Attorney-General v Travers [2018] QSC 73

[1] Application is made by the Attorney-General for orders against the respondent under Part 2 of the Dangerous Prisoners (Sexual Offenders) Act 2003 (Qld) (the Act).

[2] If the Attorney-General can satisfy the Court that the respondent is a serious danger to the community in the absence of an order under the Act, then a discretion arises in the Court to make a continuing detention order or a supervision order.[1]

[3] If the respondent is a serious danger to the community in the absence of an order under the Act, then the Court is required by the Act to consider whether "adequate protection of the community can be reasonably and practicably managed by a supervision order".[2] If not, then as "the paramount consideration is ... the need to ensure adequate protection of the community", a continuing discretion order will (subject to the discretion to make no order) be made.[3] Where a supervision order will ensure "adequate protection of the community", the making of a supervision order ought to be preferred to the making of a continuing detention order.[4]

[4] No doubt in recognition of these principles and having regard to the psychiatric evidence in the case, the Attorney-General acknowledges that if an order is to be made then it should be a supervision order rather than a continuing detention order.[5]

[5] The respondent submits that no order should be made under the Act, as the Attorney-General has failed to prove "by acceptable, cogent evidence" and "to a high degree of probability" that he is a "serious danger to the community" as required by s 13(2)[6] of the Act.

[6] The respondent was born on 2 April 1979. He has just turned 39 years of age.

[7] On 28 February 2002 and 1 March 2002, the respondent committed serious offences against a 21 month-old girl. The child's mother was in a romantic relationship with the respondent. The child's mother and father had separated some time prior to the offences being committed. Custody of the child vested with the child's father, but the child spent time with her mother. While the respondent did not reside with the child's mother, the respondent was often at the mother's home, so therefore had access to the child.

[8] The respondent was convicted on his own plea of guilty to assault occasioning bodily harm with a circumstance of aggravation and two counts of rape. The assault occurred on 28 February 2002, the particulars of which were that the respondent burnt the child with a cigarette. The two offences of rape occurred on 1 March 2002 and were particularised as an entry of the child's vagina (one count of rape) and an entry of her anus (the second count). There is some factual dispute as to the method of penetration. The respondent has from time to time denied penile penetration. On the respondent's application for leave to appeal against sentence,[7] McMurdo P explained that a finding of digital (as opposed to penile) penetration was unlikely to have resulted in a shorter sentence. In this respect her Honour said:

"[29] The applicant, who is apparently of average intelligence and competence, gave informed written instructions to his solicitor to conduct the sentence on the basis of an acceptance of the prosecution allegations of penile rather than digital rape. There is no evidence before this Court that the prosecution submissions at sentence were untrue. This was a sexual act of extreme violence perpetrated upon a 21 month old in the care of an offender for the purpose of seeking revenge on the mother, with serious injuries to the child. In those circumstances it matters little whether the weapon used was a penis, a finger or fingers or some other object. Had he contested the sentence on this basis he would have had less mitigating benefit for remorse and, in any case, the medical evidence did not suggest his prospects were promising. His legal advice, which he accepted, not to contest the sentence on this basis was sound. He did not dissent in court from the facts placed before the sentencing judge by the prosecutor. The applicant's contention that his legal representation was incompetent in not advising him to contest the sentence leading to a miscarriage of justice is without basis: TKWJ."[8]

[9] The respondent's offending against the child was opportunistic, in that it occurred when the child's mother left the home for a short period leaving the child in the respondent's care.[9] It is likely that the respondent's attack upon the child was a result of his resentment that the child's mother was paying the child more attention than she was paying him.[10]

[10] By any standard, the offences committed by the respondent against the child were horrific. McMurdo P described the medical findings of the injuries to the child as follows:

"[10] At the hospital the child was anaesthetised and examined in the operating theatre. Her labium minora and majora were bruised laterally and there was a transection through the posterior vaginal hymen with a tear extending to the vaginal wall and posterior fourchette. Her vagina contained a significant amount of fresh blood. She had a lax anus with a small two to three millimetre tear in the posterior wall of her anus. She had six discrete lesions from half a millimetre to one centimetre in diameter consistent with burns on her left arm. A more thorough examination by the gynaecology Registrar revealed a tear to the right fornix, the upper part of the vagina, approximately one centimetre in length. This was unable to be sutured and firm pressure was applied to stop the haemorrhage. The introitus was sutured. The injuries were consistent with recent forceful penetration with a blunt object to both the vagina and anus by a penis or similar sized object and inconsistent with digital penetration. The tear beside the cervix in the upper part of the vagina was consistent with deep penetration within the vagina. The injuries could not have been caused by a fall or an astride accident. The lesions on the left arm were consistent with cigarette burns and the distribution was not that of accidental injury. It is not presently known whether the child has been permanently injured."[11]

[11] On 22 August 2003, the respondent was sentenced to five years' imprisonment on the count of assault and 16 years' imprisonment on each of the two counts of rape. All sentences were ordered to be served concurrently. However, as the offences of rape attracted a sentence exceeding 10 years imprisonment, Part 9A of the Penalties and Sentences Act 1992 (Qld) mandated that those offences be declared serious violent offences, with the result that the respondent was to serve 80 per cent of the sentences before being eligible for release on parole. As the respondent had been in custody in relation to those offences since shortly after they were committed, a period of 497 days pre-sentence custody was declared as time served. I will refer to the offences committed against the child as "the index offences".

[12] The respondent denies that the index offences were sexually motivated. There was clearly, though, a sexual aspect of the offending. That is especially so if the penetration of the child was effected by the respondent's penis. Perhaps obviously, it is difficult to see how that could have been done without the respondent achieving an erection and therefore some sexual arousal. Even if the penetration was effected by some object other than the respondent's penis, the fact remains that the genitalia and anus of the child were targeted by the respondent and that must surely lead to a conclusion that there was some sexual element to the attack.

[13] However, while the respondent had a criminal history prior to the commission of the index offences, there were no convictions for any offences of a sexual nature or any offences involving violence. His criminal history commenced on 4 July 1996, when he was sentenced in the Magistrates Court at Caboolture. He was then 17. On that date, he was convicted of minor drug offences, some offences of dishonesty and a charge of breaking and entering a dwelling house with intent. He was placed on probation for two years and ordered to perform some community service. Those orders were breached and on 2 February 1998 he was resentenced and fined.

[24] Section 3 identifies the objects of the Act. That section provides:

(a) to provide for the continued detention in custody or supervised release of a particular class of prisoner to ensure adequate protection of the community; and

(b) to provide continuing control, care or treatment of a particular class of prisoner to facilitate their rehabilitation."

[25] Section 5 empowers the Attorney-General to apply for orders against a "prisoner". The Act though does not apply to all prisoners. The relevant "prisoners" for the purposes of the Act are those defined by s 5(6) which is as follows:

"prisoner means a prisoner detained in custody who is serving a period of imprisonment for a serious sexual offence, or serving a period of imprisonment that includes a term of imprisonment for a serious sexual offence, whether the person was sentenced to the term or period of imprisonment before or after the commencement of this section."

[26] The term "serious sexual offence" is defined as follows:

"serious sexual offence means an offence of a sexual nature, whether committed in Queensland or outside Queensland -

(c) against a person, including a fictitious person represented to the prisoner as a real person, whom the prisoner believed to be a child under the age of 16 years."[13]

[27] As already observed, there is an issue as to whether the index offences were sexually motivated. However, the motivation for the index offences is not relevant as to whether the respondent is a "prisoner" for the purposes of the Act. What is relevant is whether the offences are "of a sexual nature" and "involve violence" or are offences "of a sexual nature" committed "against a child". Rape is an offence of "a sexual nature".[14] The complainant in the index offences was a child. The index offences are offences "of a sexual nature" that clearly both "involved violence" and were "against a child". The respondent is a "prisoner" for the purposes of the Act.

