Attorney-General for the State of Queensland v Buckley [2022] QSC 64

• [1] In September 2003, the respondent pleaded guilty to serious charges, including five counts of rape, arising out of three violent attacks on women which took place in 1999 and 2000. At first instance, the District Court imposed an indefinite sentence under s 163 of the Penalties and Sentences Act. As required by that section, the Court indicated that the nominal sentence it would otherwise have imposed, in respect of each rape conviction, was 22 years imprisonment. An application to the Court of Appeal for leave to appeal against the indefinite sentence was unsuccessful.[1] However, an appeal to the High Court was allowed. The orders of the Court of Appeal were set aside and the matter was remitted to the Court of Appeal for further consideration in accordance with the reasons of the High Court.[2] Following that further consideration, the Court of Appeal allowed the appeal, set aside the indefinite sentences, and instead imposed concurrent sentences of 22 years' imprisonment on each count of rape.[3]
• [2] The factual circumstances of the offending were summarised by Holmes J (as her Honour then was) in R v Buckley [2004] QCA 148 at [13]- [15], as follows:

"[13] The applicant committed the offences for which he was sentenced between 6 March 1999 and 21 January 2000. The first two rapes were committed on a 20 year old woman who was walking alone to her home in Dalby at about 4 am. The applicant grabbed her from behind and forced her to the ground. He then used the strap of her shoulder bag around her neck to choke her and force her to an area where he anally and vaginally raped her, causing what was described in a medical report as 'major anal trauma' and other less serious genital injuries. At the end of the assault he threatened to kill the complainant if she moved as he left.

[14] The second series of assaults was committed on a 67 year old woman. At about 5 am one morning, the applicant broke a window to get into the bedroom where the victim was sleeping. He tried to sodomise her inside the bedroom and then dragged her out of the house into the backyard, where he attempted to put his penis into her mouth. He then sodomised her while placing his fingers in her vagina. Those events gave rise to rape and indecent assault charges.

[15] The third set of offences was committed on a 15-year-old girl whom the applicant attacked as she walked alone in a Toowoomba city street at about 1 am. He chased her, and then knocked her to the ground from behind, causing her in the fall to suffer a fractured femur. Notwithstanding her plea that she thought her leg was broken, he raped her vaginally and anally. At one stage when he thought she had looked at him he slapped her on the face and head."

• [3] The respondent was arrested for those offences on 27 April 2000 and has been in custody since then.[4] The respondent's full time release day[5] is 26 April 2022.
• [4] On 12 November 2021, the applicant applied for preliminary orders under s 8 and a final "division 3 order" under s 13 the Dangerous Prisoners (Sexual Offenders) Act 2003 (Qld) - either a continuing detention order, under s 13(5)(a), or an order for release subject to the conditions of a supervision order, under s 13(5)(b).
• [5] Following the preliminary hearing on 1 December 2021, the Court was satisfied there are reasonable grounds for believing that the respondent is a serious danger to the community in the absence of a division 3 order. Orders were made that:

(a) the application for a division 3 order be set down for hearing on 21 March 2022; and

(b) pursuant to s 8(2)(a) of the Act, the respondent undergo examinations by two psychiatrists, Dr Arthur and Dr Phillips.

• [6] At the start of the hearing on 21 March 2022, counsel for the respondent raised a number of objections to the admissibility of evidence to be relied upon by the applicant. Among many others, objection was taken to:

(a) a statement from a former partner of the respondent, LH, which contained allegations against the respondent, denied by him, which allegations were never the subject of any criminal charge or proceeding, but were apparently considered by the psychiatrists in preparing their reports; and

(b) material relating to the respondent's conduct in prison, the truth of which the respondent challenges; and

(c) in both respects, those parts of the psychiatrists' reports containing opinions founded upon that material.

• [7] Counsel for the respondent also foreshadowed an application for disclosure, in particular of the "notes and other working documents that we'd be entitled to so I can understand the basis of the experts' opinions".[6]
• [8] In so far as the statement from LH is concerned, at the hearing on 21 March 2022 counsel for the respondent submitted that if the psychiatrists were going to refer to that, the applicant was required to call the maker of the statement to prove the allegations. That submission appears to have been made on the basis of an assumption the psychiatrists had relied on the statement for the truth of its contents, as opposed to the fact that it was made. The objection was "provisionally upheld", leaving it open "for the applicant to revisit that ruling, depending upon the extent to which they wish to press the relevance of the matter which may depend upon the extent to which reliance has been placed on it by the psychiatrists".
• [9] The Court reserved ruling on the objection to the material relating to conduct in prison, inviting the applicant to consider whether she wished to press that material, or proposed to call the relevant people as witnesses, or seek to answer the objection in another way.
• [10] As a consequence of the objections and rulings made, the substantive hearing could not proceed on 21 March 2022. The matter was adjourned to a later date for review, to give the applicant time to consider which witnesses she may wish to call to address the evidentiary issues raised. The need for an interim order, under s 9A of the Act, was foreshadowed - in the event the final hearing could not proceed before the respondent's full time release day. Directions for the filing of submissions in relation to either an interim detention order, or an interim supervision order, were also made.
• [11] Had the hearing on 21 March 2022 proceeded, the position adopted by the applicant would have been that:

(a) on the evidence, the court could be satisfied, to the requisite high degree of probability, that the respondent is a serious danger to the community in the absence of a division 3 order; and

(b) that the respondent could be released from custody, subject to the requirements of a supervision order, in terms of a draft which was provided, for a period of five years.[7]

• [12] On 7 April 2022, the applicant filed an application for interim orders, including:

(a) pursuant to s 9A(1) of the Act, an order that the hearing of the division 3 application be adjourned to 19 May 2022; and

(b) pursuant to s 9A(2)(b) of the Act, an order that the respondent be detained in custody up until 4 pm on 19 May 2022.

