Attorney-General for the State of Queensland v Miskin [2021] QSC 298

• [1] The Attorney-General applies, pursuant to s 27(2) of the Dangerous Prisoners (Sexual Offenders) Act 2003 (Qld) ("the Act") to review the continuing detention of the respondent. On 2 December 2019, his Honour Justice Bradley, upon being satisfied to the requisite standard that the respondent was a serious danger to the community in the absence of a Division 3 order made under the Act, ordered that pursuant to s 13(5)(a) of the Act, the respondent be detained in custody for an indefinite term for control, care or treatment. His Honour's reasons for making that order are published as Attorney-General for the State of Queensland v Allan Peter Frank Miskin [2019] QSC 330. This is the first review of that order within the meaning of s 27(1A) of the Act.
• [2] On this occasion, there is no contest, in the sense that the respondent has expressly conceded that there is acceptable cogent evidence which would satisfy the court to the high degree of probability required, that the respondent remains a serious danger to the community in the absence of an order made under division 3. That concession, which I consider to have been properly made, is made against the background of the opinions of two psychiatrists (Drs Arthur and Moyle,) who have examined the respondent and provided a psychiatric risk assessment for use in these proceedings. The relevant opinions of the psychiatrists may be relevantly set out as follows:

(a) Dr Arthur, in his report dated 5 October 2021 at paragraphs 98 and 99, has materially expressed these opinions:

"Utilising structured clinical judgment, I estimate [the respondent's] unmodified risk of sexual recidivism to be moderate, rising to high in the context of a return to substance abuse. Whilst he appears to have developed a degree of intellectual insight and acceptance ... he remains vulnerable to relapsing into substance abuse and continues to display evidence of poor emotional regulation when faced with stressors.

It is difficult to estimate the imminence of reoffending given that his past offences have been seemingly impulsive and unplanned."

(b) Dr Moyle, in his report dated 3 November 2021, at paragraphs 107 to 110, has relevantly opined:

"...in my opinion, the unmodified risk currently is moderately high if not subject to the [Act]. It is a moderately high risk of violent rape against vulnerable adult women who are isolated that would cause considerable emotional harm to victims.

Without a Supervision Order, that risk will remain moderately high but, with a Supervision Order, I think it would be lowered to acceptable levels. ...

... without a Supervision Order, the risk remains moderately high of serious harm to victims but, with a Supervision Order, in my opinion, it would be lowered to acceptable should he adhere to the conditions of a Supervision Order."

• [3] Against the background of this psychiatric evidence, I am satisfied that the conditions contained in s 30(2) of the Act have been satisfied. I affirm the decision that the respondent is a serious danger to the community, in the absence of a Division 3 order.
• [4] Following the hearing before his Honour Justice Bradley in December 2019, the respondent commenced the Sexual Offenders Program for Indigenous Males ("SOPIM"). The respondent commenced the SOPIM on 25 September 2020 and completed the SOPIM on 11 October 2021. The SOPIM completion report describes him as "...a dedicated and internally motivated participant, who excelled in both group and individual work". Further, in that part of the report marked "Summary of Program Participation", the respondent has received an assessment rating of "excellent", being the highest rating available, for each category of assessment, namely, Overall Level of Attendance, Overall Level of Participation, Giving and Receiving Feedback, Adherence to Group Rules and Group Processes, Attentiveness and Attitude to other Group Members and Completion of Individual Requirements. At the time of providing their initial reports, the psychiatrists had not been provided with a copy of the SOPIM completion report because the respondent had not completed the SOPIM at that stage. Since their initial reports, the psychiatrists have been provided with the SOPIM completion report.
• [5] In terms of the psychiatrists' initial reports, as to the respondent's participation in the SOPIM:

"Whilst I have not been provided with any detailed feedback, it appears that [the respondent] has engaged well in the [SOPIM] and I am anticipating that the reports from program convenors will be positive, but it would be useful to review this material as soon as it is available... based on his progress, I believe that his risk of sexual recidivism could be appropriately managed in the community under the auspices of a Supervision Order."

"In the [SOPIM], [the respondent] is developing insight and his presentation to me on this occasion seemed more insightful and controlled. He did not seem to be emotionally overly affected in interview, and he seems to have gained some insight into the role of his personality, weaknesses, and addictions to drugs... I will need to see the exit report from the course and it would be helpful if a statement from Prison Mental Health Services can attest to what they see as his needs in the longer term...Abstinence from alcohol and amphetamine and other drug use, and avoidance of associations with criminal peers, forming pro-social recreational pursuits, forming peer relationships with non-offending Aboriginal and Torres Strait Islander populations will be all positives moves."

