Attorney-General v Purcell [2017] QSC 206

SUPREME COURT OF QUEENSLAND CITATION: Attorney-General for the State of Queensland v Purcell [2017] QSC 206 PARTIES: ATTORNEY-GENERAL FOR THE STATE OF QUEENSLAND (applicant) v HOWARD WILLIAM PURCELL (respondent) FILE NO/S: BS No 4424 of 2017 DIVISION: Trial Division PROCEEDING: Application ORIGINATING COURT: Supreme Court at Brisbane DELIVERED ON: 22 September 2017 DELIVERED AT: Brisbane HEARING DATE: 18 September 2017 JUDGE: Douglas J ORDER: The respondent will be detained in custody for an indefinite term for control, care or treatment. CATCHWORDS: CRIMINAL LAW – SENTENCE – SENTENCING ORDERS – ORDERS AND DECLARATIONS RELATING TO SERIOUS OR VIOLENT OFFENDERS OR DANGEROUS SEXUAL OFFENDERS – DANGEROUS SEXUAL OFFENDER – GENERALLY – where the applicant seeks an order against the respondent under s 13 of the Dangerous Prisoners (Sexual Offenders) Act 2003 – whether the respondent is a “serious danger to the community” – where the respondent had a history of violent offending, including violent sexual offences – where the respondent struggled with and failed to complete rehabilitative programs whilst incarcerated – where the evidence of psychiatrists somewhat differed on the risk posed by the respondent to the community – whether a supervision order would be a more appropriate order in the circumstances Dangerous Prisoners (Sexual Offenders) Act 2003, s 13 Attorney-General for the State of Queensland v Beattie [2007] QCA 96 considered Attorney-General for the State of Queensland v Fardon [2011] QCA 155 considered -- 1 of 13 -- 2 Attorney-General for the State of Queensland v Francis [2007] 1 Qd R 396; [2006] QCA 324 considered Attorney-General for the State of Queensland v Lawrence [2009] QCA 136 considered Attorney-General for the State of Queensland v S [2015] QSC 157 considered Attorney-General for the State of Queensland v Sutherland [2006] QSC 268 considered Attorney-General for the State of Queensland v Waghorn [2006] QSC 171 considered Attorney-General for the State of Queensland v Watkins [2017] QSC 5 considered COUNSEL: J B Rolls for the applicant E Mac Giolla Ri for the respondent SOLICITORS: GR Cooper, Crown Solicitor for the applicant Fisher Dore for the respondent [1] The Attorney-General seeks orders pursuant to s 13 of the Dangerous Prisoners (Sexual Offenders) Act 2003 to detain the respondent in custody for an indefinite term for care, treatment or control or alternatively for his release from custody subject to such requirements as the Court considers appropriate. [2] The evidence supporting a finding that the respondent is a serious danger to the community in the absence of a Division 3 order is not contested and that conclusion is not opposed. I shall refer to that evidence briefly but it satisfies me that the respondent is a serious danger to the community in the absence of such an order. Application of the legislation [3] The Act provides that the paramount consideration for the decision whether to detain the respondent in custody for an indefinite term or to release him from custody subject to conditions is the need to ensure adequate protection of the community; see s 13(6). [4] The existence of some risk of reoffending is not sufficient as the risk must be of an unacceptable order.1 Brown J also observed in Attorney-General for the State of Queensland v Watkins:2 “When a Court is assessing whether a supervision order can reasonably and practicably manage the adequate protection of the community, it is necessarily assessing the protection the order can provide against that risk. Before making the order the Court has to reach a positive conclusion that the supervision order will provide the adequate protection.” 1 Attorney-General for the State of Queensland v Waghorn [2006] QSC 171 at [24]. 2 [2017] QSC 5 at [60]. -- 2 of 13 -- 3 [5] When considering whether the community could be adequately protected only by a continuing detention order, the court needs to consider “the nature and extent of risk, as well as the potential consequences of that risk eventuating, in order to assess whether the risk is acceptable in the sense of providing adequate protection to the community. That risk has a content not only from what can be found as a fact about the prisoner but also what constitutes real possibilities.”3 [6] The decision of the Court of Appeal in Attorney-General for the State of Queensland v Francis4 made it clear that: “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.”5 Background of the respondent [7] The respondent is 38, having been born on 12 November 1978. He was convicted on 18 March 2010 of one count of rape and one count of assault occasioning bodily harm. He was sentenced to 12 years’ imprisonment for the offence of rape. That term was later reduced on appeal to 10 years. [8] The offences occurred on 17 August 2007 in circumstances where the respondent, while on bail for a similar charge of rape which eventually did not proceed because the prosecution entered a nolle prosequi, grabbed a woman from a public