Attorney-General for the State of Queensland v Haidley
[2020] QSC 368
•10 December 2020
SUPREME COURT OF QUEENSLAND
CITATION:
Attorney-General for the State of Queensland v Haidley [2020] QSC 368
PARTIES:
ATTORNEY-GENERAL FOR THE STATE OF QUEENSLAND
(applicant)
v
KIRK ANDREW HAIDLEY
(respondent)
FILE NO:
BS 9206/20
DIVISION:
Trial Division
PROCEEDING:
Application for a Continuing Detention Order
ORIGINATING COURT:
Supreme Court of Queensland at Brisbane
DELIVERED ON:
10 December 2020
DELIVERED AT:
Brisbane
HEARING DATE:
30 November 2020
JUDGE:
Ryan J
ORDER:
Under section 13(5)(a) of the Dangerous Prisoners (Sexual Offenders) Act 2003 (the Act), the respondent is to be detained in custody for an indefinite term for control, care or treatment; the Court being satisfied that he is a serious danger to the community in the absence of a Division 3 order.
CATCHWORDS:
CRIMINAL LAW – SENTENCE – SENTENCING ORDERS – ORDERS AND DECLARATIONS RELATING TO SERIOUS VIOLENT OFFENDERS OR DANGEROUS SEXUAL OFFENDERS – DANGEROUS SEXUAL OFFENDER – GENERALLY – where the 31 year old respondent is serving a period of imprisonment for sexual offences committed upon three girls – where his full time release date is 19 December 2020 – where the applicant seeks an order under Division 3 of the Dangerous Prisoners (Sexual Offenders) Act 2003 – where there is expert psychiatric opinion to the effect that, to address the risk posed by the respondent, he ought to complete a sexual offenders treatment program in custody prior to his release – where the respondent wishes to complete such a program prior to his release – whether adequate protection of the community can only be achieved by an order for the respondent’s continuing detention
Dangerous Prisoners (Sexual Offenders) Act 2003 (Qld) , s 13
COUNSEL:
J Tate for the applicant
C Lovell for the respondentSOLICITORS:
Crown Law for the applicant
Legal Aid Queensland for the respondent
Overview
The respondent is a prisoner, serving a sentence for three sexual offences committed upon three children, on three separate occasions. In 2006, he committed a non-penetrative sexual offence upon a 10 year old girl. In 2011, he committed a non-penetrative sexual offence upon a five year old girl. And in 2012, he committed a penetrative sexual offence upon a 13 year old girl. He had a connection to each of the children and was in their household, or had access to their household, when the offences were committed.
For his offending, he was sentenced in 2013 to imprisonment for seven years and six months. His full time release date is 19 December 2020.
His attitude towards his offending is one of minimalisation, denial, or denial of responsibility. During his time in custody, he has engaged minimally in group therapy. Although he has engaged in individual therapy, it seems that he has retained little of what he was taught.
In respect of the respondent, the Attorney-General applies for a “continuing detention order” under Part 2, Division 3 (section 13) of the Dangerous Prisoners (Sexual Offenders) Act 2003. In the alternative, the Attorney-General applies for a supervision order.
The operation of the Dangerous Prisoners (Sexual Offenders) Act 2003, including the paramountcy which it accords to the adequate protection of the community, and the effect of continuing detention or supervision orders, is well known. I will not detail it in these reasons. Even though Division 3 orders are made frequently under the Act, a court must not lose sight of the fact that the legislation is extraordinary in its impact on a relevant prisoner.
The respondent acknowledges that he is a serious danger to the community in the absence of a Division 3 order and the evidence (discussed below) establishes that fact persuasively. In those circumstances, the authorities explain that the question for me is whether, were the respondent to be released from custody at his full-time release date, adequate protection of the community from the relevant risk posed by him can be achieved by the imposition upon him of a supervision order, with appropriate conditions, or whether an order for his continuing detention for an indefinite term is required.
