Attorney-General for the State of Queensland v Lawrence [2020] QSC 73

SUPREME COURT OF QUEENSLAND CITATION: Attorney-General for the State of Queensland v Lawrence [2020] QSC 73 PARTIES: ATTORNEY-GENERAL FOR THE STATE OF QUEENSLAND (Applicant) v MARK RICHARD LAWRENCE (Respondent) FILE NO/S: BS 7468 of 2007 DIVISION: Trial Division PROCEEDING: Application DELIVERED ON: 9 April 2020 DELIVERED AT: Brisbane HEARING DATE: 24 March 2020 JUDGE: Bowskill J ORDER: The court affirms the decision made on 3 October 2008 that the respondent is a serious danger to the community in the absence of an order pursuant to Division 3 Part 2 of the Dangerous Prisoners (Sexual Offenders) Act 2003 (Qld). Following consideration of any further submissions from the parties, within a time frame to be determined, on the terms of the proposed supervision order (a draft of which will be provided to the parties today), the court proposes to make orders: (a) that the continuing detention order made on 3 October 2008 be rescinded; and (b) that the respondent be released from custody, subject to the requirements of a supervision order, as discussed in the reasons for judgment, for a period of 20 years from the date of his release. CATCHWORDS: CRIMINAL LAW – SENTENCE – SENTENCING ORDERS – ORDERS AND DECLARATIONS RELATING TO SERIOUS OR VIOLENT OFFENDERS OR DANGEROUS SEXUAL OFFENDERS – DANGEROUS SEXUAL OFFENDER – GENERALLY – where a continuing detention order was made under the Dangerous Prisoners (Sexual Offenders) Act 2003 (Qld) in relation to the respondent on 3 October 2008 that has been affirmed following reviews on many occasions since – where the applicant seeks, on the further review of that order, an order that the respondent continue to be subject to the continuing detention order – -- 1 of 35 -- 2 whether the applicant has discharged the burden of establishing that, in the circumstances as they now are, based on the evidence presently available, a supervision order will not afford adequate protection to the community Dangerous Prisoners (Sexual Offenders) Act 2003 (Qld) s 13, s 17, s 27, s 30 Attorney-General (Qld) v Allen [2019] QSC 56 Attorney-General (Qld) v Beattie [2007] QCA 96 Attorney-General (Qld) v Fardon [2011] QCA 111 Attorney-General (Qld) v Fardon [2011] QCA 155 Attorney-General (Qld) v Fardon [2013] QCA 64 Attorney-General (Qld) v Francis [2007] 1 Qd R 396; [2006] QCA 324 Attorney-General (Qld) v Jackway [2017] QSC 67 Attorney-General (Qld) v Lawrence [2008] QSC 230 Attorney-General (Qld) v Lawrence [2010] 1 Qd R 505; [2009] QCA 136 Attorney-General (Qld) v Lawrence [2011] QCA 347 Attorney-General (Qld) v Lawrence (2014) 224 A Crim R 184; [2014] QCA 220 Attorney-General (Qld) v Lawrence [2016] QSC 58 Attorney-General (Qld) v Lawrence [2017] 2 Qd R 754; [2017] QSC 61 Attorney-General (Qld) v Lawrence [2017] QCA 27 Attorney-General (Qld) v Lawrence [2018] QSC 218 Attorney-General (Qld) v Sutherland [2006] QSC 268 COUNSEL: J B Rolls for the applicant B H P Mumford for the respondent SOLICITORS: Crown Law for the applicant Legal Aid Queensland for the respondent Introduction [1] The respondent is a 58 year old man who has been in custody for over 36 years, since December 1983. For the past 12 years, since 3 October 2008, he has been detained in custody under a continuing detention order made under Dangerous Prisoners (Sexual Offenders) Act 2003 (Qld).1 [2] As required by s 27 of the Act, the continuing detention order has been reviewed a number of times since it was first made.2 Although on occasions over that time judges of this court have rescinded the continuing detention order, and made an order for the 1 See Attorney-General v Lawrence [2008] QSC 230 (Fryberg J). 2 See the summary of the history of detention orders in Atkinson J’s decision in Attorney-General v Lawrence [2016] QSC 58 at [20]-[24]; further reviews were undertaken before Martin J in April 2017 (Attorney-General v Lawrence [2017] 2 Qd R 754) and before Brown J between April and July 2018 (see Attorney-General v Lawrence [2018] QSC 218). -- 2 of 35 -- 2 respondent’s release on a supervision order,3 those orders have been overturned on appeal.4 [3] As is apparent from the Court of Appeal’s 2014 decision, a critical issue has been the honesty and reliability of the respondent, as the source of the factual foundation for the expert psychiatrists’ opinions and assessment of ongoing risk.5 This is because the risk of the respondent reoffending is associated with the risk that he will continue to have violent sexual fantasies of raping and killing a woman, and act on them.6 Previously, the method of obviating that risk was for him to learn to recognise triggers that may cause him to have thoughts which could develop into such a fantasy and use strategies to prevent the fantasy from developing. That would require the respondent to candidly disclose the thoughts to those treating and supervising him.7 [4] At the time of the review in 2016, reliance was still being placed on the reliability of the respondent’s account, in the assessment of risk. Atkinson J found, however, that: “There were a sufficient number of inconsistences in his accounts as to various matters for me to entertain doubt as to his credibility and finally to conclude that where his version was the only evidence, it lacked the honesty and reliability necessary for me to be able to accept it.”8 [5] Her Honour concluded that the “risk to members of the community from [the respondent] is obvious and must be measured not only against the risk posed of his re-offending but also the risk posed by his re-offending; that is, of very serious, potentially fatal, harm”. Her Honour found that, in the circumstances and on the evidence then before her, “the only way to protect the public from the risk posed by” the respondent was for him to continue to be subject to the continuing detention order.9 [6] There was a further review in April 2017, before Martin J. By this time, there was greater emphasis being placed on the use of anti-libidinal drugs as a means of dealing with the respondent’s sex drive, which was identified by one of the psychiatrists, Dr Aboud, as the “key moderator of the risk”.10 But again, the unreliability of the respondent was a critical factor, as the drug would need to be taken orally, and “there would be a high degree of reliance placed upon his own self-reporting”. Martin J alluded to another treatment, involving monthly injections, which was “dismissed as a possibility because it is not available under the PBS and is prohibitively expensive”.11 On this occasion, in light of the psychiatrists’ evidence, the respondent 3 For example, in October 2011 (Attorney-General v Lawrence [2011] QSC 291) and again in May 2014 (Attorney-General v Lawrence [2014] QSC 77). 4 Attorney-General v Lawrence [2011] QCA 347; Attorney-General v Lawrence (2014) 224 A Crim R 184. 5 Attorney-General v Lawrence (2014) 224 A Crim R 184 at [28], [34], [87]-[90]. See also the earlier Court of Appeal decision, [2011] QCA 347 at [50]. 6 See also Attorney-General v Lawrence [2017] QCA 27 at [12]. 7 Attorney-General v Lawrence [2016] QSC 58 at [181]. 8 Attorney-General v Lawrence [2016] QSC 58 at [183]; see also Attorney-General v Lawrence (2014) 224 A Crim R 184 at [88]. 9 Attorney-General v Lawrence [2016] QSC 58 at [195]; upheld on appeal [2017] QCA 27 at [34]. 10 Attorney-General v Lawrence [2017] 2 Qd R 754 at [22]. 11 Attorney-General v Lawrence [2017] 2 Qd R 754 at [23]. -- 3 of 35 -- 3 ultimately did not oppose an order that he continue to be subject to the continuing detention order. [7] The next review took place between April and July 2018 before Brown J. The respondent had commenced taking an anti-libidinal drug (orally) and an antidepressant, in April 2017.12 The psychiatrists expressed some concerns about relying upon the respondent to take oral medication, and agreed that an injectable form of medication would be more favourable in managing the respondent.13 They also expressed the view that whilst the testosterone levels recorded for the respondent since commencing the medication were low, they were not the levels they would hope to see because, as Dr Aboud said, “the management of the respondent on antilibidinal drugs is trying to achieve as close to a failsafe mechanism as possible, given the rather unusual and extreme nature of the respondent’s sexual risk”.14 Dr Aboud was also of the view that if there was to be a change from the respondent’s oral medication to an injectable medication, that transition should happen in the custodial environment.15 [8] At the time of this review, the position was that although Queensland Corrective Services (QCS) would fund a psychiatrist to assess the respondent and administer anti-libidinal medication, including regular blood tests to monitor his testosterone levels, it would not fund any medication for offenders, and so the cost of the anti- libidinal medication would have to be borne by the respondent.16 [9] Justice Brown acknowledged the respondent had taken a number of steps to demonstrate that he could be released under a supervision order, as well as taking anti-libidinal medication. However, Brown J found that the risk of reoffending by the respondent could not presently be managed through a supervision order, principally because of the essential role played by the anti-libidinal medication, in combination with psychiatric and psychological intervention, and supervision, in managing that risk. As there was at that time no mechanism by which QCS could reasonably and practicably ensure the respondent would take the oral medication daily; and no evidence of any alternative mechanism available to supervise the daily taking of the medication, there was a significant risk that the respondent would not take the medication, and QCS would not be able to detect that.17 Her Honour was not satisfied there was evidence then available of an appropriate treatment regime, such as would ensure the adequate protection of the community if the respondent were released under a supervision order; although did not discount the possibility that such a regime could be put in place in the future.18 The respondent was ordered to continue to be subject to the continuing detention order. [10] On 4 April 2019, the Attorney-General applied for a further review of the continuing detention order, as required under s 27 of the Act. For various reasons, relating to the availability of reports, new issues arising, and other medical matters, there has been a delay in the hearing of this review proceeding. It was ultimately heard by me on 24 March 2020. 12 Attorney-General v Lawrence [2018] QSC 218 at [20]-[23]. 13 Attorney-General v Lawrence [2018] QSC 218 at [35], [39], [58] and [61]. 14 Attorney-General v Lawrence [2018] QSC 218 at [62]; see also at [21], [41] and [46]. 15 Attorney-General v Lawrence [2018] QSC 218 at [63]. 16 Attorney-General v Lawrence [2018] QSC 218 at [83]. 17 Attorney-General v Lawrence [2018] QSC 218 at [122]-[140]. 18 Attorney-General v Lawrence [2018] QSC 218 at [144]-[146]. -- 4 of 35 -- 4 Relevant principles [11] The first question on the review is whether, having regard to the required matters, the court should affirm the decision that the respondent is a serious danger to the community in the absence of a division 3 order: s 30(1) and (6). The required matters are, relevantly, the matters mentioned in s 13(4),19 namely: (a) the reports prepared by the psychiatrists (under ss 11 and 29) 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; and (j) any other relevant matter. [12] A person is a “serious danger to the community” if there is an unacceptable risk that the prisoner will commit a serious sexual offence (that is, an offence of a sexual nature involving violence, or against a child) if they are released from custody [at all] or released from custody without a supervision order being made (ss 13(1) and 13(2)). [13] Under s 30(2), the court may affirm the decision that a person is a serious danger to the community only if it is satisfied by acceptable, cogent evidence; and to a high degree of probability, that the evidence is of sufficient weight to affirm the decision. [14] To affirm the decision, the court must be satisfied the respondent is now a serious danger to the community, and make that determination on the evidence as it stands now.20 As the Attorney-General submitted, the nature of the risk may alter, through the effluxion of time and/or with the administration of treatment. These changes need to be taken into account, on a review, when considering whether the respondent is, presently, a serious danger to the community in the absence of an order under the Act [15] The respondent did not dispute a finding to this effect, although it remains a matter for the court to determine on the evidence. 