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[2024] QCA 222
Court of Appeal (Qld)
2024-11-13
Mullins P and Henry and Williams JJ
Original judgment source is linked above.
Source: Queensland Judgments (Supreme Court Library Queensland) (www.queenslandjudgments.com.au). Converted to plain text by ZoeLaw. Not the official version.
SUPREME COURT OF QUEENSLAND
CITATION: Van De Wetering v Attorney-General (Qld) [2024] QCA 222
PARTIES: PETER JOHN VAN DE WETERING / (appellant) / v / ATTORNEY-GENERAL FOR THE STATE OF QUEENSLAND / (respondent)
FILE NO/S: Appeal No 13616 of 2023 / SC No 7009 of 2023
DIVISION: Court of Appeal
PROCEEDING: General Civil Appeal
ORIGINATING COURT: Supreme Court at Brisbane – [2023] QSC 216 (Muir J)
DELIVERED ON: 13 November 2024
DELIVERED AT: Brisbane
HEARING DATE: 13 September 2024; Appellant’s further submissions filed / 11 October 2024; Respondent’s further submissions filed / 14 October 2024
JUDGES: Mullins P and Henry and Williams JJ
ORDERS: Appeal allowed. Set aside the order made by the primary judge on 29 September 2023. Remit the originating application filed on 12 June 2023 for the division 3 order to the Trial Division for rehearing. The appellant be released from prison pursuant to s 43(4)(a) of the Dangerous Prisoners (Sexual Offenders) Act 2003 (Qld) on an interim supervision order that requires him to follow the rules set out in paragraphs 1 to 36 of annexure A to these reasons until the determination of the application for the division 3 order, or earlier order.
CATCHWORDS: CRIMINAL LAW – SENTENCE – SENTENCING ORDERS – ORDERS AND DECLARATIONS RELATING TO SERIOUS OR VIOLENT OFFENDERS OR DANGEROUS SEXUAL OFFENDERS – GENERALLY – where the Attorney-General applied for a continuing detention order under the Dangerous Prisoners (Sexual Offenders) Act 2003 (Qld) (the Act) to detain the appellant in custody for an indefinite term or that the appellant be released from custody subject to a supervision order – where it was conceded by the appellant at the hearing before the primary judge that the appellant is a serious danger to the community in the absence of a division 3 order – where the primary judge was satisfied that the adequate protection of the community could not be managed by the appellant’s release on a supervision order – where the appellant put forward a draft supervision order – where the respondent did not put forward a draft supervision order for the appellant – where the primary judge focused on the concerns of the psychiatrists who expressed a preference for more information about the appellant’s motivation for the subject offences where the appellant had not undertaken a sex offender treatment program whilst serving the sentence – where there was no expert evidence on a supervision order proposed by the respondent for the appellant and consideration by the primary judge of the statutory scheme for contraventions or anticipated contraventions of a supervision order with the consequent motivations for the appellant to comply with the supervision order – whether the primary judge failed to take account of relevant considerations for the purpose of the decision under s 13(5) of the Act / CRIMINAL LAW – SENTENCE – SENTENCING ORDERS – ORDERS AND DECLARATIONS RELATING TO SERIOUS OR VIOLENT OFFENDERS OR DANGEROUS SEXUAL OFFENDERS – GENERALLY – where the Attorney-General applied for a continuing detention order under the Dangerous Prisoners (Sexual Offenders) Act 2003 (Qld) (the Act) to detain the appellant in custody for an indefinite term or that the appellant be released from custody subject to a supervision order – where the appellant completed his sentence for the subject offences – where, at the hearing of the appeal, the Court was informed that there had been developments in respect of the appellant’s circumstances since the hearing before the primary judge and, if the appeal were allowed and the continuing detention order set aside, both parties submitted that the originating application should be remitted to the Trial Division for rehearing – whether the Court should make an interim detention order or interim supervision order pending the rehearing of the application for a division 3 order / Dangerous Prisoners (Sexual Offenders) Act 2003 (Qld), s 8, s 13, s 13A, s 19B, s 22, s 43, s 43A / Attorney-General (Qld) v Buckley (No 2) [2022] QSC 88, considered / Attorney-General (Qld) v Foy [2005] QSC 1, cited / Attorney-General (Qld) v GBE [2024] QCA 6, cited / Attorney-General (Qld) v Kanaveilomani [2015] 2 Qd R 509; [2013] QCA 404, cited / Attorney-General for the State of Queensland v DXP [2019] QSC 77, considered / Attorney-General for the State of Queensland v Fardon [2011] QCA 155, cited / Attorney-General for the State of Queensland v GFC [2023] QSC 277, cited / Attorney-General for the State of Queensland v PCO [2019] QSC 44, cited / Attorney-General for the State of Queensland v Sutherland [2006] QSC 268, considered / Attorney-General for the State of Queensland v Thaiday [2021] QSC 227, cited / Attorney-General v Francis [2007] 1 Qd R 396; [2006] QCA 234, cited / Attorney-General v KAH [2019] 3 Qd R 329; [2019] QSC 36, considered / Attorney-General v Van Dessel [2007] 2 Qd R 1; [2006] QCA 285, cited / Black v Attorney-General for the State of Queensland [2022] QCA 253, cited
COUNSEL: S B Robb KC, with N I Congram, for the appellant / J M Horton KC, with J B Rolls, for the respondent
SOLICITORS: Bell Criminal Lawyers for the appellant / C E Christensen, Crown Solicitor for the respondent
THE COURT: The respondent Attorney-General applied on 12 June 2023 for a continuing detention order under the Dangerous Prisoners (Sexual Offenders) Act 2003 (Qld) (Act) to detain the appellant in custody for an indefinite term for care, treatment or control or, alternatively, that the appellant be released from custody subject to a supervision order. It was conceded by the appellant at the hearing before the learned primary judge that the respondent’s material showed that the appellant is a serious danger to the community in the absence of a division 3 order under the Act which is the threshold question under s 13(1) of the Act. (In these reasons, the parties will be referred to consistently by their roles in this appeal, even when reference is made to the hearing before the primary judge.)
The appellant’s case before the primary judge was that the respondent could not show that the community would not be adequately protected by the appellant’s release on a supervision order and that a supervision order should be made under s 13(5)(b) of the Act. The appellant provided the primary judge with a draft supervision order. The primary judge was satisfied that the adequate protection of the community could not be managed by the appellant’s release on a supervision order and concluded that the respondent had established that there could be adequate protection of the community only by a continuing detention order: Attorney-General for the State of Queensland v Van De Wetering [2023] QSC 216 (the reasons) at [112]. The primary judge therefore made a continuing detention order on 29 September 2023.
Grounds of appeal
The primary judge erred by misstating the legal principles that apply to the exercise of the discretion under s 13(5) of the Act, in reliance on Attorney-General for the State of Queensland v Fardon [2011] QCA 155 (at [106] of the reasons) and separately in relying on Nigro v Secretary to the Department of Justice (2013) 41 VR 359 (at [103](d) of the reasons).
In finding that the evidence did not establish that the appellant is likely to comply with any supervision order (at [107] of the reasons), the primary judge erred on a material finding of fact.
The primary judge, in determining whether the adequate protection of the community could not be reasonably and practicably managed by a supervision order, failed to have regard to relevant considerations, including:
particulars of the draft supervision order proposed by the respondent, or psychiatric evidence informed by same, or information from Queensland Corrective Services (QCS) as to how an order is managed;
that the appellant is likely to comply with the requirements of a supervision order;
the consequences of non-compliance, including that a supervision order is apt to prevent the commission of a serious sexual offence in the circumstances; and
the factual matters that distinguish the appellant’s matter from Turnbull v Attorney-General (Qld) [2015] QCA 54 and Attorney-General (Qld) v S [2015] QSC 157 and in turn distinguish the relevance of the fact that the appellant had not undertaken group sex offender treatment in custody to the question of adequate risk management.
