s] high level of risk is confirmed by his
sexual violence history with chronicity, diversity, probable escalation
and coercion in offending; his poor psychological adjustment with
minimization of his offending, attitudes supporting his behaviours,
and problems with self-awareness; his substance abuse and
psychopathic personality traits, poor social adjustment and history of
significant problems with treatment and supervision.
HCR-20: … [The respondent] has a moderate to high loading of
historical risk factors for violence and ongoing areas of concerns
including his lack of insight into his offending and substance use and
lack of engagement with treatment.
Summary
…
Previous psychology assessments have concluded he has at least a
mild intellectual disability with most recent formal testing being in
2010, with results of a full-scale IQ of 55.
[The respondent] continues to report he has a high sex drive.
In terms of diagnosis he meets criteria for antisocial personality
disorder and substance use disorder (alcohol and cannabis). He does
report intermittent use of other drugs including amphetamines, with
his last offence being attributed to ice or methamphetamine use.
I would also consider he presents with significant psychopathic traits
though does [not] fulfil criteria for a diagnosis of psychopathy.
He does not appear to have any major mental illness or mood
disorder.
His sexual behaviours could represent a variety of paraphilias though
there is insufficient evidence to categorise these other than his
continuing exhibitionistic behaviour.
Though previous testing indicates intellectual ability in the mild to
moderate intellectually impaired range, my clinical impression is that
he functions at a higher level. He has some understanding of his
current situation, of information provided to him and has completed
courses in the past, with seemingly good results.
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32
Recommendations:
Assessment, actuarial and structured clinical, indicates [the
respondent] is a very high risk of reoffending sexually if released
from custody without a supervision order.
In view of his previous failures with less strict supervision and his
continued sexual behaviours in custody, I would consider that his risk
would currently still be high if released on a supervision order.
I would recommend he be required to complete the Inclusions
Program prior to being released on a supervision order. I would
recommend that he be commenced on one to one psychology therapy
to assist him to manage his current problem behaviours and to prepare
him for the group program.
Due to his continued demonstrated difficulty in managing his self-
reported high sex drive, I would recommend he be referred to a
qualified psychiatrist for consideration of commencement of anti-
libidinal medication.
I would also recommend he be referred for further neuropsychology
assessment regarding a possible underlying learning disorder and
repeat testing including tests of effort.
He would also benefit from further programs to address his substance
use disorder.”
Supplementary Report dated 24 August 2020
[53] Following consideration of further material, Dr McVie’s supplementary report sets
out the following further opinions:
“Summary and Recommendations:
[The respondent] has a mild intellectual disability. He does not have
any major mental illness or mood disorder.
Clinically he appears to function at a higher level. At interview he did
display some understanding of his current situation, and he has
completed the relevant courses in the past, with seemingly good
results, though he has shown limited capacity to change his
behaviours.
Assessment, actuarial and structured clinical, indicates [the
respondent] is a very high risk of reoffending sexually if released
from custody without a supervision order.
In view of his previous failures with less strict supervision and his
continued sexual behaviours in custody, I considered that his risk
would still be high if released on a supervision order.
I still recommend he be required to complete the Inclusions Program
or to progress satisfactorily to an equivalent level in individual
therapy prior to being released on a supervision order. His current
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33
treating psychologist would be best placed to advise as to his progress
in current therapy.
I maintain my concerns about his difficulty in managing his self-
reported high sex drive in custody and I would recommend he be
referred to a suitably qualified psychiatrist for consideration of
commencement of anti-libidinal medication.
He would also benefit from further programs to address his substance
use disorder.”
Oral evidence
[54] At the hearing, Dr McVie’s oral evidence included matters set out in her reports and
some further issues. Her evidence included the following:
(a) “It’s good that he’s started therapy with Dr Hatzipetrou who has a lot of
experience, extensive experience in dealing with intellectually impaired sexual
offenders and he clearly needs to continue the individual therapy.
…
It’s much preferable that he completes a large portion of that therapy prior to
being released because, once he’s released, there’ll be other factors that will
impinge on that therapy.
…
I would say at least six months, preferably 12 months before he would be at a
point where you might consider that, and I’d only consider that with a detailed
report from his treating psychologist.”46
(b) “It’s not that common for people in custody to repeatedly act on sexual urges
in front of correctional staff which [the respondent] has continued to do even
two years after he was exited from the program in 2018. My assessment was
that, considering he has some intellectual disability and an inability to contain
his sexual urges, that an antilibidinal would be of benefit to him. I understand
the evidence in relation to the antidepressant medication and agree that it’s a
much less – it’s a medication that’s less likely to cause serious side effects
which antilibidinals do cause and would be preferable to start that in the first
instance and trial that to see whether that has any effect on [the respondent].
Part of [the respondent]’s problem is impulsivity and the antidepressant
medication would be – could potentially be very effective in managing his
impulsivity, so it may be a better option for him.
