Attorney-General for the State of Queensland v HTR [2007] QSC 19

SUPREME COURT OF QUEENSLAND CITATION: Attorney-General for the State of Queensland v HTR [2007] QSC 019 PARTIES: ATTORNEY-GENERAL FOR THE STATE OF QUEENSLAND (applicant) v HTR (respondent) FILE NO/S: BS 7667/06 DIVISION: Trial Division PROCEEDING: Hearing ORIGINATING COURT: Supreme Court of Queensland Brisbane DELIVERED ON: 9 February 2007 DELIVERED AT: Brisbane HEARING DATE: 5 and 6 February 2007 JUDGE: Lyons J ORDER: HTR be subject to a supervision order until 13 February 2017 subject to the conditions in paragraph 95 or such other conditions as fixed by further order of the court. CATCHWORDS: CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – JUDGMENT AND PUNISHMENT – SENTENCE – OTHER MATTERS – QUEENSLAND – whether the Dangerous Prisoners (Sexual Offenders) Act 2003 applies to the respondent – application by the Attorney- General for an order pursuant to s 13(5)(a) of the Act that the respondent be detained for an indefinite term or alternatively under s 13(5)(b) that the respondent be released on conditions – whether respondent is a “serious sexual offender” – whether respondent is a ‘serious danger to the community” – whether continued detention preferable over release subject to restrictive conditions - conditions appropriate and practicable to reduce the risk to the community – duration of the order The Dangerous Prisoners (Sexual Offenders) Act 2003, s 3, s 8(1), s 13(4), s 13(5)(a), 13 (5)(b) A–G (Qld) v Francis [2006] QCA 324 (applied) Briginshaw v Briginshaw (1938) 60 CLR 336 (cited) -- 1 of 20 -- 2 COUNSEL: B Farr for the applicant D Kent for the respondent SOLICITORS: Crown Solicitor for the applicant Legal Aid for the respondent LYONS J: Introduction [1] This is an application pursuant to s 13(5)(a) of The Dangerous Prisoners (Sexual Offenders) Act 2003 (“the Act”) that the respondent be detained in custody for an indefinite term for care, control or treatment, or alternatively, that pursuant to s 13(5)(b) of the Act the respondent be released from custody subject to a supervision order. [2] The objects of the Act (s 3) are to provide for the continued detention in custody or supervised release of prisoners, who are serving a period of imprisonment for a serious sexual offence, to ensure the adequate protection of the community and to provide continuing care, control or treatment for those prisoners to facilitate their rehabilitation. [3] A preliminary hearing was held on 28 September 2006 and the court was satisfied that there were reasonable grounds to believe that the prisoner was a serious danger to the community in the absence of a Division 3 order. Orders were made that the matter be listed for a hearing of the application for a Division 3 Order and that the respondent undergo examination by two psychiatrists namely Professor Barry Nurcombe and Dr Michael Beech who were to prepare independent reports.1 [4] Much of the background history in relation to the respondent is uncontroversial and can be conveniently summarised. The Respondent’s Background and Antecedents [5] The respondent is 61 years old and was born on 10 April 1945. He is currently serving a total of six years imprisonment at Wolston Correctional Centre in relation to indecent treatment of children and attempted sodomy which occurred in late 2000. He was sentenced for all offences in the District Court at Beenleigh on 23 January 2002 and is due for release on 13 February 2007. [6] The respondent never knew his father who had abandoned the respondent’s mother prior to his birth and he was raised by his mother and step father. He was assaulted by his step father both sexually and physically during his early years. It would appear that from the age of six or seven he went to live with his maternal grandmother and at times an aunt and uncle. He was always an isolated child, played no sports and had no recreations. The respondent had an older brother Max who died at the age of 66 in 1996 and a sister Heather who is approximately 64 years old and married with three children. The respondent has no contact with his family and indicates that his family were never close. 1 Section 8. -- 2 of 20 -- 3 [7] On 15 March 1960, at the age of 14, he was convicted of carnal knowledge of a 12 year old girl and spent nine months in the Mount Penang Correctional Centre where the discipline was strict and the staff unsupportive and abusive. The various reports make it clear that as a child the respondent was exposed to physical, emotional and sexual abuse, as well as domestic violence, neglect, and traumatic separations from his family. There was however no parental alcohol or drug abuse or parental mental illness or family antisocial behaviour.2 [8] It would appear that the respondent was only educated to Grade 6 and whilst he can read and write he has limited mathematical ability. The respondent left home at age sixteen and saw little of his mother who died when he was about twenty or twenty- one years of age. [9] After leaving school he completed a five year boiler maker’s apprenticeship and worked as a drover, flour mill hand, kitchen hand, boiler maker and foreman on a steel construction gang, as well as a seasonal farm worker. At one stage he was the owner of a mobile fruit and vegetable business. [10] The respondent had no periods of unemployment until 1981 when he accidentally shot himself in the leg when he was cleaning a magnum pistol belonging to a friend. Medical Conditions [11] As a consequence of complications from the gunshot wound, the respondent’s lower leg was amputated and he wears a prothesis. After the accident he was unable to obtain work and was placed on a Disability Support Pension in 1984. On release from prison he plans to resume support by way of a Disability Support Pension. [12] The respondent has a series of medical conditions including left ulna nerve entrapment as well as high frequency sensoria neural deafness which is of an industrial origin. He has had two transient cerebral ischaemic episodes whereby his speech was slurred, he was clammy and dizzy and he collapsed. In 2005 he spent one week in the Princess Alexandra Hospital subsequent to one of these episodes. He has a history of gastric ulcer and bilateral rotator cuff syndrome. He takes antihypertensive medication as well as medication for his stump pain and reflux. [13] He has never taken medication for any mental health problems and has never taken illegal substances. He has a history of prior excessive alcohol consumption. History of Relationships [14] The respondent began to live with his first wife Veronica when he was 21 and she was 18. They married when he was 23 years of age, and divorced in 1981 when he was in his 