Attorney-General for the State of Queensland v Sands

The interesting aspect of this judgment turned on his Honour’s consideration of the whether a new order should be made under s 22 of the Dangerous Prisoners (Sexual Offenders) Act 2003 in circumstances where there was evidence that the respondent was likely to contravene the order but, measures had been implemented to reduce the risk that the respondent would commit a serious sexual offence. In this case, no new order was required as there was evidence that the respondent could be appropriately managed at the Secure Mental Health Rehabilitation Unit at the Townsville Hospital.

Davis J

14 February 2020

The Attorney-General sought orders under s 22 of the Dangerous Prisoners (Sexual Offenders) Act 2003 and alleged that the respondent was likely to breach a supervision order. The respondent was first subject to supervision orders in 2011 and had a lengthy history of contravening orders and complications in respect of his management by Mental Health Queensland and Corrective Services. [4]–[12].

The respondent had been residing at the Secure Mental Health Rehabilitation Unit (“SMHRU”) at the Townsville Hospital and his behaviour toward staff had led to a warrant being issued as it was considered he was likely to contravene the supervision order by committing a sexual offence. This led to his removal from that facility and return to prison. [13]. Psychiatric evidence before the Court suggested the respondent could be appropriately managed if he was returned to that facility and a notification had been received that a place was to become available. [15]–[21].

Davis J heard the application and ultimately ordered that the respondent be released from custody and to the SMHRU as well as that he continue to be subject to the previous supervision order. His Honour followed a line of authority which found that the relevant question was whether, at the time of the hearing, the released prisoner was likely to contravene the supervision order. [34].

His Honour found that “where a released prisoner is, at the time of the issue of the warrant under s 20 of the Act ‘likely to contravene’ the supervision order, but is not ‘likely to contravene’ the supervision order by the time the court comes to make orders under s 22, no order can be made under that section unless the prisoner has since contravened the supervision order.” [35]. A further scenario was one where a prisoner was found to be “likely to contravene” the supervision order at the time of the hearing but would not be likely to contravene an amended order where the relevant risks were reduced. [39].

The Attorney-General did not seek an amended supervision order in this case. While Davis J did find that the respondent was likely to contravene the supervision order at the time of the hearing, his Honour opined that the central issue is not whether the supervision order will be contravened but whether there is a risk of the commission of a serious sexual offence. [40]. His Honour found that the availability of the SHMRU placement provided adequate protection of the public such that the respondent was released to the unamended previous supervision order. [42].

J Feely of Counsel