Attorney-General for the State of Queensland v Currie [2020] QSC 128

SUPREME COURT OF QUEENSLAND CITATION: Attorney-General for the State of Queensland v Currie [2020] QSC 128 PARTIES: ATTORNEY-GENERAL FOR THE STATE OF QUEENSLAND (applicant) v JOEL GEORGE CURRIE (respondent) FILE NO: BS No 10864 of 2015 DIVISION: Trial Division PROCEEDING: Application ORIGINATING COURT: Supreme Court of Queensland at Brisbane DELIVERED ON: Orders made on 15 May 2020, reasons delivered on 29 May 2020 DELIVERED AT: Brisbane HEARING DATE: 15 May 2020 JUDGE: Davis J ORDER: 1. The decision of Byrne SJA made on 11 March 2016 that the respondent is a serious danger to the community in the absence of an order under Division 3 of Part 2 of the Dangerous Prisoners (Sexual Offenders) Act 2003 is affirmed. 2. The respondent continue to be subject to the continuing detention order. CATCHWORDS: CRIMINAL LAW – SENTENCE – SENTENCING ORDERS – ORDERS AND DECLARATIONS RELATING TO SERIOUS OR VIOLENT OFFENDERS OR DANGEROUS SEXUAL OFFENDERS – DANGEROUS SEXUAL OFFENDER – GENERALLY – where the respondent is the subject of a continuing detention order under the Dangerous Prisoners (Sexual Offenders) Act 2003 – where this is the third review of the order – where the evidence of three highly experienced psychiatrists is that the respondent remains of high risk of committing a serious sexual offence if not subject to a continuing detention order – where the psychiatrists’ evidence is that individual treatment with a psychologist is appropriate – where the psychiatrists’ evidence is that the respondent’s institutional behaviour is critical to the assessment of the respondent’s risk in the community – where the psychiatrists’ evidence is that the respondent’s most recent -- 1 of 19 -- 2 institutional behaviour indicates some improvement but that any improvement cannot be regarded as consolidated and permanent unless for a period of 12 months – where an assurance has been given by the applicant to file the next application for review earlier than usual – whether the respondent’s release from custody on a supervision order would provide adequate protection to the community against the commission of a serious sexual offence Dangerous Prisoners (Sexual Offenders) Act 2003, s 13, s 16, s 27, s 30 Attorney-General for the State of Queensland v Currie [2016] QSC 48, cited Attorney-General (Qld) v Currie [2017] QSC 318, cited Attorney-General for the State of Queensland v Currie, Brown J, unreported, 17 December 2018, cited Attorney-General for the State of Queensland v Francis [2007] 1 Qd R 396, followed Fardon v Attorney-General (Qld) (2004) 223 CLR 575, followed COUNSEL: J Tate for the applicant G Seaholme for the respondent SOLICITORS: GR Cooper, Crown Solicitor for the applicant Power Legal for the respondent [1] The respondent is a prisoner in custody by force of a continuing detention order (CDO) made on 29 March 2016 pursuant to the Dangerous Prisoners (Sexual Offenders) Act 2003 (the DPSOA). [2] The applicant applied for a review of the CDO as she is obliged to do by s 27(2) of the DPSOA. [3] On 15 May 2020, I made the following orders: “1. The decision of Byrne SJA made on 11 March 2016 that the respondent is a serious danger to the community in the absence of an order under Division 3 of Part 2 of the Dangerous Prisoners (Sexual Offenders) Act 2003 is affirmed. 2. The respondent continue to be subject to the continuing detention order.” [4] These are my reasons for making those orders. History [5] The respondent is an Indigenous man born on 7 January 1984. He is presently 36 years of age. -- 2 of 19 -- 3 [6] When making the CDO, Byrne SJA described the respondent’s relevant criminal history as follows: “[2] The respondent was born on 7 January 1984. His extensive criminal history began when he was 11 years old. [3] Less than a fortnight after his 14th birthday, the respondent approached a five year old girl and led her to an enclosed courtyard, promising to play a game. There he forcibly raped his victim. She was so severely injured that she required surgery for vaginal lacerations. He was sentenced to detention for six years. [4] In October 2004, the respondent climbed a wall, forced open the grill of a child’s bedroom window and climbed through into the room where the child was asleep in her bed. The child woke up and called out to her mother. The respondent had touched the child on her legs and nightclothes while she was asleep. He was intoxicated at the time. [5] At 2.00am on 29 March 2006, taking a condom with him, the respondent broke into the house of a 48 year-old woman and her 17 year-old daughter. He walked through the house and into the girl’s room. He placed his hand over the girl’s mouth and told her that if she made a noise he would slit her throat and, if she woke her mother, he would slit her throat too. He got into bed with his victim. He began touching her and rubbing his penis against her buttocks. She pleaded with him to stop. He would not. He put his fingers in her vagina. Next, he demanded that the girl rub and suck his penis until he ejaculated. She refused. Hoping that she could get him to stop, she told him that