Attorney-General for the State of Queensland v CBR [2020] QSC 157

SUPREME COURT OF QUEENSLAND CITATION: Attorney-General for the State of Queensland v CBR [2020] QSC 157 PARTIES: ATTORNEY-GENERAL FOR THE STATE OF QUEENSLAND (applicant) v CBR (respondent) FILE NO/S: No 13609 of 2019 DIVISION: Trial Division PROCEEDING: Application ORIGINATING COURT: Supreme Court of Queensland at Brisbane DELIVERED ON: 4 June 2020 DELIVERED AT: Brisbane HEARING DATE: 11 May 2020 JUDGE: Callaghan J ORDER: Pursuant to s 13(5)(a) of the Dangerous Prisoners (Sexual Offenders) Act 2003, the respondent be detained in custody for an indefinite period for control, care or treatment. CATCHWORDS: CRIMINAL LAW – SENTENCE – SENTENCING ORDERS – ORDERS AND DECLARATIONS RELATING TO SERIOUS OR VIOLENT OFFENDERS OR DANGEROUS SEXUAL OFFENDERS – GENERALLY - where application made pursuant to section 13 of the Dangerous Prisoners (Sexual Offenders) Act 2003 – where respondent prisoner convicted of sexual offences committed upon children – whether a “serious danger to the community” – whether Division 3 order required – whether a need for treatment to commence whilst still in detention Dangerous Prisoners (Sexual Offenders) Act 2003 (Qld), s 13 -- 1 of 23 -- 2 Attorney-General for the State of Queensland v Francis (2007) 1 Qd R 396, cited Attorney-General for the State of Queensland v Kanaveilomani [2013] QCA 404, cited Attorney-General for the State of Queensland v Waghorn [2006] QSC 171, cited COUNSEL: A Meisenhelter for the applicant C Reid for the respondent SOLICITORS: Crown Solicitor for the applicant Legal Aid Queensland Overview [1] This is an application made by the Attorney-General pursuant to s 13 of the Dangerous Prisoners (Sexual Offenders) Act 2003 (“the Act”). The Attorney seeks to detain the respondent in custody for an indefinite term for care, treatment or control. In the alternative, the Attorney submits that if the respondent is to be released from custody, he should be subject to such requirements as the Court considers appropriate. If such an order is not made, the respondent would be released, since he has served all of the three years of imprisonment to which he was sentenced in 2017. [2] That sentence was the most recent of three which have been imposed on the 51 year old respondent for sexual offending against children. It related to offences committed against a child who was the friend of another child known to the respondent. That other child resided in a caravan park at which the respondent was staying temporarily. [3] Previously, in May 2003, the respondent was convicted of maintaining of a sexual relationship with his step-daughter. The relationship included offences of incest, attempted rape and indecent treatment of a child (“the 2003 offences”).1 For that offence he was sentenced to nine years imprisonment with a recommendation for release on parole after serving four years. [4] In 2005 he was again convicted of sexual offending. The victim on this occasion was the daughter of his (then) girlfriend (“the 2005 offences”).2 [5] The respondent has been assessed by three psychiatrists (Dr Sundin, Dr Beech and Dr Timmins) who have provided reports in relation to the respondent’s level of risk of committing violent sexual offences in the future. [6] The psychiatrists have all concluded that without any type of order, the respondent would be a high risk of reoffending sexually. They also agree that the respondent should receive individualised treatment. 1 “2003 offences” will be used as a term of convenience. As will be seen below, the offences were actually committed between 1993 and 2001. 2 Again, a term of convenience. Likewise, the most recent offending (see [2], above) will be described as the 2017 offences. -- 2 of 23 -- 3 [7] The respondent agrees that an order is appropriate. He also allows that individualised treatment is appropriate, but maintains that it can be provided whilst he is under a supervision order, and that he need not be detained in custody for that purpose. A comprehensive draft order was submitted. It contained conditions about reporting and supervision. It proposes residential restrictions, a curfew, a monitoring direction and numerous other requirements that would undoubtedly ameliorate the risk posed by the respondent. [8] The functional issue in this application is, therefore, whether an order should be made pursuant to s 13(5)(a) or s 13(5)(b) of the Act. And that issue is to be resolved by answering the question as to whether the adequate protection of the community can be served if the respondent is released on such an order prior to his commencement of individualised treatment. Applicable law [9] Section 13 of the Act 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 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— (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; -- 3 of 23 -- 4 (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), the paramount consideration is to be the need to ensure adequate protection of the community. (7) The Attorney-General has the onus of proving that a prisoner is a serious danger to the community as mentioned in subsection (1). Serious danger to the community [10] The first determination the Court must make is whether or not the respondent will present as a serious danger to the community if the order sought is not made. That will be the case if there is an unacceptable risk that the prisoner will commit a serious sexual offence. [11] The expression “unacceptable risk” is undefined by the Act but is not a concept with which the Courts are unfamiliar. It is engaged, for example, on an everyday basis when determining applications made under the Bail Act 1980 (Qld). Its calculation involves the synthesis of competing considerations between which a balance must be struck. -- 4 of 23 -- 5 [12] The relevant risk is the risk of commission of a serious sexual offence - that is, an offence of a sexual nature involving violence, or against children - if released from custody, or if released from custody without a supervision order being made. [13] In Attorney-General for the State of Queensland v Kanaveilomani, Morrison JA observed: “[119] In deciding whether a prisoner is a serious danger to the community under subsection (1), s 13(4) requires that the court have regard to a number of matters. Whilst