Exit Distraction Free Reading Mode
This is an important recent decision concerning whether a supervision order made under the Dangerous Prisoners (Sexual Offenders) Act 2003 could and ought to be set aside under r 668 UCPR. The applicant, a prisoner serving a term of imprisonment for offences committed which breached the terms of the supervision order, argued that his conviction and imprisonment were new facts that triggered reliance on r 668 UCPR to set aside the supervision order. While his Honour ultimately dismissed the application, he clarified that, if circumstances arise to trigger the discretion under r 668 UCPR to set aside a supervision order, the rescission of the order is not inconsistent with ss 20 and 22 of the DPSOA.
12 February 2021
The applicant sought the rescission of the supervision order made in 2017, which he had allegedly breached by committing a serious sexual offence (, , ) and the imposition of a continuing detention order. Importantly, the conduct which he had purportedly engaged in which breached the terms of the supervision order also amounted to offences against s 272.14(1) of the Commonwealth Criminal Code. . In relation to those offences he was sentenced in 2020 to a term of imprisonment of four years with 593 days of pre-sentence custody declared as time served under the sentence, rendering him eligible for immediate parole. . However, having regard to the order, the Commonwealth Attorney-General denied parole. .
The applicable legislation
In circumstances where an individual contravenes a supervision order, they may be arrested on a warrant issued pursuant to s 20 of the Act then subsequently dealt with under s 22. Unless the court can be satisfied that the adequate protection of the community can continue to be ensured by the existing order as amended under subsection (7), the court must—
(a) if the existing order is a supervision order, rescind it and make a continuing detention order; or
(b) if the existing order is an interim supervision order, rescind it and make an order that the released prisoner be detained in custody for the period stated in the order.
Rule 668 of the UCPR provides that a court may vary or set aside an order if—
(a) facts arise after an order is made entitling the person against whom the order is made to be relieved from it; or
(b) facts are discovered after an order is made that, if discovered in time, would have entitled the person against whom the order is made to an order or decision in the person’s favour or to a different order.
The applicant argued that given his circumstances the supervision order now served no useful purpose and nor did contravention proceedings on it because if the supervision order continued; his application failed; and the contravention breach proceedings on it were determined, then the outcome of those proceedings would need to be either a continuing detention order or a supervision order. . His Honour agreed that that submission was meritorious, noting that the applicant further contended that:
- either option would be “odd” given the applicant’s status as a prisoner;
- in the event the applicant was subjected to a continuing detention order, that order would need to be reviewed, and it determined periodically whether the order should remain in place. The order would have no practical effect given the current term of imprisonment;
- Risk should be evaluated at the time of release, not mid-sentence. –.
The applicant argued that two new facts warranted the intervention of r 668 UCPR, namely his 2020 conviction and his sentence of imprisonment. .
The respondent contended that the application of r 668 did not arise in this instance since it was incompatible with ss 20 and 22 of the Act. That was because the scope of those sections requires that once the court is satisfied that a prisoner “is likely to contravene, is contravening or has contravened, a requirement of the supervision order”, an order must then be made either under s 22(2), or s 22(7). It was argued that s 22 does not contemplate the rescission of the orders made under either s 8 or s 13 but instead only contemplates the continuance of a supervision order or continuing detention order. .
In addressing the respective arguments, and ultimately dismissing the submission that the operation of r 668 is impliedly excluded by ss 20 and 22, his Honour provided the following valuable commentary on the legislation: :
“True it is that s 22 mandates an order under either of subsections (2), that is a continuing detention order, or (7), that is release on the supervision order, upon the conclusion of breach proceedings under s 22. However, s 22 does not operate at all unless there is a supervision order. If circumstances arise such that a discretion arises under r 668 to rescind the supervision order, then the rescission of the order is not inconsistent with ss 20 or 22.”
His Honour dismissed the application to set aside the order made against the applicant under Division 3, Part 2 of the Dangerous Prisoners (Sexual Offenders) Act 2003.
A de Jersey