Attorney-General (Qld) v S [2020] QSC 164
SUPREME COURT OF QUEENSLAND
CITATION: Attorney-General (Qld) v S [2020] QSC 164
PARTIES: ATTORNEY-GENERAL FOR THE STATE OF
QUEENSLAND
(applicant)
v
S
(respondent)
FILE NO/S: BS No 2012 of 2015
DIVISION: Trial Division
PROCEEDING: Originating Application
ORIGINATING
COURT:
Supreme Court at Brisbane
DELIVERED ON: 10 June 2020
DELIVERED AT: Brisbane
HEARING DATE: 1 June 2020
JUDGE: Williams J
ORDER: THE COURT, being satisfied to the requisite standard that
the respondent is a serious danger to the community in the
absence of an order pursuant to Division 3 of the
Dangerous Prisoners (Sexual Offenders) Act 2003 (the Act),
ORDERS THAT:
1. The decision made on 9 June 2015 that the
respondent is a serious danger to the community in
the absence of a Division 3 order, be affirmed; and
2. The respondent continue to be subject to the
continuing detention order made on 9 June 2015.
CATCHWORDS: CRIMINAL LAW – SENTENCE – SENTENCING ORDERS
– ORDERS AND DECLARATIONS RELATING TO
SERIOUS OR VIOLENT OFFENDERS OR DANGEROUS
SEXUAL OFFENDERS – GENERALLY – where the
respondent was detained under a continuing detention order
under the Dangerous Prisoners (Sexual Offenders) Act 2003
(Qld) – where the applicant applied for the order to be
reaffirmed under section 30 of the Act – where psychiatrists
previously opined that the respondent was a moderate to high
risk of reoffending sexually if released under a supervision
order – where the respondent refused to be assessed by
psychiatrists for the purpose of the review – where
psychiatrists considered that the drafting of adequate
conditional release orders would only be possible if the
respondent engaged with assessment – whether the applicant
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has discharged the onus to establish that the respondent should
continue to be subject to a continuing detention order –
whether the community could be adequately protected by a
supervision order
Dangerous Prisoners (Sexual Offenders) Act 2003, s 13, s 27,
s 30
Attorney-General for the State of Queensland v Anderson
[2020] QSC 142, cited
Attorney-General (Qld) v S [2017] QSC 32, cited
Attorney-General (Qld) v S [2015] QSC 157, cited
R v S [2002] QCA 38, cited
COUNSEL: M Maloney for the applicant
J Fenton for the respondent
SOLICITORS: Crown Law for the applicant
Ashkan Tai Lawyers for the respondent
[1] The respondent is the subject of a continuing detention order made by PD McMurdo
J (as his Honour then was) on 9 June 20151 under the provisions of the Dangerous
Prisoners (Sexual Offenders) Act 2003 (DPSO Act).
[2] His Honour found:
(a) That the respondent was a serious danger to the community in the absence of
an order under Division 3 of Part 2 of the DPSO Act;2 and
(b) That the adequate protection of the community could not be ensured by the
release of the respondent on a supervision order.3
[3] In those circumstances, his Honour made a continuing detention order.
[4] On 6 February 2017, Brown J conducted a review of the continuing detention order
and on 13 March 2017 her Honour:
(a) Affirmed the decision that the respondent was a serious danger to the
community in the absence of an order pursuant to Division 3, Part 2 of the
DPSO Act; and
(b) Ordered that the respondent continue to be the subject of the continuing
detention order.4
[5] On 30 April 2018, Lyons SJA undertook a further review (second review) of the
continuing detention order and on 1 May 2018:
1 Attorney-General (Qld) v S [2015] QSC 157.
2 Section 13(1).
3 Sections 13(5) and 13(6).
4 Attorney-General (Qld) v S [2017] QSC 32.
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3
(a) Affirmed the decision made on 9 June 2015 that the respondent was a serious
danger to the community in the absence of an order pursuant to Division 3 of
the DPSO Act; and
(b) Ordered that the respondent continue to be subject to the continuing detention
order made on 9 June 2015.5
[6] On 13 May 2019, Wilson J undertook a further review (third review) of the
continuing detention order and on that date:
(a) Ordered that the decision made on 9 June 2015 that the respondent was a
serious danger to the community in the absence of a Division 3 order be
affirmed; and
(b) Ordered that the respondent continue to be subject to the continuing detention
order made on 9 June 2015.6
[7] An application was filed by the applicant on 4 March 2020 for a further review of
the continuing detention order (fourth review).7
[8] Following the hearing on 1 June 2020 I made orders in the terms of the draft provided
by the applicant and marked Exhibit 1, namely:
“THE COURT, being satisfied to the requisite standard that the
respondent is a serious danger to the community in the absence of
an order pursuant to Division 3 of the Dangerous Prisoners (Sexual
Offenders) Act 2003 (the Act), ORDERS THAT:
1. The decision made on 9 June 2015 that the respondent is a
serious danger to the community in the absence of a Division 3
order, be affirmed; and
2. The respondent continue to be subject to the continuing
detention order made on 9 June 2015.”
[9] My reasons for making the orders are set out below.
Statutory context
[10] The application is made pursuant to s 27(2) of the DPSO Act that the Supreme Court
of Queensland review the continuing detention order made by PD McMurdo J on 9
June 2015, affirmed by Brown J on 13 March 2017, and further affirmed by Lyons
SJA on 30 April 2018 and Wilson J on 13 May 2019.
[11] The application seeks orders:
“3. That the court can be satisfied to the requisite standard, pursuant
to s 30(2) of the [DPSO Act], that the respondent is a serious
danger to the community in the absence of a Division 3 order.
4. That pursuant to s 30(3) of the [DPSO Act], the respondent
continues to be subject to the continuing detention order.
5 Attorney-General (Qld) v S [2018] QSC 89.
6 Unpublished reasons 13 May 2019.
7 Section 27.
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5. Alternatively, that pursuant to s 30(3) of the [DPSO Act], the
respondent be released from custody subject to a supervision
order.”
[12] Section 27 of the DPSO Act provides for periodic reviews as follows:
“27 Review—periodic
(1) If the court makes a continuing detention order, it must
review the order at the intervals provided for under this
section.
(1A) The hearing for the first review and all submissions for
the hearing must be completed within 2 years after the
day the order first had effect.
(1B) There must be subsequent annual reviews while the
order continues to have effect.
(1C) Each annual review must start within 12 months after the
completion of the hearing for the last review under this
section.
(2) The Attorney-General must make any application that is
required to be made to cause the reviews to be carried
out.”
[13] Section 30 directs the Court on the hearing of the review as follows:
“30 Review hearing
(1) This section applies if, on the hearing of a review under
section 27 or 28 and having regard to the required
matters, the court affirms a decision that the prisoner is
a serious danger to the community in the absence of a
division 3 order.
(2) On the hearing of the review, the court may affirm the
decision only if it is satisfied—
(a) by acceptable, cogent evidence; and
(b) to a high degree of probability;
that the evidence is of sufficient weight to affirm the
decision.
(3) If the court affirms the decision, the court may order that
the prisoner—
(a) continue to be subject to the continuing detention
order; or
(b) be released from custody subject to a supervision
order.
(4) In deciding whether to make an order under subsection
(3)(a) or (b)—
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(a) the paramount consideration is to be the need to
ensure adequate protection of the community; and
(b) the court must consider whether—
(i) adequate protection of the community can be
reasonably and practicably managed by a
supervision order; and
(ii) requirements under section 16 can be
reasonably and practicably managed by
corrective services officers.
(5) If the court does not make the order under subsection
(3)(a), the court must rescind the continuing detention
order.
(6) In this section—
required matters means all of the following—
(a) the matters mentioned in section 13(4);
(b) any report produced under section 28A.”
[14] Section 30 incorporates the term “serious danger to the community” which in turn
encompasses the notions of “serious sexual offence” and “unacceptable risk”. This
in effect mirrors s 13 of the DPSO Act.
[15] Section 13 of the DPSO Act provides as follows:
“13 Division 3 orders
(1) This section applies if, on the hearing of an application
for a division 3 order, the court is satisfied the prisoner
is a serious danger to the community in the absence of a
division 3 order (a serious danger to the community).
(2) A prisoner is a serious danger to the community as
mentioned in subsection (1) if there is an unacceptable
risk that the prisoner will commit a serious sexual
offence—
(a) if the prisoner is released from custody; or
(b) if the prisoner is released from custody without a
supervision order being made.
(3) On hearing the application, the court may decide that it
is satisfied as required under subsection (1) only if it is
satisfied—
(a) by acceptable, cogent evidence; and
(b) to a high degree of probability;
that the evidence is of sufficient weight to justify the
decision.
