Attorney-General (NT) v Poulson
[2023] NTSC 93
•11 October 2023
CITATION:Attorney-General (NT) v Poulson [2023] NTSC 93
PARTIES:ATTORNEY-GENERAL OF THE NORTHERN TERRITORY
v
POULSON, Frederick
TITLE OF COURT: SUPREME COURT OF THE NORTHERN TERRITORY
JURISDICTION: SUPREME COURT exercising Territory jurisdiction
FILE NO:2 of 2022 (22238414)
DELIVERED: 11 October 2023
HEARING DATE: 18 May 2023
JUDGMENT OF: Burns J
CATCHWORDS:
SERIOUS SEX OFFENDERS ACT – Application for final supervision order – Assessment as to whether the respondent is a ‘serious danger to the community’ – Unacceptable risk of the respondent committing a serious sex offence unless subject to supervision - Court satisfied – Final supervision order made
Serious Sex Offenders Act (NT) ss 4, 6, 8, 13, 14(2), 14(3), 18, 19, 22, 31(1), 58, 63(1), 63(2), 63(3).
Second Reading Speech by the Attorney-General Serious Sex Offenders Bill 2013
Briginshaw v Briginshaw [1938] HCA 34; 60 CLR 336, Tillman v Attorney-General for New South Wales [2007] NSWCA 327 referred to.
REPRESENTATION:
Counsel:
Applicant:M Penman
Respondent: J Stirk
Solicitors:
Applicant:Solicitor for the Northern Territory
Respondent: Povey Stirk
Judgment category classification: B
Judgment ID Number: Bur2315
Number of pages: 35
IN THE SUPREME COURT
OF THE NORTHERN TERRITORY
OF AUSTRALIA
AT DARWINAttorney-General (NT) v Poulson [2023] NTSC 93
No. 2 of 2022 (22238414)
BETWEEN:
ATTORNEY-GENERAL OF THE NORTHERN TERRITORY
Applicant
AND:
FREDERICK POULSON
Respondent
CORAM: BURNS J
REASONS FOR JUDGMENT
(Delivered 11 October 2023)
Introduction
On 9 March 2010, the respondent, Frederick Jabanunga Poulson, was sentenced to 9 years imprisonment for offences of engaging in sexual intercourse without consent. Earlier, on 15 May 2009, he had been sentenced to a total of 4 years 6 months imprisonment for offences of aggravated assault and abducting a child under 16 years of age. These sentences were structured such that the total term of imprisonment that the respondent was required to serve was 14 years, 7 months and 14 days. The commencement date of these sentences was 26 July 2008. A 10 year non-parole period was fixed making him eligible for release from prison from 26 July 2018. The respondent was not successful in applying for parole. The sentences imposed expired on 11 March 2023.
By an Originating Motion filed 9 December 2022, the Attorney-General of the Northern Territory (the applicant) sought orders against the respondent under the Serious Sex Offenders Act 2013 (NT) (the Act). The applicant’s entitlement to bring these proceedings is found in s 23 of the Act, which provides that the Attorney-General may apply to this Court for a continuing detention order or a final supervision order in relation to a qualifying offender. The Originating Motion initially sought a continuing detention order, but at the hearing of the application this was abandoned and the applicant sought a final supervision order.
A “qualifying offender” is defined in s 22(1) of the Act, relevantly for present purposes, as a person who has been convicted of a serious sex offence and is under sentence of imprisonment for that offence. A “serious sex offence” is defined in s 4 of the Act as an offence against a provision listed in Schedule 1 to the Act. It was accepted that at the time the Originating Motion was filed the respondent was a qualifying offender for the purposes of the Act.
Upon an application by the applicant on 6 March 2023 an interim continuing detention order under s 8(2)(b) of the Act was made by Kelly J. The respondent did not oppose the making of that order. That order commenced on 11 March 2023, the day the respondent’s sentence of imprisonment expired and continued in force until 9:30am on 13 March 2023. The reason for that order being sought was that arrangements had been made by Northern Territory Community Corrections to house the respondent in accommodation on the grounds of the Alice Springs Correctional Centre but outside the prison area upon his release, but those arrangements could not be put in place until 13 March 2023.
An interim supervision order under s 13(2)(b) of the Act was also made by her Honour commencing at 9:31am on 13 March 2023, which remains in force until the present application for a final supervision order is determined. It is unnecessary to set out the requirements of the interim supervision order.
A final supervision order is an order that the person the subject of the order (the supervisee) must comply with the requirements of the order for a stated period of at least 5 years.[1] Such an order must contain specified compulsory requirements as set out in s 18 of the Act:
18 Compulsory requirements
(1) A court making a supervision order must include in it requirements that the supervisee:
(a)must not commit:
(i)a serious sex offence; or
(ii)an offence of a sexual nature; and
(b)must report to a parole officer as directed by a probation and parole officer; and
(c)must receive visits and accept communications from a probation and parole officer as directed by a probation and parole officer; and
(d)must give to a probation and parole officer information about the supervisee's place of residence and place of employment or education as directed by a probation and parole officer;
(e)must not leave, or stay out of, the Territory without the permission of a probation and parole officer; and
(f)must comply with any directions given to the supervisee under s 20, other than directions about matters stated in the order under subsection (2).
(2) The court may state in the order matters about which a probation and parole officer cannot give the supervisee directions.
(3) A court amending a supervision order cannot amend it to remove a requirement mentioned in subsection (1).
