Attorney-General for the State of Queensland v Loudon [2013] QSC 76

SUPREME COURT OF QUEENSLAND CITATION: Attorney-General for the State of Queensland v Loudon [2013] QSC 76 PARTIES: ATTORNEY-GENERAL FOR THE STATE OF QUEENSLAND (applicant) v KEVIN MICHAEL LOUDON (respondent) FILE NO: BS1208 of 2007 DIVISION: Trial Division PROCEEDING: Application ORIGINATING COURT: Supreme Court of Queensland DELIVERED ON: 26 March 2013 DELIVERED AT: Brisbane HEARING DATE: 15 February 2013 JUDGE: Daubney J ORDER: Application dismissed CATCHWORDS: CRIMINAL LAW – SENTENCE – SENTENCING ORDERS – ORDERS AND DECLARATIONS RELATING TO SERIOUS OR VIOLENT OFFENDERS OR DANGEROUS SEXUAL OFFENDERS – DANGEROUS SEXUAL OFFENDER – REGISTRATION, REPORTING AND LIKE MATTERS – Where the respondent is the subject of a supervision order made under the Dangerous Prisoners (Sexual Offenders) Act 2003 (Qld) (“the Act”) – where the supervision order requires that the respondent comply with a curfew direction or a monitoring direction – where the respondent has applied under s19A of the Act for removal of that requirement from the supervision order – where the respondent contravened the supervision order – whether the application should be allowed. Acts Interpretation Act 1954, s 24AA. Dangerous Prisoners (Sexual Offenders) Act 2003 (Qld), ss 16(A) – (D), 21(6) – (7), 19A Attorney – General v Francis [2007] 1 Qd R 396 COUNSEL: M Maloney for the applicant S Lewis for the respondent -- 1 of 14 -- 2 SOLICITORS: Crown Law for the applicant Legal Aid Queensland for the respondent [1] The Respondent is the subject of a supervision order made under the Dangerous Prisoners (Sexual Offenders) Act 2003 (“the Act”). The supervision order contains a requirement that the Respondent comply with a curfew direction or monitoring direction. The Respondent has now applied under s 19A of the Act for removal of that requirement from the supervision order. Background The Application under the Dangerous Prisoners (Sexual Offenders) Act 2003 [2] On 7 June 2007, Chesterman J (as he then was) made a supervision order pursuant to Division 3 of the Act. That supervision order specified 28 requirements, and was for a term of 10 years, i.e. until 7 July 2017. The supervision order made by Chesterman J did not include a requirement for the Respondent to comply with curfew and electronic monitoring directions. Sexual offending history [3] In May 1985, the Respondent was convicted of carnal knowledge against the order of nature and gross indecency for which he was sentenced to five years imprisonment, with eligibility for parole after 12 months declared. The Respondent was 21 years old at the time. His victim was a nine year old boy, whom the Respondent sodomised and procured to give him oral sex on a date unknown between 13 September 1981 and 13 November 1982. At the time the Respondent was living with the boy‟s mother at Station Creek, which was reportedly a “squatter‟s camp”, in North Queensland. [4] In September 1985, the Respondent was convicted of rape and indecent dealings. He was sentenced to eight years imprisonment with no recommendation for parole. The offences occurred while the Respondent was living at Station Creek in 1981 and 1982. The victim of the offences was the eight year old sister of the victim, mentioned at paragraph [3]. [5] The Respondent was next convicted in the Cairns District Court on 23 May 1995 of indecent dealing and maintaining an unlawful relationship. The Respondent was sentenced to seven years imprisonment, with a recommendation that he be eligible for parole after three years. The offences occurred at Lake Eacham in North Queensland in 1994 and involved five boys aged between nine and twelve. The Respondent showed the boys pornographic magazines depicting adult heterosexual intercourse; and offered money and other inducements to have them perform various sexual acts, including fondling and oral sex, and in which the Respondent participated. [6] In August 2002, the Respondent was found guilty of attempting to unlawfully procure a child under 16 years to commit an indecent act, and of common assault. In August and September 2001 at Lake Placid in North Queensland the Respondent sought to perform oral sex on two boys aged 14 and 15, and offered them payment of money if they acquiesced. The Respondent was released on probation for two years after spending 291 days in pre-sentence custody. -- 2 of 14 -- 3 [7] In June 2005, while on bail, the Respondent was convicted for breach of a bail condition granted by the Cairns Magistrate Court on 7 March 2005 that he was to have no contact with any child under 16 years unless the child was accompanied by and remained in the company of the child‟s parent or legal guardian. On 17 June 2005 in Mareeba, the Respondent was found as a passenger in a car with 17 year old male driver and a 13 year old male passenger. The Respondent was planning to go camping with the boys. [8] In May 2004, while on probation and bail, the Respondent was found guilty of wilful exposure and genital