Attorney-General for the State of Queensland v Gibson [2019] QSC 206

SUPREME COURT OF QUEENSLAND CITATION: Attorney-General for the State of Queensland v Gibson [2019] QSC 206 PARTIES: ATTORNEY-GENERAL FOR THE STATE OF QUEENSLAND (applicant) v ASHLEY LENNON GIBSON (respondent) FILE NO/S: No 4542 of 2017 DIVISION: Trial Division PROCEEDING: Application DELIVERED ON: 22 August 2019 DELIVERED AT: Brisbane HEARING DATE: 6 August 2019 JUDGE: Davis J ORDER: The Court, being satisfied to the requisite standard that the respondent, Ashley Lennon Gibson, is a serious danger to the community in the absence of an order pursuant to Division 3 of the Dangerous Prisoners (Sexual Offenders) Act 2003 (“the Act”) orders that: 1. The decision made by Dalton J on 10 August 2017 that the respondent is a serious danger to the community in the absence of an order pursuant to Division 3 of the Act, be affirmed; and 2. The respondent continue to be subject to the continuing detention order made on 10 August 2017. CATCHWORDS: CRIMINAL LAW – SENTENCE – SENTENCING ORDERS – ORDERS AND DECLARATIONS RELATING TO SERIOUS OR VIOLENT OFFENDERS OR DANGEROUS SEXUAL OFFENDERS – DANGEROUS SEXUAL OFFENDER – GENERALLY – where the respondent has been detained on a continuing detention order – whether the respondent continues to be a serious danger to the community – whether the respondent should continue to be subject to the continuing detention order Dangerous Prisoners (Sexual Offenders) Act 2003 (Qld), s 8, s 13, s 30 Attorney-General for the State of Queensland v Francis [2007] 1 Qd R 396, followed -- 1 of 16 -- 2 Fardon v Attorney-General (Qld) (2004) 223 CLR 575, followed COUNSEL: M Maloney for the applicant A E Loode for the respondent SOLICITORS: G R Cooper, Crown Solicitor for the applicant Legal Aid Queensland for the respondent [1] The respondent is the subject of a continuing detention order made under s 13(5) of the Dangerous Prisoners (Sexual Offenders) Act 2003 (Qld) (“the Act”) by Dalton J on 10 August 2017 (the continuing detention order). [2] Continuing detention orders must be reviewed.1 The present application seeks such a review. Background [3] The respondent is an indigenous man born either on 10 December 1980 or 10 December 1981. [4] The respondent’s criminal history was described as follows by Dalton J when making the continuing detention order: “The sexual offending for which he has served a sentence is as follows. He was convicted on the 9th of December 2012 for wilful exposure committed on the 10th of November 2012. It was a relatively minor exposure. On the 3rd of August 2013 he was convicted of three counts of indecent treatment of a child under 16 (expose), one indecent act in a public place. Both those offences were committee on the 16th of March 2013 and essentially involved Mr Gibson exposing himself and masturbating at a public swimming hole. On that date he was also convicted of using a carriage service to menace, harass or cause offence between the 15th of November 2012 and the 30th of November 2012 and convicted of the same offence, this time taking place on the 12th of March 2013. These offences were rather odd. He rang business establishments. There was no connection between him and the establishment, and it was a matter of chance who answered the telephone. He then spoke of sexual matters and, in particular, I suppose you could say he threatened the person who received the call that he would come and perform sexual acts on them. On the 6th of May 2015 he was convicted of indecent treatment of a child under 16. That took place on the 21st of September 2014, and on the 4th of August 2016 he was convicted of the same offence which had taken place on the 10th of December 2015. Again, it is odd sort of offending. In both cases it involved 12 year old girls completely unknown to Mr Gibson who were out with their parents in shops or similar, and he really did little, but it did involve touching them. He touched them on their bottoms.” 1 Dangerous Prisoners (Sexual Offenders) Act 2003 (Qld) Part 3. -- 2 of 16 -- 3 [5] For the offence of which he was convicted on 4 August 2016, the respondent was sentenced to 12 months’ imprisonment. On the same occasion he was sentenced to eight months’ imprisonment for an offence of unlawful stalking. The sentence was ordered to be served cumulatively on the 12 month sentence. [6] In anticipation of an application being made under the Act, the respondent was examined by psychiatrist Dr Scott Harden and on the basis of his report the Attorney-General made an application for orders under the Act. [7] On 31 May 2017 Boddice J made orders under s 8, including appointing Dr Josephine Sundin and Dr Kenneth Arthur, psychiatrists, to conduct examinations of the respondent. [8] Dr Sundin and Dr Arthur examined the respondent and prepared reports. [9] The application for orders under s 13 of the Act came before Dalton J on 10 August 2017. The psychiatric evidence before her Honour consisted of the opinions of Drs Harden, Sundin and Arthur. [10] In assessing the evidence and electing to make a continuing detention order, her Honour said: “I return to the report then of Dr Harden and his evidence. To Dr Harden, Mr Gibson denied any sexual motivation or gratification from the offending. In fact, he