Attorney-General for the State of Queensland v. Kondos

[2008] QSC 295

[2008] QSC 295

SUPREME COURT OF QUEENSLAND

CIVIL JURISDICTION

MULLINS J

No 6295 of 2008

ATTORNEY-GENERAL FOR THE STATE

Applicant

OF QUEENSLAND

and

TERRY JOHN KONDOS

Respondent

BRISBANE

..DATE 19/11/2008

ORDER

HER HONOUR:  This is an application by the Attorney-General

under the Dangerous Prisoners (Sexual Offenders) Act, 2003, in

relation to the respondent, Terry John Kondos.  Mr Kondos is

48 years old.  On 2 August 1995 he was sentenced before Senior

Judge Hanger of the District Court.  The respondent pleaded

guilty to 31 offences which were of a sexual nature involving

adolescent boys.  The complainants were mainly between 14 to

15 years old at the time of the offending.  There were one or

two who were around the age of 12 years.

Mr Kondos' fulltime discharge date is 24 December 2008.  He

was sentenced, in effect, to a term of imprisonment for 14

years.  His offending occurred over a period of time when he

was aged between 21 and 30 years old.  It appears, though,

that rather than the offences being continuous over that

period, there was one set of offending involving four victims

in the first few years.  There was a gap of a couple of years,

and then there was the second set of offences involving one of

the younger boys and a couple of 15 year old boys.

In order to put the offending in context I will refer briefly

to some of the respondent's background.  During his childhood

his parents were distant with each other and with him.  They

subsequently separated.  He lived with his mother.  His

relationship with his mother was problematic.  He has one

sister, but she does not figure in his support network now and

did not seem to figure as a supportive figure during his years

of growing up.  He was equivocal and confused about his

sexuality.

At age 15 he committed an offence that was the subject of an

aggravated sexual assault charge against a boy who was about

12 years.  He was dealt with in the Juvenile Justice system

and not incarcerated.  He was educated to year 12 and does not

appear to have had any difficulty in obtaining employment.

His mother had an alcohol problem and was abusive towards him.

He was married in his early 20s for a period, but the

relationship with his wife was not close.  In fact, the first

set of offending was committed whilst he was married.  He was

conducting a small business as the shop owner.  He took

advantage of his position in dealing with young boys who came

to the shop.  With the benefit of hindsight, the psychiatrists

have been able to describe in detail his activities of

grooming.  His offending escalated over time.  He became

bolder in his dealing with the boys, and in the shortened time

period of his grooming.

His offences to which he pleaded guilty included maintaining

an unlawful relationship of a sexual nature with a child under

the age 16 years.  This relationship with his first victim

lasted for over 2 years.  He was also charged with many counts

of indecent dealing, and permitting himself to be dealt with

indecently.  Part of his grooming was photographing the boys

and progressively having them remove their clothes.  He was

therefore charged with offences such as taking indecent

photographs of a child under the age of 16 years.

He administered benzodiazepine to one or two of the boys, and

was charged with administering a stupefying drug with intent

to commit an indictable offence.

His first business failed, and his marriage failed.  It was

when he had started another business that he commenced the

grooming again and committed the second lot of offences.

What is notable about the psychiatric reports in relation to

Mr Kondos is that at the time he offended he had no feelings of empathy for his victims.  He was concerned only with his own sexual gratification.  He was able to rationalise his conduct to justify it to himself.  At the time he was charged with the offences, he was not remorseful in any way for his conduct.

For the purpose of considering whether or not this application

should be made, Dr Grant, a psychiatrist, interviewed the

respondent for two and a half hours on 18 January 2008.  After

this application was made, on the basis of orders made by the

Court, psychiatrists Drs Beech and Moyle interviewed the

respondent for extensive periods and have provided reports to

the Court.  On the hearing of the application today, oral

evidence was also given by Drs Beech and Moyle.  I have found

this psychiatric evidence of great assistance on this

application.

