SUPREME COURT OF QUEENSLAND

[1] MUIR JA: Introduction The appellant appeals against a continuing detention order made on 11 May 2012 under the Dangerous Prisoners (Sexual Offenders) Act 2003 (“the Act”) detaining the appellant in custody for an indefinite term for control, care or treatment. 

[2] The central issue for determination on the appeal is whether the appellant, at relevant times, was a “prisoner” within meaning of s 5(6) of the Act.  Whether the appellant was a “prisoner” depends on whether he was serving a period of imprisonment for a serious sexual offence or serving a period of imprisonment that included a term of imprisonment for a serious sexual offence.[1]  If this question is answered affirmatively, it will be necessary to determine whether the primary judge erred in holding that the appellant was a serious danger to the community in the absence of an order under Division 3 of the Act.

The appellant’s offending conduct

[3] It is desirable, at the outset, to describe the appellant’s offending conduct.  That may be done conveniently by quoting from the primary judge’s careful and comprehensive reasons:[2]

“The offence on 16 July 2007

[13]The respondent was originally sentenced for this offence … on 16 September 2008. The facts on which the prosecutor relied were as follows. The complainant was a 36 year old female. At about 6.20 pm on 16 July 2007 the respondent was at the Ipswich Railway Station when he saw the complainant walk past him. He followed her into the Ipswich City Square and down escalators into a carpark. When she was walking towards her car he came from behind her, grabbed her with both hands on her breast and squeezed her tightly. This caused her pain. He then pulled her backwards. She screamed, elbowing him off, and he ran away laughing as he did so... According to the victim impact statement tendered at sentence, the complainant did not suffer any ongoing physical injury, but she did have emotional problems, for which she sought psychiatric treatment.

…

The offence on 25 March 2009

[17]The complainant was a 19 year old female. At about 7.50 am on 25 March 2009 she had parked her car in a carpark at the Garden City Shopping Centre. She walked through the shopping centre to another carpark towards a bus depot. As she went from the shopping centre into the second carpark, the respondent lifted her skirt and squeezed her buttock. She instinctively turned around and saw the respondent, whom she did not know. The respondent backed away when a vehicle pulled up in the carpark. He said something to her but she did not hear what he said. She was unhurt.

The offence on 12 November 2009

[18]The offence on 12 November 2009 also occurred at the Garden City Shopping Centre. The complainant was a 41 year old female. At about 9.50 am she exited some female toilets and walked about 10 metres towards the shops. As she passed male toilets, the respondent pulled her dress up from behind. He touched her stomach and back area in an attempt to pull her underwear down. It was only because she was wearing leotards that he failed. He rubbed his hand on her vaginal area over the top of the leotards. She screamed and he ran off. There was a victim impact statement tendered at sentence. It is not in the material before this Court, but it is apparent from the sentencing judge’s remarks that as a result of what occurred the complainant was frightened to go shopping or to enter carparks and that she changed her work schedule with consequent loss of income.”

[4] At the time of trial and judgment, the appellant was serving a period of imprisonment for each of the three sexual offences.  His full-time release date was 12 May 2012. 

The appellant’s history of earlier sexual offending

[5] The appellant’s history of sexual offending which preceded the sexual assaults committed in 2007 and 2009 was described as follows by the primary judge:[3]

“[56]In April 2007 he was dealt with in the Maroochydore Children’s Court for two counts of indecent treatment of a child under 12 (on about 27 July 2003 and between 30 November 2004 and 24 December 2004) and one count of stealing. The child with whom he indecently dealt was his [relative]. At the time the respondent was aged 14 – 15 years and his [relative] was aged 9 – 10. The charges related to two incidents which took place in their [relative’s] bedroom, although similar behaviour occurred approximately 50 times over an 18 month period. On each occasion, the respondent would kiss the complainant, touch and kiss her breasts, and rub his penis on her vagina. He would sometimes ask her to suck his penis, but she refused. She asked him to stop many times and tried to push him away. Convictions were not recorded, but he was placed on two years probation. It was a special condition of the probation that he attend the Griffith Adolescent Forensic Assessment and Treatment Centre or another program as directed.”

The appellant’s antecedents

[6] The primary judge described the appellant’s antecedents as follows:[4]

“[46]The respondent is a young indigenous man, presently aged 22 years. In February 2010 a Kaufmann Brief Intelligence Test (KBIT-II) was administered to him. He obtained an IQ composite score of 51, which placed him on the cusp of the mild (IQ range 55 – 70) and moderate (IQ 40 – 54) intellectual disability ranges.

[47]When he was eight years of age, he was diagnosed with ADHD, and was treated with dexamphetamine for some years. He attended a special needs school. He left school during Year 10.

[48]He cannot read or write to an acceptable standard.

[49]On leaving school he commenced an apprenticeship with Caloundra City Council as a landscaper. His employment was terminated after he was charged with the sexual assault of his [relative]… He worked for Ipswich City Council for a brief time, but was dismissed for kicking a co-worker.

[50]He has a five year old daughter, and is reportedly in a stable long-term relationship.

