Attorney-General for the State of Queensland v McLean

[2] The relevant statutory provision is s. 13 of the Act, which provides:

(1) This section applies if, on the hearing of an application for a division 3 order, the court is satisfied the prisoner is a serious danger to the community in the absence of a division 3 order (a serious danger to the community).

(2) A prisoner is a serious danger to the community as mentioned in subsection (1) if there is an unacceptable risk that the prisoner will commit a serious sexual offence--

(a) if the prisoner is released from custody; or

(b) if the prisoner is released from custody without a supervision order being made.

(3) On hearing the application, the court may decide that it is satisfied as required under subsection (1) only if it is satisfied--

that the evidence is of sufficient weight to justify the decision.

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

(a) the reports prepared by the psychiatrists under section 112 and the extent to which the prisoner cooperated in the examinations by the psychiatrists;

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

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

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

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

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

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

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

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

(5) If the court is satisfied as required under subsection (1), the court may order--

(a) that the prisoner be detained in custody for an indefinite term for control, care or treatment (continuing detention order); or

(b) that the prisoner be released from custody subject to the conditions it considers appropriate that are stated in the order (supervision order).

(6) In deciding whether to make an order under subsection (5)(a) or (b), the paramount consideration is to be the need to ensure adequate protection of the community.

(7) The Attorney-General has the onus of proving that a prisoner is a serious danger to the community as mentioned in subsection (1).

[3] On 8 November 1993, the respondent was sentenced to an effective term of 13 years imprisonment for a series of offences committed between 4 and 13 April 1993 on a woman with whom he was in a relationship at the time and on her then 12 year old pre-pubertal daughter. For the purposes of the Act, the offences included 2 counts of rape, 2 counts of attempted rape, aggravated indecent assault and 2 counts of indecent assault. These offences were all committed on the 12 year old daughter and constitute "serious sexual offences" for the purposes of the Act. In addition, the respondent was convicted of 4 counts of assault, threatening to cause death with intent to prevent a complaint to police and deprivation of liberty. Apart from threatening to cause death, these were offences committed on the child's mother.

[4] The respondent had spent 209 days in custody before being sentenced. This period was declared time served pursuant to the sentence. The respondent's full time release date was 13 April 2006. But for the Interim Detention Order he would have been released prior to the hearing date of the present application.

[5] The sentencing judge commenced his sentencing remarks by noting that "seldom in my long career in the Courts have I had the misfortune to hear of such a consistent and extended course of violent, depraved conduct, addressed towards a 12 year old, her mother, and indeed, her whole family."

[6] Details of the offences themselves are set out in the transcripts of the proceedings exhibited to the affidavit of Solomon Rowland filed on 26 October 2005 and need not for present purposes be detailed here. The seriousness of the offending conduct can be gathered from the sentence of 13 years imposed on the respondent, despite a plea of guilty and no previous convictions of either a violent or a sexual nature.

[7] The respondent was 28 years old when the offences were committed. He is now aged 40. The respondent is a man of obvious indigenous background. On the evidence he has a strong affiliation and identification with his Aboriginality.

[8] On 14 November 2005 an order was made that the respondent undergo examinations by Dr Basil James and Dr Lawrence pursuant to s. 8(2)(a) of the Act.

[9] On 6 February 2006, an Interim Detention Order was made under s. 8(2)(b) of the Act.

[10] The issue before me was whether, having regard to the evidence of the psychiatrists, the respondent was a "serious danger to the community." Sub-sections 13(1) and (2) of the Act confer jurisdiction to make a Division 3 order only if the Court is satisfied that in the absence of an order under Division 3 there is an unacceptable risk that the respondent will commit a serious sexual offence if released from custody or released without a supervision order.

[11] The opinions of the psychiatrists are, of course, only one of a number of factors to which the Court hearing the application is to have regard. The other matters are set out in s. 13(4). In this case, there is no pattern of offending behaviour. The acts giving rise to the charges, if taken to be a single episode - albeit stretched over several days - represent the only sexual offences or acts of violence in the respondent's criminal history.

[12] The respondent has completed Family Systems, First Aid, Fitness Training, Cognitive Skills, Anger Management, Welding, Substance Abuse Prevention Management and Family Violence Programmes.

[13] The respondent has not completed a Sex Offender Treatment Programme. Until 2004, such programmes were not offered at Lotus Glen where the respondent has been incarcerated throughout his sentence. The respondent was unwilling to be transferred to Rockhampton or Brisbane to attend a Sexual Offender Treatment Programme in one of those prisons because he would lose his family and friend support network. He also expressed some fear of reprisals from relatives of the victims of offences committed by his uncles. Such relatives were apparently in southern prisons.

