Attorney-General for the State of Queensland v Kennedy
[2024] QSC 271
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- Attorney-General for the State of Queensland v Kennedy[2024] QSC 271
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Attorney-General for the State of Queensland v Kennedy[2024] QSC 271
Attorney-General for the State of Queensland v Kennedy[2024] QSC 271
SUPREME COURT OF QUEENSLAND
CITATION: | Attorney-General for the State of Queensland v Kennedy [2024] QSC 271 |
PARTIES: | ATTORNEY-GENERAL FOR THE STATE OF QUEENSLAND (applicant) v NEAL ALFRED KENNEDY (respondent) |
FILE NO: | 8565 of 2022 |
DIVISION: | Trial Division |
PROCEEDING: | Application |
ORIGINATING COURT: | Supreme Court of Queensland at Brisbane |
DELIVERED ON: | 7 November 2024 |
DELIVERED AT: | Brisbane |
HEARING DATE: | 4 November 2024 |
JUDGE: | Davis J |
ORDER: | THE COURT, being satisfied to the requisite standard that the respondent, Neal Alfred Kennedy, is a serious danger to the community in the absence of an order pursuant to Division 3 of the Dangerous Prisoners (Sexual Offenders) Act 2003 (the Act) ORDERS THAT:
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CATCHWORDS: | CRIMINAL LAW – SENTENCE – SENTENCING ORDERS – ORDERS AND DECLARATIONS RELATING TO SERIOUS OR VIOLENT OFFENDERS OR DANGEROUS SEXUAL OFFENDERS – DANGEROUS SEXUAL OFFENDER – GENERALLY – where the respondent has been detained on a continuing detention order under the Dangerous Prisoners (Sexual Offenders) Act 2003 (DPSOA) – where the Attorney-General applied for a review of the continuing detention order – where the taking of antilibidinal medication was recommended – where the respondent is of borderline intelligence – where the respondent requires significant support to live independently – where The Precinct is not appropriate – where antilibidinal medication treatment has only just commenced – whether the respondent is a serious danger to the community in the absence of an order pursuant to Division 3 of the DSPOA – whether the adequate protection of the community can be ensured by the release of the respondent on a supervision order. Dangerous Prisoners (Sexual Offenders) Act 2003 (Qld), s 3, s 13, s 27, s 30 Attorney-General for the State of Queensland v DBJ [2017] QSC 302, cited Attorney-General for the State of Queensland v Fardon [2019] QSC 2, cited Attorney-General for the State of Queensland v Fisher [2018] QSC 74, cited Attorney-General for the State of Queensland v Francis [2007] 1 Qd R 396, cited Attorney-General for the State of Queensland v Guy [2018] QSC 179, cited Attorney-General for the State of Queensland v Jackway [2017] QSC 67, cited Attorney-General for the State of Queensland v Sutherland [2006] QSC 268, cited Attorney-General (Qld) v Lawrence [2010] 1 Qd R 505; [2009] QCA 136, cited Attorney General for the State of Queensland v Travers [2018] QSC 73, cited Fardon v Attorney-General (Qld) (2004) 223 CLR 575; [2004] HCA 46, cited Kynuna v Attorney-General (Qld) [2016] QCA 172, cited |
COUNSEL: | J B Rolls for the applicant E J Cooper for the respondent |
SOLICITORS: | C E Christensen, Crown Solicitor for the applicant Legal Aid Queensland for the respondent |
- [1]The respondent, Neal Alfred Kennedy, is the subject of a continuing detention order made pursuant to the provisions of the Dangerous Prisoners (Sexual Offenders) Act 2003 (DPSOA).
- [2]An application was brought by the Attorney-General pursuant to s 27 of the DPSOA to review the continuing detention order to which the respondent is subject.
- [3]On 4 November 2024, I made the following orders:
“THE COURT, being satisfied to the requisite standard that the respondent, Neal Alfred Kennedy, is a serious danger to the community in the absence of an order pursuant to Division 3 of the Dangerous Prisoners (Sexual Offenders) Act 2003 (the Act), ORDERS THAT:
- Pursuant to s. 30(1) of the Act, the decision made on 16 December 2022, that the respondent is a serious danger to the community in the absence of an order pursuant to Division 3 of the Act be affirmed.
- Pursuant to s. 30(3)(a) of the Act, the respondent continue to be subject to the continuing detention order made on 16 December 2022.”
- [4]These are my reasons for making those orders.
Background
- [5]The respondent was born on 2 October 1957 and is presently 67 years of age. He is of borderline intelligence.
- [6]The respondent has a long history of sexual offending. His relevant criminal history commenced on 4 November 1976, where in the District Court at Sydney, he was convicted of assault with intent to commit buggery. Further convictions followed:
- 16 December 1993: two counts of commit an act of indecency on a person under the age of 16;[1]
- 5 April 2000: two counts of indecent treatment of a child under 16;
- 17 June 2002: attempt to procure a youth or intellectually impaired person for carnal knowledge;
- 17 June 2003: attempted indecent treatment of a child under 12; and
- 19 May 2005: rape, indecent treatment of a child under 16, attempt to procure youth for carnal knowledge.
- [7]The conviction on 19 May 2005 attracted a sentence of 10 years’ imprisonment. Thereafter, there were convictions for offences of violence committed by the respondent whilst in prison. The offending which was dealt with on 19 May 2005 occurred in March 2004. It has been therefore over 20 years since the respondent has committed a serious sexual offence.
- [8]On 20 July 2022, the Attorney-General filed an application under the DPSOA against the respondent.
- [9]On 16 December 2022, Hindman J made a finding under s 13(1) that the respondent is a serious danger to the community in the absence of a Division 3 order. Her Honour then made a continuing detention order.[2]
- [10]On 11 December 2023, the Attorney-General filed an application pursuant to s 27 of the DPSOA to review the continuing detention order.
The statutory structure
- [11]Section 13 of the DPSOA is pivotal to the scheme of the DPSOA. It provides for the making of either a supervision order or a continuing detention order if “the Court is satisfied the prisoner is a serious danger to the community in the absence of [such an] order”.[3]
- [12]By s 13(2):
“(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––
- if the prisoner is released from custody, or
- if the prisoner is released from custody without a supervision order being made.”
- [13]The term “serious sexual offence” is defined as:
“Serious sexual offence means an offence of a sexual nature, whether committed in Queensland or outside Queensland––
- involving violence; or
- against a child; or
- against a person, including a fictitious person represented to the prisoner as a real person, whom the prisoner believed to be a child under the age of 16 years.”
- [14]
- [15]The question of “unacceptable risk” requires an exercise of judgment.[6] An acceptable risk does not equate to “some absolute guarantee of protection”.[7] If a supervision order will ensure the adequate protection of the community, then a supervision order ought to be preferred over the making of a continuing detention order.[8]
- [16]If a continuing detention order is made, as is the case here, it must be reviewed pursuant to Part 3 of the Act. Section 30 provides:
“30 Review hearing
(1) This section applies if, on the hearing of a review under section 27 or 28 and having regard to the required matters, the court affirms a decision that the prisoner is a serious danger to the community in the absence of a division 3 order.
(2) On the hearing of the review, the court may affirm the decision only if it is satisfied—
- by acceptable, cogent evidence; and
- to a high degree of probability;
that the evidence is of sufficient weight to affirm the decision.
(3) If the court affirms the decision, the court may order that the prisoner—
- continue to be subject to the continuing detention order; or
- be released from custody subject to a supervision order.
(4) In deciding whether to make an order under subsection (3)(a) or (b)—
- the paramount consideration is to be the need to ensure adequate protection of the community; and
- the court must consider whether—
- adequate protection of the community can be reasonably and practicably managed by a supervision order; and
- requirements under section 16 can be reasonably and practicably managed by corrective services officers.
(5) If the court does not make the order under subsection (3)(a), the court must rescind the continuing detention order.
(6) In this section—
required matters means all of the following—
(a) the matters mentioned in section 13(4);
- any report produced under section 28A.”
- [17]It is well established that s 30 effectively mirrors s 13 both in form and in policy. The notion of “serious danger to the community” in s 30(1) is the same as that referred to in s 13(1) and defined in s 13(2).[9]
- [18]
“[10] Section 30 operates in this way:
- Firstly, the Court must consider whether the respondent is ‘a serious danger to the community in the absence of a Division 3 order’;
- If the answer to that question is in the affirmative, then consideration must be given to whether ‘adequate protection of the community’ can be ensured by release of the respondent on a supervision order;
- If the answer to that question is in the negative, then generally (subject to any discretion to make no order) a continuing detention order should be made.”
- [19]Justice Hindman identified a number of factors that her Honour concluded rendered the risk of release on a supervision order unacceptable. They were:
- a need for ongoing regular psychological counselling where the respondent’s deviant sexual interests are addressed;
- a robust risk management plan needs to be formulated and adopted;
- consideration given to the potential use of antilibidinal medication;
- the identification of appropriate accommodation, it being the case that the expert opinion is that The Precinct is unsuitable; and
- the organisation of proper NDIS support.
- [20]Her Honour’s concluding remarks were as follows:
“Mr Kennedy needs to develop some more proactive protective features against further offending in himself that combined with the restrictive features of a supervision order may in the future be sufficient to justify release on supervision. That will at least require the respondent to undergo individual therapy with the aim of equipping the respondent with strategies to assist him to resist the temptation to further offend, to obtain a better understanding of his triggers for offending and how to avoid such triggers, to commence and be responding well to anti-libidinal medication, if that is medically appropriate, to demonstrate a willingness to comply with the strictures of prison environment and not to have further issues whilst in custody, particularly those that demonstrate a loss of self-control in a violent manner, and to address the matters that I mentioned had been recommended by Dr Arthur, namely, that he engage in therapy with a forensic psychologist to address his deviant sexual interest, to formulate a more robust risk management plan, that he undergo a formal assessment of his adaptive living skills to assist Community Corrections in determining the most suitable accommodation options and what level of community support he will need, and him showing a significant and sustained improvement in his levels of insight in regard to the drivers for his sexual offending and motivation to address his risk factors.
No supervision order I could impose at the current time would reduce the risk of the respondent committing a serious sexual offence to a level that I consider is acceptable. Continuing detention is currently required to ensure the adequate protection of the community.”
- [21]Progress has been made since the making of the continuing detention order. The respondent has engaged with a forensic psychologist, Ms Donna Ward, after having initially engaged with another psychologist, Mr Nicholas Smith. The respondent is beginning to show insight with respect to the drivers of his sexual offending but progress is limited by his intellectual impairment.
- [22]It has not been possible to find suitable accommodation.
- [23]The respondent has recently commenced antilibidinal medication. The psychiatric evidence is that a further three month period is required to assess the respondent’s ability to tolerate the medication and then reassess his level of risk.
- [24]It was conceded by Ms Cooper of counsel who appeared for the respondent that:
- the respondent is a serious danger to the community in the absence of a Division 3 order; and
- at this point adequate protection of the community cannot reasonably and practicably be managed by a supervision order.
- [25]In my view, those concessions were properly made. Although it has been many years since the respondent has committed a serious sexual offence, the risk remains and that risk is unacceptable until the issues identified by Hindman J are properly addressed. At this point they have not been.
- [26]For those reasons I made the finding that the respondent is a serious danger to the community in the absence of an order pursuant to Division 3 and ordered that the respondent continue to be subject to the continuing detention order made on 16 December 2022.
Footnotes
[1] A conviction in New South Wales.
[2] Dangerous Prisoners (Sexual Offenders) Act 2003, s 13(5)(a).
[3] Dangerous Prisoners (Sexual Offenders) Act 2003, s 13(1).
[4] Dangerous Prisoners (Sexual Offenders) Act 2003, s 3(a).
[5] Attorney General for the State of Queensland v Travers [2018] QSC 73 at [30], followed in Attorney-General for the State of Queensland v Fisher [2018] QSC 74 at [19] and Attorney-General for the State of Queensland v Fardon [2019] QSC 2 at [4].
[6] Fardon v Attorney-General (Qld) (2004) 223 CLR 575 at [22]-[60], [225]; and Attorney-General for the State of Queensland v Jackway [2017] QSC 67 at [17]; and Attorney-General for the State of Queensland v DBJ [2017] QSC 302 at [12].
[7] Attorney-General for the State of Queensland v Jackway [2017] QSC 67 at [22]; Attorney-General v Lawrence (Qld) [2010] 1 Qd R 505 at [33]-[34]; and Attorney-General for the State of Queensland v Sutherland [2006] QSC 268 at [29].
[8] Attorney-General for the State of Queensland v Francis [2007] 1 Qd R 396.
[9] Kynuna v Attorney-General (Qld) [2016] QCA 172 at [60].
[10] [2018] QSC 179.