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Attorney-General v Phineasa

 

[2012] QCA 184

Reported at [2013] 1 Qd R 305

 

SUPREME COURT OF QUEENSLAND

 

PARTIES:

FILE NO/S:

SC No 1811 of 2012

Court of Appeal

PROCEEDING:

General Civil Appeal

ORIGINATING COURT:

DELIVERED ON:

10 July 2012

DELIVERED AT:

Brisbane 

HEARING DATE:

6 June 2012

JUDGES:

Muir and White JJA and Philippides J

Separate reasons for judgment of each member of the Court, each concurring as to the order made

ORDER:

Appeal dismissed.

CATCHWORDS:

STATUTES – ACTS OF PARLIAMENT – INTERPRETATION – PARTICULAR WORDS AND PHRASES – GENERALLY – where the respondent had previously been convicted of various sexual offences, including indecent acts, indecent assaults, and one charge of entering a dwelling with intent at night – where primary judge implicitly held that none of the offences were a “serious sexual offence” under the Dangerous Prisoners (Sexual Offenders) Act 2003 (‘the Act’) – where “serious sexual offence” is defined by the  Act as “an offence of a sexual nature… involving violence” – where the appellant contended that “violence” included any assault falling under s 245 of the Criminal Code 1899 (Qld) – whether “violence” as used in the  Act ought to be defined in that way or given some other definition – whether the offences of which the respondent was convicted were “serious sexual offences” under the Act – whether the appeal ought to be upheld

Acts Interpretation Act 1954 (Qld), s 14B

Criminal Code 1899 (Qld), s 245, s 349

Dangerous Prisoners (Sexual Offenders) Act 2003 (Qld), division 3, s 3, s 5, s 8, s 13, schedule

Mental Health Act 2000 (Qld)

Sentencing Act 1997 (Tas), s 19

Al-Kateb v Godwin (2004) 219 CLR 562; [2004] HCA 37, followed

Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (2009) 239 CLR 27; [2009] HCA 41, considered

Attorney-General for the State of Qld v Tilbrook [2012] QSC 128, considered

Plaintiff S157/2002 v The Commonwealth (2003) 211 CLR 476; [2003] HCA 2, followed

R v Butcher [1986] VR 43; [1986] VicRp 4, considered

R v Evans (1999) 8 Tas R 325; [1999] TASSC 25, considered

R v McCrossen (1991) Tas R 1; [1991] TASSC 1, considered

Re Bolton; Ex parte Beane (1987) 162 CLR 514; [1987] HCA 12, cited

COUNSEL:

J B Rolls for the appellant

J Allen for the respondent

SOLICITORS:

Crown Law for the appellant

Legal Aid Queensland for the respondent

[1] MUIRJA:
Introduction
On 28 March 2012, the primary judge refused an application by the appellant Attorney-General pursuant to s 8 of the Dangerous Prisoners (Sexual Offenders) Act 2003 (“the Act”) for an order that a date be set for the hearing of an application for an order under division 3 of the Act and for an order that the respondent undergo examination by two psychiatrists named by the court for the purposes of the preparation of independent psychiatric reports.  The appellant appeals against the decision.  The central questions for determination on the appeal identified by counsel for the appellant were:

1. whether at the time of filing the application the respondent was a “prisoner” within the meaning of s 5(6) of the Act; and

2. whether the primary judge erred in failing to be satisfied that there were reasonable grounds for believing that the respondent was a “serious danger to the community” in the absence of orders made under the Act for the respondents ongoing detention or supervision.[1]

[2] For reasons that will shortly become apparent, the meaning of “involving violence” in the definition of “serious sexual offence” in the schedule of the Act is critical to the determination of both questions.  However, unless the first question is answered affirmatively, there is no need to answer the second.

[3] A “serious sexual offence” is defined in the schedule of the Act as “an offence of a sexual nature, whether committed in Queensland or outside Queensland— (a) involving violence; or (b) against children.”

[4] The appellant contended that any assault of one person by another which fell within the definition of s 245 of the Criminal Code (Qld) involved violence.  Section 245 encompasses the actual, attempted or threatened striking, touching, moving or applying of force of any kind to another person without that person’s consent.

[5] The respondent, in reliance on the reasons of Margaret Wilson J in A-G (Qld) v Tilbrook,[2] argued that “more than mere touching” was required and that violence “involved the unlawful and unwarranted application of physical force [which]… was rough and injurious treatment… warranting the exercise of the powers in the [Act] to protect the members of the community”.

