Attorney-General for the State of Queensland v Tiers [2020] QSC 135

CRIMINAL LAW - SENTENCE - SENTENCING ORDERS - ORDERS AND DECLARATIONS RELATING TO SERIOUS OR VIOLENT OFFENDERS OR DANGEROUS SEXUAL OFFENDERS - DANGEROUS SEXUAL OFFENDER - GENERALLY - where the respondent was subject to a continuing detention order made under the Dangerous Prisoners (Sexual Offenders) Act 2003 after having breached a previously imposed supervision order - where the continuing detention order was made because the supported accommodation that the respondent needed was not then available - where this is the first annual review of the continuing detention order - where the evidence, including recent expert reports, supports a finding, and the applicant acknowledges, that the supervisory process is able to manage the respondent's risk of committing a serious sexual offence and reduce it to an acceptable level - whether the respondent's release from custody on a supervision order would provide adequate protection to the community against the commission of a serious sexual offence

Dangerous Prisoners (Sexual Offenders) Act 2003 (Qld) s 13, s 27, s 30.

Attorney-General v Francis [2007] 1 Qd R 396; [2006] QCA 324, cited

Attorney-General v Lawrence [2010] 1 Qd R 505; [2009] QCA 136, cited

Attorney-General for the State of Queensland v Robinson [2017] QSC 332, cited

Attorney-General for the State of Queensland v Sutherland [2006] QSC 268, cited

Attorney-General for the State of Queensland v Tiers [2018] QSC 130, cited

Attorney-General for the State of Queensland v Tiers (No 2) [2018] QSC 229, cited

Turnbull v Attorney-General (Qld) [2015] QCA 54, cited

[1] The Attorney-General applied pursuant to s 27 of the Dangerous Prisoners (Sexual Offenders) Act 2003 (Qld) to review the continuing detention of the respondent.

[2] There is no contest that, having regard to the factors that must be considered, the respondent is a serious danger to the community in the absence of an order made pursuant to Division 3 of the Act. I am satisfied on the evidence before me that he is. As a result, the decision made on 3 December 2010 that he is a serious danger to the community in the absence of a Division 3 order ought to be affirmed.

[3] The issue is how the discretion conferred by s 30(3) of the Act should be exercised. Should the court order continuing detention or release the respondent from custody subject to a supervision order?

[4] I have had the benefit of expert opinion and thoughtful submissions. These include counsel for the applicant's submission that, notwithstanding the respondent's apparent hostility to the supervisory process and the likelihood of contraventions of that order because of his anti-social personality disorder, it appears that the supervisory process is able to manage "the respondent's risk of the commission of a serious sexual offence, reducing it to an acceptable level".

[5] The respondent is a 33 year old indigenous man.

[6] He lived on Palm Island until he was six years old and his parents split up. After that, he moved to Townsville with his mother and lived with her until he was 11. She moved away and the respondent stayed with other family members. When he was a child, the respondent's mother was a drinker and was violent.

[7] The respondent committed a single, very serious sexual offence in 2002, when he was aged 15. This is the only sexual offence he has committed. Therefore, there is no pattern of sexual offending. However, the index offence was an extremely serious one, and the respondent accepts that the evidence supports the finding that he is a serious danger to the community in the absence of a Division 3 order. The index offence was the violent rape of a four year old girl. At the time of the offence, the respondent had heavily abused alcohol and drugs. He also had been sniffing paint. The respondent was sentenced to eight and a half years' detention for the rape and concurrent terms for other offences which he had committed in 2002.

[8] The respondent has spent most of his adult life in custody. He became subject to orders under the Act in December 2010, when he was released subject to a supervision order which was due to expire on 8 November 2015. However, as a result of contraventions, he has been returned to custody. On 11 April 2016, Holmes CJ rescinded the supervision order to which he was then subject. In June 2017 the respondent was released from custody subject to a supervision order. However, he breached it and was returned to custody on 14 November 2017. Bowskill J ordered on 3 October 2018 that the supervision order made on 21 June 2017 be rescinded and the respondent be detained in custody for an indefinite term for control, care, or treatment.

[9] I am indebted to Bowskill J for her Honour's comprehensive analysis of matters as they stood in 2018. On 4 June 2018 Bowskill J had adjourned the contravention hearing to enable further investigations to be undertaken as to whether there was appropriate supported accommodation for the respondent.[1] When the matter came back for hearing, it was apparent that no such accommodation was available and the respondent, by his counsel, conceded that a continuing detention order should be made.

"On formal assessment of his cognitive functioning Mr Tiers' results indicated borderline (7th percentile) general intellectual ability (GIA) (consistent with previous reports).