touching at Edmonton in North Queensland. The offences were committed on 23 May 2004. The victims were two brothers aged six and eight, who had become friends with a 16 year old boy living with the Respondent at the time. The Respondent was sentenced on 8 July 2005 for a term of imprisonment of two years. [9] At about midday on 23 May 2004 the victims went to the Respondent‟s residence. The Respondent was at home by himself and invited the two boys into the lounge room area. The Respondent then showed them pornographic magazines, and exposed his penis to them. The Respondent then touched the penises of both boys and told them to keep what had happen a secret or they would get into trouble. Later in the afternoon the boys left and disclosed what had happened to their mother. Contravention of the supervision order [10] On 5 October 2009, the Respondent was returned to the Supreme Court at Cairns for having breached a requirement of the supervision order that he “respond truthfully to enquiries by authorised corrective services officers about whereabouts and movements generally”. The Respondent had travelled from Townsville to Cairns without permission on 1 October 2009. [11] When the warrant was returned, the Applicant filed a further application seeking an order that the supervision order made by Chesterman J be amended by inserting a requirement that the Respondent comply with a curfew direction or monitoring direction. [12] The amendment was requested as a consequence of amendments to the Act in 2007 which required, in effect, that a requirement for compliance with curfew and electronic monitoring directions be a mandatory addition to a supervision order following a contravention.1 [13] On the hearing of the contravention proceeding under Part 2 Div 5 of the Act, Cullinane J was satisfied that the Respondent had contravened the supervision order. His Honour amended the exiting supervision order by including a requirement (requirement (xxix)) that the Respondent comply with a curfew direction or monitoring direction. The Respondent was then released from custody on the terms of the amended supervision order. [14] The Respondent has now applied for removal of that requirement that he comply with a curfew direction or monitoring direction. 1 Section 21(6) and (7); s 16(1)(da) -- 3 of 14 -- 4 The Legislation [15] Section 16(1) relevantly provides that a supervision order must contain a requirement that a prisoner “comply with a curfew direction or monitoring direction”. [16] Part 2 Division 3 Subdivision 2 contains provisions relating to “Directions to released prisoners”: “16A Curfew and monitoring directions (1) The purpose of this section is to enable the movements of a released prisoner to be restricted and to enable the location of the released prisoner to be monitored. (2) A corrective services officer may give 1 or both of the following directions to the released prisoner – (a) a direction to remain at a stated place for stated periods (curfew direction); Example – A direction to remain at the released prisoner‟s place of residence from 2.30p.m. to 7.00p.m. on school days, if the prisoner is not required to be at a place of employment during these hours (b) a direction to do 1 or both of the following (monitoring direction) – (i) wear a stated device; (ii) permit the installation of any device or equipment at the place where the released prisoner resides. (3) A corrective services officer may give any reasonable directions to a released prisoner that are necessary for the proper administration of a curfew direction or monitoring direction. (4) A direction under this section must not be directly inconsistent with a requirement of the relevant order for the released prisoner. 16B Other directions (1) A corrective services officer may give a released prisoner a reasonable direction about – (a) the prisoner‟s accommodation; or Example – a direction that the released prisoner may only reside at a place of residence approved by a corrective services officer (b) the released prisoner‟s rehabilitation or care or treatment; or -- 4 of 14 -- 5 Example – a direction that the released prisoner participate in stated treatment programs (c) drug or alcohol use by the released prisoner. (2) A direction under subsection (1) may relate to a matter even though the relevant order imposes a requirement about the matter, either generally or specifically. (3) However, the direction must not be directly inconsistent with a requirement of the order. 