she was 14. He replied, with excitement, that he had never had such a young girl before. [6] The girl began making noises to wake her mother up. The respondent told her: ‘If you wake your Mum, I’ll get my gun out and shoot you. I’ll get my knife out and stab you through the heart and then I’ll kill your Mum too’. The girl screamed and punched him in the head. He reacted by punching her with such force that she struck the wall. He tried to leave the house but the front door was dead-locked. The mother woke on hearing her daughter’s screams, ran to the girl’s bedroom to see the respondent jump through a glass window and flee. [7] The respondent, who was subject to a suspended sentence of imprisonment when that offending occurred, gave a version of events, beginning with an assertion that he intended to break in because he needed money. Asked why the suggested attempted theft resulted in the sexual assault of the girl, he said that when he saw her lying in bed he thought that he ‘might get lucky’ and decided to ‘crack onto her’ in a ‘respectful manner’. -- 3 of 19 -- 4 Sexual offending continued [8] The respondent was in custody in mid-September 2009 when he encountered an Aboriginal liaison officer during an interview. She was assisting him with a parole application. While she was reading some papers, the respondent masturbated and subsequently ejaculated on the woman’s hand and trousers.”1 [7] On the charge arising from the incident on 29 March 2006, the respondent was sentenced to eight years’ imprisonment. A declaration was made that time served since his arrest shortly after the commission of the offences was time served on those sentences. [8] In relation to the assault upon the Aboriginal liaison officer in prison, the respondent was sentenced to imprisonment for nine months cumulative on the sentence of eight years which he was then serving. He has since been convicted of offences which were committed in prison. Short periods of imprisonment were imposed. One of those sentences (two months) was ordered to be served cumulatively on the sentences of eight years and nine months. [9] As already observed, the CDO was made on 29 March 2016. [10] The CDO was reviewed and continued by Mullins J (as her Honour then was) on 21 December 2017.2 Mullins J observed that the respondent had not participated in sexual offender treatment programs as he was deemed unsuitable.3 Both psychiatrists, Doctors Sundin and Harden, gave evidence to Mullins J that the respondent should complete the High Intensity Sexual Offender Program (HISOP) before release and that one-on-one therapy was unlikely to be effective. Unknown to the two psychiatrists, the respondent had been involved in such therapy with Dr Lars Madsen, a psychologist with extensive experience in the treatment of recidivist sex offenders. [11] When the knowledge of Dr Madsen’s involvement became known, the two psychiatrists prepared supplementary reports which were tendered. As Mullins J recorded: “[38] Dr Sundin has provided a supplementary report dated 15 December 2017 in which she states: ‘Having reviewed Dr Madsen’s testimony it appears that after supplying his most recent report to the Court. Dr Madsen met with staff from Woodford to determine what other options for management were available to assist Mr Currie specifically address his risk for future sexual offending. I was not aware that this had taken place when I testified in Court. An individual treatment programme addressing emotional self-regulation and capacity to safely participate within a group therapy programme was 1 Attorney-General for the State of Queensland v Currie [2016] QSC 48. 2 Attorney-General (Qld) v Currie [2017] QSC 318. 3 At [12]. -- 4 of 19 -- 5 considered. In addition it appears that Dr Madsen has been trying to determine a strategy by which together with a psychologist based in Woodford Correctional Centre, he might work with Mr Currie on a 1:1 basis to deal with his risk factors for future sexual offending. This is not the same as participation in the High Intensity Sexual Offenders Programme but nonetheless is worthy of the significant effort it will require and may alleviate the problems that have prevented Mr Currie participating in some form of therapy to address his outstanding treatment needs.’” And: “[40] Dr Harden has provided a supplementary report dated 18 December 2017, but expresses the view that the new material does not broadly alter his previous opinions regarding Mr Currie’s risk of sexual recidivism. Dr Harden does alter his recommendations, however, in the light of the new material on the basis of the identified problems in placing Mr Currie in a group program in the near future and states: ‘However, if he were to successfully complete the individual program outlined by Dr Madsen to a high level including compliance with program content and demonstrated appropriate institutional behaviour and compliance over a 12 month period or greater this would give me more confidence in his ability to comply with a supervision order in the community. If he were compliant with the strictures of a supervision order in the community in my opinion this would reduce his