The Attorney-General of the Northern Territory v GJM (No 1) - [2020] NTSC 76

CITATION:The Attorney-General of the Northern Territory v GJM (No 1) [2020] NTSC 76
PARTIES:THE ATTORNEY-GENERAL OF THE NORTHERN TERRITORY
v

GJM

TITLE OF COURT:  SUPREME COURT OF THE NORTHERN TERRITORY
JURISDICTION:  SUPREME COURT exercising Territory jurisdiction
FILE NO:28 of 2018 (21813525)
DELIVERED:  7 December 2020
HEARING DATE:  7 February 2019
JUDGMENT OF:  Kelly J

CATCHWORDS:
SERIOUS SEX OFFENDERS ACT – Application for final continuing detention 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 remaining in custody - Court satisfied – Final continuing detention order made
Serious Sex Offenders Act 2013 (NT) s 6, s 9, s 22, s 23, s 24, s 25, s 31, s 88, s 192

REPRESENTATION:
Counsel:
Applicant:T Anderson
Respondent:  P Bellach
Solicitors:
Applicant:Solicitor for the Northern Territory
Respondent:
Judgment category classification:    C
Judgment ID Number:  Kel2012
Number of pages:  18

IN THE SUPREME COURT
OF THE NORTHERN TERRITORY
OF AUSTRALIA
AT DARWIN
The Attorney-General of the Northern Territory
v GJM (No 1) [2020] NTSC 76

No. 28 of 2018 (21813525)

In the matter of an Application for an
Order under s 23 of the Serious Sex Offenders Act 2013 (NT)

BETWEEN:

THE ATTORNEY-GENERAL OF THE NORTHERN TERRITORY

Applicant

AND:

GJM

Respondent

CORAM: KELLY J
REASONS FOR JUDGMENT
(Delivered 7 December 2020)
Introduction

The respondent GJM has been convicted of five serious sexual offences.
The first offence occurred on 15 October 1994, three days after the respondent had been released from the Darwin Correctional Centre, having served a sentence of eight months for driving offences. On that occasion, the respondent followed the victim from a hotel, grabbed her and pulled her to a secluded area, knocked her down and removed her clothing. When the victim screamed, he punched her multiple times in the ribs and had sexual intercourse with her over the course of half an hour.
The respondent was convicted of that offence on 8 March 1995 and sentenced to six years and six months imprisonment, with a non-parole period of three years, backdated to 15 October 1994. He was released on 13 February 1999.
The second such offence occurred on 7 January 2000, 81 days after the respondent was released from prison on the first offence. On that occasion, he sexually assaulted his sister at Holy Spirit Church.
The third such offence occurred on 31 March 2002, when the respondent had been bailed into the community for 189 days whilst awaiting trial. On that occasion, he knocked the mentally and physically disabled victim to the ground. When the victim attempted to call out, he covered her mouth with his hand and punched her in the cheeks and mouth. He then had sexual intercourse with her.
On 3 July 2002, the respondent was found guilty of the second offence by a jury, and on the same day, he entered a plea of guilty to the third offence.
The respondent was sentenced in relation to the second and third offences on 3 July 2002 to a total of 12 years imprisonment: eight years for the second offence and seven years for the third offence. Three years of the sentence for the third offence were ordered to be served concurrently with the sentence for the second offence, backdated to commence on 31 August 2000.
The fourth and fifth offences occurred on 16 November 2004 whilst the respondent was in custody. The victim of those offences was a 19 year old relative of the respondent who shared the respondent’s cell at the Alice Springs Correctional Centre. On the first occasion, the respondent told the victim to take off his shorts and kneel on the mattress on the floor. The respondent then rubbed butter on his own penis and had anal intercourse with the victim. When the victim protested in pain, the respondent punched him in the ribs, brandished a pen, and continued with the anal intercourse until he ejaculated.
The second occasion occurred later that same night. The respondent again approached the victim and digitally penetrated his anus.
On 19 August 2005, the respondent was convicted of the fourth and fifth offences of sexual intercourse with another person without their consent. He was sentenced in relation to both those offences to a total of six years imprisonment to commence on 19 August 2005.
The respondent was also the subject of two additional reports of sexual misconduct whilst in custody.
(a)On 26 May 2007, the respondent was granted permission to stay behind after a religious service to speak to the victim, a fellow prisoner, about some sorry business. Prison officers reported that when both prisoners were told to finish up the conversation, the victim was observed quickly jumping up as if he could not wait to get out of there, and the respondent was observed telling the victim to “Sit back down for one minute”. Thereafter, the victim advised a prison officer that the respondent had “…started to talk shit and [had] pulled his dick out”.
(b)On 13 January 2009, the respondent coerced the victim, an intellectually handicapped fellow prisoner into the showers and was seen five minutes later emerging from the showers doing up his zipper. The victim later informed prison officers that the respondent had raped him.
History of proceedings
The respondent was due for release on 31 August 2018.
On 22 March 2018 the Attorney-General filed an application under Part 3 of the Serious Sex Offenders Act 2013 (NT) (‘the Act’) by originating motion, for an order of final continuing detention or, alternatively, a final supervision order pursuant to s 23(1) of the Act.
The application was supported by an affidavit of Andrew Gordon Anschutz George dated 21 March 2018 outlining the respondent’s history of serious sexual offending (summarised above).
Section 24(2) of the Act requires that a preliminary hearing must be set within 28 business days after the application for an order of continuing detention is made. The test at the preliminary hearing is whether the matters alleged in the application would, if proved, satisfy the Court that the qualifying offender is a serious danger to the community.[1]
A person is a serious danger to the community if there is an unacceptable risk that the person will commit a serious sex offence unless he remains in custody or is made subject to a supervision order.[2] If the Court decides that it would answer in the affirmative to the test under s 25(1), it must set a date for the hearing of the application and name two medical experts to undertake a medical assessment of the offender.[3]
I held a preliminary hearing on 23 April 2018. Based on the supporting material provided I was satisfied that the matters alleged in the application would, if proved, satisfy the criteria that the respondent would be a serious danger to the community and, that being so, I ordered that the respondent submit to examination by two psychiatrists, Dr Lester Walton and Dr Danny Sullivan. I ordered reports to be prepared by those psychiatrists setting out the psychiatrists’ opinions of: the likelihood of the respondent committing another serious sex offence if he was not detained in custody or subject to a supervision order; their reasons for those opinions; and the extent to which the respondent cooperated with each of the psychiatrists.[4]
The Court received two reports: a report by Dr Lester Walton dated 5 June 2018 and a report by Dr Danny Sullivan dated 13 June 2018. Both reports concluded that the respondent remained at high risk of committing a further serious sexual offence. In addition, Dr Walton recommended that the respondent be assessed for a prescription of anti-libidinal medication (‘the medication’) as a means of reducing the respondent’s risk of reoffending.
