Attorney-General for the State of Queensland v Yeo [2006] QSC 63

SUPREME COURT OF QUEENSLAND CITATION: Attorney-General for the State of Queensland v Yeo [2006] QSC 063 PARTIES: ATTORNEY-GENERAL FOR THE STATE OF QUEENSLAND (applicant) v RAYMOND YEO (respondent) FILE NO/S: BS 9323 of 2005 DIVISION: Trial Division PROCEEDING: Application ORIGINATING COURT: Supreme Court DELIVERED ON: 3 April 2006 DELIVERED AT: Brisbane HEARING DATE: 16, 17 March 2006 JUDGE: Philippides J ORDER: The court is satisfied to the requisite standard and on the basis of acceptable cogent evidence that the respondent, Raymond Yeo, is a serious danger to the community in the absence of an order under division 3 of the Dangerous Prisoners (Sexual Offenders) Act 2003 (Qld). It is ordered pursuant to s 13(5)(a) of the Act that the respondent be detained in custody for an indefinite term for control, care or treatment. CATCHWORDS: STATUTES – ACTS OF PARLIAMENT – INTERPRETATION – STATUTORY POWERS AND DUTIES – EXERCISE – GENERAL MATTERS – where respondent convicted of various sexual offences against children – application by the Attorney-General to have respondent detained indefinitely or released subject to conditions pursuant to Dangerous Prisoners (Sexual Offenders) Act 2003 (Qld), s. 13 – whether respondent is a “serious danger to the community” – whether continued detention preferable over release subject to restrictive conditions Dangerous Prisoners (Sexual Offenders) Act 2003 (Qld) Attorney-General v Van Dessel [2006] QCA 16 Chester v The Queen (1988) 165 CLR 611 -- 1 of 14 -- 2 COUNSEL: J Horton for the applicant P Smith for the respondent SOLICITORS: C W Lohe, Crown Solicitor for the applicant Legal Aid Queensland for the respondent PHILIPPIDES J: The application [1] The Attorney-General seeks orders under Div 3 of the Dangerous Prisoners (Sexual Offenders) Act 2003 (Qld) (“the Act”) for the continued detention of the respondent, Raymond Yeo or alternatively, that the respondent be released under a supervision order. [2] The respondent is due for release from prison on 4 April 2006. On 23 November 2005 a risk assessment order was made under s 8 of the Act, requiring the respondent to undergo psychiatric examinations by two psychiatrists, Dr Moyle and Dr Lawrence. The Requirements of the Act [3] The objects of the Act are stated in s 3 as being: “(a) to provide for the continued detention in custody or supervised release of a particular class of prisoner to ensure adequate protection of the community; and (b) to provide continuing control, care or treatment of a particular class of prisoner to facilitate their rehabilitation.” [4] A “prisoner” for the purpose of this application includes a person who is detained in custody who is serving a period of imprisonment for a serious sexual offence: s 5(6). The term “serious sexual offence” is defined as an offence of a sexual nature, whether committed in Queensland or outside Queensland involving violence or against children: see the dictionary which is a schedule to the Act. “Violence” is defined as “including intimidation or threats”. [5] Section 13 of the Act allows for the making of a continuing detention order1 or a supervision order2 and provides as follows: “(1) This section applies if, on the hearing of an application for a division 3 order, the court is satisfied the prisoner is a serious danger to the community in the absence of a division 3 order (a “serious danger to the community”). 1 See for example Attorney-General v Fardon [2003] QSC 379; Attorney-General for the State of Queensland v Francis [2004] QSC 233; Attorney-General v Francis [2005] QSC 381. 2 See for example Attorney-General v Foy [2005] QSC 001; Attorney-General v RPD [2005] QSC 016; Attorney-General v G [2005] QSC 071; Attorney-General v Hansen [2005] QSC 35. -- 2 of 14 -- 3 (2) A prisoner is a serious danger to the community as mentioned in subsection (1) if there is an unacceptable risk that the prisoner will commit a serious sexual offence – (a) if the prisoner is released from custody; or (b) if the prisoner is released from custody without a supervision order being made. (3) On hearing the application, the court may decide that it is satisfied as required under subsection (1) only if it is satisfied – (a) by acceptable, cogent evidence; and (b) to a high degree of probability; that the evidence is of sufficient weight to justify the decision. (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; (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. (5) If the court is satisfied as required under subsection (1), the court may order – (a) that the prisoner be detained in custody for an indefinite term for control, care or treatment (“continuing detention order”); or (b) that the prisoner be released from custody subject to the conditions it considers appropriate that are stated in the order (“supervision order”). (6) In deciding whether to make an order under subsection (5)(a) or (b), the paramount consideration is to be the need to ensure adequate protection of the community. -- 3 of 