A final supervision order may also include any other requirement on the supervisee that the Court considers appropriate.[2]
This Court may make a final supervision order in relation to a qualifying offender if satisfied that the qualifying offender is a serious danger to the community.[3] The requirement that the Court be satisfied that a qualifying offender is a serious danger to the community is addressed in s 6 of the Act:
6 Serious danger to the community
(1) A person is a serious danger to the community if there is an unacceptable risk that he or she will commit a serious sex offence unless he or she is in custody or subject to a supervision order.
(2) In deciding whether a person is a serious danger to the community, a court must have regard to the following:
(a)the likelihood of the person committing another serious sex offence;
(b)the impact of serious sex offences committed, or likely to be committed, by the person on:
(i)victims of those offences and the victims' families; and
(ii)members of the community generally;
(c)the need to protect people from those impacts.
A “serious sex offence” is defined in s 4 of the Act as:
serious sex offence means any of the following:
(a) an offence against a provision listed in Schedule 1, subject to any qualification specified opposite the provision;
(b) an offence against a provision that was listed in Schedule 1 at the time the offence was committed;
(c) an offence substantially corresponding to an offence mentioned in paragraph (a) or (b) against:
(iii)a law that has been repealed; or
(iv)a law of another jurisdiction (including a jurisdiction outside Australia);
(d) an offence of attempting, or of conspiracy or incitement to commit, an offence mentioned in paragraph (a), (b) or (c).
It is unnecessary for present purposes to list those offences found in Schedule 1 to the Act. It is sufficient to note that the offences listed are both child sexual offences and general sexual offences.
The standard and onus of proof in determining whether a qualifying offender is a serious danger to the community are addressed in s 7 of the Act:
7 Standard and onus of proof
(1) A court must not decide that a person is a serious danger to the community unless it is satisfied, to a high degree of probability, that there is acceptable and cogent evidence of sufficient weight to justify the decision.
(2) The Attorney‑General has the onus of satisfying the court that the person is a serious danger to the community.
In determining whether to make a supervision order in relation to a qualifying offender, the Court must have regard the matters set out in s 14 (2) to (3) of the Act:
(2) The court must have regard to the following:
(a)as the paramount consideration – the need to protect:
(i)victims of serious sex offences committed, or likely to be committed, by the person; and
(ii)the victims' families; and
(iii)members of the community generally;
(b)as a secondary consideration – the desirability of providing rehabilitation, care and treatment for the person.
(3) In considering the need for protection mentioned in subsection (2)(a), the court must have regard to the following:
(a)the likelihood of the person committing another serious sex offence;
(b)whether it will be reasonably practicable for the Commissioner of Correctional Services to ensure that the person is appropriately managed and supervised as mentioned in s 63;
(c)whether adequate protection could only reasonably be provided by making a continuing detention order in relation to the person.
Where a final supervision order is made, the Commissioner of Correctional Services (the Commissioner) must ensure that the supervisee is managed and supervised by probation and parole officers “in a way that is appropriate”.[4] In deciding what is appropriate, the Commissioner is governed by s 63(2) and (3) of the Act:
(2) In deciding what is appropriate the Commissioner must have regard to the following:
(a)as the paramount consideration – the need to protect:
(i)victims of serious sex offences committed, or likely to be committed, by the supervisee; and
(ii)the victims' families; and
(iii)members of the community generally;
(b)as a secondary consideration – the desirability of providing rehabilitation, care and treatment for the supervisee.
(3) In considering the need for protection mentioned in subsection (2)(a), the Commissioner must have regard to the need to ensure that the supervisee's compliance with his or her supervision order is monitored and enforced.
The respondent’s criminal history
A useful summary of the respondent’s criminal history is found in the report of Dr Andrew Aboud, a forensic psychiatrist who provided a report dated 19 April 2023 at the request of the plaintiff. I will refer to that report in greater detail below. The summary shows that the respondent has the following convictions:
· 2002 – Stealing, unlawfully damage property, possessed, used or carried a prohibited weapon, enter a building at night with intent.
· 2003 – Assault a female, breach a community service order, use objectionable words in public, resist police.
· 2004 – Unlawfully damage property, drive a motor vehicle while unlicensed.
· 2005 – Assault a female, drive a motor vehicle while unlicensed, breach of suspended sentence order.
· 2006 – Behave in an indecent manner in a public place, disorderly behaviour in a police station, assault police x 2, breach of suspended sentence order x 2, drive unregistered motor vehicle, drive uninsured motor vehicle, drive unsafe motor vehicle, drive a motor vehicle while unlicensed.
· 2007 –Aggravated assault, fail to comply with a restraining order.
· 2008 – Aggravated assault, assault a female, fail to comply with a restraining order.
· 2009 – Abduct a child under 16 years of age, aggravated assault.
· 2010 –Sexual intercourse without consent.
It is appropriate to refer to the particulars of a small number of these offences. On 17 May 2005 the respondent was convicted in the Alice Springs Court of Summary Jurisdiction (as the Local Court then was) of an offence described in his criminal record as “Assault a female” which occurred on 30 March 2004. In his report, Dr Aboud refers to an offence of “Indecent assault of a minor” being dealt with in the Alice Springs Court of Summary Jurisdiction in 2005 but not appearing on his criminal record. It is highly probable that the offence of “Assault a female” on the criminal record is the offence to which Dr Aboud was referring. The facts of that matter are that the respondent was intoxicated and saw a naked three year old girl playing in a yard with her six year old sister. The respondent placed his hand between the top of her legs before stopping and going to a neighbouring property. The older child ran inside to alert her mother, and the respondent left the area. He later attempted to deny what he had done.