The evidence of the three expert psychiatrists who have provided reports in this matter (Drs Sundin, Arthur and Harden) is that the respondent’s unmodified risk of future serious sexual offending upon his release is either “moderate or high”; or “moderately high”.[1]
[1]Dr Harden corrected his written risk assessment result in oral evidence. He had omitted, in his application of the Static-99R, to take into account that the respondent was on bail for the first two offences when he committed the third.
The respondent’s psychiatric diagnoses include a provisional diagnosis of Paedophilia (heterosexual and non-exclusive), Antisocial Personality Disorder, Substance Misuse Disorder (methamphetamine and cannabis), and Alcohol Misuse Disorder.
Two of the psychiatrists, Dr Arthur and Dr Sundin, are of the opinion that the respondent should complete the Medium Intensity Sexual Offenders Programme (MISOP), a treatment program conducted in a group setting offered in custody and in the community. In Dr Sundin’s opinion, the respondent should complete the MISOP in custody prior to consideration being given to his release into the community under a supervision order. Although Dr Arthur would contemplate the respondent’s completing the MISOP in the community upon his release, he agreed that there was a risk of the respondent decompensating whilst undertaking the MISOP which could be better managed in custody.
In his written evidence, Dr Harden said nothing about a group program. He said that the respondent required individual therapy which could be undertaken in the community. In his oral evidence, Dr Harden expressed the view that, whilst the respondent’s not undertaking the MISOP would be unlikely to alter his risk in the short term, his completing it might well alter (in the sense of reduce) his risk in the moderate to longer term.
The Attorney’s position is that the respondent should be required to complete MISOP in custody before his release. She contends that the respondent is a moderate to high risk of future serious sexual offending, with a diagnosis of paedophilia, who has been inadequately treated.
The respondent’s position is that he wishes to remain in custody to complete the MISOP. He told Dr Sundin that he wanted to be sure he could “do it” – I assume he meant successfully reintegrate into the community – before he was released. I note however that he told Dr Harden that one motivation for his desire to stay in custody to complete courses was to avoid a return to the community.
Having regard to –
·the evidence of the expert psychiatrists;
·the level of relevant risk posed by the respondent;
·the respondent’s age (and the need to ensure a reduction of risk well into the future);
·the evidence about the respondent’s personality structure;
·the fact that he has not completed a group sexual offenders’ program (with all the advantages that come with a group program (discussed below);
·the respondent’s desire to complete MISOP in custody; and
·the benefit to the respondent of undertaking the MISOP in custody rather than in the community,
I am of the view that the appropriate order at this stage is an order for the respondent’s continuing detention, especially for treatment.
My reasons for reaching that conclusion are set out in more detail below.
I wish to make it plain that I have proceeded on the basis that the Attorney-General appreciates the risk that the respondent, who is a young man, may become institutionalised. On the strength of submissions made to me by counsel for the Attorney-General, I have proceeded on the basis that she will bring an application for a review of the respondent’s continuing detention as soon as possible once the outcome of his participation in the MISOP is known, and the psychiatrists have had a chance to re-consider their risk assessments. My expectation is that an application for such a review will be brought no later than 1 September 2021.
The serious sexual offences and the respondent’s criminal history
On 20 June 2013, the respondent pleaded guilty and was sentenced to seven and a half years’ imprisonment for the following “serious sexual offences” (as defined in Schedule 1 of the Act) [2] –.
·Two counts of indecently dealing with a child under 12; and
·One count of rape.
[2]“Serious sexual offence” is defined in the Schedule of the Act as “serious sexual offence means an offence of a sexual nature, whether committed in Queensland or outside Queensland—(a) involving violence; or (b) against a child; or (c) against a person, including a fictitious person represented to the prisoner as a real person, whom the prisoner believed to be a child under the age of 16 years.”
His offending occurred on three separate occasions over several years. It escalated in severity from non-penetrative sexual touching and simulated intercourse, to rape.
This is the respondent’s first period of imprisonment for offences of a sexual nature. He was eligible for parole on 19 December 2015. He made an application for parole which was refused.
The respondent’s criminal history began in 2004 when he was a child, aged 16 (with a conviction for dealing in shop goods). In addition to his convictions for serious sexual offences, the respondent’s criminal history includes convictions for breaches of bail undertakings and failing to appear (Magistrates Court).