Based upon his history and presentation it appears likely that Mr Tiers may suffer from a form of Foetal Alcohol Spectrum Disorder. However, at present his mother's alcohol use remains unconfirmed, and he requires assessment of facial features. In line with the diagnostic criteria Mr Tiers demonstrates impairment in at least three areas of neurodevelopment- behavioural regulation, affect regulation, memory, cognition and activities of daily living. He also presents with behavioural disturbances and an impaired ability to learn from consequences. Whilst it is a possibility that Mr Tiers suffers from FASD, it should also be considered that he has a complex history including a history of abuse, neglect, less than optimal home environment, limited education, chronic and ongoing substance abuse and extensive institutionalisation. All of these factors are also known to be related to reduced cognitive and neuropsychological functioning, and contribute to poor behavioural outcomes. As such whilst Foetal Alcohol Spectrum Disorder is a viable hypothesis given his history, any one of the other factors listed could also in part, or cumulatively, account for his behavioural and cognitive impairments. It is most likely that his deficits are a result of a combination of these factors in addition to potential prenatal alcohol exposure.

It should also be considered that Mr Tiers has had a significant period of incarceration since 16 years old, with minimal time spent in the community. His extended incarceration has precluded him from opportunities to develop everyday living skills/adaptive functioning skills, and has impacted upon his general social, cognitive, emotional and interpersonal development. From collateral reports he has consistently demonstrated that he struggles to organise himself in the community, is impulsive, engages in inappropriate behaviours and rapidly returns to substance abuse. His presentation very much reflects a highly institutionalised young man who will struggle to cope in the community. Despite ongoing psychotherapy he reported having difficulties with anxiety, managing negative emotions, a lack of tolerance for crowds, difficulties socialising, inability to manage money and difficulties initiating or maintaining functional/pro-social relationships. Additionally he has an antisocial personality structure which has been dominated by defiance, boundary pushing and repeated rule breaking. Finally and of most relevance he struggles to maintain abstinence from substances, and uses substances as a way to cope with interpersonal stressors, boredom, and negative emotions (ie feelings of abandonment, rejection, guilt). In my opinion the extent of this man's institutionalisation and personality features form a core reason for his continued failures upon release.

As discussed it would be reasonable to hypothesise that Mr Tiers was exposed to alcohol in the prenatal period. He demonstrates borderline general intellectual/reasoning ability and associated difficulties in verbal cognitive skills and deficits in memory and aspects of executive functions, which is congruent with a cognitive profiles seen in FASD. He presents with a myriad of behavioural, emotional and self-regulation difficulties, which appear to have been exacerbated and reinforced by ongoing substance abuse, personality vulnerabilities and extended incarceration. Based upon his history he fails to learn from experience and has repeatedly engaged in similar behaviours despite psychological intervention. On a positive note Mr Tiers does present with a level of preserved cognitive functions, and he appears motivated to want to return to the community given his engagement in a new relationship.

In my opinion based upon his history and cognitive assessment results this man will continue to struggle if released to the community (ie precinct) in the same manner as previous occasions. If this man was to be re-released to a supervision order I would strongly recommend that he be engaged with a support organisation (ie NGO) and if possible be placed in a supported living environment. Whilst the precinct is supervised it is not inherently structured and this man benefits from and requires structure. When released previously Mr Tiers has had access to a high amount of unstructured time, yet he lacks the capacity to organise his time adequately. This results in him associating with other offenders, becoming bored and remaining idle. Supported accommodation or support from a non-government organisation would assist Mr Tiers to engage in pro-social activities, to avoid boredom and idleness, and assist him to develop everyday living skills to cope with the demands of community living (ie use of public transport, budgeting, shopping). This would be particularly important in assisting Mr Tiers to manage boredom and negative emotions in the early stage of release, when he is on stage 1 curfew. Mr Tiers would benefit from being involved in an organised activity or work involving manual skills. This is a man who needs to be scaffolded in almost every respect and it would require an integrated effort between an NGO, Corrective Services and his treating psychologist.

If Mr Tiers was to be detained for a further period I would recommend that he recommence psychological intervention. This therapy should focus on managing his antisocial personality and treatment for his substance abuse. Additionally, therapy should focus in repetition of information and skills provided. Given his memory deficits, Mr Tiers appears to have a good ability to parrot back information without assimilating the information. As such it may appear that he is able to take in information and progress in therapy, yet his ability to actually assimilate and apply knowledge is limited. Additionally, therapy should also focus on how to transfer skills from the controlled environment of custody to a less structured and controlled environment. Ideally this man needs a graded transition whereby intensive supports are required initially to allow stabilisation in the community and skill development with a reduction in supports as he demonstrates an increased ability to cope.

