Attorney-General for the State of Queensland v Sambo [2008] QSC 262

SUPREME COURT OF QUEENSLAND CITATION: Attorney-General for the State of Queensland v Sambo [2008] QSC 262 PARTIES: ATTORNEY-GENERAL FOR THE STATE OF QUEENSLAND (applicant) v ANDERSON JOHN SAMBO (respondent) FILE NO: BS No 4547 of 2008 DIVISION: Trial Division PROCEEDING: Application ORIGINATING COURT: Supreme Court at Brisbane DELIVERED ON: 27 October 2008 DELIVERED AT: Brisbane HEARING DATE: 20 October 2008 JUDGE: Applegarth J ORDER: 1. The Court is satisfied to the requisite standard that the respondent, Anderson John Sambo, is a serious danger to the community in the absence of an order pursuant to section 13(5)(b) of the Dangerous Prisoners (Sexual Offenders) Act 2003 2. The respondent be subject to the following requirements until 17 November 2015: The respondent must: (a) be under the supervision of a Corrective Services officer for the duration of this order; (b) report to an authorised Corrective Services officer at the Queensland Corrective Services Probation and Parole Office closest to his place of residence between 9am and 4pm on the day of release from custody and at that time advise the officer of the respondent’s current name and address; (c) report to, and receive visits from, an authorised Corrective Services officer at such times and at such frequency as determined by Queensland Corrective Services; (d) notify and obtain the approval of the authorised Corrective Services officer for every change of -- 1 of 30 -- 2 his name at least two business days before the change occurs; (e) comply with a curfew direction or monitoring direction; (f) notify a Corrective Services officer of the nature of his employment, or offers of employment, the hours of work each day, the name of his employer and the address of the premises where he is or will be employed; (g) 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; (h) reside at a place within the State of Queensland as approved by a Corrective Services officer by way of a suitability assessment; (i) not reside at a place by way of short term accommodation including overnight stays without the permission of the authorised Corrective Services officer; (j) not leave or stay out of Queensland without the written permission of a Corrective Services officer; (k) not commit an offence of a sexual nature during the period of the order; (l) comply with every reasonable direction of an authorised Corrective Services officer; (m) respond truthfully to enquiries by authorised Corrective Services officers about his whereabouts and movements generally; (n) not to have any direct or indirect contact with a victim of his sexual offences; (o) disclose to a Corrective Services officer upon request the name of each person with whom he associates and respond truthfully to reasonable requests for information from a Corrective Services officer about the nature of the association, address of the associate if known, the activities undertaken and whether the associate has knowledge of his prior offending behaviour; (p) notify the Corrective Services officer of the make, model, colour and registration number of any vehicle owned by or generally driven by him, whether hired or otherwise obtained for his use; (q) submit to and discuss with a Corrective Services officer a schedule of his planned and proposed activities on a weekly basis or as otherwise directed for a period not to exceed two years -- 2 of 30 -- 3 from the making of this order; (r) abstain from the consumption of alcohol for the duration of this order; (s) abstain from illicit drugs for the duration of this order; (t) take prescribed drugs as directed by a medical practitioner; (u) not visit premises licensed to supply or serve alcohol, without the prior written permission of the authorised Corrective Services officer; (v) submit to any form of drug and alcohol testing including both random urine analysis and breath testing as directed by the authorised Corrective Services officer, the expense of which is to be met by Queensland Corrective Services; (w) attend upon and submit to assessment and/or treatment (other than invasive physical 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; (x) 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; (y) attend any program, course, psychologist or counsellor, in a group of individual capacity, as directed by a Corrective Services officer in consultation with treating medical, psychiatric, psychological or other mental health practitioners where appropriate, the expense of which is to be met by Queensland Corrective Services; (z) notify an authorised Corrective Services officer of the full name and contact details of any female with whom he is having a personal relationship; (aa) if reasonably directed by his supervising Officer make complete disclosure of the terms of this supervision order and the nature of his past offences to any person as nominated by the supervising officer; -- 3 of 30 -- 4 (bb) not establish and maintain contact with female children under 16 years of age (other than the respondent’s own daughters) without written prior approval by a Corrective Services officer; (cc) advise the Corrective Services officer of any repeated contact with a parent of a female child under the age of 16. CATCHWORDS: CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – JUDGMENT AND PUNISHMENT – SENTENCE – FACTORS TO BE TAKEN INTO ACCOUNT – PURPOSE OF SENTENCE – PROTECTION OF COMMUNITY AND PREVENTIVE DETENTION – application by Attorney-General under s 13 of the Dangerous Prisoners (Sexual Offenders) Act 2003 – where respondent serving term of imprisonment after conviction for rape – where respondent previously convicted of indecent dealing with a child – where psychiatric reports and evidence in agreement that risk of a serious sexual offence is increased by respondent’s alcohol abuse – whether there is an unacceptable risk that the respondent will commit a serious sexual offence if released from custody without a supervision order – whether a supervision order will be punitive contrary to legislative intent Criminal Law (Sexual Offences) Act 1978, s 6 Dangerous Prisoners (Sexual Offenders) Act 2003, s 3, s 11, s 13, s 16, s 19, s 20, s 22 Attorney-General for the State of Queensland v Francis [2007] 1 Qd R 396, applied Attorney-General for the State of Queensland v Gadd [2008] QSC 247, cited Attorney-General for the State of Queensland v Thumm [2008] QSC 180, followed Attorney-General for the State of Queensland v Van Dessel [2006] QCA 285, cited Fardon v Attorney-General for the State of Queensland (2004) 223 CLR 574, considered Power v The Queen (1974) 131 CLR 623, cited COUNSEL: J M Horton for the applicant D C Shepherd for the respondent SOLICITORS: Crown Law for the applicant Legal Aid Queensland for the respondent -- 4 of 30 -- 5 [1] The respondent is aged 47 and is serving a term of imprisonment after being convicted of offences of rape and deprivation of liberty following a trial. He was also sentenced following pleas of guilty of assault occasioning bodily harm in respect of the same complainant. On 24 November 1999 he was sentenced to nine years imprisonment on the charge of rape and he was declared to be a serious violent offender. His release date is 17 November 2008. [2] On 19 May 2008 the Attorney-General applied for orders under s 13 of the Dangerous Prisoners (Sexual Offenders) Act 2003 (‘the Act’). On 13 June 2008 Byrne J made a risk assessment order and, as a result, the respondent underwent examinations by two psychiatrists, Dr Josie Sundin and Dr Michael Beech for the purpose of preparing reports pursuant to s 11 of the Act. Those reports together with a psychiatric report dated 8 December 2007 by Professor Basil James, who examined the respondent on 8 October 2007, are before the court. In addition, there is a large volume of material about the respondent’s history during his time in custody. [3] Counsel for the Attorney-General acknowledges that if the court is satisfied that the respondent constitutes a serious danger to the community then the evidence supports the making of a supervision order rather than a continuing detention order. [4] Counsel for the respondent submits that: (a) the court should not be satisfied that the respondent is a serious danger to the community in the absence of an order under Division 3 of the Act; and (b) the outcome of the application will be punitive, which is contrary to the purposes of the Act. The legislation [5] The objects of the Act, as stated in s 3, are: “(a) to provide for the continued detention in custody or supervised release of a particular class of prisoner to ensure adequate protection of the community; and (b) to provide continuing control, care or treatment of a particular class of prisoner to facilitate their rehabilitation.” [6] The Attorney-General may apply for a Division 3 Order in relation to a “prisoner”, which includes a prisoner detained in custody who is serving a period of imprisonment for a “serious sexual offence”. A “serious sexual offence” means an offence of a sexual nature involving violence, or against children. [7] Section 13 of the Act applies if, on a hearing of the application, the court is satisfied that the prisoner is “a serious danger to the community in the absence of a division 3 order.” It specifies the circumstances in which the court may make an order: -- 5 of 30 -- 6 “(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).” [8] A prisoner is a serious danger to the community within the meaning of s 13 if there is “an unacceptable risk that the prisoner will commit a serious sexual offence”, if the prisoner is released from custody, or if