The Attorney contends that the respondent’s longitudinal pattern of offending demonstrates a significant and high risk of future re-offending.
The relevant offences
On 20 June 2013, the respondent pleaded guilty and was sentenced on three indictments, each charging him with one offence of a sexual nature. The three victims were all known to the respondent and occurred when he was a guest at their separate houses.
The first victim was a 10-year-old girl who lived with her father in Stanthorpe. The respondent, who was 16 to 17 years old at the time, was friends with her father. The offending was committed between 25 July 2006 and 1 January 2007. The offending occurred in her bedroom in the evening. The respondent pulled down his and her pants and rubbed his penis on her upper thigh, near her vagina. The victim pushed the respondent away and pulled up her pants.
The offending came to light when the victim, upset and crying, told her friend that the respondent put his penis near her vagina. The victim also told her mother.
The incident was first reported to the police in 2007. In his police interview on 23 October 2007, the respondent denied the allegations. No further action was taken at this time. In May 2012, both the victim and the respondent were re-interviewed. Again, the respondent denied the offending.
The second victim was a 5-year-old girl. The offence was committed in late December 2011 when the victim was on a contact visit with her mother over Christmas. At the time of the offending, the respondent was 22 years old and had been in a de-facto relationship with the victim’s mother for approximately three years.
On the night of the offence, the respondent woke the girl from sleep. He was naked. He kissed her on the lips, exposed his genitals, and removed her underwear before rubbing his naked body against her, simulating a sexual act.
The victim disclosed the offence to her grandmother when she was collected by her from her mother’s house on 29 December 2011. The matter was reported to police. The respondent was interviewed on 4 January 2012. He told police that he viewed the victim as “pretty much like my own daughter” and denied the offending.
The third victim was the younger sister of the respondent’s ex-girlfriend. She was 13 years old at the time of the offending. The respondent was 22 and on bail for the earlier offending.
The respondent had been drinking with the victim’s mother in the granny flat at the rear of the victim’s house. After having sexual intercourse with the victim’s mother, the respondent entered the main house and went to the victim’s bedroom where she was sleeping.
He initially woke her, said good night and left the bedroom. He then returned and lay next to her, waking her up. He grabbed her wrist to restrain her. He sat on top of her. He removed her shorts and then raped her for five to 10 minutes. She tried to kick but was unable to move. He threatened her when she screamed out. He stopped when she told him that it really hurt as she was getting pain in her stomach. She asked him to please stop.
When the victim next went to the toilet, she observed blood on her underwear. When she continued to bleed, she sent a text to her mother which read, “I’m bleeding”. She then phoned her mother and told her what had occurred. The victim’s mother telephoned “Triple 0” and police attended a short time later.
When police arrived, they saw blood on the victim’s bedding. She had suffered significant injuries including tearing within her vagina and bruising around the entrance of her vagina.
The respondent vehemently denied committing the offence during an interview with police on 14 October 2012. He admitted to drinking with the victim’s mother and having sex with her. He claimed he left and never returned to the house.
Text messages sent by the respondent to the victim’s mother on an earlier occasion were to the effect that he would date the victim if she was older. He told police that she was “not bad looking for her age” – knowing she was only 13 years old.
DNA sampling taken from the respondent was positively matched to the clothing worn by the victim at the time of the offence.
Psychiatric reports and risk assessments
Dr Ken Arthur, Consultant Psychiatrist (29 June 2020)
Dr Arthur’s report was prepared on instructions from Crown Law to assess the respondent’s risk of sexual recidivism in relation to a possible application made under the Act.
Dr Arthur interviewed the respondent on 12 June 2020 at the Wolston Correctional Centre.
