Attorney-General for the State of Queensland v Riley

[2021] QSC 314

SUPREME COURT OF QUEENSLAND

CITATION:

Attorney-General for the State of Queensland v Riley [2021] QSC 314

PARTIES:

ATTORNEY-GENERAL FOR THE STATE OF QUEENSLAND

(applicant)

v
KANE LOUIS RILEY

(respondent)

FILE NO/S:

BS 2356 of 2019

DIVISION:

Trial Division

PROCEEDING:

Application

ORIGINATING COURT:

Supreme Court of Queensland

DELIVERED ON:

8 November 2021 (ex tempore)

DELIVERED AT:

Brisbane

HEARING DATE:

8 November 2021

JUDGE:

Applegarth J

ORDER:

1.   The suspension order made on 1 July 2019 be rescinded.

2.   The respondent be detained in custody for an indefinite term for care, control or treatment.

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 was the subject of a supervision order made on 1 July 2019 under the Dangerous Prisoners (Sexual Offenders) Act 2003 (DPSOA) - where the respondent breached the supervision order by using an unauthorised mobile phone device and committing serious offences shortly after his release – whether adequate protection of the community can ensured by a supervision order with which the respondent is likely to comply – whether the supervision order should be rescinded and a continuing detention order made

COUNSEL:

M Maloney for the applicant
C Reid for the respondent

SOLICITORS:

Crown Solicitor for the applicant
Legal Aid Queensland for the respondent

1. The respondent concedes that he contravened the requirements of the supervision order to which he was subject.  The Attorney-General has applied under section 22 of the Act for a rescission of the supervision order made by Justice Mullins on 1 July 2019.  The alternative would be for the supervision order to be amended and to be for a duration of 10 years.  However, the applicant Attorney-General argues that, on the evidence before me, the respondent has been unable to discharge the onus that is imposed upon him under section 22 by demonstrating that, on the balance of probabilities, adequate protection of the community can be ensured, despite his contravention. 

2. There is no real issue as to the legal principles governing an application of this kind.

3. In this matter the issue is not so much whether a supervision order, if complied with, might be apt to reduce the risk of the respondent committing further online offending, or to reduce the risk of his having contact with victims and offending against them, to an acceptable level.  The issue is the likelihood that the respondent will comply with a supervision order.  The fact that he breached the supervision order in the way which he did raises significant concerns about his possible determination to access sexual material online and to access potential victims. 

4. I turn to the contraventions in question.  This arises against the background of the offences which brought the respondent before courts in 2014 and later.  The respondent is currently 25 years old.  He was convicted in 2014 on charges of attempting to procure sexual acts and possessing child exploitation material.  That offending commenced when the respondent was a 16 year old juvenile, but it continued after his arrest as a 17 year old adult.  A disturbing matter is the parallels between his offending many years ago when he was a juvenile and the behaviour which he engaged in upon release on a supervision order.  He was convicted again in 2015.  But, by then, his offending had escalated to maintaining an unlawful relationship with a child. 

5. Dr Beech describes the respondent’s offending as predatory, coercing or manipulating female minors.  His past victims were between the ages of 12 and 16.  He would prevail upon them to send him images and he would threaten them and coerce them. 

6. The alleged contraventions occurred not long after his release on a supervision order.  If the supervision order was not effective to stop offending, then it was expected that its ineffectiveness in that regard probably would be shown early in its operation.  It was, however, effective to prevent more serious offending than occurred. 

7. Unsurprisingly, the respondent was subject to various directions about possession of telephones and other devices with an internet capability and about contact.  He was inducted into the program on 11 July 2019.  By 21 September 2019, detectives had received anonymous information about the respondent.  There were allegations that he had used his then partner’s Facebook to procure an image of a child’s vagina.  The respondent claimed to be concerned about a rash on a child’s vagina.  He requested a photo of another child’s vagina in order to compare that to see whether his alleged niece required medical treatment. 

