Attorney-General (Qld) v Edwards [2008] QCA 156

SUPREME COURT OF QUEENSLAND CITATION: A-G (Qld) v Edwards [2008] QCA 156 PARTIES: ATTORNEY GENERAL OF QUEENSLAND (applicant/respondent) v EDWARDS, Travice Allan (respondent/appellant) FILE NO/S: Appeal No 11901 of 2007 SC No 8456 of 2007 DIVISION: Court of Appeal PROCEEDING: General Civil Appeal ORIGINATING COURT: Supreme Court at Brisbane DELIVERED ON: 20 June 2008 DELIVERED AT: Brisbane HEARING DATE: 13 May 2008 JUDGES: Holmes JA, Mackenzie AJA and White J Separate reasons for judgment of each member of the Court, each concurring as to the orders made ORDER: 1. Appeal allowed, order at first instance set aside 2. Order that the appellant be released from custody subject to, for a period of 10 years, the conditions of the supervision order which is a schedule to this judgment CATCHWORDS: APPEAL AND NEW TRIAL – APPEAL – GENERAL PRINCIPLES – RIGHT OF APPEAL – INTERFERENCE WITH JUDGE’S FINDINGS OF FACT – FUNCTIONS OF APPELLATE COURT – WHERE FINDINGS CLEARLY WRONG – GENERALLY – where order made for continued detention of appellant pursuant to s 13(5) of the Dangerous Prisoners (Sexual Offenders) Act 2003 (Qld) – where primary judge was under a misapprehension as to nature of psychiatric and other evidence – whether decision to make detention order rather than supervision order supported by adequate reasons – whether a supervision order with appropriate conditions can adequately protect the community on the appellant’s release Corrective Services Act 2006 (Qld) Dangerous Prisoners (Sexual Offenders) Act 2003 (Qld), s 13, s 17 A-G (Qld) v Beattie [2007] QCA 96, cited -- 1 of 20 -- 2 A-G (Qld) v Edwards [2007] QSC 396 Attorney-General v Francis [2007] 1 Qd R 396; [2006] QCA 324 Attorney-General for the State of Queensland v Sutherland [2006] QSC 268 COUNSEL: B G Devereaux SC, with J D Briggs, for the appellant J B Rolls for the respondent SOLICITORS: Legal Aid Queensland for the appellant Crown Law for the respondent [1] HOLMES JA: On 20 December 2007, on the application of the Attorney-General, the learned judge at first instance found, pursuant to s 13 of the Dangerous Prisoners (Sexual Offenders) Act 2003 (Qld) that the appellant was a serious danger to the community. Section 13(5) identifies two possible orders on such a finding: “[T]he 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)”, while s 13(6) adds this stipulation: “In deciding whether to make an order under subsection (5)(a) or (b), the paramount consideration is to be the need to ensure adequate protection of the community.” The learned judge made an order pursuant to s 13(5)(a) that the appellant be detained in custody for an indefinite term of control, care or treatment. [2] The appellant does not challenge the finding that he is a serious danger, but he appeals against the continuing detention order. He contends that the learned judge fell into error in making it, rather than a supervision order under s 13(5)(b), primarily because he misunderstood the evidence of the psychiatrists called as witnesses. Specifically, it is said, his Honour wrongly regarded the psychiatric opinion as being that the appellant needed to undergo a particular form of graduated release from custody, absent which he would pose a high risk to the community. Since that form of release was not available under the relevant legislation, his Honour went on (in the appellant’s contention, wrongly, and without applying the principle in Attorney-General v Francis1 ) to reach the conclusion that the community could not be adequately protected by a supervision order. The appellant was, moreover, denied natural justice, since he had no notice that the unavailability of graduated release in that form would play any part in his Honour’s conclusions. The appellant’s background, offences and imprisonment [3] The appellant was born in 1970. He is Aboriginal, identifying as Wakka Wakka, and lived for some time as a child at Cherbourg. His childhood was disrupted and difficult. On his account to the psychiatrists who examined him, his mother was beaten to death by her white partner, in his presence, when he was nine years old. 1 [2007] 1 Qd R 396; [2006] QCA 324. -- 2 of 20 -- 3 He was then placed with his younger sister in foster care, where both were physically abused. He took to petty offending and was sent to a series of children’s institutions, culminating in a period at the Westbrook detention centre. As a young man, he was convicted of offences of dishonesty, wilful damage and, on two occasions, of aggravated assault on females. He was also convicted of a number of offences suggesting a defiance of authority: three breaches of the Bail Act 1980 (Qld), a breach of probation, a breach of a community service order and escape from legal custody. Meanwhile he became a regular user of marijuana, heroin and amphetamines. In the early 1990s he married; he and his wife suffered a blow when their son was stillborn. Subsequently, while his wife was pregnant with their daughter, the appellant committed the offences which led to the application here. [4] Those offences were rapes committed on three different girls. The first, committed in April 1993, involved an 18 year old complainant whom the appellant had met through relatives. He asked her to drive him to see a mutual friend and then persuaded her to detour into a forest on the pretence that he needed to check on a cannabis crop. There, he raped her; afterwards she drove him home before making a complaint to the police. The second complainant was a 12 year old girl whom the appellant had met through an uncle at the beginning of August 1993. He pretended that he did not know how to use an automatic teller machine and asked her to help him. Again, on a pretext, he made a detour into a forest, stopped the car and raped the girl. He took her home afterwards. Two weeks later he raped a third girl whom, again, he knew through relatives. He used a similar modus operandi, persuading her to travel with him to see a cousin, taking a purported shortcut through a forest and stopping the car on the pretence there was something wrong with the tyres. When she got out of the car, he tripped her, held her down and raped her. Then he drove her to her sister’s house. [5] All three complainants suffered bruising, but no other physical injury. Each was white; the appellant explained later that he had selected them as victims as a means of retaliating against white people at large for his perceived ill-use by them. He was sentenced for the rapes on 28 October 1994, when he was 23 years old. The longest of the three concurrent terms of imprisonment imposed on him was 14 years, with a recommendation for consideration for parole after six years. His full time release date was 21 December 2007 (presumably allowing for some pre-sentence custody.) [6] After some time in custody, the appellant was divorced from his wife, but he maintained contact with their daughter. At the