14 -- 4 (7) The Attorney-General has the onus of proving that a prisoner is a serious danger to the community as mentioned in subsection (1).” [6] In determining whether to make an order under s 13 of the Act, the court must be satisfied that the prisoner is a serious danger to the community in the absence of a division 3 order, because there is an unacceptable risk that the prisoner will commit another serious sexual offence. A court may only make a finding that a person is a serious danger to the community if it is satisfied so by acceptable, cogent evidence. As observed by White J in Attorney-General v Van Dessel,3 the serious nature of the inquiry, given that what is at stake is the respondent’s fundamental legal right to unfettered personal liberty on the expiration of his term of imprisonment, is underscored in the Act by the requirement that a court only make a finding that a person is a serious danger to the community if it is satisfied to a “high degree of probability”. A continued detention order is subject to periodic review (Pt 3). A supervision order is made for a definite term (s15). In determining whether to make a detention order or supervision order, the paramount consideration is the need to protect the community. Whether the respondent is a serious danger to the community [7] The matters to which it is mandatory to have regard are specified in s 13(4) of the Act. It is convenient to refer to those matters without listing them in the order they appear in the Act. Antecedents [8] The respondent is 60 years of age, being born on 18 August 1945. He was the third of six children. His parents are both dead. Two siblings are also dead. He has an older sister with whom he has maintained contact. She has been on a pension for intellectual disability since she left school and is married with adult children. [9] The respondent attended school to year 8, leaving at the age of 14. He spent periods of incarceration for juvenile offending in boys’ homes. He has worked as a labourer and factory worker and spent a period of 16 years (possibly somewhat longer) in employment at the Arnott’s Biscuit Factory starting in the late 1970s. [10] He has had alcohol abuse problems in the past. He has never married and has had instability in his personal relationships, the longest of which endured for some 2½ years. That relationship was with a woman who had a son aged about 5. It appears that she had another child during the relationship, which she claimed to be the respondent’s. The respondent reported that she had left abruptly with both children and that she left the respondent for another man. [11] There is evidence suggestive of the respondent having suffered from myocardial infarction and the respondent appears to have had heart problems. Given that the respondent’s sexual offending only commenced in his late 40s, an organic cause for the behaviour was investigated, there being a suggestion that some cerebrovascular event may have occurred in the late 1990s resulting in the apparent emergence late 3 [2006] QCA 16 at [17]. -- 4 of 14 -- 5 in middle life of the offending sexual behaviour. However, Dr Lawrence on reviewing medical records and medical files discounted any organic cause for the respondent’s offending behaviour. Criminal history [12] The respondent’s criminal history dates to 1958, when he was aged 13. Between 1958 and 1971 he was convicted of numerous property offences and driving offences, including one offence of dangerous driving causing death. From 1971 to 1989, no offences were committed by the respondent. In 1989, 2 minor stealing offences were committed. [13] There was then no further offending until December 1993 when the respondent committed the first of the sexual offences of which he was convicted. That offence was carnal knowledge by anal intercourse of a person not an adult. The offence was committed on a 16 year old boy with intellectual disabilities, whom the respondent had requested assist him clean up a rural property. The boy had gone to sleep on the respondent’s bed when the offence occurred. The respondent was convicted of that offence on 8 November 1995, on a retrial following a successful appeal against conviction. He was sentenced on 17 November 1995 to 3 years’ imprisonment. [14] Between 19 June and 3 October 1999, the respondent committed 13 sexual offences, in respect of which he was convicted by a jury on 5 April 2001. The respondent unsuccessfully appealed against those convictions. The offences concerned 9 counts of indecent dealing (with circumstances of aggravation), 2 counts of wilfully and unlawfully exposing a child under 16 to indecent acts (with a circumstance of aggravation) and two counts of unlawfully permitting himself to be indecently dealt with by a child under the age of 16 (with a circumstance of aggravation). The victims were two boys, 9 and 11 years old, both of whom were seriously adversely affected. The offending behaviour occurred over a period of about 4 months. The respondent had been sharing a house with a Mr R. The children