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Attorney-General for the State of Queensland v Gizu

 
Unreported Citation: [2020] QSC 178
EDITOR'S NOTE

The question in this matter was whether the respondent was serving “two ‘unbroken’ ‘terms of imprisonment’, one of which being a term of imprisonment for a “serious sexual offence” such that he was a “prisoner” within s 5 Dangerous Prisoners (Sexual Offenders) Act 2003. The respondent was initially sentenced to a period of detention under the Youth Justice Act 1992 for “serious sexual offences”. When he turned 18 years old, the respondent was transferred from youth detention to a correctional facility, liable to serve two “terms of imprisonment”: one for the serious sexual offences and one for further offences committed while in detention. The term of imprisonment for the sexual offences had expired before this matter came before the court. Notwithstanding, Davis J concluded that the two terms of imprisonment together formed a period of imprisonment within s 5 DPSOA and therefore the respondent was a “prisoner” as defined in s 5(6) DPSOA.

Davis J

16 June 2020

Introduction

The Attorney-General for the State of Queensland, the applicant, made an application to the court pursuant to 5 Dangerous Prisoners (Sexual Offenders) Act 2003 (the DPSOA) for orders for a preliminary hearing, the appointment of psychiatrists as well as final orders (DPSOA, ss 8 and 13). [1] The respondent opposed the application on the basis that he was not a “prisoner” for the purposes of s 5 of the DPSOA, and therefore the court did not possess jurisdiction to make the orders. [2].

Background

In 2016, the respondent was sentenced under the provision of the Youth Justice Act 1992 (the YJA) for rape, as well as a number of other offences (the 2016 offences). The respondent received a sentence of four years’ detention and he was to be released after serving 65 per cent of the detention period. [5]. Rape is a “serious sexual offence” under the DPSOA. [31].

Whilst in detention, in 2017, the respondent re-offended. He was sentenced for rioting and other related offences, as well as for the sexual assault of a youth worker at the detention centre (the 2017 offences). He was ordered to serve the sentences concurrently. [9].  

The respondent turned 18 years old while in detention. As a result, pursuant to s 276F of the YJA, the respondent was transferred to adult prison. [10]. Child offenders are sentenced to periods of detention whereas adults are sentence to periods of imprisonment. [44]. As a consequence of transferring to a correctional facility, the respondent was now required to serve the remainder of his sentence as a “term of imprisonment” (YJA, s 276E(2)(a)). Further, the respondent became a “prisoner subject to the Corrective Services Act 2006” (YJA, s 276E(2)(b)). [47].

In December 2018, the respondent was released on parole but he breached his parole almost immediately and was returned to custody three days later. His parole was cancelled in September 2019. [11]. Psychological reports identified the respondent as posing a high risk for future sexual offences. [12], [14].

It was accepted by both parties that the respondent’s sentence for rape was a sentence for a “serious sexual offence” and that it had expired on 1 November 2019. Both parties also agreed that the sexual assault committed in 2017 was not a “serious sexual offence”. [16].

Was the respondent a “prisoner” within s 5 of the DPSOA?

Orders under s 5 of the DPSOA may only be made against a person if that person is a “prisoner” and the court is satisfied that “there are reasonable grounds for believing the prisoner is a serious danger to the community in the absence of [an order under the DPSOA]” (DPSOA, s 8(1)). [18].

For the purposes of s 5, “prisoner” is defined in s 5(6). Subsection 5(6)(a) provides as follows, “prisoner”:

“means a prisoner detained in custody who is serving a period of imprisonment for a serious sexual offence, or is serving a period of imprisonment that includes a term of imprisonment for a serious sexual offence, whether the person was sentenced to the term or period of imprisonment before or after the commencement of this section.”

Subsections (b)–(d) provide a non-exhaustive list of people who fall within the definition in s 5(6)(a). For all purposes other than s 5, “prisoner” is defined by reference to the Corrective Services Act 2006. [40].  

The respondent contended that as the sentence for the rape, the “serious sexual offence”, had expired at the time of the Attorney-General’s application, the respondent was not a “prisoner” for the purpose of s 5. [48]. The question for the Court was: “whether there are two ‘unbroken’, ‘terms of imprisonment’, one of which was a term of imprisonment for a serious sexual offence”? [63].

The Court made reference to the decision in Attorney-General v Kanaveilomani [2015] 2 Qd R 509, which while not definitive was of “great assistance”. [52]. In that case, the prisoner had been sentenced to a term of imprisonment for serious sexual offences. After his release on parole, he committed offences that were not “serious sexual offences”. The prisoner was sentenced to a period of imprisonment of 13 years for these offences, to be served cumulatively on the original sentence. The prisoner’s sentence for the serious sexual offences expired before the Attorney-General’s application for orders under the DPSOA was heard. [53]. The Court of Appeal held that the two unbroken terms of imprisonment were a “period of imprisonment” and therefore the application for orders under s 5 of the DPSOA had been made too early. The application needed to be made within six months of the end of the 13 year term being the end of the “period of imprisonment” which included a “term of imprisonment” for a “serious sexual offence”. [54].

Here, Davis J held that by virtue of 276E(2)(a) of the YJA, once the respondent was transferred from the detention centre to the correctional facility, he became liable to serve two terms of imprisonment: one for the 2016 and one for the 2017 offences and together these “formed a ‘period of imprisonment’ which ‘include[d] a term of imprisonment for a serious sexual offence’ ”. The respondent was therefore a “prisoner” for the purposes of s 5. [64].

A Hughes of Counsel