Dr Walton described the respondent’s history. He also observed the respondent had multiple risk factors which placed him at an elevated risk of sexual reoffending, namely: his historical engagement in a range of different offences, his multiple historical incidents of sexual offending typically accompanied by aggression, his somewhat dull intelligence reflected in his inability to grasp the central tenants of sex offender treatment, and (if true as the respondent alleged), his childhood history of sexual abuse. Additionally, Dr Walton noted that should the respondent resume abusing alcohol, his risk of sexual reoffending would be significantly elevated.
Dr Walton noted that the respondent had been thoroughly cooperative with the psychiatric assessment administered. He also observed that while the respondent did not suffer from any mental disorder, he would be unsuitable for future specific psychiatric treatment given the repeated, unsuccessful attempts to engage him in sex offender treatment and rehabilitation. However, he did suggest that specific alcohol rehabilitation may be appropriate, given the respondent’s offending behaviour had often occurred while he was intoxicated.
Dr Walton also noted that while the respondent’s advanced age and physical disability were relative factors in assessing his risk of reoffending, he could not be properly described as frail or elderly to mitigate against his committing future sexual offences.
Dr Walton also observed that the respondent had reoffended both while on bail in relation to an earlier sexual offence and also whilst incarcerated. Consequently, he concluded that the imposition of any type of order, including a specific supervision order under the Act would involve a serious risk of non-compliance. However, he noted that the continued detention of the respondent would provide an elevated (but not complete) level of protection for others in the wider community.
Dr Sullivan also described the respondent’s history and concluded that the respondent did not have any clinically significant mental disorder, but observed the respondent had a provisional diagnosis of mild cognitive impairment. Additionally, he noted the respondent would meet a diagnosis of alcohol abuse or dependence, but was capable of abstinence in a controlled environment.
Dr Sullivan also observed that the respondent’s history, disciplinary infractions in prison, superficial emotional engagement and minimisation of offending were consistent with a diagnosis of dissocial personality disorder. He noted that while the respondent had some traits of psychopathy present, he did not clearly meet criteria for psychopathic personality disorder.
Dr Sullivan relied on a structured professional judgment alongside the STATIC-99 and the Risk for Sexual Violence Protocol (RSVP) instruments in assessing the respondent’s risk of sexual re-offending.
He noted that on the STATIC-99, which assesses the respondent’s risk of recidivism based on unchanging risk factors, the respondent scored in the high risk category. He also concluded that on the RSVP, which incorporates static and dynamic risk variables associated with sexual re-offending, the respondent was identified as having a significant range of past risk factors. He noted that based on scenario planning, future offending by the respondent might involve an opportunistic attack whilst intoxicated, on an adult female stranger or relative, using physical force to control the victim.
Dr Sullivan also noted that the respondent was pleasant in demeanour, and cooperative to interview. However, he observed that the respondent did not appear to have developed significant insight into his behaviour, victim empathy, relapse prevention skills or an increased capacity for self regulation. He noted that sexual offending treatment did not appear to have made any impact on the respondent. Moreover, the respondent had shown limited benefit from any offence-specific or general psychological interventions he had engaged with in the past. Consequently, Dr Sullivan concluded that the respondent would be at high risk of committing another serious sexual offence if not detained in custody or subject to a supervision order.
Given the respondent’s absence of insight into his offending, Dr Sullivan also recommended that the respondent be assessed for the ongoing prescription of anti-libidinal medication. He noted that while such medication would likely significantly reduce the risk of reoffending, the respondent would need to consent to such medication. He further observed that should the respondent not have the capacity to make reasoned or informed choices about such medical treatment, guardianship would need to be considered.
Given the respondent’s reported cognitive and adaptive deficits, I was not satisfied the respondent would be capable of providing informed consent to the administration of the medication. To address this concern, the applicant was ordered to provide a psychiatric report.
The psychiatric report was to include the psychiatrist’s assessment of whether the respondent had consented to the administration of the medication and whether the respondent was a suitable candidate for the medication. I also requested:
(a)information about the medication that was proposed to be prescribed to the respondent including side-effects, how the medication worked and how long it would take for the medication to achieve the desired effect;
(b)the psychiatrist’s opinion as to the level of supervision the respondent would require during the period the respondent initiated the medication, whether the level of supervision required could be provided in a non-custodial environment in Darwin (and if so, where); and
(c)confirmation that the information contained in the report had been explained to the respondent with the assistance of an interpreter.
A report by Dr Mrigendra Das dated 2 November 2018 was filed with the Court on 27 November 2018. In that report, Dr Das concluded that on the basis of the two interviews he had undertaken with the respondent, the respondent had considered the information given about the medication, its perceived benefits for him, had the capacity to consent to the administration of the medication and had ultimately consented to treatment. Those interviews were conducted without the assistance of an interpreter.