19 Required matters also include any report prepared under s 28A, but there is not one in this case. 20 Attorney-General (Qld) v Allen [2019] QSC 56 at [14]. -- 5 of 35 -- 5 [16] The second question is how the discretion conferred on the court by s 30(3) should be exercised. [17] Under s 30(3), the court has a discretion to order that the respondent (a) continue to be subject to the continuing detention order; or (b) be released from custody subject to a supervision order. [18] In relation to that question, s 30(4) and (5) provide: “(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.” [19] As the Court of Appeal said in Attorney-General (Qld) v Francis [2007] 1 Qd R 396 at [39], in relation to the equivalent discretion under s 13(6) of the Act: “The question is whether the protection of the community is adequately ensured. If supervision of the prisoner is apt to ensure adequate protection, having regard to the risk to the community posed by the prisoner, then an order for supervised release should, in principle, be preferred to a continuing detention order on the basis that the intrusions of the Act upon the liberty of the subject are exceptional, and the liberty of the subject should be constrained to no greater extent than is warranted by the statute which authorised such constraint.”21 [20] As Chesterman JA said in Attorney-General v Lawrence [2010] 1 Qd R 505 at 512 [33], after referring to this passage: “It follows from this undoubted proposition that in cases where the Attorney-General contends that the community will not be adequately protected by a prisoner’s release on supervision the burden of proving the contention is on the Attorney. The exceptional restriction of the prisoner’s liberty, after he has served the whole of whatever imprisonment was imposed for the crimes he committed, and for the protection of the public only, should not be imposed unless the inadequacy of a supervision order is demonstrated. The liberties of the subject and the wider public interest are best protected 21 Underlining added. -- 6 of 35 -- 6 by insisting that the Attorney-General, as applicant, discharges the burden of proving that only a continuing detention order will provide adequate protection to the community…”22 [21] In order to discharge this burden, the evidence put before the court must satisfy the court that a supervision order will not afford adequate protection to the public.23 [22] It is important that meaning be given to the word “adequate” in the context of the object of the Act (s 3(a)) and the paramount consideration (s 30(4)(a)) – namely, the need to ensure adequate protection of the community. Adequate protection is a relative concept.24 It is not the purpose of the legislation to guarantee absolutely the safety and protection of the community.25 That would not be possible. As observed by the Court of Appeal in Attorney-General (Qld) v Francis [2007] 1 Qd R 396 at [39], the Act “does not contemplate that arrangements to prevent [a particular risk] must be ‘watertight’; otherwise [supervision] orders under s 13(5)(b) would never be made”.26 [23] It is also well established that “the assessment of [the] measure that will ‘ensure adequate protection of the community’ involves an equation with two factors, namely, ‘the likelihood of conduct which will endanger the community and the result of such conduct if it ensues’”.27 That principle was articulated and applied by Keane JA (Holmes JA and Douglas J agreeing) in Attorney-General (Qld) v Beattie [2007] QCA 96 at [19] as follows: “For the appellant, it was argued that the expert description of the risk of the appellant’s re-offending as ‘moderate’ meant that the risk fell short of ‘unacceptable’. But this argument overlooks the point that whether or not a moderate risk is unacceptable must be gauged by taking into account the nature of the risk and the consequences of the risk materialising. In this regard, the appellant's likely targets are children, and especially street children: vulnerable members of the community who are likely to be peculiarly susceptible to his seduction techniques. The focus of consideration must, therefore, be upon the likely effect of a supervision order in terms of reducing the opportunities for the appellant to engage in acts of seduction of children to an acceptably low level.”28 [24] This principle has understandably loomed large in the decisions concerning the respondent, because of the nature of the risk of sexual offending posed by him, as a result of his paraphilia, sexual sadism. 22 See also Attorney-General v Lawrence (2014) 224 A Crim R 184 at [17] and [30]. 23 Attorney-General v Lawrence [2010] 1 Qd R 505 at [33]. 24 Attorney-General (Qld) v Sutherland [2006] QSC 268 at [30]. 25 See also Attorney-General (Qld) v Jackway [2017] QSC 67 at [22]. 26 See also Attorney-General v Lawrence (2014) 224 A Crim R 184 at [9] and [30]. 27 Attorney-General v Lawrence [2011] QCA 347 at [90]. 28 Underlining added. As it was put by Chesterman JA in Attorney-General (Qld) v Fardon [2011] QCA 111 at [29], the question is “whether the supervision order will be efficacious in constraining the respondent’s behaviour by preventing the opportunity for the commission of sexual offences”. -- 7 of 35 -- 7 Background and criminal history (s 13(4)(g)) [25] The background, including the criminal history, of the respondent has been canvassed in detail in the many decisions previously made in relation to the application of the Act to him. [26] As noted at the outset, the respondent is now a 58 year old man (he will be 59 in August), who has spent the last 36 years, since 1983, in prison. Dr Aboud records that “[h]e had previously spent significant periods of time in institutions, be they criminal justice, social welfare or mental health facilities”.29 The psychiatrists describe him as having experienced a prejudicial childhood, including reports of sexual abuse by staff at a boys’ home and by his father.30 [27] A comprehensive summary of the respondent’s criminal history appears in Atkinson J’s decision [2016] QSC 58 at [9]-[19],31 which is set out below for ease of reference: “[9] In May 1978 the respondent appeared in the Ipswich Children’s Court charged with the aggravated assault of a male child under the age of 14 on 4 May 1978. He was admonished and discharged. Later that year he was charged with the aggravated assault of a male child under the age of 14 years and sentenced to two years’ probation. On 23 February 1979, he appeared in the Ipswich Magistrates Court charged with the aggravated assault of a female child under the age of 17. He was sentenced to three years’ probation and ordered to undergo any psychiatric treatment which the probation officer might direct including treatment as an inmate of a psychiatric hospital. His next appearance in the Ipswich Magistrates Court was on 23 December 1980 where he was again charged with aggravated assault on a male child under the age of 14. He was fined $75. [10] It appears that in 1981 he was admitted as an involuntary patient at Wolston Park Hospital. On 11 April 1981 he and three other patients absconded, caught a taxi and decided to rob the driver. One of them held a knife to the driver’s throat. The driver was not harmed and refused to give up his takings. On 3 September 1981 the respondent appeared before the Brisbane District Court charged with conspiracy to commit a crime and assault with intent to steal with the threatened use of violence whilst armed and in company. He was sentenced to four months’ imprisonment and required to undergo a further three years’ probation. [11] After the respondent had served that period of imprisonment, he was returned to the Wolston Park Hospital where, on 26 December 1983, he and another patient killed a female patient. On 7 February 1985 he was sentenced to 15 years’ imprisonment for manslaughter. His conviction for manslaughter was on the basis of diminished responsibility. The 29 Dr Aboud’s report (19 July 2019) at p 13. 30 Dr Aboud’s report (19 July 2019) at p 13; and Dr Steele’s report (23 February 2020) at p 2. Further details of the respondent’s personal history appear in Dr McVie’s report (6 August 2019) at pp 9-10. 31 See also Attorney-General v Lawrence (2014) 224 A Crim R 184 at [1], quoting from Chesterman JA’s reasons in [2010] 1 Qd R 505. -- 8 of 35 -- 8 young female patient was killed as an enactment of his compelling sexual fantasies about rape and murder. [12] I have had the advantage of reading a report prepared for the Public Defender by Dr Joan Lawrence on 31 January 1985. The respondent told Dr Lawrence that since the age of 15 he had always wanted to kill a girl. He told her that he had violent fantasies associated with masturbation which he engaged in at least daily and usually three to four times daily. He described his fantasy to Dr Lawrence as being ‘he starts off by picking up a girl, dragging her into a car and taking her into the bush, ripping her clothes off and that he then rapes and murders her by cutting her throat.’ He told Dr Lawrence that cutting the throat was ‘the usual manner of killing her and that this was the best part of the fantasy.’ [13] The killing occurred in circumstances where he and a co- offender at first persuaded and then dragged another patient to an isolated spot. His co-offender started trying to rape her and she screamed so Mr Lawrence choked her. He thought his co- offender was also involved in the choking. Mr Lawrence said that after he thought she was dead he cut her throat with a glass bottle as he so often did in his fantasy. He thought that he ejaculated while cutting her throat. He told Dr Lawrence that he himself thought that it was perfectly acceptable to want to do such things but he realised that ‘other people say it’s wrong’. She said he displayed no evidence of remorse or regret for his actions. [14] Dr Lawrence then referred to his history. She said that he had been detained since 23 February 1979 in prison or in mental hospitals but that he had a period of leave from early November 1979 until 26 December 1980 where he committed offences of a sexual nature involving children. She also reported that his sexual history showed that somewhere between 1974 and 1976, and therefore before he was 15, there was a report of his attempted rape of a young girl at the Opportunity School he attended. When aged about 15½ to 16 there were reports of sexual approaches to younger siblings in his family. He told Dr Lawrence that he tried to kill his 12 year old sister one night by putting a tea towel over her mouth after turning off the power in the house. [15] At the age of 16, in October 1977, his first conviction was recorded when he attempted to approach a 10 year old boy. In December 1978 he was charged with aggravated assault on a young boy in a public toilet and placed on youth probation but in February 1979 a further aggravated assault on an eight year old female child occurred which led to his admission to the Barrett Psychiatric Centre at the age of 17 and a half on 23 February 1979. He absconded from psychiatric care on 11 April 1981 and committed an attempted armed robbery of a male cab -- 9 of 35 -- 9 driver and conspiracy to rob a female taxi driver whilst armed with a knife before he was returned to psychiatric detention on the following day. He reported to Dr Lawrence having violent sexual fantasies about women he came across including even more disturbing and sadistic sexual fantasies about a female nurse. [16] Dr Lawrence said that Mr Lawrence qualified for a defence of diminished responsibility under s 304A of the Criminal Code because of his mental retardation, anti-social personality and significant sexual deviation. There was no evidence of psychiatric illness such as psychosis. It was her opinion that there was a very high risk indeed that he could re-offend and that given the slightest degree of freedom or opportunity he had shown that he was unable to maintain any responsible control over his own sexual drives or other anti-social behaviour. [17] On 3 September 1991, the respondent was sentenced to one year’s imprisonment for escaping lawful custody in August 1991 cumulative upon the term of 15 years which he was then serving. [18] On 4 April 2002, the respondent was convicted of rape and sexual assault with a circumstance of aggravation on 14 October 1999. It was the rape of a fellow prisoner. He was sentenced to seven years’ imprisonment for the rape and three years’ imprisonment for the sexual assault to be served concurrently. [19] It follows that the term of imprisonment imposed for the manslaughter expired on 6 February 2000; the one year’s imprisonment for escaping lawful custody expired on 6 February 2001; and the seven years’ imprisonment imposed for rape expired on 7 February 2008. Since then the respondent has been detained under the DPSOA.” [28] The respondent has consistently, including in his evidence on this review, maintained his innocence of the 1999 offence, contending the sexual activity was consensual.32 He has articulated an intention to try to appeal this conviction, after he is released from custody.33 [29] Recently, the respondent has been charged with further offences, alleged to have been committed on an unknown date between December 1976 and July 1977 [when the respondent would have been 14 or 15]. The alleged offences arise from complaints made in 2016 by two male complainants of alleged conduct giving rise to offences including common assault, assault with intent to commit an offence of having carnal knowledge of a person against the order of nature, attempts to commit an offence of having carnal knowledge against the order of nature (sodomy), indecent treatment of 32 See, for example, the letter to the court from the respondent, dated 24 March 2020, exhibit MRL3 to his affidavit filed 23 March 2020. 