Attorney-General for the State of Queensland v Loudon [2019] QSC 74 [2019] 14 QLR

SUPREME COURT OF QUEENSLAND CITATION: Attorney-General for the State of Queensland v Loudon [2019] QSC 74 PARTIES: Attorney-General for the State of Queensland (Applicant) v Kevin Michael Loudon (Respondent) FILE NO/S: BS No 1208 of 2007 DIVISION: Trial PROCEEDING: Application ORIGINATING COURT: Supreme Court at Brisbane DELIVERED ON: 25 March 2019 Orders made 18 March 2019 DELIVERED AT: Brisbane HEARING DATE: 18 March 2019 JUDGE: Lyons SJA ORDER: The court, being satisfied to the requisite standard that the respondent, Kevin Michael Loudon has contravened requirement 25 of the supervision order made on 6 July 2017 orders that: 1. Pursuant to ss 22(2) and 22(7) of the Dangerous Prisoners (Sexual Offenders) Act 2003, the respondent be released from custody and continue to be subject to the supervision order made on 6 July 2017 with the following amendment: (a) amend order 2 by omitting words “7 July 2022” and inserting the following underlined words so as to read “2. The respondent be subject to the following conditions until 18 March 2029”. CATCHWORDS: CRIMINAL LAW – SENTENCE – SENTENCING ORDERS – ORDERS AND DECLARATIONS RELATING -- 1 of 17 -- 2 TO SERIOUS OR VIOLENT OFFENDERS OR DANGEROUS SEXUAL OFFENDERS – DANGEROUS SEXUAL OFFENDER – GENERALLY – where the respondent was subject to a supervision order pursuant to Division 3 of the Dangerous Prisoners (Sexual Offenders) Act 2003 – where the respondent contravened a condition of that supervision order – where the original supervision order was amended to include further conditions – where the respondent was made subject to a further supervision order subject to Division 4A of the Act and subject to requirements until 2022 – where the respondent has contravened a condition of that order by having contact with two males under 16 - where the respondent has been assessed by psychiatrists – whether the adequate protection of the community can be ensured by the existing supervision order – whether the duration of the existing supervision order should be extended Dangerous Prisoners (Sexual Offenders) Act 2003, ss 13, 16, 17, 19B, 20, 21A, 22. Attorney General v Holroyd [2019] QSC 39 Attorney General v Yeatman [2018] QSC 70 Kynuna v Attorney-General for the State of Queensland [2016] QCA 172 Attorney-General for the State of Queensland v Sutherland [2006] QSC 268 Attorney-General for the State of Queensland v Brady [2016] QSC 303 Attorney-General v Francis [2012] QSC 275 Attorney General (Qld) v Holroyd [2019] QSC 39 Attorney General for the State of Queensland v PCO [2019] QSC 44 Attorney General for the State of Queensland v KAH [2019] QSC 36 COUNSEL: J Rolls for the Applicant R Pearce for the Respondent SOLICITORS: Crown Solicitor for the Applicant Howden Saggers for the Respondent -- 2 of 17 -- 3 This Application [2] The Attorney General sought orders under s 22 of the Dangerous Prisoners Sexual Offenders Act 2003 (Qld) (the Act) as a result of an alleged breach by the respondent of a supervision order originally made by Chesterman J on 7 June 2007 and the further supervision order made by Jackson J on 6 July 2017. [3] On 18 March 2019 I made orders releasing the respondent on the following terms; Pursuant to ss.22(2) and 22(7) of the Dangerous Prisoners (Sexual Offenders) Act 2003, the respondent be released from custody and continue to be subject to the supervision order made on 6 July 2017 with the following amendment: (a) amend order 2 by omitting the words “7 July 2022” and inserting the following underlined words so as to read “2. The respondent be subject to the following conditions until 18 March 2029”. [4] At the time I made the orders I stated I would publish reasons at a later time. These are those reasons. Whilst s 17 of the Act requires the court to give detailed reasons at the time the order is made if it makes a continuing detention order, an interim detention order, a supervision order or an interim supervision order, as I am amending an existing supervision order I am satisfied that s 17 of the Act has not been engaged. The amendment of an existing supervision order is not the “making” of a supervision order.1 In this regard I agree with the reasoning of Davis J in Attorney General v Yeatman;2 [30] Each of a “continuing detention order”, an “interim detention order”, a “supervision order” and an “interim supervision order” are orders made under Divisions 1 or 3 of Part 2 of the Act. [31] If, under s 22, the supervision order was revoked and a continuing detention order was made then s 17 would clearly be engaged; I would be “making” a continuing detention order. However, an order releasing the respondent under the existing supervision order is not the “making” of a supervision order. It is an order made under s 22 releasing the respondent. Therefore, s 17 is not engaged. The making of an order under s 22 on 3 April 2018 without at that time delivering reasons did not offend s 17 of the Act. This reasoning is consistent with that of Applegarth J considering a related issue in Attorney-General for the State of Queensland v Marama. History [5] The respondent is currently 55 years of age. Between 1985 and 2005 he was convicted of serious sexual offences on five occasions as follows; 1 See Attorney General v Holroyd [2019] QSC 39 at [3], Attorney General v Yeatman [2018] QSC 70 at [28-31]. 