it is no doubt true that any psychiatrist reports will assess risk in the future, there are three matters which the court must take into account which, by their terms, look to future matters. Subsection (4)(c) requires the court to consider “information indicating whether or not there is a propensity on the part of the prisoner to commit serious sexual offences in the future”. That refers to a current propensity, but obviously in respect of future offences. The second is under subsection (4)(h) which refers to the risk that the prisoner will commit another serious sexual offence if released into the community. That clearly looks to the future, though it requires the court to make an assessment of that risk at the time of the hearing. The third is under subsection (4)(i), which is the need to protect members of the community from the risk the prisoner will commit another serious sexual offence if released. [120] In my opinion s 13 is to be construed as its plain words suggest, namely that the court’s assessment is of the prisoner’s current state and in respect of release at the time the application is determined, and not at some indeterminate time in the future. …”3 [14] As will be seen below, his Honour’s conclusion that the risk must be assessed as of now has specific consequences in this case.4 The respondent had previously made frank admissions about the 2003 and 2005 offences. Of itself, his candour at that time inspired some hope about his rehabilitation. It is not possible, now, to base an assessment of risk on the basis that he has maintained such an attitude to his offending. Detention or supervision? [15] If I am satisfied – as I will explain that I have been - that the respondent would be a serious danger to the community without a Division 3 order, the issue to be resolved is whether that order should be a continuing detention order, or a supervision order.5 In deciding between the two, the paramount consideration is the need to ensure the adequate protection of the community.6 3 [2013] QCA 404 at 32. 4 At [93]. 5 s 13(5) of the Act. 6 s 13(6) of the Act. -- 5 of 23 -- 6 [16] In Attorney-General for the State of Queensland v Waghorn McMurdo J provided further explanation as to the way in which this decision is to be approached: “[ 24] In deciding whether to make a continuing detention order or a supervision order, the paramount consideration is the need to ensure adequate protection of the community: s 13(6). The purpose of orders under s 13 is not punishment but the protection of the community: Fardon v Attorney-General (Qld). The existence of some risk of re- offending is not sufficient: the risk must be of an unacceptable order… the drastic consequences of a continuing detention order must be considered. And the objects of the Act include the provision of control, care or treatment to facilitate the rehabilitation of the prisoner: s 3(b).”7 [17] The concept of “adequacy” involves making a value judgment. There is not, and could not be a requirement that the risk of re-offending must be totally eliminated: “The Act does not contemplate that arrangements to prevent such a risk must be "watertight"; otherwise orders under s 13(5)(b) would never be made. The question is whether the protection of the community is adequately ensured. If supervision of the prisoner is apt to ensure adequate protection, having regard to the risk to the community posed by the prisoner, then an order for supervised release should, in principle, be preferred to a continuing detention order on the basis that the intrusions of the Act upon the liberty of the subject are exceptional, and the liberty of the subject should be constrained to no greater extent than is warranted by the statute which authorised such constraint.”8 [18] I have, in resolving this application, and at the urging of Mr Reid on behalf of the respondent, been particularly mindful as to the effect of the last sentence in the passage just quoted. [19] However, and because it is relevant to the way in which I will rule on this application, I at the same time heed the requirement for the chosen order to “ensure” – that is, to secure, or make sure that such protection is certain to come. Previous offences [20] The applicant has summarised the relevant part of the respondent’s criminal history in this table: 7 [2006] QSC 171 at 8 [24]. 8 Attorney-General for the State of Queensland v Francis [2006] QCA 324; (2007) 1 Qd R 396 at 405 [39]. -- 6 of 23 -- 7 Date Description of Offence Sentence 09/05/03 Brisbane District Court  1 x Maintaining a sexual relationship with a child with circumstances of aggravation;  1 x Attempted rape  7 x Incest  4 x Indecent treatment of a child under 12;  6 x Indecent treatment of a child under 16;  1 x Assault Occasioning Bodily Harm; 9 years imprisonment for maintaining sexual relationship, attempted rape and incest. 7 years imprisonment for the remaining charges. All terms were imposed concurrently with a recommendation for post- prison community based release after serving 4 years. 18/03/05 Brisbane District Court  2 x Indecent treatment of a child under 12 2 years imprisonment to be served concurrently with each other and the sentence he was currently serving. Post-prison community based release was extended by a further six months. 26/05/17 Brisbane District Court  3 x Indecent treatment of a child under 12 3 years imprisonment [21] The applicant further provided this description of the events which constituted the offending: 2003 Convictions9 • The offending occurred between December 1993 and October 2001, a period of seven years and 10 months. The complainant was aged 8 to 15 years old at the time of the offending and the respondent was her step-father. • The complainant’s mother first met the respondent in 1993 and formed a relationship with him. In January 1994 he moved in with the family and married the complainant’s mother in 1999. In March 2001 they separated. • The conduct began with the respondent touching the complainant’s genital area and then moved to digital penetration of her vagina. The attempted rape involved the respondent tying the complainant to the bed, initially the complainant thought it was in the context of a game, but there was a point where she began to resist. She tried to kick him away but he continued. • The assault charge occurred when the