Attorney-General v Accoom [2017] QSC 50

SUPREME COURT OF QUEENSLAND CITATION: Attorney-General (Qld) v Accoom [2017] QSC 50 PARTIES: ATTORNEY-GENERAL FOR THE STATE OF QUEENSLAND (applicant) v STEVEN FRANCIS ACCOOM (respondent) FILE NO/S: SC No 5483 of 2016 DIVISION: Trial Division PROCEEDING: Originating Application ORIGINATING COURT: Supreme Court at Brisbane DELIVERED ON: 4 April 2017 DELIVERED AT: Brisbane HEARING DATE: 28 November 2016; 14 December 2016; 31 January 2017; 31 March 2017; 4 April 2017 JUDGE: Burns J ORDER: The court, being satisfied to the requisite standard that the respondent, Steven Francis Accoom, is a serious danger to the community in the absence of an order pursuant to Division 3 of Part 2 of the Dangerous Prisoners (Sexual Offenders) Act 2003 (Qld), orders that the respondent be released from custody and then, until 4 April 2027, be subject to the conditions set forth in the Schedule 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 there is an application pursuant to s 5 of the Dangerous Prisoners (Sexual Offenders) Act 2003 for an order pursuant to Division 3 of Part 2 of that Act – whether the respondent is a serious danger to the community in the absence of a Division 3 order – where the court may order a continuing detention order or a supervision order pursuant to s 13(5) of the Act – whether the adequate protection of the community can be reasonably and practicably managed by a supervision order – whether the requirements under s 16 of the Act can be reasonably and practicably managed by corrective services officers – where the -- 1 of 18 -- 2 respondent requires immediate integration with mental health services upon release – where the applicant supports a supervision order if suitable accommodation and integration with mental health services can be arranged – whether suitable accommodation and integration with mental health services can be arranged – whether the adequate protection of the community can be reasonably and practicably managed by a supervision order conditioned to provide for suitable accommodation and integration with mental health services Dangerous Prisoners (Sexual Offenders) Act 2003 (Qld), s 2, s 3, s 5, s 13, s 13A, s 16 Attorney-General (Qld) v Beattie [2007] QCA 96, followed Attorney-General (Qld) v Fardon [2011] QCA 111, cited Attorney-General (Qld) v Francis [2007] 1 Qd R 396; [2006] QCA 324, cited Attorney-General (Qld) v Kanaveilomani [2013] QCA 404, cited Attorney-General (Qld) v Lawrence [2010] 1 Qd R 505; [2009] QCA 136, cited Attorney-General (Qld) v Phineasa [2013] 1 Qd R 305; [2012] QCA 184, cited Attorney-General (Qld) v Sutherland [2006] QSC 268, followed Fardon v Attorney-General (Qld) (2004) 223 CLR 575; [2004] HCA 46, cited Kynuna v Attorney-General for the State of Queensland [2016] QCA 172, cited Turnbull v Attorney-General (Qld) [2015] QCA 54, cited COUNSEL: J Rolls for the applicant J Horne for the respondent SOLICITORS: Crown Law for the applicant Legal Aid Queensland for the respondent [1] On 3 June 2016, the Honourable Attorney-General filed an application under Division 3 of the Dangerous Prisoners (Sexual Offenders) Act 2003 (Qld). By that application, she seeks an order that the respondent, Steven Francis Accoom, be detained indefinitely for control, care or treatment pursuant to s 13(5)(a). In the alternative, an order is sought that the respondent be released subject to a supervision order pursuant to s 13(5)(b). [2] On the hearing of this application, it was conceded that the respondent represents a serious danger to the community in the absence of a Division 3 order and is, therefore, a person to whom the Act applies. The case was, however, complicated by the feature that the respondent suffers from chronic schizophrenia. This condition has been largely treatment resistant and, in consequence, the respondent has been, and continues to be, afflicted with significant negative symptomatology including markedly diminished social functioning and living skills. However, it was submitted on the respondent’s behalf that the adequate -- 2 of 18 -- 3 protection of the community could be ensured by the making of a supervision order.1 To that end, the terms of a draft order imposing strict conditions (including conditions providing for the respondent’s accommodation on release and arrangements for his ongoing treatment) were eventually agreed by counsel for the respective parties.2 This agreement was reached after the final hearing of the application had to be adjourned on a number of occasions (and interim detention orders made) whilst attempts were made to secure appropriate supported accommodation for the respondent. In an outline of argument prepared by her experienced counsel, Mr Rolls, the applicant ultimately accepted that such an order was supported by the psychiatric evidence and that the respondent’s release on supervision was, in the light of that evidence, preferable to continuing detention.3 [3] For the reasons that follow, I am satisfied by acceptable, cogent evidence and to the high degree of probability required by s 13(2) of the Act that the respondent represents a serious danger to the community in the absence of an order pursuant to Division 3 of Part 2 of the Act. However, on the basis of the accommodation and treatment arrangements as well as the strict conditions otherwise contained in the agreed draft order, I am satisfied that the adequate protection of the community can be reasonably and practicably managed by a supervision order. As such, it will be ordered that the respondent be released on supervision on those