• [13] On 12 April 2022, the matter came on for review before Callaghan J. His Honour made orders for disclosure of various documents and also made the order sought, under s 9A(1), adjourning the hearing of the substantive application for review on 19 May 2022.
• [14] The application for an interim order came on for hearing before me on 20 April 2022.
• [15] Section 9A of the Act provides as follows:

"9A Court may adjourn hearing for division​ 3 order

(1) The court may, on application or on its own initiative, adjourn the hearing of an application for a division​ 3 order.

(2) If the court adjourns the hearing of the application and is satisfied the application may not be finally decided until after the prisoner's release day, the court may make an order -

(a) that the prisoner's release from custody be supervised; or

(b) that the prisoner be detained in custody for the period stated in the order.

If the court makes an order under subsection (2)(a), the order must contain the requirements for the prisoner stated in section 16 (1)."

• [16] Each of the preconditions in s 9A(2) has been met here: the Court has adjourned the hearing of the application for a division 3 order and, as events have transpired, it is clear the application will not be finally decided until after the respondent's release day. Accordingly, the discretionary power to make an interim order under s 9A(2)(a) or (b) is enlivened.
• [17] Whilst the application as filed seeks only an order pursuant to s 9A(2)(b), that the respondent be detained in custody until 4 pm on 19 May 2022, as clarified by counsel for the applicant at the hearing, it is appropriate to proceed on the basis that the application also seeks the alternative relief, that the respondent's release from custody be supervised.
• [18] The applicant pressed for an order under s 9A(2)(b), that the respondent be detained in custody for a period to be stated in the order (relevantly, up until the time of the substantive hearing), although acknowledged it was open to the court to make an interim supervision order, having regard to the evidence. The respondent pressed for an order that he be released from custody on his release day, and be subject of supervision under the Act.
• [19] The matter of objections also devoured a significant amount of time at the hearing before me. There seemed, in my view, to be a misunderstanding as to the potential relevance of the statement of LH containing allegations - unproven allegations - against the respondent, which were never the subject of any criminal charge. Following the provisional ruling on 21 March 2022, the applicant had, it appears, set about trying to prove the truth of those allegations. This would have involved calling LH as a witness in this proceeding. That is not appropriate, in my view. The statement of LH formed part of the file held by the Office of the Director of Public Prosecutions. It was in that context - disclosure of the whole of that file - that the statement came to the attention of the psychiatrists. Reference is made to it by them, as allegations made by a former partner of the respondent, which may be relevant, as explained by Dr Arthur, for example, to understanding the quality of the respondent's relationships/attachments.

"The appellant was arrested on 27 April 2000, and taken into custody, where he has remained. A DNA sample implicated him in the three attacks. A question arose as to his fitness to plead. On 1 March 2001, the Mental Health Tribunal found that the appellant was fit to plead. After some further delays for reasons that are not presently relevant, the appellant, in June 2003, entered pleas of guilty to the following charges: five counts of rape, each of which carried a maximum penalty of imprisonment for life; one count of burglary with violence, which also carried a maximum penalty of imprisonment for life; one count of indecent assault, which carried a maximum penalty of imprisonment for 10 years; and one count of inflicting grievous bodily harm, which carried a maximum penalty of imprisonment for 14 years. In September 2003, the appellant came for sentence before Judge Howell."

• [29] The High Court, at [10], summarised the respondent's background as follows:

"The appellant was born at Cunnamulla in September 1971. He left school at the age of 13. He worked in various occupations in rural Queensland, including kangaroo shooting and professional boxing. At the time of his arrest he had been working for three years as a leading hand on an oil rig. Prior to his conviction for the offences the subject of this appeal, he had a relatively minor criminal history, involving a number of summary offences such as wilful damage, assault of police, and occasioning bodily harm. More significantly, there were offences involving voyeurism."

• [30] In anticipation of an application for a division 3 order being made, Dr Timmins, psychiatrist, was requested to prepare a psychiatric risk assessment report. She interviewed the respondent, by video link, on 19 March 2021, and prepared a report dated 2 July 2021.[9]
• [31] In her report, Dr Timmins goes through the respondent's background, summarising the information provided by him during the interview. In the context of Dr Timmins' record of her mental state examination, she recorded (at pp 25-26) that:

"On balance, his insight was probably reasonable. He accepted he had a problem leading to his sexual offending and was able to explain what he needed to do as part of his relapse prevention plan to manage himself and his risk to the community. He had engaged in sex offender programs and had a reasonable plan for his future. On the other hand, he denied certain aspects of his previous thinking and behaviour as though because he denied these aspects, they simply did not happen. Regardless of what did or did not occur, Mr Buckley seems aware he has a complex problem which means he is a risk to the community and he has a plan to manage himself better, although he remains untested in the community setting.

His judgment was reasonable at this time in the custodial setting but would be markedly impaired if he became intoxicated, had stress in a relationship or became sexually preoccupied, resentful or angry."