30s. His wife left him for another man. There were three children of this marriage who are in their thirties and late twenties however the respondent has not had contact with his children since 1991. The respondent began to live with his second wife in 1983 and married her in 1984. She died in January 2001 of a heart attack following a long illness caused by lung cancer. She had three children by a previous marriage and the respondent cared for her two younger children, a daughter and a son. Whilst he had a good relationship with his step son he had a 2 Professor Nurcombe’s report, p 9. -- 3 of 20 -- 4 poor relationship with his step daughter who resented his relationship with her mother. There were periods of separation during the marriage. The Respondent’s Criminal History The Offences in 2000 [15] The respondent claims he cannot remember much detail of these offences because he had been drinking however this is unclear. The offences occurred over a number of days in late 2000 whilst the respondent’s wife was in hospital. The respondent’s step-grandson J, who was ten years old at the time, stayed at his house for four days. On the first night the respondent allegedly masturbated himself in front of J. On the second night, the respondent allegedly played with J’s penis until it was erect and then performed oral sex on J before attempting to sodomise J. The respondent allegedly then tried to make J have anal intercourse with him. On the next two nights, the respondent played with J’s penis and had oral sex with him. [16] During this period the respondent also took his step-granddaughter JK, aged seven, into a bedroom and attempted to have sexual intercourse with her. He had taken his clothes off and was naked. JK was fully clothed. JK alleged that the respondent had done this on more than one occasion. [17] In relation to J, the respondent was charged with one court of wilfully exposing a child under the age of 16 years to an indecent act, six counts of indecently dealing with a child under the age of 16 years, one count of attempting to sodomise a person under the age of 18 years, the person being a child under the age of 12 years, one count of attempting to permit a male under the age of 18 years to sodomise him. In relation to JK, the respondent was charged with one count of indecently dealing with a child under the age of 16 years. In all counts, it was alleged that the children were under the age of 12 years and that they were in his care. [18] The respondent pleaded guilty to a total of seven counts involving both children. [19] On 23 January 2002, the respondent was sentenced in the District Court at Beenleigh. In his sentencing remarks Pack DCJ said: “… The offences have a broad similarity to those which you were – had pleaded guilty before a Judge Hall on the 14th September 1995. At that time, he referred to the fact that you had been a victim of sexual abuse as a child. He said it was something of a two-edged sword. He said that whilst there might be a connection between the abuse you suffered and that which you committed, he said that you more than anyone else should know what trauma can follow an episode of sexual abuse, because of your own experience. … … In that particular case, Judge Hall said that you were remorseful for your conduct, stating that you had become belatedly aware of the serious harm that could be done by conduct such as yours. … The offences to which you have pleaded guilty today, have been committed within a relatively short time of your release from prison, over a four-day period. Whilst this period is brief, it indicates a somewhat systematic course of conduct. -- 4 of 20 -- 5 … On the facts, count 1, count 4 and count 5 are the most serious. It seems to me that having undergone punishment by reference to prison, apparently a realisation of the … serious harm that can be caused to others by conduct of this nature, that you have an affliction for this, and a propensity for this sort of conduct … Now, it seems that unless you can overcome this affliction, you are unfortunately going to be back before the Courts again and regrettably you will be serving longer and longer terms of imprisonment, if conduct of this nature continues. The Court gets to the stage where it has to protect the community from conduct of this kind. Hopefully you will be able to overcome this affliction as I have called it, because little can be done for you if you are unable to do so. …” The 1995 Offences [20] The earlier offences occurred on 20 April 1995 in relation to three boys T, D and C. T and C were seven years old, while D was ten years old. [21] T stated that the respondent was babysitting him while his mother was out. The respondent took him shopping in the morning where the respondent allegedly bought some “rude books” which contained photos of naked men and women. They went to the respondent’s home. The respondent left the books in a position where T could read them. When T was caught reading them, the respondent apparently became upset. [22] The respondent had oral sex with T, had sexual intercourse with T, had T perform oral sex on him and had T digitally penetrate him. This allegedly occurred first in the respondent’s lounge and then in the bedroom. The victim was initially alone in the respondent’s home. The respondent allegedly bought toys and a colouring book for the victim to stop him telling his parents. [23] D and C were out riding on their bicycles and T called out to them from the respondent’s home, asking them to come in as T stated that the respondent particularly wanted to meet C. Neither D nor C had met the respondent before that day. The boys went into the respondent’s home. [24] D and C were also shown the books. The respondent offered the boys Coke and chips. After a while the respondent took the boys into his bedroom where T and C played at one stage in the respondent’s wardrobe in his presence. The respondent showed C some condoms and explained their purpose. The respondent threatened to suck C’s willy if he didn’t stop mucking about. The respondent carried this threat out. He also required C to perform oral sex on himself. C alleged that before the respondent performed oral sex on him, he cleaned C’s penis with a cloth. T was in the room for much of this time. [25] Other than asking D to “show him his privates”, which D refused to do, the respondent showed no interest in D. D did not take part in or see most of the offending behaviour. The offending against T occurred throughout the day, while -- 5 of 20 -- 6 that against C occurred during part of the day. While the boys were in the house, the doors were locked. [26] The respondent pleaded guilty and was convicted of four counts of indecent dealing with a child