conditions for a period of ten years. Background [4] The respondent is an indigenous man who was born in Woorabinda in Central Queensland. He is 32 years of age. [5] The respondent grew up without his mother and father. During one of the programs he completed whilst in custody, the Sexual Offenders Program for Indigenous Males, he gave a history of having been “given away” when he was a baby to other family members and, from about the age of 14 years, moving in and out of various foster homes, living on the streets and moving between different towns (Rockhampton, Townsville, Mareeba and Cairns). He identified feelings of loneliness, neglect and loss whilst growing up. [6] The respondent began using alcohol and drugs, as well as inhaling paint fumes, in his early teenage years. He stopped attending school at around 14 years of age after he was expelled for fighting. He has very little in the way of employment history; the longest period of employment that he can recall is when he undertook “concrete work and fixing gardens” for about five weeks. Otherwise, he had short stints working at a sawmill and on a farm. The respondent has never been in a serious, long-term relationship. He has one child from a short relationship when he was 16 or 17 years of age, but he has never been involved in the life of that child. [7] As already mentioned, the respondent suffers from chronic schizophrenia. He also has a history of very serious self-harm. It is unclear what, if any, psychiatric treatment he received prior to his present incarceration. Be that as it may, he is now a patient with the 1 Dangerous Prisoners (Sexual Offenders) Act 2003, s 13(6). 2 Exhibit 1. There are 41 conditions in total and they are reproduced in the Schedule to this judgment. 3 Applicant’s Amended Outline of Submissions dated 2 March 2017; para 2. -- 3 of 18 -- 4 Prison Mental Health Service and is complying with the treatment prescribed for him by that Service whilst in custody. This is notwithstanding the feature that he has only limited insight into his illness and, in consequence, is ambivalent about his treatment needs. In addition to his schizophrenia, the respondent also suffers from diabetes and high blood pressure and, in respect of both conditions, is on prescribed medication. [8] On 24 March 2015, the Adult Guardian and the Public Trustee were appointed to manage the respondent’s health, accommodation, service provision and financial affairs. [9] The respondent is currently incarcerated at the Townsville Correctional Centre. He has a high security classification. His behaviour has been generally acceptable although he has been noted at times to have poor hygiene. He has been “breach-free” since July 2008. Up until that time, breaches were a frequent occurrence. Because of his schizophrenia and accompanying need for medication, it has been difficult for the respondent to maintain employment. He usually occupies his time playing cards and watching television. [10] Whilst in custody, he has participated in, and successfully completed, a range of treatment programs. These included two programs designed specifically for sexual offenders – the Sexual Offenders Program for Indigenous Males (completed on 16 April 2015) and the Staying on Track: Sexual Offender Maintenance Program (completed on 13 May 2016). Criminal history and index offending [11] The respondent has a history of juvenile offending from when he was approximately 12 years of age. Initially, these were property-based offences such as burglary and stealing, but, from the age of about 15, his offending extended to offences of violence. He has been detained in youth detention centres on at least two occasions. Of some slight relevance to this application, in 2001 he was convicted on his own plea of guilty of one count of indecent assault and one count of attempting to enter premises with intent. The victim of the indecent assault was 13 years of age. As she was crossing the road, the respondent, who was in a group of four males, reached out and placed his hand on, and then squeezed, her buttocks. The respondent was sentenced to a period of two months detention for each offence, to be served concurrently. [12] On 1 April 2004, the respondent pleaded guilty in the District Court at Rockhampton to one count of assault occasioning bodily harm whilst armed. That offence involved the prolonged assault of his 13 year old female cousin. The circumstances were described by the sentencing judge as follows: “The complainant and a group of friends were involved in paint-sniffing at the time. You came along and you, apparently, were also involved in paint-sniffing. You were not wanted in this group of people. It seems that the background to that is, that you had previously expressed to the complainant some interest in a sexual relationship and she was not interested. I accept that this was an atmosphere which was not calm; that you were being called names, and against that background this offence was committed. The fact that you may have been affected by paint-sniffing at the time is no excuse, nor does it lessen the seriousness of the offence, but it may help to explain why it was committed and the background against which it was committed. -- 4 of 18 -- 5 You grabbed a branch from a tree – and there is a photograph of that before the Court – you chased the complainant; you caught her; you flung her to the ground; she hit her head on the road. You grabbed her hair; you forced the stick into her face; you dragged her along the road and took her to your mother’s residence. You punched her in the face a number