[51]The respondent had a dysfunctional upbringing. He was the eldest of his mother’s five children, and the only child of the relationship between her and his biological father. He seems never to have known his biological father, and to have been exposed to domestic violence perpetrated against his mother by her partners. During his developmental years his primary caregiver was his grandmother.

[52]He has also been diagnosed with post traumatic stress disorder related to abuse and depression. He has a history of suicidal ideation and poor emotional coping.

[53]When he was aged about seven and living with his grandmother, he was forced to witness the rape of a nine year old girl who was being cared for by his grandmother as a foster child. He gave evidence against the offender, who was convicted and sentenced to a lengthy term of imprisonment.

[54]When he was about eight, he found the body of one of his mother’s boyfriends who had hanged himself.

[55]His first brush with the law occurred when he was 11 years old, when he broke into a dwelling with intent to commit an indictable offence, for which he received a caution. He did this again about a year later, with a similar consequence.”

Relevant findings

[7] The primary judge accepted the submissions of counsel for the appellant that “violence” meant more than mere unlawful touching.  She found, implicitly, that an offence involved “violence” if it “involved the unlawful and unwarranted application of physical force … was rough and injurious … [and warranted] the exercise of the powers in [the Act] to protect the members of the community”.  Her Honour found that each offence involved “violence” as so defined and was thus a serious sexual offence.

The statutory framework and relevant principles of construction

[8] Section 3 of the Act provides:

“3Objects of this Act

The objects of this Act are —

(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.”

[9] I do not apprehend that s 3 contemplates the existence of two separate classes of prisoner.

[10] A Division 3 order may be made only in respect of “a prisoner detained in custody who is serving a period of imprisonment for a serious sexual offence”.[5] 

[11] A “serious sexual offence” means:[6]

“… an offence of a sexual nature, whether committed in Queensland or outside Queensland—

(a)involving violence; or

(b)against children.”

[12] A preliminary hearing under s 8 of the Act may be held only if “the 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”.  Under s 13, a Division 3 order may be made only if “the court is satisfied the prisoner is a serious danger to the community in the absence of a division 3 order”.

[13] A prisoner is a serious danger to the community “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”.[7]  The Court may decide that it is satisfied as required by s 13(1) only if it is satisfied:[8]

“(a)by acceptable, cogent evidence; and

(b)to a high degree of probability;

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

[14] In deciding whether to make a continuing detention order or a supervision order “the paramount consideration is to be the need to ensure adequate protection of the community”.[9]

[15] Where potential adult victims are concerned, a person is taken to be a serious danger to the community if there is an unacceptable risk that the prisoner will commit an offence of a sexual nature involving violence.

[16] The meaning of “serious violent offence” was considered recently in Attorney-General for the State of Queensland v Phineasa.[10]  In my reasons, with which White JA and Philippides J agreed, I said:[11]

“[38]… 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] I do not propose to repeat the discussion in Phineasa which led to the above conclusions.  I will, however, refer to further authorities dealing with the approach to be taken in construing statutes which abrogate or curtail fundamental rights or freedoms.  In Lacey v Attorney-General (Qld),[12] it was said in the joint reasons of the majority:

“The effect of the common law on the interpretation of criminal statutes was stated by Deane J[13] in terms later quoted by the plurality in Byrnes v The Queen[14]:

‘As a matter of established principle, a general statutory provision should not ordinarily be construed as conferring or extending such a prosecution right of appeal against sentence unless a specific intention to that effect is manifested by very clear language.’

Indeed, as Deane J explained, the requirement of ‘clear language’ in this context did not depend critically upon the rule against double jeopardy, for even assuming that rule to be limited to the determination of guilt or innocence and not extending to the quantification of punishment[15] ‘that established principle of construction extends to require clear and unambiguous words before a statute will be construed as effecting, to the detriment of the subject, any fundamental alteration to the common law principles governing the administration of justice.’”

[18] It cannot be doubted that the operation of the Act has the potential to operate “to the detriment of” a prisoner and effects fundamental alterations to “the common law principles governing the administration of justice”.  In Project Blue Sky Inc vAustralian Broadcasting Authority,[16] McHugh, Gummow, Kirby and Hayne JJ identified, as a canon of statutory construction:

“… the presumption that, in the absence of unmistakable and unambiguous language, the legislature has not intended to interfere with basic rights, freedoms or immunities.”

[19] Here the intention of the legislature to interfere with basic rights and freedoms is manifest but the above principles also militate against giving the legislation an operation which impinges on prisoners’ rights and freedoms to any greater extent than the language of the Act requires.

[20] As discussed in Attorney-General for the State of Queensland v Phineasa,[17] the structure and language of the Act is inconsistent with its application, where minors are not concerned, to sexual offences which are not very serious in nature.  Plainly, as the primary judge found, “violence” means more than any unlawful or unwarranted application of force.  It is not to be supposed that, despite the language of the Act, which focuses on adequate protection against a serious danger to the community posed by an offender, the Act’s drastic interference with rights and freedoms was intended even in respect of relatively minor sexual offending against adults.

