Yeo v Attorney-General

[1] McMURDO P: I agree with Helman J's reasons for rejecting the appellant's grounds of appeal and concluding that it was well open to the primary judge to make the continuing detention order in respect of the appellant under s 13(5)(a) Dangerous Prisoners (Sexual Offenders) Act 2003 (Qld). The appeal should be dismissed.

[2] WILLIAMS JA: I have the advantage of reading the reasons for judgment of Helman J, and I agree with him that this appeal should be dismissed.

[3] As Helman J has recorded the appellant has committed a number of sexual offences against children over a period of time. The first relevant conviction was on

17 November 1995 for carnal knowledge by anal intercourse of an intellectually disabled boy aged sixteen years. The offence was committed in December 1993. He was sentenced to imprisonment for three years for that offence.

[4] Then between June and October 1999 he committed thirteen sexual offences on two boys, one aged nine and the other eleven. Whilst those offences were not particularly serious having regard to the type of sexual offending regularly dealt with in these courts, the offences were nevertheless significant for present purposes. For those offences he was sentenced in April 2001 to three years imprisonment.

[5] Whilst on bail with respect to the 1999 offences he committed two further sexual offences against a twelve year old in May 2000. The offences involved touching the genitals of a six year old boy on two occasions. He was sentenced to a cumulative term of imprisonment of two years for those offences.

[6] During his period of imprisonment since 5 April 2001 he has not, as found by the learned judge at first instance, participated in any cognitive skills program or undertaken the Sexual Offenders Treatment Program. He has persisted throughout in denying his guilt of any wrongdoing.

[7] Against all of that background this was an appropriate case for the Attorney-General to invoke the provisions of the Dangerous Prisoners (Sexual Offenders) Act 2003 (Qld) ("the Act") and seek, after complying with the preliminary steps required by that Act, an order for the appellant's continuing detention.

[8] On the hearing of the appeal counsel for the appellant referred to the reasoning of the High Court in Chester v The Queen [1988] HCA 62; (1988) 165 CLR 611 and Buckley v The Queen [2006] HCA 7; (2006) 80 ALJR 605. However, in my view, each of those cases is clearly distinguishable. In each case the order imposing an indefinite sentence was made at the time of initial sentencing. The High Court, in broad terms, concluded that such an order should only be made at that stage in an "exceptional" case.

[9] Under the Act the order for continuing detention, or release subject to a supervision order, is made at about the end of the penalty imposed by way of imprisonment. At that time an evaluation is made of the risk to the community of the offender being released. As pointed out in my reasons in upholding the validity of the Act in Attorney-General v Fardon [2003] QCA 416, the Court at that stage is not 'second guessing' what might be the effect of imprisonment on the rehabilitation of the offender, but is basing its decision on cogent evidence obtained towards the expiration of the period of imprisonment when possible rehabilitation can be evaluated. The Court is then required to apply the test prescribed by the Act, and there is no basis for concluding that an order pursuant to the Act may only be made in 'exceptional' circumstances.

[10] Here, as the learned judge at first instance and Helman J have recorded in their reasons, the examining psychiatrists have concluded that the risk to the community of releasing the appellant was high and that he had not been rehabilitated whilst in custody. There was, in my view, cogent evidence supporting that conclusion, and it follows that the appeal should be dismissed for the above reasons and those given by Helman J with which I agree.

[11] In accordance with the legislation there must be periodic judicial review of the appellant's position, and if, and when, it is appropriate for him to be released into the community, and if so on what terms, must be the subject of consideration in the future.

[12] As I have said, the appeal must be dismissed.

[13] HELMAN J: This is an appeal against a continuing detention order, made on

3 April 2006 in the Supreme Court at Brisbane pursuant to s. 13(5)(a) of the Dangerous Prisoners (Sexual Offenders) Act 2003 (Qld). The appellant seeks orders that that order be set aside and that in substitution for it there be an order under s. 13(5)(b) of the Act that the appellant be subject to a supervision order in the form of a draft submitted to the learned primary judge. The grounds of the appeal are two:

(i) That her Honour erred in failing to apply the principles expressed in the High Court of Australia's decision of Chester v The Queen [1988] HCA 62; (1988) 165 CLR 611.

(ii) That her Honour erred in failing to apply the principles expressed in the High Court of Australia's decision of Buckley v The Queen [2006] HCA 7.