33 See, for example, his evidence on this review at T 1-58. -- 10 of 35 -- 10 boys under seventeen, threats and deprivation of liberty.34 The respondent denies these allegations.35 Diagnoses [30] The respondent has been assessed by a number of psychiatrists over the years, in the context of these proceedings. He has consistently been diagnosed as suffering from the paraphilia, sexual sadism, as well as antisocial personality disorder with prominent psychopathic traits.36 [31] According to Dr Aboud: “Mr Lawrence meets DSM criteria for a psychiatric diagnosis of Antisocial Personality Disorder. He has been previously been assessed to manifest a range of Psychopathic Traits. While there appears to have been some moderation over time regarding these traits, his core psychopathic disposition remains. He also meets criteria for a diagnosis of the paraphilia Sexual Sadism. There has been mention in some previous psychiatric reports that he also has likely Paedophile tendencies, and this may well be the case. His IQ has been found to be slightly above 70, and this would probably justify consideration of a diagnosis of Borderline Mental Retardation. Other psychiatrists have commented that he appears to function at a higher level than this label suggests, and I would agree with this. It might be, however, that when tested in a less restricted and familiar environment to that of a prison, his intellectual limitations may become more evident.”37 [32] In Dr McVie’s opinion: “Mr Lawrence does meet criteria for a DSM5 diagnosis of the paraphilia, sexual sadism. By his report, his fantasies are currently in remission while on treatment in a contained environment. He also meets criteria for a diagnosis of antisocial personality disorder. This disorder is also in remission. His behaviour in custody has been unremarkable over at least the past ten years. He also presents with psychopathic traits, higher than the average prisoner. I would also make a diagnosis of the paraphilia, paedophilia, based on his early history. Though he denies any sexual attraction to children and attempts to attribute his earlier offending to his sexual sadism fantasy, the recorded information indicates considerable behaviour in attempting sexual contact with, at least, young boys. 34 See the affidavit of Ms Morgan, filed 24 March 2020. 35 See, for example, Dr Aboud’s further report (3 March 2020) at p 14 and Dr McVie’s further report (27 February 2020) at p 5. 36 See Attorney-General v Lawrence [2016] QSC 58 at [157]; see also Dr Aboud’s report (19 July 2019) at p 7. 37 Dr Aboud’s report (19 July 2019) at p 14. Bold emphasis in the original. -- 11 of 35 -- 11 This may have been replicating the abuse he himself was subject to. He has not had opportunity to have contact with children since 1984. He did receive psychotherapy addressed to his offending against children while an inpatient of Wolston Park Hospital. His sexual sadism fantasy was, however, not recorded until 12 months after the killing of the female patient.”38 Events since the last review (s 13(4)(e), (f) and (j)) [33] The decision on the last review was made on 28 September 2018.39 [34] The respondent commenced treatment with an injectable anti-libidinal medication called Goserelin on 19 October 2018,40 under the supervision of his then treating psychiatrist, Dr Joyce Arnold. In the beginning, this was in conjunction with a gradual reduction in the oral form of medication.41 [35] He also continues to take an antidepressant. As explained by Dr Aboud, this was prescribed for its effect in reducing impulsive urge and obsessive thinking.42 [36] The present application for review was filed on 4 April 2019. In preparation for the review hearing, as required by s 29 of the Act, the respondent was assessed by, and reports were obtained from psychiatrists, Dr Aboud (19 July 2019) and Dr McVie (23 September 2019). I note that both doctors confirm that the respondent cooperated in their interviews with him (see s 13(4)(a) of the Act). [37] When Dr Arnold saw the respondent in August 2019 she was concerned about possible side effects of the medication, including development of depression and psychosis.43 After seeing him again on 19 September 2019, Dr Arnold requested an urgent medical review of the respondent, “before we give him any more goseralin”.44 [38] A medical review was undertaken, under the oversight of Dr Hayman, the general practitioner who has treated the respondent in prison. As recorded in a letter from Dr O’Gorman, the clinical director of Prison Health Services: “On 17 October 2019 Mr Lawrence was seen by Dr Noel Hayman. He did not report any shortness of breath or fainting or falls. He did describe lethargy. All recent bloods were normal. On examination, he had no signs of heart failure, nor was there shortness of breath on the walk from his unit to the medical centre. To be prudent, Dr Hayman ceased the Goserelin and ordered an echocardiogram. … an echocardiogram completed on 13 November 2019 was reported as normal. As this result confirmed that he has no heart failure, he 38 Dr McVie’s report (6 August 2019) at p 22. 39 Attorney-General v Lawrence [2018] QSC 218. 40 See Dr Aboud’s report (19 July 2019) at p 9 and p 15. 41 See Dr Aboud’s report (19 July 2019) at pp 9, 11-12. 42 See Dr Aboud’s report (19 July 2019) at p 15; see also Dr McVie’s report (6 August 2019) at p 5. 43 See the email from Dr Arnold, exhibit AM-4 to Mr McCabe’s affidavit affirmed 23 September 2019. 44 See the email from Dr Arnold, exhibit AM-7 to Mr McCabe’s affidavit affirmed 23 September 2019. See also affidavit of Mr Lawrence, filed 23 March 2020, at [6]. -- 12 of 35 -- 12 was recommenced on monthly subcutaneous injections of Goserelin 3.6mg on 25 November 2019.”45 [39] The respondent’s testosterone levels have been monitored, by blood tests, whilst he has been taking the anti-libidinal medication. As an aid, the Court was provided with a schedule setting out the pathology (blood) test results, taken from the medical records annexed to Ms McLean’s most recent affidavit, which shows the following:46 DATE TESTOSTERONE LEVEL 26.06.2018 3.6nmol/L 06.07.2018 12.0nmol/L 11.07.2018 4.0nmol/L 20.07.2018 3.5nmol/L 23.08.2018 2.6nmol/L (refers to retest – 3.9nmol/L) 10.10.2018 4.0nmol/L 15.11.2018 0.9nmol/L 19.12.2018 1.6nmol/L 11.02.2019 1.2nmol/L 15.03.2019 1.0nmol/L 03.04.2019 1.2nmol/L [40] Dr Aboud records the levels obtained since May 2019, as follows:47 DATE TESTOSTERONE LEVEL 29 May 2019 0.4 nmol/L 26 June 2019 4.2 nmol/L 8 July 2019 1.0 nmol/L 30 July 2019 0.7 nmol/L 20 August 2019 <0.3 nmol/L 25 September 2019 0.8 nmol/L 27 November 2019 1.5 nmol/L 29 December 2019 0.8 nmol/L 8 January 2020 0.7 nmol/L 24 January 2020 0.7 nmol/L [41] The psychiatrists’ evidence about the effect of these levels is discussed below. [42] From about May 2019, the respondent started to become distrustful of Dr Arnold,48 although continued to see her until late 2019.49 Dr Arnold provided a report dated 22 45 Annexure “AM-2” to the affidavit of Ms McLean, filed 24 March 2020. See also Dr Aboud’s report (3 March 2020) at p 9. 46 See also the results recorded in Dr Aboud’s report (19 July 2019) at p 9. 47 Dr Aboud’s further report (3 March 2020) at p 9. 48 See the report of Dr Arnold dated 22 May 2019, annexed to her affidavit filed 11 March 2020; see also the entries in the respondent’s offender case file, exhibit AM-3 to Mr McCabe’s affidavit affirmed 23 September 2019, at pp 58 and 59 and the contact summary dated 12 September 2019, exhibit AM-6 to Mr McCabe’s affidavit, at p 72; and see also Dr Aboud’s report (19 July 2019) at pp 12-13; Dr Aboud’s further report (3 March 2020) at pp 12-13. 49 See the affidavit of Mr Bear, filed 24 March 2020, at [11]. -- 13 of 35 -- 13 May 2019, noting that she had seen the respondent monthly since October 2018. I will refer in more detail to Dr Arnold’s report below. [43] The respondent started seeing a new treating psychiatrist, Dr Sarah Steele on 16 January 2020. Dr Sarah Steele provided a brief report dated 23 February 202050 outlining, among other things, a proposed treatment plan. Mr Bear, Acting Manager of the High Risk Offender Management Unit of QCS, confirms that it is anticipated Dr Steele will remain engaged with the respondent following this review, whether he is further detained or released subject to a supervision order.51 [44] The respondent has continued to see Dr Lars Madsen, as his treating psychologist, for many years, since 2012. Again, Mr Bear confirms that QCS will ensure treatment by Dr Madsen continues to be provided to the respondent, whether he continues to be detained or is released on a supervision order.52 [45] In an affidavit filed for the purposes of this review, the respondent states he is willing to cooperate and continue treatment sessions with Dr Steele as his psychiatrist; willing to continue seeing Dr Lars Madsen, or any other psychologist as ordered by the court or QCS; willing to take medication as prescribed by his treating doctor to reduce his sex drive (noting that he currently receives 3.6 mgs of Goserelin monthly); and willing to take anti-libidinal medication for the period of any supervision order, which he understands may be for 20 years.53 [46] More generally, the respondent has undertaken a number of courses during his time in custody54 and has worked in various roles, including the paint and power section and the kitchen.55 His behaviour in custody has not been problematic. In this regard, Dr Arnold says in her report of 22 May 2019 (at p 10): “His long-term incarceration and psychotherapy will have taught him better strategies for behaving and keeping out of trouble, and this is seen in his current behaviour. He is polite, interactive, courteous and listens to people. I understand that his behaviour in prison is mild and not difficult and he has been working well, supervising other prisoners, and keeping out of trouble as far as I am aware.” 56 [47] Similarly, Dr Madsen said in his report of 25 May 2019:57 “More generally, as regards to his general functioning, Mr Lawrence describes getting along with the custodial staff, prison management and other prisoners. In the last 12 months he has not been breached or officially reprimanded either. In our sessions Mr Lawrence typically describes an unremarkable mood, though occasionally reports feeling hopeless about his situation and describes thoughts of ‘giving up’ (ie applying for release) if he is unsuccessful on this occasion. Otherwise, he continues to be employed, lives in the least 50 See the affidavit of Dr Steele filed 20 March 2020. 51 See the affidavit of Mr Bear, at [12]. 52 See the affidavit of Mr Bear at [43]-[44]. 53 Affidavit of Mr Lawrence, filed 23 March 2020, at [9]-[16]. 54 See exhibit AM-3 to Mr McCabe’s affidavit affirmed 23 September 2019. 