Attorney-General (Qld) v XHW [2020] QSC 138

SUPREME COURT OF QUEENSLAND CITATION: Attorney-General (Qld) v XHW [2020] QSC 138 PARTIES: ATTORNEY-GENERAL FOR THE STATE OF QUEENSLAND (applicant) v XHW (respondent) FILE NO/S: BS No 13569 of 2019 DIVISION: Trial Division PROCEEDING: Originating application ORIGINATING COURT: Supreme Court of Queensland DELIVERED ON: 27 May 2020 DELIVERED AT: Brisbane HEARING DATE: 11 May 2020 JUDGE: Burns J ORDER: Being satisfied to the requisite standard 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 (Qld), the order of the court is that the respondent is detained in custody for an indefinite term for control, care or treatment. CATCHWORDS: CRIMINAL LAW – SENTENCE – SENTENCING ORDERS – ORDERS AND DECLARATIONS RELATING TO SERIOUS OR VIOLENT OFFENDERS OR DANGEROUS SEXUAL OFFENDERS – DANGEROUS SEXUAL OFFENDER – GENERALLY– where there is an application pursuant to s 5 of the Dangerous Prisoners (Sexual Offenders) Act 2003 for an order pursuant to Division 3 of Part 2 of that Act – whether the respondent is a serious danger to the community in the absence of a Division 3 order – where the court may order a continuing detention order or a supervision order pursuant to s 13(5) of the Act – whether the adequate protection of the community could be reasonably and practicably managed by a supervision order – whether the requirements under s 16 of the Act could be reasonably and practicably managed by corrective services officers Dangerous Prisoners (Sexual Offenders) Act 2003 (Qld), s 13, s 16, s 27 -- 1 of 14 -- 2 Attorney-General for the State of Queensland v Beattie [2007] QCA 96, cited Attorney-General for the State of Queensland v Fardon [2011] QCA 155, cited Attorney-General v Francis [2007] 1 Qd R 396, cited Attorney-General for the State of Queensland v Sutherland [2006] QSC 268, cited Attorney-General for the State of Queensland v Waghorn [2006] QSC 171, cited COUNSEL: J Tate for the applicant J P Benjamin for the respondent SOLICITORS: Crown Solicitor for the applicant Legal Aid (Qld) for the respondent [1] The Attorney-General for the State of Queensland applies for an order pursuant to s 13(5) of the Dangerous Prisoners (Sexual Offenders) Act 2003 (Qld) to detain the respondent in custody for an indefinite term for care, treatment or control. [2] The statutory premise for the making of a continuing detention order is that there is evidence on which the court can be satisfied that the respondent is a serious danger to the community, that is to say, that there is an unacceptable risk that he will commit a serious sexual offence if released into the community. The respondent concedes, through his counsel, that he is a serious danger to the community in the absence of an order under Division 3 of Part 2 of the Act but contends that the adequate protection of the community can be ensured by his release subject to a supervision order. Nevertheless, the applicant, through her counsel, presses for the making of a continuing detention order because, it was contended, the respondent presents as a high risk of committing a serious sexual offence even if he is released on supervision and that is primarily for the reason that the underlying causes of his offending are untreated. [3] For the reasons that follow, the respondent will be detained in custody for an indefinite term for control, care or treatment. Background [4] The respondent is a 52 year old indigenous man. He was born in Sydney and had what his reporting psychologist, Dr Madsen, described as a “chaotic, stressful and impoverished early home environment”. His parents separated when he was very young. The respondent stayed with his mother and sister until he was about 15 years of age. He ran away but later returned and went back to school before leaving at the end of that year. The respondent then lived on the streets in the Penrith area. From that point on, he became increasingly involved in criminal activities which ran hand- in-hand with his abuse of alcohol and illicit substances. At the age of 21 or 22, he moved to Queensland after one of his relatives promised him work as a concreter but he soon found himself in trouble again with the authorities. Thereafter, he seems to have moved backwards and forwards between the two States whenever he has not been in custody. Otherwise, the respondent has struggled to obtain lasting employment with most of what work he has done consisting of casual labouring. The -- 2 of 14 -- 3 respondent has few skills and little in the way of an education. He is reported to be the father of ten children from a string of relationships over the course of his adult life. [5] The respondent has a lengthy, and relevant, criminal history in Queensland and New South Wales. He has been before the courts on no less than 18 occasions and has been incarcerated a number of times, his first such period of imprisonment commencing when he was about 18 years of age. In addition to his convictions for sexual offences, the respondent has also been dealt with for an array of other offences involving theft, drugs, false pretences, assault, offensive behaviour, robbery with wounding, property damage and assault occasioning bodily harm. [6] The respondent’s history of sexual offending commenced with convictions on 8 February 1995 in the District Court at Bowen with respect to one count of rape and one count of indecent assault with a circumstance of aggravation. He was sentenced to an effective head sentence of nine years imprisonment. He subsequently applied to the Court of Appeal