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(4) In deciding whether a prisoner is a serious danger to the
community as mentioned in subsection (1), the court
must have regard to the following—
(aa) any report produced under section 8A;
(a) the reports prepared by the psychiatrists under
section 11 and the extent to which the prisoner
cooperated in the examinations by the psychiatrists;
(b) any other medical, psychiatric, psychological or
other assessment relating to the prisoner;
(c) information indicating whether or not there is a
propensity on the part of the prisoner to commit
serious sexual offences in the future;
(d) whether or not there is any pattern of offending
behaviour on the part of the prisoner;
(e) efforts by the prisoner to address the cause or causes
of the prisoner’s offending behaviour, including
whether the prisoner participated in rehabilitation
programs;
(f) whether or not the prisoner’s participation in
rehabilitation programs has had a positive effect on
the prisoner;
(g) the prisoner’s antecedents and criminal history;
(h) the risk that the prisoner will commit another serious
sexual offence if released into the community;
(i) the need to protect members of the community from
that risk;
(j) any other relevant matter.
(5) If the court is satisfied as required under subsection (1),
the court may order—
(a) that the prisoner be detained in custody for an
indefinite term for control, care or treatment
(continuing detention order); or
(b) that the prisoner be released from custody subject to
the requirements it considers appropriate that are
stated in the order (supervision order).
(6) In deciding whether to make an order under subsection
(5)(a) or (b)—
(a) the paramount consideration is to be the need to
ensure adequate protection of the community; and
(b) the court must consider whether—
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(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).”
[16] In the recent decision of Attorney-General for the State of Queensland v Anderson
[2020] QSC 142, Davis J summarised the effect of s 13:
“[5] The effect of s 13 is:
(a) the court must consider whether the prisoner is a “serious
danger to the community in the absence of a Division 3
order”;8
(b) a prisoner is a “serious danger to the community” where
there is an unacceptable risk that the prisoner will
commit a “serious sexual offence” in the absence of an
order;9
(c) a “serious sexual offence” is, relevantly here, “an
offence of a sexual nature … involving violence; or …
against a child …”;10
(d) orders under Division 3 are:
(i) a continuing detention order;11 or
(ii) a supervision order;12
(e) if there is a finding that the prisoner is a serious danger
to the community in the absence of a Division 3 order,
then the court may:
(i) make no order;
(ii) make a continuing detention order; or
(iii) make a supervision order;13
(f) in determining what, if any order, to make “the
paramount consideration is to be the need to ensure
adequate protection of the community” from the
8 Section 13(1).
9 Section 13(2).
10 Section 2 and Schedule (Dictionary). As to the term “involving violence” see Attorney-
General v Phineasa [2013] 1 Qd R 305 at 312-16, [23]-[45].
11 Section 13(5)(a).
12 Section 13(5)(b).
13 Fardon v Attorney-General (Qld) (2004) 223 CLR 575 at 597, [34].
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commission by the prisoner of a “serious sexual
offence”;14
(g) if the adequate protection of the community cannot be
ensured by a supervision order, then a continuing
detention order should be made;15 and
(h) if the adequate protection of the community can be
ensured by a supervision order, then supervision ought
to be preferred to the making of a continuing detention
order.16
[6] The process of the assessment of risk in terms of the DPSOA
was explained by McMurdo J (as his Honour then was) in
Attorney-General for the State of Queensland v Sutherland17
where his Honour said:
‘[30] The existence of this onus of proof is important for
the present case. None of the psychiatrists suggests
that there is no risk. They differ in their descriptions
of the extent of that risk. But the assessment of what
level of risk is unacceptable, or alternatively put,
what order is necessary to ensure adequate
protection of the community, is not a matter for
psychiatric opinion. It is a matter for judicial
determination, requiring a value judgement as to
what risk should be accepted against the serious
alternative of the deprivation of a person’s
liberty.’18”
[17] Further at paragraph 10, his Honour helpfully summarised the process that is to be
undertaken under s 30:
“[10] The process under s 30 involves the following steps:
(a) determination of whether the respondent is a serious
danger to the community in the absence of a Division 3
order;
(b) if so, the court must determine whether adequate
protection of the community can be ensured by the
respondent’s release on a supervision order;
(c) if so, then release of the respondent on supervision ought
to be preferred to the maintenance of the continuing
detention order; and
(d) if not, then the continuing detention order ought to be
maintained.”
14 Section 13(b).
15 Attorney-General for the State of Queensland v Francis [2007] 1 Qd R 396 at 405, [39].
16 Attorney-General for the State of Queensland v Francis [2007] 1 Qd R 396 at 405, [39].
17 [2006] QSC 268.
18 At [30] and see also Fardon v Attorney-General (Qld) (2004) 223 CLR 575 at 657, [225],
[226].
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Background to continuing detention order and previous reviews
[18] PD McMurdo J summarised the relevant factual background as at June 2015 as
follows:
“[2] In May 2001 the respondent was sentenced to several terms of
imprisonment amounting to a period of 16 years which expires
on 10 June 2015. He was sentenced to 10 years imprisonment
for maintaining a sexual relationship with a child with
circumstances of aggravation over a six month period in 1988-
1999. He was sentenced to concurrent terms of five and three
years on a number of offences of assault occasioning bodily
harm and the indecent treatment of a child who was under 12
years. He was sentenced to a cumulative term of six years for
grievous bodily harm. Nearly two years of pre-sentence
custody had been served. He was declared to be a serious
violent offender.
[3] These offences were committed against the respondent’s then
partner and her young son. The offences were summarised by
McPherson JA, in dismissing the respondent’s appeal against
conviction and application for leave to appeal against sentence,
as follows:19
‘The victim of the physical assaults was at the time his de
facto wife. Most of them took place after she had, at his
insistence, performed indecent acts which the applicant
filmed for the purpose of setting up a pornographic
business. Some of those acts consisted of performing acts
of multiple sex with other adults. The assaults, some of
which involved the use or threat of use of a dangerous
instrument such as a garden fork, were carried out by the
applicant because he was dissatisfied with the standard of
the complainant's performance during those indecent acts.
One of the persons with whom she was forced to commit
some of the sexual acts was her own nine year old son,
who was also the victim of the sexual offences committed
against the child to which I have referred. To crown this
career of appalling behaviour, the applicant finally
subjected the woman complainant to a prolonged and
savage beating inflicting grievous bodily harm on her,
including brain damage, fractures to facial bones and a
severe injury to her left ear requiring plastic surgery.
In the course of his submissions in this Court the
applicant, it may be noted, admitted that he had committed
that assault causing grievous bodily harm.
…
19 R v S [2002] QCA 38.
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He showed no remorse whatever for what he has done.
The learned sentencing Judge described his behaviour as
depraved and despicable. Those are strong words, but they
are in my opinion fully justified. In the 20 years in which
I have been on this Court, I have not seen a case in which
the conduct of the accused was worse than this.’
[4] The respondent has always maintained that he did not commit
sexual offences against the child. He sought to explain his
violent assaults upon his partner as attempts to protect the son
from sexual misconduct by her.
[5] He was born in 1973 and is now 41 years of age. Prior to the
matters already mentioned, he had a criminal history for
offences of violence, dishonesty and breaking and entering a
dwelling house, for which he received various terms, including
one of three years imprisonment for which he was required to
serve 12 months. The offence of breaking and entering a
dwelling house with intent was committed in October 1992.
The sentencing judge then remarked:
‘I regard this as a very serious offence. Here we have a
decent woman asleep in her own home where she should
be safe. You come in the early hours of the morning and
subject her to a terrifying ordeal. You say you went there
for money, but from what she tells the police even if that
were so your mind changed towards sexual matters. You
told her to remove her knickers. She managed to escape
you and she was punched as she eluded you.’
[6] There are several recorded breaches during the respondent’s
time in prison. Most involved disobeying the lawful direction
of a corrective services officer. At least one involved an assault
on another prisoner. Another, in 2013, involved an assault on
a visitor.
[7] He has completed a number of rehabilitative programs as
follows:
Anger Management Core Program- completed 23 July
1997;
Substance Abuse Education Program- completed 28
October 1997;
Operate a Personal Computer- completed 9 December
2008;
Operate a Word Processing Application - completed 5
January 2009;
Operate a Spreadsheet Application- completed 19 January
2009;
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Operate a Database Application- completed 3 February
2009;
Operate a Presentation Package- completed 20 February
2009;
Transitions Programs- completed August 2011;
Work Safely in the Construction Industry- completed 23
November 2011;
Present a Positive Image - completed 5 November 2012;
Apply Job Search and Interview- completed 29 October
2012; and
Stepping Up Program - completed 15 April 2013.
