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[2020] QSC 187
This recent decision is of some importance in that it clarifies the meaning of “exceptional circumstances” justifying interim release for the purposes of s 21 Dangerous Prisoners (Sexual Offenders) Act 2003. The respondent applied to be released from custody under ss 21(2)(b), 21(4) and 21(6) of the Act pending the hearing of an application under s 22 for contravention of a supervision order.
Davis J
22 June 2020
Relevantly, the respondent had been the subject of orders under the Dangerous Prisoners (Sexual Offenders) Act 2003 since 20 February 2017, when he was placed on a supervision order. [1]. He allegedly contravened that order by consuming illicit substances, contrary to a condition of the order which required that he abstain from the consumption of alcohol and illicit drugs for its duration. [10].
The legislation
Section 21 applies to custody of released prisoners in the interim period between their arrest and determination of the contravention proceedings. Section 22 of the Act specifies that unless the released prisoner satisfies the court, on the balance of probabilities, that the adequate protection of the community can, despite the contravention or likely contravention of the existing order, be ensured by the existing order as amended, the court may make a further order.
Whether to order release of the respondent on a supervision order
The question for his Honour was whether the respondent had satisfied the court that the adequate protection of the community could, despite the contravention of the existing order, be ensured by a supervision order made under s 21(4) of the Act and whether “exceptional circumstances” existed. In order to undertake that exercise his Honour had regard to reports provided by two “very experienced” treating psychiatrists. [13]. It was apparent that both agreed that:
1. the respondent’s risk on the existing supervision order was low to moderate and manageable;
2. the continuing detention of the respondent was not justified; and
3. the release of the respondent back into the community on the supervision order was the most appropriate outcome. [21]–[25].
In the circumstances, his Honour’s view was that “it [was] difficult to see any justification for rejecting the evidence of the psychiatrists”, and he noted that that position was “appreciated by the applicant”. [25]. It was imperative however, in order for the respondent to secure interim release, that he also demonstrate “exceptional circumstances”. The generally accepted meaning of that term in relation to the scope of the power under ss 21(2)(b) and 21(4) of the Act is that it “form[s] an exception, which is out of the ordinary course, or unusual, or special, or uncommon. To be exceptional a circumstance need not be unique, or unprecedented, or very rare; but it cannot be one that is regularly, or routinely, or normally encountered”: see R v Kelly [2000] QB 198. [27].
In approaching the issue his Honour cited Attorney-General v Francis [2008] QSC 69, [4] wherein it was stressed that the focus in exercising the discretion is the management of risk of reoffending pending the hearing, to ensure the adequate protection of the community. He also adopted the guidance of Harvey v Attorney-General [2011] QCA 256 and Attorney-General v Friend [2011] QCA 357 specifically in relation to “exceptional circumstances”. [29]–[30].
His Honour provided this valuable clarification:
“‘‘Exceptional circumstances’ justifying interim release will usually be demonstrated where the court can be satisfied that the adequate protection of the community can be ensured by the release of the prisoner notwithstanding that the issues relevant to the contravention have not been fully ventilated at a final hearing. That is, of course, not an exhaustive statement of the circumstances where ‘exceptional circumstances’ will exist.” [32].
In his view, the following matters amounted to exceptional circumstances enlivening his discretion to release the respondent on supervision pending final hearing of the contravention proceedings:
(a) The contravention of the supervision order did not involve the commission of a sexual offence, and nor had prior contraventions.
(b) The application was made when all evidence to be relied upon at the final contravention hearing had already been prepared and filed.
(c) Two highly regarded forensic psychiatrists had prepared risk assessments concerning the respondent and neither opined that his continuing detention was warranted.
(d) Both assessed his risk on supervision as low-moderate and manageable.
(e) The applicant conceded that at the final hearing the respondent should be released back into the community on the supervision order. [33].
A de Jersey