for leave to appeal against his sentence but, on 27 April 1995, that application was dismissed. In the course of doing so, Ambrose J (with whom Davies JA and Moynihan J agreed) had this to say about the circumstance of the offences: “The complainant with her fiance, with whom she was then cohabiting, met the applicant at a party in a caravan park. Conversation turned to the fact that the complainant and her young man were anxious to find accommodation outside the caravan park and the applicant told them that he knew of an old house that was available for rental at $50 per week. Subsequently, excited by this prospect, the complainant approached the applicant and asked about it, and he said he would take her to see his mother who knew all about it. She accompanied him and in fact when they approached the derelict house, in which apparently the appellant was residing in rather primitive conditions, he suddenly took hold of her, holding her in a vice-like grip preventing her movement. She was naturally afraid and the fear was not lessened by his observation to her that he wanted to, as he said, fuck her. He threw her inside the fence so that she fell with her back down on the ground, jumped on top of her, [and] threatened to kill her. She said she was terrified. He told her that she could scream as much as she liked, but nobody would hear her. He covered her mouth and nose. She struggled as best she could to avoid his attentions, clenching her legs together tightly, but he was very strong young man and eventually he managed to penetrate her with difficulty. The difficulty apparently caused him some anger and in the course of having intercourse with her, he, as it is said, pounded her, causing her pain and breathlessness. She continued to cry and call out for her fiancé upon which the applicant abused her, and then told her that he was going to, as he said, ‘stick it up your arse’. He rolled her over onto a filthy mattress and effected anal penetration which caused her intense pain. He then volunteered to her, ‘I have come in your cunt and I have come in your arse’. He then left her to satisfy his toiletry needs and she took the opportunity to run away from the place. She was bleeding and painful and quite hysterical. She attended a hospital where it was found that she had a wound to the lower lip caused by a punch that the applicant had inflicted on her. She was scratched -- 3 of 14 -- 4 and bruised on her leg and back. The labia and tissue around the anus was extremely tender and swollen, so tender indeed that it was not possible, without causing unacceptable pain, to effect any internal examination of those parts of her.” [7] The respondent’s behaviour during his trial, was also the subject of comment: “At the trial the applicant demonstrated no remorse. He gave evidence that in fact the complainant had pursued him and had motivated him to have sexual relationships with her by initiating sexual contact by fellatio. He said that she had consented to having vaginal intercourse with him and that initially the sodomy occurred by accident, but she then consented to it. In the course of his trial he was warned on a number of occasions by the learned trial Judge. He was standing and staring intently during the time the Prosecutor was opening the Crown case. A police guard had to pull him back a number of times from leaning over the dock and staring at the complainant as she gave her evidence. She was so badly affected in the course of the trial that the case had been adjourned to allow her to recover. The complainant was cross-examined vigorously and she became distressed. There was evidence which was contradicted that the whole event – both the trauma of the offences committed upon her and the treatment that she received in the Court house, presumably upon instructions from the applicant, had had very serious and lasting effect on her.” [8] Next in sequence so far as the respondent’s sexual offending is concerned were the respondent’s convictions in the District Court on 23 February 2007 of one count of common assault and one count of stealing. These offences occurred on 4 May 2005, when the respondent happened upon the 16 year old victim and two of her friends at a store. The common assault was constituted by the respondent having made sexual remarks to the victim and, while doing so, running his hand down her thigh and knee. On both counts, the respondent was sentenced to one month imprisonment, wholly suspended for a period of nine months. [9] Then, on 6 February 2009, the respondent again appeared in the District Court at Hervey Bay, this time to plead guilty to an indictment charging one count of wilful damage and one count of carnal knowledge of a girl under the age of 16 years. He was initially charged with one count of rape, however the prosecution could not exclude the possibility that he had an honest and reasonable, but mistaken, belief regarding the issue of consent. Thus, upon the respondent’s guilty plea to the carnal knowledge count, a nolle prosequi was entered in relation to the count of rape. [10] The respondent was 40 years old at the time of these offences, and 41 when sentenced. The carnal knowledge count was constituted by an act of sexual intercourse between the respondent and his 15 year old maternal half-sister. They had both consumed a significant quantity of alcohol. The complainant awoke to the respondent having intercourse with her. She protested, but the respondent persisted until ejaculation. However, as to the degree of that persistence, the concession made