Attorney-General for the State of Queensland v LKR [2020] QSC 71

SUPREME COURT OF QUEENSLAND CITATION: Attorney-General for the State of Queensland v LKR [2020] QSC 71 PARTIES: ATTORNEY-GENERAL FOR THE STATE OF QUEENSLAND (applicant) v LKR (respondent) FILE NO/S: BS No 6692 of 2018 DIVISION: Trial Division PROCEEDING: Application ORIGINATING COURT: Supreme Court at Brisbane DELIVERED ON: 9 April 2020 DELIVERED AT: Brisbane HEARING DATE: 30 March 2020 JUDGE: Davis J ORDER: 1. The decision of Applegarth J made on 30 November 2018 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 – where an application has been made for review of the order – where this is the first review of the order – where the respondent concedes that there be a continuation of the detention order – where the respondent continues to deny some of the offending – where it is practically impossible for him to engage in a group treatment program because of his denial – where the respondent plans to undertake individual treatment – 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 -- 1 of 13 -- 2 Dangerous Prisoners (Sexual Offenders) Act 2003, s 5, s 13, s 27, 30 Attorney-General for the State of Queensland v Francis [2007] 1 Qd R 396, followed Attorney-General for the State of Queensland v LKR [2018] QSC 280, cited Fardon v Attorney-General (Qld) (2004) 223 CLR 575, followed COUNSEL: J Tate for the applicant B Mumford for the respondent SOLICITORS: GR Cooper, Crown Solicitor for the applicant Wallace O’Hagan Lawyers for the respondent [1] The respondent is the subject of a continuing detention order (the CDO) made under s 13 of the Dangerous Prisoners (Sexual Offenders) Act 2003 (the Act). An application has been made for review of the CDO pursuant to s 27 of the Act. This is the first review of the CDO.1 Background [2] The respondent was born in 1973. He is 47 years of age. He has a serious criminal history which was analysed by Applegarth J who made the CDO against the respondent.2 [3] Serious sexual offences were committed by the respondent in January 1999 the result of which was a sentence of imprisonment of 13 years. However, it was offences committed in June of 2013 that formed the basis of the application by the applicant for the CDO. That offending was described by Applegarth J as follows: “[37] On 28 August 2014, the respondent pleaded guilty and was convicted in the District Court at Brisbane on counts of rape, attempting to pervert the course of justice, unlawful entry of a vehicle for committing an indictable offence at night, stealing and possession of a Schedule 1 dangerous drug. On 20 February 2015, the respondent also pleaded guilty and was convicted of a number of summary offences that included possession of suspected stolen property, trespass and obstruction of police in the performance of their duties. [38] The victim was the respondent’s eight year old niece. He was 40 years old at the time of these offences. The respondent had been staying at his brother’s home and helping with the family mowing business. 1 Dangerous Prisoners (Sexual Offenders) Act 2003, s 27. 2 Attorney-General for the State of Queensland v LKR [2018] QSC 280. -- 2 of 13 -- 3 [39] Early in the morning on 1 June 2013, the respondent entered the bedroom of the victim that she shared with her 11 year old step- sister. He went into the room with a pair of black handled scissors that had been taken from a knife block in the kitchen, a mobile phone that was used as a torch and a cup of water. [40] The respondent poured water over the victim. He then used the scissors to cut away the victim’s pyjama bottoms and he penetrated her vagina with his finger. He also took a number of photographs of the victim’s vagina. The older child, who was sleeping on the upper bunkbed, observed some of the respondent’s conduct. [41] The following morning, the respondent told the victim’s parents that the victim had urinated in bed during the previous night, and that he had cleaned it up. The victim, however, made an early preliminary complaint to her step-sister. The victim informed her step-mother and the police were called. A subsequent medical examination found a small one to two millimetre puncture to one of the internal structures of the child’s vagina. [42] As part of their investigation into the respondent, the police took possession of his vehicle, and took it to an impounding yard. The respondent broke into that yard by climbing over the fence, broke into the vehicle and took evidence (specifically, the mobile phone and other effects incriminating him in the rape). [43] Police later located a plastic bag buried near a tree in the respondent’s garden which contained a mobile phone, adaptor and battery. A further examination of the phone was conducted. Stored on the phone were a number of photographs of the victim’s vagina exposed with part of her pink and white pants also visible. Police also located a backpack in the garage. Inside were clothing, three knives and a quantity of jewellery in a plastic container. [44] An arrest warrant was issued for the respondent on 4 June 2013. He was at large until 11 June 2013, when he was arrested by police following a lengthy pursuit. He was only stopped when a police dog bit him on the ankle, and continued to struggle until he was