Attorney-General for the State of Queensland v Robinson [2020] QSC 236 [2020] 33 QLR

SUPREME COURT OF QUEENSLAND CITATION: Attorney-General for the State of Queensland v Robinson [2020] QSC 236 PARTIES: ATTORNEY-GENERAL FOR THE STATE OF QUEENSLAND (applicant) v NIGEL PATRICK ROBINSON (respondent) FILE NO: BS No 4096 of 2006 DIVISION: Trial Division PROCEEDING: Application ORIGINATING COURT: Supreme Court of Queensland at Brisbane DELIVERED ON: Orders made on 24 July 2020, reasons delivered on 6 August 2020 DELIVERED AT: Brisbane HEARING DATE: 24 July 2020 JUDGE: Davis J ORDER: 1. Order (2) of the order of Chief Justice Holmes made 28 April 2020 be rescinded. 2. Pursuant to s 21(2)(b) of the Dangerous Prisoners (Sexual Offenders) Act 2003, the respondent be released from custody on 24 July 2020 and be subject to supervision on the requirements of the supervision order of Bond J made 15 June 2015, until the application filed on 28 April 2020 is finally decided. CATCHWORDS: CRIMINAL LAW – SENTENCE – SENTENCING ORDERS – ORDERS AND DECLARATIONS RELATING TO SERIOUS OR VIOLENT OFFENDERS OR DANGEROUS SEXUAL OFFENDERS – DANGEROUS SEXUAL OFFENDER – GENERALLY – where the respondent contravened the supervision order made on 15 June 2015 under the Dangerous Prisoners (Sexual Offenders) Act 2003 (the DPSOA) – where the contraventions were for failing to comply with reasonable directions of a corrective services officer and other conditions – where both psychiatrists assess the respondent’s risk on supervision as moderate – where neither psychiatrist gives an opinion which would justify the continuing detention of the respondent – where the only issue remaining in contention is whether the supervision order ought to be extended – where the final hearing of the application is -- 1 of 23 -- 2 set for 10 August 2020 – whether there are “exceptional circumstances” pursuant to s 21(4) of the DPSOA justifying release of the respondent pending final hearing of the application Dangerous Prisoners (Sexual Offenders) Act 2003, s 13, s 20, s 21, s 22, s 27, s 30 Attorney-General for the State of Queensland v DXP [2019] QSC 77, followed Attorney-General for the State of Queensland v Ellis [2012] QCA 182, cited Attorney-General (Qld) v Fardon [2013] QCA 64, cited Attorney-General for the State of Queensland v Fardon [2018] QSC 193, cited Attorney-General v Fardon [2019] 2 Qd R 487, cited Attorney-General v Francis [2007] 1 Qd R 396, cited Attorney-General for the State of Queensland v Holroyd [2020] QSC 187, followed Attorney-General for the State of Queensland v KAH [2019] 3 Qd R 329, cited Attorney-General v Lawrence [2010] 1 Qd R 505, cited Attorney-General for the State of Queensland v Nemo [2020] QSC 140, cited Attorney-General for the State of Queensland v Robinson [2006] QSC 328, cited Attorney-General for the State of Queensland v Robinson [2007] QCA 111, cited Attorney-General for the State of Queensland v Robinson [2010] QSC 261, cited Attorney-General for the State of Queensland v Robinson [2012] QSC 154, cited Attorney-General for the State of Queensland v Robinson [2017] QSC 107, cited Attorney-General for the State of Queensland v Robinson [2017] QSC 332, cited Attorney-General (Qld) v Yeo [2008] QCA 115, cited LAB v Attorney-General [2011] QCA 230, cited Turnbull v Attorney-General [2015] QCA 54, cited COUNSEL: B Mumford for the applicant T Ryan for the respondent SOLICITORS: GR Cooper, Crown Solicitor for the applicant Cridland & Hua Solicitors for the respondent [1] The respondent has a long history under the Dangerous Prisoners (Sexual Offenders) Act 2003 (the DPSOA). He was placed on a supervision order on 15 June 2015 for a period of five years.1 1 By order of Bond J. -- 2 of 23 -- 3 [2] It is alleged that the respondent has breached the requirements of the supervision order. At the time the matter was before me, the final contravention hearing was set for 10 August 2020. [3] On 24 July 2020, I made the following orders: 1. Order (2) of the order of Chief Justice Holmes made 28 April 2020 be rescinded. 2. Pursuant to s 21(2)(b) of the Dangerous Prisoners (Sexual Offenders) Act 2003, the respondent be released from custody on 24 July 2020 and be subject to supervision on the requirements of the supervision order of Bond J made 15 June 2015, until the application filed on 28 April 2020 [CFI 203] is finally decided. [4] These are my reasons for making those orders. History [5] The respondent was born on 20 January 1979. [6] The respondent has a significant criminal history. In 1997, he committed various sexual offences. Convictions for those offences (the index offences) formed the basis of the applicant’s original application against the respondent under the DPSOA. [7] In making a continuing detention order2 against the respondent in 2006, A Lyons J (as her Honour then was) described the index offences in these terms: “[9] The respondent had one previous offence for stealing a push bike prior to these offences. In May 1997 whilst at a local shopping centre in Gympie he saw a 19 year old woman, stole a knife from a supermarket and followed her along a road leading away from the centre. He approached the victim from behind, covered her mouth whilst holding the knife and put the other hand over her throat. He threatened to slit her throat. He then forced her across a barbed wire fence into bushland and ordered her to remove her clothes and lie on the ground. The respondent then took off all his clothes and raped her while holding the knife to her chest, he was interrupted by a passer by and the victim took control of the knife and screamed. The respondent fled. He was 18 years old at the time of this offence. [10] In November the same year, whilst on bail for the rape offence, the respondent went to a Catholic Primary School in Gympie and approached a nine year old girl who he forced into a room. When she screamed he covered her mouth and used his hand to push her up against the wall. He removed her clothes, she began crying and asked him to let her go. He then rubbed his fingers and hands over her body touching her on the breast and vaginal area. When he was disturbed by another person he dressed and fled. 2 Pursuant to the Dangerous Prisoners (Sexual Offenders) Act 2003, s 13(5)(a). -- 3 of 23 -- 4 [11] The respondent admitted that both offences were premeditated and that the victims were otherwise unknown to him. The sentencing judge McMurdo DCJ said in her sentencing remarks: ‘You have pleaded guilty to some very very serious offences. … The offences are more serious because the second series of offences were committed whilst you were on bail for very similar offences and this is of great concern to the community.’ Her Honour also noted; ‘the pre sentence report indicates limited remorse as he now denies certain aspects of the offence of rape. His youth means that rehabilitation before and upon his return to the community is the most important concern although the reports indicate that there is much work needing to be done before rehabilitation will be effected.’”3 [8] An appeal from her Honour’s decision was unsuccessful.4 The continuing detention order was reviewed5 and on 15 April 2009, the respondent was released on supervision by order of Daubney J. [9] In 2010, it was alleged that the respondent contravened the order by having contact with a woman contrary to a direction by a corrective services officer. He was arrested but was released pending finalisation of the contravention proceedings.6 He continued to have contact with the woman and on 4 June 2010 he was detained in custody. The respondent was again released on supervision on 16 December 2011. [10] Again, in 2012, the respondent had contact with a woman contrary to a direction from a corrective services officer. On 3 December 2012, he was released on a supervision order with some amendments.7 Further breaches of the supervision order were alleged in 2013. In April, he was arrested on breaches that: (a) he used the internet at the Wacol Precinct in contravention of the rules there applying; (b) he entered into a sexual relationship without notifying Queensland Corrective Services (QCS); and (c) he accessed pornography on the internet. [11] On 5 August 2013, he was again released on the supervision order. [12] In 2014, further breaches of the supervision order were alleged. The respondent had social contact with two women via online dating sites and then had physical contact with them. Contrary to the requirements of the supervision order, the respondent did not inform QCS officers about his contact with these women. When challenged, he 3 Attorney-General for the State of Queensland v Robinson [2006] QSC 328 at [9]-[11]. 4 Attorney-General for the State of Queensland v Robinson [2007] QCA 111. 5 Pursuant to the Dangerous Prisoners (Sexual Offenders) Act 2003, ss 27-30. 6 Attorney-General for the State of Queensland v Robinson [2010] QSC 261. 7 Attorney-General for the State of Queensland v Robinson [2012] QSC 154. -- 4 of 23 -- 5 lied about the circumstances. On 4 July 2014, the supervision order was rescinded and a continuing detention order was made.8 That continuing detention order was reviewed and on 15 June 2015, the respondent was released on the current supervision order for a period of five years.9 [13] Unfortunately, in 2017 there was another contravention of the supervision order. Thomas J found that the respondent had entered the yard of a woman and knocked on her door. This occurred after he had ridden past her house on a bicycle, seen her and yelled out “hello beautiful”.10 Jackson J then found that the respondent had discharged the onus upon him under s 21(7) and he was released back onto the supervision order. In determining that the risk on supervision was acceptable, his Honour observed: “[90] Among the relevant factors, in my view, it is significant that despite his many contraventions of the current and previous supervision orders, the respondent has not committed a sexual offence or apparently engaged in any or any threatened non- consensual sexual activity since his first release in 2009. [91] Second, in my view, it is significant that despite the respondent’s many contraventions of the current and prior supervision orders, the orders have operated in fact to significantly reduce the risk of the respondent committing any serious sexual offence. [92] Third, in my view, despite the respondent’s continued attitudes of disinformation and resistance to the operation of the current and previous supervision orders, the November 2016 contravention does not, by itself, significantly indicate that the risk of the respondent committing a serious sexual offence has increased. [93] Fourth, in my view, the early 2016 contravention by failing to answer truthfully about the phone sex conversations with the woman in prison also does not, in my view, significantly indicate that the risk of the respondent committing a serious sexual offence has increased. [94] Fifth, in my view, the many other alleged contraventions of the current supervision order do not significantly indicate an increased risk of him committing a serious sexual offence, in any direct sense.”11 [14] Yet another contravention occurred in March 2018, being the consumption of a significant amount of buprenorphine. The respondent was again released back onto the supervision order.12 8 Order, Boddice J, 4 July 2014. 9 Order, Bond J, 15 June 2015. 10 Attorney-General for the State of Queensland v Robinson [2017] QSC 107. 11 Attorney-General for the State of Queensland v Robinson [2017] QSC 332 at [90]–[94]. 12 Order, Boddice J, 30 July 2018. -- 5 of 23 -- 6 [15] In February 2019, the respondent again breached the supervision order, this time by consuming methylamphetamine. He was again released into the community on the supervision order on 7 May 2019.13 [16] The applicant filed an application for orders under s 22 of the DPSOA alleging the current breaches as follows:14 “SUPERVISION ORDER REQUIREMENTS ALLEGED TO HAVE BEEN CONTRAVENED (5.) comply with a curfew direction or monitoring direction; (10.) whilst housed at any contingency or temporary accommodation you must comply with any regulations or rules in place at this accommodation; (13.) comply with every reasonable direction of a Corrective Services officer that is not directly inconsistent with a requirement of this order; (14.) respond truthfully to enquiries by Corrective Services officers about his whereabouts and movements generally; (16.) disclose to a Corrective Services officer upon request the name of each person with whom he associates and respond truthfully to requests for information from a Corrective Services officer about the nature of the association, address of the associate if known, the activities undertaken and whether the associate has knowledge of his prior offending behaviour; (23.) submit to any form of drug and alcohol testing including both random urinalysis and breath testing as directed by a Corrective Services officer; (29.) seek written permission from a Corrective Services officer prior to joining, affiliating with or attending on the premises of any club, organisation or group; (30.) not access pornographic images on a computer or on the internet or purchase or obtain such material in any format; … Alleged contravention On 7 May 2019, the respondent was re-released to a supervision order issued in the Supreme Court before Justice Wilson. On this date, the respondent was fully inducted onto his supervision order. Staff at the High Risk Offender Management Unit (‘HROMU’), Queensland Corrective Services have indicated that the respondent’s behaviour, compliance and engagement with staff and supervision 13 Order, Wilson J, 7 May 2019. 