Attorney-General (Qld) v Fisher [2009] QSC 169

22 of the Dangerous Prisoners (Sexual Offenders) Act 2003

alleging contravention of a supervision order made by

The order was to be in force for 10 years. It included a

number of conditions, including that the respondent not commit

an indictable offence while the order was in force and that he

On 23 November 2007 an electronic monitoring personal

identification device was fitted. This took the form of a

bracelet worn around his ankle referred to as an anklet.

Since then, several substitute devices have been fitted.

On 2 March 2009, the respondent breached the order by removing

the anklet. A warrant was issued for his arrest and he was

taken into custody. On 15 April 2009, he was released

pursuant to an order made by Applegarth J for his release

pending a final decision on the application under section 22.

Under that section, it is for the respondent to satisfy the

Court on the balance of probabilities that the adequate

protection of the community can be ensured by the existing

order, amended if appropriate, despite the contravention. If

the Court is not so satisfied, it must rescind the supervision

The respondent is an indigenous man aged 25. He is illiterate

and innumerate. He has never been employed. On the evidence,

he has a personality disorder. His intelligence has been

assessed as either borderline to low average or below average.

On 13 October 2004, the respondent was convicted of rape,

assault occasioning bodily harm and common assault. The rape

was constituted by the digital penetration of the two year old

daughter of his then partner. The other two offences were

committed against his partner's other children and they were

evidenced by bite marks and other harm done to them.

He was also convicted of unlawful and indecent assault. That

offence had been committed on another occasion at a nightclub

when he had placed his hand on a woman's breast and squeezed

He was further convicted of robbery with personal violence

The head sentence imposed was four and a half years

Of those various offences, it is the rape of the two year old

child which has brought him within the purview of the

Dangerous Prisoners (Sexual Offenders) Act.

The removal of the anklet which constituted the breach of the

supervision order on 2 March 2009 was conceded to have been

reckless conduct. It occurred in the early hours of the

morning. Almost immediately, the respondent telephoned a

Corrective Services officer and said that the anklet had

fallen off. Two officers attended his premises shortly after

that, and later in the morning a substitute device was fitted.

The supervision order was made by Mackenzie J who had the

benefit of the evidence of three psychiatrists who had

examined the respondent, Dr Lawrence, Dr Beech and Dr James.

His Honour found that the respondent's acceptance of the

seriousness of his sexual offences and his understanding that

such offences should not be committed was limited. He found

that there was an unacceptable risk that the respondent would

commit a serious sexual offence if he were released from

custody or released without a supervision order being in

place. His Honour said that two things emerged from the

evidence of the psychiatrists: first, that the respondent was

not in the category of offenders who appear to be intractable

and second; that he was a young man whose process of

maturation and better understanding of the issues might result

appropriate. He concluded that a continuing detention order

was not required, but that in order both to protect the public

and to require the respondent to undertake programs which

might heighten the degree of insight that was necessary to

minimise the risk of serious sexual offending in the future, a

Upon his release pursuant to the order of Mackenzie J, the

respondent lived for a time at the Wacol Reserve and then

moved into a house with his father and brother. His father is

away from the house for extended periods attending to family

business. His brother works in a mine in Central Queensland

on a week on, week off basis, with the result that he, too, is

The respondent is subject to a curfew between the hours of 10

He is unemployed. He seems to spend his time, as Dr Lawrence

described, drifting. He works on his car from time to time,

he watches television, he does a few household chores. He has

formed a relationship with a young woman, Hilary. That

relationship is now of some months' standing and he hopes that

Clearly, the respondent has found the curfew and the electronic monitoring device to be intrusive and a source of frustration and irritation. This is apparent from the log of interventions which is exhibited to the affidavit of Mr Wildin filed 3 March 2009.

Importantly, one of the conditions of the supervision order

has been abstinence from alcohol and dangerous drugs. The

respondent has been compliant with that requirement but for

one instance in January 2009. At that time, he consumed

beer which was brought to the house by his girlfriend in

circumstances where he was apparently depressed about his

It is significant that the breach now before the Court was not

committed in the context of consumption of alcohol or illicit

There are two further psychiatric reports presently before the

Court: a report of Dr Lawrence and a report of Dr Harden.

There is also a report of a psychologist, Ms Shay Addison.

Both Dr Lawrence and Dr Harden consider the risk of sexual

re-offending to be high. Both are of the view that the

circumstances of this breach do not give rise to increased

risk of sexual re-offending. The significant circumstances

are that the breach was not in the context of a disinhibiting

agent such as alcohol or an illicit drug and that the

respondent promptly reported the removal of the anklet to

Corrective Services rather than, for example, trying to

Dr Harden observed that while the respondent's insights and

judgments appeared to be adequate appropriately to manage

day-to-day interactions and he appeared to have some

understanding of his legal situation, he had little or no

insight into his own psychological functioning with regard to

his prior sexual offending. He appeared to be trying very

hard to minimise the nature and seriousness of his offences

and had a limited relapse prevention plan. Dr Harden said

there was significant externalisation of responsibility to

external variables and other people. He said that the

respondent's underlying psychological constraints associated

with his prior sexual offending continued to be unknown,

probably because of a combination of concrete thinking on his

part, extreme minimisation, and denial and disavowal of sexual

content and sexual matters. While the respondent expressed a strong desire not to re-offend, his planning around managing situations of high risk was, in general, superficial or non-existent and he had continually struggled against the need for significant restrictions on his lifestyle in the community in order to decrease the risk of future offences.

Dr Harden considered that he had antisocial personality

disorder with very significant psychopathic personality

traits. He also had a significant history of polysubstance

abuse with a stated particular preference for alcohol. He

said that the risk of re-offending was high and it was most

likely to be impulsive and opportunistic. Dr Harden was

nevertheless of the view that a supervision order on the terms

of that made by Mackenzie J would be an appropriate way of

The respondent had completed a High Intensity Sexual Offenders

Program. The results had not been particularly encouraging.

Dr Harden said that, given his limited intellect and limited literacy skills, he may have benefited more from the Inclusion Program which is available only to inmates of correctional centres. However, even completion of that program would not be a guarantee against further offending. What it might have done would have been to give him an opportunity to develop better strategies aimed at avoiding relapse and a better understanding of why the supervision order, which he resents, is necessary.

Dr Harden did not suggest any amendment to the supervision

Dr Lawrence, as I have said, gave evidence before Mackenzie J.

She said then that the risk of future offending was high and

that the risk of re-offending might well be more in the

direction of other antisocial, potentially violent, behaviour

rather than necessarily sexual behaviour, although sexual

Generally, Dr Lawrence' views did not differ from those of

Dr Harden which I have just described. She placed particular

emphasis on the need for more constructive activity during his

non-curfew hours. She suggested that he ought to undertake

some work, even if voluntary in nature, to make better use of

his time. While she did not suggest that the supervision

order required amendment, it is of concern that she said there

is really nothing to give any hope that the risk is

decreasing. Like Dr Harden, she said that the Inclusion

Program, even if it were available to the respondent and

completed by him, would not have a guaranteed outcome and she

was not overly hopeful that it would have a positive outcome.

She drew attention to a range of factors, including

personality and intellect, as being relevant in assessing

outcomes. Clearly, in Dr Lawrence's view, the respondent's

behaviour has been a product of his personality more than

Ms Shay Addison's report records that the respondent attended

seven of nine pre-arranged counselling sessions between

mid-December 2008 and 20 February 2009. She said there were

many outstanding treatment needs requiring appropriate

intervention, but she thought they had established a "decent

rapport" and she was willing to engage further with the

Thus, it seems there is very little difference between the

expert opinions. It is significant that there has been no re-offending of a sexual nature since the supervision order was made by Mackenzie J, and I accept the submission of the respondent's counsel that there really has been a genuine

attempt to comply with its terms, albeit with some resentment

In all of the circumstances, the respondent has satisfied me

on the balance of probabilities that despite the contravention

on 2 March 2009, adequate protection of the community can be

ensured by a continuation of the order made by Mackenzie J.

The order has worked in the last 15 months and I am satisfied

that it will provide adequate protection into the future.

HER HONOUR: Pursuant to section 22(7) of the Dangerous Prisoners Sexual Offenders Act 2003 Queensland, the respondent continue to be subject to the supervision order imposed by Mackenzie J on 22 November 2007.