Attorney-General for the State of Queensland v GFA
[2025] QSC 19
•12 February 2025
SUPREME COURT OF QUEENSLAND
CITATION:
Attorney-General for the State of Queensland v GFA [2025] QSC 19
PARTIES:
Attorney General for the State of Queensland
(Applicant)
v
GFA(Respondent)
FILE NO:
DIVISION:
Trial
PROCEEDING:
Application – reasons for orders made on 3 February 2025
ORIGINATING COURT:
Supreme Court of Queensland
DELIVERED ON:
12 February 2025
DELIVERED AT:
Brisbane
HEARING DATE:
3 February 2025
JUDGE:
Ryan J
ORDER:
On 3 February 2025, I ordered that:
1. The respondent be released from custody by 10 am on 4 February 2025.
2. The respondent continue to be subject to the supervision order made on 19 September 2022 by Crowley J.
3. The supervision order made on 19 September 2022 be amended by inserting the following additional requirements:
a. “25A You must not hide, delete or encrypt, or attempt to hide delete or encrypt, any data that is stored on your electronic devices, including your current mobile phone.
An attempt to hide, delete or encrypt data includes downloading a program to hide delete or encrypt data.”
b. “25B You must not download, install, obtain by any other means, access, utilise or conduct searches for, devices, software, applications or web-based searches designed to:
i. Anonymise or hide activity;
ii. Encrypt data communications or activity;
iii. Provide “vault” or “cloud” access;
iv. Remove, delete or wipe information or usage (either locally or remotely); or
v. Provide any other capability not specifically outlined above which is designed to minimise our digital footprint, delete or conceal activity by any means either locally or online, or in any way reduce the ability for examinations to accurately review activity undertaken on any device you own, possess or have access to.
This includes, but is not limited to, Virtual Private Networks (VPNs), Cache Cleaner applications and The Onion Router (TOR) Network.”
c. (under the heading “Rules about contact”) “26A You must not have any direct or indirect contact with GS, without written approval from a corrective services officer.”
4. The heading “No contact with any victim” in the supervision order be deleted and replaced with the heading “Rules about Contact”.
Also on 3 February 2025, I declared that:
Pursuant to s24(2) of the Dangerous Prisoners (Sexual Offenders) Act 2003, the period of the respondent’s supervision order made by Crowley J on 19 September 2022, be extended by a period of 104 days, from 28 September 2029 to 10 January 2030.
CRIMINAL LAW – SENTENCE – SENTENCING ORDERS – ORDERS AND DECLARATIONS RELATING TO SERIOUS OF VIOLENT OFFENDERS OR DANGEROUS SEXUAL OFFENDERS – DANGEROUS SEXUAL OFFENDER – GENERALLY – where respondent contravened provisions of existing supervision order – whether the adequate protection of the community may be ensured by the respondent’s release on supervision, notwithstanding his contraventions.
COUNSEL:
J Tate for the applicant
C Reid for the respondentSOLICITORS:
Crown Law for the applicant
Legal Aid Queensland for the respondent
Background
This application is governed by section 22 of the Dangerous Prisoners (Sexual Offenders) Act 2003. It concerns the respondent’s contraventions of a supervision order made under Division 3 of the Act.
The respondent’s “index offending” involved digital, vaginal, and anal rape, with significant physical violence (including biting) and threats. The offences were committed in August 2011. He was convicted after a trial. The complainant was his 15 year old aunt. The offending occurred when he was a guest in her mother’s house. He turned his attention to her after he was rebuffed by another woman. He was sentenced, effectively, to 12 years imprisonment. He was granted parole on 9 September 2019 but breached his parole and was returned to custody. He was released, subject to a supervision order, by Crowley J on 28 September 2022. The supervision order is due to expire on 28 September 2029. This is not the first time the respondent has been brought before the Supreme Court for contravening the supervision order.
The operation of the Act and its interpretation are well known. This matter does not raise any difficult or novel question of law. Its outcome depends on whether the respondent has persuaded me that, despite his (admitted) contraventions, the existing supervision order provides adequate protection to the community.
The contraventions alleged against the respondent relate to the supervision order’s conditions concerning –
(a)electronic monitoring;
(b)his curfew;
(c)mobile phone examinations;
(d)his possession of unapproved internet capable devices; and
(e)sexual contact with others.