55 See Mr Lawrence’s affidavit at [20] and exhibit MRL-1. 56 See also Dr Aboud’s report (19 July 2019) at p 7. 57 Affidavit of Lars Madsen, filed 18 March 2020, exhibit LBM-1. -- 14 of 35 -- 14 restrictive part of the prison (residential), has regular appointments with his Psychiatrist and also a prison-based psychologist…” [48] I turn now to the details of the reports which have been provided, by Dr Madsen, Dr Arnold, Dr Aboud and Dr McVie. Dr Madsen (s 13(4)(b)) [49] Dr Madsen provided a progress report dated 25 May 2019. In relation to “risk”, Dr Madsen said: “As regards to risk, when considering only dynamic or ‘changeable’ factors related to sexual risk, it is clear that much has changed for the better for Mr Lawrence over the years. There is, for instance, no evidence that he is struggling with sexual self-regulation problems (ie high sex drive, preoccupation with sex or using sex as a method of self-regulating mood). Regardless of his self-report, he has been on medication that specifically targets these areas, and the blood tests that he is required to complete show that his testosterone level (an indicator of sexual drive/strength) is very low. During our sessions Mr Lawrence does not display obvious pro-offending attitudes or views either. He has consistently expressed remorse for his actions, and does not attempt to justify or in any way minimise his offending. As regards to general self-regulation, Mr Lawrence’s documented and self-reported behaviour in custody shows that he has a good capacity to self-monitor and inhibit antisocial impulses and behaviours. He appears reasonably emotionally stable, is not obviously impulsive and has displayed an ability to problem solve and plan for longer term goals. For example, in the last 2 years he has kept a daily diary with all his actions relating to treatment, and he [has] also been involved in attempting to appeal his court decision.58 He continues to verbalise a motivation to comply/cooperate with professionals, and appears to have done so without difficulties over the last 12 months. Of some relevance to his situation in regards to risk is that he is now 57 years old. Criminological research on recidivism has consistently found that age appears to be a protective factor to recidivism, and that as offenders age the qualities that have been cause for concern change for the better as well. Put simply offenders become less impulsive, have lower sex drive and are less physically capable of offending in ways that they did when they were younger. Taken together, therefore, these are positive characteristics and suggest that, at this time, he has minimal outstanding treatment needs.”59 [50] Dr Madsen also said, under the heading “summary and recommendations”: 58 I infer this relates to the respondent’s stated wish to appeal his conviction of the rape offence from 1999. See also the respondent’s oral evidence at T 1-58. 59 Underlining added. -- 15 of 35 -- 15 “In terms of risk, obviously when considering only historical or unchangeable factors then he would be considered a ‘high risk’. He has both prior general and sexual offending. When considering dynamic factors, however, things appear to have changed for the better. His behaviour in custody shows him to have good general self-regulation and there is no evidence that he is currently (or recently has been) struggling with sex self-regulation problems. He does not obviously display pro-offending or distorted attitudes either. He is, of course, also a much older man to when he was offending. Finally, it is important to note that Mr Lawrence has also completed a significant amount of offence-specific treatment, both individual and group. As noted above, he is now also engaged in psychiatric treatment for offending risk. For these reasons Mr Lawrence presents with minimal outstanding treatment needs related to sexual offending at this time. Finally, it is important to recognise that Mr Lawrence is a man that has spent the majority of his life in institutions. He is consequently very institutionalised, and will require considerable support and assistance with reintegrating to the community if he is released. Whilst he is in custody our session frequency has been between six to eight weeks, if he were in the community, however, I would recommend that he have weekly sessions for at least six months. This [these] sessions would focus on assisting him with reintegrating to the community, however, also with implementing the ‘good lives’ plan that he has constructed in the psychological treatments that he has completed.”60 [51] Dr Madsen has continued to see the respondent, up to the present. A further progress report dated 27 February 2020 confirmed what Dr Madsen had said in the May 2019 report.61 [52] Dr Aboud suggested that perhaps, in the first instance (following his release from custody) the respondent might need to be seen more regularly than once a week by his psychologist; with that reducing to once a week once it can be seen that he would cope with that, and then reduced again over time, subject to discussions between the psychologist and QCS case managers. Dr Aboud’s point was that the treatment, and frequency of it, should be tailored by the respondent’s needs, and recognising that the extent of his institutionalisation means he will require a great deal of support.62 Dr Arnold (s 13(4)(b)) [53] In her report dated 22 May 2019, Dr Arnold noted that the respondent was taking an antidepressant, and reported that the respondent said if he had a choice he would not take this medication, but will take it because ordered to do so “and he will do anything to get out of prison”.63 Dr Arnold said the respondent is not psychotic. She said he continues to be paranoid, “probably part of his personality make-up”, describing him 60 Underlining added. 61 Affidavit of Lars Madsen, filed 18 March 2020, exhibit LBM-2. 62 T 1-20. 63 At pp 6-7. -- 16 of 35 -- 16 as misinterpreting things, and fixating on minor issues over which he becomes paranoid.64 [54] The respondent reported to Dr Arnold “no sexual thoughts or behaviours related to sexual function since being on his anti-libidinal medications”, and denied any paraphilias.65 [55] Dr Arnold recorded that the respondent said “[h]e is aiming to find a relationship with a woman, consensual, once he is out of prison and seeks then to stop his anti-libidinal medications in order to have a normal sexual relationship”.66 [56] She confirmed the consistent diagnosis that he has an antisocial personality disorder, saying “this is unlikely to change and is not treatable”. Dr Arnold also referred to a formal intellectual assessment showing the respondent as having a normal or average ability, with some problems in visual processing. She referred to him having an exercise folder in which he writes everything down as evidence. She said that “[a]lthough he is a concrete thinker, he seems to have been implying that he is a lot less capable than he really is”.67 [57] In relation to the anti-libidinal medication, Dr Arnold recorded that the respondent “did not agree with taking any anti-libidinal medication, but he was keen to take it as he will do anything to get out of prison he said”.68 The respondent accepted that he had said this to Dr Arnold;69 but in his evidence on this review said he agrees with taking the medication, which reduces his sex drive, “so I can be released and it makes the community safer”.70 [58] Having regard to the levels of testosterone, based on blood tests in January, March and April 2019, Dr Arnold said the dose of Goserelin (3.6 mgs monthly) “is sufficient and his levels remain stable”.71 Dr Arnold addressed the high cost of Goserelin, suggesting QCS consider funding this for him if he leaves the prison environment.72 [59] On the issue of “compliance”, Dr Arnold said: “Mark Lawrence seems to be very compliant with his medications, not because he sees a need for his antidepressants or anti-libidinal medications, but because he sees this is his only chance to move out of prison and into the community. He assumes that when he has a relationship, he will be granted the right to cease his anti-libidinal medications. He believes that when he is in the community his Order will be a few years, [maybe] three, and then he will be free to cease medications. No amount of explanation or discussion about this seems to help Mark Lawrence understand why he is taking these 64 At pp 7-8. 65 At p 9. 66 At pp 9-10. 67 At p 11. 68 At p 11. 69 I note Dr McVie also recorded that the respondent said to her that “he would be happy to continue the medication if it gets him out of jail, but he would not take the drugs if he was not on an order”: Dr McVie’s report (6 August 2019) at p 6. 70 See the affidavit of Mr Lawrence at [14], [15] and [16]; and the oral evidence at T 1-61. 71 At p 12. 72 At p 13. -- 17 of 35 -- 17 medications. He merely sees this in a concrete way, that the psychiatrists say he needs the medications, that it is a miscarriage of justice and an immoral act, that he is forced to take medications at all just to secure his release. This is partly his concrete thinking as well as his inability to accept responsibility for his past actions. He is planning a book, he says, to debate the injustice to sex offenders who he believes are discriminated against with respect to other criminal behaviours. To this end, he will need to have an Order specify the conditions in a manner that he understands and monitoring of his testosterone levels.”73 [60] The respondent denies that he said to Dr Arnold that when he has a relationship he will be able to cease the anti-libidinal medication.74 He also denies telling Dr Arnold that the order would only be for a few years and then he would be free to cease the medication.75 Those denials were put to Dr Arnold in cross-examination, and she maintained that what she had recorded was what the respondent said to her.76 I see no basis to reject the evidence of Dr Arnold. I do, however, note the views expressed by Dr Aboud about this matter (see paragraphs [75] and [76] below). [61] Dr Arnold said the following, in relation to “control”: “Mark Lawrence copes with his life by control of other people. He is very good at this and manages to manipulate people to obtain what he wants. Although functional for him, I believe that this is the main reason he will have difficulties outside prison. He will become paranoid if he does not get his way and he will control a number of people, possibly to their detriment. He has little insight into this and again I do believe this is an advantage for him, however he is likely to get into trouble in the general community. If he was to re-offend, it would be because he has manipulated another person into a position of serving his needs which may escalate to conflict. This is a part of his personality and this is not likely to change”.77 [62] But as Dr Arnold said in her oral evidence, this would probably be a different kind of offence (rather than a sexual offence), given the effect of the Goserelin on his sexual drive.78 [63] Dr Arnold considered the respondent’s plans for release – as he explained them to her – to be unrealistic (for example, believing that he would “be out on passes from the first day, able to arrange work, accommodation, friends and medical care within three months”). She said he will need a structured program with realistic expectations, and considerable support, given the length of time he has been in custody.79 Again, I note the observations about this made by Dr Aboud, after interviewing the respondent in May 2019 and again in February 2020 (see paragraph [76] below). 73 At pp 17-18. 74 Affidavit of Mr Lawrence at [18]. 75 Affidavit of Mr Lawrence at [25]. 76 T 1-51. 77 At pp 14-15. 78 T 1-49 line 5. 