• [32] Dr Timmins reviewed the large amount of documentation that was provided to her, providing a brief summary in her report. This included the transcript of the sentencing proceedings in the District Court and witness statements; early psychiatric reports from 2000 to 2007; psychological treatment reports including a report from Ms Perkins who treated the respondent for 14 months from 2005 to 2006; and a report from Ms Jacks, who saw the respondent for treatment sessions in 2019 and 2020.
• [33] Dr Timmins also had regard to the reports in relation to sex offender programs undertaken by the respondent. The respondent completed the Getting Started Preparatory Program in 2013. As noted by Dr Timmins, the exit report for this program recorded that the respondent demonstrated significant insight into and accepted full responsibility for his sexual offending behaviour. He was able to demonstrate general empathy for others and his victims (p 44), demonstrated a commitment to change and a willingness to participate in future sexual offending programs (p 45). His level of engagement with group participants and facilitators was described as excellent, although he was observed to speak on behalf of other participants and dominate group discussions (p 45).
• [34] The respondent participated in the High Intensity Sexual Offending Program in 2014-2015. The report in relation to this program was also positive. Following this program, it was recommended that the respondent engage with a psychologist or psychiatrist "to further develop his relationship skills, and explore healthy sexuality within these relationships" (p 48). The report noted that an assessment undertaken as part of it identified sexual deviancy as an "intervention target", and as HISOP does not specifically address this treatment need, it was recommended that he seek further professional counselling from a psychologist or psychiatrist in the community in order to minimise and manage this risk factor (pp 48-49).
• [35] The respondent also completed the Sexual Offending Maintenance Program, in 2015. Among other things, the exit report described him as a strong group member who was always involved in discussions, and who demonstrated an intellectual understanding of all program concepts and was able to personalise these to his offending behaviour or life experiences (p 50).
• [36] In addition to those programs, the respondent has also completed a substance use program, in 2013, and a further sexual offending program in 2019 (p 51).

"His early years in custody also shows indications of problematic behaviour until late 2009, in particular his moods, agitation, anger and aggressive behaviour, and interpersonal interactions with reports of sexually threatening comments and sexualised and inappropriate behaviour towards female staff to such a degree that he was removed from Wolston Correctional Centre in 2003. He appears more settled in recent times apart from an investigation in 2019 regarding reported inappropriate behaviour towards a female custodial officer [which] was found unsubstantiated." [underlining added]

• [39] On the question of diagnosis, Dr Timmins says:

"In my opinion [the respondent] most likely meets the DSM-V criteria for Voyeurism, in a controlled environment.

There is previous evidence of other sexual paraphilias such as bestiality and sexual sadism but his thinking is difficult to access and there is denial of certain less desirable aspects of his sexual proclivities such as a previously self-reported interest in bestiality or others' reports of an interest in younger females and the sadistic features of his offending.[10]

He also has evidence of personality vulnerabilities with borderline narcissistic and antisocial traits. He probably scores mid-range on the PCL-R but it is unclear as to whether he would meet the cut-off score for a diagnosis of Psychopathy given the nature of a video link interview. His personality appears to have mellowed over time as he as become older, which is what one would expect in general as a person ages into their 40's and 50's.

He has evidence of a Substance Use Disorder - Alcohol, in remission in the controlled environment of prison." (p 66)

• [40] On the basis of the results of Static-99R and RSVP assessments, Dr Timmins said the respondent would be considered as a high risk of reoffending if released into the community (pp 67-68).
• [41] Dr Timmins describes some problematic personality traits that she says are likely to impact on community management and treatment (including a level of manipulation and adeptness at lying or telling mistruths for secondary gain) (p 70). She records that the respondent seems aware he has a complex, serious and significant problem with sexual offending which means he is a risk to the community and he has a plan to manage himself better. Although he has become more aware of his sexual offending and how to manage it, Dr Timmins notes that is "untested in the community [and] thus would do better with a period of intensive management to show that he is able to self-manage effectively thus reduce is his risk to the community" (p 71).
• [42] The consequences should the risk eventuate are very serious, including the commission of offences of the kind previously committed, which would result in significant harm to any victim. However, Dr Timmins observes "[h]e is more likely to do this serious offending when intoxicated, angry, and have had some disturbance in a relationship, rejection or a disappointment in his life plans" (p 70). As I will note shortly, this reflects Dr Arthur's and Dr Phillips' opinion also, that the risk of sexual reoffending is not imminent.
• [43] Dr Timmins observes that although the respondent "has a tendency to undermine himself with his behaviour, it does appear he has attempted to gain insight and address his risk issues to as much of a degree as he can in the custodial setting" (p 71). Other positive factors are that he has a relatively good work history in custody, family support and relatively sensible and realistic plans for his release (p 71).
• [44] Dr Timmins also says:

"He has also engaged in the sex offending programs with relatively good outcome reports while in custody and seems to have matured during a substantial period of time spent in the custodial setting. He has few violations in recent years when compared to his early period. He intends to engage with a forensic psychologist in the community to assist him in managing his risk to the community which is an encouraging sign."

"In summary, I am of the opinion that [the respondent] will be at a HIGH risk of re-offending in a sexual manner if released into the community at this time without a supervision order.

If the court is of a mind to release Mr Buckley, he will require significant support given he will be institutionalised from 20+ years in prison. He remains untested in the community and a period of structure and strict monitoring is likely to reduce the risk he presents to the community further.

He would benefit from engaging with a forensic psychologist to treat his sexual offending and deviancy, in addition to consolidating strategies around emotional management and interpersonal relationships as he enters the community.

He requires assessment and intervention around his alcohol abuse disorder. He will require regular testing to ensure abstinence.

He would also benefit from group maintenance programs to re-visit and reinforce what he may have learnt from the custodial sexual offending programs.

He will require GPS monitoring. He should engage in work and have suitable accommodation. He should engage in appropriate activities and pro-social relationships, both male and female, which will require monitoring especially any intimate relationships. His internet activities should be monitored for any increase in sexual preoccupation.

