CRIMINAL LAW – SENTENCE – SENTENCING ORDERS – ORDERS AND
DECLARATIONS RELATING TO SERIOUS OR VIOLENT OFFENDERS OR
DANGEROUS SEXUAL
OFFENDERS – DANGEROUS SEXUAL OFFENDER – GENERALLY – where the
Source
Original judgment source is linked above.
Catchwords
CRIMINAL LAW – SENTENCE – SENTENCING ORDERS – ORDERS ANDDECLARATIONS RELATING TO SERIOUS OR VIOLENT OFFENDERS ORDANGEROUS SEXUALOFFENDERS – DANGEROUS SEXUAL OFFENDER – GENERALLY – where therespondent was subject to a supervisionorder – where the respondentcontravened the supervision order – where the applicant applied under s22(2)(a) of the Dangerous Prisoners (Sexual Offenders) Act 2003(Qld) for an order to rescind the supervision order and a continuingdetention order – whether the respondent has satisfiedthe court on thebalance of probabilities that the adequate protection of the community can,despite the contravention or contraventions,be ensured – whether thecourt should rescind the order and make a continuing detention orderDangerous Prisoners (Sexual Offenders) Act 2003 (Qld), s22(1), s 22(2)(a), s 22(7)Attorney-General for the State of Queensland vCurrie [2016] QSC 48, relatedAttorney-General for the State of
Queensland v Currie [2021] QSC 197, related
Attorney-General for the
State of Queensland v Currie [2024] QSC 188, related
Attorney-General
for the State of Queensland v Francis [2012] QSC 275, cited
(a) an order that a supervision order made on 23 December 2022 as amended on 1 May 2024 and 13 August 2024 ("the supervision order") be rescinded;
(b) a continuing detention order.
[3]
[2] The respondent is a 41 year old man who has spent the majority of his life in custody. On 11 March 2016, after having served his full term of imprisonment, he became the subject of a continuing detention order. On that occasion, Byrne SJA described the respondent's relevant criminal history as follows:[1]
[4]
"Less than a fortnight after his 14th birthday, the respondent approached a five year old girl and led her to an enclosed courtyard, promising to play a game. There he forcibly raped his victim. She was so severely injured that she required surgery for vaginal lacerations. He was sentenced to detention for six years.
[5]
In October 2004, the respondent climbed a wall, forced open the grill of a child's bedroom window and climbed through into the room where the child was asleep in her bed. The child woke up and called out to her mother. The respondent had touched the child on her legs and nightclothes while she was asleep. He was intoxicated at the time.
[6]
At 2.00am on 29 March 2006, taking a condom with him, the respondent broke into the house of a 48 year-old woman and her 17 year-old daughter. He walked through the house and into the girl's room. He placed his hand over the girl's mouth and told her that if she made a noise he would slit her throat and, if she woke her mother, he would slit her throat too. He got into bed with his victim. He began touching her and rubbing his penis against her buttocks. She pleaded with him to stop. He would not. He put his fingers in her vagina. Next, he demanded that the girl rub and suck his penis until he ejaculated. She refused. Hoping that she could get him to stop, she told him that she was 14. He replied, with excitement, that he had never had such a young girl before.
[7]
The girl began making noises to wake her mother up. The respondent told her: "If you wake your Mum, I'll get my gun out and shoot you. I'll get my knife out and stab you through the heart and then I'll kill your Mum too". The girl screamed and punched him in the head. He reacted by punching her with such force that she struck the wall. He tried to leave the house but the front door was dead-locked. The mother woke on hearing her daughter's screams, ran to the girl's bedroom to see the respondent jump through a glass window and flee.
[8]
The respondent, who was subject to a suspended sentence of imprisonment when that offending occurred, gave a version of events, beginning with an assertion that he intended to break in because he needed money. Asked why the suggested attempted theft resulted in the sexual assault of the girl, he said that when he saw her lying in bed he thought that he "might get lucky" and decided to "crack onto her" in a "respectful manner".
[9]
The respondent was in custody in mid-September 2009 when he encountered an Aboriginal liaison officer during an interview. She was assisting him with a parole application. While she was reading some papers, the respondent masturbated and subsequently ejaculated on the woman's hand and trousers."
[10]
[3] In respect of the offending on 29 March 2006, the respondent had been sentenced to 8 years imprisonment. In relation to the assault upon the liaison officer in prison, the respondent had been sentenced to imprisonment for 9 months cumulative on the sentence of 8 years.
[4] The continuing detention order was subsequently affirmed at reviews in 2017, 2018, 2020 and 2021.
[5] On 10 August 2021, in the context of the fourth review, Bowskill J, as the Chief Justice then was, relevantly observed:[2]
[11]
"If I can summarise the way forward for the respondent, on the present evidence it seems to me to involve four things: choice, effort, improvement and stability. For a future review the respondent should be looking to show evidence that he:
[12]
(a) has started to make better choices about how he behaves, as well as to engage in psychological treatment to assist him to self-manage his behaviour and emotions;
(b) is putting in the effort, to engage in that psychological treatment, to contain his behaviour and emotions and to try to interact more cooperatively with others around him;
(c) has improved his behavioural and emotional control; and
(d) has demonstrated that he has actually made changes reflecting that he has learned from those things by a period of stability - as Dr Harden put it, "a long enough period of relatively settled, not even perfect, but relatively settled behaviour", not involving problematic incidents (such as threats, sexualised behaviours, violent, threatening or aggressive behaviours).