beginning of his sentence, he committed a number of disciplinary breaches, but from about 2000 his conduct improved. He undertook all the programmes recommended for him, including the Sexual Offenders Treatment Programme (SOTP). Initially he made a poor start to that programme, but changed his approach to complete it with considerable success in September 2001. According to the exit summary prepared in respect of him, he had demonstrated "full acceptance of his culpability and responsibility for committing the offences"; and his ability to empathise with his victims was described as "quite high". At that time his risk of re-offending was assessed as “moderate - high”, primarily because of his high score on the Static-99 instrument, which is based on historical factors. [7] In 2004, Dr Kar, a psychiatrist, reported on the appellant in connection with a possible release to work. As recounted in a later report, Dr Kar’s opinion was that the appellant had shown a “sustained and genuine change of attitude” in his -- 3 of 20 -- 4 behaviour which led him to think the appellant suitable for work release with appropriate support and supervision, major risk factors being substance abuse and his associates. In late 2004 the appellant was given release to work, but after two months breached his conditions by being some hours late in returning to custody after attending a family funeral at Cherbourg. As a result, his work release was cancelled and he was convicted of being unlawfully at large. The psychiatric evidence [8] Towards the end of the appellant’s sentence, three psychiatrists, Dr Beech, Dr Moyle and Dr James, were asked to examine him for the purposes of an application under the Dangerous Prisoners (Sexual Offenders) Act 2003 (Qld). As well as reporting, they gave evidence before the learned judge at first instance. Since their evidence, and his Honour’s apprehension of it, are at the heart of this appeal, I have set out substantial passages from it, italicising those parts particularly relevant to the questions of the type of release they were contemplating and the risk they regarded the appellant as posing to the community. [9] Dr Moyle interviewed the appellant in November 2006, at the Wacol Correctional Centre. At that time the appellant had still a year to serve. Aware of his return to custody for breaching the release to work order, Dr Moyle made this comment: “I would be of the view that his inmate behaviour has indeed improved over the last 2 years quite significantly but he still needs a gradual reintroduction to the community. This would ideally allow mistakes to occur and learning to take place with possible returns to custody when necessary as has happened this time. I believe that his current sentence is formally over in 2008. If he were to have repeated opportunities to go into the community and back if he finds it too difficult then he may indeed be able to practice what he is learning, and in the longer term there is the prospect that he will pose less of a risk than if held in ongoing custody until his release. Short-term community risk may yield possible longer term community safety. I cannot say this with any certainty but it seems to have face validity in the absence of reliable studies that show effective approaches to manage problem behaviours like Mr Edwards shows to the required standard set by the community, i.e. absolute non re-offending. As regards the type of offending he is likely to indulge in the community, I have to say he has been criminally versatile, but the most serious offending against others have been repeated sexual offending with hands on offences from his childhood, with little signs this has abated with age, and no recent opportunity to spend time free from supervision to reassure himself that he is able to do so. ” [10] Later in the report, in the context of risk assessment, Dr Moyle returned to the advantages of supervised release while the appellant remained under sentence: “Assessment of risk based on both actuarial and clinical assessments in my opinion suggest that unless he can learn to use the lessons learned in custody to modify any urges he has in the future to rape a white woman, a previously highly enjoyable activity, then he will -- 4 of 20 -- 5 more likely than not re-offend. The best way to lower that risk in my opinion, is to increase over time his exposure to the community with close supervision not only of his behaviour, but also how the community reacts to him, so that any disquiet is managed increasingly in the community, but when he feels at risk he is returned to custody. … It is my opinion that unless Mr Edwards can show he can survive well in the community over the next year he is more likely than not to re-offend in a violent sexual way from the time he is released to the community at the end of his sentence early 2008.” [11] Dr Moyle outlined in his report what he saw as the positive and negative aspects of the appellant’s presentation and background: “His sexual misbehaviours have been relatively quiescent as far as we can objectively tell in the jail with relatively few comments on sexual behaviours while in jail. However his sexual offending was escalating in severity and in frequency up to this imprisonment and in jail good behaviour doesn’t always translate into community good behaviour when the opportunity to offend is reawakened in people as antisocial and psychopathic as Mr Edwards. However by my assessment there are several positive signs, not the least his good intelligence and capacity to learn, his identification with positive elements of the aboriginal culture, including his devotion to his art work, his clean urines recently and no reports of serious misbehaviour or emotional dyscontrol; eg using his body as a means of expressing disquiet and anger, and his better compliance in recent times with signs he can now differentiate people who are not worthy of his respect at any one time irrespective of race, although I would prefer it if he can see behaviours as not worthy of respect, therefore allowing for individuals to make errors without rejecting them completely.... On the negative side, is his life time of entrenched misbehaviour, drug and alcohol abuse, impulsivity, emotional dyscontrol [sic], or controlled use of emotions and threats to get what he wants immediately, with no remorse or significant concern for others rights and feelings, at least in a positive sense, (he knows he can use peoples [sic] fear of him to extract his wishes from them against their will and this has an exiting [sic] element to it which suggests sexual sadism), his irresponsibility, his using excuses not available to him, even in jail, to avoid work (too sick to work where I can find no illness that in the community would render him too sick to work), his not saving and planning for the future, his proud ability to fool white people, and his partly developed release plan.” [12] At the hearing of the s 13 application in December 2007, counsel for the Attorney-General asked Dr Moyle what he considered the appellant’s risk of re- offending to be. He responded: -- 5 of 20 -- 6 “Well, he still rates - if you just rely on the - on the - I guess the objective and quasi objective data he still rates high. That’s largely based on historical fact. Yes?