risk of sexual recidivism to moderate via the monitoring, reporting and substance abstinence provisions.’” [12] Brown J heard the second annual review of the CDO on 17 December 2018. At that point, the respondent’s treatment with Dr Madsen was continuing. A report of Dr Madsen was tendered to Brown J. That report was optimistic and suggested progress. [13] Brown J described Dr Sundin’s evidence as follows: “Dr Sundin considers that Dr Madsen’s report of October 2018 shows a positive engagement by Mr Currie with Dr Madsen and that progress is being made. Up until that point, she did not consider that great progress was being made. Dr Sundin now considers that the one-on-one treatment with Dr Madsen is the best treatment for Mr Currie and is the most effective way to address his sexual recidivism, and that it would be an effective replacement for HISOP -- 5 of 19 -- 6 or MISOP.4 She considers that Mr Currie could also benefit from less intensive programs of the nature referred to by Dr Madsen. She considers that Mr Currie is showing improvement in his behaviour in custody linked to his work with Dr Madsen, and showing some limited insight. His engagement with Dr Madsen is, in her view, his most positive step forward and she considers that he needs to continue that engagement in custody for 12 months, and for the matter to then be assessed to determine whether he could be released into the community under a supervision order. She does not consider Mr Currie would presently be compliant with a supervision order, although she stated that that should not be taken to be her view for the future. She considered that while the supervision order would reduce his risk of reoffending, it would not reduce it by any considerable level. Although she referred to such an order as not ‘absolutely’ removing the risk, which is not the test for such an order that is applied by this Court, she clarified that Mr Currie continues to need a high level of oversight and treatment, and that the level of oversight that would be available under the supervision order would not be sufficient.”5 [14] Dr Harden’s evidence was summarised by her Honour as: “Dr Harden provided a report of 11 December 2018. He examined the respondent on 13 September 2018. He had also had regard to the reports of Dr Madsen. He also considers that Mr Currie has an antisocial personality with significant psychopathic personality features and polysubstance abuse which is in remission because of his incarceration. Dr Harden does not consider that the respondent has a sexual paraphilia and considers that the offending against child victims was opportunistic. That is a view shared by Dr Sundin. Dr Harden considers that the treatment program which involves Mr Currie having one-on-one treatment with Dr Madsen has resulted in his making some progress in dealing with his treatment needs. He considers that Mr Currie has also made some general progress since his previous review in terms of institutional compliance and treatment compliance. Dr Harden’s clinical opinion on risk and future care, control and treatment is that: ‘His ongoing modified risk of sexual re-offence in the community is in my opinion still in the High range. If he were released from custody on a supervision order, his risk of sexual reoffending would be Moderate - High as in my opinion a supervision order would now provide some small 4 Medium Intensity Sexual Offender Program. 5 Attorney-General for the State of Queensland v Currie, Brown J, unreported 17 December 2018, pp 5- 6. -- 6 of 19 -- 7 diminution of his risk given his degree of improvement with institutional compliance and treatment compliance. He should continue in the individual treatment program provided by Dr Madsen. … His greatest risk factors for reoffending are in my opinion, his general criminal behaviour, lack of concern for others, substance misuse, attitudes that support sexual assault including attitudes to women, general failure to comply with previous community supervision or similar and restlessness and impulsivity associated with his personality structure. If he were to reoffend sexually he is likely to commit a sexual offence associated with interpersonal violence and threat, this is most likely to occur when intoxicated and possibly during the commission of other criminal offences. This is most likely to occur against an adult woman. It could be a stranger or someone known to him.’ Dr Harden recommends that Mr Currie continue individual treatment with Dr Madsen either in custody or in the community on a supervision order. Dr Harden’s preference would be for Mr Currie to continue for a further 12 months in the structured environment of custody, to consolidate his current gains. He highlights the fact that Mr Currie should abstain completely and permanently from alcohol and drug use. Dr Harden explained the various tools which he had used to assess the risk posed by Mr Currie to reach the view that Mr Currie had a high risk of sexual recidivism.”6 [15] Throughout the psychiatric evidence, which was before both Mullins and Brown JJ, concerns were expressed as to the respondent’s non-compliant behaviour in prison. That behaviour, in the psychiatrists’ view, spoke of poor prospects on supervision in the community and therefore highlighted the risk of sexual offending. It was observed by the psychiatrists, though, that the respondent’s conduct in prison had improved while receiving treatment from Dr Madsen. [16] In her judgment, her Honour observed: “I am satisfied that while Mr Currie is now on the pathway to being able to be released under a supervision order with the work that has occurred, particularly over the last six months with Mr Madsen, and his not being involved in adverse incidents, however that on the evidence before me, further work needs to be done for Mr Currie to develop a proper insight into his offending and develop protective mechanisms to reduce the risk of his reoffending in the future, in order for that risk to be reduced to an acceptable level. 6 Attorney-General for the State of Queensland v Currie, Brown J, unreported 17 December 2018, pp 6- 7. -- 7 of 19 -- 8 Up until April 2018, there had been 11 adverse incidents and the discovery of material in March and October 20187 reveals an ongoing sexual preoccupation which is relevant to his heightened risk of reoffending. Coping mechanisms and a level of understanding about the nature of his offending need to be developed over the next 12 months while Mr Currie is in custody, to be able to ensure the adequate protection of the community, such that Mr Currie will be able to control and address the triggers for his reoffending and cope with the stresses to which he will be exposed upon his release. As Dr Harden stated, Mr Currie needs to work with someone to change his behaviours, and that is finally occurring. While I accept that Mr Currie is frustrated about being under the Dangerous Prisoners Regime and frustrated that he was required to undertaken the HISOP program, his sexual recidivism was such that it did indicate that engagement in such a program was warranted. However, it has now been recognised that his personality is such that engagement in a group program is not a viable prospect, and that the individual approach that has been developed by Dr Madsen (which was supported by QCS) to recognise his personality is such that his individual treatment may serve as a substitute for such a program.”8 [17] Her Honour found that the risk had not ameliorated to the point where a supervision order could provide adequate protection of the community. Her Honour ordered that the CDO continue. [18] However, following the second annual review before Brown J and the evidence given by Dr Madsen at that review, the respondent thought that Dr Madsen had betrayed him and he wrote an aggressive and threatening letter to Dr Madsen. That ended the therapeutic relationship and the respondent’s behaviour in prison again deteriorated. [19] Fortunately, another psychologist experienced in treating recidivist sex offenders, Mr Nick Smith, was prepared to treat the respondent and he has been doing so. This has led again to improvement in the respondent’s prison behaviour. The last two prison incidents concerning the respondent were described by Corrective Services as:9 “08.01.2020 Incident: Threats against staff Description: At 1900hrs Corrective Services Offiicer [sic] Barker S and Rule D received a call via the cell intercom system, that if Corrective Servicies [sic] Officer Jones A was on Thursday and started to ‘smart mouth him again, he stated that he was not going to stand for it.’ Cause: Unknown Action Taken: Officers reported it to the Author of the Incident Report. The Author, on receiving this information, requested that a report be submitted. An Incident report was then completed on the Officers report. Pages 158-160 ‘DB-17’ to affidavit of D Bear affirmed 11 May 2020 Pages 120-121 ‘SC-15’ to affidavit of S Collins sworn 25 March 2020 7 Pornographic material. 8 Attorney-General for the State of Queensland v Currie, Brown J, unreported 17 December 2018, pp 11-12. 9 A “Schedule of Incidents” which summarises the incidents was prepared by applicant and was Exhibit 1 on the hearing. -- 8 of 19 -- 9 Comments: Duty Manager briefed via email of this report. Investigation Comments: No apparent ability to effect threat/no threat to cause GBH. Matter can be adequately dealt with by centre for self- determination and finalisation. Recommend consideration of breach action. No further CSIU action. Status: Closed 07.04.2020 Incident: Prohibited Article Description: On the 7th April 2020, Prisoner CURRIE approached staff in the S1 area and advised them that he had found a ‘shiv’ in his cell air vent and that it was now under his mattress. During morning cell inspections C/S STEN recovered the item. The item was then photographed before being delivered to Intellegence [sic] Cause: Unknown Action Taken: Shiv removed from prisoner’s cell and delivered to Intelligence Unit. Shiv photographed and incident created. Status: In progress.”10 Pages 158-160 ‘DB-17’ to affidavit of D Bear affirmed 11 May 2020” [20] The application before me was the third annual review of the CDO. Statutory context [21] A pivotal section in the DPSOA is s 13. It 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; 