The appellant’s antecedents, offences and conduct in prison
The primary judge summarised the appellant’s antecedents, drugs and alcohol use, sexual relationship history, prior criminal history, and the relevant offending that brought the appellant under the Act (the subject offences) at [10]-[18] and [21]-[38] of the reasons. His record in prison is set out at [43]-[51] of the reasons. There is no challenge to the primary judge’s recitation of these matters. For the purpose for dealing with the grounds of appeal, a brief summary is all that is required of these matters.
The appellant had a New South Wales criminal history with relatively minor property and dishonesty offences committed up until 2000. He had one prior entry in his Queensland criminal history comprising two robberies with actual violence committed in 1996 for which he was sentenced on 21 July 2006 to an effective sentence of five years’ imprisonment that was suspended after he had served 12 months’ imprisonment with an operational period of five years. The appellant had no convictions for sexual offences prior to the subject offences. The primary judge noted (at [19] of the reasons) that the appellant was charged in 2013 with offences, including sexual offences, that were alleged to have been committed in 2007. He was acquitted at trial of some of the charges and the jury could not reach a verdict on the others (which were discontinued). As the allegations were unproven, the primary judge noted (at [20]) that they were not relevant to the determination of the division 3 application.
The subject offences were committed on 13 August 2013 when the appellant was 47 years old. The complainant for the subject offences was a backpacker. The appellant was arrested on 10 September 2013 but was not taken into custody until October 2014. On 19 February 2016, he pleaded guilty to nine offences in the District Court which included rape, attempted rape, two counts of stupefying to commit an indictable offence, kidnapping, deprivation of liberty, sexual assault, common assault and stealing. He was sentenced on 25 May 2016 to nine years’ imprisonment (with a serious violent offence declaration) for the offence of rape and lesser concurrent terms of imprisonment for each of the other offences. His full time discharge date for the subject offences was 6 October 2023.
The records of QCS show that the appellant takes a low dose of an antipsychotic medication and prescription medication for depression and anxiety. He has been a model or exemplary prisoner in terms of his general behaviour during his time in custody and been consistently employed. The appellant was assessed in the prison system for his outstanding criminogenic needs. It was recommended that he participate in the Getting Started Preparatory Program (GS:PP) followed by the Medium Intensity Sexual Offender Program (MISOP). On 12 July 2019, the appellant declined to be placed on the wait list for group sexual offender treatment programs. He maintained that refusal to participate when offered to be wait listed in 2021 and 2022 and again refused to participate in the GS:PP on 14 April 2023.
Psychological and psychiatric evidence adduced before the primary judge
The primary judge summarised the psychological and psychiatric evidence that was adduced for the purpose of the application at [57]-[87] of the reasons.
For the purpose of dealing with the grounds of appeal it is necessary to refer to some aspects of this evidence. The appellant had engaged clinical psychologist Dr Oertel for eight sessions of treatment between 28 August and 19 December 2019. The treatment focused on the link between the appellant’s antecedents and the subject offences and his coping and mood management. The primary judge noted (at [58] of the reasons) that Dr Oertel had observed that while the appellant admitted to the subject offences he sought to “minimise aspects of his sexual offending behaviour”. There is no challenge to the primary judge’s conclusion (at [60]) that Dr Oertel’s report was of little assistance in the consideration of whether adequate protection of the community could be reasonably and practically managed by a supervision order.
Forensic psychiatrist, Dr Brown, was engaged by the Crown Solicitor to undertake a risk assessment and prepare a report for the purpose of a potential application under the Act. Dr Brown’s written report dated 15 March 2023 was based on interviews with the appellant via video link on 10 and 24 February 2023 for a total of two hours and a brief of evidence provided by the Crown Solicitor which included QCS records in relation to the appellant. Dr Brown recorded the appellant’s reasons for the subject offences set out in his application for release on parole as intending to kidnap the victim for ransom but he became angry when he found there was no money, so he digitally raped the victim. He also said his “brain was scattered due to marijuana smoking and mental illness”. Dr Brown recorded the appellant’s explanation to her of the subject offences that he was unable to find employment and was frustrated that farmers preferred to employ backpackers rather than Australian workers, so he planned to rape a backpacker to scare backpackers away. He advertised for a nanny, created a fake email account, attempted to disguise himself, used a false name and obtained Stilnox from a drug dealer that he used in attempting to drug the victim with a laced chocolate. The appellant told Dr Brown that the offence was not sexually motivated.
Dr Brown noted that the sexual preferences and drives of the appellant were “poorly understood” and there was a “strong possibility” that the appellant has a paraphilia, given the nature of the subject offences. Dr Brown diagnosed the appellant with antisocial personality disorder and substance use disorder (cannabis, alcohol and possibly other drugs) which was in remission in prison. Dr Brown considered that the appellant will need individual treatment to repress his likely paraphilia and that other risk factors contributed to the potential of reoffending, being substance abuse disorder, antisocial personality disorder and poor self-awareness.
The primary judge noted (at [65](a) of the reasons) that the risk that Dr Brown was considering was that of the appellant’s committing an offence similar to the subject offences and “not just any sexual offending”. The primary judge extracted parts of Dr Brown’s oral evidence (at [67]-[69]). This evidence was to the effect that Dr Brown considered that the appellant had not given a logical account of why the subject offences occurred, he had poor self-awareness and was untreated which meant that there was no understanding objectively as to his offence pathway or his treatment needs which made it difficult to make firm recommendations around risk or to formulate a treatment plan. It was that absence of information that made Dr Brown conclude that the appellant’s risk of sexual reoffending was “potentially high”. Dr Brown conceded that the supervision order could confine him to the precinct or by tracking and that would reduce risk to some extent, but releasing the appellant on a supervision order without treatment would not properly address the risk of sexual reoffending that is not understood. The primary judge accepted (at [70]) that evidence from Dr Brown on the basis of her expertise, but that it was “also convincing as a matter of judgment given it makes common sense and is logical”.
The reasons
The primary judge set out (at [98]-[113] of the reasons) relevant authorities on the exercise of the discretion under s 13(5) of the Act, the findings of fact made for the purpose of the exercise of the discretion and the conclusion in that regard. The primary judge referred (at [99] and [103]) to the considerations which the Court must consider when deciding whether to make an order under s 13(5) that are set out in s 13(6) of the Act.
The primary judge also acknowledged (at [103](b) and (c) of the reasons) the jurisprudence that has developed in the application of the Act that can be summarised as the starting point for the making of an order under s 13(5) is preference for a supervision order, unless the Attorney-General proves that a continuing detention order is an appropriate order. As was stated by this Court (Keane and Holmes JJA and Dutney J) in Attorney-General v Francis [2007] 1 Qd R 396 at [39]:
“Insofar as his Honour was concerned that, if the appellant began to use alcohol or drugs, he might abscond, the risk of a prisoner absconding is involved in every order under s. 13(5)(b). The Act does not contemplate that arrangements to prevent such a risk must be ‘watertight’; otherwise orders under s. 13(5)(b) would never be made. The question is whether the protection of the community is adequately ensured. If supervision of the prisoner is apt to ensure adequate protection, having regard to the risk to the community posed by the prisoner, then an order for supervised release should, in principle, be preferred to a continuing detention order on the basis that the intrusions of the Act upon the liberty of the subject are exceptional, and the liberty of the subject should be constrained to no greater extent than is warranted by the statute which authorised such constraint.”
“[29] The Attorney-General must prove more than a risk of re-offending should the prisoner be released, albeit under a supervision order. As was also observed in Francis, a supervision order need not be risk free, for otherwise such orders would never be made. What must be proved is that the community cannot be adequately protected by a supervision order. Adequate protection is a relative concept. It involves the same notion which is within the expression “unacceptable risk” within s 13(2). In each way the statute recognises that some risk can be acceptable consistently with the adequate protection of the community.