[28] Sections 5 to 12 are machinery provisions regulating the interlocutory steps to be taken before a final hearing of the Attorney-General's application. Of some importance here is s 9AA. That section provides for any "eligible person" to be notified of the fact that an application has been made under the Act and to invite the person to express views on the application. An eligible person under the Act is one who is registered as an eligible person under the provisions of the Corrective Services Act 2006 (Qld). Here an eligible person provided a written submission. That submission was tendered by the Attorney-General as required by s 9AA(4). I have had regard to its contents.

[29] Section 13 is the pivotal section of the Act. It is in these terms:

1. Division 3 orders

(1) This section applies if, on the hearing of an application for a division 3 order, the court is satisfied the prisoner is a serious danger to the community in the absence of a division 3 order (a serious danger to the community).

(2) A prisoner is a serious danger to the community as mentioned in subsection (1) if there is an unacceptable risk that the prisoner will commit a serious sexual offence -

(b) if the prisoner is released from custody without a supervision order being made.

(3) On hearing the application, the court may decide that it is satisfied as required under subsection (1) only if it is satisfied -

that the evidence is of sufficient weight to justify the decision.

(4) In deciding whether a prisoner is a serious danger to the community as mentioned in subsection (1), the court must have regard to the following -

(a) the reports prepared by the psychiatrists under section 11 and the extent to which the prisoner cooperated in the examinations by the psychiatrists;

(b) any other medical, psychiatric, psychological or other assessment relating to the prisoner;

(c) information indicating whether or not there is a propensity on the part of the prisoner to commit serious sexual offences in the future;

(d) whether or not there is any pattern of offending behaviour on the part of the prisoner;

(e) efforts by the prisoner to address the cause or causes of the prisoner's offending behaviour, including whether the prisoner participated in rehabilitation programs;

(f) whether or not the prisoner's participation in rehabilitation programs has had a positive effect on the prisoner;

(g) the prisoner's antecedents and criminal history;

(h) the risk that the prisoner will commit another serious sexual offence if released into the community;

(i) the need to protect members of the community from that risk;

(5) If the court is satisfied as required under subsection (1) , the court may order -

(a) that the prisoner be detained in custody for an indefinite term for control, care or treatment (continuing detention order); or

(b) that the prisoner be released from custody subject to the requirements it considers appropriate that are stated in the order (supervision order).

(6) In deciding whether to make an order under subsection (5)(a) or (b) -

(a) the paramount consideration is to be the need to ensure adequate protection of the community; and

(i) adequate protection of the community can be reasonably and practicably managed by a supervision order; and

(ii) requirements under section 16 can be reasonably and practicably managed by corrective services officers.

(7) The Attorney-General has the onus of proving that a prisoner is a serious danger to the community as mentioned in subsection (1)."

[30] The critical question is whether the respondent "is a serious danger to the community in the absence of [a continuing detention order or a supervision order]". He will be such a prisoner "if there is an unacceptable risk that the prisoner will commit a serious sexual offence" without either a continuing detention order or a supervision order. It is important for present purposes that the issue is not one of risk of reoffending in general, (or even of offending violently) but a risk of reoffending in a particular way, namely by the commission of "a serious sexual offence".

[31] Section 13(3) is a statutory variation on the principles identified by the High Court in Briginshaw.[15]

[32] Reports were tendered by three psychiatrists: Dr Andrew Aboud, Dr Scott Harden, and Dr Donald Grant. All three are well qualified and very experienced in the field of forensic psychiatry and, in particular, the diagnosis and assessment of dangerous prisoners. All three doctors were called before me and gave evidence supplementing their written reports. Dr Aboud was cross-examined by Ms Bryson, who appeared for the respondent.

[33] Drs Grant and Harden were both of the view that the respondent's risk of sexually reoffending is low and both recommended against the making of any order under the Act.[16] Dr Aboud assessed the respondent's risk of sexually reoffending as between low and moderate[17] and opined that the risk of reoffending sexually would be reduced to low if the respondent was the subject of a supervision order.

[34] In his report Dr Aboud diagnosed the respondent as suffering stimulant drug dependence disorder, cannabis dependence disorder, alcohol abuse disorder, antisocial personality traits and some features of post-traumatic stress disorder.[18] As to the level of risk and his recommendation to the Court, Dr Aboud said:

"Taking into consideration the various actuarial and dynamic assessments of future violence and sexual violence risk that have been applied, it is my view that Mr Travers' current overall risk would be between low and moderate in respect of both sexual violence and general (non sexual) violence. In coming to this conclusion 1 take into account: the level of risk reflected in the actuarial assessments; the more worrying aspects of his offending behaviour, including the impulsive nature of his sexual violence; his use of physical coercion; the problems he has had with anger management, jealousy and coping with stress; his significant history of alcohol and, in particular, substance misuse; his relationship and intimacy difficulties; his tendency toward impersonal sexual behaviour and using sexual activity as a coping mechanism; and his history of broad antisocial behaviour. It is noteworthy that he has previously breached parole conditions. It is also noteworthy, however, that during the course of his incarceration he has participated in recommended group sexual offender treatment programs and substance abuse programs. He received favourable exit reports for the programs he has participated in. There is evidence from his IOMS case records and from the various program exit reports and from my clinical interview, that he has undergone significant maturation over the past 10 years. He remains vulnerable to substance misuse, highlighted by his parole breaches for consuming alcohol, and this may again be the case in the immediate post-release period. He remains vulnerable to social stressors, relationship instability and personal insecurities."

In my opinion his risk of reoffending sexually would be reduced to low in the context of a supervision order. If and when he is released to the community, I highlight the following issues as important considerations for future management: access to stable accommodation, and if possible the close support of family members; abstinence from alcohol and substances; enhancement of prosocial personal support networks; management of associations with persons who misuse alcohol and substances; efforts to enhance structured prosocial daily activities and routine, if possible, by way of employment; provision of professional support from a psychologist in the community (to assist with adaptive coping, broad problem solving skills, emotional regulation, self-esteem, relationship difficulties, ongoing work to address alcohol and substance use vulnerabilities).

If the court sees it fit to release him subject to a supervision order, it is my recommendation that the order be imposed for a period of no more than 5 years." [19]

[35] Dr Aboud considered Dr Grant's report and commented as follows:

"I am aware that it is the view of psychiatrist Dr Grant that a supervision order may not be necessary in this case. I am concerned that Mr Travers has twice breached parole, and on both occasions part of the breach involved the consumption of alcohol. I am in agreement with Dr Grant, however, that Mr Travers did not engage in any untoward sexual or violent behaviour when on parole, and also may well volunteer to engage in the various recommended aspects of his ongoing rehabilitation, and may not require a supervision order to do this." [20]

[36] The final paragraph of Dr Aboud's report is in these terms:

"Ultimately, I believe it is for the Court to decide whether Mr Travers represents an unacceptably high risk to the community in the absence of a supervision order. On balance, it is my view that his index offence occurred in circumstances that are unlikely to repeat, on the basis of: his increased understanding of his risk factors due to participation in sexual offender and substance abuse therapies; his natural maturation over 16 years; his abstinence from illicit drugs for 10 years; the low probability that he would again engage in such a dysfunctional relationship as the one that occurred between him and the victim's mother. It should be considered that he would still have reporting conditions in respect of ANCOR, but he would not be subject to parole conditions."[21]

[37] During the course of his evidence before me, Dr Aboud said:

1. The respondent has progressed well in prison.[22]
2. The respondent was mentally unwell as a result of substance abuse when first taken into custody.[23]
3. Up to the time of the commission of the index offences, the respondent was using substances and was not stable.[24]
4. The motivation for the respondent to commit the index offences was likely to have been seeking revenge against his partner.[25]
5. Any reoffending would likely only occur if the respondent became unstable, primarily in an intimate relationship.[26]
6. The only evidence that instability would result in a sexual offence is that the index offences were of a sexual nature.[27]
7. Sexual reoffending is no more likely than violent reoffending not involving a sexual element.[28]

[38] Dr Grant in his report opined that a significant factor relevant to the risk of future reoffending was the motivation behind the index offences. He observed in his report that there was insufficient evidence to diagnose sexual paraphilia or deviance. Dr Grant also could not find evidence of psychopathic personality disorder. While Dr Grant thought that there were factors which might contribute to an increased likelihood of general reoffending, that would not necessarily involve sexual reoffending. Dr Grant in his report said:

An exact assessment of risk in this case depends to some extent on whether the index offence had any sexual motivation or whether it was, as indicated by Mr Travers and by the sentencing judge, primarily motivated by rage. If indeed that is the case then, in my opinion there is minimal risk of sexual re-offending. If that original index offence did have a sexual component and if the offence involved penile rape then that would indicate that Mr Travers continues to have a lack of honesty and insight in regard to that offending and the risk would then be somewhat more significant. However, in my opinion even in those circumstances at this stage at the end of a 16-year sentence the risk of a sexual re-offence would remain low.

A significant factor in assessing risk is whether Mr Travers has a sexual paraphilia or deviance and whether he has psychopathic personality traits. In my opinion, there is insufficient evidence to suggest that Mr Travers suffers from a sexual paraphilia. In particular I could not find evidence that he suffers from Paedophilia. Also I could not find evidence of Psychopathic Personality Disorder."[29]

[39] As the passage set out above demonstrates, Dr Grant was concerned as to the motivation for the index offences. In his evidence before me, Dr Grant said that he thought the motivation for the index offences was likely to have been the respondent's anger at his partner, not sexual gratification.[30] He thought the index offences resulted from a series of factors in the respondent's life which are unlikely to be repeated.[31]

[40] Dr Grant shared Dr Aboud's opinion[32] that a fairly defined set of circumstances would have to emerge before it would be likely that the respondent would offend again. However, Dr Grant thought that even then, the risk was of general offending rather than sexual offending.[33]

[41] Dr Grant's ultimate opinion was expressed in his report in these terms:

"In my opinion, a Supervision Order directed at preventing sexual re-offending is not particularly relevant in this case and in my opinion it could in fact impede aspects of Mr Travers' rehabilitation. In the absence of any paedophilia and a low risk of sexual re-offending I believe that the application of rigid restrictions in terms of access to children or situations where children might be (such as the beach or a gym) would likely to do more harm than good in terms of Mr Travers' social rehabilitation."[34]

[42] Dr Harden's opinion aligned quite closely with Dr Grant's. Dr Harden found no evidence suggesting paraphilia, in particular paedophilia.[35] Dr Harden's ultimate opinion was this:

"It is much more likely than not that he will not reoffend sexually. There is some (moderate) risk of non violent general offending if he were to return to substance abuse. On balance I do not believe that a supervision order will significantly alter the risk of sexual reoffending.[36]

[43] Like Dr Grant, Dr Harden thought that the primary motivation for the index offences "was likely violent in nature rather than sexually violent although as the sentencing judge noted sexual elements cannot be ruled out".[37]

[44] In evidence, Dr Harden thought that a supervision order would be more damaging than beneficial.[38]

[45] As one would expect from three psychiatrists, all very experienced in the field, the doctors were not really far apart in their respective opinions. I sense that any difference of view is explicable by reason of the odd circumstances of the case: a very violent attack upon a young child; an obvious sexual aspect to the attack in that there was penetration of both the vagina and anus (probably by the respondent's penis), but likely no sexual motivation as such for the attack; no evidence of paraphilia; no history of sexual offending before or since the index offences. Dr Aboud's opinion differed from that of Dr Grant and Dr Harden in that he thought a supervision order would reduce risk. However, it is obvious to me that Dr Aboud's view was that this was a very marginal case for the imposition of a supervision order. Dr Aboud was quite properly very careful to qualify his views in a suitable way.[39]

[46] Mr Tate who appeared for the Attorney-General when opening the case quite properly identified precisely why the application had been made. Mr Tate said:

"MR TATE: Your Honour, in my submission, my learned friend is correct in identifying the issue in this case of being whether or not an order is required to protect the community. There are three doctors who've reviewed this man. Dr Grant was the first. He indicates that he's of - at low risk and that there is no need for a supervision order. Dr Harden is low to moderate risk - well below average. And he does not consider, on balance, that a supervision order will significantly alter the risk of sexual reoffending. Dr Aboud places the respondent at - between low and moderate risk and that that risk might be reduced to low in the context of the supervision order and certainly in relation to the observations of Dr Aboud. I put those in the outline of submissions.

Basically, your Honour, the Attorney's position is that she is concerned about the context and the concerns that are raised by Dr Aboud. Having said that, she goes no further, really, than to say that it's proper for this court to review the evidence to form a view that the community can be adequately protected by either a supervision order or no order. And the basis for the Attorney's concern really relates to the index offences, albeit that they're isolated and a long time ago. It was the horrific nature of them."[40]

[47] No doubt, the Attorney-General's concern was heightened by the quite unusual aspects of the index offences which are now summarised at [45] above.

[48] Dr Grant and Dr Harden were very firmly of the view that the respondent's risk of committing a serious sexual offence without a supervision order was low, and that the imposition of a supervision order would not reduce risk. I accept that evidence

[49] Having regard to all the evidence, including of course the psychiatric evidence, I am not satisfied to a high degree of probability that the evidence is of sufficient weight to justify a finding that the respondent is a serious danger to the community in the absence of an order under Division 3 of the Act. It therefore follows that I do not make such a finding and the application must be dismissed.

[50] The order of the Court is that the application is dismissed.

[1] Dangerous Prisoners (Sexual Offenders) Act 2003 (Qld) s 13. There is a residual discretion to make no order; see Fardon v Attorney-General for the State of Qld [2004] HCA 46; (2004) 223 CLR 575 at [113]; Attorney-General v Francis [2007] 1 Qd R 396.

[2] Section 13(6)(b)(i). There is a residual discretion to make no order; see Fardon v Attorney-General for the State of Qld [2004] HCA 46; (2004) 223 CLR 575 at [113]; Attorney-General v Francis [2007] 1 Qd R 396.

[3] Section 13(6)(a).

[4] Attorney-General v Francis [2007] 1 Qd R 396 at [39]; Attorney-General v Yeo [2008] QCA 115; Attorney-General v Lawrence [2009] QCA 136; [2010] 1 Qd R 505, LAB v Attorney-General [2011] QCA 230; Attorney-General v Ellis [2012] QCA 182; Attorney-General v Fardon [2013] QCA 64.

[5] Applicant's outline of submissions, 26 March 2018 at [2]; Transcript at 1-4 l 35 to 1-5 l 7.

[6] See also s 13(3) as to the type of proof required.

[7] R v TK [2004] QCA 394.

[8] At [29]. "TKWJ" is a reference to TKWJ v The Queen [2002] HCA 46; (2002) 212 CLR 124.

[9] R v TK [2004] QCA 394 at [8].

[12] Specifically referred to by Dr Aboud: Transcript at 1-8 l 10.

[13] Section 2 and the Schedule.

[14] Attorney-General for the State of Queensland v Phineasa [2012] QCA 184; [2013] 1 Qd R 305; Attorney-General for the State of Queensland v Tilbrook [2012] QCA 279.

[15] Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336.

[16] Affidavit of Donald Archibald Grant, filed 8 January 2018, CFI 10, ex DAG-2 at 32 ("Grant report"); Psychiatric Report and Risk Assessment of Dr Scott Harden, filed 13 March 2018, CFI 26 at 17 ("Harden report").

[17] Report of Dr Andrew Aboud, 8 March 2018 at 21.

[19] At 21-22. The emphasis is Dr Aboud's.

[28] This is what I draw from his evidence at 1-11 l 20 to 1-12 l 30.

[30] Transcript at 1-18 ll 30-40, 1-20 ll 15-20.

[32] Set out at [36] of these reasons.

[39] Aboud report at 22; the passage at [36] of these reasons.

[40] Transcript at 1-4 l 37 to 1-5 l 10.