Attorney-General for the State of Queensland v B [2006] QSC 227

SUPREME COURT OF QUEENSLAND CITATION: Attorney-General for the State of Queensland v B [2006] QSC 227 PARTIES: ATTORNEY-GENERAL FOR THE STATE OF QUEENSLAND (applicant) v B (respondent) FILE NO/S: BS 3318 of 2006 DIVISION: Trial Division PROCEEDING: Civil Application ORIGINATING COURT: Supreme Court at Brisbane DELIVERED ON: 28 August 2006 DELIVERED AT: Brisbane HEARING DATE: 8 August 2006 JUDGE: Lyons J ORDER: 1. The court is satisfied to the requisite standard that the respondent is a serious danger to the community in the absence of a supervision order pursuant to s 13(2)(b) of Division 3 of the Dangerous Prisoners (Sexual Offenders) Act 2003. 2. On release the respondent is subject to the following conditions for a period of 10 years. The respondent must: i) be under the supervision of a corrective services officer (‘The Supervising Corrective Services Officer’) for the duration of this order; ii) report to the Supervising Corrective Services Officer at the Department of Corrective Services Area Office closest to his place of residence between 9 am and 4 pm on the day of his release subject to the supervision order and advise the officer of the respondent’s current name and address; iii) reside at a place within the State of Queensland as approved by a Corrective Services Officer -- 1 of 18 -- 2 by way of a suitability assessment. iv) report to and receive visits from the Supervising Corrective Services Officer at such frequency as determined necessary by the Supervising Corrective Services Officer; v) notify the Supervising Corrective Services Officer of every change of the prisoner’s name at least two business days before the change occurs; vi) notify the Supervising Corrective Services Officer of the nature of his employment, the hours of work each day, the name of his employer and the address of the premises where he is employed; vii) notify the Supervising Corrective Services Officer of every change of employment at least two business days before the change occurs; viii) notify the Supervising Corrective Services Officer of every anticipated change of the respondent’s place of residence at least two business days prior to the change and obtain the approval of the Supervising Corrective Services Officer prior to the change; ix) not leave or stay out of the State of Queensland without the written permission of the Supervising Corrective Services Officer; x) not commit an offence of a sexual nature during the period for which this order operates; xi) obey the lawful and reasonable directions of the Supervising Corrective Services Officer; xii) respond truthfully to enquiries by the Supervising Corrective Services Officer about his whereabouts and movements generally; xiii) 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; xiv) not be on the premises of any shopping centre, without reasonable excuse, between 8 a m to 9.30 am and between 2.30 pm and 4.30 pm on school days other than for the purposes of: a. employment; or b. attending a bona fide pre-arranged appointment with a government agency, medical practitioner or the like; c. for any other purpose if the Supervising Corrective Services Officer has given prior approval in writing; xv) not visit public parks without prior written -- 2 of 18 -- 3 permission from the ` Supervising Corrective Services Officer; xvi) not without reasonable excuse be in the area within 200 metres of a school between 8 am to 9.30 am and 2.30 pm to 4.30 pm on school days; xvii) not undertake unsupervised care of children; xviii) not establish and maintain unsupervised contact with children under 16 years of age; xix) not without reasonable excuse be within 200 metres of a children’s playground or child care area; xx) not access pornographic images containing photographs or images of children on a computer or on the Internet or in any other format; xxi) notify the Supervising Corrective Services Officer of the make, model, colour and registration number of any motor vehicle owned by or generally driven by him; xxii) abstain from illicit drugs and from alcohol for the duration of this Order; xxiii) take prescribed drugs only as directed by a medical practitioner; xxiv) submit to alcohol and drug testing as directed by a corrective services officer, the expense of which is to be met by the Department of Corrective Services; xxv) attend a psychiatrist or other mental health practitioner who has been approved by the Supervising Corrective Services Officer at a frequency and duration which shall be recommended by the treating psychiatrist, the expense of which is to be met by the Department of Corrective Services; xxvi) permit any treating psychiatrist or mental health practitioner to disclose details of medical treatment and opinions relating to his level of risk of re-offending and compliance with this Order to the Department of Corrective Services if such request is made in writing for the purposes of updating or amending the supervision order and/or ensuring compliance with this order; xxvii) attend any program, course, psychologist, counsellor or other mental health practitioner, in a group or individual capacity, as directed by the treating psychiatrist and the Supervising Corrective Services Officer the expense of which is to be met by the Department of Corrective Services; -- 3 of 18 -- 4 xxviii) agree to undergo medical testing or treatment (including the testing of testosterone levels by an endocrinologist) as deemed necessary by the treating psychiatrist and the Supervising Corrective Services Officer, and permit the release of the results and details of the testing to the Department of Corrective Services, if such a request is made in writing for the purposes of updating or amending the supervision order, the expense of which is to be met by the Department of Corrective Services; xxix) not associate with persons known by him to have been convicted, within the last twenty years, of any sexual offence involving persons under the age of 18. 