handcuffed. When police searched the respondent, they located a black wallet and a clip seal bag containing 0.249 grams of methylamphetamine.” [4] That offending resulted in a sentence of imprisonment of five years and six months. A period of 619 days of pre-sentence custody was declared as time served on those sentences and the date of the sentence was set as the parole eligibility date. However, parole was not granted and in due course the applicant made application pursuant to s 5 of the Act for a CDO. -- 3 of 13 -- 4 [5] Of some importance is that after the 1999 offending the respondent completed sexual offender treatment programs only to then commit the 2013 offences. The fact that the relevant offending occurred after completing programs was a significant issue in the opinions of the psychiatrists who were called in the case. [6] The respondent denied, and continues to deny, some of the offending. Statutory context [7] A pivotal section in the Act 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; 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; -- 4 of 13 -- 5 (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).” [8] Under s 27, the onus is cast upon the Attorney-General to make application for review of a continuing detention order made under s 13(5)(a). -- 5 of 13 -- 6 [9] 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— (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.” -- 6 of 13 -- 7 [10] Section 30, 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 the division 3 order” and in that way, s 30(1) mirrors s 13(1). The notion of a “serious danger to the community”3 incorporates the concept of “unacceptable risk”.4 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 definition of “unacceptable risk”, but in Fardon v Attorney-General (Qld),5 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 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 3 Sections 13(1) and 30(1). 4 Section 13(2). 5 (2004) 223 CLR 575. -- 7 of 13 -- 8 community. The predictive exercise of an assessment of damages for future losses is also a daily occurrence in the courts.” (citations omitted) [11] In the leading case of Attorney-General for the State of Queensland v Francis,6 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’.”7 [12] Both Fardon and Francis were cases concerned with the making of orders under s 13 of the Act, but for the reasons I have already explained, the statements of principle are equally apposite to a review under s 30. [13] A review under s 30 of the Act is a two-step process. Firstly, the court must consider the original finding (here made by Applegarth J) 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.8 If that finding is confirmed, then the discretion arises to confirm the CDO or order the release of the respondent on a supervision order. [14] Here, the respondent concedes that the finding that he is a serious danger to the community in the absence of a division 3 order should be confirmed. He also concedes that there should be a continuation of the CDO. He plans to undertake treatment over the next year and hopes that upon the next review of the CDO he will be able to press for his release upon a supervision order. [15] An analysis of the evidence shows that the respondent’s concessions are reasonable and sensible. The evidence [16] A critical issue in the respondent’s case was identified by Applegarth J when imposing the CDO. His Honour said: “[92] The respondent is entitled to deny that he committed some of the sexual offences to which he pleaded guilty, and to refuse to participate in the HISOP. However, his failure and refusal to 6 [2007] 1 Qd R 396. 7 At [39]. 8 Section 13(5)(b) and s 16. -- 8 of 13 -- 9 address the causes of his sexual offending impedes the development of an informed plan to address the risk of his re- offending upon release into the community. That, in turn, means that the extent to which any supervision order will reduce his risk of re-offending to an acceptably low level is uncertain. The respondent’s refusal to engage in sex offending programs in custody and to address the truth about his offending against his niece in 2013 provides a poor basis to conclude that participation in an individual treatment program in the community will adequately address his high risk of sexual re- offending and provide the respondent with (to quote Dr Brown): ‘(a) self-awareness with regard to sexual deviance and behaviour in relationships, (b) coping strategies when relationships don’t go well or breakdown (c) ability to accept responsibility for his offending on more than just a superficial level.’ [93] Until the respondent does these things it is difficult to say what risk reduction strategies should be implemented under a supervision order, and questionable whether the respondent would comply with them to a satisfactory extent.”9 [17] Since the CDO was made, the respondent has engaged in some initial counselling10 with Dr Ursula Oertel, a clinical psychologist experienced in treating sex offenders. He has not, though, completed any further group sexual offender treatment programs. [18] Two psychiatrists, Dr Karen Brown and Dr Michael Beech, both very experienced in assessing respondents under the Act, examined the respondent and prepared reports. Doctor Oertel also prepared a short, but very helpful, report. Those reports were in evidence before me and Doctors Brown, Beech and Oertel all gave oral evidence. Diagnoses [19] There is an unresolved issue as to whether the respondent suffers from paedophilia. The 2013 offending was against a young child. That at least raises the prospect of a diagnosis of paedophilia. The 1999 offending involved three female victims, all adults. Neither psychiatrist could confirm a diagnosis of paedophilia. 9 Attorney-General for the State of Queensland v LKR [2018] QSC 280. 10 Although not a formal treatment program. -- 9 of 13 -- 10 [20] However, both Dr Brown and Dr Beech confirmed a diagnoses of Anti-Social Personality Disorder with associated narcissistic traits and Substance Misuse Disorder in remission in the controlled environment of prison. [21] Doctor Oertel, who was in the position of a treating clinician, made the following observations: “4. [The respondent] presented as a 47 year old Caucasian male. He wore standard issued prison attire and was reasonably well- groomed. He was cooperative throughout the interview process although his interactional style appeared superficial. He was observed to be glib and voluble resulting in him providing very little useful information or anything of substance. [the respondent] would also frequently begin answering a question asked however would end up talking about a completely different subject making it difficult to obtain a comprehensive assessment or understanding about his personal history. Overall, his mood appeared euthymic although his affective expression was observed to be shallow. He provided inconsistences between his verbal expressions of emotion and behaviour. There were no indications that [the respondent] presented with perceptual disturbances, dissociation or agnosia. With respect to his thought content, he did not verbalise any delusions, overvalued ideas, obsessions, phobias or suicidal ideation. While [the respondent] denied the presence of violent thoughts, he admitted to a history of being short-tempered or hot-headed as well as exhibiting verbal aggression and violent behaviour within the custodial environment. [The respondent] did not appear to exhibit symptoms indicative of a thought disorder. He did not appear to exhibit disturbances in orientation or alertness. His attention and concentration appeared sufficient. No significant sensorium, memory or cognitive disturbances were observed. He appeared to be of borderline intelligence although no formal assessment measure was utilised on this occasion. [The respondent] denied perpetrating his sexual offending behaviour on 01 June 2013. He appeared to display limited insight into his cognitive, emotional, social and behavioural functioning. It was noted that [the respondent] provided conflicting information to that outlined in the collateral documentation. As such, he was considered to be an unreliable historian or narrator. [The respondent] also appeared to display limited abilities in judgement, planning and problem solving.” [22] The respondent refuses to admit guilt for the 2013 offences. The effect of this is that it is practically impossible for him to engage in a group treatment program such as the High Intensity Sexual Offenders Program (HISOP). The alternative to a group -- 10 of 13 -- 11 treatment program is the individual treatment of the type which Dr Oertel can provide. [23] As to the aspect of risk, Dr Beech opined: “In my opinion, little has changed since 2018 except that [the respondent] has expressed his willingness to enter into a high intensity sexual offender program. He has though not started a program so he remains formally untreated. In the absence of a deniers’ program, given his raised psychopathic traits, he may be suitable for individual therapy. It would have to be at a sufficient level to be commensurate with the intensive group program, and ultimately there are still no guarantees if he maintains his innocence because that would militate against forming any helpful relapse prevention plan. In my opinion, the risk of re-offending in a sexually violent way remains in the high group, much above average. There are unmet treatment needs and an insufficient relapse prevention program. Supervision would likely reduce that risk but it is difficult to know to what extent this could happen in the absence of an understanding of his offending and his offending pathway, strategies to manage those risk factors, and a relapse prevention plan.” [24] Doctor Brown’s view is: “In my previous report I recommended that [the respondent] should participate in the high risk sexual offenders program. I also suggested that individual therapy would be an alternative. Given that [the respondent] has not participated in any sex offender treatment, my recommendations as given in my last report are essentially unchanged. In my opinion, a return to the community with supervision and monitoring would not reduce the risk or recidivism to a manageable level, in particular because once the initial very restrictive conditions were relaxed, the unaddressed risk factors would emerge and the risk of reoffending would very likely escalate. Whilst [the respondent] maintains his innocence with regards to the index sexual offences he is unlikely to be offered a place on the HISOP program. Although denial is not, in itself, an established risk factor for future sexual offending, it does limit [the respondent] ability to better understand his sexual offending and to create a meaningful relapse prevention plan. Individual therapy may therefore be an alternative strategy, at least initially, in order to challenge some of [the respondent] cognitive distortions with regards to his offending behaviours ... Whatever form of therapy is utilised, I remain of the opinion that [the respondent] needs to demonstrate a better acceptance and understanding of his sexual offending and his risk factors for future -- 11 of 13 -- 12 offending. He should then formulate a detailed risk management and supervision could then be considered.” [25] Both Doctors Beech and Brown hold the view that a group sexual offenders treatment program such as the HISOP is the best and most effective form of treatment, but hold the view that the respondent may respond to individual treatment. Both accept that Dr Oertel’s proposed treatment is appropriate, given the respondent’s denial of the relevant offending. [26] Doctor Oertel explained the proposed treatment and how it might be offered in the time of the present pandemic in these terms: “Now, my last question probably to you is would you paint me a picture, please, of what that treatment will look like over the next six to 12 months?---Yes. So the treatment would occur on a fortnightly basis and it will be individually, so would be [the respondent] and myself. It would be focusing on the two components. One would be the - the motivation to change in relation to his offending conduct, but also adopting that cognitive behavioural model targeting his risk factors in relation to his offending behaviour. And you’ve - have you had an opportunity at this point of discussing those ambitions with [the respondent]?---No, unfortunately. Our first session was booked for this Friday, the 3rd of April. That was to be our first sessions of the individual treatment. So, as such, I haven’t had a chance to do that, but that was the plan starting from this Friday. And would it - was it envisaged - and I am well aware that we’re living through a COVID-19 pandemic - was it envisaged, however, that you would be seeing him every second week?---That is correct. So referral has been sent through from HROMU,11 I guess, giving the green light to commence fortnightly individual treatment with [the respondent]. And the last question, then, is how that might happen really is going to depend on how the jails are with the pandemic and what have you. Is that correct?---Yes. Yes. We’re in the process of trying to find some alternative avenues to deliver that treatment, whether that be via video conference or teleconference.” And in cross-examination: “Now, in your opinion, based on the material that you’ve seen thus far, is there a need for [the respondent] to undertake a form of drug and alcohol relapse prevention program?---Separate to the individual treatment? Well, whether it’s - well, the first question, I suppose, is whether you are of the view that he ought to undertake a drug and alcohol relapse 11 Queensland Correctives Services’ High Risk Offenders Management Unit. -- 12 of 13 -- 13 prevention plan - treatment program - sorry?---I believe his substance use could be adequately addressed in the individual treatment, given that it seems like that has been a risk factor for him in the past, and would inevitably be identified and targeted in the individual treatment. All right. That was my next question, whether that could be done as part of the - excuse me - proposed program that you set out at paragraph 9?---Absolutely. Yeah. And that’s something that you’re capable of administering?--- Absolutely. And yes, I can.” [27] I accept the evidence of Doctors Beech and Brown as to risk. I consider that evidence to be acceptable and cogent to the question of risk. I am satisfied to a high degree of probability that the respondent is a serious danger to the community in the absence of an order under the Act. [28] I accept the evidence of Doctors Beech and Brown as to their diagnoses of the respondent. I accept Dr Oertel’s clinical observations of the respondent as accurate. [29] The fact that the respondent, with his serious history of sexual offending, his Anti- Society Personality Disorder and Substance Misuse Disorder and the fact that he remains largely untreated, results in a conclusion that his release from custody on a supervision order would not provide adequate protection to the community against the commission by him of a serious sexual offence. [30] By force of s 27 of the Act, the CDO must be reviewed annually. Assuming that the respondent engages in treatment from Dr Oertel (or a similarly qualified and experienced psychologist), the question on the next review will probably be whether that individual, “one-on-one” treatment has sufficiently reduced risk to enable his release on a supervision order or whether the completion of some form of group sexual offender treatment program is necessary. Orders [31] I order that: 1. The decision of Applegarth J made on 30 November 2018 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. -- 13 of 13 --