79 At p 17. -- 18 of 35 -- 18 [64] On the question of risk, Dr Arnold said that, in terms of the formal risk assessments undertaken in the past, none of the parameters have changed, so his risk of reoffending remains high. She also said: “Since my last report, he is now taking Goseralin each month and his testosterone levels remain below 3nM/L. This is highly likely to make sexual offending unlikely, although still possible. He likes to control people and have a sense of power over them and Goserelin will not stop that. It would be unlikely that sexual fantasies would drive his future behaviour while taking Goserelin but power, control and aggression would still be risk factors. He denies sexual fantasies, but there is no way this can be measured or verified. He is growing older and wishes to avoid imprisonment in the future, and these are two important factors that reduce his risk of re- offending. His behaviour in prison has been good as far as I understand although I have no reports about this, and so long as he has structure, he is less likely to re-offend.”80 [65] Dr Arnold confirmed in her oral evidence that if, as part of a supervision order, the respondent was required to have his monthly Goserelin injection and testing of his testosterone levels to show they were below 3nmol/L, that should significantly reduce his risk of sexual offending. She also said that, even though the respondent might not be “a very reliable witness to his own self”, and even though some of the things he said to her she regards as over-exuberant and unrealistic, she does not think that is a reason to be concerned about him “being out on an order”, because she considers “the Goserelin and the order should be enough to contain him”.81 Dr Aboud (s 13(4)(a)) [66] Dr Aboud interviewed the respondent on 24 May 2019, before preparing a risk assessment report dated 19 July 2019. [67] Dr Aboud provided an updated report, dated 3 March 2020, after being provided with further material (including the respondent’s medical records, and the reports from Dr Madsen and Dr Steele, as well as the information concerning the new (historical) charges) and also interviewing the respondent again (on 21 February 2020). [68] In terms of actuarial risk assessment, Dr Aboud said (at p 20 of his 3 March 2020 report): “The actuarial assessments of sexual and violent recidivism, such as Static-99R, Risk Matrix 2000s, and Risk Matrix 2000v all indicate that Mr Lawrence represents a high risk. The dynamic assessments, such as components of the HCR-20 and RSVP, indicate that his risk is reduced, and this is on account of: the softening of his psychopathic personality traits as part of the natural aging process; his settled custodial behaviour, reflective of improved impulse and emotional control; his participation in recommended therapy programs; his ongoing engagement in individual treatment with a 80 At p 19. 81 T 1-52 line 21 to T 1-53 line 22. -- 19 of 35 -- 19 psychologist over several years; his agreement to take prescribed antilibidinal medication and antidepressant medication since April 2017; his agreement to engage with a treating psychiatrist, and to agree to change from an oral antilibidinal medication to a more potent injected (implant) antilibidinal medication. In respect of the latter, his regular blood tests show that his serum testosterone has been reduced to consistent levels well below that of the male range, and noticeably lower than his previously measured levels when he was prescribed the oral medication. His serum testosterone levels, when prescribed oral Cyproterone Acetate 100mg twice daily, was around 3 or 4 nmol/L. His serum testosterone levels, when prescribed Goserelin Acetate 3.6mg injected implant every 28 days, have been around 1 nmol/L. He has denied experiencing any sexual arousal or urge or deviant fantasy since commencement of this medication.”82 [69] In terms of how the risk of reoffending by the respondent might manifest, Dr Aboud said, in his updated report dated 3 March 2020 (at p 19): “Should Mr Lawrence reoffend sexually, one would speculate that it may take the form of planned or impulsive violent sexual assault of a vulnerable adult or a child. His victim might be male or female. The offence will likely be driven by a need for sexual gratification. Psychological coercion and physical coercion are both likely. Extreme physical violence may be employed to subdue his victim, and including the use of a weapon. Post offence behaviour will include minimisation and denial of the offending itself and of the underlying drivers. Of even greater concern might be his tendency to act out sadistic sexual fantasy. Specifically this fantasy would be to abduct a young adult female, take her to an isolated place and rape her and then kill her by cutting her throat. Prior to being prescribed antiandrogen medication, it was likely that he still harboured such deviant fantasy; despite self-report that this was no longer the case.83 While the clear primary focus of his fantasy is of a female victim, it is possible that he might also entertain thoughts of victimising a male. One is aware that he has disclosed harbouring thoughts of raping a male in 1991,84 and actually did so in 1999. It is unclear whether such proclivity would extend to killing the male victim. His risk for sexual offending would be increased in the circumstances of psycho-social stress and instability, interpersonal conflict and relationship difficulties, loneliness and isolation, negative affective states, sexual preoccupation and sexual frustration, feelings of disempowerment, low self-regard and associated feelings of anger, 82 Underlining added. 83 Cf, in Dr Aboud’s report dated 19 July 2019, at p 17, he had said “It is likely that he still harbours such deviant fantasy; despite self-report that this is no longer the case.” 84 See Dr Aboud’s report at p 14, where he says: “As regards his 2002 conviction [of the 1999 rape], he maintains that it was a consensual act, but he has admitted that at an earlier time in 1991 he had considered raping a male inmate, but thought better of it and embraced therapy, including antilibidinal hormonal medication which was prescribed for several months, and apparently to good effect.” See also, in relation to this, Dr McVie’s report (6 August 2019) at p 9. -- 20 of 35 -- 20 opportunity for victim access. It is possible that there will be little in the way of observable indicators, given his tendency toward hiding his emotion, cognitions and sexual deviance. Thus the most robust indication of escalating risk could be: disengagement from correctional service supervision and monitoring processes; disengagement from psychological therapy intervention; discontinuation or poor compliance with recommended risk management medication.”85 [70] As Dr Aboud also said (at p 20 of his 3 March 2020 report): “While I am aware that he has completed a range of sexual offender treatment programs and has engaged in individual therapy with a skilled psychologist for the last 7 years, I am also aware that [the respondent] suffers from unusual and highly concerning psychopathology, specifically a combination of the paraphilia sexual sadism and an antisocial personality with some psychopathic traits. Given his past offending history, it must be recognised that should he reoffend there is potential for the offence behaviour to be very serious, namely the committal of a sexually sadistic murder.”86 [71] However, after setting out the matters extracted at paragraph [68] above, Dr Aboud went on to say (at p 20 of his 3 March 2020 report): “It is my opinion, in the circumstances of his continuing acceptance of the recommended medications, that Mr Lawrence’s overall risk, of both sexual violence and general violence, is reduced to between moderate and low, and would be potentially manageable in the context of a supervision order.” [72] In his oral evidence at the hearing, Dr Aboud further explained that his formulation of the respondent’s risk profile necessitates him having a sexual drive in order to sexually offend; that “his sadistic sexual fantasy is highly likely, [in Dr Aboud’s view], almost certainly, to be associated with a sexual drive”.87 The respondent’s conditions, sexual sadism and, at least, paedophilic tendencies, if not paedophilia, are, according to Dr Aboud, “conditions that are to act and to build on the deviant fantasy and, for that to translate into behaviour, almost certainly requires a fuel and the fuel is the libido, the sexual drive”.88 Dr Aboud regards the risk as “being significantly dampened or curtailed … by the rather profound reduction in testosterone that is demonstrated in his … recent blood tests”.89 [73] Dr Aboud also explained the reason why, even with medication, he still identifies the risk as between moderate to low: “… that’s because there is some literature that entertains the possibility that an individual who has such conditions might, in fact, 85 Underlining added. 86 Bold emphasis in the original. 87 T 1-12 lines 11 to 15. 88 T 1-12 lines 15 to 21. 89 T 1-13 lines 11 to 13. -- 21 of 35 -- 21 act – act on them due to purely cognitive … thoughts, as opposed to biological drive. I think that that’s a small literature and the overarching views are in the other direction, but it still remains possible. I think it’s also worth pointing out – and this certainly informs my opinion – that such cases, such psychopathology is exceptionally rare and the data that we’re using to extrapolate from is small. And so unlike the general concepts surrounding, say, paedophilia and sexual deviance towards children, which is a large data set, that [which] pertains to sexual sadism is relatively small. And so Mr Lawrence is a highly unusual individual with an unusual psychopathology, and we have to make do with the best that psychiatric and psychological science can provide us. And so when I have suggested that even in the presence of a highly reduced testosterone level due to Goserelin acetate, his risk would still be moderate to low, I believe it’s because I’m taking into account those factors and making a conservative evaluation.”90 [74] Dr Aboud reiterated in his oral evidence that, with continued compliance with the anti-libidinal medication, he considers the risk of the respondent sexually reoffending is manageable within the confines of a supervision order. In that context, Dr Aboud agreed with the proposition that the medication, Goserelin, manages the key dynamic component of the respondent’s risk, which is his capacity to marry up his physical sexual urge with a sexually sadistic homicide offence, because even if he had the thoughts or fantasies he once had, he would not be able to become biologically sexually aroused by them.91 [75] In relation to the record by Dr Arnold, of the respondent believing any supervision order would only remain “for a few years, maybe three, and then he will be free to cease medications” (see paragraph [59] above) Dr Aboud said (at p 21 of his 3 March 2020 report): “While Mr Lawrence did not to communicate such views to me, when I assessed him on 24 May 2019 and 21 February 2020, it remains the case that this is what he has communicated to Dr Arnold. Thus, it must be made clear that it is my opinion that, given his particular risk profile, the circumstance of Mr Lawrence choosing to refuse administration of the prescribed antilibidinal medication would lead to an escalation of his risk of sexual reoffending, and to a level that would immediately be unacceptably high for his continued safe management in the community. Given this, should he be released subject to a supervision order, I recommend that the order be for a period of at least 20 years.”92 [76] Further, in his oral evidence, Dr Aboud reiterated that, in his interview with the respondent, the respondent denied he had communicated these things to Dr Arnold and denied that this reflected his frame of mind. When asked what conclusions he drew from this, Dr Aboud said: 90 T 1-12 lines 23 to 38. Underlining added. 91 T 1-17 line 43 to T 1-18 line 3; T 1-23 lines 26 to line 39. 