[14] In 2004 the respondent was not accepted into the Indigenous Sexual Offenders Treatment Programme. He was apparently rejected on the basis that his security classification was too high. He is eligible to enter such a course to commence in July 2006 and an indication has been given that he has reasonable prospects of being accepted if the Attorney-General succeeds in this application and the respondent is still in prison at that time.

[15] In my opinion, while the respondent has had the opportunity to apply for entry into sex offender courses on other occasions it is not possible to say that his failure to apply before 2004 necessarily evidences an unreasonable refusal to address his offending behaviour.

[16] In this case, apart from those brief comments, the other matters addressed by s. 13(4) of the Act are dealt with in a comprehensive way in the reports of Dr Lawrence, Dr James and Professor Nurcombe. Other reports prepared in the course of the respondent's incarceration are of less relevance in this case because of their age. Those reports are analysed by Professor Nurcombe and are themselves in evidence. It is not my intention to deal with them specifically.

[17] The earliest of the three critical reports was prepared by Professor Nurcombe on the basis of comprehensive background material, a six hour interview on 4th May 2005 and actuarial predictive testing.

[18] Professor Nucombe's opinion is summarised at page 28 of his report as follows:

"1. The categorical diagnosis in this case is Alcohol Abuse Disorder.

3. Mr McLean has limited cognitive ability, probably stemming from early cultural disadvantage.

4. He strives hard to acquire and maintain traditional Aboriginal beliefs concerning respect for elders, relationship with kinsfolk and Aboriginal healing powers.

5. The offences in question took place in an emotional setting of loss and confusion concerning the death of his protective grandmother, heavy binge drinking and anger at what he regarded as disrespect by his de facto wife.

6. The risk of future violence/sexual violence is regarded as moderate or moderate to high.

7. His behaviour in prison has been generally good and he has completed a number of therapeutic programs.

8. However, he has not completed a Sex Offender Treatment Program because, in the past, this would have required his transfer to another prison, with separation from supportive kinsfolk and friends.

9. If an Indigenous Sex Offender Treatment Program could be conducted at Lotus Glen Correctional Centre, I strongly recommend that this be undertaken prior to his discharge.

10. The chief problem with regard to his release from prison is the failure of the system, thus far, to help him address his minimization and rationalization of the crime, and his tendency to project the blame for it onto his victims.

11. While these attitudes remain unaddressed, the risk of future violence is increased."

[19] Some of these conclusions require greater examination.

[20] As with the other psychiatrists, Professor Nurcombe conducted actuarial predictive tests to assess an actuarial risk of recidivism by the respondent. The tests conducted by each of the psychiatrists were tests known as the Hare PCL-R, the Violence Risk Appraisal Guide (VRAG) and the Sex Offender Risk Appraisal Guide (SORAG).

[21] The Hare PCL-R rates offenders out of a score of 40. A score of 30 or above supports a diagnosis of psychopathy. On this test the respondent was assessed by Professor Nurcombe at 26. This number is integral to the other tests.

[22] On the VRAG test Professor Nurcombe assessed the respondent with a score of 15. A score of 15 is in category 7. Category 7 is an assessed risk of re-offending at 55% within 7 years and 64% within 10 years.

[23] On the SORAG test, Professor Nurcombe assessed the respondent at 12, which Professor Nurcombe places in category 6 with a risk of re-offending of 44% within 7 years and 58% within 10 Years.

[24] To somewhat similar effect is a further test each of the psychiatrists carried out known as HCR-20.

[25] In summary, the tests showed Professor Nurcombe that the respondent had a moderate to high risk of violent recidivism and a moderate risk of sexual recidivism.

[26] However, Professor Nurcombe qualifies these findings in this way:

"94. It should be pointed out that the predictive statistics upon which the various actuarial instruments to be employed in this case rely are of unknown validity for Indigenous people. North American Indians and Indigenous Australians are raised in homes often affected by family instability, heavy parental alcohol intake, and domestic violence. In other words, the actuarial risk indices (Such as SORAG, SVR-20 and PCL-R) may be biased against Indigenous people. Whether or not they are biased is not clear. Predictive risk-assessment tests are currently being developed in Canada for Indigenous people but they have not been fully tested. Whether instruments designed in Canada will be suitable for Indigenous Australians is a further question the answer to which will not be available before the next five to ten years. Until then, it must be conceded that one is forced to rely upon predictive instruments derived from generalised Canadian offender samples."