complainant tried to resist the respondent’s 9 Footnotes omitted. -- 7 of 23 -- 8 advances as he tried to undress her. He slapped her across the face. • In some of the counts of incest the complainant was held down as she struggled, or her arms were pinned by the respondent or her hands were held by him. On other occasions he would begin intercourse when she was asleep. • In relation to count 18, a count of incest, the complainant states that the respondent assured her it would be the last time, but counts 19 and 20 involve other acts of sexual intercourse after that occasion. • After the complainant made a formal complaint to police the respondent was interviewed. He admitted to having a strong bond with the complainant and that she had looked upon him as a father. He denied having sexual intercourse with her and denied all of the specific allegations put to him. 2005 Convictions • The respondent entered pleas of guilty on the morning of the day on which his trial was due to begin. His plea followed an alteration in the charges - from two counts of rape to two counts of indecent treatment of a child. • This offending occurred between the 1st of May 2003 and the 9th of May 2003, while he was on bail and during the week before the respondent was sentenced for the sexual offending against his step-daughter. • This complainant was 10 years old at the time of the offending and the respondent was the boyfriend of the complainant’s mother. He had lived with the family for about 16 months before the offences. During that time, the complainant called the respondent ‘Dad’. • The conduct consisted of simulated intercourse upon the complainant while neither of them were clothed. The complainant states the first occasion occurred when she was asleep in her room which she shared with her younger sister who was in a separate bed. • On the first occasion the respondent entered the bedroom and the complainant woke up when the covers were removed from her. She recalls the respondent was already naked when he removed her pyjama bottoms, lied on top of her and then rubbed his genital area over hers. She recalls he told her not to tell anyone. • The second occasion mirrored the first and occurred either the next night, or the night after the first time. There was no ejaculation or penetration on either occasion. 2017 convictions – currently in custody • The respondent was convicted after trial to three counts of indecent treatment of a child under 12 years old. • The complainant in this case was a 10-year-old girl who lived with her family at a caravan park at Deception Bay. She was also friends with another girl who lived at the caravan park with her mother. The respondent knew the mother, and -- 8 of 23 -- 9 on the night of the offending was also staying at the caravan park. The complainant was sleeping over at her friend’s place on the night. • The respondent entered the room where the two girls were sleeping and the complainant woke up to find the respondent holding her hand against his exposed penis. He rubbed her hand against his penis and also placed his hand on her leg and tried to move it towards her vagina. She hit the respondent’s hand away and he kissed her on the cheek. [22] The accuracy of this summary has not been disputed by the respondent. Pleas of guilty were entered in relation to the 2003 offences and the 2005 offences. [23] The 2017 offences were denied. One trial concluded with a hung jury. The respondent was convicted at a retrial. In the face of those verdicts, he continues to deny responsibility for those offences. Parole [24] The respondent was on parole between October 2010 and 2016 in relation to the offending against his step-daughter. He completed that parole without intervention. To the extent that any concerns about his behaviour were identified I do not regard them as significant. Completion of programs [25] The respondent did, following his convictions on the 2003 and 2005 offences, take steps towards addressing his offending behaviour. Whilst in prison he completed what is known as the “Getting Started: Preparatory Program” (“Getting Started”). [26] This is a program which serves as a precursor to engaging in therapeutic treatment programs for sexual offenders. It introduces offenders to treatment and group processes.10 It was completed in December 2007-January 2008. [27] During this program the respondent was considered open and honest about his offending behaviours against both victims. It was recommended that he participate in the Medium Intensity Sexual Offender Program (“MISOP”). [28] The respondent did that between 4 February 2008 and 21 July 2008, attending 39 sessions.11 [29] During that program the respondent admitted the offending against his two victims. He was noted to have developed insight into his high risk factors and was able to identify appropriate interventions. He acknowledged a need to continue to monitor his problematic thinking and a need to ensure that he is not left alone with children. [30] It was considered that it was likely that he had reduced his risk of re-offending. 10 Affidavit of Christine Tunbridge sworn 26 November 2019, page 2 [8]. 11 Affidavit of Martina Gavin sworn 26 November 2019, page 3 [8]. -- 9 of 23 -- 10 [31] Between 12 January 2009 and 14 April 2009, the respondent completed a further program known as the Sexual Offending Maintenance Program (“SOMP”).12 [32] It was noted that throughout this program the respondent was able to acknowledge his risk factors, areas for improvement and the importance of being vigilant in monitoring his thoughts, feelings and behaviour. [33] Overall his participation was positive. It was recommended that he participate in the SOMP in the community. [34] He did that, after his release, between 18 January 2011 and 29 March 2011. He was described as an outstanding group member who appeared to possess personal insight and demonstrated good understanding of the facts related to his offending.13 He appeared committed to maintaining positive change and he had a revised “New Future Plan”14 which was considered to be thorough and robust. [35] The programs mentioned so far were, it might be noted, completed in response to offending that had been admitted by pleas of guilty. Those admissions no doubt paved the way for the positive endorsements he received. [36] It has been a different story following the respondent’s most recent sentencing for the 2017 offences. [37] He again participated in the “Getting Started” program, this time between 31 October 2017 and 21 December 2017. However, he maintained his denial in relation to the offences for which he was sentenced. [38] That denial presented, and continues to present as a barrier to future participation in certain sexual offending programs.15 [39] As noted above,16 the Court’s assessment must be of the prisoner’s current state and is made in contemplation of his release at the time the application is determined. It follows that any conclusion that might have been drawn from the positive reports in 2008, 2009 and 2011 must now be modified in light of the more recently received information. [40] All of that earlier material still should be considered,17 but reviewed with the benefit of the most recent appraisals that have been received from the three psychiatrists. These reports have been prepared specifically with a view to addressing the current issue of relevant risk. 12 Affidavit of Nicola Carah sworn 5 December 2019, page 3 [8]. 13 Ibid, exhibit NC-1. 14 Ibid, NC-2. These are action plans written by offenders themselves which set out their strategies for managing risk, warning signs in regard to high risk behaviours, future goals and how they plan to cope with difficult situations. 15 It need not, however, foreclose the possibility of individualised treatment. 16 At [13]. 17 See s 13(4)(e)-(f) of the Act. -- 10 of 23 -- 11 Psychiatric Reports Report by Dr Evelyn Timmins dated 24 March 2019,18 and clarification dated 7 May 202019 [41] Dr Timmins interviewed the respondent on 28 February 2019 at Wolston Correctional Centre for the purpose of providing an independent risk assessment report. [42] During that interview, Dr Timmins obtained a personal history from the respondent. I interpolate that this process was repeated by the other Doctors who examined the respondent, and I will not reiterate the detail in these reasons. I have, however, taken it (and all the other material relevant to the respondent’s prospects of leading a productive life if released) into account in my assessment of his antecedents.20 In particular, I have had regard to the fact that he seems to have a solid history of employment. This must be a relevant factor – and one that weighs in the respondent’s favour - when considering the effectiveness that a supervision order might have. [43] It can be noted that he witnessed his maternal grandfather sexually abusing his younger sister on more than one occasion when he was about three years old. It is open to speculate about the effect that such a horrific experience must have had on one so young, but none of the doctors purported to draw any particular conclusion from it. [44] The respondent has married twice. He became a father at 21 years old and his children from that first marriage are now 27 and 29 years old. He has not had any contact with them since 2002. He divorced after approximately five to six years. [45] He married the mother of his first victim in 1993. They divorced in 2004. [46] He acknowledged the details of the offending which occurred between 1993 and 2001, to which, as I have noted he pleaded guilty. He did, however, deny ever tying the complainant up.21 [47] Importantly, he denied offending in relation to the 2017 offences, stating “there was no way I was ever going back to what I did”.22 [48] Dr Timmins included in her report this extract from the “Sexual Offending Program Assessment Form dated 26 November 2007: “He reported he would masturbate every night when he was with his second partner. He reported he would regularly rent, buy and/or borrow pornographic movies and watch them with his sexual partners. He reported that his second partner did not mind the vulgar side of pornography, and they enjoyed watching movies with a straight stranger sex theme. 18 Affidavit of Dr Evelyn Timmins Sworn 7 November 2019. 19 Affidavit of Emily Cooper affirmed 8 May 2020, exhibit ESC-11. 20 s 13 (4) (g) of the Act. 21 Report of Dr Evelyn Timmins, page 11 line 458. 22 Ibid 11 lines 540 – 541. -- 11 of 23 -- 12 [The respondent] reported that he found young female children sexually attractive because they are virgins, pure, and untouched and would engage in sexual activity with children for his own sexual gratification. He found these thoughts and behaviours disturbing and caused great stress and led to the diagnosis of generalised panic disorder. It was thought [the respondent] had clear evidence of multiple sexual preoccupations. These being the regular use of pornographic material, self- reported difficulty controlling his sexual impulses towards children and disturbing sexual thoughts resulting in the diagnosis of generalised panic disorder. It is further noted [the respondent] reported that children aged as young as 14 can actively seek out sexual gratification from adults. He reported that his stepdaughter would lay in bed, naked, waiting for him to engage in sexual relations. Further, he reported that his stepdaughter, even when aged under 12 years, wanted sexual relations to the same degree as himself.”23 [49] From this extract it is possible to measure the candour of which the respondent was capable in 2007. It is consistent with his pleas of guilty to the earlier offending. [50] However, Dr Timmins noted that the respondent now tended to avoid talking about his offending behaviour. He also denied paedophilic urges towards children,24 going so far as to say that “he was always attracted to adult females, never children”.25 [51] It was, therefore, unsurprising to read that Dr Timmins thought the respondent’s insight into his offending appeared somewhat limited.26 [52] In terms of a diagnosis, Dr Timmins noted that the respondent most likely meets the criteria for Paedophilia, non-exclusive, sexually attracted to pre-pubescent and pubescent females. There is also evidence of a Mixed Personality Disorder with Antisocial, Narcissistic and Avoidant personality traits.27 [53] Dr Timmins used a number of risk assessment tools in determining the respondent’s risk of sexually reoffending.28 [54] The “Static 99R” is a “risk assessment tool” that provides an assessment based on an individual’s history of offending.29 It itemises a list of features that might attend such offending and an individual is “scored” by reference to the presence or absence of those features. A partial score can be allocated in situations which might be ambiguous. A score might therefore be zero, in a case where such features are completely absent. Dr Timmins had seen a score as high as eight. Adopting an approach that involved some caution, she scored the respondent at five, which 23 Ibid 28. 24 Ibid 15. 25 Ibid 6 lines 260-261. 26 Ibid 15, line 677. 27 Ibid 35. 28 Ibid 37-38. 29 T1-24 – T1-25. -- 12 of 23 -- 13 deemed him to be an “above average” risk. A score of six would have placed him in a higher risk category. [55] The Risk for Sexual Violence Protocol (“RSVP”) is a “next generation risk assessment tool”. It is “a bit more sophisticated, because there’s the dynamic factors in it”.30 It too identifies the presence, absence or partial presence of features relevant to the assessment of an individual. [56] In the respondent’s case, a number of relevant features were present, including: • Chronicity of sexual Violence; • Diversity of Sexual Violence; • Physical Coercion in Sexual Violence; • Psychological Coercion in Sexual Violence; • Extreme Minimisation or Denial of Sexual Violence; • Problems with Stress or Coping; • Sexual Deviance; • Problems with Intimate Relationships. [57] The respondent also had partial scores for: • Attitudes that Support or Condone Sexual Violence: • Problems with Self-Awareness; • Problems with Non-Intimate Relationships; • Problems with Planning; • Problems with Treatment; • Problems with Supervision. [58] In summary, Dr Timmins wrote (here and in all following text, it is my underlining): “….. I am of the opinion that [the respondent’s] risk of sexual reoffending is HIGH if released into the community without a supervision order in place. There is a pattern of engaging vulnerable women who have pre-pubescent daughters. There is evidence of grooming, physical and psychological harm. There is the potential for penetration of the child when they enter puberty after a period of touching including using his fingers to enter the child’s vagina. He has also offended against a friend of a partner’s daughter. Despite being given a number of opportunities for treatment [the respondent] appears to have limited insight. He has undertaken courses addressing his offending and appears to have integrated some of the learnings. He denies that he may be sexually attracted to pre-pubescent girls and uses justifications, denial, minimising and blaming others as a way to excuse his behaviour. He was also very evasive as to the details of his offending including his thoughts at the time. He also had few concrete plans for his release. Overall [the respondent] does not appear to fully understand his risks or how to manage himself appropriately so he 30 T1-26 lines 27-28. -- 13 of 23 -- 14 does not pose a significant risk to the community. If he does re-offend, he is likely to engage a vulnerable woman with a pre- pubescent daughter in an intimate relationship. He will use her to gain access to the daughter or the daughter’s friends. He will initially groom the girl in various ways including spending time, buying lollies and touching her inappropriately. He has the potential to offend up to and including sexual intercourse with the young girl. There is the potential for physical, and certainly psychological coercion to be involved in the offending. There is the potential of high degree of harm to the victim, including physical harm.” 31 [59] It was allowed that the “high risk” may be modified by a community supervision order. The respondent would then most likely fall into a “moderate risk” category. [60] A further statement was requested from Dr Timmins - her first report is now over a year old, and was provided without the benefit of having seen the reports of Dr Beech and Dr Sundin. [61] In her updated assessment, Dr Timmins expressed the view that the respondent “requires further treatment given his level of denial”. She thought he “probably requires both HISOP32 and individual therapy”.33 If forced to a choice between those two, she expressed a preference for individual therapy which could, it was noted, be received in the community – relevantly, that is, whilst on a supervision order. [62] She concluded, however, that: “At some point, he will want relationships and the person may have daughters, or grand-daughters or young girlfriends of those children. The potential offending could be serious and involve penetrative offences. His pattern is to access victims through intimate partners, but I think any young girl with whom he has contact with is at risk whether it is initially through a friend, intimate partner or work colleague. He is also unlikely to be transparent with his case workers as to his relationships and social interactions given his lack of disclosure and avoidance of his problems. Thus, keeping him in custody may assist with improving his insight of his offending pathway and how to manage himself through the HISOP and individual therapy.”34 [63] This latter point - which goes directly to the functional issue - was explored further in evidence. Dr Timmins pointed to the fact that, if individualised treatment was commenced whilst the respondent was in custody, rather than after the respondent’s release on a supervision order, his level of engagement could be assessed prior to release. Further, there was an enhanced relevance, in this case, to the prospect of treatment being received in the context of a relationship to which there was some 31 Under ‘Final opinion and recommendations’ on pages 38 and 39 of Dr Timmin’s report. 32 High Intensity Sexual Offenders Program. The “HISOP” is the “next level” program that might be completed after the “MISOP”. As discussed below, the difficulty in requiring the respondent to undertake any such thing is that he has not and will not admit the 2017 offending. 33 Affidavit of Emily Cooper affirmed 8 May 2020, exhibit ESC-11. 34 Ibid. -- 14 of 23 -- 15 continuity.35 Concern was also expressed about the delay in the commencement of treatment, although as will be discussed below36 this may no longer be the issue that it was. Report by Dr Josephine Sundin dated 8 February 2020 [64] On 31 January 2020, Dr Sundin attended an appointment to interview the respondent for the purposes of this application. She reported: “[The respondent] politely explained at the outset of the interview that he had plead guilty in 2003 for the offences involving his stepdaughter over the period 1993 – 2001. He stated that in 2005 he entered a late plea of guilty to the offences involving his girlfriend’s daughter. He said that he did so after he was offered a deal and was encouraged to save his mother undue stress. He asserted that he was innocent of those charges and plead guilty only at the urging of his lawyer. In relation to the 2017 conviction for offences from November 2015, the respondent advised that this had gone through two trials with the first jury being unable to reach a verdict but the second jury having convicted. [The respondent] very clearly asserted that he was not guilty of the offences from 2003 and 2015. When I then suggested that we could limit the exploration to the offences which he had acknowledged committing against his stepdaughter, [the respondent] stated: ‘I served my time. It’s over. It’s in the past. I don’t need to talk about the past.’ When I explained to [the respondent] that his past history was very relevant to the current examination and the advice that I would provide to the Court, [the respondent] added: ‘There’s no such thing as innocent. You’re guilty whether you are or not. The government has their mind set.’ At this point, [the respondent] very politely requested to leave the interview, stating: ‘I’d like to go please.’ I made several efforts to engage him, including asking [the respondent] if there were other topics that he would be more comfortable to discuss. He repeated 35 T1-27 lines 20-25. 36 At [86]. -- 15 of 23 -- 16 on several occasions: ‘I’d like to go back to my unit.’”37 [65] It follows that Dr Sundin’s risk assessment is based on: “….. the collateral material that has been referenced during his participation in the Medium Intensity Sexual Offenders Programme, his individual sessions with his psychologist and the interview undertaken by Dr Timmins, forensic psychiatrist-pre-application interview.”38 [66] Dr Sundin diagnosed the respondent with paedophilia, non-exclusive, sexually attracted to prepubescent and pubescent females. She also noted that the collateral information indicates the presence of avoidant personality traits. [67] Dr Sundin also assessed the respondent against the “Static 99R”. She scored the respondent a “6”,39 which places him in the high risk category for sexual offending. [68] When Dr Sundin used the “RSVP tool”, she found the following items present: • Chronicity of Sexual Violence; • Diversity of Sexual Violence; • Physical Coercion in Sexual Violence; • Psychological Coercion in Sexual Violence; • Extreme Minimisation or Denial of Sexual Violence; • Problems with Stress or Coping; • Sexual Deviance; • Problems with Intimate Relationships. [69] Dr Sundin considered that the respondent had partial scores for: • Attitudes that support or condone sexual violence; • Problems with planning; • Problems with treatment; • Problems with non-intimate relationships. [70] In the result Dr Sundin thought the respondent posed a high risk for future sexual recidivism. [71] Dr Sundin wrote: “It is concerning that [the respondent] appears to have gone backwards with 37 Although the need for a Division 3 order is not contested I note, at this point, that in deciding whether one should be made, s 13(4)(a) directs attention to the extent of a prisoner’s cooperation in this context. 38 Report of Dr Josephine Sundin, 3-4. 39 The difference being explained by the fact that Dr Sundin characterised the 2017 offences as sex offences against a stranger. This was the point on which Dr Timmins adopted, as noted above, a cautious approach. -- 16 of 23 -- 17 respect to self-awareness and acknowledgement of sexual offending since his participation in the Medium Intensity Sexual Offending Programme. When he undertook that programme, he acknowledged the offending both against his stepdaughter and his girlfriend’s daughter. By contrast, he now denies the offending against his girlfriend’s daughter and denies the offending from November 2015. He demonstrates features of a victim’s mindset, perceiving that the government is against him and that he has been determined to be guilty despite his protestations of innocence. He adamantly denies that he has a sexual arousal to prepubescent or pubescent girls despite the considerable evidence to the contrary. He has repeatedly minimised the pre-pubescent grooming and sexual arousal to his stepdaughter. It is also concerning that he has demonstrated considerable success in engendering trust in vulnerable women who have the care of their daughters.”40 [72] Further: “He continues to use justifications, denial and minimisation in relation to his sexual offending history. His regression away from acknowledging paedophilic behaviour and refusal to participate in an interview suggests to me: • That he is in denial of the nature of the risk that he poses to the community, • That he still wishes to cling to the fantasy that it was a relationship between himself and his stepdaughter rather than a pattern of persistent sexual offending against a vulnerable child; • That acknowledging his paedophilic drives remains strongly egodystonic for him.”41 [73] The doctor expressed the view that: “….. given his regression and recantation, I would be more comfortable if an effort was made for [the respondent] to be engaged with an experienced forensic psychologist for a course of one on one individual counselling to address deviant sexual needs for a period of at least six months prior to any release on a supervision order. This treatment could then continue in the community. This would give supervisors and treatment providers greater insights into the 40 Ibid. 41 Ibid 24. -- 17 of 23 -- 18 nature of his deviant sexual cognitions and a greater understanding as to how these flared and were acted upon again by a man who had previously appeared to achieve such good outcomes from sexual offender treatment programmes. It would also provide an opportunity to address his resistance to acknowledging his paedophilic drives.” [74] In evidence Dr Sundin elaborated: “….. – one of the reasons that I proposed that he should have treatment before he’s released is that, in my assessment of the material with this man, there are two very strong motivators that are driving that, for lack of a better word, dishonesty. And they’re cognitions around shame and behaviours of avoidance. This man appears to have very strong avoidant personality traits, which will make him disinclined to disclose. And he appears to carry very profound unconscious shame around his offending behaviour. Treatment would be designed to help him overcome that shame and that pattern avoidance, to start to feel safe to trust a therapeutic alliance and begin to disclose what he’s thinking and what his attractions are, to his psychologist, to his case officer, so that he can then openly manage potential risk scenarios, and so that he can deal with some of the issues that have driven him to seek relationships with underage girls, rather than feeling safe to navigate relationships with women of an appropriate age.”42 [75] In this way, Dr Sundin’s opinion about the desirability of individualised treatment prior to release can be seen to echo that expressed by Dr Timmins. It is linked to the type of risk involved and the way in which it might manifest. Report by Dr Michael Beech dated 25 March 2020 [76] Dr Beech interviewed the respondent on 14 February 2020. [77] The respondent maintained his innocence in relation to the 2005 and the 2017 convictions.43 As to the 2003 conviction, he allowed only that the unlawful relationship began when the victim was aged between 13 years old and 16 years old, despite having entered a plea of guilty on the basis that the offending began when she was 9 years old. Notwithstanding the fact that it was not contested at his sentence, he also denied tying the complainant up and asserted that all sexual contact was consensual.44 [78] The respondent denied any sexual interest in young girls. Dr Beech considered that his plans for release seemed to lack insight into his ability to manage himself. [79] Dr Beech’s overall opinion includes the observation that: 42 T1-14 lines 6-18. 43 As noted at [47] and [48]. 44 Report of Dr Michael Beech 8 line 378. -- 18 of 23 -- 19 “His history of offending, and its chronicity, is concerning particularly given the earlier interventions.”45 [80] Dr Beech also used the “Static 99R”. Consistent with the analysis of the other doctors, he scored the respondent a five (possibly a six if the last victim was a stranger). As noted above, even a score of five places the respondent in the category of offenders who are seen as above average risk of offending. [81] Applying the RSVP, Dr Beech identified the existence of: • Chronicity of offending; • Sexual deviance; • Psychological coercion; • Physical coercion; • Problems in relationships; • Denial; • Attitudes that support offending (partial); • Problems with stress; • Personality disorder; • Problems with treatment. [82] Dr Beech’s overall opinion is that the respondent is a high risk of reoffending if he were to be released into the community without supervision. [83] Relevantly, for the purpose of determining whether the appropriate order should be one of detention or supervision, Dr Beech observed: “….. It is difficult to know to what extent he would be amenable to individual therapy if released because there is little information about how he responded to individual therapy in the past. It would be difficult to supervise him because he appears to be able to take quick advantage of opportunities as they arise and his refusal to admit to some of his offending probably indicates that he may minimise contacts and not reveal potential opportunities for offending. On the other hand, from what I can see, while he was subject to ANCOR restrictions he did not offend, and it may be that some sense of surveillance acts to deter him. Clinically, the preference is for him to complete treatment before he is released but the risk of re-offending may be reduced by supervision alone, under stringent monitoring circumstances. If he is to be supervised, I would recommend at least ten years. He has an entrenched recurring pattern of offending, a sexual paraphilia that has not been treated, and little insight into the nature of his difficulties.”46 45 Ibid 16 lines 828-829. 46 Ibid 17-18. -- 19 of 23 -- 20 [84] In his evidence Dr Beech confirmed the importance, in the respondent’s case, of a “treatment alliance”.47 He expressed concern that the respondent’s deviant behaviour (paedophilia) had not been addressed. He identified the need to see a response to attempts to do that. He explained the basis for the abovementioned clinical preference by reference to the proposition – which has elemental resonance - that the reward (of a supervision order) should be offered only after the respondent had started work (by way of engagement with individual counselling).48 Further Evidence [85] Two witnesses who were called on behalf of Queensland Corrective Services explained the sort of treatment which will be available to the respondent from this point on. Individual treatment of a kind which is unanimously recommended is available for the respondent. [86] Initially, I was concerned about the timetable which might have applied to the administration of such treatment. This concern was triggered by evidence which suggested that, because the respondent had made denials about his offending, the availability of individualised treatment may have been postponed for some time. Indeed, this possibility might, so it seemed, have had a disproportionately punitive effect. [87] The hearing of the matter was reconvened on 15 May 2020 at which time I made certain inquiries and various possibilities were canvassed. It is unnecessary now to rehearse those, because the Court convened again on 28 May 2020 and at that time further evidence was placed before the Court. It included this information contained in an affidavit under the hand of a special counsel employed by the Office of the Crown Solicitor: “7. I am informed by the High Risk Offender Management Unit (“HROMU”), Queensland Corrective Services (“QCS”) that the respondent is now considered suitable to participate in the Getting Started Preparatory Program (“the GS:PP”), which is a preparatory program to assess an offender for participation in further treatment programs. Further, the respondent has expressed a willingness to participate in the GS:PP. 8. The GS:PP in which the respondent is to participate will commence in the week of 25 May 22 and is ordinarily completed within six weeks. An exit report is then prepared by program facilitators which is usually prepared within one month after the program concludes. Further treatment of the respondent will be informed by the results and recommendations contained in the exit report following his participation in GS:PP. 47 T1-42 lines 5-12. 48 T1-44 lines 24-33. -- 20 of 23 -- 21 9. Therefore, absent any other issues, I intend to arrange for the filing of the annual review application following the respondent’s participation in the GS:PP and consideration of the exit report. I expect to file the application for annual review by 3 August 2020. In the usual course, the matter will then be managed on the Dangerous Prisoners List and will be regularly reviewed by the Court prior to the hearing of the application.” Conclusion [88] Each of the reporting psychiatrists considers that the risk of sexual re-offending without an order under the Act is ‘high’ or ‘above average’. Their evidence49 would, even in the absence of any relevant concession by the respondent, be sufficiently cogent50 to satisfy me to the requisite high degree of probability that, if released without a Division 3 Order under the Act the respondent presents an unacceptable risk of committing a “serious sexual offence” as defined by the Act. [89] It is submitted, correctly, that each of Drs Timmins, Beech and Sundin accept that a supervision order could reduce the risk to moderate levels. However, the acknowledgement that an order should be made carries with it an acknowledgement that without an order of some kind the risk of relevant offending – even if moderate – is unacceptable. [90] It is then a matter for the Court to determine which sort of order is appropriate. The paramount consideration is the need to ensure the adequate protection of the community.51 The unanimous opinion of three very experienced professionals is that individualised treatment of the kind contemplated by those doctors is appropriate for the respondent. The Court endorses their opinion without qualification and notes that the Department of Corrective Services does not suggest there is any barrier to the provision of such treatment.52 But such counselling can take place either whilst the respondent is detained or after his release on a supervision order.53 [91] On the state of the evidence, the Court is compelled to reason in accordance with the following propositions: • The respondent has been diagnosed with paedophilia. • Whilst the respondent may have been required to confront his specific offending when he was in custody serving a sentence for the 2003 and 2005 offences, his general sexual deviance has never been addressed. • The respondent must be treated for this condition. 49 In particular that of Dr Timmins as cited in [63], Dr Sundin at [76] and [77] and Dr Beech at [83] - [85]. 50 Having regard to the matters required to be taken into account pursuant to Section 13(4) of the Act. 51 s 13(6)(a) of the Act. 52 T1-63 line 19-22. 53 T1-10 lines 26-31; T1-59 lines 8-27. -- 21 of 23 -- 22 • The respondent will have to be engaged with and responsive to such treatment if it is to be effective. • Unless it is effective, protection to the community will not be adequate.54 • That is because there is an unacceptable risk that, whilst otherwise leading a lawful and unremarkable existence, the respondent will find himself in a position where he can give effect to paedophilic urges. His supervisors - even on an order as comprehensive as the one proposed - may not be aware that he is in such a position. • There is evidence which establishes that the respondent will not engage in the sort of group treatment (including HISOP) that is and has been available. • Effective treatment will, therefore, have to be individualised. • It is not yet known how the respondent will engage with and respond to such treatment. The evidence of engagement with Ms Cathcart, a psychologist, for seven sessions is insufficient to establish this.55 • Given the respondent’s complete denial of the 2017 offences, there is cause for concern as to the way in which he will engage with such treatment. • In fact, even in the absence of denial as to the 2017 offending, the expansion of denials (to include the 2005 and aspects of the 2003 offending) is sufficient cause for concern about the way in which the respondent might engage with treatment. Especially is this so when the respondent pleaded guilty to those charges (and acknowledged the basis for them).56 • At the moment, there is no evidence that can facilitate an appraisal of how successful such a process might be.57 [92] It must also be remembered that the respondent would be able to “take quick advantage” of opportunities to offend, if they arose. The potential offending could be serious and involve penetrative offences. There is a threshold that the respondent must cross, and until he does, the Court must entertain this scenario as a genuine risk. 54 T1-34 lines 40–47 – T1-35 lines 1-2. 55 T1-19 lines 15-16; report of Dr Evelyn Timmins 32. 56 Affidavit of Nicola Carah sworn 5 December 2019, exhibit NC-1. 57 T1-36. -- 22 of 23 -- 23 [93] Given the nature of the danger, a supervision order, even one attended by restrictive conditions, could not practically be managed in such a way as to prevent this, and thereby ensure the adequate protection of the community. [94] The way in which to ensure adequate protection is to insist upon the commencement of individualised treatment prior to release. [95] I shall therefore order, pursuant to s 13(5)(a) of the Act, that the respondent be detained in custody for an indefinite period for control, care or treatment. [96] That said, there is a basis for thinking that if the respondent does engage with treatment in an appropriate and responsive manner, that although “indefinite”, this period may not need to be of excessive duration. To that end, the timetable proposed58 for initiating a review of his case does not incorporate unreasonable delay and, as has been pointed out, once commenced the matter can be managed by the Court with the benefit of material and submissions from both parties. In those circumstances I do not need to contemplate the possibility of any further order. 58 See [87] above. -- 23 of 23 --