under the age of 12 years who was in his care, two counts of permitting himself to be indecently dealt with by another child also under the age of 12 years and one count of sodomy. The 1991 Offences [27] These occurred while the respondent was living in New South Wales. M, the victim, was 15 years old. He was in Grade 10 at high school and had been diagnosed as functioning in the moderate to mild range of intellectual disability. On 7 May 1991, M alleged to police that the respondent had sexually assaulted him on a number of occasions during 1991 including having homosexual intercourse with him until he started crying. M alleged the assaults complained of took place in the bush near their homes. [28] With respect to M’s allegations of sexual abuse, the respondent admitted he had taken M into the bush, that M was always willing, and it only happened six times that he could remember. The respondent stated there was no anal interference and that M always requested money. The respondent allegedly paid $1.50 or $2.00 each time. The respondent admitted there were a number of incidents and it would appear from the respondent’s admissions that the offending behaviour may have commenced when M was 14. [29] Despite admitting sexually assaulting M on at least six occasions, he was charged with three offences, the most serious being having homosexual intercourse with M. The respondent pleaded guilty to the charge of having homosexual intercourse with a child and he was committed for sentence to the Gosford District Court. He appeared in that court on 5 December 1991 and the matter was adjourned for sentence so that a probation and parole report could be prepared. The respondent was granted bail and when he failed to appear for sentence in February 1992 a warrant was issued for his arrest. The 1960 Offence [30] As previously indicated the respondent was charged with this offence when he was 14 years of age and the girl involved was alleged to have been 12 years of age. He was charged with indecent assault on a female under the age of 16 years and was committed to an institution for a number of months. No other details are known of this charge and the respondent maintains that the incident involved consensual sexual intercourse. Other Offences [31] On 13 July 1970 he was convicted of stealing and fined as a result of shooting a pig whilst out shooting with friends. On 15 March 1972 there was a further stealing conviction and on 22 April 1981 he was convicted of driving under the influence. On 16 September 1981 he was convicted of passing cheques to the value of $100 at a time when his business selling fruit and vegetables was deteriorating. -- 6 of 20 -- 7 [32] On 20 May 1984 he was committed for trial for sexual assault and aggravated bodily harm but was acquitted of sexual assault and his sentence was deferred with regard to a charge of aggravated bodily harm on the respondent entering into a recognisance and supervision from the Probation and Parole Service. It would seem that the respondent had been drinking with a friend when the two of them fell out and an altercation ensued. The respondent has denied that there was any sexuality involved in the assault. [33] On 2 December 1989 he was charged with physically assaulting his step daughter who was in her 20s at the time. This non sexual assault allegedly occurred when his step daughter was drunk or intoxicated with drugs. She later dropped the charge against the respondent. [34] On 15 November 1996 the respondent was charged in the Brisbane Magistrates Court with knowingly obtaining payment of a Disability Support Pension. The respondent apparently owed the Department $5,000 as he was working at the time he was drawing a pension and then subsequently continued to draw the Disability Pension to the extent of $2,000 whilst he was in jail. Is the Respondent a Serious Danger to the Community? [35] The court must be satisfied there are reasonable grounds for believing a prisoner is a serious danger to the community in the absence of orders made under the Act.3 Serious danger to the community means that there is an unacceptable risk that the prisoner will commit a serous sexual offence if released from custody or if released from custody without a supervision order. [36] Division 3 of Part 2 of the Act applies if the Court is satisfied the prisoner is a serious danger to the community in the absence of such orders. The level of proof required is ‘by acceptable cogent evidence to a high degree of probability’4 however the paramount consideration is the need to ensure the adequate protection of the community.5 The applicant has the onus of proving that the prisoner is a serous danger to the community. [37] Section 13(4) then sets out the factors the Court may have regard to in deciding whether a prisoner is a serious danger to the community as follows: “(4) In deciding whether a prisoner is a serious danger to the community as mentioned in subsection (1), the court must have regard to the following— (a) the reports prepared by the psychiatrists under section 11 and the extent to which the prisoner cooperated in the examinations by the psychiatrists; (b) any other medical, psychiatric, psychological or other assessment relating to the prisoner; (c) information indicating whether or not there is a propensity on the part of the prisoner to commit serious sexual offences in the future; 3 Section 13(1). 4 Section 13(3). 5 Section 13(6). -- 7 of 20 -- 8 (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.” The Reports in Accordance with Section 11 [38] The reports which have been prepared in accordance with Section 11 require the psychiatrists to assess the level of risk that the respondent will commit another serious sexual offence. Dr Beech and Professor Nurcombe as well as providing the written reports as required by this section also gave evidence at the hearing Dr Beech’s Report [39] Dr Beech’s report summarised the respondent’s background, psychiatric history, the nature of his offences and the results of the risk assessment instruments which he administered. Dr Beech concluded that the respondent suffers from paedophilia of a non exclusive type which was not limited to incest and that he was sexually attracted to both males and females. He also concluded that it was highly likely that he has problems with alcohol abuse which are currently in remission. Dr Beech considered that whilst the respondent has some antisocial personality traits he did not believe he had an antisocial personality disorder and did not believe he had psychopathic traits. [40] Dr Beech concluded that the respondent is currently at a high risk of sexually offending if he is released into the community. This conclusion was based on a number of