• [6] Since being provided with the SOPIM completion report, Dr Arthur has prepared an addendum report and has relevantly concluded as follows:

"It is gratifying that [the respondent] appears to have benefited from the SOPIM. I remain of the opinion that his risk of sexual recidivism could be adequately managed in the community under an order as per my report dated 11 August 2021."

• [7] Dr Moyle has provided an addendum report in which he relevantly concludes as follows:

"My diagnoses remain the same and I am satisfied that [the respondent] is demonstrating positive change throughout his time in custody, and in [the SOPIM]. ... It is in my opinion that he is being well prepared in the [SOPIM] for the implementation of a community supervision order under [the Act]."

• [8] Section 30(3) of the Act provides as follows:

"If the Court affirms the decision, the Court may order that the prisoner -

(a) continue to be subject to the continuing detention order; or

(b) be released from custody subject to a supervision order."

• [9] In Attorney-General for the State of Queensland v Tiers,[1] Applegarth J said:

"A continuing detention order should only be made where the Attorney-General proves that the community cannot be adequately protected by a supervision order.[2]

A supervision order need not be risk free; that would be an impossible bar.[3]

The question is whether the protection of the community is adequately ensured:

"If supervision of the prisoner is apt to ensure adequate protection, having regard to the risk to the community posed by the prisoner, then an order for supervised release should, in principle, be preferred to a continuing detention order on the basis that the intrusions of the Act upon the liberty of the subject are exceptional, and the liberty of the subject should be constrained to no greater extent than is warranted by the statute which authorised such constraint."[4]

In Attorney General for the State of Queensland v Sutherland, McMurdo J (as his Honour then was) stated:

"The Attorney-General must prove more than a risk of reoffending should the prisoner be released albeit under a supervision order. As was also observed in Francis, a supervision order need not be risk free, for otherwise such orders would never be made. What must be proved is that the community cannot be adequately protected by a supervision order. Adequate protection is a relative concept. It involves the same notion which is within the expression 'unacceptable risk' within s13(2). In each way the statute recognises that some risk can be acceptable consistently with the adequate protection of the community."[5]

While there is a preference for a supervision order to be made over a continuing detention order, a supervision order must be sufficient to provide adequate protection of the community. In Turnbull v Attorney-General (Qld), Morrison JA observed:

"When a court is assessing whether a supervision order can reasonably and practically manage the adequate protection of the community, it is necessarily assessing the protection the order can provide against that risk. Before making the order the court has to reach a positive conclusion that the supervision order will provide the adequate protection."[6]

The mere fact that a respondent may, in the future, breach a supervision order in a fashion which may demonstrate an escalation of risk does not preclude a supervision order being made."

• [10] In this case, there is no real challenge by the Attorney-General to the conclusion that the adequate protection of the community can be ensured by the making of a supervision order under s 30(3)(b) of the Act. In particular, the Attorney-General's written submissions have relevantly submitted as follows:

"...it is acknowledged the evidence supports the finding that the Respondent is a serious danger to the community in the absence of a Part 2 Division 3 order, and that the adequate protection of the community can be ensured by the making of a supervision order under section 30(3)(b) of the Act;"

"In this case, there are factors which would cause the court to consider the supervised release of the Respondent. In this case, the psychiatric opinion supports the respondent's reintegration into the community. A supervision order of at least five years made under section 30(3)(b) would provide a sound basis for the ongoing adequate protection of the community;" and

"In the opinion of Dr Arthur and Dr Moyle a supervision order would provide for the adequate protection of the community..."

In terms of the clinical recommendations of the psychiatrists, they may relevantly be set out as follows:

"I believe [the respondent] would benefit from ongoing drug and alcohol counselling in the community, as he remains vulnerable to relapse. Unfortunately, if he is released to the Townsville precinct, there is a high likelihood that he will be exposed to other supervisees engaging in substance abuse and will require much support to maintain abstinence. Given his concerns about the effects of associated peers, his associations should be closely monitored. Whilst contact with family and cultural supports should be encouraged, I note that there have been some past difficulties in his interactions with some family members. Were he to remain offence free in the community for a period of five years, I believe his risk would be reduced to an acceptable level."

"I have given my reasons for these assessments above, but specifically [the respondent] is a male who has adopted a criminal lifestyle with an Antisocial Personality Disorder, but not high levels of psychopathy, with a lifestyle fuelled by alcohol and methamphetamine use and sales to support his lifestyle, and he has a vulnerability to a powerful Alcohol and Methamphetamine Use Disorder, needing monitoring and treatment... In my opinion, he is starting to mature at 29 years of age, which is relatively young in a man with an Antisocial Personality Disorder. He has an active sex drive, and there is a possibility of sadistic elements to his sexual interests that would need monitoring.

