Orders
Orders of the court
THE COURT, being satisfied to the requisite standard that the respondent is a serious danger to the community in the absence of an order pursuant to Division 3 of the Dangerous Prisoners (Sexual Offenders) Act 2003 (the Act), ORDERS THAT:
1. The decision made on 9 June 2015 that the respondent is a serious danger to the community in the absence of a Division 3 order, be affirmed; and
2. The respondent continue to be subject to the continuing detention order made on 9 June 2015.
Background
Background to the litigation
Further at paragraph 10, his Honour helpfully summarised the process that is to be undertaken under s 30:“[10] The process under s 30 involves the following steps:(a)determination of whether the respondent is a serious danger to the community in the absence of a Division 3 order;(b)if so, the court must determine whether adequate protection of the community can be ensured by the respondent’s release on a supervision order;(c)if so, then release of the respondent on supervision ought to be preferred to the maintenance of the continuing detention order; and (d)if not, then the continuing detention order ought to be maintained.”Background to continuing detention order and previous reviews PD McMurdo J summarised the relevant factual background as at June 2015 as follows:“[2] In May 2001 the respondent was sentenced to several terms of imprisonment amounting to a period of 16 years which expires on 10 June 2015. He was sentenced to 10 years imprisonment for maintaining a sexual relationship with a child with circumstances of aggravation over a six month period in 1988-1999. He was sentenced to concurrent terms of five and three years on a number of offences of assault occasioning bodily harm and the indecent treatment of a child who was under 12 years. He was sentenced to a cumulative term of six years for grievous bodily harm. Nearly two years of pre-sentence custody had been served. He was declared to be a serious violent offender.[3] These offences were committed against the respondent’s then partner and her young son. The offences were summarised by McPherson JA, in dismissing the respondent’s appeal against conviction and application for leave to appeal against sentence, as follows:[19] [19]R v S [2002] QCA 38.‘The victim of the physical assaults was at the time his de facto wife. Most of them took place after she had, at his insistence, performed indecent acts which the applicant filmed for the purpose of setting up a pornographic business. Some of those acts consisted of performing acts of multiple sex with other adults. The assaults, some of which involved the use or threat of use of a dangerous instrument such as a garden fork, were carried out by the applicant because he was dissatisfied with the standard of the complainant's performance during those indecent acts. One of the persons with whom she was forced to commit some of the sexual acts was her own nine year old son, who was also the victim of the sexual offences committed against the child to which I have referred. To crown this career of appalling behaviour, the applicant finally subjected the woman complainant to a prolonged and savage beating inflicting grievous bodily harm on her, including brain damage, fractures to facial bones and a severe injury to her left ear requiring plastic surgery. In the course of his submissions in this Court the applicant, it may be noted, admitted that he had committed that assault causing grievous bodily harm. … He showed no remorse whatever for what he has done. The learned sentencing Judge described his behaviour as depraved and despicable. Those are strong words, but they are in my opinion fully justified. In the 20 years in which I have been on this Court, I have not seen a case in which the conduct of the accused was worse than this.’[4] The respondent has always maintained that he did not commit sexual offences against the child. He sought to explain his violent assaults upon his partner as attempts to protect the son from sexual misconduct by her. [5] He was born in 1973 and is now 41 years of age. Prior to the matters already mentioned, he had a criminal history for offences of violence, dishonesty and breaking and entering a dwelling house, for which he received various terms, including one of three years imprisonment for which he was required to serve 12 months. The offence of breaking and entering a dwelling house with intent was committed in October 1992. The sentencing judge then remarked:‘I regard this as a very serious offence. Here we have a decent woman asleep in her own home where she should be safe. You come in the early hours of the morning and subject her to a terrifying ordeal. You say you went there for money, but from what she tells the police even if that were so your mind changed towards sexual matters. You told her to remove her knickers. She managed to escape you and she was punched as she eluded you.’[6] There are several recorded breaches during the respondent’s time in prison. Most involved disobeying the lawful direction of a corrective services officer. At least one involved an assault on another prisoner. Another, in 2013, involved an assault on a visitor.[7] He has completed a number of rehabilitative programs as follows:· Anger Management Core Program- completed 23 July 1997;· Substance Abuse Education Program- completed 28 October 1997;· Operate a Personal Computer- completed 9 December 2008; · Operate a Word Processing Application - completed 5 January 2009;· Operate a Spreadsheet Application- completed 19 January 2009; · Operate a Database Application- completed 3 February 2009; · Operate a Presentation Package- completed 20 February 2009; · Transitions Programs- completed August 2011; · Work Safely in the Construction Industry- completed 23 November 2011; · Present a Positive Image - completed 5 November 2012; · Apply Job Search and Interview- completed 29 October 2012; and · Stepping Up Program - completed 15 April 2013.[8] However he has not engaged in programs to address his sexual offending. If he is detained as a result of this application he will be waitlisted for the Getting Started: Preparatory Program (the “GS:PP”), which is described in the evidence as ‘a mandatory preparatory program designed to motivate offenders to participate and address their offending in a more intensive treatment program …’. It is not a treatment program as such. The records of Corrective Services indicate that in June 2012 he was offered a place in this program which he declined, stating that he was innocent in relation to his sexual offence convictions. There is a further record that in March 2013 he began but did not complete the GS:PP. There is also a record of the respondent being offered the GS:PP in May 2014, when again he maintained his innocence of any sexual offence and refused to attend any sexual offending programs. [9] Were he to complete the GS:PP, he could then be considered for what is described as an intervention program, such as the High Intensity Sexual Offending Program (HISOP), the Cognitive Self Change High Intensity Violent Offending Program (CSCP) or the Pathways High Intensity Substance Abuse Program.” (Footnotes omitted)
Evidence
Evidence Before The Court
However, Dr Moyle and Dr Arthur attended the hearing and gave evidence and were cross-examined in relation to the proposed residential address and whether these additional facts altered their views at all. Oral psychiatric evidence At the hearing on 1 June 2020, Dr Moyle and Dr Arthur maintained their views that the risks identified in respect of the respondent were not reduced to an acceptable level by the proposed residential address. Dr Moyle gave oral evidence at the hearing on 1 June 2020 as follows:[30][30]Note: the below response has been divided into paragraphs for ease of reference. “Could you please outline for the court the basis for that finding and around his level of risk and what is needed to enable that risk to be managed or reduced?---Certainly. [The respondent] has a long history from childhood to the present incarceration of substance abu – abuse and dependence involving alcohol, a little bit of marijuana and some amphetamines. He has a long history of – from childhood through to adulthood of criminal offending of leaving home at a young age, of – and I – most of the history that is of concern relates to violence and sexual violence, including a prolonged period of time from ’91 when he met an older partner till the later 1990s when he was arrested, against a partner which he committed serious violent harm, causing brain damage and a lot of other injuries, and against a child from six till nine years. The child was nine years of age, I think, at the time of his arrest. And he was convicted of maintaining a relationship with the child and of serious sexual offending. [Dr Moyle continues] [The respondent] has a personality with prominent antisocial and narcissistic features. He requires people to accede to his wishes or he will get angry. And the community, if he gets angry, he will drink and – and if necessary, to get his wishes met, he will use violence and – and certainly threats of violence and actual violence. And his wishes include wishes for sexual acts to occur. His behaviour in jail has not shown any change in his need to be dominant, having his wishes acceded to and at times, even to the recent times, he gets really quite enraged if people go against him. [Dr Moyle continues] He has been offered numerous programs to try and address violence. He attended one that he did some partial contributions to. But otherwise, he hasn’t engaged in the main therapeutic programs that are – that he was required to maintain, including high intensity violence programs, high intensity sex offenders programs and the pathways he needed to update his – his substance abuse programs. He’s been offered individual assistance with numerous psychologists, some very well-regarded psychologists in the field who are very happy to help, try and help people such as [the respondent]. He – he – they have not survived the – the treatment process. [Dr Moyle continues] So [the respondent] has failed to address the core issues as to why he’s in custody over this time, has continued with his narcissistic need for dominance and control and to have his wishes met and will use threats in custody, such as, you know, ‘I will murder somebody if you double me up with somebody’ or threats to acquire huge numbers of weapons if released and go to the nearest police station. So he – there’s little to suggest that he has d [sic] on himself and reflected on the behaviours for which he is in custody for and has come up with any reasonable plan on how he’s going to deal with his frustrations, his – to his wishes and – and how he’s – and in a way that isn’t going to place the community at risk of violence and sexual violence. [Dr Moyle concludes response]Okay. And at what level did you assess his current risk of reoffending sexually?---I assessed it as high. Now, you’ve referred to the fact that he has refused to undertake the necessary treatment programs. Is it reasonable or is it possible for his risk to be managed without him undertaking or engaging appropriately in that form of treatment?---Anything’s potentially possible, but I can’t envisage a set of circumstances where, in the community, he will adhere to any conditions when in – in custody, he has trouble adhering to the norms of doing what he’s told. For instance, he – he might do – be due medicine, he might refuse it and then demand that it’s brought to him down in his cell. He might – the psychologist might engage, but he might then get enraged with them and – such that they have to disengage. He threatens officers and he threatens other people. So I don’t envisage that – those behaviours being manageable in the community. I don’t envisage him engaging with – with programs in the community because he – and his statements that, if necessary, if he’s forced into doing so, he will lie, and his statements that if he’s – that he – if he has to serve another 30 years in jail, he will stay in jail for 30 years because it’s a racist society that’s leaving him in jail don’t suggest he’s at all committed to – to – to changing his ways in the community. The speed with which his anger can result – in the past, anyway – his anger can result in drinking and – and offending is – is probably a little too fast to be detected reliably in the community.On what we know of [the respondent] at this point, without him having engaged in the appropriate therapeutic programs or treatment, do we fully understand the drivers or the reasons for the sexual offending?---No. Is it then possible to consider terms of a supervision order if we don’t understand those core features of his offen – past offending?---Corrections would have a very difficult job formulating a series of conditions under which a supervision order might be applicable. Now, Dr Moyle, you were provided with copies of two affidavits that were filed by leave this morning. You received those two affidavits, one of Mr Tai and one of Ms Nash?---I did.And you considered the contents of those affidavits?---Yes. Do they alter your current view as expressed in the report and as outlined here?---No, they don’t. So, on your view, further treatment needs to be undertaken while [the respondent] remains in custody?---I think he needs to undertake enough of treatment such that he can formulate a management plan that will take into account all of the factors I’ve just mentioned that will then enable a conditional release to be viable.”
Ratio Decidendi
Legal Principle Established
The applicant relied upon its written submissions which relevantly state: “42.It is submitted that there is acceptable cogent evidence which would satisfy the Court, to the high degree of probability required,[32] that the respondent remains a serious danger to the community in the absence of an order made under Division 3 of the Act.[32]See s 30(2) of the Act.43.The psychiatric evidence identifies the risk the respondent’s release presents as being in the moderate to high range. Any offence, if committed, would constitute a sexual assault of an adult female or child. The risk of psychological damage and/or physical injury to any victim is obvious.44.Clearly and unequivocally, the respondent presents a serious danger to the community in the absence of a Division 3 order under the Act. Accordingly, the decision made on 9 June 2015 ought be affirmed.…..51.The position remains as it was when the matter came before the court in the second annual review in 2018. 52.The respondent presents as an untreated sexual offender. He has limited or no insight into his condition and the steps he needs to take to address his risk. He is aware of the importance of the meaningful participation in programs offered by Corrective Services. This was clearly an issue in the 2015, 2017 and 2018 hearings. The respondent denies the circumstances which gave rise to his incarceration. He has not demonstrated any emotional at [sic] intellectual commitment to participation in any programs which would serve to minimise the risk. His refusal to participate in any involvement by Dr Madsen is evidence of the intransigence that he displays. 53.On the evidence of the psychiatrists, the respondent needs to meaningfully participate in a high intensity sexual offender treatment program or in individual treatment prior to his release into the community. If he did meaningfully participate in such program or treatment, it would provide his supervisors with more information about the offending pathways which the respondent is likely to traverse prior to the commission of any offence. It would enable supervision to be an effective tool in providing adequate serious social protection to the community. 54.Absent such participation, it is impossible, it is submitted, for the court to be satisfied that adequate protection to the community could be reasonably and practicably ensured by a supervision order.55.Taking into account all the evidence, the preference for a supervision order has been displaced. It cannot be found in the circumstances presented by the respondent’s presentation that adequate protection of the community is ensured by his release on supervision. 56.Accordingly, an order pursuant to s 30(3)(a) of the Act, ought be made.”Consideration The position of the respondent has largely remained unchanged since the original application in 2015 and the reviews that took place in 2017, 2018 and 2019. The respondent remains an untreated sex offender.Whether the respondent is a serious danger to the community in the absence of a Division 3 order