[8] However he has not engaged in programs to address his sexual
offending. If he is detained as a result of this application he
will be waitlisted for the Getting Started: Preparatory Program
(the “GS:PP”), which is described in the evidence as ‘a
mandatory preparatory program designed to motivate
offenders to participate and address their offending in a more
intensive treatment program …’. It is not a treatment program
as such. The records of Corrective Services indicate that in
June 2012 he was offered a place in this program which he
declined, stating that he was innocent in relation to his sexual
offence convictions. There is a further record that in March
2013 he began but did not complete the GS:PP. There is also a
record of the respondent being offered the GS:PP in May 2014,
when again he maintained his innocence of any sexual offence
and refused to attend any sexual offending programs.
[9] Were he to complete the GS:PP, he could then be considered
for what is described as an intervention program, such as the
High Intensity Sexual Offending Program (HISOP), the
Cognitive Self Change High Intensity Violent Offending
Program (CSCP) or the Pathways High Intensity Substance
Abuse Program.” (Footnotes omitted)
[19] Following a review of the psychiatric evidence, his Honour undertook a
consideration of the particular issues and concluded as follows:
“[34] The respondent’s counsel did not challenge the evidence of
any of the psychiatrists and it is conceded on the respondent’s
behalf that the court would be satisfied that the respondent
would pose a serious danger to the community if released
without a division 3 order. But it is submitted for the
respondent that adequate protection of the community could
be provided by a supervision order.
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[35] I am satisfied that the respondent is a serious danger to the
community in the absence of a division 3 order.20 It is clear, in
my view, that there is an unacceptable risk that he would
commit a serious sexual offence if released from custody
without any such order.21 The respondent’s offending
behaviour, his antisocial personality, the possibility that there
is in his case an element of sadism or paedophilia, his denial
of his sexual offending and the fact that he has not engaged in
necessary treatment programs together combine to present that
unacceptable risk.
[36] The question then is whether he should be detained or released
under supervision. Counsel of the Attorney-General cited a
recent decision of the Court of Appeal, Turnbull v Attorney-
General (Qld).22 In that case, as in the present one, the
prisoner had not undergone the HISOP. Morrison JA described
evidence to the effect that there were ‘important gaps’ in what
was known of that prisoner’s motivations and desires and that
more needed to be known before it could be said that ‘his risk
is one that can be managed’. In his conclusion, those ‘unknown
factors’ prevented ‘the conclusion that adequate protection of
the community could be ensured under a supervision order’.23
[37] Morrison JA (with the agreement of the other members of the
court) said that before making a supervision order rather than
a detention order, ‘the court has to reach a positive conclusion
that the supervision order will provide the adequate
protection’.24
[38] Other judgments of the Court of Appeal have expressed the
present question somewhat differently. In Attorney-General
(Qld) v Lawrence,25 Chesterman JA (with whom Margaret
Wilson J agreed) said this as to the relevant onus of proof:26
‘[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
20 Dangerous Prisoners (Sexual Offenders) Act 2003 (Qld) s 13(1).
21 Ibid s 13(2).
22 [2015] QCA 54.
23 Ibid 10 [40].
24 Ibid 9 [36].
25 [2010] 1 Qd R 505; [2009] QCA 136.
26 Ibid 512 [33].
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detention order will provide adequate protection to the
community.’
…
[39] It may be assumed that in Turnbull there was no intention to
depart from those authorities because they were not cited. And
although counsel for the Attorney-General referred to
Turnbull, it was not cited for a specific submission that the
relevant onus was other than an onus upon the Attorney to
establish that the community could be adequately protected
only by a continuing detention order.
[40] In Turnbull, as in the present case, there was uncertainty as to
some material facts about the prisoner, an uncertainty which
affected the question of whether a detention order was required
to ensure the adequate protection of the community. As
Morrison JA said, in this context, there is a consideration “of
what is known, as well as what is unknown, about the risk
…”.27 In the present case, there is uncertainty as to whether
there is in his case sadism or even paedophilia. As I have
summarised, each of the psychiatrists recognises that as at least
a real possibility. Dr Sundin thought it highly likely that the
respondent met the criteria for sexual sadism. I could not make
a finding that more probably than not there is that element in
the respondent’s case. But my task is to consider whether the
community could be adequately protected only by a continuing
detention order. That involves a consideration of the nature
and extent of risk, as well as the potential consequences of that
risk eventuating, in order to assess whether the risk is
acceptable in the sense of providing adequate protection to the
community. That risk has a content not only from what can be
found as a fact about the prisoner, but also from what
constitute real possibilities.
[41] It was argued for the respondent that the effect of the evidence
of the psychiatrists was that there was no unacceptable risk
from the supervision order on the conditions which, during
their evidence, he asked them to consider. But that was not the
effect of their evidence. They were not critical of the
conditions. Their concern, in each case, was that the
respondent would not comply with the order and that a serious
offence might be committed before his non-compliance was
detected and he was returned to custody. In my view, that is a
substantial risk. It is a risk which exists especially from the
likelihood, as the psychiatrists explained it, that the respondent
would not engage with those supervising him and from the
difficulties in supervising this prisoner without his having
undergone what they regard as necessary treatment programs.
27 [2015] QCA 54, 9 [37].
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[42] In my conclusion, the Attorney-General has established that
there could be adequate protection of the community only by
a continuing detention order. It will be ordered that pursuant
to s 13(5)(a) of the Act, the respondent be detained in custody
for an indefinite term for control, care or treatment.”
[20] At the time of the first review before Brown J in 2017, the respondent maintained
his denial that he had been engaged in any sexual offending and this prevented him
from being suitable for the High Intensity Sexual Offenders Program. Following a
consideration of the psychiatric evidence, her Honour concluded:
“[73] The difficulty for the respondent is that until he meaningfully
engages in these programs such that his offending behaviour
can be discussed and his motivation and the triggers for that
behaviour ventilated, the respondent cannot progress forward
and appropriate treatment, and management to avoid his risk
of sexual reoffending cannot be implemented.
[74] While it may be true as submitted by the respondent that he did
not consider that he had to participate in such programs in
order to obtain parole and had participated in a drug and
substance program, it is plain that from his own
correspondence that he was aware that the result of the
decision last year of this Court that he needed to participate in
the Getting Started: Preparatory Program, High Intensity
Sexual Offending Program and Cognitive Self Change High
Intensity Violence Program. The respondent’s own
correspondence in ex 2 dated 8 October 2015 indicated he
needed to become part of the Getting Started Program, the
Pathways Program and the Violence Program.
[75] The weight of the evidence supports the fact it is largely the
respondent’s own conduct and positional stance that has
resulted in him not participating effectively or at all in any of
the programs that were recommended as necessary to address
his sexual offending behaviour and the risk factors giving rise
to sexual reoffending.”
[21] Her Honour then considered whether the respondent was a serious danger to the
community and concluded as follows:
“[76] The first question is whether the respondent is a serious danger
to the community in the absence of a division 3 order under
the Act. I am satisfied to a level of high degree of probability
that there is acceptable cogent evidence that has been
presented to me, particularly with respect to the psychiatric
evidence and the evidence of Ms O’Brien, Mr Phelan and Ms
Cowie as to the respondent’s history and conduct in
undertaking or being offered various rehabilitation programs,
of sufficient weight to affirm the decision that the respondent
continues to be a serious danger to the community in the
absence of a division 3 order under the Act, having regard to
the required matters I am to consider.”
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[22] Further, her Honour stated:
“[84] In the present case, I am also satisfied on the evidence before
me that the position remains as was described by this Court in
the reasons of Philip McMurdo J at para [40], cited above28
that while there is uncertainty as to whether there is in his case
sexual sadism or even paedophilia, there is a real possibility
that the respondent may have a paraphilia which is sexual
sadism which raises a high risk of sexual reoffending,
particularly having regard to his antisocial personality and
psychopathic traits. The absence of a clear determination in
this regard due to the respondent’s unwillingness to engage in
such a program does not suggest that the respondent is not a
serious danger to the community. It supports a finding of
unacceptable risk.
[85] I am satisfied that the court should affirm the decision that the
respondent is a serious danger to the community in the absence
of a Division 3 Order. The respondent’s offending behaviour
in the past in relation to sexual offences, his anti-social
personality, the fact that he has psychopathic traits and that
there is a real possibility that there is an element of sexual
sadism in his offending and possibly paedophilia, satisfies me
that there is unacceptable risk that the respondent would
commit a serious sexual offence if released without a division
3 order. That risk is further heightened by the fact that he is not
engaged in necessary treatment programs previously
recommended, save for the Getting Started Program. While he
did participate in that program, his denial of sexual offending
has meant the respondent has not responded positively as it has
provided no insight into the nature of his behaviour or
motivations and the relevant triggers for his sexual offending
such that it could be treated. Presently his attitude indicates
that a High Intensity Sexual Offending Program which both
psychiatrists considered he would need to engage in is not
open given his denial.”