of times; told her to take her clothes off. Others, including your mother, were yelling and telling you to stop.” [13] The respondent was aged 17 years at the time of this offence. The victim suffered lacerations to the forehead, temple and nose and a significant soft-tissue injury to her right shoulder. The respondent was sentenced to 12 months imprisonment with 124 days spent in pre-sentence custody declared as time already served under that sentence. [14] The respondent was released from prison on 26 November 2004. He committed the index offences about a week later – on 2 December 2004 – and pleaded guilty to these offences in the District Court at Rockhampton on 31 August 2007. All told, there were three counts of rape, one count of assault occasioning bodily harm and one count of entering a dwelling with intent at night. The circumstances of these offences were outlined by the sentencing judge in this way: “The statement given by the complainant in the present matters to the police has been tendered. It sets out in considerable detail the circumstances surrounding the commission of the current offences. I do not need to go into those matters in great detail. There is no dispute whatsoever as to the facts contained in that statement. However, what occurred was you broke into the complainant’s residence when she was asleep. She was not known to you in any way. She was a 57 year old woman and was in the premises alone. She had, prior to going to bed, taken steps to see that the house was secure from unauthorised entry. She awoke apparently in the early hours of the morning to find a person, who turned out to be you, lying in the bed beside her. There then ensued a prolonged attack upon her, which the Crown says probably lasted between one and one and a-half hours. She was subjected to a number of degrading acts and to significant violence by you. It must have been, for her, a terrifying experience. In the course of this attack upon her, you grabbed her by the hair. She was screaming and trying to fight you off. You got on top of her and held her down with your body weight. You struck her across the head more than once. You hit her head against the floor. She was screaming, trying to bite you and to fight you off. You put your fingers in her mouth and yanked her jaw down so that she could not close her teeth around your fingers and bite you. She found this excruciatingly painful. She felt as though you were going to pull her bottom jaw off. She struggled against your repeated assaults to the point of exhaustion. At one stage you stuffed something in her mouth, which she says was clothing or cloth of some description. You committed an act of penile rape against her. She was continuing to resist and to call for mercy. You asked her to remove her shirt, which she refused to do, and you attempted to remove it forcibly. At one stage you put your tongue in her mouth and told her to kiss you. You demanded that she suck your penis. You forced your penis into her mouth and you committed a further act of penile rape against her. -- 5 of 18 -- 6 There is a victim impact statement by the complainant, which I have read carefully. It is quite a detailed statement and it sets out the physical injuries which she suffered, as well as the financial loss and emotional effects which she has experienced. The effects upon her are, as the Prosecutor says, eloquently summed up in the final paragraph of the statement where she says: ‘The offences were a violent invasion of my home, mind and body, and have robbed me of my freedom to enjoy my life. The attack has taken away my confidence, enjoyment of life and peace of mind, and has changed my life forever.’ So this is a very serious attack. It was an invasion of the complainant’s home at night whilst she was in bed. She was home alone. She was a vulnerable member of the community. She was 57 years of age. It is, whilst perhaps not the very worst example of offending of this type, certainly towards the upper end of the range for offences of this type. As I said earlier, it was committed within one week of your release from prison. The community does need to be protected from you. There is, it would appear, little prospect of your being rehabilitated …” [15] The respondent was sentenced to 12 years imprisonment on the three counts of rape and the count of entering dwelling with intent by break at night offence and to five years imprisonment in relation to the assault. These terms were ordered to be served concurrently. A period of 993 days of pre-sentence custody was declared as time served under these sentences of imprisonment, with the result that his full time release date for these sentences was 2 December 2016. However, since that time he has been the subject of a series of interim detention orders pursuant to s 9A(2)(b) of the Act while attempts were made to source suitable accommodation and appropriate treatment for him upon his release. [16] For completeness, it should be recorded that the respondent became eligible for parole on 12 July 2014. He made an application for parole on 5 May 2014, but it was declined by the Parole Board in October 2014. The Legislative Scheme [17] The objects of the Act are to provide for the continued detention in custody or supervised release of a particular class of prisoner to ensure adequate protection of the community and to provide for the continuing control, care or treatment of such prisoners to facilitate their rehabilitation.4 [18] To those ends, the Act provides for the continued detention in custody or supervised release of prisoners but only if the court is satisfied that they represent a “serious danger to the community” in the absence of an order providing for their continuing detention or supervision under Division 3 of Part 2 of the Act.5 The Attorney-General may apply for 4 Section 3. 5 Section 13(1). -- 6 of 18 -- 7 such an order,6 and bears the onus of proving that the subject of any such application is indeed a “serious danger to the community”.7 [19] A prisoner is a “serious danger to the community” if there is “an unacceptable risk” that the prisoner will commit a “serious sexual offence” if released from custody or if released without a supervision order being made.8 A “serious sexual offence” means an offence of a sexual nature involving violence or against a child.9 [20] On the hearing of the application, the court may decide that a prisoner poses a serious danger to the community only if it is satisfied by acceptable, cogent evidence, and to a high degree of probability, that the evidence is of sufficient weight to justify the decision.10 [21] The paramount consideration in deciding whether to make a continuing detention order or a supervision order is the need to ensure adequate protection of the community.11 In addition, the court must consider whether adequate protection of the community can be “reasonably and practicably managed by a supervision order” and whether the requirements for such orders specified in s 16 can be “reasonably and practicably managed by corrective services officers”.12 [22] Section 13(4) provides that, in deciding whether a prisoner is a serious danger to the community, the court must have regard to the following: “(aa) any report produced under section 8A; (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; 6 Section 5(1). 7 Section 13(7). 8 Section 13(2). 9 Section 2 and the Schedule to the Act, being the Dictionary. See also Attorney-General (Qld) v Phineasa [2013] 1 Qd R 305; [2012] QCA 184 at [23]-[45] per Muir JA; Kynuna v Attorney-General for the State of Queensland [2016] QCA 172 at [56] per McMurdo P. 10 Section 13(3). 11 Section 13(6)(a). 12 Section 13(6)(b). -- 7 of 18 -- 8 (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.” [23] Section 13(5)(a) then goes on to provide that, if the court is satisfied that a prisoner is a serious danger to the community in the absence of a Division 3 order, the court may order that the prisoner be detained indefinitely for control, care or treatment pursuant to a continuing detention order13 or released pursuant to a supervision order subject to such requirements as the court considers appropriate. [24] The correct approach to a consideration of the issues arising under these provisions was explained by McMurdo J (as his Honour then was) in Attorney-General (Qld) v Sutherland14 as follows: “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.15 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. 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(6)] 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. 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 Francis16 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 13 As to which, see Attorney-General (Qld) v Francis [2007] 1 Qd R 396; [2006] QCA 324 at [29]. 14 [2006] QSC 268. 15 Fardon v Attorney-General (Qld) (2004) 223 CLR 575; [2004] HCA 46 at [19], [34]; cf in relation to s 30 Attorney-General (Qld) v Francis [2007] 1 Qd R 396; [2006] QCA 324 at [31]. 16 [2007] 1 Qd R 396; [2006] QCA 324. -- 8 of 18 -- 9 that reasoning because of the absence of evidence that the resources would not be provided.17 The Court observed:18 ‘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 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. 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.19 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. 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.”20 The evidence [25] A considerable body of evidence was assembled and then advanced to the court in support of the application. No evidence was advanced on behalf of the respondent. [26] The respondent appears to have first been examined by a psychiatrist in 2006. That was Dr Flanagan. He was requested by the respondent’s legal representatives to prepare a report in relation to the respondent’s fitness to plead to the index offences. Dr Flanagan expressed the opinion that the respondent was suffering from a severe, long-standing and untreated chronic psychotic disorder that was schizophrenic in nature. This diagnosis was confirmed by another psychiatrist, Dr Todorovic, who was engaged by the Registrar of the Mental Health Court to provide an opinion as to the respondent’s mental state. 17 Attorney-General (Qld) v Francis [2007] 1 Qd R 396; [2006] QCA 324 at [37]. 18 Ibid [39]. 19 Ibid. 20 [2006] QSC 268 at [26]-[30]. See also Attorney-General for the State of Queensland v Kanaveilomani [2013] QCA 404 at [118]-[120] per Morrison JA; Turnbull v Attorney-General (Qld) [2015] QCA 54 at [36]-[37] per Morrison JA. -- 9 of 18 -- 10 [27] More recently, the respondent has been examined by three psychiatrists for the purposes of this application – Dr Harden, Dr Beech and Dr Grant. In addition, Dr Simpson, a consultant psychiatrist, reported regarding the respondent. Lastly, Dr Reilly, a psychiatrist in charge of the Adult Acute Mental Health Inpatient Unit at the Townsville Hospital, provided a number of reports and gave oral evidence on 31 January 2017. The opinions expressed by these psychiatrists are summarised below. Dr Harden [28] Dr Harden interviewed the respondent at the Lotus Glen Correctional Centre on 30 July 2015. His report was based on that interview, as well as the respondent’s criminal history, extracts from files of the Office of the Director of Public Prosecutions, Queensland Corrective Services, transcripts of the relevant court proceedings, and the respondent’s medical file held at the Lotus Glen Correctional Centre. Dr Harden considered the respondent to be a poor historian without a good memory of the index offences. [29] Dr Harden administered a number of risk assessment tools, including the Static-99R, the Stable 2007, the Sex Offender Risk Appraisal Guide, the Hare Psychopathy Checklist and the Sexual Violence Risk-20. [30] Overall, Dr Harden considered that the respondent’s ongoing unmodified risk of sexual reoffending in the community to be high. Dr Harden noted that such reoffending would likely be associated with substance intoxication and/or exacerbation of his psychotic illness. He was of the opinion that, should the respondent have the benefit of a supervision order, his risk of sexual recidivism would be reduced to moderate. [31] Dr Harden made these recommendations regarding the respondent’s future treatment: “If released into the community he will require ongoing consistent long-term treatment by a public sector adult mental health service. He may well require involuntary treatment under the Mental Health Act to maintain his compliance with treatment. In my view he should be abstinent from alcohol and substance intoxication permanently. Precautions about incidental contact with children do not seem indicated as his potential victim group is all females and I do not believe there is a predilection for child victims. He has limited living skills and will require some form of supported accommodation in the community as well as the high level of mental health service support noted above.”21 [32] Subsequently, Dr Harden provided a report on 16 February 2017. This was after Dr Reilly had given evidence and the terms of a draft supervision order had been settled on by the parties.22 21 Affidavit of Scott Harden filed 3 June 2016, Ex SH-2 at pp 18-19. 22 Exhibit 1. -- 10 of 18 -- 11 [33] After considering Dr Reilly’s evidence as well as the contents of the draft supervision order, Dr Harden supported the respondent’s release on supervision subject to those conditions. Those conditions include, it should be noted, that the respondent will on his release be escorted to the Adult Acute Mental Health Inpatient Unit at the Townsville Hospital where he must submit to an assessment and treatment for such time as is considered necessary by his treating psychiatrist. Dr Simpson [34] Dr Simpson provided a report on 10 November 2016. At that time she was responsible for the respondent’s treatment. Dr Simpson recorded that the respondent was commenced on treatment by the Prison Mental Health Service, initially at Capricornia and subsequently at the Lotus Glen Correctional Centre. His symptoms were difficult to treat. Nevertheless, she did note some improvement in the respondent’s mental state. He has progressed through the custodial facility into residential units and, recently, was able to obtain and maintain employment within the facility itself. [35] Dr Simpson recorded that the respondent presented as a vulnerable man who is going to need extensive mental health support in the community; he is “significantly deficient” in a number of activities of daily living. He requires extensive support in most of his day to day skills of ordinary living, including budgeting, shopping, meal preparation and general self-care. She considered that he is at high risk of relapse from his mental illness for a number of reasons: risk of substance abuse once released, risk of relapse into tobacco use resulting in reduced medication levels, risk of non-adherence to treatment and risk of treatment refusal due to lack of insight. Nevertheless, Dr Simpson expressed the view that the respondent’s mental health requires treatment that cannot be addressed in custody. Dr Beech [36] Dr Beech interviewed the respondent at the Lotus Glen Correctional Centre on 2 September 2016. Dr Beech noted that both the 2004 offence and the index offences occurred whilst the respondent was in an intoxicated state, and aggravated by peer rejection or loneliness. The index offences occurred in the context of general difficulties coping in the community following release. [37] Dr Beech opined that the respondent has an antisocial personality disorder, and schizophrenia that appears to be treatment resistant. Dr Beech administered a number of risk assessment tools, including the Hare Psychopathy Checklist, the Static-99R, and the Risk of Sexual Violence Protocol, and considered that the risk of further sexual violence remains high. Dr Beech noted that while the respondent has completed sexual offender programs whilst in custody, “it is difficult to discern to what extent he has been able to incorporate the programs”. [38] In respect of the respondent’s future treatment, Dr Beech expressed this opinion: “It may be that on release the respondent will find a supported residence where he can be managed by the community mental health services. His mental illness remains in remission, and he will remain compliant with treatment. He will have taken on board the risk of substance use, and he will remain abstinent. The mental illness and -- 11 of 18 -- 12 its effects will act to deter him from impulsivity and violence. The risk is low but once he is in the community he will eschew treatment and follow up. His illness will relapse, voices will intervene and he will become