16C Criteria for giving directions (1) A corrective services officer may give a direction under this subdivision or a direction mentioned in section 16(1)(db) only if the officer reasonably believes the direction is necessary – (a) to ensure the adequate protection of the community; or (b) for the prisoner‟s rehabilitation or dare or treatment. (2) In this section – reasonably believes means believes on grounds that are reasonable in all the circumstances of the case. 16D Requirement under order to comply with directions not affected Sections 16(1)(da), 16(1)(daa), 16A and 16B do not limit section 16(1)(db).” [17] The amendment of supervision orders is governed by Part 2 Division 4. Relevant for the present case is s 19A: “19A Removal or reinstatement of requirement to comply with curfew direction or monitoring direction (1) This section applies to a requirement of a supervision order or interim supervision order that a released prisoner comply with a curfew direction or monitoring direction. (2) The court may, on application by the released prisoner, remove the requirement if the released prisoner satisfies the court on the balance of probabilities that the adequate protection of the community can be ensured without the requirement. (3) An application under subsection (2) may only be made – (a) for the first time, after 2 years from the date the requirement was included in the order; or (b) if paragraph (a) does not apply, after 1 year from the date an application by the released prisoner under this section was last decided. -- 5 of 14 -- 6 (4) At the hearing of the application, the chief executive may place before the court evidence of the released prisoner‟s compliance, or noncompliance, with the order. (5) The court must have regard to the evidence placed before it under subsection (4) in considering whether the adequate protection of the community can be ensured without the requirement. (6) The court may, on application made at any time by the chief executive with the Attorney-General‟s consent, reinstate a requirement of a supervision order or interim supervision order removed under this section.” Decision by Queensland Corrective Services (“QCS”) [18] On 7 September 2012, the Respondent‟s solicitor wrote to QCS asking that requirement (xxix) be removed from the supervision order. [19] On 12 November 2012, the Commissioner of QCS made a decision in relation to the request. The “matter to be determined” was stated in the Commissioner‟s decision as being “whether or not [the Respondent‟s] curfew and electronic monitoring requirement ought to be removed”. [20] I observe parenthetically at this point that these references by both the Respondent‟s solicitor and the Commissioner to removal of the requirement are a little distracting. The Commissioner has no power to remove a requirement from a supervision order. The requirement on the Respondent is that he comply with curfew directions and monitoring directions. Section 16A confers on QCS officers the power to make curfew directions and monitoring directions. If those directions are made, then the requirement under the supervision order compels compliance with the directions. The QCS officers on whom that power to make a curfew direction or a monitoring direction is conferred also have the power to amend or repeal any such direction – Acts Interpretation Act 1954, s 24AA. [21] It is clear enough that, after the supervision order was amended by Cullinane J, both a curfew direction and a monitoring direction were given to the Respondent, and he was thenceforth required to comply with those directions. It is also clear enough that the Respondent‟s solicitor‟s request was, in substance, for those directions to be rescinded or repealed, and that the consideration by the Commissioner was whether to accede to that request. [22] The Commissioner‟s decision was that the curfew direction would be withdrawn, but that “GPS monitoring [was] to remain”, i.e. the monitoring direction would not be rescinded or repealed. [23] In the course of assessing the request to rescind the monitoring direction, the Commissioner identified the following “matters supporting need for monitoring requirement”:  “Enhanced ability for QCS to supervise offender in the community  Enable monitoring of basic movement patters  Minimise potential victim access and exposure to high risk offending situations  Effective risk management tool -- 6 of 14 -- 7  Length of time subject to electronic monitoring  Recent compliance with supervision order  Treating psychologist suggests his risk of recidivism remains high and treatment and strict supervision is still required  Has previously contravened order requirements – dishonesty related  Any other matters the decision maker wishes to consider” [24] The Commissioner identified the following “matters supporting removal of monitoring requirement”:  “length of time subject to supervision order  No major breaches requiring a return to the Supreme Court since 2009  Obtained stable and permanent accommodation  Any other matters the decision maker wishes to consider” [25] In her affidavit filed in opposition to the present application, the Commissioner said: “20. In relation to the decision to retain the electronic monitoring requirement, a number of factors supported this decision, namely: (a) The enhanced ability for QCS to supervise the respondent in the community; (b) To enable monitoring of the respondent‟s basic movement patterns; (c) To minimise potential victim access and exposure to high risk offending situations; (d) To be utilised as an effective risk