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 – whether respondent is a “serious sexual offender” – whether respondent is to be released from prison subject to a supervision order – conditions appropriate and practicable to reduce the risk to the community – duration of the order Dangerous Prisoners (Sexual Offenders) Act 2003, Division 3, s 5, s 11, s 13, s 13(1), s 13(4) Attorney-General (Qld) v Fardon [2003] QSC 331 Attorney-General (Qld) v G [2005] QSC 071 Attorney-General (Qld) v Hansen [2006] QSC 035 Attorney-General (Qld) v Nash [2003] QSC 377 Attorney-General (Qld) v Van Dessel [2006] QCA 2006 COUNSEL: M Hinson SC for the applicant S Hamlyn-Harris for the respondent SOLICITORS: Crown Law for the applicant Legal Aid Queensland for the respondent LYONS J: Introduction [2] B (the respondent in this case) is 58 years old and has been in jail for the last twelve and half years for sexual offences. These offences included offences in relation to children namely indecent dealing, rape and incest. He has served the full term of his imprisonment and is due for release on 31 August 2006. -- 4 of 18 -- 5 [3] Since June 2003 the Dangerous Prisoners (Sexual Offenders) Act 2003 (“the Act”) has provided for the continued detention or supervised release of prisoners who are serving a period of imprisonment for a serious sexual offence in certain circumstances. As Atkinson J has noted in Attorney-General (Qld) v Fardon:1 “This Act enables the court to order post sentence preventative detention or supervision of persons serving sentences for serious sexual offences who pose a serious danger to the community”. [4] On 20 April 2006 the Attorney-General brought an application under s 13 of the Act for a “Division 3 Order”, which is defined as either a continuing detention order or a supervision order, in relation to the respondent. Such an order can be made if the court is satisfied the respondent will be a serious danger to the community in the absence of either a continuing detention order or a supervision order.2 This test is met if the court is satisfied that there is an unacceptable risk that the prisoner will commit a serious sexual offence if he is released or released without a supervision order.3 [5] Essentially there are five potential questions which need to be determined by this court: (i) does the Act apply to the respondent? (ii) is the respondent a serious danger to the community without a detention or supervision order being imposed? (iii) if the respondent is a serious danger to the community, what is the appropriate order? (iv) if a supervision order is appropriate, what are the terms of the supervision order? (v) what should be the period of supervision? 4 Does the Act apply to the respondent? [6] Under s 5 of the Act the Attorney-General may apply for an order in relation to a prisoner who is currently serving a period of imprisonment for a serious sexual offence. A serious sexual offence is defined as an offence of a sexual nature involving either violence or is an offence against children. [7] The respondent was sentenced in the Rockhampton District Court on 2 December 1994 for some 30 offences involving five victims over a period of twenty years. He had been to trial for a small number of the offences and had then pleaded guilty to the majority of the offences at a subsequent hearing. He was sentenced on 2 December 1994 and Nase J made the following sentencing remarks: “The offences involve five separate children and your conduct towards the children speaking generally was of a very serious type. You committed offences which ranged from rape and incest to 1 [2003] QSC 331at [1] 2 Dangerous Prisoners (Sexual Offences) Act 2003 (Qld) s 13(1) 3 Dangerous Prisoners (Sexual Offences) Act 2003 (Qld) s 13(2) 4 Attorney-General (Qld) v Van Dessel [2006] QCA 2006 -- 5 of 18 -- 6 offences of indecent dealing. The ages of the children involved ranged from 5½ to, in the case of your daughter, 16 or 17.” [8] The respondent is currently a prisoner detained in custody.5 His sentence clearly relates to offences of a sexual nature involving children and accordingly come within the definition of a serious sexual offence.6 The application has also been made in the last six months of the prisoner’s period of imprisonment. The provisions of s 5 of the Act have therefore been satisfied and an application may be made pursuant to the Act in relation to the respondent. [9] In accordance with s 8 of the Act, a preliminary hearing, before Atkinson J, was held on 16 May 2006 and an order was made setting a date for the hearing of the application. It was further ordered that the respondent undergo examinations by two psychiatrists, namely Dr Grant and Dr Lawrence. They were requested to provide independent reports in accordance with s 11 of the Act, which states that the reports must indicate the psychiatrists assessment of the level of risk that the