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PARTIES: ATTORNEY-GENERAL FOR THE STATE OF QUEENSLAND / (applicant/respondent) / v / KEITH ALBERT BEATTIE / (respondent/appellant)

FILE NO/S: Appeal No 9990 of 2006 / SC No 4963 of 2006

DIVISION: Court of Appeal

PROCEEDING: General Civil Appeal

ORIGINATING COURT: Supreme Court at Brisbane

DELIVERED ON: 30 March 2007

DELIVERED AT: Brisbane

HEARING DATE: 13 March 2007

JUDGES: Keane and Holmes JJA and Douglas J / Separate reasons for judgment of each member of the Court, each concurring as to the order made

ORDER: Appeal dismissed

CATCHWORDS: APPEAL AND NEW TRIAL – APPEAL - GENERAL PRINCIPLES – RIGHT OF APPEAL – WHEN APPEAL LIES – ERROR OF LAW – PARTICULAR CASES INVOLVING ERROR OF LAW – FAILURE TO GIVE REASONS FOR DECISION – ADEQUACY OF REASONS – where order made for continued detention of appellant pursuant to s 13(5) of the Dangerous Prisoners (Sexual Offenders) Act 2003 (Qld) – whether decision to make detention order rather than supervision order supported by adequate reasons – whether supervision order could have provided adequate protection to the community / Dangerous Prisoners (Sexual Offenders) Act 2003 (Qld), s 13 / Attorney-General (Qld) v Francis [2006] QCA 324, Appeal No 452 of 2006, 30 August 2006, applied

COUNSEL: R A East for the appellant / B H P Mumford for the respondent

SOLICITORS: Legal Aid Queensland for the appellant / Crown Law for the respondent

KEANE JA: The appellant has been imprisoned since 20 July 1996 for sexual offences against pre-pubertal and pubescent boys. On 15 June 2006, the respondent instituted proceedings against the appellant under the Dangerous Prisoners (Sexual Offenders) Act 2003 (Qld) ("the Act"). The appellant was due for release from detention on 3 November 2006 unless an order for his continued detention was made under the Act. On 26 October 2006, the learned primary judge ordered that: "[p]ursuant to Section 13(5)(a) of [the Act] … the Respondent be detained in custody for an indefinite term for control, care or treatment."

The appellant contends that the learned primary judge erred in law in making this order, principally because his Honour did not properly consider whether a supervision order, rather than a detention order, would have provided adequate protection to the community pursuant to s 13(6) of the Act. I will discuss the appellant's argument on the appeal after summarising the relevant provisions of the Act and setting out the findings and conclusions of the learned primary judge.

The Act

Section 13 of the Act applies if the court is satisfied that the prisoner is "a serious danger to the community" in the absence of an order. A prisoner is "a serious danger to the community" by reason of s 13(2) of the Act if there is an unacceptable risk that the prisoner will commit a serious sexual offence if released from custody, or if released from custody without a supervision order being made. In this regard, s 13(3) provides that the court must be satisfied by "acceptable, cogent evidence; and … to a high degree of probability; that the evidence is of sufficient weight to justify the decision" by reference to the criteria prescribed by s 13(4). This subsection is in the following terms:

"In deciding whether a prisoner is a serious danger to the community as mentioned in subsection (1), the court must have regard to the following –

(a) the reports prepared by the psychiatrists under section 11 and the extent to which the prisoner cooperated in the examinations by the psychiatrists;

(b) any other medical, psychiatric, psychological or other assessment relating to the prisoner;

(c) information indicating whether or not there is a propensity on the part of the prisoner to commit serious sexual offences in the future;

(d) whether or not there is any pattern of offending behaviour on the part of the prisoner;

(e) efforts by the prisoner to address the cause or causes of the prisoner’s offending behaviour, including whether the prisoner participated in rehabilitation programs;

(f) whether or not the prisoner’s participation in rehabilitation programs has had a positive effect on the prisoner;

(g) the prisoner’s antecedents and criminal history;

(h) the risk that the prisoner will commit another serious sexual offence if released into the community;

(i) the need to protect members of the community from that risk;

(j) any other relevant matter."

Section 13(5) of the Act provides that, if the court is satisfied that a prisoner represents a "serious danger to the community", then the court may make a continuing detention order or a supervision order.

