Attorney-General v Fordham [2017] QSC 158

SUPREME COURT OF QUEENSLAND CITATION: Attorney-General for the State of Queensland v Fordham [2017] QSC 158 PARTIES: ATTORNEY-GENERAL FOR THE STATE OF QUEENSLAND (applicant) v REGINALD THOMAS FORDHAM (respondent) FILE NO: 2452 of 2017 DIVISION: Trial Division PROCEEDING: Application ORIGINATING COURT: Supreme Court of Queensland at Brisbane DELIVERED ON: 27 July 2017 DELIVERED AT: Brisbane HEARING DATE: 17 July 2017 JUDGE: Daubney J ORDER: There will be a supervision order pursuant to s 13(5)(b) of the Act, in the terms set out in Annexure A to this judgment. 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 a Division 3 order under the Dangerous Prisoner (Sexual Offenders) Act 2003 (Qld) – where the court may order a continuing detention order or a supervision order pursuant to s 13(5) – whether a supervision order would ensure the adequate protection of the community pursuant to s 13(6) of the Dangerous Prisoner (Sexual Offenders) Act 2003 (Qld) Dangerous Prisoners (Sexual Offenders) Act 2003 (Qld), s 13 Attorney-General (Qld) v Francis [2007] 1 Qd R 396; [2006] QCA 324, relied on Attorney-General (Qld) v Sutherland [2006] QSC 268 Attorney-General (Qld) v Waghorn [2006] QSC 171 COUNSEL: J Tate for the applicant -- 1 of 21 -- 2 D A Holliday for the respondent SOLICITORS: Crown Solicitor for the applicant Legal Aid Queensland for the respondent [1] This is an application by the Attorney-General for a Division 3 order to be made pursuant to s 13 of the Dangerous Prisoners (Sexual Offenders) Act 2003 (Qld) (“the Act”) in relation to the respondent, Reginald Thomas Fordham. [2] Counsel for the applicant contended that the evidence in this case supports the finding that the respondent is a serious danger to the community in the absence of a Part 2 Division 3 order, and that it is appropriate for a supervision order under s 13(5)(b) to be made, with such order to be for a term of 10 years. [3] Ultimately, in the hearing before me, this outcome was not opposed by the respondent. [4] The following summary of the respondent’s background, his criminal history, and the circumstances of the index sexual offences was not in issue before me. Nor was there any contest in relation to the expert opinion evidence which was adduced by the applicant. Background [5] The respondent is 57 years old. [6] On 2 August 2010, he was convicted and sentenced in the District Court at Hervey Bay in relation to a series of sexual offences charged across two separate indictments. There were two distinct periods of offending, and two independent victims. The charges were: (a) 1 count of maintaining an unlawful relationship with a child; (b) 1 count of indecent treatment of a child under 16 (expose); (c) 1 count of indecent treatment of a child under 16 (procure to commit); and (d) 3 counts of indecent act in any place. [7] The respondent is currently serving a head sentence of 78 months’ imprisonment for the offence of maintaining an unlawful relationship with a child. He was eligible for parole -- 2 of 21 -- 3 on 29 January 2014 but has not made an application. The respondent’s release date is 29 July 2017. Criminal history [8] Apart from the offences for which the respondent was dealt with in 2010, he has a criminal history in New South Wales stretching back to 1975. He was dealt with on numerous occasions between 1975 and 1993 for offences such as wilful exposure and acting in an indecent manner. The index offences [9] Following a jury trial in the District Court at Hervey Bay the respondent was found guilty of the offence of maintaining an unlawful relationship with a child, and two counts of indecent treatment of a child under the age of 16 years. [10] On 2 August 2010 the respondent was sentenced to a term of 78 months’ imprisonment for the maintaining an unlawful relationship offence. In relation to the indecent treatment offences, on each charge, the respondent was sentenced to terms of 30 months’ imprisonment. All terms of imprisonment were ordered to be served concurrently. [11] The male victim was 14 to 15 years of age at the time of the offending. The victim initially met the respondent through a mutual friend. The respondent and the victim had an arrangement whereby the victim would visit the respondent at his home every second Wednesday (on pay-day). The offending spanned a period of some 16 and a half months, between 1 April 2007 and 12 August 2008. During this time, the victim would partake in sexual acts with the respondent who would pay him $50 to $250 at the completion of those acts. [12] The victim particularised the acts which constituted the maintaining offence to be:  Taking his shirt off in front of the respondent while he masturbated. This occurred at least six times. -- 3 of 21 -- 4  Taking all of his clothes off, except for his shorts, while the respondent masturbated in front of him with a Vaseline-filled toilet roll. This occurred at least twice.  Taking all of his clothes off in front of the respondent while a pornographic movie was being played. The respondent would masturbate while watching the victim. He also told the victim to masturbate. This occurred at least five times.  