factors. Firstly Dr Beech indicated that the respondent has a history of repeated offending and the current offences occurred within a few years of his release for similar sexual offending. Whilst Dr Beech concluded that the offences may have been opportunistic and at times of marital difficulties, he did not avoid the opportunity and engaged in behaviour such as drinking alcohol which made the offending more likely. Dr Beech concluded that the respondent has had a number of victims of different ages and gender and of varying relationships in a variety of settings over a number of years, including some violent offences. [41] Dr Beech’s report also indicated that the respondent has no insight into the nature of his offending, has undergone no treatment for it and cannot explain what steps he will take on his release to prevent re-offending. Dr Beech noted that the respondent had not completed a Sex offender Treatment Program (SOTP) and was concerned that there was no evidence that the respondent will benefit from a Sex Offender Treatment Program or even engage with it. In particular Dr Beech indicated that the respondent has consistently resisted the program and has concerns about his -- 8 of 20 -- 9 capacity to gain from it. Dr Beech is specifically concerned that the respondent’s physical ailments including deafness, memory problems and language difficulties may impede his progress in the program. [42] In applying the risk assessment instruments Dr Beech’s results can be summarised as follows: (i) STATIC-99 – high risk. (ii) Violence Risk Scale – low risk. (iii) HCR 20 – moderate risk of violence. (iv) Violence Risk Appraisal Guide – category 5. (v) SORAG – category 6. (vi) SVR 20 – positive for 10 out of 20 items. (vii) HARE Psychopathic checklist – he was not in the psychopathic range. [43] Dr Beech considered that while the respondent’s age and declared loss of sexual libido may mitigate his circumstances, they do not of themselves act to prevent any offending. He stated:6 “As you get older your sex drive probably reduces. Once you get past 60 sexual offending reduces. It may reflect simply a lack of interest, it may reflect greater self control with age and also simply lack of social access to potential victims.” [44] Dr Beech considered that the respondent’s risk of re-offending could be reduced by ensuring that he has meaningful participation in and benefit from a sexual offender treatment program and a structured plan for his release. In particular he considered that prearranged suitable accommodation was important and that the respondent should not have contact or proximity to children under 16. Dr Beech considered that the respondent needed to be monitored and supervised in this regard. Dr Beech also considered the respondent needed to refrain from the use of alcohol and would need a program to assist with this. Dr Beech also considered it was important that he was included in community activities to make use of his time. [45] Dr Beech was shown the Draft Supervision Order7 which set out extensive conditions which the applicant proposed that the respondent would need to comply with if he was released under a supervision order. Having examined the conditions, Dr Beech gave evidence at the hearing that such an order would go a long way in reducing the risk. In particular, Dr Beech indicated that the supervision order in the terms proposed would take the risk from being a high risk down to the low end of a moderate risk.8 [46] Dr Beech considered that the respondent would benefit from psychological treatment and counselling on release. [47] In terms of the appropriate length of a supervision order Dr Beech indicated that a period of between five and ten years would be appropriate. In light of the 6 Transcript of Proceedings, 5 February 2007, p17. 7 Exhibit 1. 8 Transcript of Proceedings, 5 February 2007, p13, line 52-60. -- 9 of 20 -- 10 respondent’s age and health Dr Beech he considered that a period of ten years could be too restrictive and stated ‘… he’s had a number of transient ischaemic attacks. If he were to become stricken by another which had more permanent deficits, then this order may be too restrictive due to his infirmity’.9 Dr Beech considered that by the time the respondent was 70 there would be a ‘significantly reduced risk of offending’.10 Dr Nurcombe’s Report [48] Dr Nurcombe noted: “(a) The Respondent commenced, but did not complete, the Sex Offender Treatment Program during his previous imprisonment. The reason for the cessation of the program was his disclosure that there was an outstanding sexual offence charge in New South Wales for which he had not stood trial. As a consequence the respondent was suspended from the SOTP course on 14th April 1997; (b) On the 12th March, 2002 the Respondent declined to undertake the Sex Offender Treatment Program Course; (c) During his previous imprisonment the Respondent completed the Substance Abuse Relapse Prevention Program and according to the Sentence Management Review Report he has completed the Cognitive Skills Program (19/10/99), a Stress Management Course and Anger Management (19/8/94); (d) According to the Sentence Management Review of the 2nd August 2005, the Respondent had completed no further programs and had declined to participate in Sentence Management Reviews. His overall behaviour had been acceptable; (e) On the 24th August, 2006 the Respondent was informed that he had been offered a place in the “Getting Started .. Preparatory Program (Sexual Offending)”. To date he has not undertaken that program.” [49] In the course of his Risk Analysis, Professor Nurcombe found as follows: (i) On the Psychopathy Checklist – Revised, the Respondent scored 26/40 which is a relatively high level of psychopathy but under the cutoff point for a diagnosis of psychopathic personality; (ii) On the VASOR, Professor Nurcombe classified the Respondent with a group of offenders who are at high risk of sexual recidivism; (iii) On the VRAG, Professor Nurcombe categorized the Respondent as being at a high risk of violent recidivism; (iv) On the SORAG, Professor Nurcombe found the Respondent again to be at high risk of sexual recidivism; 9 Transcript of Proceedings, 5 February 2007, p 21, line 50-55. 