92 Underlining added. -- 22 of 35 -- 22 “I drew the conclusion that I believed that he had communicated these things to Dr Arnold on the basis that, as his treating psychiatrist, she would have spent a significant amount of time with him, perhaps talking about many matters of which this was just one, and maybe not all in one go but over a period of time. I thought that having – having become aware of what Dr Arnold had – had communicated that Mr Lawrence most likely became anxious that this would count against him and then sought to deny not only that that was what he had said, but also that that was what he was thinking. But I also formed the view that he may well have learned from that incident that it was – it would not, in fact, be a productive course of action to cease his medication in the manner that he had communicated. And I am actually of the view at this point in time that that has remained a consistent position of Mr Lawrence. And so I suspect that he’s learned from that – we’ll call it an incident, but really it’s about a communication to Dr Arnold – that he had an unrealistic view about community release. He had an unrealistic view about the necessity to continue medications into the long term. And he had an unrealistic view about the circumstances in which he would form a relationship with a female.”93 [77] In terms of what QCS officers might need to look out for, as signs of escalation of risk if the respondent is released on a supervision order, Dr Aboud said it would include any disclosures by the respondent of “heightened sexualised thinking, preoccupation with sexual activities or people in a sexualised way” as well as objective observation of his behaviour, for example “frustration levels, anger level, and [the respondent] opposing reasonable directions, him resisting conditions of an order, … refusing to do what he was supposed to do, or what he had previously agreed to do, a change in his disposition, a change in his demeanour or a change in his behaviour”.94 [78] As to the first matter – disclosures of sexualised thinking – Dr Aboud: (a) said that if the respondent remains on the medication that he is on, and his testosterone levels remain as low as they currently are, that is “actually quite unlikely” to occur; but also (b) acknowledged that it is unlikely the respondent would disclose such things, believing they would be used against him, perhaps to re-incarcerate him, adding that “[u]nfortunately, his self-disclosure would now have to be regarded as unreliable”.95 [79] Related to this point, Dr Aboud referred to the respondent’s recent testosterone levels, being around 1 nmol/L (see paragraph [40] above), and said: “That represents the mid to low range of – we’ll call it the mid-range but, really, it’s just below – of normal female testosterone. This represents a markedly moderated testosterone level for Mr Lawrence and for a typical male. And while one cannot rely on his self-report 93 T 1-11 lines 35-47. Underlining added. 94 T 1-15 lines 13 to 25. 95 T 1-15 lines 16 to 40. -- 23 of 35 -- 23 that he does not experience any sexual drive, that he does not obtain any erections, including in the mornings, even when any potential stimulus might come across his path and that he denies that he has any sexual fantasy at all, be it about adults or … deviant, it would be consistent, in my view, that his self-report – or, I believe, his self- report would be consistent with his current testosterone levels. So having said all of that, I believe that if his testosterone level is less than three, then he is … in the category of person – of male who – who does not have a functional libido.”96 [80] In cross-examination, Dr Aboud agreed with the proposition that the respondent’s denial of experiencing any sexual arousal or urge or deviant fantasy since commencement of the anti-libidinal medication was a “reasonable expectation”, saying: “Yes. It would be my clinical expectation – so as a psychiatrist who works as a clinician, it would be my expectation that that ... is what his experience would be.”97 [81] As to the second matter – objective observation of the respondent’s behaviour – Dr Aboud observed that “escalating risk exists on a continuum”, suggesting that if frustration, distress or anxiety are observed, there are steps that can be taken (such as engaging with the respondent’s treating psychologist, communicating with the respondent to try to support and encourage him, engaging in some kind of intervention to assist him with problem-solving skills) to contain any escalation, but adding that: “… if it should become escalated and he is refusing to engage in supportive processes, that’s the point when one has to consider whether he needs to be restricted in his comings and goings, whether curfews need to be applied until further evaluation can be made and, ultimately, whether his behaviour is constituting a breach [of the supervision order].”98 [82] Dr Aboud emphasised disengagement from the supervision and monitoring process (in the sense of “no longer complying and obeying and understanding and agreeing”); and disengagement from psychological therapy intervention, as features that may be indicative of elevation of risk.99 [83] Dr Aboud went on to say, in response to the question “but the offending could occur very quickly, couldn’t it?”: “The offending could occur very quickly, but I would put weight on the issue of a high or functional libido needing to be part of the equation. And in the absence of that, what one would have is an escalation of concerns that do need to be seriously addressed and properly managed, of which the heightened version could constitute 96 T 1-17 lines 22 to 33. 97 T 1-21 lines 5 to 16. 98 T 1-16 lines 21 to 37. See also Dr Aboud’s further evidence on this point at T 1-19 line 41 to T 1-20 line 13. 99 T 1-20. -- 24 of 35 -- 24 a breach that needs to be addressed more robustly. But in the absence of an escalated or – when I say escalated testosterone, I’m talking about escalated above the very low level that he’s currently at – that the risk, I think, of sexual reoffending has to be seen within that context.”100 [84] In his report of 19 July 2019 Dr Aboud said (p 18): “If he was released to the community, I recommend that his management plan should include: ongoing prescription of both the current antilibidinal hormonal medication (Goserelin Acetate) and the antidepressant medication; regular (at least monthly) monitoring of serum testosterone levels, with an aim to keep serum testosterone levels below, or close to, 3 nmol/L; continued engagement with a psychologist to further manage issues associated with sexual deviance, institutionalisation, community reintegration, psychosocial stress, interpersonal conflict, loneliness and isolation, feelings of disempowerment and low self esteem, issues of underlying anger, negative affective states and emotional regulation, adaptive coping and problem solving; future community living circumstances that are restrictive in the first instance (including placement at the precinct contingency accommodation, employment of curfew, provisions made to prevent unsupervised access to children and vulnerable adults, such as those with intellectual impairment or mental illness or physical fragility); intensive support in respect of community reintegration; close monitoring and supervision.” [85] In relation to the proposed requirement for the respondent’s serum testosterone levels to be kept below 3nmol/L, Dr Aboud was asked about the result from 26 June 2019 (which showed a level of 4.2 nmol/L).101 Dr Aboud referred to a suggestion, not only from the respondent but from nursing staff as well, that there may have been some error or anomaly in the process of taking that particular sample, noting the consistency otherwise in the levels recorded from November 2018 to January 2020. The point made was that, of itself, one reading at or above 3 nmol/L would be a cause for concern and further action (shared communication, taking action by restricting the respondent’s movements, whilst repeating the test, or waiting for the next test), but not necessarily an immediate sanction.102 [86] Reiterating what he said in his written report (set out at paragraph [75] above), in cross-examination Dr Aboud agreed with the proposition that the first clearly objective marker, indeed a very important marker, of an escalation of risk that anyone could observe would be if the respondent refused to continue to take the anti-libidinal medication (at present, Goserelin).103 [87] In his oral evidence, when asked about why he recommended a supervision order be in place for 20 years, Dr Aboud explained that he made that recommendation because if, for example, the respondent was in the community in 10 years’ time, and stopped 100 T 1-16 lines 39 to 46. Underlining added. 101 See the table set out at paragraph [40] above. 102 T 1-24 line 15 to T 1-25 line 11. 103 T 1-18 line 37. -- 25 of 35 -- 25 the anti-libidinal medication, his testosterone level would increase and his risk of sexual reoffending would automatically increase. Dr Aboud explained that, in his report, he said the order should be in place for at least 20 years because “in fact, what I was thinking was that this medication should apply for the rest of his life”, and agreed with the proposition that, in his opinion, there is no scope for anything less than 20 years.104 [88] Dr Aboud emphasised the need for a clear and robust structure around the prescription, administration and monitoring of the anti-libidinal medication, as well as the need for clear lines of communication, and sharing of information, between the respondent’s primary healthcare provider (his GP), his treating psychiatrist (presently Dr Steele), treating psychologist (presently Dr Madsen) and QCS.105 Dr McVie (s 13(4)(a)) [89] Dr McVie interviewed the respondent on 15 June 2019, before preparing a risk assessment report dated 6 August 2019. [90] After receiving further medical records, QCS material and the material relating to the new charges, Dr McVie interviewed the respondent again on 22 February 2020 and prepared a supplementary report dated 27 February 2020.106 [91] Dr McVie’s risk assessment, by reference to the various actuarial instruments, is set out at pp 20-21 of her report dated 6 August 2019. In her supplementary report, dated 27 February 2020 (at p 10), after setting out her opinion as to diagnosis (in the terms extracted at paragraph [32] above), Dr McVie says: “Structured risk assessment indicates his risk of sexual recidivism is high. His current risk is managed by his contained environment, long term psychological intervention and antilibidinal medication.” [92] Dr McVie expresses the following opinions, at pp 10-12 of the report dated 27 February 2020:107 (a) As to the respondent’s “level of risk of sexual recidivism on release from custody”: “If Mr Lawrence were to be released from custody without any supervision order his risk of re-offending sexually would be high. He would cease taking his medication. His sexual impulses would return. He would be at high risk of decompensating in any stressful environment. His sexual sadistic fantasies could then be played out.” (b) As to the “nature and type of offence [the respondent] is likely to commit should the risk manifest”: “Based on his previous behaviour and his long term reported sexual fantasies, Mr Lawrence would most likely abduct, rape and kill an adult female. It is also likely he would sexually assault a vulnerable 104 T 1-19 lines 18 to 28. 105 T 1-21 line37 to T 1-22 line 7. 106 See the affidavit of Dr McVie, filed on 28 March 2020. 107 Underlining in the quoted passages added. The expression of opinion in this part of the later report reflects what appears at pp 22-24 of the earlier report dated 6 August 2019, with some updating. -- 26 of 35 -- 26 male or female. He has previously expressed sexual interest in young males. Any residual paedophilic interest could resurface and a child could potentially be a victim.” (c) As to the “appropriate means by which to manage and mitigate the risk, should you consider some form of management or mitigation could reduce it”: “A supervision order, with intense psychological support and monitoring would reduce this risk, together with continued medication as currently prescribed.” (d) In answer to the question “[i]f you consider a supervision order appropriate, [the respondent’s] level of risk of sexual recidivism with a supervision order in place on release from custody”: “In my opinion, a well-managed supervision order with continuation of psychologist input by Dr Madsen and psychiatrist Dr Steele in place, could decrease the risk to low. Mr Lawrence is keen to comply with any management or medication that will enable him to be released from custody. Due to his history and diagnosis, very intense monitoring of his mental state, his thinking and behaviour, will need to be continued in the longer term.” (e) As to Dr McVie’s recommendations as to the nature of the requirements to be contained in a supervision order: “In addition to the usual clauses, a clear requirement to continue his antilibidinal medication (Goserelin) and requisite blood tests; a requirement to maintain attendance with the supervising psychiatrist and his treating psychologist; and additionally, I would advise conditions to prevent access to children, at least in the early stages of his release until his attitudes and behaviour towards younger persons can be observed in the broader community environment.” (f) Dr McVie also recommends that the respondent “will