The respondent did not contend that he had not contravened his order as alleged by the applicant in this application.
The contravention hearing was to have been heard on 26 August 2024. In anticipation of a hearing on that date, the respondent had been assessed by two psychiatrists, Dr Phillips and Dr Brown, who were of the view that an appropriately conditioned supervision order would operate to reduce the unmodified high risk of the respondent serious sexually offending in the future to the level of moderate. However, new relevant material came to light after they had stated that conclusion in their reports, and the August hearing was adjourned to allow each of the psychiatrists to review it. The new material included electronic recordings of the respondent’s telephone conversation from prison between 6 March 2024 and 19 July 2024 and on 26 and 27 August 2024.
Having reviewed the material, the psychiatrists remained of the view that a supervision order would operate to reduce the relevant risk to moderate.
I heard the section 22 application on 3 February 2025. On that day, I made orders for the respondent’s release, subject to the existing supervision order, with additions to its conditions designed to ensure that he could not hide his internet/social media activity from those supervising him, and to ensure that he did not have contact with a certain woman (GS) without the written approval of those supervising him.
Given the content of the new material, I ordered that it be sealed and placed in an envelope (along with exhibit 1), which has been marked “Not to be opened without an order of the Court”. I have not referred to the material in any detail in these reasons but note that it provides powerful evidence of the respondent’s character traits and risk factors of concern to the experts.
These are my reasons for making the orders referred to in [8] above.
Previous contravention
The respondent was brought before the court on 1 March 2023 by an arrest warrant issued under s 20 of the Act for contravening several requirements of the supervision order. In brief, the contraventions related to the respondent’s failing to disclose a relationship with a female and his being in possession of an unapproved mobile device. The respondent was returned to custody.
On 9 October 2023, the contravention proceedings were determined by Cooper J. His Honour found that the respondent had contravened the supervision order, but he was satisfied that the adequate protection of the community could be ensured by the existing supervision order. His Honour therefore ordered the respondent’s release from custody that day, under the existing supervision order.
Response to supervision post 9 October 2023 and present contraventions
The applicant asserted that the respondent had contravened his supervision order on 19 separate occasions since his release on 9 October 2023 by accessing unapproved internet capable devices and by failing to comply with the order’s –
(a)electronic monitoring requirements;
(b)curfew directions;
(c)requirement that he submit to urinalysis; and
(d)requirement that he permit an examination of his mobile phone.
On 29 April 2024, the respondent pleaded guilty to four section 43AA offences and was sentenced by the Magistrate at Richlands to four concurrent terms of three months’ imprisonment, wholly suspended for an operational period of two years. The contraventions the subject of the convictions were relied upon in this application.
The contraventions occurred in the following circumstances. On 17 October 2023, the respondent was given approval for phone contact with his then partner GS; and he was, on occasion, permitted to meet her in the visitor car park of the Wacol Precinct, with Queensland Corrective Services (QCS) supervision. The respondent and GS raised safety concerns about in-person contact at the Wacol Precinct and they asked for permission to meet at a local snack bar instead.
On 29 November 2023, the respondent was given approval for in-person contact with GS at the snack bar, with an attached Reasonable Direction stating that they were not to engage in any sexual acts during their contact. The respondent was required to transport himself to and from the snack bar and allowed one-hour for his meeting with GS. The meeting was to take place on 1 December 2023.
The respondent did not comply with the conditions of his contact with GS. He was transported to and from the Wacol Precinct by GS and engaged in sexual behaviour in GS’s vehicle at the Wacol train station.
On 4 December 2023, a “disciplinary interview” was held involving the respondent, his Senior Case Manager (SCM) and Supervisor. The respondent denied any wrongdoing on 1 December 2023 and failed to provide his mobile phone for examination when requested. His failing to provide his phone for examination was in breach of condition 22 of his supervision order. Inter alia condition 22 required the respondent to let a corrective services officer look at his phone and everything on his phone.
On 5 December 2023, the respondent admitted to his psychologist that he had sexual intercourse with GS on 1 December 2023. He said, “I fucked up” but denied any illegal behaviour or other contravention of his supervision order.
On 18 December 2023, the respondent requested approval to attend a motel with GS for multiple days. When his request was denied, he became verbally aggressive.
During a case management meeting, the respondent was asked about his illegal substance use and possible misuse of his daily Buprenorphine prescription. Between 9 December 2023 and 10 January 2024, he failed to attend on 9 of the 23 occasions on which he was to receive the drug. Yet he routinely presented as drowsy, often with his eyes closed and as if he was under the influence of an illicit substance. QCS believed that the respondent was obtaining additional illicit Buprenorphine strips to top up his prescribed dose to become intoxicated, although the respondent denied that he had done so.
In January 2024, the respondent reported that he had been prescribed an anti-depressant by his GP, and his presentation in case management interviews was noted to have improved. However, on 5 February 2024, the respondent reported that he was not taking the medication correctly. He said he was missing, on average, three doses per week.
On 6 February 2024, the respondent was at the Princess Alexandra Hospital emergency department. Whilst there, QCS officers observed the respondent in possession of, and using, an unapproved smart phone. QCS officers seized the phone but found that it had been factory reset. The respondent denied purchasing the phone. He said he found it in the hospital toilet.
On 9 February 2024, QCS staff attended the respondent’s Wacol Precinct house to assist with contractors entering this house. During this visit, QCS saw a mobile phone hanging from a shared kitchen drawer with what appeared to be a photo of the respondent’s partner, GS, on the lock screen. QCS also observed the social media applications Snapchat and Facebook on the lock screen. There was a portable internet dongle next to the phone. QCS officers saw the respondent retrieve the mobile phone and internet dongle. When challenged, the respondent denied that the phone was his.
On 12 February 2024, during a scheduled interview, the respondent spoke of issues with his family; whom he described in derogatory terms. He indicated that he didn’t want anything to do with them. He said he felt stressed, but would not discuss this further with his SCM, although he said he would discuss it with his psychologist.
He said his relationship with GS had broken down. He told his SCM that it was “their” fault that GS had returned to another place in Queensland, because they were not permitted to visit with one another. The respondent said that GS had “blocked him” and had not had any recent contact with him.
On 13 February 2024, the respondent was directed to provide a sample of his urine for testing. The sample provided by the respondent was considered of “borderline” validity by QCS, who suspected that it was not his own sample. He was directed to provide another sample later that same day. He was annoyed about that – as he made clear – and he ignored a direction to wait outside the testing facility. Instead, he entered an unapproved Wacol Precinct residence in contravention of the Wacol Precinct Rules and condition 11 of his order. Condition 11 obliges the respondent to obey the precinct rules.
The respondent remained inside this unapproved house for approximately 7 minutes. He then walked towards the testing facility before turning around, returning to the house, and entering and remaining in it for another 5 minutes before he left again and attended at the testing facility. The respondent was told that his test would be supervised. He was annoyed about that. During the test, he tried to conceal the “line of sight” of the urine stream from the testing officer and he hunched his body over so that he could not properly be observed. The sample that was provided was not sighted by the testing officer, however it was deemed valid.
Both samples taken on 13 February 2024 were presumptively positive to Buprenorphine (which, as noted, the respondent is prescribed).
On 14 February 2024, the respondent was directed to participate in another supervised urinalysis. The respondent provided a sample that met the criteria for validity and was observed by staff to be his own sample. The presumptive result was positive for Buprenorphine. Confirmatory results received on 22 February 2024 indicated that the respondent also tested positive to Pregabalin (Lyrica). Lyrica had not been prescribed for the respondent. His was therefore in breach of conditions 28 and 34 of his order. Condition 28 prohibited his use of illegal drugs. Condition 34 did not permit him to take medication which had not been prescribed for him.
Expert evidence
In 2022, for the purposes of the Division 3 application, the respondent was diagnosed by Dr Arthur and Dr Timmins, psychiatrists, with antisocial personality disorder, substance misuse disorder and exhibitionism.
Dr Phillips and Dr Brown provided expert evidence for the purposes of this contravention hearing. Their diagnoses of the respondent were similar to the diagnoses of Dr Arthur and Dr Timmins. Dr Phillips diagnosed the respondent with antisocial personality disorder, significant psychopathic personality traits, and alcohol, cannabis, solvent, methylamphetamine, opiate and Buprenorphine use disorders. Dr Brown diagnosed the respondent with antisocial personality disorder and alcohol and substance use disorder.