…
Ideally, it should be commenced prior to release because we’ve got – got a man
that continues to effectively act inappropriately in a custodial environment. So
it would be good to have a period of six to 12 months of him not acting
inappropriately in that environment with medication and – well, he’s need
psychotherapy, but I suppose psychotherapy could do it independently but
46 T 1-27 L 13-28.
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34
psychotherapy plus medication is most likely to achieve that aim in a shorter
period of time.”47
[55] At the hearing, Dr McVie was cross-examined by Counsel for the respondent. Dr
McVie’s evidence included the following:
(a) In relation to how the respondent would commence treatment on SSRI
medication, “My understanding of how this has happened in the past is that a
psychiatrist has been employed by Corrective Services specifically for the
purpose of assessing and managing the person before they’re released from
custody and that psychiatrist would go into the prison and assess the person’s
need for medication and then recommend the medication and a dose and
monitoring. I – my recollection is that it was prison mental health that actually
prescribed the drug, although the drug was managed by the independent
psychiatrist coming into the prison. So there would have to be a psychiatrist
appointed.”48
(b) In relation to the “highly supervised structure” that would need to be in place
around the respondent upon his initial release, “Those things would be in place,
but this man needs something before he gets to that point. He’s still way too
high a risk to even be placed in that position under a supervision order. I really
think that [the respondent] would struggle to comply with conditions of a
supervision order.”49
(c) In relation to the specific conditions that the respondent may struggle to comply
with, “To understand why he needs to live where he’s told live, to understand
why he needs to go to appointments when he’s told to go to appointments. I
just don’t think he’s got the capacity to understand those things, and has also
been pointed out based on Dr Andrew’s [sic] assessment, [the respondent]
really needs a comprehensive functional assessment to assess whether he’s
capable of independent living before he’s placed in the precinct.”50
(d) “… what you’re talking about is an untreated sex offender going into an
environment where he’s placed under what could be potentially much more
stress, and as Dr Arthur pointed out, in custody if he’s getting psychological
treatment, the psychologist can focus on his sexual offending. Once he even
gets into the precinct there are other pressures there, and the psychotherapy will
get distracted by those pressures. He needs intensive psychotherapy to address
his sexual offending before he’s ready to transition even to what’s effectively
a highly structured supervised environment at the precinct.”51
(e) “Look, potentially [a supported accommodation option] may be [a more
promising prospect], but I’d really want to know where the location was, what
the restrictions were, how many staff are available, what other people live in
that area. I just can’t see the NDIS funding what I would consider would be a
satisfactory living environment, and he would need his own house, he would
need at least two staff present for most of the day, and I can’t see that his level
47 T 1-28 L 4-25.
48 T 1-28 L 40-47.
49 T 1-30 L 3-6.
50 T 1-30 L 9-14.
51 T 1-31 L 14-24.
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35
of intellectual disability is going to be sufficient for the NDIS to fund the level
of supports that would be required to contain his behaviour.”52
(f) In relation to why an order prohibiting the respondent from using drugs or
alcohol would not reduce his level of risk, “Because he’s still untreated and
because he’s still displaying an inability to control his behaviour in a structured
environment.”53
(g) “If he complies with the conditions of the order, it could reduce his risk. But
we haven’t seen any evidence of his capacity to comply with conditions of the
order. We haven’t seen any evidence of him having engaged in the relevant
treatment programs in custody to decrease his level of risk. He needs to do
those things first.”54
Evidence of Dr Josephine Sundin - Psychiatrist
Report dated 13 May 2020
[56] Dr Sundin’s report dated 13 May 2020 states her opinion as follows:
“SECTION C: DIAGNOSIS
Using the diagnostic and classificatory system of the American
Psychiatric Association (DSM V), I consider that [the respondent]
meets criteria for:
Intellectual Developmental Disorder – mild to moderate
severity
Substance Use Disorder – alcohol and cannabis, in
sustained remission whilst in a controlled environment
Exhibitionistic disorder
I suspect he also has a deviant sexual fantasy regarding coercive
sexual intercourse with a stranger female aroused by his
exhibitionistic behaviour.
Section D: Risk Assessment
I assessed [the respondent] across a range of risk assessment tools
which are considered to have moderate predictive capacity with
respect to identifying risks for future sexual recidivism. This is a
combination of actuarial instruments and physician assisted
guidelines.
On the Static-99R (Hanson and Thornton, 1999; Helmus 2009) … I
gave [the respondent] a score of 7 which places him in a group
considered to be well above average risk for future sexual offending
when compared to other offenders.
On the Hare Psychopathy checklist-Revised (PCL-R), I gave [the
respondent] a score of 24/40 which is a moderately elevated score
52 T 1-31 L 29-36.
53 T 1-32 L 1-2.
54 T 1-32 L 12-16.
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36
within the Australian Prison Population but is insufficient for him to
attract the label of Psychopath.
With respect to the Risk for Sexual Violence Protocol (RSVP):
With respect to Sexual Violence, the following were present:
Chronicity – duration/frequency;
Diversity of offences; and
Physical coercion.