by the prosecution should not be overlooked. The respondent received a sentence of two years imprisonment, wholly suspended for a period of three years after account was taken of the time the respondent had spent in presentence custody that could not be declared. -- 4 of 14 -- 5 A non-contact order was made with respect to the complainant for a period of two years. [11] Two and half years into the operational period of that order, on 5 August 2011 the respondent went on “somewhat of a domestic rampage”. This included the breach of a domestic violence order, the breach of a bail undertaking, the breach of reporting requirements under the Child Protection (Offender Reporting) Act 2004, an assault of a police officer and wilful damage. In consequence, on 8 September 2011, he came back before the District Court at Hervey Bay where he was dealt with for breaching the suspended sentence imposed on 6 February 2009. The court ordered that the operational period be extended by a period of 12 months. [12] The final episode of sexual offending on the part of the respondent consists of the index offences, that is to say, four counts of rape committed against his eight year old daughter over the course of 2012. The respondent was convicted of these offences following a trial in the District Court at Brisbane and sentenced on 7 August 2014. [13] The respondent was approximately 45 years old at the time of the offending, and 46 when sentenced. The offences were committed over two separate days when his partner and their two youngest children were away visiting relatives in Hervey Bay. On each occasion, the victim and three other siblings were left at home in Maryborough in the respondent’s care. Each offence consisted of the respondent forcing his young daughter to perform oral sex on him. These offences also breached the suspended sentence imposed on 6 February 2009 and extended on 8 September 2011. [14] The sentencing judge, his Honour Judge Farr SC, made the following observations: “The offences that you have been convicted of before me are serious indeed. You caused your own daughter to perform oral sex on you on four separate occasions over two separate days. You ejaculated into her mouth on each of those occasions. You told her not to tell anyone. You were, as I’ve indicated already, of a mature age at the time. You have demonstrated absolutely no remorse for your behaviour in the course of this matter. You put the complainant through the rigours of a trial and questioning. You have, as I’ve already indicated, a lengthy and serious criminal history for offences that include offences of relevance, and you were on a suspended sentence for a sex offence at the time of the commission of these offences. To say that the breach of trust that you have displayed in the commission of these offences is significant would be an understatement. Given your criminal history and the nature of the offending conduct, the subject of the trial before me, it is quite obvious that the primary sentencing consideration is the protection of the public. General deterrence is, of course, also a significant consideration on sentence. Whilst your rehabilitation, of course, is to be hoped for it really assumes … minimal significance at this stage of your life, given the nature of the offences and your criminal history. As I say, protection of the public is of paramount importance. It appears to me that your behaviour, as exhibited in the most serious of the offences that you have already been convicted of, and the offences that you have been convicted of today, demonstrate that you are, potentially, a danger to female members of society, particularly young persons, and that that -- 5 of 14 -- 6 protection aspect must be given due recognition in the sentence which I impose.” [Emphasis added] [15] On each count, the respondent was sentenced to a term of five years imprisonment to be served concurrently. A period of pre-sentence custody in the order of 438 days was declared as time already served under those terms. In respect of the suspended sentence, the breaches were proven, and the sentence on each count (two years imprisonment) was fully invoked. It was ordered that these terms be served cumulatively on the five year term imposed with respect to each count of rape. [16] The respondent’s full time release date was on 25 May 2020, but an interim detention order was made ahead of that date and expires today. Is the respondent a serious danger to the community in the absence of an order? [17] Section 13 of the Act is in the these terms: “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— (aa) any report produced under section 8A; (a) the reports prepared by the psychiatrists under section 11 and the extent to which the prisoner cooperated in the examinations by the psychiatrists; (b) any other medical, psychiatric, psychological or other assessment relating to the prisoner; (c) information indicating whether or not there is a propensity on the part of the prisoner to commit serious sexual offences in the future; -- 6 of 14 -- 7 (d) whether or not there is any pattern of offending behaviour on the part of the prisoner; (e) efforts by the prisoner to address the cause or causes of the prisoner’s offending behaviour, including whether the prisoner participated in rehabilitation programs; (f) whether or not the prisoner’s participation in rehabilitation programs has had a positive effect on the prisoner; (g) the prisoner’s antecedents and criminal history; (h) the risk that the prisoner will commit another serious