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[2026] QSC 73
General information, not legal advice.
Supreme Court of Queensland
2026-04-17
Smith J
Original judgment source is linked above.
[1] The Attorney-General seeks orders under s 8 of the Dangerous Prisoners (Sexual Offenders) Act 2003 (Qld) (DPSOA) for an order that the respondent be subject to an assessment by two psychiatrists under s 11 of the DPSOA.
[2] In due course, the Attorney-General will seek an order for the respondent's continued detention or alternatively release on supervision.
[4] The following is the respondent's relevant criminal history:
Sentenced 3 years' imprisonment cumulative to existing sentence being served
Sentenced 2 years' imprisonment; sentence to commence at the end of the 3 ½ year term of imprisonment
Conviction recorded. Sentenced 9 months' imprisonment
652 days (between 10/12/2020 & 22/09/2022) spent in pre-sentence custody declared as time already served
[6] With respect to the 3 June 2009 offences, the respondent pleaded guilty to two counts of indecent dealing with an intellectually impaired person and one count of unlawful carnal knowledge of an intellectually impaired person. The offending constituted a single course of conduct. They were committed within one week of the respondent's release from custody on parole for robbery. He was 27 when he committed the offences and 28 when sentenced. The female victim was 17 years old. She was intellectually disabled and lived next door to the respondent. He was sentenced to three years imprisonment to be served cumulatively on the sentence he was serving at the time. A parole eligibility date of 1 July 2010 was fixed. At sentence, his offending was described as "predatory" and committed for his "immediate sexual gratification."
[7] On 21 October 2019 in the Magistrates Court, the respondent was convicted and sentenced on a plea of guilty to offences of indecent act with intent to insult or offend any person, trespass, possessing dangerous drugs and failing to properly dispose of a syringe. The respondent committed these offences whilst on parole and had been released from custody the day prior. The offences comprised a single incident committed on 9 August 2019. At about 6pm on 9 August 2019, the respondent after consuming drugs went into a property at Kingston. The female victim resided there. She saw him through the kitchen window. He removed his shorts and exposed G-string underwear he was wearing, and he started masturbating in her view for about 20 minutes. He made eye contact with her. When police arrived, he was questioned, and they found a small clip seal bag of methylamphetamine and a used syringe. He was sentenced to six months imprisonment with immediate eligibility for parole.
[8] As to the index offences on 23 September 2022 in the District Court of Cairns, the respondent pleaded guilty and was convicted and sentenced in relation to the following offences:
(a) One count of burglary and stealing (Count 4)
(b) One count of entering dwelling and commit indictable offence (Count 9);
(c) Two counts of indecent act in any place with intent to insult or offend any person (Counts 6 and 8);
(d) One count of indecent act in any place to which the public are permitted access (Count 7);
(e) One count of failing to comply with reporting (Count 1);
(f) One count of receiving tainted property (Count 2);
(g) Two counts of fraud (Counts 3 and 5);
(h) One count of stealing (Count 10); and
(i) Two breaches of separate suspended sentences.
[9] Originally the respondent was charged with sexual assault, but this was subsumed into the offence of entering dwelling and commit indictable offence (Count 9).
[10] The offences were committed over multiple dates in December 2020. As to Counts 8, 9 and 10, the offences were committed against two women in their 60's. The respondent was 39 at the time of the offending and 41 when sentenced.
[11] The circumstances of the offences were described by Judge Farr in his sentencing remarks. As to Count 6, at 3.40pm on 9 December 2020, the respondent approached a woman who was in the car and asked for a lift. She reluctantly agreed. In the car he rubbed her shoulder and asked if she liked rock, and he asked if he could take her out for a drink. He offered to perform sex acts on her whilst showing pornographic photos on his phone. He exposed his penis to her. She stopped the car and got away from him.
[12] As to Count 7, on 9 December 2020 at 10.20pm he approached a unit complex at a person's front door, removed his pants, masturbated, and penetrated his own anus.