[30] The existence of this onus of proof is important for the present case. None of the psychiatrists suggests that there is no risk. They differ in their descriptions of the extent of that risk. But the assessment of what level of risk is unacceptable, or alternatively put, what order is necessary to ensure adequate protection of the community, is not a matter for psychiatric opinion. It is a matter for judicial determination, requiring a value judgement as to what risk should be accepted against the serious alternative of the deprivation of a person’s liberty.” (footnote omitted)
“rehabilitation remains relevant in the sense that the court must take into account treatment therapy or other rehabilitative measures that the offender might engage in when considering whether the adequate protection of the community can be managed by a supervision order.” (footnote omitted)
“(a) the [appellant] minimises the seriousness of his offending;
the [appellant] denies a number of the facts of the offending upon which he pleaded guilty;
Dr Phillips entertains ‘doubt’ about the [appellant’s] self-report. Her major concern is the absence of a current formulation to explain the nature and severity of the current offences;
a greater understanding of the drivers that led to the current offences is necessary to have confidence in formulating an adequate risk management plan;
the [appellant’s] obvious dishonesty and lack of insight make it difficult to truly assess the risk and make it difficult for those who are supervising him in the community to know exactly what supervisory condition would be helpful;
the [appellant] has not engaged in a medium intensity sexual treatment program as recommended. There is no mental health contraindication to him completing that treatment program.
the [appellant] has not completed any substance use programs;
the sessions with Dr Oertel have not been sufficient to produce any reduction in risk (noting the [appellant’s] limited recollection of the matters discussed in treatment);
the [appellant] has limited adaptive coping skills to manage psychological stressors and so is at risk of relapsing to substance use when confronted with psychosocial stressors;
the victim of any future offending would likely be an adult female who may be a stranger or casual acquaintance – offending may occur after a protracted period of planning;
that offending could occur similar to that of previous offending, which could involve digital rape, attempted penile rape, use of intoxicating substances, restraint of the victim, kidnapping the victim, use of a weapon, threats of death and physical violence. This offending has the potential to cause significant physical and psychological harm to any victims.” (footnotes omitted)
“It is to be emphasized (again) that the [respondent] bears the onus of demonstrating that a supervision order will [not] afford adequate protection to the community: Section 13(7) of the Act; Lawrence at [28]. Before a supervision order, rather than a continuing detention order is made, the court needs to be satisfied that its likely effect will be to reduce the risk of a serious sexual offence to an ‘acceptably low level.’: Attorney-General for the State of Queensland v LKR [2018] QSC 280 at [19] per Applegarth J, with reference to the Court of Appeal’s observation in Attorney-General for the State of Queensland v Beattie [2007] QCA 96 at [19]. This determination includes whether there is sufficient evidence to show that the [appellant] will be likely to comply with any supervision order made: Attorney-General for the State of Queensland v Fardon [2011] QCA 155 at [29].” (footnotes included)
“Part of the difficulty associated with the framing of a supervision order is that the [appellant] has not participated in a sexual offender treatment program.”
“This may not only provide the [appellant] with a relapse prevention plan but would provide information to those that supervise the [appellant] as to those matters which ought to require their attention.”
An argument had been advanced on behalf of the appellant before the primary judge that there was no “robust evidence” that MISOP or HISOP as administered by QCS was effective in reducing recidivism rates of sexual offenders. The primary judge referred (at [110] of the reasons) to the evidence relied on by the appellant for this submission and rejected it for the reasons set out at [110] that were based on the evidence of the psychiatrists. The rejection of that submission is not challenged on the appeal.
The key to the primary judge’s conclusion is stated (at [111] of the reasons) as:
“In the present case, there are ‘important gaps’ or ‘uncertainties’ around the material facts known about the [appellant’s] motivations and desires such that more needs to be known before it can be said that it is likely that the [appellant’s] risk is one that can be managed under a supervision order: See Turnbull v Attorney-General for the State of Queensland [2015] QCA 54 at [40] per Morrison JA; Attorney-General for the State of Queensland v S [2015] QSC 157 at [36], [39] and [40] per P McMurdo J (as he then was). The consequence to the community if the risk manifests itself are severe.” (footnotes included)
Ground 3 – Did the primary judge fail to have regard to relevant considerations in making the s 13(5) decision?
It is convenient to deal first with ground 3. There was no challenge by the appellant to the primary judge’s identification (at [105](j) of the reasons) that the victim of any future offending would likely be an adult female who may be a stranger or casual acquaintance and the offending may occur after a protracted period which was a reflection of the mode in which the subject offences were committed and the psychiatrists’ opinions about the mode of any future offending. The submissions made in respect of ground 3 should be considered in the context of the nature of any anticipated future offending by the appellant.
Section 13(6) of the Act provides:
“In deciding whether to make an order under subsection (5)(a) or (b)—
the paramount consideration is to be the need to ensure adequate protection of the community; and
the court must consider whether—
adequate protection of the community can be reasonably and practicably managed by a supervision order; and
requirements under section 16 can be reasonably and practicably managed by corrective services officers.”
Although the matters set out in s 13(4) of the Act are relevant to the threshold issue decided under s 13(1), those matters will still have relevance to the decision under s 13(5). As recognised by the primary judge at paragraphs (a), (b) and (c) of [103] of the reasons, a continuing detention order should be made only if a supervision order will not ensure adequate protection of the community from the risk that the appellant will commit a serious sexual offence, if released from custody on a supervision order.
There are four considerations relied on by the appellant for ground 3. The considerations in paragraphs (a), (b) and (c) of ground 3 relate to the terms of the proposed supervision order for the appellant and can be dealt with together.
It was not suggested before the trial judge or on this appeal that the requirements referred to in s 13(6)(b)(ii) would be an impediment, if a supervision order were made in respect of the appellant. There was no concern that the QCS did not have the resources to provide the supervision and monitoring in accordance with the requirements under s 16 of the Act if a supervision order were imposed on the appellant. See Francis at [37]. The focus of the hearing before the primary judge was the effectiveness of a supervision order (in abstract) in reducing the risk of serious sexual offending committed by the appellant to an acceptable level.
The respondent did not put forward a draft supervision order to the primary judge for the purpose of the primary judge’s decision under s 13(5) of the Act. Notwithstanding that was the respondent’s approach, the terms of any proposed supervision order must be relevant to whether the risk the appellant would commit a serious sexual offence of the nature identified by the primary judge could be reasonably and practicably managed under the supervision order to ensure adequate protection of the community. The primary judge at least had the terms of the draft supervision order proposed by the appellant to consider but did not make any reference to them in the reasons. Ms Robb of King’s Counsel (who appeared with Mr Congram of Counsel for the appellant) noted that a template supervision order that was used regularly in applications under the Act was the basis for the draft supervision order proposed by the appellant to the primary judge. (That is supported by the almost identical terms of the appellant’s proposed supervision order to that which was made and annexed to the reasons in Attorney-General (Qld) v Buckley (No 2) [2022] QSC 88.)
One of the terms of a supervision order is the period of time for which the supervision order applies to the released prisoner. Section 13A of the Act requires the Court which makes the supervision order to state the period for which it is to have effect. Under s 13A(2), the Court must not, in fixing the period, 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. Under s 13A(3), the period cannot end before five years after the making of the order or the end of the prisoner’s period of imprisonment, whichever is the later.
“In the context of s 13(2) a prisoner who has been found to be a ‘serious danger to the community’ should not be released on supervision unless the risk that he will commit a serious sexual offence can be reduced to an ‘acceptable’ level by the supervision order. That issue must be determined by looking at the evidence and the terms of any proposed supervision order, and assessing the factors identified in s 13(4) DPSOA.” (footnote omitted)
In respect of the last sentence in that observation, it should be noted that the decision under s 13(5) is not confined to the list of factors identified in s 13(4) of the Act. That list is extensive and includes at paragraph (j) “any other relevant matter”, so that it is likely that any decision under s 13(5) will be based largely on the factors identified in s 13(4).
Davis J expressed the view in KAH (at [56]) that the correct legal consideration which the expert psychiatrists should address is predicting the time in the future when the prisoner will reach a point at which he is an acceptable risk without a supervision order. A similar question was posed by Applegarth J in Attorney-General for the State of Queensland v DXP [2019] QSC 77 at [29].
Davis J’s conclusion in KAH about whether a supervision order should be made is set out at [71]-[72]:
“[71] However, when assessing, as at today, what supervision order is required to provide adequate protection of the community, the statutory context is not an irrelevant consideration. So, the evidence that I have accepted is that if the respondent complies with the supervision order for five years he will no longer pose an unacceptable risk. The legislation provides for an extension of the supervision order (in some cases upon breach) and that can be taken into account in determining whether on the evidence in this case a supervision order of five years provides adequate protection of the community.
[72] I have accepted the evidence that if the respondent satisfactorily completes supervision for a period of five years he will thereafter not pose an unacceptable risk. If he breaches the supervision order or does not perform and thereby enlivens the discretion under s 19B or s 22 then the supervision order can be extended. Of course, that would be a completely different determination made by the Court at that time. Against the statutory scheme, which includes ss 19B and 22, I am satisfied that a supervision order on the terms that I intend to order for a period of five years provides adequate protection of the community.”
Section 19B of the Act permits the Attorney-General to apply for a further supervision order for a released prisoner who is subject to a supervision order under the Act within the last six months of the current supervision order. Section 22 of the Act confers powers on the Court to make further orders where the Court is satisfied, on the balance of probabilities, that the released prisoner is likely to contravene, is contravening or has contravened, a requirement of the supervision order or interim supervision order. If the released prisoner discharges the onus that the prisoner bears to satisfy the Court that, despite the contravention, adequate protection of the community can be ensured by the existing order or by the amendment of the existing order, the prisoner can be released again under the supervision order or the amended supervision order, as the case requires. Pursuant to s 22(7)(b), the Court can amend the existing supervision order in a way the Court considers appropriate to ensure adequate protection of the community or for the prisoner’s rehabilitation or care or treatment. Section 22(7)(b) permits extension of the duration of the supervision order: Attorney-General v Van Dessel [2007] 2 Qd R 1 at [31] and Attorney-General (Qld) v Foy [2005] QSC 1 at [14].
Shortly after giving the judgment in KAH, Davis J explained the distinction he was drawing between the recognition of the legislative scheme including s 19B and s 22 of the Act and considering whether or not the released prisoner may become the subject of an application for a further supervision order or a further supervision order in Attorney-General for the State of Queensland v PCO [2019] QSC 44 at [75]:
“If the respondent breaches the supervision order, the order may be extended by order under s 22 of the DPSOA. If the respondent’s condition after five years on supervision is, despite the current opinions of the psychiatrists as to his current state, such that he remains an unacceptable risk without a supervision order, then the order may be extended under s 19B of the DPSOA. Those decisions of course, will be made at some future time based on an assessment of the respondent’s condition and the circumstances pertaining at that time. I am not here considering ‘whether or not [the respondent] may become the subject of … an application for a further supervision order … or a further supervision order.’ The recognition of the legislative scheme including ss 19B and 22 of the DPSOA does not offend s 13A(2) for the reasons I explained in Attorney-General for the State of Queensland v KAH.” (footnotes omitted)
“the legal principles referred to above, including that by s 13A(2) I am not to have regard to whether the respondent may become subject of a further supervision order, but that does not mean the statutory context is irrelevant, including the potential for extension of the operation of the order in the event of a contravention,”
“In fixing the period of a supervision order, the court must not have regard to whether or not the respondent may become the subject of an application for a further supervision order or a further supervision order. One can, however, have regard to the likely consequences of contraventions in constraining the respondent’s access to alcohol in the community, and thereby reducing the risk of sexual offending, and in encouraging future compliance.” (footnote omitted)
“In Attorney-General for the State of Queensland v KAH, Davis J considered the proper construction of s 13A of the Act. In doing so he considered earlier authorities to the effect that in fixing the period of a supervision order the Court must predict the time in the future at which the respondent will be an acceptable risk without supervision. The correct legal consideration is ‘when will the respondent reach a point at which he/she is an acceptable risk without a supervision order?’ The issue is not whether the prisoner may become the subject of an application for a further supervision order in the future. Instead, the appropriate length of the order is undertaken by reference to the statutory scheme.” (footnotes omitted)
The parties on this appeal did not make submissions on whether the distinction made by Davis J in KAH at [71]-[72] in respect of s 13A(2) should be followed. It is sufficient for the purpose of dealing with ground 3 of the appeal to note that in assessing the adequacy of the supervision order for the purpose of the s 13(5) decision, consideration must, on any view, be given to the operation of s 22 of the Act.
It is therefore not necessary to resolve any differences in views on the implications of s 13A(2) of the Act for the decision under s 13(5) of the Act.
The other aspects of the statutory scheme about dealing with contraventions, including a return to custody in the circumstances provided for in s 22 of the Act and the possibility that the terms of the supervision order can be amended and the duration of the supervision order extended under s 22(7), however, must be taken into account in determining the period of the supervision order which affects the adequacy of a supervision order for the purpose of the s 13(5) decision.
The primary judge focused on the concerns of the psychiatrists who expressed a preference for more information about the appellant’s motivation for the subject offences and his treatment needs to give a more considered opinion on the appellant’s risk of sexual reoffending. It is understandable that the psychiatrists had those concerns. They did not have the benefit of the usual reports from QCS that are available when an offender has undertaken a sex offender treatment program whilst serving the sentence. The appellant had committed only one episode of sexual offences, so there was no pattern of offending for them to analyse. All psychiatrists felt the appellant was less than forthcoming during their attempts to explore with him the motivations for his sexual offending. The appellant had not undergone the discipline of preparing a relapse prevention plan that may assist in any supervision of him.
The supervision order is not, however, primarily the means for providing therapeutic treatment to a released prisoner who has completed his sentence. It is one means under the Act where the threshold issue under s 13(1) is satisfied for addressing the risk a released prisoner who has completed his sentence for the commission for a serious sexual offence will commit another serious sexual offence. The focus for making the decision under s 13(5) are the considerations under s 13(6) and not what is ideal from a psychiatrist’s perspective for therapeutic treatment of a released prisoner.
Psychiatrists give expert evidence relevant to the issues to be decided on a division 3 application but the decision maker under s 13(5) is the judge who must weigh up all relevant matters, including those that extend beyond the psychiatric evidence, to decide whether adequate protection can be reasonably and practicably managed by a supervision order to ensure adequate protection of the community. As was observed by McMurdo J in (at [29]-[30]) adequate protection is a relative concept and the judicial determination of the risk that can be acceptable consistently with the adequate protection of the community requires “a value judgment as to what risk should be accepted against the serious alternative of the deprivation of person’s liberty”. Unlike the starting point for the primary judge, the psychiatrists are not constrained by the preference that should be given under s 13(5) to a supervision order over a continuing detention order, if the adequate protection of the community can be ensured by the supervision order.
“And you mentioned also the preference to tailor a supervision order. Do you remember that part of your evidence?---Yes.
What do you mean by that?---I think, if you can see - if you understand someone’s offending pathway, then you can look at the dynamic factors that might affect his offending. And then you could then work out what the risk areas would be. And so, rather than saying, look, here’s 40 conditions, you might say, well, these ones aren’t relevant. We don’t have to worry about you, I don’t know, going to shopping centres. We don’t have to worry about you drinking. We don’t have to worry about you getting work in certain areas, things like that. We can tailor it and have more refined conditions that are nuanced to your offending pattern. If you don’t have that information, then you just have to throw the book at him.
Are you able to tailor a supervision order for [the appellant]?---I think you could take out the child-related conditions that would occur in a generic supervision order. But otherwise I don’t know much that you could take out much more because I just don’t know that much more about his offending pathway.”
By tailoring a supervision order, Dr Beech was merely referring to removing the conditions that would be included in a generic supervision order, such as the “child‑related conditions”, presumably because the appellant had no history of offending against children.