Having considered all of the material, Dr Phillips was of the view that the respondent’s risk of future serious sexual offending (in the absence of a Division 3 order), by way of his assault or rape of an adolescent or adult female, was “high”. His risk of future physical violence was also high. But there was no imminent risk of his offending physically or sexually.
Dr Brown considered the risk of his of future serious sexual offending (in the absence of a Division 3 order) to be at the level of “at least moderate to high”.
Dr Phillips explained a potential scenario for future offending as follows:
… [the respondent] will sexually re-offend in a similar manner to the index sexual offending. That is, serious sexual offending involving penetration (digital, vaginal and anal rape) involving significant physical violence and threats. A further scenario is that [the respondent] will escalate in the severity of his sexual offending, to include even more serious physical violence. Another scenario would be a repetition of his earlier sexual offending, for example, exposing himself and masturbating in public. Future sexual offending has the potential to cause significant physical and psychological harm to the victims.
Dr Phillips was of the view that the risk would increase in certain settings, including, of particular significance to me in the present matter, perceived rejection, or relationship breakdown:
The future risk of sexual re-offending would increase in the setting of relapse to substance use, acute intoxication, boredom or psychosocial stressors, for example, relationship breakdowns, perceived rejections, loss of social supports, frustrations at the restrictiveness of the conditions at the Precinct or re-engaging with his previous pro-offending and substance abusing peer group.
[The respondent] has limited adaptive coping skills to manage psychosocial stressors and would be at risk of emotional collapse and returning to his long-standing maladaptive pattern of substance use in the context of psychosocial stressors. He has been noted to have a pattern of avoidant coping skills.
The risk of sexual re-offending would also increase in the setting of victim access, increased sexual pre-occupation or rejection of supervision. The victim of future offending would likely be an adolescent female or young adult female. The victim may be a female family member or a stranger. He may also pose a risk to female acquaintances or future intimate partners.
Dr Brown elaborated upon the respondent’s unmodified risk and his performance under supervision as follows:
In my opinion [the respondent] unmodified risk of sexual reoffending remains at least moderate to high. Risk factors include the relative chronicity of his offending (despite his young age), his antisocial and borderline personality, the diagnosis of psychopathy, his substance use disorder and his problems with supervision. He probably does not have a paraphilia, however his sexual preferences and drives are not well understood and he may have a high sexual drive. Sexual offending risk would be increased if [the respondent] were to feel rejected by an intimate partner (and/or sexually frustrated) and if he had access to a teenage female child (or vulnerable/young adult), which would most likely occur if he was visiting or staying with family or friends. Risk would also be increased with intoxication (and intoxication is very likely to occur should the respondent experience any sort of external stressor).
[The respondent] was originally released on a supervision order in September 2022. He was supervised in the community for 5 months, during which time he contravened the supervision order on multiple occasions. Some of the contraventions were minor, such as poor timekeeping or failure to adhere to precinct rules, but others were of more concern, including possession of an unauthorised smart phone (and failure to give the password to police), stealing, drug possession (and possible use) and possible contact with unknown females. [The respondent] spent most of his time at the Wacol Precinct on a Stage 1 curfew with escorted movements. These measures were not sufficient to prevent the behaviours that led to the contraventions. [The respondent] found the supervision order to be restrictive and over time he became resentful and disengaged from the case management and supervision process. He did not take responsibility for his situation and he continued to externalise blame to QCS. Individualised sexual offender treatment sessions were not particularly helpful.
Notwithstanding that assessment of the respondent’s performance on supervision, both Dr Phillips and Dr Brown were of the opinion that if the respondent were released back into the community on his existing supervision order, the risk of his sexually re-offending would be in the “moderate” range and manageable by QCS, but he would require very assertive monitoring by the High Risk Offenders Management Unit (HROMU).
On the need for, and value of, asserting monitoring, Dr Phillips said:
It is my opinion that a supervision order would assist in reducing the risk of re-offending by offering assertive monitoring and interventions to target dynamic risk factors for sexual and physical violence. It is my opinion that [if] [the respondent] were to be released from custody with a supervision order, in the context of ongoing individual psychological intervention, abstinence from alcohol and illicit substances, and robust supervision in the community, that his risk of sexually re-offending would be in the moderate range.
I consider there is a reasonably high likelihood that [the respondent] will again breach the conditions of the supervision order. This is based upon his history of breaches of the supervision order and his history of breaching various court orders, CPOR requirements and parole… However, it is positive that the HROMU have thus far been able to intervene early prior to [the respondent] sexually re-offending.
Of the need for additional individual psychological treatment upon release, Dr Brown said:
In my opinion, should [the respondent] be released to a supervision order in its strictest form, this will reduce the risk of sexual reoffending down to moderate. However, over time, this risk will increase as the curfew and monitoring is reduced. For example, the supervision order will not prevent [the respondent] from obtaining and concealing an unauthorised mobile phone and he will be unlikely to disclose intimate relationships or his plans to meet an intimate partner in person. He remains at risk of using substances and becoming intoxicated, despite urine drug screening.
It is now my view that [the respondent] needs to complete some additional individual psychological treatment prior to release, specifically to address his significant difficulties with intimate relationships and his associated risk factors for reoffending. Therapy should focus on his understanding of healthy relationship concepts, his difficulties with trust, his emotional instability and the management of rejection and his associated impulsive high risk behaviours (eg threats, substance use). His mental health should continue to be monitored.
The supervision order which Dr Phillips had in mind was one which, as above, would facilitate the respondent’s engagement in individual psychological interventions with a psychologist experienced in managing sexual offenders. He would also benefit from interventions focusing on his adaptive coping skills; problem solving skills; interpersonal skills; his ability to identify high risk situations and relapse prevention planning. She recommended his participation in a group substance abuse intervention program. She thought he would benefit from links to employment or activities to reduce his boredom. She recommended his engagement in a domestic violence intervention program in the community, or alternatively, that domestic violence be addressed during his individual psychological intervention.
Further, those supervising the respondent would need to monitor his associations with a high degree of vigilance, particularly his association with GS, which had been marked by coercively controlling behaviour, threats, and a risk of intimate partner violence.
Dr Brown essentially endorsed Dr Phillips’ recommendations. Additionally, she thought the respondent should continue under the care of his GP for management of his mental health, which she considered to be vulnerable to deterioration if his grandmother, or other immediate family member, died or became unwell.
Submissions – generally
The applicant submitted that there had been no longitudinal change in the respondent’s clinical diagnoses. The current contraventions formed part of “a disturbing pattern of contraventions” which demonstrated his rejection of supervision.
His first contravention proceeding (before Cooper J) concerned the non-disclosure of his contacts; his mobile phone; urine sampling; and his using Buprenorphine in excess of his prescribed amounts. The current contraventions were similar and ought not to be seen as isolated or trivial.
However, the applicant acknowledged that, while the respondent had struggled with the constraints of his supervision order, it had proved effective at managing the risk he poses. The applicant did not challenge the opinions of Dr Phillips and Dr Brown that, despite the probability of further breaches of the supervision order, the respondent’s risk of his seriously sexually re-offending upon release could be reduced to an acceptable level by it. It did so by acting as (as the applicant put it) a “trip wire” to “catch” and deal with the respondent whenever he engaged in behaviours which might impact upon his risk.
The applicant acknowledged that the evidence provided by the experts supported the finding that the adequate protection of the community might be ensured by releasing the respondent to supervision under his existing supervision order with additional conditions designed to prevent his hiding his internet/social media use from those supervising him and to manage his relationship with GS.
In light of the applicant’s acknowledgment that the adequate protection of the community could be ensured by the respondent’s release subject to a supervision order, the respondent kept his submissions very brief. Noting the opinions of the psychiatrists about the way in which a supervision order would operate to mitigate the respondent’s risk, he submitted that he ought to be released from custody subject to the supervision order made by Crowley J on 19 September 2022.
Decision of outcome of contravention hearing
The contraventions were admitted.
As the respondent noted, there was no argument from the applicant that he was not able to persuade me, on the evidence, that the adequate protection of the community could not be ensured by his release again to supervision, notwithstanding his contraventions.
Having conscientious regard for the opinions of the psychiatrist, who had studied the additional material – which showed the “true colours” of the respondent, in unguarded moments – and all of the other evidence before me, I concluded that the respondent had discharged the onus placed upon him by section 22 of the Act.
I determined that he could be released subject to the existing supervision order, with amendments (discussed below). I was persuaded that, despite the contraventions, the adequate protection of the community could be ensured by the respondent’s release on an appropriately conditioned supervision order.
Submissions about additional supervision order conditions requested by the applicant
The applicant submitted that it was necessary to add conditions to the existing supervision order to: (a) ensure that the respondent could not hide from QCS his electronic contacts or associations or the nature of his interactions with others; and (b) to manage his relationship with GS.
I formed the view that conditions designed to ensure that those supervising him were not deceived about the contact he had with others were necessary in the light of the respondent’s previous non-compliance with the conditions of the order and his treatment of at least one electronic device by returning it to its default settings. However, the original draft of the conditions designed to prevent the respondent hiding anything relevant from QCS was, in my view, overly complicated. After hearing submissions from the parties, I simplified them as much as I could, whilst retaining their effect. They now appear as conditions 25 A and 25 B of the supervision order. Condition 25B may be beyond the respondent’s full comprehension because it is somewhat technical, however I proceeded on the basis that at his re-induction to his supervision order, QCS would explain the effect of it to him.
The condition concerning GS was contentious as between the parties. Counsel for the respondent submitted that, rather than their contact being governed by a condition of the order that the respondent not contact GS without written approval from a corrective services officer, their contact could be handled by way of “reasonable directions”.
As the psychiatrists explained in their oral evidence, the respondent’s risk of seriously sexually offending was likely to increase in the face of rejection or in the context of instability in a relationship, and his relationship with GS was problematic.
As Dr Phillips explained, the respondent was a risk of committing domestic violence on any intimate partner. However, there was no evidence of the respondent behaving with sexual violence towards his other intimate partners – but he had been physically violent towards them.
The risk to GS of domestic violence was clear, especially on the new material. While there had not been a history of sexual violence in their relationship, the additional material suggested that she might be at future risk of it. There is no risk assessment tool which allows one to evaluate the risk of sexual violence in an identified relationship. But, doing what she could to assess it, Dr Phillips thought that the risk of sexual violence to GS in the respondent’s relationship with GS was moderate.
Dr Brown observed that the respondent historically involved himself in extremely emotionally unstable relationships and had a marked fear of abandonment. If he felt abandoned, he may become angry and struggle to manage his emotional response. He may become dysregulated, use intoxicants, and behave in a physically or sexually violent way. If he were to be rejected, or to feel rejected, by his sexual partner, other young or adult women who were in his proximity may be vulnerable to his sexual violence (as reflected in the index offending).
As I understood Dr Brown’s oral evidence, the risk to the community of the respondent’s committing serious sexual violence was heightened in the face of his rejection. And that risk related not only to “the rejecter” but also to women members of the community. Thus, the respondent’s unstable relationship with GS put not only GS, but also other women, at risk of sexual violence if he felt rejected or abandoned – although I again repeat that there was no evidence of it in his relationship with GS to date.
As to how the risk of sexual violence discussed above should be addressed (that is, by way of an order condition or a reasonable direction), in Dr Brown’s view – though it was not an easy matter – to promote a more helpful dynamic between the respondent and QCS, and between the respondent and his psychologist, it was preferable for the order to provide for “no contact” as the starting point, rather than for his contact with GS to be controlled by reasonable directions. As I understood Dr Brown’s evidence, the respondent would understand that the no contact condition could be “lifted” by QCS, whereas reasonable directions prohibiting his contact with GS were likely to be viewed as something imposed upon him by QCS.
Dr Phillips considered the question of order condition versus reasonable direction a legal, rather than a clinical, one.
I considered it necessary for the order to prohibit the respondent’s contact with GS without approval, rather than to have their contact governed by reasonable directions, particularly given the fact that the respondent blamed QCS for the apparent end of his relationship with GS and in light of his ignoring reasonable directions in the past. I wanted to make it clear that the no-contact condition was imposed by the court.
My conclusions on these additional conditions were reflected in the orders I made on 3 February 2025, as set out on the cover page to this judgment.
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