This decision considers an application by the respondent prisoner to adjourn an application for an order under s 8 of the Dangerous Prisoners (Sexual Offenders) Act 2003 (DPSOA), pending the determination of his application for parole. The reasons consider the construction of the relevant legislation and determine that adjourning the s 8 application for no purpose other than to enable a parole application would frustrate the legislative scheme. The adjournment was refused.
6 July 2018
On 5 March 2007, the respondent was sentenced to 13 years’ imprisonment for an offence of rape, which was declared to be a serious violent offence. . He was eligible for parole and brought an application which was to be heard by the Parole Board on 20 July 2018. . The applicant Attorney-General applied for orders under ss 8 and 13 of the DPSOA. .
The respondent conceded that for the purposes of a preliminary hearing, the medical evidence demonstrated “reasonable grounds for believing the prisoner is a serious danger to the community in the absence of a Division 3 order”, being a supervision order. Nonetheless, the respondent sought an adjournment to allow the Parole Board to determine his application. By s 51 of the DPSOA, once an order is made under s 8, a prisoner becomes ineligible for parole. .
The applicant opposed the adjournment, submitting that if the respondent was released on parole the court would lose jurisdiction to make any orders under the DPSOA. Such orders, it was said, can only be made against prisoners in actual custody. .
The court considered the proper construction of s 5 of the DPSOA and determined that there is no power for the Attorney-General to file an application against a prisoner who has been granted parole. . However, if the prisoner is released on paroleafter the filing of the application, the court retains jurisdiction to make both s 8 and s 13 orders. .
His Honour noted that the powers of the Parole Board are not suspended until a s 8 order has been made. . The reasons consider the ministerial guidelines that aid the Parole Board in reaching decisions. –. Those guidelines do not expressly deal with the situation of a prisoner becoming the subject of an unresolved DPSOA application before the hearing and determination of the parole application. Nonetheless, his Honour considered it a powerful discretionary consideration against the grant of parole. .
The reasons note that, in the ordinary course theDPSOA application would proceed and if an order was made under s 8 the respondent would remain in custody pending determination of that application. In that sense, the DPSOA application is intended to take priority over the processes of the Parole Board. His Honour considered that adjourning the s 8 application for no real reason other than to enable the parole application to proceed would simply frustrate the scheme established under the DPSOA and the Corrective Services Act 2006. . The adjournment was refused and orders were made for the final hearing of the application. .
K Gover of Counsel