Dr Arthur’s clinical formulation includes the following recitation of the respondent’s evolving response to the allegations –
[216]Prisoner Haidley pleaded guilty to all 3 offences, but had initially denied any culpability when interviewed by police. When interviewed by Ms Amber Lee Johnstone in August 2017 he made some admissions in relation to the first charge of indecent dealing, claiming the victim child approached him while he was taking a bath and he implied that she had initiated sexual contact. He also claimed that at the time he was watching many hours of pornography a day, suggestive of sexual preoccupation. He maintained that the second charge of indecent dealing was vexatious and driven by the victim’s father in an attempt to gain full custody of the child. In relation to the offence of rape, he told Ms Johnstone that he believed the child was older than 13 and that she had initiated the sexual contact.
[217]In a submission to the Parole Board, prisoner Haidley denied any culpability for the charges of indecent dealing and maintained that his sexual activity with the 13 year old victim was consensual, insinuating that the child was the initiator. He also claimed that intoxication had clouded his judgement.
[218]At interview, prisoner Haidley altered his version of events further. He now completely denies any sexualised contact with the first 2 victims, claiming that the first allegation was vexatiously made by his father’s ex-partner because she felt rejected and the second allegation was falsely made by the victim’s father who was seeking custody. He claimed he entered a plea of guilty to these offences as his lawyer had reassured him he would be given a lesser sentence. In relation to the rape charge, prisoner Haidley now claims that he had no contact with the child prior to the night of the offence, inconsistent with his reports to the police at interview and text messages sent to the child’s mother. He also claims that the child told him she was 17, again contradicting his previous statements. He claims that the child sent him sexualised texts throughout the evening along with naked photos of herself and invitations for sex; whilst he also told this to police, there is no evidence to support his claims. He also initially lied to police about having sex with the child. Whilst prisoner Haidley now acknowledges it was wrong to have sex with a 13 year old girl, he continues to project blame onto the child for pursuing him and attributes his actions to extreme intoxication.
[219]Overall, prisoner Haidley presents himself as a victim of false allegations and being lured into having sex with an underage girl. He displayed little to no empathy for the victim and, whilst he expressed remorse for having sex with a 13 year old girl, this relates predominantly to the impact that it has had on him rather than the victims. He displays evidence of denial, minimisation and projection of blame. Whilst he has previously acknowledged sexual preoccupation, he now denies this and appears to have little to no understanding of the drivers behind his sexual offences.
Diagnosis
Dr Arthur diagnosed the respondent as suffering from:
· Paedophilia (provisional diagnosis only: heterosexual and non-exclusive);
· Antisocial Personality Traits;
· Substance Misuse Disorder (methamphetamine and possibly cannabis); and
· Alcohol Misuse Disorder.
Actuarial Assessment
Dr Arthur assessed the respondent on a number of risk assessment tools shown to have validity in the prediction of risk of sexual recidivism, with the following results:
· Static-99R: the respondent scored 4, placing him at the ‘above average’ risk category;
· Hare Psychopathy Checklist (PCL-R): the respondent scored 15/40, which is not elevated; and
· Risk for Sexual Violence Protocol (RSVP): on this structured dynamic risk instrument Dr Arthur reports:
[239]Utilising this instrument, I have identified the following factors relevant to the future risk of sexual recidivism –
Sexual Violence:
· Chronicity – duration/frequency
· Escalation
· Physical coercion
· Psychological coercion
Psychological Adjustment:
· Extreme minimisation or denial
· Problems with self-awareness
· Problems with stress/coping
Mental Disorder:
· Sexual deviance (presumed)
· Problems with substance abuse
Social Adjustment:
· Problems with intimate relationships
· Nonsexual criminality
Manageability:
· Problems with planning
· Problems with treatment
[240] I have identified further possible risk factors of relevance –
· Attitudes supporting sexual violence
· Problems with nonintimate relationships
· Problems with supervision
Risk
On the question of risk, Dr Arthur provided a comprehensive Risk Statement across the domains of Propensity, Pattern, Change and Effects of Treatment (underlining added):
Propensity to reoffend
Based on his Static-99R score, prisoner Haidley falls in the “above average risk” group but there is no indication that he has a Psychopathic Personality. The most relevant risk factors appear to be a deviant sexual interest in children, substance abuse, minimisation/denial, problems with self-awareness and problems with stress/coping. Whilst he acknowledges the potential role of substances, he appears to be relying heavily on avoidance strategies and is dismissive of his sexual needs.