Being told to urinate on the respondent who sat in the shower recess. This occurred at least five times.  Being told to rub Vaseline all over the respondent, who was lying naked on his bed masturbating. This occurred at least five times. [13] The victim stated that the sexual offending continued past his sixteenth birthday. [14] From this general description of the offending, the victim particularised three specific offences as occurring before he turned 16 years of age. [15] Two of these offences arose from the same incident which occurred about two weeks after he first met the respondent. He stated that he went to the respondent’s house after having an argument with his parents. He took around a six pack of beer which he drank with the respondent in his garage. During the night, the respondent asked the victim to perform sexual acts on him. The victim refused. He stated that while the respondent was talking about these sexual acts he was masturbating through his pants. They continued to drink and the respondent offered the victim $50 to at least hit him with a cane. The victim agreed and was taken into the spare room where the respondent gave him a long piece of cane. The respondent removed all of his clothing and lay naked face down on the bed. He instructed the victim to hit him with the cane until he told him to stop. The victim stated that he hit the respondent approximately 20 – 30 times on the buttocks. Afterwards, the respondent gave the victim $50 and a six pack of beer. The victim then left. [16] In addition to these, the respondent pleaded guilty to a further indictment charging him with three counts of indecent act in any place with intent to insult or offend any person. On each charge he was sentenced to terms of six months’ imprisonment, to be served concurrently, but cumulatively upon the other indictment. -- 4 of 21 -- 5 [17] The indecent act offending occurred in October/November 2008. The female victim was 22 years of age at the time. She would regularly walk past the respondent’s home during the day on her way to the nearby shops while in the company of her mother who is wheelchair bound, her boyfriend and 11 year old twin sisters. On three occasions, the victim saw the respondent either reach into his shorts, pull his penis out and start masturbating, or would already be masturbating as they approached. The victim made a complaint to the police after the last incident on 13 November 2008. The respondent denied the allegations when questioned by police. [18] When sentencing the respondent on 2 August 2010, Her Honour Judge Clare SC remarked: “[The victim] was a troubled boy. … You picked him as a child you could buy. You tested him on that first visit to your house. … You quickly entered a regular arrangement for [the victim] to perform for you on pension day. You procured him to prostitute himself. … There was no act of penetration of his body. Nonetheless, these must have been deeply disturbing experiences for an adolescent boy. You were almost 50, and an alcoholic. He was only 14 at the start. Over a 14 month period, he was degraded and shamed by the way that you treated him. You had bought him for money and alcohol. He drank when he was with you, and he used the money you gave him to get drunk. He was clearly captivated by the money. … My impression of him, however, was that he struggled within himself over what you had turned him into. [The victim] came to you voluntarily. You never forced him to do anything to you, but the payments you made were irresistible to him. He was your rent boy. I do not think it was any coincidence that his participation in these offences was lubricated by alcohol – whether alcohol that you gave him or alcohol he obtained elsewhere. It seems to me that he took that alcohol to help him get through whatever you had in store for him. You also encouraged him to drink. You gave him the means to drink a lot, and regularly. [The victim] now describes himself as an alcoholic with early signs of cirrhosis. During the period of offending, he flashed the money around, but when he confided to his friends, it seems he was hesitant and ashamed. He indicated to this court that he was embarrassed about how he had done these things for relatively small amounts of money. His resentment came to a head on the night he set fire to your house. By that time he was 16, and the relationship between you was legal. The level of anger that caused him to set fire to your house may have been ignited by the crude comments you made about his brother, but I have no doubt that what you said that night was simply a flame to the resentment he already held towards you, and his own self- loathing for what was a protracted perverted relationship when he was a child. -- 5 of 21 -- 6 He was emotionally too young to deal with those things. Too young to be coerced in that way. That is why the law protects children under 16, regardless of their own consent. What you did made him angry and withdrawn from his family. It was a destructive period in the life of [the victim’s] family during that time. [The victim] has said that he battles with depression and nightmares, and he continues to get counselling. You had preyed upon him. You corrupted him from the age of 14, and you knew his