sexual offence if released into the community; (i) the need to protect members of the community from that risk; (j) any other relevant matter. (5) If the court is satisfied as required under subsection (1), the court may order— (a) that the prisoner be detained in custody for an indefinite term for control, care or treatment (continuing detention order); or (b) that the prisoner be released from custody subject to the requirements it considers appropriate that are stated in the order (supervision order). (6) In deciding whether to make an order under subsection (5)(a) or (b)— (a) the paramount consideration is to be the need to ensure adequate protection of the community; and (b) the court must consider whether— (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).” [18] It will be seen that s 13 of the Act requires the court to consider whether the respondent is a serious danger to the community in the absence of a Division 3 order. To do so, it is necessary to determine whether there is an unacceptable risk that the respondent will commit a serious sexual offence if released from custody or if he is released from custody without a supervision order being made. A “serious sexual offence” means an offence of a sexual nature involving violence or against children. The court may decide that the respondent is a serious danger to the community in the absence of an order under Division 3 only if satisfied by acceptable, cogent evidence -- 7 of 14 -- 8 and to a high degree of probability that the evidence is of sufficient weight to justify that decision. Furthermore, in deciding whether a prisoner is a serious danger to the community, the court must have regard to the various matters set forth in s 13(4). The onus is on the applicant to satisfy the court that an order is required: s 13(7). [19] It is important to a proper understanding of the provisions of the Act to appreciate that the relevant risk is the risk of commission of a serious sexual offence; it is not the risk that the respondent will offend in other ways. It follows that the respondent will only represent a serious danger to the community within the meaning of s 13(2) if there is an unacceptable risk that he will commit a serious sexual offence if released from custody, with or without a supervision order. In considering whether any such risk is unacceptable, it is necessary to take into account, and balance, the nature of the risk and the degree of likelihood of it eventuating, with the seriousness of the consequences if that risk does eventuate. [20] The respondent is very much an untreated sex offender. He has a history of having failed to complete a sexual offenders’ treatment program when in custody in about 1999 and, since the date of his sentence for the index offences, he has been offered, but declined, a placement on all of the following programs: (a) Getting Started: Preparatory Program [GS: PP] (8 April 2015); (b) Getting Started: Preparatory Program [GS: PP] (13 March 2017); (c) Getting Started: Preparatory Program [GS: PP] (7 April 2017); (d) Getting Started: Preparatory Program [GS: PP] (25 January 2019); (e) Getting Started: Preparatory Program [GS: PP] and the Medium Intensity Sex Offenders Program [MISOP] (24 July 2019); (f) Positive Futures Program (14 August 2019); and (g) Low Intensity Substance Intervention, Moderate Intensity Substance Intervention, Substance Abuse Maintenance Intervention and Resilience Programs (29 August 2019). [21] In consequence, the psychiatrists who have been called on to assess the respondent for the purposes of this application – Drs Arthur, Beech and McVie – have expressed the following opinions regarding the significance of the respondent’s refusal to participate in the offered programs: (a) Dr Arthur: “[There] remain a number of static and dynamic factors indicating a significant ongoing risk for sexual recidivism. Prisoner [the respondent] still has unmet treatment needs. His failed attempt at the Sexual Offender Treatment Program was almost 20 years ago and he has had no further offence-specific interventions since that time. There is a significant risk that he will return to substance abuse on release from jail. Whilst he acknowledges his past problems with substances, he expressed the belief that he can engage in safe drinking practices, which is not justified based on his history. There is still evidence of underlying personality pathology, with prisoner [the respondent] making veiled threats of suicide or self-harm if he is not released from jail”; -- 8 of 14 -- 9 (b) Dr Beech: “Against these militating factors and his age, there are many concerns. He has repeatedly declined treatment for sexual offending and substance use. He has few if any supports. In my opinion, he has very poor insight and self-awareness and I think he remains vulnerable to stress. His plan, to repeat the words of Dr Lars Madsen in 2017, are naïve and simplistic. I do not think they particularly address pertinent risk factors. … While I accept that he might be able to take up treatment in the community, I think his refusal to undertake any programs in prison at the moment is a poor prognostic factor for community treatment”; and (c) Dr McVie: “He also failed to complete a Sexual Offenders Treatment Program in 1999. Theory suggests offenders who fail to complete programs are at higher risk of re-offending than those who do have not commenced programs. Though the history does suggest his sexual offending occurs in the context of social stressors and heavy substance use, he has not engaged in any