[13] With respect to Count 8 at 7.50am on 10 December 2020, he attended a driveway and knocked on the door of a unit. The occupant was a lone woman aged in her 60's. He engaged in conversation with her, telling her that he worked for an electricity company, and he needed to come inside. She refused. He then told her he had been evicted from his unit. He then said he had been watching her and loved her and her body. She retreated back into her unit and closed the screen door. The respondent stood up and he had an erect penis protruding from his pants. She called the police.
[14] In respect of Count 9 the respondent immediately went next door, pushed his hand through gauze across the doorway, unlocked the screen door from inside and entered the unit. Another woman (who was 68) was asleep on a mattress in the living room. He then laid on the mattress with his head near her feet, pulled her underwear up and rubbed her in her inner thigh close to her vagina. She awoke and screamed. The respondent grabbed her mobile phone and ran from the unit. At about 9.20pm police located him, and the respondent was so drug affected he could not be interviewed.
"It is quite obvious that the offending conduct involving those two women at that apartment block is the most serious of the offences that you are facing. That would have been a terrifying experience particularly for the women whose unit you entered. You breached the sanctity and security that she no doubt felt in her own home, and it is serious offending conduct and particularly so for a person with your criminal history which is appalling."
[16] For the most serious offence (Count 9), the respondent was sentenced to three and a half years imprisonment. With respect to Count 4 he was sentenced to two years imprisonment. That was ordered to be served cumulatively on the three and a half year term.
[17] The effective sentence was five and a half years imprisonment with a parole eligibility as at 9 October 2022.
[18] The preliminary issue which arises in this case is whether the index offending in 2022 is a "serious sexual offence" within the meaning of that term in the DPSOA. If it is not, then the Attorney-General's application must fail.
Section 5(1) of the DPSOA provides:
[19] The term "prisoner" is defined in section 5(6)(a) as:
"means a prisoner detained in custody who is serving a period of imprisonment for a serious sexual offence, or is serving a period of imprisonment that includes a term of imprisonment for a serious sexual offence, whether the person was sentenced to the term or period of imprisonment before or after the commencement of this section;"
[20] In order for the Attorney-General to succeed she must establish that the respondent is a prisoner as defined by s 5(6) of the DPSOA.
[21] In this matter, this means he must have been convicted of a serious sexual offence on 23 September 2022 and is currently serving a term of imprisonment for an offence of the serious sexual offence.
[22] The term "serious sexual offence" is relevantly defined in the schedule to the DPSOA as, "means an offence of a sexual nature, whether committed in Queensland or outside Queensland involving violence..."
[23] "Violence" is defined in the schedule as "includes the following - intimidation; threats."
[24] The respondent submits that Count 9 was not a "serious violent offence" as defined. He relies on statements made by Muir JA in Attorney-General v Phineasa,[8] where his Honour found that "violence" must be more than mere contact. It is submitted that Phineasa is indistinguishable from the present matter. The respondent also relies on the cases of Attorney-General v Tilbrook[9] and Attorney-General v Kynuna.[10]
[25] It is submitted that the act the subject of Count 9, merely involved leg rubbing. The complainant screamed, the respondent desisted and then left. There was no violence as defined.
[26] The Attorney-General submits that the offence being the subject of Count 9 was an offence of a sexual nature which is broadly defined.
[27] It is further submitted that the degree of "violence" necessary depends on the circumstances of the case. In this case, it is submitted it may be concluded the offence caused significant psychological harm to the victim.
[28] It is open to conclude there was an assault of a sexual nature which frightened the complainant. She was left very shaken and mentally stressed by what had occurred. Significant psychological harm may be inferred from the statement made by the complainant.
[29] The first issue is whether this was an offence of a sexual nature.
[30] The term "offence of a sexual nature" was examined in Attorney-General v Sorrenson.[11] Davis J noted that this term is quite broad and is intended to pick up criminal offences where the act constituting the offence was of a sexual nature.
[32] In my view, it can clearly be established that the act of pulling up the nightie and then pulling at the underwear and touching her inner thigh near her vagina, was an offence of a sexual nature. This is particularly so when he broke into her house and was lying next to her, which would lead one to the conclusion there was a sexual intention on the respondent's part.
[33] The next issue is whether this offence involved violence.
[34] In Phineasa, Muir JA stated the following:
(a) The word "violent" depends on its context [23].