[13]
With evidence of that kind, the court would be in a better position determine the respondent's progress in these things and, with the benefit of expert psychiatric opinion, to assess whether in fact release on a supervision order would be effective to adequately manage the risk posed by the respondent, on the basis that the respondent would be able to abide by, and would abide by, the conditions of such a supervision order."
[14]
[6] On 23 December 2022, in the context of the fifth review, Davis J released the respondent to a 10 year supervision order, the period of which was from 9 January 2023 until 9 January 2033. Davis J then made these observations:[3]
[15]
"The appropriate orders, in my view, are to reaffirm the finding that [the respondent] is a serious danger to the community in the absence of a Division 3 order under the Act, but then to rescind the [Continuing Detention Order] and to release [the respondent] on a supervision order. I do that because I have concluded that the supervision order reduces [the respondent's] risk of committing a serious sexual offence to an acceptable level, or in other words, the supervision order will ensure the adequate protection of the community against the commission by [the respondent] of a serious sexual offence.
[16]
I have reached that conclusion for the following reasons: [the respondent] clearly understood, at least from the fourth review ... that his release was dependent upon him making progress in his treatment ... and also by improving his institutional behaviour. He has done those things.
[17]
[The respondent] has, in my view, developed some insight into his position, and the letter which he wrote and was tendered shows [his] understanding that his risk must be managed. Both psychiatrists accept that a supervision order will reduce risk. The real issue is whether [the respondent] is manageable on a supervision order, and whether he will comply with it. However, it is well established that the question is not whether the supervision order will be complied with, but whether the supervision order will reduce risk to an acceptable level.
[18]
[The respondent's] risk is that his behaviour in custody will deteriorate, he will become unmanageable, and his risk of committing a serious sexual offence will rise. I do note Dr Aboud's opinion that [the respondent's] behaviour could escalate quickly. However, [the respondent] will be supervised ... and it seems to me, highly likely that if [the respondent] is going off the rails, so to speak, that will be evident to those supervising him and appropriate action can be taken."
[19]
[7] The supervision order made by Davis J contained 47 requirements. Requirement 28 related to cannabis and was in these terms:
[20]
"You are not allowed to take (for example, swallow, eat, vape, smoke or sniff) cannabis in any form, prescribed or non-prescribed. You are also not allowed to have with you or be in control of any cannabis."
[21]
[8] On 25 January 2023, a warrant issued for the respondent's arrest and he was returned to custody. On 17 July 2023, the respondent was released back to the supervision order. On 15 August 2023, a warrant issued for the respondent's arrest and he was returned to custody. On 1 May 2024, the respondent was released back to an amended version of the supervision order.
[9] The 1 May 2024 order relevantly amended requirement 28 so as to introduce the possibility for the respondent to be prescribed medicinal cannabis by a specialist medical practitioner acting in consultation with Queensland Corrective Services ("QCS"). The amended requirement read as follows:
[22]
"28. You are not allowed to take (for example, swallow, eat, vape, smoke or sniff) non-prescribed cannabis in any form. You are not allowed to take medicinal cannabis unless prescribed by a specialist medical practitioner in consultation with QCS. Before making any assessment allowing you to take medicinal cannabis the specialist medical practitioner is to be provided with the reports of Dr Aboud dated 16 April 2024 and Dr Harden dated 30 January 2024 (which you consent to). You are also not allowed to have with you or be in control of any cannabis."
[23]
[10] On 16 May 2024, a warrant issued for the respondent's arrest and he was returned to custody. By an order made on 13 August 2024, the respondent was released back to a further amended version of the supervision order. On that occasion, in his Honour's reasons for releasing the respondent back to a further amended version of the supervision order, Davis J noted that an issue had arisen during the hearing about the possible use of medicinal cannabis. During the hearing, Davis J proposed an amendment to the then existing requirement 28. The proposed amendment materially provided "You are not allowed to possess, take ... non-prescribed cannabis in any form. You are not allowed to take medicinal cannabis unless prescribed by a specialist medical practitioner in consultation with QCS and then no prescription cannabis which contains tetrahydrocannabinol. Before making any assessment allowing you to take medicinal cannabis the specialist medical practitioner is to be provided with the reports of Dr Aboud dated 17 July and 7 August 2024, Dr Harden dated 15 July and 6 August 2024 and Dr Phillips 9 July and 7 August 2024." The difference between the then existing requirement 28 and the proposed amendment was that the specialist medical practitioner was effectively not authorised to prescribe to the respondent any medicinal cannabis which contained tetrahydrocannabinol. On that hearing, the respondent's counsel made submissions against the proposed amendment essentially by reference to two grounds. The first ground was that there was no current breach which alleged the ingestion of cannabis, be it prescription cannabis or otherwise. Secondly, it was submitted that it was a matter for the specialist medical practitioner to determine the species of medicinal cannabis that should be administered to the respondent. Davis J rejected each of those submissions. His Honour relevantly said:[4]
[24]
"The fact is that [the respondent] presently suffers from polysubstance abuse disorder. As was made clear by the psychiatrists, especially Dr Aboud, intoxication raises risk given [the respondent's] personality disorder in particular. Therefore, the ingestion of an intoxicating substance such as tetrahydrocannabinol should be avoided. True that a specialist medical practitioner will have much greater expertise than I would in determining what species of medicinal cannabis ought to be administered to [the respondent]. However, there is a complete dearth of evidence at the moment as to whether it is appropriate to prescribe [the respondent] medicinal cannabis of any species whether it contains tetrahydrocannabinol or otherwise.
[25]
As I have already explained, the doctors have opined that before any such decision could be made, it would be necessary for a specialist to properly examine the conditions from which [the respondent] is suffering which may be relevant to the prescription of cannabis."
