This judgment considers an application for Div 3 orders under s 13 of the Dangerous Prisoners (Sexual Offenders) Act 2003 (DP(SO)A). The issue for consideration was whether, in fixing the period of a supervision order, the court can take into account the jurisdiction to extend an order following breach or non-performance. His Honour concluded that, although the court cannot consider “whether or not the prisoner may become the subject of an application for a further supervision order or a supervision order” in the future, the statutory scheme allowing for such an extension is not an irrelevant consideration.
1 March 2019
The Respondent was serving a sentence of 10 years’ imprisonment imposed for one count of rape. The complainant was his six-year-old stepdaughter. . He had no other history of sexual offending. . The Respondent’s full-time release date was to be 3 March 2019. . The Attorney-General applied for Div 3 orders under s 13 of the DP(SO)A. .
The psychiatric evidence varied from an opinion that “the risk of further offending is in the moderate or below range” to a view that the respondent posed “a moderately high risk of sexual reoffending” which would be significantly lowered by a supervision order. The three psychiatrists who gave evidence recommended various supervision periods of between 5 and 10 years. –.
The respondent conceded that he posed an unacceptable risk of committing a serious sexual offence if released from custody without a supervision order being made. . The Attorney-General accepted that a supervision order would adequately protect the community. . The real issue for determination was the length of the order imposed. .
The reasons consider the psychiatric evidence and prefer the opinion expressed by the two psychiatrists who had the opportunity of interviewing the respondent after he made admissions about the offending and completed the Sexual Offending Program for Indigenous Males (SOPIM). –. His Honour concluded that if the respondent could successfully complete a period of five years under supervision then he would, from that point, pose a low risk of reoffending by the commission of a serious sexual offence. .
The question was to what extent the Court can take into account the power to extend a supervision order under s 19B or, if there is breach of the order, under s 22. . The reasons consider the proper construction of s 13A of the DP(SO)A. –. His Honour concluded that fixing a period of supervision under s 13A must involve an assessment of the prisoner’s current state but predicting when he will be an acceptable risk in the community without a supervision order. . The Court cannot consider “whether or not the prisoner may become the subject of an application for a further supervision order or a supervision order” in the future. However, it does not follow that the consideration of the statutory scheme is irrelevant. , .
Having accepted the evidence that, if the respondent satisfactorily completes supervision for a period of five years, he will thereafter not pose an unacceptable risk, his Honour noted if he does breach the supervision order or does not perform, the jurisdiction to extend the order under ss 19B or 22 will be enlivened. A completely different determination would be made by the Court at that time. .
His Honour was satisfied that a supervision order for a period of five years would provide adequate protection of the community and so ordered. .
K Gover of Counsel