The respondent’s relevant history of offending

[6] The respondent was 25 years of age in 2012.  He committed his first criminal offence when he was 18.  In February 2006, he was convicted of property offences and of committing an act of indecency with a person aged 16 years or over.

[7] The respondent’s offending conduct in Queensland was described by the primary judge in some detail.  There was no challenge to her findings in this regard and it is thus convenient to set out the relevant passages from her reasons:[3]

The Cairns offences in May 2006

The respondent’s history of offending in Queensland commenced on 2 May 2006 when he committed four offences.  On that day he exposed his penis and masturbated in the presence of females at a hotel in Cairns.  He was observed to have extended his hand behind a woman’s bottom to touch her bottom as she stood at a poker machine while he continued to masturbate (Charge 1).  On the same evening, the respondent was observed to remove his penis from his pants, masturbate and then attempted several times to rub his penis against the back of another female patron in the hotel (Charge 2).

Shortly afterwards the respondent was then observed to walk behind another woman sitting in front of a poker machine.  He was observed to expose his penis, place it on the top back section of the chair and attempt to poke the woman on he [sic] back as he ran his penis along the top of the chair (Charge 3).

Minutes later the respondent was observed to be closely walking behind a female and fiddling with his groin area (Charge 4).

On 17 August, 2006, the respondent was convicted of these four charges of committing indecent acts and sentenced in the Mareeba Magistrates Court to three months imprisonment wholly suspended for a period of 2 years as well as an Order for 2 years probation with a special condition that he participate in a community Sex Offender Treatment Program.

The January 2007 offences

On 31 January 2007, when the respondent was aged 19, he committed offences of entering a dwelling with intent to commit an indictable offence in the dwelling in the night time; unlawful indecent assault on a female and committing an indecent act in a public place.

The circumstances surrounding the first two of those offences were that at about 5.45am the respondent entered the bedroom of the female complainant who was sleeping in her bed wearing a t-shirt and underwear.  She was awoken when she felt someone touch her buttocks area, pulling her underpants to one side.  The claimant screamed for help and the respondent climbed out of her bedroom.

At a different location on the same day, the respondent placed his hand down the front of the shorts that he was wearing and appeared to masturbate in front of a 64-year-old woman and, whilst masturbating, asked the complainant “Do you get naked?”

On 5 September, 2007, the respondent was sentenced in the Cairns District Court for the offences involving the entering of the dwelling and indecent assault and sentenced to 6 months imprisonment with 2 years probation.  For the third charge, the respondent was sentenced to 3 months imprisonment.  It was a condition of the Probation Orders that the respondent undertake programs to address his sexual offending…

The November 2007 offences

On the day of his release from prison following that sentence, namely 23 November 2007, the respondent entered a curtain shop in Mareeba where a 47-year-old female shop assistant was working alone.  The respondent approached to within three metres of the woman, exposed himself and then masturbated in front of her until he ejaculated on the floor of the shop.  As he was leaving the store he touched the complainant on the bottom.

The next day, 24 November 2007 the respondent sat beside [a] woman at a McDonald’s Restaurant in Cairns and grabbed and rubbed her several times on the bottom.  Surveillance footage of the incident shows the respondent rubbing his crotch whilst rubbing and grabbing the woman’s bottom.  In a later interview the respondent said that his touching of the woman was for the purposes of sexual gratification.

At about 1.00am on 26 November 2007 the 33 year old complainant was in her home in Cairns and was unable to sleep.  She walked naked into her lounge room to watch television.  She observed the shadow of a man walk past her sliding door a number of times and rattle her security door.  The respondent then said “Let me in. I’m coming in.”  The respondent then moved to the front window, looked through the blinds at her and again told her he was coming inside.  The respondent was unknown to the woman.  She then called police.

On 4 July 2008 the respondent was sentenced in the Cairns District Court in relation to offences of indecent assault, committing an indecent act and observing in breach of privacy to 6 months imprisonment to be served cumulatively upon a sentence of 2 and a half years imprisonment as a result of his resentencing for the offences of entering a dwelling with intent at night and sexual assault for which he had been placed on probation…

Offences in custody

While in custody on 5 January 2010 [the respondent] is alleged to have masturbated in front of a female Corrective Services officer.  On 11 July 2011 [the respondent] also pleaded guilty to eight offences relating to exposing his penis or masturbating in front of female Corrective Services officers.  Those offences occurred between 7 February 2010 and 20 September 2010.

In relation to each of those offences he was sentenced to 12 months imprisonment with a parole eligibility date fixed at 11 October 2011.”

