Attorney-General for the State of Queensland v PCO [2019] QSC 44

[1] The respondent is presently serving a term of imprisonment for serious sexual offences committed against his biological daughter (the index offences). She was aged between five and nine years of age over the period of the offending.

[2] The Attorney-General applied for orders under the Dangerous Prisoners (Sexual Offenders) Act 2003 (Qld) (DPSOA). Dr Sundin examined the respondent and prepared a risk assessment report.[1] On 30 November 2018, Mullins J, on a hearing pursuant to s 8 of the DPSOA held that there were reasonable grounds for believing the respondent is a serious danger to the community in the absence of an order under Part 2 Division 3 of the DPSOA and:

• (i) appointed consultant psychiatrists, Dr Michael Beech and Dr Scott Harden to prepare risk assessment reports;
• (ii) set the hearing date of the application for final orders for 18 February 2019.

[3] The current application by the Attorney-General is for final orders under s 13 of the DPSOA.

[4] Section 3 of the DPSOA identifies the objects of the legislation as follows:

(a) to provide for the continued detention in custody or supervised release of a particular class of prisoner to ensure adequate protection of the community; and

(b) to provide continuing control, care or treatment of a particular class of prisoner to facilitate their rehabilitation."

[5] The objects of the DPSOA are fulfilled by a scheme providing for the detention of prisoners beyond the expiry of their sentences, or alternatively their release upon supervision.

[6] By s 5, the Attorney-General may apply for both an order under s 8 of the DPSOA and also an order under Division 3 of Part 2. Division 3 of Part 2 provides for the making of final orders. Applications can only be brought under s 5 against a "prisoner".

[7] Section 5, which authorises the application for orders and which contains the definition of "prisoner", is as follows:

(1) The Attorney-General may apply to the court for an order or orders under section 8 and a division 3 order in relation to a prisoner.

(b) be accompanied by any affidavits to be relied on by the Attorney-General for the purpose of seeking an order or orders under section 8; and

(c) be made during the last 6 months of the prisoner's period of imprisonment.

(3) On the filing of the application, the registrar must record a return date for the matter to come before the court for a hearing (preliminary hearing) to decide whether the court is satisfied that there are reasonable grounds for believing the prisoner is a serious danger to the community in the absence of a division 3 order.

(4) The return date for the preliminary hearing must be within 28 business days after the filing.

(5) A copy of the application and any affidavit to be relied on by the Attorney-General must be given to the prisoner within 2 business days after the filing.

prisoner means a prisoner detained in custody who is serving a period of imprisonment for a serious sexual offence, or serving a period of imprisonment that includes a term of imprisonment for a serous sexual offence, whether the person was sentenced to the term or period of imprisonment before or after the commencement of this section."

[8] The definition of "prisoner" in s 5(6) introduces the concept of "a serious sexual offence". That term is defined as follows:

"serious sexual offence means an offence of a sexual nature, whether committed in Queensland or outside Queensland -

(c) against a person, including a fictitious person represented to the prisoner as a real person, whom the prisoner believed to be a child under the age of 16 years."

[9] Section 8 provides for a preliminary hearing. It is in terms:

(1) If the court is satisfied there are reasonable grounds for believing the prisoner is a serious danger to the community in the absence of a division 3 order, the court must set a date for the hearing of the application for a division 3 order.

(2) If the court is satisfied as required under subsection (1), it may make -

(a) an order that the prisoner undergo examinations by 2 psychiatrists named by the court who are to prepare independent reports; and

(b) if the court is satisfied the application may not be finally decided until after the prisoner's release day -

(i) an order that the prisoner's release from custody be supervised; or

(ii) an order that the prisoner be detained in custody for the period stated in the order."

[10] The term "prisoner", as used in s 8 is defined differently to the definition in s 5(6). In s 8, the term "prisoner" has the same meaning as that defined for the purposes of the Corrective Services Act 2006.[2] The distinction is, though, not relevant here.[3]

[11] Section 8 introduces the notion of "serious danger to the community". This term is defined in s 13 which is the pivotal section in Division 3 of Part 2. Section 13 is in these terms:

(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 -

(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 11 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 requirements 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) -

(a) the paramount consideration is to be the need to ensure adequate protection of the community; and

(i) adequate protection of the community can be reasonably and practicably managed by a supervision order; and

(ii) requirements under section 16 can be reasonably and practicably managed by Corrective Services officers.

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

[12] Orders which can be made under s 8 include orders that a prisoner undergo psychiatric examination. The evidence so obtained is then relied upon by the Attorney-General on the application brought under s 13. Relevant to examinations ordered under s 8, are ss 11 and 12 which are in these terms:

(1) Each psychiatrist examining the prisoner must prepare a report under this section.

(a) the psychiatrist's assessment of the level of risk that the prisoner will commit another serious sexual offence -

(ii) if released from custody without a supervision order being made; and

(3) For the purposes of preparing the report, the chief executive must give each psychiatrist any medical, psychiatric, prison or other relevant report or information in relation to the prisoner in the chief executive's possession or to which the chief executive has, or may be given, access.

(4) A person in possession of a report or information mentioned in subsection (3) must give a copy of the report or the information to the chief executive if asked by the chief executive.

(5) Subsection (4) authorises and requires the person to give the report or information despite any other law to the contrary or any duty of confidentiality attaching to the report.

(6) If a person required to give a report or information under subsection (4) refuses to give the report or information, the chief executive may apply to the court for an order requiring the person to give the report or information to the chief executive.

(7) A person giving a report or information under subsection (4) or (6) is not liable, civilly, criminally or under an administrative process, for giving the report or information.

(8) Each psychiatrist must have regard to each report or the information given to the psychiatrists under subsection (3).

(9) Each psychiatrist must prepare a report even if the prisoner does not cooperate; or does not cooperate fully, in the examination.

1. Psychiatric reports to be given to the Attorney-General and the prisoner

(1) Each psychiatrist must give a copy of the psychiatrist's report to the Attorney-General within 7 days after finalising the report.

(2) The Attorney-General must give a copy of each report to the prisoner on the next business day after the Attorney-General receives the report."

[13] Section 16 deals with the contents of supervision orders:

(1) If the court or a relevant appeal court orders that a prisoner's release from custody be supervised under a supervision order or interim supervision order, the order must contain requirements that the prisoner -

(a) report to a Corrective Services officer at the place, and within the time, stated in the order and advise the officer of the prisoner's current name and address; and

(b) report to, and receive visits from, a Corrective Services officer as directed by the court or a relevant appeal court; and

(c) notify a Corrective Services officer of every change of the prisoner's name, place of residence or employment at least 2 business days before the change happens; and

(d) be under the supervision of a Corrective Services officer; and

(da) comply with a curfew direction or monitoring direction; and

(daa) comply with any reasonable direction under section 16B given to the prisoner; and

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

Example: If the only requirement under subsection (2) contained in a particular order is that the released prisoner must live at least 1km from any school -

1. A proposed direction to the prisoner would be directly inconsistent if it requires the released prisoner to live at least 2km from any school.
2. A proposed direction to the prisoner would not be directly inconsistent if it requires the released prisoner to live at least a stated distance from something else, including, for example, children's playgrounds, public parks, education and care service premises or QEC service premises.
3. A proposed direction to the prisoner would not be directly inconsistent if it requires the released prisoner not to live anywhere unless that place has been approved by a Corrective Services officer.

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

(f) not commit an offence of a sexual nature during the period of the order.

(2) The order may contain any other requirement the court or a relevant appeal court considers appropriate -

(a) to ensure adequate protection of the community; or

• a requirement that the prisoner must not knowingly reside with a convicted sexual offender
• a requirement that the prisoner must not, without reasonable excuse, be within 200m of a school
• a requirement that the prisoner must wear a device for monitoring the prisoner's location

(b) for the prisoner's rehabilitation or care or treatment."