[23] In respect of whether adequate protection of the community could be ensured by the
respondent’s release on a supervision order, her Honour concluded:
“[89] It is evident therefore that there is a significant risk that the
respondent would not comply with any supervision order and
that he may commit a serious offence before his non-
compliance is detected. Moreover presently no supervision
order can be formulated to properly address the risks posed by
the respondent to ensure adequate protection of the
community, given the failure of the respondent to engage in
programs that would enable that to occur. In the circumstances,
I consider that the imposition of a supervision order cannot
reasonably and practically manage the adequate protection of
28 [2015] QSC 157.
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16
the community, because it presently cannot contain the risk
posed by the respondent to provide such adequate protection.
[90] Given the above and taking into account the paramount
consideration is the need to ensure protection of the
community, I am satisfied that the Attorney-General has
established that there could not be adequate protection of the
community by a supervision order and there can only be
adequate protection of the community by a continuing
detention order.
[91] I therefore affirm the decision of this Court of 9 June 2015 that
the respondent is a serious danger to the community in the
absence of a division 3 order. I order that the respondent
continue to be subject to the Continuing Detention Order.”
[24] The second review was carried out by Lyons SJA in 2018. Her Honour concluded
that the respondent was a serious danger to the community in the absence of a
Division 3 order and affirmed the decision made on 9 June 2015 and affirmed on 13
March 2017.
[25] In respect of whether adequate protection of the community could be ensured by the
respondent’s release on a supervision order, her Honour concluded:
“[42] Having considered the reports which have been prepared for
this hearing, as well as the other material relied upon by the
applicant, I am satisfied that the evidence indicates that the
respondent’s risk of serious sexual re-offending is still in the
moderate to high range and that the likely offence would
involve an adult female or child and that such an offence would
result in psychological or physical damage. In the present case
the applicant submits that the respondent is an untreated sex
offender who has limited or no insight into his condition and
the steps he needs to take to address his risk and therefore a
continuing detention order is required.
…
[44] In the present case however, I cannot be satisfied that a
supervision order would be efficacious in constraining the
respondent’s behaviour by preventing the opportunity for the
commission of sexual offences. In making such an order the
Court is required to reach a positive conclusion that the
supervision order proposed would provide adequate
protection. As Counsel for the applicant stated in his closing
submission, because of the respondent’s non engagement in
the HISOP, the risk cannot be quantified. Counsel continued:
‘The risk can’t be managed by way of an appropriately
structured supervision order, absent the offending
pathway being identified and one does not know whether
[the respondent] is a sexual sadist. One does not know
whether he’s a paedophile. One does not know what his
drivers are to enable an appropriately structured
-- 16 of 36 --
17
supervision order to be formulate, which would – which
your Honour could be satisfied would provide adequate
protection to the community. That’s the touchstone –
whether the community would be adequately protected
if – without knowing what motivates [the respondent].
One would be releasing him into the community a
ticking time bomb that could go off at any stage when
corrective services would simply not know how to direct
him. For example, a GPS tracker might identify where
he goes, but that does not necessarily identify who he
associates with and the circumstances and those factors
might be quite relevant to corrective services and how
they manage him. So without knowing what Mr – what
makes [the respondent] tick, it’s very difficult to
structure an order which would provide the necessary
protection.’
[45] I accept that the evidence remains unaltered since 2015 and
clearly establishes that the applicant has satisfied me that the
adequate protection of the community cannot be ensured by a
supervision order and the respondent should continue to be
subject to a continuing detention order.” (Footnote omitted)
[26] On 13 May 2019, Wilson J conducted the third review of the continuing detention
order. Following a review of the evidence, her Honour concluded that the respondent
was a serious danger to the community in the absence of a Division 3 order.
[27] In respect of whether adequate protection of the community could be ensured by the
respondent’s release on a supervision order, her Honour concluded:
“In this case, however, I cannot be satisfied that a supervision order
would be efficacious in continuing the respondent’s behaviour by
preventing the opportunity for the commission of sexual offenders
[sic]. In making such a supervision order the court is required to
reach a positive conclusion that the supervision order proposed
would provide adequate protection. I am not so satisfied.
The expert evidence does not reach such a conclusion and I take into
account Dr Moyle’s report, in particular, paragraphs 154 to 157,
paragraph 160 and paragraphs 160 to 168. And I note Dr Sundin’s
report at page 6, from line 158 to page 7 at line 171.
It is noted that in 2017, Brown J affirmed the continued detention
order, as no supervision order could be formulated to properly
address the risk posed by the respondent to ensure adequate
protection of the community. And one of the primary reasons for
coming to that conclusion was that the failure of the respondent to
engage in programs that would enable his release on a supervision
order to occur. I note that nothing much has changed in two years.
The applicant, in all of the circumstances, has satisfied me that the
adequate protection of the community cannot be ensured by a
-- 17 of 36 --
18
supervision order and that respondent should continue to be the
subject to a continuing detention order.”29
Further psychiatric reports
[28] Pursuant to s 29 of the DPSO Act, further psychiatric reports were obtained from Dr
Ken Arthur on 21 February 2020 and Dr Robert Moyle dated 8 January 2020 for the
purposes of the fourth review.
[29] On 31 January 2020, Dr Arthur attended the Wolston Correctional Centre to conduct
a psychiatric assessment, but the respondent refused to participate. As a result, Dr
Arthur prepared his report based on a review of the material in the absence of
cooperation from the respondent.
[30] In relation to the risk assessment and recommendations, Dr Arthur’s report states as
follows:
“178. Based on the documentation provided, I am satisfied that [the
respondent] fulfils the criteria for a Mixed Cluster B
Personality Disorder, predominantly antisocial with elements
of narcissism. It is likely that he has some degree of sexual
deviance based on the history of sexual preoccupation and the
nature of the offences. In the absence of further information, a
provisional diagnosis of Sexual Sadism appears appropriate.
RISK ASSESSMENT
179. Refer to Appendix A in relation to the assessments listed
below.
Static – 99R
180. The Static-99R is an actuarial risk assessment tool which
positions offenders in terms of their relative risk for sexual
recidivism based on commonly available demographic and
criminal history information that has been found to correlate
with sexual recidivism in adult male sex offenders.
181. The instrument places offenders in risk groups relative to the
recidivism rates of the reference population (North American
sex offenders).
182. The authors note that the information provided by the Static-
99R can be thought of as a baseline estimate of the risk of new
sexual charges and convictions which can be used to guide
treatment supervision strategies designed to reduce the risk of
recidivism (Static-99R coding rules revised 2016).
183. The Static-99R does not measure all relevant risk factors and
[the respondent’s] recidivism risk may be higher or lower than
that indicated by the instrument based on factors not included
in this tool.
29 T-27 line 43 to T-28 line 15.
-- 18 of 36 --
19
184. [The respondent’s] Static-99R score was 8 which places him
in the “well above average risk” group.
The Hare Psychopathy Checklist (PCL-R)
185. This is a symptom construct rating scale utilising clinical and
collateral information to assess an individual on 20 items
relevant to the construct of psychopathic personality. The
PCL-R has been validated for adult males in forensic settings.
Psychopathy has been correlated with significantly higher
rates of sexual and violent recidivism compared to non-
psychopathic offenders.
186. Because I did not clinically assess [the respondent], I cannot
use this instrument. However, I note the ratings of previous
assessors have confirmed the presence of Psychopathic
Personality. There is nothing in the clinical history and
documentation that is inconsistent with this finding.
RISK STATEMENT
187.
Propensity to reoffend Estimating [the respondent’s] drivers to reoffend is
hampered by his refusal to acknowledge his sexual
offences or discuss them in any detail. Based on
historical information and prior assessments, he
fulfils the criteria for Psychopathic Personality. He
has a history of sexual preoccupation and has been
found guilty of sexually violent offences that violate
the incest taboo. The history is suggestive of Sexual
Sadism. It appears that he still has a significant sex
drive, masturbates regularly in jail and was found to
have pornography in his personal belongings in
2017.
As has previously been noted, the combination of
Psychopathy and Sexual Sadism is associated with a
high risk of future sexual violence. [The respondent]
has displayed an ongoing antipathy towards women
with shows of verbal and physical aggression
directed at women whilst in custody. He refuses to
accept responsibility for his offences, shows no
evidence of remorse or empathy and continues to
justify his use of violence.
-- 19 of 36 --
20
Pattern of offending [The respondent] has been convicted for an
attempted sexual assault during a break and enter
which also involved physical violence. It is likely
that this was opportunistic. The index offences
involved the use of physical and psychological
coercion along with credible threats of violence to
force his female partner into deviant sexual acts. He
also exposed his partner’s 9 year old son to
pornography and both non-contact/contact sexual
offences involving the child’s mother whilst under
duress. Future sexual offences are likely to include
sadistic elements, such as the use of violence,
humiliation and control. The offences may be
opportunistic but are more likely to involve sexual
partners or women familiar to him who are
vulnerable to physical and psychological coercion.