age from the beginning. I have seen no demonstration of remorse whatsoever in relation to the offences committed against [the victim].” Report of Dr Scott Harden, Consultant Psychiatrist, dated 30 October 2016 [19] Dr Harden undertook an interview with the respondent on 9 June 2016 at Maryborough Correctional Centre. His report dated 30 October 2016 is based on the interview, as well as the criminal history, extracts from the files of the Office of the Director of Public Prosecutions and Queensland Corrective Services, and transcripts of relevant proceedings. [20] Dr Harden noted that a formal psychometric test contained within the brief material, placed the respondent in the ‘Borderline’ range for intellectual functioning. This correlated with his own observations that the respondent was “somewhat below average intelligence on general interview”. Dr Harden’s opinion is that the respondent has limited insight into his overall pattern of offending but had insight into the need for risk management in the community. He noted that the respondent expressed guilt and empathy to the victim and recognised he needed ongoing psychotherapy and supports such as Alcoholics Anonymous. [21] Dr Harden assessed the respondent on a number of risk assessment tools shown to have validity in the prediction of risk of sexual recidivism, with the following results:  Static-99R: scored a 9 indicating a high risk of sexual recidivism;  Stable 2007: scored 10/26 placing him in the moderate intervention needs group;  Sex Offender Risk Appraisal Guide: scored 15 placing him in Category 6. Offenders in this category have a 58 per cent rate of violent or sexually violent recidivism at 7 years and a 76 per cent rate at 10 years;  Hare Psychopathy Checklist: overall score of 12/40 which is not elevated; -- 6 of 21 -- 7  SVR-20: risk for future sexual violence is in the moderate category. [22] Dr Harden diagnosed the following:  Exhibitionism;  Paedophilia (provisional diagnosis) – non-exclusive, attracted to boys. Dr Harden stated that he made this diagnosis even though the respondent denies being attracted to pre- pubertal boys as there is material suspicious of this and he nominates as part of his risk management that he needs to stay away from boys; and  Alcohol abuse (possible dependence) – in remission due to incarceration. [23] He also noted that the respondent has distinct antisocial, avoidant and dependent personality traits, but at the time did not make a formal diagnosis of antisocial personality disorder. [24] Dr Harden’s prognosis was that: “His short, medium and long-term prognosis from the point of view of interpersonal function and risk of reoffending is moderately poor given his long- standing pattern of alcohol misuse and the association of this with his offending, his lack of prosocial engagement and relative paucity of social supports in the community.” [25] In relation to risk, Dr Harden said: “His ongoing unmodified risk of sexual re-offence in the community after considering all the available data is in my opinion overall in the HIGH range compared to the recidivism rate of sexual offenders generally. His greatest risk factors are his paedophilic interest in boys/teenagers, his alcohol abuse, and his lack of supportive emotional relationships and prosocial structures in the community. If he were to be placed on a supervision order in the community, in my opinion the risk of sexual recidivism would be reduced to low to moderate. In my opinion he is likely to be compliant with the strictures of a supervision order.” Report of Dr Josephine Sundin, Consultant Psychiatrist, dated 30 June 2017 [26] Dr Sundin was appointed to undertake a risk assessment in relation to the respondent. Her report is dated 30 June 2017. -- 7 of 21 -- 8 [27] Dr Sundin’s report contains the following diagnostic formulation and summary: “Mr Fordham is a 57-year-old man with a long criminal history dating back to childhood. He has convictions for indecent exposure and arson. He has a history of longstanding alcoholism and has suffered multiple seizures as a consequence of that alcohol abuse. He has engaged in fights over the years but does not describe ever being diagnosed with a major head injury. He appears to have been of low IQ by his description from his school performance and certainly the interview impression was that he was of low to borderline intellectual functioning. I did not discern evidence of an acquired brain injury. The larger part of his offending (both the sexual offending and the arson) has occurred in the setting of alcohol misuse. He has never achieved any prolonged abstinence whilst in the community and has never engaged actively in any treatment. His alcohol abuse has damaged his employment opportunities, his relationships within his family and relationships with his former partner and children. He gives the impression of being a man who has been emotionally aloof and detached for most of his life. Prior to TD his only attachment appears to have been to one of his sisters. Later in life, as an adult, he formed a closer attachment to an older male who appears to have been something of a parental figure. This appears to have been Mr Fordham’s only strong non-familial attachment