If [the respondent] complies with an order and its conditions, his risk may be modified by a community supervision order under the Dangerous Prisoner (Sex Offender) Act 2003. He would most likely fall into a MODERATE risk category." (at pp 71-72) [underlining added].

• [46] In accordance with the order of the court made on 1 December 2021, Dr Arthur and Dr Phillips were engaged to prepare psychiatric risk assessment reports.
• [47] Dr Arthur assessed the respondent on 20 January 2022, and prepared a report dated 2 March 2022. Dr Arthur's report also includes a detailed summary of the extensive documentation provided to him.
• [48] The executive summary of Dr Arthur's report includes the following:

"By [the respondent's] own descriptions the rape offences were opportunistic and unplanned. He claimed that there was no specific victim type and that he was unaware that the third victim was underage.

The rapes are notable in that they all involved violent anal penetration and significant physical violence which exceeded what was required to subdue the victims. There is evidence of escalation in the severity of the violence and the frequency of the offences. [The respondent] has acknowledged that he would have likely continued raping women until caught.

From a developmental perspective, he describes growing up in an impoverished but loving and hardworking family. He has previously reported that he was exposed to alcohol abuse and at least one episode of domestic violence, although now claims that this was untrue. There is also a history of poor academic achievement and possibly a learning disorder. He has consistently reported exposure to severe bullying at school from the ages of 10-13.

His adult persona was that of a hard-drinking man who had a propensity for violence when drunk which garnered him the nickname 'Mad Dog'. He also developed skills at finding casual sexual partners, no doubt enhanced by his tendency towards aggressive persistence. He reports longstanding issues with low self-esteem which has led to the use of avoidant coping strategies, namely emotional suppression, substance abuse and the compulsive seeking out of casual sex. Over time this led to the objectification of women and sexual entitlement.

He appears to have long standing attachment issues which is surprising given the reported love and support he experienced in his family of origin. His adult relationships have been characterised by a lack of commitment, sexual infidelity and transience. Whilst he denies it, one of his long term partners has submitted statements to the police suggesting that he was prone to domestic violence, cruelty and sexual denigration. There are other statements that describe his aggressive pursuance of women and some stalking behaviours.

He has a relevant forensic history predating the offences In addition to two charges related to voyeurism, he has been convicted for high level drink driving, firearm offences, property damage and assault. These offences have reportedly occurred in the context of alcohol intoxication.

[The respondent's] account of his psychosexual development is marred by a number of significant inconsistencies. He has previously stated that he was exposed to bestiality and anal sex as an 8 year old, was taught to masturbate by older children and was further exposed to voyeurism as a 10 year old by an older schoolmate. At interview he claimed that he was sexually abused by a male staff member at his school, but at other times he has adamantly denied any childhood sexual abuse. He admits to acts of voyeurism that continued into adulthood.

[The respondent's] behaviour in custody has settled over time, although initially there were many episodes of physical violence and aggression. There have been concerns about inappropriate behaviour around female staff, which have occurred sporadically throughout his incarceration, the most recent being in 2019. He has denied any such behaviours, accusing staff of being biased against him and falsifying clinical notes in order to ruin his chances of parole.

Whilst the majority of his IOMS notes describe him as a polite, cooperative and well-mannered prisoner with only occasional lapses of discipline, his written correspondences portray an aggrieved, entitled, demanding, critical and contemptuous man.

He has made multiple applications for parole and has been vociferous in his criticisms of the Parole Board's decisions, taking the board to the Supreme Court in 2017.

He has undertaken treatment in relation to sexual offending and substance use, in addition to over 20 individual therapy sessions with Ms Shelley Jacks in 2019/2020. His exit reports have been generally positive.

At interview, [the respondent] expressed the view that he had done everything required of him to prove that he is a changed man. He does not consider himself at risk of recidivism, citing a strong support network of family and friends in the community and plans to find employment as soon as possible. His major risk management strategies are the avoidance of binge alcohol use and casual sex, communicating openly with his supports and seeking out professional assistance as required. He denied the presence of deviant sexual drives or sexual preoccupation." (pp 2-4)

• [49] Dr Arthur diagnoses the respondent as having a "mixed personality disorder with prominent narcissistic, antisocial and borderline traits". Dr Arthur also finds evidence of a "voyeuristic paraphilic disorder dating back to prepubescence". The respondent also fulfils the criteria for "alcohol use disorder, currently in remission in a controlled environment". Dr Arthur considers a diagnosis of "zoophilia" cannot be excluded, having regard to the respondent's previous reports of engaging in bestiality, although he has subsequently claimed such reports were fabrications. Likewise, Dr Arthur considers "sexual sadism" cannot be excluded (pp 75-76).
• [50] On the basis of the various actuarial risk assessment instruments, and Dr Arthur's assessment of the respondent, he expresses the opinion that whilst the respondent's risk of sexual reoffending has been reduced somewhat by his treatment to date, "his unmodified risk for sexual recidivism remains well above average, or high" (p 80).
• [51] In terms of the manifestation of risk, Dr Arthur identifies the risk of engaging in voyeuristic activity and violent sexual offending (p 79). He says that "indicators which may herald an increased risk of recidivism include relationship conflict/breakdown, a return to binge alcohol use, increased sexual preoccupation, frequent casual sex, social withdrawal and evidence of negative rumination" (p 80). The potential for harm, if the risk of violent sexual offending were to eventuate, is substantial. However, Dr Arthur does not consider the risk "imminent". Dr Arthur identifies potential protective factors as including "engagement in psychological therapy, maintaining a close and open relationship with his parents and other family members, regular employment that allows for the maintenance of social supports (not FI/FO work) and engagement in prosocial recreational activities" (p 80).
• [52] Dr Arthur expresses the opinion that:

"a supervision order would reduce his risk from high to moderately low, primarily by ensuring that he remains abstinent from alcohol, engages in ongoing psychological therapy and has restricted victim access." (p 80)

• [53] As expressed in the executive summary, Dr Arthur "recommend[s] a 5 year supervision order with an emphasis on the need for ongoing psychological therapy, abstinence from alcohol, restricting victim access through the application of a curfew and exclusion zones" (p 4). Dr Arthur concludes his report by saying that:

"Should [the respondent] remain offence free in the community for 5 years, his risk of sexual recidivism would reduce substantially. This should be sufficient time for him to gain full benefit from psychological treatment, prove his capacity for self-regulation and develop and enduring prosocial lifestyle." (p 81)

• [54] Dr Phillips assessed the respondent on 3 February 2022, and prepared a report dated 6 March 2022. Dr Phillips also includes a comprehensive summary of the documentation provided to her.
• [55] In expressing her opinion as to diagnoses, Dr Phillips observes that the respondent's sexual offending "occurred on a background of a long history of voyeurism; use of sex as coping; hostility towards women with misogynistic attitudes and objectification of women and sexual entitlement; and alcohol use disorder" (p 32).
• [56] Like Dr Timmins and Dr Arthur, Dr Phillips also notes that the respondent has a history of alcohol use disorder, which is currently in sustained remission in a controlled environment. Dr Phillips considered his presentation was not consistent with a diagnosis of any major mental illness.
• [57] In relation to the previous (pre-sentence) reports which identified paraphilias including voyeurism, zoophilia and sexual sadism, Dr Phillips said:

"At my assessment [the respondent] described a history of Voyeuristic Disorder. By [his] self-report at my assessment he did not meet criteria for a diagnosis of any additional Paraphilic Disorders, including Sexual Sadism Disorder or Zoophilia. At my assessment he reported that at psychiatric assessments following his arrest for the index sexual offending he had falsely claimed to have engaged in having sex with animals, killing animals and violent fantasies regarding women, for the purposes of attempting to obtain a mental health defence.

It is acknowledged that there is a possibility that [the respondent] is currently being guarded and deceptive regarding underlying sexual deviance. However, the risk assessments I have conducted are based on the presumption that his current self-report related to this topic is accurate and he did not engage in these behaviours. Why these previous disclosures continue to have relevance, is that they point to [the respondent's] previous willingness and ability to deceive mental health professionals and thus a level of caution must be exercised in relying solely on his self-report of his psychosexual functioning." (p 33)

• [58] Dr Phillips said the respondent's history is consistent with "antisocial personality traits", but he does not meet the criteria for a diagnosis of "antisocial personality disorder". Nor does he meet the diagnostic criteria for psychopathy (p 33).
• [59] Based on the results of the various risk assessment tools administered by Dr Phillips, it is her opinion that the respondent's "risk of future sexual reoffending falls in the high range, if released from custody without a supervision order" (p 35).
• [60] Dr Phillips refers to the respondent's positive engagement in various rehabilitation activities whilst in custody, but notes "that the apparent gains he has made from the interventions remains untested in the community". She says that, given the length of the respondent's incarceration "it can be anticipated that his transition to the community will be a significant stressor for him and has the potential to be destabilising" (p 36).
• [61] Dr Phillips describes the potential manifestation of the risk posed by the respondent, in similar terms to that described by Dr Arthur (at pp 79-80 of his report), as follows:

"The risk of sexual re-offending would increase in the setting of relapse to alcohol abuse, acute intoxication or psychosocial stressors, for example, perceived rejections, relationship breakdowns, loss of social supports, or stressors in the family. He has limited adaptive coping skills to manage psychosocial stressors, and would be at risk of emotional collapse and returning to his previous maladaptive patterns of alcohol use or use of sex as coping in the context of psychosocial stressors. The risk of sexual re-offending would also increase in the setting of increased sexual pre-occupation or rejection of supervision.

The most likely scenario for re-offending is Mr Buckley feeling stressed, lonely or rejected, becoming intoxicated with alcohol, followed by going out to a nightclub or pub for the purpose of obtaining casual sex, being rejected by women at the nightclub and then sexually offending against an adult female stranger in the vicinity.

The victim of future offending would likely be female, either adult or underage post-pubescent females and is most likely to be a stranger to him, although intimate partners may also be at risk. Future sexual offending is likely to be serious and following a pattern similar to his previous sexual offending a could include oral, digital, vaginal or anal rape. Given his previous history of offending there is potential for future sexual violence to be accompanied by serious physical violence. Future sexual offending may also involve voyeurism offences. There is a potential for serious physical and psychological harm to future victims." (p 36).