[14] Section 13A deals with fixing the term of the supervision order. Section 13A provides:

(1) If the court makes a supervision order, the order must state the period for which it is to have effect.

(2) In fixing the period, the court must not have regard to whether or not the prisoner may become the subject of -

(a) an application for a further supervision order; or

(3) The period cannot end before 5 years after the making of the order or the end of the prisoner's period of imprisonment, whichever is the later."

[15] The respondent was born on 11 October 1958. He is now sixty years of age. While he was maintaining an unlawful sexual relationship with his daughter the respondent was aged between forty-six and fifty. One of three children to an alcoholic father, the respondent had a difficult upbringing.[4]

[16] The respondent's first criminal conviction occurred in the District Court at Brisbane on 17 July 1981. The respondent was then twenty-two years of age. He pleaded guilty to nine offences of indecent dealing with a child under fourteen years. There were two victims on that occassion, one a boy and one a girl. They were both only about two years of age at the time the respondent indecently dealt with them. He was sentenced to nine months imprisonment.

[17] In 1985, the respondent was convicted in the Brisbane Magistrates Court of one count of wilful damage and the only order made by the Court was that he make restitution in the sum of $153.00. That conviction is not relevant to the present proceedings.

[18] In 1994, the respondent was convicted in the Brisbane Magistrates Court of a charge of behaving in an indecent manner. He masturbated in a public toilet while hoping to meet up with homosexual men who might be seeking sexual contact. He was fined. The conviction is relevant as it forms part of a body of evidence concerning the respondent's homosexual activities. The psychiatrists considered this aspect in some detail in their reports.

[19] The index offences to which the respondent pleaded guilty in 2009 were:

• (i) maintaining a sexual relationship with his daughter;[5]
• (ii) four counts of raping his daughter;[6] and
• (iii) indecent treatment of his daughter by taking an indecent photograph of her.[7]

[20] The respondent and the child's mother, who had cohabitated, had separated by the time the offences were committed. Parenting arrangements gave the respondent access to his daughter. It was during these access periods that the offending occurred.

[21] The count of maintaining a sexual relationship occurred over a period of about four years commencing when the child was about five years of age and concluding when she was about nine. The counts of rape consisted of penetration of the child's vagina with the respondent's penis, fingers and tongue. The counts of rape were particulars of the maintaining count which encompassed other non-specifically charged acts including exposing the child to indecent images.

"It is considered that [the respondent] made intellectual gains throughout his time in treatment, specifically pertaining to an increased intellectual understanding of emotions, empathy, grooming, and his offending pathway. Consequently, it is considered to be of significant importance that any supervision orders that [the respondent] may be subject to in the future be aware of his outstanding treatment needs and capacity to impression manage and manipulate. Furthermore, pertinent warning signs indicative of reoffending that should be monitored include increased engagement in avoidant behaviours to manage increased sex drive; mainly risk taking/adrenaline seeking behaviour (e.g., parachuting) and excessive exercise."[9]

[28] The HISOP is a group therapy program. In January 2019, the respondent commenced treatment with Dr Lars Madsen, a psychologist who specialises in the treatment of high risk, violent and sexually violent offenders.[10] Dr Madsen has engaged with the respondent in one on one psychological treatment.

[29] The respondent is clearly a "prisoner" for the purposes of s 13 of the DPSOA. He concedes (properly) that he is a serious danger to the community in the absence of an order. The general opinion of the three psychiatrists is that the respondent's risk can be managed on a supervision order. The applicant does not press for a continuing detention order. That stance is, on the evidence, sensible and appropriate.

[30] The real issues became:

• (i) the length of the period of supervision; and
• (ii) the terms of some of the conditions of the supervision order.

[31] The applicant submits that the supervision order should be for a period of ten years whereas the respondent submits five.

[32] The conditions which are in dispute are requirements 14, 17, 18 and 38 of the draft supervision order which became exhibit 3 before me. The numbering of requirement 38 has changed in the final order. It is now requirement 35. I have though in these reasons referred to it as requirement 38, as that is how it is referred to in the evidence.

[33] Proposed condition 14 is:

"14. not reside at a place by way of short term accommodation, including overnight stays, without the permission of a Corrective Services officer;"

[34] The respondent submits that condition 14 should read as follows:

"14. Not reside at a place by way of short term accommodation including overnight stays without the permission of a Corrective Services Officer except the respondent does not require the permission of a Corrective Services Officer after six months of the Order has expired."[11]

[35] The applicant proposes requirement 17 in these terms:

"17. Disclose to a Corrective Services officer the name of each person with whom he associates and respond truthfully to requests for information from a Corrective Services officer about the nature of the association, address of the associate if known, the activities undertaken and whether the associate has knowledge of his prior offending behaviour."

[36] The respondent submits it should read as follows:

"17. Disclose to a Corrective Services Officer the name of each person with whom he associates, when actively socialising outside the work environment in a domestic setting, and who has children under 16 years of age or who is likely to be in contact with children who are under 16 years of age and respond truthfully to requests for information from a Corrective Services Officer about the nature of the association, address of the associate's name, the activities undertaken and whether the associate has knowledge of his prior offending behaviour."[12]

[37] Requirement 18 as proposed by the applicant is:

"18. Submit to and discuss with a Corrective Services officer a schedule of his planned and proposed activities on a weekly basis or as otherwise directed."

[38] The respondent submits that requirement 18 is unnecessary given requirement 7 which is one of the conditions mandated by s 16 of the DPSOA[13] and is in these terms:

"7. comply with every reasonable direction of a Corrective Services officer that is not directly inconsistent with a requirement of this order;"

"38. not access pornographic images on a computer or on the internet or purchase or obtain pornographic material in any other format without the prior written approval of a Corrective Services officer in consultation with the treating psychiatrist or psychologist;"

[40] The respondent submits that requirement 38 should not be included in the supervision order. Opposition to the requirement is raised on the basis that the access to pornography in a controlled way must have therapeutic value and requirement 38 in its present form may be too restrictive.

[41] During the hearing, the respondent raised concerns about requirements 32 and 36. They are in these terms:

"32. supply to a Corrective Services officer any password or other access code known to him to permit access to such computer or other device or content accessible through such computer or other device and allow any device where the internet is accessible to be randomly examined using a data exploitation tool to extract digital information or any other recognised forensic examination process;

1. allow any other device including a telephone or camera to be randomly examined. If applicable, account details and/or phone bills are to be provided upon request of a Corrective Services officer;"

[42] The respondent did not object to the substance or intent of requirements 32 and 36. It was submitted that the requirements ought to be amended to protect legitimate claims to legal professional privilege over electronic communications between the respondent and his solicitors. After the hearing of the application I was informed that arrangements can and will be made for communication between the respondent and his legal advisors without the use of electronic devices and so no amendment of requirements 32 or 36 is now sought.

[43] Requirements 32 and 36 are otherwise appropriate.

[44] Mr Madsen has completed four treatment sessions with the respondent where various issues have been addressed. Dr Madsen found the respondent cooperative both during the sessions and by the completion of tasks which Dr Madsen had set for the respondent to complete between sessions.

[45] Dr Madsen opines that:

• (i) the respondent has shown insight into his past offending and understands the risk factors for reoffending;
• (ii) the respondent has benefited from the completion of the HISOP. Dr Madsen noted in particular that the respondent did not minimise or otherwise attempt to justify his past offending and showed an understanding of how his risk factors could be managed;
• (iii) the respondent's risk factors could be managed through counselling which Dr Madsen is prepared to provide;[14] and
• (iv) even though he has not conducted a risk assessment of the respondent, Dr Madsen is confident that the respondent's risk of sexually reoffending will be lowered by counselling;[15]

[46] Dr Harden diagnosed the respondent as "Paedophilia Non-Exclusive, preference for females, Mixed Personality Disorder - Avoidant, Obsessive, Compulsive and System Personality features."[16]

[47] Dr Sundin diagnosed "Paedophilic Disorder, non-exclusive type, sexually attracted to both males and females, not limited to incest, **Exhibitionistic Disorder-**sexually aroused by exposure of genitals to pre-pubertal children, Mixed Personality Disorder-avoidant, and paranoid personality traits."[17]

[48] Dr Beech diagnosed "Non-Specific Personality Disorder with avoidant traits, dysfunctional adult relationships, and unmet psychological and emotional needs, Paedophilia, Exhibitionism (in the 1981 offending episode)."[18]

[49] Dr Harden is his report described risk as:

"The calculation of the risk of sexual recidivism is a complex issue in this man. The static variables suggest that the risk is in the average range, however this is due to him turning 60 and relies on assumptions about age-related decline in sexual interest. I think this is less predictable in people with deviant sexual arousal. As well as this, incest type offenders tend to have lower recidivism rates than other individuals who sexually abuse children.

The dynamic variables as opposed to the static calculations suggest that there are really significant ongoing treatment needs that suggest that the risk is higher than the average range until these needs are addressed in treatment and he is safely transitioned to pro social structures in the community.

Given all this his ongoing unmodified risk of sexual re-offence in the community in my opinion is most likely in the Average to Above Average (Moderate to Moderate-High) range.

His greatest risk factors are his institutionalization, paedophilia and personality disorder.

If he were to be placed on a supervision order in the community this risk will reduce to Below Average (Low - Moderate)."[19]

[50] In cross-examination by Mr Ryan for the respondent, Dr Harden opined that it was likely that the respondent would comply with the supervision regime[20] and, "... there's a reasonably good chance that he might utilise therapy well."[21]

[51] Dr Sundin applied various actuarial risk assessment instruments which indicated the respondent's risk of future sexual recidivism as "moderate to low."[22] She expressed a number of concerns both in her report and in her evidence before me:

• (a) there was a twenty year gap between two separate episodes of serious sexual offending. In her oral evidence Dr Sundin explained the significance of this:
  • (i) firstly, the research shows that the younger a person is when they commit their first serious sexual offences, the greater their long term risk of reoffending;[23] and
  • (ii) secondly, that the lengthy period between the two episodes of offending suggests a lifelong sexual attraction to children.[24]
• (b) in both groups of offences the respondent showed no empathy to the victims;[25]
• (c) the respondent has little insight into his deviancy;[26]
• (d) the respondent should not be released unconditionally, as unsupervised he would "groom and then sexually offend against pre-pubertal children";[27] and
• (e) the respondent requires ongoing therapy "to identify and deal with his deviant sexual arousal and to help him to understand the way in which both his avoidant and paranoid cognitions have provoked his past behavioural patterns."[28]

[52] Dr Sundin did not opine that protection of the community requires the respondent to be detained but recommended that he be released on a supervision order.[29]

[53] Dr Beech thought that the risk of further offending "is in the moderate range"[30] and that "a supervision order would significantly reduce the risk by limiting his contact with children, engaging him in further rehabilitation programs, and monitoring his activities." While Dr Beech thought that the risk was likely to exist for several years, the respondent's age is an important factor which lessens risk.

Evidence as to the length of the period of the supervision order

[55] In her report, Dr Sundin opined that a supervision order should be in place until after the respondent has turned seventy years of age. He has in fact just turned sixty. Dr Sundin thought that by his seventieth birthday, the respondent's libidinal drives should have lowered. Dr Sundin said "I acknowledge this is a lengthy period of supervision but consider it is warranted by the escalation of his offending and the persistence of his sexually deviant cognitions."[35]

[56] In her evidence-in-chief before me this exchange occurred:

"MR TATE: How many years should the supervision order be for?

HIS HONOUR: Well, can you just define what that question means? The opinion is that he's an unacceptable risk if released without a supervision order now?

HIS HONOUR: That's right? Okay. So the question then is, how long does a supervision order need to be to provide adequate protection of the community?

HIS HONOUR: So is your evidence that, in 10 years, but not before 10 years, he will be an acceptable risk not being on supervision?

DR SUNDIN: Yes. Your Honour, we know that, if the respondent can survive in the community for a period of five years without offending at all, then his actuarial risk will halve. My concern, and the reason I recommend 10 years with this man was, the very lengthy period of time between the two sets of offences and the escalation and the severity of the second set of offences.

HIS HONOUR: But will that depend on - but that will depend - his risk at the end of five years will depend upon his performance or otherwise - good performance or otherwise on a supervision order?

DR SUNDIN: Yes. And if he - if there are, for example, serious breaches during that period of time and non-compliance with the requirements of the order, in effect the risk resets at that time.

HIS HONOUR: Right. And can I ask you this? At the moment you recommend a supervision order on certain conditions?

HIS HONOUR: Okay. If he complies with that supervision order for five years - so just assume that he does for the moment. At the end of that five years, is he an acceptable risk without further supervision?

DR SUNDIN: Again, I go back to the earlier concerns that I expressed that there - based on the material that we have and - and only that, there was a period of, I think, 17 years between the first and second set of offences. Now, we don't have a lot of material as to what was going on in that time

HIS HONOUR: All right. So is your evidence that period of abstinence means that - or leads you to believe that, if there was a period of abstinence of five years, that would not render him an acceptable risk because there's been a much longer period of abstinence in his earlier life which has then led to repeat offending. Is that?---

[57] In hindsight my questions, asking Dr Sundin to consider issues "of unacceptable risk" and "adequate protection of the community" were not the right questions. Ultimately, they are mixed questions of fact and law and are questions for the Court. The appropriate questions are ones asking Dr Sundin to identify when, during the life of a supervision order risk of sexual reoffending would reduce to a point where it was considered by her to be low. Assessments of whether risk is unacceptable or otherwise would then be done by the Court.

[58] In cross-examination Mr Ryan of counsel, for the respondent, asked the correct questions. This exchange occurred:

"MR RYAN: So looking, then - or doing the best one can to make an assessment or - and it's a prediction on your part or on any psychiatrist's part as to what that level of risk will be at, say, the end of a five-year period from now. We as - if we assume that he complies with the order - with the requirements of the order and we assume that he continues to engage in the treatment as actively with Dr Madsen as he has already, would you agree that if you add to that the ageing process, that his risk of reoffending after five years on a supervision order with those - bearing in mind those premises, would likely reduce down to something in the order or about a low level?

DR SUNDIN: If all of those assumptions are proved correct, yes.

MR RYAN: And by then, if he was adhering to the requirements of the supervision order and he'd made what you've described as the transition, I suppose, through the structure of the order into things like employment, healthier adult relationships - or healthy adult relationships, support, perhaps, from his brother, who, it seems, is prepared to offer that assistance, from that point in time - or at that point in time five years from now, even without a supervision order - so if you take away the supervision order, at that point in time, assuming that progress has been made, would it not be the case that his level of risk would really flatten out, so to be speak - that it would remain, or it would be likely to remain, at about the same low level that it might have got to at that point?

DR SUNDIN: That's an awful lot of assumptions, but, as I said before, if everything that you posit go - occurs and goes well, then, yes, his risk would be reduced to low, generally, but not nil.

MR RYAN: But there - a residual risk you would acknowledge or say?

MR RYAN: Of course, conversely, if he were not to adhere to the requirements of the supervision order over the next five years - if he breached a requirement, for example - that would be an indicator that his level of risk had not diminished, in the trajectory that we're talking about now?

MR RYAN: And his sincerity about complying with the order would obviously become - or his lack of sincerity about complying with the requirements of the order would become more apparent or obvious?

[59] Dr Harden said this about the length of the order:

"As he has some significant strengths including the ability to sustain long-term employment, be relatively organised and the ability to intellectually use therapy I would think that if he was in the community for 5 years on a supervision order and did well that his risk of recidivism would be significantly reduced by that time."[38]

[60] This exchange occurred in evidence-in-chief:

"MR TATE: Yes. The difference, I think, between Dr Sundin and Dr Beech and yourself, really, is set out in the recommendations. You indicate that, from your perspective - and I'll come back to the caveat - but the difference is both Dr Beech and Dr Sundin indicate a 10 year-period and you indicate a five-year period, with a caveat. And the caveat is clearly indicated - if things go well?

MR TATE: Can I ask you to expand, please, on how we should understand your advice in that particular paragraph?

DR HARDEN: Well, I think the risk of sexual recidivism will decline substantially in - within - at the end of the five-year period - if the treatment - so if his treatment and prosocial reintegration goes well.

MR TATE: So the if things go well from a psychiatric perspective, as opposed to whether or not he's breaching the order and there are contravention proceedings?

DR HARDEN: I think breaches and contraventions of the order are a sign, generally - unless there's some misapprehension between the parties - are a sign that things aren't going well. Yes.

HIS HONOUR: Can I put the question this way: assume no breach of the order within five years, do you - would you then at this point as you're looking at it now but assuming that he's - in five years time he has successfully complied with the supervision order, do you then say - would you be of the opinion that from that point in time on he would be an acceptable risk, or is there some other gloss? There has to be some other - some other performance or some other thing?

DR HARDEN: Your Honour, I'm hesitant to use the acceptable risk term because I think that - that may be for the Court, really, but I would think if he completes the five year supervision order and complies with the provisions of the order which include treatment then I think his risk is likely to be in the low range at the end of that period.

MR TATE: Thank you, your Honour. And Doctor, just out of fairness to ask you the alternate questions, if things did not go well at the end of that period of time would you see the need to seek an extension of the order?

DR HARDEN: It - yes, depending on the extent of the not going well.

DR HARDEN: Then I think that - that - there are too many variables to say you - you know, you'd need to look at what the nature of the problems were.

DR HARDEN: Were they more procedural infringements of the order, or were they, you know, really sort of serious ones that looked like his offence pathway.

MR TATE: Yeah. Look it's - to sum up, it's really fair to say that if thing go well, but you can't guarantee that that's going to be the case, there are too many variables, we'll have to, really, reassess it towards the end of the five-year period. And with luck, it will all will have gone well?

DR HARDEN: I think you are paraphrasing me incorrectly, Mr Tate.

DR HARDEN: If things proceed well and he complies with the supervision order without contraventions and undertakes treatment, I think at the end of the five years it's likely that his risk will fall in the low range which is the below average range."[39]

"MR RYAN: Yes, thank you. Doctor, as far as this man's concerned, your opinion is that it's quite likely that he will comply with a supervision regime, given all you know about him?

DR HARDEN: Yes, his personality type - while it has predisposed to his offending in some ways because of his avoidance and similar - he's quite an ordered individual who has long periods of stable employment and similar. So I think he - he likes structure, and I think the structure of a supervision order will actually help him.

MR RYAN: And it's quite likely, in your opinion, as well, that he would make use of the psychological therapy that would be available to him under an order?

DR HARDEN: I think the material suggests that he's made intellectual use at least of the material of the - what was available in the high intensity course, and the earlier report from Dr Madsen, I think, is favourable. So I think, yes, there's a reasonably good chance that he might utilise therapy well.

MR RYAN: You've observed in your report these as being protective factors was well: his ability to sustain long-term employment?

MR RYAN: that he's intelligent enough, as you say, to utilise the therapy - in contrast, perhaps, to other persons who've been placed on these type of orders?

MR RYAN: You found, did you not, in your conversations with him that he had reasonable plans upon release for what he was going to do?

DR HARDEN: Yes, I think he's able to be realistic in his planning, once he knows the parameters.

MR RYAN: And am I right in saying this - that assuming those features are in place, that we're assuming this occurs: that there is no breach of the order within a five year period, and he participates in treatment, with his ageing from 60 onwards, that things then flatten out as far as that risk of sexual reoffending is concerned for him?

DR HARDEN: I don't think I can put it any further than what I've put before, which is that I think the risk will then fall into the low range, given those points."[40]

[62] In his report of 19 December 2018, Dr Beech made no comment on the appropriate length of the supervision order. His opinion on that topic was sought in January 2019 and in his report of 4 February 2019[41] he said this:

"Although [the respondent] is now aged 60 his sexual offending history is notable for the duration, extent and persistence of the offending. It is exacerbated by the presence of paraphilias and what I would see as an earlier sexual preoccupation. For those reasons, despite his age, I think that a supervision order should be for more than five years, probably up to ten years in duration."

[63] In his oral evidence, Dr Beech identified various risk factors including sexual preoccupation, sexual deviance and the respondent being a person who uses sexual means to meet emotional difficulties.[42] Then this exchange occurred:

"MR TATE: From a viewpoint of protection of the community, does that suggest a longer order - supervision order - is more protective than a shorter one, in this man?

DR BEECH: Well - yeah. Okay. In general, it does. In this man, it's difficult - difficult because, after the age of 60, you would generally see a reduction in the risk of reoffending. There aren't that many people who reoffend after the age of 60 - certainly after the age of 65. The factors that - those people who do reoffend after the age of 60 or 65 - are people who are sexually preoccupied, and have a sexual deviance, and have used sex to cope. There are other factors, though, that predict it. And, certainly, things such as psychopathy and anti-social personality disorder, or an anti-authorian stance - something like that - would predict it. And he doesn't have that. So the problem in this man is knowing how he will be when he gets out. He shows some insight, I believe. I think he's done well with the program overall. He's got some strategies. It's a question of how he will put those into play when he gets out. And it's a - I mean, it's important to know how he will practice the insights about avoiding children, dealing with stress, not becoming sexually preoccupied. That all has to be tested.

HIS HONOUR: Are those things going to become evident over five years, if he was on a supervision order for five years?

DR BEECH: Yes, your Honour, that would become evident over the five years. The difficulty is - I think he would comply with an order. He'd - he'd be difficult. He would write letters. He would be dismissive. He'd challenge - as he - as the facilitators for the program point out. You know, he's - he writes lots of things. But I think he would comply with the conditions of an order. The - what would also have to happen, though, is, over those five years - that he would need to show insight into his offending and his risk factors. So it's not that I think he would go to places where there would be children - against the rules - but that he might ask to go to places and be told, "No, you can't go there." And, after a while, people think he's just not getting it - he doesn't understand why we keep saying, "No, you can't go to these school areas. You can't go to these playgrounds. You can't go to these caravan parks." So that he - showing insight - and also that he would show, over the five years, that this sexual preoccupation - which he says has diminished - is, in fact, not there, and then that, if he was stressed by what's going on in his life, that he's not resorting to going to homosexual beats and picking up indiscriminate sexual partners. Those things would, I think, be evident."[43]

"MR TATE: And it's probably an area that my learned friend will want to ask some questions about, in any event. It's in the second paragraph, it's the - the sentence, and I'll read it to you:

For those reasons, despite his age, I think that a supervision order should be more than five years - probably up to 10 years in duration.

Are you suggesting there a 10 year period or are you open to a period between five and 10? I just wanted to give you the opportunity of clarifying what you mean?

DR BEECH Yes. I - I - I've - I've heard the - the evidence given this morning and I have to say, in the past I felt constrained by the bit of, you can't say if he's doing well then five years is enough. So - so I would say generally, even though he is now 60 there's been a persistence of offending. And, you know, it's occurred across from his youth into his later years, and when it did happen the first time there were two victims. But there was a lot of offences that came out of that. And when it happened again with his daughter, that was what - a three or four years period, and there were multiple counts of offending. And in addition to that there was child exploitation material and things like that. So I think that shows an enduring paraphilia, but also enduring - persisting acting on that paraphilia, despite having been caught and - and treated in the past. And so I thought that, given also the concerns about his insight from the facilitators, his ability to put that into place, that five years might not be enough to manage the risk[44]

[65] Under cross-examination, Mr Ryan pointed out to Dr Beech the various positive factors that have emerged; in particular completion of the HISOP and the demonstration of insight.[45] Mr Ryan then turned to the topic of the respondent's age and this exchange occurred:

"MR RYAN: Of course you then went on - one step further, did you not, in your evidence before and said, "Not many people reoffend after 65"?

MR RYAN: And is that because there's another drop off if you like in diminution?

DR BEECH: No. I think it's just trying to find studies. There aren't that many people over the age of 60 who offend. And it's really trying to collate or corral them if you like. And you start to look at 65. There is a - it - it just continues to decrease. And I think I struggled in earlier cases to even find people who have offended after the after of 70.

DR BEECH: It is. And again, so when you say well, and why is that? Well, for obvious reasons. But when you say well, but there are people obviously who do offend after the age of 60, after the age of 65, who are these people? And - and they're the people who have been anti-social for a start. But also who've had a sexual deviance and who have continued to be sexually preoccupied.

MR RYAN: But in this man's case the difference between that category of person and [the respondent] is that, he's already undergone a very intensive HISOP program in prison?

MR RYAN: And it's anticipated that under a supervision order he would undergo - would continue to undergo psychological treatment?

MR RYAN: Would you - you would obviously recommend that he engage in individual psychological treatment?

MR RYAN: And were he to actively participate in that treatment over a five year period, would you agree that his risk of reoffending would incrementally diminish over that time?

DR BEECH: I think he would go below low. If - well, it's - it's not just engagement. Because I think he would engage. He engaged, he said it was two years of treatment last time. He engaged - for all the difficulties they had facilitators. He engaged in that planning intensive sexual offender program. But he engages, gains insight, shows that he's got other ways dealing with stress without becoming sexually preoccupied. So it's in fact he is avoiding becoming sexually preoccupied by using other things. Has gotten on with life generally, and shows that his personality disorder has in fact moderated over the years, then yes, he's - that's what I would see as doing well.

HIS HONOUR: Will compliance with the order evidence that? So if there was no breach?

"MR RYAN: Would it not, given the aging - the operation of the ageing factor there, at 65, which is when that five year would - its period would expire, would it not be that that risk would effectively bottom out and remain and continuing risk but at a very low level?

DR BEECH: Yes. Though, I mean, the worry for me is that, he gets to 65, he's complied with the order, but he still is a sexually preoccupied man, always looking - asking to look at adult pornography, has had multiple sexual partners, does - keep on - resumed cruising, if you like, done all those things then I would say, well, then the risks continue. But if he gets to 65, sexual preoccupation is gone, and he's had stresses but he's managed them differently, and Mr Madsen says, you know, there's a lot of psychological insights here then the risk is substantially lower."[47]

"HIS HONOUR: So what's the likelihood of this treatment being successful in the sense of lowering the risk to low or below?

DR BEECH: The likelihood is good, your Honour, if he is - again, stays engaged and benefits from it because the - part of the last tranche of offending, I think, was him using that sex to deal with the difficulties in his relationships, stresses that he had at that time, that use of sex to cope which is probably what was - added to the preoccupation he's had. So up to - if he's been engaged in therapy then he will have ways of dealing with stresses without having to resort to sexual means."[48]

Determination of the length of the supervision order

[68] For s 13A of the DPSOA the Court must set the period for which the supervision order is to have effect. That determination must be made in the context of the legislative scheme established by the DPSOA.[49]

[69] Section 13(6) provides, amongst other things that the Court must have regard, when determining whether a supervision order or a continuing detention order is to be made, to "the paramount consideration" which is "the need to ensure adequate protection of the community."[50] Further, when considering releasing the respondent on a supervision order the Court must consider whether "adequate protection of the community can be reasonably and practicably managed by a supervision order."[51] By ss 13(5)(b) and 16 of the DPSOA, the supervision order will contain requirements the "court considers appropriate ... to ensure adequate protection of the community."

[70] For protection, what must be ensured is the protection from an unacceptable risk that the prisoner will commit a serious sexual offence. It follows then that the supervision order must remain in place while that risk exists.

[71] In their reports, the psychiatrists made general statements as to the length of the supervision order. The real question though is when the respondent will cease to be an unacceptable risk of committing a serious sexual offence. Put in another way; when will the respondent not be an unacceptable risk even though not supervised in the community.

[72] In the end, all the psychiatrists put that point at five years from now but subject to a caveat. That reservation is that the respondent must have complied with the supervision order for five years and receive psychotherapy. Dr Sundin thought that an order of ten years was appropriate, and initially said the risk would not sufficiently abate within five years. However, in her cross-examination she said, provided the supervision order was complied with (including obtaining treatment) the risk of sexually re-offending would reduce to low over five years. Dr Beech expressed the same view under cross-examination, indeed opining that risk might over five years reduce to below low. Dr Harden in his report expressed similar views to those expressed by Dr Sundin and Dr Beech in cross-examination. Dr Madsen's opinion on the issue supports those of the psychiatrists.

[78] Dr Sundin supported the inclusion of requirement 14 as pressed by the applicant. In evidence-in-chief she said this:

... not reside at a place by way of short-term accommodation, including overnight stays, without the permission of a Corrective Services officer.

DR SUNDIN: I think that - that clause should stay. I think that it is important in terms of continuing to engage [the respondent] in an ongoing conversation and discussion with his supervising officer as to his activities and his associates."[63]

"MR RYAN: Dr Sundin, is there a point in time which you would advance as to - if we look at requirement 14 - sorry - I'll go back. Looking at requirement 14, is there a point in time during the currency - or the course - of progress of a supervision order, if there's compliance with its requirements, when you would see it appropriate for him to have an overnight stay without having to tell - or without seeking the permission of Corrective Services officers?

DR SUNDIN: Yes. If things have been going well, you know, three to four years in to the order, that clause could be revisited."[64]

"MR TATE: Doctor, I won't read them out again unless you wish me to. If we could start from requirement 14. And again if I could ask you to provide professional advice to the Court on?

DR HARDEN: So this provision is to basically control where people stay so they can't just duck off to a motel for a couple of nights unknown to Corrective Services and the - and evade scrutiny. I would think any relaxation of this provision would need to wait at least two or three years from the time of the imposition of the supervision order.

DR HARDEN: That he would duck off to short-term accommodation and - and evade scrutiny, and that wouldn't be appropriate at the - at this point in his - in his rehabilitation."[65]

[81] Dr Harden was not cross-examined on proposed requirement 14. No evidence was lead from Dr Madsen in relation to requirement 14.

[82] Dr Beech on this topic in examination-in-chief said:

"MR TATE: Now, Doctor, I'm, not going to read them out, but I am going to ask you to do the same exercise that I asked of Dr. Harden, and Dr. Sundin, which is for you to provide us with your clinical advice in relation to certain requirements that are contentious. The first is 14?

DR BEECH: Yes, I think it's important. The Corrective Services need to be able to say where he can go from time to time for a lot of reasons; one is, it's about they need to be able to make an assessment as to whether that's a safe place, and whether they can monitor him there. So if he were say, "Listen, I want to go to the Pomona Caravan Park on the school holidays." They need to be able to say, "Well, you can't. Our GPS doesn't work well in Pomona. It's a school holiday. There's going to be lots of children around. We don't think it's advisable."[66]

[83] Dr Beech was not cross-examined in relation to requirement 14.

[84] There is no evidence to support the respondent's position that requirement 14 ought only be in force for a period of six months. The psychiatrists clearly considered requirement 14 as a necessary condition in the suite of conditions which require the respondent to engage with, and submit to, supervision. Dr Sundin accepted that such a condition might not be necessary for the entire duration of the supervision order. However, assessing the present state of the respondent, I am of the view that the requirement should be in the terms proposed by the applicant.

.... disclose to a Corrective Service officer the name of each person with whom he associates and respond truthfully to requests of information from a Corrective Services officer about the nature of the association, address of the associate, if known, the activities undertaken and whether the associate has knowledge of his prior offending behaviour.

DR SUNDIN: Yes. [The respondent] is historically not an opportunistic sexual offender. His pattern has been one of grooming, so, therefore, disclosure of people with whom he is associating and the access that that may bring him to children under the age of 16 is important for his QCS officer to know."[67]

"MR RYAN: Looking at requirement 17, do you still have the draft order in front of you there?

MR RYAN: Looking at that, that creates - well, the requirement to make disclosures to a Corrective Services officer about people with whom he associates, obviously creates some tension, does it not, you would agree, in the situation of someone who then has to seek employment?

MR RYAN: In this case, given this man's history of offending is not that of someone who has in the past, opportunistically offended against children, but rather, has occurred in the context of a friendship with someone else, or in a family context, would it not be appropriate - or would you accept that it's reasonable that the associates in respect of whom he must make the disclosure could be narrowed down to, firstly, people with whom he has regular social contract and who have children under the age of 16, as one group?

DR SUNDIN: The difficulty with the language you're using there, Mr Ryan, is, how does one define regular, and when does one know it's regular?

HIS HONOUR: Well, we'll approach it this way: don't worry so much about the way in which an order might be. Let's just look at it from the level - from the aspect of concern and risk, which is your expertise?

HIS HONOUR: So what Mr Ryan's suggesting to you is that the concern, which is being addressed by orders such as 17, is to restrict access to persons with children, rather than just to restrict access, generally, to the community?

HIS HONOUR: That's the point being made. Now, he's right about that, isn't he?

DR SUNDIN: Yes. And it's restricting access to persons with children or grandchildren.

DR SUNDIN: Yes. Given that he's now 60, his peer-group is likely to be grandparents.

DR SUNDIN: And restricting access to people who might seek to engage him as a, you know, babysitter, that sort of thing."[68]

DR HARDEN: Yes. This is an important provision in terms of - particularly with the - people with the offending history of [the respondent] because of the grooming of parents or caregivers. So - and you want to know is he associating with people who have the care of children or who can provide access to children.

MR TATE: All right. So obviously, you consider it should stay in the current format?

DR HARDEN: I consider it should stay, yes."[69]

[88] Under cross-examination Dr Harden said this:

"MR RYAN: Looking at the - the conditions, or the requirements, that you've been taken through a moment ago, is the concern - am I right in saying this: that the concern that you have behind the necessity for condition, or requirement 17, is that he would engage, or might engage, in social contact with people who have children, or have contact with children under 16 years of age?

[89] Dr Madsen was not asked in-chief about proposed condition 17 and understandably, the topic was not raised in his cross-examination.

[90] Dr Beech did express a view:

DR BEECH: Yes, and again, they need to know whom he's seeing so that they can monitor and supervise him.

MR TATE: Now there seems to be a potential for some confusion. My understanding of that condition, from a clinical viewpoint, is that he's required to disclose to Corrective Services - full stop- there's no further requirement that he tell other people, it's really just informing Corrective Services?

DR BEECH: No there sometimes is a - another condition which says that, 'Disclose to people as directed by Corrective Services'. But that's not -

DR BEECH: No, this one just says he disclose to Corrective Services the people he associates with, and truthfully.

DR BEECH: Yes, because again, it is about making sure that he - monitoring his - you know whom he's seeing, and you monitor his contact with children, and the only way you're going to know that is to know whom he's associating with."[71]

"MR RYAN: Now, requirement 17 is your concern about his association with people who have children under the age of 16 or grandchildren under the age of 16

Determination in relation to proposed requirement 17

[92] The psychiatrists emphasised the need to monitor the respondent and requirement 17 is a way of doing so. As the psychiatrists explained though, the risk which is being managed is the risk of contact with children. There is a reasonable argument raised by the respondent that the only contact by the respondent with "associates" relevant to the question of risk is contact with those associates who have the care of children.

[93] For the supervision order to be properly managed, Corrective Services must be able to ascertain whether the associates with whom the respondent is having contact do or do not have the care of children. The requirement in the form proposed by the applicant is appropriate and ought to be contained in the supervision order.

[94] Having said that, it is also appropriate to note that Corrective Services must be discreet in the use of information they obtain under requirements like requirement 17. Experience is that citizens who have committed offences like those committed by the respondent are shunned. Their social opportunities are restricted as are their employment opportunities and of course, there are examples of sex offenders being released into the community by lawful orders of the Court only to be mercilessly pursued and vilified by the media. Unless disclosure of particulars of the respondent's offending is necessary in the management of risk that disclosure ought not be made.

"MR TATE: Thank you. The next is requirement 18, which reads:

... submit to and discuss with a Corrective Services officer a schedule of his planned and proposed activities on a weekly basis or as otherwise directed.

DR SUNDIN: Again, I would see that as being an important part of [the respondent's] process of engagement and trying to discourage him from a previous avoidant coping pattern and encouraging him to engage in more open discussion of such issues so that he is forward-thinking and managing - engaged in managing his own risk as well."[73]

[96] Under cross-examination she was asked no questions about requirement 18.

[97] Dr Harden in evidence-in-chief said this:

DR HARDEN: Eighteen is important because it's - I mean, 18 is a tool partly of the supervision process but as - unlike provision 17, 18 is prospective, so it's a: sitting down, and outlining the proposed activities for the week to the supervising staff, which aids in the supervising being able to consider what may, or may not, be risk issues, and also - from their point of view - things they may want to utilise surveillance, or other activities on."[74]

"MR RYAN: In relation to requirement 18, do you see any necessity for him to actually write out and submit something in a written form, as far as any advanced - or his - his plans, or proposed activities are concerned? Or is it sufficient that he simply discloses those to his supervisor?

DR HARDEN: I mean, I don't think the condition, as written, says 'written'. It says, 'submit to and discuss with a schedule'. So I don't think it specifies that it has to be written.

MR RYAN: All right. And you wouldn't see a need for that anyway?

DR HARDEN: Not necessarily, no. I think he needs to give his supervising staff a reasonably clear idea, though, of what he's planning to do that week and where he's planning to be."[75]

[99] Dr Madsen was not asked questions about proposed condition 18.

[100] Dr Beech said this in evidence-in-chief:

DR BEECH: Yes, and again, that works two ways: first of all, the concern of facilitators after 353 hours, I think, of treatment was that they weren't sure that he had insight into his risk and good strategies to manage them. So he - if he then says to the Corrective Services officer, "This week I plan to do 'this', 'this', and 'this'." Then they would be able to say, "Well, that last one's actually quite risky when you think about it. What strategies have you got in place for that?" But also they can then monitor him and say, "Listen, well we - you said this was what you were going to do, but when we checked on it, in fact, you didn't go there, you were going somewhere else. So what's happened there?" So it's about - it's about him being able to discuss his risks, and managing them, but also then to be able to supervise him."[76]

[101] That evidence was not challenged in cross-examination.

[102] Mr Ryan submitted that requirement 18 was unnecessary because of requirement 7. Perhaps that is strictly true in that a direction could be given by a Corrective Services officer under requirement 7 in the terms of requirement 18. However, the psychiatrists opined that the delivery of a schedule of plans and proposed activities is an appropriate management tool and in these circumstances it is desirable that it be expressed in the order and appear as condition 18.

[103] Dr Sundin's evidence-in-chief on this topic was:

"MR TATE: Doctor, if I can ask you to skip through now to requirement 38?

...not access pornographic images on a computer or on the internet, or purchase or obtain pornographic material in any other format without the prior written approval of a Corrective Services officer in consultation with the treating psychiatric or psychologist.

DR SUNDIN: Yes, I think it's very important that issues around access of pornography be the subject of - well, it - it will be the subject of discussion with his treating psychiatrist or psychologist. It - accessing pornography and exposing victims to pornography was part of his second tranche of offending, so it will be a focus of therapy and will be something that his clinical psychologist may need to flag if there's any ri - evidence of rising sexual pre-occupation and flag it with his QCS officer. So it's important that that's in there."[77]

[104] Dr Sundin was cross-examined on this issue. She said:

"MR RYAN: Just in relation to the issue of requirement 38 - that you've touched upon earlier - concerning the access to pornography, am I correct in understanding it this way - that you consider it best to leave it to the - to his treating psychiatrist - or the person who he's individually consulting as a psychologist - as to the approval of access to pornography?

MR RYAN: So it doesn't, in your opinion, need to - there doesn't need to then, on that assessment of things, as far as you're concerned, require him to go then through a second person - namely, a Corrective Services officer - and get that approval?

DR SUNDIN: Well, I think that the term of the clause is "in consultation". So, as often happens with these orders, there's a reciprocity - a relationship between the clinician and the supervising officers, given that the clinician is trying to address individual treatment needs and the supervising officers are addressing risk - hence the need for consultation. And, if the treating psychologist becomes concerned about rising sexual preoccupation, it would then be necessary for them to involve the CSO."[78]

"MR TATE: Yes, I understand. As with Dr. Sundin, if we can jump now, please, to 38?

DR HARDEN: Now - yes Mr Tate, the 38, in its current form, I don't agree with. I don't think that access of pornography is necessarily an issue, and I think it should only be limited on the advice of his treating practitioner. So the - I would suggest a reverse of the onus in - in that clause if it's to stay.

MR TATE: All right. And that might be - if directed not to do that - the inclusion of words, 'in an appropriate spot' if directed not to do so by Corrective Services?

DR HARDEN: It might also fall under a reasonable direction or something similar, if the treating practitioner - probably Dr Madsen - says, "Look, there's signs of sexual pre-occ." Because access to, what I may call 'normal' pornography, so it might be an appropriate part of [the respondent's] treatment at various points. Or it might be a sign of sexual pre-occupation, and should be cut back."[79]

[106] Dr Harden was not cross-examined on requirement 38. Dr Madsen gave this in evidence-in-chief:

"MR TATE: One of the requirements of the order that proposed, there's a requirement - and this is requirement number 38 - that deals with the issue of his having access to adult pornography. As a clinician, dealing with him on a regular basis, how would you see that that - what would be your - the way in which that would operate - or your concerns about how his access to adult pornography would operate, as far as his treatment is concerned?

DR MADSEN: Okay. One of the issues that I identified within the work that I did - have done with [the respondent], is that he has a tendency to experience sexual preoccupation. What that means is that he'll experience times where he becomes very overwhelmed with sexual thoughts, feelings and urges - they will become very intense - and at those times his decision-making can, perhaps, be a little bit skew-whiff. So in treatment - in clinical treatment with him over time, I would assist him to try and work with understand when he experiences these kinds of problems and help him deal with it in different ways. So they use of pornography would be one of the - the obsessive use of pornography - so we're talking about looking at this material and mastur - masturbating to it multiple times a day - that would be problematic if that were to be happening. And I would be concerned about it and look to intervene with him to say, "well, this is really not a - this is not healthy, not good for you, we need to figure out other ways of doing it." However, in saying that - I mean, one of the things that [the respondent] has also struggled with is sexual interest in young girls, in particular. And one of the treatments that - that - that - one of the psychological treatments that we try to use with individuals who have this kind of - kind of problem, is we get them to, sort of, associate fantasies, thoughts, sexual feelings about children to negative things, to things that, in a sense, are un-sexually arousing. And what we are trying to do is strengthen the appropriate sexual interests towards consenting adults, adult partners, that type of thing. So pornography, in that kind of context, is often very useful, as a way of assisting someone strengthen appropriate and healthy sexual interest. So to answer your question, using pornography with [the respondent] would be a process of trying to help him understand when his use of that becomes problematic for him and to reduce it and figure out what's going on for him. But also, trying to use that material, when he does use it, in ways that actually strengthens healthy and appropriate sexual interests that he might have."[80]

[107] Dr Madsen was not cross-examined on that topic.

[108] Dr Beech gave this evidence-in-chief:

MR TATE: Yes, and I think you were present when Dr Madsen was talking about -?

MR TATE: - how pornography might be useful as part of the treatment regime. Before I actually ask you to comment on 38, could I ask you, please from a clinical perspective, to give us your advice about when and how adult pornography might be of assistance in the treatment of these people?

DR BEECH: Of assistance - you - he could use it as part of a masturbatory desensitisation or movement from be - focusing on adult sex - sex with adults, rather than children. So it can be a therapeutic tool. He described to me that the psychological counselling he had after 1981 offences, that sounded like something like that. So - and I heard Dr Madsen say that might be a way that he would manage deviant sexual urges or thoughts, so that might be appropriate as a therapeutic tool.

DR BEECH: Look, the worry is that - well, I think there's part of me that says, "Well, given that he told me that his sexual urges had reduced, and he wasn't chiefly sexually preoccupied," he's now become concerned about one of the conditions, which is his right, but you just think, "Well, why is now concerned about this, when it wasn't going to be so much of a problem for him anyway?" But you know, if he does want to access adult pornography, that's fine. It's just that if it then seems that he's become sexually preoccupied, and he's using that to cope with some difficulties in his life, then becoming sexually preoccupied, and using sex to cope like that, just generally raises your risk that you're then going to act on deviant urges as well. So if I were to change this, it would be something along the lines of, 'Cease accessing pornographic images as directed in consultation with a treating psychologist'. So if Dr Madsen says, "He needs to stop doing this," then Corrective Services will say, "[indistinct] fine. We're going to direct you to stop doing this."

MR TATE: And that is built on the assumption that it must be accepted that Dr Madsen, or some other treating clinician, is free to give that information to Corrective Services?

DR BEECH: Yes, but I think that comes under other conditions about where there's access to [indistinct]. Treatment providers would be able to talk to them, and if they - but if they access his computer or phone and say, "Well there's a whole lot of adult pornography, and this has - really has flourished, if you like, over the past month." We'd tell Dr Madsen, and Mr Madsen says, "Listen, he needs to stop this because he's just getting sexually preoccupied again, and we need to deal with the underlying stressor." Then they would say, "Well, you stop doing this now, until Dr Madsen says you can resume it."

DR BEECH: That's how I would do it, rather than saying, "Don't access it"."[81]

"MR RYAN: Can I - I think you've answered, perhaps, the inquiry that I was going to ask you about, condition thirty - or requirement 38 in the answers that you gave my learned friend concerning the availability to Dr Madsen of using that as a treatment tool?

DR BEECH: Well, it can be used as a treatment tool, or he might just simply want to access adult pornography.

MR RYAN: And you made the point, I think, did you not that if there was a concern as far as Dr Madsen was concerned in terms of level of risk increasing, you've identified that there's another requirement in the order that permits Dr Madsen or requires thee respondent to permit Dr Madsen to inform Corrective Services about that increase?

DR BEECH: That's right. So I would - if I were to try to - it would be something like cease accessing adult pornography if directed in consultation with a psychologist. That's how it would do it."[82]

Determination of the issue of proposed requirement 38

[110] The concern is that unsupervised access to pornography may lead to sexual preoccupation which is a risk factor. On the other hand, the supervised access to pornography can be used as a therapeutic tool. The way to balance those considerations is to have the treating psychiatrist or psychologist authorise the access to pornography but maintain the ability of Corrective Services to monitor the access. By requirements 32 and 36 Corrective Services may access the respondent's computers.

[111] The appropriate balance is met by including in the supervision order requirement 38 in these terms:

"38. not access pornographic images on a computer or on the internet or procure or obtain pornographic material in any other format without the prior written approval of the treating psychiatrist or psychologist, and if such approval is given, to deliver a copy of the approval forthwith to a Corrective Services officer."

[112] I regard the evidence placed before the Court as acceptable and cogent. I am convinced to a high degree of probability that:

• (i) the respondent is a serious danger to the community namely that there is an unacceptable risk that he will commit a serious sexual offence if released from custody without a supervision order being made; and
• (ii) that the adequate protection of the community can be ensured by releasing the respondent on a supervision order for a period of five years on terms that I have found to be appropriate.

[113] I order as follows:

1. The respondent be released subject to the requirements set out in the Schedule to these reasons until 7 March 2024.

Attorney-General for the State of Queensland v PCO [2019] QSC 44

THE COURT, being satisfied to the requisite standard that the respondent is a serious danger to the community in the absence of an order made under Division 3 of the Dangerous Prisoners (Sexual Offenders) Act 2003 (the Act), ORDERS THAT:

The respondent be subject to the following requirements until 7 March 2024:

1. report to a Corrective Services officer at the Queensland Corrective Services Probation and Parole Office closest to his place of residence between 9am and 4pm on the day of release from custody and at that time advise the officer of his current name and address;
2. report to, and receive visits from, a Corrective Services officer at such times and at such frequency as determined by Queensland Corrective Services;
3. notify a Corrective Services officer of every change of his name, place of residence or employment at least two (2) business days before the change happens;
4. be under the supervision of a Corrective Services officer for the duration of this order;
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 this order;
8. 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 this order;

1. 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;
2. 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 at least two (2) days prior to commencement or any change;

1. reside at a place within the State of Queensland as approved by a Corrective Services officer by way of a suitability assessment and obtain written approval prior to any change of residence;
2. if this accommodation is of a temporary or contingency nature, comply with any regulations or rules m place at this accommodation and demonstrate reasonable efforts to secure alternative, viable long term accommodation to be assessed for suitability by Queensland Corrective Services;
3. not reside at a place by way of short term accommodation, including overnight stays, without the permission of a Corrective Services officer;

1. respond truthfully to enquiries by a Corrective Services officer about his activities, whereabouts and movements generally;

1. not have any direct or indirect contact with a victim of his sexual offences, except with the prior approval of a Corrective Services officer, and in consultation with his treating psychologist;

1. disclose to a Corrective Services officer the name of each person with whom he associates and respond truthfully to requests for information from a Corrective Services officer about the nature of the association, address of the associate if known, the activities undertaken and whether the associate has knowledge of his prior offending behaviour;
2. submit to and discuss with a Corrective Services officer a schedule of his planned and proposed activities on a weekly basis or as otherwise directed;
3. if directed by a Corrective Services officer, make complete disclosure of the terms of this order and the nature of his past offences to any person as nominated by the Corrective Services officer, who may contact such persons to verify that full disclosure has occurred;

1. 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;

1. attend upon and submit to assessment, treatment, and/or medical testing 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;
2. permit any medical, psychiatrist, psychologist, social worker, counsellor or other mental health professional 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 this order and/or ensuring compliance with this order;
3. attend any program, course, psychologist, social worker or counsellor, in a group or individual capacity, as directed by a Corrective Services officer in consultation with treating medical, psychiatric, psychological or other mental health practitioners where appropriate;

1. not establish or maintain any supervised or unsupervised contact including undertaking any care of children under 16 years of age except with prior written approval of a Corrective Services officer;
2. advise a Corrective Services officer of any repeated contact with a parent of a child under 16 years of age,
3. not access schools or child care centres at any time without the prior written approval of a Corrective Services officer;
4. not join, affiliate with, attend 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, without the prior written approval of a Corrective Services officer;

1. inform a Corrective Services officer of each computer or device which can use or access the internet.
2. supply to a Corrective Services officer any password or other access code known to him to permit access to such computer or other device or content accessible through such computer or other device and allow any device where the internet is accessible to be randomly examined using a data exploitation tool to extract digital information or any other recognised forensic examination process;
3. supply to a Corrective Services officer details of any email address, instant messaging service, chat rooms, or social networking sites including user names and passwords;
4. not access child exploitation material or collect images of children on a computer or on the internet or in any other format;
5. inform a Corrective Services officer before possessing any equipment that enables him to take photographs or record moving images;
6. allow any other device including a telephone or camera to be randomly examined. If applicable, account details and/or phone bills are to be provided upon request of a Corrective Services officer;
7. advise a Corrective Services officer of the make, model and phone number of any mobile phone owned, possessed or regularly utilised by him within 24 hours of connection or commencement of use, including reporting any changes to mobile phone details;
8. not access pornographic images on a computer or on the internet or procure or obtain pornographic material in any other format without the prior written approval of the treating psychiatrist or psychologist, and if such approval is given, to deliver a copy of the approval forthwith to a Corrective Services officer;
9. except with prior written approval from a Corrective Services officer, not own, possess or regularly utilise more than one mobile phone.

[2] Dangerous Prisoners (Sexual Offences) Act 2003 (Qld) s 2 and the dictionary which is the Schedule to the Act.

[3] See Attorney-General for the State of Queensland v Newman [2018] QSC 156.

[4] Dr Beech's report 19 December 2018 page 3.

[7] Criminal Code s 210(1)(e), (3)-(4).

[8] Affidavit of Katherine McKinnon CFI 10 exhibits page 18.

[9] Affidavit of Katherine McKinnon CFI 10 exhibits page 20.

[11] A document titled, "Requirements that remain in dispute between the parties" dated 18 February 2019, exhibit 2.

[12] A document titled, "Requirements that remain in dispute between the parties" dated 18 February 2019, exhibit 2.

[14] Report of Dr Madsen 14 February 2019 exhibited to the Affidavit of Terence Patrick O'Gorman sworn 18 February 2019 and filed by leave.

[16] Dr Harden's report exhibit 6 page 17.

[17] Dr Sundin's report 4 September 2018 exhibit 4 page 25.

[18] Dr Beech's report 19 December 2018 exhibit 7 page 17.

[19] Dr Harden's report 31 January 2019 exhibit 6 pages 17-18.

[22] Dr Sundin's report 4 September 2018 exhibit 4 page 36.

[25] Dr Sundin's report 4 September 2018 exhibit 4 page 27.

[26] Dr Sundin's report 4 September 2018 exhibit 4 page 28.

[27] Dr Sundin's report 4 September 2018 exhibit 4 page 28.

[28] Dr Sundin's report 4 September 2018 exhibit 4 page 28.

[29] Dr Sundin's report 4 September 2018 exhibit 4 page 28.

[30] Dr Beech's report 19 December 2018 exhibit 7 page 18.

[31] Dr Beech's report 19 December 2018 exhibit 7 page 18.

[32] Dr Beech's report 19 December 2018 exhibit 7 page 18.

[33] Dr Beech's report 19 December 2018 exhibit 7 page 17.

[34] Dr Beech's report 19 December 2018 exhibit 7 page 17.

[35] Dr Sundin's report 4 September 2018 exhibit 4 page 28.

[38] Dr Harden's report 31 January 2019 exhibit 6 page 18.

[49] Attorney-General for the State of Queensland v KAH [2019] QSC 36 at [53]- [72].

[55] Dr Maden's report 31 January 2018 exhibit 6 page 18.

[56] Report of Dr Madsen 14 February 2019 exhibit to the Affidavit of Terence Patrick O'Gorman sworn 18 February 2019 and filed by leave.

[59] Attorney-General for the State of Queensland v Kanaveilomani [2013] QCA 404, [118]-[120].

[60] Attorney-General v Van Dessel [2006] QCA 285; [2007] 2 Qd R 1, 31; Attorney-General for the State of Queensland v Foy [2014] QSC 304, [14]; Bickle v Attorney-General [2016] 2 Qd R 523, 540.

[61] Such considerations are prohibited by s 13A(2).

[62] [2019] QSC 36.