in his life. However, the attachment to this person was insufficient to prevent Mr Fordham from reverting back into his paraphilic behaviour. He was able to sustain an inappropriate sexual relationship with an adolescent male over a two-year period despite the presence of TD in the house. Significantly, he describes ongoing sexual arousal in prison both to attractive younger looking male prisoners and to images of adolescent males that he sees on the television. He continues to masturbate regularly to sexual fantasies around exposure and of his engagement with his index victim. On the positive side, he has engaged positively with various programmes in the prison, and has completed the Inclusion Sexual Offending Programme, an alcohol treatment programme and the Transitions Programme. His institutional record has been adequate. He has an achievable if unsophisticated relapse prevention plan for life after prison. There is a strong association between abuse of intoxicants, particularly alcohol and offending in this man. He gives a history of a very rapid relapse into binge alcohol abuse after release from each period of incarceration. His exhibitionistic behaviour and his engagement with the index victim were all associated with alcohol abuse. Future victims are likely to be adolescent males and alcohol is likely to be part of the offending behaviour. I consider that ensuring Mr Fordham's sobriety is a vital part of decreasing his risk to the community into the future.” [28] Dr Sundin diagnosed the respondent as suffering from:  Exhibitionistic Disorder;  Other Specified Paraphilic Disorder (Hebephilia i.e. attracted to post-pubertal males). Dr Sundin indicates she did not make a diagnosis of Paedophilic Disorder -- 8 of 21 -- 9 due to the respondent’s attraction to boys aged between 13 – 15, rather than children; and  Alcohol Use Disorder (in sustained remission in controlled environment). [29] As part of Dr Sundin’s overall examination of the respondent various assessment instruments were reviewed, with the aim of assessing the respondent’s future risk of re-offending. Dr Sundin noted: “In preparation for participation in the Sexual Offenders Treatment Programme, Mr Fordham was assessed in December 2013 on the Static-99R and Stable-2007. He received a score of 9 on the Static-99R and 18 on the Stable-2007. Both are high scores. The Static-99R score indicated that Mr Fordham was amongst a group of offenders considered to be at high risk for future sexual offending whilst the Stable-2007 which identifies criminogenic treatment needs indicated he was a man in need of high needs intervention with treatment targets identified as: • Social influences • Relationships stability • General social ejection/loneliness • Lack of concern for others • Impulsivity • Poor problem solving • Negative emotionality • Sexual preoccupation • Sex as coping • Deviant sexual preference • Co-operation with supervision” [30] Dr Sundin also administered a number of formal assessment instruments as part of her examination of the respondent, with these results:  Static-99R: scored a 9 indicating a high risk of sexual recidivism;  Stable 2007: the respondent has moderate to high needs in relation to his ongoing dynamic risk for sexual re-offending;  Sex Offender Risk Appraisal Guide: scored 16 placing him in Category 6. Offenders in this category have a moderate to high risk of sexual offending over a 7 – 10 year period;  Hare Psychopathy Checklist: overall score of 13/40 which is not elevated; and  SVR-20: risk for future sexual violence is in the moderate category. [31] Dr Sundin also made the following observations about the respondent’s participation in the QCS sexual and other rehabilitation programs: -- 9 of 21 -- 10 “As a result of his participation in the ISOP: ‘I learn a little more about myself. More of an understanding about my feelings and how to manage them. I’ve got to learn how to express my feelings more and express them rather than act incorrectly’. He has learned that his high risk situations include drinking and being around children aged between 13 and 17. He says that boys and girls around this age who have a certain look or who sit and walk in a particular way will still cause him to experience sexual arousal. He says that he has learned that he now needs to stop and back off from having contact with children in this age group. He is continuing to have sexual fantasies on average once per month triggered by attractive young male prisoners he has encountered and teenagers that he has seen. For this reason, he avoids watching television stating that he does not watch TV ‘because I need to’, referencing the sexual arousal he has to certain visual images.” [32] Dr Sundin’s risk assessment was summarised as follows: “In my opinion, Mr Fordham represents an unsatisfactory risk to the community, particularly to vulnerable adolescent males. I consider that the evidence indicates that he is at high risk for future sexual recidivism without the benefit of some form of modifying supervision order. If he were placed on a supervision order in the community, his risk of sexual recidivism would be reduced from high down to moderate or moderate to low.”1 [33] Dr Sundin expressed