10 Transcript of Proceedings, 5 February 2007, p2,1 line 54. -- 10 of 20 -- 11 (v) On the STATIC – 99 Revised, Professor Nurcombe found the Respondent to be at a high risk of sexual recidivism; (vi) On the STABLE, Professor Nurcombe once again found the Respondent to be at high risk of sexual recidivism. [50] In summary, Professor Nurcombe found that when the results of all risk appraisals are combined, it was evident that the respondent has a high risk of sexual recidivism. Professor Nurcombe considered that given the seriousness of the risk of reoffending, the failure of the respondent to undergo treatment, and the lack of support should he be released without supervision, he could not recommend his release from prison at the time of his actual release date if he was to be released without supervision. He also considered that preferably before release from prison the respondent should complete the Preparatory Sex Offender Program and, if appropriate the High Intensity Sex Offender Program. He was concerned that it was possible that the respondent lacks the memory and abstracting ability required to cope with and benefit from such programs. [51] Professor Nurcombe considered that the respondent needed a support system and he would also require regular probationary supervision and monitoring to ensure that he is abstinent from alcohol, and separation from places frequented by children. He also considered that he should not enter into a relationship with a woman who has minor children. [52] Professor Nurcombe examined the Draft Supervision Order and considered that a supervision order in those terms would substantially reduce the risk of re-offending and he would no longer be a high risk of offending.11 Professor Nurcombe also considered that the respondent would be compliant with the conditions and indicated that in the circumstances, a supervision order in the terms proposed was appropriate. [53] Professor Nurcombe also considered that the respondent would be amenable to treatment and whilst he did not consider he was open to deeper kinds of psychotherapy he would be able to respond to treatment that was supportive. He considered he would respond to support and direction from a professional who was supportive and who could assist in monitoring his state of mind. Professor Nurcombe also considered that suitable accommodation could be found for the respondent and he would benefit from living in a residential setting rather than being isolated and that placement in a hostel would be suitable. [54] In coming to a determination on the first question as to whether the respondent is a serious danger to the community in the absence of a Division 3 order it is clear that the onus of proof is on the applicant. Given the fact that what is at stake is the respondent’s right to personal liberty this is a serious enquiry and on the basis of Briginshaw v Briginshaw12 it is clear that reasonable satisfaction should not be produced by “inexact proofs, indefinite testimony, or indirect inferences”. [55] Having examined the matters I am required to do in accordance with Section 13(4) I am satisfied on the basis of the evidence which is both acceptable and cogent and demonstrates to a high degree of probability, as required by the Act, that the respondent is a serious danger to the community if he were to be released without a 11 Transcript Day 2 p 28 at line 35-45. 12 (1938) 60 CLR 336 at 362. -- 11 of 20 -- 12 Division 3 Order. There is no doubt that the respondent poses such a danger and this is essentially conceded by the respondent. [56] The real issue in this case is whether the respondent should continue to be detained or whether he should be released subject to a supervision order. The Evidence of the Respondent [57] The respondent gave evidence at the hearing and indicated that he had spoken to Rowena Solomon from an organisation called Community Bridges, who had explained the support and assistance that would be available to him should he be released. In particular, professional counselling would be available as well as support and assistance with alcohol problems. The respondent also indicated that whilst he had not been in touch with some friends in recent times, he does have friends in the community. [58] The respondent indicated that should he be released subject to a supervision order he would intend to try and make the best of it and would involve himself in support programs and counselling. He indicated he would have no problems submitting to treatment and attending any course that was considered necessary. The respondent also agreed to participate in a community based sex offender’s treatment program. [59] The respondent indicated that his major problem with attending the Sex Offender Treatment Program in prison was the fact that it was not confidential. The respondent agreed that he had not attended any of the preparatory programs that had been organised for him in prison in relation to the Sex Offenders Treatment Program. [60] The respondent also gave evidence that he had written a number of letters to various places seeking accommodation on his release including the Department of Housing, but had had nothing concrete proposed to date. He indicated that would be happy to live in hostel type accommodation. The respondent also indicated that during his previous term of imprisonment he had undertaken an alcohol treatment program. The Evidence of Rowena Solomon [61] Ms Solomon indicated she had met the respondent at the Wolston Correctional Centre and that she had done this in her role as the co-ordinator of Community Bridges. Ms Solomon indicated that the prime function of the organisation is to provide support for inmates who are exiting detention and that they try to form a relationship with their clients before they leave prison so that they are comfortable with them when they are released. Ms Solomon indicated that they look at the needs of their clients and ascertain what is required whether it be counselling, clothing, assistance with doctor’s appointments, or whatever seems to be in their best interests in order to help them to reintegrate. [62] Ms Solomon indicated that she had actually met with the respondent and that he had been accepted as a client of their service. She indicated that the respondent would need general support with reintegration issues on his release and they would also help him with some counselling if that was felt necessary. Ms Solomon indicated that whilst they would not provide all of the counselling they would provide the referrals. -- 12 of 20 -- 13 [63] Ms Solomon gave evidence that indicated that social isolation was one of the very real factors for people exiting jail and consequently their organisation invited clients to drop in and to come and to talk to people in their service. They would also look at possible social groups for the respondents to join. Ms Solomon also indicated that she had spoken to the respondent on the phone on a number of occasions and that she believed that he would follow up with their organisation because they had made the effort to meet with him and because they are willing to care about him. Ms Solomon indicated that the counselling that she was referring to would mainly be