Doctor Grant considered that the respondent would be of low to

moderate risk of reoffending in a sexual way upon release

without the assistance of supervision.  Doctor Grant

summarised the file of the Department of Corrective Services

in relevant respects.

During the hearing today there was a difference in emphasis between Dr Moyle and Dr Grant in how one event in the respondent's history was treated.

Although Dr Grant did not give evidence, or was unavailable to

give evidence today, I consider his analysis of the incident

involving the respondent at the Palen Creek Correctional

Centre in February 2002, and his conclusion to be convincing,

rather than the inferences that Dr Moyle drew from the same

incident which seemed to be based on some speculation rather

than taking into account the actual position that the

respondent was unaware of the entry in his prison records on

which Dr Moyle placed some weight.  The fact that the

respondent was transferred back to Palen Creek on appealing

against his transfer from that correctional centre to Wolston

Prison after a few weeks, and was never required to respond to any investigation or proceeding as a result of the particular entry, satisfies me that it is appropriate to proceed on the basis of Dr Grant's conclusion that the respondent's account of that incident is supported by the fact that there was no other documentation in the file that related to the particular matter, and no formal breach was recorded on the file.

Mr Rolls of counsel, who appears for the Attorney-General on

this application, has not referred to this incident in his

extensive written submissions in any adverse way for the

respondent, and has not suggested that I should act otherwise

than in accordance with Dr Grant's summary relating to the

matter.

Notwithstanding that, I have found the other aspects of

Dr Moyle's report to be of assistance, together with his

further oral evidence today, as I have also found the

extensive report from Dr Beech and his further oral evidence

today.

I will briefly mention some of the courses that the respondent

has undertaken whilst in prison.

He undertook the Preparation For Intervention course.  In 1999

he completed the Sexual Offenders Treatment Program.

Relevantly, he has also undertaken the Cognitive Skills

Program, the Sexuality in Human Relationships course, the Drug

and Alcohol Core Program, and the Intimate Relationships

Program.  In more recent times the respondent completed the

Sexual Offenders' Maintenance Program.

He has been noted as participating positively in the sexual

offending treatment programs, and in embracing the concepts

that are imparted in those programs with a view to assisting

offenders such as the respondent in gaining insight into the

causes of their past offending, and the strategies that they

must implement in order to avoid future offending.

The respondent, until he was considered by the Department of

Corrective Services for an application under the Dangerous

Prisoners (Sexual Offenders) Act, was allowed to undertake

day leave from about June 2000 until about 18 months ago.

That leave, even though it had been successful, was terminated

because of the making of this application.

At the time Dr Grant saw the respondent, he had successfully

had a total of about 70 day leaves, involving about nine and a

half hours each time, which the respondent had spent in the

company of his father, both at his father's house but also on

social outings.  Doctor Grant noted that the respondent had

said those outings had been of assistance to him in adjusting

to the changes that would be necessary for him to make on his

release from prison, but that sort of transitional assistance

was terminated, as I said, when this application was

foreshadowed.

During the respondent's time in prison, he has been in

employment in the prison, and for many years in a position of

responsibility.  He has avoided disciplinary or breaching

problems.

The confusion that he has had about his sexuality upon

entering prison has been resolved.  He has accepted his

homosexuality and that his assisted him in formulating his

Relapse Prevention Plan.  The respondent has the support of

two family members on his release.

The Relapse Prevention Plan that he proposes has been

considered by each of the psychiatrists who are positive about

its contents and the respondent's ability to understand the

need to comply with it.

Each of the psychiatrists supports the making of a supervision

order in relation to the respondent.  Although the application

by the Attorney-General has been formulated in terms of

seeking either a continuing detention order, or a supervision

order, counsel for the Attorney-General ultimately submitted

that on the material before the Court, adequate protection of

the community will be ensured by the making of a supervision

order.