14 Reproduced faithfully including grammatical and typographical errors in the original. -- 6 of 23 -- 7 measures has deteriorated rapidly. The respondent has regularly disregarded the technical and victim access related requirements of the supervision order. The prolonged and escalating behaviour, in the absence of safe or sound mitigation strategies, has prompted HROMU15 to elevate contravention consideration pursuant to the Act. The respondent has incurred twenty (20) contraventions relating to failure to comply with curfew or leave passes. The remaining non- compliance related to not being contactable, not charging his device, entering an exclusion zone, failure to report or not reporting phone contact with the parent of a child. With respect to the latter, on 8 January 2020, during a mobile phone check it was established the respondent had been talking to a woman by the name of ‘S’, he was reluctant to provide information around the association and text messages between he and ‘S’ were basic. The respondent reported ‘S’ as a close family friend and had obtained her number via his brother. Collateral checks conducted with ‘S’ confirmed her knowledge of offending history and supervision order requirements. ‘S’ reported care of, or contact with, three children namely 9 and 12 year old sons and a 14 year old daughter. While ‘S’ denied the respondent has ever met her children and that she will never permit this to occur, victim access concerns were present, in particular the 14 year old daughter who meets the respondent’s victim profile. ‘S’ reported to live in close proximity to the respondent and in light of his poor compliance with supervision and requirement (16.) concerns are present. The respondent did not disclose the association and only after it was identified in a random mobile phone search provided limited information, therefore is in alleged contravention of requirement (16.) of the supervision order. In the preceding six months the respondent has failed to comply with requirements of his supervision on a significant number of occasions. Between 1 October 2019 and to date. The respondent has incurred 45 official contravention actions. A summary of contraventions and concerning interactions include: On 18 October 2019, the respondent was charged with 1 x Contravention of relevant order relating to four incidents of failing to comply with a reasonable direction regarding pre-planned movements.16 On 28 January 2020, the respondent appeared in the Richlands Magistrates Court where he was convicted of this offence and sentenced to a period of 2 months imprisonment, wholly suspended with an operational period of 6 months. In addition to recorded contraventions, the respondent has engaged in a number of disruptive and challenging behaviours towards staff. This has included verbally abusing staff (on 23 April 2020), placing hazardous materials around the Wacol housing precinct to impede access for QCS staff or attempting to injure passers-by ( on 8 February 15 High Risk Offender Management Unit. 16 Against Dangerous Prisoners (Sexual Offenders) Act 2003, s 43AA. -- 7 of 23 -- 8 2020), placing ‘L’ plate signs on QCS cars ( on 19 February 2020), and generally being difficult to engage by refusing to speak to staff (on 14 February 2020). The respondent signed his understanding and compliance with precinct rules, which most notably, require ‘Behaviour: It is a requirement for all lodgers to demonstrate respectful behaviour. The intention is that the courtesy and respect given to others will be reciprocated. All lodgers, visitors and other persons accessing the Wacol Precinct must adhere to the following minimum behavioural standards: Physical violence, sexually inappropriate behaviour, harassment or threats and intimidation will not be tolerated.’ The aforementioned behaviours of 8 February, 14 February, 19 February and 23 April 2020 are considered alleged contraventions of requirement (10.) of the supervision order in that he did not comply with the rules, regulations and expectations of the Precinct. It is noted more recently that during the month of April 2020, the respondent has shown a further escalation in his non-compliance with his supervision order. With respect to leave pass approvals QCS supports all leave that is either considered beneficial, social, re-integrative, family support or of essential, legal or medical in nature. Leave passes and other offender management strategies are considered in the context of rejection of supervision and risk mitigation to ensure overall safety of the community. On 3 April 2020, the respondent was noted to have entered the room of another resident who had been recently arrested. The respondent states he was cleaning out the possessions of this man as he was concerned they would be stolen. The respondent entered the room unlawfully and against the precinct rules and directions of staff. This is an alleged contravention of requirement (10.) of the supervision order as the respondent has failed to comply with the Precinct rules. Consequently, the respondent had all Precinct based leave passes cancelled. He was directed to remain at his approved residence in accordance with his curfew requirement (5.). He was able to access essential leave despite his poor compliance. Immediately following cancellation of non-essential leave, on 3 April 2020, the respondent left his approved residence without approval and did not respond to multiple attempts to contact him and direct him home. It is noted he was informed earlier this day he no longer had passes. This allegedly contravenes requirement (5.) and (13.) of the supervision order. On 5 April 2020, the respondent was directed to attend the office for a urine test. As part of the response to COVID-19, the respondent was asked basic health screening questions. He did not answer these questions definitively instead offering ‘maybe’ responses to all questions. Given his unwillingness to provide adequate responses staff were unable to conduct the required testing. This is an alleged -- 8 of 23 -- 9 contravention of requirement (14.) in that he did not respond truthfully and requirement (23.) in that he did not submit to substance testing as directed without reasonable excuse. On 6 April 2020, the respondent was showing on the Electronic Monitoring System (EMS) to be outside his home at another residence on the Precinct. The respondent stated he was at home in bed. This is an alleged contravention of requirement (5.) and (14.) of the supervision order in that he was absent on curfew and did not respond truthfully. On 6 April 2020, the respondent stated to his supervising officer that he was ‘just outside his home’ in contradiction to his prior statement that he had been in bed. The respondent was clearly told if he complied with curfew and improved his engagement additional leave would be sought. He acknowledged. This is an alleged contravention of requirement (14.) of