2 [2018] QSC 70 at [30-31]. -- 3 of 17 -- 4 • 24 May 1985 – offences of carnal knowledge and gross indecency committed in 1981 and 1982 in relation to a nine year old male; • 11 September 1985 – rape and indecent dealing of an eight year old female; • 23 May 1995 – five offences of indecent dealing with a child under 12, four offences of wilful exposure of a child under 12 to indecent printed matter, a further indecent dealing with a child under 12, permitting to be indecently dealt with by a child under 12 and maintaining a sexual relationship with a child under 16, all of which were alleged to have occurred in 1994 and 1995 and involved five males between 9 and 12; • 6 February 2002 – two offences of attempting to procure indecent treatment of a child under 16 in 2001 in relation to a 14 year old male and a 15 year old male; • July 2005 – two offences of indecent treatment of a child under 16 by exposure and two of indecent treatment of a child in 2004 relating to a six year old and an eight year old. [6] On 7 June 2007 the respondent was released from custody subject to a supervision order under the Act by Chesterman J. He was subject to 28 conditions pursuant to that Order until 7 July 2017 or further Order of the Court. On 5 October 2009 he was found to have contravened the supervision order on 1 October 2009 by travelling from Townsville to Cairns without permission. As a result of the breach he was arrested and the original supervision order was amended to add a condition (XXIX) that he comply with a curfew direction or monitoring. He was made subject to a curfew direction and a monitoring direction and was required to wear a GPS ankle bracelet. In 2013 the curfew direction was lifted. [7] An application was subsequently made in 2017 for a further supervision order for a period ending on the respondent’s 60th birthday, which at that point was some seven years hence, under Part 2 Division 4A of the Ac. The existing supervision order was to expire on 7 July 2017. On 6 July 2017 the respondent was made subject to a further supervision order for a further five years and was subject to requirements until 7 July 2022. [8] Requirement 25 of that Order provided that he not have any supervised or unsupervised contact with children under 16 without written approval and he was required to disclose the terms of his order and the nature of his offences to guardians and caregivers of any children before any such contact. The order also permitted Corrective Services to disclose such information to guardians, caregivers and external agencies. The contravention [9] On 26 September and 24 October 2017, the respondent attended at the Townsville Probation and Parole office and was questioned on each occasion in relation to his contact with children. He denied any such contact. Consent had not been given to the respondent to have any contact with children under 16. [10] On 30 October 2017 the Queensland Police Service advised they had information that the respondent had been having contact with a male under 16 which was investigated. During -- 4 of 17 -- 5 an interview on 2 November 2017, a child C advised he had attended the residence of the respondent. [11] Further investigations revealed that a second child had also been having contact with the respondent. On 3 November 2017 the second child R was interviewed. He indicated he attended the respondent’s residence and was advised by the respondent that if any people attended he was to hide. He had also been told by the respondent not to tell police that he knew him or that he had attended the residence. On 3 November a warrant was executed at the respondent’s premises which revealed that there was a money box in the name of the child C. [12] A person who resided with the respondent also provided a statement dated 3 November 2017 which indicated that he was aware of the children C and R and that they had attended the residence of the respondent. He gave evidence that the children would come and go freely. He had also stated he had heard the respondent telling both children not to tell anyone that they had attended at his residence. [13] Further evidence was provided on 3 November 2017 by the respondent’s brother who stated that he knew both children and was aware they had attended the residence. The evidence indicated he had seen the respondent hugging the children in an intense way and that he had supplied money for drinks and lollies to the child C who he had seen hiding in the bedroom of the residence. [14] On 6 November 2017 the respondent was charged with two offences alleging a breach of his supervision order. He was sentenced to a period of imprisonment of 18 months with a parole release date of 29 June 2018. A period of 239 days of pre-sentence custody was declared. [15] A warrant was also issued pursuant to s 20 of the Act. He was brought before the Supreme Court of Queensland in Townsville on 7 November 2017. The hearing of the applicant’s application pursuant to s 22 was scheduled for hearing but was adjourned given a late change in the respondent’s legal representation. The respondent also indicated that he was willing to undergo psychological treatment with the psychologist Tracy Richards and the hearing of the applicant’s application pursuant to s 22 was adjourned on 27 September 2018. [16] That adjournment has permitted the facilitation of individual counselling and treatment whilst in custody. He has been in custody since that date. [17] The circumstances of the contravention are not in dispute and the respondent accepts the contravention. This application [18] The applicant seeks orders that there be a finding the respondent has contravened requirement 25 and that orders be made pursuant to s 22(2) and s 22(7) of the Act. It is argued that the current duration of the order is inadequate to ensure the adequate protection of the community as he is only subject to requirements of that order until 7 July 2022. [19] The applicant argues however that if the current Order is amended to extend the duration of the Order such that it expires either in ten years on 18 March 2029 or when the -- 5 of 17 -- 6 respondent turns 70 on 31 October 2033, then on the basis of the psychiatric evidence the adequate protection of the community is able to be ensured. It is argued therefore that the respondent be released subject to a supervision order which expires on either of those dates based on the evidence the court accepts in relation to the duration of the order. Whilst Dr Harden considers that an extension of the order until 18 March 2029 would be appropriate Dr Sundin considers that the order should continue until the respondent’s 70 th birthday on 31 October 