programs to address his substance use, simply stating he will not resume it on release. His plans for the future are limited and do not contain any relapse prevention or risk management strategies.” [22] As to their clinical assessments, Dr Arthur considered that a diagnosis of Cluster B Personality Disorder including Antisocial Personality Disorder (with Borderline features), Polysubstance Misuse Disorder (alcohol, amphetamines and cannabis, in remission in a controlled environment), Disturbed Attachments and lack of sexual boundaries was appropriate. Dr Beech expressed the opinion that the respondent suffers from Anti-Social Personality Disorder (with significant Borderline Personality Disorder traits) and Alcohol and Substance Use Disorder (in remission in custody). Dr McVie was in substantial agreement with the diagnostic formulation provided by Dr Beech. Each opined that the respondent’s unmodified risk of sexual reoffending fell within the moderately high (Dr Arthur) to high (Drs Beech and McVie) range, as follows: (a) Dr Arthur: “Were prisoner [the respondent] to sexually reoffend, he would most likely engage in rape. Based on his history of offending, the victims would be known to him and may include family members or children. Any future sexual offending will be driven by sexual gratification, sexual entitlement or possibly as a way of managing intense negative affects. This would most likely cause significant psychological harm to the victims. Whilst his use of physical coercion and violence appears to have lessened over time, there remains a significant risk that if aroused or angry, he may cause physical harm to the victim. Given that his offences follow no clear pattern, it is difficult to estimate the imminence of offending on release from custody. Warning signs that might signal an increased risk include a return to heavy substance use, unemployment, relationship breakdown/conflict and unsupervised access to vulnerable females (either due to their age, personality or substance use issues). Intoxication with alcohol and amphetamines appears to be a significant risk factor. Based on his history, further offending is likely to be sporadic and opportunistic. … -- 9 of 14 -- 10 I estimate prisoner [the respondent]’s unmodified risk for sexual recidivism on release from jail to be moderately high”; (b) Dr Beech: “In my opinion, the risk of further violent sexual offending in the community is high. Despite his age and evidence of some maturation, [the respondent] remains an untreated recidivist sex offender with particular vulnerabilities around stress and coping, substance use, and lack of supports. The risk is that on release he will form a relationship. It will become problematic and dysfunctional. He will return to substance use. During a period of conflict or stress, while intoxicated, he will resort to sex to deal with his difficulties and to meet his sexual gratification. There would be marked victim diversity – it could be a young female member, an extended family member, or a complete stranger. The victim would suffer psychological injury and I think there is some risk of physical injury. [The respondent] is likely to deny the charges and the matter will go to trial, and the victim will have to give evidence in some form. A more positive scenario is that [the respondent] has taken on board recent reflections on his behaviour. He will not return to substance use. Although he will struggle on release, he will find stable accommodation. He will attempt to reconcile with his family and they will provide sufficient supports for him. The difficulty with that scenario is that through his life [the respondent] has not shown the capacity to find this level of stability or to abstain from substance use. He has not taken advantage of rehabilitation programs that would enable him to develop insight and strategies to deal with these problems or to plan for them. He has no concrete plans for his release and limited insight into how he could address them”; and (c) Dr McVie: “Assessment, actuarial and structured clinical, indicates [the respondent] is at high risk of re-offending sexually. He has no strategies in place to deal with relapse into substance use or to cope with stress in his environment. He has a poor history of compliance with supervision in the past.” [23] Each psychiatrist was called at the hearing and cross-examined by counsel for the respondent. So, too, were Dr Madsen (who last reported on the respondent on 7 August 2017 and has not seen the respondent since) and Ms Byrne (the Acting Manager, Offender Intervention Unit, Corrective Services Queensland who gave evidence about the current availability of group treatment programs as well as one- on-one counselling services). [24] There was no real challenge to the psychiatric opinions offered in this case to the effect that the respondent represents a moderately high to high risk of sexually reoffending against young females, an extended family member or a complete stranger if he is released into the community. He is, as I have already observed, an untreated and recidivist sex offender. His substance abuse issues are also yet to be treated. Although there is evidence of a degree of genuine shame and remorse, the respondent has done nothing to address his offending behaviour. In the result, he has little real insight into the causes of that behaviour or the drivers for it. He has no real appreciation of his triggers for future sexual offending, let alone risk management strategies or appropriate plans for his