I did not find any evidence of escalation of sexual violence or
psychological coercion.
With respect to psychological adjustment, I considered that [the
respondent] showed partial evidence of:
Extreme minimisation or denial of the sexual offending
and
Expressed attitudes that were supportive or condoning of
sexual violence,
Had problems with self-awareness and
Problems with stress and coping.
There was no evidence of problems resulting from childhood abuse.
With respect to the component of mental disorders, [the respondent]
shows evidence of:
sexual deviance with respect to his ongoing
exhibitionistic behaviour and
problems with substance abuse.
suicidal ideation--partial.
I found no evidence that he met criteria for psychopathy and no
evidence of a major mental disorder.
With respect to social adjustment, [the respondent] appears to have
clear problems with:
Intimate relationships,
Non-intimate relationships,
Employment
Non-sexual criminality.
With respect to manageability, [the respondent] will struggle with:
Planning,
Treatment
Supervision.
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37
On this physicians guidelines, I would consider [the respondent] to
be at high risk for future sexual offending.
Section D: Conclusions
[The respondent] is a 41-year-old single man with a lengthy history
of impulsive, opportunistic sexual offences usually occurring in the
setting of intoxication at a time of heightened sexual preoccupation.
His sexual preoccupation was at times enhanced by engagement with
pornographic material.
He has a considerable history of non-sexual offending including
violence offences.
He has demonstrated heightened sexual preoccupation since the age
of 9 and has acted without thought for the consequences of the
victims. He has demonstrated quite limited empathy for the impact of
his offending on his victims. He has persisted with the offending
despite the protests of his victims. He has physically coerced two of
his victims. Two of his victims were complete strangers.
He has a history of aggressive behaviour, some of which appears to
relate to problems arising out of cognitive deficits and poor problem-
solving skills.
Due to his significant cognitive impairments, he has very limited
plans for the future and little idea as to how he will manage
independently in the community.
He successfully completed the Inclusion Sexual Offending
Programme in 2010 but re- offended despite completing the ISOP and
a SOMP in the community.
He was removed from a repeat ISOP in 2018 because of sexual
arousal leading to disinhibited behaviour. Contemporaneously, there
was an escalation in previously noted inappropriate behaviour
towards female staff which has been documented intermittently for a
number of years within the prison. There appears to have been quite
a clear escalation in his level of sexual preoccupation and acting out
before he was exited from the Inclusion Sexual Offending
Programme.
There does not appear to be any clear record that he has a major
mental health disorder. He has threatened self-harm at times of
frustration and stress in the past.
He has not completed any literacy programmes or any vocational
training programmes.
Whilst I note that QCS has attempted to re-engage [the respondent]
in a sexual offenders treatment programme specifically designed for
prisoners with a low intellectual quotient, it was my impression in
reading the material that [the respondent]’s level of mental
retardation is such that he would not be able to participate
satisfactorily in the Inclusions Programme.
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38
It appears that the material addressed in the ISOP had the reverse
effect and, to some degree, triggered a greater level of sexual
preoccupation and acting out behaviour.
I do consider that [the respondent] has unmet treatment needs, but I
do not think these will be able to be achieved through the Inclusion
Sexual Offending Programme.
I would respectfully recommend that he be detained for treatment for
a further 12 months and that during that period of time a clinical
psychologist with experience in both the treatment of sexual disorders
and intellectual disorders be engaged to undertake the components of
both an Inclusion Sexual Offending Programme and the LISI one on
one with [the respondent]. This in the hope that he can gain sufficient
knowledge from this individualised treatment to be able to develop
some insight into the unacceptable nature of his behaviour and
develop a relapse prevention plan that potentially might succeed.
During that 12-month period of detention for further treatment, I
would also recommend that Disability Services be engaged to assess
his suitability for the National Disability Insurance Scheme and that
the Public Guardian be involved to assist with legal and health
decision making.
Ultimately, when he is released from prison, [the respondent] is an
individual who will need a very high level of supervision. In my
opinion, the level of supervision he requires is likely to be even higher
than that which can be provided to prisoners within the Wacol
Precinct. I anticipate that [the respondent] will need to be placed in a
residential hostel for male individuals who suffer moderate
intellectual disability and who have a 24-hour care package available
through the National Disability Insurance Scheme. This would ensure
that he is not left unsupervised at any time.
I would also recommend that before he is released from prison that
an effort be made to see if the SSRI medication paroxetine can reduce
his libidinal drives and that when he is released (provided the Public
Guardian for health matters concurs), that an anti-androgen drug be
considered and prescribed by a suitability qualified specialist.
Based on [the respondent]’s current status, until further treatment
needs are met, I do not consider that he is a person who is suitable for
release into the community, even under the auspices of a supervision
order.”
Supplementary Report dated 25 August 2020
[57] Following consideration of further material, Dr Sundin’s addendum report dated 25
August 2020 provides an updated opinion as follows:
“I remain of the opinion that [the respondent] has unmet treatment
needs, but I do not think these will be able to be achieved through the
Inclusion Sexual Offending Programme. I note that Dr Andrews
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39
agrees me with respect to addressing treatment needs. I acknowledge
that Dr Arthur and Dr McVie recommend he repeat the ISOP.