Section 13(6) of the Act provides that the paramount consideration in deciding whether to make an order for continuing detention or supervised release is the "need to ensure adequate protection of the community".

The decision of the learned primary judge

The appellant was born on 4 February 1942. From the age of 14 years, he was subjected to serious sexual abuse by a man who was a friend of his father. This abuse lasted for about three years.¹

The appellant first came before a court on a charge of sexual misconduct on 29 September 1978. On that occasion, he failed to appear to answer the charges. On 14 February 1989, he was given a suspended sentence of imprisonment in New South Wales. He was extradited to Queensland two days later, where he was subsequently sentenced to imprisonment for two years and four months.

On 10 May 1990, the appellant was diagnosed by a psychiatrist, Dr Edwards, as a homosexual paedophile who was "a substantial risk for re-offending".² The learned primary judge noted Dr Edwards' opinion as to the appellant's unrealistic and irresponsible attitude towards his paedophilia. Dr Edwards said:³

"It is my opinion that Mr Beattie has not been honest with anyone concerning these matters and he continues to deny that he has a considerable sexual interest in young boys. In my opinion, he is a homosexual paedophile. He informed me that he does not believe he has a sexual deviation problem and following from this, he informed me that he does not believe he is in need of treatment. He believes he can control his sexual impulses. This may well be so. I am not aware of anything that would lead me to the conclusion that he is incapable of controlling his sexual impulses. He simply chooses not to exercise control because his deviant sexual behaviour provides the gratification he desires.

While he continues to use denial and rationalization concerning his deviant sexual behaviour he will continue to be a difficult if not impossible person to treat, particularly given the quality of existing assessment and treatment facilities for sex offenders in Brisbane. He is clearly unmotivated to change."

In February 1994, the appellant was sentenced to further terms of imprisonment for indecent assaults on male persons. A report by Mr Andreasen, a consulting clinical psychologist, to the Legal Aid Commission of New South Wales recorded that the appellant claimed to have "found religion" and to have abjured his paedophile proclivities. Mr Andreasen regarded the appellant's claims as evidence of a lack of insight on the appellant's part. Nevertheless, Mr Andreasen expressed the opinion that "any need for the further protection of society may well better be served by a longer period of probationary supervision rather than a shorter period of further imprisonment".⁴

On 10 July 1997, he was convicted of a number of further sexual offences, including unlawful carnal knowledge of an intellectually impaired person. He was subsequently sentenced for further offences of sexual misconduct, including maintaining an unlawful relationship of a sexual nature with a child under 16 years of age. On 24 November 1997, he was sentenced to nine years imprisonment for the latter offence.⁵

While in prison, the appellant has attended cognitive skills and anger management programs, but he has refused to participate in any sexual offending treatment program. In May 2000, he was assessed as suitable for the Sex Offenders Treatment Program (SOTP) but thereafter refused to participate in the program on several occasions between 2001 and 2004.⁶ In November 2005, the appellant declined the opportunity to participate in the High Intensity Sexual Offending Program ("HISOP").⁷ Some of the reasons he gave for his refusal, such as his age and his unwillingness to move to the section of the prison where the program is conducted, were obviously spurious. The appellant expressed a willingness to participate in a Medium Intensity Sexual Offending Program ("MISOP"), a program which was not, and is not yet, available, but which, if it becomes available, may be pursued outside prison. This history suggests that the appellant remains, in the words of Dr Edwards, "clearly unmotivated to change".

It should be noted that although the respondent contended before the learned primary judge that the appellant was a serious danger to the community, the respondent did not seek an order from his Honour for continued detention as opposed to an order for supervised release. On appeal, the respondent supported the order made by his Honour. It should also be noted that the appellant did not, either at first instance or on appeal, challenge the making of an order under s 13(5) of the Act, but argued that a supervision order should be made on the footing that the conditions of a supervision order would prevent the appellant having contact with potential victims and would thus afford adequate protection to the community.

At the hearing of the respondent's application, Professor Barry Nurcombe, Dr Basil James and Dr Ian Colls each gave evidence in relation to the nature and extent of the risk of the appellant re-offending.