the prisoner is released from custody without a supervision order being made.1 [9] The court may decide that it is satisfied as required by ss (13)(1) only if it is satisfied: “(a) by acceptable, cogent evidence; and (b) to a high degree of probability; that the evidence is of sufficient weight to justify the decision.”2 [10] In deciding whether a prisoner is a serious danger to the community as defined in s 13 the court must have regard to the following: “(a) the reports prepared by the psychiatrists under s 11 and the extent to which the prisoner cooperated in the examinations by the psychiatrists; (b) any other medical, psychiatric, psychological or other assessment relating to the prisoner; (c) information indicating whether or not there is a propensity on the part of the prisoner to commit serious sexual offences in the future; (d) whether or not there is any pattern of offending behaviour on the part of the prisoner; (e) efforts by the prisoner to address the cause or causes of the prisoner’s offending behaviour, including whether the prisoner participated in rehabilitation programs; (f) whether or not the prisoner’s participation in rehabilitation programs has had a positive effect on the prisoner; (g) the prisoner’s antecedents and criminal history; (h) the risk that the prisoner will commit another serious sexual offence if released into the community; (i) the need to protect members of the community from that risk; (j) any other relevant matter.”3 [11] The paramount consideration in deciding whether to make a continuing detention order or a supervision order is the need to ensure adequate protection of the community.4 The Attorney-General has the onus of proving that a prisoner is a serious danger to the community in an application for a Division 3 order.5 1 s 13(2). 2 s 13(3). 3 s 13(4). 4 s 13(6). 5 s 13(7). -- 6 of 30 -- 7 [12] Subsection 13(5)(a) identifies the three purposes for which a continuing detention order may be made: control, care or treatment. In some cases, more than one of these considerations will inform the making of an order.6 [13] In Attorney-General for the State of Queensland v Francis7 the Court of Appeal stated: “It may be, however, that, in some instances, a dangerous prisoner has such clear and pressing prospects of rehabilitation that the court’s choice of an order under s 13(5)(a), rather than under s 13(5)(b), will turn on the answer to the factual question whether further treatment, necessary to ensure adequate protection to the community, is likely to be available or effective only while the prisoner remains in detention. If the court were to be satisfied in a particular case that further treatment of a prisoner was necessary, and likely to reduce the risk of reoffending to acceptable levels, but that such treatment would not be made available to the prisoner in detention, then that would be a good reason to make an order under s 13(5)(b). The choice between an order under s 13(5)(a) or (b) must, of course, be controlled in the end by s 13(6) of the Act; but, in such a case, it might make little sense to make a continuing detention order for the purpose of “control, care of treatment” of the prisoner.” The Court also made the following important statement about supervised release in the context of the risk of the appellant in that case absconding if he began to use alcohol or drugs: “The Act does not contemplate that arrangements to prevent such a risk might 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.”8 [14] Section 16(1) mandates certain requirements of for a supervision order. Section 16(2) provides that the order may contain any other requirement the court considers appropriate: “(a) to ensure adequate protection of the community; or … (b) for the prisoner’s rehabilitation or care or treatment.” 6 Attorney-General for the State of Queensland v Francis [2007] 1 Qd R 396 at [29]. 7 ibid at [30]. 8 ibid at [39]. -- 7 of 30 -- 8 [15] An application to amend the requirements a supervision order may be made under s 19 of the Act by a prisoner released under a supervision order or the chief executive of corrective services with the Attorney-General’s consent. [16] A supervision order cannot be made for an indefinite period.9 [17] In Fardon v Attorney-General for the State of Queensland10 Gummow J, in the course of discussing the provisions of Part 3 for regular reviews of a continuing detention order, stated that s 30(2) may permit refusal by the court of an order for further detention, by reason of failure by the appropriate authorities to implement the earlier order. An example was of an order for treatment of the prisoner to facilitate rehabilitation. His Honour stated that what is vital for Part 3, and thus to the validity of the Act, is the requirement that a regular “review” does not, with the passage of time, become no more than a periodic formality, and that: “if the exercise in which the court was involved had been permitted by the legislation to lose its requirement for deeply serious consideration upon specified criteria and to a high degree of satisfaction, then invalidity of such legislation may well result.” [18] In Attorney-General for the State of Queensland v Francis11 the Court of Appeal identified the possibility that this view supports an argument that executive government repudiation of the preventative objects of the Act in a particular case (as, for example, by the refusal of any treatment to a prisoner clearly capable of, or amenable to, rehabilitation) could lead the court to refuse to make any order at all. The Court observed: “If it were to appear to the court that any further detention would be truly punitive in character and, thus, contrary to the intention of the legislation, there would be no basis for the court to make an order of any kind under the Act. The conditions of further restraint upon the detainee’s liberty would be out of character with the intention of the legislature: that such restraint is preventative.” Those observations were made in a context of an appeal from a decision to make a continuing detention order. In that case, the primary judge did not find, and was not asked to find, that the sole or dominant reason for continued detention or supervision was the provision of treatment to the prisoner rather than his ongoing control. The Court of Appeal, in reliance on numerous passages in the reasons of the High Court in Fardon v Attorney-General for the State of Queensland, stated that the character of the detention authorised by the Act is not punitive but preventative. 12 9 Attorney-General for the State of Queensland v Van Dessel [2006] QCA 285. 10 (2004) 223 CLR 574 at 620-621 [113]. See also Callinan and Heydon JJ at 654 [217] who stated: “This is not to say however that this Court will not be vigilant in ensuring that the occasions for non- punitive detention are not abused or extended for illegitimate purposes”. 11 supra at [31]. 12 [2007] 1 Qd R 396 at [31] citing (2004) 223 CLR 575 at 586 [2], 592 [19], 595-597 [33]-[34], 609- 613 [72]-[81], 619-621 [107]-[113], 647-648 [196], 653-658 [214]-[233]. -- 8 of 30 -- 9 The issue [19] There is a need to focus upon the particular nature of the risk in considering an application for a Division 3 order.13 The respondent, who is a recovering alcoholic, poses a risk to himself and others if he reverts to a life of alcohol abuse. That risk includes the risk of breaking the law, possibly by a crime of violence, when he is drunk. As serious as that risk is, and as important as it is to ensure that community services are devoted to the respondent’s rehabilitation to avoid that risk, it is not the specific risk at which the Act is directed. It must be recalled that the Act exists to prevent the unacceptable risk of a serious sexual offence, not other serious criminal acts involving violence.14 [20] The issue for determination is not precisely whether the respondent and the community would benefit from his being compelled to abstain from alcohol and observe other requirements of a court order, rather than do these things voluntarily. Like many other individuals in our society, the respondent would benefit from measures that prevent alcohol abuse and the crimes that are associated with it. The issue is not whether the respondent poses a risk to the community of committing an act of violence if he abuses alcohol, and that this risk will be reduced if he is compelled to observe the requirements of a supervision order. [21] The issue is whether there is an unacceptable risk that he will commit a serious sexual offence if he is released from custody without a supervision order being made. Mandatory considerations under s 13(4) [22] I will address the matters to which the court must have regard under s 13(4) in a different order to the order in which they appear in the Act. The respondent’s antecedents and criminal history will provide a context to consider the reports prepared by the psychiatrists under s 11 and the other matters referred to in s 13(4). The respondent’s antecedents and criminal history [23] There are some minor differences in accounts given by the respondent over the years concerning dates and other aspects of his early life. However, these differences are unimportant. The essential story is one of an intelligent, indigenous Australian whose life has been blighted by periods of alcohol abuse. [24] The respondent was born in Far North Queensland in 1961, and at about the age of six was sent, or taken, to Townsville to live with a Christian community. He attended primary school in Townsville until about grade six, and he obtained good academic reports. 13 Attorney General for the State of Queensland v Francis (supra) at [38]. 14 Attorney-General for the State of Queensland v Gadd [2008] QSC 247 at [8]. -- 9 of 30 -- 10 [25] He left Townsville and lived with his mother and, when his mother moved elsewhere, with his grandmother. He appears to have moved between different towns and indigenous communities depending upon his mother’s work and other factors. He completed his schooling and eventually became school captain. He left school at around the age of 17. [26] He pursued various lines of employment, but fell in with a group that led him into drinking alcohol. He was able to stay in employment for periods of up to six years and rose in his community, being elected as a councillor from 1996 to 1999. [27] His first serious relationship was with a woman who I will refer to by the use of a pseudonym, Susan, so as to reduce the risk of identification of her in any publications in contravention of the prohibition contained in the Criminal Law (Sexual Offences) Act 1978.15 The respondent’s relationship with Susan occurred in the early 1980’s and it produced a daughter. The relationship came to an end after the respondent was accused of sexually assaulting Susan’s younger sister. The respondent was convicted and sentenced in 1984 to 23 months imprisonment for indecent dealing with a girl under 14 years. [28] Upon his release from prison the respondent drifted around North Queensland and was unemployed for a period until he returned to Mt Isa and gained employment. He then returned to his indigenous community where he was employed on a Community Development Program. The respondent became involved in a ten year relationship between 1986 and 1996. This relationship produced four children. After the birth of a son in 1987 he reduced his drinking and is said to have managed complete sobriety between 1990 and 1996 with the active assistance of two co-workers. [29] In about 1997 the respondent resumed social drinking which escalated, and his wife also engaged in alcohol abuse and gambling. There was conflict in the relationship and at about this time the respondent was contacted by his daughter from his earlier relationship with Susan. This led to further difficulties is his relationship with his wife and he separated from her. He re-established a relationship with Susan and they lived in a community house. Their relationship ended after the respondent was imprisoned in 1999. Criminal history [30] The respondent’s non-sexual offences relate largely to use of alcohol and include offences such as obscene language, behaving in a disorderly manner and assault occasioning bodily harm. For several years after 1990 there were no offences. This was a period during which the respondent was living with his wife, who was a stable influence on him, and during which he had regular employment. 15 s 6. -- 10 of 30 -- 11 [31] The following table is drawn from the written submissions of the Attorney-General. Additional details are set out as an exhibit to an affidavit of Kerry Heenan filed 19 May 2008: 17/05/1979 Normanton Assault occasioning bodily harm 12 months probation 21/06/1979 Normanton Supply liquor to a person under 18 years Fined 06/04/1983 Mt Isa Obscene language, resist police, assault police Fined 17/09/1984 Mt Isa Breach of Bail Act No further action taken 29/10/1984 Mt Isa Indecent dealing with a girl under 14 years 23 months imprisonme nt 21/02/1989 Burketown Break, enter and steal Break & enter dwelling house with intent Community Service 25/07/1989 Burketown Assault occasioning bodily harm Fined 06/08/1990 Mt Isa Obscene language, resist police Fined 07/05/1999 Mt Isa Consume liquor on a road Fined 26/07/1999 Mt Isa Breach bail undertaking (x 3) Fined 11/08/1999 Townsville Breach bail undertaking Fined 24/11/1999 Mt Isa Assault occasioning bodily harm, assault occasioning bodily harm, deprivation of liberty, rape Imprisonme nt for total of 9 yrs, 3 months and 29 days Declared a serious violent offender -- 11 of 30 -- 12 The 1984 sexual offence [32] The victim of this offence was a 12 year old girl who was related to the respondent’s then partner. The girl was walking with a younger relative along a track when they encountered the respondent. The respondent declared his intention to have sexual intercourse with the girl and she attempted to run home. He grabbed her and pulled her down. He digitally penetrated her and then tried to have sex with her. The respondent was interrupted by two men who called the police. [33] The respondent says that at the time of this incident he and others had been drinking at a party and the alcohol ran out. The respondent says that he cannot recall what happened because he was intoxicated and his next clear memory is waking up in the watch house. He initially thought he had been charged with being drunk and disorderly. He pleaded guilty to indecent dealing The 1998 offences [34] The offence of rape, for which the respondent is currently imprisoned, also arose out of his abuse of alcohol. It occurred in December 1998. By his own admission to the police, and as he put it, he gave his de facto spouse “a flogging”. [35] In sentencing the respondent Boyce DCJ stated: “You were intoxicated on this occasion. However, voluntary intoxication does not entitled you to any discount for a crime of violence. On this occasion, the police were called to your residence at about 4 am. Shortly before the police were called, a number of persons in a nearby house saw you and the victim in the street. She was anxious to go to the hospital and appeared to be in pain. You forced her to go back to the house, although she was unwilling to do so. According to one witness, at least, you stated that you wanted to take her to the hospital but you were going back to your house to get a shirt. Shortly after this the neighbours heard screaming coming from the house. This continued for some minutes, possibly five minutes. They were so disturbed as to send one person to summon the police. When the police arrived, they found the victim naked outside your house. You then covered her with a sheet. She had been savagely beaten by you, and was greatly distressed. I am satisfied that you beat her with a metal broomstick that broke into pieces as a result of your assault. The pieces are in evidence. I am also satisfied that you used a bone handled bread and butter knife to attack her. The knife is also in evidence. The use of weapons during a rape is a serious circumstance of aggravation… -- 12 of 30 -- 13 The Crown case was overwhelming so far as the two counts of assault were concerned. A conviction on those two charges was inevitable. I do not regard your plea of guilty to the two assault charges as indicating any real remorse on your part. I consider that a plea of guilty to the two assault charges was more of a tactical ploy to be used in the hope of escaping the charge of rape. You have a criminal history of some significance. That includes two previous convictions for assault occasioning bodily harm and two charges of assault on police. In 1984 you were sentenced to 23 months’ imprisonment for indecently dealing with the sister of the victim in this matter, who was under 14 years. In recent years your criminal history seems to be confined to street offences. The last offence of violence was in 1989. It must be clearly understood that voluntary intoxication will not be accepted as an excuse or justification for handing out a savage beating to a helpless woman. So far as the charge of rape is concerned, you have shown no remorse at any time. The rape was accompanied by much brutality.” [36] The respondent’s account of the offence, as provided to Dr Beech, is that he was at home and wondering where Susan had gone. He searched for her and found her with relatives. They went to the store to get her to draw some money and on the way some relatives called out and said that Susan had cheated on him. The respondent said he did not want to believe it, but he had been drinking, and did not take much note of what was said. He was invited to a campout-station with other relatives. He went there with Susan and they continued drinking. He took her out to the dam. He said he suddenly became jealous and they argued. He “belted her there” and then they returned to the station and walked into town to their house. A relative of Susan was drinking at the next door house and the respondent went there to talk and drink. He returned home with some alcohol. According to the respondent, Susan spoke to him and she then left the house on the pretext of going to the toilet, and the respondent went in search of her. He found her a couple of streets away and brought her home. Arguments followed about her running off and he believed it was true that she had been unfaithful. He hit her and there was an escalation in violence including hitting her with a broom handle. He says that he cannot recall that he used a knife, but accepts that this is true. [37] During the argument they struggled and the respondent ripped his victim’s clothes. This is the occasion when he was found to have raped her. When asked if this was true, the respondent said to Dr Beech that he was unsure but that he did not think that he raped her because he was too drunk, and because at the time he suffered a physical condition that would have precluded such an act. -- 13 of 30 -- 14 Psychiatric reports and assessments [38] Rather than separately refer to the reports prepared by Dr Sundin and Dr Beech under s 11, to the earlier report of Professor James and to the oral evidence given by each psychiatrist at the hearing, I shall deal in turn with the evidence, both written and oral, of each psychiatrist. Their evidence involves common themes and some differences in their individual assessments of risk. Each reaches essentially the same conclusion about the risk that the respondent will commit a serious sexual offence. Dr Beech does not agree with the diagnosis that the respondent has an Antisocial Personality Disorder. However, the evidence from each psychiatrist indicates that this diagnosis is not significant in the assessment of risk. They are at one that the level of risk will be reduced if the respondent is subject to a supervision order. The psychiatrists are agreed that there is a risk of the respondent committing another serious sexual offence against women if he abuses alcohol. This risk arises from a sense of entitlement towards women and a lack of empathy towards his victims. Dr Sundin [39] Dr Sundin’s report dated 20 September 2008 was based upon a review of a large volume of relevant documents, including previous assessments of the respondent and institutional records, and a four hour interview with the respondent on 9 August 2008. Dr Sundin assessed the respondent using a number of risk assessment instruments and, in cross-examination, acknowledged some of their limitations. One of the guidelines was the Sexual Violence Risk-20 (“SVR20”) and the presence of several factors led Dr Sundin’s to give the respondent a summary risk rating of high. In her dynamic assessment of the respondent, Dr Sundin reported: “Mr Sambo continues to absolutely deny that he committed either sexual offence and struggles to demonstrate empathy with the plight of his victims. The latter is a characteristic of his Antisocial Personality Disorder. One gains the impression that his remorse remains focused more on the impact these events have had on him than the impact they have had upon his victims and his level of denial remains concerning. Historically he has a history of impulsiveness, oversensitivity to the commentary of others and a preparedness to act violently when he believes he has been slighted or offended. Such individuals are strongly inclined to set their own opinion and judgments ahead of others and to disregard the opinions and judgments of others. From a characterological perspective I would judge Mr Sambo to be at moderate to high risk for recidivist behaviour into the future.” [40] Dr Sundin recommended that the respondent be assisted to absolutely abstain from alcohol into the future because longitudinally: -- 14 of 30 -- 15 “his being completely unable to manage himself in the context of the substance and it would appear that it has been a feature of all of his offending behaviour.” Dr Sundin recommended that an element of any order would be zero tolerance to alcohol misuse. [41] Dr Sundin also recommended that the respondent continue to attend a maintenance program for sexual offenders within the community, and obtain assistance to gain employment in order to stabilise his lifestyle and maintain his self-esteem and thus decrease the likelihood of “angry acting out behaviour”. Dr Sundin recommended to the Court that the respondent’s risk of sexual recidivism can be managed and reduced with the provision of an appropriate supervision order provided the recommended elements were attended to. She recommended a 10 year supervisory period based largely upon his age.16 [42] In her oral evidence Dr Sundin reiterated that a major risk factor and a dominant problem was the respondent’s “entitlement” attitudes. This attitude was said to be deeply ingrained and requiring individual psychotherapy. However, even with psychotherapy the respondent was likely to maintain his belief systems. [43] Dr Sundin is of the opinion that the respondent represents a potential danger to woman as a group including pre-teen girls. Notwithstanding that the two instances of sexual offences were separated by 15 years and that both were marked by an excessive consumption of alcohol, Dr Sundin assessed the respondent’s risk of recidivism as moderate. She said if there had been more instances her assessment would have gone from moderate to high.17 Dr Sundin tested the respondent over his denial, as distinct from lack of recollection, of the sexual offences and concluded that there was a degree of non-acceptance of responsibility which turned upon the respondent’s understanding of legal definitions of rape. Notwithstanding the respondent’s preparedness to undertake programs and his recognition that he had committed violent assaults, Dr Sundin states that a review of relevant files discloses a recurrent theme of “non-acceptance of responsibility for the sexual offences”.18 [44] The respondent’s demonstrated willingness to participate in programs and generally positive reports were acknowledged by Dr Sundin. The reports were said to demonstrate a degree of intellectual appreciation but no degree of emotional appreciation. This lack of emotional appreciation was found to be consistent with a diagnosis of Antisocial Personality Disorder. The core issue according to Dr Sundin was someone who failed to have a capacity for empathy and who needed help in the community to gain a greater understanding of the impact of his actions on others.19 16 Transcript 1-28 ln 15. 17 Transcript 1-15 ln 50-55; 1-27 ln 40-50. 18 Transcript 1-15 ln 52. 19 Transcript 1-17 ln 30-40; Transcript 1-23 ln 37–1-24 ln 5. -- 15 of 30 -- 16 [45] Dr Sundin adhered to a diagnosis of Antisocial Personality Disorder notwithstanding that the respondent did not meet one of the criteria contained in DSM-IV concerning the onset of Conduct Disorder before the age of 15. She adhered to this diagnosis on the basis of her clinical assessment of the respondent and the longitudinal pattern of his behaviour. If, however, the respondent was not assessed as having an Antisocial Personality Disorder, then he had antisocial personality traits and this altered diagnosis made no substantial changes to Dr Sundin’s recommendations. [46] Dr Sundin saw some advantages in the respondent living with members of his family on the Atherton Tablelands but there was a potential problem with the respondent dominating his sister, who presently is seriously ill. Treatment in Townsville presented a number of advantages. An appropriate outcome was for the respondent to undergo a period of treatment in Townsville following which he would live with his sister and her family on the Atherton Tablelands. [47] The completion of the Indigenous High Intensity Sexual Offending Program (“IHISOP”) course by the respondent in a satisfactory manner was said to be laudatory and the respondent’s continuing participation in a community maintenance program was said to be beneficial. Together both would help to decrease the respondent’s risk of reoffending. 20 [48] Dr Sundin addressed a number of proposed requirements, as did the two other psychiatrists who gave evidence, and it is appropriate to address these requirements separately. Dr Beech [49] At the outset of his oral evidence, Dr Beech succinctly identified the two main risk factors. The first was the respondent’s general personality style and underlying beliefs. The second was his alcohol abuse. The combination of the two put him at risk of reoffending.21 [50] The respondent’s personality and underlying beliefs were said by Dr Beech to be shown in the offence that he committed in 1984 and in the offences for which he was imprisoned in 1999, in the way he describes the offences and in the way, when pressed, he describes his victims and his responsibility for what occurred. [51] Dr Beech interviewed the respondent on 22 August 2008. His comprehensive report observed that the respondent had felt shame from his offences and that he had let his community down. In interviews the respondent referred to his pride in being an elected councillor and his intention to make up for his offences by doing community service. Dr Beech said that the respondent’s description of this 20 Transcript 1-27 ln 45-55. 21 Transcript 1-34 ln 42-50. -- 16 of 30 -- 17 “appeared genuine and his affect seemed congruent with his talk rather than the shallow way in which he had discussed his offences”. Dr Beach said that there was a sense of entitlement in the respondent’s offending and in the records that he had reviewed. This included the Interim Report dated 16 October 2008 in relation to the sexual offending program. [52] In his report dated 29 September 2008 Dr Beech remarked upon the respondent currently being in remission from Alcohol Abuse Disorder. Dr Beech did not consider that the evidence of alcohol related criminal activities and violence was enough to warrant the diagnosis of an Antisocial Personality Disorder. The respondent’s two sexual offences were notable for the role of alcohol and the level of physical coercion involved. There was nothing to indicate, other than the use of force, that the respondent has a sexual deviance. Instead, the violence involved was instrumental in pursuit of his anger and sexual offending. Dr Beech concluded: “What comes through however are his sense of entitlement and pride and his understated acceptance of violence towards shameful or unfaithful women who have by their actions brought shame upon him. This is aggravated by his extreme minimisation of the actual sexual offences and a very limited capacity for empathy towards his victims. I am not sure to what extent this is the result of his personal or cultural background but they are worrying attributes. I suspect that the like [sic] dormant or are readily contained most of the time. However, when he is intoxicated and prone to jealousy, these beliefs are likely to surface and to give rise to violence that incorporates sexual assault. I believe that there is a moderate risk of his reoffending with sexual violence if he is released at present. The risk is not imminent and it is most likely to hinge upon his return to alcohol abuse. The most likely scenario that I envisage is that some time in the future, Mr Sambo will form a relationship, perhaps casually, with a woman. If he commences drinking he will start to engage in recurrent bouts of alcohol abuse. He will at some point feel shamed by her, possibly because of her past experiences or because of jealousy, and become angry. He will then assault her and at some point rape her. There will be a significant risk that his victim will suffer severe injuries. He is still relatively young and the risk will not abate for some years.” [53] Dr Beech thought that any supervision order should be at least five years because if the respondent was able to be abstinent and of good behaviour for five years then his risk of reoffending in the future will have been substantially reduced. Another reason is that the risk of sexual assault and rape is more likely to decline once the respondent was aged more than 50. As a member of Alcoholics Anonymous (“AA”), the respondent would describe himself as a “recovering alcoholic” and -- 17 of 30 -- 18 although Dr Beech recognised that the risk that he would return to alcohol is lifelong he considered that as time goes on the risk reduces. The longer the respondent remains offence-free in the community, the risk reduces and as the respondent leads a more “pro-social life” in the community, the risk reduces. Simply put, with the passage of time and increased age, the risk reduces.22 [54] Dr Beech accepted that there was nothing in particular to indicate that the respondent would not undertake attendance at groups and other tasks voluntarily, but the compulsion to do so under a supervision order was said to reduce the risk of reoffending.23 Dr Beech explained that, despite a substantial period of sobriety during the time that the respondent had a stable relationship, accommodation and stable work, he lapsed back into drinking because he became associated with people that were drinking. A supervision order would help the respondent to stay on track. Without a supervision order a moderately high risk existed that he would return to alcohol.24 Dr Beech stated that the difference in the level of risk that would exist between release without a supervision order and release with a supervision order was significant in that, with an order, the respondent would go from “moderate to low-moderate”.25 [55] Dr Beech helpfully discussed the issue of the respondent’s sense of entitlement, and addressed questions about whether the respondent’s belief system had its origins in a personal belief system or a cultural belief system. Dr Beech expressed the opinion that, either way, the belief existed and that it formed a risk. The origin of his belief might inform treatment.26 However, the belief system was that the respondent felt entitled to be violent to a woman who brought shame on him and that if he wanted sex from certain women then he believed that he was entitled to take it. It was these distorted beliefs that placed the respondent and his potential victims at risk.27 [56] Dr Beech said that the respondent’s revised plan to live with his sister and other members of his family on the Atherton Tablelands was “very positive” and far preferable to his original plans when interviewed to simply return to his community and take up opportunities there. Dr Beech considered that one of the values of a supervision order would be to assist the respondent to adhere to this plan, rather than change his mind once again upon release. The preferred course upon the respondent’s release was for the respondent to live at an approved facility in Townsville and undergo a 12 week “maintenance course” and then to live with his family on the Atherton Tableland after that period of stabilisation and access to services in Townsville.28 His residence at some place where he felt a sense of community with family members was important once he had evidenced that he had made the adjustment to community life in Townsville. 22 Transcript 1-55 ln 38-55. 23 Transcript 1-47 ln 12, 1-48 ln 5-10. 24 Transcript 1-48 ln 10-28. 25 Transcript 1-49 ln 7. 26 Dr Beech’s answers in this regard should not be taken as an acknowledgment that the respondent’s belief was, to any extent, part of a cultural belief system, and Dr Beech said he was unaware of any rigorous evidence to suggest that such a belief system operated within those communities. 27 Transcript 1-52 ln 10-50. 28 Transcript 1-56 ln 18-40. -- 18 of 30 -- 19 Professor James [57] The respondent was assessed by Professor James on 8 October 2007. Professor James’ psychiatric report dated 8 December 2007 diagnosed the respondent as having Antisocial Personality Disorder and undertook a risk assessment using a combination of actuarial and dynamic factors. At that time, Professor James was of the view that without undergoing an appropriate sex offender treatment program the risk of the respondent reoffending sexually was moderately high and that the risk would be significantly reduced by successful program participation. Professor James wrote: “When Mr Sambo is eventually released from prison, it would in my opinion be very important for him to be subject to a Supervision Order; abstinence from alcohol and other intoxicants would, in my view, be an essential element of any such Order. In my opinion, such an Order should remain in place for ten years.” Professor James’ report formed part of the materials relied upon when the application was brought for an assessment order. [58] Professor James’ oral evidence was given in the light of more recent developments including the respondent’s participation and progress in the IHISOP in recent months. [59] In his oral evidence Professor James accepted a point that had been made in the cross-examination of Dr Sundin that, strictly speaking, the absence of Conduct Disorder before the age of 15 meant that the respondent did not comply with the DSM-IV criteria for Antisocial Personality Disorder. Professor James gave evidence about trends in professional opinion since DSM-IV was published and the appropriate use of diagnostic criteria contained in it. Although the strict definition was not met, Professor James adhered to the view that had also been expressed by Dr Sundin of marked antisocial traits and that his original diagnosis was correct.29 [60] Professor James remarked upon the respondent’s need to accept external boundaries and address what was described in the evidence as the major problem of “entitlement”. The respondent was said to have got to the stage as a result of his participation in the sexual offenders treatment program of being acquainted with, and accepting of, “external rules” but needed to assimilate those rules in a way that reduced his risk of aberrant behaviour. Having considered the other evidence at the hearing, including Dr Beech’s recommended supervision order of at least five years, Professor James considered such a five year period to be a reasonable time for the respondent to undertake the process that Professor James described. [61] Professor James’ revised assessment of risk was that the respondent’s risk of sexual reoffending was moderate, and that with a supervision order the risk would gradually and progressively lower over the next several years.30 29 Transcript 1-59 ln 35-55. 30 Transcript 1-61 ln 1-5. -- 19 of 30 -- 20 [62] Under cross-examination Professor James stated, and explained why, the level of risk would be significantly increased if the respondent voluntary agreed to remain abstinent and participate in programs, compared to being compelled to do so under a supervision order.31 I found Professor James’ explanation and his assessment of increased risk cogent. [63] I found the medical evidence of each of the three psychiatrists cogent. [64] Their identification of the relevant risk and their assessments of the level of that risk are not materially different. It is not strictly necessary to choose between their respective assessments. However, I proceed on the basis of Dr Beech’s evidence that there is a moderate risk of the respondent reoffending with sexual violence if he is released, and that this risk hinges upon his return to alcohol abuse. I also accept that there will be a significant decrease in the level of risk if the respondent is subject to a supervision order. Other medical, psychiatric, psychological or other assessments [65] The psychiatric reports to which I have already referred cross-refer to previous assessments undertaken in relation to the respondent. The affidavit material includes evaluation of the respondent’s successful completion of an Anger Management Program in 2000 and a variety of evaluations of his suitability for placement on programs. The chronology forming part of the respondent’s outline of submissions and the material collected under those submissions includes an account of the respondent’s participation in programs. [66] An important and recent assessment is an Interim Report on the respondent’s participation and progress in the IHISOP which he commenced on 2 July 2008. He is due to complete that program in early November and the applicant accepts that he is likely to satisfactorily complete the few remaining sessions. The Interim Report 32 indicates that throughout the program the respondent identified numerous risk factors such as troubled relationships characterised by jealousy and fighting, alcohol, his role as a community leader and his associated sense of entitlement. He had insight into his inability to manage strong feelings, such as anger, appropriately. The Interim Report helpfully discusses the respondent’s identification of risk factors and his short term and long term goals. It also reports that, whilst acknowledging his offending, the respondent has struggled to identify how he has contributed to this situation. The remaining sessions in the program will focus on encouraging and supporting him to accept responsibility for his actions, rather than blaming others. [67] The author of the report, Ms Sando, who also swore an affidavit in the proceedings, has extensive clinical experience with adult, male sexual offenders. Her recommendations included that the respondent participate in a Sexual Offending Maintenance Program when released to the community and that he undertake ongoing reflection and revision of release plans and goals. The respondent needed 31 Transcript 1-71 ln 2–1-72 ln2. 32 Exhibit 2. -- 20 of 30 -- 21 support to maintain abstinence from alcohol, and support and counselling in continuing to manage his anger. He also needed support in developing relationship skills, especially were he to commence an intimate relationship. Finally, Ms Sando recommended that the respondent develop a network of pro-social influences, both personal and professional. Propensity and whether there is a pattern of offending behaviour [68] It is convenient to address together the matters referred to in s 13(4)(c) and (d) of the Act. [69] The psychiatric reports to which I have referred, and the oral evidence given by Dr Sundin, Dr Beech and Professor James at the hearing, are essentially to the same effect. They are that the respondent is at risk of reoffending with sexual violence if he returns to a life of alcohol abuse. As Dr Beech stated: “The most likely scenario that I envisage is that some time in the future, Mr Sambo will form a relationship, perhaps casually, with a woman. If he commences drinking he will start to engage in recurrent bouts of alcohol abuse. He will at some point feel shamed by her, possibly because of her past experiences or because of jealousy, and become angry. He will then assault her and at some point rape her. There will be a significant risk that his victim will suffer severe injuries. He is still relatively young and the risk will not abate for some years.” [70] Dr Sundin concluded that the respondent struggles to demonstrate empathy with the plight of his victims. She observed: “He has a history of compulsiveness, over-sensitivity to the commentary of others and a preparedness to act violently when he believes he has been slighted or offended.” His offending behaviour in this regard stems from alcohol abuse and Dr Sundin states that it is going to be necessary for the respondent to be assisted to absolutely abstain from alcohol into the future. [71] The respondent does not have a sexual deviance or propensity of the kind exhibited by many of the respondents who have been the subject of orders under Division 3 of the Act. It may not be apt to refer in terms of s 16(4)(d) to a “pattern of offending behaviour” in respect of the sexual offence that occurred in 1984 and the sexual offence for which he was imprisoned in 1999. Instead, the cogent evidence given in reports and orally points to a risk of sexual reoffending when alcohol abuse combines with the respondent’s personality and underlying beliefs. The matter is well-summarised by Dr Beech: “What comes through however are his sense of entitlement and pride and his understated acceptance of violence towards shameful or unfaithful women who have by their actions brought shame upon -- 21 of 30 -- 22 him. This is aggravated by his extreme minimisation of the actual sexual offences and a very limited capacity for empathy towards his victims. I am not sure to what extent this is the result of his personal or cultural background but they are worrying attributes. I suspect that the [sic] lie dormant or are readily contained most of the time. However, when he is intoxicated and prone to jealousy, these beliefs are likely to surface and to give rise to violence that incorporates sexual assault. Efforts by the respondent to address the cause of his offending behaviour [72] The respondent recognises that he cannot drink alcohol because of the effects that it has on him. He acknowledges that abstinence from alcohol will be much more difficult in the community, and says he is committed to staying abstinent from alcohol and will be helped in this by maintaining contact with AA. Whilst in custody he has been attending meetings of AA in relation to his problem. The respondent has recently participated in the IHISOP with the outcome referred to above. Either through his participation in that program, or for other reasons, he has revised his plans for release and, as previously noted, these indicate a positive change in his relapse prevention plan since the time that he was interviewed by Dr Sundin and Dr Beech. Risk and the need to protect members of the community [73] The particular risk that the respondent presents if released from custody without a supervision order being made is a return to alcohol abuse which, in combination with the respondent’s sense of entitlement and deeply-held views in relation to women, presents a risk of a violent sexual assault, particularly in respect of a woman with whom he has formed a relationship. The level of that risk is significant if, during a bout of alcohol abuse, the respondent experiences feelings of shame or jealousy. Reversion to alcohol abuse also presents the risk of an opportunistic sexual assault on a teenager or young girl, as occurred in 1984. Should a Division 3 order be made? [74] Counsel for the Attorney-General submits that there is an unacceptable risk that the respondent will commit a serious sexual offence if he is released from custody without a supervision order being made. This unacceptable risk is submitted to exist whether or not he is presently diagnosed as having an Antisocial Personality Disorder. This is said to be shown in the reports prepared by Dr Sundin and Dr Beech under s 11 of the Act and confirmed by the respondent’s pattern of offending, which shows a disregard for his victims and a sense of entitlement towards women. Despite having taken some positive steps to address the causes of his offending behaviour, namely participating in the IHISOP, the respondent is said to still display a lack of empathy towards his victims, a lack of remorse and a limited understanding of his attitudes towards women and how to manage feelings of jealousy. -- 22 of 30 -- 23 [75] Counsel for the respondent submits that the risks identified by the evidence, including the evidence given by the three psychiatrists that the risk will be reduced if the respondent is subject to a supervision order, does not make the risk an “unacceptable risk” within the meaning of s 13 of the Act. [76] The issue is not whether the respondent presents a risk of committing a serious sexual offence. The issue is whether that risk is unacceptable. The respondent submits that his progress and preparedness to abstain from alcohol means the risk is not unacceptable. [77] The medical opinions before the court, the various assessments of the level of risk made by the psychiatrists and the identification of the benefits of supervision in the community do not, in themselves, supply the answer to the question that I must answer. That question is whether, having regard to all of the evidence, including the cogent evidence of the three psychiatrists, I am satisfied to the standard required by s 13(3) that there is an unacceptable risk that the respondent will commit a serious sexual offence if he is released from custody without a supervision order being made. [78] I am satisfied that he is. The reports provided by the psychiatrists in the proceedings and their oral evidence are acceptable, cogent evidence and satisfy me to a high degree of probability that the evidence justifies the making of a supervision order. The respondent’s good behaviour in custody, his participation in programs, the positive effects of those programs and his intention to address his alcoholism do not reduce to an acceptable level the risk that he will commit a serious sexual offence if released from custody without a supervision order being made. The risk is that at some time in the future he will form a relationship with a woman, and, if he abuses alcohol, will feel slighted or jealous, and resort to violence towards the woman and sexually assault her. That is a significant risk. There is also the significant risk that, if he abuses alcohol and finds himself in the same parlous situation as he did in 1984, the respondent may make an opportunistic sexual assault on a young woman. The level of risk that either kind of a serious sexual assault will occur is unacceptable, and there is a need to protect women from that risk. [79] The respondent’s attempts to address his offending behaviour and his commendable intent to remain alcohol-free following his release from custody do not make the risks that I have referred to acceptable. Instead, they justify the making of a supervision order rather than a continuing detention order.33 [80] The paramount consideration is the need to ensure adequate protection of the community. The applicant has discharged the onus of proving that the respondent is a serious danger to the community. The evidence is that there will be a significant reduction in the level of risk of a serious sexual offence if the respondent is compelled to abstain from alcohol and observe the other requirements of a supervision order, rather than voluntarily agree to do these things. 33 The Attorney-General does not contend at the hearing for a continuing detention order. -- 23 of 30 -- 24 [81] The need to ensure adequate protection of the community is served by a supervision order in this case.34 A continuing detention order is not warranted in circumstances in which the requirements for supervised release canvassed by the examination and cross-examination of the three expert witnesses address the specific risk that arises in the event that the respondent reverts to alcohol abuse. Duration of the supervision order and its requirements [82] Any supervision order must contain the mandatory requirements referred to in s 16(1) of the Act. There are a number of additional requirements that I consider are appropriate to ensure adequate protection of the community and for the respondent’s rehabilitation, care or treatment. These requirements were canvassed in the course of examination and cross-examination of the three psychiatrists who gave evidence. Some of these requirements need not apply for the full duration of the supervision order, but many of them do. [83] After consideration of the evidence, and on the assumption that a supervision order would be made, counsel for the parties agreed on the terms of additional requirements, save for one additional requirement. [84] The additional requirement about which there is no agreement is a proposed requirement that the respondent “not commit an indictable offence during the period of the order”. This proposed requirement is in addition to the mandatory requirement that he “not commit an offence of a sexual nature during the period of the order” and the many other requirements that are intended to ensure that the respondent is law abiding upon his release, including a requirement that he abstain from the consumption of alcohol for the duration of the order. [85] Dr Sundin supported the contested requirement on the basis that the commission of other indictable offences becomes “activating or permissive of sexual offences”. She also referred to the “the thin edge of the wedge”,35 and accepted that any condition should be related to indictable offences associated with violence and that, for example, stealing a can of softdrink was hardly “the thin end of the wedge”.36 Professor James deployed a different metaphor in supporting such a requirement. The commission of any indictable offence would be an early warning signal or would be the “canary in the mine”.37 [86] In final submissions Counsel for the Attorney-General acknowledged that any requirement should target an indictable offence involving violence against women. [87] Counsel for the respondent submitted that other requirements in the order, including a requirement to submit to assessment or treatment by mental health professionals were apt to address the problem. If an indictable offence was committed then it 34 Attorney-General for the State of Queensland v Francis (supra) at [39]. 35 Transcript 1-11 ln 55. 36 Transcript 1-28 ln 30. 37 Transcript 1-62 ln 10. -- 24 of 30 -- 25 would come to the notice of the relevant authorities and, although there was no power to revoke a supervision order, appropriate action could be taken. Whilst recognising the intent of the proposed requirement, Counsel for the respondent submitted that the purpose of the order is to address serious sexual offences and that such a requirement in relation to other offences should not be included. [88] Counsel for the respondent relied upon the decision of Douglas J in Attorney-General for the State of Queensland v Thumm38 in which the conclusion was reached that the inclusion of a requirement that the respondent not commit an offence of a sexual nature during the period of the order removed the need to include a further condition that he not commit an indictable offence during that period. Reliance was placed by Douglas J in that case on what the Court of Appeal said in Attorney-General for the State of Queensland v Francis39 that where the protection of the community is adequately ensured, then the liberty of the subject should be constrained to no greater extent than is warranted by the statute that authorises the constraint. I respectfully adopt the same approach in the context of this case. The additional requirement is not necessary to bring offensive behaviour to the attention of authorities, so as to provide “a canary in the mine”. In such a circumstance, other requirements of the order which extend considerable discretion to corrective service officers could be used to minimise the risk of the respondent committing an offence of a sexual nature. If the respondent contravened the requirements of the supervision order, he would be subject to the processes under Division 5 of the Act, including possible arrest under s 20 and a contravention hearing. If the respondent committed a serious offence, and if the circumstances justified it, an application could be made to amend the requirements of the order to provide additional protection to the community. [89] I consider that the additional requirement requested exceeds what is appropriate to ensure adequate protection of the community from the respondent committing a serious sexual offence and the respondent’s rehabilitation or care or treatment. Those interests are adequately protected by the other requirements of the order and the other provisions of the Act. [90] The requirements agreed between the parties and the additional contentious requirement which I have just addressed became exhibit six. With the omission of that contentious requirement, I consider that those requirements are appropriate to ensure adequate protection of the community and the respondent’s rehabilitation, care and treatment. [91] The duration of the supervision order is an important issue. I have addressed the evidence of Dr Beech that an order of at least five years is appropriate and the evidence of Professor James that with a supervision order the risk of reoffending would gradually and progressively lower over the next several years. Dr Sundin’s written opinion that a supervision order of 10 years is appropriate was given before more recent, positive developments involving the respondent’s successful 38 [2008] QSC 180 at [9] – [13]. 39 [2006] QCA 324 at [39]. -- 25 of 30 -- 26 completion of the IHISOP, but her opinion remained that a 10 year period is appropriate. [92] Counsel for the respondent submitted that the duration of the order should be five years on the basis that Professor James indicated that within that time there would be clear indications as to whether the respondent would be able to, as it were, stand on his own two feet. It was submitted that the evidence pointed to the likelihood that the respondent would be able to progress. Whilst his difficulty with alcohol was a lifelong problem, it was much more manageable than other conditions such as paedophilia where an order of a much longer duration might be justified. It was submitted that the duration of the order in this case should be no more onerous than is necessary to achieve the objectives of the Act and that an appropriate period was five years. Counsel for the respondent acknowledged that there is no power to amend a supervision order (as distinct from its requirements) to enlarge its duration.40 [93] Despite the submissions of counsel for the respondent that the order should be no more than five years duration, I consider that an order of seven years duration is appropriate to ensure adequate protection of the community, whilst recognising the importance of not constraining the liberty of the subject for any greater extent than is warranted by the purpose and terms of the statute. I have taken account of the medical evidence that is to the effect that compliance with the requirements of the supervision order will reduce the respondent’s risk of offending. [94] A period of five years was the minimum contemplated by Dr Beech. A period of only five years might have been justified if the respondent’s plans did not include at some future date a return to his community. Even on the assumption that support services would be available within that community to assist the respondent to remain abstinent from alcohol Dr Sundin recommenced a 10 year supervisory period. Dr Beech expressed concern about an immediate return to his community and the risk that he would lapse back into drinking because he associated with people that drank. If the respondent’s life after release proceeds in accordance with the stages preferred by the psychiatrists, namely a period of stabilisation in Townsville during which he undertakes a maintenance program, followed by transition to the supportive environment of his sister and her family on the Atherton Tableland, then the respondent intends, in due course, to return to his community. This is likely to be a challenging phase, notwithstanding indications that he has support there. The respondent’s present intention is to return to that community in about 18 months or two years time, but there is a possibility that his return will be at some later date. In any event, whether the respondent returns to his community in the next two years or at some later time, I consider that an order of five years duration is inadequate. [95] Having regard to the professional opinions that have been given, the respondent’s future plans, the need to ensure that any constraint on the liberty of the subject is no greater than is warranted, the risks that have been identified and the paramount need 40 Compare the possibility of a new supervision order of a longer duration being made pursuant to s 22 following a contravention. -- 26 of 30 -- 27 to ensure adequate protection of the community, I consider than an order of seven years duration is appropriate. The submission that the outcome of the application will be punitive [96] The respondent submits that he was unfairly refused parole. The basis for that submission appears in his outline of argument and supporting chronology and documents. The essential submission is that he took all reasonable steps to gain access to sexual offender courses and that the courses were either unavailable or he was refused access to them. His non-completion of the relevant courses is said to have been at the core of the reason for the refusal of parole. The respondent makes the further submission that parole is part of the punitive process following on from a sentence imposed by a court and ends at the completion of the sentence. Detention or supervision under the Act, by contrast, is preventative, not punitive. The making of the orders sought in the application is said to be no more than the continuation of the punitive sentence imposed on the respondent. [97] It is unnecessary to reach a conclusion on the contention that the respondent was unfairly refused parole. Even if this contention is correct, I consider the respondent’s submission that the outcome of the application will be punitive, and contrary to the purposes of the Act, is without merit. [98] I reject the contention that parole is punitive. The respondent cites no authority in support of this proposition and it is at odds with the way in which legislation providing for parole has been interpreted. For example, in Power v R41 relevant legislation was said by the High Court “to provide for mitigation of the punishment of the prisoner in favour of his rehabilitation through conditional freedom”. [99] The granting of parole may have some objectives in common with the Act, such as the rehabilitation of offenders. However, the parole system and the Act have different spheres of operation. If one was to assume for the purpose of argument that the respondent was unfairly refused parole 42 any unfairness in that process and any maladministration by the corrective services department would not affect the obligation of this Court to consider an application for an order under the Act on its merits. In a different context, the Court of Appeal has remarked that the task posed by the Act for determination is not one which can be resolved in a respondent’s favour simply by pointing to departmental ineptitude. 43 [100] Any ineptitude or maladministration by the department in not placing the respondent on a program at an earlier time is of no real consequence so far as it affects the task of the Court under the Act. As matters have transpired, the respondent will complete the recommended program prior to his release. If matters had been different, and if the respondent had enjoyed good prospects of being 41 (1974) 131 CLR 623 at 629. 42 The applicant made an unsuccessful application for judicial review: Sambo v Queensland Parole Board [2007] QSC 336. That application, of course, did not involve merit review of the application for parole. 43 Attorney-General for the State of Queensland v Francis (supra) at [23]. -- 27 of 30 -- 28 granted parole during the final stages of his term of imprisonment, then it would have been open to the Attorney-General to bring an application under the Act whilst the respondent was detained in custody and during the last six months of his period of imprisonment. In that event, the court would have faced essentially the same issues in determining whether to make a supervision order. The respondent’s prospects, or lack thereof, of being granted parole would not have altered the issue for the Court under the Act. The prospect of a grant of parole would not have prevented an order being made under the Act. The refusal of parole does not affect the task of the Court in determining whether a Division 3 order is appropriate, or alter the character of such an order. [101] Irrespective of any alleged unfairness in the process that led to the respondent being refused parole, the order that was sought in this application is preventative in character. No basis exists to impugn the Attorney-General’s purpose in bringing the application, and the respondent did not seek to do so. This is not a case which resembles the examples given by Gummow J in Fardon or by the Court of Appeal in Francis. The outcome of the application is not to detain the respondent in custody by way of a continuing detention order in circumstances in which he is amenable to rehabilitation by treatment and such treatment is refused. Instead, the outcome of the application is that the respondent will be released from custody subject to requirements that are intended to ensure adequate protection of the community and to facilitate his rehabilitation. The orders to be made are not punitive in their character. Their character is preventative and they are authorised by the Act. Orders [102] I make orders in the following terms: 1. The Court is satisfied to the requisite standard that the respondent, Anderson John Sambo, is a serious danger to the community in the absence of an order pursuant to section 13(5)(b) of the Dangerous Prisoners (Sexual Offenders) Act 2003. 2. The respondent be subject to the following requirements until 17 November 2015: The respondent must: (a) be under the supervision of a Corrective Services officer for the duration of this order; (b) report to an authorised Corrective Services officer at the Queensland Corrective Services Probation and Parole Office closest to his place of residence between 9am and 4pm on the day of release from custody and at that time advise the officer of the respondent’s current name and address; (c) report to, and receive visits from, an authorised Corrective Services officer at such times and at such frequency as determined by Queensland Corrective Services; (d) 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; (e) comply with a curfew direction or monitoring direction; -- 28 of 30 -- 29 (f) notify a Corrective Services officer of the nature of his employment, or offers of employment, the hours of work each day, the name of his employer and the address of the premises where he is or will be employed; (g) 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; (h) reside at a place within the State of Queensland as approved by a Corrective Services officer by way of a suitability assessment; (i) not reside at a place by way of short term accommodation including overnight stays without the permission of the authorised Corrective Services officer; (j) not leave or stay out of Queensland without the written permission of a Corrective Services officer; (k) not commit an offence of a sexual nature during the period of the order; (l) comply with every reasonable direction of an authorised Corrective Services officer; (m) respond truthfully to enquiries by authorised Corrective Services officers about his whereabouts and movements generally; (n) not to have any direct or indirect contact with a victim of his sexual offences; (o) disclose to a Corrective Services officer upon request the name of each person with whom he associates and respond truthfully to reasonable requests for information from a Corrective Services officer about the nature of the association, address of the associate if known, the activities undertaken and whether the associate has knowledge of his prior offending behaviour; (p) notify the Corrective Services officer of the make, model, colour and registration number of any vehicle owned by or generally driven by him, whether hired or otherwise obtained for his use; (q) submit to and discuss with a Corrective Services officer a schedule of his planned and proposed activities on a weekly basis or as otherwise directed for a period not to exceed two years from the making of this order; (r) abstain from the consumption of alcohol for the duration of this order; (s) abstain from illicit drugs for the duration of this order; (t) take prescribed drugs as directed by a medical practitioner; (u) not visit premises licensed to supply or serve alcohol, without the prior written permission of the authorised Corrective Services officer; (v) submit to any form of drug and alcohol testing including both random urine analysis and breath testing as directed by the authorised Corrective Services officer, the expense of which is to be met by Queensland Corrective Services; (w) attend upon and submit to assessment and/or treatment (other than invasive physical 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; (x) 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 -- 29 of 30 -- 30 updating or amending the supervision order and/or ensuring compliance with this order; (y) attend any program, course, psychologist or counsellor, in a group of individual capacity, as directed by a Corrective Services officer in consultation with treating medical, psychiatric, psychological or other mental health practitioners where appropriate, the expense of which is to be met by Queensland Corrective Services; (z) notify an authorised Corrective Services officer of the full name and contact details of any female with whom he is having a personal relationship; (aa) if reasonably directed by his supervising Officer make complete disclosure of the terms of this supervision order and the nature of his past offences to any person as nominated by the supervising officer; (bb) not establish and maintain contact with female children under 16 years of age (other than the respondent’s own daughters) without written prior approval by a Corrective Services officer; (cc) advise the Corrective Services officer of any repeated contact with a parent of a female child under the age of 16. -- 30 of 30 --