[26]
[11] On 15 October 2024 a warrant issued for the respondent's arrest and he was returned to custody. He has since remained in custody.
[27]
[12] Section 22(1) of the Act applies if the court is satisfied on the balance of probabilities that a released prisoner has contravened a requirement of a supervision order. Section 22(2) relevantly provides:
[28]
"Unless the released prisoner satisfies the court, on the balance of probabilities, that the adequate protection of the community can, despite the contravention or likely contravention of the existing order, be ensured by the existing order as amended under subsection (7), the court must-
[29]
(a) if the existing order is a supervision order, rescind it and make a continuing detention order;
[30]
(b) if the existing order is an interim supervision order, rescind it and make an order that the released prisoner be detained in custody for the period stated in the order."
[31]
[13] Pursuant to s 22(2) of the Act, upon being satisfied on the balance of probabilities that the respondent has contravened a requirement of a supervision order, unless the respondent satisfies the court on the balance of probabilities that the adequate protection of the community can, despite the contravention or contraventions, be ensured, the court must, in the case of an existing supervision order, rescind the order and make a continuing detention order. The onus is on the respondent to demonstrate that the adequate protection of the community can be ensured by his release again on supervision.
[14] Section 22(7) of the Act relevantly provides:
[32]
"If the released prisoner satisfies the court, on the balance of probabilities, that the adequate protection of the community can, despite the contravention or likely contravention of the existing order, be ensured by a supervision order or interim supervision order, the court -
[33]
(a) must amend the existing order to include all of the requirements under section 16(1) if the order does not already include all of those requirements; and
(b) may otherwise amend the existing order in a way the court considers appropriate -
[34]
(i) to ensure adequate protection of the community; or
[35]
(ii) for the prisoner's rehabilitation or care or treatment."
[36]
[15] In Kynuna v Attorney-General,[5] the Court observed:
[37]
"The reference to 'the adequate protection of the community' in s 22(2) and s 22(7) is clearly a reference to that term as explained in s 13, that is, adequate protection of the community from the unacceptable risk that the appellant will commit a serious sexual offence, namely one involving serious violence of the kind discussed in Phineasa, which caused or was likely to cause significant physical injury or significant psychological harm."
[38]
[16] In Attorney-General for the State of Queensland v Francis,[6] Byrne SJA observed:
[39]
"But where contravention of a supervision order is proved, the Act does not require continuing detention unless the prisoner can show that the supervision order would in future be complied with. Rather, continuing detention is the consequence unless 'adequate protection of the community' can be ensured by 'a' supervision order.
[40]
The inquiry focuses on whether a supervision order would be efficacious in preventing the commission of a violent sexual offence."
[41]
[17] The Attorney-General alleges that the respondent has contravened requirements 6, 11, 15 and 28 of the supervision order. Those requirements are as follows:
[42]
"(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:
[43]
(a) Where you are allowed to live; and
(b) Rehabilitation, care or treatment programs; and
(c) Using drugs and alcohol; and
(d) Who you may or may not have contact with; and
(e) Anything else except for instructions that mean you will break the rules in this supervision order.
[44]
A 'reasonable direction" is an instruction about what you must do, or what you must not do, that is reasonable in that situation.
[45]
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.
[46]
(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.
[47]
(15) A corrective services officer has power to tell you to:
[48]
(b) Let them install a device or equipment at the place you live. This will monitor if you are there.
[49]
This is called a monitoring direction. You must obey a monitoring direction.
[50]
(28) You are not allowed to possess, take (for example, swallow, eat, vape, smoke or sniff) non-prescribed cannabis in any form. You are not allowed to take medicinal cannabis unless prescribed by a specialist medical practitioner, in consultation with QCS, and then not prescription cannabis which contains tetrahydrocannabinol. Before making any assessment allowing you to take medicinal cannabis, the specialist medical practitioner is to be provided with the reports of Dr Aboud dated 17 July and 7 August 2024, Dr Harden dated 15 July and 6 August 2024 and Dr Phillips dated 9 July and 7 August 2024 (which you have consented to)."
[51]
[18] The particulars of the alleged contraventions may be set out as follows:
[52]
"Contravention of reasonable direction - requirements (6) and (11)
[53]
On 16 August 2024, the respondent was observed on closed-circuit television to be out of his residence prior to 6am, in contravention of the reasonable direction regarding accommodation and precinct rule.
[54]
Contravention of monitoring direction - requirement (15)
[55]
On 23 August 2024, the respondent did not attend his first scheduled appointment with his psychologist and did not answer his phone after three calls were placed to him by QCS. Similarly, the respondent did not respond to QCS' requests to make contact immediately, through vibrations of his electronic monitoring device. ...
[56]
Contravention of requirement (28) prohibiting use of non-prescribed cannabis
[57]
Between 11 September 2024 and 14 October 2024, the respondent returned positive results to the use of illicit tetrahydrocannabinol ("THC") on nine separate occasions:
[58]
11 September 2024 at a level of 456ug/L;
13 September 2024 at a level of 533ug/L;
19 September 2024 at a level of 555ug/L;
25 September 2024 at a level of 853ug/L;
4 October 2024 at a level of 216ug/L;
8 October 2024 at a level of 533ug/L;
9 October 2024 at a level of 1503ug/L;
11 October 2024 at a level of 1208ug/L; and
14 October 2024 (presumptive positive, awaiting confirmatory testing).
[59]
As a result of his illicit THC use, the respondent was entered into a "show cause" position by way of written letter issued to the respondent by QCS on 16 September 2024. The show cause letter stated that the respondent was to immediately cease the use of illicit THC and to provide reasons as to why further contravention action should not be taken in relation to continuous non-compliance with the requirements of his supervision order.