The primary judge’s findings as to the meaning of serious sexual offence

[8] The primary judge held, implicitly, that none of the 2007 offences was a “serious sexual offence.”

[9] Her Honour rejected the appellant’s arguments as to the meaning of “involving violence” which were, in substance, the same as those advanced on this appeal.  She did not attribute any other meaning to those words, but concluded that she “[could not] be satisfied that the offences… involved violence”.

The meaning of serious sexual offence – the appellant’s submissions

[10] Counsel for the appellant submitted to the following effect.  The word “violence” should be given its ordinary natural meaning.  In the New Shorter Oxford English Dictionary,[4] “violence” is defined as “The exercise of physical force so as to cause injury or damage to a person, property etc.; physically violent behaviour or treatment” and “[t]he unlawful exercise of physical force”.  The definition in Butterworth’s Australian Legal Dictionary[5] is “unjust, unwarranted or unlawful use of force”.  In v Butcher,[6] the Full Court referred to the English-Latin Dictionary definition of violence, “inherent overpowering force, whether physical or mental” and observed:

“However, it seems to us that if the word violence in the phrase ‘act of violence’ is understood to be used in its etymological sense and in the descriptive way that it has been used in the cases, and to embrace actual force used to overcome or nullify resistance and as well, threats or menaces to induce fear and terror or to intimidate in order to remove or nullify resistance, the phrase is apt to express the type of act which is required to call into play the felony murder rule under s 3A.”

[11] In R v Evans,[7] Wright J, Cox CJ agreeing, observed in relation to a dangerous criminal declaration under s 19 of the Sentencing Act (Tas):

“Any assault involves the intentional application of force.  An unlawful sexual assault derives its unlawfulness either from the absence of consent or the tender years of the alleged victim but, whether lawful or unlawful, any assault involves an element of violence.  Similarly with rape, an act of intercourse is a constituent element of the offence and its unlawfulness derives from the absence of consent by the alleged victim.  It matters not whether the absence of consent results from force, threats or fraud – if it is absent and any defence of honest and reasonable mistake is negatived, the crime has been established and, for the purposes of s19, that crime is one involving violence or an element of violence…

In my opinion, rape is the quintessential example of criminal violence, whether accomplished by overt brutality or crafty guile, the act of penetration providing the requisite violence to activate the section.”

[12] Reference was made also to R v McCrossen.[8]  That case involved an application that the prisoner be declared a dangerous criminal having been convicted of attempting to commit the crime of threatening to murder by writing and sending a letter containing a threat to cruelly kill the addressee, which letter was opened and read by the addressee’s husband.  In that regard, Green CJ said:[9]

“The element of violence relied on by the Crown is the making of the threat to kill.  The word ‘violence’ is not defined in the Criminal Code.  It obviously includes the application of actual force to the person of another but the issue in this case is whether it is also capable of including a threat to apply force to another.

In Reg. v Compensation Board, Ex p. Webb the court held that for the purpose of the Criminal Injuries Compensation Scheme the words ‘crime of violence’ included a threat to inflict personal injury on another.  That decision was affirmed by the Court of Appeal.  In Reg. v. Butcher the Full Court of the Supreme Court of Victoria was required to consider whether the crime of robbery which at common law was capable of being committed without the application of actual personal force was a crime ‘the necessary elements of which include violence’ for the purposes of the Crimes Act 1958 (Vic.), s.3A.  After an extensive review of the authorities the court concluded that ‘both putting a person in fear or seeking to put a person in fear of being “subjected to force” have always been accepted under the common law as violence’ notwithstanding that actual force has not been applied.  To similar effect in Brown v. The Queen Wright J. sitting as a member of the Court of Criminal Appeal in reasons for judgment with which the other members of the court concurred said:

‘Rape is a crime of violence properly so called even if threats express or implied have been sufficient to overbear the victim’s will without the offender resorting to a direct physical attack.’”

[13] The final authority relied on by counsel for the appellant was A-G (Qld) v Tilbrook,[10] in which Margaret Wilson J held that, for the purposes of the definition of “serious sexual offence”, although conduct not involving actual physical contact could amount to “violence”, unlawful touching did not necessarily constitute “violence”.  Her Honour found that an offence in which:[11]

“The respondent grabbed the complainant with both hands on her breast and squeezed her tightly, causing her pain.  This was more than mere touching.  It involved the unlawful and unwarranted application of physical force; it was rough and injurious treatment.  It was conduct warranting the exercise of the powers in the Dangerous Prisoners (Sexual Offenders) Act to protect the members of the community.  It was, therefore, a serious sexual offence.”