The learned primary judge canvassed the evidence adduced at the hearing and proceeded to make the following findings of fact by reference to the criteria set out in s 13(4) of the Act:⁸

"From the evidence of the psychiatrists and from the respondent’s criminal history I conclude that the risk of the respondent’s committing an offence of a sexual nature against children if he is released from custody is substantial - at least moderate but probably moderate to high. Taking into account his history and the views of the psychiatrists, including Dr Edwards, I conclude Dr James’s assessment is too optimistic. It would appear to me that it is not likely that he would actively seek out children to satisfy his deviant urges, but that, when presented with an opportunity to do so, he would be inclined to satisfy those urges. The question of his age was discussed in the oral evidence by each of the psychiatrists called at the hearing and they were in agreement that the risk of re-offending by this type of offender is not eliminated with advancing years.

I am satisfied that the respondent is a serious danger to the community in the absence of an order under Division 3 of Part 2 of the Act. There is an unacceptable risk, established, on my assessment, to a high degree of probability, that he will commit an offence of a sexual nature against children if he is released from custody.

In reaching that conclusion I have had regard to the matters referred to in s. 13(4) of the Act.

As to s. 13(4)(a), Drs James and Colls diagnosed the respondent as having the disorder of sexual functioning of homosexual paedophilia. Dr. James described it as paedophilia, non-exclusive but homosexual, and Dr. Colls as paedophilia, sexually attracted to males. Dr. James concluded that the risk of the respondent’s re-offending sexually is low to moderate. Dr. Colls concluded that the risk of such re-offending was significant, or, as he said in his oral evidence, ‘moderate to high’. Both expressed the opinion that psychotherapy was required. It appears from the reports of both doctors that the respondent was co-operative when they interviewed him.

As to s. 13(4)(b), Professor Nurcombe diagnosed the respondent as having the disorder of paedophilia, non-exclusive, primarily fixated, homosexual in type. He also diagnosed the respondent as having an avoidant personality disorder. Drs James and Colls did not make the latter diagnosis. Professor Nurcombe noted that the respondent’s paedophilia is directed predominantly toward pre-adolescent and adolescent males, adding that he has also been sexually involved with an intellectually impaired male young adult that he has engaged in homosexual activity with male adults and has had only minor involvement with adult women. Professor Nurcombe’s assessment of the risk of the respondent’s sexual recidivism was, as I have related, moderate to high. Dr Edwards assessed him as a homosexual paedophile not suffering from a psychiatric illness. Dr Edwards’s pessimistic forecast proved to be correct, Mr Andreasen’s confidence in the benefits of supervision was misplaced.

As to s. 13(4)(c), the respondent’s past history clearly shows that he has a propensity to commit serious sexual offences which, on the evidence of all three psychiatrists who gave oral evidence, is not eliminated with advancing years for this type of offender.

As to s. 13(4)(d), there is a pattern in the respondent’s offending behaviour and that pattern is accurately described by Professor Nurcombe at para. 69 of his report.

As to s. 13(4)(e), the respondent has refused to participate in any sexual offending treatment program offered to prisoners. He has participated in Cognitive Skills and Anger Management Programs.

As to s. 13(4)(f), there is no evidence that the respondent’s participation in Cognitive Skills and Anger Management Programs has had any positive effect on the respondent’s ability to resist the temptation to commit another serious sexual offence when presented with the opportunity to do so.

As to s. 13(4)(g), the respondent’s antecedents and criminal history show that he has persistently committed serious sexual offences.

As to s.13(4)(h), I conclude on the evidence that the risk that the respondent will commit another serious sexual offence if released is at least moderate and in any event substantial.

As to s. 13(4)(i), there is clearly a need to protect members of the community from the risk of the respondent’s committing another serious sexual offence if released into the community, because, although I concluded that it is unlikely that the respondent would actively seek to find victims to satisfy his deviant urges, there is a high degree of probability that, if presented with the opportunity to offend, he would do so.

