The question in this case was whether it was appropriate for the Attorney-General to bring an application to extend a supervision order upon proof of a contravention of that order under s 22 Dangerous Prisoners (Sexual Offenders) Act 2003 at the same time as an application under Div 4A for a further supervision order. In circumstances where the existing supervision order was due to expire four days after the hearing, his Honour ultimately decided that the correct course in this case was to proceed only with the Div 4A application. The s 22 application was dismissed, and Davis J ultimately ordered the respondent be subject to a further supervision order, under Div 4A, for a period of two years.
15 July 2020
The respondent has been subject to a supervision order under the Dangerous Prisoners (Sexual Offenders) Act 2003 (the DPSOA) since 2011. The respondent has an extensive criminal history, including offences of indecent assault and rape. .
The initial supervision order was made in April 2011 for a period of five years. The respondent had contravened the supervision order a number of times. . The order had been extended on a number of occasions and was due to expire on 19 June 2020, four days after the hearing before Davis J. .
The Attorney-General made two applications against the respondent. The first was an application under s 22 DPSOA for extension of the existing supervision order upon proof of contravention by the respondent of that existing supervision order. Alternatively, the Attorney-General sought a further supervision order under Div 4A. , . The Attorney-General otherwise did not seek a rescission of the supervision order, or an order for continuing detention. .
The respondent opposed the making of any further order. . The respondent submitted that, in circumstances where no serious sexual offence had occurred since 2000, no supervision order was required to protect the community. .
Due to the fact that the Attorney-General had filed two applications against the respondent, Davis J provided guidance on the interaction between s 22 and Div 4A of the DPSOA.
The onus under Div 4A of establishing, to a high degree of probability, that a respondent is a serious danger to the community in the absence of an order falls upon the Attorney-General. . Once the Attorney-General establishes a breach of a supervision order, the onus then falls on the respondent to demonstrate that the “adequate protection of the community can ... be ensured by a supervision order”. .
In respect of s 22, Davis J confirmed the language is mandatory. As soon as a breach of the supervision order is established, the Court must rescind the supervision order and make an order for continuing detention unless the respondent can satisfy the onus under s 22(7). If that onus can be satisfied, “the only avenue available” is then release back to the original, or amended, supervision order. . Consequently, a respondent must discharge the onus under s 22(7) to avoid a continuing detention order. .
Therefore, in this case, the question arose as to who bore the onus. That is, whether the Attorney-General had to prove the respondent is a serious danger to the community in the absence of a further supervision order to achieve an extension under Div 4A or, whether, the respondent had to discharge the onus under s 22(7). .
Ultimately in this case, Davis J noted that the distinction between Div 4A and s 22 was “somewhat artificial”. . This was due to the fact that the supervision order had run its course, there had been no serious sexual offences committed, and the order was due expire four days after the hearing before Davis J.
Therefore, in the course of the hearing, Davis J indicated that his Honour thought the application under Div 4A, and not s 22, should be pressed. Counsel for the Attorney-General agreed and the application under s 22 was dismissed accordingly. .
Proceeding with the remaining Div 4A application, Davis J set out the relevant psychiatric evidence in detail. However, Davis J noted that whilst the recommendations of experts are made on medical considerations, it remains the function of the Court to apply the legal test to the expert evidence. It would be “unfair” to expect a doctor to express an opinion on final legal questions. .
The doctors had each recommended a supervision period of five years. . Ultimately, Davis J found that further supervision of the respondent was required for a period of two years. .
It was ordered that the respondent be subject to a further supervision order, under Div 4A, until 19 June 2022.