8. Fortunately, the respondent was kept under surveillance.  On 21 September 2019, he was observed at a shopping centre.  He was in the company of his girlfriend, two of her siblings who were quite young, between three and four, and another male.  It was a matter of concern that he was in contact with, or at least in the presence of, young children.  That led to inquiries, and CCTV footage revealed the respondent to be in possession of a smartphone.  He had not disclosed any such device to QCS.  Further inquiries and investigations led to search warrants being executed and a smartphone located within his residence.  He initially denied any knowledge of it, but then admitted that he was the user of it.  Forensic examination of that device revealed multiple conversations via Facebook and RandoChat applications.  These involved conversations, including threats or requests for images of vaginas.  The police forensic officers who examined that material also located multiple images of female genitalia alleged to have been sent by the recipients of the respondent’s messages. 

9. Understandably, the respondent was breached.  He was the subject of charges which progressed through the criminal justice system.  They were serious offences and serious breaches.  He has been punished for them and remains in custody, with a full-time release date later this month. 

10. The applicant’s position is, as I said, that the evidence is such as to not discharge the onus.  I have had the advantage of reading the reports of Dr Beech and Dr Timmins and hearing their evidence in court today.  I have already summarised parts of Dr Beech’s comprehensive report.  Dr Beech remarks upon the fact that the respondent underwent a medium-intensity sex offender program in 2017, he was released back into the community pursuant to the supervision order and the contravention only came to light somewhat fortuitously because of the intensive close surveillance and – these are my words, not Dr Beech’s – the chance observation of the phone.  That phone had been organised by the respondent with a female who had been in prison and with whom he had some association. 

11. The respondent’s history has been the subject of past reports and decisions.  He appears to have sustained some head injury.  In any case, he has some mild neurocognitive disorder, and there are questions about his intellectual functioning.  On the one hand, his predatory, planned, manipulative communications show a degree of intelligence.  I do not attempt to make any assessment as to his intelligence.  That is the subject of consideration by people with expertise in the field.  What is apparent, according to Dr Beech, and I accept his opinion, is that the respondent has poor problem solving abilities and displays poor judgment. 

12. The obvious concern is whether the respondent has sexual paraphilia, including paedophilia.  His earlier offending involved post-pubescent girls.  However, the child exploitation material has included younger children.  There was a concerning request for an image of the vagina of a young child.  This all suggests a level of sexual pre-occupation and, as Dr Beech says, the use of sexual offending to deal with aversive emotions and stress.  There is evidence of what Dr Beech describes as a sexualised attraction to manipulating female minors. 

13. In Dr Beech’s opinion, the risk of reoffending in that sexual way with a minor is high.  Dr Beech has not changed his underlying diagnosis or assessment of risks since 2019.  What has changed is Dr Beech’s opinion about the ability of a supervision order to reduce the risk.  Dr Beech defines the issue, and I think Dr Timmins accepts this, as whether a supervision order can moderate the risk.  I will not delay to analyse what kind of offending involves the highest risk.  There are, as has been acknowledged in the evidence today, different levels of risk between accessing child exploitation material and having contact with others online and requesting images from them, either by persuasion or threats and coercion.  The risk of those kind of offences would seem to be higher than the risk of having actual physical contact with a victim and committing a direct sexual offence against the victim.

14. Dr Timmins identified the matter well, if I may say so, when she identified the risk that if he does offend in the sexual manner, it is likely to initially be via by the internet where the respondent will hide behind anonymity in order to feel powerful and exploit those who are younger, mainly 12 to 15 year old females.  Dr Timmins thought, in the light of his past conduct, including the conduct which amounts to the contraventions, that the respondent will groom those young people and use psychological coercion in order to video them or gain naked photographs of them or young relatives.  So the immediate risk is not opportunistically committing a sexual offence against an individual with whom he has had no prior contact. 

