CRIMINAL LAW – SENTENCE – SENTENCING ORDERS – ORDERS AND
DECLARATIONS RELATING TO SERIOUS OR VIOLENT OFFENDERS OR
DANGEROUS SEXUAL
OFFENDERS – DANGEROUS SEXUAL OFFENDERS – GENERALLY – where the
Source
Original judgment source is linked above.
Catchwords
CRIMINAL LAW – SENTENCE – SENTENCING ORDERS – ORDERS ANDDECLARATIONS RELATING TO SERIOUS OR VIOLENT OFFENDERS ORDANGEROUS SEXUALOFFENDERS – DANGEROUS SEXUAL OFFENDERS – GENERALLY – where therespondent is a 59-year-old manwith a history of sexual offending againstchildren – where the respondent is subject to a supervision order underthe Dangerous Prisoners (Sexual Offenders) Act 2003 (Qld) (theAct) – where the respondent is alleged to have contravened thesupervision order by failing to provide urine samples as directed(the firstcontravention) – where the respondent is also alleged to havecontravened the supervision order by failing to provide urine samples, attendscheduled reporting, and comply with a curfew (the second contravention)– where the respondent was convicted and sentenced for the secondcontravention – where the second contravention isconceded by therespondent but the first is not – whether the first contravention isproved to the requisite standard
CRIMINAL LAW – SENTENCE –
SENTENCING ORDERS – ORDERS AND DECLARATIONS RELATING TO SERIOUS OR VIOLENT
OFFENDERS OR
DANGEROUS SEXUAL OFFENDERS – DANGEROUS SEXUAL OFFENDERS
– GENERALLY – where the applicant accepts that the respondent
has
discharged the onus of proving that the adequate protection of the community can
be ensured by re-releasing the respondent to
the supervision order – where
the applicant seeks for the existing supervision order to be extended for a
further five years
– whether the adequate protection of the community
requires the existing supervision order be extended for five years, or some
other period
Judgment (117 paragraphs)
[1]
CRIMINAL LAW - SENTENCE - SENTENCING ORDERS - ORDERS AND DECLARATIONS RELATING TO SERIOUS OR VIOLENT OFFENDERS OR DANGEROUS SEXUAL OFFENDERS - DANGEROUS SEXUAL OFFENDERS - GENERALLY - where the respondent is a 59-year-old man with a history of sexual offending against children - where the respondent is subject to a supervision order under the Dangerous Prisoners (Sexual Offenders) Act 2003 (Qld) (the Act) - where the respondent is alleged to have contravened the supervision order by failing to provide urine samples as directed (the first contravention) - where the respondent is also alleged to have contravened the supervision order by failing to provide urine samples, attend scheduled reporting, and comply with a curfew (the second contravention) - where the respondent was convicted and sentenced for the second contravention - where the second contravention is conceded by the respondent but the first is not - whether the first contravention is proved to the requisite standard
[2]
CRIMINAL LAW - SENTENCE - SENTENCING ORDERS - ORDERS AND DECLARATIONS RELATING TO SERIOUS OR VIOLENT OFFENDERS OR DANGEROUS SEXUAL OFFENDERS - DANGEROUS SEXUAL OFFENDERS - GENERALLY - where the applicant accepts that the respondent has discharged the onus of proving that the adequate protection of the community can be ensured by re-releasing the respondent to the supervision order - where the applicant seeks for the existing supervision order to be extended for a further five years - whether the adequate protection of the community requires the existing supervision order be extended for five years, or some other period
Van de Wetering v Attorney-General (Qld)[2024] QCA 222, considered
[18]
[1] The respondent, Stuart McKay Smith, is a 59-year-old man who is currently subject to a supervision order made on 19 June 2017 under s 22 of the Dangerous Prisoners (Sexual Offenders) Act 2003 (Qld) (the Act).[1] That order will expire on 29 August 2027.[2]
[2] The applicant, the Attorney-General for the State of Queensland, has filed two applications in relation to alleged contraventions of the conditions of the supervision order by the respondent. The first contravention is said to have occurred between
[19]
4 January 2025 and 7 January 2025, and the second between 22 January 2025 and
[20]
4 February 2025. The contraventions variously relate to the respondent's alleged failure to provide urine samples as directed, to attend scheduled reporting, and to comply with a curfew. The respondent was convicted and sentenced for the second contravention earlier this year. That contravention is admitted by him, but the first is not.
[21]
[3] The applicant acknowledges that even if both sets of contraventions are proved, the evidence supports a finding that the court can be satisfied on the balance of probabilities that the adequate safety of the community can, despite the respondent's contraventions, be ensured by his release to a supervision order.[3] But in doing so, the applicant maintains that the existing supervision order should be amended to extend the period of the order for a further five years - that is, until 29 August 2032.
[4] The respondent submits that the onus on him has been met and that the current duration of the supervision order is sufficient to ensure the adequate protection of the community.
[5] Ultimately, the two issues for this Court's determination are:
[22]
(a) First, has the respondent contravened the existing supervision order? This issue is to be resolved by assessing whether the applicant has proved the contraventions as alleged on the balance of probabilities; and
(b) Second, upon being satisfied that the adequate protection of the community can be ensured by the respondent's release on a supervision order, is it appropriate for the court to amend the existing supervision order by extending it for a further period? This issue is to be resolved by a current assessment by the court of the period that the respondent is likely to remain a serious danger to the community in the absence of a Division 3 order under the Act.[4]
[23]
[6] For the reasons that follow, I am satisfied that:
[24]
(a) the second but not the first contravention has been proved; and
(b) the adequate protection of the community can be ensured by releasing the respondent on the existing supervision order, amended to extend the period of the order for a further two years until 29 August 2029.
[25]
[7] The respondent was born on 13 November 1965 in England and migrated to Australia with his parents when he was about two years old. His understanding is that his mother excessively drank alcohol while she was pregnant with him, and that both his parents had issues with substance abuse. They separated when the respondent was five years old.
[8] On any view, the respondent experienced an extremely prejudicial and traumatic upbringing which led to severe disruption of his attachment, personality and sexual development. Throughout his childhood, he was exposed to substance abuse, domestic violence, neglect and physical and sexual abuse committed by several of his male caregivers (including his father and uncle) and peers.