[14] Her Honour also found conduct by the respondent in attempting “to pull the complainants underwear down and his rubbing his hand on her vaginal area over her clothing involved the unlawful and unwarranted application of physical force” and was a “serious sexual offence”.[12]  The appellant does not accept the correctness of the proposition that unlawful touching did not necessarily constitute violence.

The meaning of serious sexual offence – the respondent’s submissions

[15] Counsel for the respondent placed great reliance on the analysis of Margaret Wilson J in paragraphs [28] – [44] of her reasons in Tilbrook.

[16] Her Honour discussed the meaning of “violence” as follows:[13]

“The definitions of violencein the Macquarie Dictionary (2nd Revised Edition) include:

‘1.rough force in action: the violence of the wind;

2.rough or injurious action or treatment: to die of violence;

3.any unjust or unwarranted exertion of force or power, as against rights, laws, etc; injury, wrong, outrage.’

The definitions of violencein The New Shorter Oxford English Dictionary (1993) include:

‘1.the exercise of physical force so as to cause injury or damage to a person, property, etc; physically violent behaviour or treatment ... the unlawful exercise of physical force’

The definitions of violentin that dictionary include:

‘1.Having a marked or powerful (esp. physical) effect …

2.Of an action: involving or using great physical force or strength, esp. in order to cause injury; not gentle or moderate.’

In R v Butcher [1986] VR 43 the Full Court of the Supreme Court of Victoria considered the meaning of ‘violence’ in s 3A of the Crimes Act 1958 (Vic)…

‘…by an act of violence done in the course or furtherance of a crime…’

Their Honours said at p 53:

‘As a matter of etymology, violence is a word having its origin in the Latin violentia, often connoting vehemence or impetuosity.  It is not synonymous with the use of physical force, although physical force falls within its meaning.  It is a word of wider significance in the law, as the cases show.  Smith and Hall in their English-Latin Dictionary give as their first meaning of violence: “inherent overpowering force, whether physical or mental”.  In the Oxford English Dictionary violence is defined as follows: “(Law) unlawful exercise of physical force, intimidation by the exhibition of this.

… it seems to us that if the word violence in the phrase “act of violence” is understood to be used in its etymological sense and in the descriptive way that it has been used in the cases, and to embrace actual force used to overcome or nullify resistance and as well, threats or menaces to induce fear and terror or to intimidate in order to remove or nullify resistance, the phrase is apt to express the type of act which is required to call into play the felony murder rule under s 3A.’

The use of the expression ‘involving’ is indicative of the Legislature’s intention that violence need not be a constituent element of the offence as a matter of legal principle.  Rather, the conduct constituting the particular instance of the offence must include or entail violence.  See R v McCrossen [1991] Tas R 1.”

[17] Margaret Wilson J’s conclusion as to the meaning of “serious sexual offence” is incorporated in paragraphs [42] – [44] of her reasons in Tilbrook, in which she determines whether particular offending conduct came within those words.  It is sufficient for present purposes to refer to paragraph [42] of the reasons quoted earlier.

The relevant statutory provisions

[18] The objects of the Act are identified in s 3 as:

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

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

[19] Section 5 permits the Attorney-General to apply for an order or orders under s 8 and a division 3 order in relation to a prisoner.  Under s 8, if a court is satisfied there are reasonable grounds for believing the prisoner is a serious danger to the community in the absence of a division 3 order, it must set a date for the hearing of the application for a division 3 order. If the court is so satisfied, it may order that the prisoner undergo examinations by two psychiatrists named by the court who are to prepare independent reports.  A “division 3 order” is defined in the schedule to the Act as meaning: “(a) a continuing detention order; or (b) a supervision order”.

[20] Section 13 of the Act relevantly provides:

“(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.”

[21] It is convenient to repeat the definition of serious sexual offence: “an offence of a sexual nature, whether committed in Queensland or outside Queensland— (a) involving violence; or (b) against children”.

[22] “Violence” is defined as including intimidation and threats.

Consideration of the meaning of “serious violent offence”

[23] As the earlier discussion makes apparent, the word “violent”, like a great many words in the English language, is capable of bearing a variety of meanings depending on its context.

[24] An offence, to be a serious sexual offence, must be “of a sexual nature” and involve “violence” unless it is against children.

[25] If the appellant’s argument is to be accepted, the words “involving violence” are virtually otiose.  Any physical contact of a sexual nature would necessarily involve violence.  That would leave outside the definition only offending which did not involve physical contact such as indecent exposure and voyeuristic conduct, as long as the offending conduct did not constitute “intimidation” or “threats”.

[26] It may be doubted that this result was in Parliament’s contemplation.  Many indecent acts involving physical contact are far less culpable in nature and harmful to their victim than indecent acts involving no physical contact.  Such acts may be neither intimidating nor constitute threats yet be grossly offensive, confronting, disturbing or corrupting.

[27] Also it may be doubted that offending against children would have been mentioned separately if any sexual contact, however minor, involved “violence” and was thus capable of constituting a “serious sexual offence”.

[28] The definition of serious sexual offence plays a pivotal role in the operation of the Act.  Final orders which may result in a continuing detention order or a supervision order may be made only if the prisoner is a serious danger to the community in the absence of such an order.[14]  A prisoner is, by definition, a serious danger to the community if there is an unacceptable risk that the prisoner will commit a serious sexual offence if released from custody or if released from custody without a supervision order.[15]

[29] A serious sexual offence is thus an offence, the commission, or potential commission, of which may represent “a serious danger to the community”.  One should not attribute to the Parliament in using the words “serious danger to the community” the intention that they have a meaning quite different from, and in fact, the converse of their meaning in normal usage.  If the appellant’s argument is accepted the language under consideration is singularly inappropriate and misleading.

[30] On the appellant’s argument, s 13(1) is to be construed as if it provided:

“This section applies if, on the hearing of an application for a division 3 order, the court is satisfied that there is an unacceptable risk that the prisoner will commit either a sexual act involving an assault or any sexual offence against a child.”

[31] This proposition has only to be stated to be rejected.  Parliament should not be credited with the establishment of a regime under which citizens, who have committed no crime for which they have not undergone just punishment, are deprived of their liberty because of a perceived risk that they might commit relatively minor offences unless the language of the statute compels that conclusion.  On the appellant’s argument, it would be open to a court to make a continuing detention order where, for example, there was an unacceptable risk that a male prisoner might, if released, indulge a predilection for pinching women’s (fully clad) bottoms or surreptitiously touch women’s thighs or bump against women in a sexual way in crowded public transport.

[32] A casual perusal of the Act is all that is necessary to reveal that its language is wholly inconsistent with such a construction.  Why, for example, would Parliament have contemplated that the comprehensive processes envisaged by s 8 of the Act be set in train in respect of a perceived risk that a prisoner, if released, might commit offences which caused no substantial harm?

[33] The objects of the Act do not suggest that Parliament had in contemplation a broad class of offenders extending from those who posed a risk of minor offending to those who posed a risk of committing the most serious types of offences.  Sections 3(a) and 3(b) speak of “a particular class of prisoner”.  The “continued detention” or “supervised release” of the “particular class of prisoner” is for one of two purposes: ensuring adequate protection of the community or providing care or treatment to facilitate rehabilitation.  Counsel for the appellant referred to the latter purpose in support of the argument that a narrow view of the scope of application of the Act was unwarranted.  I do not find that point compelling.  Once the Act’s provisions apply to a prisoner he or she is amenable to either a continued detention order or a supervision order.  Even the latter is capable of severely restricting personal rights and freedoms as well as exposing a person subject to such an order to criminal sanctions in the event of breach.

[34] Counsel for the appellant pointed out that orders under the Act may be made only in respect of a “prisoner” which is defined in s 5(6) of the Act as follows:

“In this section—

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.”

[35] I do not consider the fact that the Act operates only in respect of prisoners has much bearing on the present discussion.  If the appellant’s construction of “serious sexual offence” is correct, a “prisoner” may have been imprisoned for a relatively minor sexual offence, particularly if the prisoner was sentenced at the same time for more serious non-sexual offences.  In such cases, there can be a tendency on the part of sentencing judges not to carefully consider the appropriate level of the lesser sentences if concurrent terms are to be ordered.  Apart from that, the Act operates having regard to the anticipated or predicted future conduct of a prisoner, not his past conduct.

[36] I agree with Margaret Wilson J’s conclusion in Tilbrook that to constitute “violence” for present purposes something more than mere physical contact is required.  I am also of the view that “violence”, for present purposes, does not equate to the application of force, however limited, irrespective of the harm caused or likely to be caused to the person to whom it was applied.

[37] The definition which to my mind best captures the meaning of “violence” in the definition of serious sexual offence is the definition of “violent” in The New Shorter Oxford English Dictionary.  In addition to the meanings quoted earlier, The New Shorter Oxford English Dictionary also gives these meanings:[16]

“1.Of things: Having some quality or qualities in such a degree as to produce a very marked or powerful effect (esp. in the way of injury or discomfort); intense, vehement, very strong or severe.

  1. Of persons: Acting with or using physical force or violence, esp. in order to injure, control, or intimidate others; committing harm or destruction in this way;…”

[38] As I trust emerges from earlier discussion, the “violence” referred to in the definition of serious sexual offence is force significantly greater in degree than mere physical contact or even, at least as a general proposition, acts such as pawing, grasping, groping or stroking.  The language of sections 8 and 13, in particular, is inconsistent with the application of the Act to sexual offences other than of a very serious kind where offending against adults is concerned.  Those sections are addressing conduct of such a nature, that the risk that a prisoner, assumed to be a member of a particular class, might engage in it and harm a member or members of the public if released from custody or if released without a supervision order, is regarded as unacceptable.  Consequently, the “violence” contemplated by the Act (excluding for present purposes threats and intimidation) would normally involve the use of force against a person to facilitate the “rape” of that person within the meaning of s 349 of the Criminal Code or which caused (or in the case of predicted conduct would be likely to cause) that person significant physical injury or significant psychological harm.

[39] It is unnecessary for present purposes to explore the question whether and to what extent there may be “violence” for the purposes of the Act not involving intimidation, threats or the application of physical force to a person.  Nor is it desirable or appropriate to attempt any greater degree of definition of the meaning of “violent”.  It will always be necessary to determine whether conduct involves “violence” by reference to the particular facts and circumstances of the case under consideration.  However, rape, involving as it does the violation of the victim’s body would normally, if not invariably, involve “violence”.[17]

[40] This construction of the term “violence” is consistent with the principles stated by Gleeson CJ in the following passage in his reasons in Al-Kateb v Godwin:[18]

“Where what is involved is the interpretation of legislation said to confer upon the Executive a power of administrative detention that is indefinite in duration, and that may be permanent, there comes into play a principle of legality, which governs both Parliament and the courts.  In exercising their judicial function, courts seek to give effect to the will of Parliament by declaring the meaning of what Parliament has enacted.  Courts do not impute to the legislature an intention to abrogate or curtail certain human rights or freedoms (of which personal liberty is the most basic) unless such an intention is clearly manifested by unambiguous language, which indicates that the legislature has directed its attention to the rights or freedoms in question, and has consciously decided upon abrogation or curtailment.  That principle has been re-affirmed by this Court in recent cases.  It is not new.  In 1908, in this Court, O’Connor J referred to a passage from the fourth edition of Maxwell on Statutes which stated that ‘[i]t is in the last degree improbable that the legislature would overthrow fundamental principles, infringe rights, or depart from the general system of law, without expressing its intention with irresistible clearness’.

A statement concerning the improbability that Parliament would abrogate fundamental rights by the use of general or ambiguous words is not a factual prediction, capable of being verified or falsified by a survey of public opinion.  In a free society, under the rule of law, it is an expression of a legal value, respected by the courts, and acknowledged by the courts to be respected by Parliament.”

[41] To similar effect, is the following statement of principle of Gleeson CJ in Plaintiff S157/2002 v The Commonwealth:[19]

“… courts do not impute to the legislature an intention to abrogate or curtail fundamental rights or freedoms unless such an intention is clearly manifested by unmistakable and unambiguous language.  General words will rarely be sufficient for that purpose.  What courts will look for is a clear indication that the legislature has directed its attention to the rights or freedoms in question, and has consciously decided upon abrogation or curtailment.  As Lord Hoffmann recently pointed out in the United Kingdom, for Parliament squarely to confront such an issue may involve a political cost, but in the absence of express language or necessary implication, even the most general words are taken to be ‘subject to the basic rights of the individual’.”

[42] The construction is supported also by the Minister’s second reading speech, to which s 14B of the Acts Interpretation Act 1954 (Qld) permits reference as an aid to construction.  In it the Attorney-General said:[20]

“…that there are likely to be very few of these applications… we are probably talking about approximately a dozen or so very, very serious offenders, most of whom have been in prison for a long time.

I should emphasise again that there are a very small number of prisoners that I would imagine this legislation will apply to…

As I have said, this law has been carefully drafted to confine its operation…

However, this law recognises that in a discrete and small number of cases there are some individuals who represent such a serious danger to the community that it is in the broader public interest that the community be protected from those individuals.”

[43] It is stated in the explanatory notes to the Dangerous Prisoners (Sexual Offenders) Bill 2003:

“This Bill effectively addresses these concerns by enabling the Supreme Court to order the post-sentence preventive detention or supervision of sex offenders who pose a serious danger to the community if released at their sentence expiry date.

There is currently a gap in the law when it comes to the protection of the community from dangerous sexual offenders.  The law does not presently provide a mechanism whereby the community can be protected from a potentially dangerous individual, who is not mentally ill for the purposes of the mental health legislation and who has not committed a criminal offence (that is other than an offence for which the individual has already been sentenced).

These amendments address that inadequacy by providing for a mechanism whereby prisoners who, if released, pose an unacceptable risk of committing a further offence of a sexual nature, may be detained when it is appropriate to do so for the protection of the community.  It is the need to protect the community which is the paramount reason for the introduction of the Bill.”

[44] Such aids to construction cannot be substituted for the text of the Act.[21]  The court must “give effect to the will of Parliament as expressed in the law”.  And although “The meaning of the text [of an Act] may require consideration of the context, which includes the general purpose and policy of a provision, in particular the mischief it is seeking to remedy”,[22] it is ultimately the text, “construed according to such principles of interpretation as provide rational assistance in the circumstances of the particular case”, which is the controlling factor.[23]

[45] In this case, the construction which in my view is suggested by the language of the Act is, at worst, consistent with that pointed to by the aids to construction just discussed.  Indeed, that construction is amply justified by the words of the Act without resort to extrinsic materials or other aids to construction.

The psychiatric evidence

[46] A psychiatric risk assessment report dated 16 November 2009 and four supplementary reports of Dr Basil James, psychiatrist, were in evidence at first instance.  Some of the reports are quite detailed but, for present purposes, it is necessary only to state a few of Dr James’ opinions and observations.  Dr James’ first interview with the respondent had gone for only about 20 minutes when the respondent announced, “Well, that’s it” and departed.  Before doing so, however, he had, on several occasions, briefly fondled his genital area in a way which was “notably inappropriate” but was not suggestive “of any overt sexual motivation”.  Applying the Static-99 test, Dr James gave the respondent the high score of nine.  He referred to the respondent’s offending history as being “… of high frequency ….persistent, inept, insightless, seemingly quite unaffected by community-based sanctions, and seemingly equally beyond [the respondent’s] ability or inclination to exercise control”.[24]  He stated:[25]

“In the absence of a valid diagnostic formulation, there appears to have been no intervention of a kind which holds out any hope that [the respondent’s] future conduct will be in any way significantly different from his past conduct.”

[47] Dr James was of the opinion that the respondent suffered from a psychiatric or organically based brain disorder.  In his first report, Dr James chronicled a series of incidents in which the respondent behaved in a sexually inappropriate way when in prison in 2007: requesting a female clinical nurse to massage his scrotum; masturbating in front of a female Correctional Services officer; exposing himself to a female Centrelink officer and arousing himself in the presence of a female staff member.

[48] In his report of 29 November 2011, Dr James referred to a report by the respondent’s treating psychiatrist, Dr Schramm.  He noted Dr Schramm’s reference to the respondent’s “…intractable and quite bizarre history of repeatedly exposing himself, even in prison”.  Dr Schramm also noted that “those assessing [the respondent] noted ongoing difficulties with frequently exposing himself to female officers.  Other odd behaviour was also noted, including talking to himself, putting toothpaste in his hair, and not uncommonly seen to be posturing”.[26]  In that report, Dr James concluded that “…the diagnosis of a quite severe, chronic and disabling condition – Chronic Schizophrenia – is now unequivocal”.  He concluded that the respondent’s disorder was a major contributing factor to his offending behaviour and that the condition required “virtually indefinite medicinal treatment, without which, [the respondent’s] risk of re-offending will be extremely high”.[27]  He concluded, however, that if continued medication could be assured “in the context of intense and assertive mental health care, together with appropriate social support… it is likely that he could be managed in the community.  It is likely that an Involuntary Treatment Order will be necessary”.

[49] In his further report of 30 January 2012, Dr James concluded that:[28]

“Without ongoing treatment, [the respondent] is likely to suffer serious mental deterioration, and if this occurred, there would be an imminent risk that he may cause harm to others.”

[50] The 29 November report was prepared after an examination of the respondent on 14 November 2011.

Was the respondent a prisoner?

The appellant’s contentions

[51] Counsel for the appellant identified three of the offences set out in the primary judge’s reasons as ones which were of a sexual nature involving “violence”.  The first was the offence committed on 31 January 2007 in which the appellant pulled the underpants of a sleeping woman to one side.  That conduct was said to involve the unlawful and unwarranted application of physical force.  The conduct would have induced “great fear at being awakened and treated in such a manner”.

[52] The offence committed on 23 November 2007 was particularised as the respondent approaching the complainant in a curtain shop, exposing himself, masturbating to the point of ejaculation and then touching the complainant on the buttocks.  The touching was said to be the application of physical force and therefore an assault.

[53] The remaining offence relied on by the appellant was that committed on 24 November 2007 when, in a McDonalds restaurant, the respondent sat beside the complainant, grabbed her buttocks, then rubbed her buttocks several times while rubbing his crotch.  In so doing, physical force was applied by the respondent to the complainant.

Consideration

[54] None of the offences relied on by the appellant involved force sufficient to constitute “violence” within the meaning of the Act.  It follows that the respondent was not a “prisoner” and that sections 8 and 13 of the Act did not apply.

[55] It is plain from the respondent’s history of offending and from Dr James’ evidence that the respondent is highly likely to continually re-offend if he does not take appropriate medication.  There is also the concern held by Dr James that without continuing treatment the respondent “… is likely to suffer serious mental deterioration, and if this occurred, there would be an imminent risk that he might cause harm to others”.  Dr James was not asked what he meant by “harm”.

[56] In his report of 29 November 2011 and his final report of 30 January 2012, Dr James stated, in effect, that an Involuntary Treatment Order under the Mental Health Act was necessary to ensure that the respondent was suitably medicated and to prevent his mental condition from deteriorating.  These opinions were unchallenged.  It is to be hoped that the relevant authorities have been provided with and have given due consideration of Dr James’ reports.

Conclusion

[57] For the above reasons, I would dismiss the appeal.

[58] WHITEJA: I have had the advantage of reading Muir JA’s reasons for dismissing this appeal.  I agree with those reasons and particularly with his Honour’s approach to the meaning to be given to the expression “violence” in the definition of “serious sexual offence” in the schedule to the Dangerous Prisoners (Sexual Offenders) Act 2003.

[59] The construction contended for by the appellant would expose virtually all those convicted and sentenced to punishment by imprisonment for any sexual assault to the extraordinary regime of that Act.  Neither the text, structure nor objects of the Act, as Muir JA has demonstrated, dictate this approach.  Nor does the extrinsic material to which the court may have recourse.

[60] I agree with the order proposed by Muir JA.

[61] PHILIPPIDESJ: I agree with the reasons of Muir JA and with the order proposed.

Footnotes

[1] See s8(1) of the Act.

[2] [2012] QSC 128 at [42].

[3] Reasons at [10] – [23].

[4] 1994 ed at 3583.

[5] Edited by P Nygh and P Butt, Butterworth’s Brisbane 1997 at 1247.

[6] [1986] VR 43 at 53.

[7] (1999) 8 Tas R 325 at 333.

[8] (1991) Tas R 1.

[9] At 5 – 6 (citations omitted).

[10] [2012] QSC 128.

[11] At [42].

[12] At [44].

[13] At [37] – [40].

[14] See s13(1) of the Act.

[15] See s13(2) of the Act.

[16] The New Shorter Oxford English Dictionary, 3rd edition.

[17] R v Evans (1999) 8 Tas R 325 and R v Brown [1987] Tas R (NC) N21.

[18] (2004) 219 CLR 562 at 577 (citations omitted).

[19] (2003) 211 CLR 476 at 492 (citations omitted).

[20] Hansard, 4 June 2003 at 2581.

[21] Re Bolton; Ex parte Beane (1987) 162 CLR 514 at 518.

[22] Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (2009) 239 CLR 27 at 46 – 47 (citations omitted).

[23] Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (2009) 239 CLR 27 at 47 – 48.

[24] Record at 233.

[25] Record at 234.

[26] Record at 277.

[27] Record at 281.

[28] Record at 284 – 285.

Close

Editorial Notes

  • Published Case Name:

    Attorney-General for the State of Queensland v Phineasa

  • Shortened Case Name:

    Attorney-General v Phineasa

  • Reported Citation:

    [2013] 1 Qd R 305

  • MNC:

    [2012] QCA 184

  • Court:

    QCA

  • Judge(s):

    Muir JA, White JA, Philippides J

  • Date:

    10 Jul 2012

Litigation History

Event Citation or File Date Notes
Primary Judgment [2012] QSC 76 28 Mar 2012 -
Appeal Determined (QCA) [2012] QCA 184 10 Jul 2012 -

Appeal Status

{solid} Appeal Determined (QCA)