15. There may be some period of communication before obtaining naked photographs of those children which would be a serious sexual offence.  And then there would be the risk, perhaps not as high, that that would progress into a “relationship”, perhaps a very short-lived one, that may be of some duration with an underage female and carnal knowledge.  Although there is that period between initial contact via the internet and possible physical sexual offences, one could not be sure that the period would be a prolonged one and long enough to allow his use of the internet and his communications to come to light.  I do not want to overstate the risk, but nor do I wish to understate it. 

16. Dr Beech identified steps that might be taken to reduce the risk of further sexual offending.  Those interventions included participation in the high-intensity sex offender program, focused individual therapy looking at deviant sexual behaviour, and libido reducing medications.  As to the last of those matters, Dr Beech fairly identified, and Dr Timmins agreed, that there are issues concerning consent, and the respondent may not be well-advised to undergo those medications at his age because of their long-term health consequences.  One cannot be confident that he would take those medications so as to have the benefit of their reducing his libido. 

17. As to focused individual therapy, there is no contest that it would be very helpful in focusing the respondent on his deviant patterns and exploring his thoughts.  It would be something that could not be achieved in a group therapy such as the HISOP program.  So early access to that focused individual therapy in the community might tend towards making a supervision order.  There is much greater access to such focused individual therapy if the respondent was to be in the community.  The issue, however, remains whether that individual therapy would do the good which one hopes it would in time enough that he is not at an unacceptably high level of committing a serious sexual offence in the meantime. 

18. I immediately recognise that the respondent’s maturation, his reasonably good behaviour in prison, the fact that he is working well in prison, and the insightful material in his program which he has written in the past about risk factors and the like could all come together to reduce the risk of a repetition of the behaviour which was engaged in in 2019.  One would think and hope that the period of detention over the last couple of years has caused the respondent, even with his cognitive impairment, to reflect upon the errors of his ways.  But the future plan that he drafted in 2017 was not acted out in 2019.  Unfortunately, he has not been involved in programs over the last couple of years, and so I cannot have the confidence that that kind of future plan is front of mind or is not something which is rather rehearsed. 

19. In any event, I will give him the benefit of the doubt and assume that if he had given evidence today, he would have given evidence along those lines about the support which is on offer to him and strategies that he would adopt.  There are other things in his favour, including the family support which he enjoys.  There is not currently a request for an accommodation assessment.  He has had family support in the past and I assume that it will continue.  He was able to live at his father’s home which had the advantage of ensuring that he did not spend any substantial time in the precinct with the downside of coming into close contact with other sex offenders. 

20. In his evidence today, Dr Beech developed some of the points made in his report.  He identified the respondent as having a high risk of reoffending across the board.  There would be different assessments in relation to particular offences.  Dr Beech thought that the HISOP program would enable the respondent to look at his sexual offending.  There would be certain benefits of that group dynamic which he could not get through weekly individual treatment in the community.  But the HISOP program has its limitations in not exploring matters that could be explored in individualised treatment.  Reference was also made in the material to a different program which is adapted to individuals with some cognitive impairments.  It is less intensive than the HISOP program.  It would be a matter for the authorities to assess which program he would be best suited to after he did the Getting Started program and after the authorities looked at his history. 

21. Dr Beech acknowledged under cross-examination that the supervision order would reduce the opportunity for the respondent to engage in the pattern of offending which he had committed in the past.  It would help to stop, as it were, hands-on offending.  Dr Beech acknowledged the benefits of individual therapy in the community in terms of greater access.  He also acknowledged that the respondent’s strong family support put him in a different position to many sex offenders under this Act. 

22. Still, there remains the problem that the support which the respondent has and might be expected to continue to receive from his family can provide no assurance that he will not manage to get another phone.  The respondent did so last time in a determined way.  This is no criticism of the respondent’s family. They did not detect his use of that phone in contravention of his orders.  I might add, the respondent did not, after some reckless behaviour, realise the errors of his way and admit that he had been using it to his family or a case manager or anyone else.  He continued to use the phone until it was detected and its contents were analysed. 