The facts relating to the offences of “Abducting a child under 16 years of age” and “aggravated assault” in 2009 are that in July 2008 the victim, a six-year-old girl, was standing alongside her mother’s car at the service station at Wycliffe Well when the respondent, wearing a jacket with the hood up, seized her and ran into the darkness. The mother gave pursuit, and the respondent dropped the child and fled. The child sustained jaw injuries when she was dropped and had to undergo surgery. There was some suggestion that the respondent had been consuming alcohol and had smoked cannabis.
The facts relating to the offence of “Sexual intercourse without consent” for which the respondent was sentenced in 2010 are, as quoted in the sentencing remarks of Southwood J delivered 9 March 2010, as follows:
At 7:10pm on 28 June 2008, the victim was riding her bicycle in Tennant Creek. As she rode through an unlit vacant paddock on the corner of Shamrock and Ambrose Streets, she was grabbed suddenly from behind by the offender, who was unknown to her. The offender placed one hand around her neck, covered her eyes with his other hand and dragged her from her bicycle. He held her by the throat and said, “I’ve got a knife you’d better not sing out.”
The offender dragged the victim into an unlit alleyway adjoining the paddock, where he threw her to the ground on her back. He pinned the victim down with his body by laying down on her with his face right above her face and her left arm held to the ground above her head.
The offender then removed the victim’s pants and underpants. He then pulled his own pants to his knees and penetrated the victim’s vagina with his penis.
The victim cried out for help and the offender covered her mouth with his hand and bit her on both her cheeks, punched her in the left shoulder and attempted to hit her in the face. The offender also kissed the victim on the mouth and neck.
After about 10 minutes the offender withdrew his penis but remained lying on top of the victim. The victim attempted to get up but the offender prevented her from doing so. He said ‘Stay there you bitch.’
The offender penetrated the victim’s vagina a second time. He did so for a further 10 minutes. At some time during the assault the victim kicked the offender twice to the groin causing him to stock (sic) the attack and fall beside the victim.
The victim picked up a rock as she lay on the ground and threw it at the offender, however, it missed. The victim then threw some debris at the offender, which struck him in the stomach. The victim then gathered her clothes, ran to her bicycle, redressed and rode home.
Evidence for the applicant
The evidence for the applicant consisted of:
· an affidavit promised by Louise Ellen Ogden on 24 February 2023, together with annexures, supplemented by a report pursuant to s 88 of the Act prepared by Ms Ogden and dated 9 May 2023. Ms Ogden was subject to cross-examination;
· an affidavit promised by Anthony Ross Whitelum on 9 December 2022 together with annexures;
· a report by Dr Jeremy O’Dea, forensic psychiatrist, dated 18 April 2023; and
· a report by Dr Andrew Aboud, consultant forensic psychiatrist, dated 19 April 2023.
Ms Ogden is the General Manager, Community Corrections with the Northern Territory Correctional Services within the Department of the Attorney-General and Justice. Ms Ogden referred to independent psychiatric reports prepared in 2018 and 2019 regarding a then proposed release of the respondent to the Ali Curung community. That proposal did not eventuate but both psychiatrists agreed that the respondent was a moderate to high risk of sexual reoffending and endangering others. I will refer to those reports later in these reasons. Ms Ogden stated:
The authors of these reports identify Mr Poulson’s ‘supportive and permissive attitude towards sexual violence…sexual interests in young children and cognitive distortions’ as continued precursors to ‘high risk behaviours’. Additionally, both reports note the impact a return to alcohol would have on Mr Poulson’s impulsivity and serve to further escalate the risk of re-offending and the seriousness of such re-offending.
(Footnotes omitted)
The respondent’s progress in custody
Ms Ogden stated that during his period in custody, the respondent completed the following programs:
a) Sexual Offender Treatment Program in 2014;
b) Intensive Alcohol and Drug Treatment Program in 2017;
c) Sexual Offending Maintenance Program in 2018; and
d) Alternatives to Violence Program in 2021.
The Summary to the Completion Report for the Sexual Offender Treatment Program in 2014 states:
Mr Poulson commenced the SOTP on 3rd November 2013, and was a regular attentive participant who attended the group sessions as required. He blamed his offences on external factors, such as over consumption of alcohol, the victim and so forth. After some months Mr Poulson became a worthwhile contributor in each session. He readily vocalised the concepts that were being taught in the program, and how those concepts related to his own offending behaviour.
During the exit assessment Mr Poulson still denied he had done anything wrong and he asserted that the victim and three police were corrupt. He said his DNA was planted and the police wanted money from him and had visited him in jail requesting money. Mr Poulson said that some kids want sex and the others who say “No” do not understand. The Court transcript noted “The victim attended the Tennant Creek Hospital where a Sexual Assault Identification Kit was conducted.” This is where the original DNA was found. Mr Poulson also said he had engaged in sexual offending activities that were a “little” violent in Ali Curung and had not been caught or charged and this requires further investigation. A previous marriage was also marred by violence.
Later in the Summary, it was stated:
Mr Poulson was able to reflect back what was presented in the SOTP, but still had trouble with his thoughts and attitude towards young girls. Even though Mr Poulson said he enjoys “big woman” he also said he found that violent sex with force against young girls who wanted to act like adults and see what sex was about a satisfying experience.
Under the heading “Recommendations/risk reduction”, it was stated:
The post-program assessment indicated no real change in his pre-program assessment in the risk that Mr Poulson still posed. However, it is recommended that if he was ever to be released, he be given support for his alcohol addiction as well as continued professional support for his sexually deviant thinking, anger and relationship issues…. If released and before he went to Ali Curung it would be preferable that he resides in Alice Springs where the infrastructure would be more supportive of his needs, and better able to monitor his behaviour…. Mr Poulson will require the services of a Senior Clinician who will assist in the monitoring of a suitable maintenance post release treatment. A Senior Clinician would draw up a treatment program with Mr Poulson before he returns to Ali Curung and refer as appropriate.
It is recommended that Mr Poulson attend an intensive alcohol program while in jail and continue to receive any updated treatments for sex offenders if the system allows for such possibilities… Mr Poulson should be referred for sessions with a psychiatrist who is experienced at working with sex offenders.
The Completion Report for the Intensive Alcohol and Drugs Program which the respondent completed in 2017 stated that the respondent was initially a quiet participant in the program, but as he spent more time in the program he became more comfortable with the other group members and was prepared to contribute to and discuss topics with the group. He was able to link his offending into the topic material. The respondent identified his risk factors as drinking, being lonely and getting angry. The Completion Report states that the respondent took responsibility for his offending, accepting that he was responsible for his actions. The respondent planned to abstain from alcohol when he was released.
The Completion Report stated that the respondent planned to return to Ali Curung upon release, to find work, and to spend time getting to know his family again. The respondent stated that he would avoid road houses near Ali Curung and would speak to Elders if he felt like drinking.
The respondent was involved in a number of incidents in custody while serving his sentence. They appear to have been relatively minor, and became less frequent as his sentence progressed.
The respondent has had extensive employment in custody. He has worked since September 2010 in roles such as:
· General Hand, numberplate factory: 22 September 2010 – 5 October 2010;
· Foreman, numberplate factory: 5 October 2010 - 5 December 2014;
· General Hand, facility services: 10 December 2014 – 29 October 2015;
· Cleaning Leading Hand, facility services: 26 October 2016 – 29 January 2017; and
· Reception Cleaner: 10 February 2017 - 10 March 2023.
The respondent has also obtained numerous qualifications and undertaken educational courses while in custody. These include:
a) Construction white card (10 February 2011);
b) Literacy and Numeracy program (April - August 2011);
c) Welding skills (30 July 2012 - 31 August 2012);
d) Small engine maintenance (September - October 2013);
e) First Aid (14 October 2013);
f) Forklift Course (28 October 2013 - 31 October 2013);
g)
Certificate II in cleaning operations (16 February 2015 -
23 March 2015); and
h)
Men’s Financial Capabilities Group (4 December 2018,
11 December 2018 and 21 January 2019).
The respondent’s application for parole
The non-parole period imposed on the respondent expired on 25 July 2018. The respondent subsequently applied for parole. His application was considered by the Parole Board at its meeting on 24 September 2019. By letter dated 30 September 2019 the Parole Board advised the respondent that his application had been unsuccessful as the Board felt that he was unlikely to successfully complete a period of parole supervision. The board noted the respondent’s history of serious offending and lack of suitable post-release plans. At that time, the respondent proposed returning to the Ali Curung community upon the respondent’s release from prison. The Elders of that community had indicated to Correctional Services in April 2019 that they were willing to have the respondent return.
Before considering the respondent’s application for parole, the Parole Board obtained a report dated 4 August 2018 from Dr Danny Sullivan, consultant forensic psychiatrist, and a subsequent report from Dr Mary Frost, psychiatrist, dated 6 August 2019. Both of these reports were annexed to the affidavit of Anthony Whitelum.
After reviewing documentation relating to the respondent and his offending, conducting a mental state examination and interviewing the respondent, Dr Sullivan stated:
[35] Mr Poulson reported developing problems with alcohol in his thirties, although his offending history suggests that this may have actually been in his late twenties. Although details of his alcohol use are vague, he acknowledges onset in adult life of psychological dependence and harmful consequences associated with alcohol use. The appropriate diagnosis is of either harmful pattern of use of alcohol, or of alcohol dependence, as set out in the International Classification of Diseases 11th Revision (ICD-11).
[36] Some features of the offending and Mr Poulson’s attitudes are suggestive of a personality difficulty with dissocial traits, as set out in the ICD-11.
[37] Mr Poulson describes cognitive distortions about sexual attitudes of children and also has reported deviant sexual arousal to violent sex imposed on younger females. His previous offending suggested that factors potentially relevant to his offending included loneliness and negative emotions, relational problems, sexual arousal and intoxication. There is some indication that his maladaptive thoughts have been at least intermittently present and strong enough to lead to high risk behaviours including assault of strangers. In addition the attempted abduction of a prepubertal female stranger, and cognitive distortions about the sexual interest of very young children, raised some concerns about the presence of a paraphilic disorder such as paedophilic disorder.
[38] However there is limited evidence of the persistence, sustained focus or intense patterns of behaviour which would be required to make such a diagnosis. There is no information since incarceration suggesting persistent deviant behaviours or ideation, although incarceration may render assessment of this difficult. Mr Poulson appears motivated not to offend.
[39] There is no history of psychotic illness, significant sustained mood disorder, psychotic illness (sic) or other mental disorder.
[40] There is no indication of cognitive impairment or impairment of intellectual functioning.
While acknowledging that assessment of the risk of future offending is problematic, based upon evidence from risk assessment tools and his clinical judgment Dr Sullivan considered that the respondent’s overall risk of further sexual offending was in the moderate to high range.
Dr Sullivan stated that upon release the respondent would require assistance with accommodation, meaningful occupation including employment, and reintegration. If released on parole, there were significant problems with the respondent returning to Ali Curung relating to opportunities for supervision, employment, electronic monitoring and the prevalence of offending in the community. Dr Sullivan stated that the respondent would benefit from ongoing review in the community by an experienced clinician from the Sexual Offender Treatment Program which would enable him to maintain an ongoing focus on risk situations, develop an effective relapse prevention plan in the community, and solve problems which may arise.
Dr Sullivan also opined that the respondent should be reviewed by a local forensic psychiatrist with a view to prescription of medication which may reduce the risk of sexual offending, although this was not a critical factor in his release. The respondent also required further strategies in the community to assist him to remain free of alcohol use.
In her report Dr Frost expressed the opinion that the respondent’s offending behaviour is underpinned by his Alcohol Use Disorder and an Antisocial Personality Disorder. The respondent had been able to draw the connection between his drinking and offending from as early as 2005, but he continued to abuse alcohol. The respondent spoke to Dr Frost about drinking the “good way” rather than expressing a commitment to sobriety. Dr Frost expressed the opinion that without significant supervision and support the respondent would continue to be at risk of endangering others. If the respondent was to return to Ali Curung where a high level of treatment and supervision was not available, he would be at high risk of reoffending.
Psychiatric reports obtained for the present application
A report dated 18 April 2023 was prepared by Dr Jeremy O’Dea for the present application. No issue was taken with the accuracy of the respondent’s history set out in that report. Dr O’Dea noted that the respondent had completed the Sexual Offender Treatment Program in 2013 and had also completed the Intensive Alcohol and Drugs Program. Dr O’Dea interviewed the respondent and also utilised risk assessment tools. Dr O’Dea did not diagnose the respondent as suffering from a major psychiatric illness, but noted the respondent’s extensive history of alcohol abuse and dependence which had been associated with a significant and repeated history of sexual, violent and general offending. The respondent satisfied the psychiatric diagnostic categories of an Alcohol Use Disorder.
Dr O’Dea stated that the respondent’s history of repeated offending behaviours from 29 to 34 years of age, with his ongoing apparent lack of remorse, would point to significant antisocial or dissocial aspects to his overall personality. Nevertheless, Dr O’Dea stated that the respondent’s history of repeated offending behaviour, including apparently escalating sexual offending behaviour, may be best understood in the context of his alcohol abuse, personality and likely sexual deviance, with significant problems controlling his sex drive, at least when intoxicated. The respondent also had apparent ongoing problems with attitudinal issues relating to his offending behaviours, including limited remorse, contrition, empathy and insight. Dr O’Dea went on to state:
91. Whilst I note the coercive and violent characteristics of the sex offending behaviours; and that some of the offences were against pre-pubertal children; I am not in a position at this stage to diagnose Mr Poulson as suffering a specific Paraphilic Disorder, such as Paedophilic Disorder or Sadistic Sexual Disorder.
92. Rather, his overall sex offending behaviours are likely to be best understood in the context of his poor control of his sex drive; together with disinhibition in the context of alcohol intoxication; and with his personality, lifestyle, and lack of empathy for others.
93. As such, whilst he will require to remain totally abstinent from alcohol and illicit substance use in the community in the long term, in order to assist him to better manage his sex drive, and therefore adequately manage and minimise his risk of engaging in further sex offending behaviours in the community in the long term, he may also require additional anti-libidinal medication to adequately and appropriately manage this risk.
Dr O’Dea noted that prediction of the risk of an individual engaging in future sex offending is problematic, but it is generally agreed that the best predictor of future sex offending behaviours is past sex offending behaviours, particularly in the context of ongoing alcohol abuse, personality issues and limited social structure which are significant issues in the respondent’s case.
Dr O’Dea reiterated that the respondent will require total abstinence from alcohol and illicit substance use in the community in the long-term in order to manage and minimise his risk of further sex offending behaviours. Abstinence from alcohol use for adults with an alcohol use disorder can, Dr O’Dea stated, often prove difficult, even with full commitment on behalf of the individual and a comprehensive treatment program in place. The crucial goal of abstinence from alcohol and illicit substance use in the community in the long-term would most likely be achieved by the respondent successfully engaging in ongoing specialised, structured and supervised alcohol and other drug counselling and rehabilitation in the community in the long-term. If abstinence from alcohol use were to prove difficult for the respondent, consideration should be given to the use of available and appropriate medications to assist the respondent in controlling cravings for alcohol. Consideration may also have to be given to the additional use of deterrent and aversive medication.
Dr O’Dea stated that while total abstinence from alcohol use in the community was a necessary intervention in managing and minimising the respondent’s risk of reoffending, and in particular of committing a further serious sex offence as defined in the Act, it may not prove sufficient. Further, while general psychological programs may be indicated for the respondent, it is unlikely that psychological sex offender treatment programs alone will have a significant impact on reducing the respondent’s risk of engaging in further offending behaviours in the community in the long-term, including the risk of committing a further serious sex offence as defined in the Act.
The respondent should also, Dr O’Dea said, be reviewed by a suitably qualified and experienced forensic psychiatrist in the community to monitor his progress and to further consider the nature and extent of the respondent’s sexual deviance in the community with a view to considering the utility of the use of psychiatric medications specifically targeting sex drive as part of an overall treatment program, depending upon the respondent’s progress in the community.
Dr O’Dea considered that the respondent’s risk of engaging in further sex offending behaviours in the community in the long-term, including committing serious sex offences as defined by the Act, would be considered significantly high, particularly if he were to resume alcohol use in the community and return to a relatively unstructured community setting.