(b) The context of the legislation needs to be considered [26]-[29].
(c) Something more than mere physical contact is required [36].
(d) "Violence" does not equate to the application of force [36].
(e) The violence referred to requires force greater than mere physical contact such as pawing, groping, grasping or stroking [38].
(f) The Act does not apply unless the offences are of a very serious kind insofar as adults are concerned [38].
(g) The violence would normally involve the use of force to facilitate a rape, or which be likely to cause significant physical injury or significant psychological harm [38].
(h) It was necessary to explore the question whether and to what extent there may be violence not involving intimidation or threats or the application of physical force [39].
(i) It will always be necessary to consider whether the conduct involves violence by looking at the facts and circumstances of the particular case [39].
[35] In Phineasa it was held that the following did not involve violence as defined:
(a) The touching of the bottom of a woman after he masturbated.
(b) Entering the bedroom of a female at about 5.45am who was sleeping and touching her buttocks pulling underpants to one side.
(c) Grabbing a woman's buttocks while he rubbed his crotch.
[36] Insofar as the case of Tilbrook[14] is concerned, at first instance Wilson J held that the following acts were serious sexual offences:
(a) Grabbing the complainant's breasts causing pain.
(b) Squeezing the complainant's buttock.
(c) Attempting to pull down the complainant's underwear and rubbing the vaginal area.
[37] The court of appeal formed a different view holding that the conduct did not constitute serious sexual offences.[15]
[38] In Attorney General v Kynuna,[16] at first instance it was found that the placing of the complainant's hand on the respondent's genitals involved violence. At the time, the respondent was receiving treatment at the PA hospital and the complainant was a nurse. On appeal,[17] the Court of Appeal set aside the finding and held that there was no evidence that the nurse suffered significant psychological harm, and this could not be inferred.
[39] On the other hand, I note in Attorney-General v Stanbrook,[18] Mullins J (as her Honour then was) found that it was arguable that the administration of a drug which put a victim into a state where they could not resist sexual assaults involved violence.
[40] In the present case, I consider the offending is to be distinguished from the cases relied on by the respondent. All of the following facts need to be considered:
(a) The respondent deliberately broke into the complainant's house.
(b) The complainant and the respondent were strangers to each other.
(c) The complainant was a lady in her late 60's.
(d) She was vulnerable and asleep.
(e) Unlike in the respondent's cases, the respondent lay next to her. An intention to commit a sexual offence can clearly be inferred.
(f) The respondent deliberately lifted the complainant's nightie and then her underpants.
(g) Crucially, the touching was a rubbing very close to the vagina on the inner thigh.[19] I consider the area near the vagina is to be distinguished from the buttock area as was the case in Phineasa. But for her waking and screaming, it is likely digital penetration (at the least) would have occurred.
(h) The complainant screamed and was very frightened about what he was trying to do to her. She was very shaken and mentally very stressed.[20]
(i) Judge Farr was correct to find that this would have been a terrifying experience which breached the sanctity and security she felt.
(j) I infer the complainant suffered significant psychological harm. I consider this is quite different from the case of Kynuna. In that matter, this could not be inferred presumably because of the facts. In that case, the nurse had noticed Mr Kynuna had urinated in his bed. She had assisted him to remove his clothing for a shower and it seems he grabbed her hand and put it on his genitals momentarily before she pulled it away. That case did not involve the deliberate break in of a dwelling and the sexual assault of a vulnerable sleeping complainant.
[41] It is my view, having considered circumstances of this case and the provisions of the DPSOA, that Count 9 did involve violence. I am satisfied that the respondent committed a serious sexual offence as defined in the Act.
[42] In those circumstances, the jurisdiction to make an order sought by the Attorney-General is enlivened.
ISSUE 2 - ARE THERE REASONABLE GROUNDS TO BELIEVE THE RESPONDENT IS A SERIOUS DANGER TO THE COMMUNITY?
[43] The Attorney-General submits that the respondent was convicted of serious sexual and associated offences in September 2022. His diagnosis includes mixed cluster B personality disorder, polysubstance abuse and domestic/relationship instability.