"... a supervision order would assist in reducing the risk of re-offending by offering assertive monitoring and interventions to target dynamic risk factors for sexual and physical violence. It is my opinion that if [the respondent] were to be released from custody with a supervision order, in the context of further individual psychological intervention, sexual offender maintenance therapy, abstinence from alcohol and robust supervision in the community, that his risk of sexually re-offending would be in the moderate range. At the time of assessment [the respondent] did not present as an imminent risk of sexual re-offending." (p 35)

• [63] Dr Phillips also makes recommendations for future management of the respondent, on a supervision order, which reflect the recommendations made by Dr Arthur. This includes that the supervision order be for a minimum of 5 years (p 37).
• [64] Following the hearing on 21 March 2022, each of the psychiatrists was asked to comment on the relevance (or otherwise) of the documents to which objection had been taken and also to express their opinion in relation to the respondent's release on an interim supervision order "in the same terms as the final supervision order sought".
• [65] The response from Dr Timmins was not admitted into evidence, in circumstances where counsel for the respondent sought to cross-examine her in relation to it, and she was not available or contactable. I upheld the objection, having regard to the content of Dr Timmins response to the question posed which, in part at least, appeared to factor into account that the (legally represented) respondent had taken a range of objections to the admissibility of evidence. I record, however, that Dr Timmins did not support the respondent being released on an interim supervision order.
• [66] In correspondence dated 1 April 2022, Dr Arthur expressed the view that "it would be detrimental for [the respondent] to be released on an interim supervision order" because "the inherent ambiguities and frustrations of this situation will be an emotional challenge to [him], and he is likely to employ narcissistically-driven coping strategies which may colour early relationships with supervisory staff and act to delay his progression in the community". Dr Arthur said it would be in the respondent's "best interest to be released into the community when the conditions and duration of any supervision order have been finalised and he can be provided with a clear and consistent set of expectations around curfew requirements, community access and his rights and responsibilities".[11]
• [67] When cross-examined, Dr Arthur accepted that, in a conference with the applicant's legal representatives on 15 March 2022 (so, prior to the hearing on 21 March 2022), in response to a question asked of him by counsel for the applicant in relation to the respondent's management on a supervision order, Dr Arthur said, among other things, that the respondent would be "a disaster on an order", because he would not like the restrictions of the order and would quickly try to assert dominance; but that he was "unlikely to sexually reoffend" and "keeping him in jail is not a solution; he needs to be in the community". Dr Arthur confirmed, when asked, that he did not regard the respondent's risk of sexual offending as being imminent.

"As outlined in the 'Post-release Plans' section on page 13 of my report, at the time of writing my report I was aware of [the respondent's] strong desire to be released from custody without a continuing detention order or supervision order. I was also aware that he disputed some information within the brief of evidence that had been provided (for example, at page 11, line 15 of my report I noted that [the respondent] reported that his ex-partner had previously made a false statement against him and he claimed that she had later apologized for that). I already took that information into account when arriving at my overall risk assessment. I have not been provided with any additional information to suggest that [the respondent] has changed his position that he outlined at my assessment (at line 17-20, page 13) that 'He was adamant that if released on a supervision order that he 'wouldn't fail' and would abide by all conditions. He had no concerns regarding ongoing testing for substance use; curfews; GPS monitoring; providing passwords for electronic devices; and allowing internet and phone searches. He was adamant not abscond'.

Whilst it is possible that the uncertainty of the ongoing legal proceedings has the potential to be de-stabilising to [the respondent], and this has the potential [to] place him at risk of emotional collapse and returning to his previous maladaptive patterns of alcohol use or use of sex as coping, it is my opinion that this potential can be adequately managed with the proposed conditions of the interim supervision order, including the availability of curfews." [underlining added]

• [71] There is also before the Court evidence from the respondent. He addresses the issue of ambiguity raised by Dr Arthur, by saying that he understands both the possible outcomes of these proceedings and the terms of the proposed interim supervision order, which is in the same terms as the final order proposed by the applicant, and that he will abide the terms of the order if released.
• [72] The question for the Court, under s 9A(2) is whether the discretion should be exercised to order the respondent's release from custody, under supervision; or to order that the respondent be detained in custody.
• [73] In exercising this discretion, I have taken into account the following matters:

(a) the finding already made, under s 8 of the Act, that there are reasonable grounds for believing the prisoner is a serious danger to the community in the absence of a division 3 order;

(b) that although the exercise of the discretionary power conferred by s 9A(2) is not conditioned upon a conclusive finding that the respondent is a serious danger to the community in the absence of such an order, my assessment of the evidence before the Court is such that it does support such a finding;

(c) that the paramount consideration under the Act is the need to ensure adequate protection of the community (s 13(6)(a));

(d) the evidence of each of the three psychiatrists who have prepared risk assessment reports that, whilst the respondent presents a high risk of sexual reoffending if released without supervision, his release subject to a final supervision under the Act is supported and would reduce that risk. In so far as Dr Arthur and Dr Phillips are concerned, their evidence is very clearly in support of the release of the respondent, subject to a final supervision order for five years (Dr Arthur) or a minimum of five years (Dr Phillips). Dr Timmins is less specific in the expression of her opinion, but nevertheless supports the respondent's release subject of close supervision;

(e) if it were to manifest, the risk of sexual reoffending posed by the respondent is serious, with the potential for significant harm. The evidence of the psychiatrists is that a supervision order would reduce the risk from high, down to moderate (Dr Timmins and Dr Phillips) or moderately low (Dr Arthur). The evidence of Dr Arthur and Dr Phillips in particular is that the risk is not "imminent"; the manifestation of it would be preceded by, for example, a relapse to alcohol use or other psychosocial stressors, such as perceived rejections, relationship breakdowns, loss of social supports, or stressors within the family - things that, I infer, would be observable in the context of supervision. The evidence is that close, or robust (to use Dr Phillips' word) supervision of the respondent in the community would be efficacious in constraining the respondent's behaviour, such that it can be said supervision would reduce the risk to an adequate level;

(f) accordingly, the Court can be satisfied that a supervision order will adequately protect the community against the risk posed by the respondent (s 13(6)(b)(i));

• [74] What remains to be determined, on the substantive, final hearing of the application is:

(a) whether the court is satisfied the respondent is a serious danger to the community in the absence of a division 3 order; and

(b) if so, whether the court ought to exercise the discretion to order the respondent to be detained in custody for an indefinite time for control, care or treatment, or that the respondent be released from custody subject to a supervision order; and

(c) if the court proposes to order that the respondent be released subject to a supervision order, what the terms and duration of that order should be (noting that it cannot be less than 5 years, although could be more than 5 years).