Pattern of offending
There does not appear to be any clear pattern of offending based on the past offences. The first two offences involved prepubescent girls where he exposed himself and engaged in skin to skin contact involving his genitals and simulated sex. It is not clear that intoxication played any role in these offences and he now denies them completely. The third offence was different in that he acknowledges having sex with the child although projects blame and minimises both his culpability and harm to the victim. It appears that he was intoxicated at the time, although I suspect he may be overstating the degree of intoxication.
All three offences involved a young female that was known to him; in the first and third offences the child was related to someone he knew and the second victim was a child he considered as his daughter. The offending appears opportunistic. There is no evidence of grooming.
Attempt to change
Prisoner Haidley completed the GS:PP although his engagement was somewhat superficial and he maintains a stance of denial/minimisation. He commenced the MISOP but did not complete it, citing a preference to attending employment, although it was likely this was also informed by his general pattern of avoidance and denial. He did however, engage in individual therapy with an external Psychologist for a total of 10 sessions.
There is no evidence of drug use in jail. Although he did not complete any formal substance abuse programs, there is reference to him attending AA meetings.
Effects of treatment programs
Whilst the session summaries provided by Ms Jacks were generally positive, I saw little evidence that he had internalised much from this treatment in regard to accepting responsibility for his offences, gaining a sophisticated understanding of his risk factors or developing effective risk management strategies. He does not accept responsibility for the offences and minimises the harm caused to victims.
Dr Arthur continued his risk assessment by providing this clinical summation and opinion:
[242]Based on the clinical interview and collateral information, I would estimate prisoner Haidley’s unmodified risk of sexual recidivism to be moderately high.
Risk scenarios
[243]Based on the available history, it does not appear that there is an imminent risk of prisoner Haidley offending soon after release from jail. Future victims are likely to be prepubescent girls or young teenagers that are known to him, most likely through contact with their friends or family. He will have formed some relationship with the victim prior to the offending. It is likely that prisoner Haidley will offend in a somewhat opportunistic way, isolating the victim before exposing his genitals, fondling the child and engaging in simulated or penetrative sex. He may use physical and possibly psychological coercion. Future offending is likely to be driven by deviant sexual interest, sexual preoccupation and perhaps sex as coping. Future victims would be at risk of psychological harm; whilst this has not yet caused significant physical harm, there appears to be an escalation in his offending and it is possible that if the victim struggled or did not comply, he may respond with excessive force.
[244] Being in a sexual relationship does not appear to be a protective factor against future sexual recidivism. The risk of offending would be increased by the use of substances, which may act as a disinhibitor. He may also be influenced by social situations such as parties where there is a loosening of social boundaries and involvement of physical play which may arouse his deviant sexual interest.
[245]Risk indicators would include negative emotional states (loneliness, feeling rejected or the failure of a relationship) and evidence of sexual preoccupation, such an escalation in pornography use or increased frequency of casual sexual encounters.
Dr Josephine Sundin, Consultant Psychiatrist (4 November 2020)
At the preliminary hearing on 22 September 2020, Dr Sundin was appointed by the Court under section 8 of the Act to undertake a risk assessment in relation to the respondent. Dr Sundin assessed the respondent on 22 October 2020 at the Wolston Correctional Centre and reported on 4 November 2020.
Diagnosis
Dr Sundin diagnosed the respondent as suffering from:
·Paedophilia (non-exclusive, heterosexual);
·Anti-social Personality Disorder;
·Alcohol Use Disorder; and
·Substance Use Disorder (methamphetamine, cannabis, nicotine, caffeine) (in remission in a controlled environment).