Finally Mr Tiers would benefit from psychiatric review with respect to medication to assist him to manage generalised stress and anxiety. Given Mr Tiers' history and extended incarceration it is likely that he will have a more sensitive stress arousal response, and thus is more likely to feel emotionally distressed or dysregulated in response to stressors. Mr Tiers reports suffering from feeling stressed and anxious when in [the] community and struggles to manage negative emotions effectively. He also uses substances or non-described medications to down regulate his emotions. Mr Tiers has been prescribed psychiatric medication in the past (and presumably currently) which he reported gaining some benefit, however, he has not maintained compliance on a consistent basis. I wonder whether if he was commenced on a psychiatric medication that would down regulate his arousal response, and if his compliance was monitored whether he may manage his mood difficulties better. Compliance with medication should be made a condition of any potential release, as this may in part reduce his drive to access non-prescribed medications. Finally Mr Tiers reported ongoing difficulties with addiction to opiates or synthetic opiates. If he is to be considered for release to the community in the future, I would recommend review to determine if an Opiate Replacement Program may be of benefit."

[11] Dr Harden's report dated 14 May 2020 diagnoses the respondent with antisocial personality disorder and says that he has previously met the criteria for alcohol, marijuana, inhalant and opiate abuse. Dr Harden reports that the respondent has borderline or low average cognitive function overall, and that he would meet the criteria for foetal alcohol spectrum disorder.

[12] Dr Timmins' report dated 5 April 2020 diagnoses the respondent as having a mixed personality disorder with anti-social and narcissistic traits. He also meets the diagnostic criteria for substance abuse and dependence.

[13] Because of the respondent's complex history and reduced cognitive functioning, it is unsurprising that he engages in seemingly impulsive and inappropriate behaviour. Nor is it surprising that he is prone, when not gainfully occupied, appropriately accommodated and suitably supported, to engage in substance abuse, and that his risk of general criminal offending is assessed by Dr Harden to be high.

[14] The respondent completed the low intensity substance intervention course in late March 2020.

[15] On 4 April 2020, the respondent commenced the medium intensity substance intervention program. He has yet to complete this course, and it has been suspended due to COVID-19.

[16] The respondent has been seeing a psychologist, Dr Madsen, whilst in custody.

Dr Madsen initially saw the respondent on 19 November 2019. The respondent has had six subsequent treatment sessions with Dr Madsen.

[17] The respondent admitted to Dr Madsen that substance abuse had been "a problem for him". He thought he was, probably, drug addicted. He recognised that this had contributed to his return to custody whilst under the supervision order. He used drugs to manage the boredom of custody. He had demonstrated impulsive behaviour, even behaviour that had a high likelihood of negative consequences for him. He had, intermittently, used illicit substances, failing numerous drug tests in custody.

[18] Dr Madsen noted that while the respondent has not reoffended sexually during his time on release on supervisions orders, he had threatened to abscond, used drugs and violated conditions through the use of social media and the internet. In custody, he has continued to struggle with complying with rules and engaged in substance misuse.

[19] Dr Madsen considered the respondent presents with "many of the typical characteristics of individuals with Antisocial Personality Disorder, including impulsivity, a tendency to be defiant, a sense of entitlement, a resistance to rules and obviously, substance misuse." The respondent is, according to Dr Madsen, predisposed to struggle with compliance. He has a tendency to be self-sabotaging, due to the boredom which he experiences. The respondent struggles to tolerate boredom which leads to an increased risk of engaging in impulsive behaviours.

[20] The fact that the respondent's behaviour in custody has not been good, that he continues to struggle with substance abuse in custody and has failed various drug tests, is a matter of great concern. It underpins Dr Timmins' view that he should be required to have a further 12 month period in custody during which he shows that he is able to control himself and not use drugs in a custodial setting before being released from custody. Dr Timmins' understandable rationale is that if he can do this he may have a better chance of translating that behaviour into the community.

[22] Once a continuing detention order has been made under Division 3 of the Act, the Attorney-General must apply within the times prescribed by s 27 of the Act for a review of that order to be carried out. There is no minimum time that must elapse before an application for review can be made. Arrangements must be made for the respondent to be examined by two psychiatrists unless the court otherwise orders.[3]

[23] On a review hearing, the Court must have regard to the required matters, which include those matters mentioned in s 13(4) of the Act.

[24] Like s 13 of the Act, s 30 involves a two stage process. First, the court must be satisfied, by acceptable cogent evidence and to a high degree of probability, that the previous decision that the prisoner is a serious danger to the community in the absence of a Division 3 order ought be affirmed.