the clinical opinion that a supervision order would significantly reduce the respondent’s unmodified risk of sexual re-offending, and further opined that a continuing detention order is not indicated. Report of Dr Andrew Aboud, Consultant Psychiatrist, dated 7 July 2017 [34] Dr Aboud’s report dated 7 July 2017 followed the doctor’s interview of the respondent on 28 April 2017. [35] In the course of summarising the relevant background, Dr Aboud referred to the various sexual offender treatment programs which the respondent had completed while in custody, namely the “Getting Started” Preparatory Program (12 out of 12 sessions attended in May and June 2012), the “High Intensity Sexual Offending Program” (November 2013 – January 2014; early exit to enable entry into the next program), and the “Inclusion Sexual Offending Program” (40 sessions, February – June 2014). In relation to this last program, the respondent was considered motivated and open, as he had been in his previous courses. His history of chronic alcohol abuse was considered to have had an impact on his communication skills. 1 Dr Sundin’s Report dated 30 June 2017, 14. -- 10 of 21 -- 11 [36] After reviewing the material, Dr Aboud formulated the following diagnosis: “In my opinion, his psychiatric diagnoses would include a Borderline Mental Retardation. Mixed Personality Disorder (with Antisocial and Avoidant traits) and also Alcohol Dependence and Cannabis Abuse, both currently in remission in forced abstinence. He also, in my view, very likely meets criteria for diagnoses of more than one Paraphilia, including Paedophilia (non-exclusive type, sexually attracted to both males and females), Exhibitionism and Sexual Masochism. It is possible that he might also suffer from Pyromania.” [37] Dr Aboud applied six instruments to make an assessment of the risk of re-offence, and concluded that the respondent’s overall unmodified risk of sexual offending was high. Dr Aboud expressed the following opinion: “It is my opinion that, if released to the community, he would require careful support, supervision and monitoring. In the context of a formal requirement for such community supervision, by way of an order by the court, I would consider his risk of sexual reoffending to be reduced to between moderate and low.” Division 3 order [38] Section 13 of the Act provides: “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; -- 11 of 21 -- 12 (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 (ii) requirements under section 16 can be reasonably and practicably managed by corrective service 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).” [39] By s 13(1) of the Act, a Division 3 order may only be made if the Court is satisfied that the respondent is a serious danger to the community. The onus of proof in this regard rests on the applicant. -- 12 of 21 -- 13 [40] It was effectively conceded on behalf of the respondent that the evidence established that he does present a “serious danger to the community” in the absence of a Division 3 order. For completeness, I should record that I consider that the applicant had in any event established this by acceptable cogent evidence and to a high degree of probability. The collective effect of the evidence of the psychiatrists, together with reference to the respondent’s antecedents and criminal history and the unanimous expert opinion as to the risk that the respondent would present of committing another sexual offence if released into the community without a supervision order, combine to satisfy me to the requisite standard that the evidence is of sufficient weight to justify satisfaction that the respondent is a serious danger to the community in the absence of a Division 3 order. [41] Being so satisfied, then, the question is whether, under s 13(5) there should be a continuing detention order or a supervision order. Section 13(6) prescribes the relevant considerations, including the paramount consideration of the need to ensure adequate protection of the community. [42] It is appropriate to recall the oft-cited observations by the Court of Appeal in Attorney- General v Francis2: “The Act does not contemplate that arrangements to prevent such a risk must be ‘watertight’; otherwise orders under s 13(5)(b) would never be made. 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.” [43] In Attorney-General for the State of Queensland v Waghorn3 McMurdo J observed: “[24] In deciding whether to make a continuing detention order or a supervision order, the paramount consideration is the need to ensure adequate protection of the community: s 13(6). The purpose of orders under s 13 is not punishment but the protection of the community: Fardon v Attorney- General (Qld). The existence of some risk of re-offending is not sufficient: the risk must be of an unacceptable order. Each of the psychiatrists is of the view that the risk is high and in my conclusion it is unacceptably high even under a supervision regime as is proposed. Of 2 [2007] 1 QdR 396 at [39]. 3 [2006] QSC 171. -- 13 of 21 -- 14 course the drastic consequences of a continuing detention order must be considered. And the objects of the Act include the provision of control, care or treatment to facilitate the rehabilitation of the prisoner: s 3(b).” [44] In Attorney-General for the State of Queensland v Sutherland4, McMurdo J identified the “correct approach” when considering applications of this type, in the following terms:5 “[26] No order can be made unless the court is satisfied that the prisoner is a serious danger to the community. But if the court is satisfied of that matter, the court may make a continuing detention order, a supervision order or no order. There is no submission here that if the prisoner is a serious danger to the community, nevertheless no order should be made. As already mentioned, it is conceded on behalf of the prisoner that I could be satisfied in terms of s 13(1) and that a supervision order would be appropriate. [27] The court can be satisfied as required under s 13(1) only upon the basis of acceptable, cogent evidence and if satisfied ‘to a high degree of probability that the evidence is of sufficient weight to justify the decision.’ Those requirements are expressed within s 13(3) by reference to the decision which must be made under s 13(1). They are not made expressly referable to the discretionary decision under s 13(5). The paramount consideration under s 13(5) is the need to ensure adequate protection of the community. Subsection 13(7) provides that the Attorney-General has the onus of proving the matter mentioned in s 13(1). There is no express requirement that the Attorney-General prove any matter for the making of a continuing detention order, beyond the proof required by s 13(1). So s 13 does not expressly require, precedent to a continuing detention order, that the Attorney-General prove that a supervision order would still result in the prisoner being a serious danger to the community, in the sense of an unacceptable risk that he would commit a serious sexual offence. However in my view, such a requirement is implicit within s 13. [28] The paramount consideration is the need to ensure adequate protection of the community. But where the Attorney-General seeks a continuing detention order, the Attorney-General must prove that adequate protection of the community can be ensured only by such an order, or in other words, that a supervision order would not suffice. The existence of such an onus in relation to s 13(5) appears from Attorney-General v Francis where the Court allowed an appeal from a judgment which had made a continuing detention order upon the primary judge’s view that the Department of Corrective Services would not provide sufficient resources to provide effective supervision of the prisoner upon his release. The Court found an error in that reasoning because of the absence of evidence that the resources would not be provided. The Court observed: ‘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 4 [2006] QSC 268. 5 Footnotes omitted. -- 14 of 21 -- 15 prisoner, then an order for supervised release should, in principal, 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.’ Thus the absence of evidence of the inadequacy of resources was important because that matter had to be proved, as a step in persuading the court that only continuing detention would suffice. [29] The Attorney-General must prove more than a risk of re-offending should the prisoner be released, albeit under a supervision order. As was also observed in Francis, a supervision order need not be risk free, for otherwise such orders would never be made. What must be proved is that the community cannot be adequately protected by a supervision order. Adequate protection is a relative concept. It involves the same notion which is within the expression ‘unacceptable risk’ within s 13(2). In each way the statute recognises that some risk can be acceptable consistently with the adequate protection of the community. [30] The existence of this onus of proof is important for the present case. None of the psychiatrists suggests that there is no risk. They differ in their descriptions of the extent of that risk. But the assessment of what level of risk is unacceptable, or alternatively put, what order is necessary to ensure adequate protection of the community, is not a matter for psychiatric opinion. It is a matter for judicial determination, requiring a value judgement as to what risk should be accepted against the serious alternative of the deprivation of a person’s liberty.” [45] Having regard to all of the material before me, it is my assessment that the paramount consideration of the need to ensure adequate protection of the community can be achieved by the imposition of an appropriate supervision order. [46] In relation to the conditions to be included in a supervision order, I note that each of the expert psychiatrists made observations on the need for future management of the respondent. [47] Dr Harden’s clinical recommendations on future management include: “If released into the community or continued in custody he should have ongoing individual psychological therapy with an appropriately skilled practitioner focusing on issues of grief and loss, substance misuse, problem solving and sexual deviance. He should have no contact with males under 16 years of age. If released into the community he should be supported to find appropriate accommodation and daily activities. He will do better with structure. If it is practicable the risks and benefits of him residing with his friend T should be explored.” -- 15 of 21 -- 16 [48] Dr Sundin said: “A vital part of his any supervision order would be a requirement for abstinence from alcohol, revelation of his past offending behaviour and assistance with engaging in better prosocial activities. He should be referred for either treatment through the alcohol and drug dependence service in his local mental health service or hospital and to AA. He would also benefit from some individual counselling to assist with the transition and the range of potential difficulties he is likely to encounter. Given his age, I would recommend that a supervision order be in place for 10 years.” [49] Dr Aboud also referred to the need for there to be support in a wide range of areas, including enabling the respondent to establish stable and appropriate accommodation, ensuring he has no contact with children, ensuring he remains abstinent from alcohol and drugs, and ensuring participation in a sexual offending maintenance program. The doctor also referred to the need for ongoing psychological therapy and consideration of further psychiatric assessment. [50] The parties have provided me with a draft supervision order which contains conditions addressing all of these issues, and which otherwise contains conditions which are appropriate for seeking to ensure adequate protection of the community. [51] A supervision order has effect in accordance with its terms for the period stated in the order, and must be made for a definite term. It was ultimately not in issue before me that this supervision order should be for a term of 10 years. [52] Accordingly, there will be a supervision order, pursuant to s 13(5)(b) of the Act, in the terms set out in Annexure A to this judgment. -- 16 of 21 -- 17 “ANNEXURE – A” SUPREME COURT OF QUEENSLAND REGISTRY: Brisbane NUMBER: 2452/17 Applicant ATTORNEY-GENERAL FOR THE STATE OF QUEENSLAND AND Respondent REGINALD THOMAS FORDHAM SUPERVISION ORDER Before: Daubney J Date: 27 July 2017 Initiating document: Originating Application filed 10 March 2017 THE COURT being satisfied to the requisite standard that the respondent, Reginald Thomas Fordham, 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 respondent be subject to the following conditions until 27 July 2027: The respondent must: Statutory Requirements 1. report to a Corrective Services officer at the place, and on a date directed by Queensland Corrective Services, and at that time, advice the officer of the respondent’s current name and address; 2. report to, and receive visits from, a Corrective Services officer at such times and at such frequency as determined by Queensland Corrective Services; -- 17 of 21 -- 18 3. notify a Corrective Services officer of every change of the respondent’s name at least two business days before the change occurs; 4. be under the supervision of a Corrective Services officer; 5. comply with a curfew direction or monitoring direction; 6. comply with any reasonable direction under section 16B of the Act given to him; 7. comply with every reasonable direction of a Corrective Services officer that is not directly inconsistent with a requirement of the order; 8. not leave or stay out of Queensland without the permission of a Corrective Services officer; 9. not commit an offence of a sexual nature during the period of the order; Employment 10. seek permission and obtain approval from a Corrective Services officer prior to entering into an employment agreement or engaging in volunteer work or paid or unpaid employment; 11. notify the Corrective Services officer of the nature of his employment, or offers of employment, the hours of work each day, the name of his employer and the address of the premises where he is or will be employed; Accommodation 12. reside at a place within the State of Queensland as approved by a Corrective Services officer by way of a suitability assessment and obtain written approval prior to any change of residence; 13. if this accommodation is of a temporary or contingency nature, you must comply with any regulations or rules in place at this accommodation and demonstrate reasonable efforts to secure alternative, viable long term accommodation to be assessed by Queensland Corrective Services; 14. not reside at a place by way of short term accommodation including overnight stays without the permission of the Corrective Services officer; Activities and associates 15. not commit an indictable offence during the period of the order; 16. respond truthfully to enquiries by a Corrective Services officers about his activities, whereabouts and movements generally; 17. not to have any direct or indirect contact with a victim of his sexual offences; -- 18 of 21 -- 19 18. disclose to a Corrective Services officer the name of each person with whom he associates and respond truthfully to requests for information from a Corrective Services officer about the nature of the association, address of the associate if known, the activities undertaken and whether the associate has knowledge of his prior offending behaviour; 19. notify the authorised officer of the