Attorney-General for the State of Queensland v Gibson

[2021] QSC 61

SUPREME COURT OF QUEENSLAND

CITATION:

Attorney-General for the State of Queensland v Gibson [2021] QSC 61

PARTIES:

ATTORNEY-GENERAL FOR THE STATE OF QUEENSLAND

(applicant)

v

ASHLEY LENNON GIBSON

(respondent)

FILE NO/S:

BS No 4542 of 2017

DIVISION:

Trial Division

PROCEEDING:

Application

ORIGINATING COURT:

Supreme Court of Queensland at Brisbane

DELIVERED ON:

25 March 2021

DELIVERED AT:

Brisbane

HEARING DATE:

25 March 2021

JUDGE:

Davis J

ORDER:

1. The order made on 15 February 2021 by Callaghan J that “the respondent, Ashley Lennon Gibson, continue to be subject to the continuing detention order made on 10 August 2017” is set aside pursuant to r 668 of the Uniform Civil Procedure Rules 1999.

2. Pursuant to s 30(5) of the Dangerous Prisoners (Sexual Offenders) Act 2003, the continuing detention order made on 10 August 2017 is rescinded.

3. Pursuant to s 30(3)(b) of the Dangerous Prisoners (Sexual Offenders) Act 2003, the respondent, Ashley Lennon Gibson, is released subject to a supervision order for 10 years until 24 March 2031 in terms of the Schedule attached to these reasons.

CATCHWORDS:

CRIMINAL LAW - SENTENCE - SENTENCING ORDERS - ORDERS AND DECLARATIONS RELATING TO SERIOUS OR VIOLENT OFFENDERS OR DANGEROUS SEXUAL OFFENDERS - DANGEROUS SEXUAL OFFENDER GENERALLY - Where the respondent is the subject of a continuing detention order (CDO) pursuant to Division 3 of the Dangerous Prisoners (Sexual Offenders) Act 2003 (DPSOA) made by Dalton J on 10 August 2017 - Where, at the first annual review of the CDO by Davis J in 2019, the respondent was assessed by his treating psychologist, Dr Madsen, as being incapable of functioning in the broader community and requiring constant supervision and support - where Dr Sundin and Dr Arthur, who were engaged to assess the respondent pursuant to section 8 of the DPSOA, assessed the respondent as being an unacceptable risk to the community without accommodation providing 24 hour supervision - where suitable accommodation was not available to the respondent at the time of the first annual review in 2019 before Davis J or the second annual review on 15 February 2021 before Callaghan J - where the CDO was subsequently affirmed by Davis J and Callaghan J respectively at each annual review - where suitable accommodation is now available to the respondent - whether appropriate to rescind the CDO and release the respondent subject to a supervision order

PROCEDURE - CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS - JUDGMENTS AND ORDERS - AMENDING, VARYING AND SETTING ASIDE JUDGMENT AND ORDERS - ACTIONS TO REVIEW OR SET ASIDE JUDGMENT OR ORDER - GENERALLY - where the applicant makes application pursuant to r 688 of the Uniform Civil Procedure Rules 1999 (UCPR) to the Court to rescind the CDO and release the respondent on a supervision order - where the discretion to rescind the CDO and impose a supervision order pursuant to UCPR r 688 and section 30(3) of the DPSOA arises - whether it is appropriate to exercise discretion and set aside the order

Dangerous Prisoners (Sexual Offenders) Act 2003, s 2, s 3, s 13, s 13A, s 16, s 16A, s 27, s 30
Uniform Civil Procedure Rules 1999, r 268, r 667, r 668

Attorney-General for the State of Queensland v Allwood [2021] QSC 15, cited
Attorney-General for the State of Queensland v DXP [2019] QSC 77, cited
Attorney-General for the State of Queensland v Francis [2007] 1 Qd R 396, cited
Attorney-General for the State of Queensland v Gibson [2019] QSC 206, related
Attorney-General for the State of Queensland v Ashley Lennon Gibson [2021] QSC 26, related
Attorney-General for the State of Queensland v KAH [2019] 3 Qd R 329, cited
Attorney-General for the State of Queensland v S [2015] QSC 157, followed
Attorney-General for the State of Queensland v WTA [2020] QSC 300, cited
Briginshaw v Briginshaw (1938) 60 CLR 336, cited
Clone Pty Ltd v Players Pty Ltd (2018) 264 CLR 165, cited
Fardon v Attorney-General (Qld) (2004) 223 CLR 575, cited
Kynuna v Attorney-General (Qld) [2016] QCA 172, cited
Yeo v Attorney-General (Qld) [2012] 1 Qd R 276, followed

COUNSEL:

M Maloney for the applicant

A E Loode for the respondent

SOLICITORS:

G R Cooper, Crown Solicitor for the applicant

Legal Aid Queensland for the respondent

1. Ashley Lennon Gibson is the subject of a continuing detention order (CDO) made under the provisions of the Dangerous Prisoners (Sexual Offenders) Act 2003 (DPSOA).  As required by Part 3 of the DPSOA, the CDO was recently reviewed by Callaghan J.  His Honour ordered that the CDO continue.[1]  That was the second annual review of the CDO.  The first was conducted by me in 2019.[2]

   [1]Attorney-General for the State of Queensland v Ashley Lennon Gibson [2021] QSC 26.

   [2]Attorney-General for the State of Queensland v Gibson [2019] QSC 206.

2. The Attorney-General now applies, pursuant to r 668 of the Uniform Civil Procedure Rules 1999 (UCPR), to have the order made by Callaghan J vacated and a supervision order made.  Questions arise as to whether that is an appropriate course given that the Attorney-General always has a right to bring an application to further review a CDO under the provisions of the DPSOA.

   Background

3. Mr Gibson is an indigenous man born on 10 December in either 1980 or 1981.  He is now either 39 or 40 years of age.

4. In Attorney-General for the State of Queensland v Gibson,[3] I recorded Mr Gibson’s criminal history.[4]  It is unnecessary to repeat that detail.  It is sufficient to observe that over a period of about three years he was convicted of a number of offences of a sexual nature against children.  Any offence of a sexual nature against a child is, by the terms of the DPSOA, a “serious sexual offence” and enlivens the jurisdiction to make orders under the legislation.  On any measure, a sexual offence against a child is serious.

   [3][2019] QSC 206.

   [4]At [4].

5. However, even within the category of offending sexually against children, there are varying degrees of seriousness.  Mr Gibson’s offending is confined to him exposing himself and pinching two 12 year old girls on their bottoms.

6. On 10 August 2017, Dalton J made a CDO against Mr Gibson.  That CDO was reviewed by me in August 2019.[5]  On 22 August 2019, I affirmed the decision of Dalton J that Mr Gibson is a serious danger to the community in the absence of an order under the DPSOA and I ordered that he continue to be subject to the CDO.

   [5]Attorney-General for the State of Queensland v Gibson [2019] QSC 206.

7. On that occasion, I analysed the medical evidence then available.[6]  It is unnecessary to repeat that analysis.  Some aspects are significant though to the current application and ought to be recorded.

   [6]At [10], [17]-[30].

8. Doctors Arthur and Sundin, both experienced forensic psychiatrists, examined Mr Gibson for the purposes of the first review of the CDO.  Dr Arthur diagnosed Mr Gibson as follows:

   “•Exhibitionistic Disorder

   •Mixed Cluster B Personality Disorder with Antisocial and Narcissistic Features

   •Substance Use Disorder, predominantly alcohol, currently in remission in a controlled environment

   •Mild Neurocognitive Disorder (uncertain aetiology)

   •Chronic Renal Failure, currently on dialysis”

9. Dr Sundin’s diagnosis was:

   “•Mild-Moderate Neuro-Cognitive Disorder;

   •Exhibitionistic Disorder;

   •Alcohol Use Disorder, in sustained remission whilst in a controlled environment.

   •Mixed Personality Disorder with anti-social and narcissistic traits.”

10. Mr Gibson’s Neurocognitive Disorder renders him partially impaired.  On the first review of the CDO, Sharon Low, an occupational therapist, opined that Mr Gibson was capable of undertaking basic life tasks, such as eating, drinking, maintaining basic hygiene and preparing simple meals.  However, his treating psychologist, Dr Madsen, thought that he was incapable of functioning in the broader community and that he would need constant supervision and support which is not available within the contingency accommodation provided for prisoners under supervision known as “The Precinct”. Doctors Arthur and Sundin agreed with Dr Madsen.

11. No appropriate accommodation was available.    Both psychiatrists opined that in the absence of 24 hour supervision, Mr Gibson’s risk to the community was unacceptable.  In confirming the CDO, I observed:

    “[31]   The evidence is overwhelming that the respondent is an unacceptable risk of committing a serious sexual offence in the absence of an order under Part 2 of Division 3.  The real issue is whether the adequate protection of the community can be ensured if he is released on supervision.

    [32]I accept the evidence of Drs Sundin, Arthur and Madsen that the respondent, if not in prison will only function in the community in accommodation where he is offered 24 hour support.  I accept the evidence of Dr Sundin, confirmed by Dr Arthur,  that in the absence of such support the respondent remains at a high risk of commission of a serious sexual offence.

    [33]At present, there is no evidence of the availability of a place for the respondent at a men’s hostel offering 24 hour supervision and support.  In those circumstances, I will order that the respondent continue to be subject to the continuing detention order made on 10 August 2017 by Dalton J.

    [34]In applications made under the Act, the Court often sees situations where prisoners have either cognitive deficits or mental health issues such that they need special accommodation in the community.  Often in those cases the evidence is that accommodation is not available.  This appears to be one such case.

    [35]Continued incarceration under the Act of a person who has served the term of imprisonment imposed as a result of his offending should not become the default position because of the unavailability of other less restrictive accommodation.

    [36]Between now and the next review of the continuing detention order for the current respondent, proper investigation should be made as to the availability of accommodation in a men’s hostel providing 24 hour support.  An affidavit detailing those investigations and explaining the results should be before the Court when the matter is next reviewed.”

12. Mr Gibson’s second annual review of his CDO came before Callaghan J on 15 February 2021.  Perhaps understandably, Mr Gibson’s cognitive functioning had not improved.  As the risk of sexual reoffending had not diminished, his Honour continued the CDO, observing as he did so:

    “[21] Davis J insisted,[7] and I respectfully endorse his Honour’s view that:

    ‘Continued incarceration … should not become the default position because of the unavailability of other less restrictive accommodation.’

    [22]But that is where the respondent is left - incarcerated. A purported object of the Dangerous Prisoners (Sexual Offenders) Act 2003 is to facilitate rehabilitation. It was agreed that there was nothing more the prison system could do in that regard for the respondent. He is someone whose needs must be met by the public health system rather than under a corrective services regime. However, in the absence of suitable accommodation for people like him, prisons will become a refuse heap for individuals who cannot, by reason of mental infirmity, function in a socially acceptable way. In circumstances where adequate protection of the community can, in fact, be achieved in other ways, cases like this demonstrate that the Act is failing to meet its own objectives as expressed section 3.[8] Prison beds are being occupied by people who do not need to be in them.”

    [7]This is a reference by Callaghan J to Attorney-General for the State of Queensland v Gibson [2019] QSC 206 at [35].

    [8]Section 3 of the Dangerous Prisoners (Sexual Offenders) Act 2003 includes, as an object of the legislation, the “care or treatment (of the prisoner) to facilitate their rehabilitation” [(3)(b)].

13. The position then before Callaghan J (as it was before me in 2019) was that Mr Gibson:

    1.was a serious danger to the community in the absence of an order under the DPSOA;

    2.adequate protection of the community against the commission by Mr Gibson of a serious sexual offence could be ensured by a supervision order provided he was residing in supervised accommodation where 24 hour support was provided;

    3.adequate protection of the community could not be ensured against the commission by Mr Gibson of a serious sexual offence by a supervision order if he was living either at The Precinct or in the general community.

14. After the orders were made by Callaghan J, the search for appropriate accommodation continued and that search has been successful.[9]

    [9]The evidence is analysed later under the heading “The new evidence”.

15. On 15 March 2021, the Attorney-General filed an application seeking the following orders:

    “1.That pursuant to r 668(2)(b) of the Uniform Civil Procedure Rules 1999, the order made by this Court on 15 February 2021, that the respondent continue to be subject to the continuing detention order made on 10 August 2017, be set aside.

    2.That the review application be listed for hearing on a date set by the court.

    3.That the court can be satisfied to the requisite standard, pursuant to s 30(2) of the Dangerous Prisoners (Sexual Offenders) Act 2003, that the respondent is a serious danger to the community in the absence of a division 3 order.

    4.That pursuant to s 30(3) of the Dangerous Prisoners (Sexual Offenders) Act 2003, the respondent be released from custody subject to a supervision order.

    5.Such other orders as the court considers necessary.”

16. That is the application presently before me.

17. Also before me was an application brought by Mr Gibson for bail in relation to a charge of sexual assault.[10]  That offence was allegedly committed against a nurse who was treating him while he was incarcerated at Capricornia Correctional Centre in Rockhampton.  Mr Gibson was receiving treatment at Rockhampton Base Hospital.  Mr Gibson grabbed the nurse’s vagina.

    [10]Re: an application for bail by Ashley Lennon Gibson file 3176/2021.

18. The bail application was heard with the application made in the DPSOA proceedings. The Crown’s position on the bail application was that bail ought to be granted if the application under r 668 was allowed. I have delivered separate reasons granting bail to Mr Gibson on the sexual assault charge.

    The new evidence

19. After the review by Callaghan J, the search for suitable accommodation for Mr Gibson continued and a place has been found for him in a supported independent living facility.

20. The features of the proposed supported independent living facility in which Mr Gibson will, if released on supervision, reside, are:

    1.Full time support is offered, including support with medication management, food preparation and community access.

    2.The staff to resident ratio is 1:3.

    3.All staff are male.

    4.When in the community (eg attending medical appointments), Mr Gibson will be escorted by a staff member on a one-on-one basis.

    5.The facility is staffed full-time, that is 24 hours a day, seven days a week, but is not a secure facility.

21. While the facility is not secure, Mr Gibson will, if the CDO is rescinded, be subject to a supervision order made under the DPSOA.  A supervision order must contain conditions that he “comply with a curfew direction or monitoring direction”.[11] Section 16A of the DPSOA concerns curfew and monitoring directions. It provides:

    [11]Dangerous Prisoners (Sexual Offenders) Act 2003, s 16(1)(da).

    “16A  Curfew and monitoring directions

    (1)The purpose of this section is to enable the movements of a released prisoner to be restricted and to enable the location of the released prisoner to be monitored.

    (2)A corrective services officer may give 1 or both of the following directions to the released prisoner—

    (a)     a direction to remain at a stated place for stated periods (curfew direction);

    Example—

    a direction to remain at the released prisoner’s place of residence from 2.30p.m. to 7.00p.m. on school days, if the prisoner is not required to be at a place of employment during these hours

    (b)     a direction to do 1 or both of the following (monitoring direction)—

    (i)wear a stated device;

    (ii)permit the installation of any device or equipment at the place where the released prisoner resides.

    (3)A corrective services officer may give any reasonable directions to a released prisoner that are necessary for the proper administration of a curfew direction or monitoring direction.

    (4)A direction under this section must not be directly inconsistent with a requirement of the relevant order for the released prisoner.”

22. While the accommodation is not secure, Mr Gibson may be subject to both a curfew and the requirement of wearing a monitoring device if so directed. The evidence is that he will be the subject of suitable directions.

23. The opinions of each of Dr Sundin and Dr Arthur were sought as to the suitability or otherwise of the proposed accommodation.  Both doctors were asked to assume that both a curfew direction and a monitoring direction would be made.

24. Dr Sundin thought that the accommodation was suitable.  Dr Arthur opined this:

    “I have no major issues with the accommodation as outlined in your letter.

    I agree that whilst NDIS support workers do not have authority to detain Mr Gibson, as long as they are adequately trained and there is a very clear process in place for dealing with eventualities such as Mr Gibson engaging in substance use, having unauthorised visitors or leaving the residence without permission, his risk should be adequately managed. Because of the usual levels of staff turnover and limited training/experience of many support workers (particularly relating to forensic clients), the management plan should be regularly reviewed and all staff supporting Mr Gibson should be aware of his risks and the need for such supervision. In my experience I have found that the attitudes and beliefs of such staff does impact on the quality of care given, and there is always the potential for over-identification with clients and possible collusion/splitting.”

    Statutory provisions

25. Rule 668 under which the application is brought provides, relevantly, as follows:

    “668   Matters arising after order

    (1)This rule applies if—

    (a)      facts arise after an order is made entitling the person against whom the order is made to be relieved from it; or

    (b)     facts are discovered after an order is made that, if discovered in time, would have entitled the person against whom the order is made to an order or decision in the person’s favour or to a different order. …”

26. The DPSOA provides a scheme for the treatment and preventative detention of a certain category of prisoner,[12] namely those who have committed a “serious sexual offence”.  Relevantly to Mr Gibson, a “serious sexual offence” is an offence “of a sexual nature … against a child”.[13]

    [12]Dangerous Prisoners (Sexual Offenders) Act 2003, s 3.

    [13]Dangerous Prisoners (Sexual Offenders) Act 2003, s 2, Schedule 1, Definition of “serious sexual offence”.

27. By s 13 of the DPSOA, a court may make orders against a prisoner if the prisoner is a “serious danger to the community in the absence of [an order]”.[14]  A prisoner is a serious danger to the community if, without an order there is “an unacceptable risk that the prisoner will commit a serious sexual offence”.

    [14]Dangerous Prisoners (Sexual Offenders) Act 2003, s 13(1).

28. A finding can only be made that a prisoner is an unacceptable risk where that finding is based on “acceptable, cogent evidence” and the finding is made “to a high degree of probability”.[15]

    [15]Dangerous Prisoners (Sexual Offenders) Act 2003, s 13(3).

1. Dalton J found, upon the making of the CDO, that Mr Gibson was an unacceptable risk of committing an offence of a sexual nature against a child.  That risk has not altered.

2. Once such a finding is made, a discretion arises to make either a supervision order or a CDO,[16] although there is a discretion to make no order.[17]  If, as here, a CDO is made, then it must be reviewed annually.[18] Section 30 governs the hearing of such a review. It provides:

   [16]Dangerous Prisoners (Sexual Offenders) Act 2003, s 13(5).

   [17]Fardon v Attorney-General (Qld) (2004) 223 CLR 575 at [34].

   [18]Dangerous Prisoners (Sexual Offenders) Act 2003, s 27.

   “30     Review hearing

   (1)This section applies if, on the hearing of a review under section 27 or 28 and having regard to the required matters, the court affirms a decision that the prisoner is a serious danger to the community in the absence of a division 3 order.

   (2)On the hearing of the review, the court may affirm the decision 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 affirm the decision.

   (3)If the court affirms the decision, the court may order that the prisoner—

   (a)     continue to be subject to the continuing detention order; or

   (b)     be released from custody subject to a supervision order.

   (4)In deciding whether to make an order under subsection (3)(a) or (b)—

   (a)     the paramount consideration is to be the need to ensure adequate protection of the community; and

   (b)     the court must consider whether—

   (i)adequate protection of the community can be reasonably and practicably managed by a supervision order; and

   (ii)requirements under section 16 can be reasonably and practicably managed by corrective services officers.

   (5)If the court does not make the order under subsection (3)(a), the court must rescind the continuing detention order.

   (6)In this section—

   required matters means all of the following—

   (a) the matters mentioned in section 13(4);

   (b) any report produced under section 28A.”

3. Section 30 mirrors s 13 and the terms appearing in s 13 have the same meaning in s 30.[19] The initial question under s 30, like under s 13, is whether the prisoner is a serious danger to the community in the absence of some order. Then the question is whether adequate protection of the community can be ensured by the making of a supervision order rather than a CDO. Importantly, s 30(2), like s 13(3), places the onus of proof upon the Attorney-General[20] and imposes a statutory version of the Briginshaw principles.[21]

   [19]Kynuna v Attorney-General (Qld) [2016] QCA 172 at [60].

   [20]Attorney-General for the State of Queensland v S [2015] QSC 157 at [38], Yeo v Attorney-General (Qld) [2012] 1 Qd R 276 at [73], reviewed and analysed by Applegarth J in Attorney-General for the State of Queensland v DXP [2019] QSC 77 at [20]-[22].

   [21]Briginshaw v Briginshaw (1938) 60 CLR 336 at 360-363.

   Consideration

4. Rule 668 is an exception to the general rule that, subject to a statutory right of appeal, a court’s decision is final and cannot be revisited.  Equity always recognised exceptions to the general rule, in particular, fraud.[22]  Rule 668 is one of the statutory exceptions, although there are others.[23]

   [22]Clone Pty Ltd v Players Pty Ltd (2018) 264 CLR 165 at [52]-[60].

   [23]See, for example, Uniform Civil Procedure Rules 1999, r 667.

5. While the DPSOA only applies to persons who have been convicted of certain types of criminal offences, DPSOA proceedings are commenced by application in the civil jurisdiction.  It is, therefore, a different process to the imposition of criminal sentence.[24] Given that DPSOA proceedings are civil in nature and the UCPR clearly governs such proceedings, there is no reason why r 668 could not be applied to vary an order made in DPSOA proceedings in appropriate circumstances.

   [24]Fardon v Attorney-General (Qld) (2004) 223 CLR 575 at [73]-[82].

6. Rule 668 was held to apply to DPSOA proceedings in both Attorney-General for the State of Queensland v WTA[25] and Attorney-General for the State of Queensland v Allwood.[26] 

   [25][2020] QSC 300.

   [26][2021] QSC 15.

7. Reliance is placed by the Attorney-General upon r 668(1)(b). Relevantly here, it is submitted that had the existence of the supported independent accommodation been discovered by the time of the review of the CDO before Callaghan J, Mr Gibson would have been entitled to a different order; a supervision order, not a CDO. That can be readily accepted. The psychiatric evidence before Callaghan J was (as it was before me on the first review of the CDO) that adequate protection of the community could be ensured by a supervision order provided supported accommodation was available. Once that point is reached, a supervision order must be preferred over the continuation of a CDO.[27] Therefore, the discretion under r 668 clearly arises. The real question is whether it should be exercised here. That gives rise to consideration of the statutory scheme of the DPSOA.

   [27]Attorney-General for the State of Queensland v Francis [2007] 1 Qd R 396. at [39].

8. By s 30, the onus falls upon the Attorney-General on a review of a CDO to justify the continuation of orders made under s 13 of the DPSOA. The Attorney-General must prove, by acceptable cogent evidence, to a high degree of probability that the prisoner is a “serious danger to the community in the absence of a Division 3 order” at the time of the review. It is only if that point is reached, then the judicial power to continue the CDO, or to make a supervision order, arises. If the Attorney-General fails in proving that jurisdictional trigger, then the prisoner ceases to be subject to any order.

9. If the jurisdictional trigger is proved, then the discretion arises to make a CDO or supervision order or, adopting by analogy what was said about s 13 in Fardon v Attorney-General (Qld),[28] no order. Cases can be imagined where there has been the discovery of late evidence but it would be inappropriate to vary the order under r 668 rather than put the Attorney-General to the strict proof required by s 30. However, this is not such a case and it is appropriate to set aside the order of Callaghan J affirming the CDO.

   [28](2004) 223 CLR 575.

10. The following factors are determinative:

    1.The latest review was only a month ago.

    2.There is no suggestion of any change in any circumstances relevant to risk other than the availability of the supported accommodation.

    3.Specifically, there is no suggestion of any improvement in Mr Gibson’s physical or mental state which might lead to him being released without a supervision order.

    4.It is very clear from Callaghan J’s judgment that, had the new evidence been available to his Honour, the CDO would have been rescinded and a supervision order made.

    5.On the evidence now available, the proper course is to release Mr Gibson on a supervision order.

11. A draft supervision order has been provided to me.  It is not a condition of the supervision order that Mr Gibson lives in the particular supported accommodation which has been found.  It is, though, a condition of the supervision order that Mr Gibson “comply with any reasonable direction under s 16B”[29] of the DPSOA.  Section 16B relevantly provides:

    [29]Dangerous Prisoners (Sexual Offenders) Act 2003, s 16(1)(daa).

    “16B  Other directions

    (1)A corrective services officer may give a released prisoner a reasonable direction about —

    (a)     the prisoner’s accommodation; or

    Example—

    a direction that the released prisoner may only reside at a place of residence approved by a corrective services officer …”

12. Obviously, there will be a direction given that Mr Gibson live in the accommodation which has been identified.

13. I am satisfied that the supervision order proposed is acceptable and that the adequate protection of the community can be ensured by the rescission of the CDO and the making of a supervision order.[30]

    [30] Dangerous Prisoners (Sexual Offenders) Act 2003, s 30(4).

14. It is necessary to fix the duration of the supervision order.[31]  In doing that, the appropriate question is “when will [Mr Gibson] reach a point at which he is an acceptable risk without a supervision order?”.[32]

    [31]Dangerous Prisoners (Sexual Offenders) Act 2003, s 13A.

    [32]Attorney-General for the State of Queensland v DXP [2019] QSC 77 at [29] following Attorney-General for the State of Queensland v KAH [2019] 3 Qd R 329.

15. Mr Gibson’s risk of offending is linked inextricably to his cognitive impairment.  That is not likely to improve.  He clearly needs long-term care and treatment and supervision and direction as to where to live.  Dr Arthur opines that a supervision order of 10 years is appropriate and I agree.

16. The Attorney-General seeks a number of orders, including a finding under s 30(2) of the DPSOA, that Mr Gibson is a “serious danger to the community in the absence of a Division 3 order”. Callaghan J found that to be the case on 15 February 2021. There is no suggestion of any fresh evidence casting doubt upon that finding. It is not necessary for me to revisit it under an application brought under r 668 of the UCPR.

17. What is necessary is to set aside the order of Callaghan J that Mr Gibson continue to be subject to the CDO, rescind the supervision order[33] and to make a supervision order.

    [33]Dangerous Prisoners (Sexual Offenders) Act 2003, s 30(5).

18. I make the following orders:

    1.The order made on 15 February 2021 by Callaghan J that “the respondent, Ashley Lennon Gibson, continue to be subject to the continuing detention order made on 10 August 2017” is set aside pursuant to r 668 of the Uniform Civil Procedure Rules 1999;

    2.Pursuant to s 30(5) of the Dangerous Prisoners (Sexual Offenders) Act 2003, the continuing detention order made on 10 August 2017 is rescinded;

    3.Pursuant to s 30(3)(b) of the Dangerous Prisoners (Sexual Offenders) Act 2003, the respondent, Ashley Lennon Gibson, is released subject to a supervision order for 10 years until 24 March 2031 in terms of the Schedule attached to these reasons.