told Dr Harden that he committed the most recent offences, anyway, to ensure that he was taken to jail so that he would be put into contact with his brother-in-law, who he wanted to be violent towards because of actions that that man had carried out on Mr Gibson’s sister. Mr Gibson expressed remorse to Dr Harden for his offending in relation to the 12 year old girls, and I think it was not just a superficial expression of sorry. I think from – you know, allowing for difficulties in his expressing himself, I think that he really was and he had some understanding that the children were too young and that he ought to be a responsible person to whom society could look up, rather than someone who committed this type of offences. Dr Harden found no evidence of mental illness, but due to personality factors and IQ factors, he concluded that Mr Gibson had little ability to reflect on his offending. Dr Harden was not able to offer any opinion as to the motivation for the offending, and this was explored with him to some extent in evidence. And it is, I have to say, odd offending. Dr Harden pointed to the fact that the two offences on the 12 year old girls are very similar so that he said he would postulate that they represent something as archetypes or subtypes, but he really could not shed much light on why Mr Gibson was offending this way. He did think that the offending was escalating from public exhibitionism and anonymous phone calls. He thought that it was an important escalation that Mr Gibson had got to the point where he was touching these young girls. He said that represented, really, breaking through quite a significant boundary in offending. Dr Harden thought it was likely that Mr Gibson was aroused -- 3 of 16 -- 4 by exposing himself and the other behaviour which is comprised in the offending, notwithstanding Mr Gibson’s denial of this. He thought that Mr Gibson had a personality disorder with antisocial, narcissistic and avoidant features, and he thought he was at high risk of the same type of offending as he has carried out in the past. He thought that risk would be reduced on a supervision order because Mr Gibson would be so restricted and so supervised on an order. And he was at some pains to stress this in his evidence, really, not because he had any confidence that putting Mr Gibson on a supervision order would teach him to behave better or be a transition for him to behave better in society. In fact, Dr Harden expressed considerable reserve as to whether or not Mr Gibson would understand the requirements of a supervision order. He said he had no hope at all of understanding the formal order made. It would have to be explained to him in really simple terms over and over again perhaps, he thought, with the use of pictures to explain it. Dr Harden thought that Mr Gibson was likely to benefit from the sex offender program for Indigenous males which is run at the Lotus Glen Prison. He thought that he would benefit from this much more than he would benefit from one-on-one counselling with a psychologist in the community, and, again, some time in his evidence was taken exploring that. He thinks that the sex offenders program for Indigenous males would be much better for Mr Gibson because he identifies strongly with Indigenous culture and he thinks that within the group sessions of that program, he would find role models, essentially, to copy and learn from as part of the group. Dr Harden was not able to say that one-on-one counselling in the community would not benefit Mr Gibson. He thought it would, but he thought his benefit or progress in such a course would be much slower. And I accept his evidence, and it is the same – Dr Sundin’s view and Dr Arthur’s view are the same, that they had a strong preference for Mr Gibson to remain incarcerated to complete the sex offenders program for Indigenous males rather than try to engage in one-on-one counselling in the community under a supervision order. Dr Sundin, I think, saw a rather different presentation of Mr Gibson than did Dr Harden and, I think, than did Dr Arthur. She describes as follows: At times it was almost impossible to follow his explanations of his offences as he simultaneously described both grandiose ideas about his attainments, a paranoid conspiracy against him by the community, a retributive motive based on an assault committed upon his sister by his brother-in-law. These conflicting explanations, combined with his soft speech, was so difficult to follow at times, I thought his language bordered on thought disorder. His affect was rather shallow. At no time did he demonstrate distress. Occasionally he smiled inappropriately. His mood was neither elevated nor depressed … -- 4 of 16 -- 5 His insight and judgment was reduced. Mr Gibson told Dr Sundin that he thought the medium intensity sexual offenders program was bullshit and that it had held him back. She notes that the report from his attempt at doing that program was that he had significant cognitive distortions about his offending and little or no insight. As he had to Dr Harden, Mr Gibson ascribed non-sexual motives to his offending. He gave her the same story about wanting to get into prison. Interestingly, he described the telephone calls comprising offending as being driven by “silly thoughts” or on other occasions “a big joke”, and on other occasions he said they were a way of getting revenge. That revenge was not specified the way the vengeful motive towards his brother-in-law was specified. Further, as to the phone call offending, Mr Gibson told Dr Sundin, ‘I think that was a bit too crazy. One part was I thought I would turn them on, but another part thought it was stupid.’ He repeatedly characterised his behaviour as crazy, stupid or dumb. Dr Sundin agreed with Dr Harden’s diagnosis of personality disorder and, like Dr Harden, she thought he had an exhibitionist disorder. She gives a little bit more detail in her report about Mr Gibson’s hostility towards women and his very entitled views towards women, which she links back to his domestic violence history. She considered he was a high risk of sexual offending – or high risk of sexual reoffending, and she thought that risk would be heightened in the community by access to alcohol and cannabis. Under a supervision order, she thought that the risk of offending would be moderate. Dr Sundin also noted escalation in the offending associated with the touching. As I have said, she regarded the sex offenders program for Indigenous males as by far the best course for him. Lastly, I come to Dr Arthur, who prepared a very thorough report. There is a lot of detail there. I think the conclusions are pretty much the same as in the other two psychiatrists’ report. To Dr Arthur, Mr Gibson explained that he was not a sex offender. He did not characterise his offending this way. And, as a part of that, he explained that he did not consider he had any need for treatment. He expressed negative views of being on a supervision order, although I would have to say I am not entirely sure that the report indicates Mr Gibson understood just what a supervision order would involve in any real sense. Dr Arthur commented that Mr Gibson’s self-representation seems very conflicted. He said he will speak very proudly of his work but then also speak almost as a victim in terms of his unemployment. Similarly, he can be a violent man but he will also characterise himself as a victim of violence and someone who is scared of violence. Dr Arthur agreed that Mr Gibson was an exhibitionist. He thought that he had a cluster B personality disorder including antisocial and narcissistic elements. -- 5 of 16 -- 6 He too thought that Mr Gibson’s risk of reoffending in the community was high and thought that a supervision order would mitigate this risk substantially, he says. Like the other psychiatrists, he thought that the best course for Mr Gibson was the sex offenders program for Indigenous males. I will mention that during the hearing Mr Gibson appeared on the video link, and I think he really didn’t understand most of what was being said, and I had Dr Harden confirm that for me. So I acknowledge in those circumstances he certainly would not appear as somebody who was engaged in what was going on. But I did think his behaviour was unusual. I noticed that he smiled inappropriately at several occasions and at other occasions seemed to express quite intense emotional distress, which I could not see was related in any direct way to what was going on in the courtroom. There were times when he was forming words with his lips although there was no sound. And there were times when he was pointing, gesturing while forming words with his lips. Dr Arthur certainly saw the last of those behaviours, and he commented that it was quite different to how Mr Gibson appeared when he saw him. And he speculated that his mental state was fluctuating really quite significantly and speculated further that that might be due to his physical illnesses. I took the matter up with Dr Sundin also because of the passage of her report which I have extracted earlier in these reasons, that is, her wondering whether or not there was some thought disorder there. And she certainly entertained the possibility that there might be some sort of prodromal psychosis occurring. Anyway, it is something to note rather than to speculate about, I think, or, certainly, I cannot make any findings about it at this stage. The position of the respondent was that, on the evidence of all the psychiatrists, a supervision order would reduce a high risk of sex offending to a moderate risk of sex offending and that therefore Mr Gibson ought to be on a supervision order rather than be detained to complete the sex offenders program in Lotus Glen. The position of the Crown was that he should be detained for another year to complete the sex offenders program. I think the respondent’s submission certainly reflects accurately the evidence given, but I am not sure – well, I reject the idea that simply because it does, that placing Mr Gibson on a supervision order is the course I should take. I must have regard to the matters in section 13, subsection (4), which include, of course, the opinions of the psychiatrists, and they are very strongly of the view that he should be detained to complete the Indigenous male sex offenders course. Under section 13, subsection (5), the court is given a discretion as to what it may order, that is, either detention or supervision. And my decision is that the needs of the community or the safety of the community