10 Exhibit 1, pages 15-16. -- 9 of 19 -- 10 that the evidence is of sufficient weight to justify the decision. (4) In deciding whether a prisoner is a serious danger to the community as mentioned in subsection (1), the court must have regard to the following— (aa) any report produced under section 8A; (a) the reports prepared by the psychiatrists under section 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 -- 10 of 19 -- 11 (b) the court must consider whether— (i) adequate protection of the community can be reasonably and practicably managed by a supervision order; and (ii) requirements under section 16 can be reasonably and practicably managed by corrective services officers. (7) The Attorney-General has the onus of proving that a prisoner is a serious danger to the community as mentioned in subsection (1).” [22] Under s 27, the onus is cast upon the Attorney-General to make application for review of a CDO made under s 13(5)(a). [23] Section 30 governs the determination of review applications. Section 30 is 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)— (a) the paramount consideration is to be the need to ensure adequate protection of the community; and (b) the court must consider whether— -- 11 of 19 -- 12 (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.” [24] Section 30 of the DPSOA, in many ways, mirrors s 13. As to the Court’s consideration, the central question is whether the prisoner “is a serious danger to the community in the absence of a Division 3 order” and in that way, s 30(1) reflects s 13(1). The notion of a “serious danger to the community”11 incorporates the concept of “unacceptable risk”.12 Like an application under s 13, “… the paramount consideration is the need to ensure adequate protection of the community”, as can be seen from s 30(4)(a). There is no statutory definition of “unacceptable risk”, but in Fardon v Attorney-General (Qld),13 the following was said: “225. The yardstick to which the Court is to have regard, of an unacceptable risk to the community, relevantly a risk established according to a high degree of probability, that the prisoner will commit another sexual offence if released, established on and by acceptable and cogent evidence, adduced according to the rules of evidence, is one which courts historically have had regard to in many areas of the law. The process of reaching a predictive conclusion about risk is not a novel one. The Family Court undertakes a similar process on a daily basis and this Court (Mason CJ, Brennan, Dawson, Toohey and Gaudron JJ) said this in M v M of the appropriate approach by the Family Court to the evaluation of a risk to a child: ‘Efforts to define with greater precision the magnitude of the risk which will justify a court in denying a parent access to a child have resulted in a variety of formulations. The degree of risk has been described as a ‘risk of serious harm’, ‘an element of risk’ or ‘an appreciable risk’, a ‘real possibility’, a ‘real risk’, and an ‘unacceptable risk’. This imposing array indicates that the courts are striving for a greater degree of definition 11 Sections 13(1) and 30(1). 12 Section 13(2). 13 (2004) 223 CLR 575. -- 12 of 19 -- 13 than the subject is capable of yielding. In devising these tests the courts have endeavoured, in their efforts to protect the child’s paramount interests, to achieve a balance between the risk of detriment to the child from sexual abuse and the possibility of benefit to the child from parental access. To achieve a proper balance, the test is best expressed by saying that a court will not grant custody or access to a parent if that custody or access would expose the child to an unacceptable risk of sexual abuse.’ 226. Sentencing itself in part at least may be a predictive exercise requiring a court on occasions to ask itself for how long an offender should be imprisoned to enable him to be rehabilitated, or to ensure that he will no longer pose a threat to the community. The predictive exercise of an assessment of damages for future losses is also a daily occurrence in the courts.” (citations omitted) [25] In the leading case of Attorney-General for the State of Queensland v Francis,14 the Court of Appeal observed: “Adequate protection of the community from the risk of violent sexual offending does not impose a standard that is capable of precise measurement or prediction. The Act does not contemplate that arrangements under a supervision order to prevent the risk of reoffending must be ‘watertight’.”15 [26] Both Fardon and Francis were cases concerned with the making of orders under s 13 of the DPSOA, but for the reasons I have already explained, those statements of principle are equally apposite to a review under s 30. [27] A review under s 30 of the DPSOA is a two-step process. Firstly, the court must consider the original finding (here made by Byrne SJA) that the respondent “is a serious danger to the community in the absence of a Division 3 order”: that is either a CDO or a supervision order.16 If that finding is affirmed, then the discretion arises to affirm the CDO or order the release of the respondent on a supervision order.17 The present review [28] Three psychiatrists interviewed the respondent for the purposes of the review: Doctors Sundin, Aboud and Harden. All three provided reports and were called to give evidence and were cross-examined.18 Mr Smith provided a written report but was not called to give oral evidence. 