Attorney-General for the State of Queensland v Nelson-Adams [2021] QSC 257

[1] In 2006 the respondent was convicted of a series of offences (including indecent treatment) committed against a six year old girl. These were all committed on a single date between 1 December 1999 and February 2000 - some six years before the conviction. Mr Nelson-Adams was 13 years of age at the time of the offending. On one view, it was open to view these incidents as the "sexualised acting out of an emotionally disturbed young teenager". Events described in that way are not conventionally regarded as a reliable indication of the way in which someone might behave 21 years later.
[2] These incidents must now, however, be viewed through the prism created by another occurrence in 2016. The respondent was in prison that year, serving a sentence for offences that involved the use of an offensive weapon and dangerous driving. He was released on 19 June. On 3 July he was staying at a house which was being visited by a 10 year old girl. The respondent was sitting next to this girl, who was watching television. In a heavily intoxicated state, he grabbed the girl's breast area under her shirt and squeezed it. That was the extent of the sexual offending, but more serious conduct followed - specifically, a carjacking in which a woman was threatened with a knife. The respondent was sentenced to four years' imprisonment for that, and a concurrent three month term for the offences against the 10 year old girl.
[3] He was not, however, released at the conclusion of that sentence, because on 15 June 2020 Wilson J allowed an application pursuant to the Dangerous Prisoners (Sexual Offenders) Act 2003 (the Act) and ordered that the respondent remain in custody for an indefinite period under a continuing detention order. Her Honour's unreported reasons of that date (No. 1558 of 2020) canvassed the respondent's antecedents and circumstances in detail; everything that I now write should be considered against the background of that judgment.
[4] In this application, her Honour's order is being reviewed pursuant to s 30 of the Act. Her decision - to the effect that the respondent is a serious danger to the community in the absence of either a detention or supervision order made pursuant to the Act - may be affirmed only if, in effect, the court is satisfied in the same way and to the same degree about the same things that led her Honour to make the order in the first place. The case must be reviewed in its totality, and the relevant discretion must really be exercised afresh.[1]
[5] For reasons that will already be obvious, the case is unusual. All of the offending considered in applications of this nature is abhorrent, but the unfortunate reality is that it must be assessed by reference to a spectrum of behaviour. The respondent's most recent misconduct is described correctly as being at "the lower end" of the spectrum. That much is indicated by the three month concurrent sentence imposed for the most recent sexual offending. A sentence for any sort of sexual offending is rarely as benign as that. The fact that some other offending was committed more than 15 years earlier, when the respondent was 13 years old, does not to my mind establish a pattern or progression of any kind.
[6] This was not the type of case within the contemplation of the legislators who created a regime that provided for indefinite terms of detention. As observed by Applegarth J in Attorney General for the State of Queensland v Thaiday[2]:

Supreme Court of Queensland|2021-10-12|Before: Callaghan J

[1] In 2006 the respondent was convicted of a series of offences (including indecent treatment) committed against a six year old girl. These were all committed on a single date between 1 December 1999 and February 2000 - some six years before the conviction. Mr Nelson-Adams was 13 years of age at the time of the offending. On one view, it was open to view these incidents as the "sexualised acting out of an emotionally disturbed young teenager". Events described in that way are not conventionally regarded as a reliable indication of the way in which someone might behave 21 years later.
[2] These incidents must now, however, be viewed through the prism created by another occurrence in 2016. The respondent was in prison that year, serving a sentence for offences that involved the use of an offensive weapon and dangerous driving. He was released on 19 June. On 3 July he was staying at a house which was being visited by a 10 year old girl. The respondent was sitting next to this girl, who was watching television. In a heavily intoxicated state, he grabbed the girl's breast area under her shirt and squeezed it. That was the extent of the sexual offending, but more serious conduct followed - specifically, a carjacking in which a woman was threatened with a knife. The respondent was sentenced to four years' imprisonment for that, and a concurrent three month term for the offences against the 10 year old girl.
[3] He was not, however, released at the conclusion of that sentence, because on 15 June 2020 Wilson J allowed an application pursuant to the Dangerous Prisoners (Sexual Offenders) Act 2003 (the Act) and ordered that the respondent remain in custody for an indefinite period under a continuing detention order. Her Honour's unreported reasons of that date (No. 1558 of 2020) canvassed the respondent's antecedents and circumstances in detail; everything that I now write should be considered against the background of that judgment.
[4] In this application, her Honour's order is being reviewed pursuant to s 30 of the Act. Her decision - to the effect that the respondent is a serious danger to the community in the absence of either a detention or supervision order made pursuant to the Act - may be affirmed only if, in effect, the court is satisfied in the same way and to the same degree about the same things that led her Honour to make the order in the first place. The case must be reviewed in its totality, and the relevant discretion must really be exercised afresh.[1]
[5] For reasons that will already be obvious, the case is unusual. All of the offending considered in applications of this nature is abhorrent, but the unfortunate reality is that it must be assessed by reference to a spectrum of behaviour. The respondent's most recent misconduct is described correctly as being at "the lower end" of the spectrum. That much is indicated by the three month concurrent sentence imposed for the most recent sexual offending. A sentence for any sort of sexual offending is rarely as benign as that. The fact that some other offending was committed more than 15 years earlier, when the respondent was 13 years old, does not to my mind establish a pattern or progression of any kind.
[6] This was not the type of case within the contemplation of the legislators who created a regime that provided for indefinite terms of detention. As observed by Applegarth J in Attorney General for the State of Queensland v Thaiday[2]:

The Act was targeted in 2003 at a small number of recidivist paedophiles. It was expected to apply to the worst of the worst, 'approximately a dozen or so very, very serious offenders, most of whom have been in prison for a long time.[3]

[7] As demonstrated, strictly within the context of and expressed in the vocabulary used in such cases, the respondent is not a "very, very serious" offender of the kind identified by the Attorney-General of the day. Further, there are many more than "a dozen or so" men who have in the last 18 years committed more serious offences and been released from prison with no, limited, or strictly finite supervision.
[8] Nevertheless, the Attorney-General submits there is an unacceptable risk that a serious sexual offence will be committed if the respondent is released without supervision. Given the manner in which the Act dictates that risk should be assessed, this submission is understandable. The respondent does present with a number of concerning features.
[9] These concerns are expressed in evidence received from two psychiatrists, Dr Sundin and Dr Beech. They record that the respondent has declined to participate in sex offender treatment programs. His offences were committed whilst intoxicated, but he has not undertaken any recent drug or alcohol rehabilitation programs. His proposal to manage substance-abuse vulnerability through "will power" alone betrays a lack of insight.
[10] In the result, Dr Sundin expressed the view that the respondent's unmodified risk for sexual offending was moderate to high. That said, she thought that the risk of sexual offending was not imminent upon release, and could be reduced to "moderate - low" if the respondent was compliant with a supervision order and abstained from disinhibiting substances.
[11] Similarly, Dr Beech's opinion was that the respondent's risk of reoffending was "moderately high" notwithstanding the fact that his previous offences were committed some 16 years apart. He believed that a supervision order would reduce the risk of the respondent committing another sexual offence, but found it difficult to express the degree to which this would be so.
[12] Both psychiatrists expressed the concern the respondent is unlikely to be able to comply with the terms of a supervision order. They point to his past non-compliance with court orders and his minimal engagement with treatment that might confront substance-abuse issues.
[13] Those remain issues of concern, because another shared opinion was the concern that if, in breach of an order, the respondent indulged in substance abuse and became intoxicated, then he would be on the pathway to offending. If, as previously, this offending involved a child victim, that would mean that he was a serious danger to the community within the meaning of the Act.
[14] The Act as written must be applied according to its terms, even if the result is something beyond the contemplation of the parliament that convened in 2003. Its use in the case of a person like the respondent must have profound implications for the limited resources allocated to its administration, but nor can that have any bearing on the outcome of this hearing. This much is effectively conceded by Mr Whitton, the respondent's counsel. He allows that, on the materials as presented, and on strict application of the Act, the respondent would be a danger to the community if released without his being made subject to a supervision order.
[15] However, Mr Whitton went on, the identified concerns were an insufficient basis to refrain from allowing the respondent to be released pursuant to such an order. His submissions were precise and persuasive. He pointed out that the relevant test does not require me to ask whether such an order would be breached, but demands consideration of what that breach would mean. On the evidence, the apprehended scenario would, almost necessarily, involve the respondent becoming intoxicated. That fact would - notwithstanding the terms and effect of the order - have to go unnoticed and undetected, and coexist with some opportunity that might present for him to associate with potential victims whilst he was in an intoxicated state. Any offence then likely to be committed by him would, again necessarily, have to be a serious sexual offence as opposed to, say, an offence of an antisocial but non-sexual nature.
[16] It is not possible, so the argument runs, to attribute a high degree of probability to such an eventuality. The relevant scenario involves too many contingent outcomes predicated upon conditional circumstances.
[17] I accept this submission, which is made in the already noted context of an allowance that release without a supervision order would amount to the taking of an unacceptable risk. It is the anticipated intercession and effect of the order itself that reduces that risk to an acceptable level. From the applicant there is, in practical terms, a concession that this is so. It is implicit in the arguments that both parties contemplate the possibility that the order may get breached in some way, but the legislation does not mandate that such a concern of itself provides a basis for the continued detention of the respondent. Nor can the thoughtful therapeutic concerns expressed by the psychiatrists inform the ultimate decision that is to be made in this case. In all of the circumstances, I am prepared to make an order in the terms as outlined in 'Schedule A'.