[21] Counsel for the respondent contended that the fact that the Act contemplated the making of supervision orders as well as continuing detention orders supports the conclusion that a narrow view of the scope of the Act’s application is unwarranted.  A supervision order may well be in the interests of a prisoner if, as some psychiatrists thought was the case with the appellant, it would assist in his rehabilitation.  However, as was pointed out in Phineasa, once the prisoner’s prior offending constitutes a “serious violent offence” he is exposed to the possibility that a continuing detention order or a supervision order may be made against him.  An order of the latter kind does not involve incarceration but may, and almost invariably will, severely restrict the prisoner’s rights and freedoms.  In addition to the terms of the order itself, subdivision 2 of Division 3B of the Act empowers Corrective Services officers to give a released prisoner directions concerning his place of residence, the wearing of a tracking device, drug and alcohol use and participation in treatment programmes.  By operation of s 8, a “prisoner” may be detained in custody after his release day pending the hearing and determination of an application for a Division 3 order.  A supervision order will also expose the prisoner to criminal sanctions, including the loss of liberty, in the event of a breach. 

Consideration

[22] Counsel for the respondent submitted that the July 2007 offence was clearly one “involving violence”.  That, according to the submission, was because the force involved was sufficient to cause “physical pain and emotional damage”.  I am unable to accept that submission.  The July 2007 offence involved the appellant grabbing the complainant’s breasts from behind, squeezing tightly and causing pain.  It may be inferred that the complainant, who was returning home from work, was wearing clothes suitable for the climate at that time of year.  The handling of the complainant was through her clothes and no attempt was made to displace them or to touch any unclad part of the body.  There was no evidence of the degree of pain experienced, nor was there reference to pain or physical injury in the complainant’s victim impact statement. 

[23] The attack on the complainant was brief in duration and concluded when the complainant, as she described it, “elbowed him off”.  It was not alleged that the appellant’s acts were the initial steps in a more serious sexual attack intended by the appellant.  The complainant reported experiencing feelings of “sickness, dread and hyper vigilance”.  She obtained psychiatric assistance which, after an unspecified period, caused the feelings to “decrease… to an acceptable level”.  There was no expert psychiatric evidence in respect of the complainant before the primary judge and it was not suggested that the complainant suffered from any lasting psychiatric condition.

[24] In arguing that the appellant’s offending involved violence, counsel for the respondent placed considerable emphasis on the “emotional damage” sustained by the complainant.  The harm caused, or likely to have been caused, to a complainant by the offending conduct will generally be relevant to an evaluation of the offending conduct in order to determine whether it constitutes “violence”.  For example, the extent to which, if at all, force applied to a complainant caused detectable physical injury may assist in determining the nature and degree of that force.  But, plainly, a person may be seriously injured by the acts of another which are unlikely to constitute “violence” for present purposes. 

[25] Although the appellant’s offending was of a nature likely to shock and distress the complainant, and did cause shock and distress, that harm was generally similar in degree to that which most victims of sexual offences could be expected to experience.  The offending conduct, in terms of the harm likely to be inflicted or actually done, was at the lower end of the spectrum of the sexual offending regularly dealt with in the District Court. 

[26] The appellant’s conduct, reprehensible though it undoubtedly was, falls short of that necessary to constitute a serious sexual offence.  The same observations have general application to the other two offences.

[27] Counsel for the respondent submitted that the other two sexual offences were less serious in nature than the July 2007 offence.  I accept that proposition in relation to the 25 March 2009 offence which involved the lifting of the complainant’s skirt and the squeezing of a buttock, presumably under the skirt.  The squeezing, which occurred in daylight hours, was brief in duration and was not said to have caused pain or even discomfort. 

[28] The conduct involved in 12 November 2009 offending, involving as it did an attempt to pull down the complainant’s underwear and the rubbing of a hand on the complainant’s clad genital region, seems to me to be more intrusive and offensive in nature than the conduct involved in the 2007 offending.  However, the November 2009 offending occurred in daylight in a well trafficked area and thus may have been less likely to engender fear and distress than the July 2007 offending.  Also less force seems to have been exerted by the appellant than in the July 2007 offending.  The complainant, in her victim impact statement, described having become very nervous and worried for her safety in locations such as car parks.  Her sleep was adversely affected and she changed her working schedule, presumably to avoid travelling out of daylight hours.  Nevertheless, for the reasons already given, it does not appear to me that the force applied by the appellant to the complainant and the other circumstances of the offending were of such a nature and degree as to constitute a “serious sexual offence”.

Conclusion

[29] It follows from the above conclusions that the appellant has established error on the part of the primary judge and that the necessary precondition for the making of a continuing detention order under s 8 of the Act was unfulfilled.  It is thus unnecessary to discuss whether, as the appellant contended, the primary judge erred in holding that the appellant was a serious danger to the community in the absence of an order under Division 3 of the Act.

[30] For the above reasons, I would order that:

1. the appeal be allowed;

2. the orders made on 11 May 2012 be set aside; and

3. the respondent’s application filed on 2 March 2012 be dismissed.

[31] GOTTERSON JA: I agree with the orders proposed by Muir JA and with the reasons given by his Honour. 

[32] ATKINSON J: I have had the advantage of reading the reasons of Muir JA.  I agree that, for those reasons, the orders proposed by his Honour should be made.