management tool; (e) The length of time subject the respondent has been subject to electronic monitoring; (f) The recent compliance with the supervision order; (g) The respondent‟s treating psychologist suggests his risk of recidivism remains high and treatment and strict supervision is still required; (h) The respondent has previously contravened order requirements – dishonesty related; and (i) Any other matters the decision maker wishes to consider.” [26] I should note in passing that this is not an application for judicial review of the Commissioner‟s decision. It is an application under s 19A of the Act for the removal from a supervision order of a requirement that the Respondent comply with a curfew direction or a monitoring direction. I will return to this point shortly. [27] In evidence before me, the Commissioner, Ms Morrison, confirmed the significance of the role of GPS monitoring in the context of controlling risk. The Commissioner was referred to examples that she had given in her reasons for decision about swimming places visited by the Respondent, and gave the following evidence: -- 7 of 14 -- 8 “Well, you say-----?-- What we – what we they are environments that tend to have children under the age of 16. Right. But his, you accept, offending technique is more one of grooming, where he‟s in long-term or long time relationships with people, involved with the children, that gives him time to develop a rapport?-- Yes, and that was significant to the decision to continue with GPS. If I can explain? Yes?-- GPS allows us to see the habits. It allows us to see those places and spaces where the DPSOA offender is frequenting. Allows us to see patterns that might be – for example, continuing to go to the same point, spending a lot of time there. If that occurred our case management process would be to talk to him----- Mmm?-- in terms of what he‟s doing there and, if necessary, do collateral checks that allow us to know whether – whether or not there are risks in that environment, that he may be grooming or risks of that environment that would appear associated with his offending pattern. So, it does actually give us an ability to recognise areas of risk where he may actually be grooming.” [28] The Commissioner was cross-examined further on the proposition that psychological evidence made it clear that the Respondent is not an opportunistic offender. She referred to the Respondent‟s breach in 2007, when the Respondent went somewhere without QCS knowledge, and noted that GPS monitoring enables QCS to check where the Respondent is, in terms of the environments he is frequenting, and also enables QCS to check that information against information the Respondent provides in case supervision. She said: “It allows us to monitor him for being in high risk situations. It allows us to know what he‟s not telling us, in terms of his habits, the people he‟s associating with, and potentially where he may be grooming.” Psychological evidence [29] In April 2010, Mr Phillip Walkley, forensic psychologist, was commissioned by QCS to undertaken counselling and treatment of the Respondent as part of the requirements of the supervision order. Mr Walkley commenced providing counselling and treatment to the Respondent in May 2010. Mr Walkley has provided a number of reports in the course of that treatment. Those reports were before me in evidence. Mr Walkley also gave oral evidence. [30] Mr Walkley‟s first report is dated 6 December 2010. Mr Walkley described the Respondent‟s presentation at that time as follows: “Since being involved with Mr Loundon (sic), he has been (sic) has made very little progress with regards identifying his innate sexuality, what motivate him to offend and consequently, has made little if any obvious gains in developing strategies to deal with his deviant sexuality. It must be said though that despite this sort of empirical & reality-based outcome – he has managed to not reoffend for the time he has been released. Never-the-less, all the while during the course of our involvement, he has been consistent with the notion of his innocence and his commitment to clear his name. He persists with this idea that he has never offended, has never been guilty of anything but is rather the subject of a conspiracy.” -- 8 of 14 -- 9 [31] Mr Walkley concluded that report by noting: “To date, progress has been slow and quite difficult but I do anticipate that he will start to address his offending but this is going to take an extremely long time.” [32] Mr Walkley‟s next report is dated 20 July 2011. Mr Walkley described the Respondent‟s presentation as follows: “[The Respondent] continues to resist any notion of culpability in terms of his previous offences. He sees himself as a victim and has made no attempts to move from that position. I believe he is heavily invested in this and after this period of time, it is most unlikely that he will make a move in a positive direction.” [33] Mr Walkley‟s third report is dated 27 March 2012. In relation to the Respondent‟s presentation, Mr