Attorney-General for the State of Queensland v GBE

In this significant judgment, Hindman J considered whether, on a proper interpretation of s 15 Dangerous Prisoners (Sexual Offences) Act 2003, a suspension order should take effect from the time a prisoner obtains parole, or from the end of their head sentence (where each would post-date the order). Ultimately, her Honour found that the order should take effect from the date of parole, if any.

Hindman J

11 August 2022 (delivered ex tempore)

The Attorney-General applied alternatively for continuing detention orders and supervision orders against the respondent, pursuant to the Dangerous Prisoner (Sexual Offences) Act 2003 (“DPSO Act”). The respondent did not resist a finding that he would be a serious danger in the community in the absence of an order under Div 3 DPSO Act. Rather, the question in the proceedings was whether a supervision order is apt to ensure the adequate protection of the community, or if a continuing detention order is required.

The respondent was convicted of the index offence, a 2015 rape, committed as a juvenile. His custodial end date for the index offence (and for some other offending committed whilst in custody) was 16 June 2020. On that date, he was also the subject of an interim supervision order. As a result of further general offending, the interim supervision order was revoked on 29 October 2020, and he was placed on an interim continuing detention order. He was further sentenced for that general offending (and other offending whilst in custody) on 29 September 2021, receiving a head sentence of four years, which expires on 23 April 2025. He became eligible to apply for parole in respect of that sentence on 15 June 2022, although his parole eligibility is presently prohibited due to the interim continuing detention order.

Under s 15(a) DPSO Act, a supervision order takes effect “on the order being made or on the prisoner'’ release day, whichever is the later”. The Attorney-General submitted that any supervision order made by the Court should only take effect from 23 April 2025, that being the end of his full sentence for his general offending, as “release day” is defined to mean the day on which the prisoner is due to be unconditionally released from custody (i.e. upon the conclusion of the full sentence, rather than the prisoner’s release on parole). However, the Attorney-General also submitted that the supervision order would not prevent the respondent from applying for, and obtaining, parole.

In considering this issue, Her Honour observed that, under s 32A Acts Interpretation Act 1954, definitions will apply, except so far as either the context or the subject matter otherwise indicates or requires. Applying the defined meaning of “release day” to s 15(a) DPSO Act would have the operation submitted by the Attorney-General. However, Hindman J considered that there was an alternative construction which might be open: that the words “release day” took their ordinary meaning, such that a supervision order operates from the date a prisoner is released from prison including, if applicable, on parole.

Justice Hindman preferred the latter interpretation, as the outcome suggested by the Attorney-General would result “in perverse outcomes inconsistent with the purpose and objectives” of the DPSO Act. One such perverse outcome was that a person against whom a supervision order was made would not be subject to that order while out on parole, with the order not coming into effect until after the full sentence date, either for the index offence or for some subsequent offending. Accordingly, her Honour considered that the context of the DPSO Act means that it is open to conclude that the words “prisoner'’ release day” in s 15(a) DPSO Act should bear their ordinary meaning. Further, such an outcome would be consistent with both s 51 and s 16 DPSO Act, which contemplates that a prisoner’s release from custody should be supervised with particular conditions.

Justice Hindman considered that, in determining the appropriate order, the Court should consider what the appropriate order was at the time of the hearing, rather than at the date the respondent would otherwise have been released from custody in respect of the index offence. On the evidence before the Court, her Honour was ultimately satisfied that it was appropriate to make a supervision order for a period of five years, running from the respondent'’ date of parole, if he is granted parole.

M Paterson