2033. [20] Section 22 of the Act provides: Court may make further order (1) If the court is satisfied, on the balance of probabilities, that the released prisoner is likely to contravene, is contravening, or has contravened, the supervision order or interim supervision order, the court may— (a) amend the conditions of the supervision order or interim supervision order; or (b) if the order is a supervision order and the court is satisfied as required under section 13(1), rescind the order and make a continuing detention order; or (c) if the order is an interim supervision order, rescind the order and make an order that the released prisoner be detained in custody for the period stated in the order; or (d) make any other order the court considers appropriate— (i) to achieve compliance with the supervision order or interim supervision order; or (ii) to ensure adequate protection of the community. (2) Subject to subsection (3), for the purpose of subsection (1)(b), section 13 applies as if the application under this section were an application for a division 3 order under that section. (3) For the purpose of deciding whether to make a continuing detention order under subsection (1)(b), the court may do any or all of the following— (a) act on any evidence before it; (b) make any order necessary to enable evidence of a kind needed to support an application for a division 3 order to be brought before it, including an order in the nature of a risk assessment order; (c) suspend the supervision order and make an order that the released prisoner be detained in custody for the period stated in the order. (4) For subsections (1)(c) and (3)(c), the court may make an order that the released prisoner be detained in custody for the period stated in the order if it is satisfied as required under section 8(1). (5) If the court makes an order in the nature of a risk assessment order, the psychiatrist or each psychiatrist examining the released prisoner must -- 6 of 17 -- 7 prepare a report about the released prisoner and, for that purpose, section 11 applies. (6) For applying section 11 to the preparation of the report— (a) section 11(2) applies with the necessary changes; and (b) section 11(3) only applies to the extent that a report or information mentioned in the subsection has not previously been given to the psychiatrist (7) If the released prisoner satisfies the court, on the balance of probabilities, that the adequate protection of the community can, despite the contravention or likely contravention of the existing order, be ensured by a supervision order or interim supervision order, the court— (a) must amend the existing order to include all of the requirements under section 16(1) if the order does not already include all of those requirements; and (b) may otherwise amend the existing order in a way the court considers appropriate— (i) to ensure adequate protection of the community; or (ii) for the prisoner’s rehabilitation or care or treatment. (8) The existing order may not be amended under subsection (7)(b) so as to remove any requirements mentioned in section 16(1). [21] Accordingly, upon being satisfied on the balance of probabilities that the respondent has contravened a requirement of a supervision order, unless the respondent satisfies the court on the balance of probabilities that the adequate protection of the community can, despite the contravention, be ensured, the court must, in the case of an existing supervision order rescind it and make a continuing detention order. [22] The Attorney-General has the onus of establishing that the prisoner is likely to contravene, is contravening or has contravened a requirement of the relevant supervision order. [23] Once the Court is satisfied the prisoner is likely to contravene, is contravening or has contravened a requirement of the supervision order, the onus is on the prisoner to satisfy the court that the adequate protection of the community can, despite the contravention or likely contravention be ensured by the terms of the existing supervision order and any other requirements the court considers necessary in order to comply with s 16(1) of the Act or are appropriate to ensure adequate protection of the community or for the prisoner’s rehabilitation care or treatment (s 22(2) and s 22(7)). [24] Clearly then given the admission of the contravention, the onus in this hearing is on the respondent to satisfy the Court in this regard. It should be noted that as a further supervision order was made on 6 July 2017 extending the period of the original supervision order then pursuant to s 19B(4) the Attorney General cannot make an application for further supervision order in the future as follows; -- 7 of 17 -- 8 (4) Despite subsection (2), the Attorney-General cannot make the application if a further supervision order has been made for the released prisoner. [25] The term “the adequate protection of the community” was examined in Kynuna v Attorney-General for the State of Queensland:3 The reference to “the adequate protection of the community” in s 22(2) and s 22(7) is clearly a reference to that term as explained in s 13, that is, adequate protection of the community from the unacceptable risk that the appellant will commit a serious sexual offence, namely one involving serious violence of the kind discussed in Phineasa, which caused or was likely to cause significant physical injury or significant psychological harm. So much was rightly accepted by the primary judge. The judge rejected the appellant’s submission that the risk of his sexual reoffending was not a risk of serious sexual offending under the Act. After referring to Phineasa, his Honour concluded that forcibly placing the nurse’s hand on the appellant’s genitals was likely to cause significant psychological harm. His Honour was therefore finding that, in terms of this Court’s analysis in Phineasa, the appellant’s offence against the nurse was a serious violent offence as it was likely to cause her significant psychological harm. [26] The Court can act on evidence