Actuarial Assessment
Dr Sundin assessed the respondent on a number of risk assessment tools shown to have validity in the prediction of risk of sexual recidivism, with the following results:
·Static 99-R: the respondent scored 4, placing him at the ‘above average risk’ category;
·Psychopathy Checklist (PCL-R): scored 18/40, which is not elevated;
·STABLE-2007: on this instrument focused on criminogenic needs and intervention targets, Dr Sundin considered the respondent demonstrated “high intervention needs”. In particular, she noted (underlining added):
“On this tool, I considered that Mr Haidley had high intervention needs. I considered that he had high intervention needs in relationship stability and deviant sexual preference. He [sic] moderate intervention needs with respect to significant social influences, emotional identification with children, hostility towards women, general social rejection/loneliness, lack of concern for others, impulsivity, poor problem solving, sex drive/preoccupation, sex as coping and cooperation with supervision.
With respect to future risk management, I was concerned by his plans to re-unite with his former partner, the mother of one of his victims, that he continued to minimise or deny the sexual offences and projected responsibility onto the victims.
He was either prepared to be overtly deceptive from this perspective or carries ongoing distorted cognitions with respect to a child’s capacity to give consent and distorted beliefs around the sexualisation of children and adolescents.”
·Risk for Sexual Violence Protocol (RSVP): on this dynamic risk instrument, Dr Sundin reports:
“On the Sexual Violence subscale, I noted the presence of chronicity of offending with three offences over a period of three years, a progression and escalation of offending from non-penetrative to penetrative intercourse, physical coercion in the restraint of the rape victim, and psychological coercion of the rape victim by way of threats.
On the Psychological Adjustment subscale, Mr Haidley demonstrated quite clear extreme minimisation and denial of the two indecent treatment offences. Whilst he said that he accepted responsibility for the rape offence, he continued to project blame onto the victim, misrepresented his knowledge of her age, and displaced responsibility onto intoxication. He lacked self awareness and has a clear history of relying on sex and substances including methamphetamine and alcohol as a coping strategy.
On the Mental Disorder subscale, he shows evidence of sexual deviance given his pattern of sexual offending and clear problems with substance abuse.
With respect to social adjustment, he has a chronically unstable relationship with his former partner S. He offended whilst in this relationship. He intends to return to this relationship after discharge. He has a minimal history of non-sexual criminality and no violence offences.
With respect to the manageability subscale, Mr Haidley has a past pattern of impulsivity, unclear future plans, and difficulties with planning in the past. He dropped out of the MISOP but had a good report from his one to one sessions with his psychologist, Ms Jacks. He has had only minor infractions in gaol, has re-offended whilst on bail in the past, and has breached bail in the past. Manageability will be negatively influenced by his lack of self-awareness.”
Dr Sundin continued, by describing these risk scenarios:
“The likely risk scenario is one of Mr Haidley opportunistically offending against a pre- pubescent female to whom he has easy access, in a situation where he has a place of trust within the family. There is a high likelihood of psychological or physical coercion but little likelihood of violence.
I concur with the opinion of Ms Johnstone that the risk is not imminent but would be present over time and influenced by his capacity to access potential victims.
He is more likely to offend at times of emotional instability. His risk of offending significantly escalates with the use of intoxicants such as alcohol or methamphetamine.
His risk is maintained by his continued minimisation of the seriousness of his offending, deviant sexual preference and displacement of responsibility onto the victims and his state of intoxication at the time.”
Risk
On the question of risk, Dr Sundin said:
“Overall, I consider that Mr Haidley’s unmodified risk for future sexual recidivism is moderate to high.
His risk would be reduced to moderate by the imposition of a supervision order.
In my opinion, it is important that Mr Haidley be required to participate in a Medium Intensity Sexual Offenders Programme (MISOP). In my opinion, this should be completed before he is released into the community.
I am aware that Mr Haidley could do the MISOP in the community but given my judgement with respect to his risk profile and his continuing minimisation of the seriousness of his offending, I would have greater confidence of his compliance with a supervision order once he had completed a treatment programme.
With successful treatment and compliance with supervision clauses, Mr Haidley is an individual whose risk for sexual offending can be reduced to an acceptable level by the imposition of a 10-year supervision order. The order would ensure the safety of the community by minimising his capacity to access victims, requiring him to abstain from abuse of alcohol and illicit substances, and requiring him to remain engaged in further therapy to address his risk factors.
