Attorney-General v Marama (No 2)
[2015] QSC 83
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- Attorney-General v Marama (No 2)[2015] QSC 83
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Attorney-General v Marama (No 2)[2015] QSC 83
Attorney-General v Marama (No 2)[2015] QSC 83
SUPREME COURT OF QUEENSLAND
PARTIES: | |
FILE NO: | |
Trial Division | |
PROCEEDING: | Application |
ORIGINATING COURT: | |
DELIVERED ON: | 21 January 2015 (ex tempore) |
DELIVERED AT: | Brisbane |
HEARING DATE: | 21 January 2015 |
JUDGE: | Applegarth J |
ORDERS: | There be a declaration in terms of paragraph 1 of the application filed 16 January 2015 |
CATCHWORDS: | CRIMINAL LAW – SENTENCE – SENTENCING ORDERS – ORDERS AND DECLARATIONS RELATING TO SERIOUS OR VIOLENT SEXUAL OFFENDERS OR DANGEROUS SEXUAL OFFENDERS – DANGEROUS SEXUAL OFFENDERS – GENERALLY – where the respondent has been subject to a supervision order under the Dangerous Prisoners (Sexual Offenders) Act 2003 (Qld) – where the respondent was alleged to have contravened supervision order – where contravention proceeding commenced under s 22 prior to expiry of supervision order – whether the Court has jurisdiction to hear and determine the contravention proceeding despite the expiry of the supervision order prior to final decision of the Court under s 22 Dangerous Prisoners (Sexual Offenders) Act 2003 (Qld), s 22 Attorney-General v Marama [2015] QSC 8 |
COUNSEL: | P J Davis QC with M Maloney for the applicant J P Benjamin for the respondent |
SOLICITORS: | Crown Law for the applicant Legal Aid Queensland for the respondent |
HIS HONOUR: In this matter, the Attorney-General applies for a declaration that where proceedings have been commenced under s 20 of the Dangerous Prisoners (Sexual Offenders) Act 2003 (Qld), for a breach of a supervision order, the Court remains empowered to make orders under s 22 of the Act, notwithstanding that the original order has expired after commencement of the breach proceedings. The application arises in the context of pending contravention proceedings that have been set down for hearing in April. The respondent is alleged to have contravened a supervision order, first made in 2009, and the circumstances of his alleged contravention are detailed in my recent decision, Attorney-General for the State of Queensland v Marama [2015] QSC 8.
At the hearing of an application under s 21(4) of the Act on 14 January 2015, some of the arguments which have been raised today were raised before me, and I felt it necessary to deal with them in my decision. The parties agree that it is appropriate to make a declaration, or to decline to make the declaration sought today, so as to clarify the position and to enable, if so advised, the respondent to appeal the order making that declaration. Because there are 21 matters on the Applications List today, I will not delay to repeat the reasons that I gave on the previous application as to why the Court retains jurisdiction to hear and determine a contravention proceeding, notwithstanding that the original order has expired, after commencement of the breach proceedings. I also will not take the time, given the demands on the list today, to rehearse the written submissions of each of the parties. I generally accept the written submissions made on behalf of the applicant.
The respondent’s argument seems to me to depend upon a reading of s 22, on the basis that the words “the existing order” mean a supervision order, which continues to operate at the time of the final decision. It seems to me that that interpretation cannot be sustained, because s 22(1) adopts a special definition of “the existing order”. The Court may make orders under s 22 if s 22 is engaged. Section 22 will be engaged, if, for example, the respondent contravened a requirement of a supervision order that existed at the date of the alleged contravention, but which expires some time afterwards, and before the final decision of the Court under s 22.
Section 22, itself, defines the existing order in terms which can apply to an order which existed at the time of the contravention, but expired by the time of the final hearing. Any other interpretation would have apparently inconvenient consequences. It would, for example, deprive the Court of jurisdiction to hear and determine a contravention proceeding where either a very serious contravention, or a trivial contravention, occurred in the last few days of a supervision order. Given the way in which existing order is defined in s 22(1), the context in which that section appears, and the Act’s purposes, I consider that the applicant is correct in submitting that where proceedings have been commenced under s 20, the Court remains empowered to make orders under s 22, notwithstanding that the original supervision order has expired after commencement of the breach proceedings.
Such an interpretation seems consistent with the objective of the Act, and clear words would be required to displace the jurisdiction of the Court. It should not, for example, be assumed that the Court’s jurisdiction is displaced where a contravention, perhaps even a relatively trivial one, justified the Court, at the final hearing, extending the term of the supervision order. To deprive the Court of that jurisdiction would deprive it of the power to extend a supervision order, even one which had earlier expired, so as to provide for the adequate protection of the community and to enhance the individual’s rehabilitation, or care, or treatment.
For the reasons which I gave in my previous decision; for the reasons that were developed during the course of argument this morning; for the reasons that appear in the applicant’s outline; and for these reasons I have just expressed, I intend to make a declaration in terms of paragraph 1 of the application filed 16 January 2015. I will make an order in terms of a draft order reflecting that.