which was before the Court when the existing order was made and the respondent must be able to demonstrate that the community can be adequately protected by a supervision order. As McMurdo PD stated in Attorney-General for the State of Queensland v Sutherland,4 the term adequate protection under the Act is a relative concept which “involves the same notion which is within the expression unacceptable risk within s 13(2) of the Act. In each way the statute recognises some risk can be acceptable consistent with the adequate protection of the community.” Accordingly, the supervision order must be shown to be effective in providing adequate protection of the community. As has been noted on many occasions, the question is not whether there is an unacceptable risk that the respondent will breach the supervision order but rather whether there is an unacceptable risk that he will commit a serious sexual offence. [27] Pursuant to s 22(7) of the Act, the Court may extend the existing order to ensure adequate protection of the community. As Burns J observed in Attorney-General for the State of Queensland v Brady,5 the Court is empowered by s 22(7) to amend the order in a way the court considers appropriate to ensure the adequate protection of the community or for the prisoner’s rehabilitation or care or treatment. Accordingly, there was no reason why in an appropriate case an amendment to the length of the order could not be made so as to achieve such an order. In that regard, reliance was placed on the decision of Byrne SJA in Attorney-General v Francis:6 “The concession that s 22(7)(b) confers a power to extend the duration of a supervision order looks to be correct. First, the statutory authority is to amend “the existing order”, not just its “requirements”: contrast s 19(1). Secondly, the Act posits two regimes, either of which can result in an extension. One is enlivened by contravention, or likely contravention, of a supervision order. 3 [2016] QCA 172 at [60]. 4 [2006] QSC 268 at [29]. 5 [2016] QSC 303. 6 [2012] QSC 275. -- 8 of 17 -- 9 Section 19B, on the other hand, may be invoked, and only by the Attorney- General, to seek a “further” – that is, a new – supervision order even where no contravention has happened or is likely. Thirdly, an interpretation of s 22(7)(b) that precludes an amendment to extend duration produces a consequence so odd that it is unlikely to have been intended: if the Attorney- General does not apply under s 19B for a new supervision order and s 22(7)(b) does not authorise an extension of an existing order, there will be cases – indeed, the present is an example – where the prisoner must be ordered to continuing detention where extended supervision, if it could be ordered, would suffice to ensure adequate protection against the risk of a “serious sexual offence”: see s 13(2).” [28] Section 21A of the Act provides that before making an order pursuant to s 22 notice must be given to an eligible person. In terms of the current application I note that no eligible person has provided views about any further order or condition of release to which the respondent should be subject. I understand in this case no eligible person has been identified. Psychiatric evidence [29] Psychiatric reports have been obtained from Dr Josephine Sundin dated 25 August 2018 together with addendum reports of 10, 25 and 26 September 2018 as well as a supplementary report dated 6 March 2019. A report of Dr Scott Harden dated 1 August 2018 has also been obtained together with an addendum report of 17 September 2018 and a supplementary report dated 6 March 2019. Dr Sundin’s reports and evidence [30] Dr Sundin assessed the respondent on 23 July 2018. In her report of 25 August 2018 she also reviewed the previous psychological and psychiatric reports of Drs Walkley, James, Beech, Harden and Professors Nurcombe and Lawrence. Dr Sundin noted that a number of the previous reporting psychiatrists indicated that the respondent was an unreliable historian. She considered that he met the criteria for a paedophilic disorder, exclusive type sexually attracted to males, not limited to incest. She also diagnosed an unspecified paraphilic disorder together with an unspecified personality disorder with avoidant personality traits with mixed obsessional and paranoid features. Dr Sundin applied a number of the actuarial instruments which indicated the following scores: • On the STATIC-99R, he achieved a score of 7, which placed him amongst a group of offenders considered to be of high risk for future sexual offending; • Hare Psychopathy Scale – he was not considered to meet the criteria for psychopathy; • The Sexual Violence Risk Scale – indicated that he presented with sexual deviation, victim of child abuse, relationship problems, employment problems, past supervision failures, multiple type sex offences and minimisation and denial. [31] Dr Sundin considered his risk of re-offending sexually to be in the moderate to high range. Dr Sundin referred in her report to the fact that it was concerning that at a time of increasing psychological distress the respondent reverted to grooming behaviour and that -- 9 of 17 -- 10 this behaviour closely paralleled his behaviour prior to his previous offences. He had been giving money to one of the boys and keeping it in a money box which was similar to his past offending whereby he gave money for sexual favours. Dr Sundin considered that the supervision order prevented this conduct escalating. She therefore considered that his risk of future sex offending which is currently at moderate to high can be reduced to moderate by the presence of the supervision order. She did not consider that he needed to be detained in prison, but could be able to be managed under a supervision order. [32] In the addendum report of 10 September 2018, Dr Sundin noted the report of Dr Harden dated 1 August 2018 in which he recommended the respondent undergo further treatment in custody to address his persistent sexual deviousness and capacity for deceptiveness. Dr Sundin agreed that the respondent should undertake a course of either individual or group treatment prior to his release but considered that individual therapy would be ideally carried out in tandem with group therapy. She stated in that report that; “The issue of the duration of his supervision order is more challenging. As I understand the literature, the risk of recidivism for paedophiles begins to drop after they turn 70, when nature begins to impact in libidinal drives. Mr Loudon is now aged 55. I recommend that he needs to remain under supervision until after his 70 th birthday. Unfortunately, his history has shown that 10 years offence free in the community has not been a good enough predictor of his potential for future deviant behaviours such as grooming young males in his preferred age group.” [33] Dr Sundin has provided a further addendum report of 26 September 2018 and supplementary report dated 6 March 2019. In the most recent report Dr Sundin reviewed the reports and the notes of the psychologist Ms Richards. In her view the respondent had made some progress towards acknowledging his offending and his paedophilic drives. Dr Sundin stated that whilst she considered that individual counselling for the respondent was a condition for release into the community she was unchanged in her view that his supervision order should still remain in place until he was 70. Dr Sundin did not consider that participation in a sex offender treatment program should be a pre-condition for release as such a program, whilst beneficial, does not address paedophilic drives which remains the principal therapeutic focus for the respondent. She considered that a supervision order of appropriate duration is capable of containing the risk that he poses to the community. [34] The duration of the order became the principal issue at the hearing on 18 March 2019. In this regard Dr Sundin was also referred to a number of articles and asked to clarify her opinions in the light of the articles.7 Dr Sundin’s evidence was in the following terms;8 Dr Sundin: I would concur with Doctor Harden that it – I wouldn’t opine that it was going to be low for at least 10 years. Doctor Harden rightly talks about the issues around static factors, but in my opinion because Mr Loudon has been an outlier within this small difficult, extra familial group, I’ve given – paid more attention in my assessment to a number of the dynamic risk factors. 7 R. Karl Hanson, ‘Age and Sexual Recidivism: A Comparison of Rapists and Child Molesters 2001-01’ (2002) Department of the Solicitor General Canada; Rice, M E et al. ‘What Does it Mean When Age is Related to Recidivism Among Sex Offenders?’ (2014) 38(2) Law Human Behaviour 151. 8 Transcript 1-12 ll 31-46. -- 10 of 17 -- 11 I was quite concerned with Mr Loudon that he had, for a very long time, been in absolute denial of his paraphilic cognitions. And he had reverted to offence paralleling behaviour in his contravention after a very long period of time in the community, apparently doing well, and apparently compliant with supervision. This has motivated a quite significant degree of caution within me. That said, Mr Loudon has made one very big step forward in recent times. I understand both through the intervention of his barrister and through the work of Ms Richards, in that he has now stepped away from denial of his paraphilia, which has been a major feature for a – for a considerable period of time. [35] Dr Sundin stated that “paralleling behaviour” is behaviour which replicates a person’s pathway to offending and the respondent’s action in late 2017 which led to the contravention was such behaviour. Such behaviour also increases the risk of reoffending. She considered that without the intervention of the supervision order his behaviour could have continued and resulted in a sexual offence involving a young child. [36] The fact that the respondent was over fifty and had gone for almost a decade on his supervision order before breaching it was discussed and Dr Sundin considered that those factors were relevant to the assessment of risk and the persistence of risk as follows:9 Dr Sundin: I refer you to the discussion section of the article I sent you by Karl Hanson from 2002 where he points out that extra-familial child offenders showed little decline in their recidivism risk until after the age of 50. And in Doctor Harden’s articles there is material – I think in mine there’s also a – an age degradation graft which your Honour might find useful. Statistically his risk is not going to be extremely low until he’s 70. [37] However, Dr Sundin agreed that the research shows that the extent to which recidivism rates of child molesters decreases with age is “unknown” and that conclusions are difficult because this group is such a small group even in the large meta-analysis studies. Furthermore it would seem that the group that are extra familial sex offenders against pre pubertal males is an even smaller group and consequently the difficulty in prediction is even greater. [38] Dr Sundin accepted in her evidence that Ms Richards’ reports indicate that the respondent is speaking more openly about his paraphilia and his homosexuality which means that the factor of shame is abating. She stated that that development is significant as it was a driving factor in his offending. Whilst it bode well for the future she considered that it was still “early days”.10 Dr Sundin also considered that issues of self-control were also relevant to risk and that when he was under stress in 2017 he lost control over his paraphilic behaviours and began to act in a way that contravened his order. She stated however that generally self-control improves with age and that “it is an aspect of behaviour that can be worked on in treatment with his treating clinician, Ms Richards, so that he can learn a number of strategies to enhance his capacity for self-control and to manage and distract his paraphilic cognitions.”11 [39] Dr Sundin evidence was that the respondent’s engagement with treatment was vitally important as it is only with treatment that the respondent can address his paraphilic cognitions. She stated that the sex offender treatment programs don’t have the capacity 9 Transcript 1-14 ll 1-6. 10 Transcript 1-13 ll 5-8. 11 Transcript 1-17 ll 3-6. -- 11 of 17 -- 12 to address paraphilic cognition and therefore an important aspect of continuing to contain the respondent’s risk once he is released under a supervision order is the continuation in treatment. Dr Sundin indicated however that if the respondent reverted to his pre 2018 attitudes in relation to his paraphilia and homosexuality it would not necessarily effect the risk. [40] Dr Sundin agreed with Counsel for the respondent that whilst it is clear that it is unnecessary for the respondent to remain in custody and it is agreed that he can be managed under a supervision order the difficulty is that it is difficult to predict with any precision the point in time at which it is unlikely he will commit further offences. Dr Sundin also agreed that the contributing factors to that lack of precision included the respondent’s unwillingness to confront his offending and his unwillingness to acknowledge that he might benefit from treatment. Dr Sundin also conceded that if he continued with treatment and was educated to cope with his paraphilia that his risk would be reduced but the exact reduction cannot be specified. [41] In response to a question by Counsel for the respondent as to when his risk would be reduced to low as opposed to extremely low Dr Sundin stated;12 Mr Pearce: You mentioned, in your evidence-in-chief, that he would not reach an extremely low risk until age 70? Dr Sundin: Yes. Mr Pearce: At what age is he likely to reach a low risk? Dr Sundin: That would depend on a number of factors that would be related to – certainly, there’s the actuarial factor of age and survival in the community. You know, actuarially, his risk is halved once he’s in the community and offence-free – hang on, let me change that. Actuarially, the longer an individual survives, the lower their risk, and at five years, if they’ve remained offence-free, the – the risk is said to have halved. So this man is going to be at low risk, probably – I don't know, but probably around the 10 year mark. Dr Scott Harden’s reports and evidence [42] Dr Harden stated that the respondent had been convicted of a series of sexual assaults, mainly on young boys which involved a grooming pattern and did not involve violence or threat. He considered that there was a clear paedophilic sexual orientation disclosed in the material and whilst he noted individual psychological therapy had been undertaken during the course of the respondent’s previous supervision for 10 years, he noted that no progress had been made in relation to the denial of paedophilic sexual offending. Dr Harden considered the respondent’s recent contact with the two 14 and 15 year old boys increased his risk of recidivism. He considered that if he was in the community without a supervision order he would be in the moderate to high risk group, with the significant factors being his paedophilic sexual orientation and his failure to comply with supervision. He noted that whilst the respondent had accepted previous evidence he should not have contact with young people, he noted that there could now be little reliance on that statement. [43] Dr Harden also applied a number of risk assessment instruments as follows: 12 Transcript 1-30 ll 28-37. -- 12 of 17 -- 13 • On the STATIC-99R – the respondent scored an 8, placing him in the high risk category; • On the Sexual Offender Risk Appraisal Guide (SORAG) – he achieved a score of 19, placing him in category 6, which is a group which had a 58% rate of violent or sexually re-offending at seven years and a rate of 76% at 10 years; • On the Hare Psychopathy Checklist – he achieved a score of 15; • On the Stable-2000 – he was found to be in the high needs group in terms of a sexual offenders dynamic risk; • On the SVR-20 – he was in the moderate to high risk category of sexually violent recidivism. [44] Dr Harden was of the view however that if he was placed on a supervision order in the community, such an order would reduce the risk of recidivism to moderate. He stated that whilst there would be concerns about his compliance with requirements that restricted his access to victims by requiring he not have contact with young people, Dr Harden considered that given the previous offending had been associated with grooming behaviour, there is likely to be some warning signs prior to sexual recidivism. [45] Dr Harden considered that given the respondent’s behaviour which gave rise to this contravention, the respondent is effectively untreated due to his long-standing intense denial of offending. He considered he should undertake both individual treatment with a skilled practitioner as well as group treatment at either the medium intensity or high intensity sexual offender program. He considered given the circumstances of the contravention the completion of a group treatment program in custody was preferable prior to release on a supervision order. [46] In his addendum report dated 17 September 2018 Dr Harden stated that the contravention decreased significantly the protective elements of the supervision order which had been associated with his long term general compliance with supervision. He considered therefore that “The risk factors for sexual offence recidivism in his case of his paedophilia, his unusual personality structure and his denial (not a risk factor in itself but leading to other risks such as non-compliance with supervision) are long-standing and unlikely to change on the information currently before me.”13 He therefore considered that a longer period of time was required to manage the risk of sexual recidivism. He continued “The prediction of this period of time is very difficult but is likely to be in the vicinity of 10 years or possibly more. The requirement might even be lifelong.” [47] Dr Harden’s Report of 6 March 2019 referred to the