[44] The respondent is a risk of sexual assault or potentially the rape of a female. The unmodified risk of re-offending in the community is in the moderately high range. The risk he will commit a serious sexual offence is unacceptable.
[45] Dr Arthur says that there is a particular risk in the context of methylamphetamine intoxication. A supervision order would reduce the risk of sexual recidivism to low.
[46] There are reasonable grounds for believing that the respondent is a serious danger to the community in the absence of a Part 2, Division 3 order, and the respondent should be examined by two psychiatrists under s 11 of the DPSOA.
[47] The respondent submits that the evidence does not establish that there are reasonable grounds for believing that he is a serious danger to the community in the absence of an order. It is submitted that whilst the respondent has an extensive criminal history, the first sexual offending occurred in 2008 when he was 27 and the last when he was 39.
[48] There is no history of violent sexual offending such as rape. The sexual offending has not increased in seriousness.
[49] The respondent relies on statements of Dr Arthur in this regard. Dr Arthur does not provide an opinion there is a risk of rape. He does not offer an opinion that the respondent will commit a serious sexual offence against an adult or child.
"(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."
[51] As to whether there are reasonable grounds for believing, the court does not have to be satisfied that the respondent is a serious danger to the community, the question is whether the court is satisfied there are reasonable grounds for believing that he is a serious danger to the community.[21]
[52] Under s 13(2) of the DPSOA, a prisoner is a serious danger to the community if there is an unacceptable risk that the prisoner will commit a serious sexual offence if released from custody or released from custody without a supervision order being made.
[53] In Attorney-General for the State of Queensland v Nemo,[22] Martin J (as his Honour then was) adopted the approach taken in George v Rockett,[23] i.e. the facts and circumstances must be sufficient to induce in the mind of a reasonable person a positive inclination towards acceptance of the subject matter of the belief.
[54] However, of course, the grounds must be reasonable which lead to the belief.
[55] The test for the preliminary hearing is not as demanding as the test for a final hearing.[24]
[56] In deciding whether there is a reasonable belief that the prisoner is a serious danger to the community for the purposes of the preliminary hearing under s 8, the matters under s 13(4) of the DPSOA need to be considered. They are as follows:
(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;
[57] I now turn to the relevant facts to be considered.
[58] There is the respondent's criminal history to be considered:
(a) There are the 2008 convictions for sexual offences against a vulnerable 17-year-old intellectually impaired girl.
(b) There are other sexual behaviours which whilst not serious sexual offences as defined show a sexual pre-occupation and a disinhibition. These were in 2019 when he deliberately masturbated in front of a stranger and the 2020 offences involving making sexual advances on a stranger in the car and on a stranger in the unit, including exposing his penis.
(c) Then there is the index offence which involved breaking into a vulnerable victim's house and sexually assaulting her.
(d) There is his drug offending to be considered and the conviction for robbery.
(e) He also breached parole orders. Some soon after his release.
[59] Dr Arthur in his report dated 24 November 2025, noted that the first sexual offence occurred after a recent release from jail, and he was intoxicated. The 2019 masturbation offence also occurred just after his release from jail and when using methylamphetamine. The 2020 offences also occurred after a release from jail and when intoxicated with methylamphetamine.[25]
[60] The prisoner's more recent offences related to his chronic substance abuse, poor self-regulation and difficulties in both intimate and non-intimate relationships. He struggles to establish stable domestic environments and has difficulty complying with community supervision rapidly returning to substance abuse. His more recent offences are disorganised and opportunistic.[26]
[61] Dr Arthur diagnoses the respondent is suffering from:
(a) Mixed cluster B personality disorder (with anti-social and borderline traits);
(b) Polysubstance abuse (particularly methylamphetamine); and
(c) Domestic/relationship instability.[27]
[62] Dr Arthur assessed the respondent on a number of risk assessment tools with the following results:[28]
(a) Static 99R-score of 7 in the "well above average risk" category;
(b) Psychopathy check list - score 20/40 which does not indicate the presence of a psychopathic personality; and
(c) Risk of Sexual Violence Protocol (RSVP) - identified a number of factors relevant to the future risk of sexual recidivism.
[63] His risk of sexual recidivism would escalate rapidly in the context of methylamphetamine intoxication, and he could offend soon after release from jail.[29]
[64] Any future offending is unlikely to result in serious physical harm but may cause significant psychological distress to the victims.[30]
[65] Ultimately Dr Arthur provided the following opinions:
(a) The risk of sexual recidivism was moderately high or above average.[31]
(b) Critical risk factors include his diagnosis, and his risk of sexual recidivism would escalate rapidly in the context of methamphetamine intoxication. Given that he has a history of a rapid return to substances, he could offend soon after his release from jail.[32]
(c) Any future offending is unlikely to result in serious physical harm but may cause significant psychological distress to victims, particularly when they are isolated or vulnerable such as being in a car, or their homes broken into.[33]
(d) A supervision order would reduce the risk of sexual recidivism to low.[34]
(e) It is his opinion a five-year supervision order would be sufficient to ensure he gained the most benefit from psychological treatment and had the opportunity to prove his capacity to maintain abstinence and develop a stable prosocial lifestyle.
[66] In oral evidence Dr Arthur told the court that:
(a) The respondent had difficulty regulating his emotions and his behaviour and chronic problems interacting with others. This was relevant to his criminal and sexual offending.
(b) The respondent has struggled with sexual preoccupation for most of his life.
(c) His substance abuse (methamphetamine and opiates) is associated with disinhibition which is relevant to the offending.
(d) With the index offences, he had used methylamphetamine and opiates and became sexually disinhibited and committed the sexual offences. The respondent denied a sexual intent.
(e) The risk in this case is that when the respondent is feeling bad and uses drugs he is sexually preoccupied and there is a risk of an opportunistic offence. He lacked insight into his own behaviour.
(f) The risk is of a sexual offence by a man who is intoxicated, disinhibited and sexually preoccupied. This may result in physical harm and certainly may result in significant fear of harm on the part of the victims.
[67] Ultimately, when I consider all of the evidence, I am satisfied there are reasonable grounds for believing the respondent is a serious danger to the community without the imposition of an order under division 3 of the Act.
[68] I consider there are reasonable grounds for believing there is an unacceptable risk the respondent will commit a serious sexual offence if released from custody or released from custody without a supervision order being made.
[69] In this case, the risk is sexually assaulting vulnerable women whilst intoxicated and sexually preoccupied which would cause significant psychological distress to the victims.
[70] For the reasons given I make the following orders:
[1] Dealt with on 5 February 2008. He received four years imprisonment with a parole eligibility date as at 25 August 2008. He has spent 223 days in pre-sentence custody.
[3] 16 entering or burglary offences aside from the ones dealt with in 2022.
[5] 7 breach of domestic violence order convictions.
[9] [2012] QSC 128; on appeal [2012] QCA 279.
[12] Defence submissions - affidavit of Ms Hunter page 61.
[13] Crown submissions - affidavit of Ms Hunter page 60.
[17] Kynuna v Attorney-General [2016] QCA 172 at [61].
[18] [2013] QSC 29 at [18].
[21] Attorney-General for the State of Queensland v Gibson [2017] QSC 102 at [21].
[22] [2018] QSC 202 at [9].
[23] [1990] HCA 26; (1990) 170 CLR 102 at p 116.
[24] Attorney-General v Fardon [2018] QCA 251; [2019] 2 Qd R 487 at [17].
[25] Report of Dr Arthur 24 November 2025 [251]-[252].
[26] Report of Dr Arthur 24 November 2025 [254].
[27] Report of Dr Arthur 24 November 2025 [257].
[28] Report of Dr Arthur 24 November 2025 [236]-[250].
[29] Report of Dr Arthur 24 November 2025 [257].
[30] Report of Dr Arthur 24 November 2025 [258].
[31] Report of Dr Arthur 24 November 2025 [256].
[32] Report of Dr Arthur 24 November 2025 [257].
[33] Report of Dr Arthur 24 November 2025 [258].
[34] Report of Dr Arthur 24 November 2025 [263].
Attorney-General for the State of Queensland
Penhaligon [2026] QSC 73
(1990) 170 CLR 102
(1990) 170 CLR 104