release into the community. [25] As mentioned at the outset of these reasons (at [2]), the respondent through his counsel conceded that he is a serious danger to the community in the absence of an order under Division 3. He was right to make that concession. The expert evidence, which I have no hesitation in accepting, is uniformly to that effect. -- 10 of 14 -- 11 [26] I therefore am satisfied by acceptable, cogent evidence and to the high degree of probability required by the Act that the evidence overall is of sufficient weight to justify the conclusion that the respondent is a serious danger to the community in the absence of a Division 3 order. Which, if any, order should be made? [27] As s 13(5) of the Act makes plain, when the court is satisfied that a prisoner is a serious danger to the community in the absence of a Division 3 order, the court may order that the prisoner be detained in custody for an indefinite term for control, care or treatment (a continuing detention order) or that he be released from custody subject to the requirements it considers appropriate that are stated in the order (a supervision order). In deciding whether to make either of those orders, the paramount consideration is the need to ensure adequate protection of the community. In that regard, the court must consider whether adequate protection of the community can be reasonably and practicably managed by a supervision order and, further, whether the requirements under s 16 of the Act can be reasonably and practicably managed by corrective services officers. [28] Section 16 of the Act provides as follows: “16 Requirements for orders (1) If the court or a relevant appeal court orders that a prisoner’s release from custody be supervised under a supervision order or interim supervision order, the order must contain requirements that the prisoner— (a) report to a corrective services officer at the place, and within the time, stated in the order and advise the officer of the prisoner’s current name and address; and (b) report to, and receive visits from, a corrective services officer as directed by the court or a relevant appeal court; and (c) notify a corrective services officer of every change of the prisoner’s name, place of residence or employment at least 2 business days before the change happens; and (d) be under the supervision of a corrective services officer; and (da) comply with a curfew direction or monitoring direction; and (daa) comply with any reasonable direction under section 16B given to the prisoner; and (db) comply with every reasonable direction of a corrective services officer that is not directly inconsistent with a requirement of the order; and Examples of direct inconsistency— If the only requirement under subsection (2) contained in a particular order is that the released prisoner must live at least 1km from any school— 1 A proposed direction to the prisoner would be directly inconsistent if it requires the released prisoner to live at least 2km from any school. -- 11 of 14 -- 12 2 A proposed direction to the prisoner would not be directly inconsistent if it requires the released prisoner to live at least a stated distance from something else, including, for example, children’s playgrounds, public parks, education and care service premises or QEC service premises. 3 A proposed direction to the prisoner would not be directly inconsistent if it requires the released prisoner not to live anywhere unless that place has been approved by a corrective services officer. (e) not leave or stay out of Queensland without the permission of a corrective services officer; and (f) not commit an offence of a sexual nature during the period of the order. (2) The order may contain any other requirement the court or a relevant appeal court considers appropriate— (a) to ensure adequate protection of the community; or Examples for paragraph (a)— • a requirement that the prisoner must not knowingly reside with a convicted sexual offender • a requirement that the prisoner must not, without reasonable excuse, be within 200m of a school • a requirement that the prisoner must wear a device for monitoring the prisoner’s location (b) for the prisoner’s rehabilitation or care or treatment.” [29] In the exercise of the discretion conferred by s 13(5) of the Act, the principal question is whether the protection of the community can be adequately ensured. If supervision of the prisoner is apt to ensure adequate protection, then an order for supervised release should, in principle, be preferred to a continuing detention order. This is because “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 authorises such constraint”.1 It is for that reason that a continuing detention order should only be made where the applicant proves that the community cannot be adequately protected by a supervision order.2 [30] It is important also to keep in mind that the risk in relation to which the community requires protection is the risk that the respondent, if released, will commit a serious sexual offence. Even then, the existence of some risk of reoffending is not sufficient; the risk must be of an unacceptable order.3 Adequate protection is a relevant concept, as is unacceptable risk. As such, the Act recognises that some level of risk can be acceptable consistently with the adequate protection of the community. Indeed, the assessment of what level of risk is unacceptable or, expressed another way, what order is necessary to ensure adequate protection of the community, is not a matter for 1 Attorney-General v Francis [2007] 1 Qd R 396, 405 [39]. 