in the area of drug and alcohol, however, they were gaining a lot of experience of people who had been sex offenders and her organisation has particular experience of prisoners who had been serving sentences for these types of offences. The Evidence of Linda Ann Bennett [64] Ms Bennett also gave evidence at the hearing in her position as regional co- ordinator for the Sexual Offending Program within the Corrective Services Department. Ms Bennett explained that essentially her job was to make sure ‘the right offender is in the right program at the right time’.13 Ms Bennett indicated that whilst there is clear evidence that sex offending programs have been demonstrated to be effective in reducing the risk of sexual recidivism, she did not know enough about the respondent in this case to ascertain whether he would specifically benefit from participation in such a program. This was because the respondent had not taken part in a clinical interview which would allow them to make such an assessment. In addition he had not taken part in the Getting Started Program. The respondent’s non participation meant that there was a barrier to her being able to offer an opinion as to the potential benefit he might get from the Sexual Offenders Treatment Program. Ms Bennett did indicate that some 280 people had been through the Sexual Offenders Treatment Program in its current form. [65] In relation to the concerns by both Professor Nurcombe and Dr Beech about whether the respondent had the ability to participate in the program due to his short term memory problems and his abstracting ability, Ms Bennett indicated that the Department has developed and has plans to run in the near future an “Adaptor Inclusive Program” which is designed for sexual offenders who have learning difficulties and other impairments that stop them from taking part in the main stream interventions which are ultimately more cognitive. Ms Bennett indicated that given this new program she was fairly confident that any short term memory problems that the respondent had would be able to be addressed by the program. The Evidence of Rebecca Goddard [66] Ms Goddard gave evidence that she was the co-ordinator of the Catholic Prisons Ministry and that there were efforts being made to investigate the possibility of accommodation for the respondent if he was to be released in the near future. Ms Goddard indicated they were also aware of several applications that the respondent had made on his own behalf and that she was aware he in fact had an application with the Department of Housing already as well as several other housing organisations that they have a lot of involvement with. 13 Transcript of Proceedings, 6 February 2007, p 61. -- 13 of 20 -- 14 [67] Ms Goddard indicated however that they could not take the matter any further until they knew what conditions were to be attached to a supervision order if it were to be put in place. Ms Goddard indicated that normally her organisation was successful in finding accommodation for people like the respondent and indicated that it was probably likely to be a “bed sit situation” in one of the housing organisations in Brisbane. Ms Goddard indicated that most of the organisations run complexes that are reasonably close to the City and it would be in a larger building that had other residents in it. [68] Ms Goddard indicated that it was unlikely that there would be families in these types of complexes as the bed sits are normally not suitable for families. She also indicated that often these complexes are exclusively for males. Ms Goddard indicated that after an initial placement, depending on how the respondent goes, there would then be other accommodation looked at down the track. Should the Respondent be Subject to a Supervision Order? [69] In coming to a decision on this issue there are numerous factors which have to be weighed up and taken into account. Firstly it is clear that in coming to a determination on this issue the primary consideration is to ensure the adequate protection of the community. In this regard it must be noted that there are no certainties and that no arrangements can be “watertight” otherwise, as the Court of Appeal indicated in the decision of in A–G (Qld) v Francis14 no supervision orders would ever be made. The court held: “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.” [70] The previous decisions also indicate that what is required is to focus on the particular nature of the risk which the respondent poses to the community. In this case it is clearly children as the respondent has a clear diagnosis of paedophilia. Can a supervision order adequately manage this risk? What are the Terms of the Supervision Order [71] The supervision order which is proposed contains some forty conditions which are aimed at modifying the risk. In particular the conditions require that the respondent be actively supervised by a corrective services officer for the duration of the order. The respondent would have rigid reporting requirements and he must obtain approval for every place in which he lives and he must have the assessment and approval of a Corrective Services Officer even as to the type of accommodation he lives in. He must not reside at any place or have overnight stays without permission of the officer and he must advise of every change of his place of residence. The 14 [2006] QCA 324. -- 14 of 20 -- 15 respondent is not allowed to leave Queensland without express permission of the officer and he must comply with every reasonable direction of the officer. [72] The proposed conditions require that the respondent must respond truthfully to all inquiries by the officer about his whereabouts and movements. He is not allowed to have any contact of any sort with any victim of his previous offences without the prior approval of the officer and he must notify the officer of the make and model and registration number of any car which he owns or generally drives. [73] The respondent would not be allowed to consume alcohol or drugs or even visit premises that are licensed to serve alcohol without the written permission of the authorised officer. He must also submit to drug and alcohol testing, including random urine analysis and breath testing. [74] The conditions also include a requirement that he attend upon and submit to assessment and/or treatment and testing by a psychiatrist, psychologist or social worker, counsellor or other health professional as directed by the corrective services officer at a frequency and duration which is to be recommended by the treating specialist. [75] The conditions also require that any medical, psychiatric, psychological or other health practitioner is able to disclose details of treatment tests and interventions