Walkley said: “As previously reported, Mr Loudon resists and denies any notion of culpability with regards his previous offences. Over the years Mr Loudon has invested heavily on a psychological basis, in a notion that he is a victim of conspiracies and circumstance and that his life, as a result, has been seriously affected and he will never have a life that other people live. I do not believe that it is likely in the foreseeable future that Mr Loudon will move on from this position. As such, dealing with issues related to offending is a very difficult proposition for him. His tendency upon such opportunities taken is to respond with anger, heightened levels of anxiety, withdrawal and a level of truculence not often seen.” [34] Mr Walkley‟s report continued: “Of course, the change to the GPS monitoring was an event for Mr Loudon that proved to be quite an anxiety-producing event. He exhibited panic and did not know how he was going to cope, given the intrusion as he saw it, into what he does and how he lives his life. As is so often with the case with Mr Loudon, the reality proved to be something he was able to manage and aside from the present annoying issues related false positives and messages received on his device, he is managing with the realities of his Order. Mr Loudon is very much consumed at the present time with redressing his circumstances under the legal process with regards his GPS monitoring and other aspects of his Order. He is of the view that he has been fully compliant with the Order, aside from the obvious lapse which instigated his monitoring through the bracelet several years ago. On all of the other matters, he feels he has been fully compliant and feels that he no longer needs to be monitored as he presently is. -- 9 of 14 -- 10 He is also engaged in seeking a redress of other aspects of his Supervision Order; all of which relates to a sense of empowerment that he feels that such an engagement gives him. He has an overwhelming feeling that he is powerless and helpless against the forces already against him and that by taking on „the system‟, he feels that he has given himself back some control.” [35] Mr Walkley‟s most recent report is dated 5 December 2012. The Respondent‟s presentation was noted to be as follows: “From a clinical point of view, Mr Loudon continues to maintain quite an improved presentation compared to his long period of high levels of anxiety, perceived high stress and in Post Traumatic Stress Disorder symptoms. He‟s now calm, very settled, clear thinking and re-engaged with his natural sense of humour. There is an absence of agitation, his anxiety appears quite well-managed and under control and I found no evidence during the course of our time together of the quite obvious arousal symptomatology secondary to his post-trauma Disorder hitherto seen.” [36] This report noted that the Respondent was continuing to work towards effecting changes to the supervision order. Mr Walkley observed: “On this, Mr Loudon is of the view he has acted in such a way as to demonstrate trustworthy behaviour and feels this behaviour should be recognised and rewarded by the removal of his GPS locating device.” [37] Mr Walkley was asked to comment on whether the GPS monitoring device had been functioning as a deterrent for the Respondent. Mr Walkley said: “I don‟t think there is any question the GPS locating device has had a significant role in limiting Mr Loudon‟s attendance at locations which are problematic for the Department and which are deemed to be high-risk. I do not believe any argument can be made that removing the GPS locator would in any way reduce his risk profile. Having said that Mr Loudon (and I am not altogether aware of any evidence to the contrary) suggests that aside from his previous contravention in 2009 when he went to Cairns with his friend and in so doing incurred the response of the Department leading to have a GPS monitor device affixed to him he has not contravened any directions. This is not to say he has not sought permission from the Department to go to places which may be considered to be high-risk but in terms of compliance with the directions of the Department, I do believe there is some merit in his supposition that he has acted in a manner which is trustworthy and in abidance with the Department‟s requirements. In terms of the risks posed by Mr Loudon vis-à-vis the GPS monitoring device, a review of Mr Loudon‟s offending history reveals his offending on each occasion resulted from him taking advantage of developing, fostering and then offending within a relationship he had developed with either the victim themselves or individuals who had the care of these children. I find nothing in his history which suggests Mr Loudon offends in the nature of a mobile predator or one who takes opportunistic chances which spontaneously present themselves to offend against vulnerable children. -- 10 of 14 -- 11 More so and clearly from his history, he is a man who takes advantage of a trusting and bonded relationship and through these