also resided at the house. The respondent gave the boys cigarettes and money. The indecent dealing included acts of touching the boys’ penis, oral sex, anal digital penetration, requiring each boy on separate occasions to lie naked on the respondent and forcing them to touch the respondent’s penis. Concurrent sentences of 3 years’ imprisonment were imposed on 5 April 2001. The sentencing judge remarked that the respondent had shown no remorse and that the period of imprisonment served for the 1993 offences seemed “to have had no deterrent effect” on him. [15] On about 6 May 2000, shortly after he was granted bail for the 1999 offences, the respondent was convicted of two further sexual offences. These offences consisted of two counts of indecent dealing with a child under 12, for which he was sentenced on 18 April 2002 to concurrent terms of 2 years’ imprisonment, cumulative on the sentences imposed on 5 April 2001. The respondent unsuccessfully appealed against his conviction. The complainant was a 6 year old boy, whose family the respondent had befriended at a caravan park. The sentencing judge remarked on the “particularly brazen nature of the offences”. The first offence concerned touching the boy on the genitals. It was committed when the respondent, the child and his mother were fishing on a pontoon. The child was seated beside the respondent with the child’s mother being seated about 1 metre away. The second offence was committed when the respondent was a visitor at the boy’s home. While the mother was in the kitchen, the respondent went into the boy’s bedroom where he was -- 5 of 14 -- 6 sleeping and touched him on the genitals. The sentencing judge observed of the respondent who gave evidence at trial that he was a “plausible person and quite astute at telling tall stories”. He recommended a psychiatric assessment with respect to whether the respondent posed a serious threat to young children and made a reporting order applicable upon the respondent’s release from prison. The respondent was denied remissions in respect of his current sentence. [16] The respondent has continuously maintained his innocence in respect of all the sexual offences; the evidence indicates that he either disputes the complainants’ veracity in each case or provides innocent, but implausible, explanations for his conduct. Section 11 Risk Assessment Reports and the respondent’s co-operation in the risk assessment examinations [17] Risk assessment reports were provided by Dr Moyle and Dr Lawrence, who each gave oral evidence. The respondent was interviewed by Dr Moyle on 28 November 2005 and by Dr Lawrence on 8 February 2006 for the purpose of their risk assessment reports. The reports were compiled on the basis of various actuarial risk assessment tools combined with a clinical assessment in order to assess the respondent’s risk of re-offending. The actuarial predictive tools used included the PCL-R Scale (testing for psychopathy), the HCR-20, (a risk management assessment scale), the VRAG (Violence Risk Appraisal Guide) and the SORAG (Sex Offender Risk Assessment Guide). Dr Moyle also assessed the respondent using the STATIC 99 Scale (which assesses a number of static factors linked to recidivism) and the SVR-20 (Sexual Violence Risk scale). [18] On the PCL-R scale Dr Lawrence placed him in the intermediate to probable moderate risk range. On Dr Moyle’s scoring the respondent was by definition psychopathic. Although Dr Moyle pointed out that there “is a relative lack of preparatory violence against others”. It is to be observed that the PCL-R scale however relates to general offending and not specifically to sexual offending. Both psychiatrists placed the respondent in Category 7 on the VRAG scoring, which indicates a probability of violent recidivism, suggesting a 55% probability of re- offending within 7 years and 64% risk of re-offending within 10 years. Dr Lawrence’s assessment using the SORAG placed the respondent at Category 7, indicating a 58% probability of re-offending sexually within 7 years and an 80% probability within 10 years. Dr Moyle’s assessment using this guide suggested a high risk of sexual re-offending. On the HCR-20 there was a similar assessment by the psychiatrists, Dr Lawrence assessing the risk of re-offending as “significant” and Dr Moyle as “high”. [19] In respect of the SVR 20 conducted by Dr Moyle, he observed that there was no evidence of serious violent predatory behaviour resulting in brutalising victims. [20] On the Static 99 testing conducted by Dr Moyle, the respondent was assessed as being at high risk of sexual re-offending. It should be noted that in using this approach, Dr Moyle’s report referred to the respondent having been “arrested in the past for non sexual violence with grievous bodily harm”. In oral evidence, Dr Moyle explained this reference and indicated that, even making allowance for the respondent having no conviction for such an offence, the result of the Static 99 testing remained high. Dr Moyle’s assessment can be compared with that of Mr -- 6 of 14 -- 7 Young conducted on 27 September 2005, to which Dr Moyle was referred in cross- examination. On the Static 99 guide, Mr Young placed the respondent within the moderate-high range, with a score of 4. However, according to Dr Moyle, the score was incorrect (not reflecting the index offences) and ought to have recorded a score of 6, also placing the respondent in the high risk category. [21] Dr Moyle observed that difficulties in getting background history from the respondent, in that he was “very hard to pin down”. “Similarly, in anything to do with moral reasoning it was hard to pin down issues of wrong doing on his part. He was vague and evasive.” He noted however that there was considerable overlapping in the histories given to him and to the other medical experts. Dr Moyle considered the respondent to have “a long history of antisocial behaviour, excitement seeking, impulsivity, irresponsibility, poor relationships with females and repeated offending with attempts being made to minimise the effect of some offending behaviours…” His opinion was that the level of risk that the respondent will commit another sexual offence if released or released without a supervision order is “at least moderately high and probably high”. Dr Moyle considered that while some of the respondent’s behaviours were suggestive of paedophilic interest, his behaviours were against vulnerable men and boys and may not be limited to children who are prepuberal. [22] Dr Lawrence observed that the respondent was co-operative but there was no sense of rapport being developed during the interview. She stated that he freely expressed his views including his persistent denial of all wrongdoing of a sexual nature and expressed resentment and an air of victimisation when required to address sexual offending. She was of the opinion that the respondent displays evidence of a lifetime personality disorder with strong antisocial, narcissistic and psychopathic traits. She considered the respondent also displays evidence of homosexual paedophilia of an exclusive type. Dr Lawrence observed that the respondent’s continued denials of all aspects of responsibility for his behaviour extended to refusal to participate in any sexual offender programs designed to address his behaviour, on the grounds that the behaviour did not exist. She considered the persistent denials of any sexual offending, combined with his “extensively” explaining away his conduct, attempts to blame the victim in some cases and a refusal to participate in any treatment programs designed to address his sexual offending as indicating a poor prognosis. She considered that the respondent’s risk of re-offending, if released, to be high. [23] Both Drs Moyle and Lawrence had access to affidavit material of Ms Tunbridge who recorded statements allegedly made by the respondent. That affidavit material is not sought to be relied upon by the applicant. Both psychiatrists indicated that the views in their reports were maintained irrespective of the Tunbridge affidavit material. Other Reports and Assessments [24] Dr Kar, a psychiatrist, assessed the respondent in 2003 for sentence management purposes. He diagnosed the respondent as having an antisocial personality disorder and suffering from paedophilia, with little or no control over his sexual behaviour. In his report, Dr Kar stated: “It is my opinion that given his attitude and unwillingness to change, his severe degree of psychopathic denial and evidently his inability -- 7 of 14 -- 8 to prevent himself from reoffending despite the risk of detection, the risk of reoffending is extremely high. … Future offences are likely to be opportunistic, predatory and along similar lines as in the past. I believe he has not been changed by the effects of imprisonment. … I believe it is inevitable that he will sexually assault young boys. I would expect the offences to start very soon, almost immediately after his release into the community.” [25] It should be observed that Dr Kar assessed the respondent’s risk of re-offending solely on the basis of a clinical assessment and without the benefit of the actuarial predictive tools utilized by Drs Moyle and Lawrence. [26] Dr Whitford, who also assessed the respondent, was not called and his report was not relied upon by the applicant. [27] Mr Young assessed the respondent in September 2005 using the Static 99 as well as the Stable 2000 tool. The Stable 2000 is designed to assist clinicians in identifying the stable criminogenic needs/treatment targets for sex offender programs and does not deal with the type risk assessment issues that the HCR-20 and SVR-20 are directed to. [28] As mentioned already, the rating given by Mr Young on the Static 99 was moderate to high. On the Stable 2000, the respondent was identified as having a score of 7 and thus falling in the moderate risk range (which is based on a score of 5 to 8). Based on that assessment, the respondent was considered to have moderate needs in relation to his sexual offending, with a number of treatment targets identified as amenable