The respondent, through his counsel, accepts that a Division 3

order should be made in relation to him, and has had explained to him the terms of the proposed supervision order that the psychiatrists have considered and that has been put before the Court by the Attorney-General.

The respondent has conveyed to the Court, through his counsel,

that he considers the proposed supervision order will assist

him in implementing his Relapse Prevention Plan, and accepts

the supervision order will be an important part of the regime

that assists him in not committing any further sexual

offending on his release.

Doctor Beech in his report identified six factors as pertinent

to the risk of further sexual offending being committed by the

respondent.  They are:

-    sexual deviance with an attraction to adolescent males;

-    the use of psychological coercion and grooming;

-    the use of physical coercion by way of using stupefying
     agents;

-    chronic and persistent offending over nine years with
     many victims;

-    problems resulting from childhood emotional neglect;

-    problems in intimate relationships.

Doctor Beech diagnosed the respondent's sexual deviance as the

paraphilia hebephilia.  Doctor Beech explained that this is in

distinction to pedophilia which is more the attraction to

prepubescent children; Dr Beech noted that the respondent's

predilection was for young males.

Doctor Beech considered that the respondent represented a

moderate risk of reoffending in the future given his relative

youth, his deviance, and his capacity to groom victims.

Doctor Beech identified the importance of the respondent being

supported in developing adult relationships and that he would

be assisted by stable accommodation, work, and appropriate

social engagement.

Doctor Beech has highlighted the importance for the respondent

that he should not form any relationships with minors, and

that the monitoring should be addressed at ensuring that the

respondent's ability to associate with young males is

restricted.

In oral evidence, Dr Beech considered that 10 years was an

appropriate time for the supervision order.  Because the

respondent's history showed him as an extrafamilial child sex

offender, Dr Beech stated that placed him in the category of sex offenders who are most likely to continue offending despite advancing years.  Although there is no exact science about the period of the detention order, Dr Beech noted that it had to be sufficiently long to cover a period of time where the respondent might be placed in a position where he was affected by the factors that put him at risk such as feeling isolated, or stressed.

Doctor Moyle also supported the making of a supervision order

for a period of 10 years, and agreed with Dr Beech that

because of the respondent falling into the category of

extrafamilial child sex offender against male victims,

disregarding personal characteristics, he was in the category

of sex offender that is most likely to reoffend.

Doctor Moyle considered that if the respondent has stable

accommodation and employment and adult company on his release,

his risk of reoffending will lessen from a moderately high

risk to a moderately low risk.

Doctor Moyle noted that with supervision and stable lifestyle,

with the supports Dr Moyle has indicated are essential for the

respondent, his risk of reoffending against youthful males

will lessen with each year after release that he does not

reoffend.

Although counsel for the Attorney-General and the respondent

both submit in favour of the supervision order that has been

made Exhibit 5 on the hearing of this application, I cannot

make any order in this matter unless I am satisfied of the

matters that are stipulated in the Act.

I can make a decision that I am satisfied the respondent

is a serious danger to the community in the absence of a

Division 3 order only if I am satisfied by acceptable cogent

evidence and to a high degree of probability that the evidence

is of sufficient weight to justify the decision.  I am

required to have regard to the matters that are set out in

section 13 subsection (4) of the Act.

Those matters have been addressed in detail in the material

that is relied on by the Attorney-General on this application.

The evidence of Drs Grant, Beech and Moyle is acceptable and

cogent satisfies me to the high degree of probability that is

required under the Act that the respondent's moderate risk of

sexual reoffending, unless appropriately supervised, is an

unacceptable risk in terms of section 13 subsection (2) of the

Act.

In light of the psychiatric evidence, I am also satisfied that

appropriate conditions can be formulated for a supervision

order that will address the need to ensure the adequate

protection of the community, and that a supervision order

should be made for a period of 10 years.

I therefore make an order in terms of the draft initialled by

me, and placed with the file.

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