Attorney-General for the State of Queensland v Loudon [2017] QSC 146

1. This is an application for a further supervision order under Part 2 Division 4A of the Dangerous Prisoners (Sexual Offenders) Act 2003 (Qld) ("DPSOA"). The existing order will expire on 7 July 2017. As filed, the application is for a further order for a period of five years. By a last minute amendment, the applicant now seeks an order for a period ending on the respondent's 60th birthday, which would be over seven years.
2. Part 2 Division 4A applies to a released prisoner subject to a current supervision order. The Attorney-General may apply for a further supervision order for the released prisoner. That application may only be made within the last six months of the effect of the current supervision order. Unhappily, on 24 March 2017 it was ordered that the final hearing of the present application be on 3 July 2017. That was only four days before the existing order was to expire. The application was brought on in the context of a busy Applications list. Only two hours was allocated for its disposition. In my view, this is not an appropriate manner of hearing it. The application was always to be one of a significant or serious contest. Neither of the parties applied for an interim supervision order under s 19D(2) of the DPSOA to enable the final decision to be made with greater care. The court must deal with the case as it was presented and argued as best it can.
3. It is common ground that under s 19D the questions to be decided on an application for a further supervision order are a modified form of those that arise on an application for a final order under Part 2 Division 3 of the DPSOA. First, is the court satisfied that the respondent is a danger to the community within the meaning of s 13(1) of the DPSOA? Second, if the court is so satisfied, should the court order that the respondent as a released prisoner be subject to the requirements it considers appropriate that are stated in a further supervision order of the kind made under s 13(5)(b) of the DPSOA?
4. On the first question, s 13 as adapted provides that a released prisoner is a serious danger to the community if there is an unacceptable risk that he will commit a serious sexual offence without a further supervision order being made. On the hearing of the application, the court may decide it is satisfied that the released prisoner is a serious danger to the community only if it is satisfied by acceptable cogent evidence and to a high degree of probability that the evidence is of sufficient weight to justify the decision.
5. Section 13(4) as adapted provides that in deciding whether the released prisoner is a serious danger to the community the court must have regard to any report produced under s 8A; the reports prepared by the psychiatrists under s 11 and the extent to which the released prisoner cooperated in the examination by the psychiatrists; any other medical psychiatric, psychological or other assessment relating to the released prisoner, information indicating whether or not there is propensity on the part of the released prisoner to commit serious sexual offences in the future; whether or not there is any pattern of offending behaviour on the part of the released prisoner; efforts by the released prisoner to address the cause or causes of his offending behaviour, including whether the released prisoner participated in rehabilitation programs; whether or not the released prisoner's participation in rehabilitation programs has had a positive effect on the released prisoner; the released prisoner's antecedents and criminal history; the risk that the released prisoner will commit another serious sexual offence if released into the community; the need to protect members of the community from that risk and any other relevant matter.
6. On an application for a further supervision order, a psychiatrist's assessment of the level of risk under s 11(2)(a) is to be an assessment of the level of risk that the released prisoner will commit another serious sexual offence if a further supervision order is not made after the expiry of the current supervision order.
7. If a further supervision order is made it must be for the period stated in the order and has effect in accordance with its terms for that period. A further supervision order must meet the requirements of s 16 and s 16D of the DPSOA. Reasons for it must be given in accordance with s 17.

1. The respondent was convicted of serious sexual offences on five occasions between 1985 and 2005.
2. On 24 May 1985, he was convicted for offences of carnal knowledge against the order of nature and gross indecency committed in 1981 and 1982 relating to a 9 year old male.
3. On 11 September 1985, he was convicted of rape and indecent dealing relating to an 8 year old female.
4. On 23 May 1995, he was convicted of five offences of indecent dealing with a child under 12 years, four offences of wilful exposure of a child under the age of 12 years to indecent printed matter, a further offence of indecent dealing with a child under 12 years, an offence of permitting to be indecently dealt with by a child under 12 years and an offence of maintaining a sexual relationship with a child under 16 years. All these offences occurred in 1994 and 1995. They involved five males aged between 9 and 12 years.
5. On 6 February 2002, he was convicted of two offences of attempting to procure indecent treatment of a child under 16 committed in 2001 relating to a 14 year old male and a 15 year old male.
6. On 8 July 2005, he was convicted of two offences of indecent treatment of a child under 16 by exposure and two offences of indecent treatment of a child under 16, all committed in 2004 relating to a 6 year old male and an 8 year old male.

1. On 7 June 2007, the respondent was ordered to be released from custody subject to the requirements of the current supervision order, under s 13(5)(b) of the DPSOA.
2. On 5 October 2009, he was found to have contravened the order by travelling from Townsville to Cairns without permission on 1 October 2009. As a result of the breach he was arrested and subsequently released. The original supervision order was amended to add condition (xxix) that he comply with a curfew direction or monitoring direction.
3. The respondent was made subject to both a curfew direction and a monitoring direction in the form of wearing a GPS ankle bracelet. In 2013, it appears the curfew direction was lifted.

1. The respondent is now a 53 year old single man. He has never married. He resides in private rental accommodation. He shares the private residential accommodation with two other men who are friends. One is 27 years old; the other is 19 years old. He is not in a sexual relationship with either of them. The 27 year old moved in around 2009 and they have been renting together since then. The 19 year old is a friend of the 27 year old and the respondent has known him for two years. He moved in during the second half of 2016.
2. He has been there for five years or more. He has been in receipt of a disability support pension since 2010 for a back injury suffered at work.
3. He is the fourth of five children. His parents are deceased. He was born in Mareeba and grew up in the Atherton Tablelands. His four brothers and their families reside in various locations, including Cairns or surrounding districts. He has regular contact with them.
4. He engages in fishing, gardening and cooking. He rides a quad bike on the property where he lives or nearby and does mechanical work on quad bikes.
5. He studies the Bible and has belonged to a bible study group in the past. He does not formally go to church.
6. His social contact now is with a limited number of friends at BBQ's or going out for dinner with his housemates.
7. He does not smoke cigarettes now. He does not drink alcohol. He does not use illicit drugs.[1] He does not gamble.
8. The respondent likes to go into the bush, to go fishing or to go scuba diving. These activities are not available to him now, apparently because of the restrictions of directions made under the current supervision order.
9. If the respondent were not subject to a supervision order, he says he would eventually return to the Atherton Tablelands to be closer to family members. He would then do some travelling, probably to remote areas such as Kakadu or the Kimberly region. He would visit family members. He has other relatives in the gulf country (and a brother in Emerald). He would consider going back to work as a plant operator and would return to scuba diving, fishing and camping.

1. There were three reports of psychiatrists tendered in evidence. Each of the psychiatrists also gave oral evidence in chief and was cross-examined. The oral evidence was brief. Dr Michael Beech's report dated 12 December 2016 was prepared under s 8A. He diagnosed the respondent with paedophilia with an attraction predominately to boys in the range aged 6-15 years. He opined there is some evidence of personality disturbance but nothing that he thought now equates to a personality disorder. The respondent's score on the Hare Psychopathy Checklist was not in the realm of psychopathy.
2. He assessed the respondent's risk of reoffending using a number of instruments. On the STATIC-99R he assessed him with a score of 7. On the STABLE-2007, Dr Beech gave the respondent a score of 11 out of 26. Addition of the scores placed the respondent in the group of offenders who require an overall priority for supervision. Removal of the supervision order is regarded by Dr Beech as an acute factor.
3. Overall Dr Beech opined that the respondent has moved from the high risk group of offenders to the moderate risk group of offenders. He expressed concern that the respondent continues or has continued to associate with young males. Although they are above the age of consent, some of the notes on the file indicate they have been 16, 17 or 18 year old males who are youthful in appearance. Although that would represent an adaptation of a deviant sexual interest into the legal realm, Dr Beech's concern is that the adaptation is to the supervision order rather than a change in sexual interest.
4. In Dr Beech's view, the current supervision order has acted as a form of containment and he believes that the respondent's increasingly entrenched denial of his offending puts him at risk of returning to risk areas. The risk is that once a supervision order is removed, the respondent will start to go to areas and venues where he will come in contact with young males, and from there his deviant sexual interests will be aroused. Dr Beech's conclusion is that the respondent's risk, "will remain at a lowered level but not much lower than the average sex offender and not negligible until he is 60 years old".
5. At present, the respondent expresses that he has no sexual interest of significance. There is no evidence that the respondent is actively engaging in a sexual relationship or has done so for some time. I am concerned by the suggestion that the risk will be negligible when the respondent is 60 years old. In my view, the evidence did not satisfactorily explain why, if the respondent's risk is in the moderate risk group of offenders now, it will have decreased to negligible simply by the passage of time between now and when he is 60. It does not seem to be based on any of the instruments or the data as to rates of recidivist sexual offending in the different age groups. That the risk might become negligible appears to be based on Dr Beech's view that with the passage of time the respondent's sexual interests will wane. If given undue weight such a statement could have an undue persuasive effect, namely that because the respondent is a moderate risk now, a supervision order should be made for more than five years in the expectation that at 60 the considerations will be significantly different.

1. As previously mentioned, the evidence tendered on the application included a number of reports by Mr Walkley. Mr Walkley was not called to give evidence either orally or for cross-examination. He was a deponent. The contents of his reports pass unchallenged. I will not set them out in detail. It is clear that Mr Walkley has strong opinions concerning the respondent. First, he considers that he is a high risk of reoffending. Second, he suggests in more than one way that the respondent has not been cooperating in their sessions or in disclosing his intentions if freed from the constraints of a supervision order. I have formed the view that there appears to be distrust on both sides as between Mr Walkley and the respondent. It is notable that the respondent was prepared to disclose his intentions if freed from a supervision order to the examining psychiatrists. He knew those examinations were made for the purpose of the present proceedings. Accordingly, his unwillingness to share information with Mr Walkley is not necessarily based on the reason given by Mr Walkley, namely a desire not to disclose his intentions because that may be unhelpful to the respondent's interests on this application. Second, it appears perfectly clear that Mr Walkley wants the respondent to engage in his therapy or sessions on the footing that the respondent admits his offending either in full or to some extent. The respondent is opposed to that. He is entrenched in his denial that all of the offending, or most of it, occurred. It is easy to understand why they may be at loggerheads.
2. For the purposes of this application, it must be accepted that the offending occurred and that at the least the respondent is wrong-headed in his belief. But there is a marked difference in Mr Walkley's response to the respondent's position of denial and that, say, of Dr Harden. In Dr Harden's opinion, denial in itself is not a factor which increases the risk of the respondent committing another serious sexual offence. However, because of the respondent's denial it is more likely that he will not see the same importance in adopting or continuing structures or strategies designed to avoid contact with children which might expose him to the risk of further offending. That is because he does not recognise or believe that it is necessary for him to do so.

1. If the respondent's past behaviours are treated as the yardstick, there would be little doubt about his propensity to commit serious sexual offences in the future. But as Professor Lawrence emphasised in her report, the last offending by the respondent was many years (now 13 years) ago.
2. That said, the respondent's paedophilia is not an orientation or interest that is likely to have changed or to change. It may be that his interests in sexual activity generally have waned with the passage of time. All the psychiatrists' reports recognise that. As well, the respondent positively asserts that to be the case. But there is no objective measure of that assertion. A possible indicator against the respondent's assertion is the notable number of relationships he has developed over the years with 16, 17 or 18 year old young males, whether or not they have resulted in any sexual contact.
3. The hinge on which the varying opinions expressed by the psychiatrists and Mr Walkley seems to have turned, at least to some degree, is whether the conduct without further offending over the last 10 years should be treated as caused by the current supervision order rather than, or more than, anything else. At least Mr Walkley and Dr Beech appear to be of that view, and perhaps so is Professor Lawrence. Nevertheless, I wonder whether that is a matter of psychiatric or psychological expert opinion. It is an important point, if accepted, because it serves to discount the significance of what would otherwise be treated as a lengthy period of conduct without further offending whilst in the community.
4. In my view, there is a not insignificant risk that the respondent may commit a serious sexual offence in the future. In this respect, I am influenced by Dr Beech's evidence that although the respondent has developed a number of supports during his period on the current supervision order over the last five years in particular, they are not solid supports. He remains isolated, with few friends, and relatively withdrawn from ordinary social supports. He is isolated from and not able to see his family regularly because of the constraints attached to his place of residence and movements. These circumstances are not to be treated as the respondent's fault. On the one hand, wider and stronger connections of support would be treated as a positive in assessing the risk. On the other hand, a person subject to the constraints of a supervision order and a history of serious sexual offending faces significant hurdles in achieving stronger supports, if it can be done at all.

1. There is no question that there was a pattern to the respondent's offending. His targets have been (with one exception) boys, some of a very young age and, in some of the later offences, between about 10 and 15 years. The later offences involved indecent acts including oral sex, exposure and touching. However, Dr Beech opines that if the respondent were to commit a serious sexual offence in the future, it could well involve penetration.
2. That said, the respondent's offending has not involved any suggestion of violence or coercion. The respondent has befriended and persuaded his young victims, including doing so or attempting to do so by offers of money.

1. The respondent has cooperated with the terms of his current supervision order. Prior to that order being made, he attended the programs identified above. However, it is clear that Mr Walkley takes the view that the respondent does not presently make any effort to address the cause or causes of his offending. In oral evidence, Dr Beech succinctly summarised the respondent's position as one where any realistic expectation that the respondent might do so has now passed. It is not consistent with the respondent's denial of all of his offending, or most of it, that he would make efforts to address the offending behaviour. If there was an opportunity to do so, the opportunity has now passed.
2. It cannot therefore be suggested or taken into account that the respondent's participation in any of the programs previously mentioned has had a positive effect, except possibly to reinforce to him the consequences of further offending.

1. In my view, there are a couple of other relevant matters that should be taken into account.
2. First, acceptance of the proposition that the current supervision order has had a "but for" effect on the risk of the respondent committing a serious sexual offence creates an invidious position for the respondent. How is such a person to show, after 10 years of the current supervision order, or even after a further supervision order of five years or more, that the risk is reduced from that which formed the basis of the original findings of a serious danger to the community under ss 13(1) and 13(5)? The hypothetical question of what would have happened "but for" the making of the current supervision order must always entail a degree of speculation and operate as a negative factor in giving weight to what has otherwise been a lengthy period without further offending. Second, it must not be forgotten that the resources likely to be available to a person such as the respondent to provide evidence or to support an argument to the contrary are limited.
3. In the present case, no fewer than three psychiatrists and a psychologist have provided opinions on which the application rests. The structural process by which the evidence is gathered and presented is likely to produce some bias, without any suggestion of unprofessional conduct by any of those involved. Given the nature of the risks involved, the opinions are likely to be expressed conservatively. This can only add to the difficulties faced by a person in the position of the respondent. The concern is that as a practical matter a successful period of operation of a supervision order might be viewed as a status quo to be continued. It must not be forgotten that this is not the question to be answered under s 13(1) as to whether at the present time the respondent is a serious danger to the community.

1. The applicant submits that it should be found that the respondent presents a moderate risk of committing another serious sexual offence if he is in the community and not subject to a supervision order, and it follows that he is an unacceptable risk and a serious danger to the community.
2. The applicant relies on Attorney-General for the State of Queensland v Beattie,[2] where Keane JA said:

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

1. The respondent's counsel submits that, on the evidence, the only risk factor is the respondent's paedophilic sexual orientation and that predicting what might occur in the absence of a further supervision order is a matter of speculation or conjecture. He submits that the serious nature of the inquiry was reinforced in Attorney-General v Van Dessel,[3] where White J said:

"Here what is at stake is the fundamental legal right to the unfettered personal liberty of the Respondent on the expiration of his term of imprisonment. The serious nature of the inquiry is underscored in the Act by the use of the expression "high degree of probability". (emphasis added)

1. The respondent's counsel submits that on the current material the court could not be positively satisfied that the answer to the statutory question whether the respondent is a serious danger to the community in the absence of a further supervision order is "yes".
2. I do not agree. The applicant has shown to a high degree of probability and by acceptable cogent evidence that the respondent is a moderate risk of committing a serious sexual offence in the future. The evidence of the psychiatrists relevant to this question was generally consistent, subject to the points already mentioned and was not otherwise challenged by the respondent. There are countervailing factors, including that assessment of the risk at "moderate" does not foreclose the answer to the statutory question whether the risk is unacceptable. Also, the question must be answered with awareness of the heavy restrictions imposed by a supervision order upon the legal right to liberty and the impact of a supervision order upon the respondent's quality of life, including that it prevents him from establishing closer contact with his family and from strengthening solid support structures.
3. Overall, in my view, there is an unacceptable risk that the respondent as a released prisoner will commit a serious sexual offence if a further supervision order is not made. Accordingly, the respondent is a serious danger to the community.

Period and conditions of the proposed further supervision order

1. An aspect of the present application that occupied a significant time in the hearing of the application was the terms and conditions of the proposed further supervision order.
2. As previously mentioned, at the outset of the hearing of the application the applicant increased the period of the proposed order from 5 years to over 7 years, ending on the respondent's 60th birthday. This significant increase of the period was said to be justified on the basis of Dr Beech's view that the respondent's risk of reoffending would not reduce to negligible until 60. Each of the psychiatrists had said in his or her report that a period of 5 years was appropriate, there was no other persuasive evidence in support of a longer period. I have previously indicated that I find the argument that the risk is negligible at 60 not to be soundly supported or persuasive. Under s 13A(3) of the DPSOA, a supervision order cannot end before 5 years after making the order. Accordingly, the term of the further supervision order must be no shorter. However, I reject the application to make it for a longer period.
3. Second, in his report, Dr Beech said that a further supervision order may not need all the conditions in the current order. In his report Dr Harden said that (apart from the compulsory conditions) the only condition should be a restriction upon contact with people under 16 years of age and that in his opinion there is no requirement for GPS monitoring, curfews, restrictions in substances or multiple conditions of other kinds. In her supplementary report, Professor Lawrence said that a supervision order might be made possibly with some relaxation in some areas.
4. The applicant paid no attention to any of that evidence. The current supervision order contains 29 conditions. Only nine are requirements that must be imposed. But the proposed order would contain 32 conditions. In some respects the applicant proposed and pressed for more restrictive conditions than those of the current supervision order.
5. The oral evidence of the psychiatrists varied as to the conditions that may be necessary to reduce the risk. All of them agreed that some of the conditions proposed were not relevant to the risk of committing a serious sexual offence. On others, they expressed views as to how the condition should be managed operationally so as not to overly restrict the respondent's freedom. To some degree, I was concerned that this evidence reflected the psychiatrists' ambivalence about the need for a condition as proposed or a sense of dissatisfaction at the likely or potential restrictiveness of the administration of the conditions, but it would be false to proceed on the basis that the conditions will be administered more liberally in the future than in the past.

Initiating document: Application filed 24 February 2017

THE COURT, being satisfied to the requisite standard that the respondent, Kevin Michael Loudon, is a serious danger to the community in the absence of a further supervision order made pursuant to Part 2 Division 4A of the Dangerous Prisoners (Sexual Offenders) Act 2003 (the Act), ORDERS THAT:

1. The respondent as a released prisoner be subject to the following requirements until 7 July 2022:

(1) be under the supervision of a Corrective Services officer for the duration of the order;

(2) report to a Corrective Services officer at the Townsville Probation and Parole Office by 4pm on (insert date) and, at that time, advise the officer of his current name and address;

(3) report to, and receive visits from, a Corrective Services officer at such times and at such frequency as determined by Queensland Corrective Services;

(4) notify a Corrective Services officer of every change of his name, place of residence or employment at least two business days before the change happens;

(5) comply with a curfew direction or monitoring direction;

(6) comply with any reasonable direction under section 16B of the Act given to him;

(7) comply with every reasonable direction of a Corrective Services officer that is not directly inconsistent with a requirement of the order;

(8) must not leave or stay out of Queensland without the permission of a Corrective Services officer;

(9) not commit an offence of a sexual nature during the period of the order;

(10) notify a Corrective Services officer of the nature of his employment, or offers of employment, the hours of work each day, the name of his employer and the address of the premises where he is or will be employed;

(11) seek permission and obtain approval from a Corrective Services officer prior to entering into an employment agreement or engaging in volunteer work or paid or unpaid employment;

(12) reside at a place within the State of Queensland as approved by a Corrective Services officer by way of a suitability assessment;

(13) not reside at a place by way of short term accommodation, including overnight stays, without the permission of a Corrective Services officer;

(14) seek permission and obtain the approval of a Corrective Services officer prior to any change of residence;

(15) (intentionally deleted)

(16) not to have any direct or indirect contact with a victim of his sexual offences without the prior approval of the authorised corrective services officer;

(17) respond truthfully to inquiries by Corrective Services officers about his whereabouts and movements generally;

(18) notify a Corrective Services officer of the make, model, colour and registration number of any vehicle owned by or generally driven by him, whether hired or otherwise obtained for his use;

(19) (intentionally deleted)

(20) (intentionally deleted)

(21) attend upon, and submit to, assessment and/or treatment by a psychiatrist, psychologist, social worker, counsellor or other mental health professional as directed by a Corrective Services officer at a frequency and duration which shall be recommended by the treating intervention specialist;

(22) (intentionally deleted)

(23) permit any medical, psychiatric, psychological or other mental health practitioner to disclose details of treatment, intervention and opinions relating to level of risk of re-offending and compliance with this order to Queensland Corrective Services if such a request is made for the purposes of updating or amending the supervision order, and/or ensuring compliance with this order;

(24) (intentionally deleted)

(25) not have any supervised or unsupervised contact with children under 16 years of age, except with the prior written approval of a Corrective Services officer. The respondent is required to fully disclose the terms of the order and nature of offences to the guardians and caregivers of the children before any such contact can take place. Queensland Corrective Services may disclose information pertaining to the respondent to guardians or caregivers and external agencies (i.e. Department of Child Safety) in the interests of ensuring the safety of the children;

(26) (intentionally deleted)

(27) (intentionally deleted)

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

(29) (intentionally deleted)

(30) (intentionally deleted)

(31) not access or possess pornographic images that display photographs or images of children on a computer or on the internet or in any other format; and

(32) permit a Corrective Services officer or a person nominated in writing by a Corrective Services officer to access any computer or electronic device or storage media for any such computer or device for the purpose of monitoring compliance with this order.

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

[1] I have not overlooked that he has a conviction of possession of a dangerous drug but he says that the basis was that the drug or drugs belonged to and were used by someone else who was living or staying at his house at the time.

[2] [2007] QCA 96, [19].

[3] [2006] QSC 016, [17].