The victims may include the children of his sexual
partners; opportunistic offences against other
children cannot be ruled out.
Attempt to change [The respondent] has made no attempts to address
his sexual offences. Whilst he completed the GS:PP
in 2016, he adamantly maintained his innocence,
appeared to manipulate the group process and
avoided any discussion about his offending
behaviour. His claims that he has been refused
access to treatment programs appears disingenuous
and there is an underlying lack of motivation to
engage in treatment. More recently he has refused to
attend HROMU case management meetings,
external risk assessments and attempts at
motivational interviewing. He has refused offers of
placement on the CSCP program.
Effects of treatment
programs
[The respondent] has completed a Low Intensity
Substance Abuse Program and an Anger
Management Program early on in his incarceration.
It is possible that these programs may have had
some impact on his attitudes towards substance
abuse; certainly, there has been no recent evidence
of drug use whilst in custody. I suspect that he did
not meaningfully engage in the Anger Management
Program.
188. Based on the available documentation it would appear that [the
respondent’s] unmodified risk of committing further sexually
violent offences on release remains high.
189. There is nothing in the available material which would support
a dissenting opinion in regard to the low likelihood of his
compliance with a supervision order in the community. If
anything, it appears that [the respondent] has now resigned
himself to remaining in jail. This is reflected by his refusal to
engage in risk assessments or treatment programs. He has
-- 20 of 36 --
21
identified no supports in the community and has volunteered
no new plans for release or a relapse prevention strategy. There
appears to have been no positive change in his attitudes or
behaviour since the last annual review.
RECOMMENDATIONS
190. Without any indication of attitudinal change or developing
insight, it is difficult to recommend [the respondent’s] release
from custody on a supervision order. Due to his high levels of
psychopathy and antisocial narcissism, [the respondent] is
unlikely to tolerate the restrictions of a supervision order.
Given his resignation to remaining in custody, lack of
community support and absence of any meaningful or
achievable goals, there is little to motivate him to remain
compliant with community supervision. It is probable that he
will seek out sexual partners (despite his antipathy towards
women, he appears to have maintained contact with females
outside of the jail) and will most likely resent any attempts at
Corrections to regulate or supervise this. The threat of
returning to custody may not be sufficient to prevent him from
acting on sadistic sexual impulses. He also represents a more
general risk of aggressive and threatening behaviour directed
at female Corrections staff.
191. As other assessors have concluded, [the respondent’s] risk
cannot adequately be appreciated nor managed until he
engages meaningfully in some form of offence specific
treatment, either in a group or individual setting. A program
addressing violence, such as the CSCP, remains a potential
entry point for [the respondent] to address his general and
sexual violence risk. A valid alternative would be individual
therapy with a skilled clinician whilst in custody. As Dr Moyle
points out, such therapy is unlikely to provide short term
benefit and must be seen as part of a longer term strategy to
address [the respondent’s] risk.” (Emphasis in original)
[31] The respondent also refused to participate in the psychiatric risk assessment by Dr
Moyle and Dr Moyle also prepared a report based on the material supplied to him.
[32] Dr Moyle, in his report, identifies the relevant risks and concludes as follows:
“60. [The respondent] will not allow psychiatric examination by
myself. It is likely from comments made that psychiatrists all
lie when they do not accept his statements of innocence, and
repeated accusations of ‘racism’ to account for his ongoing
detention, that he projects responsibility away from concern
about his behaviour, onto a 'racist' society. He doesn't wish
psychiatric analysis exploring an understanding of his
offending behaviours and risk.
61. Addressing the issue of sexual offending, in his criminal
history is an offence involving a break and enter when he tried
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22
to assault and remove the clothes of a female victim, that
would be counted as his first sexual offence prior to the index
offending against his partner 12 years his senior, against whom
he would use physical assaults and weapons to express violent
urges and generate pornography, including stabbing her with a
garden fork if her pornographic performances were not to his
standard. There was a prolonged period of assaults in that
relationship. Her, (possibly their), pre-pubertal child (8 to 9
years old) was used in the manufacture of the pornography.
There was no collateral evidence in his favour for his account
of the violence being motivated by his punishing her for
sexually abusing her child, with all collateral information from
statements of past partners, the boy in question, and the female
victim, attesting to his violence and sexual violence in
relationships, and there was information of him having the
child fellate him. For the maintaining a sexual relationship
offence he got a ten years sentence, for the grievous bodily
harm and other offences against his partner he got a further six
years, coming to 16 years in total.
62. Psychiatric assessments in the past have failed to find any
mental illness contributing. Nor is there a clear developmental
history that provides an understanding of his criminal career
and sexual offending. It seems the evidence was that he was
trying to establish a pornography business at the material time.
All psychiatrists in their assessments have used the concept of
psychopathy and found that he meets the criteria in North
America for such a term to be used.
63. This concept describes a group of people who may enter
custodial mental health or criminal jurisdictions repeatedly
and show no signs in the institutions of mental illness, despite
at times seeming so ill by their behaviour in the community.
64. In institutions they are often discharged, only to return, and in
group settings they may either disrupt the group process or
alternatively con and manipulate, often siding with the
facilitators to get good reports that allow early release, only to
reoffend.
65. Over three decades ago Canadian psychologists on a relatively
unsophisticated global review, found that such people are more
likely to reoffend if they receive treatment, than if they do not.
Subsequently, that conclusion has been brought to question,
but in general they are considered hard to treat in group
settings and individually using traditional therapeutic
approaches. They seem to lack the empathy and attachment
feelings that allow such approaches to be used. None the less,
increasingly approaches to treatment of such people is heading
back towards more dynamic understandings.
66. Penal treatment of such individuals has to some degree been
based on assessing risk needs and responsivity, an approach
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23
defined by a couple called Andrews and Bonta decades ago.
Risk assessment and management becomes a vitally important
part of overseeing and treating such individuals.
67. Looking at sex offenders in general there were many reviews
from the late 1980's through the 1990's suggesting little
efficacy in treatment programs, as applied then. However, a
major English and non-English speaking review of the
literature out of Germany from Losel’s department did not find
a lack of efficacy for treatment, but did find limited efficacy.
Many others such as Bill Marshall's unit in Ontario Canada,
similarly report some efficacy of interventions. The large
multinational meta-analysis initially reported biological
treatments to lower sexual interest to have the highest efficacy,
but a subsequent review by Losel’s group noted that when
treated biologically in psychiatric services, they were treated
using a multidisciplinary approach, compared to the other
psychosocial approaches. Therefore, it seems reasonable to
conclude that approaches that offer biological, psychosocial
and behavioural treatments with monitoring and supervision
and victim protection strategies are most likely to yield a
modest reduction in recidivism as the end point.
68. Therefore, neither psychopathy nor sexual offending per se
lack therapeutic approaches to their management but like
mental illnesses they are hard behaviours to reliably influence.
69. Therefore, in [the respondent’s] case it is sad to see him
rejecting or rebelling against interventions and the word
‘institutionalisation’ seems to have come up regularly. For his
part his recalcitrant statements that he will live in jail and die
in jail due to racism, seems to suggest that he has adapted to a
prison lifestyle and cannot conceptualise and work towards a
positive life out of jail with the help of the staff of corrections
and mental health professionals. Until this attitude changes, I
see little prospect for a change in the risk factors.
70. There are some specific issues that apply to his case to be noted
when doing clinical and structured risk assessments.
• His age is now forty-six and therefore he is likely to still
have active sexual interest.
• He has a significant general criminal history when not in
jail.
• He has a history of drug and alcohol use disorders including
amphetamines, alcohol and to some degree marijuana.
• He has been heard to use derogatory and abusive comments
to women while in jail.
• He continually denies the offending behaviours.
-- 23 of 36 --
24
• In jail he has problems getting and maintaining
employment, as he did in the community. He has done
vocational educational programs and plans to set up
businesses without experience of successfully doing so.
• He has breaches in custody.
• The judge hearing an appeal refused permission for the
appeal on grounds that any appeal would be unsuccessful.
• He lies in stating he has not been offered interventions and
there is an affidavit from Corrections listing a very large
number of offers, including attempts to engage and
motivate him. He says he will lie to get through programs
if forced onto programs.
• There is the suggestion by Dr’s Sundin, Beech, Grant and
myself that there may be a sexually sadistic element to his
sexual interest.
• Clinically he suffers a personality disorder with antisocial
and narcissistic elements and polysubstance use disorders.
• The use of violence seeming to be gratuitous leads to the
possibility of sexual sadism. He enjoys older more
experienced partners.
• He spent a long part of his sentence in Secure Units.
