Attorney-General for the State of Queensland v. Banks
[2007] QSC 267
•26 September 2007
SUPREME COURT OF QUEENSLAND
CITATION:
Attorney-General for the State of Queensland v Banks [2007] QSC 267
PARTIES:
ATTORNEY-GENERAL FOR THE STATE OF QUEENSLAND
(applicant)
V
GRAHAM WAYNE BANKS
(respondent)
FILE NO/S:
BS 3976 of 2007
DIVISION:
Trial Division
PROCEEDING:
Application
ORIGINATING COURT:
Supreme Court of Queensland
DELIVERED ON:
26 September 2007
DELIVERED AT:
Brisbane
HEARING DATE:
24 September 2007
JUDGE:
Daubney J
ORDER:
1. Pursuant to s 13(5)(b) of the Dangerous Prisoners (Sexual Offenders) Act 2003 (Qld), I make a supervision order in the terms set out in Annexure A.
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
Corrective Services Act 2000 (Qld) s 108
Corrective Services Act 2006 (Qld)Dangerous Prisoners (Sexual Offenders) Act 2003 (Qld) ss 3, 5, 8(2)(a), 9AA, 13, 19, Part 2 Division 3
COUNSEL:
J Rolls for the applicant.
J Hunter for the respondent.
SOLICITORS:
Crown Solicitors for the applicant.
Legal Aid Queensland for the respondent.
DAUBNEY J: This is an application by the Attorney-General for final orders against the respondent, Graham Wayne Banks, pursuant to Part 2 Division 3 of the Dangerous Prisoners (Sexual Offenders) Act 2003 (Qld) (the Act). At the hearing before me, the applicant limited himself to seeking a supervision order under s 13(5) of the Act. A draft supervision order, including various proposed requirements, was proffered by the applicant. In the course of argument, it quickly emerged that the only elements of the draft order which were contentious from the respondent’s perspective were those relating to:
(a) the duration of the supervision order; and
(b) whether there should be a requirement to the effect that the respondent be compelled to submit to testing of testosterone levels by an endocrinologist and consequent treatment.
The respondent is 55 years old. He is currently serving a term of two years and 17 days at the Wolston Correctional Centre for two counts of indecent treatment of a child under 16 years. This term encompasses the outstanding amount of a suspended sentence, to which he was subject at the time of his most recent offences.
The respondent’s custodial end date is currently calculated to be 6 October 2007, which is a Saturday. Pursuant to s 108 of the Corrective Services Act 2000 (Qld) he would be due for release on Friday 5 October 2007.
Statutory Scheme
The objects of the Act (s 3) are to provide for continued detention or supervision of a particular class of prisoner and to provide continuing control, care or treatment of a particular class of prisoner to facilitate their rehabilitation.
The Act establishes a scheme for the continued detention in custody or supervised release of prisoners who are deemed to be at risk of committing serious sexual offences if released at all, or if released without appropriate supervision. The Act makes provision for this court to hear applications for orders under the Act, and s 5 of the Act places the responsibility for making the necessary applications on the Attorney-General.
The primary orders which may be granted under the Act are called ‘Division 3 orders’, which are provided for in s 13:
13 Division 3 orders
(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").
(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 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;
(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.
(7) The Attorney-General has the onus of proving that a prisoner is a serious danger to the community as mentioned in subsection (1).
For the Court to make a Division 3 order, it must be satisfied that the prisoner is a serious danger to the community in the absence of such an order: subs (1). Subsection (2) defines what is a ‘serious danger to the community’. There must be an unacceptable risk that the prisoner will commit a serious sexual offence if released at all, or if released without a supervision order.
The Schedule to the Act defines what a serious sexual offence is:
serious sexual offence means an offence of a sexual nature, whether committed in Queensland or outside Queensland—
(a) involving violence; or
(b) against children.
[9] The offence must be of a sexual nature, with the added requirement that it either involve violence, or is an offence against children.
To be satisfied under s 13(1) that the prisoner would pose a serious danger to the community in the absence of an order, the Court must be satisfied by acceptable, cogent evidence, and to a high degree of probability, that that the evidence is of sufficient weight to justify the decision: s 13(3).
By amendments to the Act, effective from 29 August 2007, the Court must receive any submissions supplied by an ‘eligible person’. Such person is required to be given notice of the hearing. An eligible person is defined as a person registered as eligible person in relation to the prisoner on an eligible persons register. Such register is required to be kept under the Corrective Services Act 2006 (Qld).
There is no eligible person able to be identified in respect of the respondent. Thus, no submissions pursuant to s 9AA of the Act have been placed before the Court.
The applicant has filed affidavits which contain details of and exhibit copies of:
(a) the respondent’s criminal history;
(b) psychological assessments of, treatment of and intervention programs undertaken by the respondent while in custody;
(c) psychiatric assessment of the respondent by Dr Ian Colls, Consultant Psychiatrist;
(d) the Director of Public Prosecution’s court briefs relating to the offences for which the respondent is now in custody; and
(e) the ‘offender file’, ‘professional management file – part 1’ and the ‘medical file’ relating to the respondent held by the Department of Corrective Services.
By order of Lyons J made on 7 June 2007 (as amended by further order on
18 June 2007) the respondent was ordered pursuant to s 8(2)(a) of the Act to undergo examinations by two psychiatrists, namely Dr Basil James and
Dr Michael Beech. Reports from each of those doctors were tendered by the applicant, and each doctor gave oral evidence and was cross-examined before me. The applicant also tendered the ‘exit report’ from the respondent’s participation in the High Intensity Sexual Offending Program (HISOP).
The following is distilled from the evidence before me.
Criminal History
The respondent’s criminal history is as follows:
| Date | Description of Offence | Sentence |
| 15.02.90 Tamworth DC, NSW | Assault Committing an act of indecency, 3 counts | 1 year minimum imprisonment, on each count, with an additional term of four months. |
| 17.09.03 Brisbane DC | Indecent treatment of children under 16, 6 charges on or between dates of 05.10.02 and 11.10.02. Indecent treatment of children under 16 with circumstances of aggravation, 2 charges on dates between 14.12.02 and 26.12.02 and on 31.12.02 | 2 years 6 months imprisonment on each charge, suspended for 3 years after serving 12 months imprisonment. |
| Common assault | 4 months imprisonment. | |
| Indecent treatment of children under 16, on dates between 06.01.03 and 28.01.03 | 2 years 6 months imprisonment to be suspended for 3 years after serving a term of 8 months imprisonment. All terms to be served concurrently. | |
| 07.12.05 Brisbane DC | Indecent treatment of child under 16 between 17.03.05 and 09.06.05 Indecent treatment of child under 16 between 17.03.05 and 09.06.05 | 6 months imprisonment. Declaration made in relation to 79 days spent in custody. Breach of suspended sentence imposed on 17.09.03 proven. Suspended sentence activated and re-sentenced to 22 months imprisonment to be served concurrently. |
The Current Offences
The respondent befriended a 12 year old boy who lived in the apartment complex in Coorparoo where Banks lived. There is some evidence that he attempted to begin a relationship with the boy’s mother, but that she rejected him. He bought the boy gifts, including a PlayStation 2. On one occasion he exposed himself to the boy, masturbated himself and asked the victim to show him his penis, which he did. The respondent then ceased the offending behaviour because, so he claimed, he realised his conduct was wrong.
The respondent had inappropriate conversations with the boy about the boy’s genitalia. On one occasion he said to the boy that girls had performed oral sex on him in the past. It appears he attempted to befriend several other children who were friends of the 12 year old boy and had two of them at a sleep over at his home with the 12 year old boy. However, there is no evidence that he had offended against these other children.
In sentencing the respondent for these offences, Shanahan DCJ noted that the current offences were similar to the offences for which he was sentenced in
New South Walesin 1990 and in Queensland in 2003.
Family History
The respondent was born in Sydney and was the second of 10 children. He says that he was exposed to domestic violence from an early age, and that his father was abusive and prone to excessive alcohol use. He recalls having seen his father raping his mother when he was about 10 years old. His father left the family when the respondent was about 14 years old. He says the family struggled financially throughout his childhood.
The respondent has stated, as part of his STABLE-2000 interview, that he has had five sexual relationships in his life. Two of these women were mothers of two of his victims. He reported having been in a relationship for about three years, having lived with this partner in excess of two years. He reported to psychiatrist
Dr Ian Colls that he had had four adult female sexual partners in the past and that he had probably had sex only four times in his life, due to premature ejaculation problems. The respondent said that when he was approximately 28 years old he established a relationship with Caroline, who was eight years younger than him and who had an infant child, Aaron. They remained together for seven years and had a son, Andrew, about 18 months before the end of the relationship. When Aaron was 13 years old he lived with the respondent for 18 months before returning to live with his mother. At about this time his son Andrew moved in with him, but only stayed six months. The respondent says he lost contact with the family in about 2000.
In the STABLE-2000 interview the respondent reported having no friends and no contact with family members.
Drug & Alcohol History
There is no indication the respondent has a history of drug use or alcohol abuse. He reported to Dr Colls using alcohol in moderation.
Medical & Psychiatric History
The respondent claims he attempted suicide by way of drug overdose in November 2002. It appears Banks was not incarcerated at this time. His only regular medication is a treatment for hypertension. He reported having a history of panic or anxiety attacks.
Events in Prison
When the respondent was transferred to Wolston Correctional Centre he was given a high security classification. It is unclear what security classification he has now. It appears he has remained breach and incident free throughout his current imprisonment.
The respondent has completed a TAFE course about creating and using simple spreadsheets and partially completed a TAFE Certificate in Business during his imprisonment.
The respondent has worked in the kitchen at the prison as an Officers’ Mess Server and Cleaner. He was assessed as either good or very good in performing this role. It appears that he was to commence work in industries as of 15 May 2005, however his prison employment history indicates that he did not commence employment at that time or in that particular role.
The respondent has completed the HISOP. His participation was ‘satisfactory’.[1]
Psychological & Psychiatric Reports
[1]See Exhibit 1.
Report by Dr Ian Colls, Consultant Psychiatrist dated 17 September 2006
This report was prepared on the instructions of Crown Law for the purpose of risk assessment for a potential application under the Act. The report was based on an interview conducted with the respondent at Wolston Correctional Centre on
8 September 2006, as well as extracts from the DPP file and the prison files.
The respondent stated to Dr Colls that he was unsure of his sexuality. He reported being attracted to adult women, but also being occasionally aroused by pre-pubertal boys aged 10 to 14 years. He claimed he first noticed his attraction to boys when he was living in Caboolture, but denied it had been prominent at the time of his first conviction in 1990. He had previously stated, however, that whilst he was not aroused at the time of that offence, he was curious.
Dr Colls reports that, according to the respondent, the two most recent offences began after he was rejected in relationships with adult women. Dr Colls believes that these offences were not revenge against the women, but out of a sense that, for him, relationships with adult women were apparently impossible.
Dr Colls is of the opinion that the respondent acknowledges the inappropriateness of his actions and that his offences have been opportunistic rather than predatory.
Dr Colls diagnosed him with ‘Paedophilia, non exclusive type (302.2)’ and ‘Avoidant Personality Disorder (301.82)’. Dr Colls is also of the view that Banks comes close to, but probably falls short of ‘Panic disorder without Agoraphobia (300.01)’ and/or ‘Generalised Anxiety Disorder (300.02)’.
Using the Static-99 psychometric test, Dr Colls assessed the respondent as having a high risk of re-offending. Dr Colls believes that the key to reducing the risk of the respondent re-offending is for him to address his personality disorder and anxiety symptoms, using a mixture of psychotherapy and anti-depressants, used as anti-anxiety agents.
Dr Colls states the factors predisposing the respondent to re-offending include the number of his offences; their persistence over time; his high Static-99 score; and the fact that he has not yet completed treatment for his underlying psychiatric vulnerabilities or his offending behaviour.
Dr Colls states the factors reducing the risk of the respondent’s re-offending include the late onset of the initial offending behaviour (he was 37 years of age); an identifiable psychological basis for his offending, which is treatable; his willingness to be engaged in psychological support; a long period of non-offending (1989 – 2002/3); and a willingness to address his offending behaviour.
Offender Programs Branch Assessment, Wolston Correctional Centre, by Christine Tunbridge and Jennifer Rose, facilitators of the Sexual Offenders Program
This report was to provide information in relation to the respondent’s current risk and his responsiveness to intervention.
The authors used two psychometric tests (Static-99 and Stable-2000) to predict the likelihood of re-offending. The respondent’s assessment under each of the tests was:
· STATIC-99: high risk
· STABLE-2000: high needs.
The Static-99 report indicated that the respondent had been in a relationship for three years in which he lived with his partner for more than two years.
The Stable-2000 report indicated that the respondent has a solitary lifestyle where he did not socially or emotionally engage with others. He reported he has no contact with his siblings or his son and that he has no friends. He reported minimal superficial contact with work colleagues and fellow inmates.
The respondent disclosed that he shares friendships with children and he felt he can more easily relate to children than adults. The report indicated he sought intimacy through sex with children. It also indicated that he tended to externalise responsibility for the offending, claiming that the child asked him to expose himself. The respondent indicated he would participate in treatment because he had to, but he felt he would not re-offend if he was not isolated with children. He viewed his involvement as circumstantial and was not able to identify how he contributed to being isolated with the children. The authors noted that they doubted the genuineness and honesty of his responses.
Exit Report from HISOP
The respondent completed the HISOP on 21 May 2007. In its report as to his ‘state of change’ on completing the program, it is said:
Mr Banks is considered to be in the Preparation stage of change as he has made observable and relevant changes. His has consistently acknowledged his offending and appears motivated to progress to the stage where he is able to action the requisite changes over an extended period of time. It should be noted that whilst he is in custody it is difficult to gauge his ability to implement relevant interventions given the constructive nature of this environment.
….
The ‘Summary of Program Outcomes’ records:
Mr Banks is currently 54 years of age, sentenced to two years, 17 days for two counts of Indecent Treatment of a child under 16 years. He has previously been incarcerated for similar offences against male children:
· Throughout the program Mr Banks addressed the majority of his identified treatment needs to a satisfactory standard. He demonstrated a recognition of the linkage between intimacy deficits and his offending behaviour. He was able to articulate the process whereby he attempted to meet his need for intimacy via his offending against children. Mr Banks displayed a marked improvement in his ability and willingness to interact with others, to expand his social network and increased understanding and demonstration of empathic responses. Mr Banks was able to challenge negative self appraisals which underscored his feelings of alienation and rejection. It will be necessary for Mr Banks to continue to work on strategies to build his self-esteem and access professional support.
· In relation to sexual self-regulation Mr Banks identified his use of sex as a means of achieving a sense of emotional connectedness. There was no indication of sexual preoccupation throughout the program. He acknowledged deviant sexual interests, although this was not addressed specifically within this program Mr Banks evidenced a recognition of triggers to deviant fantasy and a high degree of motivation to seek appropriate professional help if he encounters a recurrence of these thoughts. With assistance, Mr Banks was able to identify some attitudes supportive of child molestation and at an intellectual level was able to challenge these beliefs. This is an area he will need to continue and monitor and evaluate.
· Through his completion of the High Intensity Sexual Offending Program and development of a realistic New Future Plan, Mr Banks risk level, as estimated in the Sexual Offending Program Assessment, should be reduced. A high level of support and supervision may assist Mr Banks in complying with his plan and maintaining vigilance with regard to his risk factors.
Report by Dr Michael Beech, Consultant Psychiatrist dated 28 August 2007
The report was based on an interview conducted with the respondent at Wolston Correctional Centre on 3 August 2007, together with material contained at page 2 of the report.
Dr Beech assessed the respondent using a number of formal assessment tools, the results of which were as follows:
On the STATIC 99, I gave Mr Banks a score of seven. This has placed him in the category of high risk of re offending. People within this group, on average, have a 0.39 risk of re offending within five years and a 0.45 risk of re offending within ten years.
On the Hare Psychopathy Check List, I gave Mr Banks a score of nine. This does not put him in the range of psychopath.
On the Sexual Violence Risk – 20, I gave Mr Banks a positive score for six of the twenty items. Five of these were in the psycho social adjustment realm. This I believe places him at least in the medium range of re-offending risk.
On the Sex Offender Risk Appraisal Guide, I gave Mr Banks a score of six. This placed him in category four. On average, people in this group have a 0.39 risk of re-offending at seven years and a 0.59 risk of offending at ten years.
Dr Beech concluded that the respondent is a paedophile with sexual attraction to males and is not exclusive. He said that this ‘sexual deviation occurs in the context of a severely prejudicial childhood history with a drunken violent father, poverty and stigmatisation’.
Dr Beech also notes that the respondent’s sexual offending appears to occur after there has been a loss in adult relationships or a relationship which has failed to establish or broken down.
The report records the following opinions of Dr Beech:
It would seem then to me that while Mr Banks may seek intimate adult relationships, when they fail to form he then seeks solace and sexual gratification by forming relationships with young males. His victims would be seen as less dominant, perhaps more easy to befriend, and less likely to reject him. His offending is aided by his ability to befriend the boys and the material suggests in fact he may actually target young males who are without a father figure and who are in some conflict with their mothers.
…Nonetheless, I believe that a significant factor in his offending is his inability to form suitable adult relationships, his lack of assertiveness, and the emotionally empty nature of his life. His friendships with young adolescent males meet these emotional needs. The offending occurs when he has made friends with the males and begins to fantasise about them and this ultimately leads to inappropriate sexual contract which for the most part appears to have included exposure, masturbation and fondling.
While he now recognises the nature of his offending pattern and indeed appears prior to this period of detention to have made some attempts to deal with it, I believe that it is significant that his offending has occurred while on bail and while serving a suspended sentence. That is, I believe that the urge that he has for sexual contact with young males reaches a point where the legal restraints have been insufficient to prevent him acting on this urge. Attempts at counselling appear to occur after the detection of the offending.
It is my opinion that at present Mr Banks is at least a moderately high and probably high risk of re offending if released into the community. Although he has done a sexual offender treatment program and has describes some insight into his offending and is able to verbalise some suitable strategies it is to be noted that this has occurred in a structured setting away from objects of his sexual arousal. It also occurs in the context of his earlier history of breaching bail and suspended sentence.
I have grave concerns that if he were to be released without some form of supervision, he could easily find himself in a similar situation as earlier and would re-offend.
…
Dr Beech considers there is little likelihood of physical danger to his victims, and notes there could be a reduced risk of re-offending having regard to a number of factors:
(a) The respondent should not work or reside near or have contact with young males under the age of 16;
(b) The respondent should continue to have psychological support and counselling with a primary aim of keeping alert and vigilant to situations which would lead to him re-offending. It would also help adjust to his social isolation and lack of intimacy that he experiences and could assist in developing a release plan which would enable him to seek out appropriate adult support and contact.
In his oral evidence before me, Dr Beech:
(a) affirmed his view that, whilst the respondent was a suitable candidate for release under relatively close supervision, the period of such supervision should be 10 years. Dr Beech’s view was that the respondent’s offending behaviour, while sexual in nature, did not derive from a sexual pre-occupation but from him conflating sexual conduct with emotional attachment, and this informed Dr Beech’s opinion as to the necessity of an extended period of supervision. Dr Beech also referred to a study of more than 4,000 offenders conducted in 2002 which he said supported the proposition that the risk attaching to extra-familial offenders continues into their 60’s. He also relied on actuarial studies to support the view that in the case of a high risk offender such as the respondent, the risk of re-offence is still significant after five years and only drops significantly after 10 years; and
(b) did not consider that a requirement for testosterone testing and treatment was necessary. His assessment of the respondent was not predicated on the respondent receiving testosterone treatment such as a testosterone inhibiting drug like Androcur. Dr Beech was concerned about the possible side effects of such a drug on the respondent, who has a history of cardio-vascular and metabolic problems. Dr Beech questioned the appropriateness of testosterone testing in a case such as this, where the respondent’s offending behaviour derives from problems which are ‘more emotional than chemical’.
Report by Dr Basil James, Consultant Psychiatrist dated 6 July 2007
The report was prepared after an interview with the respondent on 15 June 2007.
Dr James diagnosed the respondent as suffering from paedophilia related to males and is not exclusive. He also diagnosed the respondent as having an avoidant personality disorder, the symptoms of which are currently in remission as a result of his treatment in the High Intensity Sexual Offenders Program (HISOP) and a social anxiety disorder (social phobia) which is also in remission as a result of treatment. In the latter two cases the effect of both of these treatments needs to be tested in the wider community according to Dr James.
The doctor notes the following, as reported to him by the respondent:
He said that he now viewed his offending behaviour as a quest for intimacy which, for the reasons cited above, he could not obtain in more mature relationships; and he said that he believed himself to have been particularly vulnerable to such behaviour when his social anxiety and resultant isolation had led him to feel a painful sense of loneliness. Mr Banks said that he had learned in the group also that there were many strategies that he could use in order to reduce the risk of re-offending, including working to develop and maintain a network of friends and companions; recognising any tendency to be despondent in response to life reverses, and the value then of activating contact with an identified therapist; banishing at a very early stage any thoughts that may return with respect to his previous habit of seeking a sense of intimacy with young males; and to avoid situations which had appeared from his scrutiny of his past also to represent a high level of risk. With respect to the latter, he identified in particular the development of relationships with women who had pubescent sons, though he added that he should avoid any circumstance which might lead to him fostering a relationship with boys of the age of his former victims.
He said that this set of initiatives would be very much easier for him, having had the experience of the HISOP that would have been the case prior to his participation.
Dr James makes an assessment of the risk of recidivism employing a number of ‘actuarial instruments’,[2] and also undertakes a dynamic risk assessment.
[2]Being the STATIC 99, the Psychopathy Checklist, the Violence Risk Appraisal Guide and the Sexual Offenders Appraisal Guide.
Under his dynamic risk assessment Dr James says:
From a dynamic point of view, I would have to be less than sanguine with respect to his risk of re-offending given Mr Banks’ history of repetitive offending, and bearing in mind particularly the fact that he has once offended whilst on bail, and on another occasion whilst in the community with a sentence of imprisonment suspended. On the other hand, Mr Banks appears to have been a very active participant in the High Intensity Sex Offenders Treatment Programme, and not only does he now have the requisite insight to assist him in his intention to avoid re-offending, but in addition his improved interactional capacities acquired during the period of treatment would also suggest a much greater sense of self-confidence in his interactional style. I concur with Mr Banks’ own assessment that provided this improvement can be maintained, and translated into his interactions in the wider society, this will serve significantly to reduce the risk of his re-offending.
My overall judgment is that Mr Banks’ risk of re-offending sexually is low to moderate; his risk of offending violently in the future is low.
In my opinion it would be prudent and necessary, in the interests of further reducing his risk re-offending, to impose some conditions upon his release.
Such conditions proposed by Dr James include:
(a) Restrictions on the kind of adult with whom the respondent forms a relationship;
(b) To limit by exclusion relationships with persons who have the care of male children under the age 16;
(c) Limits on the respondent’s participation in social and related groups where he would have an opportunity for ongoing unsupervised contact with young males under the age 16;
(d) The respondent should attend follow up courses related to his previous offending; and
(e) The respondent should undergo continuing individual psychotherapy.
Dr James does not see the need to include avoidance of alcohol in the conditions of release, and sees the respondent being at less a risk if he obtains assistance with respect to accommodation and employment and is given an ‘entrée to appropriate social contacts’.
In evidence before me, Dr James:
(a)
considered that the respondent had already benefited from the intervention program and treatment received, and thought that a supervision period of five years would be sufficient. Dr James warned against a tendency to be
‘over-cautious’ when assessing these matters, and expressed the view that the benefits to be obtained from ongoing supervision and treatment of this respondent would be derived within five years. He thought that Dr Beech had not taken adequate account of the impact of the ongoing treatment program, and considered that if the respondent remained compliant for five years, he would then present a negligible risk of re-offending; and
(b) saw benefit in a requirement that the respondent be compellable to undergo testosterone testing. Dr James said that the administration of any treatment would take account of any potential side-effects and would have regard to the respondent’s state of health. He did concede, however, that there was nothing in the material presently to hand to suggest that the respondent’s testosterone levels contributed to his offending behaviour, and also acknowledged that it was rare and unusual for a drug such as Androcur to be used in a case such as the present. He said that it was a ‘treatment of last resort’ for sex offenders. He also acknowledged that the respondent’s conduct was not driven by powerful sexual urges (which would be diminished by the testosterone inhibiting drug), and that the respondent’s problems were more emotional than physical. Dr James confirmed that it would take about a month for treatment with a drug such as Androcur to become effective.
Conclusion
In reaching my decision in this matter, I have regard to:
(a) the reports and evidence of Dr Beech and Dr James;
(b) the psychiatric assessment of Dr Colls;
(c) the other psychological assessments referred to above;
(d) the exit report from the respondent’s participation in the HISOP;
(e) the pattern of offending behaviour evidenced from the respondent’s criminal history;
(f) the efforts by the respondent to address the causes of his offending behaviour, particularly his participation in the HISOP;
(g) the fact that there have been some positive effects on the respondent by his participation in the HISOP;
(h) the risk that the respondent will commit another serious sexual offence if released into the community without ongoing supervision;
(i) the need to protect members of the community from that risk; and
(j) the fact that the only supervision requirement actively contested on behalf of the respondent related to the testosterone testing and treatment.
The evidence before me is acceptable, cogent evidence, which persuades me to a high degree of probability that the evidence is of sufficient weight to justify a decision under s 13(1) of the Act.
On the basis of that evidence, I am satisfied that there is an unacceptable risk that the respondent will commit a serious sexual offence if he is released from custody without a supervision order being made, and accordingly I am satisfied that the respondent is a ‘serious danger to the community’ within the meaning of that term in s 13(1) of the Act.
In terms of the requirements set out in draft supervision order (other than the requirement for testosterone testing and treatment) proposed by the applicant and acquiesced to by the respondent, I consider that each of those requirements is appropriate, bearing in mind that my paramount consideration is the need to ensure adequate protection of the community.
That paramount consideration also guides my decision to make the supervision order effective for a period of 10 years. It is not, I think, over-cautious to impose such a period. Whilst some positive outcomes have been recorded from the respondent’s participation in the HISOP, there has not yet been any testing of its effectiveness or the duration of its benefits while he is living in the community. The statistical and actuarial studies certainly point to the appropriateness of a period of supervision of more than five years. I cannot presently assess when the respondent might obtain full benefit from the program, but I can make an assessment of what I consider to be a term which will meet the need to ensure adequate protection of the community, namely 10 years.
There is no present basis to conclude, or even suspect, that the respondent’s offending behaviour was caused by his testosterone levels. On the evidence before me, the trigger for endocrinological testing would be the reporting by the respondent of such matters as increasing intensity of sexually deviant thoughts. Even if he were prescribed, and took, a drug such as Androcur, it would take about a month for it to become effective. Whilst I am not presently disposed, on the evidence before me, to impose such a requirement, I note that, should circumstances arise in the future which point positively to the necessity for such a requirement, an application for amendment of the supervision order may be made under s 19 of the Act.
Accordingly pursuant to s 13(5)(b) of the Act, I make a supervision order in the terms set out in Annexure A.
ANNEXURE A
THE ORDER OF THE COURT IS THAT:
The Court is satisfied to the requisite standard that the respondent, Graham Wayne BANKS, is a serious danger to the community in the absence of an order pursuant to Division 3 of the Dangerous Prisoners (Sexual Offenders) Act 2003.
The respondent be subject to the following conditions until 24 September 2017:
The respondent must:
be under the supervision of a corrective services officer ('the supervising corrective services officer') for the duration of this order;
report to an authorised corrective services officer at the Queensland Corrective Services Probation and Parole Office closed to his place of residence between 9am and 4pm on the day of release from custody and at that time advise the officer of the respondent’s current name and address;
report to and receive visits from an authorised corrective services officer at such times and at such frequency as determined by Queensland Corrective Services;
notify and obtain the approval of the authorised corrective services officer for every change of the prisoners name at least two business days before the change occurs;
notify the authorised corrective services officer of the nature of his employment, or any offers of employment, the hours of work each day, the name of his employer and the address of the premises where he is or will be employed;
seek permission and obtain approval from an authorised corrective services officer prior to engaging in volunteer work or paid or unpaid employment;
reside at a place within the State of Queensland as approved by way of a suitability assessment undertaken by Queensland Corrective Services;
not reside at a place by way of short term accommodation including overnight stays without the permission of the authorised corrective services officer;
seek permission and obtain the approval of an authorised corrective services officer prior to any change of residence;
not leave or stay out of Queensland without the written permission of an authorised corrective services officer
not commit an offence of a sexual nature during the period of the order;
not commit an indictable offence during the period of the order;
comply with every reasonable direction of an authorised corrective services officer;
respond truthfully to enquiries by authorised corrective services officers about his whereabouts and movements generally;
not to have any direct or indirect contact with a victim of his sexual offences;
notify the authorised officer of the make, model, colour and registration number of any vehicle owned by or generally driven by him, whether hired or otherwise obtained for his use;
attend upon and submit to assessment and/or treatment by a medical practitioner, psychiatrist, psychologist, social worker, counsellor or other mental health professional as directed by the authorised corrective services officer at a frequency and duration which shall be recommended by the treating practitioner, the expense of which is to be met by Queensland Corrective Services;
permit any medical, psychiatric, psychological or other mental health practitioner to disclose details of treatment, intervention and opinions relating to level of risk of re-offending and compliance with this order to Queensland Corrective Services if such a request is made for the purposes of updating or amending the supervision order and/or ensuring compliance with this order;
undergo assessment for a sexual offending maintenance program, and if assessed as suitable, attend such a program, on a group or individual basis, as directed by the corrective services officer;
attend any program, course, psychologist or counsellor, in a group or individual capacity, as directed by an authorised corrective services officer in consultation with treating medical, psychiatric, psychological or other mental health practitioners where appropriate;
not have any ongoing unattended contact with, or approach any male child under the age of 16 except with the prior written approval of an authorised corrective services officer. The respondent is required to fully disclose the terms of the order and the nature of offences to the guardians and caregivers of the children before any such contact can take place; Queensland Corrective Services may disclose information pertaining to the offender to guardians or caregivers and external agencies (i.e. Department of Child Safety) in the interests of ensuring the safety of the children;
seek written permission from an authorised corrective services officer prior to joining, affiliating with or attending on the premises of any club, organisation or group;
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;
not be on the premises of any shopping centre, without reasonable excuse, between 8am to 9.30am and between 2.30pm and 4.30pm on school days other than for the purpose of:
a.approved employment
b.attending an approved bona fide pre-arranged appointment with a Government agency, medical practitioner or the like;
not visit public parks without prior written permission from the authorised corrective services officer;
comply with a curfew direction or monitoring direction.
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