street, pushed her into a park, struck her a number of times and then raped her. The respondent claimed at the trial that the intercourse was consensual, a version which the jury rejected. In his sentencing remarks, the learned District Court judge noted that the respondent showed no remorse, had been violent in the past and was violent to the complainant. He did not use a weapon, however, nor threaten to kill her. [9] His previous criminal history included a charge of carnal knowledge by anal intercourse of a child under the age of 12 years and indecent dealing with a child under that age in 1995 when the respondent was a 14 year old. The charge of carnal knowledge did not proceed as a nolle prosequi was entered but he was sentenced to 18 months’ probation for the indecent dealing charge. Again, on 1 March 1996 he was convicted for procuring a child under 12 years to commit an indecent act. The evidence available on this application suggested, however, that he was now far less likely to be a danger to children. [10] His criminal history included numerous other offences, including several assaults occasioning bodily harm that were committed between 1995 and 2007, breaches of 3 Attorney-General for the State of Queensland v S [2015] QSC 157 at [40]. 4 [2006] QCA 324; [2007] 1 Qd R 396, 405 at [39]. 5 See also Attorney-General for the State of Queensland v Sutherland [2006] QSC 268 at [26]-[30] and Attorney- General for the State of Queensland v Lawrence [2009] QCA 136 and Attorney-General for the State of Queensland v Fardon [2011] QCA 155. -- 3 of 13 -- 4 domestic violence orders in 2000 and 2001 and a charge of deprivation of liberty also in 2000. He was convicted of possession of dangerous drugs on 18 June 2003 and there was a significant body of evidence from which one could conclude that he had a serious drinking problem. [11] He is an indigenous man born in Cherbourg and one of about eight siblings all from different fathers. His mother used to drink frequently and was the subject of physical violence from her various male friends. The most significant adults in his life during childhood and adolescence were his grandmother and mother. Violence was often a problem in the home and the respondent told Dr Sundin that he grew up watching male cousins “slap their girlfriends around” when he was a teenager and that he considered that this was “not real bad”. [12] He has three children to two different partners. One of the children is a daughter aged about 22. He also has a son aged about 21 and a daughter aged about 16. Both of his relationships were marked by violence where his previous partners have obtained domestic violence orders against him. The respondent reported to Dr Sundin that his domestic violence was usually triggered by suspicions of his partner’s infidelity and usually occurred in the context of the consumption of both alcohol and cannabis. He described Cherbourg where he grew up as a “pretty violent place” where it was “normal for a man to hit a woman” and that it was “okay to hit a woman to make her do what she was supposed to”. [13] As well as having an alcohol problem, he reported to Dr Sundin that he commenced intravenous use of amphetamines from the age of 20. He said to her that he did not develop a “bad habit” with the amphetamines but used them when they were available. He has also tried opiates including heroin and OxyContin and other narcotics such as methylamphetamine. He admitted to having drunk a few glasses of wine before the commission of the rape in 2007. [14] He is currently incarcerated at the Lotus Glen Correctional Centre with a high security classification. His behaviour in custody has generally been satisfactory, although he has been involved in a number of assaults on other offenders, most recently on 26 March 2015. He failed a drug test in late 2009 and attempted suicide on 21 July 2015. [15] He declined the offer of participation in the Getting Started program on 5 September 2014 but undertook it eventually on 28 September 2016 and completed the preparatory program on 11 November 2016. The exit report disclosed that he demonstrated increased insight into his sexual offending behaviour as a result of his participation in the program. He then participated between 17 November 2016 and 16 February 2017 in the Sexual Offending Program for Indigenous Males (“SOPIM”). That program is undertaken by high and medium risk indigenous offenders and is designed to accommodate cultural customs and language considerations as relevant to them. It uses a cognitive behavioural approach to change antisocial attitudes and behaviours and to promote a “pro-social” lifestyle aimed at helping offenders avoid reoffending. [16] On 20 April 2017, however, he was removed from the program and did not complete it. It was noted in the exit report that, as a result of his participation, he had “significant -- 4 of 13 -- 5 distrust of others” and ostracized himself from group members. He reported that a significant difference in prison culture at Lotus Glen made him uncomfortable. It was noted that his participation was interrupted by three periods of absence allegedly caused by anxiety as a result of the perception that facilitators failed to take him seriously. It was thought then that his participation in the Dangerous Prisoners (Sexual Offenders) Act process may have added to his anxiety. [17] He suggested to a facilitator that some of the staff were predators and expressed a dislike towards the facilitator’s style and, on 16 February 2017, made an inflammatory comment to the effect that “we are all rapists” which was observed to anger and upset other members of the group. He also made serious allegations regarding the intention of two fellow program participants to harm a program facilitator. An investigation was conducted into those allegations which found no substance to them. The respondent was removed from the program due to safety concerns for himself and, perhaps, other group members. By that stage he had completed only the first two modules of the program so that his sexual offending program recommendations remain outstanding. [18] He was said to have presented with behavioural issues such as hyper-vigilance and subsequent distrust which affected his engagement in the program. He is not considered as suitable to undertake that program again at Lotus Glen. That is the only place where the program is conducted. [19] Ms Naus, a corrective services officer involved with the respondent’s treatment at Lotus Glen, gave evidence about his involvement in the SOPIM. She said that the facilitators of the program had a lot of concerns about what they saw as distrust of him within the group and how that affected his treatment. She was unable to give evidence about any particular concerns in respect of treatment of the respondent by other prisoners. [20] Reports were obtained from three psychiatrists, Doctors Sundin, Beech and McVie, two of whom were cross-examined at the hearing. There was also a psychological report by Dr Jordan dated 11 March 2010 in which he noted that the respondent was then probably not willing to participate in a sexual offenders treatment program as he expected he would be categorised as a serious violent offender and would need to serve 80% of his sentence. He then saw participation in a treatment program as an admission of guilt inconsistent with his plea of not guilty to the offence. Dr Jordan was concerned about his excessive use of alcohol and cannabis and other drugs which would need to be managed to assist him to deal with problems of anger management. [21] Dr Sundin’s first report was rather positive. It was dated 4 October 2016. In it she expressed the view that she was not “entirely confident that [the respondent] is such a risk to the community that he needs to be subject to the high levels of stringent supervision that have been imposed on other sexual offenders.” [22] This report preceded his involvement with the SOPIM program, however, and she said towards the end of the report that: “clearly a lot will ride on his level of engagement with the SOPIM and the success of any New Futures Relapse Prevention Plan he develops out of that course.” -- 5 of 13 -- 6 [23] She reported subsequently on 2 May 2017 after his failure to complete the SOPIM, saying: “Having reviewed the exit report and noting the difficulties experienced by Mr Purcell in undertaking the programme, I have quite serious concerns as to both his mental health and his ability to comply with a supervision order in the community. The facilitators describe a level of anxiety and agitation which descended into frank paranoia and led Mr Purcell into making unsubstantiated allegations regarding the intentions of other participants. His behaviour suggests a previously unrecognised Post-Traumatic Stress Disorder arising presumably from the childhood abuse be suffered. His hypervigilance and hyper-reactive responses are suggestive of the condition. It is possible that the allegations made by him were deliberately designed to ensure his exit from a situation he found overwhelming. It is also possible that this behaviour indicates a more concerning psychotic or paranoid delusional process developing. I also wonder if it was this type of paranoid ideation which underlay the retaliatory violence he demonstrated in intimate partner relationships. In either circumstance, his treatment needs remain outstanding. He would benefit from individual counselling to better elucidate these issues and to provide him with strategies to deal with his anxious and paranoid cognitions. It is possible that with the benefit of individual counselling he would improve to the point of being able to complete the SOPIM. In addition he would benefit from regular review by a psychiatrist from Prison Mental Health Services. This would ensure that serial mental states could be undertaken to assess any evolving major psychiatric disorder and that appropriate medication could be prescribed. In reflecting on my earlier report, in the light of this new material; I believe that I have underestimated the risk that this man poses to the community. I consider that the greatest risk would be for intimate partner physical and sexual violence, with the risk aggravated by any intoxication. I am now of the opinion that this man poses an unacceptable unmodified risk to the community. It will be a matter for the Court to decide if the level of risk he poses is such that he should be detained while the issues of his paranoid ideation, mental health and individual counselling are clarified.” [24] She adhered to those views in her oral evidence, describing his disturbed behaviour noted in the SOPIM as a function of his personality disturbance, rather than of any psychotic process or post-traumatic stress disorder. She added that the fact that he was finding it difficult to cope with the SOPIM suggested that he may “find what will be very intensive levels of supervision in the community quite difficult”.6 [25] She also discussed some video evidence of an interaction between the respondent and his female Legal Aid solicitor that occurred on 28 August 2017 and resulted in the solicitor lodging a complaint with the prison. Dr Sundin was concerned about the visual material. 6 T1-55/34-35. -- 6 of 13 -- 7 It depicted an interaction between the respondent and the solicitor outside an interview room in a corridor. On one view the respondent may have brushed against the solicitor but it was difficult to say on my viewing of it whether there had been any physical contact. Both Dr Sundin and Dr Beech expressed the view, however, that the material was of concern to them. Dr Sundin could not tell whether the solicitor had been touched or not but said that she thought she “visibly flinched”. She also said that it spoke to her of a sexually entitled attitude demonstrated by the respondent against his own best interests. She said that it was a very odd thing for him to act inappropriately towards his legal advisor at a time leading up to court. [26] She believed that there was too much that was not known about the respondent and a lot that he needed to learn about himself. She said that, if he completed a sexual offenders treatment program, he would be helped to develop a robust relapse prevention plan and to understand his pathways to offending, his high risk factors, what aggravates those risk factors and what are alternative steps and modifications that can reduce the risk factors so that his overall risk for sexual recidivism is lowered. [27] She did not believe that he could do a program in the community to assist him to develop that self-knowledge as participation in such a program in an uncontained environment would potentially increase his risk for recidivism rather than decrease it. In the lead-up to a High Intensity Sexual Offenders Program (“HISOP”) the respondent would, in her view, be greatly advantaged by some individual counselling to help address the issues that had come up in the SOPIM. [28] Under cross-examination she listed a number of clauses in a potential list of conditions to be imposed in a release order that would moderate the respondent’s risk but was not sure that it would take it to the level of acceptability. Her research about the effectiveness of intense supervision on recidivism in sex offenders revealed Canadian studies showing the rate for recidivism for serious sexual offences was 8% in a group kept under supervision where it was 46% in those who had been released automatically. A lower but still significant improvement was observed in a New Zealand study also. There the treated group had an 8% recidivism rate where the unsupervised and untreated group had a 21% recidivism rate. The figures in respect of people who had been treated were that the rate of recidivism appeared to be reduced by approximately 4% which she said was statistically significant and a good effect for treatment alone. [29] Focussing on the respondent, however, she said that rates of recidivism increased for people who had committed rapes and previous sexual offences. There were several other relevant criteria, such as relationship instability and demonstrated hostility, which the respondent had exhibited. She pointed out that, therefore, within an overall group of sexual offenders he was one who was particularly at risk of recidivism. [30] She made a clear point of distinguishing between actuarial measures of behaviour and her professional and dynamic judgment about a particular individual. She said an individual like the respondent had very high criminogenic treatment needs and was among a group of offenders identified as being most likely to benefit from treatment. The Canadian research led her to conclude that the best outcomes for a moderate to high risk offender were found among those who had treatment and were then released to intensive levels of supervision. -- 7 of 13 -- 8 [31] She believed that the respondent had demonstrated over a considerable period of time a very entrenched attitude of sexual entitlement and entrenched beliefs in his right to physical aggression to impose his will upon others, particularly in intimate partner relationships when he has accused partners of infidelity. In those circumstances he has, at times, become extremely violent. [32] Even though he had no convictions for sexual violence against his intimate partners, she believed that was the highest risk for recidivism in his case, partly because of the evidence of physical violence against intimate partners before. She believed that a supervision order could reduce the risk of recidivism to a moderate risk in respect of rape particularly because his feelings of sexual entitlement evidenced a condition which was more treatable than, for example, sexual sadism. [33] Dr Beech’s evidence was similar to that of Dr Sundin. He too diagnosed the respondent as having an anti-social personality disorder influenced by substance misuse and developmental factors. The conclusions from his report of 1 August 2017 were as follows: “In my opinion, the risk of further sexual violence is moderately high. He has had only one conviction for rape, but there are two worrying earlier offences in his youth. On the one hand, he is now in his late 30s; on the other hand, this is still relatively young in sex offender terms. On the one hand, there is some evidence of maturation; on the other hand, there is a long history of repeated violence, particularly violence towards women, and he has still had some issues in prison. On the one hand, he can articulate some understanding of underlying dynamic factors; on the other hand, he has been unable to complete a sex offender program, and he has not developed a robust relapse prevention program. I think the risk of sexual violence would be highest towards an intimate partner. It would occur in the context of a generally violent relationship, There is though I believe a moderate risk of sexual violence outside a relationship when, in an intoxicated and entitled state, he would assault someone as he did in 2007. There is a lesser risk, but not insignificant one, that he might assault a minor. Unfortunately, this has not been explored adequately, either in the interview with me or during a sex offender program. In the absence of a completed sex offender program, and a relapse prevention program, it is difficult to point to specific ways in which the risk of sexual violence might be reduced in the community. In my opinion, the risk could be reduced by Mr Purcell completing a sexual offender program. Under most circumstances, this would be a sexual offender program for indigenous males. For Mr Purcell, I would recommend further assessment by QCS program officers around treatment needs to see whether a SOPIM could be undertaken in Southern Queensland, or whether he would be suitable for a medium intensity program, augmented with individual counselling, or whether a high intensity program would be more suitable. The risk, in my opinion, would be substantially reduced by his participation in a drug and alcohol program. In the community, it would be reduced by monitored enforced abstinence from alcohol and substances. -- 8 of 13 -- 9 It would be important that he had stable accommodation, and stable employment if possible. He would need to avoid associating with people who might reinforce pro- criminal attitudes, an attitude of entitlement particularly sexual entitlement, and hostility towards women. . He would benefit from culturally appropriate interventions around this. If you [sic] were to be released into the community, I recommend ongoing . counselling supported by group participation with indigenous members.” [34] He was also concerned about the video footage which he characterised as a brief but inappropriate grope of a woman the respondent seemed to have cornered against a wall. In his oral evidence he was not so confident that there had been contact between the respondent and the female solicitor, but he believed the incident on 28 August 2017 was an egregious display of the respondent’s attitude towards women and his sexual entitlement. It indicated to him a higher risk that he would be sexually violent in the community and said that it would be difficult to envisage how the community could be protected from further indecent acts by him even under stringent supervision. He accepted that a medium intensity sexual offenders program was inadequate to meet his needs and said that he would be better placed in a HISOP which was not available, however, until July 2018. That program could take more than nine months to complete. [35] He believed the episode with the solicitor was a manifestation of his feelings of sexual entitlement which he had not addressed in any meaningful way. It could be addressed in one of the programs available such as SOPIM or HISOP. He had declined to participate in those programs until near the end of his sentence but exited the SOPIM early. He said that participation in and completion of the program would help him to develop a robust relapse prevention plan. His partial completion of the SOPIM had not proceeded to the extent of equipping him with such a relapse prevention plan. He said that there was “robust literature” that shows that if someone did not complete such a program he might be at a higher risk of reoffending than someone who did not do a program or someone who had completed it. He too believed the respondent would be assisted by individual therapy before a high intensity program to help him address issues that might come up in such a program. That could be done in the period before the next HISOP commenced. [36] He said that, in the context of the respondent being untreated and having such high treatment needs, if he were to be released to supervision there would need to be monitoring and a curfew, a need for abstinence from alcohol and drugs and a need for him to engage in some program. [37] The problem was that he could not identify a suitable program in the community that the respondent could undertake and there would be a risk in any program that he might undertake of him deteriorating and being in fact at a higher risk of reoffending in the community. He also drew attention to his concern that the respondent lacked the ability at the moment to undertake supervision because of his record of breaches of community release and community supervision. He referred again to the video footage of the visit by the lawyer on 28 August 2017 as an indication of what might occur in the community which would be hard to prevent by a supervision order. -- 9 of 13 -- 10 [38] His concern about the failure of the respondent to complete the SOPIM was not so much related to the reasons why he failed to complete it as to the simple fact that he ceased participating in it. People who did not complete the program were at higher risk. The research material about which he was cross-examined appears in ex 3, a report by Ms Lievore dated May 2004 on recidivism of sexual assault offenders. The figures analysed, for example, at p 91 of ex 3 did not distinguish those who dropped out from treatment according to the reasons for their drop-outs but did indicate that they had the highest rate of re-arrest while those who completed treatment had the lowest rate. The differences were said not to be statistically significant. Dr Beech described the paper as now quite dated. He also said that the main issue was that the respondent had not had treatment and had not done anything that reduced his risk. He expressed the view that the programs in use in Queensland at the moment which he described as programs of the Marshall type, were robust and effective in helping to reduce recidivism amongst offenders. [39] Dr Beech was also concerned about reports in the prison material indicating that a number of female staff members had found the respondent intimidating. In re-examination he maintained the views he expressed in his report which I have extracted earlier and said that many of the issues raised by him would be addressed by the HISOP. [40] Dr McVie did not give oral evidence as she became indisposed during the hearing. Neither of the parties required her to return to be examined. Her first written report also expressed the view that the respondent presented a high risk of future sexual violence and presented with high treatment needs. She too agreed that the most likely scenario for future offending would be that, in the context of alcohol and other substance abuse, he would act on his perceived entitlement to sex if no consenting partner was available. The most likely victim would be an adult female. She believed, however, that his risk could be lowered by a community supervision order where he would need to undergo intensive individual counselling as well as requiring long term programs to address his substance abuse disorders. She suggested that he could be referred to a psychiatrist to monitor the possible emergence of paranoid disorders or stress related disorders. She believed, however, that his risk could be managed by the usual monitoring, curfew and reporting requirements of a community supervision order. [41] That report was given after he failed to complete the SOPIM but she later produced a further report dated 15 September 2017. It dealt with the possibility of him completing a further program and the event on 28 August 2017 where the female solicitor had complained. [42] She believed his behaviour could be explained mainly by his anti-social, narcissistic personality structure, said that he presented a high risk of future sexual offending and had high treatment needs and that his behaviour in custody indicated he would have difficulty complying with the requirements of supervision. She said that he would require intensive therapy with a psychologist to address his treatment needs, including his substance abuse disorders. An alternative would be for him to remain in custody to complete a SOPIM or HISOP before release. She noted his apparent unsuitability to re-join the SOPIM and that the HISOP was not available until July 2018 and suggested a compromise that he participate in MISOP. Mr Mac Giolla Ri, for the respondent, did not seek to argue, however, that it was appropriate that he participate in a MISOP. -- 10 of 13 -- 11 [43] From that additional report I infer that Dr McVie was at least equivocal about the virtue of releasing the respondent from custody in the absence of some further treatment. Submissions and discussion [44] Mr Mac Giolla Ri submitted that it would be appropriate to release the respondent on a supervision order. He conceded that the respondent’s failure to complete the SOPIM did not assist him but argued that one should not conclude from the fact that he was removed from the course that his failure to complete was a result either of self-sabotage on his part or a developing psychotic or paranoid delusional process as Dr Sundin suggested. He submitted that, where the psychiatrists were in general agreement now that he did not have a psychosis or paranoid delusion but rather suffered from a personality disorder, that I should conclude that the respondent’s reasons for wishing to leave the course related to cultural issues between him and other prisoners and alleged threats to his wellbeing. There is no direct evidence of that before me, however, and what evidence is available does not support that thesis strongly. I am really not in a position to reach a properly informed view about the reasons that may have led to the end of his participation in the SOPIM. [45] Another submission for the respondent was that the primary risk identified by the psychiatrists as an offence of sexual violence against an intimate partner was an offence of which he had not previously been convicted. Mr Mac Giolla Ri admitted that the rationale advanced by the doctors that the respondent had demonstrated a sense of sexual entitlement previously and had also engaged in significant domestic violence previously had a certain logic. It fell away, he argued, in the absence of cogent evidence of a prior offence of this kind. He submitted I could not be satisfied to the required standard that there was an unacceptable risk of the respondent doing something he had not previously been proved to have done. He framed part of the order he submitted was appropriate as a supervision order to address the risk associated with rape of a woman with whom he formed an intimate relationship by requiring him to advise a corrective services officer of the names of any such woman together with other women he met habitually for social purposes. [46] By the same token, it is still relevant that the doctors identified a significant risk that he might rape an adult female who is not an intimate partner. There is also a high degree of logic in associating his domestic violence, where he is also said to demonstrate a sense of sexual entitlement, to the risk of rape of an intimate partner. I am not persuaded that the absence of evidence of a crime of this particular nature in the past means that the risk highlighted by the doctors is an acceptable risk. In the current circumstances it poses an unacceptable risk. [47] Mr Mac Giolla Ri also submitted that the risk associated with his failure to complete the SOPIM was irrelevant when placed beside the risk reduction factors associated with a supervision order. His argument that the actuarial evidence did not assist greatly in determining what the effect of failure to complete a course such a SOPIM was had difficulties, in my view, when one takes into account the fact that psychiatrists use such actuarial evidence as but one tool in forming a professional judgment about the likely risks posed by the respondent’s condition. There was strong evidence, however, that non- completion of such a course was significant and could create a higher risk for somebody -- 11 of 13 -- 12 in that position than either the risk associated with someone who had not started such a course or who had completed one. The respondent’s status as a high risk offender was also significant in considering the probable effect of completion of such a course in reducing his likelihood of re-offending. On the psychiatric evidence he was more likely to remain a high risk in the absence of a concluded treatment program. [48] Mr Rolls submitted that the respondent should be viewed as an untreated sex offender with limited insight into his behaviour so that he was not likely to regulate himself in a way which would lower or eliminate the risk. He argued that the respondent needed to address this deficiency before he could be released even on a supervision order. He submitted that the respondent should be detained in custody to allow him to participate in a further sexual offending program and also to undertake courses to provide him with further insight into his drug and alcohol abuse. [49] He pointed out that the evidence suggested that the respondent was not having difficulties with the contents of the SOPIM before he left it such that he should be able to participate in the HISOP when it became available. He should also be more amenable to a treatment regime than if he suffered, for example, from a sexual paraphilia. Further the program would inform the supervisors of the risks, triggers, conduct and other matters presently unknown about the respondent because of his incomplete participation in the SOPIM. That would assist in better supervision of him later on. If he did not complete such a course it would make it more difficult to assess what the effect of a supervision order would be even if the likelihood was that the risk would be reduced. [50] He submitted that a moderate risk of rape should not be considered acceptable, referring to a statement of Keane JA (as his Honour then was) in Attorney-General for the State of Queensland v Beattie7 where his Honour said 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”. Mr Rolls argued, therefore, that, even though Dr Sundin had described the risk of the respondent raping someone as moderate if he was under a supervision order, that did not mean that the risk fell short of “unacceptable” when one looks at the circumstances of the offence for which the respondent was imprisoned, raping a woman who was walking innocently along a public street. [51] Mr Rolls referred to the event involving the respondent’s solicitor. In the absence of the complaint by her, the video evidence, to my mind, does not suggest that the event was particularly alarming but it is difficult to assess that simply on the images. The fact that there was a complaint does suggest that there was more to the event than the video reveals. There was no sound recording. Mr Rolls also referred to a number of incidents while the respondent was in custody where he became argumentative and may have behaved in an intimidating fashion. He argued that they might evidence his anti-social personality disorder and unwillingness to abide by directions. [52] He submitted that it was difficult to structure a supervision order in a case such as this where there were so many unknowns about the reasons for the respondent’s behaviour that it would be difficult to put effective strategies into place to manage the risk. He also argued that, in circumstances where the respondent remained untreated because of his 7 [2007] QCA 96 at [19]. -- 12 of 13 -- 13 failure to complete the SOPIM, he had not taken the opportunity to decrease the risk by having his treatment needs met. Conclusions [53] When weighing up the competing issues relating to whether I should order that the respondent be detained for an indefinite term for control, care or treatment or release him under supervision, I find it very difficult to reach a positive conclusion that the proposed supervision order will provide the adequate protection necessary.8 It is clear to me that the respondent presents a significant risk that he will commit a serious sexual offence if released effectively untreated. [54] His history testifies to that. His late engagement while he has been in custody with the courses available to treat him for the personality disorder from which he suffers and his failure to complete the SOPIM course leave me in a position where I am not confident that a supervision order will address his needs in a manner appropriate to ensure the adequate protection of the community. There are clearly actuarial risks associated with those who commence but do not complete such courses on the evidence. More importantly, it seems to me, his failure to complete the course means that those treating and supervising him are not adequately informed of what should be done to assist him to adjust to the community where he continues to suffer from a significant personality disorder. [55] The argument that the likely risk identified that he will rape an intimate female partner is not reflective of the behaviour previously proved against him in the past is not persuasive. His combination of a conviction for rape and other indecent dealing in the past together with the offences of violence in his record support the conclusion that he does pose a significant risk of committing another serious sexual offence. Whether the potential victim is in an intimate relationship or a stranger as occurred in 2007 is not particularly relevant to the question of risk. [56] The psychiatric evidence also is clear that there are concerns as to his current mental health and his ability to comply with a supervision order in the community. The individual counselling suggested for him before he can undertake the HISOP next year may assist in reducing his risks but, at present, they seem to me to be very significant. Dr Beech’s view that it would be difficult to envisage how the community could be protected from further indecent acts by him even under stringent supervision, having regard to his continuing behaviour evidenced by the incident on 28 August 2017, is another illustration of the issues that concern me in considering whether a supervision order can be framed adequately. Order [57] Accordingly, I shall order that the respondent be detained in custody for an indefinite term for control, care or treatment. 8 See Attorney-General for the State of Queensland v Watkins [2017] QSC 5 at [60]. -- 13 of 13 --