prisoner will commit another serious sexual offence if released from custody or released from custody without a supervision order being made. The reports must also set out the reasons for the psychiatrist’s assessment. Is the respondent a serious danger to the community in the absence of a Division 3 order? [10] Section 13 of the Act sets out the matters which must be taken into account in order to answer this question. Essentially the question for the court is whether there is an unacceptable risk to a high degree of probability based on acceptable cogent evidence that if the respondent is released from custody, or if he is released without a supervision order, he will commit a serious sexual offence. [11] In deciding whether a prisoner is a serious danger to the community the court must have regard to a number of matters set out in s 13(4). This subsection relevantly proves that: “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 112 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; 5 See Attorney-General (Qld) v G [2005] QSC 071 at [9]; Attorney-General (Qld) v Nash [2003] QSC 377 at [4] 6 See Schedule to the Dangerous Prisoners (Sexual Offences) Act 2003 (Qld) -- 6 of 18 -- 7 (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.” [12] The Department of Corrective Services have made available copies of all of their files in relation to the respondent and copies of these files were made available to the psychiatrists. The respondent has now been assessed by the two independent psychiatrists who have considered the matters set out in s 13. A report by Dr Parsons, a psychologist, in relation to the respondents intellectual functioning has also been prepared. The respondent has co-operated in all of these examinations. Both psychiatrists appear to be in broad agreement in their reports and there is no real dispute in relation to any factual matters. The reports basically chronicle a similar historical background in the following terms. Criminal History [13] The respondent’s criminal history prior to the serious sexual offences includes convictions for obscene language in 1981, break and enter with intent in December 1983, driving a motor vehicle with a blood alcohol of .11 in 1985, unlicensed driving in April 1985 and in August 1985 driving a motor vehicle with a blood alcohol of .11. On those occasions he was sentenced to community service and disqualified from driving. The respondent had not been in prison prior to the sexual offence convictions. [14] The respondent was convicted of the following sexual offences: 1. four charges of indecent dealing and one charge of rape upon his step daughter during the period 1974 to 1982; 2. four charges of indecent dealing and one of rape and one of attempted rape on another step daughter between 1975 and 1983; 3. ten charges of incest between 1987 and 1993 with his daughter as well as three charges of indecent dealing with her between 1984 and 1990; and 4. other convictions related to wilfully exposing a child under 16 to an indecent video tape and of indecent dealing in 1992 and 1993. These charges related to three other pre-pubertal girls who were daughters or friends of the daughters. The girls were as young as 5½ years. Where the offences were repeated they were often accompanied by threats of harm to the children, -- 7 of 18 -- 8 warnings of disbelief and threats of violence to the mother of his two daughters and his step daughters. [15] One step daughter is reported to have taken an overdose at the age of 13 because of her distress in relation to these offences. The offences continued during school holiday visits to the father after the respondent and the mother of the children separated. At one stage one of the daughters was living with her father in railway huts and was subjected to sex three or four times per week. Family history [16] Both psychiatrists found it very difficult to obtain an accurate family history from the respondent, however, it would appear that he has three brothers and three sisters and that he is the second of the seven siblings. His parents separated when he was around 10 and following the separation he went to live with his father and a younger brother in Western Queensland. His father travelled around the West working, mainly with the railways. The rest of his family stayed with his mother in Brisbane. The respondent’s mother died of leukaemia when he was about 18 and his father subsequently died of a heart attack. [17] The respondent has sporadic contact with his siblings with the closest contact being with his older sister who is 59. The respondent is in close telephone contact with her on a weekly basis and she used to visit him monthly when he was at Palen Creek. This sister acts as the focus for communication with the rest of the family. She also sends the respondent money every month. The respondent reports that despite his siblings being dismayed by his offences they have all stuck by him and kept in contact with him from time to time. His greatest support however will be his older sister and her children who are also supportive. Educational and work background [18] From his history it would appear that the respondent left school in Grade 5 at the age of 14½. The respondent stated “It took 9 years to get half way through Grade 5”. He went to school mainly out West and did some correspondence study at one stage in one of the railway camps when he was living with his father. The respondent would appear to have been born somewhere near Roma and was raised “out bush”. It is quite clear that the respondent was very slow at school and had great difficulty learning. It would also seem that he had memory problems from an early age. [19] After leaving school the respondent did a variety of labouring jobs and worked mainly with the railways. The psychiatrists’ reports indicate a generally happy childhood despite the fact his parents were separated as he went with his father and his father generally took care of him. There is only one report of an attempted sexual assault during his teenage years which he seemed to have been protected from by an older man who looked after him in the railway gangs. -- 8 of 18 -- 9 [20] Whilst the respondent was vague to both psychiatrists when reporting his relationship history it would seem that he was married and that he stayed with his wife between five and ten years. He had two daughters to his wife but he is not aware of how old they are and he also knows that his de facto had two or three children. Once again he has no idea of their ages. Medical History [21] The respondent’s most significant medical condition is a painful back injury. He injured his back in early 1994 prior to coming into prison and he then injured his back again in 2004 whilst at Palen Creek. He has disc damage in his lumbar spine and sciatica. The respondent’s medical file indicates a history of lower back pain and x- rays, CT scans and an MRI scan reveal a disc bulge at L5/S1. The respondent had physiotherapy in 2004 and 2005 and a back brace was fitted which he uses whenever he mobilises. Since 2004 he has used a walking stick. The respondent experiences chronic pain and needs to spend a great deal of time resting to relieve the pain. The respondent has experienced significant weight loss over the last couple of years and currently weighs 54 kilograms. [22] The respondent also suffers from dyspepsia and asthma and receives treatment for both of these conditions. The respondent also suffers from heart disease and would appear to have had a heart attack in 1995 or 1996 and whilst his file refers to “permanent heart damage”, he is not currently receiving any treatment or medication for this condition. [23] A further significant factor is that the respondent experienced a head injury at the age of 17 and was unconscious for 4 or 5 days. Whilst it is unsure as to whether the respondent suffered a fractured skull he has experienced migraine headaches since this time and in particular has a history of migraines which he can experience up to three or four times a week. There has not been a diagnosis of brain damage as a result of this accident. [24] Dr Grant reports that when the respondent first came to prison he had some anxiety and that he had some treatment for this in the early days of his imprisonment and whilst he had some Clonazepam, this was gradually reduced and eventually was ceased in 1997. The respondent has not had any psychiatric attention since 1997 and he is on no current medication for this purpose. Alcohol and drug history [25] Both psychiatrists report a history of some alcohol abuse with him drinking excessively in 1985 to the extent that he was charged with drink driving. Dr Grant reports the respondent drinking to the extent where he had amnesia for events that occurred whilst he was intoxicated. Whilst there is some inconsistency about when the respondent gave up drinking, he would appear to have given up drinking at some point after the drink driving offences but he then resumed drinking again but at a less serious level. There are reports that he gave up drinking some two years before he went to jail. The respondent has never had any treatment for alcohol related problems and there was -- 9 of 18 -- 10 no indication of problems with withdrawal from alcohol on his entry into prison. There is no indication that the respondent has ever used illicit drugs. The respondent currently smokes about two packets of cigarettes a week. Dr Parsons Report [26] Dr Parsons is a psychologist who carried out formal psychometric testing on the respondent and the Wechsler Adult Intelligence Scale – Revised (WAIS-R) was administered. On this test the respondent obtained a full scale IQ of 76 which indicates that his score falls within the borderline level of intellectual disability. Overall Dr Parson’s Report, dated 6 June 2006, concluded that the respondent has a very poor general intellectual ability, visual memory, verbal comprehension and perceptual organisation. In particular it was noted that abstract thought and decision making are difficult for him. [27] Dr Parsons also commented that whilst the respondent made a good effort with all of the sub tests presented to him, he was so slow to respond that at times his slowness prevented him from gaining a score, that is he finished the task but not within the time limit set. [28] Dr Parsons concluded that the respondent’s long term memory would also appear to be poor and that his cognitive difficulties in reading and writing were obvious. Dr Parsons concluded that whilst the respondent was able to read some fairly difficult words he did not know what the words meant. Dr Parsons also indicated that the respondent had both short term and long term memory difficulties as well as visual memory problems and some problems with perceptual organisation. Importantly Dr Parsons concluded that compared to his age group, 91 per cent of people function at a higher level than the respondent. Prison history [29] It appears that after he was sentenced in 1994 the respondent was in Rockhampton prison for about five years and was then transferred to Wolston Correctional Centre for two years. In 2001 he was sent to the Palen Creek prison farm, which has an open classification, and he spent about two and a half years there. Whilst the respondent spent some time in the Princess Alexandra Hospital for medical treatment he has, since at least 2004, been in the Wolston Correctional Centre. He is in the residential protected prison area with an open classification. [30] The respondent has kept a low profile in prison and generally has a good relationship with prison officers and other inmates. A sentence management review document dated 25 June 2001 states: 7 “He is always patient and complies with all rules and requests. He interacts positively with others. He always maintains a stable, 7 Doc 17 – Affidavit of Greg Brown sworn 12 April 2006 (GB-2) at p 580 -- 10 of 18 -- 11 positive mood. His cell is always kept clean and tidy to a very high standard. His personal hygiene is to a very high standard. He always presents as clean and well groomed. His dress is always clean and well maintained. Prisoner B has a stable history of employment. Currently employed. He is always punctual and attends and responds when required. He uses his time in a constructive way. It has been noted that prisoner B is a model prisoner and he always displays excellent behaviour and a positive attitude.” [31] There are other references in the Corrective Services Records that also point to B being considered a model prisoner. Whilst in prison B has completed some courses, he did some nine months of a literacy course but had to cease because he was having difficulty with his memory and could not retain the course material. B did a course on laundry techniques as well as an occupational health and safety course. He also completed an introduction to computers course although he is unable to recall any great detail of the program that he undertook. [32] The Corrective Service Records also show that B was unable to participate in the Sexual Offender Treatment Program (SOTP) because it was determined that his borderline intellectual capacity would not allow him to adequately participate in the program. Future plans [33] The respondent expects to get a disability support pension should he be released from prison and anticipates renting a flat whilst waiting for a Housing Commission flat. He believes that in the short term he could stay with his older sister. [34] The respondent reports that he believes that his biggest problem on leaving prison will be his back pain and that he will have to rest a lot to cope with the pain. The respondent cannot walk for any significant period of time given the level of pain he is in. If his back pain improves he would hope to take up some hobbies which included fishing and gem fossicking. [35] It is noted that the respondent stated to the psychiatrist that he has lost all interest in sexual matters because of the pain.8 He anticipates leading a very quiet life on his release from prison. He anticipates that he will have to go the Princess Alexandra Hospital for treatment for his back pain and that his brothers and sisters will assist him in going to the hospital for his treatment. Whilst he was initially doing work at the prison he is currently not able to do any work due to his level of back pain and he lies on his bed most days with his feet elevated to keep his back straight to relieve the pain. 8 Transcript of Proceedings, page 15, line 40 -- 11 of 18 -- 12 [36] The various reports comment that the respondent is an elderly looking man who seems older than his years and that he walks with a walking stick with apparent stiffness and discomfort. Conclusion [37] Turning then to the specific question of whether the respondent is a serious danger to the community. In answering this question the Court must take into account those matters which are set out in s 13(4). It must also be remembered that the applicant has the onus of proving that the respondent is a serious danger to the community and the Court must be satisfied by acceptable cogent evidence to a high degree of probability that the evidence is sufficient to justify the decision. In coming to this determination the reports of the psychiatrists have been of considerable assistance particularly in relation to the issue of whether there is a propensity to commit offences in the future. [38] Dr Grant considers the respondent is “at least a moderate risk of reoffending” but points to factors mitigating against this risk “such as his age and especially his physical disability”. Dr Grant summarises his opinion in this way: 9 “In summary, the respondent in his current condition represents a relatively low risk of re-offending if he is released from prison. However, the risk is not insignificant, particularly if his physical condition were to improve, with concomitant improvement in sexual functioning. Therefore, in my opinion a supervision order containing strict conditions that his contact with children should form an essential part of any release from custody. From the treatment point of view it is unlikely that continuing detention in prison would provide any benefit.” [39] In coming to this conclusion Dr Grant applied a number of recognised assessment instruments which give guidance from a statistical point of view as to the likelihood of reoffending. Some of these instruments are actuarial using static factors only and are thus largely reliant on past factors proceeding the respondent’s imprisonment and other instruments combine actuarial static factors with more dynamic and clinical factors. The instruments which Dr Grant used are the: (a) Psychopathy Check List Revised (PCL-R); (b) Static 99; (c) VRAG ; (d) HCR-20; (e) SVR-20; and (f) Sonar. [40] The PCL-R indicated that the respondent does not have any significant pscychopathatic personality traits. The Static 99 indicated that he had a moderate-low risk of reoffending. The VRAG actuarial instruments scored the respondent in category 4 9 Report of Dr Grant, filed on 31 July 2006, page 25 -- 12 of 18 -- 13 which indicates that at 7 years the percentage likelihood of reoffending is 17 per cent and at 10 years 31 per cent. The HCR-20 indicated that the respondent had a low to moderate risk of re-offending. The Sonar indicated he had a low risk of reoffending but the SVR-20 indicated he would have a moderate to high risk of reoffending. [41] Dr Grant concluded that taking into account these instruments, his offending behaviour, his attitude, his intelligence level, his past alcohol history and his lack of treatment, all of theses factors would suggest a moderate risk of reoffending. Dr Grant considered however, that there were factors which mitigate against this risk, such as his age and his physical condition, which consequently reduce the overall risk level to low. [42] Dr Lawrence used some of the tools that were used by Dr Grant but also utilised some different tools. Both Dr Grant and Dr Lawrence had similar results on the PCL-R testing for psychopathy and neither of them believe that the respondent would be considered a psychopath. Both Dr Lawrence and Dr Grant used the HCR-20 and Dr Lawrence concluded that he would be a moderate risk of recidivism whereas Dr Grant considered that there would be a low to moderate risk of reoffending. The VRAG was also used by Dr Lawrence and whilst there was some difference of opinion in that scoring, the differences are not considered to be significant.10 Dr Lawrence considered the respondent was in category 6 whereas Dr Grant considered he was in category 4 and this therefore affected the probability of reoffending in terms of percentages. Dr Lawrence’s figures were a 44 per cent probability of reoffending within 7 years and a 58 per cent risk of reoffending within 10 years. Both psychiatrists noted that the offences appear to have taken place in a setting of considerable chronic alcohol abuse. [43] Both psychiatrists note that the respondent is probably of borderline intelligence. Dr Lawrence considered that the factors which are called negative indicators for risk factors, which actually increase the risk are his low intelligence, his lack of acknowledgement of his sexual offending or any sexual activity, and lack of true acceptance of the wrongfulness of behaviour, and his lack of participation in remediation programs. [44] On the positive side however, which means that they decrease the risk of offending, Dr Lawrence considered that there was no evidence that he suffers from psychopathy and that another factor was his age which she stated to be 59. Dr Lawrence also considered that it is possible that his libido and his interest in sexual activity may have decreased. Dr Lawrence also considered that his psychical condition made him appear frail and that his long standing dependence on narcotic drugs would decrease his sexual libido and performance. She considered that whilst he might be exaggerating the degree of physical impairment, he clearly does have physical limitations. [45] Counsel for the respondent indicated that his instructions were that the respondent did not oppose the making of a Division 3 order and essentially agreed that a supervision order should be made. The Court however must actually be satisfied that the respondent is indeed a serious danger to the community as required by s 13. 10 Transcript of Proceedings, page 4, line 40 -- 13 of 18 -- 14 [46] Having considered all of the available evidence in relation to the matters I must take into account in accordance with s 13(4) and placing particular reliance on the psychiatrists reports, particularly after considering the recognised assessment instruments together with the clinical factors, I am satisfied that there is acceptable cogent evidence to a high degree of probability and that the evidence is of sufficient weight to conclude the respondent is a serious danger to the community. This means that without a Division 3 order there is an unacceptable risk that he would commit a serious sexual offence. Should the respondent be subject to a continuing detention order or be released under a supervision order? [47] Having determined that the respondent is in fact a serious danger to the community without a Division 3 order the next question which needs to be determined is what sort of Division 3 order should be made. Should it be a continuing detention order or a supervision order? Section 13(6) makes it clear that in coming to a determination on this issue the paramount consideration is the need to ensure adequate protection of the community. [48] Both Dr Lawrence and Dr Grant agreed that there was no evidence of the respondent engaging in predatory or otherwise compulsive sexual offending, that is, he does not appear to loiter around schools or assault strangers in public places. In this respect both psychiatrists noted that the respondent’s offending had previously involved family members or friends of family members rather than approaches to strangers in public places. However both psychiatrists considered that it was important that the usual conditions in relation to schools and parks also be included. This was to ensure that the respondent was aware that contact with children was not considered to be appropriate. [49] Both psychiatrists noted that the respondent had been unable to participate in a sexual offenders treatment program due to his non acceptance into the program because of his low intellectual functioning. His intellectual level was assessed repeatedly by psychologists within the correctional system as being inadequate to address the more advanced cognitive aspects necessary for participation in the sexual offender treatment programs. [50] Whilst the respondent has indicated to both psychiatrists that he was remorseful there was clearly nothing that could be objectively read into the statements as there was a belief that he was merely saying the words without any true feeling behind them. There was concern from both psychiatrists that there was no true acceptance of his sexual offending or the wrongfulness of it. [51] Dr Lawrence made the important comment however that a significant factor was that the respondent had received 12 years jail for his behaviour and that this was a real deterrent for him. Dr Lawrence was satisfied that the respondent genuinely did not wish to have any other periods of time in jail. Dr Lawrence referred to the fact that the respondent stated several times to her that he not want to return to jail and this would be the major factor operating to deter him from reoffending. -- 14 of 18 -- 15 Conclusion [52] Both Dr Lawrence and Dr Grant considered that whilst the respondent was a moderate risk of recidivism they believed that the risks could be managed by appropriate supervision and conditions imposed on his release. Dr Lawrence further noted that recent research suggests that incest offenders have a lower risk of recidivism than other types of sexual offenders and that the rate of recidivism appears to decrease considerably after the age of 59. Accordingly if the respondent is consistent with this research then the risks of recidivism would decrease even further. [53] Taking into account the respondent’s age, his physical frailty, his genuine desire not to return to prison and his demonstrated good behaviour in prison over a long period of time I am satisfied that the adequate protection of the community can be met by the making of a supervision order. I also note that both psychiatrists concluded that there was no benefit in continuing indefinite detention for the respondent and that his continuing detention would serve no remedial purpose. What are the appropriate terms of the supervision order? [54] Both psychiatrists considered that the main protective factor for the community would be supervision with strict conditions particularly aimed at ensuring that the respondent does not have unsupervised contact with children. As Dr Grant stated it would be vital that he was never allowed to get to the situation where he was in a parental or supervisory role with children. Both Dr Lawrence and Dr Grant considered that if the respondent was to have any access to children then this needed to be supervised by responsible adults present in the same room at the same time and preferably with a realisation that there could be a risk of them being in contact with the respondent. In the circumstances therefore a supervision order is appropriate provided it contains restrictions in these terms. [55] Both psychiatrists considered that it would be preferable if the respondent could live near his siblings, particularly his older sister who was his primary contact. It is also noted that this accommodation with his sister immediately on release has now been assessed by a Corrective Services Officer as appropriate and suitable. [56] It was also considered important that the respondent not take alcohol or any other drugs, in particular drugs that were illicit drugs. It was clear that he did need some medication for his back condition. Dr Lawrence was concerned however that the drug that he was taking for his back condition was not actually recommended for treatment of his back condition and that this should be re-evaluated. [57] It was also important that the respondent not visit public parks without prior permission in writing from his supervising Corrective Services officer. -- 15 of 18 -- 16 What should be the period of the supervision order? [58] Both Dr Lawrence and Dr Grant, when specifically asked this question at the hearing,11 stated that they considered 10 years would be an appropriate period for the order to operate. Whilst some recent orders have been made involving supervision orders for periods of 20 years the court notes that these orders related to prisoners who were some ten years younger than the respondent and related to men in their forties rather than their late fifties.12 Orders 1. The court is satisfied to the requisite standard that the respondent is a serious danger to the community in the absence of a supervision order pursuant to s 13(2)(b) of Division 3 of the Dangerous Prisoners (Sexual Offenders) Act 2003. 