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

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.

You must obey these rules for the next 10 years.

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.

A Corrective Services Officer 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:

where you are allowed to live;
rehabilitation, care or treatment programs;

anything else, except for instructions that mean you will break the rules in this supervision order; and
who you may have contact with.

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.

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.

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.

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

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

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.

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.

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.

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.

A Corrective Services Officer has power to tell you to:

wear a device that tracks your location; and
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.

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

When you ask for permission, you must tell the Corrective Services Officer these things:

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

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

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.

You are only allowed to own or have (even if you do 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.

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

You must get written permission from a Corrective Services Officer before you are allowed to use a computer, phone or other device to access the internet.

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.

You must give a Corrective Services Officer details (including usernames 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.

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.

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.

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.

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, spit (saliva), pee (urine) or blood when they tell you to do this.

You are not allowed to go to pubs, clubs, hotels or nightclubs, bottle shops, or businesses 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.

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.

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.

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

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

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

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

Speaking to Corrective Services about what you plan to do

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).

You must also tell a Corrective Services Officer the names 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.

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.

You are not allowed to have any contact with children under 16 years of age. If you want to have supervised or unsupervised contact with a child under 16 years of age you must first get written permission from a Corrective Services Officer. If you do not get written permission, you are not allowed to have contact with the child.

"Contact" means any type of communication, including things like talking with them face-to-face, texting, sending letters or emails, posting pictures or chatting, using a telephone, computer, social media or in any other way.

"Supervised" means having contact with the child while another person is with you and the child.

"Unsupervised" means having contact with the child while there is no other person with you and the child.

If you have any repeated contact (that is, more than one time) with a parent, guardian or carer of a child under the age of 16, you must:

tell the person(s) about this supervision order; and
tell a Corrective Services Officer the details of the person(s).

You must do this immediately. This means you have to tell the person, and tell a Corrective Services Officer, on the same day you have contact with the person.

Queensland Corrective Services has power to give information about you, and about this supervision order, to any parent, guardian or caregivers that you have contact with.

Queensland Corrective Services also has power to give information about you, and about this supervision order, to an external agency (such as the Department responsible for child safety).

attend any school or childcare centre;
be in a place where there is a children's play area or child minding area;

go to a shopping centre;
join any club or organisation in which children are involved; and
participate in any club or organisation in which children are involved.

If you want to do any of these things, you must first get written permission from a Corrective Services Officer. If you do not get written permission, you cannot do any of these things.

You must not collect photos/videos/magazines which have images of children in them without prior approval of a Corrective Services Officer.

If you have any you may be asked to get rid of them by a Corrective Services Officer.

You are not to get child exploitation material or images of children on a computer or phone from the internet.

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

[1] The respondent now presents to a court - apparently for the first time - as someone who identifies as transgender. That does not, however, appear to have much or indeed any relevance to the issues that must be considered in an application of this nature. The same can be said of some drawings the respondent has made whilst in prison. No one suggested that they should have any functional effect on the disposition of the application.

[3] Queensland, Parliamentary Debates, Legislative Assembly, 4 June 2003, 2581 (RJ Welford, Attorney-General and Minister for Justice).

Prisoners (Sexual Offenders) Act 2003

At a glance

Court

Decision date

Before

Catchwords

Source

Catchwords

Judgment (73 paragraphs)

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Legislation Cited (1)