By way of describing the level of risk that the respondent presents, Dr O’Dea stated that it is commensurate to that described in Tillman v Attorney-General for New South Wales [2007] NSWCA 327 (Tillman). That case concerned the provisions of the Crimes (Serious Sex Offenders) Act 2006 (NSW), which provided that a continuing detention order could only be made where the Supreme Court was “satisfied to a high degree of probability that the offender is likely to commit a further serious sex offence” if they are not kept under supervision.[5] The issue in Tillman, relevant to the present application, was the meaning to be given to the word “likely” in s 17(3). The appellant submitted that it meant more probable than not. A majority of the Court of Appeal (Giles and Ipp JJA) held that the term denotes a high degree of probability, but not necessarily involving a degree of probability in excess of 50%. I take it from Dr O’Dea’s reference to Tillman that he is satisfied that there is a high degree of probability, but one not necessarily exceeding 50%, that the respondent will commit a further serious sex offence as defined by the act in the future particularly if he were not the subject of the supervision and treatment regime recommended by Dr O’Dea.
Dr O’Dea accepted that if a structured and supervised risk management program were successfully put in place and monitored, and if the respondent was compliant with his treatment regime and remained abstinent from alcohol and other drugs long-term, then his risk of engaging in further sex offending behaviours or of committing a further serious sex offence may be able to be adequately and appropriately managed in the community. Dr O’Dea noted that since his release in March 2023 the respondent had been housed in cottages within the precincts of the Alice Springs Correctional Centre under the Interim Supervision Order, and that such arrangements were likely to adequately and appropriately manage the respondent’s risk of engaging in further sex offending behaviours.
Dr O’Dea stated that any further period in custody is unlikely to significantly alter the respondent’s risk profile and treatment needs on his subsequent release into the community. Dr O’Dea concluded by stating:
110. Mr Poulson’s risk of engaging in further sex offending behaviours in the community, and of committing a further “serious sex offence”, remains long term, and of at least 5 years duration. Therefore, from a psychiatric risk management perspective, any appropriate risk management program implemented should be long term and at least of 5 years duration, and should be regularly monitored, reviewed and modified as appropriate every 6 to 12 months, dependent on his progress.
Dr O’Dea was cross-examined by counsel for the respondent. Dr O’Dea agreed determining a numeric assessment of the risk of sexual reoffending by the respondent was difficult, and that even the use of specific risk assessment tools was not an exact science. It was suggested to Dr O’Dea that the recidivism rates among sex offenders are not significantly higher than for other types of offenders. Dr O’Dea responded:
Look, the situation is it depends on which groups you look at and which statistics you compare. I mean the general recidivism rates for sex offenders in general, you know, can range anywhere between 15 and 25%. And of course, that’s similar to some other groups of offenders. That being said of course, you know, you’ve got to look – I mean you can drill down to more homogenous groups than just general groups of sex offenders, because that’s going to involve all different people for this purpose. If you drill it down to people who commit repeated sex offences against strangers of a sexual deviant nature, for example, in [the respondent’s] case, with the kind of problems that [the respondent has] with substance use and his personality issues and social structures, then the recidivism rate for that, for those group of people, you know, are likely to be much higher.
Dr O’Dea accepted that it was positive that the respondent had been alcohol free for the last 14 years while serving his sentence, and that he had expressed his intention to continue to abstain from alcohol. But the extent to which those circumstances provided comfort to Dr O’Dea that the respondent would not reoffend was limited. As the respondent had probably been consuming alcohol significantly throughout his adult life, he would need to be monitored to ensure that he did not have an underlying sexual deviancy which was not alcohol-related. In addition, abstinence from alcohol can prove very difficult, even where the individual has a commitment to maintain sobriety.
A report dated 19 April 2023 was also prepared by Dr Andrew Aboud for the present application. Dr Aboud considered the respondent’s criminal history at length, and also interviewed the respondent. Dr Aboud noted that the respondent had participated in the Sexual Offender Treatment Program while in prison and had disclosed an enjoyment of violent sex and sex through use of force, together with a desire for power and control, that appeared to be more pronounced when he is intoxicated. Dr Aboud stated that it was of concern that his post-program assessment did not show a reduction in risk compared with his pre-program assessment. Factors impacting his risk of sexual offending were considered to be alcohol intoxication, sexual deviancy and negative affective states, including those associated with difficulties he may have been experiencing in his marital relationship.
Dr Aboud stated that the respondent had, in the course of his interview, denied having made some of the disclosures that he apparently made during the Sexual Offender Treatment Program, including having enjoyed violent and forced sex when intoxicated, thinking about such activity, and believing that young girls wish to have sex. Dr Aboud said that the respondent “retreated into a position of insistence that alcohol intoxication was wholly responsible for his offending”, which reflected his statements when he was commencing the Sexual Offender Treatment Program.
In Dr Aboud’s opinion, the respondent meets diagnostic criteria for a serious alcohol misuse disorder, to the severity of dependence, although it was acknowledged that the respondent was in enforced abstinence while serving his sentence. The respondent also met criteria for a diagnosis of antisocial personality disorder. While it was unlikely that the respondent met criteria for a diagnosis of paedophilia, Dr Aboud’s opinion was that the respondent almost certainly harbours a deviant sexual drive with an interest in female minors. This interest has revealed itself through his pattern of offending behaviours, in the context of alcohol intoxication causing disinhibition and therefore reduced behavioural control.
Dr Aboud conducted testing on the respondent using risk assessment tools. Dr Aboud concluded that, on the basis of all available information, it is likely that the respondent would sexually reoffend in the context of reduced behavioural control and disinhibition associated with excessive consumption of alcohol or intoxication. His victim would most likely be a stranger female, ranging in age from a young adult to a very young child, and may well be selected opportunistically and without significant planning. Drivers of increased risk would include negative affective states, such as anger, sadness and loneliness as well as feelings of low self-regard.
Dr Aboud stated that the respondent’s underlying sexual deviancy would probably determine his choice of victim, and his sexual offending could involve anything from indecent touching to rape with penile penetration. In the course of his offending, the respondent may seek to control his victim by issuing threats of violence, or use of physical force, perhaps involving the use of a weapon such as a knife.
In conclusion, Dr Aboud stated:
It is my opinion that Frederick Poulson presents a significant risk of future sexual offending in the community, if his risk is not properly managed. While he has undertaken the SOTP and IADP, it is my view that he has only benefited in a very limited way. He appears to have retreated back to almost the same level of denial and minimisation that he had originally presented with before participating in the group therapy, and seems to consider alcohol intoxication to be the only risk factor that he carries. Based on the actuarial and structured risk assessment instruments that I have utilised, that taking into account both his historical and dynamic risk factors, he presents an overall unmodified risk of serious sexual reoffending that would be categorised as high, in my opinion….
It is my opinion that if he was made subject to a supervision order, for a period of 5 years, his risk of sexual reoffending (committing a serious sex offence) would be reduced to moderate-to-low. I am aware that he is currently subject to an interim supervision order, and I believe its listed conditions should reasonably be the same conditions to be maintained in the actual supervision order. Of course, for the order to have meaning, its conditions (both prohibitive and supportive) would need to be properly adhered to. With regard to this, I would be concerned that this might be hard to confidently achieve, should Mr Poulson be residing in a place that is remote and beyond the ready reach of risk management resource infrastructure, that would both support and enforce compliance as necessary. If this is the case, then placement in a more urban location, such as Alice Springs or similar may be required.
Dr Aboud was also subject to cross-examination. Dr Aboud agreed that the risk assessment tools he had employed had not been significantly verified within Australia. Some small studies had attempted to standardise the tests, and they broadly demonstrated that the tests can be used. More importantly, Dr Aboud said, these are the best tests available. Dr Aboud appeared to broadly agree with the evidence of Dr O’Dea that offenders generally are a multifaceted and highly heterogenous group, some of whom could be broadly styled sexual offenders. It is difficult to compare the reoffending risk of one group of offenders with another.
The current proposal
It is proposed that if a final supervision order is made the respondent will continue to be accommodated in his present cottage located outside the secure area of the Alice Springs Correctional Centre. Depending upon his progress, a “step-down” approach will be implemented by moving the respondent into other supported accommodation before consideration is given to moving him into independent accommodation. Any return to Ali Curung would need to be managed gradually and in consultation with that community. Steps would be taken to connect the respondent with appropriate service providers.
Consideration
Counsel for the respondent drew my attention to the Second Reading Speech by the Attorney-General regarding the Serious Sex Offenders Bill 2013, which ultimately became the Act. In that speech, the Attorney-General said:
Legislation that allows for the detention or supervision of an offender post-sentence clearly touches on important legal principles. The concept of double jeopardy is one such principle which provides that a person should not be punished twice to (sic) the same offence, and there are good reasons for such principle and the bill is not intended to undermine these well established legal principles. However, unfortunately, there are those rare individuals who pose a real danger of committing further offences of the worst type upon their release. Where these offenders can, with certainty, be clearly identified it is reasonable that the authorities be empowered to do something about it. Mechanisms allowing for the detention or the restraint of a person by the state and which do not relate directly to the person’s convictional sentence already exist in the Territory and are well accepted mechanisms within the legal system internationally.
Counsel for the respondent encapsulated his submissions in the following extract:
Your Honour, there is obviously risk, an identified risk expressed in the opinions of both psychiatrists. However, the question for your Honour is whether or not your Honour can be satisfied to a high degree of probability that, in this case, [the respondent] after his 14 years in custody is a person who is a serious danger to the community, and the acceptable and cogent evidence in my respectful submission has to be something more than a balance of probabilities, or are more likely than not. It is a high degree of probability.
Both counsel for the applicant and for the respondent appeared to embrace the proposition that the standard of proof required in the present application, as found in s 7(1) of the Act, is that which the High Court articulated in Briginshaw v Briginshaw [1938] HCA 34; 60 CLR 336 where Dixon J, in an oft quoted passage, said:
No doubt an opinion that a state of facts exists may be held according to indefinite gradations of certainty; and this has led to attempts to define exactly the certainty required by the law for various purposes. Fortunately, however, at common law no third standard of persuasion was definitely developed. Except upon criminal issues to be proved by the prosecution, it is enough that the affirmative of an allegation is made out to the reasonable satisfaction of the tribunal. But reasonable satisfaction is not a state of mind that is attained or established independently of the nature and consequence of the fact or facts to be proved. The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the tribunal. In such matters "reasonable satisfaction" should not be produced by inexact proofs, indefinite testimony, or indirect inferences.
The necessity for this Court to be satisfied to a high degree of probability that there is acceptable and cogent evidence of sufficient weight to justify a finding that the respondent is a serious danger to the community does not require the Court to be satisfied that it is more probable than not that the respondent will commit a serious sex offence unless he is subject to a supervision order. The high degree of probability that is required by s 7(1) of the Act refers to the existence of acceptable and cogent evidence of sufficient weight to justify making the decision that there is an unacceptable risk that the respondent will commit a serious sex offence unless he is subject to a supervision order. In other words, the words “high degree of probability” in s 7(1) are directed towards the quality, or cogency, of the evidence upon which the Court is asked to make an order. The words do not refer to the degree of risk which the court must be satisfied the respondent presents to the community before a supervision order can be made. The degree of risk of which the Court must be satisfied is that which is found in s 6(1) of the Act: the risk must be an unacceptable risk.
What constitutes an unacceptable risk of a possible eventuality occurring will differ according to the nature of the eventuality. If the possible eventuality is of an innocuous nature, an unacceptable risk may well be more probable than not, or perhaps even greater. Where the potential eventuality involves serious criminal offending, with a likelihood of grave consequences to the victim or victims, an unacceptable risk may be considerably less than a 50% risk of the eventuality occurring.
It is neither desirable nor possible to specify a percentage figure of risk that would be unacceptable in the present case. The risk to which s 6(1) of the Act is directed is a risk of the respondent committing a serious sex offence unless he is subject to a supervision order. The nature of the risk in the present case, and the consequences of the risk eventuating, is such that a risk which is less than more probable than not will be unacceptable.
On the basis of the evidence before me, there is an unacceptable risk that the respondent will commit a serious sex offence unless he is subject to a supervision order. I acknowledge that the respondent apparently performed well as a prisoner. I acknowledge that he appropriately participated in and completed programs such as the Sexual Offender Treatment Program, the Sexual Offending Maintenance Program, the Intensive Alcohol and Drug Treatment Program and the Alternatives to Violence Program while in custody. The respondent has also maintained sobriety in the custodial setting, and has expressed his desire to maintain sobriety in the community.
There is nevertheless a very real risk that the respondent may not be able to maintain sobriety in the community, particularly if he is not subject to supervision and resides in a remote location. There is also a very real risk that the respondent’s prior offending is not, as he now apparently believes, solely attributable to his alcohol intoxication. There is a very real risk that the respondent has an underlying sexual deviancy characterised by sexual attraction to female minors. I accept the evidence given by both Dr O’Dea and Dr Aboud that the respondent remains at high risk of further sexual offending if he were to be unsupervised in the community. The nature of such an underlying sexual deviancy is such as to place particularly vulnerable members of the community at risk of grave harm. The evidence which has been placed before me was not seriously challenged and was of sufficient cogency and weight to justify making a decision that the respondent is a serious danger to the community.
It would be inappropriate for the respondent to return to the Ali Curung community at the present time. The ability to supervise and appropriately treat the respondent would be severely compromised in that environment, leading to an inability to properly manage the risk which the respondent presents to the community. In such a community, it would be almost impossible to police the terms of a supervision order.
Any final supervision order should, in the present circumstances, contain a condition requiring the respondent to take prescribed medication. As both Dr O’Dea and Dr Aboud made clear, compliance with prescribed medication will require the consent of the respondent. The respondent may choose not to comply with a prescribed medication regime. If he makes such a choice, he will not be punished for failing to comply with the medication regime, but he will be in breach of the terms of the final supervision order. This could result in revocation of the supervision order and imposition of a final continuing detention order.[6]
Orders
I order that for a period of 5 years from the date of publication of these reasons, the respondent is to be subject to a final supervision order requiring that he:
(a) must not commit:
(i)a serious sex offence; or
(ii)an offence of a sexual nature; and
(b) must report to a parole officer as directed by a probation and parole officer; and
(c) must receive visits and accept communications from a probation and parole officer as directed by a probation and parole officer; and
(d) must give to a probation and parole officer information about his place of residence and place of employment or education as directed by a probation and parole officer; and
(e) must not leave, or stay out of, the Northern Territory without the permission of a probation and parole officer; and
(f) must comply with any directions given to him under s 20 of the Serious Sex Offenders Act 2013 (NT) and there are no matters under that section about which a probation and parole officer cannot give the respondent directions; and
(g) must take any medication prescribed for him by a medical practitioner for as long as recommended by a medical practitioner;
(h) must reside and remain at a location specified by a probation and parole officer and until otherwise determined must not leave the premises at any time of the day or night without first obtaining permission from a probation and parole officer, except in the case of a personal medical emergency; and
(i) must not purchase, possess or consume alcohol or remain in the presence of any person consuming alcohol and must submit to testing as directed by a probation and parole officer for the purpose of detecting the presence of alcohol; and
(j) must not purchase, possess or consume any dangerous drug or remain in the presence of any person consuming a dangerous drug and must submit to testing as directed by a probation and parole officer for the purpose of detecting the presence of any such dangerous drug; and
(k) will have attached and wear any monitoring device if directed to do so by a probation and parole officer; and
(l) will allow the placing and installation of anything necessary for the effective operation of any monitoring device he is required to wear; and
(m) must comply with the Rules for Electronic Monitoring; and
(n) must comply with any direction given by a probation and parole officer to participate in any specified rehabilitation, care or treatment and structured day activities provided by his probation and parole officer; and
(o) must permit a probation and parole officer to access his place of residence at all times for the purposes of ensuring compliance with the terms of his supervision order and to search for and seize anything he is not permitted to possess; and
(p) must not be in possession or control of a firearm; and
(q) must disclose to a probation and parole officer the details of any person with whom he enters into a relationship, including the full name of the person; and
(r) must not have contact with children who are 17 years of age or younger (except in the course of a normal business transaction) except in the presence of an adult who has been approved for the purposes of this order by a probation and parole officer; and
(s) must not possess, purchase, obtain, use or acquire by any means any device with Internet capabilities, other than with the written approval and subject to the conditions imposed in such approval by a probation and parole officer; and
(t) must disclose his offending history to any prospective partner or employer; and
(u) must not, without lawful reason or the approval of a probation and parole officer, enter any private premise other than his own residence; and
(v) will be subject to a curfew as directed by a probation and parole officer; and
(w) must not, without prior approval from a probation and parole officer, enter the Ali Curung community area; and
(x) must remain on the Banned Drinkers Register.
----------------------------
[1]The Act s 13 (2)(a).
[2] The Act s 19.
[3] The Act s 31 (1).
[4] The Act s 63 (1).
[5]Crimes (Serious Sex Offenders) Act 2006 (NSW) s 17(3).
[6]The Act s 58.
0
2
4