and, indeed, Mr Gibson’s needs are best served by him being detained to complete the Indigenous male sex offender course. -- 6 of 16 -- 7 I fear that on supervision, Mr Gibson is likely to remain on a 24-hour curfew for years, and Dr Arthur spoke to the fact that some of his patients live exactly like that for 18 months or two years, on 24-hour curfew. I then suspect that when Mr Gibson was allowed access in the community without supervision, he would fairly quickly contravene the order, which would result in his being detained and then the shuttle that we see in these cases so often between six months in jail and a few months out on the supervision order again followed by another contravention followed by another period of detention. And I cannot think that that is in his interests, and I cannot think that it is in the community’s interests. I think that if he remains in custody for another year and completes the Indigenous male sex offenders program, he is more likely to do better on supervision if that is what follows. I think that course has more chance of mitigating the long-term risk for the community, and I also think it is more likely to fill the other objective which this Act strives towards, and that is treatment of the offender. And I think doing the Indigenous course and not being put for years under 24-hour curfew in a precinct which is entirely made up of sex offenders is a better option for Mr Gibson.” Statutory provisions [11] A pivotal section in the Act is s 13. It provides as follows: “13 Division 3 orders (1) This section applies if, on the hearing of an application for a division 3 order, the court is satisfied the prisoner is a serious danger to the community in the absence of a division 3 order (a serious danger to the community). (2) A prisoner is a serious danger to the community as mentioned in subsection (1) if there is an unacceptable risk that the prisoner will commit a serious sexual offence— (a) if the prisoner is released from custody; or (b) if the prisoner is released from custody without a supervision order being made. (3) On hearing the application, the court may decide that it is satisfied as required under subsection (1) only if it is satisfied— (a) by acceptable, cogent evidence; and (b) to a high degree of probability; that the evidence is of sufficient weight to justify the decision. (4) In deciding whether a prisoner is a serious danger to the community as mentioned in subsection (1), the court must have regard to the following— (aa) any report produced under section 8A; -- 7 of 16 -- 8 (a) the reports prepared by the psychiatrists under section 11 and the extent to which the prisoner cooperated in the examinations by the psychiatrists; (b) any other medical, psychiatric, psychological or other assessment relating to the prisoner; (c) information indicating whether or not there is a propensity on the part of the prisoner to commit serious sexual offences in the future; (d) whether or not there is any pattern of offending behaviour on the part of the prisoner; (e) efforts by the prisoner to address the cause or causes of the prisoner’s offending behaviour, including whether the prisoner participated in rehabilitation programs; (f) whether or not the prisoner’s participation in rehabilitation programs has had a positive effect on the prisoner; (g) the prisoner’s antecedents and criminal history; (h) the risk that the prisoner will commit another serious sexual offence if released into the community; (i) the need to protect members of the community from that risk; (j) any other relevant matter. (5) If the court is satisfied as required under subsection (1), the court may order— (a) that the prisoner be detained in custody for an indefinite term for control, care or treatment (continuing detention order); or (b) that the prisoner be released from custody subject to the requirements it considers appropriate that are stated in the order (supervision order). (6) In deciding whether to make an order under subsection (5) (a) or (b)— (a) the paramount consideration is to be the need to ensure adequate protection of the community; and (b) the court must consider whether— (i) adequate protection of the community can be reasonably and practicably managed by a supervision order; and -- 8 of 16 -- 9 (ii) requirements under section 16 can be reasonably and practicably managed by corrective services officers. (7) The Attorney-General has the onus of proving that a prisoner is a serious danger to the community as mentioned in subsection (1).” [12] Under s 27, the onus is cast upon the Attorney-General to make applications for review of a continuing detention order made under s 13(5)(a). [13] Section 30 governs the determination of review applications. Section 30 is as follows: “30 Review hearing (1) This section applies if, on the hearing of a review under section 27 or 28 and having regard to the required matters, the court affirms a decision that the prisoner is a serious danger to the community in the absence of a division 3 order. (2) On the hearing of the review, the court may affirm the decision only if it is satisfied— (a) by acceptable, cogent evidence; and (b) to a high degree of probability; that the evidence is of sufficient weight to affirm the decision. (3) If the court affirms the decision, the court may order that the prisoner— (a) continue to be subject to the continuing detention order; or (b) be released from custody subject to a supervision order. (4) In deciding whether to make an order under subsection (3)(a) or (b)— (a) the paramount consideration is to be the need to ensure adequate protection of the community; and (b) the court must consider whether— (i) adequate protection of the community can be reasonably and practicably managed by a supervision order; and (ii) requirements under section 16 can be reasonably and practicably managed by corrective services officers. (5) If the court does not make the order under subsection (3)(a), the court must rescind the continuing detention order. (6) In this section— -- 9 of 16 -- 10 required matters means all of the following— (a) the matters mentioned in section 13(4); (b) any report produced under section 28A.” [14] Section 30, in many ways, mirrors s 13. As to the Court’s consideration, the central question is whether the prisoner “is a serious danger to the community in the absence of the division 3 order” and in that way, s 30(1) mirrors s 13(1). The notion of a “serious danger to the community”2 incorporates the concept of “unacceptable risk”.3 Like an application under s 13, “… the paramount consideration is the need to ensure adequate protection of the community”, as can be seen from s 30(4)(a). There is no definition of “unacceptable risk”, but in Fardon v Attorney-General (Qld),4 this was said: “225. The yardstick to which the Court is to have regard, of an unacceptable risk to the community, relevantly a risk established according to a high degree of probability, that the prisoner will commit another sexual offence if released, established on and by acceptable and cogent evidence, adduced according to the rules of evidence, is one which courts historically have had regard to in many areas of the law. The process of reaching a predictive conclusion about risk is not a novel one. The Family Court undertakes a similar process on a daily basis and this Court (Mason CJ, Brennan, Dawson, Toohey and Gaudron JJ) said this in M v M of the appropriate approach by the Family Court to the evaluation of a risk to a child: ‘Efforts to define with greater precision the magnitude of the risk which will justify a court in denying a parent access to a child have resulted in a variety of formulations. The degree of risk has been described as a ‘risk of serious harm’, ‘an element of risk’ or ‘an appreciable risk’, a ‘real possibility’, a ‘real risk’, and an ‘unacceptable risk’. This imposing array indicates that the courts are striving for a greater degree of definition than the subject is capable of yielding. In devising these tests the courts have endeavoured, in their efforts to protect the child's paramount interests, to achieve a balance between the risk of detriment to the child from sexual abuse and the possibility of benefit to the child from parental access. To achieve a proper balance, the test is best expressed by saying that a court will not grant custody or access to a parent if that custody or access would expose the child to an unacceptable risk of sexual abuse.’ 226. Sentencing itself in part at least may be a predictive exercise requiring a court on occasions to ask itself for how long an offender should be imprisoned to enable him to be rehabilitated, or to ensure that he will no longer pose a threat to the community. The predictive 2 Sections 13(1) and 30(1). 3 Section 13(2). 4 (2004) 223 CLR 575. -- 10 of 16 -- 11 exercise of an assessment of damages for future losses is also a daily occurrence in the courts.” (citations omitted) [15] In the leading case of Attorney-General for the State of Queensland v Francis,5 the Court of Appeal observed: “Adequate protection of the community from the risk of violent sexual offending does not impose a standard that is capable of precise measurement or prediction. The Act does not contemplate that arrangements under a supervision order to prevent the risk of reoffending must be ‘watertight’.”6 [16] Both Fardon and Francis were cases concerned with the making of orders under s 13 of the Act, but for the reasons I have already explained, the statements of principle are equally apposite to a review under s 30. The evidence here [17] For the purposes of the review of the continuing detention order, Drs Sundin and Arthur again examined the respondent. [18] Dr Arthur diagnosed the respondent as follows: “• Exhibitionistic Disorder • Mixed Cluster B Personality Disorder with Antisocial and Narcissistic Features • Substance Use Disorder, predominantly alcohol, currently in remission in a controlled environment • Mild Neurocognitive Disorder (uncertain aetiology) • Chronic Renal Failure, currently on dialysis” [19] Dr Sundin’s diagnosis was: “• Mild-Moderate Neuro-Cognitive Disorder; • Exhibitionistic Disorder; • Alcohol Use Disorder, in sustained remission whilst in a controlled environment. • Mixed Personality Disorder with anti-social and narcissistic traits.” [20] Dr Sundin also thought it was possible that the respondent met the criteria for “Frotteuristic Disorder” and “Telephone Scatologia”. [21] As to risk, Dr Arthur concluded: “184. Even with supervision, he remains at risk of further impulsive sexual behaviour in the community. This may take the form of exposing himself, making lewd phone calls or further contact offences. Whilst 5 [2007] 1 Qd R 396. 6 At [39]. -- 11 of 16 -- 12 he identifies alcohol use as a risk factor, according to his reports he was not intoxicated at the time of the two contact offences. As such, whilst abstinence from alcohol and cannabis may reduce his risk, it does not remove it. Furthermore, prisoner Gibson identified causes of stress leading to the contact offences which include interpersonal conflict within the family and the demand of attending therapy and managing appointments. It is likely that he will be exposed to such stressors in the future.” [22] In relation to risk, Dr Sundin’s opinion is: “As things currently stand, I consider that Mr Gibson continues to represent an unacceptable risk for further sexual offending. I do not think that Mr Gibson can currently be satisfactorily or safely managed within the community as I think the risks of him impulsively sexually acting out are too high.” [23] It is unnecessary to analyse the detail of the reports of Dr Arthur and Dr Sundin. It is clear that a central issue was the respondent’s cognitive impairments. Those impairments are such as to make completion of sexual offender treatment programs difficult. They also lead to specific and problematic accommodation needs. [24] Sharon Lowe, Occupational Therapist, provided a report in which she opined that the respondent was undertaking basic tasks independently: eating, drinking, showering, dressing, grooming and toileting. She also opined that he was able to prepare and cook simple meals and had been working as a cleaner within the prison. [25] Dr Madsen is a forensic and clinical psychologist who has been providing treatment and undertaking assessments of Mr Gibson. He was cross-examined on the opinions expressed by Sharon Lowe in her report and he said this: “MS LOODE In respect of the report at page 3, it goes on to indicate in respect of his learning and functional cognition that he manages his time well and he is also ready for ongoing health appointments when required. In terms of his ability to do that, is that not a skill that would translate into him being in the community?--- DR MADSEN: Look, I - I think the prison environment and particularly the prison environment that Mr Gibson has been living in is very different to what would be regarded a traditional or normal sort of home environment or social context that's out of custody. So he’s always been staying in - in what would be described as high - high secure contexts. So they are locked in and locked out at particular times. They have very specific routines and - and rituals throughout the day. So times when you have lunch, times when you have dinner, times when you need to be away, times when you need to be getting ready for - for bed and so on and so forth. I think that he is able to function well in those environments because of that structure around him and - and the routine - the routine dictated to him by -- 12 of 16 -- 13 the staff and by other prisoners prompting him to do it. I think that he - he copes very well with that. Would he cope in the same way outside of- outside of these - of that kind of context in the same way? Would he be able to manage things in - in a - in a - in a competent way in a way that is good for him? I’m not so sure. I’m - I’m not convinced that - that he would. I think it would be a challenge for him and he would require and I would recommend that if that were the case, he would need support. He would need people that were sort of able to assist him and prompt him and structure his day and his week in ways that - that he needs to be structured, whether it’s appointments or doing shopping, budgeting and so on and so forth.”7 [26] As to the availability of 24 hour support within the precinct, Dr Madsen gave this evidence: “MS MALONEY Are those the sorts of things, Dr Madsen, you’re referring to, that he needs some 24-hour supervision and support to ensure those things are attainable for him?--- DR MADSEN: Well, when we say ‘24-hour’, I guess what I mean is, yes. I mean, these are the kinds of things that would - that would assist - support would assist him with on a regular basis, and when I say ‘regular support’, it would be daily support with being able to prompt him, set up routines in his life, assist him with problem solving things, assist him with setting up rituals or routines that he can - that he - that he can structure his - his life around effectively, and I don’t think that he can do that independently. MS MALONEY And is that the sort of support you are aware - or are you aware of whether that is the sort of support he would be able to receive at the contingency accommodation?--- Within The Precinct? DR MADSEN: Within The Precinct?---No”8 [27] Dr Sundin agreed with the opinion of Dr Madsen as to the level to support required to sustain the respondent in the community. She gave this evidence: “MS MALONEY Are you able to, having considered the material, outline what you would see as the level of support Mr Gibson would need if he were to be considered for release to the community?--- DR SUNDIN: Yes. I would agree with the opinion of Dr Madsen that if he were to be released into the community, he would need to be placed in highly structured 24-hour supported supervision - supervised accommodation. My preference 7 T 1-7. 8 T 1-13. -- 13 of 16 -- 14 is that he would be in a male only hostel of some sort with a locked door where there was staff available to supervise and help him manage on a day-to-day basis. HIS HONOUR: How is his cognitive deficits relevant to risk, risk under the Act of which - - - DR SUNDIN: Yes. HIS HONOUR: - - - of course, you’re familiar?--- DR SUNDIN: Over the course of the time that I’ve known this gentleman, your Honour, it’s evident that his cognitive capacity has been progressively declining. His frontal lobe functions in particular have worsened. That’s the area of the brain that’s involved with planning, executive cognitive functions and impulse control. It’s very clear that this man’s impulse control in particular is poor. It’s gotten worse with time. His judgment is poor and the-we have continuing material to show that he continues to impulsively touch women inappropriately, for example, in the hospital, which is part of his risk profile for these very impulsive acts that have led to previous convictions for sexual offending.”9 [28] As to the availability of 24 hour support, Dr Sundin said: “MS LOODE: So even if he was appropriately supported, which I’m not suggesting he currently has supports in place, but if he was supported sufficiently and engaging in treatment with Dr Madsen, that a supervision order in those circumstances might be something that the court could consider?--- DR SUNDIN: If he could be placed in the community in a closely supervised men’s hostel environment where there’s 24- hour on-call staff and supervising staff and he had continued with treatment with Dr Madsen, then, yes, he could be managed on a supervision order - - - MS LOODE: Yes?--- DR SUNDIN: - - - but it would require him to be placed in that very structured, supervised environment. HIS HONOUR: Are there such hostels?--- DR SUNDIN: I believe there are men’s hostels that meet that requirement. They’re under a great degree of pressure, your Honour, for placements. I believe that QCS has within the last year - I know one prisoner they certainly have placed in such [indistinct]. 9 T 1-14 to 1-15. -- 14 of 16 -- 15 MS LOODE: And it remains your opinion that without that level of support a supervision order would be inadequate to protect the community given his cognitive deficits?--- DR SUNDIN: Yes.”10 [29] Dr Arthur gave evidence consistently with the opinions expressed by Dr Sundin. [30] Both psychiatrists and Dr Madsen opined that the only real way forward for the respondent, in the absence of 24 hour supervision was to remain in custody and undertake one on one counselling and treatment with Dr Madsen. Conclusions and orders [31] The evidence is overwhelming that the respondent is an unacceptable risk of committing a serious sexual offence in the absence of an order under Part 2 of Division 3. The real issue is whether the adequate protection of the community can be ensured if he is released on supervision. [32] I accept the evidence of Drs Sundin, Arthur and Madsen that the respondent, if not in prison will only function in the community in accommodation where he is offered 24 hour support. I accept the evidence of Dr Sundin, confirmed by Dr Arthur,11 that in the absence of such support the respondent remains at a high risk of commission of a serious sexual offence. [33] At present, there is no evidence of the availability of a place for the respondent at a men’s hostel offering 24 hour supervision and support. In those circumstances, I will order that the respondent continue to be subject to the continuing detention order made on 10 August 2017 by Dalton J. [34] In applications made under the Act, the Court often sees situations where prisoners have either cognitive deficits or mental health issues such that they need special accommodation in the community. Often in those cases the evidence is that accommodation is not available. This appears to be one such case. [35] Continued incarceration under the Act of a person who has served the term of imprisonment imposed as a result of his offending should not become the default position because of the unavailability of other less restrictive accommodation. [36] Between now and the next review of the continuing detention order for the current respondent, proper investigation should be made as to the availability of accommodation in a men’s hostel providing 24 hour support. An affidavit detailing those investigations and explaining the results should be before the Court when the matter is next reviewed. Orders [37] The Court, being satisfied to the requisite standard that the respondent, Ashley Lennon Gibson, is a serious danger to the community in the absence of an order pursuant to 10 T 1-18. 11 T 1-27. -- 15 of 16 -- 16 Division 3 of the Dangerous Prisoners (Sexual Offenders) Act 2003 (“the Act”) orders that: 1. The decision made by Dalton J on 10 August 2017 that the respondent is a serious danger to the community in the absence of an order pursuant to Division 3 of the Act, be affirmed; and 2. The respondent continue to be subject to the continuing detention order made on 10 August 2017. -- 16 of 16 --