[25] Second, if the decision is affirmed, the court then has a discretion under s 30(3) to determine whether the respondent should remain to be subject to the continuing detention order or be released from custody subject to a supervision order. The paramount consideration is the need to ensure adequate protection of the community.[4] If the court declines to order continuing detention, then it must rescind the continuing detention order.[5]

[26] A continuing detention order should only be made where the Attorney-General proves that the community cannot be adequately protected by a supervision order.[6]

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

"If supervision of the prisoner is apt to ensure adequate protection, having regard to the risk to the community posed by the prisoner, then an order for supervised release should, in principle, be preferred to a continuing detention order on the basis that the intrusions of the Act upon the liberty of the subject are exceptional, and the liberty of the subject should be constrained to no greater extent than is warranted by the statute which authorised such constraint."[8]

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

"The Attorney-General must prove more than a risk of re-offending should the prisoner be released, albeit under a supervision order. As was also observed in Francis, a supervision order need not be risk free, for otherwise such orders would never be made. What must be proved is that the community cannot be adequately protected by a supervision order. Adequate protection is a relative concept. It involves the same notion which is within the expression 'unacceptable risk' within s 13(2). In each way the statute recognises that some risk can be acceptable consistently with the adequate protection of the community."[9]

[30] While there is a preference for a supervision order to be made over a continuing detention order,[10] a supervision order must be sufficient to provide adequate protection of the community. In Turnbull v Attorney-General (Qld), Morrison JA observed:

"When a court is assessing whether a supervision order can reasonably and practically manage the adequate protection of the community, it is necessarily assessing the protection the order can provide against that risk. Before making the order the court has to reach a positive conclusion that the supervision order will provide the adequate protection."[11]

[31] The mere fact that a respondent may, in the future, breach a supervision order in a fashion which may demonstrate an escalation of risk does not preclude a supervision order being made. In Attorney-General for the State of Queensland v Robinson, Jackson J observed:

"In my view, it is important to keep in view that the only relevant question is the risk of the respondent committing a serious sexual offence. If the respondent's contrariness causes him to contravene conditions of his supervision order, and that leads to both proceedings against him for an offence of contravening the order and tighter surveillance and more trouble for QCS officers, those are prices to be paid for being subject to and costs of administering the DPSOA system but, in my view, that does not necessarily reflect an increased risk of the respondent committing a serious sexual offence."[12]

For example, the use of alcohol or drugs or other contraventions of the order may signal some escalation in risk. If, however, the supervision order will, nevertheless, operate to effectively prevent that escalation in risk reaching an unacceptable level, then a supervision order may be made. It is the risk of the commission of a serious sexual offence, not the risk of contravention of the order or the commission of some other offence, that must be assessed and managed.

The respondent's antecedents and whether there is any pattern of offending behaviour on his part

[32] I have referred to the applicant's antecedents. His most serious criminal offence occurred 18 years ago when he was 15 and heavily intoxicated. It was the violent rape of a four year old girl. It is the only sexual offence he has committed. There is no pattern of sexual offending.

[33] Dr Harden has provided a risk assessment report dated 14 May 2020. Dr Harden assessed the respondent on 25 September 2009, 13 January 2012, 21 December 2012 and 17 March 2020, and has previously provided risk assessment reports regarding the respondent in 2009 and 2012.

[34] Dr Timmins has provided a risk assessment report dated 5 April 2020. Dr Timmins interviewed the respondent on 3 March 2020.

[35] The respondent's treating psychologist Dr Madsen has provided a progress report dated 27 February 2020. Dr Madsen has treated the respondent previously.

[36] Dr Harden applied a number of risk assessment instruments.

[37] On the STATIC-99R, the respondent achieved his score of 7, which placed him in the high risk category, relative to other male sex offenders. Dr Harden considered that, based on a review of other factors, the STATIC-99 represented the respondent's risk at this time.

[38] On the Stable 2007, the respondent achieved a score of 13/26, which placed him in the high needs group in terms of sexual offender's dynamic risk. The instrument identified the need for future intervention in the areas of significant social influences, capacity for relationship stability, impulsiveness, poor problem-solving skills and cooperation with supervision. Dr Harden considered that many of these needs are ongoing and ought be a focus for therapeutic intervention.

[39] On the Hare Psychopathy Checklist, the respondent achieved a score of 22/40, which was not elevated.

[40] On the SVR-20, the respondent was found to be in the moderate risk category.

[41] Dr Harden considered that the respondent met the diagnostic criteria for antisocial personality disorder. He has previously met the diagnostic criteria for alcohol abuse, marijuana abuse, inhalant abuse and opiate abuse. There is no clear evidence of physical dependence. There may be a psychological dependence.

[42] Dr Harden considered the respondent has borderline or low average cognitive function. Dr Harden noted that the possibility of foetal alcohol spectrum disorder had been raised, but this was said to add little as there was no specific pattern of cognitive deficits associated with alcohol use in pregnancy and the deficits have been otherwise described in neuropsychological testing. Dr Harden noted it may be possible for the respondent to access the National Disability Insurance Scheme where he might meet the criteria for this disorder. Dr Harden considered that inside the formal diagnostic schemes the respondent's condition "would be classified as some kind of cognitive disorder related to alcohol exposure as a teratogen."

[43] Having considered the actuarial and dynamic factors, Dr Harden assessed the respondent's risk of future sexual reoffending as moderate. He also records that "[t]here has been some significant decline in risk of sexual offending in the 18 years since his only offence".

[49] Dr Timmins also administered a number of risk assessment instruments.

[50] On the Psychopathy Checklist, the respondent achieved a score out of 27/40, which suggests psychopathic personality traits.

[51] On the STATIC-99R, the respondent achieved a score of 6, which placed him in the well above average or high risk group for reoffending.

[52] On the Risk for Sexual Violence Protocol, Dr Timmins considered the respondent had positive scores for the following:

• physical coercion in sexual violence;
• problems with self-awareness;
• problems with stress or coping;
• problems resulting from child abuse;
• problems with substance abuse;
• problems with intimate relationships;
• problems with non-intimate relationships;
• non-sexual criminality;
• problems with employment;
• problems with planning;
• problems with treatment; and
• problems with supervision.

[53] Dr Timmins considered the respondent had possible scores for the following:

• extreme minimisation or denial of sexual violence;
• attitudes that support or condone sexual violence;
• sexual deviance; and
• psychopathic personality disorder.

[54] Dr Timmins noted that the respondent does not have a sexual paraphilia. Although he has an "interest in sadistic behaviours towards sexual partners", a diagnosis of sexual sadism would require more evidence. Dr Timmins also noted that there was some material that was suggestive of a paraphilic interest but this could not be confirmed.

[55] Dr Timmins assessed the respondent as having mixed personality disorder with antisocial and narcissistic traits. He also met the diagnosis of polysubstance abuse and dependence.

[56] Dr Timmins considered the respondent has a number of problematic personality traits with a substance dependence which raised the risk of sexual reoffending. These issues, coupled with a history of difficulty in managing emotions, sexual preoccupation and breach of orders, combined to form a relatively high risk the respondent will sexually reoffend against a young child. The respondent has poor insight "beyond a simple intellectual ability to verbalise these connections".

[66] Dr Madsen, who has been seeing and treating the respondent in recent months, provided the following report as to risk:

"As regards to risk, when considering only dynamic or 'changeable' factors related to sexual risk, it is clear that Mr Tiers presents with many problematic characteristics at this time. I have evaluated the following stable factors (i.e. slow changing) over the preceding six months, this is presented below:

1. Supervision/Treatment Compliance: Mr Tiers has struggled with complying with prison rules as evidence the adverse incidents. On a positive though is that he had appeared willing to engage in treatment, completed a group based substance abuse program and verbalises a recognition of a need to change and be different.
2. Sexual Deviancy: There is no evidence Mr Tiers having deviant fantasies/interests.

1. Sexual Preoccupation/drive: There is no evidence that Mr Tiers is having or has had in the current review period excessive sexual thoughts or behaviours.

1. Emotional Coping Ability: Mr Tiers' documented institutional behaviour and self-report suggests that he is prone to occasionally struggle with feeling hostility and be prone to ruminate on slights and grievances.
2. Relationships: Mr Tiers has little practical emotional support outside of custody. In custody he reports little emotional or social support.
3. Impulsivity: Mr Tiers in the preceding 6 months has demonstrated impulsive behaviour that has had a high likelihood of negative consequences to himself.
4. Substance Abuse: Mr Tiers reports intermittent illicit drug use and has also failed numerous drug tests in custody.
5. Mental Health: At this time there is no evidence that Mr Tiers is suffering from a mental health problem.

In sum, at this time Mr Tiers presents with a number of concerns which represent cause for concern. A positive though has been that he has engaged with me, has recently completed a substance abuse program and volunteered to complete a further one. He seems to have some insight to his need to cease drug use and also comply with the rules of the prison."

[67] As noted, Dr Madsen reports that whilst the respondent has not reoffended sexually since being placed on an order in 2010, he has "struggled to comply with his conditions". As a result, he has spent very little time in the community and has been returned to custody on numerous occasions for a range of breaches. He has used drugs and violated conditions related to use of social media. Even since his return to custody, he has continued to struggle to comply with rules and has also engaged in substance abuse.

[68] Dr Madsen reports that the respondent "presents with many of the typical characteristics of individuals with Antisocial Personality Disorder (ASPD), including impulsivity, a tendency to be defiant, a sense of entitlement, a resistance to rules and obviously, substance misuse." He continues:

"This suggests that he will be predisposed, to-a-degree, to struggle with compliance and have a tendency to be 'self-sabotaging' (i.e. make poorly thought through decisions that he later regrets etc.). A likely maintaining factor at this time to some of his problematic behaviours appear to be contextual in nature. Since being returned to custody Mr Tiers has participated in very few structured activities, and seems to spend most of his time associating with other offenders. These circumstances mean that he is exposed to antisocial attitudes that likely justify (and reinforce) his non-compliance, whilst also providing opportunities to regularly access illicit substances. Furthermore, because of his circumstances Mr Tiers experiences boredom which he struggles to tolerate, a psychological state that then leads to an increased risk of engaging in impulsive behaviours."

[69] Dr Madsen provides the following helpful summary as regards the issue of risk:

"Finally, as regard to the issue of risk, it is important to recognize that Mr Tiers has only episode of sexual reoffending, this occurring when he was 15 years old. He served an eight-year sentence for this offence, and in 2010 was placed on a supervision order under section 13 of the Dangerous Prisoners (Sexual Offenders) Act 2003. He, of course, has a fairly extensive general criminal history, and all of his problems in the community whilst under the DPSOA have related to noncompliance with rules and general antisocial behaviour, and not actual sexual offending. It is my opinion that Mr Tiers presentation and history identify him as a life-course generalist antisocial offender, rather than a specialist sexual offender. In other words, Mr Tiers is most at-risk of engaging in general criminal behaviour, noncompliance with conditions and be self-sabotaging generally speaking, than he is of specifically sexually re-offending."

Detention or supervision: the parties' submissions

[70] Importantly, the relevant risk for the purpose of my decision is the risk of the respondent committing a "serious sexual offence", not the risk of a less serious sexual offence or the respondent's high risk of engaging in criminal behaviour in general. The Schedule to the Act defines a "serious sexual offence" as "an offence of a sexual nature, whether committed in Queensland or outside Queensland - involving violence; or against children."

[71] The applicant makes the following submissions:

"76. The respondent has not committed a serious sexual offence since 2002. Dr Madsen and Dr Harden do not perceive that the respondent suffers from any sexual paraphilia. Dr Timmins is not so certain.

1. The respondent's antisocial personality disorder has and will continue to make him a difficult person to supervise. He disregards rules and has no apparent interest in complying with a supervision order. This is evidenced by his multiple contraventions since first admitted to an order in 2010. There is little evidence that the respondent's attitude towards supervision has changed.
2. This notwithstanding, the risk that is to be managed is that of the commission of a serious sexual offence. To this end, the supervision order that was in place up until October 2010 appeared to achieve the outcome of preventing such an offence being committed by the respondent, notwithstanding his multiple contraventions. Unless it is demonstrated that the contraventions lead to an increased risk of the commission of a serious sexual offence that will not be detected by the supervisory process, such possible contraventions have a lesser role to play in the exercise of any discretion as to what order, under s.30(3) of the Act, ought be made. Further it is the risk of the commission of a serious sexual offence, as defined, that is to be considered when the discretion is exercised, not the risk of general offending or of contravening unless it is relevant to the risk to be assessed. In this regard the observations of Dr Madsen... are apposite.
3. Dr Timmins, in her report, identified a need for the respondent to spend 12 months in custody showing he can manage his drug use and his temper. Dr Timmins identified the need to exercise control, which may be better translated into the community setting. Dr Timmins is addressing the questions of contravention, rather than the risk that is required to be managed under the Act, that is the risk of the commission of a serious sexual offence. To that end, Dr Timmins has noted that the supervision order has "assisted" the respondent in not committing any further sexual offences. Whilst there appears to be an increase in the respondent's breaching of his order in the community, it does not appear that those breaches directly translate to an increased and immediate risk of the commission of a relevant offence.
4. Dr Harden concedes that non-compliance of supervision is "likely". This is due to his antisocial personality disorder, poor problem solving and substance use problems.

[72] The respondent makes the following submissions:

"46. The risk the respondent was deemed to present when made subject to continuing detention orders following contravention proceedings in 2016 and 2018 was informed by a perception that he had an increasing sexual preoccupation.

1. The respondent was detained on a continuing detention order by order of Holmes CJ on 11 April 2016, following a contravention of a supervision order in November 2015. Her Honour the Chief Justice noted that:

'What has changed the nature of the risk entailed, as compared with what ... faced the Court on those earlier breaches, is the recent evidence of sexual preoccupation.'

1. The respondent was detained on a continuing detention order by order of Bowskill J on 3 October 2018, following his arrest for contraventions of a supervision order in November 2017. On at least the report of Dr Beech, at that time, the respondent had a 'continuing sexual preoccupation'.
2. The respondent is not currently assessed as being sexually preoccupied.
3. The respondent has been detained in custody in part to facilitate his rehabilitation, and he has engaged in the alcohol and drug treatment programs and psychological treatment that he has been offered access to.
4. While the respondent's institutionalisation, personality disorder and substance abuse problems make compliance with the strictures of supervision difficult for him, he has been detained in custody since November 2017 and the consequences of contravening an order in his circumstances is not lost on him.
5. It is also relevant that on the contravention application determined by Bowskill J on 3 October 2018, resulting in a continuing detention order, the applicant sought that the respondent's supervision order be rescinded and a continuing detention order be made. Further, the respondent conceded that in the circumstances such an order would be made.
6. On this application, the respondent seeks release on a supervision order and the applicant supports the respondent's release on a supervision order." (footnotes omitted, emphasis in original)

[73] The respondent agrees with the applicant's submissions as to a suggestion that the respondent be required to demonstrate that he can be drug and violence free for 12 months in custody before being released to a supervision order. As the applicant submits, this goes to the question of contravention, rather than the risk that is required to be managed under the Act, namely the risk of the commission of a serious sexual offence. However, I would not regard Dr Timmins' opinion as misplaced since it can be argued that unless the respondent can demonstrate some prospect of remaining drug free in the community and of complying with the conditions of a supervision order, the supervision order inevitably will be breached. If there is no real prospect of the respondent being able to comply with a supervision order, then making one simply sets him up for failure and, in the event that contravention proceedings are commenced, he will be returned to custody.

[74] The same or similar issues which confronted Bowskill J in 2018 confront me. The contravention hearing was adjourned on 4 June 2018, and there were various reviews during 2018. Ultimately, on 3 October 2018 a continuing detention order was made because the supported accommodation that the respondent needed was not then available.

[75] The respondent had a highly prejudiced early childhood. There is every indication that he suffers from foetal alcohol syndrome disorder. His descent into alcohol abuse and substance abuse as a child was, unfortunately, all too predictable. That his descent into crime and substance abuse as a child led to the violent rape of a four year old when the respondent was himself a child and heavily intoxicated is an absolute tragedy for his victim. It was a tragic result of the respondent's history of abuse, neglect, poor home environment, limited education and substance abuse.

[76] An individual with the respondent's complex problems and reduced cognitive functioning, which contribute to poor behaviour, should not be kept in prison for years on end under continuing detention orders simply because the government refuses to provide the supported accommodation and resources that are required in the community to safely secure and support such an individual, and thereby protect the community from bad behaviour, predictable general criminal behaviour and the risk of sexual offences.

[77] I echo, with great respect, what was said by Bowskill J on 3 October 2018:

"I will record that the attempts of all involved in this case, the legal representatives for Mr Tiers, the legal representatives for the Attorney-General, and the court, has been to try to provide sufficient time for investigations to be undertaken so that something appropriate to support Mr Tiers to be released into the community on a supervision order could be put in place. As it turns out, the matter has been adjourned on a number of occasions and that has not been able to come to fruition. It is most unfortunate; and it is a matter that as a community and as a society is something for which a solution needs to be found. But it is not a solution that this court can find on the basis of the current material before it. It is a solution that has to come, I would respectfully suggest, from government in terms of the provision of support and resources for people who find themselves in a situation such as Mr Tiers."[13]

[78] Dr Andrews' report from April 2018 remains relevant. It described Mr Tiers as "a man who needs to be scaffolded in almost every respect and it will require an integrated effort between an NGO, Corrective Services and his treating psychologist." In advance of the hearing listed for 25 May 2020, I inquired of the parties as to what "scaffolding" had been designed in the event the respondent was released on a supervision order and whether such scaffolding was available.

[79] In response, the respondent made the following submissions:

"55. The respondent understands that Corrective Services propose to house the respondent in the contingency accommodation at the Townsville precinct if he is released to a supervision order. The respondent understands Corrective Services will continue to make psychological treatment available to the respondent. The respondent will not know the details of these matters until an affidavit addressing them is filed by the applicant.

1. It is apparent from the IOMS entries between 28 January 2020 to 29 April 2020 (which may not be before the court yet), that the respondent has been referred to the NDIS - an entry on

At the request of the QCS NDIS Principal Project Officer sat with prisoner again and explained the NDIS. Prisoner advised he is happy for Brisbane to proceed with his application and provided some interim goals to commence the application.

1. A further entry on 27 April 2020 notes that 'Tiers has been referred to the NDIS on the 17 January 2020'.
2. It is not known where that NDIS referral is currently at in terms of progression.
3. In terms of the concept of scaffolding, it is the respondent's understanding that the supports currently in place for the respondent consist of:

(a) the respondent's engagement in rehabilitation and psychological treatment while in custody;

(b) the respondent's intention to continue to engage in the treatment and programs offered to him if he released on a supervision order, consistent with the recommendations of Dr Harden;

(c) the monitoring and management of the respondent effected by the supervision order.

1. While these measures may not provide the degree of wrap around support that the respondent may ideally benefit from, or be sufficient to mitigate the effects of his adverse childhood, personality problems, institutionalisation and substance abuse problems, on the relevant evidence, these supports are sufficient to adequately offset the risk of the respondent committing a serious sexual offence."

The authorities' proposed accommodation and support

[80] Justice Bowskill ordered the detention of the respondent in custody for control, care or treatment on 3 October 2018. The final hearing of that contravention proceeding was delayed and took place almost a year after the respondent was detained in custody on 14 November 2017 for an alleged breach of his supervision order. During that time attempts were made to find suitable, supported accommodation that it was obvious the respondent needed because of his cognitive impairments and complex behavioural problems.

[81] This "annual review" hearing occurred more than 18 months after the detention order made by Bowskill J.

[82] The authorities charged with the respondent's control, care and treatment have had a further 18 months to heed Justice Bowskill's judgment about the need to provide supported accommodation for the respondent and, more importantly, to do something about it.

[83] The applicant's written submissions dated 19 May 2020 addressed many matters, and did so very helpfully. This included reference to recent medical reports which confirmed that the respondent requires a high degree of support and, as Dr Harden says, "a more activity structured week with limited idle time". The submissions did not, descend to any detail about the accommodation and support which would be available for the respondent in the event that he was released to a supervision order following the hearing. On Friday, 22 May 2020, the working day before the hearing of this matter, an affidavit was sworn by the Acting Manager - Operations of the High Risk Offender Management Unit within Queensland Corrective Services about that matter.

[84] It must have been obvious, even to anyone with only a slight familiarity with the respondent's case, that the contingency accommodation offered by the QCS for sex offenders at Wacol, Rockhampton and Townsville is not a suitable place of accommodation for the respondent for more than a very short time. His history of contraventions demonstrates this. No-one suggests that it provides the type of accommodation which the legal representatives of the parties attempted to find, without success, in 2018.

[85] If the respondent resorted, on occasions, to illicit drugs whilst in custody because of poor cognitive understanding about the consequences of doing so and boredom, then it is entirely predictable that he will do the same in contingency accommodation and thereby contravene any supervision order. The contravention of a supervision order does not, and should not, necessarily result in the initiation of contravention proceedings. It is difficult, however, to see how the authorities could tolerate repeated substance abuse by the respondent. Yet this is in prospect if he is accommodated in contingency accommodation without adequate support and without a structured life which reduces "idle time".

[100] Because of the continuing absence of suitable, supportive accommodation of the kind the respondent needed in 2018, and still needs, and despite the submissions of both parties which supported the making of a supervision order, I considered adjourning the application to allow some time to ascertain the outcome of the respondent's NDIS application. I raised this matter at the hearing, but was persuaded to make a supervision order on 25 May 2020. This is because the evidence supports the following findings:

1. There has been a significant decline in the risk of sexual offending in the 18 years since the respondent's only sexual offence;
2. Absent a supervision order, the respondent represents a moderate future risk of sexual offending, but a supervision order will reduce that risk to the low range. I accept Dr Harden's assessment in that regard. There is no satisfactory evidence that the respondent currently has a continuing sexual preoccupation.
3. The respondent's personality disorder, his impaired neurodevelopment and his poorly developed life skills and adaptive functioning skills make it likely that he will contravene some of the requirements of his supervision order. However, the relevant inquiry is not whether he is likely to contravene a supervision order, the conditions of which are designed to identify matters that may elevate his risk of committing a serious sexual offence and more generally control his behaviour. The issue is whether the protection of the community is adequately ensured by a supervision order.
4. Supervision orders have been effective over the last 10 years to ensure that the respondent has not committed another serious sexual offence.
5. The respondent will be released to the contingency accommodation at Townsville where he will be in a position to be closely monitored, with controls upon his movement and testing for illicit drug use.

[101] I accept the Attorney-General's submission that, notwithstanding the respondent's apparent hostility to the supervisory process and the likelihood of contraventions of an order because of his anti-social personality disorder, it appears that the supervisory process is able to manage the respondent's risk of the commission of a serious sexual offence, reducing it to an acceptable level.

[102] I repeat, an individual with the respondent's complex problems and reduced cognitive functioning, which contribute to poor behaviour, should not be kept in prison for years on end under continuing detention orders simply because the government refuses to provide the supported accommodation and resources that are required in the community to safely secure and support such an individual, and thereby protect the community from bad behaviour, predictable general criminal behaviour and the risk of sexual offences.

[1] Attorney-General for the State of Queensland v Tiers [2018] QSC 130.

[2] Attorney-General for the State of Queensland v Tiers (No 2) [2018] QSC 229.

[6] Attorney-General v Lawrence [2009] QCA 136; [2010] 1 Qd R 505 at 512; Attorney-General for the State of Queensland v Sutherland [2006] QSC 268 at [27].

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

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

[9] [2006] QSC 268 at [29] (footnotes omitted, emphasis in original).

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

[11] [2015] QCA 54 at [36].

[12] [2017] QSC 332 at [62].

[13] Attorney-General for the State of Queensland v Tiers (No 2) [2018] QSC 229 at [9] (emphasis added).