• [75] In exercising the discretion under s 9A(2), I need to make an interim assessment of the first two of these issues, and be satisfied as to the proposed terms of the supervision order (if not the ultimate duration of it). In that regard, for the reasons I have already given, I consider the evidence strongly supports a finding in terms of (a). Further, on the evidence, I consider the evidence does not support the making of an order for the respondent to be detained in custody for an indefinite term for control, care or treatment. Having regard to the draft order provided by counsel for the applicant, I consider the terms of the proposed supervision order reflect the recommendations made by the psychiatrists, and are appropriate.
• [76] In that context, the question is whether, because the final determination of the application has been adjourned, at the request of the respondent, and the matter is being dealt with on an interim basis, the evidence supports the exercise of the discretion to detain the respondent in custody until the matter can be finally determined. I can see no reasonable foundation for that conclusion. On the applicant's approach to this application, the final determination of it would appropriately see the respondent released from custody on a supervision order, in identical terms to the interim order, for at least five years. The respondent wishes to reserve his position, in case, following disclosure of the psychiatrists' notes, he may be able to achieve a better outcome - that is, unconditional release. In short, this is not a case in which it seems likely that the final decision would see the respondent returned to custody, under a continuing detention order. Although of course that final decision remains to be made by the Court which determines the application, on the evidence which is then before it.
• [77] In the unusual circumstances of this case, I am ultimately persuaded that on the proper exercise of the Court's discretion, it is appropriate to make an order under s 9A(2)(a) of the Act, that the respondent's release from custody be supervised, under the conditions of a supervision order in the form of the draft order provided by the applicant at the hearing before me, with the order to remain in place until the final determination of the application for a division 3 order. A copy of the order to be made is set out in the annexure to these reasons.

Initiating document: Originating Application filed 12 November 2021 (CFI 1)

Application for Interim Orders filed 7 April 2022 (CFI 34)

THE COURT, being satisfied that there are reasonable grounds for believing that the respondent, Jason Charles Buckley, is a serious danger to the community in the absence of an Order made under Division 3 of the Dangerous Prisoner (Sexual Offenders) Act 2003, orders, pursuant to s 9A(2)(a) of that Act, that:

1. The respondent be released from custody on 26 April 2022 and must follow the rules in this interim supervision order, as set out in schedule "A" to this order until the application for Division 3 order is finally determined. The rules in this interim order are made according to the Dangerous Prisoners (Sexual Offenders) Act 2003.

Signed: . . . . . . . . . . . . . . . . . . . . . . . . . . .

1. You are being released from prison but only if you obey the rules in this supervision order.

2. If you break any of the rules in this supervision order, the police or Queensland Corrective Services have the power to arrest you. Then the Court might order that you go back to prison.

3. You must obey these rules for the period of the interim order.

4. On the day you are released from prison, you must report before 4 pm to a corrective services officer at the Community Corrections office closest to where you will live. You must tell the corrective services officer your name and the address where you will live.

5. A corrective services officer will tell you the times and dates when you must report to them. You must report to them at the times they tell you to report. A corrective services officer might visit you at your home. You must let the corrective services officer come into your house.

To "report" means to visit a corrective services officer and talk to them face to face.

6. A corrective services officer will supervise you until this order is finished. This means you must obey any reasonable direction that a corrective services officer gives you about:

(i) Where you are allowed to live; and

(ii) Rehabilitation, care or treatment programs; and

(iii) Using drugs and alcohol; and

(iv) Who you may have contact with; and

(v) Anything else, except for instructions that mean you will break the rules in this supervision order.

A "reasonable direction" is an instruction about what you must do, or what you must not do, that is reasonable in that situation.

If you are not sure about a direction, you can ask a corrective services officer for more information, or talk to your lawyer about it.

7. You must answer and tell the truth if a corrective services officer asks you about where you are, what you have been doing or what you are planning to do, and who you are spending time with.

8. If you change your name, where you live or any employment, you must tell a corrective services officer at least two business days before the change will happen.

A "business day" is a week day (Monday, Tuesday, Wednesday, Thursday and Friday) that is not a public holiday.

9. You must not break the law by committing a sexual offence.

10. You must not break the law by committing an indictable offence.

11. You must live at a place approved by a corrective services officer. You must obey any rules that are made about people who live there.

12. You must not live at another place. If you want to live at another place, you must tell a corrective services officer the address of the place you want to live. The corrective services officer will decide if you are allowed to live at that place. You are allowed to change the place you live only when you get written permission from a corrective services officer to live at another place.

This also means you must get written permission from a corrective service officer before you are allowed to stay overnight, or for a few days, or for a few weeks, at another place.

13. You must not leave Queensland. If you want to leave Queensland, you must ask for written permission from a corrective services officer. You are allowed to leave Queensland only after you get written permission from a corrective services officer.

14. A corrective services officer has power to tell you to stay at a place (for example, the place you live) at particular times. This is called a curfew direction. You must obey a curfew direction.

15. A corrective services officer has power to tell you to:

(i) Wear a device that tracks your location; and

(ii) Let them install a device or equipment at the place you live. This will monitor if you are there.