2. On release the respondent is subject to the following conditions for a period of 10 years. The respondent must: (i) be under the supervision of a corrective services officer (‘The Supervising Corrective Services Officer’) for the duration of this order; (ii) report to the Supervising Corrective Services Officer at the Department of Corrective Services Area Office closest to his place of residence between 9 am and 4 pm on the day of his release subject to the supervision order and advise the officer of the respondent’s current name and address; (iii) reside at a place within the State of Queensland as approved by a Corrective Services Officer by way of a suitability assessment. (iv) report to and receive visits from the Supervising Corrective Services Officer at such frequency as determined necessary by the Supervising Corrective Services Officer; (v) notify the Supervising Corrective Services Officer of every change of the prisoner’s name at least two business days before the change occurs; (vi) notify the Supervising Corrective Services Officer of the nature of his employment, the hours of work each day, the name of his employer and the address of the premises where he is employed; (vii) notify the Supervising Corrective Services Officer of every change of employment at least two business days before the change occurs; (viii) notify the Supervising Corrective Services Officer of every anticipated change of the respondent’s place of residence at least two business days prior to the change and obtain the approval of the Supervising Corrective Services Officer prior to the change; 11 Transcript of Proceedings, page 6, line 38; Transcript of Proceedings, page 14, line 30 12 See Attorney-General (Qld) v Hansen [2006] QSC 035; Attorney-General (Qld) v Van Dessel [2006] QCA 285 -- 16 of 18 -- 17 (ix) not leave or stay out of the State of Queensland without the written permission of the Supervising Corrective Services Officer; (x) not commit an offence of a sexual nature during the period for which this order operates; (xi) obey the lawful and reasonable directions of the Supervising Corrective Services Officer; (xii) respond truthfully to enquiries by the Supervising Corrective Services Officer about his whereabouts and movements generally; (xiii) 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; (xiv) not be on the premises of any shopping centre, without reasonable excuse, between 8 a m to 9.30 am and between 2.30 pm and 4.30 pm on school days other than for the purposes of: a) employment; or b) attending a bona fide pre-arranged appointment with a government agency, medical practitioner or the like; c) for any other purpose if the Supervising Corrective Services Officer has given prior approval in writing; (xv) not visit public parks without prior written permission from the Supervising Corrective Services Officer; (xvi) not without reasonable excuse be in the area within 200 metres of a school between 8 am to 9.30 am and 2.30 pm to 4.30 pm on school days; (xvii) not undertake unsupervised care of children; (xviii) not establish and maintain unsupervised contact with children under 16 years of age; (xix) not without reasonable excuse be within 200 metres of a children’s playground or child care area; (xx) not access pornographic images containing photographs or images of children on a computer or on the Internet or in any other format; (xxi) notify the Supervising Corrective Services Officer of the make, model, colour and registration number of any motor vehicle owned by or generally driven by him; (xxii) abstain from illicit drugs and from alcohol for the duration of this Order; (xxiii) take prescribed drugs only as directed by a medical practitioner; (xxiv) submit to alcohol and drug testing as directed by a corrective services officer, the expense of which is to be met by the Department of Corrective Services; (xxv) attend a psychiatrist or other mental health practitioner who has been approved by the Supervising Corrective Services Officer at a frequency and duration which shall be -- 17 of 18 -- 18 recommended by the treating psychiatrist, the expense of which is to be met by the Department of Corrective Services; (xxvi) permit any treating psychiatrist or mental health practitioner to disclose details of medical treatment and opinions relating to his level of risk of re-offending and compliance with this Order to the Department of Corrective Services if such request is made in writing for the purposes of updating or amending the supervision order and/or ensuring compliance with this order; (xxvii) attend any program, course, psychologist, counsellor or other mental health practitioner, in a group or individual capacity, as directed by the treating psychiatrist and the Supervising Corrective Services Officer the expense of which is to be met by the Department of Corrective Services; (xxviii)agree to undergo medical testing or treatment (including the testing of testosterone levels by an endocrinologist) as deemed necessary by the treating psychiatrist and the Supervising Corrective Services Officer, and permit the release of the results and details of the testing to the Department of Corrective Services, if such a request is made in writing for the purposes of updating or amending the supervision order, the expense of which is to be met by the Department of Corrective Services; (xxix) not associate with persons known by him to have been convicted, within the last twenty years, of any sexual offence involving persons under the age of 18. -- 18 of 18 --