reports of the psychologist Ms Richards and the session summaries where it was noted that the respondent was motivated towards treatment and that he acknowledged his offending. Dr Harden noted the reports from the psychologist but considered that the respondents unmodified risk of sexual re- offence if released is still in the moderate to high range in the absence of a supervision order. In particular, he considered his major risk factors to be his paedophilia, his unusual personality structure, his previous denial and his failure to abide by supervision. He 13 P 2 Addendum Report dated 17 September 2018. -- 13 of 17 -- 14 considered however that a supervision order on release would reduce the risk of sexual recidivism to moderate. [48] Dr Harden noted that the treatment program had been relatively successful but noted his reluctance to undertake group therapy and considered that on balance, he should remain in treatment with Ms Richards. Dr Harden’s view remained that he was a person who had long-standing paedophilia, coupled with a long-standing denial of sexual misbehaviour. He considers that a longer period of time beyond the length of the present supervision order is required to manage the risk of sexual recidivism. He considered the difficulty in prediction but noted that supervision in the order of 10 years or more would be appropriate. [49] At the hearing Mr Rolls asked Dr Harden whether his view was that an order was required for 10 years “or possibly more” as follows:14 Mr Rolls: Now, in more recent documents, you’ve identified a period of 10 years. What has caused you to alter your emphasis between “10 years or possibly more” and “10 years” appearing in your documents of the 15th of – emails of the 15th of March, which are presently before her Honour? Dr Harden: I think Mr Loudon – yes, there is a slight change in emphasis, as you say, and the reason is that Mr Loudon has removed himself from his previous stance of complete denial, so he has acknowledged that there has been sexual offending against children and has been, actually, quite – there’s quite a realistic kind of acknowledgement contained in Ms Richards’ reports. [50] Dr Harden concluded that a supervision order of 10 years duration was the appropriate order as follows:15 Mr Rolls: Oh, so – those – but those – but my question is how are those factors relevant to the conclusion that you reach that the risk will be low in 10 years from now? Dr Harden: Well, clinically he’s getting 12 out of 26; the really severe dynamic risk guys you see tend to score sort of 16, 18, occasionally even 20. So he’s not as high as some, and you would expect some of these things to improve with both time in the community, but also with treatment. So yes, that’s – it’s relevant, and you just have to monitor it, and the 10 years – I’ve explained my basis for the 10 years previously. Mr Rolls: All right. So it’s – it’s based on an expectation that these things will, if you like, improve over time, lowering his risk? Dr Harden: Correct. Has the respondent satisfied the onus on him? [51] The affidavit material discloses a clear breach of Clause 25 of the supervision order and the fact that such a breach occurred has not been a contention in this hearing. I am satisfied that the respondent has breached Clause 25 of the supervision order. I consider that the contravention related to him grooming and having contact with young males and that as such it went to the heart of the supervision order. I also accept that the respondent’s conduct was designed to frustrate the effectiveness of the order given that he concealed 14 Transcript 1-19 ll 5-14. 15 Transcript 1-27 ll 4-18. -- 14 of 17 -- 15 contact with the young men who were vulnerable to his approaches and also by requiring them to keep the contact secret. It is this deception which is of serious concern. [52] Once a breach is established the onus then passes to the respondent to demonstrate that the adequate protection of the community is able to be ensured by his release on the existing supervision order. Section 22 provides that once a contravention is proved, the Court shall rescind the supervision order and make a continuing detention order unless the prisoner satisfies the Court that their continuation on supervision in the community will ensure the adequate protection of the community. The term “the adequate protection of the community” in s 22(7) has the same meaning as it bears in s 13 of the Act and a prisoner facing an application under s 22 must prove that the supervision order will ensure adequate protection of the community by removing unacceptable risk that they will commit a serious sexual offence. [53] It needs to be remembered that the issue under s 22 of the Act is not whether there is an unacceptable risk that the respondent will breach the supervision order in the future but whether there is an unacceptable risk that he will commit a serious sexual offence. [54] Having considered the reports of the psychiatrists I am satisfied, on the balance of probabilities, pursuant to s 22(7) of the Act that the adequate protection of the community can, despite the contravention, be ensured by the making of a supervision order which contains the existing conditions. It would also seem clear on the material before me that the current conditions and requirements contained within the existing supervision order have in fact been operating effectively. I consider that in fact that the current conditions have been serving their purpose in identifying early warning signs and non-compliance with the conditions of his supervision order. [55] Section 22(7)(b) then provides that if the released prisoner satisfies the Court that the adequate protection of the community can be ensured by the making of a supervision order then the Court “may otherwise amend the existing order in a way the Court considers appropriate to ensure the adequate protection of the community or for the prisoners rehabilitation or care or treatment.” [56] The evidence of the psychiatrists outlined indicates that whilst the existing conditions of the current supervision order are appropriate to ensure the adequate protection of the community, the current term of the Order, whereby it expires in less than four years, is not appropriate. As Dr Harden stated in his most recent report “the current supervision order has nearly 4 years to run and under many other circumstances I would regard this as a substantial period during which a substantial decline in risk of sexual recidivism might occurred.” He concluded however that a “longer period of time than four years of supervision in the community is required to manage the risk of sexual recidivism” given that the contravention was associated with secret contact with boys. In short, the adequate protection of the community cannot be ensured by the existing supervision order which expires on 7 July 2022. On the basis of the evidence before me the current duration of the supervision order is clearly inadequate to manage the risk the respondent poses given evidence that an order of at least 10 years duration is required. [57] Both psychiatrists agree that the term of the existing supervision order needs to be amended. I am therefore satisfied that whilst the respondent has satisfied the onus on him that the adequate protection of the community can be ensured by his release on the -- 15 of 17 -- 16 existing supervision order the term of the existing order needs to be amended pursuant to s22(7)(b)(i) to ensure the adequate protection of the community. [58] This issue was considered by Davis J in Attorney General (Qld) v Holroyd;16 Section 22(7) authorises the Court to “amend the existing order in a way the Court considers appropriate … [relevantly here] … to ensure adequate protection of the community.” Section 22(7) contemplates the amendment of the order so as “to ensure adequate protection of the community” which may in an appropriate case require an amendment to the duration of the supervision order. [59] The essential question is therefore how is the term of the supervision order is to be amended pursuant to s 22(7)(b)(i)? What is the appropriate term of the supervision order? [60] As I have already stated, the essential issue at the hearing was the duration of the supervision order. I have already outlined the evidence of the psychiatrists Drs Sundin and Harden above in paragraphs [26] to [46]. Whilst Dr Harden initially considered that an order of 10 or possibly more could have been required, he subsequently altered that view due to the respondent’s recent commitment to therapy with Ms Richards and the respondent’s altered stance in relation to the denial of his offending. In his evidence at the hearing Dr Harden confirmed his view that 10 years was the appropriate duration of the order given those developments. [61] It is to the respondent’s credit that he remained in custody for an additional four months and agreed to the adjournment of the contravention proceedings which were originally scheduled for November 2018, to allow him to commence treatment in custody. As a consequence, significant gains have been made which have been recognised by Ms Richards in reports to the Court. [62] Dr Sundin also conceded at the hearing that her evidence was that the risk to the community would be low at 10 years but extremely low the age of seventy. [63] In the recent decision of Attorney General for the State of Queensland v PCO17 Davis J discussed the question which essentially needs to be addressed by the psychiatrists in their evidence as follows; [57] In hindsight my questions, asking Dr Sundin to consider issues “of unacceptable risk” and “adequate protection of the community” were not the right questions. Ultimately, they are mixed questions of fact and law and are questions for the Court. The appropriate questions are ones asking Dr Sundin to identify when, during the life of a supervision order risk of sexual reoffending would reduce to a point where it was considered by her to be low. Assessments of whether risk is unacceptable or otherwise would then be done by the Court. [64] Accordingly the question to be answered is at what point the risk to the community can be considered to be low? It would seem to me that the evidence indicates that the risk would be low in 10 years. The assessment of whether risk is unacceptable or otherwise is then determined by the Court. As to how that determination is to be made, what must be 16 [2019] QSC 39 at [35]. 17 [2019] QSC 44 at [57]. -- 16 of 17 -- 17 ensured is the protection from an unacceptable risk that the respondent will commit another serious sexual offence and accordingly the supervision order must remain in place while such a risk exists. [65] Davis J also considered this issue in some detail in Attorney General for the State of Queensland v KAH18 where it was stated that the setting of a period of supervision must necessarily involve an assessment at the time the order is made about a prisoner’s current status but ‘predicting’ when he will be an acceptable risk in the community without a supervision order. [66] Having considered the clear evidence of both Drs Sundin and Harden that in ten years the respondent will be a low risk of committing another serious sexual offence I consider that the point at which the respondent would no longer be an unacceptable risk such that he is required to be managed by a supervision order, would be 18 March 2029. Orders The court, being satisfied to the requisite standard that the respondent, Kevin Michael Loudon has contravened requirement 25 of the supervision order made on 6 July 2017 orders that: 1. Pursuant to ss 22(2) and 22(7) of the Dangerous Prisoners (Sexual Offenders) Act 2003, the respondent be released from custody and continue to be subject to the supervision order made on 6 July 2017 with the following amendment: (a) Amend order 2 by omitting words “7 July 2022” and inserting the following underlined words so as to read “2. The respondent be subject to the following conditions until 18 March 2029”. 18 [2019] QSC 36. -- 17 of 17 --