14 [2007] 1 Qd R 396. 15 At [39]. 16 Sections 13(5)(b) and 16. 17 Section 30(3). 18 Dr Sundin’s report is dated 14 October 2019 and is exhibited to her affidavit sworn 18 February 2020; Dr Aboud’s report is dated 27 February 2020 and is exhibited to his affidavit sworn 19 March 2020; Dr Harden’s report is dated 19 March 2020 and is exhibited to his affidavit sworn 23 March 2020. -- 13 of 19 -- 14 [29] Doctor Sundin struck difficulties in her interview with the respondent who became aggressive and abusive towards her. The interview was terminated after about 45 minutes. [30] Doctor Sundin’s diagnosis of the respondent is: “Diagnosis Mr Currie’s diagnosis remains one of Anti-social Personality Disorder with co-morbid evidence of Psychopathy (DSM V criteria). His previously diagnosed Substance Use Disorder remains in sustained remission whilst in a contained environment.”19 [31] Doctor Sundin’s opinion in relation to risk is: “Discussion Based on the collateral material and my examination, I remain of the opinion that Mr Currie’s risk for general violence is extremely high and that his risk for sexual recidivism is high. My risk assessments have not changed in the last 12 months. He has a poor institutional record over the last 12 months. He has repeatedly demonstrated poor judgement. He continues to demonstrate a capacity for threatening and intimidating behaviour for which he does not take any responsibility. This bodes poorly for his likely capacity to abide by the conditions of a supervision order. He has recently commenced sessions with a new external psychologist as a provider and I would appreciate having an opportunity to read a report from that psychologist to see if any progress is being made. If there are records from prison mental health, it would also be beneficial to review these. As things currently stand, I consider that Mr Currie continues to pose an unacceptable risk to the community for future sexual recidivism. I do not consider that his risk could be adequately managed by a community supervision order and respectfully recommend that he remain detained in prison for ongoing treatment.”20 [32] Doctor Aboud’s diagnosis is: “From a diagnostic perspective, it is my opinion that Mr Currie meets criteria for Antisocial Personality Disorder (with prominent Borderline, Paranoid and Narcissistic traits); Psychopathic Disorder and Polysubstance (mainly cannabis and alcohol) Dependence, that is currently in remission in a protected environment.”21 19 Report of Dr Sundin dated 14 October 2019, page 7. 20 Report of Dr Sundin dated 14 October 2019, page 7. 21 Report of Dr Aboud dated 27 February 2020, page 17. -- 14 of 19 -- 15 [33] As to risk, Dr Aboud opined: “Should he reoffend sexually, one would speculate that it would take the form of opportunistic sexual violence, and possibly in the course of a robbery or a break and enter. It is hard to know if his previous offending, when he broke into a house and then sexually assaulted a young female victim in her bedroom, was wholly spontaneous, or whether the break & enter was secondary to, and a means to meet, his need to sexually offend. The victim is likely to be a stranger, and a female of any age, and including a young child. Alcohol and/or illicit substance (such as cannabis) abuse may be implicated, but it is likely that he does not need to be intoxicated and disinhibited to harbor the drive to sexually offend. Nevertheless, substance use would increase the risk of such behaviour. Labile emotional states, especially anger, may be channeled into offending that represents a maladaptive coping behaviour. Offending could be impulsive, and possibly without any real planning, but could also be as a result of sexual preoccupation and the creation of a plan for potential victim access. He would be at higher risk if he was feeling bored, angry, despondent, stressed, or highly sexually preoccupied. OVERALL RISK LEVEL & RECOMMENDATIONS Joel Currie is afflicted with a significant loading of vulnerability factors associated with future offending. According to the various actuarial instruments used, his sexual offending risk is high. It is therefore of concern that his dynamic risk factors remain salient and to some extent rather intractable to change, largely due to his psychopathic personality structure and other personality vulnerabilities. Thus, the individual psychological therapy, while certainly important and necessary, has only been able to provide limited assistance in ameliorating risk. In my opinion, his current overall unmodified risk is high in respect of both sexual and violent reoffending.”22 [34] Doctor Harden diagnosed the respondent as follows: “Diagnoses He would meet diagnostic criteria for Antisocial Personality Disorder with significant psychopathic personality features. He has poly-substance abuse in remission because of incarceration. There is no convincing evidence of a sexual paraphilia at this point in time.”23 22 Report of Dr Aboud dated 27 February 2020, pages 19-20. 