The effect of Dr Beech’s evidence was that the supervision order would be longer rather than shorter for the appellant because the psychiatrists did not understand the appellant’s offending pathway. It was apparent, even from the draft supervision order proposed by the appellant, that close monitoring and restrictions included by way of caution rather than directed at a specific understood risk would be the result.
The respondent did not put a draft supervision order for the appellant to the psychiatrists to obtain their expert evidence, or before the judge in order to make meaningful submissions, by reference to the terms of the supervision order as to the effect of the supervision order in ensuring adequate protection of the community from the risk of sexual offending by the appellant.
It was also relevant that the concern of the psychiatrists that they did not understand what motivated the appellant to commit the subject offences could warrant that a longer term under supervision for the appellant as was suggested by Dr Beech. The effect of the longer duration of a supervision order on the appellant’s risk of reoffending was not a matter considered in the primary judge’s reasons.
The focus of the psychiatrists on the better result that might be obtained for the appellant, as far as any treatment was concerned and the facilitation of the supervision under a supervision order, by a better understanding of his motivations for sexual offending had the effect of distracting the primary judge from the task that was required under s 13(5) of the Act. Without consideration of the types of conditions in a supervision order that can be imposed for managing and reducing the risk of serious sexual reoffending and consideration of the statutory scheme for contraventions or anticipated contraventions of a supervision order with the consequent motivations for the appellant to comply with the supervision order, the primary judge has failed to take account of relevant considerations for the purpose of the decision under s 13(5) of the Act. The appeal succeeds in respect of paragraphs (a) and (c) of ground 3. It also succeeds in respect of paragraph (b) of ground 3 to the extent that the primary judge failed to consider the incentive for the appellant to comply with the supervision order to avoid being dealt with for a contravention of the supervision order. It is unnecessary to consider the further arguments advanced by the appellant in support of ground 3(b) based on the evidence adduced before the primary judge that showed the appellant was a model prisoner whilst serving his sentence.
It is unnecessary to consider ground 3(d).
Ground 2 – Did the primary judge err in finding that the appellant was not likely to comply with the supervision order?
Ground 1 – Did the primary judge apply the wrong legal principles?
It is also not necessary to deal with ground 1, but as the application for the division 3 order is to be remitted to the Trial Division for rehearing, some observations can be made in relation to ground 1.
Ground 1 focuses on the last sentence of [106] of the reasons which is footnoted to Fardon at [29] in which de Jersey CJ (with whom Fraser JA and Mullins J agreed) stated:
“These orders have the character of a compact between the prisoner and the community: the prisoner is accorded a measure of personal freedom, but only provided he is willing to, and does, submit to a regime of tight control. Of substantial present concern is the respondent’s demonstrated unwillingness to submit fully to that regime, hence Dr Grant’s conclusion that ‘there must be considerable doubt therefore about the prospect of successful management in the community under such a supervision order’.”
“The primary judge cited a passage from the judgment of de Jersey CJ in Attorney-General for the State of Queensland v Fardon: [2011] QCA 155, [29], referring to a supervision order as having ‘the character of a compact between the prisoner and the community’. This characterisation has been rejected on subsequent occasions in the trial division, and in my view is plainly wrong: Attorney-General (Qld) v Fardon [2018] QSC 193, [77]; Attorney-General (Qld) v Nemo [2020] QSC 140, and Attorney-General (Qld) v Bottomley [2020] QSC 134. There is ‘nothing consensual’ about a supervision order, to adopt the words of Jackson J in the first of the cases just footnoted. As Jackson J pointed out, an order made under the DPSOA is not like a bail undertaking or a probation order. Under the DPSOA the order is imposed by the court in circumstances defined by Statute. Because the legislation makes many of the terms of a supervision order mandatory, a supervision order is in all cases a severe restriction and imposition on the freedom of the person who must comply with it. Non-compliance with an order will lead to arrest and, unless exceptional circumstances are shown, imprisonment for a not inconsiderable period of time before a s 22 hearing can be held.” (footnotes included)
The respondent sought to justify the last sentence of [106] of the reasons and its reliance on the passage from Fardon at [29] that is no longer authoritative for a supervision order having “the character of a compact between the prisoner and the community” by focusing on the word “includes”. The respondent submits this means that the primary judge was referring to the likelihood of compliance with the supervision order as one relevant factor and was not embracing the incorrect characterisation of the relationship under a supervision order set out in the passage from Fardon to which the primary judge referred for the proposition stated in the last sentence of [106].
Paragraph 25 of the respondent’s written submissions dated 8 September 2023 before the primary judge quoted the passage from Fardon at [29] in full in support of the proposition set out in that paragraph that “There must be some evidence to show that the [appellant] will be likely to comply with any supervision order made”. That submission was framed without reference to the onus that the respondent bore for the purpose of the decision under s 13(5) of the Act to show that a continuing detention order should be made rather than a supervision order. The likelihood of the appellant’s compliance with the supervision order was a relevant factor for the primary judge to consider but it should have been considered in terms of whether the respondent had shown that the appellant was unlikely to comply with the supervision order.
It is apparent that submission was adopted by the primary judge in [106] of the reasons. As was explained in Black at [36], the nature of the supervision order which regulates closely the conduct of the released prisoner subject to the supervision order and the consequences for breaching any term of the supervision order which are regulated by the Act also have to be considered in conjunction with the likelihood of non-compliance with the supervision order. The test under s 13(6) of the Act as to whether the supervision order ensures adequate protection of the community cannot be considered in isolation from the operation of the Act and, in particular, that where QCS becomes concerned that the released prisoner is contravening, has contravened or is likely to contravene a requirement of the supervision order and the prisoner is liable to be returned to custody for the purpose of an application under s 22 of the Act to rescind or amend the supervision order.
Despite the respondent’s reliance on the full passage from Fardon at [29] before the primary judge, the respondent’s argument on this appeal that the primary judge relied on it only for the purpose of treating the likelihood of compliance with the supervision order as a relevant factor in the decision under s 13(5) of the Act is borne out by the last sentence of [106] of the reasons. The appellant has not shown there was a relevant misstatement of legal principles by the primary judge for the purpose of making the decision under s 13(5), despite the reference in the reasons to at [29].
“When considering whether the risk is unacceptable, the prohibition in s 9(4) against considering the means of managing the risk relates to the nature of the conditions that would be imposed if a supervision order were made and their impact upon the offender. In deciding whether the risk is unacceptable the court may take into account treatment, therapy or other rehabilitative measures that the offender might engage in.”
Further submissions and evidence after the hearing of the appeal
At the hearing of the appeal, the Court was informed that there had been developments in respect of the appellant’s circumstances since the hearing before the primary judge and, if the appeal were allowed and the continuing detention order set aside, both parties submitted that the originating application should be remitted to the Trial Division for rehearing. Even though there was no contest before the primary judge that the Court should be satisfied pursuant to s 13(1) of the Act, that question will have to be considered again at the same time as the rehearing of the application for the division 3 order: Attorney-General v Kanaveilomani [2015] 2 Qd R 509 at [21] and Attorney-General (Qld) v GBE [2024] QCA 6 at [57].
The appellant sought orders at the hearing of the appeal in the same terms as those which had been made by this Court in GBE. The orders made in GBE are not entirely apt for the appellant’s circumstances, as GBE was serving a sentence of imprisonment when the Attorney-General successfully appealed against the making of the supervision order. The setting aside of that supervision order did not otherwise affect his status as a currently serving prisoner. In contrast, the setting aside of the continuing detention order made by the primary judge in the appellant’s matter means that the originating application for a division 3 order remains extant after the appellant had completed fully his sentences for the subject offences. Even though it is not mandatory for this Court to consider making either an interim supervision order or an interim detention order pursuant to s 43(4) of the Act (as s 43A would apply if the Court did not do so), it is appropriate to consider making such an order in view of the finding of the primary judge that is not challenged that the threshold issue under s 13(1) was satisfied.
The respondent filed an affidavit of Ms Hogarth who is the acting manager of the Offender Intervention Unit with QCS affirmed on 25 September 2024. The appellant relied on his affidavit affirmed on 28 September 2024 and the affidavit of Mr Moschella of his solicitors affirmed on 9 October 2024. Leave is given to the parties to rely on these further affidavits to enable this Court to deal with the issue pursuant to s 43(4) of the Act.
Ms Hogarth’s affidavit sets out the events that have transpired in the prison system for the appellant since the primary judge made the continuing detention order. On 6 October 2023 the appellant accepted placement on the GS:PP. He participated in the GS:PP between 16 February and 28 March 2024. The GS:PP is a group-based program designed to prepare offenders who have committed a sexual or sexually motivated offence for participation in further intensive intervention programs. The program delivery officers prepared a completion report in respect of the appellant’s participation in the GS:PP and made a recommendation in relation to the further assessment of his treatment needs. The report disclosed that he commenced as a quieter member of the group and his level of engagement with group participants and facilitators improved over time. He demonstrated increasing insight into, and accepted increasing responsibility for, his sexual offending behaviour. He demonstrated emerging empathy for his victim, as well as general empathy towards others. He demonstrated a commitment to change and willingness to participate in future sexual offending programs. In describing his sexual offending behaviour, he minimised it to the extent that he omitted he had attempted the penile rape of his victim whilst she physically resisted. He also externalised blame to drugs he had taken prior to the offending which was unlikely given the level and length of time in planning the offence.
“A case conference was held on 10 June 2024 to discuss the appropriate sexual offender treatment program for the appellant. The recommendation … was for the appellant to participate in the Crossroads: High Intensity Sexual Offending Program (HISOP) to address his treatment needs taking into account the nature of his offending, outcome of recent assessments, current concerns with respect to anti-authority attitudes and cooperation with supervision, and the most appropriate peer cohort.”
Even though Ms Hogarth did not identify the attendees at the case conference, it appears from the report of the STABLE-2007 and STATIC-99R assessments that the case conference was held with the “Offender Intervention Unit” and the outcome of that meeting was a recommendation that the appellant undertake the HISOP “taking into account the nature of the offending, outcome of assessments, current DPSOA, concerns related to cooperation with supervision and the need for a stable peer cohort to observe inconsistencies within his report over time”. It appears from the summary of the information that resulted in the recommendation that the appellant undertake the HISOP that the charges which did not result in convictions related to the allegations made in 2007 were taken into account.
On 21 June 2024 the appellant consented to participate in the HISOP. The appellant commenced the HISOP on 24 June 2024 and, at the date of Ms Hogarth’s affidavit, the appellant had completed approximately 87 hours of the program which is delivered for a total of 351 hours. It is projected that the appellant could complete the program between March and June 2025. The HISOP is not available in the community.
The appellant’s affidavit included the following. His participation in HISOP had triggered memories in relation to child abuse to which he was subjected when he was around 12 years old. His request for psychological assistance from QCS as his memories were troubling and making it difficult for him to participate in the HISOP had been refused and he had been advised that he was unable to access any psychological treatment until he had completed the HISOP. He has been waitlisted for the Low Intensity Substance Intervention (LISI) course. Whilst serving his sentence at Woodford Correctional Centre for almost eight years, he had been given a single cell. On his transfer to Wolston Correctional Centre, he raised issues about being “doubled up” and sharing a cell and he was placed in a “hard cell” for about four months before he was provided with a single cell. He understands that if he is released on a supervision order and does not comply with its conditions and the reasonable directions given by QCS officers, he will be returned to custody. He understands that conditions 6, 31 and 32 of the draft supervision order require him to comply with any direction a QCS officer gives about his seeing a doctor, psychiatrist, psychologist, social worker or other counsellor or about participating in any treatment or rehabilitation program. He has no issues with being subject to a supervision order and is willing to comply with a supervision order including the draft supervision order that has been shown to him. He is still prepared to undertake the MISOP in the community.
Mr Moschella’s affidavit exhibits extracts from the QCS records for the appellant that had been requested by the appellant’s solicitors on his behalf for the purpose of this appeal. The Integrated Offender Management System (IOMS) includes the following. The appellant was transferred to Wolston Correctional Centre on 16 October 2023. The appellant advised, that due to his mental health, he liked to be by himself, as he was quick to anger and other prisoners can be a trigger for him. The appellant has been the subject of successive Safety Orders that have been issued for the security and good order of the correctional facility, as the appellant refuses to “double up” in a cell, even though he was assessed as suitable for sharing a cell. The appellant was housed in a specialised cell referred to as a “hard cell” due to his refusal to engage in the shared cell process. On 2 November 2023 the appellant requested further assistance in managing his mental health condition whilst in custody. The appellant was not seen by a case manager for a welfare check until 16 November 2023 and the case manager proposed to consult the senior psychologist regarding the appellant’s refusal to double up with another prisoner. When seen on 5 December 2023 for case management under the Act, the appellant confirmed that he could not be doubled up with anyone due to his anger and mental health condition. He requested treatment for his mental health condition. Thereafter, the appellant was seen by a correctional counsellor on a monthly basis for case management under the Act. He was eventually moved to other cells in the secure unit that were not a “hard cell” but were single occupancy. Soon after he commenced HISOP, he was having nightmares and requested assistance with sleep strategies. He reported to the correctional counsellor in the July 2024 case management meeting that the HISOP was triggering difficult memories for him which caused ongoing stress. The appellant was removed from the LISI program offer list while he was completing the HISOP. In the meeting with the correctional counsellor for the purpose of case management under the Act on 6 August 2024, the appellant queried if he would be able to see the High Risk Offender Management Unit psychologist, as there were some areas in which he was struggling with his past as a result of attending the HISOP. He was subsequently informed on 6 September 2024 that he could not see the psychologist until he had completed the HISOP.
Appeal allowed.
Set aside the order made by the primary judge on 29 September 2023.
Remit the originating application filed on 12 June 2023 for the division 3 order to the Trial Division for rehearing.
The appellant be released from prison pursuant to s 43(4)(a) of the Dangerous Prisoners (Sexual Offenders) Act 2003 (Qld) on an interim supervision order that requires him to follow the rules set out in paragraphs 1 to 36 of annexure A to these reasons until the determination of the application for the division 3 order, or earlier order.
Annexure A
Rules of draft supervision order proposed
by the appellant to the primary judge
To Peter John Van De Wetering:
When you are released from prison you must obey the rules in this supervision order.
If you break any of the rules in this supervision order, the police or Queensland Corrective Services have the power to arrest you. Then the Court might order that you go back to prison.
You must obey these rules after you are released from prison for the duration of this order.
Reporting
On the day you are released from prison, you must report before 4 pm to a corrective services officer at the Community Corrections office closest to where you will live. You must tell the corrective services officer your name and the address where you will live.
A corrective services officer will tell you the times and dates when you must report to them. You must report to them at the times they tell you to report. A corrective services officer might visit you at your home. You must let the corrective services officer come into your house.
To ‘report’ means to visit a corrective services officer and talk to them face to face.
Supervision
A corrective services officer will supervise you until this order is finished. This means you must obey any reasonable direction that a corrective services officer gives you about:
where you are allowed to live;
attending rehabilitation, care or treatment programs;
using drugs or alcohol;
who you may and may not have contact with; and
anything else, except for instructions that mean you will break the rules in this supervision order.
A “reasonable direction” is an instruction about what you must do, or what you must not do, that is reasonable in that situation.
If you are not sure about a direction, you can ask a corrective services officer for more information, or talk to your lawyer about it.
You must answer and tell the truth if a corrective services officer asks you about where you are, what you have been doing or what you are planning to do, and who you are spending time with.
If you change your name, where you live or any employment, you must tell a corrective services officer at least 2 business days before the change will happen. A “business day” is a weekday (Monday, Tuesday, Wednesday, Thursday and Friday) that is not a public holiday.
Where you must live
You must live at a place approved by a corrective services officer. You must obey any rules that are made about people who live there.
You must not live at another place. If you want to live at another place, you must tell a corrective services officer the address of the place you want to live. The corrective services officer will decide if you are allowed to live at that place. You are allowed to change the place you live only when you get written permission from a corrective services officer to live at another place.
This also means you must get written permission from a corrective services officer before you are allowed to stay overnight, or for a few days, or for a few weeks, at another place.
You must not leave Queensland unless you have the written permission from a corrective services officer. You are allowed to leave Queensland only after you get written permission from a corrective services officer.
Curfew direction
A corrective services officer has power to tell you to stay at a place (for example, the place you live) at particular times. This is called a curfew direction. You must obey a curfew direction.
A corrective services officer has power to tell you to:
wear a device that tracks your location; and
let them install a device or equipment at the place you live. This will monitor if you are there.
This is called a monitoring direction. You must obey a monitoring direction.
Sexual offences
You must not commit an offence of a sexual nature.
Employment or study
You must get written permission from a corrective services officer before you are allowed to start a job, start studying or start volunteer work.
When you ask for permission, you must tell the corrective services officer these things:
what the job is;
who you will work for;
what hours you will work each day;
the place or places where you will work; and
(if it is study) where you want to study and what you want to study.
If a corrective services officer tells you to stop working or studying you must obey what they tell you.
Motor vehicles
You must tell a corrective services officer the details (make, model, colour and registration number) about any vehicle you own, borrow or hire. You must tell the corrective services officer these details immediately (on the same day) you get the vehicle.
A vehicle includes a car, motorbike, ute or truck.
Mobile phone
You are only allowed to own or have (even if you do not own it) one mobile phone. You must tell a corrective services officer the details (make, model, phone number and service provider) about any mobile phone you own or have within 24 hours of when you get the phone.
You must give a corrective services officer all passwords and passcodes for any mobile phones you own or have. You must let a corrective services officer look at the phone and everything on the phone.
Computers and internet
You must get written permission from a corrective services officer before you are allowed to use a computer, phone or other device to access the internet.
You must give a corrective services officer any password or other access code you know for the computer, phone or other device. You must do this within 24 hours of when you start using the computer, phone or other device. You must let a corrective services officer look at the computer, phone or other device and everything on it.
You must give a corrective services officer details (including user names and passwords) about any email address, instant messaging service, chat rooms, or social networking sites that you use. You must do this within 24 hours of when you start using any of these things.
No contact within any victim
You must not contact or try to contact any victims of a sexual offence committed by you. You must not ask someone else to do this for you.
“Contact” means any type of communication, including things like talking, texting, sending letters or emails, posting pictures or chatting. You must not do any of these things in person, by telephone, computer, social media or in any other way.
Rules about alcohol and drugs
You are not allowed to consume any alcohol. You are also not allowed to have with you or be in control of any alcohol.
You are not allowed to take (for example, swallow, eat, inject, smoke or sniff) any illegal drugs. You are also not allowed to have with you or be in control of any illegal drugs.
A corrective services officer has the power to tell you to take a drug test or alcohol test. You must take the drug test or alcohol test when they tell you to. You must give them some of your breath or urine when they tell you to do this.
You are not allowed to go to pubs, clubs, hotels, nightclubs, bottle shops or businesses which are licensed to supply or serve alcohol. If you want to go to one of these places, you must first get written permission from a corrective services officer. If you do not get written permission, you are not allowed to go.
Rules about medicine
You must tell a corrective services officer about any medicine that a doctor prescribes (tells you to buy). You must also tell a corrective services officer about any over the counter medicine that you buy or have with you. You must do this within 24 hours of seeing the doctor or buying the medicine.
You must take prescribed medicine only as directed by a doctor. You must not take any medicine (other than over the counter medicine) which has not been prescribed for you by a doctor.
Rules about rehabilitation and counselling
You must obey any direction a corrective services officer gives you about seeing a doctor, psychiatrist, psychologist, social worker or other counsellor.
You must obey any direction a corrective services officer gives you about participating in any treatment or rehabilitation program.
You must let corrective services officers get information about you from any treatment or from any rehabilitation program.
Speaking to corrective services about what you plan to do
You must talk to a corrective services officer about what you plan to do each week. A corrective services officer will tell you how to do this (for example, face to face or by phone).
You must also tell a corrective services officer the names of new persons you have met.
This includes: people who you spend time with, work with, make friends with, see or speak to (including by using social media or the internet) regularly.
You may need to tell new contacts about your supervision order and offending history. The corrective services officer will instruct you to tell those persons and the corrective services officer may speak to them to make sure you have given them all the information.
Offence Specific Conditions
You must obtain the prior written approval of a Corrective Services Officer before possessing any equipment that enables you to take photographs or record moving images.
“Equipment” means any types of devices, including things like mobile phones, digital or video cameras, computers, laptops, tablets, surveillance cameras including dashboard, cameras and drones.
Van De Wetering
Attorney-General
(2013) 41 VR 359
The primary judge reached the same conclusion as Dr Brown (at [71] of the reasons) and rejected the appellant’s explanation of committing the subject offences to scare away backpackers and found it difficult to accept the appellant’s assertion that the subject offences were not sexually motivated.
Dr Phillips who is also a forensic psychiatrist was one of the psychiatrists who provided the Court an independent report under an order pursuant to s 8(2) of the Act. Dr Phillips interviewed the appellant at the correctional centre on 24 July 2023 for approximately two hours and 35 minutes. Her report is dated 28 July 2023. The primary judge summarised (at [74] of the reasons) some of the observations by Dr Phillips in her report including that “a greater understanding of the drivers of the index sexual offending are necessary in order to have confidence that an adequate risk management plan is in place”. The primary judge rejected (at [76]) the criticism made on behalf of the appellant before the primary judge that Dr Phillips’ consideration of the appellant’s risk of future sexual offending was not directed at the risk that the appellant would commit another “serious sexual offence” as defined in the Act on the basis that Dr Phillips was also considering the risk that the appellant would commit an offence similar to the subject offences. The primary judge noted (at [77]) that Dr Phillips recommended that the appellant complete a group sexual offending treatment program prior to release from custody, he would benefit from further individual psychological intervention and he should also engage with a substance use intervention program. The primary judge accepted (at [78]) Dr Phillips’ views based on her experience and qualifications and because “her recommendations are obvious as a matter of common sense, logic and judgment”. The primary judge also accepted (at [80]) Dr Phillips’ evidence “that robust supervision in the community may reduce the risk of sexual reoffending to at least the moderate range”.
Dr Beech is the other forensic psychiatrist appointed by the Court to provide an independent report on the appellant for the purpose of the application under the Act. Dr Beech interviewed the appellant at the correctional centre on 14 July 2023 and his report is dated 31 July 2023. In his written report, Dr Beech diagnosed an antisocial personality disorder but did not diagnose a sexual paraphilia. Although Dr Beech noted that, generally, the risk of sexual reoffending reduces with age past the age of 50 years old, that had to be qualified in the appellant’s case as the subject offences were committed when the appellant was 47 years old and there was the possibility that the subject offences were committed because the appellant was enacting a sexual fantasy (due to the planning and preparation that was undertaken before committing the subject offences). The reduction of risk due to age did not apply “so much” to the appellant but it still applied to some degree. The risk of sexual reoffending by the appellant was therefore assessed by Dr Beech as in “the moderate high range”.