The MISOP could then be followed up with a Sexual Offenders Relapse Prevention Programme within the community.”
Dr Harden
Dr Harden saw the respondent for the purposes of a risk assessment on 24 November 2020. He summarised his clinical opinion about the respondent’s risk and his future management as follows –
“Diagnosis
Polysubstance abuse, alcohol and amphetamines, in remission due to incarceration.
Possible paedophilia – requires further clarification over time.
Anti-social personality traits, not full disorder.
Risk statement
The actuarial and structured professional judgment measures I administered would suggest that his future risk of sexual reoffence is most likely in the moderate range if released in to the community (average).
A supervision order would reduce this risk to low.
The critical issues are substance abuse and further clarification of his possible sexual interest in prepubertal children.
Recommendation
If placed on a supervision order he should be placed on it for five years.
He should be offered further individual psychological therapy to deal with substance abuse and sexual offending issues.
He should be abstinent from alcohol and illicit substance use.
He should have no unsupervised contact with females under 16 years of age.”
A serious danger to the community in the absence of a division 3 order?
In my view, and it has not been challenged, the respondent is clearly a serious danger to the community in the absence of a division 3 order.
The psychiatric assessments undertaken indicate the respondent’s unmodified risk of sexual re-offence is “moderately high” or “moderate to high”.
Were the respondent to re-offend, it would likely be by way of a serious offence involving a young girl with, it is reasonable to assume, the very real potential for psychological harm.
The respondent has not completed a sexual offenders’ treatment program. Nor has he accepted responsibility for his offending in any mature way. His has at least a provisional diagnosis of Paedophilia as well as anti-social personality disorder, Substance Misuse Disorder and Alcohol Misuse Disorder.
In my view, bearing in mind the matters I am required to take into account under section 13(4) of the Act, the evidence is sufficiently cogent to satisfy me, to a high degree of probability, that the respondent presents an unacceptable risk of committing a serious sexual offence in the absence of a Division 3 order In other words, I am satisfied to the standard required by section 13(3)(b), on the strength of evidence of the quality required by section 13(3)(a), that the respondent is a serious danger to the community in the absence of a Division 3 order.
The next question for me is what division 3 order to make.
The appropriate division 3 order
In deciding whether to make a continuing detention order or a supervision order, the paramount consideration is the need to ensure the adequate protection of the community.
Dr Sundin was of the view that the respondent’s risk was “moderate to high” because of the combination of the respondent’s youth, the chronicity of his offending, the presence of his personality disorder and the escalation in the seriousness of his offending over time. She did not think that the level of his risk of reoffending turned on his substance use/abuse. Relevant considerations were broader. Dr Sundin was particularly concerned about the respondent’s minimisation of the seriousness of his offending and what she referred to as the “fluid nature” of his presentation. She said, “He can appear to present in a somewhat chameleon-like fashion to different interviewers”.
Her view was that he ought to complete the MISOP, which had the advantage of being a program of such length and intensity as to reduce his risk, especially when combined with one-on-one therapy.
Whilst a supervision order could reduce his risk to moderate – that reduction was brought about by the security imposed by a supervision order. There had not yet been an internal change in the respondent. Nor would those supervising him under the order have a good understanding of his risks, triggers and pathways (which would be exposed during the MISOP).
His completing the MISOP would reduce his risk from moderate to high to moderate.
Dr Sundin considered it a positive thing that the respondent indicated that he wished to remain in custody to complete the MISOP. That indicated a shift in his thinking and a recognition that he required treatment.
Dr Harden explained that the respondent demonstrated all of the “normal things” demonstrated by sexual offenders who had not come to terms with their offending: denial, minimisation, rationalisation.
Dr Harden was not clear about the respondent’s diagnosis of paedophilia. He explained that it was not clear to him whether paedophilia was the explanation for the respondent’s offending, or whether he was a “sort of out of control, opportunistic offender”. He said the respondent’s offences had the hallmarks of both, though it was likely that the respondent had paedophilic interests. And even if the respondent were an opportunistic offender, that did not mean that he did not have paedophilic interest.