23 Report of Dr Harden dated 19 March 2020, pages 26-27. -- 15 of 19 -- 16 [35] As to risk, Dr Harden’s view was: “Risk His ongoing unmodified risk of sexual re-offence in the community is in my opinion still in the High range. His unmodified risk of violent offence in the community is in my opinion very high. If he were released from custody on a supervision order, his risk of sexual reoffending would be moderate - high as in my opinion a supervision order would still provide some small diminution of his risk despite his compliance issues. He should continue in the individual treatment program provided by Mr Smith. His greatest risk factors for reoffending are in my opinion, his general criminal behaviour, lack of concern for others, substance misuse, attitudes that support sexual assault including attitudes to women , general failure to comply with previous community supervision or similar and restlessness and impulsivity associated with his personality structure. If he were to reoffend sexually he is likely to commit a sexual offence associated with interpersonal violence and threat, this is most likely to occur when intoxicated and possibly during the commission of other criminal offences. This is most likely to occur against an adult woman. It could be a stranger or someone known to him.”24 [36] Both Doctors Harden and Aboud made recommendations for ongoing treatment. Dr Harden: “Recommendations I would recommend that he continue in individual treatment with Mr Smith either in custody or in the community on a supervision order. My preference would be to continue for a further 12 months in the structured environment of custody to consolidate his current gains. He should abstain completely and permanently from alcohol and drug use.”25 [37] And Dr Aboud: “Further, it is my view that the true test of his readiness for safe release to the community is that he is first able to manage his emotions, to the extent that he is able to appropriately control his behaviour, in the custodial environment. It is my consideration that successful demonstration of such behaviour control would be evidenced by a reduction in his prison record of ‘violations/incidents/breaches’, such 24 Report of Dr Harden dated 19 March 2020, page 27. 25 Report of Dr Harden dated 19 March 2020, page 27. -- 16 of 19 -- 17 that he has not, for a period of a year: engaged in sexually violent behaviour; engaged in sexually inappropriate behaviour (such as indecent exposure); engaged in violent behaviour toward others, as the aggressor; issued threats of physical violence or of sexual violence against others, be it verbally or in writing; return a positive urine test for an illicit substance. Until he is able to demonstrate this, I believe that he would very likely contravene the conditions of a supervision order, present as unmanageable, and quickly escalate to untenable risk of sexually reoffending, given that his risk of sexual offending is underpinned by an opportunistic, impulsive, predatory, and antisocial disposition.”26 [38] In their evidence before me, all three psychiatrists accepted that Mr Smith was an appropriate clinician to provide treatment to the respondent and that the treatment being offered was appropriate. Mr Smith reported: “16. Treatment Focus and Outcomes 17. Mr Currie has shown definite improvement over the course of our sessions, with improved affective stability and, particularly in our appointments during 2020, a greater level of reflection and thoughtfulness. His engagement has also improved steadily and he has shown a greater capacity to engage in our appointments in a meaningful way, although he continues to downplay his own need for treatment. Mr Currie identifies positive goals and seemingly pro-social motivations such as helping his family, as well as wanting to stay out of prison; however, it is unclear as to how much insight into his own risk for re-offending he currently has. 18. Mr Currie identifies very strongly as being a victim of childhood abuse himself, and presents as quite ambivalent in how he feels about himself having become a perpetrator; at times expressing distress and disgust with himself, and at other times claiming that his own abuse is an ‘excuse’ for his offending. It appears that Mr Currie’s instability is due to a combination of poor emotional regulation and obsessive rumination on grievances that he perceives as real and justified; however, in regard to his mental health, he has also shown increasing awareness that he needs assistance and treatment in order to function better. 19. Summary 20. Mr Currie is a 36-year-old, single, Indigenous man, currently detained in custody under the Dangerous Prisoners (Sexual Offenders) Act 2003. He has a history of multiple sentences for sexual offending, in 1998, 2004, 2006 and 2009; as well as an extensive history of violent offending, including assaults against Police and Corrective Services Officers . Mr Currie has been subject to a Continuing Detention Order since 11 March 26 Report of Dr Aboud dated 27 February 2020, pages 19-20. -- 17 of 19 -- 18 2016 and is hoping to be released on a Supervision Order following his next Court appearance. 21. Mr Currie has been assessed multiple times as being at a High risk for sexual reoffending, as well as showing prominent Psychopathic personality traits. During our early appointments he also displayed emotional instability, although this appeared to improve over the course of our sessions. Mr Currie presents with prominent obsessive traits, as seen in his extensive list- making, and developed ideas for clothing and films. It is likely that, combined with numerous grievances against the criminal justice system, he ruminates extensively on feelings of victimhood and subsequently develops overvalued ideas of persecution and grandiosity in response to a situation where he feels powerless. 22. If Mr Currie is released on a Supervision Order, then I am happy to continue seeing him for the purposes of treatment and assessment of ongoing risk. I would also recommend that he be assessed by a Psychiatrist to determine if pharmacological treatment may assist his mood and behavioural stability.”27 [39] In their oral evidence before me, all three psychiatrists opined that because of the respondent’s personality type and history, they would not be confident that a supervision order would significantly reduce risk until they saw a period of 12 months of incident free stability in prison. When asked why 12 months was the critical period, none could point to any specific study or science but all swore that it was accepted in psychiatry that 12 months was a recognised period over which changes in behaviour should be assessed. Their evidence was, in effect, that unless the change of behaviour was experienced over a 12 month period, the change could not be considered to have been properly consolidated. [40] The incident of 8 January 2020 was a serious incident which was threatening in nature. The only reported incident since then, was the one on 7 April 2020 where the respondent alerted corrective services staff to a prohibited item found in his cell that was then seized. [41] All three psychiatrists thought that the last significant incident was the one on 8 January 2020. All were prepared to accept that for the purposes of assessing the effects of Mr Smith’s treatment and the respondent’s stability, the incident on 7 April 2020 should not be considered. [42] Therefore, the evidence of all three psychiatrists was that the period over which the respondent’s behaviour should be assessed is the period 8 January 2020 to 8 January 2021. Unless the respondent remains incident free in prison until early 2021, their evidence was that there could be no confidence that Mr Smith’s treatment had effected any permanent change in the respondent. 27 Report of Mr Smith dated 24 March 2020, pages 3-4. -- 18 of 19 -- 19 Findings and conclusions [43] The respondent has been in custody since March 2006, a period of over 14 years. For four of those years, he has been subject to the CDO. [44] In 2016, Byrne SJA found that the respondent was a serious danger to the community in the absence of a Division 3 order. The uncontested evidence of three highly experienced psychiatrists is that the respondent remains of high risk of committing a serious sexual offence if not subject to a Division 3 order. I accept the evidence of the psychiatrists and I affirm the finding made by Byrne SJA. [45] I accept the psychiatrists’ evidence that critical to the assessment of the respondent’s risk in the community, is his institutional behaviour. I accept their evidence that Mr Smith’s treatment is appropriate and that the most recent institutional behaviour indicates some improvement but that any improvement cannot be regarded as consolidated and permanent unless the improved institutional behaviour continues for a period of 12 months. I found, then, that the adequate protection of the community could not be ensured by a supervision order and so I ordered that the respondent continue to be detained. [46] There is a danger that the respondent could be unfairly detained. The obligation imposed upon the applicant under s 27(1C) and (2) of the DPSOA is to file an application before the first anniversary of the last review. In context, that obliges the applicant to file an application for the fourth annual review of the CDO in May 2021. It may be several months before the psychiatric evidence is prepared and the matter is heard. In the ordinary course, the next review may not be heard until the latter half of 2021. [47] On the present state of the evidence, if the respondent can show that his change of behaviour through treatment with Mr Smith has consolidated by him being free of relevant incidents in prison, he may be ready for release in early 2021. [48] I raised this with Mr Tate of counsel who appeared for the applicant. He gave assurances that an application would be made by the end of September 2020.28 Allowing for time to prepare psychiatric assessments that should lead to a hearing in about February 2021. 28 Confirmed in the affidavit of A McLean sworn on 21 May 2020, after orders were made. -- 19 of 19 --