Attorney-General of Queensland v. Yeo [2008] QCA 115 (16 May 2008)

SUPREME COURT OF QUEENSLAND

CITATION: Attorney-General (Qld) v Yeo [2008] QCA 115

PARTIES: ATTORNEY-GENERAL OF QUEENSLAND (applicant/appellant) v RAYMOND YEO / (respondent/respondent)

FILE NO/S: Appeal No 9693 of 2007 / SC No 9323 of 2005

DIVISION: Court of Appeal

PROCEEDING: General Civil Appeal

ORIGINATING COURT: Supreme Court at Brisbane

DELIVERED ON: 16 May 2008

DELIVERED AT: Brisbane

HEARING DATE: 23 April 2008

JUDGES: Keane and Holmes JJA and White J / Separate reasons for judgment of each member of the Court, each concurring as to the order made

ORDER: Appeal dismissed

CATCHWORDS: APPEAL AND NEW TRIAL – APPEAL – GENERAL PRINCIPLES – INTERFERENCE WITH DISCRETION OF COURT BELOW – IN GENERAL – FAILURE TO EXERCISE DISCRETION – where the respondent was the subject of a continuing detention order under Div 3 of the Dangerous Prisoners (Sexual Offenders) Act 2003 (Qld) – where the continuing detention order was reviewed in accordance with s27 of the Act – where the primary judge on review rescinded the continuing detention order and made orders for the supervised release of the respondent – whether the conclusion that the risk posed by the respondent to the community could be adequately met by the supervised release of the respondent on the conditions imposed was one that was reasonably open to the primary judge on the evidence / APPEAL AND NEW TRIAL – APPEAL – GENERAL PRINCIPLES – RIGHT OF APPEAL – WHEN APPEAL LIES – ERROR OF LAW – PARTICULAR CASES INVOLVING ERROR OF LAW – FAILURE TO GIVE REASONS FOR DECISION – ADEQUACY OF REASONS – where the primary judge was obliged under the legislation to give detailed reasons for the making of a supervision order in preference to a continuing detention order – whether the reasons given by the primary judge were adequate / Dangerous Prisoners (Sexual Offenders) Act 2003 (Qld), s 13, s17, s 27, s 29 / Attorney-General (Qld) v Francis [2007] 1 Qd R 396; [2006] QCA 324, applied / Camden & Anor v McKenzie & Ors [2007] QCA 136, considered / House v The King (1936) 55 CLR 499; [1936] HCA 40, considered

COUNSEL: P J Davis SC, with J M Horton, for the appellant / P E Smith for the respondent

SOLICITORS: Crown Law for the appellant / Legal Aid Queensland for the respondent

KEANE JA: On 3 April 2006 Philippides J made an order for the continuing detention of the respondent in custody under Div 3 of the Dangerous Prisoners (Sexual Offenders) Act 2003 (Qld) ("the Act"). An appeal to this Court against that order was dismissed.¹

In 2007 the continuing detention order was required to be reviewed pursuant to s 27 of the Act. Upon that review, Mullins J, while affirming that the respondent is a serious danger to the community in the absence of an order pursuant to Div 3 of the Act, rescinded the continuing detention order and made orders for the release of the respondent under supervision. Her Honour concluded that "adequate protection of the community can be ensured by the release of the respondent on an appropriately stringent supervision order for a period of 10 years".²

The Attorney-General appeals against the orders of Mullins J. The submission made on behalf of the Attorney-General is essentially that the decision of the learned primary judge was so "unreasonable or plainly unjust" that this Court "may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance."³

I propose to summarise the evidence which led to the making of the continuing detention order in April 2006. I will then summarise the evidence put before Mullins J on the review proceedings and her Honour's reasons for concluding that the continuing detention of the respondent was no longer required to ensure adequate protection of the community. I will then discuss the arguments agitated on the appeal.

The continuing detention order

The respondent is now 62 years of age. He left school at the age of 14. He has never married and his personal relationships with women have been unstable. When he was in his late 40s he began to engage in homosexual paedophilia. The pattern of the respondent's sexual offending involved his creation of occasions of domestic intimacy in which he would then act impulsively upon his proclivities. The history of his sexual offending was summarised by Philippides J:

"… [In] December 1993 … the respondent committed the first of the sexual offences of which he was convicted. That offence was carnal knowledge by anal intercourse of a person not an adult. The offence was committed on a 16 year old boy with intellectual disabilities, whom the respondent had requested assist him clean up a rural property. The boy had gone to sleep on the respondent's bed when the offence occurred. The respondent was convicted of that offence on 8 November 1995, on a retrial following a successful appeal against conviction. He was sentenced on 17 November 1995 to 3years' imprisonment.

Between 19 June and 3 October 1999, the respondent committed 13 sexual offences, in respect of which he was convicted by a jury on 5 April 2001. The respondent unsuccessfully appealed against those convictions. The offences concerned 9 counts of indecent dealing (with circumstances of aggravation), 2 counts of wilfully and unlawfully exposing a child under 16 to indecent acts (with a circumstance of aggravation) and two counts of unlawfully permitting himself to be indecently dealt with by a child under the age of 16 (with a circumstance of aggravation). The victims were two boys, 9 and 11 years old, both of whom were seriously adversely affected. The offending behaviour occurred over a period of about 4months. The respondent had been sharing a house with a Mr R. The children also resided at the house. The respondent gave the boys cigarettes and money. The indecent dealing included acts of touching the boys' penis, oral sex, anal digital penetration, requiring each boy on separate occasions to lie naked on the respondent and forcing them to touch the respondent's penis. Concurrent sentences of 3 years' imprisonment were imposed on 5 April 2001. The sentencing judge remarked that the respondent had shown no remorse and that the period of imprisonment served for the 1993 offences seemed 'to have had no deterrent effect' on him.

On about 6 May 2000, shortly after he was granted bail for the 1999 offences, the respondent was convicted of two further sexual offences. These offences consisted of two counts of indecent dealing with a child under 12, for which he was sentenced on 18 April 2002 to concurrent terms of 2 years' imprisonment, cumulative on the sentences imposed on 5 April 2001. The respondent unsuccessfully appealed against his conviction. The complainant was a 6 year old boy, whose family the respondent had befriended at a caravan park. The sentencing judge remarked on the 'particularly brazen nature of the offences'. The first offence concerned touching the boy on the genitals. It was committed when the respondent, the child and his mother were fishing on a pontoon. The child was seated beside the respondent with the child's mother being seated about 1 metre away. The second offence was committed when the respondent was a visitor at the boy's home. While the mother was in the kitchen, the respondent went into the boy's bedroom where he was sleeping and touched him on the genitals. The sentencing judge observed of the respondent who gave evidence at trial that he was a 'plausible person and quite astute at telling tall stories'. He recommended a psychiatric assessment with respect to whether the respondent posed a serious threat to young children and made a reporting order applicable upon the respondent's release from prison. The respondent was denied remissions in respect of his current sentence."⁴

It should be noted that the reference in this passage to convictions on 6 May 2000 was incorrect. The true position was that the offences referred to were committed on 6 May and 17 May 2000.

The psychiatric evidence before Philippides J was to the effect that the respondent's homosexual paedophilia was quite entrenched. Nevertheless, the respondent consistently maintained, and continues to maintain, his innocence of the charges of which he has been convicted. This has been a matter of significant concern to those obliged to assess the nature and extent of the risk which he poses to the public.

The respondent was, according to the psychiatric evidence before Philippides J, a borderline psychopath who has no empathy with his victims and no remorse for his crimes. He was said to be brazen, reckless and defiant of the ordinary rules of social behaviour.

In making the order for the respondent's continuing detention, Philippides J summarised the effect of the psychiatric opinions of Dr Moyle and Dr Lawrence in relation to the respondent's propensity for further sexual offending. Her Honour said:

"The evidence indicates that the respondent has a propensity to commit sexual offences against children. According to Dr Moyle, the likely risk to children posed by the respondent is that he would at least attempt to touch them sexually, attempt to convince them not to tell others and that the sexual behaviour might escalate to anal digital or penile penetration. In this regard he referred to the brazen nature of aspects of the respondent's offending and the respondent's high levels of psychopathy as suggestive of an attitude the respondent 'doesn't care'.

Furthermore, Dr Lawrence observed that while the respondent's age may imply diminution of sexual drive, 'there is no evidence that sexual drives including aberrant disappear with age. This man's medical conditions are not of any significance at this point in time ant [sic] there is no medical expectation that sexual activity is likely to decrease, either at the level of desire/drive or function.'"⁵

At the time of the 2006 proceedings, the respondent had not undergone a Sexual Offender's Treatment Program ("SOTP"). In this regard, Philippides J said:

"Both Dr Lawrence and Dr Moyle considered that the fact that the respondent had not undertaken the SOTP as being of importance in this case. Dr Lawrence specifically referred to the respondent's refusal to participate in a SOTP as a factor in her poor prognosis in respect of the risk of re-offending. Dr Lawrence identified the implications of the failure to participate in the program to date as follows:

'his refusal to participate in any Cognitive Behavioural Program approaches to sexual offending indicate that he has not even been exposed to these concepts. Whilst he has had exposure to a Cognitive Skills Program, he, himself, states that he 'didn't get much out of it.' There is no evidence at interview that he has acquired or utilises any such concepts in his approach to his offending behaviour. His denial of sexual offending remains steadfast. Similarly, he would refuse any alternative methods of attempted remediation of his aberrant sexual drives.'

Likewise, Dr Moyle stated in his report:

'If Mr Yeo is released from custody I don't see any evidence that attempts to rehabilitate him, including his attendance at a Cognitive Skills Program, where he has been taught various approaches to planning for non reoffending that he may have forgotten, and attendance at other programs, have resulted in clear management plans at preventing risk being developed by Mr Yeo.'

Dr Lawrence expressed reservations about whether a program would have a positive outcome in the present case. Dr Moyle's oral evidence was that there was a good chance that the respondent would complete a sexual offender program, although he also had reservations about the outcome of the respondent attending such a program. He stated 'we can't reliably predict that attendance will change circumstances' and did not believe 'that any psychological therapies will be of assistance to Mr Yeo if he doesn't wish to engage in these'. However, Dr Moyle also stated in his report that 'usually when people do attend programs they come away with much more structured plans for managing risk ...'. His oral evidence was that:

'... if [the respondent] goes in to the program acknowledging sexual interests and areas that could lead to sexual offending, and even if he doesn't acknowledge the actual offence has occurred, then he can start to talk about the sort of issues that the program will tackle, and he'll be more successful.'"⁶

Philippides J concluded that the respondent was a serious danger to the community in the absence of an order under Div 3 of the Act, in that there was an unacceptable risk that the respondent will commit a serious sexual offence if released from custody or released without a supervision order.⁷ Her Honour went on to hold that a continuing detention order was necessary to ensure adequate protection to the community.

Philippides J accepted the evidence of Drs Moyle and Lawrence that the risk of serious sexual re-offending by the respondent was high to moderately high if he were to be released into the community under a supervision order. Significant pointers to this conclusion were the respondent's refusal to engage in an SOTP program and his continuing denial that he had committed any of the offences of which he had been convicted. In this regard, Philippides J said:

"Drs Moyle and Lawrence were unable to detect that the respondent's incarceration has resulted in any significant alteration in his attitude or that it has had a deterrent effect. The evidence indicates that the respondent has not demonstrated any empathy for the victims of his sexual offending or understanding of his offending conduct. It is of concern that the respondent's offending and propensity is directed towards young children. The effects on young victims of the type of sexual offences for which the respondent shows a propensity can be severe as noted by Dr Moyle. It is of particular concern that the respondent has not while in custody participated in any program, whether at a cognitive skills level or a SOTP level, which addresses his propensity and the cause of his offending conduct. The respondent has not addressed his propensity and denies even that there is any conduct by him that needs to be addressed. As a result, Drs Moyle and Lawrence had no confidence in the respondent being able to minimise the risk of re-offending by means of any internal constraints. The respondent's failure to adequately address his sexual offending by means of any sexual offender program, especially when considered in the light of his denial of every aspect of his sexual offending, are factors which on the expert evidence point to there presently remaining a high to moderately high risk of the respondent committing further serious sexual offences, even if released on a supervision order.

Bearing in mind that the paramount consideration in deciding whether a continuing detention order as opposed to a supervision order ought to be made is the need to ensure adequate protection of the community, I am satisfied that a continuing detention order is in this case appropriate."⁸

The evidence adduced in the review proceedings

After the continuing detention order was made, the respondent made only a desultory attempt to obtain treatment in respect of his propensity to commit sexual offences on boys. In the course of the reasons given by Mullins J for her decision on the review application in 2007, her Honour summarised the respondent's participation in treatment since April 2006 as follows:

"The respondent commenced the Getting Started: Preparatory Program in April 2006. That is a psycho-educational program for offenders who are resistant to undertaking programs to address their sexual offending. After attending eight sessions the respondent was asked to leave the program because of his inability to discuss his sexual offending behaviour.

In June 2006 an Individual Management Plan (IMP) for the respondent was prepared by Queensland Corrective Services (the Department) to provide for his management while he was subject to the continuing detention order. The IMP proposed that the respondent participate in pre-release planning for reintegration into the community.

At the time the continuing detention order was made, the respondent was employed in the prison in furniture assembly. That remained the position at the time the IMP was prepared. The IMP noted that the respondent was encouraged to continue to maintain this employment. That employment was terminated in July 2006 as a result of an allegation that the respondent was smoking. The respondent was unsuccessful in obtaining other employment in the prison until 18 April 2007.

In August 2006 the respondent participated in a Transitions Needs Assessment which identified needs to be addressed as part of his preparation for reintegration into the community. These included needs such as dealing with Centrelink, getting identification, and issues relating to employment, training and housing.

The respondent was offered a place in a Transitions Program that began on 3 September 2007, after this application was part heard.

After the hearing of this application on 23 August 2007, a draft IMP was prepared for the future management of the respondent, if the continuing detention order were affirmed. This draft IMP was prepared by Ms Roberta Embrey, the manager of Offender Development at the prison, by reference to the prison's file relating to the respondent and with the assistance of the probationary psychologist who has been working with the respondent. The draft IMP cannot be implemented until it has been reviewed and endorsed by the relevant personnel at the prison. The draft IMP recommends that the respondent participate in the Getting Started: Preparatory Program again, if he indicates a willingness to accept responsibility for his sexual offending."⁹

In accordance with s 29(1) of the Act, the respondent had been examined by psychiatrists Dr Moyle and Dr Beech for the purposes of the review in 2007. DrsMoyle and Beech both gave evidence in the review proceedings. In the course of the respondent's interviews with Drs Moyle and Beech, the respondent persisted in his refusal to accept responsibility for his sexual offending.

Dr Beech said in his report:

"Mr Yeo said it was impossible to actually stay away from children but he could act to minimise it and act to have someone to keep an eye on him although this would not always be feasible. He would act to limit his access to children because he had learned from being falsely accused that he has to work out whom he can trust in risky situations. He saw such situations as ones where he would need to act to prevent anyone saying that he touched a child and gave as an example that in cinemas he would make sure that he did not sit next to a child and would always sit with adults."

Dr Beech's report concluded:

"If he were to be released with a Supervision Order, I cannot see that matters would have changed much from when Justice Philippides delivered her judgement in 2006. In my opinion, the risk of re-offending would be reduced but only moderately so. This is for a number of reasonsFirstly, he still remains without supports and there is no realistic plan at present that he can proffer.

Secondly, he is by nature psychopathic with little concern for his victims and little concern for rules. He breached bail with sexual offences. The 2002 convictions were for offences noted for their brazenness in that they occurred within proximity of the victim's mother. I understand that even in prison he has attempted an unsuitable liaison with a younger male prisoner.

Thirdly, there is very little evidence that his imprisonment and even his continuing detention have had any significant effect on his attitude to offending, his plans for relapse prevention, or his positive engagement in programs to address recidivism."

In the cross-examination of Dr Beech, the following exchange occurred:

"He has told you, hasn’t he, that he would act to avoid situations where he’d be vulnerable to false accusations, saying that he’d go out in public with an escort?-- Yes.

That’s realistic, isn’t it?-- Yes.

And he said it was impossible to actually stay - bottom paragraph, impossible to actually stay away from children but he could act to minimise it and act to have someone keep an eye on him, although this would not always be feasible, and then he said he would act to limit his access to children. That perhaps of itself is a realistic and reasonable proposal, is it not?-- It is. The difficulty I have, MrMumford, is that a lot of what Mr Yeo says sounds reasonable.

Yes?-- It’s his commitment to it.

All right. But that good intent - well, those good intentions, coupled with the constraints of a supervision order, just on those matters alone, would act to reduce the risk, would it not?-- Yes, he’s limiting his contact with children-----

Yes?-- -----would do that.

And on that point, of course, it could be added to a supervision order a clause that he not commence or maintain a relationship with an adult who has the care, control or guardianship of a child under 16?-- Yes.

Yes. That would again act to reduce the risk because it would reduce his opportunities for grooming; is that correct?-- That’s correct."

Dr Moyle expressed a similar view. He said:

"… if Mr Yeo himself, as he suggested, has an enjoyable life out of gaol, one would hope he wouldn’t want to go back and that would also lower his risk, the fact that he is planning for a reasonably enjoyable life."

Mullins J regarded as significant the evidence that the respondent, while continuing to deny that he has committed any sexual offences, recognised that contact with children is likely to lead to his further imprisonment.

The respondent had prepared a future plans document which reflected the respondent's self-interest in not being returned to prison. The future plans document suggested some level of internal control which, together with external reinforcement and strict monitoring, might be harnessed to ensure adequate protection for the community if the respondent were to be released under supervision. Mullins J recognised the limited value of the future plans document as an indication of improvement in the respondent's attitude to his offending. Of this plans document, her Honour said:

"The respondent prepared a document setting out his future goals and plans that is dated 27 November 2006. It looks like it has been produced from a proforma document that has been modified as the respondent has selected the alternatives or paragraphs that he considers are applicable to him. There is a small amount of information in the document that is personal to the respondent.

The goal that the respondent sets for himself is not to return to prison. Despite the respondent's denial of sexual offending, he acknowledges the link between children giving evidence against him and his imprisonment. He notes in his plans that he must not involve himself in activities that bring him into contact with children. He states that he wants to live a Christian lifestyle."¹⁰

The respondent proposed to live with his brother for six months upon his release from prison. Mullins J summarised the respondent's plans for accommodation upon release from custody in the following terms:

"If released on a supervision order, the respondent proposes residing with his brother who lives alone in a house within walking distance of a suburban Probation and Parole District Office. He is prepared for the respondent to live with him for up to six months. The respondent's brother has an intellectually disabled son aged 30 years who lives in supported accommodation, but whom he brings home for an overnight stay on occasions. The respondent's brother proposes that, whilst the respondent resides with him, he will not have his son stay overnight. He also will not have his grandchildren visit his home. The respondent's brother has been interviewed by an officer of the Department. The Department has approved his residence as suitable for the respondent to live in after release from prison.

The respondent plans, while living with his brother, to seek assistance from agencies nominated by him for locating suitable accommodation after he completes his stay with his brother."¹¹

Mullins J identified the respondent's brother as a potential element of a control regime if the respondent were to be released. Her Honour said:

"The respondent's brother does not consider that the respondent committed the sexual offences for which he has been imprisoned. The respondent's brother does, however, understand the nature of the restrictions that would apply to the respondent, if he were released on a supervision order. The respondent's brother wishes to assist the respondent to get his life back in order. He is willing to accompany the respondent on outings, while the respondent resides with him, if he has no other commitments and is able to do so."¹²

Dr Moyle's evidence in the review proceeding focused upon the respondent's recklessness, his denial of his offending and his evident refusal to recognise his entrenched homosexual paedophilia. In cross-examination, Dr Moyle expressed the view that the risk of sexual re-offending by the respondent, if he were to be released under a supervision order under stringent conditions, would be reduced from a "high risk to a moderate risk". Mullins J summarised the effect of Dr Moyle's evidence:

"Dr Moyle had prepared a risk assessment report for the purpose of the hearing that resulted in the 2006 decision. After his further interview of the respondent in February 2007, he concludes that the respondent is of no less risk of reoffending than he was when interviewed 15 months earlier.

Dr Moyle identifies the respondent's impulsivity, disobedience to rules and minimal regard for others as factors relevant to reoffending. Dr Moyle describes the respondent's defiance as a life long problem. Dr Moyle did not do a mental state examination during his recent interview with the respondent, because there was nothing to suggest any mental deterioration on the part of the respondent and there was no evidence of any serious mental disorder affecting the respondent's cognition in the past. Dr Moyle had previously concluded that the respondent's 'intellect would not be high but it would not be mentally disabled either'. Dr Moyle describes the respondent as being 'rather concrete', in that it is unlikely he would change his attitudes readily, but that he was capable of learning new information.

Dr Moyle suggests that as the respondent's proclivities apply to boys or disabled youthful males, he should not be in any situation where he could be in contact with children under the age of 16 years or disabled persons. Dr Moyle considers that the respondent's refusal to acknowledge his sexual offending precludes intervention strategies based on any recognition by the respondent of the triggers of such offending. Dr Moyle therefore suggests that a supervision order must set conditions that leave the respondent in no doubt as to the expectations of him and that will facilitate the supervising correctional officer responding quickly to any breach by the respondent of the requirements of the supervision order. This is so that the external constraints of the supervision order may address to some extent the risks associated with the lack of the respondent's own internal constraints. Dr Moyle considers that the respondent is adept at working around conditions that are placed on him and this requires the external constraints (the requirements of the supervision order) to be clearly and unambiguously articulated.

Dr Moyle considers that the release of the respondent from prison on a supervision order incorporating appropriately stringent requirements would reduce the risk of sexual reoffending from a high risk to a moderate risk. Dr Moyle suggests that the period for such a supervision order should be at least 10 years."¹³

Dr Beech was, as has been seen, of the view that the respondent's recognition that he should avoid the occasions of sexual contact with boys, as a matter of his own self-interest in avoiding a return to prison, was a development of some, albeit limited, significance. Dr Beech described the risk of sexual re-offending by the respondent if he were to be released as "moderately high". Mullins J summarised the effect of Dr Beech's evidence:

"Dr Beech expresses similar views to Dr Moyle that the respondent's failure to follow rules, show empathy or take responsibility for his actions affects his risk of reoffending. Dr Beech considers that the respondent's likelihood of reoffending is enhanced by his plausible manner and glib social interactions. Dr Beech judges the respondent to be of average intelligence.

From the respondent's history, Dr Beech diagnoses the respondent as having an anti-social personality disorder and that he operates within the range of psychopathy. Dr Beech agrees with Dr Moyle that the respondent's sexual offending history is consistent with homosexual paedophilia.

Dr Beech is sceptical of any mitigation of the respondent's risk of reoffending due to his wanting to live a Christian lifestyle. Dr Beech expresses concern about the respondent attending a church service or functions at which children may be present.

Dr Beech considers that the respondent needs to be restricted from opportunities of befriending parents of young boys or from situations where young boys come into contact with him. Dr Beech considers that a supervision order would reduce the respondent's risk of reoffending only from high to moderately high and emphasises the need for close monitoring of the respondent's compliance with the requirements of the supervision order. Dr Beech suggests that a supervision order should continue for at least five years and up toyears."¹⁴

Mullins J accepted that stringent conditions of supervision including electronic monitoring would be necessary to reduce to an acceptable level the risk of a recurrence of the respondent's offending behaviour.¹⁵ Her Honour was, however, prepared to accept that sufficiently stringent supervision was feasible. The conclusion at which Mullins J arrived was based upon her Honour's consideration of a strategy for the supervision of the respondent which addressed the nature of the risk posed by the respondent as she understood that risk. The strategy relied upon the respondent's self-interest and external controls the operation of which could be monitored. These external controls would include the weekly submission by the respondent of a schedule of events to his supervising officer within the Department of Corrective Services. The use of the weekly submission of a schedule of events was not the subject of consideration by Dr Moyle or Dr Beech in their assessment of the risk posed by the respondent should he be released from custody subject to supervision.

It is fair to say that crucial to this conclusion was her Honour's understanding of the nature of the respondent's sexual proclivities. In a passage in her Honour's reasons singled out for criticism by the Attorney-General, Mullins J said:

"The pattern of the respondent's sexual offending can be summarised as one in which he made contact with a parent or the parents of an intended victim that put him in a situation where he was alone with or physically next to the victim that enabled him to commit the offences. The relationship with the parent facilitated the preparatory contact with the victim that can be described as 'grooming style conduct' on the part of the respondent. His offending was brazen and impulsive."¹⁶

In view of the circumstance that one of the Attorney-General's grounds of appeal asserts the inadequacy of her Honour's reasons, it is desirable to set out in full her Honour's consideration of the strategy for the respondent's supervised release:

"… Although the respondent’s failure to complete the Getting Started: Preparatory Program keeps his assessed risk of reoffending high, that failure crystallises the risks of reoffending that have to be addressed by any supervision order that would apply to the respondent. It means that there is no treatment that is presently able to be accessed by the respondent within the prison for his sexual offending. It also highlights the futility of the draft IMP prepared for the respondent while this application was part heard, as it recommends that the respondent participate in the Getting Started: Preparatory Program, if he indicates a willingness to accept responsibility for his sexual offending, but it is clear from the psychiatric evidence that he will not be doing so.

In view of the respondent’s refusal to acknowledge his past sexual offending or his propensity for sexual offending, the strategy that must underpin any supervision order is a series of stringent requirements that, if complied with, will make it unlikely that the respondent will come into contact with potential victims, but also provide the means for the respondent’s compliance with the requirements to be checked by the Department. It is critical to the strategy that the respondent must be fully aware of both the stringent requirements to which he would be subject under the supervision order and that the Department has the means to check on his compliance with the requirements and act on any non-compliance.

During the hearing of the application, in response to the concerns expressed by the psychiatrists, a requirement was proposed that the respondent submit on a weekly or other regular basis to his supervising corrective services officer for discussion and approval of a schedule of his planned activities and disclose the identity of any person who would accompany the respondent or in whose company he would expect to be. It was then proposed to restrict the respondent in his activities that take place outside his home to those for which the prior written approval of the supervisor is obtained.

The onus would then be on the respondent to obtain the prior written approval of his supervisor before undertaking any trip, visit or other activity outside his home that was not in the approved schedule. This would give the supervisor a defined timetable of activities against which the whereabouts of the respondent at any time could be checked. The respondent could therefore not make a spur of the moment decision to go to the shops or the cinema or undertake any activity outside his home for which he did not have prior written approval, without being in breach of a requirement of the supervision order.

The importance of a set of requirements for prior approval of the respondent’s outings is illustrated by a discussion the respondent had with Dr Beech that is recorded in Dr Beech’s report. The respondent was telling Dr Beech that he would have to keep out of 'risky situations' which he saw as ones where he would need to act to prevent anyone saying that he touched a child. The respondent gave Dr Beech an example 'that in cinemas he would make sure that he did not sit next to a child and would always sit with adults'. The respondent did not recognise that if he were to be released under a supervision order, he should not be going to a cinema by himself. The proposed requirements must enable the supervising corrective services officer to impose the constraints on the activities undertaken by the respondent that the respondent may not have otherwise recognised the need to do himself.

In order to emphasise for the respondent the importance of planning his activities and obtaining the supervisor’s prior written approval to undertaking any outside activities, there should be a further requirement that the respondent then report to his supervisor on what activities outside the home he actually undertakes and provide details of the persons who accompanied him and any other details requested of him by the supervisor. Having to report on what he has done should also discourage the respondent from undertaking any approved activity in a way that would not have been approved.

Those stringent restrictions would need to apply to the respondent, at least in the early months or years of the supervision order, to address the risks of reoffending identified in the psychiatric evidence. There also needs to be flexibility in the application of such restrictions, if over time the respondent shows that he is able to avoid putting himself in situations where he may come into contact with young boys or disabled persons. I therefore consider a qualification should be added to the proposed requirements that permits the authorised corrective services officer to dispense with the requirements for the prior written approval of the supervisor to the respondent’s activities outside his home and the subsequent reporting by the respondent to the supervisor on his activities.

Because of the disinhibiting effect of alcohol, the psychiatric evidence supports imposing a restriction on the use of alcohol by the respondent that is enforceable by random testing.

As the first hearing date for this review application was prior to the commencement of the Dangerous Prisoners (Sexual Offenders) Amendment Act 2007, the draft supervision order incorporated a requirement for electronic monitoring of the respondent and a curfew to facilitate electronic monitoring. The curfew was specified as between 7:30am and 9:30am and between 2:30pm and 4:30pm Monday to Friday of each week. The rationale for those hours was that those are the times of day when children are likely to be travelling to and from school. The 2007 Amendment Act makes such specific requirements unnecessary in a supervision order. There is now a mandatory requirement set out in s 16(1)(da) of the Act that must be included in every supervision order that the released prisoner must comply with a curfew direction and a monitoring direction that are set out in s 16A of the Act. That empowers the supervising corrective services officer to impose a curfew that is appropriate for the respondent and to require the respondent to wear the monitoring device that will enable the Department to confirm compliance with the curfew."¹⁷

Having elaborated the elements of the strategy for a supervision order, her Honour concluded:

"Whether compliance with the supervision order is likely or able to be monitored

The incentive for the respondent to comply with the requirements of the supervision order is the desire to remain out of prison. Consistent with that goal, he is at least prepared to acknowledge that he must avoid children.

Although the Act has always provided for a mechanism for a released prisoner to be dealt with for contravention of a supervision order, the 2007 Amendment Act has added to the options available to the authorities when there is a contravention of a requirement of a supervision order. Section 43B of the Act makes it an offence for a person subject to a supervision order to contravene a requirement of the order, without reasonable excuse. The offence can be dealt with summarily and the maximum penalty imposed is two years' imprisonment.

The psychiatric evidence shows that the respondent is sufficiently intelligent to understand the nature of the restrictions imposed on his conduct and activities by a supervision order and to understand the consequences that will follow if he contravenes a requirement.

At the time the 2006 decision was made, the respondent did not have the support that is now offered by his brother, both in terms of accommodation and in providing assistance to the respondent in meeting the requirements of a supervision order.

There was no suggestion from the Attorney that the Department was unable to provide the supervision contemplated by the draft supervision order.

The respondent's denial of his sexual offending which makes him at least a moderate risk of reoffending if released under a supervision order has to be considered in the context of all matters that are relevant to managing that risk of reoffending. There is protection for the community in the stringency of the requirements of the draft supervision order and that the least indication that the respondent is not complying with them should be apparent to the Department as soon as it occurs."¹⁸

The arguments on the appeal

The Attorney-General contended in his written submissions that her Honour's reasons were not adequate to explain why she concluded that a continuing detention order was not necessary to ensure the protection of the public. This contention was not pressed in oral argument, but nor was it abandoned; it is necessary to address it.

The Attorney-General's principal submission was that her Honour's conclusion that supervised release of the respondent subject to stringent conditions could ensure adequate protection of the community was not a view which could reasonably be taken. An aspect of this contention, which was put in the Attorney-General's written submissions but not pressed in oral argument, was the assertion that MullinsJ misunderstood the respondent's modus operandi in referring to "grooming" behaviour when the evidence showed that his sexual assaults were opportunistic and impulsive, and, therefore, not amenable to control by supervisory conditions.

Discussion

Adequacy of reasons

Section 17 of the Act requires a judge who makes a supervision order to "give detailed reasons for making the order". On behalf of the Attorney-General, it is submitted that, in the context of the Act, the requirement of "detailed reasons" in s 17 means that a judge making a supervision order in preference to a continuing detention order must explain why the supervision order affords adequate protection to the public.

That submission was not disputed by Mr Paul Smith of Counsel who appeared for the respondent; it is clearly correct. Under s 13(5) of the Act, the power of the court to make either a continuing detention order or a supervision order only arises if the court is satisfied under s 13(1) that "the prisoner is a serious danger to the community in the absence" of such an order. Section 13(6) of the Act provides that, in deciding which of the options provided by s 13(5) should be adopted "the paramount consideration is … the need to ensure adequate protection of the community." There can be no doubt that the focus of the court's concern in terms of the "adequate protection of the community" is the "serious danger to the community" which is, ex hypothesi, posed by the prisoner.

It may, therefore, be accepted that a decision which did not explain in detail why a supervision order is thought to afford adequate protection to the public so that a continued detention order is not necessary to achieve that end,¹⁹ would not comply with the requirements of s 17 of the Act, and would be tainted by an error of law.²⁰

As to whether the reasons of Mullins J provide a sufficient explanation of the reasons which inform her Honour's conclusion, the Attorney-General's first point, which was advanced only in his written submissions, was that her Honour's reasons fail adequately to address the nature and extent of the danger posed to the community by the respondent. The second point made on behalf of the Attorney-General, again only in his written submissions, was that her Honour misunderstood the particular nature of the danger to the community posed by the respondent. This point is important because, if it were correct, it would undermine the whole of the supervision strategy which commended itself to the learned primary judge. It is convenient to deal with this second point first.

A fair reading of her Honour's reasons makes it clear that her Honour fully understood that the danger posed by the respondent to children and other vulnerable persons was of sudden, impulsive and opportunistic assault. In truth, the criticism directed by the Attorney-General at the passage from her Honour's reasons set out at paragraph [20] of these reasons is not that her Honour has misunderstood the pattern of the respondent's sexual offending, his modus operandi, but that her Honour has attached an inappropriate label to the respondent's dealings with the parents of children he has targeted. It is, with all respect, perfectly clear that, when her Honour spoke of "grooming" behaviour by the respondent, she was referring to the process of ingratiation with the parents of children targeted by the respondent. Her Honour's usage of the term accords with that of Dr Moyle in his report. As is apparent from the respondent's history of sexual offending, this process of ingratiation is indeed an integral aspect of the respondent's modus operandi in terms of organising his contacts with children by reference to occasions of domestic intimacy. This aspect of the argument advanced on behalf of the Attorney-General is without substance.

As to the first of the points made on behalf of the Attorney-General, it is not correct to say that Mullins J did not give reasons for her conclusion that the danger which the respondent posed to the community could be reduced to an acceptable level if he were to be released subject to strict supervision of the conditions of his release. The basis for her Honour's view is abundantly clear in the passages from her Honour's reasons set out at paragraphs [27] and [28] of these reasons.

Was the decision outside the bounds of a reasonable exercise of the discretion?

I turn now to the principal question agitated on the hearing of the appeal by the Attorney-General, namely whether her Honour's conclusion can be said to have been reached without any reasonable basis.

In the course of the review proceedings, the respondent gave evidence on affidavit. He exhibited the future plans document to which her Honour referred to this affidavit. He also expressed his willingness to comply with any condition of supervised release whereby he would be obliged to avoid schools and children and to avoid approaching children. He acknowledged that he only did five weeks of the "Getting Started Preparatory Course" in 2006, and said that he was told "that because I was maintaining my innocence I could not continue with the course. I have not had any further offers made with respect to any sexual offender's course even though I am still prepared to do such courses." In particular, he said he would be prepared to participate in a Community Sex Offender Program.

The respondent was not cross-examined on his affidavit. Counsel who appeared for the Attorney-General on the review proceeding informed Mullins J that he would not seek to cross-examine the respondent provided that this failure to cross-examine would not "be used against me in my submissions in saying I can't make a submission on a particular point because it wasn't put to Mr Yeo." The respondent's then Counsel informed the court that he would not seek to raise such a point against the Attorney-General.

I pause here to observe that the course taken by Counsel was regrettable, having regard to the arguments which the Attorney-General sought to advance on the appeal. There is an apparent tension between the attitude expressed in the respondent's affidavit and the stance previously adopted by him and maintained by him in the course of his interviews with Dr Moyle and Dr Beech. It was obviously desirable that this apparent tension be explored in cross-examination of the respondent. The genuineness of the respondent's evidence was important; and cross-examination would have afforded the learned primary judge an opportunity to assess the genuineness of the respondent's commitment to ensuring that he avoids the occasions of contact with children. It is also not beyond the bounds of possibility that it would have revealed the respondent to be an utter humbug whose affidavit was merely a cynical attempt to manipulate the review process to his advantage. But the course taken by Counsel below meant that these possibilities were not explored. The learned primary judge could not, in fairness to the respondent, conclude that his affidavit consisted of deliberate falsehoods. Nor, it seems to me, could her Honour fairly conclude that the respondent's expressions of a commitment to avoid the occasions of contact with children, albeit out of his own self-interest, and to engage in treatment programs – perhaps only if, and to the extent that, he was not obliged to admit his guilt of his past offences – were not honest statements by him.

I confess that I am unable to see any good reason why it should have been thought desirable that the respondent should not be cross-examined on his affidavit. The course which was taken may have been informed by the view that a prisoner who is subject to proceedings under the Act should not be subjected to interrogation because that is somehow perceived to be inconsistent with his "right to silence" or "a right not to incriminate himself". I suggest that such a concern has no place in proceedings under the Act where the prisoner has chosen to give evidence on his own behalf. For my part, I would have thought that, in proceedings under the Act, where a prisoner has chosen to give evidence the truth of which is disputed by the Attorney-General, cross-examination of the prisoner is not only necessary so that the matters in dispute can be put to the prisoner for his response, as a matter of fairness to the prisoner, but also desirable as assisting the presiding judge to reach a fully informed conclusion as to the nature and extent of the risk posed by the prisoner and the amenability of that risk to minimisation by one or other of the orders for which the Act provides.

Mr Davis of Senior Counsel, who appeared with Mr Horton on behalf of the Attorney-General, put the respondent's future plans document at the centre of his attack on the decision of the learned primary judge. Mr Davis made the point that the future plans document revealed an inconsistent and confused appreciation on the part of the respondent of the triggers of his offending and of the measures which might be taken to modify his behaviour. Mr Davis submitted that the suggestions in the document, that the respondent was willing to address the root causes of his dangerous behaviour, was contradicted by his persistent denials of sexual offending. There are, I think, a number of difficulties in the way of this Court acting upon that submission. The first is that this point was not taken up with the respondent in cross-examination, with the result that the respondent was not afforded the opportunity to explain the suggested inconsistencies. Further in this regard, neither Dr Moyle nor Dr Beech gave evidence that the future plans document revealed an irreconcilable inconsistency between the respondent's stated intentions and his previous unwillingness to admit his guilt and to seek treatment for his homosexual paedophilia.

Secondly, the learned primary judge was not invited to conclude that the inconsistencies between the statements of intention in the future plans document and the respondent's previous refusal to admit his guilt and to seek treatment revealed the respondent to be hopelessly unreliable, both as a witness, and as a candidate for supervised release.

In these circumstances, the learned primary judge cannot fairly be criticised for not treating the respondent's plans document as revealing of a level of dangerousness that could not be adequately constrained by a supervisory regime of the kind accepted by her Honour.

The Attorney-General also contended in his written submissions that her Honour failed to resolve the difference between the evidence of Dr Moyle and Dr Beech, the last paragraph in the passage from her Honour's reasons cited above shows that her Honour was fully alive to the circumstance that there was a difference in the level of risk of re-offending in the assessment of Dr Moyle and Dr Beech. To say that the risk of the respondent re-offending was "at least a moderate risk" was necessarily to acknowledge that the description of the risk as "moderate" was to put the risk of re-offending at its lowest. Her Honour well understood that Dr Moyle's assessment of the level of risk was stating the minimum estimate of that risk revealed by the evidence before her.

More importantly, her Honour did not need to resolve the difference between Dr Moyle and Dr Beech on the extent of the risk. That is because, on either assessment of the level of that risk, the nature of the respondent's proclivities towards homosexual paedophilia manifests itself in a particular pattern, or modus operandi; on these matters there was no relevant difference between the views of Dr Moyle and Dr Beech. While it is true to say that the respondent's offending is impulsive and opportunistic, it must also be recognised that, even on Dr Beech's view of the extent of the risk posed by the respondent, there is no suggestion that he is prone to spontaneous assaults upon persons with whom he has not formed a domestic relationship.

Her Honour was of the view that, this being the nature of the risk posed by the respondent, the enforced adherence by the respondent to a schedule of activities approved by his supervising officer, coupled with electronic monitoring of the respondent's movements in conformity with the conditions of release, can be expected to ensure that he does not make the kind of contact with children, or their parents, which provides the occasion for his impulsive and opportunistic attacks on children or other vulnerable persons. In my respectful opinion, it cannot be said that this view was not reasonably open to her Honour.

On behalf of the Attorney-General, it was said that the respondent himself acknowledged in his interviews with the psychiatrists that he cannot ensure that he does not come into contact with children. But to suggest that this concession means that the only way that children can be adequately protected from the risk of sexual abuse by the respondent is to keep him in continued detention is to fail to have regard to the nature of the risk to children posed by the respondent. The respondent has not assaulted children he does not know; and there is no suggestion in the psychiatric evidence that he is disposed to do so.

It was also open to her Honour to regard it as a matter of some, though no doubt not decisive, significance that the respondent will be residing, for the first six months of his supervised release, with his brother. As a result of these arrangements, the respondent would have the benefit of family support for the initial period of his release. This has previously been absent from his life. While that consideration, standing alone, might not have allayed the concern that the risk of the respondent's re-offending is unacceptably high if he is released, it is a consideration which, in conjunction with the other constraints upon the respondent, may reasonably be thought to support the conclusion that the risks involved in supervised release were not unacceptably high. It was said on behalf of the Attorney-General that the respondent's brother was less than an ideal home companion for the respondent because the respondent's brother does not accept that the respondent was guilty of the offences of which he has been convicted. Nevertheless, as her Honour said, the respondent's brother was clearly aware of the necessity for the respondent to avoid breaching the conditions of his release.

In summary, it must be accepted that the sexual offending in which the respondent has engaged is serious, and that his history of refusal to admit his guilt and to seek treatment for his homosexual paedophilia, together with his psychopathic personality, make him a prisoner who does pose a serious danger to the community. That having been said, one must bear in mind that the range of orders which may be made under the Act in relation to prisoners who are found to pose a serious danger to the community includes orders for supervised release.

As this Court said in A-G (Qld) v Francis:²¹ "it is necessary to focus upon the particular nature of the risk which the appellant poses to the community." Accordingly, the question which her Honour was required to address was whether the nature of the risk which the dangerous prisoner poses to the community can be adequately met by an order for supervised release. The learned primary judge answered this question in the affirmative on the basis of a strategy which focused upon the particular nature of the risk which the respondent poses to the community. Her Honour was disposed to regard that strategy as apt to ensure adequate protection to the community because of the respondent's recognition that he needed to discipline himself to avoid contact with children, and, more importantly, because of the availability of external controls to ensure that he does not develop the kind of domestic or intimate associations which characterise his offending behaviour. There was evidence which supported her Honour's view that the respondent's recognition that, in his own interests in avoiding a return to prison, he should avoid contact with children, was a positive, albeit modest, improvement in the respondent's attitude. Her Honour's view that this development might be harnessed with stringent external controls in order to establish a supervisory regime which would ensure adequate protection to the public was a view which could reasonably be taken.

Once it is accepted that this view was one which was reasonably open to her Honour, then an order for supervised release cannot be said to be unreasonable. As this Court said in Attorney-General (Qld) v Francis:²²

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

Conclusion and order

It will be apparent from the preceding discussion that I am unable to accept the contention of the Attorney-General that the view taken by the learned primary judge, namely that the risk posed by the respondent to the community could be adequately met by a supervision order containing stringent conditions and subject to electronic monitoring, was a view which could not reasonably be taken.

Accordingly, I consider that it has not been demonstrated that the decision of the learned primary judge was affected by error.

The appeal should be dismissed.

HOLMES JA: I agree with the reasons of Keane JA and the order he proposes.

WHITE J: I have read the reasons of Keane JA and agree with his Honour’s analysis of the issues which have been raised on this appeal. I agree with his conclusion that there is no support for the Attorney-General’s argument that her Honour’s decision was not one which was reasonably open on the evidence²³.

Her Honour may have been better assisted had counsel below for the Attorney-General been instructed to challenge the apparent disconformity between Mr Yeo’s new found insights detailed in his affidavit and his consistent position hitherto rejecting any understanding of his need to avoid associating with young boys. Neither psychiatrist was asked to consider his affidavit with this in mind. It is, therefore, too late on appeal to conduct the proceedings challenging the bona fides of Mr Yeo on the subject matter of his affidavit.

I agree with the order proposed by Keane JA.

Footnotes

1. Yeo v Attorney-General for the State of Queensland [2007] QCA 32. ↩

2. Attorney-General (Qld) v Yeo [2007] QSC 274 at [48]. ↩

3. Cf House v The King (1936) 55 CLR 499 at 505. ↩

4. Attorney-General for the State of Queensland v Yeo [2006] QSC 63 at [13] – [15]. ↩

5. [2006] QSC 63 at [29] – [30]. ↩

6. [2006] QSC 63 at [34] – [36]. ↩

7. [2006] QSC 63 at [41]. ↩

8. [2006] QSC 63 at [52] – [53]. ↩

9. [2007] QSC 274 at [7] – [12]. ↩

10. [2007] QSC 274 at [13] – [14]. ↩

11. [2007] QSC 274 at [15] – [16]. ↩

12. [2007] QSC 274 at [17]. ↩

13. [2007] QSC 274 at [21] – [24]. ↩

14. [2007] QSC 274 at [25] – [28].