the supervision order in that he was absent on curfew. On 8 April 2020, the respondent was again contacted as he was showing (on EMS) to be outside his residence. He was directed to return to his residence. This is an alleged contravention of requirement (5.) of the supervision order in that he was absent on curfew. On 9 April 2020, the respondent was again reminded that should he want to access leave he would need to demonstrated compliance over the weekend with his curfew. He noted he intended to comply. On 11 April 2020, the respondent was contacted in regard to an alert he had left his home. He stated he had not left his home. Staff observed the respondent to clearly returning to his home from another residence. This is an alleged contravention of requirement (5.) of his supervision order in that he was absent on curfew. On 13 April 2020, the respondent was directed and complied with instructions to charge his EM device. However, his charging history showed he had not charged his device at any point on 12 April 2020. This is in alleged contravention of requirement (13.) that he charge the device for two (2) hours per day as per a Reasonable Direction issued to him on 7 May 2019. On 15 April 2020, the respondent was contacted by his case manager. He noted that he complied with his curfew over the weekend. The case manager challenged this as evidence showed that he did not. The respondent noted he spent the entire weekend ‘in bed’ and maintained this despite being provided with clear evidence this was not the case. The respondent was reminded that on the basis of this further noncompliance additional leave would not be considered. On 18 April 2020, the respondent was contacted by staff as he was showing outside his home on the EMS. When challenged, the respondent noted he was ‘just moving things on the precinct’. He was directed to return to his home. He returned home. This is a -- 9 of 23 -- 10 contravention of requirement (5.) of the supervision in that he was absent on curfew. Again, on 18 April 2020, the respondent was contacted as he was showing outside his home on the EMS. He noted that he was out of his home at another residence collecting items. He was directed to return home and complied. This is an alleged contravention of requirement (5.) of his supervision order in that he was absent on curfew. On 19 April 2020, the respondent was observed on the EMS to be outside his residence. The respondent did not respond to attempts to contact him by phone however returned to his home shortly after. This is an alleged contravention of requirement (5.) of the supervision order in that he was absent on curfew. On 20 April 2020, QCS staff were at the Precinct supervising two RSPCA staff removing a deceased Kangaroo. The respondent was observed to be with the RSPCA staff outside his home. He was directed to return to his home as he did not have approval to be absent on curfew. He stated he was ‘busy’. The direction was reiterated to the respondent who noted that he ‘doesn’t care’ as he was asked to assist the RSPCA staff. The RSPCA staff advised the respondent’s assistance was not required. The respondent was directed to return home. This is an alleged contravention of requirement (5.) and (13.) of the supervision order in that he was absent on curfew and failed to comply with a Reasonable Direction. Later, on 20 April 2020, the respondent was scheduled for an x-ray. As the respondent’s EM device was required to be removed for the medical procedure he was directed to attend the Wacol reporting centre at 1:30pm. At approximately 12:30pm numerous attempts were made by QCS staff to contact him to move forward this appointment as in the absence of an EM device he would be transported by QCS to the appointment. The respondent did not respond to phone calls. This is an alleged contravention of requirement (13.) of the supervision order in that he failed to be contactable as per a Reasonable Direction issued on 7 May 2019. Eventually, at 12:50pm, contact was established with the respondent in person. He was dismissive and argumentative. The respondent was directed to attend the reporting centre. The respondent indicated he would attend when he was ready when asked if he had his phone he noted he left it in his room. At 1pm, the respondent noted he was at the reporting centre as required, however he was observed by staff to delay attending the reporting centre unnecessarily and in fact attended another location (an adjacent building) instead. The respondent subsequently attended at 1:30pm delaying his transport significantly to his medical procedure. This is an alleged contravention of requirement (13.) of the supervision order in that he failed to comply with a Reasonable Direction of a Corrective Services officer. During the transport, the respondent referred to staff as ‘idiots’ .and was noted to be aggressive towards them. He was transported in a bus type -- 10 of 23 -- 11 vehicle to enable staff to maintain social distance protocols as part of COVID-19 safety measures. The respondent attempted to sit in the seats nearest to staff and had to be directed to the rear of the vehicle. He was noted to be aggressive again and muttering inaudible words. He was questioned about not being contactable and stated he had waited for 30 minutes. When it was suggested to him this was not the case he stated ‘I better start coughing again’ and started to cough in what is believed to be a threat or to cause fear of staff in the context of infection risks regarding COVID-19. This is an alleged contravention of requirement (10.) of the supervision order. On 20 April 2020, the respondent’s supervising officer contacted the respondent to discuss pending leave. The respondent again asked about walking passes. The case manager indicated that the respondent had been clearly told on numerous occasions his being provided passes was contingent on his compliance and that the respondent had not fulfilled this requirement. The respondent became argumentative and indicated that he would no longer be complying with his curfew and would walk around the precinct regardless of passes being provided. The respondent was reminded of the consequences of this decision and the call was ended with a clear instruction that he was to comply with curfew and no walk passes would be considered until he was able to demonstrate stated compliance. On 23 April 2020, a search of the respondent’s mobile phone identified emails from www.benaughty.com and a partially completed a profile. The website allows for the user to access explicit photos and videos and communicate with other users similar to a dating site. This in contravention of requirement (29.) of the supervision order as the respondent did not seek approval to join the organisation or group of www.benaughty.com. Furthermore, the information on the site indicates access to explicit image and videos. This is in alleged contravention of requirement (30.) in that the respondent had, or attempted to, access pornographic images. The mobile phone device is currently secured and pending further Police forensic examination to determine any access or stored images and any contact or communication with other members of the site. On 24 April 2020, the respondent was observed by the EMS and staff to exit his approved accommodation and walk to the visitor car park area of the Wacol Precinct. He was directed to return to the Precinct. He refused and used several expletives. He was absent on curfew and therefore in alleged contravention of requirement (5.) of the supervision order. On 24 April 2020, a s.20 warrant was sought. On 25 April 2020, the warrant was executed on the respondent.” [17] The contraventions are admitted. -- 11 of 23 -- 12 [18] Although the supervision order was to expire on 15 June 2020, because the respondent has served a total of 170 days in custody for offences which were not of a sexual nature,17 the supervision order now expires on 2 December 2020. Statutory context [19] Where “a police officer or corrective services officer reasonably suspects a released prisoner is likely to contravene, is contravening or has contravened, a requirement of the released prisoner’s supervision order …”, a warrant may issue for the arrest of the released prisoner18 and the released prisoner is then brought before the court. [20] Section 21 of the DPSOA deals with custody of the released prisoner between the time of arrest and determination of the contravention proceedings. It provides: “21 Interim order concerning custody generally (1) This section applies if a released prisoner is brought before the court under a warrant issued under section 20. (2) The court must— (a) order that the released prisoner be detained in custody until the final decision of the court under section 22; or (b) release the prisoner under subsection (4). (3) The released prisoner may, when the issue of his or her custody is raised under subsection (2), or at any time after the court makes an order under that subsection detaining the prisoner, apply to the court to be released pending the final decision. (4) The court may order the release of the released prisoner only if the prisoner satisfies the court, on the balance of probabilities, that his or her detention in custody pending the final decision is not justified because exceptional circumstances exist. (5) If the court adjourns an application under subsection (3), the court must order that the released prisoner remain in custody pending the decision on the application. (6) If the court orders the released prisoner’s release, the court must order that the prisoner be released subject to the existing supervision order or existing interim supervision order (each the existing order) as amended under subsection (7). (7) For subsection (6), the court— 17 Most pursuant to s 43AA of the Dangerous Prisoners (Sexual Offenders) Act 2003. 18 Dangerous Prisoners (Sexual Offenders) Act 2003, s 20. -- 12 of 23 -- 13 (a) must amend the existing order to include all of the requirements under section 16(1) if the order does not already include all of those requirements; and (b) may amend the existing order to include any other requirements the court considers appropriate to ensure adequate protection of the community.” [21] Final determination of the contravention proceedings is governed by s 22 which provides: “22 Court may make further order (1) The following subsections apply if the court is satisfied, on the balance of probabilities, that the released prisoner is likely to contravene, is contravening, or has contravened, a requirement of the supervision order or interim supervision order (each the existing order). (2) Unless the released prisoner satisfies the court, on the balance of probabilities, that the adequate protection of the community can, despite the contravention or likely contravention of the existing order, be ensured by the existing order as amended under subsection (7), the court must— (a) if the existing order is a supervision order, rescind it and make a continuing detention order; or (b) if the existing order is an interim supervision order, rescind it and make an order that the released prisoner be detained in custody for the period stated in the order. (3) For the purpose of deciding whether to make a continuing detention order as mentioned in subsection (2)(a), the court may do any or all of the following— (a) act on any evidence before it or that was before the court when the existing order was made; (b) make any order necessary to enable evidence of a kind mentioned in section 13(4) to be brought before it, including, for example, an order— (i) in the nature of a risk assessment order, subject to the restriction under section 8(2); or (ii) for the revision of a report about the released prisoner produced under section 8A; (c) consider any further report or revised report in the nature of a report of a type mentioned in section 8A. -- 13 of 23 -- 14 (4) To remove any doubt, it is declared that the court need not make an order in the nature of a risk assessment order if the court is satisfied that the evidence otherwise available under subsection (3) is sufficient to make a decision under subsection (2)(a). (5) If the court makes an order in the nature of a risk assessment order, the psychiatrist or each psychiatrist examining the released prisoner must prepare a report about the released prisoner and, for that purpose, section 11 applies. (6) For applying section 11 to the preparation of the report— (a) section 11(2) applies with the necessary changes; and (b) section 11(3) only applies to the extent that a report or information mentioned in the subsection has not previously been given to the psychiatrist. (7) If the released prisoner satisfies the court, on the balance of probabilities, that the adequate protection of the community can, despite the contravention or likely contravention of the existing order, be ensured by a supervision order or interim supervision order, the court— (a) must amend the existing order to include all of the requirements under section 16(1) if the order does not already include all of those requirements; and (b) may otherwise amend the existing order in a way the court considers appropriate— (i) to ensure adequate protection of the community; or (ii) for the prisoner’s rehabilitation or care or treatment. (8) The existing order may not be amended under subsection (7)(b) so as to remove any requirements mentioned in section 16(1).” [22] Section 22 refers to “the adequate protection of the community”.19 That is a concept appearing in the DPSOA in Division 3 of Part 2 which concerns final orders made on an initial application for orders under the DPSOA. The pivotal section in Division 3 is s 13, which provides: “13 Division 3 orders (1) This section applies if, on the hearing of an application for a division 3 order, the court is satisfied the prisoner is 19 Section 22(2) and (7). -- 14 of 23 -- 15 a serious danger to the community in the absence of a division 3 order (a serious danger to the community). (2) A prisoner is a serious danger to the community as mentioned in subsection (1) if there is an unacceptable risk that the prisoner will commit a serious sexual offence— (a) if the prisoner is released from custody; or (b) if the prisoner is released from custody without a supervision order being made. (3) On hearing the application, the court may decide that it is satisfied as required under subsection (1) only if it is satisfied— (a) by acceptable, cogent evidence; and (b) to a high degree of probability; that the evidence is of sufficient weight to justify the decision. (4) In deciding whether a prisoner is a serious danger to the community as mentioned in subsection (1), the court must have regard to the following— (aa) any report produced under section 8A; (a) the reports prepared by the psychiatrists under section 11 and the extent to which the prisoner cooperated in the examinations by the psychiatrists; (b) any other medical, psychiatric, psychological or other assessment relating to the prisoner; (c) information indicating whether or not there is a propensity on the part of the prisoner to commit serious sexual offences in the future; (d) whether or not there is any pattern of offending behaviour on the part of the prisoner; (e) efforts by the prisoner to address the cause or causes of the prisoner’s offending behaviour, including whether the prisoner participated in rehabilitation programs; (f) whether or not the prisoner’s participation in rehabilitation programs has had a positive effect on the prisoner; (g) the prisoner’s antecedents and criminal history; -- 15 of 23 -- 16 (h) the risk that the prisoner will commit another serious sexual offence if released into the community; (i) the need to protect members of the community from that risk; (j) any other relevant matter. (5) If the court is satisfied as required under subsection (1), the court may order— (a) that the prisoner be detained in custody for an indefinite term for control, care or treatment (continuing detention order); or (b) that the prisoner be released from custody subject to the requirements it considers appropriate that are stated in the order (supervision order). (6) In deciding whether to make an order under subsection (5)(a) or (b)— (a) the paramount consideration is to be the need to ensure adequate protection of the community; and (b) the court must consider whether— (i) adequate protection of the community can be reasonably and practicably managed by a supervision order; and (ii) requirements under section 16 can be reasonably and practicably managed by corrective services officers. (7) The Attorney-General has the onus of proving that a prisoner is a serious danger to the community as mentioned in subsection (1).” [23] Section 13 operates in this way: (a) the test under s 13 is whether the prisoner is “a serious danger to the community”;20 (b) that initial question is answered by determining whether there is an “unacceptable risk that the prisoner will commit a serious sexual offence”21 if no order is made; (c) if that conclusion is reached, then a supervision order (as opposed to a continuing detention order) can only be made where the adequate protection of the community can be ensured by the making of a supervision order;22 20 Section 13(1). 21 Section 13(1) and (2). 22 Section 13(6). -- 16 of 23 -- 17 (d) where “adequate protection of the community” can be ensured by a supervision order, then the making of a supervision order ought to be preferred to the making of a continuing detention order.23 Reasons for making the order and s 21(2)(b) [24] Doctor Sundin interviewed the respondent on 29 May 2020. She had previously examined the respondent and prepared reports in relation to earlier contraventions of the supervision order by him. [25] Doctor Sundin’s diagnosis of the respondent is: “Using the DSM-V system of classification (American Psychiatric Association), I remain of the opinion that Mr Robinson’s principal diagnosis is Mixed Personality Disorder with anti-social, avoidant and psychopathic personality traits. This occurs against the setting of an individual who has a significant past history of substance abuse and past behaviour consistent with a diagnosis of Sexual Sadism.”24 [26] Doctor Sundin’s assessment of risk was as follows: “In my opinion, Mr Robinson’s risk assessment has changed very little over the past 12 months although I acknowledge that he has not abused substances in that time. He continues to have an above average risk for future sexual recidivism based on historical factors, and he continues to show elevated features with respect to psychopathic personality traits although he does not meet full criteria for a diagnosis of Psychopathy. The risk assessment elements that have been present in the last 12 months primarily relate to his dynamic factors and reflect his anti- authoritarian attitudes and oppositional responses; with his tendency to become obstructive and passive aggressive when being subject to restrictions which he perceives to be unfair. On the positive side however, Mr Robinson has not committed a serious sexual offence since 1997. His last inappropriate sexual act included an assault upon a female QCS officer in 2008. Most recently in 2016 he had engaged in a series of sexually explicit telephone conversations with an intellectually impaired cousin but had not re- offended in a sexual manner. During this period of time in the community he has not abused illicit substances. He appears to have benefited both from participating in the Suboxone programme, having regular sessions with a psychologist and being prescribed regular antidepressant medication. 23 Attorney-General v Francis [2007] 1 Qd R 396 at [39]; Attorney-General (Qld) v Yeo [2008] QCA 115; Attorney-General v Lawrence [2010] 1 Qd R 505; LAB v Attorney-General [2011] QCA 230; Attorney-General for the State of Queensland v Ellis [2012] QCA 182; Attorney-General (Qld) v Fardon [2013] QCA 64. 24 Report of Dr Sundin, 18 June 2020, page 13. -- 17 of 23 -- 18 There has been some deceptiveness in his behaviour with respect to QCS staff, but this appears to have been driven by a reactive obstructiveness rather than by any more malignant sexually deviant cognitions. During this most recent period of time in the community, he has not been in a relationship with a woman although I note that he has established relationships with a number of women over the period of time that he has been released into the community. He now reports that he is less reactive to feelings of anger and the IOMS25 would appear to support this. Certainly while at times he has been quite clearly rude and disrespectful; he has not acted out aggressively and even his obstructive behaviour has had a relatively contained quality. It appears to me that this return to incarceration has resulted from a failure of compliance by Mr Robinson rather than as a consequence of any increasing escalation in the risk he poses to the general community. These issues of compliance will continue to be a source of difficulty for supervising case officers, but I think it is an error to confuse Mr Robinson’s anti-authoritarian and obstructive attitudes with a rising risk of sexual recidivism. My overall impression was that the supervision order has been successfully containing the risk posed by Mr Robinson to the community and has had the added benefit of linking him into clinical strategies that have helped reduce other potent risk factors such as abuse of illicit substances. In my opinion, it is of prime importance for Mr Robinson to be moved into independent accommodation so that greater emphasis is placed upon his behaviour and the requirement for him to demonstrate increased personality responsibility and autonomy. Remaining in the precinct simply creates an opportunity for Mr Robinson to become obstructive and to displace responsibility on to others. I consider it important that he continue to receive antidepressant medication and to remain linked to the Subutex replacement programme within the community. It is clearly important for him to continue to see Steve Morgan for psychological treatment on a regular basis. I would therefore respectfully recommend to the Court that Mr Robinson can be released back into the community under his existing supervision order. I do not recommend an extension of his supervision order given the length of time since he last committed a 25 A records system of Queensland Corrective Services. -- 18 of 23 -- 19 serious sexual offence and his lack of serious sexual offending while on an order in the community.”26 (emphasis added) [27] Doctor Scott Harden interviewed the respondent on 22 May 2020. He diagnosed the respondent as follows: “Personality Disorder Not Otherwise Specified with antisocial and dependent/avoidant features. Significant Psychopathic features. Sexual Sadism Polysubstance Abuse - in remission due to incarceration.”27 [28] In summary, Dr Harden observed: “At the time of this report Nigel ROBINSON was a 41-year-old man who had been convicted of sexually assaulting three victims in 1997 aged 9 years, 19 years and 27 years . All victims were female. Following this he was convicted of an assault against a female staff member in custody in 2008 which may well have had a sexual element. He was also charged with rape and sexual behaviour towards an intellectually impaired woman in 2010 although these charges were dropped. The previous contravention where he approached a woman at her house in 2017 was of very significant concern given his previous history. He has generally had poor compliance with supervision and has acknowledged that he has previously been deceptive and non- compliant with supervising staff both in the community and in custody. This pattern has now changed to largely defiance and non- compliance. He has insight into this pattern and his anger towards supervising staff but has made limited attempts to improve his approach to this regardless of significant therapeutic input occurring over many years. He does seem to be able to develop therapeutic relationships with treating psychologists. The material seems clear that in adolescence he had pronounced feelings of powerlessness and inadequacy associated with both his medical, psychological and social issues. In this setting he developed persistent self soothing and highly sexually arousing fantasies associated with coercive sex involving females. These fantasies resulted in some amelioration of his feelings of powerlessness. He made a very poor adjustment to early adulthood with failure to complete education, to engage in adult employment and to form healthy adult relationships despite apparently coming from a reasonably functional family of origin. In the absence of prosocial development he spent his time associating with dysfunctional peers, using substances and engaging in planning for his sexual offences. 26 Report of Dr Sundin, 18 June 2020, pages 14-15. 27 Report of Dr Harden, 24 July 2020, page 25. -- 19 of 23 -- 20 The implementation of his sexual fantasies into offending was very serious and potentially dangerous to the victims and the pattern of offences and sexual behaviour was, even on his own description, one of looking for more vulnerable targets to more successfully carry out his sexual desires. This has in my opinion likely continued in the community on supervision as demonstrated by his sexual relationship with at least one intellectually impaired woman. There was a striking pattern of variation with regard to a number of aspects of the history that he has given to various informants over the years. This is particularly with regard to relationship matters, sexual matters and offence details. The impression at earlier interviews I had with him was one of evasiveness and deceptiveness and this was consistent with the history of his interaction with supervising staff, previous psychiatric and psychological assessors and similar. He has acknowledged this to some extent and seems more direct with his communication in more recent years. Previously there was marked sexual preoccupation driving his sexual behaviour. Although he has had difficulties in negotiating adult relationships he has managed have some kind of sexual contact in person or on the telephone with at least six women since the beginning of his supervision order on the information available to me. This appears to have declined with time. He reports no interest in sexual matters recently but this report is untested. Difficulties with supervision in the last few years have not demonstrated the same level of concerning behaviour associated with the 2017 contravention where he appeared to have approached a stranger female at her home. This may be because there has been limited opportunity given the highly restrictive approach corrective services have taken to his supervision since that time. It may also be because his drives have decreased. Despite being unaccounted for at times on supervision and monitoring there is no information to suggest that he has committed further sexual offences.”28 [29] As to risk, Dr Harden: “I have specifically considered the risk of further sexual re-offence in the light of his non-compliance with the supervision order. His general attitude of non-compliance and his extremely difficult interaction with supervising staff is only of relevance to risk where it affects the future risk of sexual recidivism. His unmodified risk of sexual re-offence in the community (if he were to be just be released into the community with no monitoring) after considering all the available data is in my opinion now in the MODERATE-HIGH (above average) range compared to the recidivism rate of sexual offenders generally. There is some decline related to his age and the accumulated period of time he has been in the community without commission of further sexual offence. 28 Report of Dr Harden, 24 July 2020, pages 24-25. -- 20 of 23 -- 21 His most important risk factors are his likely deviant sexual arousal, his non-compliance with supervision restrictions in the community, his severe personality dysfunction including psychopathic features and his previous pattern of seeking out potentially vulnerable female members of the community. On a supervision order in the community, in my opinion, the risk of sexual recidivism is reduced to moderate (average) overall. Although he has been recurrently non-compliant with the order over many years, I am not aware of any sexual re-offence during this period.”29 [30] Doctor Sundin recommends that there be no extension of the supervision order. Doctor Harden thinks otherwise. He opines: “The current supervision order expires in December 2020. If he is not on a supervision order in my opinion his risk of committing a further sexual offence is in the moderate - high range. That is, his chance of committing a further sexual offence continues to be increased above that of the average sexual offender released into the community without constraint (the average risk figure being approximately 17% over 5 years). I would recommend the supervision order be extended. I recommend an extension for approximately three years. This is the kind of period over which he could demonstrate improved compliance and pro social integration into the community. Unfortunately he has developed such an adversarial relationship with supervising authorities that there is effectively a stand-off where he is given almost no scope for leave and then violates his conditions and monitoring. This adversarial relationship is almost entirely due to his severe personality disorder features and obviously concerns about his risk of reoffending by monitoring authorities. A comprehensive plan and timeline agreed between him and the monitoring authority would be perhaps useful in overcoming the stalemate. If released into the community or continued in custody he should have ongoing individual psychological therapy with an appropriately skilled practitioner targeting all his criminal needs but including dealing with his issues of deviant sexual arousal and management of this. He should be abstinent from alcohol and other intoxicants except for agents on an approved prescription or opioid replacement program.”30 (emphasis added) 29 Report of Dr Harden, 24 July 2020, page 25. 30 Report of Dr Harden, 24 July 2020, page 26. -- 21 of 23 -- 22 [31] The passage from the judgment of Jackson J in Attorney-General for the State of Queensland v Robinson to which I earlier referred31 highlights, with respect, both the purpose of the DPSOA and the difficulties with the management of the respondent. [32] The purpose of the DPSOA includes the protection of the community from the commission by the respondent of “serious sexual offences”.32 The DPSOA is neither intended nor designed as a protection against general offending or, for that matter, sexual offending below that of the commission of a “serious sexual offence”. Further, evidence of breaches, even persistent breaches, of the supervision order, are only relevant to risk of the commission of a serious sexual offence. The supervision order is a means of providing protection against the commission of a serious sexual offence. Compliance with the supervision order is not an aim in itself.33 [33] Here, while there have been numerous breaches of the two supervision orders to which the respondent has been subject, the fact remains that the respondent has not committed a serious sexual offence since 1997. The psychiatrists recognise this and recognise that the supervision order has fulfilled its function. [34] The applicant also accepts that notwithstanding the persistent breaches of supervision orders, the adequate protection of the community can be ensured by the respondent being released subject to a supervision order. It follows then that a supervision order ought to be preferred to a continuing detention order.34 [35] In her outline of submissions, the applicant concedes this: “63. The Court would be satisfied to the requisite standard that the respondent has contravened a requirement of his supervision order. The applicant acknowledges the opinions of Dr Harden and Dr Sundin are to the effect that the risk can be adequately managed in the community under the supervision order. It is a matter for evidence whether the supervision order should be extended, and for how long.” [36] On the material, that is a proper concession. [37] In Attorney-General for the State of Queensland v Holroyd,35 I thought that a respondent could show exceptional circumstances justifying interim release under s 21(2)(b) of the DPSOA where the court can be satisfied that the adequate protection of the community can be ensured by the release of the prisoner notwithstanding that the issues relevant to the contravention have not been fully ventilated at a final hearing.36 31 Paragraph [13] of these reasons; [2017] QSC 332 at [90]-[94]. 32 As defined in the Dangerous Prisoners (Sexual Offenders) Act 2003: “An offence of a sexual nature involving violence” or “An offence of a sexual nature against a child”. 33 Turnbull v Attorney-General [2015] QCA 54 at [36]; Attorney-General for the State of Queensland v Fardon [2018] QSC 193; on appeal on another point, Attorney-General v Fardon [2019] 2 Qd R 487 and as analysed by me in Attorney-General for the State of Queensland v Nemo [2020] QSC 140 at [16]-[26]. 34 Attorney-General for the State of Queensland v Francis [2007] 1 Qd R 396. 35 [2020] QSC 187. 36 At [32]. -- 22 of 23 -- 23 [38] That is the case here. It is clear that the adequate protection of the community against the commission of a serious sexual offence can be ensured by the release of the respondent on the supervision order. The real issue in the case is whether he is an acceptable risk if in the community without a supervision order. If the answer to that question is in the affirmative, then the supervision order will not be extended. If the answer to that question is in the negative, then the supervision order ought to be extended.37 That is a matter for the final hearing. [39] For those reasons, it was appropriate to release the respondent on the terms of the supervision order pending final determination of the contravention proceedings. 37 Attorney-General for the State of Queensland v DXP [2019] QSC 77 following Attorney-General for the State of Queensland v KAH [2019] 3 Qd R 329. -- 23 of 23 --