-- I think he’s - he’s worked well in the prison system. He’s had some exposure to the outside world. I believe that was up until he got a seven day addition to a sentence for not returning on time. I don’t - my understanding is - I haven’t seen him for 15 months, but my understanding is that he hasn’t been exposed to the outside world since then. But there’s no real signs that he’s - has an ongoing investment in indulging those sort of sexual fantasies in a serious way such that he plots and plans and to act in a sexually violent way. But as I said, this man is institutionalised. He’s been living in institutions off and on since he was a child. He knows how to survive in institutions, he knows how to relate to people. He has - he has – he has a great ability to do that and it’s going to take him some time, I believe, to adapt to a non-institutional type lifestyle and that’s – that could be associated with some stressors, some emotional distress, the availability of intoxicants, various factors that might decrease the very good intentions he has at the moment. So, I think overall what does that do to risk? I’m aware of some provisos I’ve just added to saying that the risk might be quite high, but I think his risk is actually quite lower than it was when he first came into prison and probably down to the moderately high range at the moment.” [13] Counsel invited Dr Moyle to consider the terms of a suggested draft supervision order which had been tendered as an exhibit, and questioned him in relation to it: “Now, how far would an order in those terms go towards managing the risk of re-offending?-- I think given his level of development where he is already at the level where he can engage the community and start moving out, which is an advanced level in a sex offender program, I think these sort of orders will go a long way towards lessening the risk to the community still further if they are complied with. Would it reduce the risk that you mentioned earlier that he is at a moderately high risk of re-offending?-- I think it would. Are you able to say to what extent?-- I wouldn’t like to go below moderate level of risk or to a moderately high risk. I would like to see it after about - I would be willing to do that after about six months or so in the community. And that’s consistent with your stated opinion that he ought to be released either gradually or in some sort of transitional type arrangement?-- I would think so. It’s going to be very difficult for this man to feel comfortable. That would be the best way to manage his release; is that correct?-- That’s my opinion.” -- 6 of 20 -- 7 [14] In cross-examination, Dr Moyle agreed that the appellant’s participation in a sexual offenders’ maintenance programme in the community would be ideal. The appellant’s behaviours in gaol and his attitudes in recent times were “very positive” and the appellant’s insight into his own need of assistance was particularly encouraging. In Dr Moyle’s experience of such hearings, the appellant’s case was “one of the better outcomes” from a sex offenders' programme. [15] On 23 November 2007 the appellant was interviewed by Dr Beech. He considered the appellant to have exhibited anti-social personality disorder, showing some signs of maturation since his imprisonment, a polysubstance abuse disorder in remission and a mixed personality disorder arising from post traumatic stress disorder. Dr Beech said this of the appellant’s background and the rape offences: “Early experiences appear to have led to his identification of sexual violence with racial hatred. The latter came about from the circumstances of his mother’s death and his abuse in foster care and were reinforced by the environment of his subsequent detentions and the sub-culture with which he associated when in the community. He has had a very poor ability to handle personal stress, to contain negative emotional states and to control his impulses. This is in addition to a significant array of psychopathic traits including a limited sense of responsibility, a manipulative skill and a parasitic lifestyle. The rapes for which he was sentenced in 1994 occurred during a period of high personal stress, with conflict with his wife and significant drug use. They were planned, callous and with a notion of retaliation or vengeance against white people whom he held generally responsible for his life circumstances and, more proximally, the death of his son. However, while I accept that they were acts of anger, and I can accept his statements that ultimately they were designed to lead to a return to institutional care of some sort, I believe they were also to be seen as sexualised acts of aggression and their eroticised nature together with the manipulated isolation of his victims are suggestive of sadistic traits despite the lack of other violence. His file suggests a significant change has occurred during the course of his detention. Certainly his general behaviour has improved and this includes abstinence from substances. He has participated meaningfully in a sexual offender program and has benefited from it. Earlier impulsivity seems to have matured and he can describe the development of a sense of self and identity. He can voice a change in his view of the world and can reasonably relate childhood events to his offending via his emotional volatility and disturbance. This maturity and insight together with his positive attitude towards intervention are good prognostic indicators. The difficulty arises, as others have noted, in his ability to use his insight and employ his skills in the world outside prison. Of concern is his history of great difficulty in adjusting to the community and even his difficulty in adjusting to relaxation in his security ratings. -- 7 of 20 -- 8 He has a recurrent history of bail and probation violations, has escaped legal custody and has been unlawfully at large. The most recent offence occurred only in 2005 within two months of his work release. The file indicates that even changes in prison to lesser ratings have led to regression and a deterioration in his behaviour. Together this would suggest to me that he would have considerable difficulty adjusting to his release to the community.” He concluded: “Overall, notwithstanding the changes he has made in prison, I believe they are too recent and untested to moderate his risk of violence if he is released without supervision. Without supervision I would consider him to be at high risk of re- offending in a violent way. With appropriate supervision, I would consider the risk to be reduced to moderately high or perhaps moderate provided he was able to abide by the conditions. It would be of assistance if he could have a graduated release into the community. Firstly it would be essential that he is placed in a supportive environment free from drugs and alcohol and free from close contact with criminal peers. It would also be a priority that he be engaged in meaningful employment. He would need to have close personal support. I do not see his current plan addresses this enough. It is essential that close monitoring be maintained so that times of personal stress are detected early and his responses and adjustments are appropriately aided. He needs psychological counselling for this. It is essential that he remain abstinent from substances and alcohol. I would recommend his involvement in a drug and alcohol program in the community. He should participate in a maintenance sexual offender program in the community to assist him personally and to reinforce the personal insights and ability to ventilate and clarify issues as they arise.” [16] Like Dr Moyle, Dr Beech was asked by counsel for the Attorney-General how the terms of the draft supervision order might affect the risk of the appellant’s re-offending on release. He answered: “The order would do that in two broad ways. The first way would be to provide continuing supervision. I think it’s fair to say that there’s a lot of material that suggests that once the general supervision of Mr Edwards reduces he himself has difficulty adjusting to that reduction and regresses both perhaps psychologically but certainly in his behaviour. So I think it’s advisable that there is some continued supervision, monitoring and oversight of Mr Edwards once he’s released into the community. The other way it addresses it is that it provides for counselling, psychological support and his continued participation in programs that would directly address his risk of -- 8 of 20 -- 9 re-offending and I think it’s fair to say that much of the changes that have been seen in Mr Edwards over the past few years have been as a result of support and his participation in programs.” [17] Counsel went on to ask about any change in risk since the appellant had completed the SOTP in 2001. Dr Beech responded: “The evidence that I’ve seen suggests that certainly since he has completed the program that the changes would suggest in a positive way that his overall risk would have been reduced. He still, in my opinion, remains at high risk if unsupervised for - based first simply on actuarial accounts. You know, he has, if you like, a bad track record when it comes to general offending. He has a bad track record when it comes to his offending even in supervision, let alone reduced into the community, and there is continued evidence that he is psychologically vulnerable. So I think unsupervised he remains at high risk. What has changed, I believe, is that I think that with supervision that risk would be reduced to moderately high. And that level of risk, is that contingent upon him complying with the conditions?-- It’s contingent on him complying with the conditions and I believe residing and associating with supportive people rather than people who might have a negative influence on him.” [18] Dr Beech was asked what he had meant by the reference in his report to “graduated release”. He explained: “Well, I think ideally he would be placed where he would be very closely supervised and closely supported and that support would include not just personal and emotional and psychological support and counselling from, you know, not only professional people but from, say, his cultural elders, but that support would include the stable accommodation and assisting him to gain access to gainful employment.” [19] That subject was taken up again in cross-examination when it was explained to Dr Beech that under the legislation a graduated release in the sense of movement backwards and forwards between custody and the community was not available. Counsel pointed out, and Dr Beech agreed, that the conditions of the draft order created a very strict regime, accommodating risk protection strategies identified in Dr Beech’s report. Dr Beech continued: “The one concern is his ability to abide by the conditions and I think that would really depend - it would depend a lot on where he is then placed because if he abides by the conditions then things will go very well but if he breaks even one or two of these conditions you could see that things could quickly go backwards. Abstinence from alcohol consumption and illicit drug consumption would be the primary concerns for you in terms of his risks of re-offending in the community?—Psychological distress and support, alcohol and drugs and an association with I guess peers who would provide a very negative influence would be the three areas that I would see as the most germane to his rehabilitation.” -- 9 of 20 -- 10 A supervision order of the type would, he said ultimately, “reduce [the risk of re-offending] to moderately high and it would go further to moderate depending on his eventual disposition – placement, yes”. [20] The third of the psychiatrists who reported, Dr James, examined the appellant on 15 October 2007. He observed that the appellant’s response to the SOTP had been “very positive”; he had come to understand the dynamic of retribution and revenge behind the rapes he had committed, and had been able to modify the belief system underlying his emotions. Dr James noted that the appellant identified Cherbourg as a place where he would feel compatible and supported, but cautioned that, while that was important in relation to his ultimate goals in the short term, it would be too great a contrast to the ordered environment of prison. Accordingly, he continued: “Although in my opinion there is little further benefit to be obtained from further detention in prison, in terms of enhancing Mr Edwards’ capacity to transfer what he has learned through the Sex Offenders Treatment Programme from the prison environment into the community, it would seem essential that the transition from Mr Edwards’ current prison environment to a culturally appropriate community environment should be gradual, and should take place over sufficient time to allow appropriate networks to be established between Mr Edwards and the community, with the assistance, guidance and approval of Correctional Services. In my opinion, a useful first step might be a period of residence in a less unstructured setting, with further transitional strategies evolving in the first instance from that base. For this to happen successfully, it would seem essential for a Supervision Order to be in place, and for the order to include certain restrictions, such as a total restriction on the ingestion of all intoxicating substances. An undertaking not to contravene the criminal law would also, in my opinion, be an important inclusion, as would attendance at prescribed courses and/or attendance for treatment by identified health practitioners. If such a transition were to be carefully managed, it is my opinion that the risk of any re-offending on the part of Mr Edwards would gradually reduce from the relatively high level indicated by the actuarially-based assessment instruments, but at this point I do not consider that the risk should be seen as less than moderate until a high degree of compliance and cooperation is established by him in the community.” [21] In evidence, Dr James expanded on his thinking as to why the appellant should not go immediately to Cherbourg: “In my opinion that would not be helpful, to go straight to Cherbourg. What I’ve tried to do here is to enunciate some principles that should govern his rehabilitation. I think the translation into more detailed and realistic action is something that would be in the hands of community corrections. These are established in my view as the principles that should govern the process. They should be slow, -- 10 of 20 -- 11 gradual, supported and certainly not including an unstructured or a relatively unstructured community setting at least in the first year.” In cross-examination, Dr James was asked about the effect of the supervision order conditions: “Would you agree with this, doctor, that looking at the conditions of the supervision order that’s proposed that upon an application of these conditions to him in the community that the risk that you’ve identified were he to be released now without the conditions which might be a high risk or a moderately high risk would be significantly lessened?-- Yes, and the degree to which they’d lessen would depend on the intensity of the support that he’s provided within the framework provided by this order. It seems to me essential to have such an order and then for Corrective Services to do everything it can to implement the processes involved.” The appellant’s release plans [22] The appellant swore an affidavit for the purposes of the proceedings, in which he expressed his intention to reside with Ms Sandra Bond at her home. He hoped to find employment as a fork-lift driver or pastry cook, jobs in which he had gained some experience in custody. He had prepared, as part of the SOTP, a relapse prevention plan setting out proposed strategies to deal with circumstances in which he might offend, and he had also formulated a transitions plan identifying his goals on release from custody and plans for achieving them, many of which turned around re-establishing his relationship with his daughter. He expressed his willingness to take part in a community-based sex offenders’ maintenance programme and in any other programme or counselling considered appropriate. [23] Evidence about Ms Bond came from her own affidavit and from an assessment by Corrective Services officers. She was an older, indigenous woman, who was currently employed working a night shift as a carer for a disabled person. Ms Bond had no criminal record, and, indeed, had worked with Corrective Services in the past, as an Aboriginal Liaison Officer at a correctional centre. She had known the appellant’s father and had come to know the appellant when she was employed at the jail where he was imprisoned. Both she and her adult daughter had befriended him, and kept in almost daily telephone contact with him. They shared a suburban house, and were willing to let the appellant live with them, believing that they could offer a positive influence and help him to reintegrate back into the indigenous community. Ms Bond made it clear that she would insist on strict rules as to non-consumption of alcohol and drugs; the appellant would have to help with garden and house maintenance; and she expected him to obtain employment. She had contact with employment and training agencies where she had previously worked and could assist him in getting a job. She was also prepared to help him in developing his relationship with his own daughter. [24] Each of the psychiatrists was asked about the proposal for the appellant to live with Ms Bond. They uniformly described Ms Bond as an utterly suitable person for that role; she was a steady, supportive person the appellant respected and felt a connection with, who had in the past been seen by Corrective Services personnel as an appropriate person to work with prisoners. Dr Beech went so far as to say: -- 11 of 20 -- 12 “I think all I have read about Miss Bond would suggest to me she would be some person you would actually pick … to be a support person for Mr Edwards and for him to reside with.” Each of the psychiatrists emphasised, however, that Ms Bond should be seen as part of a larger team with Corrective Services officers, who would be needed to provide support, oversight of the appellant, particularly during Ms Bond’s night-time absences at work, and objective reports for purposes of risk management. [25] After the psychiatrists had given evidence, and preliminary submissions had been made, the hearing was adjourned for two weeks to enable an assessment of Ms Bond’s premises. Ms Bond’s residence was examined on 13 December 2007 and Ms Bond herself interviewed. The assessment report noted that Ms Bond and her daughter were willing to, and could, support the appellant in his reintegration into the community, and the premises themselves were suitable, presenting no impediment to electronic monitoring or random surveillance checks. However, two nearby yards contained playground equipment, which suggested that children might live there; no closer check was made, presumably because one yard was surrounded by a high fence and the other guarded by a barking German Shepherd. Because it was possible that children resided in nearby houses, because Ms Bond’s grandchildren visited her home (although in the company of their father), and because there was a school in the vicinity, the accommodation offered, although otherwise entirely appropriate, was deemed unsuitable. [26] Unfortunately, the assessment report does not suggest that the probation and parole officers required to undertake the assessment were provided with the reports of Drs Moyle, James and Beech, or advised of the risk issues they had identified as relevant to the appellant. Armed with the information that the complainant for one of the rape offences was twelve years old, the assessing officers focussed their attention on the proximity of children. But the age of that complainant was not identified in the psychiatrists’ reporting as a distinctive feature of the offending; they appear to have accepted that her selection as a victim was not related to her age, but rather to her being a white female to whom the appellant had social access. None of the three psychiatrists identified any paedophilic tendencies on the appellant’s part; but the assessment was undertaken as if that were the primary concern. The reasons for judgment [27] The learned judge at first instance commenced his judgment by setting out s 13 and P D McMurdo J’s helpful analysis of it in Attorney-General for the State of Queensland v Sutherland.2 He went on to outline the appellant’s background and criminal history before setting out the passages he thought significant from the reports of Dr Beech, Dr Moyle and Dr James. (The evidence I have set out above includes, but is not limited to those passages.) His Honour’s conclusions followed: “Each of the psychiatrists who provided reports agree on one thing: that in order for the risk of the respondent re-offending to be reduced, it is necessary that he be reintroduced to the community through a program of gradual release. It was the clear opinion of Dr Beech and Dr Moyle that without such a program there would 2 [2006] QSC 268. -- 12 of 20 -- 13 remain a high risk and, indeed, there might be a high risk for a period of time even with gradual release. The Act does not allow for the gradual release of a prisoner into the community. Although a supervision order can contain a large number of conditions, the mechanisms otherwise available under this legislation do not contemplate the type of release whereby the respondent could return to custody should he feel unable to comply with the conditions and then, after a period, return to the community in the sense described by the psychiatrist …”3 [Some discussion of the suitability assessment followed, his Honour noting that it was not determinative of the application, since other suitable accommodation could presumably be found]. “…. A consideration of the evidence provided by the psychiatrists together with the submissions and arguments put forward both for and against an order leads me to the conclusion that there is acceptable, cogent evidence that satisfies me to a high degree of probability that the evidence is of sufficient weight to justify a decision to impose an order under s 13 of the Act. That evidence satisfies me that there is an unacceptable risk that the respondent will commit a serious sexual offence if he is released from custody. I am not satisfied that the conditions provided in the draft order would be sufficient to ensure adequate protection of the community especially in the light of the conclusions of the psychiatrists on the need for graduated release. I consider that the applicant has discharged its onus and for that reason I make an order for the continuing detention of the respondent in custody for controlled care or treatment.” 4 The learned judge’s misapprehension of the evidence [28] From the extracts of the psychiatrists’ evidence set out earlier, it emerges that his Honour’s concern with a “graduated release” has its genesis in Dr Moyle’s reference, in his November 2006 report, to “a gradual reintroduction to the community”. Dr Moyle clearly had in mind, in that reference, something like the release to work order of which the appellant had previously had the benefit; although such an order was probably no longer available to the appellant with the enactment of the Corrective Services Act 2006 (Qld), and was never likely to have taken the form of an agreeable arrangement where he could come and go between custody and the community according to his needs. In any event, it is quite clear that Dr Moyle was talking, in his report, in terms of such an order as an option for the appellant’s management in the year remaining before he completed his sentence. By the time he gave his evidence, he was aware that events had moved on; the appellant had not achieved any form of release in the intervening year, and it was now a different question, of whether the supervision order conditions were adequate to modify the risk he would pose on release into the community. 3 A-G (Qld) v Edwards [2007] QSC 396 at [18] – [19]. 4 A-G (Qld) v Edwards [2007] QSC 396 at [23] – [24]. -- 13 of 20 -- 14 [29] Although Dr Beech in his report spoke of “graduated release”, he does not seem to have been contemplating the sort of suspendable release to which Dr Moyle was referring in his report. Instead, he seems to have used the expression more generally as referring to a release in stages, beginning with a supportive environment in the community, employment and close monitoring. When counsel in cross-examination, perhaps anticipating a confusion from which Dr Beech was not suffering, asserted that “graduated release” (presumably in the sense of allowing movement in and out of custody) was not available under the legislation, Dr Beech was content to accept that the strict regime set up by the draft supervision order was “akin to a graduated release”. Dr James’ perception as to the desirability of transition into the community in stages was similar. He did not think release to Cherbourg was appropriate, recommending residence in a “less unstructured setting”, but nonetheless a community setting. It does not seem that any of the three psychiatrists was contemplating as necessary some sort of release – “Whereby the respondent could return to custody should he feel unable to comply with the conditions and then, after a period, return to the community ….”5 [30] The second contentious aspect of his Honour’s understanding of the psychiatrists’ evidence arises from his statement that it was “the clear opinion” of Drs Beech and Moyle that without a gradual release programme there would remain a “high risk” of the appellant’s re-offending. As the italicised passages set out earlier show, Dr Moyle thought that the risk that the appellant currently posed was “down to the moderately high range”; given that the appellant was “at the level where he can engage the community and start moving out” the supervision order, if complied with, would “go a long way towards lessening the risk to the community”. He did not want to be specific as to that new level of risk until the appellant had spent six months or so in the community. 6 Dr Beech considered that the proposed supervision order would reduce the risk to “moderately high”, and further to “moderate”, depending on the appellant’s placement. 7 Dr James considered that the existing high or moderately high risk would be significantly lessened were the supervision order conditions to be applied to the appellant. 8 It does not seem, therefore, that his Honour’s perception, that the psychiatrists were concerned that a high risk would attach to the appellant’s release, was valid, at least in circumstances where a supervision order was in place. Indeed, none of the psychiatrists advocated the appellant’s continuing detention. [31] Section 17 of the Dangerous Prisoners (Sexual Offenders) Act requires the giving of detailed reasons for making any order under s 13(5). That requirement cannot be met without an analysis of the risk posed by the prisoner; whether that risk can be met by the proposed conditions of a supervision order; or whether it is such as to necessitate the making of a continuing detention order.9 Here, with respect, there was no real consideration of the risk entailed in the appellant’s release; and the only reason identified for imposing a continuing detention order, rather than a supervision order, was that expert opinion prescribed a particular form of release not 5 A-G (Qld) v Edwards [2007] QSC 396 at [19]. 6 A-G (Qld) v Edwards [2007] QSC 396 at [12]. 7 A-G (Qld) v Edwards [2007] QSC 396 at [18]. 8 A-G (Qld) v Edwards [2007] QSC 396 at [20]. 9 Attorney-General v Francis [2007] 1 Qd R 396 at 404-5; Attorney-General v Beattie [2007] QCA 96 at [27]. -- 14 of 20 -- 15 available under the legislation. That was a misapprehension of the effect of the psychiatric evidence. [32] The decision of the learned judge at first instance must be set aside. On the unchallenged premise that there would be an unacceptable risk of the appellant committing a serious sexual offence in the absence of any order under s 13, this Court should now exercise its discretion as to whether a continuing detention order or a supervision order is made. The guiding principle was identified in Attorney- General v Francis:10 “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.” 11 [33] The significant risk identified in respect of the appellant is that he will commit sexual offences, probably against white women, the particular risk factors being alcohol, drugs, emotional distress and criminal associates. But the effect of the psychiatric evidence, I think it is fair to say, was that the risk of re-offending has diminished since he was first incarcerated, for a number of reasons including his successful completion of the SOTP. Most significantly, the appellant has come to some understanding of, and rejection of, his previous anger towards white people, an important factor in his offences. The psychiatrists’ view, which seems to me well-founded, was that the risk would be further substantially reduced by compliance with conditions imposed by a supervision order. The order as proposed at first instance contained supervision arrangements which would keep a relatively tight control on the appellant’s activities while allowing him to take advantage of the support which he seems to recognise as crucial to his success. As well as provision for practical supervision, the conditions included abstinence from illicit drugs and alcohol and the completion of any prescribed programme. A sexual offenders’ maintenance programme, which is available in the community, and a drug and alcohol programme would plainly assist the appellant. None of the psychiatrists suggested that the appellant should be regarded as a “child sex offender”, so as to require particular conditions in that regard. [34] Added to the strictures and oversight entailed in the supervision order would be the support of Ms Bond and her daughter. Since the hearing of this appeal, Ms Bond has provided a further affidavit. She remains willing to have the appellant live with her, but is currently unable to give him accommodation because she is housing relatives who lost their home through flooding. She is, however, willing to have the appellant live with her as soon as their situation is remedied. Probation and parole officers have carried out a second assessment of Ms Bond’s property. Unfortunately, the exercise seems to have been undertaken on the same limited basis as the first, and is, in consequence, unhelpful. The report has been prepared without reference to the psychiatric opinion or the identified risk factors, with the 10 [2007] 1 Qd R 396. 11 [2007] 1 Qd R 396 at 405. -- 15 of 20 -- 16 result that the conclusions reached are largely a reprise of those in the first assessment: that Ms Bond can and will assist in the appellant’s re-integration into the community and the premises are generally appropriate (subject, of course, to availability), but because there may be children living nearby and there is a school in the vicinity, the residence is unsuitable. (The fact that Ms Bond’s grandchildren may visit is no longer suggested as a concern; it seems to be accepted that there would not be any unsupervised contact.) [35] The court’s role, however, is not to ensure absolute protection of every group in the community which can, in general terms, be characterised as vulnerable. Rather, it is obliged to apply the statutory requirements to the facts of the particular case before it; it must, in considering the question of adequate community protection, have regard to the expert evidence as to the risks posed by this offender. That evidence does not suggest that children living in the area will be placed at particular risk should the appellant be able to live with Ms Bond. [36] The appellant is willing to live in Corrective Services housing at Wacol, while hoping that a room will become available at Ms Bond’s house. In my view, residence with Ms Bond is by far the better option, but even if that cannot be achieved, Ms Bond maintains her preparedness to assist the appellant in other ways. Her support and influence are promising factors. [37] Having regard to the psychiatric evidence as to the relevant risks, to the conditions which can be imposed on the appellant, and to Ms Bond’s contribution, I am satisfied that a supervision order with appropriate conditions can adequately protect the community on the appellant’s release. Other important, though not paramount, considerations - the desirability of the appellant’s rehabilitation, and of his being given the greatest degree of liberty possible consistent with the aims of the Act - point also to that as the preferable order. The three psychiatrists recommended different periods for the length of the supervision order. Dr Beech considered that between five and 10 years was appropriate; Dr Moyle, 10 to 15 years; and Dr James, seven years. On all the evidence, I think that supervision for 10 years would provide adequate community protection. [38] I would allow the appeal, set aside the order made at first instance, make the finding that the appellant is a serious danger to the community in the absence of an order under s 13 of the Dangerous Prisoners (Sexual Offenders) Act, and order that he be released from custody subject, for a period of 10 years, to the conditions of the supervision order which is a schedule to this judgment. [39] MACKENZIE AJA: I agree with the orders proposed by Holmes JA. I agree with her reasons why the decision below must be set aside and the discretion under s 13 of the Dangerous Prisoners (Sexual Offenders) Act 2003 exercised by this Court. Her reasons comprehensively set out the main features of the evidence of the psychiatrists which govern the decision whether a continuing detention order or a supervision order ought to be made (since there was no suggestion that the appellant should be released without any form of supervision). The psychiatric evidence clearly recognises the need for intensive supervision of his reintegration into the community. [40] It is well-accepted that prediction of whether or not there will be further offending by individual sexual offenders is a very imprecise art. In Attorney-General (Qld) v -- 16 of 20 -- 17 Francis [2006] QCA 324 at [39], the principle involved in s 13 was stated as follows: “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.” [41] In the present case, there is evidence that there are some positive signs that, with the assistance of programs undertaken in prison, the appellant has taken steps towards modifying the attitudes that led him to the very serious offending that made him subject to the Act. There was also a proposal, relatively uncommon in this kind of case, that a responsible woman with experience working as an Aboriginal Liaison Officer with the Department of Corrective Services, who is of an older generation than the appellant and has known him for some years, would be prepared to have him reside with her once her daughter, who was displaced by a natural disaster, could leave and return home. In the meantime, he was prepared to live in accommodation provided by the Department. Upon further assessment, those premises were, by virtue of their location only, deemed unsuitable by the Department. It is not apparent that the further assessment balanced that factor against the psychiatrists’ opinions about what would be a very suitable arrangement to assist in the appellant’s reintegration into society. The fact that it is now temporarily unavailable for other reasons does not mean that the making of a supervision order becomes inappropriate on the facts of the case. [42] I am satisfied that the extensive and restrictive terms of the order proposed by Holmes JA provide an appropriate level of supervision. I agree with the orders proposed. [43] WHITE J: I have read the reasons for judgment of Holmes JA and am grateful for her Honour’s careful and thorough analysis of the psychiatric evidence presented below. I agree with her conclusion that although the appellant represents a serious danger to the community, that risk may be managed acceptably by a supervision order containing the terms indicated. [44] I would add that this is one of those relatively rare cases where the psychiatrists report clear improvement after co-operative participation in a Sex Offenders Treatment Program by a sex offender. There is cautious optimism that with the positive influence of Ms Bond and supportive supervision by Corrective Services and adherence to the conditions of no alcohol or illicit drug consumption the appellant’s risk to the community will reduce significantly. [45] I agree with the orders proposed by Holmes JA. -- 17 of 20 -- 18 Schedule Supervision Order Travice Allan Edwards must: (i) be under the supervision of an authorised Corrective Services officer for the duration of the order; (ii) report to an authorised Corrective Services officer at the Queensland Corrective Services Probation and Parole Office on the day of release from custody and at that time advise the officer of his current name and address; (iii) report to, and receive visits from, an authorised Corrective Services officer at such times and at such frequency as determined by Queensland Corrective Services; (iv) notify and obtain the approval of the authorised Corrective Services officer for every change of his name at least two business days before the change occurs; (v) comply with a curfew direction or monitoring direction; (vi) submit to and discuss with the authorised Corrective Services officer a schedule of his planned and proposed activities on a weekly basis or as otherwise directed; (vii) notify the authorised 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; (viii) seek permission and obtain approval from an authorised Corrective Services officer prior to entering into an employment agreement or engaging in volunteer work or paid or unpaid employment; (ix) with the permission of Ms Sandra Bond, reside at her residence; otherwise reside at a place within the State of Queensland approved by a Corrective Services officer by way of a suitability assessment; (x) not reside at a place by way of short term accommodation including overnight stays without the permission of the authorised Corrective Services officer; (xi) seek permission and obtain the approval of an authorised Corrective Services officer prior to any change of residence; (xii) not leave or stay out of Queensland without the written permission of an authorised Corrective Services officer; (xiii) not commit an offence of a sexual nature during the period of the order; (xiv) not commit an indictable offence during the period of the order; -- 18 of 20 -- 19 (xv) comply with every reasonable direction of an authorised Corrective Services officer; (xvi) respond truthfully to enquiries by authorised Corrective Services officers about his whereabouts and movements generally; (xvii) not have any direct or indirect contact with a victim of his sexual offences; (xviii) 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; (xix) submit to medical, psychiatric, psychological or other forms of assessment and/or treatment as directed by an authorised Corrective Services officer; (xx) abstain from the consumption of alcohol for the duration of this order; (xxi) abstain from illicit drugs for the duration of this order; (xxii) take prescribed drugs as directed by a medical practitioner; (xxiii) not visit premises licensed to supply or serve alcohol, without the prior written permission of the authorised Corrective Services officer; (xxiv) submit to any form of drug and alcohol testing including both random urinalysis and breath testing as directed by the authorised Corrective Services officer; (xxv) attend upon and submit to assessment and/or treatment by a psychiatrist, psychologist, social worker, counsellor or other mental health professional as directed by the authorised Corrective Services officer at a frequency and duration which shall be recommended by the treating intervention specialist, the expense of which is to be met by Queensland Corrective Services; (xxvi) agree to undergo medical testing or treatment (including the testing of testosterone levels by an endocrinologist) as deemed necessary by the treating psychiatrist and authorised Corrective Services officer, and permit the release of the results and details of the testing to Queensland Corrective Services, if such a request is made for the purposes of updating or amending the supervision order or for ensuring compliance with this order, the expense of which is to be met by Queensland Corrective Services; (xxvii) permit any medical, psychiatric, psychological or other mental health practitioner 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 updating or amending the supervision order and/or ensuring compliance with this order; (xxviii) attend any program, course, psychologist or counsellor, in a group or individual capacity, as directed by an authorised Corrective Services officer in -- 19 of 20 -- 20 consultation with treating medical, psychiatric, psychological or other mental health practitioners where appropriate. -- 20 of 20 --