As to s. 13(4)(j), I accept the evidence of all three psychiatrists that the tendency by this type of offender to re-offend is not eliminated with age." (emphasis added)

His Honour then proceeded to reach the following conclusion:⁹

"Bearing in mind that the intrusions of the Act on the liberty of the subject are exceptional and that that liberty should be constrained to no greater extent than is warranted by the Act (Attorney-General (Qld) v. Francis [2006] Q.C.A. 324 at para. 39) but also that the paramount consideration on this application is the need to ensure adequate protection of the community, I conclude that a continuing detention order should be made. There is no doubt in my view that if the respondent were to be released he would be as serious a danger to the community as he has been in the past in spite of his age. His history shows him to be a persistent offender. Any expression of remorse or willingness to try to overcome his impulses must, in the light of his history, be treated with the greatest scepticism. Dr Edwards doubted his honesty in 1990 and there is no reason to reach a different conclusion now. He has refused to participate in the High Intensity Sexual Offending Program and so has denied himself any beneficial effects the program might have upon him; and, by doing so, has also demonstrated his unwillingness to incommode himself with a view to rehabilitation. Dr Edwards’s report was remarkably prescient in concluding there was a substantial risk of his re-offending. Had the respondent successfully participated in the High Intensity Sexual Offending Program a supervision order could have been made with some confidence, but in the present state of things such an order would carry with it too great a risk to the community." (emphasis added)

The appellant's contentions on appeal

The appellant's principal contention is that the learned primary judge erred in law in failing properly to consider whether a supervision order could have provided adequate protection to the community. The appellant argued that the learned primary judge did not appreciate that, having regard to the evidence upon which his Honour acted, a supervision order would afford adequate protection to the community.

In Attorney-General (Qld) v Francis,¹⁰ this Court said:

"The question is whether the protection of the community is adequately ensured. If supervision of the prisoner is apt to ensure adequate protection, having regard to the risk to the community posed by the prisoner, then an order for supervised release should, in principle, be preferred to a continuing detention order on the basis that the intrusions of the Act upon the liberty of the subject are exceptional, and the liberty of the subject should be constrained to no greater extent than is warranted by the statute which authorised such constraint."

As to "the risk to the community posed by the prisoner", it should be noted that the learned primary judge found that, although it is "unlikely that the [appellant] would actively seek to find victims to satisfy his deviant urges, there is a high degree of probability that, if presented with the opportunity to offend, he would do so". This finding was open to his Honour on the evidence, and, indeed, its correctness has not been challenged.

For the appellant, it was argued that the expert description of the risk of the appellant's re-offending as "moderate" meant that the risk fell short of "unacceptable". But this argument overlooks the point that whether or not a moderate risk is unacceptable must be gauged by taking into account the nature of the risk and the consequences of the risk materialising. In this regard, the appellant's likely targets are children, and especially street children: vulnerable members of the community who are likely to be peculiarly susceptible to his seduction techniques. The focus of consideration must, therefore, be upon the likely effect of a supervision order in terms of reducing the opportunities for the appellant to engage in acts of seduction of children to an acceptably low level.

In this respect, the appellant argued that the learned primary judge failed to consider the effect which conditions attached to a supervision order would have upon the risk of his re-offending. In support of this submission, the appellant referred to observations by Dr Colls and Dr James that the conditions of supervision proposed by the appellant "could" reduce the risk of the appellant's re-offending.

At the hearing below, the appellant proposed that he be released subject to a supervision order which would contain, inter alia, the following conditions:

"(i)Be under the supervision of a corrective services officer ('the supervising corrective services officer') for the duration of this order;

(ii)report to the supervising corrective services officer at the Department of Corrective Services Area Office closest to his place of residence between 9 am and 4 pm on the day of his release subject to the supervision order and advise the officer of the [appellant's] current name and address;

(iii)reside at a place within the State of Queensland as approved by a corrective services officer by way of a suitability assessment;

(iv)report to and receive visits from the supervising corrective services officer at such frequency as determined necessary by the supervising corrective services officer;

…

(viii)notify the supervising corrective services officer of every anticipated change of the [appellant's] place of residence at least two business days prior to the change and obtain the approval of the supervising corrective services officer prior to the change;

…

(xii)respond truthfully to enquiries by the supervising corrective services officer about his whereabouts and movements generally;

(xiii)not join, affiliate with, attend on the premises of or attend at the activities carried on by any club or organisation in respect of which there are reasonable grounds for believing there is either child membership or child participation;

(xiv)not be on the premises of any shopping centre, without reasonable excuse, between 8 am to 9.30 am and between 2.30 pm and 4.30 pm on school days other than for the purposes of:

(i)employment; or

(ii)attending a bona fide pre-arranged appointment with a government agency, medical practitioner or the like; or