He expresses currently a willingness to continue his engagement with helping agencies such as programs in the community, psychiatrists and psychologists, and to be case managed and comply with the conditions with the goal of becoming a pro-social good role model for children... He will benefit from a graded reintroduction carefully managed under the authority of a Community Supervision Order while his early progress is at a time he is learning to manage the vicissitudes of him in relating, that at times will be emotionally distressing, without reverting to violent and sexual assaults... I would recommend that he has ongoing involvement and attention with psychiatrists and psychologists..."

• [11] On the basis of the psychiatric evidence, including the addendum reports most recently provided in the affidavit of Simon Richards filed 10 November 2021, I have reached the positive conclusion that a supervision order can reasonably and practically manage the adequate protection of the community. The Attorney-General and counsel for the respondent have agreed upon a draft form of order which has been provided to me. The material indicates that, at least in the first instance, the respondent will be released into the Wacol precinct. The conditions contained in the draft order (notably those at paragraphs 11 and 12) provide for the ability of Corrective Services to provide further consent in appropriate circumstances to a change of location. For the reasons I have outlined, I am prepared to make an order as per the draft provided to me.

Initiating document: Application filed 14 September 2021

1. Pursuant to s 30 of the Dangerous Prisoners (Sexual Offenders) Act 2003 ("the Act"), the decision made on 2 December 2019, that the respondent is a serious danger to the community in the absence of a division 3 order, be affirmed.

2. Pursuant to s 30(5) of the Act, the continuing detention order made on 2 December 2019 be rescinded.

3. Pursuant to s 30(3)(b) of the Act, the respondent be released from custody subject to a supervision order for a period of 5 years until 15 November 2026, with the following requirements.

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

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

3. You must obey these rules for the next 5 years.

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

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

To "report" means to visit a Corrective Services officer and talk to them face to face.

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

1. where you are allowed to live; and
2. rehabilitation, care or treatment programs; and
3. using drugs and alcohol;
4. who you may have contact with; and
5. anything else, expect for instructions that mean you will break the rules in this supervision order.

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

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

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

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

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

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

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

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

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

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

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

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

15. A Corrective Services officer has power to tell you to:

1. wear a device that tracks your location; and
2. let them install a device or equipment at the place you live. This will monitor if you are there.

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

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

17. When you ask for permission, you must tell the Corrective Services officer these things:

1. what the job is;
2. who you will work for;
3. what hours you will work each day;
4. the place or places where you will work; and
5. (if it is study) where you want to study and what you want to study.

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

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

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

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

22. You must give a Corrective Services officer details of any computer, phone or other device you use to access the internet. You must do this with 24 hours of when you start using any of these things to access the internet.

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

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

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

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

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

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

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

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

30. You are not allowed to visit any business that is only licensed to supply alcohol. If you want to go to one of these places, you must first get written permission from a Corrective Services officer. If you do not get written permission, you are not allowed to go.

31. You are not allowed to visit a public park. If you want to go to a public park, you must first get written permission from a Corrective Services officer. If you do not get written permission, you are not allowed to go.

32. You must tell a Corrective Services officer about any medicine that a doctor prescribes (tells you to buy). You must also tell a Corrective Services officer about any over the counter medicine that you buy or have with you. You must do this within 24 hours of seeing the doctor or buying the medicine.

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

34. You must obey any direction a Corrective Services officer gives you about seeing a doctor, psychiatrist, psychologist, social worker or other counsellor.

35. You must obey any direction a Corrective Services officer gives you about participating in any treatment or rehabilitation program.

36. You must let Corrective Services officers get information about you from any treatment or from any rehabilitation program.

Speaking to corrective services about what you plan to do

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

38. You must also tell a Corrective Services officer the name of new persons you have met.

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

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

40. You must develop a management plan with your psychologist or psychiatrist to address any risk of sexual re-offence. You must talk about this with a Corrective Services officer when asked

41. You must advise a Corrective Services officer of any personal relationships you have started.

[1]Attorney-General for the State of Queensland v Tiers [2020] QSC 135 at [26]- [31].

[2] Attorney-General v Lawrence [2009] QCA 136; [2010] 1 Qd R 505, 512; Attorney-General (Qld) v Sutherland [2006] QSC 268 at [27].

[3] Attorney-General v Francis [2007] 1 Qd R 396; [2006] QCA 324 at [39].

[4] Attorney-General v Francis [2007] 1 Qd R 396; [2006] QCA 324 at [39].

[5] [2006] QSC 268 at [29] (footnotes omitted, emphasis in original).

[6] [2015] QCA 54 at [36].