stressed. He will return to substance use. In an attempt to fund his substance use, or in an attempt to effect a return to prison, he will return to break and enter offending. In an intoxicated state, and possibly a psychotic state, he will assault [a] woman. The victim is likely to suffer significant physical injuries. A supervision order would substantially reduce the risk, but the supervision would need to be constant with a management plan that involved Mental Health Services. Supervision would allow for stable accommodation, ongoing mental services, intervention support and counselling. It would promote and ensure abstinence. I would see these as important risk reduction strategies.” [39] Dr Beech considered that there was no rehabilitative purpose in keeping the respondent in custody, however he believed that the respondent would likely struggle in the community without supervision of his mental health in supported accommodation and he is unsuitable for a prison precinct setting “in the medium term”. [40] A further report was provided by Dr Beech on 16 November 2016. This is after Dr Simpson had provided her report. Dr Beech confirmed his opinion that there was no further rehabilitative purpose in keeping the respondent in custody but that he was unsuitable for a “prison precinct setting”. A better alternative for the respondent’s accommodation on release needed to be obtained. [41] Dr Beech was provided with a copy of the draft supervision order and supporting material In his supplementary report of 22 February 2017, he considered that what was proposed under the terms of that order was “an appropriate option” and “appropriate to manage any risk”. Dr Grant [42] Dr Grant interviewed the respondent on 25 August 2016. Dr Grant considered that the respondent has chronic schizophrenia in partial remission on medication, antisocial personality disorder, and polysubstance abuse along with a number of physical health issues. Dr Grant further noted that the respondent is of probable below average intelligence, and his intellectual functioning is further compromised by the effects on cognition of his schizophrenic illness. [43] Dr Grant administered a number of risk assessment tools. On the HCR-20 the respondent fell into the high risk group for future violent behaviour. On the Static-99R the respondent’s score placed him in the high risk group. The Risk for Violence Sexual Protocol indicated, relevantly, that the respondent showed some chronicity for sexual violence, possible future diversity of sexual violence, and escalation of sexual violence. The instrument further demonstrated that the respondent showed some tendency in the future of minimising sexual violence, attitudes that condone sexual violence, problems with stress or coping and problems resulting from child abuse. Overall, using this instrument, Dr Grant considered that there is a high risk of future sexual violence unless that risk is controlled by supervision and treatment. The risk would increase in -- 12 of 18 -- 13 circumstances of intoxication, social disruption, isolation and lack of psychiatric treatment. [44] Dr Grant considered the overall risk for sexual reoffending to be high. Risk factors include the respondent’s below average intelligence, his significant antisocial personality disorder, substance abuse, poor social skills, poor ability to plan and negotiate problems in the community, and his schizophrenia. [45] Dr Grant considered it “imperative” that the respondent be placed in a supervised mental health rehabilitation setting. [46] Dr Grant recently provided a supplementary report. It was dated 19 February 2017 and was provided after Dr Grant had been supplied with a copy of the draft supervision order along with the evidence and opinions of Dr Reilly. Dr Grant agreed that the plans outlined by Dr Reilly were appropriate and that they would ensure that the respondent is thoroughly assessed before any placement in the community is made. Furthermore, he considered that those plans would ensure that any such placement would take into account the respondent’s clinical needs as well as his risk to the community. Dr Reilly [47] Dr Reilly provided two written reports dated 12 December 2016 and 27 January 2017, and gave evidence at the hearing on 31 January 2017. He confirmed in his reports that the Mental Health Service Group, which he oversees, would assess the respondent’s needs for treatment and rehabilitation on his release from custody. Dr Reilly noted that the order of intensity and restriction from the Mental Health Service perspective would be a community mental health team input, or a secure mental health rehabilitation setting. Each would provide appropriate assessment of risk to assist with the graduated transition from prison to full community living. [48] At the hearing, Dr Reilly indicated that upon release from custody, the respondent would be admitted to the Townsville Adult Acute Mental Health Inpatient Unit. An assessment of the respondent’s treatment needs would then be undertaken at that unit to determine the appropriate facility for his treatment. In the event that the respondent requires treatment in a secure rehabilitation facility, Dr Reilly confirmed that the respondent would remain in the Townsville Hospital inpatient unit until a bed becomes available. Dr Reilly considers it unlikely that the prison precinct would be a clinically appropriate place for the respondent to reside, however that may become an option in the future should his mental state improve. [49] As counsel for the applicant submitted in writing: “The general tenor of Dr Reilly’s evidence is that the respondent is able to be released from custody and has accommodation available to him which will satisfy his treatment needs and also provide a means by which Corrective Services can, additionally, supervise the respondent to manage the sexual risk that the respondent’s release otherwise presents. Accordingly, it would appear that the proposal of the Townsville Hospital Health Service to provide alternative accommodation, is of the type contemplated by the -- 13 of 18 -- 14 psychiatric reports of Drs Beech and Grant, and would seem also to meet the clinical requirements that the respondent has as postulated by Dr Simpson.” Consideration Is the respondent a serious danger to the community in the absence of an order? [50] It was not in issue on the hearing of the application that the respondent is a serious danger to the community in the absence of a Division 3 order. Nevertheless, it is still necessary for the court to consider that question. [51] Here, the psychiatrists all agree that the respondent’s main problems are his substance abuse and mental health conditions. His unmodified risk of sexually violent reoffending has been assessed by the three reviewing psychiatrists – Dr Harden, Dr Beech and Dr Grant – as being high. The victim of such an offence is likely to be an adolescent or adult female and there is a significant risk of psychological and/or physical harm to the victim. [52] In this context, it is with respect useful to recall what was said by Keane JA (as his Honour then was) in Attorney-General (Qld) v Beattie,23 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”.24 As such, even if the risk that the respondent might reoffend in a sexually violent way is only at a moderate level, there remains a high risk of very serious harm being caused to a future victim if he lapses back into substance abuse or noncompliance with psychiatric treatment. Given the index offending, his past history of substance abuse and his poor insight into his mental illness, the risk that the respondent will commit a serious sexual offence within the meaning of the Act if he is released from custody or, alternatively, released from custody without a supervision order being made is unacceptably high. The applicant has established this by acceptable cogent evidence and to the high degree of probability required under the Act. [53] It follows that the respondent is a person to whom the Act applies. Which order? [54] The court being satisfied that the respondent is a person to whom the Act applies, the next question is whether, under s 13(5) of the Act, there should be a continuing detention order or a supervision order. Section 13(6) provides: “(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 23 [2007] QCA 96. 24 Ibid [19]. -- 14 of 18 -- 15 (ii) requirements under section 16 can be reasonably and practicably managed by corrective services officers.” [55] The need to ensure adequate protection of the community as required by s 13(6)(a) was explained by the Court of Appeal in Attorney-General (Qld) v Francis25 in the following way: “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.”26 [56] Each of the psychiatrists supported release on supervision, and a supervision order will significantly reduce the respondent’s risk of sexually violent reoffending whilst providing the necessary treatment for his mental health issues. In particular, it will provide for a structured regime of supervision and monitoring to ensure that the respondent abstains from substance abuse, and to ensure compliance with his mental health treatment. This is critically important. Each of these measures will serve to reduce the risk that the respondent will in the future commit a serious sexual offence. [57] In my opinion, the adequate protection of the community can be reasonably and practicably managed by a supervision order incorporating the conditions incorporated in the draft supervision order.27 I am also of the opinion that the requirements under s 16 of the Act can be reasonably and practicably managed by corrective services officers. [58] In accordance with the preponderance of the psychiatric evidence as to the period for such an order, the supervision order shall be for a period of ten years. Disposition [59] Having been satisfied to the requisite standard that the respondent is a serious danger to the community in the absence of an order pursuant to Division 3, it will be ordered that he be released from custody subject to the requirements of a supervision order incorporating each of the conditions set forth in the Schedule to these reasons. The order shall remain in place until 4 April 2027. 25 [2007] 1 Qd R 396; [2006] QCA 324. 26 Ibid [39]. 27 Exhibit 1. -- 15 of 18 -- 16 Attorney-General (Qld) v Steven Francis Accoom SCHEDULE Conditions of Supervision Order General conditions (1) Upon the respondent’s release from custody, Queensland Corrective Services escort the respondent to the Adult Acute Mental Health Inpatient Unit, Townsville Hospital and Health Service, where the respondent must submit to assessment and treatment for such time as is considered necessary by his treating psychiatrist; (2) be under the supervision of a Corrective Services officer for the duration of the order; (3) report to a Corrective Services officer at the Adult Acute Mental Health Inpatient Unit, Townsville Hospital and Health Services, on the day of his release from custody and at that time advise the officer of the respondent’s current name and address; (4) report to, and receive visits from, a Corrective Services officer at such times and at such frequency as determined by Queensland Corrective Services; (5) notify and obtain the approval of a Corrective Services officer for every change of the respondent’s name at least two (2) business days before the change occurs; (6) comply with a curfew direction or monitoring direction; (7) comply with any reasonable direction under section 16B of the Act given to him; (8) comply with every reasonable direction of a Corrective Services officer that is not directly inconsistent with a requirement of the order; (9) not commit an offence of a sexual nature during the period of the order; (10) not commit an indictable offence during the period of the order; (11) not to have any direct or indirect contact with a victim of his sexual offences; Employment (12) seek permission and obtain approval from an a Corrective Services officer prior to entering into an employment agreement or engaging in volunteer work or paid or unpaid employment; (13) notify a 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 at least two (2) business days prior to commencement or any change; Residence (14) reside at the Adult Acute Mental Health Inpatient Unit, Townsville Hospital and Health Service, in accordance with paragraph 1 hereof; (15) after any discharge from the Adult Acute Mental Health Inpatient Unit reside at a place within the State of Queensland as previously approved by a Corrective Services officer by way of a suitability assessment, in conjunction with the respondent’s treating psychiatrist; (16) if the residential accommodation is of a temporary or contingency nature, 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 for suitability by Queensland Corrective Services; -- 16 of 18 -- 17 (17) not reside at a place by way of short term accommodation including overnight stays without the permission of a Corrective Services officer; (18) not leave or stay out of Queensland without the written permission of a Corrective Services officer; Disclosure of weekly plans and associates (19) respond truthfully to enquiries by a Corrective Services officer about his activities, whereabouts and movements generally; (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) disclose to a Corrective Services officer upon request 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; (22) 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 that full disclosure has occurred; Motor vehicles (23) notify a Corrective Services 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; Alcohol and other Substances (24) abstain from the consumption of alcohol and illicit drugs for the duration of this order; (25) abstain from using any intoxicating inhalants such as, but not limited to, petrol, glue, paint or solvents for the duration of this order; (26) submit to any form of drug and alcohol testing including both random urinalysis and breath testing as directed by a Corrective Services officer; (27) disclose to a Corrective Services officer all prescription and over the counter medication that he obtains; (28) take prescribed drugs as directed by a medical practitioner; (29) not visit premises licensed to supply or serve alcohol, without the prior written permission of a Corrective Services officer; Treatment (30) 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; (31) 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 practitioners; -- 17 of 18 -- 18 (32) permit any medical, psychiatrist, psychologist, social worker, counsellor or other mental health professional to disclose details of attendance and compliance with treatment and provide opinions relating to level of risk of re-offending to Queensland Corrective Services if such a request is made; Mental Health (33) comply with any requirements of any order made under the Mental Health Act 2016, or its predecessor, that are not directly inconsistent with the requirements of this supervision order; (34) attend all appointments with a community mental health service, and associated service providers; (35) participate in case management with a community mental health services provider, follow the recommendations made by a community mental health services provider, and discuss, as required, his case management with a Corrective Services officer; (36) permit a Corrective Services officer to disclose to the respondent’s treating psychologist, psychiatrist or other treating medical professional or allied health professional details of the respondent’s treatment; Contact with Children (37) notify Queensland Corrective Services prior to any supervised or unsupervised contact including undertaking any care of children under 16 years of age. Upon request of Queensland Corrective Services, the respondent is required to fully disclose the terms of the order and nature of offences to the guardians and caregivers of the children; 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; Access to Information Technology (38) notify a Corrective Services officer of any computer or other device connected to the internet that the respondent regularly uses or has used; (39) 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; (40) advise a Corrective Services officer of the make, model and phone number of any mobile phone owned, possessed or regularly utilised by him within 24 hours of connection or commencement of use, including reporting any changes to mobile phone details; Pornography (41) notify a Corrective Services officer prior to accessing pornographic images on a computer or on the internet or purchasing or obtaining pornographic material in any other format. -- 18 of 18 --