Dr Das also recommended that after initiating the medication regime, the respondent should not be released into the community for at least six to 12 months to enable immediate supervision and monitoring of the respondent in custodial conditions. He noted that the mere reduction in testosterone, libido and sexual arousal in the initial phase following initiation of the medication did not immediately translate to risk reduction, supporting the need to observe the effectiveness of the medication during that period. He further reported that custodial conditions would be important in monitoring the level of the respondent’s risk behaviours and sex hormones; ascertaining whether the medication was actually reducing libido/sexual arousal; checking for any side effects and determining whether the medication’s preparation needed altering.
Given the lengthy and rather technical descriptions of potential side effects of the medication that had been outlined in the reports, I was not satisfied that the respondent would necessarily have been able to comprehend the real risk of side effects from the medication, particularly without the aid of an interpreter. I therefore asked that these be explained to him with the aid of an interpreter and requested a further report.
On 12 December 2018, Dr Das provided a further report on the side effects of the medication; the side effects the respondent was likely to suffer given his medical history; the likelihood of the respondent experiencing a select number or all the side effects of the medication; whether the side effects were reversible once the medication was halted; and Dr Das’ opinion on how effectively the respondent understood the side effects of the medication and what had been discussed in the consultations.
Dr Das’ further report concluded that the respondent’s understanding of the use of the medication was “…very rudimentary and basic, not sophisticated to the level he would understand in layman terms of how the medication might work, and how the side effects would be produced”.
On 21 August 2018, the Acting Commissioner of Correctional Services provided a supervision report pursuant to s 88 of the Act. The report summarised the programs the respondent had undertaken while in custody.
The Acting Commissioner noted that between 2009 and 2010, the respondent undertook the Sex Offender Treatment Programme (‘SOTP’) at Darwin Correctional Precinct. The exit report for the SOTP programme notes the respondent parroted other participants and that his motivation may have been focused on altering his placement, his security rating and possibly being considered for a period of parole. The exit report also emphasised the respondent’s lack of remorse and control over his sexual offending. Subsequent interviews regarding the SOTP programme conducted with the respondent found that he was unable to recall the content of the programme, appeared to lack insight or genuine remorse for his behaviour and identified inappropriate protective factors in reducing his risk of future reoffending.
The Acting Commissioner also noted that in 2012, the respondent undertook individual treatment with Dr Rosemary O’Reilly-Martinez, Senior Clinician and Psychologist of Northern Territory Correctional Services. Dr O’Reilly-Martinez found that while the respondent was able to acknowledge his actions were not consensual, he did not empathise with his victims, or understand the long term effects of his actions on others.
The Acting Commissioner further noted that on 28 October 2004, Dr Simon Forbes, Principal Psychologist of Darwin Correctional Precinct undertook a Violent Risk Scale-Sex Offender assessment summary. Dr Forbes found the respondent’s risk factors as cognitive distortions, sexually deviant lifestyle, sexual compulsivity, criminal personality, interpersonal aggression, emotional control, insight, substance abuse, community support, compliance with community supervision and intimacy deficits. Further, Dr Forbes found the respondent had limited engagement in the assessment, relied upon defences of minimisation and denial, had little insight into factors contributing to offending, had not developed feasible future plans and had limited motivation to attain positive life goals. Dr Forbes concluded that without further individual intervention, the prognosis for the respondent making a successful reintegration into the community was very poor.
The Acting Commissioner further noted that the respondent completed the Relationships Australia ‘Life Skills, Adjustment and Support’ Programme in September 2015, the Relationships Australia ‘Aboriginal Building Connections’ Programme in May 2017 and the Alcohol and Other Drugs Programme at Darwin Correctional Precinct in July 2017.
The Acting Commissioner also considered the respondent’s ability to comply with future supervision. He noted that the respondent had recorded 12 breaches and incidents whilst incarcerated at Darwin Correctional Precinct between 2007 and 2017, including two incidents involving sexualised behaviour towards other inmates. Between November 2009 and July 2018, the respondent was involved in ten breaches and incidents, including failing to take his prescribed medication, attempting to assault another prisoner by throwing water on him and being in possession of prohibited items. He also noted that even where the respondent’s privileges had been removed as a result of non-compliance, it did not appear he comprehended the seriousness of his actions; had adjusted his behaviour; or gained insight into the impact of his actions on others or on the maintenance of order within the custodial facility.
The Acting Commissioner’s report also canvassed interviews conducted by Community Corrections with the respondent on 6 June 2018 and 15 June 2018. The Acting Commissioner noted that during these interviews, it did not appear the respondent was aware of the implications of the current proceedings before the Supreme Court under the Act. He also reported that although the respondent was advised of the potential implications of a supervision order or detention order, his understanding of his obligations under such an order may have been minimal. He noted that the respondent also reported to Community Corrections and other professionals that he believed he was too old to be of further risk to others. (He said, “Too old … no work anymore.”) However, he also claimed that other prisoners wanted to “tickle him” (advising that “tickling” was a precursor to fellatio). The Acting Commissioner took this to be an indication that the respondent’s statements regarding his erectile function were not true.