[60]
On 20 September 2024, QCS received correspondence from Dr Andrews, who is the respondent's current general practitioner. Dr Andrews advised QCS that he has prescribed the respondent with tramadol and lyrica, and that he will not prescribe medicinal cannabis due to the combination of pharmaceuticals and double sedation.
[61]
On 25 September 2024, Dr Andrews advised QCS that the respondent disclosed relapsing and using cannabis three times per day. Dr Andrews encouraged the respondent to contact the Inala Alcohol and Other Drugs Service ("AODS").
[62]
On 2 October 2024, QCS contacted AODS and confirmed that the respondent had not engaged their service.
[63]
During a case conference on 8 October 2024, the respondent's cannabis use was addressed. He told his case manager that he has "slim motivation" to cease using THC."
[64]
[19] The respondent's counsel admitted the contraventions. That admission was appropriate. Having regard to the evidence, I am satisfied on the balance of probabilities that the respondent has contravened requirements 6, 11, 15 and 28 of the further amended supervision order in the manner particularised by the applicant.
[20] Some matters may be noted about the contraventions. The respondent emphasised that none of the contraventions involved threatening or violent behaviour. The first contravention occurred very quickly after the respondent's release. The respondent was observed out of his residence prior to 6 am. The respondent believes the time was around 5.45 am and he informed his lawyer that he decided to do a quick lap of the residence on his push bike to test out its chain. It is not alleged or suggested that this contravention was part of any attempt by the respondent to abscond or leave the precinct. It is noteworthy that following this first contravention, the respondent was compliant with his curfew until his arrest on 15 October 2024.
[21] As to the second contravention, the respondent accepts that he missed the first scheduled appointment with his psychologist. The respondent claimed that he was sleeping and had not heard his phone ring or his tag vibrate. The respondent then attended upon QCS later that day. His phone was tested and it was found to be not ringing when it was set to silent but the volume was turned up. It is noteworthy that following this contravention, the respondent engaged with his psychologist, Dr Brooks, for seven weekly sessions until the time of his arrest.
[22] In respect of the third contravention which involves repeated use of cannabis, the respondent admits that he relapsed into cannabis use. The first positive test result for use of tetrahydrocannabinol was returned on 11 September 2024, some 25 days after the respondent's release from custody. On 20 September 2024, the respondent's general practitioner, Dr Andrews, advised QCS that he would not be prescribing medicinal cannabis for the respondent. On 25 September 2024, Dr Andrews advised QCS that the respondent had disclosed to him that he had relapsed and was using cannabis three times per day. During a case conference on 8 October 2024, the respondent told his case manager that he had "slim motivation" to cease using tetrahydrocannabinol. On the date of the case conference, the respondent returned a positive test result for tetrahydrocannabinol.
[65]
[25] Ms Wildermoth, the acting manager of the High Risk Offenders Management Unit, gave the following material evidence. The respondent during his supervision order had been breath tested regularly and there had been no suggestion of any alcohol abuse or misuse by the respondent during his supervision. Whether the respondent was returned to the community or subject to a continuing detention order, his ongoing psychological treatment was accepted by QCS as being "very important". The respondent's ongoing treatment with Dr Brooks could be arranged if he were detained in custody. QCS would endeavour to ensure the sessions with Dr Brooks were suitably frequent. Following the respondent's arrest, QCS staff had found three notebooks in the respondent's possessions ("the notebooks"). The notebooks contained references to pornography, a number of sexualised references and lists that appeared to include items referencing illicit substances and weapons. One of the notebooks contained a list which included the expressions "cut and run" and "get someone to hurt".
[66]
[26] Dr Nathan Brooks is a forensic psychologist who has treated the respondent during the period when the respondent was released back to a further amended version of the supervision order after 13 August 2024. Whilst the respondent failed to attend his first appointment with Dr Brooks on 23 August 2024, he attended on a weekly basis for the next seven appointments. Dr Brooks gave evidence that the treatment sessions primarily focused on establishing rapport and providing the respondent with a supportive context in which to discuss his experiences and challenges. Following the respondent's return to custody, Dr Brooks provided three treatment sessions to the respondent on 12 December 2024, 14 January 2025 and 19 March 2025.
[27] Dr Brooks has established a therapeutic relationship with the respondent in which the respondent has generally presented as respectful and engaged. Dr Brooks' treatment has involved discussions about the respondent's substance use history with a particular focus on his longstanding reliance on cannabis. The respondent has expressed an interest in using medicinal cannabis to manage his anxiety and intrusive thoughts. He has expressed the belief that cannabis provides him with relief from agitation and rumination. The treatment has included discussions aimed to assist the respondent in understanding the impact of substance use and the need for other strategies to manage his emotions.
[28] During his more recent consultation with Dr Brooks, the respondent expressed an ongoing hope of being prescribed medicinal cannabis. By the time of that consultation, the respondent had prepared a relapse prevention plan of his own volition which he provided to Dr Brooks. Dr Brooks advised the respondent that the preparation of a relapse prevention plan was intended to be a collaborative exercise as part of, rather than as a requirement of, his treatment. The relapse prevention plan independently prepared by the respondent was described by Dr Brooks as disjointed and lacking clarity. Dr Brooks identified key areas for any plan as involving cannabis and substance use, managing reactions to QCS, developing positive behaviours, managing anxiety, mental health and violent thoughts and addressing the respondent's sexual offending and sexual needs. Dr Brooks accepted that the preparation of the draft relapse prevention plan was "a positive step" in that the respondent had demonstrated initiative and provided a relevant starting point for the process of formulating a more comprehensive plan. Dr Brooks considered that the formulation of a relapse prevention plan was a matter which could, and should, be continued during therapy sessions. If the respondent were to remain in custody, Dr Brooks was of the belief that treatment did not need to be as regular as it might need to be in the community and he considered that around fortnightly or every three weeks was an ideal scenario for the respondent's treatment whilst in custody. Dr Brooks expected that the development of a relapse prevention plan might take three sessions.