[9] The respondent and his adopted sister moved between Australia and England throughout their early life. The respondent was neglected and abused by his paternal grandmother and uncle in England. He was severely sexually abused by both his uncle and father. When the respondent reported his father's abuse to a teacher, his mother took him to live in a boys' care home. There, the respondent was physically and sexually abused by house parents and his male peers.
[10] By the time he reached his mid-teens, the respondent had started to engage in reckless and maladaptive coping behaviors, including abusing alcohol, cannabis and cocaine. The respondent reports being "very naughty" at school, and recalls an incident where he did not want to attend a woodwork class and stabbed his teacher in the hand with a chisel or javelin, resulting in a three-month suspension.[5] The respondent was also suspended for harming animals, which was a behaviour he engaged in when he was angry. He attempted to set fire to both the boys' home and his father's home.
[11] The respondent inflicted sexual abuse upon younger boys at the care home. He was evicted from the home around the age of 16 after a complaint was made against him by a peer. The respondent also spent time in a child guidance centre due to his disruptive and sexualised behaviour, and was treated at Wolston Park for alcoholism.
[12] The respondent completed schooling up to Year 9. He then worked at McDonald's in Brisbane City, and he also worked as a sex worker from his late teens. The respondent eventually obtained a job as a chef and was able to complete an apprenticeship, but he was unable to hold down a stable job. In the early 1990s, the respondent suffered a workplace injury in which he lost two fingers. He has not been able to maintain employment since his offending in 1995, and he now receives the Disability Support Pension.
[26]
[15] The respondent came to be subject to orders under the Act by serious sexual offending against children. His offending is extremely grave, and clearly within the scope of offending that the legislature contemplated when the Act was introduced.[6]
[16] When he was 15 years of age, the respondent offended against a seven-year-old male with whom he resided in the care home. That offending involved the respondent bribing the victim with lollies to have him masturbate him and perform oral sex on him. The respondent used force during the incident of oral sex. Further offending occurred up until the respondent was 17, which involved the respondent requiring the victim to touch and rub his penis and mutual oral sex. On 31 March 2016, the respondent was sentenced to three months' imprisonment for six offences of indecent treatment of a child under the age of 14 years.
[17] When the respondent was aged between 28 and 30, he offended against two three- and four-year-old boys who were known to him. This involved the respondent fondling the genitals and masturbating one of the boys, and having the boy do the same to him. The respondent also sucked that boy's penis on two or three occasions and sucked the other boy's penis on five or six occasions. On 21 February 1997, the respondent was sentenced for 11 offences in the Brisbane District Court, including indecent dealing with a child under the age of 12 with circumstances of aggravation. The respondent was imprisoned for a period of 40 months.
[18] On 14 June 1999 and 25 June 1999, when the respondent was aged 33 to 34 years, he offended again against three different boys across two distinct episodes. The first series of offending involved a 10-year-old boy, who the respondent lured away from his friends on the pretext that he had puppies to show him. The respondent indecently dealt with the boy, abducted him, and took him to bushland, where he blindfolded and gagged him with a nappy and bound the boy's hands with sticky tape. The respondent slapped the boy several times on the face, causing his nose to bleed. The respondent further dealt with the boy indecently before eventually taking him to a place near a shopping centre, where he gave the boy $3 and told him not to tell anyone.
[19] The second series of offences occurred 11 days later and involved two boys aged eight and 10 years old. The respondent followed the boys into a toilet block, saying he thought he had seen a puppy. Inside the toilet block, he threatened the boys with a knife and made them remove their clothes. He sodomised the 10-year-old boy and made the eight-year-old boy watch. At one point, the respondent withdrew his penis and made the 10-year-old boy play with it. The 10-year-old boy was visibly distressed during this ordeal.
[27]
"The psychiatric opinions do, however, support a conclusion that the risk may be reduced to acceptable by the imposition of a supervision order mandating abstinence from intoxicating substances and non-contact in the future with children, other than in a supervised environment. There will also need to be close monitoring and supervision."
[28]
[23] The respondent has attempted to account for his sexual offending in various ways over time, including his unhappiness in his marriage, drug use, uncertain employment, dissatisfaction with his life, suicidal ideation, and his own history of being a victim of abuse.
[29]
Previous contraventions of the exiting supervision order
[30]
[24] The respondent has contravened the existing supervision order on three previous occasions, although never by committing a sexual offence. Each of the prior contraventions were of the condition to abstain from the consumption of illicit drugs, and each were discovered by way of positive urine samples.
[25] The first previous contravention occurred in November 2017, when the respondent's urine test returned a positive result for Lyrica (Pregabalin), a medication that was not prescribed to him. The respondent said that he did not knowingly consume the substance and believed it had been placed in his coffee by another resident at the precinct. The respondent was arrested and returned to custody on 14 November 2017, until he was released back onto the supervision order by Bowskill J (as her Honour then was) on 16 July 2018.[8] In that proceeding, her Honour found that the psychiatric evidence plainly supported a finding that the adequate protection of the community could, despite the contravention, be ensured by the existing supervision order.[9]
[26] The second prior contravention arose in May 2021, when the respondent's urine test returned a positive result for methylamphetamine. The respondent was arrested and returned to custody on 20 May 2021. He remained in custody until he was again released back to the existing supervision order by Applegarth J on 4 November 2021,[10] with his parole being granted on 29 June 2022. On this occasion, the respondent had resorted to abusing methylamphetamine to cope with severe emotional distress related to his past trauma, relationship stressors and the decline in the health of his wife. There were also "frustrations with the conditions around his supervision", particularly his placement at the precinct.[11]
[27] The third previous contravention occurred in August 2023, when the respondent's urine test again returned a positive result for methylamphetamine. That followed the respondent suffering physical health problems, relationship issues, and the health of his wife further deteriorating before her death. The respondent was arrested and returned to custody on 14 August 2023. He was also charged with the offence of contravening the supervision order to which he pleaded guilty and was sentenced to six months' imprisonment. A period of 92 days of presentence custody was declared and the respondent was released on parole on 15 November 2023.
[31]
[30] Contravention proceedings under s 22 of the Act involve:
[32]
(a) First, the determination of whether the respondent has contravened, or is likely to contravene, the supervision order; and
(b) Second, if there has been a contravention, the exercise of a discretion to rescind the order and make a continuing detention order or amend the supervision order as appropriate.
[33]
[31] The onus is on the Attorney-General to satisfy the Court on the balance of probabilities that the respondent has contravened the supervision order.[13] Once the Court is satisfied that the order has been contravened, the onus shifts to the respondent to satisfy the Court on the balance of probabilities that the adequate protection of the community can, despite the contravention, be ensured by a supervision order, either in the form of the existing order or as amended.[14]
[32] The term "adequate protection of the community" as it appears in s 22 bears the same meaning as it does in s 13 of the Act; that is, adequate protection of the community from the unacceptable risk that the respondent will commit a "serious sexual offence".[15]
[33] Unless the respondent satisfies the court on the balance of probabilities that the adequate protection of the community can, despite the contravention, be ensured by the existing supervision order (or as amended under s 22(7)), the court must rescind the order and make a continuing detention order.[16]
[34]
Power to extend an existing supervision order
[35]
[34] An order extending an existing supervision order can be made either on application by the Attorney-General within six months of the order expiring pursuant to s 19B, or in contravention proceedings as an amendment to the existing order under
[36]
s 22(7).[17] It is this Court's power under s 22(7) that is said to be invoked in the present case.
[37]
[35] Under s 22(7)(b) of the Act, the court may amend the existing supervision order in a way the court considers appropriate to ensure adequate protection of the community, or for the respondent's rehabilitation or care or treatment. It is accepted that an order extending the period of a supervision order falls within this power.[18]
[36] The discretion to extend an existing supervision order under s 22(7) involves similar discretionary considerations to those relevant to deciding whether to impose a Division 3 order under s 13, and the period of the order under s 13A.[19] Both are to be exercised for the same purpose - to ensure the adequate protection of the community against the risk of the respondent committing a serious sexual offence. In either case, the length of the order must be set to expire at the point when the respondent is, in the court's prediction, an acceptable risk without being subject to supervision.[20]
[37] Section 13A(2) of the Act expressly provides that in fixing the period of the supervision order, the court must not have regard to whether or not the prisoner may become the subject of an application for a further supervision order, or a further supervision order. During the hearing in the present proceeding, both parties referred to an apparent difference of opinion expressed by judges of this Court about the operation of this section when assessing the appropriate length of a supervision order. On the one hand, the applicant submitted that the court must not take into account the fact that the opportunity may be available to the Attorney-General to apply to extend the existing supervision order at another time under or (7). On the other hand, the respondent submitted that in contravention proceedings these opportunities for extension are relevant.
[38]
"...in assessing the adequacy of the supervision order for the purpose of the
[39]
s 13(5) decision, consideration must, on any view, be given to the operation of s 22 of the Act."
[40]
[39] It follows that statutory context is plainly a relevant consideration when deciding whether to extend the length of a supervision order. This includes the operation of the supervision order under the Act and the consequences of contraventions.[26]
[40] Ultimately, the question for the court under s 22(7) is whether it is satisfied on the balance of probabilities that the adequate protection of the community can, despite the contravention, be ensured by the existing order, as it may be amended.[27] This question is to be answered by considering all of the evidence, including any past breaches, to determine the respondent's risk of committing a serious sexual offence.[28] In the present case, the court must determine what duration of supervision order past 29 August 2027 is necessary to ensure the adequate protection of the community against the risk. This, of course, is a different point in time assessment than when an initial Division 3 order is made under ss 13 and 13A. As Jackson J stated in Attorney-General for the State of Queensland v Robinson[2017] QSC 332, in a contravention hearing, the court's discretion is a matter:[29]
[41]
"...of opinion informed by the circumstances, particularly the contravention in question, and having regard to the wider context of the purposes of the [Act] and the operation of the existing supervision order."
[42]
[41] Turning then to a consideration of these principles on the facts of this case.
[43]
Step one: Present contraventions of the existing supervision order
[44]
[42] The applicant alleges that the respondent failed to provide a urine sample as directed by Queensland Corrective Services (QCS) officers in contravention of requirement 23 of the existing Supervision Order. Requirement 23 states that the respondent must submit to any form of drug and alcohol testing, including both random urinalysis and breath testing as directed by a QCS officer.
[43] The details of this alleged contravention are that over four consecutive days from
[45]
4 January 2025 to 7 January 2025, the respondent was directed by a QCS officer to provide a urine sample for analysis and failed to do so. The respondent was offered three opportunities to provide a sample on 7 January 2025. Evidence from QCS suggests that at the time, the respondent had been experiencing suicidal ideation and symptoms of emotional collapse following a breakdown in his relationship with his current partner, for which he attended hospital on 30 December 2024.
[46]
[44] The respondent was discharged from hospital the next day, but reported feeling overwhelmed and struggling to manage things going wrong in his life. Relevantly, the respondent has a history of emotional collapse and depression when experiencing interpersonal stress and relationship breakdowns, and using drugs as a coping mechanism. These have been accepted as risk factors for the respondent's sexual reoffending.
[45] The respondent gave several explanations for not providing urine samples at the relevant times, including some medical documentation, but the QCS officers did not consider there to be sufficient medical reason preventing the respondent from providing a urine sample. Rather, QCS officers suspected that the respondent had used illicit substances and was attempting to avoid detection.
[46] As a result of the alleged contravention, the respondent was arrested under a warrant pursuant to s 20 of the Act. On 14 January 2025, Hindman J ordered that the respondent be detained in custody until the final decision of the court under s 22.[30]
[47] There was then an exceptional circumstances hearing on 17 January 2025 before Hindman J. In that hearing, there was medical documentation in evidence which detailed the respondent's presentation to the Princess Alexandria Hospital and QEII emergency departments with urinary symptoms on two occasions (4 and 6 January 2025). Her Honour accepted this evidence as demonstrating that the respondent had a medical condition at the time the samples were requested which made urination "very difficult for him and painful".[31] Ultimately, her Honour released the respondent back onto the existing supervision order, and considered that in the circumstances the risks would be adequately ameliorated by the conditions within that order.[32]
[48] In addition, a registered nurse at the Metro South Sexual Health Service had reported to QCS that a urine sample given by the respondent on 7 January 2025 to check for disease was very small and contaminated with blood. The applicant relies on that report's indication that while it may have been painful, the respondent was able to urinate and there was no indication of blockage. On the same day that the respondent provided a urine sample to the sexual health service, he was asked by QCS to provide a sample for drug testing. The evidence is that the respondent attempted to provide a sample three times, but each time advised that he was unable to do so.
[47]
[49] I am not satisfied on the balance of probabilities that the first contravention is established. That is because there is relevant competing medical evidence which suggests that the respondent was indeed suffering from genuine medical symptoms which impacted his ability to provide a urine sample across the period in question. The fact that he did provide a sample for testing for a disease around the same time (with some difficulty) does not necessarily mean that he was able to provide further samples on demand by QCS. As such, I find that the first contravention, as particularised, is not proved.
[48]
[50] The second contravention alleged by the applicant, and conceded by the respondent, is that the respondent contravened various requirements of his existing supervision order by failing to:
[49]
(a) submit to urine drug testing (requirements 8 and 23);
(b) attend scheduled reporting with QCS officers (requirements 3 and 8); and
(c) comply with a curfew or monitoring direction issued to him by QCS (requirement 6).
[50]
[51] The details of the first of these contraventions are that over 14 consecutive days between 22 January 2025 to 4 February 2025, the respondent failed to provide a urine sample as directed by QCS officers. The respondent had provided a urine sample on 17 January 2025 which did not indicate any use of illicit substances, but did not provide any samples when directed to thereafter.
[52] The respondent again gave various explanations for not providing a sample, including prostate issues. This did not alleviate the QCS officers' concerns, particularly given an indication from the respondent's General Practitioner that he was not aware of any conditions that would prevent the respondent from providing a urine sample for testing.
[51]
[53] The respondent was scheduled to report to his Senior Case Manager on 29 January 2025 but did not attend. QCS officers attended the respondent's residence, but he had barricaded himself in his room. When the respondent eventually spoke with the officers, he denied any intention to harm himself, but he was considered by the officers to be in a low mood.
[52]
[54] Under the existing supervision order, the respondent is subject to a 24-hour curfew to remain at the precinct, except where he has been given approval to leave by a QCS officer. The applicant alleges that on 5 February 2025, the respondent left the precinct without the necessary approval.
[55] The respondent's failure to provide urine samples, non-compliance and disengagement from case management, and emotional collapse resulted in QCS officers again suspecting that he had used illicit substances and was attempting to avoid detection. QCS reports having received information from various sources indicating that the respondent and his partner were actively using methylamphetamine sourced from another resident in the precinct, and that he had sent text messages to another resident asking when they wanted the money.
[56] The respondent was again arrested under a warrant pursuant to s 20 of the Act. On
[53]
12 February 2025, Freeburn J ordered that he be detained in custody until the final decision of the court under s 22 of the Act. On 24 March 2025, the respondent pleaded guilty in the Richlands Magistrates Court and was convicted of the offence of contravention of an order pursuant to s 43AA of the Act. He was sentenced to a period of three months' imprisonment which was wholly suspended for two years.
[54]
[57] Given the respondent's admission on the second contravention, I am satisfied that the contravention as particularised is proved on the balance of probabilities. As such, the court's discretion to rescind or maintain the existing supervision order under s 22 of the Act has been enlivened.
[55]
Step two: Exercise of the discretion to rescind or maintain the existing supervision order
[56]
[58] The court has had the benefit of receiving evidence from three experienced and qualified experts: Dr Lenardon, Dr Brown and Dr Lowry. Dr Lowry is a clinical and forensic psychologist who has treated the respondent on a fortnightly basis since April 2024. Dr Brown and Dr Lenardon are forensic and clinical psychiatrists who have conducted risk assessments of the respondent in video link interviews.[33]
[57]
[59] The evidence of the psychiatrists is that the respondent's has the following psychiatric diagnoses:
[58]
(a) Non-exclusive paedophilic disorder with attraction to males (in remission in a controlled environment);
(b) Personality disorder of mixed type, with antisocial and emotionally unstable traits;
(c) Polysubstance use disorder (alcohol, cannabis, cocaine, amphetamine, methamphetamine, MDMA, prescription painkillers and stimulants) which is in remission in a controlled environment; and
(d) Post-traumatic stress disorder.
[59]
[60] In terms of the presentation of the respondent's personality disorder, Dr Brown opines that he demonstrates low distress tolerance, impulsivity, identity confusion, self-harm behaviours, fear of abandonment, and a tendency to become involved in intense and unstable relationships. Dr Lenardon notes that the respondent's personality disorder has improved over time and with treatment, whilst acknowledging that he continues to cope poorly with life stressors. Under cross-examination, Dr Lenardon further explained that many individuals outgrow a personality disorder, but this is not the case for the respondent who is now almost 60 years old and continues to experience considerable problems with adjustment.[34]
[61] Dr Brown notes that the respondent has displayed elements of sexual sadism in his offending, but that he does not meet the criteria for a diagnosis of sexual sadism disorder.[35] Dr Lenardon opines that the respondent has benefitted from sexual offending treatment and has been able to address his sexual deviance and potential sexual sadism, but notes that sexual deviance is a lifelong condition, so there is always a risk it will reemerge.
[62] The respondent registered an elevated score on a Psychopathy Checklist tool administered by both psychiatrists, but fell short of a psychopathy diagnosis.
[60]
[63] The respondent's specific risk is sexual offending against pre-pubescent children who may be known or unknown to him. Dr Lenardon notes that the respondent may use considerable pre-meditation and effort to access a victim, and that the offending could escalate to involve serious sexual violence. Dr Brown considers that the potential offending may be impulsive or planned, and involve sexual activity and psychological or physical coercion. The offending may involve either children of adult acquaintances or unsupervised children in the community.
[64] Dr Lenardon characterises the respondent's unmodified risk of sexual reoffending as moderate to high. In her view, the existing supervision order reduces the risk to low to moderate by ensuring close monitoring of the respondent's access to the community, preventing contact with potential victims, providing intense support and preventing or allowing for early detection of substance use.
[65] In contrast, Dr Brown classifies the respondent's unmodified risk as high and his risk while subject to the existing supervision order as moderate. In her opinion, the respondent presented with almost all of his risk factors for sexual reoffending during the period of the current contraventions; those factors being sexual frustration, rejection by a partner, a perception of being trapped or controlled by others, and other stressors resulting in frustration, anger, suicidal ideation and substance abuse. Dr Brown accepts, however, that the existing supervision order has been able to detect and manage these risk factors to date.
[66] In Dr Brown's opinion, the respondent's risk would significantly increase if he had access to male children and if he was intoxicated. Dr Brown also notes that when the respondent experiences relationship stress, he tends to disengage from psychological treatment and become vulnerable to rapid deterioration in mood, self-harm and suicidal behaviours, impulsive and reckless offending, rejection of supervision and drug use. Dr Brown characterises the respondent's diagnoses (outlined above) and ongoing lack of insight and self-awareness as additional risk factors.
[67] Counsel for the respondent challenged Dr Brown about this evidence, given the respondent's more recent conduct of having reported drugs in the precinct to QCS[36] and having not returned positive results for illicit drugs throughout 2024. Dr Brown maintained her view and did not accept that these features represented a "marked change" in the respondent's behaviour. The basis for this view, along with Dr Brown's refusal to accept that the respondent's presentation at hospital represented at least some positive behavioural change and that his lack of sexual reoffending or sexual deviance were factors reducing his risk, was unclear.
[61]
[71] Dr Lenardon recognises some improvements to the respondent's personality disorder with treatment, his engagement in sexual offender treatment programs, his lack of reoffending or evidence of sexual preoccupation since 1999, and his ability to engage in intimate relationships with appropriate partners. Conversely, when Dr Brown was asked about the reports from various sexual offender treatment programs that the respondent completed while in custody, her opinion differed from that of the program facilitators in that she did not think the programs "worked".[39] Her reasons for this were not apparent.
[72] Dr Lenardon acknowledged under cross-examination that the respondent had reported his concerns about the accessibility of illicit substances in the precinct to QCS, and had proactively reached out for help when he had been struggling with his mental health by reporting to hospital in December 2024. On the latter point, Dr Brown had a different view, in that she considered this presentation as highlighting that the respondent was deteriorating "into crisis behaviour".[40] Dr Brown described the respondent's discussions with QCS about his personal vulnerabilities after this hospital visit as "a small positive in a sea of negatives."[41]
[73] The respondent's treating forensic psychologist, Dr Lowry, opined that the respondent has generally engaged well in treatment sessions and has made some positive progress. Dr Lenardon made similar observations in oral evidence, referring to both the individual and group therapy the respondent has received. In contrast, Dr Brown did not accept that there has been any benefit from the respondent's psychological treatment to date, and indeed was "surprised" by aspects of Dr Lowry's evidence.[42]
[74] Dr Lowry considers that the respondent has been able to address many of his treatment goals and that he has slowly been able to develop some insight into his self-sabotaging behaviour. It was put to Dr Brown in cross-examination that the length of Dr Lowry's therapeutic relationship with the respondent meant that Dr Lowry was in a better position to assess how long it would take the respondent to achieve his treatment goals. Dr Brown disagreed with this proposition, although it was unclear on what basis.
[62]
[75] In Dr Lenardon's opinion, the respondent needs to continue with individual therapy with a clinical or forensic psychologist with expertise in treating personality disorders, re-engage in a sexual offending maintenance program, and engage in drug and alcohol intervention programs. Similarly, Dr Brown expresses the view that the respondent's treatment needs include working towards achieving stability and progression within the framework of the existing supervision order, refraining from ceasing antidepressant medication, and engaging in psychology sessions focused on increasing insight into personality vulnerabilities and the associated risk of paedophilic offending. In the hearing, Dr Brown said that the respondent's primary treatment needs should also include addressing his substance use and paraphilia.
[76] Dr Lowry's view is that the respondent needs to build understanding and compliance with the existing supervision order, develop further protective and relapse prevention strategies for sexual behaviours, substance use, self-regulation and coping, and explore factors precipitating destabilisation, particularly in the context of relationship distress. In Dr Lowry's opinion, the respondent could achieve these goals through continued fortnightly psychological intervention over the next 12 to 18 months. On this point, Dr Brown considered it "extremely unlikely" that these goals would be achieved within that time.[43] Similarly, Dr Lenardon noted that the achievement of specific psychological treatment goals is different to the respondent's risk being low enough to justify a lack of intervention.
[63]
[77] The assessment of when the respondent's risk will become acceptable is a question for the court, not the psychiatrists. But the opinions of the psychiatrists as to risk and matters within their professional expertise can assist the court in determining this issue.[44]
[78] Dr Brown recommends that the existing supervision order be extended for a period of at least five years on the basis that the respondent continues to present with almost all of his risk factors for sexual offending. In the hearing, Dr Brown maintained that, despite the significant amount of treatment the respondent has received, there has been no significant behavioral change at all. When asked specifically why an extension of five years was appropriate, Dr Brown referred to the stage 1 curfew requirements, the respondent's contraventions, and the ongoing nature of the respondent's personality disorder. Her oral evidence focused on the lack of a sustained change in the respondent, including compliance with the existing supervision order, learning to tolerate relationship distress, ceasing crisis presentation at medical facilities, being able to live independently, and achieving a routine.
[79] Dr Brown's view was that the respondent is not "doing anything" to achieve a pro-social and stable life.[45] She was not prepared to concede that much had been achieved by the respondent whilst subject to the supervision order, even the respondent's genuine engagement in sexual offender treatment programs. This aspect of her evidence is not consistent with the evidence of Dr Lendardon and Dr Lowry as set out above, that the respondent has achieved some improvement and undertaken a number of interventions and courses. Dr Brown did accept, however, that the existing supervision order has acted to reduce the respondent's risk to an acceptable level up until this point.
[80] The applicant accepted that Dr Brown had a "particularly bleak view of future improvement" but submitted that the five-year recommendation was "based on her best prediction, at this point, as to how long that risk will subsist".[46] I do not accept this submission. The overall effect of Dr Brown's evidence was that she was highly sceptical that the respondent's risk would ever reduce to an acceptable level such that he could ever be released back into the community without supervision. In that sense, the figure of five years appears to be an entirely arbitrary one.
[64]
[83] It is well established that the relevant question in contravention proceedings is the risk of the respondent committing a serious sexual offence.[48]
[84] The consequences of the risk eventuating in this case are extremely serious with devastating outcomes. The risk could manifest in penetrative sexual offending against pre-pubescent children who may be known or unknown to the respondent. The respondent may use considerable pre-mediation and effort to access a victim and the offending could escalate to involving serious sexual violence. The offending may also be impulsive.
[85] But despite the respondent's repeated contraventions of the existing order, including the contraventions giving rise to the present proceeding, it is instructive that he has not committed an offence of a sexual nature, which would have constituted a breach of the condition which appears in all supervision orders by force of s 16(1)(f) of the Act. The fact that the respondent has not committed such an offence means that the purpose of the existing supervision order has been fulfilled to date. As Jackson J relevantly observed in Attorney-General for the State of Queensland v Robinson [2017] QSC 332:[49]
[65]
"If the respondent's contrariness causes him to contravene conditions of his supervision order, and that leads to both proceedings against him for an offence of contravening the order and tighter surveillance and more trouble for QCS officers, those are prices to be paid for being subject to and costs of administering the DPSOA system but, in my view, that does not necessarily reflect an increased risk of the respondent committing a serious sexual offence" (emphasis added).
[66]
[86] I am satisfied that, despite the proven contraventions, the respondent ought to be released subject to a supervision order. The more difficult question is whether it is appropriate for the court to exercise its discretion to amend the existing order under
[67]
s 22(7) of the Act to ensure the adequate protection of the community or the respondent's rehabilitation or care or treatment.
[68]
[87] The applicant submits that that the existing order should be amended so that it is in force for a further five years from its current expiration date, that is, until 29 August 2032. The respondent's submission is that the existing supervision order provides adequate protection to the community in its current form. In support of this submission, the respondent argued that "there are far too many variables as to what could happen over the course of the next two years" and that the evidence was insufficient to grant an extension.[50]
[88] In my view, however, this argument unintentionally reverses the onus. It is critical to recall that under s 22 of the Act, the onus is on the respondent to satisfy the court that the adequate protection of the community can, despite the contravention, be ensured by a supervision order in the form of the existing order or as amended. It is a matter for the court to assess whether this onus has been satisfied.
[89] As discussed, the supervision order must be set to expire at the point when the respondent poses an acceptable risk without being subject to supervision. In this case, determining that point in time is no easy task.
[90] The evidence establishes that the respondent is still struggling to develop strong coping skills, manage stress, comply with the requirements of the supervision order and obtain a level of independence outside of the precinct. Even if it were accepted that the present contravention does not involve the positive identification of illicit substances in the respondent's system, it is reflective of his ongoing oppositional defiance to boundaries and rules. Given the respondent's background, diagnoses and institutionalisation, this is not necessarily surprising. Indeed, it is difficult to see how a man such as the respondent can be expected to, for example, obtain and maintain a job and live independently. But the problem remains that a number of these factors are integral to reducing the respondent's risk of committing a serious sexual offence.
[91] The evidence shows that the existing supervision order has fulfilled its purpose to date. It is consistent with the fact that the respondent has not committed an offence of a sexual nature since 1999, and his contraventions of the existing supervision order have always been quickly detected. As such, the respondent's risk has been appropriately managed in line with the regime under the Act, and there is no reason to suggest that this would not continue to be the case for another two years under the existing supervision order.
[69]
"Mr Smith being able to live independently, not requiring clearly to return to custody, not...contravening the order in any ways, and being able to conduct himself in a stable way without relying so much on the input of others. And all of these things, in my view, have not been achieved so far, and that's the reason for my recommendation and for agreeing with Dr Brown."
[70]
[93] I am satisfied that the respondent has made some progress in addressing his therapeutic treatment goals, and both his paedophilia and substance abuse diagnoses are in remission while in a supervised environment. The respondent seems to have, at least, made a start. He presented at hospital in a time of emotional distress on
[71]
30 December 2024 and produced a negative result in a drug screen on 17 January 2025. It is in the interests of both protecting the community and providing for the respondent's continuous care and treatment that his outstanding treatment needs are addressed while he remains subject to the existing supervision order.
[72]
[94] I accept the psychiatric evidence that the respondent is unlikely to achieve the level of behavioural change and stability to reduce his risk to an acceptable level by the end date of the current order. I also accept the applicant's submission, and the views of both psychiatrists, that the fact that the respondent's psychological treatment goals may be reached within 12 to 18 months does not necessarily mean that his risk of sexual recidivism will reach an acceptable level at that time. Any attainment of the specific goals deposed to by Dr Lowry may be factors going to an assessment of the respondent's risk, but they are only part of the relevant assessment.
[95] Ultimately, I am satisfied that the adequate protection of the community can be ensured by extending the existing supervision order for a further two years.
[96] Despite Dr Brown's considerable scepticism and understandable concern about the risk posed by the respondent, the evidence is that the respondent has displayed some progress in his individual psychological treatment and has previously demonstrated sustained periods of stability in the community. The respondent has not committed an offence of a sexual nature for over 26 years. His regular treating psychologist expects him to have achieved his treatment goals of building understanding and compliance with the supervision order, developing protective relapse prevention strategies for his sexual behaviours and substance use issues, improving self-regulation, and further exploring and understanding the factors which lead to his destabilisation including relationship distress within the next 12 to 18 months. The achievement of such goals will not remove the respondent's risk altogether, but it would mark significant progress for him. This is particularly so given his sexual offending has been partially driven by issues like substance abuse and a lack of coping strategies when things go wrong.
[97] A supervision order need not be risk free: "that would be an impossible bar."[52] Whilst the paramount consideration is the need to ensure adequate protection of the community, as Bowskill J (as her Honour then was) observed in Attorney-General for the State of Queensland v Buckley(No 2) [2022] QSC 88:[53]
[73]
"The making of a supervision order is not about trying to achieve a guarantee that the risk posed by the respondent will not eventuate. That would not be possible. If that was the aim, supervision orders would never be made."
[74]
[98] The supervision order, as extended, will now end at a point in time where the respondent may have been able to address his therapeutic needs (within the next 12 to 18 months) and display stability and compliance (for at least three years). I am satisfied that at that point, being 29 August 2029, the respondent's risk will be reduced to a satisfactory level in the absence of a supervision order.
[99] I therefore find that the existing supervision order should be amended so that it is in force for a further two years from its current expiration date, that is, until 29 August 2029.
[75]
[100] The court, being satisfied to the requisite standard that the respondent, Stuart McKay Smith, has contravened the supervision order of Boddice J made on 19 June 2017, orders that:
[76]
(a) The respondent be released from custody and continue to be subject to the supervision order.
(b) Pursuant to s 22(7)(b) of the Dangerous Prisoners (Sexual Offenders) Act 2003 (Qld), the period of the supervision order made by Boddice J on 19 June 2017 (as amended in accordance with the declaration of Muir J made on 5 December 2023) be amended by omitting the date "29 August 2027" and inserting the date "29 August 2029".
(c) The application filed 14 January 2025 is dismissed.
[77]
[1] See Attorney-General for the State of Queensland v Smith, unreported, Boddice J (as his Honour then was), SC No 87 of 2017, 19 June 2017.
[78]
[2] See Attorney-General for the State of Queensland v Smith, unreported Muir J, SC No 87 of 2017,
[4]Bickle v Attorney-General for the State of Queensland[2015] QSC 64 at [37] (Applegarth J). An appeal against this decision was dismissed in Bickle v Attorney-General for the State of Queensland[2016] 2 Qd R 523.
[81]
[5] Affidavit of A Lenardon filed 19 May 2025 at AL-4 p 49.
[82]
[6] See generally Queensland, Parliamentary Debates, Legislative Assembly, 4 June 2003 at 2581 (RJ Welford, Attorney-General and Minister for Justice), where it was said that the Act was intended to apply only to "very, very serious offenders": at 2581.
[83]
[7]Attorney-General for the State of Queensland v Smith, unreported, Boddice J, SC No 87 of 2017,
[9]Attorney-General for the State of Queensland v Smith, unreported, Bowskill J (as her Honour then was), SC No 87 of 2017, 16 July 2018.
[86]
[10] See Attorney-General for the State of Queensland v Smith[2021] QSC 357.
[87]
[11] Ibid at [4] (Applegarth J). I note that in the present proceeding, both psychiatrists accept the suitability of the precinct accommodation for the respondent.
[88]
[12] See Attorney-General for the State of Queensland v Smith, unreported, Muir J, SC No 87 of 2017,
[17] See generally Attorney-General for the State of Queensland v Robinson[2020] QSC 287 at [22] (Davis J), citing Attorney-General v Van Dessell[2006] QCA 285; [2007] 2 Qd R 1 at [31]- [32]; Bickle v Attorney-General for the State of Queensland[2016] 2 Qd R 523 at [21]-[25] (Fraser JA, Philippides JA and Mullins J, as her Honour then was, agreeing), see also Attorney-General (Qld) v Foy[2005] QSC 001 at [14] (Douglas J); Van de Wetering v Attorney-General for the State of Queensland[2024] QCA 222 at [48] (Mullins P, Henry and Williams JJ agreeing).
[94]
[18]Attorney-General (Qld) v Robinson[2020] QSC 287 at [22] (Davis J), citing Attorney-GeneralvVan
[23] At [44]-[47] citing Attorney-General for the State of Queensland v KAH[2019] QSC 36; [2019] 3 Qd R 329 at [71] (Davis J); Attorney-General for the State of Queensland v Thaiday[2021] QSC 227 at [112] (Applegarth J); Attorney General for the State of Queensland v GFC[2023] QSC 227 at [115] (Applegarth J).
[100]
[24] This is consistent with the observations of Davis J in Attorney-General (Qld) v Robinson[2020] QSC 287 at [19] (with reference to s 21(7)).
[101]
[25]Van de Wetering v Attorney-General (Qld)[2024] QCA 222 at [46]. This is consistent with the reasoning of Bowskill J (as her Honour then was) in Attorney-General (Qld) v Buckley (No 2)[2022] QSC 88 at [31(d)] and of Applegarth J in Attorney-General for the State of Queensland v Thaiday[2021] QSC 227 at [112], although I note these decisions concerned s 13 applications.
[102]
[26] See Attorney-General (Qld) v Buckley (No 2)[2022] QSC 88 at [31(d)] (Bowskill J, as her Honour then was); Attorney-General for the State of Queensland v Thaiday[2021] QSC 227 at [112] (Applegarth J).
[103]
[27]Attorney-General for the State of Queensland v Robinson[2017] QSC 332 at [88] (Jackson J).
[31]Attorney-General for the State of Queensland v Smith, unreported, Hindman J, SC No 87 of 2017,
[107]
[32] Ibid p 1-3, see also Order of Hindman J dated 17 January 2025.
[108]
[33] Both psychiatrists confirmed that their opinions were unchanged irrespective of whether the first contravention was proved or not.
[109]
[34] I note that in terms of risk of sexual reoffending, Dr Lenardon explained that structured risk assessment tools do not include age as a specific factor, but that there is research suggesting that increase in age can reduce the risk of sexual reoffending for various reasons. Dr Brown gave similar evidence on this score, and opined that none of these reasons (for example, decrease in libido) apply to the respondent.
[110]
[35] The psychiatric evidence in previous proceedings regarding the respondent link these sadistic tendencies with his anger regarding his own traumatic background.
[111]
[36] On this score, the evidence is that at various times in late 2024, the respondent reported there was "ice everywhere" at the precinct and that he "hated" it: see, eg, Affidavit of K Brown filed 2 June 2025 at KB-3 pp 37-8.
[112]
[44] See Attorney-General for the State of Queensland v Thaiday[2021] QSC 227 at [39] (Applegarth J).
[13] The respondent met his wife at the age of 25, and with her he had three children: a daughter who is now 35, a son who is 25 and a daughter who is 24. The respondent and his wife separated in 2000 due to his offending, but they remained close and eventually remarried in 2018. She died from cancer in 2022. The respondent is now in a homosexual relationship with another resident at the Wacol precinct. He has occasional contact with his son and youngest daughter, but he has not had contact with his adopted sister for 20 years. The respondent's parents died by suicide when he was about 20 years old.
[14] Aside from his sexual offending, the respondent has a criminal history involving forgery, stealing, breaking and entering, and breaching bail conditions by contacting the parents of the victims of his sexual offending.
[20] On 7 June 2001, the respondent was sentenced to an indefinite term of imprisonment in the Beenleigh District Court in respect of the offence of sodomy, and various concurrent terms of imprisonment in respect of 16 other offences, including taking a child under the age of 12 years for immoral purposes, indecent treatment of a child under 12 years, sexual assault and serious assault. On 10 November 2008, the indefinite sentence was discharged on a review, and a sentence of 18 years was imposed in its place.
[21] The existing supervision order under the Act was made by Boddice J (as his Honour then was) on 19 June 2017 and contained 47 conditions. That order was for a term of 10 years, expiring on 28 June 2027. The psychiatric evidence in the initial proceedings was that the respondent's unmodified risk of sexual recidivism was in the high range, with the most recent (2016) offending involving the planned targeting of pre-pubertal boys in isolated settings and the use of lies, threats and the presence of a weapon.
[22] In making the existing supervision order, Boddice J relevantly observed:[7]
[28] The fourth contravention proceeding came before me on 5 December 2023. In that proceeding, the psychiatric evidence was that the respondent's use of substances had increased his unmodified risk of sexual recidivism from moderate to high, but that the risk could continue to be managed by the existing supervision order. I therefore ordered that the respondent be re-released to the existing supervision order which, because of the operation of s 24 of the Act, was extended until 29 August 2027.[12]
[29] Before turning to the current contraventions, it is necessary to understand the relevant statutory context by which contravention proceedings under the Act are to be determined.
[38] In Van de Wetering v Attorney-General (Qld)[2024] QCA 222, the Court of Appeal acknowledged the "apparent divergence" on the interpretation of s 13A(2), but found it unnecessary to resolve the issue.[23] It is also unnecessary for me to resolve the issue because s 13A applies to the making of orders under s 13, and not to the making of orders in contraventions proceedings under s 22(7).[24] I note, however, the Court of Appeal's relevant observation that:[25]
[68] Dr Lenardon identifies the respondent's main risk factors as his ongoing instability in psychological and social adjustment and substance use, which arise in the context of his personality pathology. She notes that the respondent has continued to experience difficulties under the existing supervision order and considerable effort, in terms of supervision and therapeutic support, has been required to prevent future offending. Under cross-examination, Dr Lenardon explained that the respondent's lack of sexual reoffending when he had previously used substances under supervision did not necessarily indicate that his risk of reoffending was low. Rather, in Dr Lenardon's view, the respondent's lack of reoffending in those circumstances must be viewed in the context of the intense supervision he is subject to, including conditions which mean that the use of substances can be quickly detected.
[69] Both Dr Brown and Dr Lenardon shared the opinion of the QCS officers that the respondent's failure to provide urine samples when directed to was probably because he was in fact taking drugs and attempting to obscure that fact. In cross-examination, however, Dr Lenardon accepted that this was a "clinical," rather than strictly "legal," point of view.[38]
[70] On this point, the respondent submits that the conceded contraventions do not involve the positive identification of drugs in the respondent's system. While that may be true in a strict sense, it must be acknowledged that the testing for drugs was thwarted by the respondent's failure to provide the samples as he was required to do. In circumstances where the respondent has a history of substance abuse, it is reasonably open to infer that the respondent did not comply with the urine testing requirements because he was in fact using drugs at the relevant times. Even giving the respondent the benefit of the doubt about this, his refusal to provide samples is consistent with both Dr Brown and Dr Lenardon's concerns about his oppositional attitude towards the conditions of the existing supervision order, his ongoing lack of insight, and his difficulties complying with the order. On a favourable note, the respondent ultimately accepted responsibility for his actions by pleading guilty to the contravention offence.
[81] Dr Lenardon did not originally recommend an extension of the existing supervision order. By an addendum report given by email in response to a request from the applicant's solicitor, she suggests that the respondent "should achieve a prolonged (at least three years) period of stability in the community" and that that "[a]s per his current presentation, [the respondent] appears to be very far from this".[47] In oral evidence, Dr Lenardon reiterated that an extension was necessary due to the respondent's limited progression while under supervision in the community, and she was supportive of Dr Brown's evidence about the need for the existing supervision order to be extended by five years. When asked during the hearing to assess the respondent's risk of sexual recidivism at the conclusion of a five-year extension, however, Dr Lenardon was unable to answer on the basis that this was too difficult to assess.
[82] Both psychiatrists noted that the respondent's supervision at the Wacol precinct has not been without difficulty, and that he had been heavily reliant on the supervision and support of QCS officers. In Dr Brown's view, until the respondent is better able to manage his risk factors and demonstrate sustained adherence to the existing supervision order, he is very unlikely to manage outside this environment, and his risks may very quickly escalate without detection.
[92] Dr Lowry's opinion is that the respondent's treatment goals can be achieved within the next 12 to 18 months. Dr Brown and Dr Lenardon do not suggest that there is any science around the selection of a period of a further five years. Dr Lenardon explained that to consider a discharge from the supervision order, she would need to see the respondent demonstrate three years of stability, which would entail:[51]