(iii)for any other purpose if the supervising corrective services officer has given prior approval in writing;

not visit public parks without prior written permission from the supervising corrective services officer;

not without reasonable excuse be in the area within 200 metres of a school between 8 am to 9.30 am and 2.30 pm to 4.30 pm on school days;

not undertake unsupervised care of children;

not establish and maintain unsupervised contact with children under 16 years of age;

not without reasonable excuse be within 200 metres of a children's playground or child care area;

…

attend a psychiatrist or other mental health practitioner who has been approved by the supervising corrective services officer at a frequency and duration which shall be recommended by the treating psychiatrist, the expense of which is to be met by the Department of Corrective Services;

…

attend any program, course, psychologist, counsellor or other mental health practitioner, in a group or individual capacity, as directed by the treating psychiatrist and the supervising corrective services officer the expense of which is to be met by the Department of Corrective Services;

…"

Professor Nurcombe doubted that the conditions proposed could "in themselves … eliminate the risk". Professor Nurcombe opined that the conditions proposed might reduce the appellant's risk of re-offending but not eliminate it. Professor Nurcombe's opinion was that:¹¹

"[t]he pattern of future sexual offences is likely to repeat the pattern of the past: Mr Beattie attracts pre-pubertal and early pubertal youth by offering strays and street children refuge, and interesting them in repair of motor cycles or bicycles … His capacity to resist these temptations is affected by the pathogenic ego defences of denial, minimization etc. He has received virtually no treatment for his condition. It would be risky to release him to the community before he has completed the high intensity sex offender programs."

Dr James' opinion was that the risk of the appellant "re-offending sexually … is low to moderate". Dr James considered that the conditions proposed would reduce the risk posed by the appellant. Dr James was of the opinion that the risk of the appellant's re-offending would be reduced if an order for his release contained conditions that he should, inter alia: "be required to live in an approved address, not close to schools or other places where children and young persons may be gathered" and:

"have assistance and support in attending a professional person qualified to provide him with the supportive psychotherapy (which need not be intense, but should extend over a period of at least a year, and thereafter maintain an availability of access by Mr Beattie as necessary)."

According to Dr James, the appellant must also "abstain from alcohol and all illicit drugs".¹²

Dr Colls thought that the conditions of the proposed supervision order could reduce the risk of re-offending "down to a low level". Dr Colls considered that the appellant:¹³

"is likely to remain at significant risk of re-offending sexually indefinitely, unless and until he has been able to be successfully engaged in psychological treatment (and/or anti-androgen therapy), and that treatment is likely to need to be long term. Even with skilled and appropriate treatment, considering his age and the entrenchment of his difficulties, he is likely to remain at some (and probably significant) risk of re-offending for years, if not indefinitely."

It may be noted here that the value of the views of both Dr James and Dr Colls for present purposes depends to a degree upon assumptions as to the appellant's willingness and ability to abide by the conditions of his release, including conditions in relation to treatment. The significance of the appellant's history for present purposes is that it tends to undermine confidence in the belief that the appellant will adhere to the conditions in the proposed supervision order.

The appellant argued that the reasons for judgment given by the learned primary judge do not explain how it is that, having regard to the nature of the risk of re-offending found by the learned trial judge, the conditions in the proposed supervision order were not apt to ensure that the appellant would have no real opportunity to engage in the seduction of unaccompanied children. In this regard, the appellant's Counsel emphasised that the appellant's pattern of offending did not involve impulsive acts, such as abduction or attacks upon children in the street. The passage from the reasons of this Court in A-G (Qld) v Francis set out above, which was referred to by the learned trial judge, indicates that the question whether conditional supervised release is apt to ensure the adequate protection of the community is an issue which must be addressed "having regard to the risk to the community posed by the prisoner". The appellant argues that, even on the basis of Professor Nurcombe's opinion, on which the learned trial judge acted to identify the nature of the risk which the appellant poses to the community, there is no sufficient reason to think that the conditions of the supervision order were not apt to afford adequate protection to the community. This being so, it was said, his Honour's reasons failed adequately to explain why a continued detention order was necessary to protect the community.