This is called a monitoring direction. You must obey a monitoring direction.

16. You must get written permission from a corrective services officer before you are allowed to start a job, start studying or start volunteer work.

17. When you ask for permission, you must tell the corrective services officer these things:

(i) What the job is;

(ii) Who you will work for;

(iii) What hours you will work each day;

(iv) The place or places where you will work; and

(v) (if it is study) where you want to study and what you want to study.

18. If a corrective services officer tells you to stop working or studying you must obey what they tell you.

19. You must tell a corrective services officer the details (make, model, colour and registration number) about any vehicle you own, borrow or hire. You must tell the corrective services officer these details immediately (on the same day) you get the vehicle.

20. You are only allowed to own or have (even if you do not own it) one mobile phone. You must tell a corrective services officer the details (make, model, phone number and service provider) about any mobile phone you own or have within 24 hours of when you get the phone.

21. You must give a corrective services officer all passwords and passcodes for any mobile phones you own or have. You must let a corrective services officer look at the phone and everything on the phone.

22. You must get written permission from a corrective services officer before you are allowed to use a computer, phone or other device to access the internet.

23. You must give a corrective services officer any password or other access code you know for the computer, phone or other device. You must do this within 24 hours of when you start using the computer, phone or other device. You must let a corrective services officer look at the computer, phone or other device and everything on it.

24. You must give a corrective services officer details (including user names and passwords) about any email address, instant messaging service, chat rooms, or social networking sites that you use. You must do this within 24 hours of when you start using any of these things.

25. You must not contact or try to contact any victim(s) of a sexual offence committed by you. You must not ask someone else to do this for you.

"Contact" means any type of communication, including things like talking, texting, sending letters or emails, posting pictures or chatting. You must not do any of these things in person, by telephone, computer, social media or in any other way.

26. You are not allowed to take (for example, swallow, eat, inject, smoke or sniff) any alcohol. You are also not allowed to have with you or be in control of any alcohol.

27. You are not allowed to take (for example, swallow, eat, inject, smoke or sniff) any illegal drugs. You are also not allowed to have with you or be in control of any illegal drugs.

28. A corrective services officer has the power to tell you to take a drug test or alcohol test. You must take the drug test or alcohol test when they tell you to. You must give them some of your breath, or pee (urine) when they tell you to do this.

29. You are not allowed to go to pubs, clubs, hotels bottle shops or nightclubs which are licensed to supply or serve alcohol. If you want to go to one of these places, you must first get written permission from a corrective services officer. If you do not get written permission, you are not allowed to go.

30. You must tell a corrective services officer about any medicine that a doctor prescribes (tells you to buy).

You must also tell a corrective services officer about any over the counter medicine that you buy or have with you. You must do this within 24 hours of seeing the doctor or buying the medicine.

31. You must take prescribed medicine only as directed by a doctor. You must not take any medicine (other than over the counter medicine) which has not been prescribed for you by a doctor.

32. You must obey any direction a corrective services officer gives you about seeing a doctor, psychiatrist, psychologist, social worker or other counsellor.

33. You must obey any direction a corrective services officer gives you about participating in any treatment or rehabilitation program.

34. You must let corrective services officers get information about you from any treatment or from any rehabilitation program.

Speaking to corrective services about what you plan to do

35. You must talk to a corrective services officer about what you plan to do each week. A corrective services officer will tell you how and when to do this (for example, face to face or in writing).

You must also tell a corrective services officer the name of new persons you have met.

This includes: people who you spend time with, work with, make friends with, see or speak to (including by using social media or the internet) regularly.

36. You may need to tell new contacts about your supervision order and offending history. The corrective services officer will instruct you to tell those persons and the corrective services officer may speak to them to make sure you have given them all the information.

37. You must disclose and discuss with a corrective services officer any type of pornographic material that you are viewing. Your treating psychologist may provide advice regarding your disclosures.

This includes pictures on a computer, photographs, movies, or magazines.

38. You must advise your case manager of any personal relationships you have started.

39. You must obtain the prior written approval of a Corrective Services officer before possessing any equipment that enables you to take photographs or record moving images.

"Equipment" means any type of devices, including things like mobile phones, digital or video cameras, computers, laptops, tablets, surveillance cameras including dashboard cameras and drones.

[1] R v Buckley [2004] QCA 148.

[2] Buckley v The Queen [2006] HCA 7; (2006) 224 ALR 416.

[3] R v Buckley [2008] QCA 45.

[4] Buckley v The Queen [2006] HCA 7; (2006) 224 ALR 416 at [9].

[5] As defined in schedule 1 to the Dangerous Prisoners (Sexual Offenders) Act 2003 (Qld), "release day" in relation to a prisoner means the day on which the prisoner is due to be unconditionally released from lawful custody under the Corrective Services Act 2006 (Qld).

[6] Transcript of proceedings, 21 March 2022, p 1-6.

[7] Applicant's written submissions (CFI 24).

[8] See exhibit JS-16 to Ms Steppa's affidavit (CFI 33). See also exhibit 2, for Dr Hughes' explanation of the relevance of this material.

[9] Exhibit ET-3 to the affidavit of Dr Timmins, filed on 12 November 2021.

[10] See Dr Timmins' report at p 17, where she records the respondent reporting that in so far as the references to bestiality in earlier reports is concerned, he had made that up, at the urging of other prisoners, in essence, to bolster his chances of a mental health defence.

[11] Exhibit JS-15 to Ms Steppa's affidavit (CFI 33).