23. Dr Timmins also provided a substantial report identifying the risks involved.  She confirmed in her oral evidence today that the risk of further offences of a sexual kind would be high if there was no order.  She reflected upon the difficulties and frustrations which the respondent has had in past relationships.  She identified certain positives of his engagement with a forensic psychologist and a psychiatrist in the community.  He did not abuse substances upon his release.  However, she identified in her report inconsistencies in his story and some minimisation and externalisation of blame. 

24. As Dr Timmins observed, the respondent has shown that he can return to sexual offending despite the existence of an order.  The offending was quickly detected and he was returned to custody.  Dr Timmins thought that he may return to sexual offending if he experiences negative emotions and becomes angry and frustrated, low in mood, or feels rejected, and those triggers may be within a relationship or within the family.  Dr Timmins remarked upon the respondent’s superficial insight into his offending behaviour.  Although he completed some programs in custody, including the Getting Started program, a medium-intensity and a maintenance program, it was not obvious that those had enduring effects. 

25. Dr Timmins in her report thought that the respondent’s risk might be modified under a supervision order and fall into the moderate risk category.  However, Dr Timmins was alert to the same issue that Dr Beech identified, and that is not whether the supervision order, if observed, would have that affect, but whether the respondent was likely to comply with it.  A concern which she expressed in her evidence-in-chief, which I accept, is his past disregard of community orders and the fact that the contraventions in question here only came to light because of intensive surveillance. 

26. I should add that if I was to make a supervision order, which I am not inclined to, I would expect there to be a high level of surveillance as there was on the last occasion.  But a high level of surveillance, as good as it may be, only has some prospects of detecting contraventions.  I would think it would have some reasonable prospect of monitoring movements and ensuring that the respondent did not come into physical contact with victims;  but it does not amount to constant surveillance, and the respondent has the ability to conceal smartphones and the like.  There is the risk that he will engage in very similar behaviour to the behaviour he engaged in on the last occasion. 

27. As I said, Dr Timmins remarked that although initially offending might be by way of the internet, things could develop quickly.  The respondent has a history of deceit.  There was an observation about diverting medication in custody.  I do not place too much store on that.  But the respondent is someone who has sufficient intellectual ability to subvert orders.  Again, Dr Timmins identified the concerning aspect of the request for images of a three year old’s vagina which raises a concern about some paedophilic intent.  Dr Timmins broadly agreed with Dr Beech’s assessment about the benefits and limitations of the interventions that he had identified. 

28. So the position is reached, both on the expert evidence and on the submissions, that a supervision order would, if it was complied with, reduce the risk to an acceptable level.  But there is a sufficient concern about compliance.  I conclude that the respondent has not discharged the burden.  Mr Reid of counsel, who assisted me, frankly acknowledged the problem which the respondent had in that regard arising from his past disregard of orders.  In the end result, the offending which gave rise to the contraventions occurred notwithstanding a supervision order.  If released on a supervision order, the respondent might well comply with it in a way which he has not in the past, based on the personal deterrence that has arisen from his past contraventions and some maturation, and displays of reasonable behaviour and building up positive relationships in a work environment in jail.

29. However, I do not have sufficient assurance that he is likely to comply with those orders so as to reduce the risk to an acceptable level.  As I have perhaps alluded to or said more than once, the risk is not simply one of someone in breach of the supervision order downloading child exploitation material or having unauthorised contact with teenagers or others online.  The risk is that the respondent’s exploitation of those relationships will enable a “relationship” to be formed and more serious sexual offending to occur at the hands of someone who has some significant sexual pre-occupation and evidence of sexual deviance. 

1. In circumstances in which the respondent has not discharged the onus upon him under section 22 of the Act, the appropriate order is to rescind the supervision order made on 1 July 2019, and to order that he be detained in custody for an indefinite term for care, control or treatment.  I make that order with some reluctance and regret, but I think it is the order that is dictated by the evidence. 

2. The respondent has spent a substantial part of his adult life in custody.  That itself is a matter of concern because of his lack of opportunity to form and maintain positive relationships and to have non-coercive sexual relationships with other adults. 