[67]
"It is challenging to determine the intent behind this material at this time. Moreover, this is not the first time [the respondent] has kept written materials or journals. While journalling can be a therapeutic outlet, there is also a risk that this material may signal warning behaviour or a plan to evade his condition. It is essential that [the respondent] is interviewed to clarify the significance of this material."
[68]
[30] For the third contravention proceeding in August 2024, the respondent had been examined by Drs Aboud, Harden and Phillips.
[31] On that occasion, Dr Aboud's diagnostic formulation was that the respondent presented with psychopathic disorder, personality disorder (prominent antisocial, borderline paranoid and narcissistic traits) and polysubstance (mainly cannabis and alcohol) dependence which was in remission in a protected environment. Dr Phillips diagnosed the respondent as exhibiting psychopathy, anti-social personality disorder and polysubstance abuse, primarily cannabis, use disorder (currently in remission in a controlled environment). For this application, the respondent had been examined by Drs Aboud and Phillips. On this application, there was no material change in their diagnostic formulations.
[32] In his oral evidence, Dr Aboud further explained the significance of his diagnostic formulation. The respondent's diagnosis of a personality disorder involved "quite prominent" traits. The respondent's anti-social disposition involved him being anti-authoritarian, not wishing to abide by commonly accepted social norms and not accepting the rules of any given situation. His emotional instability had afflicted him throughout his adult life, and he could be emotionally dysregulated and quite reactive and impulsive and could react with extreme levels of emotion. The respondent had paranoid traits which related to an underlying suspicion about other people's motives. He had narcissistic traits which were generally defensive and involved him assuming a lofty position and seeing fault in others but not himself. Dr Aboud explained that the respondent "had a complex array of personality traits that do not require him at all to be mentally unwell to ... experience them and they do not require him to be intoxicated by substances". Dr Aboud relevantly said:
[69]
"... that combination of psychiatric disorders, personality disorder with ... psychopathic traits and the polysubstance use, speaks to an individual who has long standing difficulties, will likely continue to have those difficulties, but they may reduce over time, especially as he gets older, and he is now approaching that type of age."
[70]
[33] The characterisation of the respondent's risk is the sexual assault or rape of a female child or adult. Relevantly:
[71]
"Should [the respondent] reoffend sexually, one speculates that it would take the form of opportunistic sexual violence, and possibly in the course of a robbery or a break and enter.
[72]
It is hard to know if his previous offending, when he broke into a house and then sexually assaulted a young female victim in her bedroom, was wholly spontaneous, or whether the break & enter was secondary to a desire to sexually offend.
[73]
The victim is likely to be a stranger, and a female of any age (including a child). Alcohol and/or illicit substance (such as cannabis) abuse may be implicated, but he does not need to be intoxicated and disinhibited to harbor the drive to sexually offend. Nevertheless, substance use would increase the risk of such behaviour.
[74]
Labile emotional states, especially anger, may be channeled into offending, which represents maladaptive coping behaviour.
[75]
Offending could be impulsive, and possibly occur without any significant planning, but could also occur as a result of sexual preoccupation and the creation of a plan for potential victim access. He would be at higher risk if he was feeling bored, angry, despondent, stressed, or highly sexually preoccupied."
[76]
"The future risk of sexual re-offending would increase in the setting of relapse to substance use, acute intoxication, feeling aggrieved and disrespected, boredom or psychosocial stressors, for example, relationship breakdowns, perceived rejections, or loss of social supports.
[77]
[The respondent] has limited adaptive coping skills to manage psychosocial stressors and would be at risk of emotional collapse and returning to his maladaptive pattern of substance use in the context of psychosocial stressors.
[78]
The risk of sexual re-offending would also increase in the setting of increased sexual pre-occupation or rejection of supervision due to becoming increasingly frustrated regarding the restrictiveness of his management. The offending may occur in the context of committing other offences, such as break and enters.
[79]
The victim of future sexual offending would likely be likely be a female, who could be a child or adult. The victim may be known to him or a stranger.
[80]
Future sexual offending has the potential to be similar to previous sexual offending. This could include exposing himself, masturbating in front of a victim, obscene phone calls, inappropriate touching, digital or vaginal rape.
[81]
Future offending has the potential to be accompanied by threats of physical violence. There is the potential for there to be an escalation to include physical violence during the commission of a sexual offence. Future sexual offending has the potential to cause significant physical and psychological harm to the victims."
[82]
[34] In his written report, Dr Aboud relevantly opined:
[83]
"It is evident that [the respondent] presents a significant challenge to those tasked with his community supervision. With consideration to his progress under community supervision, in 2023 and 2024 I am concerned that [the respondent] may not yet be prepared to accept and work with the requirements of a supervision order, given that he has encountered difficulties shortly after being released on four successive occasions. It has been my view that it is up to [the respondent] to demonstrate that he is prepared to accept and work with, rather than against, the requirements of community supervision. It is my concern that he may not be capable of this at this time.
