CRIMINAL LAW – SENTENCE – SENTENCING ORDERS – ORDERS AND
DECLARATIONS RELATING TO SERIOUS OR VIOLENT OFFENDERS
OR DANGEROUS SEXUAL
OFFENDERS – DANGEROUS SEXUAL OFFENDER – GENERALLY – where
Source
Original judgment source is linked above.
Catchwords
CRIMINAL LAW – SENTENCE – SENTENCING ORDERS – ORDERS ANDDECLARATIONS RELATING TO SERIOUS OR VIOLENT OFFENDERSOR DANGEROUS SEXUALOFFENDERS – DANGEROUS SEXUAL OFFENDER – GENERALLY – wherethe applicant applied for orderspursuant to Division 3 of the DangerousPrisoners (Sexual Offenders) Act 2003 (Qld) – where the respondent wasconvicted of serious sexual offences within the meaning of the Act –where the respondentwas a serious danger to the community – whetheradequate protection of the community can be reasonably and practically managedby a supervision order – where the psychiatric evidence did not indicatethe level of risk that the respondent will commitanother serious sexual offenceif released from custody subject to a supervision order – whether therespondent should be detainedin custody for the purpose of furthertreatmentAttorney General v Francis [2007] 1 Qd R396
Corrective Services Act 2006 (Qld), s 21, s 200, s 200A, ss
201-215
Criminal Code 1899 (Qld), s 228D (1) (b), s 210
Criminal
Code Act 1995 (Cth) s 474.19 (1)(a)(i),(ii),(iii), (b), (aa), s 474.27(1), s
474.26(1), s 474.27A(1)
Criminal Code (WA), s 320(2), s
320(4)
Dangerous Prisoners (Sexual Offenders) Act 2003 (Qld), s 5(3),
s 8(1), (2), s 11, s 13, s 13A, s 16, s16A, s16B, s 20, s 21, s 22, s 43A, s
43AA, s 45(2), s 55(3)
Human Rights Act 2019 (Qld)
Penalties and
Sentences Act 1992 (Qld), s 93, s 94, ss120-132
Judgment (173 paragraphs)
[1]
CRIMINAL LAW - SENTENCE - SENTENCING ORDERS - ORDERS AND DECLARATIONS RELATING TO SERIOUS OR VIOLENT OFFENDERS OR DANGEROUS SEXUAL OFFENDERS - DANGEROUS SEXUAL OFFENDER - GENERALLY - where the applicant applied for orders pursuant to Division 3 of the Dangerous Prisoners (Sexual Offenders) Act2003 (Qld) - where the respondent was convicted of serious sexual offences within the meaning of the Act - where the respondent was a serious danger to the community - whether adequate protection of the community can be reasonably and practically managed by a supervision order - where the psychiatric evidence did not indicate the level of risk that the respondent will commit another serious sexual offence if released from custody subject to a supervision order - whether the respondent should be detained in custody for the purpose of further treatment
whether the respondent is a serious danger to the community?[1]
whether adequate protection of the community can be reasonably and practically managed by a supervision order (and whether the requirements under section 16 of the Act can reasonably and practicably be managed by corrective services officers)?[2] and
what requirements, beyond those that a supervision order must contain by section 16 of the Act, it is appropriate to include in any supervision order?
[3] There is a dispute as to the second question, but the parties are otherwise agreed that the answer to the first question is "yes" and as to the requirements of any supervision order that the court should make, accepting that the court must form its own views on each of the relevant questions and as to the exercise of the discretionary power to make an order that may be engaged.
[8]
[4] The respondent is 60 years of age and was 54 years of age throughout the period of the index offences. Strictly speaking, the index offence under which the respondent is still serving an unexpired period of imprisonment is an offence of using a carriage service to transmit, make available, publish, advertise or promote child pornography material,[3] for which he was convicted and sentenced on 28 January 2016. But because that offence was one of many sexual offences for which the respondent was sentenced or resentenced on that day I will treat all of those offences as the index offences. They all involved the use of the internet. There were two relevant episodes of offending.
[5] On 23 May 2012, the respondent was convicted and sentenced of two sexual offences of using a carriage service to access child pornography material.[4] The first offence was committed over the period between 18 April 2009 and 13 April 2010. The second offence was committed between 24 April 2010 and 9 May 2011. In fact, the period of offending was continuous. The reason for two separate charges was that the maximum penalty for the offence increased from the date of commencement of the second offence.[5] It was ordered that the respondent be imprisoned for period of 21 months but that he be released after six months and two weeks, conditional upon him giving a recognisance of $1,000 and a three year good behaviour bond. A further order imposed a two year probation order following his release from prison.
[6] Those offences involved or resulted in the respondent's possession of 902 computer files constituting images of young boys between eight and 16 years of age. They included images from category 1 to category 5, including a substantial amount of the two most serious categories. The category 5 images comprised images of male children engaged in penetrative sexual activity with adult men, including sadistic or painful sexual acts.
[7] On 28 January 2016, the respondent was convicted of 14 sexual offences involving the use of a carriage service, two further sexual offences of possessing child exploitation material and two other offences, including an offence of breach of the recognisance order imposed on 23 May 2012. The offending occurred between 6 July 2014 and 24 January 2015.
[9]
[11] The respondent has a highly relevant earlier criminal history of sexual offences.
[12] On 31 August 1989 he was convicted of two offences of indecent dealing with a boy under 14 years of age[15] committed between 1 October and 31 December 1988. He was sentenced to two years' probation with conditions as to receiving psychiatric or psychological examination and treatment as directed. The respondent was 28 years of age at the time of the offences. The victims were two brothers aged 11 and 12 years. The respondent became a close friend of the victims' family. The offences occurred whilst the children stayed at the respondent's house for the night. Each of the offences was constituted by the respondent briefly masturbating the child.
[13] On 9 December 1992, the respondent was convicted in the District Court of Western Australia of an offence of indecent dealing with a child under 13 years of age[16] on 14 August 1992. He was sentenced to a 12 month probation order with conditions not to have unsupervised contact with children and to attend and complete a community based sex offender's program or other treatment program as directed. The respondent was 32 years of age at the time of the offence. Following a gymnastics class in which the respondent was an instructor, he was to drop the nine year old victim home in his car. Before leaving the gymnasium building, he asked the victim to kiss him. The victim refused. The respondent put his arm around his shoulders and started to stroke his hair. The victim broke away. The respondent then drove him home.
[14] On 24 September 1999, the respondent was convicted in the District Court of Western Australia on one count of sexual penetration of a child under 13 years of age[17] and four counts of indecent dealing of a child under 13 years of age[18] on 21 May 1999. The respondent was 39 years of age at the time of the offences. The victim was a 12 year old boy. The respondent was staying overnight with the victim's family. The respondent went inside the victim's bedroom and placed his hand inside the victim's pyjamas and touched his penis, before leaving the room. The following morning, the respondent took the victim to his bedroom and again touched the victim's penis with his hand and performed fellatio on the victim. The respondent then held and used the victim's hand to masturbate himself until he ejaculated. The respondent was sentenced to a period of imprisonment of three years and six months for the offence of penetration and concurrent lesser terms of imprisonment in each of the indecent dealing offences.
[10]
[15] The respondent has been examined by three psychiatrists who prepared reports that were tendered at the hearing of the application. Each of the psychiatrists also gave oral evidence. The report by Dr Sundin was prepared for the purpose of the preliminary hearing[19] upon the application for an order under section 8 of the Act to set a date for the hearing of this application.[20] By that order, the respondent was ordered to undergo examination by two psychiatrists who were to prepare independent reports.[21] The reports by Drs Beech and Simpson were risk assessment reports[22] prepared under section 11 of the Act, for the purposes of this hearing as a result of those ordered examinations.
[16] Each of the psychiatrists opined that the respondent suffers from a paedophilic disorder. In both Dr Sundin and Dr Simpson's opinions, he meets the DSM-V criteria for paedophilic disorder, non-exclusive type, sexually attracted to males, not limited to incest. In Dr Beech's opinion, he has paedophilia with an attraction to young male children and the child exploitation material may point to other fetishes and paraphilia, but this is not clear.
[17] A number of the orders made at the times when the respondent was sentenced in the past indicated or provided for treatment or sexual offender programs. It appears that he may have undertaken a sex offender treatment program in Western Australia in or after October 2000.
[18] Following release from prison in November 2012, from January 2013, the respondent attended the Getting Started: Preparatory Program for sex offenders in this State. He undertook 21 hours of that program and was considered to have participated to a satisfactory level. From February to June 2013, the respondent undertook a Medium Intensity Sexual Offenders Program at the Cairns probation and parole office over 32 sessions. He was considered to have developed greater insight and to be taking greater responsibility over the course of the program. At that time he had also engaged with a private psychologist to address his sexual deviancy.
[19] On 16 February 2016, the respondent was assaulted by another prisoner. His throat was cut. At least for the last few years, he has been in protective custody in prison.
[11]
"I see little benefit in him participating in a further sexual offenders' treatment program given his capacity to be deceptive and the inability of those programs to address individual sexual deviance.
[12]
However, I would recommend that he should complete at least six months of intensive counselling with a skilled forensic psychologist to address the issue of his paraphilia prior to his release into the community.
[13]
Thereafter, he could continue in the community under a strict supervision order with continued attendance with the same psychologist. He would need to have a number of disclosure and non-contact clauses in his supervision order. Less attention needs to be paid to issues pertaining to substance abuse. He would benefit from assistance with furthering his educational goals and in engaging in employment."
[14]
[26] Dr Sundin's reference to "capacity to be deceptive" was not, in my view, supported by the evidence of facts contained in her report. It appears to be a reference to her earlier opinion that the respondent was "superficial and deceptive during his participation in the Medium Intensity Sexual Program". The basis for that opinion was not explained but I infer it may be that the respondent participated in the MISOP from February to June 2013, yet further offended in December 2014. I do not agree that those facts support the inference that the respondent was deceptive during the MISOP.
[27] Although Dr Sundin's report was prepared for the purposes of the preliminary hearing,[24] the applicant sought to supplement that evidence by obtaining further written and oral evidence as to Dr Sundin's opinions for the hearing of this application. Although it amounts to additional evidence to that provided for by the Act, and although a respondent to an application like the present has almost no practical opportunity or means to obtain responsive evidence, the court is still required to permit the applicant to tender it.[25]
[28] On 30 June 2020, having reviewed Mr Walkley's affidavit and treatment session summary and updated prison file material, Dr Sundin expressed the view that she had not changed the opinion expressed in her report.
[29] On 3 July 2020, having been provided with the reports of Drs Beech and Simpson, she expressed the further views that:
[15]
"There are several features that strike me in the material:
[16]
Mr Carter's continued refusal to participate in the HISOP, indicating a clear reluctance to address his sexual offending and reflecting his avoidant pattern of coping.
His lack of an internal locus of control.
Mr Carter's continued engagement in sexually deviant fantasies while incarcerated.
The concerns expressed by myself and my colleagues with regard to his deceptiveness.
The psychologist's report of 15 November 2019 wherein he expressed his concern that it was unclear how committed Mr Carter was to challenging his sexually deviant cognitions 'in real life situations'.
The psychology sessions appear to have not made any major inroads into his sexual deviance as yet and have in part, been addressing life outside of prison, presumably with the hope of reducing potential risk scenarios.
[17]
Having considered all this material, I consider the ideal approach to reducing this man's risk of sexual recidivism would be for him to undertake the HISOP in tandem with one on one psychological counselling that addresses his sexual deviancy."
[18]
[30] Having carefully reviewed the reports of Drs Beech and Simpson as well as the additional material referred to that was provided to Dr Sundin, the shift between the view expressed in her report that "I see little benefit in him participating in a further sexual offenders treatment program" and the view expressed in the last paragraph of her 3 July 2020 addendum report is not, in my view, adequately explained or supported by the reasons given. Nor, in my opinion, did Dr Sundin's oral evidence do so. Mr Carter's refusal to participate in a HISOP was not new or considered to be a decisive factor against a supervision order in her report. Neither Dr Beech nor Dr Simpson expressed concerns as to the respondent's deceptiveness in their reports. The psychologist's (Mr Walkley) report of 15 November 2019 had been taken into account in her views expressed on 30 June 2020 and was available before her initial report.
[31] Dr Simpson opined as to the questions of risk and a supervision order as follows:
[19]
"Mr Carter has sought to minimise his offending and place blame on external circumstances: not having a partner, not being occupied in employment etc. He has been noted to hold attitudes that seek to condone or excuse his behaviours. He has repeatedly sought out opportunities to engage with children by volunteering in Scouts, gymnastics etc, and befriending/grooming victims. It seems unlikely that further courses in custody will act to reduce his ongoing risk of further sexual offending.
[20]
A supervision order will however, act to provide more oversight of his activities and monitor his relationships and restrict access to future victims. I would support ongoing engagement with a psychologist if he is released into the community to assist with both adaptive coping skills and problem solving as well as addressing sexual deviant attitudes. Access to social media and internet should be restricted and available for monitoring and review. He should be restricted from accessing minors (male). Given his comments about not having enough to do previously, encouraging and supporting him to find ongoing employment would be beneficial, as would broadening his social network and support among appropriate pro-social communities."
[21]
[32] Despite those views, in oral evidence Dr Simpson appeared to change position in evidence in chief. In answer to a question from the applicant's counsel she said:
[22]
"I might also add that as I am new to this arena of the DPSOA legislation, I perhaps have not considered that [a] HISOP cannot be completed in the community. So I was considering that maybe he would attend that under a supervision order in the community. But I now, having reflected on the further material, I understand that it can only be completed in custody... and I do think that would be of benefit in terms of addressing general offending risks..."
[23]
[33] That evidence was not consistent with the opinion in Dr Simpson's report that "it seems unlikely that further courses in custody will act to reduce his ongoing risk of further sexual offending". In my view, the change in opinion was not satisfactorily explained.
[34] Dr Beech expressed the following views as to risk and a supervision order in his report:
[24]
"I think Mr Carter remains untreated. The appropriate treatment would consist of both participating in a high intensity sexual offender program to address those factors around his offending generally, combined with individual counselling that specifically addresses the sexual deviance. Mr Carter has not undertaken the group program, and I think that the 10 sessions with Mr Walkley simply is inadequate. Certainly, Mr Carter does not seem to have taken on board any strategies to manage the fantasies present. Another option would be medication, but he simply eschews this.
[25]
The supervision order would reduce the risk by reducing his access to children through monitoring and surveillance and proscriptions on his movements. Presumably there would be an embargo on internet access, but it is difficult to know to what extent Mr Carter would adhere to that, and the extent that his facility with the internet might allow him to avoid detection. It is difficult to know to what extent the risk would be reduced by a supervision order given the lack of treatment response, the lack of appropriate treatment for the paraphilia, Mr Carter's quick resumption of offending on release in the past and the few, if any, avenues to meet those risk factors in the community."
[26]
[35] In oral evidence, I asked Dr Beech whether the lack of any offending by physical contact with a child for 21 years indicated some sense of self-regulation by the respondent. Dr Beech did not think so and referred to the circumstances that as the respondent got older, his opportunities for physical contact were diminished, but the opportunity to engage children online via technology had increased. I further asked Dr Beech about the concern expressed in his report as to the respondent avoiding detection of prohibited online activity and as to his expertise in that field. He said that he had no relevant expertise.
[36] In my view, the way the reports were prepared and the evidence given in this case is a matter of some concern. It can be seen from the extracts set out above that none of the reports specifically addressed the level of risk of the respondent committing a serious sexual offence if subject to a supervision order in the terms that are proposed by the applicant if a continuing detention order is not made. The terms of that order are the Schedule to these reasons.
[37] The applicant's evidence was adduced in that form in circumstances where the applicant's primary submission, emphasised in bold type in the written outline, is that "the issue in this case is whether the respondent should be required to complete relevant sex offender programs, or individual treatment, before released to the community under a supervision order. He is currently a recidivist, high risk, inadequately treated sex offender with a diagnosis of paedophilia."
[38] With all respect, as I pointed out at the beginning of the hearing to the applicant's counsel, once the court is satisfied that the respondent is a serious danger to the community in the absence of a division 3 order, leaving aside an exceptional case where it is possible that no order will be made,[26] the court must make either a continuing detention order or a supervision order. In deciding whether to make one or the other of those orders, the paramount consideration is the need to ensure adequate protection of the community, but the court must consider whether adequate protection of the community can be reasonably and practicably managed by a supervision order, having regard also to whether the requirements under s 16 can be reasonably and practicably managed by corrective services officers.
[27]
[43] As previously explained, by the terms of section 13(6) of the Act, the court must consider whether adequate protection of the community can be reasonably and practicably managed by a supervision order. The court must also consider whether the requirements under section 16 (the requirements a supervision must contain and those that the court considers appropriate) can be reasonably and practicably managed by corrective services officers.
[44] The court's findings upon those questions is to be informed by the risk assessment reports prepared under section 11 of the Act. Also as previously explained, each such report must indicate the psychiatrist's assessment of the level of the risk that the prisoner will commit another serious sexual offence if released from custody without a supervision order being made.[30] That requires the psychiatrist to address the question of level of the risk having regard to the requirements of a hypothetical supervision order.
[45] Some of those requirements are set out in section 16 of the Act, but other sections are also relevant. First, the period that a supervision order is to have effect cannot end before five years after the end of the period of imprisonment for the index offences.[31]
[46] As to the requirements under section 16, section 16(1) provides that a supervision order must contain requirements as follows:
[28]
(a) report to a corrective services officer at the place, and within the time, stated in the order and advise the officer of the prisoner's current name and address; and
[29]
(b) report to, and receive visits from, a corrective services officer as directed by the court or a relevant appeal court; and
[30]
(c) notify a corrective services officer of every change of the prisoner's name, place of residence or employment at least 2 business days before the change happens; and
[31]
(d) be under the supervision of a corrective services officer; and
[32]
(da) comply with a curfew direction or monitoring direction; and
[33]
(daa) comply with any reasonable direction under section 16B given to the prisoner; and
[34]
(db) comply with every reasonable direction of a corrective services officer that is not directly inconsistent with a requirement of the order; and
[35]
If the only requirement under subsection (2) contained in a particular order is that the released prisoner must live at least 1km from any school -
[36]
A proposed direction to the prisoner would be directly inconsistent if it requires the released prisoner to live at least 2km from any school.
A proposed direction to the prisoner would not be directly inconsistent if it requires the released prisoner to live at least a stated distance from something else, including, for example, children's playgrounds, public parks, education and care service premises or QEC service premises.
A proposed direction to the prisoner would not be directly inconsistent if it requires the released prisoner not to live anywhere unless that place has been approved by a corrective services officer.
[37]
(e) not leave or stay out of Queensland without the permission of a corrective services officer; and
[38]
(f) not commit an offence of a sexual nature during the period of the order."
[39]
[47] Section 16B, referred to in section 16(1)(daa) above, provides:
[40]
"(1) A corrective services officer may give a released prisoner a reasonable direction about -
[41]
a direction that the released prisoner may only reside at a place of residence approved by a corrective services officer
[42]
(b) the released prisoner's rehabilitation or care or treatment; or
[43]
a direction that the released prisoner participate in stated treatment programs
[44]
(2) A direction under subsection (1) may relate to a matter even though the relevant order imposes a requirement about the matter, either generally or specifically.
[45]
(3) However, the direction must not be directly inconsistent with a requirement of the order."
[46]
[48] Under section 16A of the Act, corrective services officers have other powers in relation to a prisoner released on a supervision order that do not depend on the requirements of the supervision order except that they may not be exercised inconsistently as follows:
[47]
"(1) The purpose of this section is to enable the movements of a released prisoner to be restricted and to enable the location of the released prisoner to be monitored.
[48]
(2) A corrective services officer may give 1 or both of the following directions to the released prisoner -
[49]
(a) a direction to remain at a stated place for stated periods ("curfew direction");
[50]
a direction to remain at the released prisoner's place of residence from 2.30p.m. to 7.00 p.m. on school days, if the prisoner is not required to be at a place of employment during these hours
[51]
(b) a direction to do 1 or both of the following ("monitoring direction") -
[52]
(ii) permit the installation of any device or equipment at the place where the released prisoner resides.
[53]
(3) A corrective services officer may give any reasonable directions to a released prisoner that are necessary for the proper administration of a curfew direction or monitoring direction.
[54]
(4) A direction under this section must not be directly inconsistent with a requirement of the relevant order for the released prisoner."
[55]
[49] Accordingly, a reporting psychiatrist's assessment of the level of risk of another serious sexual offence with a supervision order must be made assuming the requirements for a supervision order as set out above and having regard to the additional powers of corrective services officers as set out above.
[56]
[50] In addition to that, the supervision order that might be made is one that may contain any other requirement that the court considers appropriate as provided for by section 16(2) as follows:
[57]
"(2) The order may contain any other requirement the court or a relevant appeal court considers appropriate -
[58]
(a) to ensure adequate protection of the community; or
[59]
a requirement that the prisoner must not knowingly reside with a convicted sexual offender
a requirement that the prisoner must not, without reasonable excuse, be within 200m of a school
a requirement that the prisoner must wear a device for monitoring the prisoner's location
[60]
(b) for the prisoner's rehabilitation or care or treatment."
[61]
[51] On the hearing of an application for a division 3 order under section 13(5) of the Act, the applicant may contend for a continuing detention order. However, it is common, perhaps universal, that the applicant will submit in the alternative that any supervision order should contain particular requirements additional to the mandatory requirements under section 16(1) as set out above.
[52] The potential effect of any additional requirements to be imposed under s 16(2) of the Act on a reporting psychiatrist's assessment of the level of risk is a relevant matter. But unless the applicant provides the terms of any proposed supervision order to the reporting psychiatrists before their independent reports are obtained under section 11, the reports will not address those proposed requirements. Nevertheless, there is little or no excuse for any failure by the applicant to raise any proposed additional requirements well before the hearing of the application for a division 3 order. Paragraph 9 of the Checklist, required under Practice Direction 6 of 2012, provides that a draft of the order sought by the applicant must be attached to the checklist. Where the applicant contends for an alternative supervision order, that alternative order is required to be attached.
[53] In the present case, the applicant stated in the Checklist that the terms of the draft order were still being finalised. When the applicant's outline of submissions were filed they stated that a draft order was still being prepared. When the application came on for hearing and the parties read their material, the applicant did not hand up a draft supervision order to enable the court to consider whether adequate protection of the community can be reasonably and practicably managed by corrective services officers before the court asked for it.
[54] Another relevant factor as to the terms of a supervision order for a risk assessment report under s 11 of the Act is that on 11 October 2019 last year the court published a pro forma supervision order. [32] That pro forma order addresses subject matters outside the statutory minima, including draft requirements for a prisoner whose risk of committing another serious sexual offence is against children. The draft supervision order handed up by the applicant includes all the requirements of the pro forma order except for the deletion of requirement 10 and that the pro-forma requirement 26 as to alcohol is limited after six months to keeping a maximum blood alcohol content below .05 percent.
[62]
SCHEDULE TO: Attorney-General (Qld) v Carter[2020] QSC 217
THE COURT ORDERS THAT Terance Guy Carter be released from prison and must follow the rules in this supervision order for 10 years, until 23 July 2030.
[65]
You are being released from prison but only if you obey the rules in this supervision order.
[66]
If you break any of the rules in this supervision order, the police or Queensland Corrective Services have the power to arrest you. Then the Court might order that you go back to prison.
[67]
You must obey these rules for the next 10 years.
[68]
On the day you are released from prison, you must report before 4 pm to a Corrective Services officer at the Community Corrections office closest to where you will live. You must tell the Corrective Services officer your name and the address where you will live.
[69]
A Corrective Services officer will tell you the times and dates when you must report to them. You must report to them at the times they tell you to report. A Corrective Services officer might visit you at your home. You must let the Corrective Services officer come into your house.
[70]
To "report" means to visit a Corrective Services officer and talk to them face to face.
[71]
A Corrective Services officer will supervise you until this order is finished. This means you must obey any reasonable direction that a Corrective Services officer gives you about:
[72]
where you are allowed to live; and
2. rehabilitation, care or treatment programs; and
[73]
who you may not have contact with; and
2. anything else, except for instructions that mean you will break the rules in this supervision order.
[74]
A "reasonable direction" is an instruction about what you must do, or what you must not do, that is reasonable in that situation.
[75]
"Contact" means any type of communication, including things like talking, texting, sending letters or emails, posting pictures or chatting. You must not do any of these things in person, by telephone, computer, social media or in any other way.
[76]
If you are not sure about a direction, you can ask a Corrective Services officer for more information, or talk to your lawyer about it.
[77]
You must answer and tell the truth if a Corrective Services officer asks you about where you are, what you have been doing or what you are planning to do, and who you are spending time with.
[78]
If you change your name, where you live or any employment, you must tell a Corrective Services officer at least two business days before the change will happen.
[79]
A "business day" is a week day (Monday, Tuesday, Wednesday, Thursday and Friday) that is not a public holiday.
[80]
You must not break the law by committing a sexual offence.
[81]
You must live at a place approved by a Corrective Services officer. You must obey any rules that are made about people who live there.
[82]
You must not live at another place. If you want to live at another place, you must tell a Corrective Services officer the address of the place you want to live. The Corrective Services officer will decide if you are allowed to live at that place. You are allowed to change the place you live only when you get written permission from a Corrective Services officer to live at another place.
[83]
This also means you must get written permission from a Corrective Service officer before you are allowed to stay overnight, or for a few days, or for a few weeks, at another place.
[84]
You must not leave Queensland. If you want to leave Queensland, you must ask for written permission from a Corrective Services officer. You are allowed to leave Queensland only after you get written permission from a Corrective Services officer.
[85]
A Corrective Services officer has power to tell you to stay at a place (for example, the place you live) at particular times. This is called a curfew direction. You must obey a curfew direction.
[86]
A Corrective Services officer has power to tell you to:
wear a device that tracks your location; and
let them install a device or equipment at the place you live. This will monitor if you are there.
[87]
This is called a monitoring direction. You must obey a monitoring direction.
[88]
You must get written permission from a Corrective Services officer before you are allowed to start a job, start studying or start volunteer work.
[89]
When you ask for permission, you must tell the Corrective Services officer these things:
[90]
what the job is;
2. who you will work for;
[91]
the place or places where you will work; and
2. (if it is study) where you want to study and what you want to study.
[92]
If a Corrective Services officer tells you to stop working or studying you must obey what they tell you.
[93]
You must tell a Corrective Services officer the details (make, model, colour and registration number) about any vehicle you own, borrow or hire. You must tell the Corrective Services officer these details immediately (on the same day) you get the vehicle.
[94]
You are only allowed to own or have (even if you do not own it) one mobile phone. You must tell a Corrective Services officer the details (make, model, phone number and service provider) about any mobile phone you own or have within 24 hours of when you get the phone.
[95]
You must give a Corrective Services officer all passwords and passcodes for any mobile phone you own or have. You must let a Corrective Services officer look at the phone and everything on the phone.
[96]
You must get written permission from a Corrective Services officer before you are allowed to use a computer, phone or other device to access the internet.
[97]
You must give a Corrective Services officer any password or other access code you know for the computer, phone or other device. You must do this within 24 hours of when you start using the computer, phone or other device. You must let a Corrective Services officer look at the computer, phone or other device and everything on it.
[98]
You must give a Corrective Services officer details (including user names and passwords) about any email address, instant messaging service, chat rooms, or social networking sites that you use. You must do this within 24 hours of when you start using any of these things.
[99]
You must not contact or try to contact any victim(s) of a sexual offence committed by you. You must not ask someone else to do this for you.
[100]
"Contact" means any type of communication, including things like talking, texting, sending letters or emails, posting pictures or chatting. You must not do any of these things in person, by telephone, computer, social media or in any other way.
[101]
For the first six (6) months of this order, you are not allowed to drink alcohol. Thereafter, you must not drink alcohol to a blood alcohol level of more than 0.05.
[102]
You are not allowed to take (for example, swallow, eat, inject, smoke or sniff) any illegal drugs. You are also not allowed to have with you or be in control of any illegal drugs.
[103]
A Corrective Services officer has the power to tell you to take a drug test or alcohol test. You must take the drug test or alcohol test when they tell you to. You must give them some of your breath, spit (saliva), pee (urine) or blood when they tell you to do this.
[104]
You are not allowed to go to pubs, clubs, hotels or nightclubs which are licensed to supply or serve alcohol. If you want to go to one of these places, you must first get written permission from a Corrective Services officer. If you do not get written permission, you are not allowed to go.
[105]
You are not allowed to visit any business that is only licensed to supply alcohol. If you want to go to one of these places, you must first get written permission from a Corrective Services officer. If you do not get written permission, you are not allowed to go.
[106]
You must tell a Corrective Services officer about any medicine that a doctor prescribes (tells you to buy). You must also tell a Corrective Services officer about any over the counter medicine that you buy or have with you. You must do this within 24 hours of seeing the doctor or buying the medicine.
[107]
You must take prescribed medicine only as directed by a doctor. You must not take any medicine (other than over the counter medicine) which has not been prescribed for you by a doctor.
[108]
You must obey any direction a Corrective Services officer gives you about seeing a doctor, psychiatrist, psychologist, social worker or other counsellor.
[109]
You must obey any direction a Corrective Services officer gives you about participating in any treatment or rehabilitation program.
[110]
You must let Corrective Services officers get information about you from any treatment or from any rehabilitation program.
[111]
Speaking to Corrective Services about what you plan to do
[112]
You must talk to a Corrective Services officer about what you plan to do each week. A Corrective Services officer will tell you how and when to do this (for example, face to face or in writing).
[113]
You must also tell a Corrective Services officer the name of new persons you have met.
[114]
This includes: people who you spend time with, work with, make friends with, see or speak to (including by using social media or the internet) regularly.
[115]
You may need to tell new contacts about your supervision order and offending history. The Corrective Services officer will instruct you to tell those persons and the Corrective Services officer may speak to them to make sure you have given them all the information.
[116]
You are not allowed to have any contact with children under 16 years of age. If you want to have supervised or unsupervised contact with a child under 16 years of age you must first get written permission from a Corrective Services officer. If you do not get written permission, you are not allowed to have contact with the child.
[117]
"Contact" means any type of communication, including things like talking with them face to face, texting, sending letters or emails, posting pictures or chatting, using a telephone, computer, social media or in any other way.
[118]
"Supervised" means having contact with the child while another person is with you and the child.
[119]
"Unsupervised" means having contact with the child while there is no other person with you and the child.
[120]
If you have any repeated contact (that is, more than one time) with a parent, guardian or carer of a child under the age of 16, you must:
Tell the person(s) about this supervision order; and
tell a Corrective Services officer the details of the person(s).
[121]
You must do this immediately. This means you have to tell the person, and tell a Corrective Services officer, on the same day you have contact with the person.
[122]
Queensland Corrective Services has power to give information about you, and about this supervision order, to any parent, guardian or caregivers that you have contact with.
[123]
Queensland Corrective Services also has power to give information about you, and about this supervision order, to an external agency (such as the Department of Child Safety).
[124]
attend any school or childcare centre;
2. be in a place where there is a children's play area or child minding area;
[125]
go to a shopping centre;
2. join any club or organisation in which children are involved;
3. participate in any club or organisation in which children are involved.
[126]
If you want to do any of these things, you must first get written permission from a Corrective Services officer. If you do not get written permission, you cannot do any of these things.
[127]
You must not collect photos/ videos/ magazines which have images of children in them. If you have any you will be asked to get rid of them by a Corrective Services officer.
[128]
You are not to get child exploitation material or images of children on a computer or phone from the internet.
[129]
You cannot get pornographic images on a computer or phone from the internet or magazines without written approval from a Corrective Services officer. Your treating psychologist will provide advice regarding this approval.
[130]
You must develop a management plan with your psychologist or psychiatrist to address any risk of sexual re-offence. You must talk about this with a Corrective Services officer when asked.
[131]
You must advise a Corrective Services officer of any personal relationships you have started.
[8] For one of the offences of using a carriage service to groom a person under 16 years of age [6] and an offence of using a carriage service to procure persons under 16 years of age to engage in or submit to sexual activity with the sender,[7] the respondent was ordered to be imprisoned for three years and six months. For the offences of possession of child exploitation material,[8] the respondent was ordered to be imprisoned for 2 years and six months. For four other offences of using a carriage service to groom a person under 16 years of age,[9] an offence of using a carriage service to transmit indecent communication to a person under 16 years of age,[10] six offences of using a carriage service to transmit, make available, publish, advertise or promote child pornography material[11] and an offence of using a carriage service to cause child pornography material to be transmitted to himself,[12] the respondent was ordered to be imprisoned for lesser concurrent periods. For a further offence of using a carriage service to transmit, make available, publish, advertise or promote child pornography material,[13] the respondent was ordered to be imprisoned for two years cumulative on the three years and six months' imprisonment imposed for the other offences. For the breach of the recognisance order imposed on 23 May 2012, it was ordered that the recognisance be forfeited and the respondent was resentenced on each of the 2009-2010 and 2010-2011 offences to a period of imprisonment of 14 months and two weeks.
[9] The grooming and procuring offences involved internet contact via Skype between the respondent and young males said to be, or believed to be, 11, 12, 13 (two offences), and 15 (three offences) years of age. None of the offences involved physical contact between the respondent and the relevant child. Either one or none of the children was located in Queensland.[14] Two were located in Victoria and the others were overseas. The offences of possession of child exploitation material were constituted by possession of 2194 computer image files, including 385 videos, again in categories 1 to 5, with the majority falling into category 4.
[10] The total period of imprisonment ordered to be served on 28 January 2016 was five years and six months, and a non-parole period of three years and nine months was fixed. The respondent's full time release date is 23 July 2020 (on account of presentence custody).
[20] On 17 March 2017, the respondent was interviewed with a view to participating in a further sexual offenders program. He did not wish to participate in a further program as he did not see the point having completed the medium intensity sexual offenders program.
[21] In February and July 2019, the respondent confirmed that he did not wish to participate in a further sexual offenders program in prison.
[22] On 15 November 2019, the respondent consulted Robert Walkley, psychologist, for individual therapy by one-on-one counselling sessions. By 28 January 2020, they had completed ten sessions.
[23] Each of the psychiatrists expressed opinions as to that psychiatrist's assessment of the level of risk that the respondent would commit another sexual offence if released from custody without a supervision order. Dr Sundin opines that he poses a higher unmodified risk to the community for future sexual recidivism. Dr Beech opines that the risk of further offending is in the high range. Dr Simpson opines that Mr Carter is at a high risk of future sexual recidivism.
[24] There is acceptable cogent evidence of sufficient weight to justify the decision that to a high degree of probability there is an unacceptable risk that the respondent will commit a serious sexual offence if released from custody without a supervision order being made and is a serious danger to the community in the absence of a division 3 order.[23]
[25] Further, each of the psychiatrists considered the effect on risk of a supervision order. The ways in which they did so varied. Dr Sundin expressed the initial view in her report that:
[39] In other words, if adequate protection can be reasonably and practicably managed by a supervision order, that is the order which should be made, not a continuing detention order.[28]
[40] Against that clear statutory background, both the applicant's submissions and the risk assessment reports of Drs Beech and Simpson, and the further views of Dr Sundin, did not clearly engage upon the question of the level of risk that the respondent will commit another serious sexual offence if released from custody with a supervision order. Instead, they deflected to whether the respondent "should be required" or "should complete" or it would be "appropriate treatment" or that it is "the ideal approach" for the respondent to participate in a High Intensity Sexual Offender Program, which he could only do in prison and individual counselling that specifically addresses his sexual deviance in a way that is greater than his counselling sessions with Mr Walkely.
[41] On applications like this one, the evidence adduced by the applicant from independent expert witnesses is given by individual psychiatrists selected from a small stable of practitioners who often prepare numerous reports for the applicant, paid for by the applicant, although the court orders the prisoner to undergo the examinations by those psychiatrists. Over time, the risk of some structural bias in the opinions obtained in that way should not be overlooked. The task of a reporting psychiatrist in producing a risk assessment report, as required by s 11 of the Act, necessarily must be informed by matters that are both within professional expertise and some matters for which professional expertise provides no special skill. They are not easily separated. The task is difficult enough. It should not be added to by the applicant encouraging or seeking the production of expert opinion that does not squarely address the relevant statutory questions.
[42] In this regard, the question whether adequate protection of the community can be reasonably and practicably managed by a supervision order should be informed by risk assessment reports that indicate the psychiatrist's assessment of the level of risk that the prisoner will commit another serious sexual offence if released from custody with a supervision order.[29] It is not a reporting psychiatrist's function to decide that a continuing detention order should be made or is preferable and, because of that view, not to indicate the level of risk with a supervision order in the report.
[55] In assessing the risk of a prisoner committing a serious sexual offence if released from custody with a supervision order, it is also relevant to take into account what are the consequences of a contravention or risk of contravention of a supervision order. If a police officer or corrective services officer reasonably suspects a released prisoner is likely to contravene, is contravening, or has contravened a requirement of the supervision order they may apply for a warrant for the arrest of the released prisoner.[33] If the magistrate is satisfied that the officer reasonably suspects one of those grounds, they must issue the warrant for arrest.[34] The warrant authorises the arrest of the released prisoner and who is brought before the court.[35] Unless exceptional circumstances exist that justify an earlier order for release pending a final decision concerning the alleged contravention,[36] the court at that point must order that the released prisoner be detained in custody until the final decision.
[56] When the final decision concerning the alleged contravention is made, if the court is satisfied that the released prisoner is likely to contravene, is contravening, or has contravened a requirement of the supervision order, the court must rescind the supervision order and make a continuing detention order,[37] unless the released prisoner satisfies the court that the adequate protection of the community can, despite the contravention or likely contravention be ensured by the existing supervision order, as amended under s 22(7) of the Act. In practice, the previously released prisoner will have been detained in custody for several months before the final decision is made, unless released under an exceptional circumstances order.
[57] Other features of the operation of a supervision order in relation to the requirements described above should be noticed. In practice, a prisoner released on a supervision order will almost always be required to live at an address in a residential precinct that has been created for sex offenders to reside. There is one in Brisbane and others in Rockhampton and Townsville. In times past, the precincts operated or were intended to operate as short term transitional accommodation facilities for a few months only. That is not the fact of their operation now. The precinct of residential accommodation operates as an additional locus of control of a released prisoner by corrective services officers. The location is within easy reach and the "rules that are made about people who live there" as stated by requirement 10 of the pro forma supervision order can and do extend to many matters.
[58] Second, any actual contravention by a released prisoner of any requirement of a supervision order without a reasonable excuse is an offence punishable by a maximum penalty of two years imprisonment.[38] If the offence is committed by removing or tampering with a monitoring device for the purpose of preventing the location of the released prisoner to be monitored the minimum penalty is one year's imprisonment served wholly in a corrective services facility and a maximum penalty of five years imprisonment.[39]
[59] Given the requirements of and operation and effect of a supervision order, it is no exaggeration to say that the release of a prisoner on a supervision order is made subject to requirements that are more rigorous and onerous than the terms on which an offender who is released into the community on parole[40] or probation[41] serves their sentence in the community. Of course, a critical difference is that the requirements of a supervision order are not imposed as a punishment for any offence. They are and can only be justified as serving the protective purposes of the Act in a way that necessarily overrides, for a person, who will have already served the full term of the period of imprisonment they were ordered to serve for the serious sexual offence constituting the index offence, the human rights to liberty and freedom of movement, that were recently recognised by statute in this jurisdiction.[42] In particular, the requirements of a supervision order are intended to fulfil the statutory purposes that the adequate protection of the community can be reasonably and practicably managed by a supervision order and that the requirements can be reasonably and practicably managed by corrective services officers.
[60] The risk assessment reports by the examining psychiatrists in the present case did not effectively address or comply with the requirement in section 11(2) of the Act that the report must indicate the psychiatrist' assessment of the level of risk that the respondent will commit another serious sexual offence if released from custody on a supervision order. The focus of the reports was, either initially or by added opinions in an addendum report or oral evidence, upon whether the respondent should be required to complete a HISOP and more one-on-one sessions with a psychologist before he is released. None of the psychiatrists said, however, that the respondent's risk of reoffending without the further treatments was high, if released on a supervision order as described above.
[61] Further, the psychiatrists assume that the respondent would participate in an HISOP if he remains in prison. Given that the respondent's full time release date is 23 July 2020, to require him to participate in an HISOP would require that a continuing detention order to be made on this application, under which he would be detained in custody for a period of up to two years before he might be considered again for release on a supervision order.
[62] A person who is subject to a continuing detention order remains a prisoner.[43] There is no express power in the Corrective Services Act2006 (Qld) to require a prisoner to participate in a stated sexual offender treatment program. A prisoner must submit to a medical examination or treatment by a doctor if the doctor considers the prisoner requires medical treatment and the chief executive may order an examination to decide certain questions.[44] But those powers do not appear to authorise a direction that requires a prisoner in a correction facility to participate in a HISOP. The same applies to one-on-one counselling sessions with a psychologist.
[63] In contrast, s 16B(1)(b) of the Act empowers a corrective services officer to require a released prisoner subject to a supervision order to participate in a stated treatment program, which could include a sex offenders' program. The same is true for one-on-one sessions with a psychologist.
[64] Given that the respondent has not agreed to participate in an HISOP, and there is not a power to require him to do so if he remains a prisoner, the success of a strategy that a continuing detention order should be made so that he be required to participate in an HISOP and further one-on-one sessions with a psychologist depends on the respondent submitting to those treatments in order to increase the prospects that he might be released in the future under a supervision order. In principle, it would be permissible to adopt such a strategy if, and only if, adequate protection of the community cannot be reasonably and practically managed by a supervision order (including whether the requirements under section 16 of the Act cannot reasonably and practicably be managed by corrective services officers). But that result would follow from a conclusion as to inadequate protection of the community from the risk that the respondent will commit another serious sexual offence if now released from custody subject to a supervision order, not because the proposed treatments are good treatment or even that they might further reduce the risk of the respondent reoffending.
[65] Whether participation in a HISOP would reduce the risk of the respondent reoffending if released from custody with a supervision order is not clearly established by the evidence. No evidence of the effect of participation in that course on risk was tendered in the risk assessment reports. In response to my question as to any objective or evidence-based assessments of the effect of a HISOP program on risk Dr Beech said that there was overseas data but he did not know of any Queensland data. The overseas data was that the effect was modest to moderate, a lessening of offending but by no means curative. I understood that answer to be directed to the rate of reoffending without a supervision order.
[66] As to the recommended further one-on-one sessions with a psychologist before release, Dr Beech opined that he could not say that these sessions would likely reduce the risk of reoffending but sessions should be directed to stopping or managing the biggest factors of the respondent's paedophiliac fantasies and preoccupation. However, in my view, the respondent as a 60 year-old man who has and has had a paedophilic paraphilia since no later than his early twenties. It was not suggested that there is a treatment that is likely to reduce his very long term paraphilia in a way that would reduce risk based on any evidence based science. Dr Simpson agreed that she was not aware of any objective evidence that this form of treatment would be likely to have an effect on the extent of the respondent's fantasizing. Rather the theory was that the recommended individual therapy would come up with strategies for dealing with the fantasies and preoccupation and how to put those strategies into place on release.
[67] It should not be overlooked that the majority of the requirements of a supervision order are not directed to treatment of a released prisoner so as to reduce the risk of further serious sexual offences. They are instead directed to reducing the opportunities for a released prisoner to commit a further offence of that kind.
[68] No release of a prisoner on a supervision order is risk free. Although the critical provisions of the Act refer to "the need to ensure adequate protection of the community"[45] or that "the adequate protection of the community... can be ensured"[46], the nature of the questions to be answered in a case like the present under s 13(5) and (6) entail that there can be adequate protection without the elimination of all risk. Given that reality, as previously explained, the task of a reporting psychiatrist who prepares a risk assessment report as to the level of risk on release with a supervision order is not easy. The author of such a report who overestimates the risk errs on the side of the protection of the community. When this occurs, the court is not permitted to do the same. The court is required to act in accordance with the judicial oath of the Judge who constitutes it, according to law, without fear or favour as between the applicant and the respondent. The risk must be assessed objectively, on the evidence, so as to answer the statutory questions. Ultimately, that is the function of the court, not the reporting psychiatrists.
[69] It is apparent from the foregoing that, in my view, the reports of the psychiatrists in the present case were not well adapted to answer the statutory question whether adequate protection of the community can be reasonably and practically managed by a supervision order, because they did not squarely address or indicate the level of the risk of the respondent committing a further serious sexual offence if released on a supervision order or the reasons for such assessment. The psychiatrists are not to be criticised for that, because the applicant who gave them instructions, briefed them with relevant materials and to whom the reports were furnished did not clearly ask for reports in that form.
[70] It is also apparent that I consider that two of the reporting psychiatrists altered the opinions they gave in ways that were relevant to the question of the risk that the respondent will commit another serious sexual offence if released from custody with a supervision order, but without adequately explaining the reasons for those altered opinions.
[71] On my assessment of the evidence overall, and considering the paramount consideration of the need to ensure the adequate protection of the community, that protection can be reasonably and practicably managed by a supervision order on the requirements contained in the draft order contained in the Schedule to these reasons and the requirements of that order under section 16 of the Act can be reasonably and practicably managed by corrective services officers.
[72] It follows that a supervision order should be made in this case.