3. I do not operate on the basis that he inevitably will commit the same offences and contraventions that he did on the last occasion.  But the significant risk of his doing so is evident and precludes him from discharging the onus at this stage.  I wish to emphasise that the reason for making an order that he be detained in custody is not simply a protective one to limit his access to victims.  Being detained in custody risks the respondent being institutionalised.  It delays his engagement with individual therapy in the community which the doctors and anyone who is familiar with this case would identify as essential to reduction of his risk of further sexual offending and insight into his thoughts and things that can be done to alter his behaviour and cope with stressors. 

4. I had hoped that the evidence might have enabled a supervision order to be made with intensive individualised treatment upon his release.  But I am afraid that, even with family support, a suspension order is not sufficient to reduce the risk to an acceptable level. 

5. It is unfortunate, to say the least, that the consequence of my order is that he will not be able to embark on the HISOP program until well into next year.  The evidence before me indicated that he would not be considered for entry into that program until mid to late 2022.  It is a lengthy intensive program.  I am not overstating the benefits of the HISOP program.  It may give him some insight into his condition and what he can do to reduce the risk of committing further sexual offences.  However, it is one of a number of strategies that seem necessary. 

6. It would be – I will use the word – “disgraceful” if someone of his age who, for various reasons, has not accessed the HISOP or a similar program to date and over the last few years was delayed entry into it.  I am assuming that the respondent will be prepared to undergo the Getting Started program.  I am not dictating that the respondent do the HISOP program.  It may be that the Getting Started program, in conjunction with the considered reports of Dr Beech and Dr Timmins, will suggest that his treatment would be better advanced by embarking upon the Inclusion of Sexual Offending Program for men who are assessed as having intellectual and socially low functioning.  That is for others to decide.  But, unfortunately, that ISOP program is forecast to complete in May 2022.  It is not a rolling group, and the planning for future programs will only commence in early 2022, with no confirmed commencement dates at this time.

7. It is unfortunate, to say the least, that the respondent missed the boat, if I can use that expression, for inclusion in the HISOP or the ISOP program. 

8. The respondent has not undertaken the Getting Started program because he expected to be released later this month and so declined it, as he said, at this time.  I do not read that as signalling that he declined to undergo it in the near future.  The Court’s expectation is that the respondent will undergo the Getting Started program and gain access to a suitable program in custody, whether that be the HISOP program or the ISOP program, because the effect of my order is to deny the respondent the opportunity to undergo individualised treatment in the community. 

9. I also expect – and there would need to be a very good reason why this would not be done – that he be given access to individualised treatment in custody.  I acknowledge the difficulties around access and that  there is less access to  individualised treatment in custody than in the community.  However, Dr Beech, Dr Timmins and anyone else who is familiar with this case would urge the authorities to ensure that the applicant – not having had sufficient individualised treatment in custody and not having engaged in a program so far – gets both those things without delay. 

10. I want to emphasise that I am making a continuing detention order not so that the respondent simply be detained in custody.  He should be detained in custody primarily for treatment.  If he does not get that treatment soon, consistently, and at a level and of a quality that enables him to make progress, then if I am sitting on this case in 12 months’ time reviewing it, he will get a supervision order, and the court will be expressing its regret that someone who is still a relatively young man with significant treatment needs is not getting whatever individualised treatment he can in custody. 

11. I will make an order in terms of the draft which was handed to me.  I am satisfied that the contraventions occurred and I order that the supervision order be rescinded.  

12. I further order in terms of the draft that the respondent be detained in custody for an indefinite term for care, control or treatment.  They are disjunctive, but my reasons will make clear that the purpose of detention in custody is primarily for care and particularly for treatment.  I will direct that a copy of Dr Timmins and Dr Beech’s reports are sent to the Corrective Services authorities who will be in charge of the respondent’s care, control and treatment, along with a copy of these reasons once they become available.