The primary judge noted (at [84] of the reasons) that Dr Beech considered that the appellant’s risk of offending, should it manifest, would involve a planned and prepared offence against an adult female victim and would involve sexual assault. Similarly in response to the criticisms directed to the assessment of the appellant’s risk of reoffending assessed by the other psychiatrists, the primary judge (at [84]) rejected the same criticism directed at Dr Beech’s opinion on the basis that Dr Beech was also considering the risk that the appellant would commit an offence similar to the subject offences. Dr Beech noted that the risk might be reduced by participation in a sex offender treatment program such as MISOP or the High Intensity Sexual Offender Program (HISOP), but it was difficult to predict how much the risk of reoffending would be reduced by supervision as those who would supervise the appellant would have limited knowledge on how to monitor him and how to restrict him, because of the lack of exploration of relevant issues from a sex offender program. Clinically, Dr Beech considered supervision would reduce the risk of sexual reoffending, but he was unable to say by how much. He estimated that the risk could be reduced to moderate or below. If he were to be released, Dr Beech recommended a period of 10 years for the supervision order. In cross-examination, Dr Beech accepted that if the appellant complied with all the standard conditions in a supervision order, including monitoring, a curfew condition and reporting, the appellant’s risk of reoffending involving sexual violence was a risk of five per cent or below and therefore it was below moderate.
In oral evidence, Dr Beech clarified that on the basis of the appellant’s Static-99R score, the subject offences represented a single episode of sexual offending, and he had been a model prisoner (despite some general criminal history), the MISOP would be most suitable for him. Dr Beech explained that the qualification to that opinion was that participation in the GS:PP may reveal issues that would change the view that the MISOP rather than the HISOP was the appropriate treatment program for the appellant.
The primary judge accepted (at [86]-[87] of the reasons) Dr Beech’s opinion (given his considerable experience and expertise and also as a matter of logic and common sense and consistency with the evidence of Dr Phillips) on the reduction of the risk by the appellant’s participation in a sexual offender program and such participation would provide information for supervision and that the risk “could” be reduced to moderate or below if the appellant were released to supervision for a period of 10 years.
The forensic psychiatrists used at least three risk assessment tools to assess the appellant’s risk of sexual reoffending that the psychiatrists took into account in reaching their respective conclusions about the risk of the appellant’s committing a sexual offence involving violence. Rather than setting out at length the results of each risk assessment undertaken by each psychiatrist, the results can be summarised as there was general consistency in the outcomes. On the Psychopathy Check List – Revised, the appellant’s score was below that required for a diagnosis of psychopathy. The appellant scored either 3 or 4 on the Static-99R which indicated that his risk of sexual reoffending was in the average or moderate range or in the above average (but not much above average according to Dr Beech) range. On the Risk for Sexual Violence Protocol, Dr Brown considered that the appellant demonstrated nine definite risk factors and six partial/possible risk factors. Dr Beech identified 10 dynamic risk factors applicable to the appellant. Dr Phillips identified 12 dynamic risk factors and another five partial/possible risk factors.
In Attorney-General v KAH [2019] 3 Qd R 329, Davis J identified (at [53]) that the question which must be decided of whether adequate protection of the community can be ensured by placing the prisoner on a supervision order requires a determination of the length of the supervision order. Davis J then observed at [54]:
The psychiatrists’ reports and evidence were mainly given in general terms about the effectiveness of a supervision order without regard to the specific terms of any supervision order proposed for the appellant or the incentive for the appellant of avoiding the consequences of any contravention of the supervision order.
Dr Beech was re-examined on the issue of tailoring a supervision order in the following exchange:
As the authorities on the Act before the commencement of the HRA emphasised that the exercise of the discretion under s 13(5) of the Act must favour the making of a supervision order unless the Attorney-General proved that a continuing detention order was necessary, the parties’ submissions to this Court did not dwell on the application of the HRA as a distinct matter. The authoritative statement in Francis at [39] is reinforced by s 29(1) of the HRA. It is therefore not necessary to consider further the possible application of the HRA.
As requested by the parties if the appeal were to succeed, the application for the division 3 order will be remitted to the Trial Division for rehearing. There is no reason why the rehearing could not proceed before the primary judge but that is a matter for the Trial Division.
The other misstatement of legal principles that the appellant relies on is the inclusion of paragraph (d) in [103] of the reasons. The primary judge accepted the submission at paragraph 10 of the respondent’s submissions dated 8 September 2023 that when considering whether the risk is unacceptable, the Court may take into account treatment, therapy or other rehabilitation measures that the offender might engage in which was based on the observations of the Victorian Court of Appeal on s 9(4) of the Serious Sex Offenders (Detention and Supervision) Act 2009 (Vic) in Nigro v Secretary to the Department of Justice (2013) 41 VR 359 at [9]:
A STABLE-2007 assessment was conducted on 7 May 2024 by a QCS officer and as part of that assessment a STATIC-99R assessment was conducted on 12 June 2024 by the same officer. The appellant received a total score of 4 on the STATIC-99R assessment which placed him in the Level IVa – Above Average Risk for being charged or convicted of another sexual offence. Following completion of STABLE-2007 and STATIC-99R assessments, the combined assessment score for the appellant placed him in the Level IVb – Well Above Average Risk for being charged or convicted of another sexual offence. Ms Hogarth stated at paragraph 17 of her affidavit:
Of note in perusing the daily entries in the IOMS for the appellant is that the description of his behaviour and interactions with correctional officers is consistently described as “polite”, “respectful”, and “compliant” and that he is “well behaved”. The only issue which the appellant has with the correctional centre is his refusal to double up in a cell with another prisoner.
The appellant’s submissions on what interim order should be made include the following. In choosing between a continuing detention order and a supervision order, the least restrictive order that will provide adequate protection of the community from the relevant risk is to be preferred. An interim supervision order for the appellant is apt to provide adequate protection of the community pending determination of the division 3 application in the Trial Division. The recommendation of those managing the appellant in custody on the continuing detention order that the appellant undertake the HISOP over the MISOP appears to have taken into account the unproven allegations (which are irrelevant on the division 3 application) and the fact that the appellant was detained under the Act. The appellant has identified and raised his concerns about the distress he has experienced as a consequence of engaging in the HISOP and been refused requests for psychological support. An interim supervision order would be suitable for identifying any escalation in the type of risk posed by the appellant to enable meaningful intervention before the risk eventuated. The appellant is willing to comply with the terms of the draft supervision order.
The respondent submits that an interim detention order is justified and serves the Act’s purposes and that an interim supervision order would not. Consistent with that approach, the respondent did not provide a draft interim supervision order with the supplementary submissions. The respondent relies on the seriousness of the subject offences and the assessment by the psychiatrists of the appellant’s risk of committing a serious sexual offence of like nature if released without a supervision order. Even though the appellant has commenced the HISOP, it remains unknown what his motivations, pathways and triggers for the subject offences were. There is likely to be a need for further expert evidence in the rehearing of the division 3 application. The respondent’s assertion that it would be in the appellant’s “own interests” to complete the HISOP before being released on a supervision order is not based on a criterion under the Act.
The appellant has completed his sentence for the subject offences and the issue that is relevant pending the determination of the division 3 application is whether the need to ensure adequate protection of the community can be reasonably and practicably managed in the meantime by a supervision order not what is in the appellant’s own interests.
The fact that the appellant is presently part way through the HISOP which is not available in the community, because he was available to undertake the HISOP as he was being held on the continuing detention order (which will now be set aside) is not a reason to preclude the appellant’s release on an interim supervision order pending the rehearing of the division 3 application, if the conditions of the interim supervision order are adequate for the protection of the community from the commission of a serious sexual offence by the appellant in the meantime. It is relevant that the appellant has now completed the GS:PP and is eligible to participate in the MISOP which is available in the community. It is also not irrelevant that the appellant is now 57 years old.
Taking into account the nature of the sexual offending likely to be committed by the appellant and the terms of the draft supervision order in annexure A to these reasons, which are very strict and are likely to alert QCS to any increase in the likelihood of the appellant’s contravening the interim supervision order, the potential application of s 22 of the Act to any contravention or likely contravention by the appellant of the interim supervision order, the adequate protection of the community from the risk of further sexual offending by the appellant will be ensured by an interim supervision order in the terms of the draft in annexure A pending the determination of the application for the division 3 order, or earlier order.
The orders which should be made are: