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[2021] QSC 143
The respondent had repeatedly breached a supervision order made under the Dangerous Prisoners (Sexual Offenders) Act 2003. It was accepted by both parties and the Court that the respondent required the extra support provided by Supported Independent Living Accommodation, funded by the National Disability Insurance Agency, and should not be released without such accommodation being in place. At the time of the hearing, such accommodation was not available. The Court held that it did not have the power to make a supervision order conditional on the appropriate accommodation becoming available. It was necessary to adjourn the application until the appropriate accommodation was available.
Davis J
17 June 2021
Background
Since 2013, the respondent, Geoffrey Doolan, has been the subject of a continuing detention order pursuant to the Dangerous Prisoners (Sexual Offenders) Act 2003 (DPSOA). In May 2015, Mr Doolan was released on a supervision order which was subject to a number of requirements. [1].
Mr Doolan repeatedly breached that order. Most recently, Mr Doolan breached the order in March 2021 by using cannabis and alcohol. [3].
As a consequence of breaching the order, Mr Doolan was arrested and detained in custody pursuant to s 20 of the DPSOA. [4].
Mr Doolan has been diagnosed with Anti-Social Personality Disorder, Alcohol Abuse Disorder and Paedophilia. [8]. The nature of Mr Doolan’s offending was sexual offending against young persons. [7].
It was accepted by both parties, and the Court, that Mr Doolan should not be released into “contingency accommodation”, but required the extra support provided in Supported Independent Living Accommodation (SILA), funded by the National Disability Insurance Agency. [14].
This position was informed by the evidence of psychiatrist, Dr Harden and Queensland Corrective Services (QCS). [14], [30]. As Justice Davis explained: “His failure to cope has led him to resorting to alcohol use, and alcohol use is a risk factor to [his] sexual offending”. [30].
However, at the time of the hearing a position in SILA was not available. It was submitted by the parties that the Court should make an order “that Mr Doolan should be released once the SILA became available”. [17].
The issue before the Court was “whether making such an order is a proper exercise of the court’s power”. [17].
Relevant legislative framework
Section 22 of the DPSOA relevantly provides for the making of a further order where the Court is satisfied, on the balance of probabilities, that the released prisoner has contravened a requirement of the supervision order. [26].
Sub-section 22(7) empowers the Court to amend the existing supervision order if satisfied “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 a supervision order …” [26].
Reasons of the Court
Ultimately, Davis J held that the Court did not have the power to make a supervision order in terms conditional on the appropriate accommodation becoming available. [33].
In reaching this conclusion, his Honour recognised the distinction in the role of the Court and the QCS in administering the regime under the DPSOA. [28]. His Honour explained that:
“The scheme of the Act is that the court makes either a continuing detention order or supervision order against the prisoner and then control of the prisoner passes to the executive government, here represented by QCS.” [28].
His Honour observed that it is also for the Court to determine under s 22(7) whether the protection of the community can be suitably ensured if the prisoner is released on a supervision order, following the contravention of an existing order. [29].
In this case, such a determination could not be made until there was a position in SILA available for Mr Doolan. [31].
His Honour observed that:
“It is wrong to exercise the power under s 22 leaving to the executive through QCS the later assessment by QCS that the accommodation which is ultimately obtained is appropriate in the sense of reducing risk.” [31].
However, His Honour did acknowledge that if Mr Doolan was to shift to a different type of accommodation in the future, this would be an administrative matter in the purview of QCS. [32].
Justice Davis adjourned the application until a position in SILA was available for Mr Doolan. [33].
A Hughes of Counsel