[84]
In my view, his breach behaviours have been an indication that his risk of both violent and sexual re-offending was increasing, by presenting an observable indication that he was not committed to or was disengaging from or even actively rejecting supervision and its protective conditions, safeguards and supports.
[85]
While it has previously been my opinion that [the respondent's] risk of sexual reoffending, as modified by a supervision order, would be reduced from high to moderate, it is also my opinion that this modified level of risk would only be maintained as long as he is meeting the requirements of his supervision order. Unfortunately, he has ... quite rapidly demonstrated an unwillingness or inability to meet the requirements and engaged in breach behaviour, effectively demonstrating the quick timeframe by which his modified risk had become less modified or even unmodified. The challenge for the court will therefore be to come to a view about whether the likely brief timeframe for his potential but probable rejection of supervision is long enough for his risk to be reasonably considered to be modified by the supervision order."
[86]
[35] In his oral evidence, Dr Aboud accepted that whilst he had previously opined that the risk could be reduced to an acceptable level on a supervision order, the substance of his opinion now was to cast doubt on the efficacy of a supervision order. The frequency of the respondent's contraventions after only a short period of time had caused Dr Aboud to change his previously expressed opinions in relation to the respondent. Dr Aboud noted that the respondent had "quite rapidly demonstrated an unwillingness or inability to meet the requirements, and engaged in breached behaviour, effectively demonstrating the quick timeframe by which his modified risk had become less modified or even unmodified".
[36] Dr Aboud explained that the clinical factors affecting risk assessment were different if the respondent were released into the community and this had become "increasingly crystalised" based on the respondent's previous episodes of release to the community. Dr Aboud described the respondent as having a high static risk whether in prison or in the community but his dynamic risk in prison was low or supressed. At the point in time when the respondent was released into the community his dynamic risk remained supressed but then appeared to increase as he experienced difficulties. In the community, the respondent had apparently quickly formed views that he was being thwarted, not respected or not supported and those views became the contextual trigger for him to become more aroused and more dysregulated. His reliance upon cannabis was maladaptive and not a true solution. Dr Aboud expected the respondent's frustration level in the community to grow "very quickly" and the respondent required assistance with the management of negative, violent, aggressive thoughts.
[37] Dr Aboud stressed that the respondent had vulnerabilities and was a man with "actually quite a severe" personality disorder. He noted that in the respondent's "internal world", he generally regarded other people as wishing to cause him difficulties and it was incredibly hard for the respondent to stand "outside of himself". Dr Aboud considered that it was important for QCS staff to understand the respondent's vulnerabilities. In their dealings with the respondent, a simple strategy for the QCS staff would involve talking with the respondent when he is calm because when he is in a heightened state he has an inability to hear or communicate in an appropriate way. Dr Aboud considered that there needed to be very clear efforts to "construct a supervision arrangement that [the respondent] is going to have less of a problem with". Having said that, Dr Aboud acknowledged that an aspect of effective management had to come from the respondent because if he is not "prepared to engage and work with those ... who are employed to supervise him, then he will remain with an outstanding problem for supervision".
[87]
"In my view, [the respondent's] breach behaviours have been an indication that his risk of both violent and sexual re-offending was increasing, by presenting an observable indication that he was not committed to, or was disengaging from or even actively rejecting supervision and its protective conditions, safeguards and supports".
[88]
[41] Under cross-examination Dr Aboud said that, upon reflection, he should alter that description. As I understood his oral evidence, Dr Aboud said that he would, at the time of giving his evidence, alter that description so that it would read as follows:
[89]
"In my view, [the respondent's] breach behaviours, although an indication that his risk of both violent and sexual reoffending was increasing by presenting an observable indication that he was not committed to or was disengaging from or even actively rejecting supervision and its protective conditions, safeguards and supports, based on the lack of further incidents of this nature, this may have been short lived."
[90]
[42] Having made that alteration, Dr Aboud maintained that there had been a pattern of behaviour in respect of cannabis misuse which reflected the respondent's antisocial disposition, his response to frustration and evidence that the respondent in a dynamic environment, may well decide for himself whether he thought a condition was relevant or important.
[43] As to the notebooks, Dr Aboud considered that it was "hard to know" what significance to place upon them. He considered that they may well be "a form of fantasy" and noted that respondent had a "history of saying things that he doesn't necessarily follow through on".
[44] Dr Phillip's opinions were expressed in stronger terms than Dr Aboud's opinions.
[45] In her written report Dr Phillips relevantly opined:
[91]
"I no longer have confidence that the conditions of the supervision order will have an effect at reducing the risk of serious sexual offending to below high. This is based on the current alleged contraventions; the concerning content of his notebooks; his Psychopathy; his capacity to be deceptive and manipulative; his long history of breaching Court orders; and that he did not appear to be giving a frank and truthful account at my assessment.
[92]
Should [the respondent] have plans to abscond from supervision, I do not currently have any confidence that he would disclose these to the HROMU or his treating psychologist prior to attempting to abscond. I also do not currently have confidence that the HROMU would have the ability to detect further preparatory actions, if and when [the respondent] began acting on plans to abscond.
[93]
Should [the respondent] abscond whilst on the supervision order, his risk of sexual offending (and physical violence) would be high. It is my opinion that the risk of serious sexual offending cannot currently be practically managed on a supervision order.
[94]
It is recommended that [the respondent] be managed on a continuing detention order.
[95]
It is recommended that [the respondent], whilst detained on a continuing detention order, continue to engage in individual psychological intervention with Dr Brooks. [The respondent] would benefit from further intervention focussing on adaptive coping skills, problem solving, interpersonal skills, identifying high risk situations and relapse prevention planning. Given his psychopathy, [the respondent] is unlikely to respond to efforts to improve victim empathy and is more likely to respond to self-interest with progression on the order."
