Exit Distraction Free Reading Mode
This application concerned an application for review under the Dangerous Prisoners (Sexual Offenders) Act 2003 of a continuing detention order. The respondent sought to be released from custody subject to a supervision order. Both the respondent and the applicant agreed that if the respondent obtained suitable accommodation, he could be released from custody on a supervision order. However, there was no accommodation available. While Callaghan J ultimately ordered that the respondent remain the subject of a continuing detention order, his Honour observed that in the absence of suitable accommodation, “prisons will become a refuse heap for individuals, who cannot, by reason of mental infirmity, function in a socially acceptable way”.
15 February 2021 (delivered ex tempore)
The respondent was the subject of a continuing detention order and sought to be released from custody subject to a supervision order. .
The respondent committed his first sexual offence at age 32. . This offence was “relatively minor”. He has subsequently reoffended in “extraordinarily reckless and impulsive ways and often in circumstances where he was quickly identified as the culprit and apprehended”. His offending did not involve penetrative behaviour but consisted of exposing himself and masturbating in public as well as making sexually explicit phone calls to strangers. .
In 2016, the respondent was sentenced to a period of imprisonment of 18 months for two separate offences. He was declared eligible for parole on 19 September 2016. .
He was not granted parole. He served his sentences and has since been the subject of two orders made under the Dangerous Prisoners (Sexual Offenders) Act 2003 (“the Act”). .
As a result, for offences which are “amongst the least serious of their kind”, the respondent has been in prison now for almost five years. .
Justice Callaghan observed that the respondent has been found to be a “serious danger to the community”. However, he does not appear to have a primary paraphilia nor does he pose a physical danger, including a danger of sexual violence. Rather, the respondent was at risk of re-offending in the same manner as his previous offences. , , , .
Reasons of the Court
By reference to Harvey v Attorney-General  QCA 256, Callaghan J noted that in an application under the Act, the Court should be concerned with the question of whether the respondent is likely to commit the acts which would be the subject of an offence rather than whether he is likely to be convicted of that offence. .
It was clear on the evidence that the respondent was at risk of re-offending. . However, it was agreed by the parties that this risk could be managed by a supervision order, which provided for 24 hour / 7 day per week support of the respondent. . The respondent’s rehabilitation required the services of the public health system, rather than the corrective services regime. .
At the time of the hearing, there was no suitable accommodation available. . Justice Callaghan observed that:
“ … in the absence of suitable accommodation for people like him, prisons will become a refuse heap for individuals who cannot, by reason of mental infirmity, function in a socially acceptable way.” .
The Court was advised by counsel on behalf of the Attorney-General that as soon as suitable accommodation became available, the Attorney would commence the relevant proceedings. .
His Honour ordered that the respondent remain the subject of a continuing detention order. .
A Hughes of Counsel