mechanisms seeks to avail himself of the sexual gratification associated with his paedophilia. Hence, Mr Loudon‟s risk of re-offending would certainly be exacerbated if he were to be within a relationship with perhaps the mother or father of young children or in places whereby children were able to spend considerable time with him so he could build the trusts upon which to base his offending. Whether removing his GPS would afford him greater opportunity to so groom his future victims is a question that cannot be answered with great certainty. Certainly without the GPS Mr Loudon would be more able to go to places whereby he could engage in such behaviours because there would be no monitoring of where he was going. However, it has been a significant period of time since Mr Loudon‟s last offending. He was last sentenced and incarcerated for offences in 2004 for which he served his term of imprisonment and then released in July 2007. From my involvement with him I can ascertain no episodes of sexual behaviour from this man since release. If this is indeed the case, he has managed to manage and control any deviant sexual urges well enough so as to not reoffend in any manner since release. It would seem if his need to gratify his sexual deviance was strong enough, by now ample opportunity to reoffend would have presented themselves to this man. That he has managed to remain offending free does go to the issue of what risk he continues to pose. Presently Mr Loudon is a 49 year old man. There is evidence that as sex offenders, particularly paedophiles, advance in their years, their potential for further offending also diminishes. This is a factor that could be considered in any decision to remove or otherwise deal with Mr Loudon‟s GPS monitoring. I do note Mr Loudon‟s Order runs through to July 2017 and as such at least another five years of involvement with the Department and being subject to the provisions of a Supervision Order are indicated. In summation then, to remove the GPS would not in any way diminish the risks posed by Mr Loudon, due to the realities posed by the lack of surveillance which would then occur. Whether-or-not his risk of re-offending is exacerbated in any way because of this lack of supervision is also a question answered in the affirmative. I believe his monitoring device would afford a greater sense of management of his risk potential.” [38] In any evidence before me, Mr Walkley elaborated on his opinion that removal of the GPS would not in any way diminish the risks posed by the Respondent due to the realities posed by the lack of surveillance which would then occur. He said that this was his logical conclusion and that if the information available from a GPS tracking devise is not part of the monitoring program for the Respondent then that information is not available and the risk that results is a different risk than that present if GPS monitoring is in place. Under cross-examination, however, Mr -- 11 of 14 -- 12 Walkley confirmed that his view that the removal of the GPS monitoring would exacerbate the Respondent‟s risk of re-offending was not just a matter of logic rather than a psychological position, but said that the considerations are not “mutually exclusive”. The Respondent’s evidence [39] An affidavit by the Respondent was filed and read in support of the application. The Respondent explained the circumstances surrounding the 2009 contravention of the supervision order, and said that he would never make this type of mistake again. The Respondent described being subject to the curfew direction and the monitoring direction and also the fact that, in addition to the monitoring direction, he is required to disclose his travel plans. [40] With respect to the monitoring direction, the Respondent said that the wearing of the monitoring device has caused him “stress and anxiety” during his time in the community. The weather in Townsville means he is unable to wear long pants, which means the device is difficult to conceal. He tries to cover the device when he swims, but says that when the cover has come off he has felt that he had to leave the area immediately “for fear of what would happen if someone there recognised it for what it is”. He said that he has been verbally abused on an occasion when the device was recognised. The fear of being assaulted or abused causes the Respondent stress and anxiety. The Respondent said that the device also prevents him from doing his grocery shopping properly, because it goes off after 20 minutes of being in a shopping centre. He said: “I have found that wearing the device and being subject to a curfew has prevented me establishing a normal social life. When I am at social events I find myself watching the clock and leaving very early to ensure that I do not breach curfew.” [41] An affidavit was also filed exhibiting a number of references from friends and acquaintances of the Respondent. These referees speak positively about the Respondent‟s behaviour and also refer to the social difficulties which the Respondent