The Acting Commissioner also noted the respondent’s failure to identify any accommodation options which could be assessed for suitability and concluded that there were no suitable accommodation options that the respondent could be released to in the event a supervision order was made.
The Acting Commissioner also observed that an electronic monitoring device (‘EDM’) would only enable staff to monitor and manage restrictive conditions imposed on the respondent and provide an improved response time for any non-compliance rather than mitigating any risk present. He noted that an EDM would be of no benefit if the respondent did not abide by the conditions imposed with it and concluded that the respondent’s risk to the safety of the community if released would not be mitigated through an EDM.
The Acting Commissioner’s report included a cognitive assessment by a psychologist, Dr James Huntley, which noted that the respondent had a borderline to low average level of intellectual function and that the respondent’s arithmetic and calculation skills were extremely poor. The assessment indicated that the respondent required repetition to consolidate new information, but that even with repetition, new information did not appear to remain in the respondent’s memory. The assessment noted that the respondent’s level of substance intake in his formative years was unknown. However, it also found that it was more probable than not that the respondent’s substance intake in this period had profoundly affected his neurodevelopment function vital to his frontal lobes role in exercising judgment. In considering the treatment options, Dr Huntley recommended a highly structured environment for the respondent to mitigate against his impulsive behaviour, including monitoring of drug and alcohol intake, and some form of formal guardianship to support him given his cognitive and adaptive defects.
The Acting Commissioner’s report concluded that the respondent had not benefited from the multiple programs he had undertaken whilst in custody and that the respondent remained at a high risk of committing a further serious sexual offence. He also advised that it was not reasonably practicable for Correctional Services to provide the level of direct supervision required to ensure the protection of the wider community should the respondent be released on supervision.
On 7 February 2019, the application for a final continuing detention order pursuant to s 23 of the Act was heard before this Court. I was satisfied that the respondent was a qualifying offender;[5] that is to say that he had been convicted of a serious sex offence.[6]
Under s 31 of the Act, on hearing an application made under s 23, the Supreme Court may make a final continuing detention order or final supervision order in relation to the qualifying offender if satisfied that the qualifying offender is a serious danger to the community.
Under s 6 of the Act, 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.[7]
In deciding whether a person is a serious danger to the community, a court must have regard to:
(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; and
(c)the need to protect people from those impacts.
In determining an application under s 23, the paramount consideration is the need to protect victims of serious sex offences committed, or likely to be committed, by the person, their families and the general community. A secondary consideration is the desirability of providing rehabilitation, care and treatment for the qualifying offender.[8]
In considering the need for community protection, the court must have regard to the likelihood of the person committing another serious sex offence; and also to whether adequate protection could reasonably be provided by making a supervision order in relation to the person.[9]
I was satisfied, on the basis of the respondent’s criminal history, the reports by Dr Sullivan, Dr Walton and Dr Das, the report of the Acting Commissioner of Correctional Services and the attached cognitive assessment by Dr Huntley, that there was a high risk of the respondent committing further serious sexual offences if released from prison and, hence, that he was a serious danger to the community. This was not ultimately disputed by counsel for the respondent.
I was further satisfied that adequate protection could not reasonably be provided by making a supervision order in relation to the respondent. I was satisfied, from the Acting Commissioner’s report, that the Acting Commissioner did not have the resources to provide the level of supervision in the community that would be required to adequately protect the public from the respondent’s high risk of further serious sexual offending.
Accordingly, on 7 February 2019 I made an order that the respondent be subject to a final continuing detention order pursuant to s 31(1) of the Act and fixed a review period of 12 months.
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[1] Serious Sex Offenders Act 2013 (NT) (‘the Act’) s 25(1)

[2] ibid s 6(1)

[3] ibid s 25(2)

[4] ibid s 79

[5] ibid s 22(1)

[6] A serious sex offence is defined in s 4 of the Act, relevantly, as an offence listed in Schedule 1 of the Act, which includes an offence against s 192 of the Act – sexual intercourse or gross indecency without consent.

[7] the Act s 6(1)

[8] ibid s 9(1)

[9] ibid s 9(2)