require much closer monitoring by his treating psychologist and psychiatrist than most persons released on a supervision order” and observes that Dr Madsen has also identified that he will need considerable support. (g) As to the effect of the treatment of the antilibidinal medication on the respondent’s risk, Dr McVie says: “It appears the treatment with Goserelin has been effective and has decreased his risk. I would strongly recommend that he remain on this medication indefinitely.” (h) In relation to the recent (historical) charges, Dr McVie says: “The recent charges do not alter his risk, as there was already information suggesting other inappropriate sexual behaviours towards children in the previous material. Technically the additional charges do increase his Static 99R score from 8 to 9. This makes no difference in his statistical risk group for recidivism. Due to the historic nature of the charges, his age at the time of the alleged -- 27 of 35 -- 27 offences, and the extent of the psychological treatment he has already undergone, I would consider there is no additional effect on risk.” (i) Finally, Dr McVie says: “I would support Mr Lawrence being released on a supervision order under the Dangerous Prisoners (Sexual Offenders) Act 2003, with conditions as discussed above. The most important condition would be continuation of his subcutaneous injection of Goserelin monthly. The order should be for ten years.” [93] Dr McVie explained in her oral evidence that her opinion, that the order should be in place for 10 years, was based on the need for an order “towards the upper end of the type of length of orders that could be made”, but also providing for an opportunity for the respondent, once in the community, perhaps to demonstrate by his behaviour over time, and with the input of his psychologist and psychiatrist, that he could come off the anti-libidinal medication. Dr McVie also noted that the potential side effects of the medication may mean he has to come off it at some stage. However, Dr McVie also accepted that, based on the respondent’s history, Dr Aboud’s view that he will need to stay on mediation, and on a supervision order, for the rest of his life, is possible.108 Other relevant matters (s 13(4)(j)) [94] The reports of Dr Madsen, Dr Arnold, Dr Aboud and Dr McVie, which are discussed in detail above, address the required matters in s 13(4), including: (a) whether there is a propensity on the part of the respondent to commit serious sexual offences in the future (s 13(4)(c)) and whether there is a pattern of offending behaviour (s 13(4)(d)), taking into account the respondent’s antecedents and criminal history (s 13(4)(g)) and the doctors’ examinations and professional assessments of the respondent (s 13(4)(a) and (b)); (b) the respondent’s efforts to address the causes of his offending behaviour [most notably, by agreeing to the administration of anti-libidinal medication, in conjunction with continuing treatment with a psychiatrist and psychologist] and whether those efforts have had a positive effect (s 13(4)(e) and (f)); and (c) assessment of the risk that the respondent will commit another serious sexual offence if released into the community (s 13(4)(h)). [95] Mr Bear, the Acting Manager of the High Risk Offender Management Unit, provided evidence of some other relevant matters, including QCS’s position and what it is willing and able to do in relation to the supervision of the respondent, in his affidavit filed on 24 March 2020. [96] As noted by Mr Bear, “[h]istorically, QCS has considered that it is unable to manage the risk posed by the respondent”.109 Mr Bear says that, based on the opinions of Dr McVie and Dr Aboud, QCS “still holds significant concerns regarding its ability to manage the respondent’s risk should he be released from custody subject to a 108 T 1-34 lines 1 to 23. 109 Affidavit of Mr Bear, at [4]. -- 28 of 35 -- 28 supervision order”. He also says, however, that “QCS will use all reasonable efforts to manage the risk”.110 [97] In relation to the anti-libidinal medication, Mr Bear confirms QCS will continue to engage and fund Dr Steele to oversee the administration of Goserelin medication to the respondent, and his general state of health, including regular blood tests to monitor his testosterone levels.111 [98] Whilst in custody, Prison Health Services (Queensland Health) has provided the respondent with the Goserelin medication. That arrangement would not continue if he is released from custody on a supervision order.112 However, commendably, whilst QCS is not specifically funded to cover the cost of medication in the community, if the respondent is released on a supervision order Mr Bear says that “QCS will fund the provision of Goserelin that is considered by the psychiatrists as a key tool to suitably manage the risk to the community”.113 [99] Mr Bear identifies a number of matters that would be important in order for QCS to effectively manage the respondent on a supervision order. [100] In so far as the anti-libidinal medication is concerned, these matters are referred to in [16]-[24] of Mr Bear’s affidavit, in summary captured by [25] in which Mr Bear says that if the respondent is released to a supervision order, “QCS would be assisted in managing him as effectively as possible by clear and strict requirements addressing medication, compliance, testing, and engagement in treatment with a specialist provider who is willing to share information in a timely manner with QCS”. [101] In relation to case management more generally, Mr Bear at [26]-[30] expresses concerns about the respondent not making truthful disclosures about thoughts or fantasies, and the difficulties that may cause in terms of QCS’s ability to identify and manage any potential increase in risk. [102] The limitations of other supervision measures, such as GPS tracking and curfews, are also addressed by Mr Bear. GPS tracking would provide an overview of the respondent’s movements and patterns generally, although would not provide knowledge of what the respondent is doing at any particular place, or who he interacts with (at [31]). [103] In that context, counsel for the Attorney-General raised with Dr Aboud the fact that the respondent had escaped from custody in 1991, in terms of whether he considered there was a possibility of that occurring again in the future. Dr Aboud said there is a possibility, on the basis the respondent had done that before, but it was difficult to make an assessment of the degree of probability of that occurring, given the length of time the respondent has now been in custody. Protective factors against him absconding included the respondent’s “institutionalised psychological framework”, dependence on other people, including those that are paid to do their jobs to support and supervise him, and his own anxiety about meeting his needs in the absence of those people. Pointing in the other direction might be frustration about restrictions 110 Ibid, at [7]. 111 Ibid, at [13]. 112 Ibid, at [14]. 113 Ibid, at [15]. -- 29 of 35 -- 29 and an impulsive desire to try to break free from them. Dr Aboud recommended that correctional staff and psychology staff be aware of that balance, and “communicate with him in a supportive way, in an understanding way, but also to carefully and somewhat stringently monitor him, supervise him, and that would include the use of electronic monitoring”. Although Dr Aboud agreed with the proposition that electronic monitoring cannot inform corrective services about what the person is doing, he said “but if the issue is absconding, then it would be picked up at a certain point after he had absconded and then he could be located and apprehended”.114 Dr McVie was not asked about the risk of this occurring in the future. She was asked about the reference in her report to the respondent having absconded from Wolston Park Hospital in about 1981, and commented that as a psychiatrist who had worked at the hospital it was not unusual for patients to abscond for short periods of time, and at that particular time, they were more likely to return of their own volition.115 [104] All the psychiatrists, and Dr Madsen as well, refer to the difficulties the respondent will face if released from custody, due to his profound institutionalisation, after spending such a long time in custody. As the extracts from the various reports set out above make plain, it is expected that the respondent will be anxious, and encounter challenges and difficulties. The doctors recommend stringent monitoring and supervision of the respondent, coupled with careful and supportive communication with the respondent, by QCS staff and the respondent’s treating medical professionals. Is the respondent a serious danger to the community in the absence of a division 3 order? [105] In considering the first question posed by s 30(1) I have had regard to the required matters mentioned in s 13(4). The evidence before the court unquestionably supports the conclusion that it is appropriate to affirm the decision that the respondent is a serious danger to the community, in the absence of either a continuing detention order or a supervision order. [106] On the evidence presently before the court, I am satisfied that the respondent is now a serious danger to the community, in the absence of such an order. There is still, I accept, a high risk that the respondent will commit another serious sexual offence if released into the community unconditionally. The nature of the risk, should the respondent reoffend, is very serious, potentially involving the committal of a sexually sadistic murder. There is patently a need to protect members of the community from that risk. [107] However, on the evidence before the court, the risk posed by the respondent is now to a large extent rendered manageable by the anti-libidinal medication he is prescribed and which is administered by monthly injection. The demonstrated effect of this injected medication on his serum testosterone levels is such that, according to the psychiatrists, it can objectively be accepted that the respondent no longer has a functional libido, or sexual drive, which is the key dynamic component of the respondent’s risk. Consequently, provided the respondent continues to accept the recommended anti-libidinal medication, the risk posed by the respondent is reduced (to moderate to low, on Dr Aboud’s analysis; or to low, on Dr McVie’s evidence) and 114 T 1-14 line 30 to T 1-15 line 11. 115 T 1-31 lines 27 to 31. -- 30 of 35 -- 30 considered to be manageable in the context of a supervision order (by Dr Aboud, Dr McVie and Dr Arnold). [108] In this important respect, the evidence now before the court demonstrates that there have been some significant changes since the last review. But there has not been shown to be a basis to change the view previously formed by the court, and still retained by psychiatrists who have interviewed the respondent, in particular Dr Arnold and Dr Aboud, that it is not safe to rely upon the respondent’s self-reporting, in the absence of other independent or objective information. [109] Without an order under the Act, the court could not be satisfied the respondent would voluntarily take the medication; and could not be satisfied that relying on the respondent to voluntarily take the medication would ensure the adequate protection of the community. [110] There is an unacceptable risk that, if the respondent were released from custody unconditionally, he would cease taking the anti-libidinal medication, and commit a serious sexual offence. I therefore affirm the decision first made on 3 October 2008, that the respondent is a serious danger to the community in the absence of an order made under division 3, part 2 of the Act. [111] The next question is, how the discretion under s 30(3) of the Act should be exercised. Has the Attorney-General discharged the burden of proving that a supervision order will not afford adequate protection to the community? [112] In considering and deciding how the discretion under s 30(3) should be exercised I have not placed any real weight on the respondent’s personal assurances, whether given to the assessing psychiatrists or in his evidence to the court, for example, about a lack of sexual drive and the absence of sexual thoughts. In light of the history of this matter, the views expressed over time by the medical experts, and the findings made on previous reviews, I consider it appropriate and necessary to approach