• In jail he threatens violence through to murder should his
wishes not be met, such as having a single cell. Some such
threats involve a stated intent to accumulate a large number
of weapons to use in the community.
• He was accused of once man handling a female visitor and
seems aggressive to inmates and verbally aggressive to
staff. This is especially if his wishes are not met. Recently
officers have suggested that breeches [sic] are heard by
male officers only.
• He fails to come up with a realistic release plan that includes
minimising risk.
• In paragraph 22 of this report I list the many clinical
elements consistent with psychopathy that would have to
[be] overcome by him to learn to lower his risk. All
psychiatrists rate his level of psychopathy as reaching north
American levels.
• Dr Beech did not find any medical evidence for any
problem requiring heavy narcotic analgesics that he takes in
prison. There is no medical report. He uses heavy drugs.
• I found no evidence of stable friendships or financial
support for offspring.
-- 24 of 36 --
25
• He continues to have active sexual interest as seen by the
pornographic material stored in custody. I wondered
whether medicines to help lower his sexual arousal and
anger, may help him engage with mental health
professionals.
• There is nonadherence to Court Orders in the past.
• There is a question of whether he has visual and hearing
problems.
• I recommend an offer to be there, if he wishes to take the
offer up, for him to receive treatment by experienced
forensic psychologists and psychiatrists.
• While positive most of the time, he can be offensive,
abusive, resistant to instruction and have prisoner to
prisoner confrontations; all decreasing in frequency as he
ages.
• I had to accept the findings of some of the risk instruments
done by others. The most common instrument used in sex
offender treatment programs here and elsewhere is the
STATIC 99-R where he poses a well above average risk of
sexual recidivism. Substance abuse, psychopathy and
potential sexual deviance is the most dangerous clinical
combination for reoffending in a violent, dangerous sexual
manner.
• There is little sign of change and no attempt on his part to
reduce risk.
• Most likely victims would be women partners and children
in their care. He is rigidly proud and becomes agitated and
aggressive if his wishes are not met. His wishes will not
always be met in the community. In the past he has used
drugs and alcohol, violent behaviours and violent sexual
behaviours, when in such a state of mind. He needs his will
to be paramount.
• I gave reasons for concluding that he is unlikely to comply
with conditions of a Supervision Order (paragraph 30 of my
original report).
• Corrections do continue to offer cognitive self-change
treatment.
• After 3 years of continuing detention and he remains at well
above average risk of reoffending.
• Aside from assessing his hearing and other sensory
modalities, continuing to offer mental health professional
care seems appropriate, especially if that mental health
professional could be consistent and work with him in
moves towards community reintegration. Such a forensic
-- 25 of 36 --
26
mental health professional would deal with his sexual
attractions, intimacy issues, and he was given regular time
with a psychologist. He had previously been treated by a
well-regarded colleague, Dr Madsen, who tried
motivational approaches apparently unsuccessfully.
• I concluded he seems to give the court little option but
continuing Detention Orders.
• Her Honour Justice Wilson gave her decision on the 13th
May 2019 for a continuing Detention Order, recalling
Justice McMurdo’s 2015 comment ‘I have not seen a case
in which the conduct of the accused is worse than this’; and
comments on elements of sadism and paedophilia; and that
his denial and non-engagement in necessary treatment
programs adds to the unacceptable risk to the community.
Other judges have recommended engagement in High
Intensity Violence programs, as well as High Intensity Sex
Offender Programs. He was not considered to be likely to
reliably inform a supervisor of important matters that would
increase his risk of re-offending.
• Since the hearing he has declined or resisted case
management meetings.
• He resists at times (e.g. 14 July 2019) to take his medicines,
only to demand that medical staff attend him in his cell with
treatment. Such behaviour looks dominating, rebellious and
likely to reflect little hope he will adhere when less securely
overseen.
• His behaviour has been repeatedly challenging and at times
oppositional since last years’ review. Such behaviour has
continued through to December 2019.
• He had a visitor who scanned positive to GBH, but the visit
could go ahead as it was non-contact.
CONCLUSIONS
71. [The respondent] has repeatedly rated above the North
American standard for psychopathy. In recent times he has
repeatedly refused to engage with Court appointment [sic]
psychiatrists to allow a psychiatric risk assessment. He has
been repeatedly assessed as a well above average risk of sexual
reoffending, where the average risk is around 16%. His level
of risk would be getting closer to 50/50. He has failed to
engage in individual or group treatment programs and
continues to deny his offending. He maintains a dominant,
unattached relationship with helping agencies and those who
supervise detention, seems to have an unclear identity, he uses
his behaviour (especially threatening behaviour) to get what he
wants, he continues to threaten extreme violence including
storing multiple weapons to use, he expresses repeatedly the
-- 26 of 36 --
27
thought that a racist society is likely to have him living in jail
and that is not an outcome that he opposes. Therefore, he
seems to be a highly institutionalised, aggressive man who
rates highly on psychopathy, who uses and abuses violently,
sexually and otherwise those in his sphere of influence in the
community. From reading the documents it appears that he
sees himself at high risk of extreme violence if released into
the community and he is seen as at very high risk of sexual
violence if released into the community. There are no clinical
factors favouring a Supervision Order with graded release into
the community to be considered.
72. It is hoped that with advancing age he will mellow and start to
accept that both Corrections and mental health professionals
are there for him to use as a guide on how to survive safely
outside of a jail. There is no evidence he is doing so at the
present time.
73. Therefore, for these reasons, it is my opinion he poses a well
above average risk that he will commit another serious sexual
offence;
I. If released from custody; or
II. If released from custody without a Supervision Order being
made.
74. I cannot envisage any conditions on his Supervision Order that
are likely to be met by [the respondent] if he is released on a
Supervision Order. It is clear in custody, even in the simple
process of getting his regular medicines is fraught with
difficulty with angry rejection, oppositional behaviour,
defiance if angry, and going his own way, rather than as
directed.
75. I can only recommend that ongoing offers of attendance with
a forensic mental health professional that is interested in
hearing from him of any goals he wishes to reach that include
release to community. Once [the respondent] expresses that as
a goal, the mental health professional would be in a position to
look with him at the steps he is going to have to take to achieve
that goal. Failing that I think ongoing supervision in custody
seems the only approach likely to manage his aggressive
behaviours.”
Updated facts
[33] The facts remain largely the same as those considered in the original judgment of
PD McMurdo J and subsequent reviews. In particular, the respondent:
(a) continues to maintain his innocence in relation to the charges of which he was
convicted at trial, being the index offence; and
-- 27 of 36 --
28
(b) remains an untreated sex offender and has not engaged in programs that have
been identified in the previous reviews.
[34] Counsel on behalf of the respondent submitted:
“22. Once again, little has changed in the last twelve months. The
Respondent has belatedly nominated an accommodation
address that he wishes to reside. The initial investigation of
that address appears to be promising.
23. Queensland Corrective Services will need to investigate the
address and reach their own conclusions. The psychiatrists
will need to be cross-examined as to whether this reduces the
risk and if so to what extent.”
[35] At the hearing of the application on 1 June 2020, the respondent relied on two short
affidavits, the first being the affidavit of Mr Tai, a solicitor with Ashkan Tai
Lawyers, on behalf of the respondent. The affidavit states:
“4. It was explained to [the respondent] what the standard terms
of a supervision order under the Dangerous Prisoners (Sexual
Offenders) Act 2003 were like.
5. [The respondent] told me that:
(a) He would be willing to comply with any orders of a
supervision order;
(b) He nominated Jaishee Nath, of [redacted address] as a
long term friend who was willing to let him reside at her
house with her husband and two adult sons;
(c) He is in regular telephone contact with Ms Nath;
(d) He gave his full permission for Queensland Corrective
Services to discuss his case with Ms Nath; and
(e) He would be prepared to give evidence at the hearing of
this matter that he was prepared to abide by the conditions
of a supervision order.”
[36] The second affidavit, being an affidavit of Ms Nath, deposes to her knowing the
respondent for approximately five years. Ms Nath states that she resides with her
husband and two adult sons and would be happy for the respondent to reside with
her and her family.
[37] Prior to the hearing, Queensland Corrective Services were unable to provide a
suitability assessment of the proposed residential address.
[38] However, Dr Moyle and Dr Arthur attended the hearing and gave evidence and were
cross-examined in relation to the proposed residential address and whether these
additional facts altered their views at all.
-- 28 of 36 --
29
Oral psychiatric evidence
[39] At the hearing on 1 June 2020, Dr Moyle and Dr Arthur maintained their views that
the risks identified in respect of the respondent were not reduced to an acceptable
level by the proposed residential address.
[40] Dr Moyle gave oral evidence at the hearing on 1 June 2020 as follows:30
“Could you please outline for the court the basis for that finding and
around his level of risk and what is needed to enable that risk to be
managed or reduced?---Certainly. [The respondent] has a long
history from childhood to the present incarceration of substance abu
– abuse and dependence involving alcohol, a little bit of marijuana
and some amphetamines. He has a long history of – from childhood
through to adulthood of criminal offending of leaving home at a
young age, of – and I – most of the history that is of concern relates
to violence and sexual violence, including a prolonged period of
time from ’91 when he met an older partner till the later 1990s when
he was arrested, against a partner which he committed serious
violent harm, causing brain damage and a lot of other injuries, and
against a child from six till nine years. The child was nine years of
age, I think, at the time of his arrest. And he was convicted of
maintaining a relationship with the child and of serious sexual
offending.
[Dr Moyle continues] [The respondent] has a personality with
prominent antisocial and narcissistic features. He requires people to
accede to his wishes or he will get angry. And the community, if he
gets angry, he will drink and – and if necessary, to get his wishes
met, he will use violence and – and certainly threats of violence and
actual violence. And his wishes include wishes for sexual acts to
occur. His behaviour in jail has not shown any change in his need
to be dominant, having his wishes acceded to and at times, even to
the recent times, he gets really quite enraged if people go against
him.
[Dr Moyle continues] He has been offered numerous programs to try
and address violence. He attended one that he did some partial
contributions to. But otherwise, he hasn’t engaged in the main
therapeutic programs that are – that he was required to maintain,
including high intensity violence programs, high intensity sex
offenders programs and the pathways he needed to update his – his
substance abuse programs. He’s been offered individual assistance
with numerous psychologists, some very well-regarded
psychologists in the field who are very happy to help, try and help
people such as [the respondent]. He – he – they have not survived
the – the treatment process.
[Dr Moyle continues] So [the respondent] has failed to address the
core issues as to why he’s in custody over this time, has continued
with his narcissistic need for dominance and control and to have his
30 Note: the below response has been divided into paragraphs for ease of reference.
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30
wishes met and will use threats in custody, such as, you know, ‘I
will murder somebody if you double me up with somebody’ or
threats to acquire huge numbers of weapons if released and go to the
nearest police station. So he – there’s little to suggest that he has d
[sic] on himself and reflected on the behaviours for which he is in
custody for and has come up with any reasonable plan on how he’s
going to deal with his frustrations, his – to his wishes and – and how
he’s – and in a way that isn’t going to place the community at risk
of violence and sexual violence. [Dr Moyle concludes response]
Okay. And at what level did you assess his current risk of
reoffending sexually?---I assessed it as high.
Now, you’ve referred to the fact that he has refused to undertake the
necessary treatment programs. Is it reasonable or is it possible for
his risk to be managed without him undertaking or engaging
appropriately in that form of treatment?---Anything’s potentially
possible, but I can’t envisage a set of circumstances where, in the
community, he will adhere to any conditions when in – in custody,
he has trouble adhering to the norms of doing what he’s told. For
instance, he – he might do – be due medicine, he might refuse it and
then demand that it’s brought to him down in his cell. He might –
the psychologist might engage, but he might then get enraged with
them and – such that they have to disengage. He threatens officers
and he threatens other people. So I don’t envisage that – those
behaviours being manageable in the community. I don’t envisage
him engaging with – with programs in the community because he –
and his statements that, if necessary, if he’s forced into doing so, he
will lie, and his statements that if he’s – that he – if he has to serve
another 30 years in jail, he will stay in jail for 30 years because it’s
a racist society that’s leaving him in jail don’t suggest he’s at all
committed to – to – to changing his ways in the community. The
speed with which his anger can result – in the past, anyway – his
anger can result in drinking and – and offending is – is probably a
little too fast to be detected reliably in the community.
On what we know of [the respondent] at this point, without him
having engaged in the appropriate therapeutic programs or
treatment, do we fully understand the drivers or the reasons for the
sexual offending?---No.
Is it then possible to consider terms of a supervision order if we don’t
understand those core features of his offen – past offending?---
Corrections would have a very difficult job formulating a series of
conditions under which a supervision order might be applicable.
Now, Dr Moyle, you were provided with copies of two affidavits
that were filed by leave this morning. You received those two
affidavits, one of Mr Tai and one of Ms Nash?---I did.
And you considered the contents of those affidavits?---Yes.
Do they alter your current view as expressed in the report and as
outlined here?---No, they don’t.
-- 30 of 36 --
31
So, on your view, further treatment needs to be undertaken while
[the respondent] remains in custody?---I think he needs to undertake
enough of treatment such that he can formulate a management plan
that will take into account all of the factors I’ve just mentioned that
will then enable a conditional release to be viable.”
[41] Counsel for the respondent cross-examined Dr Moyle in respect of whether the risks
could be ameliorated by appropriate conditions in a supervision order and Dr Moyle
gave evidence on this point as follows:
“In particular, you’re aware of electronic monitoring, which
involves the wearing of an ankle bracelet which can be tracked
by Queensland Corrective Services?---Yes.
Why wouldn’t that be very effective in ameliorating his risk?---
Because what we’re dealing with is a man who’s highly reactive to
any disappointments, a man who’s proudly rebellious and highly
reactive to any disappointments. If he gets into disagreement, gets
angry, he doesn’t – even in jail, he doesn’t modify his behaviour to
the conditions. The fact that he’s wearing an ankle bracelet won’t
stop him taking off to a – to get some booze and drinking it, cutting
the ankle bracelet off, going and getting some alcohol and – and
violently assaulting somebody, sexually or physically.
I’m sorry, could you just say the last sentence - - -?---Sexually or –
sexually or physically, sorry. I wasn’t speaking loud. My apologies.
It won’t stop him from finding ways that he will show that he – I
mean, he – he does what he – he requires people to accede to his
wishes. If he – if they don’t, he will then demonstrate aggressively
what that – what they have to do, either by threats or – or getting –
intimidating people. He – in – in custody. I’ve got no reason to
believe he won’t choose to go his own way when he’s not in custody
and cut off the ankle bracelet, go to a hotel, get drunk and – and –
and then assault somebody sexually or violently. There’s no – no
suggestion that he – he has learnt to modify that risk, and there’s no
suggestion he has come up with a reasonable strategy to manage all
of those risks.
…
You’re aware of standard conditions that are sometimes imposed in
these matters saying that a person released on a supervision order
must report any contact with – or sexual contact with a woman or a
woman with children or families and prohibiting people from
visiting children without permission. You’re aware of those sorts of
standard conditions?---Yeah, they are conditions.
Yes?---The issue isn’t whether the conditions are there; the issues
are how willing [the respondent] is to adhere to them, and it’s got to
be a little more than just saying, “I’ll adhere to conditions on – on
occasion.” It has to be that he demonstrates in his behaviours that
he can meet expectations of – of – of our – of our society or the – or
the places where he lives, such as in custody.
-- 31 of 36 --
32
Why would not the imposition of those conditions that we were just
discussing and the monitoring conditions together be signifi – be –
significantly ameliorate his risk of committing things like the index
offence?---Because he has trouble complying his attitudes and
behaviour to – to the wishes of – to the rules that – that he has to live
under.”
[42] Dr Arthur gave oral evidence at the hearing on 1 June 2020 as follows:31
“And, Dr Arthur, in your report, you recommend that [the respondent]
ought to remain in custody to engage appropriately in ongoing – or
treatment to meet his risk needs?---Yes.
Can you just briefly outline what those needs are and what – the risks
that are associated with those?---Well, from a sexual recidivism
point of view, the risks are – is that he’s an untreated sex offender.
On – when we look at actuarial assessments of his risk, he comes in
at way above – well above average risk. When you look at dynamic
risk factors, there are a number of relevant dynamic risk factors
which also place him in high risk. From a – a treatment perspective,
I would go even so far as to say that we haven’t really thoroughly
assessed [the respondent] yet because he hasn’t cooperated,
engaged, in a – in an assessment process, so there are many aspects
of his sexual functioning and sexual offending that we still don’t
have adequate information, and looking at his – at the previous risk
assessments, there’s been a big question mark around the possibility
that there’s the presence of – of a – a sexual sadism paraphilia, in
that he has a – a preference for sadistic sexual behaviour.
[Dr Arthur continues] Now, we haven’t been able to confirm that
because [the respondent] hasn’t engaged in any discussion and, in
fact, still is in denial and denies that he committed the offences. It’s
a huge question mark because that would place him in a category of
offenders that have – we don’t have a lot of data because we don’t
have a lot of people who study, but the data suggests that the risk of
recidivism is quite high. We also have someone who scores high on
psychopathy ratings, so he would qualify for a psychopathic
personality. That has implications not just for recidivism but also
for treatment and management. So, essentially, we – we have a man
who – what we know about him puts him in high risk. What we
don’t know about him is concerning because potentially that puts
him in even higher risk category, but we can’t find that information
out because he won’t cooperate with any form of assessment. [Dr
Arthur concludes response]
And if we look at – given the legislation, whether – there’s
remaining in custody or supervision?---Yes.