[96]
[46] In her oral evidence, Dr Phillips considered that any reduction below the higher level by way of the conditions of a supervision order could only be achieved by compliance with the conditions of the order, including an abstinence from substance use, and compliance not just for a brief period but over a sustained period. She added that by reason of there having been multiple contraventions "in a relatively quick succession", she held concerns about how much the supervision order was "really leading to a direction below [high]." She considered that there was a close link between cannabis use and potential offending in that cannabis use would make the respondent more disinhibited and less able to regulate his emotions which was important in the context of his "very disturbed personality".
[47] Under cross-examination, Dr Phillips accepted that during the period of the supervision order through to the time of the hearing of this application, there appeared to have been an overall improvement in the respondent's emotional regulation. She considered that the improvement and the respondent's positive engagement with Dr Brooks were positive factors affecting his risk of further serious sexual offending. Dr Phillips accepted that the preparation of a relapse prevention plan by the respondent provided some positive indication that he intended to abide by future supervision. She considered that having a relapse prevention plan in a more advanced state than its current form would be helpful, and she emphasised that "it's not just the writing of the document ... it's ... his willingness and ability to be able to abide by it when he is out in the community which ... is the issue." However, Dr Phillips sought to qualify her answers by saying "I would give the same cautions before, that I think it is early days".
[48] Notably, in cross-examination it was suggested to Dr Phillips that the respondent's misuse of cannabis during the supervision period had not significantly increased the risk factor for the respondent's emotional regulation. Dr Phillips disagreed with that proposition and maintained that cannabis use was highly problematic for the respondent and increasing disinhibition, which in her opinion increased his risk of sexual offending. She considered that cannabis use would interfere with the respondent's ability to emotionally regulate in the future. She foreshadowed that there would be times in the community when the respondent's adaptive coping skills would inevitably be completely overwhelmed, and he would be highly drawn to increase his use of cannabis.
[97]
(a) The respondent presents with psychopathic disorder, personality disorder (prominent anti-social, borderline paranoid and narcissistic traits) and polysubstance (mainly cannabis and alcohol) dependence which is in remission in a protected environment.
(b) The characterisation of the relevant risk posed by the respondent is the sexual assault or rape of a female child or adult.
(c) The respondent's risk of committing a serious sexual offence would increase in the setting of relapse to substance use and in particular cannabis misuse.
(d) Further, a key concern with cannabis misuse by the respondent is that it might have a disinhibiting effect upon him which affects his capacity for emotional regulation.
(e) The respondent's recent breaches and contraventions in the community in respect of cannabis are an indication that his risk of both violent and sexual reoffending was increasing because those breaches presented an observable indication that the respondent was not committed to or was disengaged from supervision and its protective conditions, safeguards and supports.
(f) The demonstrated unwillingness or inability to meet the requirements of the supervision order occurred within a relatively quick timeframe and meant that risk under the supervision order, quickly became less modified or even unmodified.
(g) The respondent has made some positive progress around emotional regulation in his period of time on supervision and most recently in custody, but it is still "early days".
(h) It is very likely that if now released to the community under supervision, within a short time frame, the respondent would reject supervision in accordance with the supervision order's requirements, the short time frame being an insufficient period of time in which his risk could be reasonably considered to have been modified by the operation of the supervision order.
(i) On the state of the present material, it could not be demonstrated to any level of confidence that the conditions of a supervision order will have the effect of reducing the risk of serial sexual offending to any significant or meaningful extent below a rating of high.
[98]
[55] It is plainly a serious matter to continue to detain in custody, a person in the respondent's situation, that is, a person who has served so much time beyond his sentence, has previously been released into the community on supervision and has not whilst on supervision committed contraventions which involve violent or threatening behaviour. However, in my assessment, the clear weight of the psychiatric evidence requires that a continuing detention order be made in this case. As to the continuing treatment of the respondent whilst in custody, the evidence of Ms Wildermoth has indicated that continuing consultations with Dr Brooks can, and will be, arranged or facilitated by QCS whilst the respondent remains in custody. On the basis of the evidence, it would be beneficial for the respondent if those consultations could occur at no less than three weekly intervals. The evidence suggests that it will take at least three consultations with Dr Brooks for a proper relapse prevention plan to be prepared. That plan will be a matter for Dr Brooks and the respondent to prepare as part of their ongoing relationship. At a minimum, the plan might be expected to address the circumstances which led to the respondent misusing cannabis whilst on supervision and might also provide a clear pathway to prevent any future misuse of cannabis. It would be useful in my view for Dr Brooks to explore with the respondent the structure of possible supervision arrangements.
[56] Dr Aboud made it clear that any question about whether medicinal cannabis or other medications should be prescribed to the respondent, should be decided at an appropriate time by a properly briefed, suitably qualified medical specialist. Any such specialist, if and when briefed, would need to be briefed with the then most recent psychiatric reports. As part of being prepared for his release back into the community, the respondent will need to be given clear guidelines about the likely process and timelines expected to unfold in the community in respect of his seeking and obtaining any such specialist advice. On the basis of my consideration of the evidence, in my assessment it would seem that a review hearing in around 6 months would be appropriate. By that time, a relapse prevention plan may have been prepared, the respondent might be expected to have had the benefit of a significant number of further sessions with Dr Brooks and his behaviours over a more significant time period may further evidence a resolve on his part to comply with the requirements of any supervision order.
[99]
[57] Being satisfied to the requisite standard that the respondent, Joel George Currie, has contravened the supervision order of Davis J made on 23 December 2022, as amended by Muir J on 1 May 2024 and further amended by Davis J on 13 August 2024, I order that:
The supervision order made by Davis J on 23 December 2022, as amended by Muir J on 1 May 2024 and further amended by Davis J on 13 August 2024, is rescinded.
The respondent be detained in custody for an indefinite term for control, care or treatment.
[100]
[1]Attorney-General for the State of Queensland v Currie[2016] QSC 48 at [2] to [8].
[23] The significance of the respondent's relapse into cannabis use, assumed particular importance in the evidence adduced on this application.
[24] The respondent accepted that once a contravention is proved, the onus shifted to him to satisfy the court that the community can be adequately protected by the supervision order. The respondent emphasised, which I accept, that the relevant inquiry focuses upon whether the supervision order would be efficacious in preventing the commission of a violent sexual offence.
[29] Dr Brooks referred to the notebooks. He relevantly stated:
[38] Under cross-examination, Dr Aboud accepted that during the latest period of supervision and in custody, the respondent had made some positive progress around emotional regulation and had not resorted to the kind of aggressive outbursts or directly threatening behaviour that had historically characterised his presentation. Dr Aboud accepted that the establishment of a therapeutic relationship with Dr Brooks was a positive development. Dr Aboud accepted that there were at least two recent instances where the respondent had apologised for his conduct which suggested some positive progress in relation to his narcissistic personality traits.
[39] Dr Aboud's key concern with cannabis misuse as a risk factor for serious sexual offending was that it might have a disinhibiting effect upon the respondent. He considered that there was a risk that the disinhibiting effect on the respondent might affect his capacity for emotional regulation and his ability to control his anger. It was expressly acknowledged in the cross-examination of Dr Aboud, that it was not being suggested to Dr Aboud that cannabis was actually helpful for the respondent. Rather, the cross-examiner suggested that in the period of supervision when the respondent was using cannabis, the respondent had apparently exhibited increased emotional regulation and Dr Aboud was asked whether that consideration altered his opinion about the effect of cannabis misuse on the respondent's risk of further serious sexual offending. This would seem to have been a fine point of distinction. Dr Aboud answered the line of questioning in a careful and considered way. He first explained that to be disinhibited does not indicate that a person is without any control, it just indicates less control. Dr Aboud emphasised that the respondent did not need to be intoxicated or under the influence of a substance in order to potentially present a risk. At one point, Dr Aboud observed that in the community if the respondent had access to a female "then he would be in a high risk state if he was under the influence of cannabis." Dr Aboud later accepted that the risk that cannabis misuse might lead to further serious sexual offending might be moderated by compliance with other conditions in a supervision order but he said that it was "difficult to properly formulate what risk would then exist under the influence of cannabis". Dr Aboud ultimately expressed the view that cannabis misuse "would have to have an impact ... [the respondent's] mental state would be different, and he would be more regularly triggered." Dr Aboud explained that he did not know to what extent cannabis would be disinhibiting the respondent sexually in the absence of potential victims and in the absence of other factors. Dr Aboud said it was possible that if the respondent continued to comply with the conditions of his supervision order, excepting abstinence from illicit cannabis, the risk would be reduced to moderate when he was under the influence of cannabis, but he qualified that by saying "it's a very tentative issue as to what point moderate would become above moderate."
[40] In his initial report, Dr Aboud had said:
[49] Ultimately, under cross-examination, Dr Phillips was prepared to slightly qualify her opinion expressed in her written report to the effect that she no longer had confidence that the conditions of a supervision order would have an effect on reducing the risk of serious sexual offending to below a high risk. She accepted that her opinion as expressed in her report had not taken into account the protective factors of the positive therapeutic relationship with Dr Brooks and the positive progress that the respondent had since made with his emotional regulation. Dr Phillips said that she thought there had been some shifts since November 2024 and with "the extra information that's available now ", she considered that "there has been some reduction below high". She then added " ... but I do not believe that it is as low as moderate, I think it is still quite close to high but potentially a bit below where things were in November when I wrote my report. If I could ... preface it that risk of course could quickly escalate again back up into high in the community, so I don't think it is stably reduced".
[50] Dr Phillips described the respondent's vulnerabilities as deeply ingrained and thought that it would take in the order of 6 to 12 months for the respondent to have initial improvement in his presentation.
[51] She said of the notebooks "it is difficult to know what to make of ... [them]" and added that "in my mind it raised significant clinical concerns".
[52] I found the evidence of Drs Aboud and Phillips to be careful, well considered and cogent. I have no hesitation in accepting their evidence. The clear weight of their evidence, taken as a whole, meant that the respondent did not discharge his onus of satisfying the court that the community could be adequately protected by a supervision order. I have not placed any weight on the notebooks. I have not speculated as to their meaning or context.
[53] Counsel for the applicant rightly described the present situation which now exists in relation to the respondent as "very troubling". The respondent has been in jail for a long period of time. When he was finally released to the community by the 23 December 2022 supervision order, he quickly demonstrated a series of contravening behaviours. The issue of medicinal cannabis had been an important matter canvassed at length on 13 August 2024 before the respondent was released back into the community on a further amended version of the supervision order. Yet despite the careful attention given to the framing of a requirement in relation to cannabis generally, the respondent, once confronted with resistance or difficulties in the community, appears to have quickly relapsed into cannabis misuse. Sustained cannabis misuse, with knowledge by the respondent that the use was in contravention of a requirement of his supervision order, was an important characteristic of the respondent's last period of time in the community.
[54] The important findings I make based upon the expert psychiatric evidence are as follows: