This judgment concerns the application of the Dangerous Prisoners (Sexual Offenders) Act 2003 to respondents with pending appeals against conviction and the imminent expiry of terms of imprisonment.
22 November 2019
The Attorney-General commenced proceedings under the Dangerous Prisoners (Sexual Offenders) Act 2003 (“DPSOA”) in circumstances where the respondent had been sentenced to a lengthy term of imprisonment and subsequently convicted of further offences the terms of imprisonment for which were ordered to be served cumulatively. The convictions for the subsequent offences were the subject of an appeal which was yet to be heard and determined. –.
Relevantly, the respondent’s original term of imprisonment was due to expire at a time expected to be prior to the final hearing of the DPSOA application but potentially after the determination of the appeal against conviction. Davis J was concerned with two questions: whether the respondent could, if the appeal were allowed, be lawfully held in custody; and similarly, whether the Court would retain jurisdiction to make orders against the respondent under the DPSOA if that occurred. .
The tension arose because of the definition of ‘prisoner’ within the DPSOA and the requirement that a DPSOA application be made within six months of the expiry of the respondent’s term of imprisonment. –. If, for instance, the preliminary hearing under the DPSOA was not completed by the time of a successful appeal then the respondent would not be considered a prisoner for the purposes of that Act. Otherwise, if the preliminary hearing was completed by the time of a successful appeal then the respondent would still be a prisoner for the purposes of the DPSOA. A final hypothetical situation was one where, assuming the dismissal of the appeal, the full time expiry of the respondent’s sentence would be years in the future which would preclude the Court’s assessment of risk at or near the expiry of the term of imprisonment. .
His Honour noted the difficulty in assessing when the respondent’s period of imprisonment was to end for the purposes of the preliminary hearing and consequent procedural orders. . Ultimately, however, Davis J considered that, while possible, it would not be appropriate to adjourn the preliminary hearing (–) and any application for interim detention would be consequent upon the findings from it. . Further, his Honour foreshadowed that to overcome jurisdictional complications relevant to a final hearing a further adjournment may be entertained if the appeal had not been heard and determined by the date of the final DPSOA hearing. .
J Feely of Counsel