To formulate an appropriate supervision order to manage those risks
- - -?---Yes.
31 Note: the below response has been divided into paragraphs for ease of reference.
-- 32 of 36 --
33
Is that possible, given that gap of understanding of his offending
behaviours?---I don’t – I don’t believe it is possible, and I think Dr
Moyle’s already pointed out personality factors which would be
relevant to him complying with an order and – and compliance is an
issue, and when I reflected on what we know about [the respondent]
and what we know about his personality and his behaviour prior to
custody and his failures of community supervision, his attitudes
whilst in custody – he’s been in jail for 20 years now, and he’s
certainly developed a set of behaviours which have allowed him to
manage being in jail, and, like most people in jail, you adapt to your
environment, but none of those behaviours are necessarily going to
allow him to adapt to release. There’s been a question of whether or
not there’s institutionalisation, which means that he has developed
his coping strategies around the confines of jail, and that’s going to
change. He’s going to be put under a lot of pressure, a lot of
frustrations, and this is a man who doesn’t really show that he’s
developed any skills or capacity to deal with those frustrations and
those pressures. What we do know about him is that when he’s faced
with those situations, the likelihood is very high that he will engage
in acting out violent behaviours, that his narcissism will cause him
to reject supports and to reject help, and that that’ll place him in a
very dangerous position. So we don’t know enough about him to be
able to put a plan in place to contain that. We don’t know enough
about his – his – his sexuality and his presence of sexual deviancy
to contain that. If this is a man who has a sexually sadistic disorder
– and he may have had – spent the last 20 years having violent
sadistic sexual fantasies, which, under the right circumstances, he
will act out. We don’t know that because he won’t discuss it with
us, but that’s a possibility. So I – I can’t imagine a situation where
we could formulate a risk management plan to – to take care of those
contingencies.
So from that – to be able to establish or create that sort of a risk
management plan- - -?---Yes.
- - - you need him to engage in the appropriate therapeutic
treatments, whether that be group programs, individual treatment
around sexual offending, around violence, substances – you need all
of that to make sure you’ve got the necessary information to be able
to put together the plan?---Essentially, yes. Yes. And I think it’s
been decided that, probably, [the respondent] isn’t appropriate for
group therapy, certainly not sexual offender treatment programs, but
certainly individual therapy, and even motivational therapy – getting
him to a point where he’s willing to consider engaging in some form
of treatment. He hasn’t even gone to that step yet. So - - -
But, from the material, he has been offered that, hasn’t he?---
Extensively, yes.
Now, Dr Arthur, you will have seen that two draft affidavits were
provided to you at the end of last week?---Yes.
-- 33 of 36 --
34
They’ve been filed this morning. The affidavit of Mr Tai and, also,
an affidavit of Ms Nash?---Yes.
You’ve had opportunity to consider the contents of those affidavits?-
--Yes.
Do they in any way alter your opinions and recommendations as set
out in your report?---No.”
[43] Counsel for the respondent briefly cross-examined Dr Arthur who gave evidence as
follows:
“If I could summarise it in one question, it’s this: why is it that you
say that the combination of electronic monitoring, supervision as to
who he’s having contact with and a place to stay doesn’t ameliorate
his risk?---Well, we know nothing about where he’s staying. We
really know nothing about the relationship with the people who he’s
staying with, so, as Dr Moyle pointed out, until we have a suitability
assessment, I can’t really comment on that. What I would comment
on is someone who’s spent 20 years in jail and someone who’s
assessed as a high risk – in my experience, it’s unlikely that they
would be, you know, discharged from jail to a private residence. The
most likelihood would be that they would be sent to contingency
accommodation first, and that would certainly be my
recommendation in this case.”
Applicant’s submissions
[44] The applicant relied upon its written submissions which relevantly state:
“42. It is submitted that there is acceptable cogent evidence which
would satisfy the Court, to the high degree of probability
required,32 that the respondent remains a serious danger to the
community in the absence of an order made under Division 3
of the Act.
43. The psychiatric evidence identifies the risk the respondent’s
release presents as being in the moderate to high range. Any
offence, if committed, would constitute a sexual assault of an
adult female or child. The risk of psychological damage and/or
physical injury to any victim is obvious.
44. Clearly and unequivocally, the respondent presents a serious
danger to the community in the absence of a Division 3 order
under the Act. Accordingly, the decision made on 9 June 2015
ought be affirmed.
…..
51. The position remains as it was when the matter came before
the court in the second annual review in 2018.
32 See s 30(2) of the Act.
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35
52. The respondent presents as an untreated sexual offender. He
has limited or no insight into his condition and the steps he
needs to take to address his risk. He is aware of the importance
of the meaningful participation in programs offered by
Corrective Services. This was clearly an issue in the 2015,
2017 and 2018 hearings. The respondent denies the
circumstances which gave rise to his incarceration. He has not
demonstrated any emotional at [sic] intellectual commitment
to participation in any programs which would serve to
minimise the risk. His refusal to participate in any
involvement by Dr Madsen is evidence of the intransigence
that he displays.
53. On the evidence of the psychiatrists, the respondent needs to
meaningfully participate in a high intensity sexual offender
treatment program or in individual treatment prior to his
release into the community. If he did meaningfully participate
in such program or treatment, it would provide his supervisors
with more information about the offending pathways which
the respondent is likely to traverse prior to the commission of
any offence. It would enable supervision to be an effective
tool in providing adequate serious social protection to the
community.
54. Absent such participation, it is impossible, it is submitted, for
the court to be satisfied that adequate protection to the
community could be reasonably and practicably ensured by a
supervision order.
55. Taking into account all the evidence, the preference for a
supervision order has been displaced. It cannot be found in the
circumstances presented by the respondent’s presentation that
adequate protection of the community is ensured by his release
on supervision.
56. Accordingly, an order pursuant to s 30(3)(a) of the Act, ought
be made.”
Consideration
[45] The position of the respondent has largely remained unchanged since the original
application in 2015 and the reviews that took place in 2017, 2018 and 2019. The
respondent remains an untreated sex offender.
Whether the respondent is a serious danger to the community in the absence of a
Division 3 order
[46] Based on the evidence relied upon by the applicant, including the reports of Dr
Arthur and Dr Moyle and the evidence they gave orally at the hearing, I am satisfied
that there is acceptable cogent evidence which satisfies me to the high degree of
probability required pursuant to s 30(2) of the DPSO Act that the respondent remains
a serious danger to the community in the absence of an order made under Division 3
of the DPSO Act.
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36
[47] The psychiatric evidence identifies a moderate to high risk of reoffending and any
offence, if committed, would constitute a sexual assault on an adult female or child.
In the circumstances, I am satisfied that the respondent presents a serious danger to
the community in the absence of a Division 3 order under the DPSO Act and that the
decision made on 9 June 2015 ought to be affirmed.
Whether adequate protection of the community can be ensured by the respondent’s
release on a supervision order
[48] The respondent continues to deny his sexual offending and maintains his innocence
in relation to the index offence. Further, the respondent continues to refuse to
participate in programs offered by Corrective Services and also refuses involvement
on an individual basis for assessment and / or treatment by psychiatrists or
psychologists.
[49] Consistent with previous opinions, the psychiatric evidence remains that the
respondent needs to meaningfully participate in a High Intensity Sexual Offender
Treatment Program or in individual treatment prior to his release into the community.
This is important as it will also provide information that will identify what conditions
may be suitable in any supervision order to address his particular circumstances. It
is only if a full evaluation can be undertaken that a supervision order could possibly
be drafted to ameliorate the risks specifically identified.
[50] Given the psychiatric evidence, and in the absence of participation in the relevant
programs, I cannot be satisfied that adequate protection of the community could be
reasonably and practicably ensured by a supervision order.
Release on a supervision order or the continuing detention order to be maintained
[51] In these circumstances, I am satisfied that an order pursuant to s 30(3)(a) of the
DPSO Act ought to be made that the respondent continue to be subject to the
continuing detention order made on 9 June 2015.
[52] The order of the Court is that:
THE COURT, being satisfied to the requisite standard that the respondent is a serious
danger to the community in the absence of an order pursuant to Division 3 of the
Dangerous Prisoners (Sexual Offenders) Act 2003 (the Act), ORDERS THAT:
1. The decision made on 9 June 2015 that the respondent is a serious danger to
the community in the absence of a Division 3 order, be affirmed; and
2. The respondent continue to be subject to the continuing detention order made
on 9 June 2015.
-- 36 of 36 --
Official source: https://www.sclqld.org.au/caselaw/QSC/2020/164