to change through sex offender programs. On that assessment, Mr Young stated in his report that a MISOP (Medium Intensity Sexual Offence Program) was indicated. It was observed however that, due to his categorical denial of sexual offending, the respondent would need to undertake a “Getting Started: Preparatory Program”, prior to being reconsidered for the program, to enhance his ability to engage in treatment. Mr Young later reviewed the Stable 2000 scoring and revised the final score from 7 to 8, placing the respondent at the high end of the moderate category. Propensity to commit serious sexual offences in the future/ pattern of offending behaviour [29] The evidence indicates that the respondent has a propensity to commit sexual offences against children. According to Dr Moyle, the likely risk to children posed by the respondent is that he would at least attempt to touch them sexually, attempt to convince them not to tell others and that the sexual behaviour might escalate to anal digital or penile penetration. In this regard he referred to the brazen nature of aspects of the respondent’s offending and the respondent’s high levels of psychopathy as suggestive of an attitude the respondent “doesn’t care”. [30] Furthermore, Dr Lawrence observed that while the respondent’s age may imply diminution of sexual drive, “there is no evidence that sexual drives including aberrant disappear with age. This man’s medical conditions are not of any significance at this point in time ant there is no medical expectation that sexual activity is likely to decrease, either at the level of desire/drive or function.” -- 8 of 14 -- 9 Efforts by the respondent to address the cause of his offending behaviour / whether participation in rehabilitation programs has had a positive effect [31] The respondent’s behaviour while in the prison system was limited to relatively minor offending. It was recommended in March 2003 that the respondent undergo a Cognitive Skills Program and a SOTP (Sexual Offenders’ Treatment Program). [32] The respondent underwent a Cognitive Skills Program in August 2003. The Cognitive Skills Program Exit Report dated 23 October 2003 indicates that the respondent documented no empathy for his victims in respect of his sexual offending and that, while he demonstrated a satisfactory understanding of the program concepts, he did not relate those to his sexual offending, “because of his non-acknowledgement of involvement in the Sexual Offences for which he is currently incarcerated”. The program thus did not address the respondent’s sexual offending. [33] The respondent has not undergone a SOTP. There is some dispute concerning the circumstances of his failure to do so. The respondent indicated in October 2003 that he was willing to take part in the SOTP, but that he would not accept responsibility for the sexual offences of which he was convicted. He was assessed on 11 March 2004 as a suitable candidate for the SOTP. He was offered a place on 26 March 2004 and advised that if he declined there would be a delay of 6 months and that he would be advised of any significant changes to his status on the waiting list. On 13 April 2004, the respondent declined the offer to take part in the SOTP and asked to have his name placed on the waiting list because of a High Court appeal against his convictions. In May 2004 the respondent indicated he wished to have another chance to access the SOTP. However, in September 2004, the respondent’s name had been removed from the waiting list (apparently without the respondent being advised) because there was insufficient time for him to complete the program before his post prison community based release date. It appears that the respondent was not advised of that being a consequence of delaying the SOTP. It appears that in September 2004 it was again recommended that the respondent complete the SOTP. [34] Both Dr Lawrence and Dr Moyle considered that the fact that the respondent had not undertaken the SOTP as being of importance in this case. Dr Lawrence specifically referred to the respondent’s refusal to participate in a SOTP as a factor in her poor prognosis in respect of the risk of re-offending. Dr Lawrence identified the implications of the failure to participate in the program to date as follows: “his refusal to participate in any Cognitive Behavioural Program approaches to sexual offending indicate that he has not even been exposed to these concepts. Whilst he has had exposure to a Cognitive Skills Program, he, himself, states that he “didn’t get much out of it.” There is no evidence at interview that he has acquired or utilises any such concepts in his approach to his offending behaviour. His denial of sexual offending remains steadfast. Similarly, he would refuse any alternative methods of attempted remediation of his aberrant sexual drives.” [35] Likewise, Dr Moyle stated in his report: -- 9 of 14 -- 10 “If Mr Yeo is released from custody I don’t see any evidence that attempts to rehabilitate him, including his attendance at a Cognitive Skills