There is some force in the submission of the appellant. The reasoning of the learned trial judge does not contain an analysis of how it is that the risk posed by the appellant would not be adequately addressed by the conditions on which it was proposed that the appellant be released. This criticism is justified, but only to the extent that the risk posed by the appellant can be said to be unlikely to materialise before the authorities might be alerted to the need for protective intervention as a result of the provisions in the proposed supervision order. To the extent that the appellant does not pose a risk of abduction of, or impulsive assault upon, unaccompanied children on the city streets, it may be said that his Honour's reasons should have provided a more explicit explanation of the basis for his conclusion.

On the other hand, it is clear from his Honour's reasons that his Honour was concerned by the circumstance that the appellant's history reflects a lack of insight into the reasons for his paedophilia and a lack of responsibility and reliability in terms of his willingness and ability to address and control it. It is clear enough that these concerns informed his Honour's conclusion that an order for the continued detention of the appellant was necessary to provide adequate protection against the risk that the appellant might re-offend.

The learned primary judge was not satisfied that the appellant can be relied upon to adhere to the strictures of the conditions in the supervision order. The efficacy of the protective regime under the proposed supervision order is inevitably dependent to a substantial degree upon the appellant's adherence to the conditions regulating his recourse to areas where he will have the opportunity to initiate relationships with children which he may then seek to exploit for criminal purposes. It was open to his Honour to conclude that it would not be a responsible exercise of the discretion conferred by s 13(5) of the Act to assume that the conditions of release would serve to bring to the attention of the authorities any attempted seduction of a child by the appellant before an offence could be committed.

Even if it were to be held that the reasons given by the learned trial judge do not sufficiently explain his Honour's conclusion, in my respectful opinion, this Court should reach the same conclusion on the basis of the learned primary judge's findings of fact and the evidence which his Honour relied upon in that regard. If it were necessary for this Court to consider afresh the exercise of the discretion conferred by s 13(5) of the Act, this Court must concern itself with whether, and the extent to which, the appellant has demonstrated his readiness and willingness to adhere to the restrictions imposed on the prisoner by the conditions of the supervision order.

In my respectful opinion, this Court cannot conclude that the appellant is sufficiently willing and able to observe the conditions of the supervision order to reduce to an acceptable level the danger which he poses to the community. The appellant has a long history of irresponsible denial of his paedophilia. He has consistently refused treatment in the past, and has not given any recent indication of a change of heart. In short, there is no evidence that the appellant is able to control his paedophilia or that he has sought responsibly to do so. In summary, this Court cannot be confident that the appellant will adhere to the strictures of a supervisory regime which can be expected to work only if he is genuinely committed to it.

A related argument advanced for the appellant was that it is wrong to conclude that a supervision order could not be made merely because of the appellant's failure to successfully participate in the HISOP program. This argument must be rejected. The point is not, as the appellant's argument would have it, that a supervision order cannot be made without the appellant having first successfully participated in the HISOP program. Rather, the point is that the appellant's attitude towards participation in the program, when seen against the background of the appellant's history of irresponsible denial, means that the Court cannot be satisfied that the appellant will make a genuine and responsible effort to control his paedophilia.

Finally, it was said on the appellant's behalf that the learned primary judge erred in failing to have regard to the lengthy period of incarceration which the appellant has already endured, his age and ill health. There is no reason at all to think that his Honour did not have a proper awareness of these circumstances; but, in any event, these considerations have no decisive bearing upon the result of this case. None of the experts offered support for the view that the appellant's age, infirmity or time in prison were apt to render him no longer a "serious danger to the community". To the extent that his age was the subject of attention in the course of the hearing, the psychiatrists were, as his Honour noted in the excerpt from his reasons at paragraph [14] above, in agreement that the risk of re-offending was not eliminated by the appellant's advancing years.

Conclusion

The appellant has not shown that the decision below is not sustained by the findings of fact made by his Honour and the evidence accepted by his Honour in that regard. The appeal should be dismissed.

HOLMES JA: I have had the advantage of reading the reasons for judgment of Keane JA. I agree with his Honour's analysis of the evidence and the result at which he arrives. The learned judge at first instance did not articulate reasons for concluding that a supervision order, rather than a continuing detention order, would not ensure adequate protection of the community, and to that extent error is shown. On the evidence, however, I would not exercise the discretion differently.

DOUGLAS J: I agree with the reasons of Keane JA and the order proposed by him.