Attorney-General for the State of Queensland v Inkerman [2013] QSC 18

During the course of the hearing, Ms Maloney of counsel on behalf of the applicant, properly acknowledged that the evidence before the Court was such that the appropriate order was an order for release on supervision.

The respondent has a concerning criminal history of sexual offending that commenced in 1991. When the respondent was due for release from prison in 2004, there was psychiatric evidence obtained that it was considered that he was a low risk of sexual reoffending against children, or involving violence, and at that stage he did not come under the regime of the Act.

He did offend again on 29 August 2009. The offence was of similar nature to his previous sexual offending. The eight year old female victim was a member of a family known to the respondent. The respondent broke into that family's house and entered the victim's bedroom. She woke up and found the respondent squeezing her bottom with his hand on the outside of her long pyjama pants.

The victim called out. The respondent was still sitting on the victim's mattress, when the victim's mother responded to her daughter's cry.

The respondent pleaded guilty to one count of enter dwelling with intent by break at night and one count of indecent treatment of a child under the age of 16 years, with the aggravating circumstance that the child was under 12 years.

He was sentenced to three years six months' imprisonment for each offence. His full-time discharge date is 28 February 2013.

The period of imprisonment that the respondent completed in 2004 was for a set of sexual offences that were more serious than the offending that resulted in his current term of imprisonment. He served a period of some eight years, six months, that expired in 2004, for the offence of rape committed in August 2005, indecent assault against a 13 year old girl committed in August 2006 whilst on bail for the rape charge, and indecent treatment of a child under the age of 12 years, where the child was in fact only five years old, committed in March 1997 whilst he was on bail for the rape charge.

The respondent's sexual offending has been committed when he was intoxicated with alcohol and/or cannabis sativa. The respondent is currently 43 years old. He participated well in the Indigenous Sex Offenders' treatment program between May 2001 and April 2002.

When discharged in 2004, however, he lived a transient lifestyle that was characterised by alcohol abuse. Whilst in prison for this current period of imprisonment, he did not undertake any sex offenders' treatment program, but did complete in 2011 the six week Getting Smart program that is an intensive program dealing with substance abuse.

For the purpose of the preliminary hearing in relation to this application, the applicant had obtained a psychiatric assessment of the respondent from Dr Sundin. Dr Sundin's assessment of the respondent took place on 25 November 2011. Dr Sundin diagnosed the respondent as meeting the criteria for paedophilia, sexually attracted to females not limited to incest, non-exclusive type. Dr Sundin also considered that the respondent met the criteria for anti-social personality disorder and that his history was consistent with alcohol abuse dependence in remission whilst in prison and cannabis abuse dependence in remission whilst in prison.

Dr Sundin was of the opinion that the respondent's risk of future recidivism in respect of sexual offending was moderate to high. At that stage, Dr Sundin recommended that the respondent repeat his participation in the Indigenous High Offender Sex Offenders' program.

For the purpose of the hearing today, the Court appointed psychiatrists, Dr Beech and Dr Harden, and each interviewed the respondent and provided written reports. Oral evidence was given in the hearing by each of Drs Beech, Harden and Sundin.

Dr Beech concurs in the diagnosis of a sexual deviance, paedophilia, with an attraction to females that is not exclusive. Dr Beech noted that it was of concern that the offence for which the respondent is currently imprisoned occurred after he had been in the community for about five years. Dr Beech is of the opinion that the benefit that the respondent gained from the Indigenous Sex Offenders' Treatment program that he undertook in 2001 and 2002 has been lost as a result of the effluxion of time and the return to offending of a similar nature in 2009.

Dr Beech is of the opinion that the respondent's risk of reoffending is still high, if he were released into the community without supervision, and notes that the risk is linked to his long term problems with alcohol dependence which is associated with the transient lifestyle that he engaged in on his last release from prison without a lack of support in the community.

Dr Beech expressed in his written report uncertainty about whether the risk of reoffending by the respondent could be adequately met by a supervision order, because of the failure of the respondent to engage in sufficiently intensive series of programs whilst under his current imprisonment. Although Dr Beech noted that in theory the respondent's risk could be addressed by enforcing sobriety while he underwent counselling about his risk factors and learned to address issues such as loneliness, boredom and lack of support, he expressed the reservation in his written report about whether the respondent had sufficient skills and supports in order to carry out the determination to change his previous patterns of behaviour that led to offending.

When Dr Beech gave oral evidence on the basis of further information available from Corrective Services about possible substance abuse and sex offender treatment programs that could be provided in the community, Dr Beech conceded that, provided the supervision order facilitated the further programs that the respondent would need to assist him in making the changes to the lifestyle that he had succumbed to on his last period in the community, it would be possible for the supervision order to address the risk of reoffending that Dr Beech otherwise sees as continuing to exist in relation to the respondent.

Dr Harden in his written report was a little more positive about the ability of a supervision order to control the risk of reoffending by the respondent. Dr Harden also considers that the respondent's future risk of sexual reoffence is high if he were released into the community without the benefit of a supervision order. Dr Harden also considers that the respondent meets the diagnostic criteria for the paraphilia of paedophilia, sexually attracted to females not exclusive, and the criteria for an anti-social personality disorder.

Dr Harden notes that the critical issue for the respondent is alcohol intoxication which appears to have mediated all his criminal offences, and that it would be essential that the respondent be abstinent from alcohol and drug use whilst under a supervision order and undergo an appropriate random testing regime. Dr Harden also favours the respondent continuing to be involved in a program for sex offender treatment, but considers that can be delivered in the community and recommends that he be involved in group and substance maintenance therapy for substance abuse.

Dr Sundin gave oral evidence and, despite what her original recommendation was about a further sex offender treatment program whilst the respondent was in prison, conceded that in light of the additional material before the Court, including the opinions of Dr Beech and Dr Harden, that she was also of the same opinion, that the further treatment that the respondent requires both in respect of avoidance of further sexual offending and avoidance of alcohol and substance use and abuse, could be provided in the community.

All three psychiatrists were of the same view that any supervision order should be for a lengthy period, having regard to the circumstances in which the 2009 offence was committed after a period of five years in the community without sexual reoffending.

The respondent himself provided an affidavit for the purpose of the hearing. The respondent is now an insulin dependent diabetic and because his mother suffered from diabetes and died at a relatively young age, he is concerned to avoid the fate of his mother.

Dr Harden was of the opinion that the fact that the respondent has insight whilst sober as to the detrimental effects of alcohol use on his diabetic medical condition, does not necessarily reduce the risk of his reverting to alcohol. It is positive, though, that at least some insight has been shown by the respondent in his affidavit of the risks posed to his health in reverting to alcohol use. The respondent has expressed commitment to remaining abstinent from alcohol and recognises that he will be subject to random and regular testing for alcohol.

The evidence of the three psychiatrists is acceptable and cogent evidence that satisfies me to the high degree of probability that is required under the Act that the respondent's high risk of sexual reoffending unless appropriately supervised is an unacceptable risk in terms of Section 13 subsection 2 of the Act.

In light of the psychiatric evidence, I am satisfied that a supervision order that will address the need for the respondent to remain abstinent from alcohol and substance abuse and the need to participate in further treatment programs for sexual offending and with the usual requirements of a supervision order, will ensure the adequate protection of the community from further sexual reoffending by the respondent.

There is no suggestion in the material relied on by the applicant that the requirements of the proposed supervision order that was canvassed during the hearing will not be able to be managed and monitored by Corrective Services.

I should note that full information about possible programs was made available for the purpose of the hearing by Corrective Services that indicates that Corrective Services will endeavour to find the appropriate program at the appropriate place for the respondent.

I am therefore satisfied to the requisite standard that the respondent is a serious danger to the community in the absence of an order pursuant to Division 3 of the Act and I order that the respondent be subject until 28 February 2023 to the conditions that are set out in the draft order initialled by me and placed with the file.