the question of how to exercise the discretion by reference to the objective opinions of the expert psychiatrists, rather than any subjective assurances from the respondent. I proceed from the premise that it is more probable than not that the respondent remains an unreliable self-reporter. [113] I do, however, acknowledge the respondent’s express statements of willingness to engage in treatment with his psychiatrist, and his psychologist, and his willingness to take the anti-libidinal medication as prescribed, for the duration of any supervision order. That is relevant and significant, in so far as it enables the court to be satisfied that the respondent agrees to comply with conditions that may be imposed upon his release from custody.116 [114] The significant changes which have taken place since the last review of the continuing detention order are that a process has been put in place by which to ensure the respondent is administered the anti-libidinal medication, other than by relying on his self-report of that occurring, and to monitor the effect that medication is having on his testosterone levels, by regular blood tests. In addition, the test results obtained 116 See Attorney-General (Qld) v Fardon [2011] QCA 155 at [29] per de Jersey CJ, Fraser JA and Mullins J (as her Honour then was) agreeing. -- 31 of 35 -- 31 since the respondent began to be administered Goserelin, by injection, have been at a consistent and sufficiently low level, such as to enable the psychiatrists to conclude that the regime of anti-libidinal medication is capable of containing the risk posed by the respondent. Also significant is the fact that QCS has agreed to fund the medication for the respondent. [115] The Attorney-General submits that, despite the fact that a regime can be put in place in relation to the administration of anti-libidinal medication which does not rely on the respondent’s self-report, on the basis of Dr Aboud’s evidence the risk of reoffending remains moderate to low. Having regard to the serious nature of the risk, if it were to eventuate, a moderate to low risk remains unacceptable. Accordingly, the Attorney-General submits that the discretion should be exercised by making an order under s 30(3)(a) that the respondent continue to be subject to the continuing detention order. [116] It is important to pay careful attention to Dr Aboud’s evidence in this regard. As he explained in his oral evidence, in articulating the level of risk as moderate to low, Dr Aboud was adopting a deliberately conservative approach, taking into account the existence of some “small literature” that entertains the possibility than an individual who has a condition such as sexual sadism might act on the basis of purely cognitive thoughts, as opposed to biological drive. [117] As Dr Aboud said, the “overarching views” are in the other direction – that is, as Dr Aboud described it in the case of the respondent, that for the deviant fantasies to translate into behaviour requires fuel, and the fuel is the libido, the sexual drive. [118] Dr Aboud also said that the respondent’s sadistic sexual fantasy is “highly likely”, “almost certainly”, to be associated with a sexual drive. As to that, Dr Aboud said that if the respondent’s testosterone levels remain as they have been, less than 3 nmol/L, the respondent is in the category of a person “who does not have a functional libido”. Accordingly, although the respondent’s self-disclosure would still have to be regarded as unreliable, his denial of any sexual arousal or urge or deviant fantasy since commencing the anti-libidinal medication accorded with Dr Aboud’s clinical expectation. That is, Dr Aboud considers the respondents’ self-report (that he does not experience any sexual drive) is consistent with his current testosterone levels. [119] Those matters support Dr Aboud’s opinion that, with continued compliance with the anti-libidinal medication, resulting in consistently low levels of testosterone, the risk of the respondent sexually reoffending is manageable within the confines of a supervision order. [120] Dr McVie supports the respondent being released on a supervision order, on the basis that the “most important” condition is the continuation of his subcutaneous injection of Goserelin monthly. She considers that a well-managed supervision order, with the continuation of input from the psychologist, Dr Madsen, and the psychiatrist, Dr Steele, could reduce the risk of reoffending to low. [121] Dr Arnold also expressed the view that, as long as the respondent is taking Goserelin and his testosterone levels remain below 3nmol/L, this is “highly likely to make sexual offending unlikely, although still possible”. -- 32 of 35 -- 32 [122] Inherent in each of these opinions is that there remains some level of risk. In deciding how to exercise the discretion under s 30(4) the paramount consideration is the need to ensure adequate protection of the community (s 30(4)(a)). The court must consider whether adequate protection of the community can be reasonably and practicably managed by a supervision order and whether the requirements of a supervision order under s 16 can be reasonably and practicably managed by QCS (s 30(4)(b)). As discussed above, as a matter of principle that does not require the court to be satisfied that a supervision order will provide an absolute guarantee of protection. The question is “whether a supervision order will be efficacious in constraining the respondent’s behaviour by preventing the opportunity for the commission of sexual offences”.117 [123] Having regard particularly to the evidence of the psychiatrists, Dr Aboud and Dr McVie, which has been set out in detail above, as well as the evidence of Dr Arnold, Dr Madsen and Mr Bear (including as to QCS’s agreement to fund the anti-libidinal medication for the respondent) and the respondent’s evidence of a willingness to comply with a supervision order which requires him to agree to administration of anti- libidinal medication, I am not persuaded that a supervision order will not afford adequate protection to the community. [124] That is, the Attorney-General has not discharged the burden of proving that only a continuing detention order would ensure the adequate protection of the community. [125] On the contrary, I am persuaded that a supervision order – carefully drafted to take account of the essential requirements emphasised by Dr Aboud and Dr McVie, as well as the matters highlighted by Mr Bear – will ensure the adequate protection of the community from the risk posed by the respondent of committing a serious sexual offence. [126] Essential conditions of a supervision order made in relation to the respondent are that he: (a) submit to the administration of the anti-libidinal medication, by injection, as prescribed, under the supervision of a psychiatrist; and (b) submit to regular blood tests to ensure his testosterone levels remain below 3 nmol/L; and (c) continue to engage in treatment with his psychiatrist and his psychologist; and (d) authorise an open flow of communication as between his psychiatrist, psychologist, general practitioner and QCS officers. [127] The evidence before the court, including the objective evidence of the respondent having received the Goserelin injections monthly since October 2018, and of his consistently low testosterone levels since then, supports the conclusion that a supervision order with these essential requirements will be efficacious in constraining the respondent’s behaviour, by effectively removing the fuel required (a sexual drive) to enable any remaining deviant fantasies to translate into offending behaviour. [128] On the evidence, there are a number of warning flags which will enable QCS to take action to prevent any escalation of risk: most importantly, a refusal to accept 117 Attorney-General (Qld) v Fardon [2011] QCA 111 at [29] per Chesterman JA. -- 33 of 35 -- 33 administration of the injected medication; or to submit to a blood test. But other warning flags also include: where the results of the blood tests do not show a consistent level of testosterone below the 3nmol/L level to be imposed in the order, or where the respondent disengages from treatment, or the supervision and monitoring process, in the manner explained by Dr Aboud. On the evidence, I am satisfied the adequate protection of the community can be reasonably and practicably managed by a supervision order and that the necessary requirements of a supervision order can be reasonably and practicably managed by QCS. [129] I accept the evidence of Dr Aboud that the order should be in place for a period of 20 years. I acknowledge Dr McVie’s alternative view, that a 10 year period may allow for the opportunity for the respondent to show that he can function in the community without the need for the medication, and a supervision order. However, the overwhelming evidence in the present case is that the only reasonable and practicable way of managing the very serious risk otherwise posed by the respondent is by the administration of anti-libidinal medication. [130] It is necessary for the supervision order to be worded very precisely and specifically in terms of the requirement for the respondent to take (receive) the anti-libidinal medication (rather than, as is sometimes the case, more broadly in terms of a requirement to do something, unless given permission otherwise by a corrective services officer). If there is a need for some change to be made to the order (for example, if, as postulated by Dr McVie, there emerge in the future medical reasons which make it difficult or impossible for the respondent to continue to take the anti- libidinal medication), in my view that must be addressed by a further application to the court, under s 19 of the Act, on the basis of expert medical evidence which is then available. [131] I wish to make it abundantly clear that a fundamental basis of my decision, to exercise the discretion to make a supervision order enabling the conditional release of the respondent, is that he will continue to be administered, by injection, the prescribed anti-libidinal medication. If that is no longer the case – either because he refuses, or because for medical reasons he is advised not to – he should be returned to custody, whilst the question of any variation to the supervision order is determined by the court, on the evidence which is then available. [132] I have revised the draft supervision order which was helpfully prepared by legal representatives for the Attorney-General prior to the hearing, to reflect the essential requirements of the supervision order as I perceive them to be, based on the evidence before the court. It is important that the parties and their legal representatives, as well as officers of QCS, have time to consider the proposed supervision order, before it is formally made. Accordingly, at the time of delivering these reasons, I will provide the draft proposed supervision order to the parties, and invite any further submissions within a time to be determined after consultation with them. [133] Section 17(1) of the Act requires the court to give detailed reasons for making, inter alia, a supervision order. Section 17(2) requires the reasons to be given at the time the order is made. As identified by Muir JA in Attorney-General (Qld) v Fardon [2013] QCA 64 at [84]: “The purposes of this requirement include enabling the parties and the public to understand the judge’s reasons for making such an order so -- 34 of 35 -- 34 as to provide ‘the foundation for the acceptability of the decision by the parties and by the public’,118 the facilitation of appeals and the creation of a record which may assist a prisoner and the appropriate authorities, including the Attorney-General, in further applications under the Act and generally in the prisoner’s management, treatment and rehabilitation.” [134] For the reasons set out above, I have determined that a supervision order should be made. The publication of detailed reasons for the making of a proposed supervision order, with the precise terms of the order to be determined following further submissions from the parties, is consistent with the s 17 requirement. The detailed reasons for making the supervision order at the time it is formally made will be the reasons set out above, together with any further reasons delivered on the day of making the order. 118 Referring to Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247 at 279. -- 35 of 35 --