2 Attorney-General for the State of Queensland v Sutherland [2006] QSC 268, [27]. 3 See Attorney-General for the State of Queensland v Waghorn [2006] QSC 171, [24]. -- 12 of 14 -- 13 psychiatric opinion. It is a matter for the court, requiring a “value judgment as to what risk should be accepted against the serious alternative of the deprivation of a person’s liberty”.4 [31] The onus of demonstrating that the supervision order affords inadequate protection of the community is on the applicant. If, on all of the evidence, a supervision order would be likely to reduce the opportunity to the respondent to engage in sexual offending against women or children to an “acceptably low level”5 then such an order should be made provided there is some evidence to demonstrate that the respondent would be likely to comply with it.6 However, despite the best efforts of counsel for the respondent in cross-examination of the three psychiatrists and Dr Madsen, I am persuaded that a supervision order should not be made in this case. That is for the reason that a supervision order would afford inadequate protection of the community against the risk that the respondent, if released, will commit a serious sexual offence. [32] Each of the psychiatrists (in the end) expressed the opinion that a supervision order would not reduce the risk that the respondent might engage in sexual offending against women or children on release to an acceptably low level. Dr Arthur initially expressed a different opinion but that was based on a misinterpretation of the results of one of the risk assessment tools administered by him (the Static-99R). Of course, each agreed, to varying degrees, that a supervision order might limit and reduce the risk by promoting abstinence, providing stable accommodation and supervision, and facilitating engagement in psychological treatment. It would also act to reduce his opportunity to offend against minors, particularly female family minors. But the point was made, particularly by Dr Beech, that the respondent has not done well on supervised release in the past despite the imposition of suspended sentences. He also has a general distrust of those charged with the task of supervising him and, of course, a lack of any proper insight into his offending behaviour let alone a properly formulated relapse prevention plan. [33] Furthermore, the psychiatrists were at one in the opinion that the respondent should undertake the Getting Started: Preparatory Program followed by the High Intensity Sexual Offenders Program or the Sexual Offenders’ Program for Indigenous Men before he is released from custody. Treatment for his substance abuse issues is also very much indicated. Given the respondent’s repeated refusal to participate in group programs, it seems to me to be essential that one-on-one counselling be provided to the respondent in an attempt to motivate him to participate in group therapy. At present, such counselling is only offered remotely but, nonetheless, it should in my respectful view be made available to the respondent as soon as possible. Assuming, then, that such treatment does serve to motivate the respondent to participate in group programs, he should be offered a place in the Getting Started: Preparatory Program as soon as possible. That will require a transfer from Maryborough to either Wolston or Lotus Glen. On the successful completion of the program, he could then be offered a place on the HISOP (at Wolston) or the SOPIM (at Lotus Glen). It is important in my view that the respondent be assisted through one-on-one counselling to an understanding of the critical importance of treatment to address his offending behaviour in an attempt thereby to reduce the risk he currently presents to the community if released to an acceptable level. My firm impression from the whole of 4 See Attorney-General for the State of Queensland v Sutherland [2006] QSC 268, [30]. 5 See Attorney-General for the State of Queensland v Beattie [2007] QCA 96, [19]. 6 See Attorney-General for the State of Queensland v Fardon [2011] QCA 155. -- 13 of 14 -- 14 the evidence is that he is yet to come to grips with this or its relationship to the need for his continuing detention. [34] In this regard, it may be usefully added that the respondent’s resistance to group therapy is not uncommon and may be capable of being overcome. The evidence in this case, like many others, is that individual therapy is not an adequate substitute for group therapy. Even if it was, the fact of the matter is that the respondent has not undertaken any such therapy and, so, nothing advanced on the hearing of this application could cavil with the proposition that the respondent is untreated and, if released on supervision, will leave untreated. Although I am prepared to accept that were the respondent to be released on a supervision order on the strict conditions proposed in this case, there would be some reduction in the risk the respondent poses due to the strictures of such an order, the risk of commission of a serious sexual offence will remain unacceptably high unless and until the underlying causes of his sexual offending are properly explored and then addressed. [35] I am satisfied that the community cannot be adequately protected by a supervision order. The respondent must be placed on a continuing detention order. Order [36] The respondent will be detained in custody for an indefinite term for control, care or treatment. By s 27(1A) of the Act, this order must be reviewed within two years. -- 14 of 14 --