make, model, colour and registration number of any vehicle owned by or generally driven by him, whether hired or otherwise obtained for his use; 20. submit to and discuss with a Corrective Services officer a schedule of his planned and proposed activities on a weekly basis or as otherwise directed; 21. if directed by a Corrective Services officer, make complete disclosure of the terms of this supervision order and the nature of his past offences to any person as nominated by a Corrective Services officer who may contact such persons to verify the full disclosure has occurred; Alcohol and Drugs 22. abstain from the consumption of alcohol and illicit drugs for the duration of this order; 23. submit to any form of drug and alcohol testing including both random urinalysis and breath testing as directed by the Corrective Services officer; 24. disclose to a Corrective Services officer all prescription and over the counter medication that he obtains; 25. not visit premises licensed to supply or serve alcohol, without the prior written permission of a Corrective Services officer; Medical treatment 26. attend upon and submit to assessment, treatment, and/or medical testing by a psychiatrist, psychologist, social worker, counsellor or other mental health professional as directed by a Corrective Services officer at a frequency and duration which shall be recommended by the treating intervention specialist; 27. permit any medical, psychiatric, psychological, social worker, counsellor or other mental health professional to disclose details of treatment, intervention and opinions relating to level of risk of re-offending and compliance with this order to Queensland Corrective Services if such a request is made for the purposes of -- 19 of 21 -- 20 updating or amending the supervision order and/or ensuring compliance with this order; 28. attend any program, course, psychologist, social worker or counsellor, in a group or individual capacity, as directed by a Corrective Services officer in consultation with treating medical, psychiatric, psychological or other mental health professional where appropriate; Contact with children 29. not establish or maintain any supervised or unsupervised contact, including undertaking any care of children under 16 years of age, except with prior written approval by a Corrective Services officer. The respondent is required to fully disclose the terms of the order and nature of offences to the guardians and caregivers before any such contact can take place; Queensland Corrective Services may disclose information pertaining to the offender to guardians or caregivers and external agencies (i.e. Department of Child Safety) in the interests of ensuring the safety of the children; 30. advise a Corrective Services officer of any repeated contact with a parent of a child under 16 years of age. The respondent shall if directed by a Corrective Services officer make complete disclose the terms of the order and nature of offences to any person as nominated by a Corrective Services officer who may contact such persons to verify that full disclosure has occurred; 31. not without reasonable excuse be within 100 metres of schools or child cares centres without the prior written approval of a Corrective Services officer; 32. not to visit or attend on the premises of any establishment where there is a dedicated children’s play area or child minding area without the prior written approval of a Corrective Services officer; 33. not visit public parks without prior written permission from a Corrective Services officer; 34. obtain prior written approval of a Corrective Services officer before attending the premises of any shopping centre containing more than 10 shops; 35. not join, affiliate with, attend on the premises of or attend at the activities carried on by any club, organisation or group in respect of which there are reasonable grounds for believing there is either child membership or child participation without prior written permission from a Corrective Services officer; -- 20 of 21 -- 21 Technology, telephones and devices 36. supply to a Corrective Services officer any password or other access code known to him to permit access to such computer or other device or content accessible through such computer or other device where the internet is accessible to be randomly examined using a data exploration tool to extract digital information or any other recognised forensic examination process; 37. supply to a Corrective Services officer details of any email address, instant messaging service, chat rooms, or social networking sites including user names and passwords; 38. allow any other device including a telephone or camera to be randomly examined. If applicable, account details and/or phone bills are to be provided upon request of a Corrective Services officer; and 39. advise a Corrective Services officer of the make, model and phone number of any phone number of any mobile telephone owned, possessed or regularly utilised by you within 24 hours of connection or commencement of use and includes reporting any changes to mobile telephone details. Signed: . . . . . . . . . . . . . . . . . . . . . . . . . . Registrar of the Supreme Court of Queensland -- 21 of 21 --