Program, where he has been taught various approaches to planning for non reoffending that he may have forgotten, and attendance at other programs, have resulted in clear management plans at preventing risk being developed by Mr Yeo.” [36] Dr Lawrence expressed reservations about whether a program would have a positive outcome in the present case. Dr Moyle’s oral evidence was that there was a good chance that the respondent would complete a sexual offender program, although he also had reservations about the outcome of the respondent attending such a program. He stated “we can’t reliably predict that attendance will change circumstances” and did not believe “that any psychological therapies will be of assistance to Mr Yeo if he doesn’t wish to engage in these”. However, Dr Moyle also stated in his report that “usually when people do attend programs they come away with much more structured plans for managing risk …”. His oral evidence was that: “… if [the respondent] goes in to the program acknowledging sexual interests and areas that could lead to sexual offending, and even if he doesn’t acknowledge the actual offence has occurred, then he can start to talk about the sort of issues that the program will tackle, and he’ll be more successful.” [37] Evidence was given by Mr Rallings, from the Sexual Offending Program Unit of the Department of Corrective Services, that preparatory programs are available in prison where sexual offending is denied. He indicated that a preparatory course of some 7 weeks duration is scheduled for September 2006, and that, if a MISOP were thereafter undertaken, completion of the MISOP would be expected by April 2007. Mr Rallings also gave evidence of a further program to be available in July this year to address the treatment needs of offenders, who categorically deny all aspects of their offending, as an alternative to the approach of combining a preparatory course with a MISOP. Future Plans [38] At the time of compiling his report, Dr Moyle considered that the respondent lacked realistic plans, but observed that such matters “are amenable to change” if he were to go through a sex offender course appropriately. A document entitled “Future Plans” (exhibit 1) written by the respondent and dated 11 March 2006 was tendered. It was proposed that the respondent reside with his sister, but given her intellectual impairment, that option presents difficulties in terms of supervision. An affidavit by Mr Lodziak outlined a current proposal that the respondent reside at the Alpha Accommodation Centre or the Ozcare Hostel at South Brisbane. The latter has the advantage in that a welfare worker is available to assist residents and additionally, it appears that the Catholic Prison Ministry is willing to provide support to the respondent. That option appears attractive and to be a realistic one. [39] A draft supervision order proposed on behalf of the respondent was also tendered (exhibit 2). It set out detailed conditions which might be imposed on the respondent’s release. Both Drs Moyle and Lawrence commented on the -- 10 of 14 -- 11 respondent’s future plans proposal and the terms of the draft supervision order proposed as discussed below. The risk that another serious sexual offence will be committed if the respondent were released/ the need to protect members of the community from that risk [40] There is psychiatric expert evidence indicating that the respondent presents a high risk of committing further sexual offences against children if released. There is clearly a need to protect the community against that risk. Conclusion [41] Taking into account the matters listed in s 13(4) of the Act, I am satisfied that presently the respondent is a serious danger to the community in the absence of a division 3 order, in that there is an unacceptable risk that the respondent will commit a serious sexual offence if released from custody or released without a supervision order. I am so satisfied on the basis of acceptable, cogent evidence presented and to the requisite degree of probability. Whether a detention order or supervision order should be made [42] The issue then arises as to whether in the present case a supervision order would be an appropriate means of managing the risk of further serious sexual offences being committed so as to obviate the making of a detention order. [43] On behalf of the respondent it was urged that a supervision order would adequately protect the community and reduce the risk of re-offending to an acceptable level. It was submitted citing Chester v The Queen4 that the making of a continuing detention order should be reserved for “exceptional cases”. Chester’s case concerned a provision of the Criminal Code of Western Australia that permitted a sentence of indefinite detention to be imposed, the term of which was terminable by executive decision. The provision did not have as its purpose the facilitation of rehabilitation of a prisoner who had a propensity to commit serious crimes, nor did it specify a precise criterion according to which the discretionary power conferred was to be exercised and it made no reference to the need to protect the public from serious, as distinct from violent, crimes. 5 The legislatives purposes of the Act here under consideration have already been referred to. The Act in s13(4) mandates precisely the criteria to be considered by the court, although any other relevant matter may additionally be considered. Furthermore, the Act specifies that in deciding whether to make a detention order or supervision order, the paramount consideration is to be the need to ensure adequate protection of the community. In my view, it is not appropriate to superimpose an additional gloss, derived from a consideration of other differently worded legislation, in order to determine when a division 3 order is to be made. [44] In submitting that a supervision order is appropriate in the present case, counsel for the respondent pointed to a number of matters relevant to risk. Firstly, counsel placed emphasis on the need to put the respondent’s criminal history in context. The sexual offences occurred over a six and a half year period from the time the respondent was 48 years of age. Counsel submitted that it is relevant to have regard 4 (1988) 165 CLR 611. 5 (1988) 165 CLR 611 at 617. -- 11 of 14 -- 12 to the fact that there was a significant gap in his criminal history from about 1971 until 1989, during which the respondent worked in a stable job. Further, it is the case, as pointed out by counsel, that the third set of relevant offences committed in 2000, were not committed after a period of imprisonment for the second set of offences committed in 1999; that is, only one period of imprisonment had by then been served. However, it is nevertheless to be noted that the third set of offences were committed while the respondent was on bail for the second set of offences. [45] It is of relevance, as counsel submitted, to bear in mind that the relevant offences were not attended with physical violence and the relative lack of penetratory violence. Counsel also referred to the lack of predatory behaviour. Counsel observed that there was a decrease in the gravity of offending over time, with the relevant offending commenced with a sodomy offence in 1993, indecent dealing offences in 1999 and the 2 “relatively minor fondlings” in 2000. However, this must be considered against Dr Moyle’s evidence that it cannot be said that the degree of offending by the time of the last offences had reduced. His opinion was that the last 2 offences could be seen as consistent with a pattern of grooming victims to perpetrate more serious offending. It is also to be observed as Dr Moyle stated in his report that “considerable harm does befall victims of hands on child sexual abuse”. [46] Counsel referred to the respondent’s good behavioural record in prison and to the respondent’s completion of the Cognitive Skills Program. Counsel submitted that the respondent’s failure to undergo the SOTP also needed to be put into context. Counsel submitted that the respondent had expressed a willingness to participate in the program in 2003 and pointed to the difficulties that had resulted from his name having been taken off the waiting list and the respondent delaying the program. It nevertheless remains that respondent evinced to Drs Moyle and Lawrence a stance that since he has not sexually offended, there is no reason to undergo any sexual offenders program and that stance has been a factor in the refusal to undergo the program. [47] Counsel also pointed to Dr Moyle’s evidence in cross-examination that a failure to undergo a SOTP was not a strong predictor of recidivism and Dr Lawrence’s acknowledgment that those completing such courses may appear genuine but still re-offend. [48] It is clearly in the interests of both the respondent and the community that a suitable means of management of the risk of re-offending is achieved. In this regard, Dr Lawrence observed that the respondent did have awareness of the consequences of his behaviour and, with his average intelligence, is “capable of thinking and controlling behaviour to his own ends where necessary”. In her view “the most likely benefit for decreasing the risk of re-offending would be in a very close and lengthy supervision of this man’s behaviour after release”. She stated that such an approach “may” help to discourage the activities; since he is capable of understanding the consequences of his behaviour should he re-offend. Dr Moyle also considered that, with appropriate externalised structure and helpful support from others, it is “possible” that the respondent will not re-offend. [49] However, a difficulty in the present case is whether the risk of re-offending can be reduced to an acceptable level where it is essentially to be achieved by the external constraints imposed by a supervision order. As conceded by the respondent’s -- 12 of 14 -- 13 counsel, Dr Moyle’s opinion about the reduction of risk under a supervision order was ultimately not hopeful. Having considered the terms of the draft supervision order tendered and the “Future Plans” document compiled by the respondent subsequent to his report, Dr Moyle maintained his assessment that the respondent’s risk of re-offending remained high “at this stage”. [50] Dr Moyle agreed that there were mechanisms for the protection of the community in the proposed supervision order, in particular the Ozcare option which offers some support through a welfare worker (Ms Middleton). However, he considered that the affidavit of Mr Lodziak “falls well short” of a reasonable plan for minimizing risk of re-offending. Dr Moyle considered the respondent’s future plans document was “a good start”, in that it showed that the respondent “knows what areas he has to consider, but that’s as far as it goes”. His evidence was that the respondent “hasn’t gone very far along the path of planning how not to offend”. In Dr Moyle’s view the best option for reducing risk is the combination of external control through a supervision order and a program that addresses the criminogenic factors that pertain to the respondent. [51] This was not dissimilar to the view expressed by Dr Lawrence. Her oral evidence was that, if the respondent was presently to be released on the terms of a supervision order such as that tendered, the risk of re-offending would be reduced from high to moderately high. She stated that if the respondent were to participate in a genuine sense in a treatment program then the risk of re-offending would be further reduced. Dr Lawrence dealt with concerns relating to the option of a supervision order in her oral evidence as follows: “ … the supervision order is a possible way of dealing with … the problems. There would be no guarantee, of course, that they would be 100 per cent successful, but the supervision order is, I think, as detailed and probably as comprehensive as you can expect to get in these sort of circumstances. My view was that this man continues to deny the sexual offending against children behaviour totally and that on the basis that it doesn’t exist, he doesn’t do those sort of things he has declined to receive or participate in any sort of corrective type programs or programs that might be designed to help him change his behaviour internally. There’s no evidence that I could establish as a result of my examination to suggest that there has been any significant change in his approach and attitudes as a result of his detention. If then such a person goes back in to the community – there been no change within him, so if you want to try to prevent recurrence of that behaviour you are virtually entirely reliant on external control for him to try to prevent that. Now, that is not really terribly possible, but if it’s going to have any chance of success it’s got to be fairly detailed and, as I say, as far as I can see the requirements of this order are fairly comprehensive and I really couldn’t suggest very much more.” [52] Drs Moyle and Lawrence were unable to detect that the respondent’s incarceration has resulted in any significant alteration in his attitude or that it has had a deterrent effect. The evidence indicates that the respondent has not demonstrated any empathy for the victims of his sexual offending or understanding of his offending conduct. It is of concern that the respondent’s offending and propensity is directed -- 13 of 14 -- 14 towards young children. The effects on young victims of the type of sexual offences for which the respondent shows a propensity can be severe as noted by Dr Moyle. It is of particular concern that the respondent has not while in custody participated in any program, whether at a cognitive skills level or a SOTP level, which addresses his propensity and the cause of his offending conduct. The respondent has not addressed his propensity and denies even that there is any conduct by him that needs to be addressed. As a result, Drs Moyle and Lawrence had no confidence in the respondent being able to minimise the risk of re-offending by means of any internal constraints. The respondent’s failure to adequately address his sexual offending by means of any sexual offender program, especially when considered in the light of his denial of every aspect of his sexual offending, are factors which on the expert evidence point to there presently remaining a high to moderately high risk of the respondent committing further serious sexual offences, even if released on a supervision order. [53] Bearing in mind that the paramount consideration in deciding whether a continuing detention order as opposed to a supervision order ought to be made is the need to ensure adequate protection of the community, I am satisfied that a continuing detention order is in this case appropriate. Orders [54] I am satisfied to the requisite standard and on the basis of acceptable, cogent evidence that the respondent is a serious danger to the community in the absence of a division 3 Order. It is ordered pursuant to s 13(5)(a) of the Act that the respondent be detained in custody for an indefinite term for control, care or treatment. -- 14 of 14 --