encounters as a consequence of having to wear the GPS monitoring device. Discussion [42] As I have already noted, this is not an application for judicial review of the Commissioner‟s decision not to rescind the monitoring direction. Even less is this any sort of “merits review” of the Commissioner‟s decision. This is an application under s 19A of the Act for removal of a requirement in the supervision order that the Respondent comply with a curfew direction or a monitoring direction. [43] Section 19A(2) makes it clear that it is for the Respondent, on an application such as this, to satisfy the Court “on the balance of probabilities that the adequate protection of the community can be ensured without the requirement”. Matters of personal appearance or discomfiture to the Respondent are not relevant to the test prescribed by s 19A(2). -- 12 of 14 -- 13 [44] In Attorney-General v Francis,2 the Court of Appeal confirmed3 that, for the purposes of the Court deciding whether to make an order under s 13 of the Act, the Act does not contemplate that the arrangements to prevent the risks of contravention be “watertight”. The Court said: “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.” [45] In an application under s 19A, the onus rests on the Respondent to satisfy the Court on the balance of probabilities that such adequate protection can be ensured without the requirement that the prisoner comply with a curfew direction or monitoring direction. The evidence adduced on this application does not allow me to be so satisfied. As I have already said, the question for consideration has nothing to do with questions of comfort and convenience for the Respondent. Even less is it relevant that the Respondent might consider that his compliant behaviour to date merits some sort of “reward” in the form of removal of the requirement. It is quite clear from the evidence of the Commissioner that the requirement that the Respondent comply with a monitoring direction goes to protecting the community against a risk that the Respondent will engage in conduct, namely repeated frequenting of particular locations, for the purpose of grooming or otherwise establishing a relationship which may escalate into a situation of further offending. The utility of a monitoring direction for that purpose was unequivocably confirmed by Mr Walkley, who thought there was no question that the GPS locating device worn pursuant to the monitoring direction “has had a significant role in limiting [the Respondent‟s] attendance at locations which are problematic for [QCS] and which are deemed to be high risk”, and who expressed the opinion that the monitoring device affords a greater sense of management of the Respondent‟s risk potential. [46] Mr Walkley‟s reports do indicate the progress which has been made by the Respondent in the course of his several years‟ treatment with Mr Walkley. That being said, Mr Walkley concluded his last report by noting further matters in respect of which it is envisaged the Respondent will need assistance, including: “Working on recognising his sexual offending in such a manner as to assist him to develop at least a modicum of understanding as to what risk he poses and what steps he needs to take to ensure these risks are mitigated”. [47] In that same report of 5 December 2012, Mr Walkley noted the Respondent‟s view that the Respondent “has acted in such a way as to demonstrate trustworthy behaviour and feels this behaviour should be recognised and rewarded by the removal of his GPS locating device”. As I have already said, this is certainly not a proper consideration for the purposes of s 19A(2). Importantly, however, it highlights the fact that the Respondent appears not to appreciate that the present application is not just about him, but is primarily about whether adequate protection of the community can be ensured without him being subject to a requirement of 2 [2007] 1 Qd R 396. 3 At [39]. -- 13 of 14 -- 14 compliance with a monitoring direction, and reinforces my conclusion that he has not discharged the onus of satisfying me of the matters referred to in s 19A(2). [48] In my view, and having regard particularly to the evidence of the Respondent‟s treating psychologist, the Respondent has not demonstrated on the balance of probabilities that adequate protection of the community can be ensured without the relevant requirement. The utility of that requirement in the Respondent‟s present situation was confirmed by the Commissioner‟s evidence, and that has in no way been displaced by any evidence from the Respondent. I have also had regard to the fact that the evidence discloses that there has been no non-compliance with the requirements of the supervision order since the breach incident in 2009, but consider that is outweighed by the psychologist‟s evidence concerning the residual risk presented by the Respondent and the role which is played in managing that risk by use of the monitoring device. [49] Accordingly, the application by the Respondent is dismissed. -- 14 of 14 --