I continued to recommend that he undertake individual counselling
with a clinical psychologist with experience in both the treatment of
sexual disorders and intellectual disorders be engaged to undertake
the components of both an Inclusion Sexual Offending Programme
and the LISI one on one with [the respondent]. I understand that he
has been receiving treatment from Dr Hatzipetrou who has
specialised expertise with individuals like [the respondent]. This
should continue.
I note that the Public Guardian was appointed by QCAT on 29th July
2020 to assist with accommodation, legal and health decision
making. The Public Guardian will also assist with the providing of
services, including in relation with respect to the NDIS.
Dr Michelle [sic] Andrews Neuropsychologist, in her report dated
30th July 2020 opines that [the respondent] does have an Intellectual
Disability of mild to moderate severity with associated severe deficits
across multiple domains of neuropsychological and adaptive
functioning. Nonetheless she opines that he does have a capacity for
learning and sets out her recommendations for strategies that could
be put into place to support him in the community.
I remain of the opinion that [the respondent] is an individual who will
need a very high level of supervision.
With Dr Andrews suggestions in place and given the lack of any
likely suitable residential facility of the type I suggested in 2019
being found; I consider that a trial of placement at the Wacol precinct
is reasonable with the following suggestions implemented. These
suggestions have the potential to help contain the risk he poses to the
general community.
With the imposition of a supervision order, in addition to the usual
process of induction, the use of a GPS tracker and the imposition of
curfews I recommend the following:
1. That a case conference take place involving QCS, Dr
Hatzipetrou and the NDIS support worker to plan the
steps and structure of [the respondent’s] release.
2. That a suitably experienced adult psychiatrist be engaged
to provide psychiatric care in the community and oversee
use of psychotropic and anti-libidinal drugs.
3. That all psychiatrist’s reports obtained for the Court be
made available to his treating psychiatrist.
4. He should have all clauses of an order explained to him
on a number of occasions by Dr Hatzipetrou before he is
released.
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40
5. Dr Hatzipetrou should be asked his opinion as to [the
respondent’s] level of comprehension of the clauses of
the supervision order before the prisoner is released.
6. If possible Dr Hatzipetrou should be asked to provide
copies of the visual material he has used to educate [the
respondent] to case officers, so that they can use these to
reinforce the clauses of the supervision order.
7. That before he is released from prison [the respondent]
be placed on a trial of the SSRI medication paroxetine to
see if it lowers his libidinal drives and lessens the anxiety
he is likely to experience upon release.
8. That the opinion of the Public Guardian be obtained prior
to [the respondent’s] release with respect to the use of
anti-libidinal medications to assist in containing the risk
of sexual recidivism he poses.
9. That when he is released (provided the Public Guardian
for health matters concurs), that an anti-androgen drug be
prescribed by a suitability qualified specialist.
10. He must have a male case officer with whom he meets
daily in the initial transition period of 3 months. He will
need clear guidelines repeated on a daily basis repeating
the key provisions of his order.
11. He should not have a female case officer or NDIS support
worker managing him in the community.
12. He will need to be linked to a male support worker
through the NDIS who can teach him activities of daily
living including banking, use off [sic] mobile phones and
access to public transport. That support worker could
then over time engage [the respondent] in suitable
recreational activities.
13. The support worker will need to be educated as to flags
of rising risk for [the respondent].”
Oral evidence
[58] At the hearing Dr Sundin gave evidence in relation to the opinions expressed in her
report and some further issues. Her evidence included the following:
(a) “Now, Dr Sundin, if I can take you to your initial assessment of [the
respondent] for this matter. You assessed him as being a high risk of future
sexual recidivism?---Yes, I did. May I address two omissions from my original
report, please?
Certainly?---On page 28, I’ve listed the diagnoses. But I failed to include
antisocial personality disorder; that should be there. And under my discussion
section as regards management, I also meant to include but didn’t that he should
undergo an occupational therapy assessment to determine his functional
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41
capacities. There is a degree of confusion as to how well this man actually
functions.
Certainly. So with having assessed him as a high risk in – for your initial report,
you also then – in your recommendations – you talked about further detention
for 12 months for the period of time for clinical – for the clinical psychologist
to undergo treatment in relation to both components of the inclusion sexual
offending program and the [indistinct] so - - -?---Yes.”55
(b) “In both my original report and in my addendum report, I talked about what I
saw as being his treatment needs. And in my addendum report – at the risk of
sounding like a politician – I tried to set out what I thought could be a roadmap
forward with this man. I would concur with the advice of Dr Arthur and Dr
McVie that he has significant unmet treatment needs. I continue to be of the
opinion that he needs to have intensive treatment with Dr Hatzipetrou, and that
the opinion of Dr Hatzipetrou should be sought before he is released onto
supervision so that we – the court has an awareness of Dr Hatzipetrou’s
judgment about the progress he’s made in treatment and his likely appreciation
of the supervision order and capacity to apply with that supervision order. I
also made recommendations around the pharmacological side of management
for this gentleman. And this is actually something that, clearly, the court has
heard today is quite difficult; but it’s not impossible in the first instance, whilst
[the respondent] is still in prison, for QCS to engage an external private
psychiatrist to attend him in the prison and provide a recommendation for the
introduction of drug like Paroxetine, and for that external psychiatrist to review
[the respondent] on three or four occasions before release is ordered to check
that the dose is at a sufficiently high level and that it’s having some form of
effect and is being tolerated. That psychiatrist would then be able to follow up.
The – [the respondent] does have the capacity to give consent to a drug like
Paroxetine without the involvement of the Adult Guardian. However, the
Adult Guardian would need to be involved if the antilibidinal drugs, which
everyone has recommended, were to be introduced, and I continue to
recommend they should be introduced. But that would fall to his independent
treating adult psychiatrist to take the step to make an application to QCAT for
that drug to be introduced for treatment purposes and to help make it clear to
QCAT that it is a treatment modality, not a chemical restraint; that it is actually
part of an overall plan of treatment.
…
So in the first instance, my roadmap was that he would receive treatment in
prison; both psychological and medical. He would then spend a period of time
in a Wacol Precinct, and then from there he would transition into – he would
be placed in suitable accommodation under an NDIS supervision and
accommodation package. And there will need to be regular case conferences
and coordination of all those relevant services and treatment providers in order
for this to work.”56
(c) “In effect, the Wacol precinct would represent a stepdown. I would anticipate
that he would possibly be ready – if all goes well and he is motivated, that he
55 T 1-34 L 1-16.
56 T 1-34 L 34 to T 1-35 L 24.
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42
may be ready for a step from prison into the Wacol precinct somewhere in the
next six to 12 months. I would anticipate him spending a very highly
supervised period of time in the Wacol precinct on stage 1 and stage 2 curfews
but, certainly, stage 1 curfews for a good six to 12 weeks before he would then
be able to meet his NDIS worker at the gate or down at the Wacol train station
to then continue on with the activities that the NDIS worker would be involving
him in.”57
(d) In relation to whether the respondent will have daily supports available within
the Wacol precinct, “… That’s one of the unknowns at this point which is why
I think an occupational therapy assessment is so vital. [The respondent] has
survived in the community semi-independently and perhaps independently in
the past. We just don’t know – have enough information, though, about his
functional capacities and that’s where, before he is released, an occupational
therapy assessment will greatly inform planning going forward and will inform
whether he really could manage independent life activities and self-care
activities within the precinct.”58
(e) “As I understand it, in the real world the greatest frequency with which Dr
Hatzipetrou could attend this man in the prison would be fortnightly. So my
expectation would be that we would like to see a solid six months of fortnightly
appointments with Dr Hatzipetrou and then an update from him at that point to
get feedback from him as to the progress that this man has made as to whether
the suggested steps for the transition into the community that I’m
recommending could be made. During that six-month period, I would very
much like to see a private psychiatrist engaged to get the paroxetine started. I
think that Dr Arthur slightly underestimated the length of time it would take to
establish paroxetine. We usually increase in every two to three weeks and the
minimum therapeutic effective dose that this man is likely to need is going to
be in 40 to 60 milligrams and then you would want to watch him and monitor
him for another three to six weeks afterwards and be checking for compliance
to be able to judge efficacy.
So what would be the entire frame period of the initial [indistinct]?---That’s
really more like 12 weeks.
Now, if I read your reports correctly, you seem to talk about – so the paroxetine
is the SSRI?---Yes.
So you talk about trialling the SSRI first?---Yes.
And then for a consideration of the antilibidinal. Is that – am I reading –
understanding that - - -?---Yes, that’s correct.
So, again, you’re saying you want the SSRI. How long would you then monitor
on the SSRI before you would get – have the psychiatrist consider antilibidinals
as a potential treatment?---The psychiatrist would know within 12 weeks if it
was – the paroxetine was proving effective by way of increasing the inhibitions
on this man’s sexually dysregulated behaviour and lessening the anxiety that
Dr Arthur thought might be relevant to the behaviour. Thereafter, as a treating
psychiatrist, if it was proving effective you would very – you potentially may
57 T 1-35 L 38-46.
58 T 1-36 L 9-15.
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43
continue on with that for another three to six months unless you started to see
signs of sexual dysregulation, at which stage he would need to be started on an
antilibidinal. And if I was treating him, I would be starting the SSRI and
simultaneously starting the process of making the application to QCAT.”59
(f) “As things currently stand, the problems with [the respondent] are three-fold.
He has a significant intellectual disability. He is quite sexually dysregulated
and appears to have a heightened libido. He continues to act out sexually
inappropriately and indiscriminately within a highly supervised environment
like a prison. And these two factors occur against a man with an antisocial
personality disorder who, by virtue of his personality disorder and his
intellectual impairment, is a poor problem solver, is impulsive, is some – you
know, genuinely antiauthoritarian and generally lacking in empathy. So the
challenge for Dr Hatzipetrou in treatment of this man is that there’s not only
the need to address the issue of the sexual incontinence and probable deviance
but the antisocial personality disorder and the latter is particularly hard to treat.
[The respondent], hopefully through motivational counselling, can be moved
to the point where he can see the benefit to himself of complying with treatment
and complying with expected behaviours, first, in a prison and, ultimately, once
he was in the community.
So if we look at the first stage, currently, he requires treatment in
custody?---Yes, both psychological and medical.
Now, so that – and for the psychological, you’re saying potentially six to 12
months?---Yes.
So at the end of that period when you get an updated assessment or report from
Dr Hatzipetrou on progress - - -?---Yeah.
- - - he would need to come back to the psychiatrists for consideration of
whether sufficient progress has been made?---Yes.
And then it would need another court hearing to consider whether or not he
could be released to supervision?---Yes. Because, ultimately, the decision is
the court’s.”60
[59] At the hearing, Dr Sundin was cross-examined by Counsel for the respondent. Dr
Sundin’s evidence included:
(a) “What does appear to be still problematic, however, is that, until he’s complete
more medical and psychological treatment, the behaviour that’s been observed
in prison is likely to continue to be observed within the Wacol precinct. And
Dr Arthur and Dr McVie I think wisely flag that there even may be an
escalation of that as he feels more anxious in that less restrictive environment
and under the pressures of other precinct residents.
So – and that really seems to be the predicating aspect of your opinion. You
say that, at this stage, his risk doesn’t reduce substantially until – substantially
enough until he’s undergone this further period of treatment in prison with Dr
Hatzipetrou, as I understand it?---Yes. That’s correct.”61
59 T 1-36 L 21 to T 1-37 L 9.
60 T 1-36 L 19-47.
61 T 1-38 L 33-43.
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44
(b) “My recommendation is that treatment needs to be intensive psychological and
medical treatment needs to be undertaken first and then continued as that
transition occurs to the Wacol precinct.”62
(c) “He has got a very longstanding pattern of anti-authoritarian attitudes and
general non-compliance with the rules. He also has a very longstanding history
of impulsivity. So there’s a fairly high likelihood of breaching of the
requirements of the order. And you rightly said earlier, “Well, that’s likely to
lead him straight back into prison”. And yes, that – that’s definitely true. But
I think it’s – the – the way in which I’ve set out my recommendations was in
the hope that we could increase this man’s motivation towards participation in
treatment and compliance with an order if he sees a pathway out of prison. And
that would be a pathway that involved the recommendations I’ve already made
to Ms Maloney about treatment with a view to moving into the precinct and
then ultimately to some form of supported accommodation. These things – I
think he can be motivated to that if he sees it as being in his self-interest, but
he has – we have to be confident that he’s finally started to realise that all of
that is in his self-interest.”63
(d) “… it’s important, actually, that he gets trained in the skills first and gets a
chance to practice those skills within the custodial environment. There are
triggers for him within the custodial environment in that there are female
Corrective Services officers. So the very first step would be him demonstrating
that he is actually able to inhibit his sexual acting out behaviour within the
prison and has learned that skill and that self-regulation from Dr Hatzipetrou.
He – the next step then would be take it into exposure within the community,
continuing his treatment with Dr Hatzipetrou but closely supervised by a QCS
officer.”64
(e) “If he were to be released tomorrow under a supervision order in the terms that
I have read, I don’t consider that that supervision order would contain his risk.
And that’s simply because at the moment his treatment needs are unmet. If he
was on a supervision order at some stage in the future after this process that
I’ve recommended has occurred and has been proven to be at least moderately
successful, then a supervision order and the plan I’ve set out has the potential
to contain the risk.”65
(f) “To be absolutely frank, as a clinician who has treated a number of
intellectually disabled people, the language the Public Guardian uses, at times,
can be very difficult. Someone like [the respondent] does show evidence of
anxiety. He does show some signs of distress around consequences of his
behaviour. Clinically, SSRI is rarely prescribed on that foundation alone.
…and, in my opinion, he has sufficient capacity for consent to – consent to a
drug like Paroxetine, because the side effects are really quite limited. They’re
nowhere near as potentially problematic long-term as an antilibidinal drug. I
don’t think he’s got the capacity to consent to that; and that’s why I’ve said
the Adult Guardian or QCAT needs to be involved at that point. But, certainly,
62 T 1-39 L 18-21.
63 T 1-39 L 29-41.
64 T 1-40 L 46 to T 1-41 L 6.
65 T 1-41 L 11-17.
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45
in the first instance, I think that an SSRI could be instituted on a therapeutic
foundation without involving the Adult Guardian at all.”66
(g) “Anybody who’s going on an antilibidinal drug has to have a series of baseline
blood tests done; they need review by an endocrinologist and they need to have
a bone scan done for density. And I usually get the opinion of an
endocrinologist. Testosterone levels vary on a diurnal pattern; so we need to
plot out a process of how the drugs will be prescribed and how the testosterone
is monitored. All of that, really, can only be done outside of [prison]. It can’t
be done within the prison. And, as I understand it, QCS is prevented from
prescribing those sorts of drugs anyway.
… The tests of renal and kidney function – sorry, renal and liver function are
undertaken, the prolactin level is assessed, the serum testosterone level is
assessed and bone density is done as a baseline. And then, after that, on a
monthly basis prolactin and testosterone levels are checked and the dose
modified accordingly.”67
(h) “If he’s completed medical and psychological treatment or is continuing to
receive medical – that’s better said. If he’s continuing to receive and
psychological treatment, and he’s completed a program of treatment before
he’s released, and then we have all these other things in place, then that would
reduce his risk to something less than high; provided, of course, he’s motivated
to comply, as you said.”68
Other evidence
[60] The applicant relies on a number of affidavits filed in support of the application. I do
not refer to all the evidence in these reasons but have taken the evidence into account.
Below I note a few key aspects addressed in the affidavits.
High-Risk Offender Management Unit, Queensland Corrective Services
[61] Mr Daniel Bear’s affidavit sworn on 3 September 2020 addresses a number of issues
including:
(a) Managing the relevant risk through a supervision order;
(b) Suitable accommodation;
(c) NDIS funding; and
(d) Anti-libidinal and/or SSRI medications, including availability of psychiatrists
to prescribe and/or oversee and issues of consent.
[62] Mr Bear states in his affidavit that, given the identified risk, “QCS contend that a
supervision order cannot be reasonabl[y] or practicably applied to manage the
identified risk posed by the respondent.”69 Mr Bear identifies the practical and
operational limitations in resources to manage offenders the subject of supervision,
including detecting compliance and/or breach behaviour. Further, Mr Bear identifies
66 T 1-41 L 35 to T 1-42 L 2.
67 T 1-43 L 9-24.
68 T 1-43 L 29-34.
69 At [10].
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46
that “QCS holds concerns regarding the respondent’s ability to comply with any order
made by the court to adequately mange his risk to the community.”70
Public Guardian
[63] The affidavit of James Houghton affirmed on 2 September 2020 sets out the evidence
relevant to the role of the Public Guardian in respect of the respondent, current NDIS
funding and support, and the issues concerning the use of anti-libidinal medication.
[64] Mr Houghton deposes that if the treatment is for the primary purpose of “managing
behaviours” and not related to his physical or mental condition, then it is not a health
care matter for which the Public Guardian currently has decision-making authority.
Mr Houghton also outlines that in certain circumstances the Public Guardian could
be appointed as a restrictive practices decision maker.
Applicant’s position
[65] The applicant’s position is that the Court should make a continuing detention order
pursuant to s 13(5)(a) of the DPSO Act on the basis that:
(a) There is acceptable, cogent evidence which would satisfy the Court, to the high
degree of probability required, that the respondent is a serious danger to the
community in the absence of an order made under Division 3 of the DPSO Act.
(b) The psychiatric evidence identifies the risk of sexual reoffending is very high
and would remain high with a supervision order.
(c) Further, the respondent’s offending history shows a lengthy history of
impulsive, opportunistic sexual offences usually occurring in the setting of
intoxication at times of heightened sexual preoccupation.
(d) The applicant points to a range of factors which contribute to the high risk of
reoffending including:
(i) the respondent’s intellectual impairment;
(ii) use of intoxicating substances including alcohol;
(iii) a high sex drive and high level of sexual preoccupation;
(iv) a varied history of victim type;
(v) continued denial and minimisation of responsibility for his offending;
(vi) unmet treatment needs;
(vii) a history of reoffending while on bail; and
(viii) a continued demonstration of inappropriate sexualised behaviour while
in jail.
(e) The applicant relies on the evidence of all three psychiatrists in support of the
respondent remaining in custody to undertake individual treatment71 to address
those issues, also further substance abuse programs need to be undertaken. All
70 At [15].
71 See supplementary reports and oral evidence. This position was clarified and the group programs were
ultimately identified as not appropriate in respect of the respondent.
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47
psychiatrists agree that such treatment should occur in custody before release
to a supervision order.
(f) Further, all three psychiatrists are of the opinion that the respondent requires a
high level of supervision and support if released to a supervision order.
(g) The respondent’s current NDIS plan does not include funding for the level of
support required. In any event, the necessary support would not be able to be
provided at the Wacol precinct and no alternative supported accommodation is
identified and available.
(h) On all of the evidence, it cannot be found that adequate protection of the
community is ensured by the respondent’s release on supervision.
[66] There is an additional issue in respect of additional forms of treatment through a SSRI
and/or anti-libidinal medication to lower the respondent’s libidinal drive and anxiety,
including whether there should be a trial treatment with the drugs prior to release to
a supervision order. This is considered further below in considering the expert
evidence.
Respondent’s position
[67] The respondent’s submissions identify the “primary issue” as “whether the adequate
protection of the community can be ensured by the making of a supervision Order in
circumstances in which the respondent is yet to undertake treatment by way of SSRI
medication or anti-libidinal medication before his release from custody.”
[68] The respondent’s submissions recognise:
(a) The respondent’s intellectual capacity is “well below his age expected limits.
He cannot read or write.”
(b) The impairments to his “working memory and reasoning” means that he will
“require a level of repetition to encode and reliably recall information.”
(c) The respondent “would be likely to benefit from individual treatment by an
experienced clinical psychologist such as Dr Hatzipetrou.”
(d) The respondent “does demonstrate a capacity for learning” and “will require
structure to his life, including supervision of his medication regime.”
[69] In relation to the possible treatment of the respondent by SSRI medication or other
anti-libidinal medication, the respondent’s submissions note that the respondent has
not yet been assessed or prescribed such medication. Further, the Prison Mental
Health Service is unable to provide such treatments. There is an additional issue as
to whether there would need to be an amendment to the respondent’s Guardianship
Order to enable the Public Guardian to participate in the respondent’s decision
making regarding the use of anti-libidinal medication (if they are properly regarded
as a restrictive practice).
[70] The respondent’s position is:
(a) The respondent’s risk of sexual reoffending can be adequately met by the
restrictions that would be placed upon him under a supervision order, in
combination with a form of treatment that reduces his sexual drive.
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48
(b) The respondent’s intellectual disability is not “insurmountable” in respect of a
supervision order.
Consideration
[71] The expert evidence is lengthy and detailed, particularly given the range of issues that
need to be considered in respect of the respondent. However, the relevant factors
established on the expert and other evidence include the following:
(a) The respondent’s risk of sexual reoffending is very high and would remain high
with a supervision order.
(b) The respondent has unmet treatment needs.
(i) This includes individual treatment to be provided by an experienced
psychologist, such as Dr Hatzipetrou.
(ii) This treatment should occur, at least for an extended period, prior to
release on a supervision order.
(c) The respondent requires a high level of supervision and support if released to
a supervision order.
(d) No suitable accommodation has been identified.
(i) Accommodation in the Wacol precinct does not enable the required level
of support to be provided.
(ii) The current NDIS plan does not include funding for supported
independent living.
(iii) There is currently no alternative suitable supported accommodation
available.
(e) Further consideration should be given to a further form of treatment to lower
the respondent’s libidinal drive and anxiety.
(i) This may be through the use of an SSRI and/or anti-libidinal medication.
(ii) A trial treatment in respect of one or both medications should ideally
take place prior to release on a supervision order.
(iii) Further consideration needs to be given to the nature of this treatment
and, given the respondent’s intellectual impairment and the role of the
Public Guardian, the appropriate approach to this treatment, including
consent.
Serious danger to the community
[72] In light of the evidence relied on in support of the originating application, and, in
particular, the expert reports and the evidence given orally at the hearing, 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.
[73] 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
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49
unacceptable risk of committing a “serious sexual offence” as defined by the DPSO
Act.
Protection of the community
[74] 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.
[75] 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.
[76] 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 (as his Honour
then was) in Attorney-General for the State of Queensland v Sutherland,72 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.”
[77] 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 to an “acceptably low level”, then the supervision order should be made:
Attorney-General for the State of Queensland v Beattie.73 This is subject to there
being some evidence that the respondent would be likely to comply with it: Attorney-
General for the State of Queensland v Fardon.74
[78] On the evidence presented to the Court, and particularly the expert evidence, I am
satisfied that a continuing detention order ought to be made. This is particularly
taking into account the need to ensure adequate protection of the community and also
to enable the respondent to undergo the recommended treatments.
Interim detention order
[79] Given that a continuing detention order will be made it is appropriate that the interim
detention order made on 7 September 2020 be dissolved from today.
Conclusion
[80] 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 that 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
72 [2006] QSC 268 at [30].
73 [2007] QCA 96, [19].
74 [2011] QCA 155.
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50
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. I am not satisfied that adequate protection of the community can be reasonably
and practicably managed by conditions in a supervision order.
3. The respondent be detained, pursuant to s 13(5)(a) of the DPSO Act, in custody
for an indefinite term for control, care or treatment.
[81] Accordingly, I order as follows:
THE COURT, being satisfied to the requisite standard that the respondent, HGD, is
a serious danger to the community in the absence of an order pursuant to Division 3
of the Dangerous Prisoners (Sexual Offenders) Act 2003 (the DPSO Act), ORDERS
THAT:
1. The order made on 7 September 2020 pursuant to s 9A(2)(b) of the DPSO Act
that the respondent be detained in custody until 4pm on 7 October 2020 be
dissolved from today.
2. Pursuant to s 13(5)(a) of the DPSO Act, the respondent be detained in custody for
an indefinite term for control, care, or treatment.
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Official source: https://www.sclqld.org.au/caselaw/QSC/2020/295