From Dr Harden’s perspective, the respondent participating in the MISOP had the clinical advantage of its being a desensitising program. He explained, “You’re in a group with other offenders. No one wants to talk about these things, because they’re shameful and awful. In a … group process, there’s a gradual desensitisation to that, and then you can more fully talk about/explore/think about what happened, and maybe get a better understanding of what his sexual drives are. Because the other … if he’s not paedophilic, then the other critical factor is the fact that he’s sexually driven …”.
In Dr Harden’s view, the security afforded by a supervision order would reduce the respondent’s risk to low because he would have no access to victims. Also, the respondent had been relatively compliant in custody. He was not “a raging, out of control personality disordered guy”.
He also thought that having the respondent undertake the MISOP would provide information to those supervising him which would assist them to understand his risk factors and pathways. Also, it would allow the respondent time to develop a relapse prevention plan. In Dr Harden’s view, it would not alter his short term risk but, if successfully completed, may well alter his moderate to long term risk to the benefit of the community and the respondent himself.
Dr Arthur was of the view a supervision order would reduce the respondent’s risk from moderately high to low because it would restrict his access to potential victims and restrict his movements in the community. It also was likely to influence the respondent to make pro-social, rather than anti-social, connections, and it would reduce his propensity for substance use. The reduction effected by the supervision order did not depend on any internal change in the respondent. The advantage of the respondent’s achieving internal change was significant insofar as his risk of recidivism was concerned. There were a number of unknowns about his offending. There were some indicators of deviant sexual interest but that seemed to be part of his overall sexual behaviour. Without internal change, or an acceptance that he had deviant interest, he was more likely to act upon those interests in the future. Dr Arthur found it difficult to understand the respondent’s sexual preferences and his drivers. When he was speaking to Dr Arthur, he showed a high degree of denial. That denial might have (by the time of the hearing) shifted a bit. But if he was aware of his sexually deviant thoughts and wishing to conceal them, or he did not see the need to control his sexual drivers, then it was unlikely that he would engage in treatment or modify his behaviour in the community.
Dr Arthur saw an advantage in the respondent completing a MISOP for reasons similar to those given by Dr Harden, including the power of peer influence and desensitisation, which can be a “powerful tool to break down that denial minimisation”.
Whilst he had initially considered it appropriate for the respondent to undertake the MISOP program in the community, he had reflected upon other evidence which was to the effect that there was a risk of the respondent’s decompensating during the MISOP which could be better managed in custody. Upon that reflection, he acknowledged that there could be emotional risks associated with the MISOP. It was also relevant that he had not completed it in the past. He (the respondent) said he preferred to work, to explain why he did not complete the program, but he might in fact have not been ready to face it. That raised a concern about his ability to see the course through in the community. From a clinical perspective, it was better for the respondent to be in a known, contained environment whilst undertaking the MISOP. He would, in custody, have no external stressors and any decompensation could be managed effectively and in a timely manner.
In my view, adequate protection of the community cannot be ensured by a supervision order at this stage. There is not enough known about the respondent’s sexual drivers and offending behaviour. Nor has there been any internal change in him.
Reliance upon the constraints imposed by a supervision order to achieve protection of the community is appropriate up to a point. But at some stage, those constraints must be relaxed so as to permit the respondent to fully reintegrate into the community.
I am not confident that the respondent’s reintegration will be successful without his undergoing some internal change. On the evidence, the MISOP creates the best opportunity for such a change. On the evidence, the respondent undertaking MISOP in custody will mean that he is able to give his full attention to it and thereby maximise the benefit from it. Also, on the evidence, the product of the MISOP will allow those supervising the respondent upon his release to better understand his risk factors et cetera.
I will therefore make an order for his continuing detention in terms of the draft provided.
I note that the respondent wishes to complete the MISOP in custody. That is a promising sign. As above, my expectation is that the Attorney will bring an application for a review of the respondent’s continuing detention at an appropriate time after his completion of the MISOP, no later than 1 September 2021.
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