[14] The appellant, a prisoner at the Wolston Correctional Centre, underwent examinations by two psychiatrists under s. 11 of the Act, which provides for psychiatric reports to be made pursuant to a risk assessment order made under s. 8 at a preliminary hearing of an application of the kind made against the appellant. Such an order was made in this case and the two doctors were: Dr Robert Moyle, who interviewed the appellant on 28 November 2005, and Dr Joan Lawrence, who interviewed him on 8 February 2006. Drs Moyle and Lawrence provided reports, Dr Moyle's undated and Dr Lawrence's dated 16 February 2006. Both doctors gave oral evidence before her Honour at the hearing of the application, as did Dr Prabal Kar, consultant psychiatrist, who interviewed the appellant on 7 June 2003 and provided a report dated 16 June 2003. Dr Mark Rallings, Director of the Offender Intervention Programs Branch of the Department of Corrective Services, also gave oral evidence. Dr Kar prepared his report for the Department for the purpose of its considering sentence management, the central issue being whether the appellant posed a risk to the community on release. Dr Rallings's evidence concerned programs available for those found guilty of sexual offences.

[15] Section 5(1) of the Act, in Part 2 (ss. 5-25, continuing detention or supervision), provides that the Attorney-General may apply to the court for an order or orders under s. 8 (preliminary hearing) and an order under Division 3 (s. 13, final orders) in relation to a prisoner. 'Prisoner', as the word is used in s. 5, is defined in s. 5(6):

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.

Section 2 provides that the dictionary in the schedule defines particular words used in the Act. The expression 'serious sexual offence' is defined in the schedule as follows:

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

(a) involving violence; or

(b) against children.

The appellant was serving terms of imprisonment for serious sexual offences, the details of which I shall come to later.

[16] Division 3 of Part 2 of the Act is as follows:

(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 -

(a) if the prisoner is released from custody; or

(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 -

(a) by acceptable, cogent evidence; and

(b) to a high degree of probability;

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;

(j) any other relevant matter.

(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 conditions 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), the paramount consideration is to be the need to ensure adequate protection of the community.

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

[17] The appellant was born in Brisbane on 18 August 1945 and so was sixty years old at the time of the hearing before her Honour. He left school when he was fourteen years old and was detained in boys' homes for offences committed as a juvenile. He has worked as a labourer, factory hand, and driver. He has never married although he has had associations with women. He was convicted of numerous property and driving offences committed from 1958 to 1971, including dangerous driving causing death. In 1989 he was convicted of two minor stealing offences.

[18] On 17 November 1995, at a retrial after a prior conviction and successful appeal, the appellant was convicted in the Brisbane District Court of carnal knowledge by anal intercourse of an intellectually disabled boy aged sixteen years. The offence was committed in December 1993. He was sentenced to imprisonment for three years.

[19] On 5 April 2001 the appellant was convicted in the Brisbane District Court of thirteen sexual offences on two young boys, one aged nine years and the other eleven: nine counts of indecent dealing, two counts of permitting himself to be indecently dealt with, and two counts of exposing a child to indecent acts. Those offences were committed between 19 June 1999 and 3 October of that year. Concurrent sentences of imprisonment for three years were imposed upon him.

[20] On 18 April 2002 the appellant was sentenced in the Brisbane District Court to concurrent terms of imprisonment for two years for two further sexual offences (two counts of indecent dealing with a child under twelve years old) committed in

May 2000 when he was at large with bail in respect of the 1999 offences. Those sentences were ordered to be cumulative upon the terms of imprisonment imposed on 5 April 2001. The victim in that case was a boy aged six years whose genitals he touched on two occasions.

[21] The appellant's criminal record is then one of persistent paedophilia undeterred by past prison sentences or bail conditions. His persistent offending has been accompanied by a persistence in denying his guilt of all wrongdoing. There is of course no legal impediment to his maintaining his innocence, but this court must deal with his case - as her Honour was bound to do - on the premiss that he was guilty of all of the offences of which he was convicted. The case cannot be approached accepting that there is any possibility of doubt about his guilt.

[22] Drs Moyle and Lawrence reached conclusions concerning the risk of the appellant's re-offending using a number of actuarial methods and also by taking into account their clinical assessments of him. Dr Moyle's opinion, recorded at p. 36 of his lengthy report, was that the level of risk that the appellant would commit another serious sexual offence if released from custody or if released from custody without a supervision order was 'at least moderately high and probably high'. In the course of his giving his oral evidence Dr Moyle was asked for his opinion after he had considered the terms of a draft supervision order and a document entitled 'Future Plans' compiled by the appellant after Dr Moyle had given his report, and Dr Moyle replied to the effect that his assessment of the appellant had not altered, adding, 'His risk remains high at this stage ...' Dr Moyle had conceded, at p. 37 of his report, that with 'appropriate externalised structure' and helpful support from others it was possible that the appellant would not re-offend. Dr Lawrence's opinion recorded at

p. 21 of her report was that the risk of the appellant's re-offending on release was high. Referring to possible strict conditions to be imposed upon the appellant on his release, Dr Lawrence expressed the following view:

24.24 Such conditions, in the face of his persistent denial, cannot be said to be certain to avoid re-offending. However, they may help to discourage the activities since Raymond Yeo is fully capable of understanding the consequences of his behaviour should he re-offend. (p. 22)

Dr Kar's opinion, recorded at p. 6 of his report, was that the risks of the appellant's re-offending were 'extremely high'. Dr Kar added, 'I believe it is inevitable that he will sexually assault young boys. I would expect the offences to start very soon, almost immediately after his release into the community'.

[23] In giving the reasons for her decision, the primary judge, after referring to the orders sought, discussed the requirements of the Act, concluding with the following paragraph 6:

[6] In determining whether to make an order under s 13 of the Act, the court must be satisfied that the prisoner is a serious danger to the community in the absence of a division 3 order, because there is an unacceptable risk that the prisoner will commit another serious sexual offence. A court may only make a finding that a person is a serious danger to the community if it is satisfied so by acceptable, cogent evidence. As observed by White J in Attorney-General v Van Dessel [[2006] QCA 16 at para. 17], the serious nature of the inquiry, given that what is at stake is the respondent's fundamental legal right to unfettered personal liberty on the expiration of his term of imprisonment, is underscored in the Act by the requirement that a court only make a finding that a person is a serious danger to the community if it is satisfied to a "high degree of probability". A continued detention order is subject to periodic review (Pt 3). A supervision order is made for a definite term (s15). In determining whether to make a detention order or supervision order, the paramount consideration is the need to protect the community.

[24] Her Honour then considered whether it had been established that the appellant was a serious danger to the community. In doing so her Honour discussed the matters referred to in paragraphs (a) and following of s. 13(4) of the Act. After a detailed consideration her Honour recorded at paragraph 41 her conclusion that she was satisfied that the appellant was then a serious danger to the community in the absence of a Division 3 order, in that there was an unacceptable risk that the appellant would commit a serious sexual offence if released from custody or released without a supervision order. Her Honour recorded that she was satisfied of those matters on the basis of acceptable, cogent evidence, and to the requisite degree of probability.

[25] Her Honour went on to consider whether a continuing detention order or a supervision order should be made, beginning her discussion at paragraphs 42 and 43 as follows:

[42] The issue then arises as to whether in the present case a supervision order would be an appropriate means of managing the risk of further serious sexual offences being committed so as to obviate the making of a detention order.

[43] On behalf of the respondent it was urged that a supervision order would adequately protect the community and reduce the risk of re-offending to an acceptable level. It was submitted citing Chester v The Queen that the making of a continuing detention order should be reserved for "exceptional cases". Chester's case concerned a provision of the Criminal Code of Western Australia that permitted a sentence of indefinite detention to be imposed, the term of which was terminable by executive decision. The provision did not have as its purpose the facilitation of rehabilitation of a prisoner who had a propensity to commit serious crimes, nor did it specify a precise criterion according to which the discretionary power conferred was to be exercised and it made no reference to the need to protect the public from serious, as distinct from violent, crimes. The legislative purposes of the Act here under consideration have already been referred to. The Act in s13(4) mandates precisely the criteria to be considered by the court, although any other relevant matter may additionally be considered. Furthermore, the Act specifies that in deciding whether to make a detention order or supervision order, the paramount consideration is to be the need to ensure adequate protection of the community. In my view, it is not appropriate to superimpose an additional gloss, derived from a consideration of other differently worded legislation, in order to determine when a division 3 order is to be made.

[26] Her Honour's conclusion that a continuing detention order should be made was recorded in paragraph 53. Paragraphs 52 and 53 of her Honour's reasons were as follows:

[52] Drs Moyle and Lawrence were unable to detect that the respondent's incarceration has resulted in any significant alteration in his attitude or that it has had a deterrent effect. The evidence indicates that the respondent has not demonstrated any empathy for the victims of his sexual offending or understanding of his offending conduct. It is of concern that the respondent's offending and propensity is directed towards young children. The effects on young victims of the type of sexual offences for which the respondent shows a propensity can be severe as noted by Dr Moyle. It is of particular concern that the respondent has not while in custody participated in any program, whether at a cognitive skills level or a SOTP level, which addresses his propensity and the cause of his offending conduct. The respondent has not addressed his propensity and denies even that there is any conduct by him that needs to be addressed. As a result, Drs Moyle and Lawrence had no confidence in the respondent being able to minimise the risk of re-offending by means of any internal constraints. The respondent's failure to adequately address his sexual offending by means of any sexual offender program, especially when considered in the light of his denial of every aspect of his sexual offending, are factors which on the expert evidence point to there presently remaining a high to moderately high risk of the respondent committing further serious sexual offences, even if released on a supervision order.

[53] Bearing in mind that the paramount consideration in deciding whether a continuing detention order as opposed to a supervision order ought to be made is the need to ensure adequate protection of the community, I am satisfied that a continuing detention order is in this case appropriate.

('SOTP' refers to the Sexual Offenders Treatment Program)

[27] The argument advanced on behalf of the appellant was refined in the course of the hearing of the appeal. At the beginning, the argument rested on the proposition that her Honour had erred in not satisfying herself that the appellant's case was exceptional before she made the detention order. In the course of the hearing of the appeal the argument was modified to one that her Honour had failed to have sufficient regard to the exceptional nature of the power that she was called upon to exercise before making her order - in particular when it came to deciding between a continuing detention order and a supervision order.

[28] There is nothing in the Dangerous Prisoners (Sexual Offenders) Act that requires a case to be exceptional in the sense of 'unusual': cases of offending in the way dealt with in the Act are, regrettably, all too common. It is not necessary that the offender's wrongdoing be bizarre. It may be banal but nonetheless so persistent as to be so menacing to society as to be deserving of careful consideration under the Act. What must be exceptional, or unusual, is that the offender's case is such that it warrants the exercise of the exceptional power conferred by the Act to deprive an offender, in a way that is contrary to traditional notions of justice, of the right to go free after completion of a term of imprisonment: i.e., after the offender has paid his or her debt to society, as it is sometimes put.

[29] In support of the argument for the appellant reliance was placed on the decisions of the High Court referred to in the grounds of appeal.

[30] In Chester v The Queen a sentencing judge of the Supreme Court of Western Australia had made a direction under s. 662(a) of the Criminal Code (W.A.) that Chester, from the expiration of the finite term of imprisonment to which he was sentenced, be detained during the Governor's pleasure. Chester had pleaded guilty to two counts on an indictment: one alleging unlawful driving of a motor vehicle without the consent of the owner or person in charge of it, and the other of armed robbery. The judge, having considered a pre-sentence report and a psychiatric report attached to the pre-sentence report, sentenced the offender to imprisonment for six months on the first count and to imprisonment for four years cumulative on the second count. His Honour also directed that the applicant be detained during the Governor's pleasure in prison at the expiration of the term of imprisonment. The direction under s. 662(a) was set aside. It was held by the High Court that the exercise of the power conferred by s. 662(a) should be reserved for those 'very exceptional cases' which do not attract the operation of s. 661 of the Criminal Code (which authorizes detention during the Governor's pleasure of habitual criminals) or for which s. 29(1) of the Mental Health Act 1962 (W.A.) (which empowers a justice to order the detention in an approved hospital of a person suffering from a mental disorder) is unlikely to be appropriate. The sentencing judge, it was held, must be satisfied 'by acceptable evidence that the convicted person is, by reason of his antecedents, character, age, health, or mental condition, the nature of the offence or any special circumstances, so likely to commit further crimes of violence (including sexual offences) as to constitute a constant danger to the community'. The stark and extraordinary nature of punishment by way of indeterminate detention, the term of which is terminable by executive, not by judicial decision (by the Parole Board in its discretion), required that the sentencing judge be clearly satisfied by cogent evidence that the convicted person is a constant danger to the community in the sense referred to, the court held (pp. 618-619).

[31] The criteria referred to by the High Court were not specified in s. 662 so the court was persuaded to construe the provision in the way it did to clarify the circumstances in which the extraordinary power it provided for could be invoked. In the Dangerous Prisoners (Sexual Offenders) Act, however, the circumstances are exhaustively specified: no further elaboration is required. In Attorney-General (Qld) v. Francis [2006] QCA 324 at para. 39 it was observed that the intrusions of the Act on the liberty of the subject are exceptional and there that liberty should be constrained to no greater extent than is warranted by the Act, but that observation does no more than emphasize that which is clearly implied in the Act.

[32] Buckley v. The Queen [2006] HCA 7; (2006) 80 ALJR 605, delivered on 8 March 2006, was an appeal to the High Court from a decision of this Court refusing leave to appeal against an indefinite sentence imposed in the District Court pursuant to s. 163 of the Penalties and Sentences Act 1992 (Qld). Buckley had pleaded guilty to serious charges arising out of three violent attacks on women. The principal issue was whether, in imposing that sentence, the sentencing judge observed the principles to be applied in the exercise of the power conferred by the Act. A subsidiary issue was whether the judge made material errors of fact requiring reconsideration by this Court of the judge's sentencing discretion. The High Court allowed the appeal concluding that this Court should have given leave to appeal and reconsidered the exercise of the sentencing discretion.

[33] Section 163(1) of the Penalties and Sentences Act provides that a court may, instead of imposing a fixed term of imprisonment, impose an indefinite sentence on an offender convicted of a violent offence. Subsection (2) requires the court imposing such a sentence to state in its order the term of imprisonment it would have imposed (the nominal sentence) had it not imposed the indefinite sentence. Subsection (3) provides that before a sentence is imposed under subsection (1) the court must be satisfied first that certain provisions of the Mental Health Act 2000 (Qld) concerning inquiries on references to the Mental Health Court do not apply, and secondly that the offender is a serious danger to the community because of the offender's antecedents, character, age, health, or mental condition, the severity of the violent offence, and 'any special circumstances'. Subsection (4) provides that in determining whether the offender is a serious danger to the community, the court must have regard to:

(a) whether the nature of the offence is exceptional; and

(b) the offender's antecedents, age and character; and

(c) any medical, psychiatric, prison or other relevant report in relation to the offender; and

(d) the risk of serious physical harm to members of the community if an indefinite sentence were not imposed; and

(e) the need to protect members of the community from the risk mentioned in paragraph (d).

Subsection (5) provides that subsection (4) does not limit the matters to which the court may have regard in determining whether to impose an indefinite sentence.

[34] Referring to the requirement that a judge specify a nominal sentence, their Honours made the following observations:

The Queensland legislation applied in the present case requires a judge to specify a nominal sentence, which becomes relevant for purposes of review and for the consequences of decisions made on review. The significance of the nominal sentence, however, goes beyond that. In the first place, where a judge, sentencing a dangerous offender, is deciding whether the protection of society requires an indefinite sentence, the protective effect of a finite sentence, fixed according to ordinary sentencing principles, including the need to protect the public, is a matter to be weighed carefully. An indefinite sentence is not merely another sentencing option. Much less it is a default option. It is exceptional, and the necessity for its application is to be considered in the light of the protective effect of a finite sentence. Secondly, the available finite sentence sets the time frame by reference to which the temporal issues earlier mentioned are to be examined. As will appear, in this case the sentencing judge set a nominal sentence of 22 years, having rejected a prosecution submission that it should be life. Since it was clear that, even if an indefinite sentence were not imposed, the appellant would be in custody for many years, estimations of future risk were being undertaken in a temporal context that necessarily gave rise to substantial uncertainty. (p. 607)

The court later referred (at p. 613) to the important dictum of Hayne J.A. in

R. v. Moffatt [1998] 2 V.R. 229 at p. 255 that the power to impose an indefinite sentence is one 'to be sparingly exercised, and then only in clear cases'. It may be accepted that those principles apply mutatis mutandis to consideration of the imposition of an order under Division 3 of Part 2 of the Dangerous Prisoners (Sexual Offenders) Act, although it should be noted that there is no requirement in that Act that the nature of the offence in question be exceptional. That does not mean of course that regard should not be had to the exceptional nature of the order: it is essential that that be in the forefront of the mind of the judge, and, on my assessment of her Honour's reasons, so it was in this case. It is true that her Honour did not say so explicitly, but no other construction may fairly be put on her reasons, particularly when one takes into account her para. 6. In reviewing reasons one must look at the substance of what was said. The absence of the recitation of a formula is of no moment if the substance is sound; conversely the recitation of a formula will not render reasons sufficient if their substance is not sound.

[35] In my view it has not been shown that there was any error in her Honour's consideration of the appellant's case. Her Honour was correct in determining that she should confine her consideration of the case to the strict requirements of the Act, and, having done so, she reached a conclusion clearly open to her, and on my assessment of the matters relevant to the outcome of the application, plainly correct. On behalf of the appellant it was argued that certain matters relevant to her Honour's determination (including the applicant's medical records showing he has 'continuing heart issues', his completion of a cognitive skills program, the circumstances leading to his failure to participate in the Sexual Offenders Treatment Program, his 'generally positive' prison reports, the absence of convictions for offences of violence, and the reduction of the offending sexual behaviour for sodomy in 1995 to fondlings in 2000) show that her Honour erred in not imposing a supervision order for a lengthy period rather than a detention order. But in my view there is no basis for concluding that her Honour failed to give proper consideration to those matters, which she weighed with the other matters unfavourable to the appellant.