[27] While Professor Nurcombe did not give oral evidence, it seems to me to be reasonable to assume that, like the other two psychiatrists who addressed this issue, Professor Nurcombe relied principally on his clinical assessment and less heavily on the predictive tests. Nonetheless, these tests do play a part in the overall assessment of risk.

[28] In the text of his report (at pages 27 and 28), Professor Nurcombe identified the risk enhancing and minimising factors in relation to the respondent and opined that monitoring of the risk of future violence could be achieved by

• Monitoring of his family and personal relationships

• Completing the Indigenous Sex Offender Treatment Programme

[29] In relation to the risk management, Professor Nurcombe at page 27 of his report opined that further offending is "most likely to occur in a setting of heavy binge drinking."

• Exposure to personal loss, rejection or abandonment

• Entrance into an intimate relationship where he is subjected to nagging and jealousy

[31] Among the risk-protective factors identified were:

• Caution about entering into intimate relationships, particularly if they bring him into proximity with young females

• The possibility that he could coach younger men in football

[32] Professor Nurcombe expressed concern at the failure of the respondent to complete a Sex Offender Treatment Programme and recommended that this be completed before release in 2006. Professor Nurcombe's report was prepared at a time when, had the course been available at Lotus Glen, it could have been completed prior to the respondent's full term release. Of course, it is not open to this Court to impose any terms on the continued detention of an offender beyond the expiration of his sentence.[1] If a detention order was to be made the respondent would remain incarcerated until at least mid 2007.

[33] Professor Nurcombe could find no evidence of sexual deviation. I assume this includes paedophilia.

[34] Dr Basil James examined the respondent on 2nd December 2005.

[35] Dr James scored the respondent at 10 on PCL-R, 3 on the VRAG test and 1 on the SORAG test. These ratings were all low. Notwithstanding these low results on the actuarial predictive tests Dr James concluded that the risk of recidivism was high.

[36] Dr James' conclusion that the respondent had a high risk of recidivism should not be accepted at face value. Dr James approached the exercise from the point of view of seeking to establish that it was safe to release the respondent. The effect of this was to place the onus on the respondent to show it was safe for him to be released rather than on the applicant to show that it would be unacceptably dangerous to release him. This approach, while understandable, is at odds with s. 13(7) of the Act, which places the onus of proof on the applicant.

[37] Dr James summarised his position at paragraph 6 on page 26 of his report:

"In my opinion, without the putting in place of the above recommendations, too many unknowns would remain to enable accurate predictions to be made regarding recidivism; with so many unknowns, I believe that the risk of recidivism would have to be considered high. Focussed attention to the recommended courses of action, were they to be actioned expeditiously, would make a review of Mr McLean's status in about twelve months both useful and appropriate."

[38] The steps recommended by Dr James included examination for manifestations of syphilitic infection, which might have had an influence on his behaviour when the offences were committed. In addition, he recommended maintenance of relationship networks, periodic psychiatric oversight, psychotherapy and participation in the Indigenous Sex Offenders Treatment Programme.

[39] In his oral evidence Dr James explained his position a little more clearly:

Mr McCreanor: Logically then, doctor, is it not the situation that logically you don't know. You're saying you don't know really what did motivate him all those 13 years ago, and that being so, how can you then - if you don't know, how can you make a prediction at all?

Dr James: Well, I - I make a general clinical prediction in this way: There - there is - in my opinion what occurred was an unexplained major eruption and dislocation of behaviour with pretty disastrous consequences ... and I want to know: Is this likely again? And until I have a better understanding of what happened it's difficult to know whether or not it would happen again. And I can either - well I can't be reassuring about that.

[40] Dr James saw the most significant benefit of the Sex Offender Treatment Programme as being to provide further information of diagnostic value which might enable him to predict with more confidence the likelihood of recidivism.[2]

[41] Despite effectively placing the onus in the matter on the respondent, I found Dr James' oral evidence particularly helpful in understanding the psychiatric evidence more generally.

[42] Following an examination over about four and a half hours on 16 December 2005, Dr Lawrence reported her opinion as follows:

"21.1 In my opinion Lawrence Bernie McLean continues to represent a moderate to high risk of re-offending in a sexual manner if released at this time.

21.2 The factors which significantly increase the risk of re-offending are his Substance Abuse Disorder (primarily alcohol). When intoxicated, McLean clearly becomes disinhibited and any underlying sexual and/or violent impulses will become even more evident. If he does have underlying paedophilic attractions, they are more likely to be manifest when intoxicated, ie, already limited internal behavioural controls are further diminished.

21.3 His personality traits are consistent with a person, who has little thought for others, is significantly narcissistic and has little or no empathy for other people. He is impulsive and also deficient in internal behavioural controls though he recognises and accepts external behavioural controls from appropriate authorities whom he recognises and respects. The effect of such external controls, however, would also be lost with intoxication.

21.4 To avoid returning to a lifestyle of itinerancy and alcoholism, a strong socially supportive externally controlled network of peers involving Aboriginal Elders and community would need to be accepting of him. Such a community should certainly be 'dry' to assist him to maintain abstinence.

21.5 With such a socially supportive community, he should be encouraged to develop a role for himself, preferably with employment, but also to develop a role where he can earn respect from his peers and Elders and self-respect through contributing to his community.

21.6 Regarding conditions that may be imposed on him: Total abstinence from alcohol and other substances and submission to random checks for those substances to ensure compliance should be mandatory.

21.7 He would need close and regular supervision from a stable, culturally aware Parole/Corrections Officer - particularly in the initial stages if he were to be released. Whilst such regularity may decrease in the frequency after a period of time (I would consider 1 - 2 years likely), the requirement for such regular supervision should be continued, probably indefinitely, if the risk of re-offending is to be minimised.

21.8 Should he return to abuse of alcohol, offending of some sort, possibly violent and sexual in nature may well re-occur.

21.9 Since Bulla McLean's Aboriginality is of such significance to him, his placement and monitoring should always take these factors into consideration.

21.10 I would recommend further that he complete an Indigenous Sexual Offenders Program before release. I understand such a program will be available in the early part of 2006 at Lotus Glen Correctional Centre. The Program would be designed for Indigenous offenders and, I understand, would accept high risk offenders."

[43] While Dr Lawrence could not exclude paedophilia, she could not confirm it in any positive sense. Neither of the other psychiatrists suggested this as a problem for the respondent.

[44] Dr Lawrence also carried out the actuarial predictive tests scoring the respondent 28 on PCL-R, category 8 on VRAG and category 8 on SORAG. These suggest a high risk of recidivism but Dr Lawrence accepted the reservations regarding the applicability of these tests to Indigenous Australians expressed by Professor Nurcombe.

[45] As I understand Dr Lawrence's opinion, her concerns regarding the potential for recidivism by the respondent are significantly elevated by the risk of alcohol abuse if the respondent is released. It appears from all the material that alcohol abuse was a significant factor in the crimes for which the respondent is presently incarcerated.

[46] In answer to a question during her evidence, Dr Lawrence said:

"I think the biggest risk factor for re-offending would be the alcohol and/or substance abuse, but probably alcohol abuse being - or alcohol being the substance most likely to be abused. Because as far as one could see, very large quantities of alcohol had been consumed and probably chronically so, and this had the effect of disinhibiting his behaviour and his impulses. Now, the - it is not possible to understand the extent of that. His explanations to me were certainly not credible really, and I think I indicated they continued to be self-justifying, which, after the length of time he'd been in prison, was very concerning really, and it was somewhat - oh, I won't say bizarre but it was certainly very difficult behaviour to understand how he could do such a thing, so I - for the reasons I've outlined and I think we're talking about much the same thing. I cannot be sure that this man has paedophilic impulses. He's - he appears to be primarily associating with adult females, but there were some unusual features insofar as he so severely and seriously abused and repeatedly abused the 12 year old daughter of the mother, that it just makes you very concerned about what could happen again in the future if he were drunk enough."

[47] Counsel for the applicant focussed on the risk assessments of the psychiatrists and to a lesser extent on the assessments of other psychiatrists and psychologists who have had contact with the respondent over the last six years. Combined with opinions as to the respondent's lack of insight into his offending behaviour, the applicant submitted that I would be satisfied to the degree required under s. 13(3)(b) that the respondent would be a serious danger to the community if released at this time.

[48] Counsel for the respondent submitted I would reject any opinion based to any extent on the actuarial predictive tests because of the potential bias they contain in the case of Indigenous Australians. While each of the psychiatrists acknowledged the deficiencies of the tests and stated that the principle basis of their assessment was their clinical examination, the fact that each has included the test results and conclusions drawn from them in his or her report indicates that those tests were a factor in each assessment.

[49] Counsel for the respondent submitted that if the psychiatric assessments were rejected there was no evidence on which to base the finding that there was a serious danger to the community.

[50] In relation to the other criteria set out in s. 13(4), counsel for the respondent submitted that there was no propensity to this type of offence demonstrated. There was no pattern of offending. The respondent had participated in those rehabilitation programmes available to him at Lotus Glen. His failure to complete the Sexual Offender Programme was for reasons beyond his control.

[51] Counsel for the respondent submitted that I should dismiss the application.

[52] On the evidence I am satisfied that if released unsupervised the respondent would constitute a serious danger to the community.

[53] In arriving at this conclusion I am conscious of the reservations I have already expressed in relation to the approach taken by Dr James. Despite this, I accept that the matters Professor Nurcombe and Dr Lawrence set out in their reports are such as to suggest that the respondent would be a real and substantial risk of re-offending if released unsupervised. Taking into account the nature of the prior offending, this risk would constitute an unacceptable risk of a serious sexual offence. For this conclusion I rely on the clinical findings set out in the report and summarised in the passages from the conclusion that I have set out.

[54] The pattern of substance abuse, its apparent influence on the offending behaviour and the low levels of empathy for the victims or appreciation of the consequences of the behaviour are all matters of concern.

[55] On the other hand, if alcohol is excluded from the mix of factors the level of risk is substantially reduced. This is apparent both from paragraphs 21.2 and 21.8 of Dr Lawrence's report. This conclusion is consistent with the views of Professor Nurcombe.

[56] I accept that the failure of the respondent to complete a Sexual Offender Treatment Programme is a matter of concern. I am not persuaded that this is sufficient of itself to deny the respondent's release from prison in the absence of alcohol.

[57] Having regard to the onus on the applicant, I am not persuaded that if suitable conditions were framed the respondent would constitute a serious danger to the community if released under a supervision order.

[58] Apart from the standard conditions required by s. 16 of the Act such conditions should include those referred to in paragraph 21.6 of Dr Lawrence's report. They should also meet Dr James opinion that the respondent be subject to appropriate psychiatric or psychological assessment. If a Sexual Offender Treatment Programme or an equivalent is available outside the prison environment the respondent should attend if required to do so.

[59] There is no evidence that the respondent has ever committed or threatened to commit an offence against a stranger. Such a risk is not suggested in any of the reports before me. Nor does the evidence permit me to infer that the respondent is a paedophile despite the fact that the offences were committed on a pre-pubertal 12 year old girl.

[60] I consider that some limitation should be placed on the respondent entering into an intimate residential domestic relationship in a household containing female children. I also consider that he should not be placed in a position of supervision over a girl under the age of 16 years.

(a)

be under the supervision of a Corrective Services Officer ("the supervising corrective services officer") for the duration of this order;

(b)

report to the supervising corrective services officer at the Department of Corrective Services Area Office closest to his residence between 9am and 4pm on the day of or following his release from prison and therein to advise the officer of the respondent's current name and address;

(c)

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

(d)

notify the supervising corrective services officer of every change of his name, place of residence or employment at least 2 business days before the change happens;

(e)

not leave or stay out of Queensland without the permission of a corrective services officer;

(f)

comply with every reasonable requirement made by the supervising corrective services officer;

(g)

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

(h)

not to have any supervised or unsupervised care of a girl under the age of 16 years;

(i)

not to enter into any intimate residential domestic arrangement in a household including female children under the age of 16 years;

(j)

abstain from alcohol and illicit drugs for the duration of this order;

(k)

take prescribed drugs only as directed by a medical practitioner;

(l)

submit to alcohol or drug testing as directed by the supervising corrective services officer or any police officer, the expense of which is to be met by the Department of Corrective Services or by the police as the case may be;

(m)

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

(n)

attend any sex offending treatment programme or counselling as considered appropriate by the supervising corrective services officer in consultation with the treating psychiatrist or psychologist, the expense of which is to be met by the Department of Corrective Services;

(o)

permit any treating psychiatrist, psychologist or counsellor to disclose details of medical treatment and opinions relating to his level of risk of re-offending and compliance with this order to the Department of Corrective Services if such request is made in writing for the purpose of updating or amending the supervision order or ensuring compliance with this order.

[62] The conditions of the supervision order should remain in place for five years.

[63] I will hear argument about the form of order and the conditions I have proposed.

[1] An attempt to do so in Francis was unsuccessful. For details see: Attorney-General v Francis [2005] QSC 381.