and opinions relating to the respondent’s level of risk of re-offending. The respondent must also attend any program, course, psychologist or counsellor in any group or individual capacity as directed. [76] The conditions also contain a specific requirement that he be assessed for a sexual offending maintenance program and if he is referred to the program he is required to participate in the program and he must attend the program as directed by the officer. [77] The respondent must not have any unsupervised contact with children under the age of 16 years and he must not even have supervised contact with children under 16 except with the prior written approval of the officer. Further, he is required to disclose the term of the order and the nature of the offences to all guardians and care givers of children before any such contact can be made. [78] The conditions also state that the respondent must not join any Club or organisation or group without permission of the officer and he must not even affiliate or attend on the premises or at activities carried out by any Club or organisation in respect of which there are reasonable grounds for believing there is child membership or child participation. [79] The respondent cannot be at shopping centres between 8 am and 9.30 am or between 2.30 pm and 4.30 pm on school days other than for employment or bona fide pre arranged appointments, such as with a medical practitioner. [80] The conditions specify that the respondent is not allowed to be at public parks without permission of the officer or reside with a person who has care of children under 16 years of age. The respondent must also not enter into a relationship with a person who has the care of children under 16 without the prior written approval of the officer. -- 15 of 20 -- 16 [81] The conditions stipulate that the respondent must not access pornographic images of children on a computer or the internet and he must even have the prior written approval of the officer before he can access a computer or the internet for any purpose. [82] The conditions require the respondent to comply with time and location restrictions and be in physical attendance at a place and between the times nominated by an authorised Corrective Services Officer. The respondent is essentially under a curfew and he is not allowed to leave his place of residence between the hours of 9 pm and 6 am without the prior written approval of the officer. Conclusion [83] I accept that the respondent is not a high risk of violent offending even though Professor Nurcombe scored the respondent higher in this category than Dr Beech. I agree with Dr Beech’s conclusion that the respondent is a low risk in this regard and with his statement:15 “…. earlier in his life there were some convictions or charges of violence but there hasn’t been any violence that I am aware of, other than that in 1999 when there was the attempted sodomy or sodomy. But apart from that there is no history of violence, and that’s also borne out by his institutional record.” Given the respondent’s age and increasing health concerns I do not consider there is sufficient evidence that there is a high risk of violence. [84] Whilst the risk of sexual recidivism has been categorised as high I accept that the supervision order in the terms proposed reduces this risk significantly. I also accept that the respondent’s age and ill health are to some extent also mitigating factors in this regard. In particular I note his continuing ill health and his recent transient ischaemic attacks. [85] I also accept that the respondent’s offences have been opportunistic and he has not sought out his victims. [86] I accept that all the reports indicate that the respondent is not a psychopath and neither does he have an antisocial personality disorder. [87] I accept that alcohol played a part in some of the offences and the respondent’s reliance on alcohol is currently in remission. The evidence clearly indicates that the respondent has previously successfully taken part in an alcohol abuse relapse prevention program and is prepared to take part in further such courses. The proposed supervision order also requires as one of its conditions that the respondent refrain from alcohol during the period of the order. [88] There is clear evidence that the respondent will benefit from counselling and treatment programs and he has agreed to participate in such programs and treatment. Furthermore the supervision order requires the respondent to undertake counselling and treatment as required and in particular the conditions require him to be assessed for a sexual offending maintenance program and attend such a program if required. 15 Transcript of Proceedings, 5 February 2007, p12, lines 6-15. -- 16 of 20 -- 17 [89] The conditions imposed are so restrictive they virtually eliminate the possibility of contact with children under the age of 16 years. [90] The respondent has now, on his own initiative, contacted and organised support in the community from Community Bridges which is a community organisation that has experience with sex offenders. The co-ordinator of this organisation has indicated that the organisation has been contacted by the respondent and they are prepared to support him. I accept that such support will also reduce the risk of re- offending. [91] The Catholic Prison Ministry has similarly been contacted by the respondent and that organisation is confident that they can obtain suitable accommodation for the respondent in a residential bed-sit complex where he would not have contact with children. [92] Both the expert psychiatrists indicated that the appropriate term of the order would be between five and ten years. I consider that given the serious consequences should the respondent re-offend a term of ten years is appropriate. [93] The Corrective Services Department is required to closely monitor the respondent and as the Court of Appeal indicated in the Francis decision16 “The Act thus assumes that supervision will be available. The court should not conclude either that it will not be made available or that it will not be made sufficiently available in the absence of clear evidence to that effect…” [94] It is also clear from the Act that if the respondent does not fulfil these conditions that is if he should fail to attend a program, break a curfew, go to a shopping centre outside the hours he is permitted to or breach the conditions in any way then a summons or warrant may issue requiring the respondent to appear before this court in accordance with Section 20. Section 22 then provides that if the court is satisfied that the respondent is likely to contravene, is contravening, or has contravened the supervision order then the court may make an order for the respondent’s continuing detention or amend the terms of the supervision order. [95] Having taken all of these matters into consideration I am satisfied that the adequate protection of the community can be ensured by the making of a supervision order. THE ORDER OF THE COURT IS THAT: 1. The Court is satisfied to the requisite standard that the respondent, HTR, is a serious danger to the community in the absence of an order pursuant to Division 3 of the Dangerous Prisoners (Sexual Offenders) Act 2003. 2. The respondent be subject to the following conditions until 13 February 2017 or further order of the Court: The respondent must: (i) be under the supervision of an authorised corrective services officer for the duration of the order; 16 [2006] QCA 324 at [36] – [37]. -- 17 of 20 -- 18 (ii) 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/or within 24 hours of 13 February 2017), the day of release from custody and at that time advise the officer of the respondent’s 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 the prisoners name, place of residence or employment at least two business days before the change occurs; (v) 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; (vi) 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; (vii) reside at a place within the State of Queensland as approved by a corrective services officer by way of a suitability assessment; (viii) not reside at a place by way of short term accommodation including overnight stays without the permission of the authorised corrective services officer; (ix) must seek permission and obtain the approval of an authorised corrective services officer prior to any change of residence; (x) not leave or stay out of Queensland without the written permission of an authorised corrective services officer; (xi) not commit an offence of a sexual nature during the period of the order; (xii) not commit an indictable offence during the period of the order; (xiii) must comply with every reasonable direction of an authorised corrective services officer; (xiv) respond truthfully to enquiries by authorised corrective services officers about his whereabouts and movements generally; (xv) not to have any direct or indirect contact with a victim of his sexual offences without the prior approval of the authorised corrective services officer; (xvi) 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; (xvii) abstain from the consumption of alcohol for the duration of this order; (xviii) abstain from illicit drugs for the duration of this order; (xix) take prescribed drugs as directed by a medical practitioner; (xx) not visit premises licensed to supply or serve alcohol, without the prior written permission of the authorised corrective services officer; (xxi) submit to any form of drug and alcohol testing including both random urinalysis and breath testing as directed by the authorised corrective services officer; (xxii) Attend upon and submit to assessment and/or treatment and/or testing by a psychiatrist, psychologist, social worker, counsellor or other health professional as directed by the authorised corrective services officer at a frequency and duration which shall be recommended by the treating -- 18 of 20 -- 19 intervention specialist, the expense of which is to be met by Queensland Corrective Services; (xxiii) permit any medical, psychiatric, psychological or other health practitioner to disclose details of treatment, tests, 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; (xxiv) attend any program, course, psychologist or counsellor, in a group or individual capacity, as directed by an authorised corrective services officer in consultation with treating medical, psychiatric, psychological or other mental health practitioners where appropriate; (xxv) be assessed for a sexual offending maintenance program and, if referred to participate in such program, attend the program as directed by a corrective services officer; (xxvi) not have any unsupervised contact with children under 16 years of age; (xxvii) not have any supervised contact with children under 16 years of age except with prior written approval of an authorised corrective services officer. The respondent is required to fully disclose the terms of the order and nature of offences to the guardians and caregivers of the children before any such contact can take place; Queensland Corrective Services may disclose information pertaining to the offender to guardians or caregivers and external agencies (i.e. Department of Child Safety) in the interests of ensuring the safety of the children; (xxviii) not establish and maintain contact with children under 16 years of age without written prior approval by an authorised corrective services officer; (xxix) seek written permission from an authorised corrective services officer prior to joining, affiliating with or attending on the premises of any club, organisation or group; (xxx) not join, affiliate with, attend on the premises of or attend at the activities carried on by any club or organisation in respect of which there are reasonable grounds for believing there is either child membership or child participation; (xxxi) not be on the premises of any shopping centre, without reasonable excuse, between 8am to 9.30am and between 2.30pm and 4.30pm on school days other than for the purpose of: i. approved employment ii. attending an approved bona fide pre-arranged appointment with a Government agency, medical practitioner or the like; (xxxii) not visit public parks without prior written permission from the authorised corrective services office; (xxxiii) not reside with a person who has the care of children under 16 years of age without the prior written approval of the corrective services officer; (xxxiv) not enter into a relationship with a person who has the care of children under 16 years of age without the prior written approval of the corrective services officer; (xxxv) not access pornographic images that display photographs or images of children on a computer or on the internet or in any other format; (xxxvi) obtain the prior written approval of the authorised corrective services officer before accessing a computer or the internet; (xxxvii) comply with the time and location restrictions contained within your order; -- 19 of 20 -- 20 (xxxviii) be in physical attendance at a place and between the times nominated by the authorised corrective services officer; (xxxix) comply with all reasonable curfew restrictions imposed by the authorised corrective services officer; and (xl) be in attendance at and not leave the approved place of residence between the hours of 9 pm and 6 am without the prior approval of the authorised corrective services officer. -- 20 of 20 --