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Attorney-General (Qld) v GBE

Unreported Citation:

[2024] QCA 6

EDITOR'S NOTE

A supervision order imposed on the respondent prisoner was declared to take effect from his “release” from custody. The primary judge, who imposed the order, construed “release day” in s 15(a) Dangerous Prisoners (Sexual Offenders) Act 2003 (“the Act”) as having a different meaning from “release day” as defined in sch 1 of the Act. Consequently, the order could take effect from the date the respondent was released on parole, and before being unconditionally released having served the full sentence. The Court of Appeal overturned this decision and remitted the matter for rehearing. Applying the principles of statutory construction, the defined term should have been applied to s 15(a).

Mullins P and Bond JA and Martin SJA

2 February 2024

Background

The primary judge imposed a five-year supervision order under the Dangerous Prisoners (Sexual Offenders) Act 2003 (“the Act”) on the respondent and declared, pursuant to s 15(a) of the Act, that order was to take effect from the respondent’s “release” from custody. [1].

The appellant submitted the definitions of the Act provided that “release” here meant the entirety of the sentence being served and did not apply to parole. [22]. The primary judge expressed concerns with this interpretation, considering this would mean a prisoner could be released and subject only to parole conditions while a court had determined the prisoner was of such risk that a supervision order be imposed, but that could not take effect until some time later. [22]–[26].

The primary judge held the definition of “release day” in sch 1 of the Act did not apply to s 15(a) of the Act. [1]. Rather, “release day” in s 15 was construed as including release on parole. [1]. Section 15 provides:

“A supervision order or interim supervision order has effect in accordance with its terms–

(a)on the order being made or on the prisoner’s release day, whichever is the later; and

(b)for the period stated in the order.”

Schedule 1 of the Act provides “release day” means “the day on which the prisoner is due to be unconditionally released from lawful custody under the Corrective Services Act 2006.”

The effect of that interpretation was that the supervision order could commence while the respondent was on parole, but before the entirety of the period of imprisonment he was serving had ended (full-time release date). [1].

The Attorney-General (Qld) appealed that decision on the basis that the primary judge erred in so interpreting the Act. [2].

Decision of the Court of Appeal

The Court of Appeal allowed the appeal, set aside the orders of the primary judge and remitted the matter for rehearing. [61].

The appropriate method of statutory interpretation is set out in R v A2 (2019) 269 CLR 507. The focus must first be on the text of s 15(a) before considering the context and purpose of the provision, and if appropriate, the purpose of the Act itself. [43]. As the Court noted, it is also relevant that s 15(a) “uses a defined term in the Act”. [43].

First, the provisions of the Act make clear that the meaning of “period of imprisonment” is drawn from the Penalties and Sentences Act 1992. [12]. The regime also sits together with the provisions of the Corrective Services Act 2006 (“CSA”). Some of the CSA provisions do not apply to supervised dangerous prisoners who are “detained” meaning (sch 4 of the Act) “a prisoner subject to a continuing detention order or interim detention order” under the Act.” [39]. That is, “release on parole is not an unconditional release of a prisoner”, [46], and a supervision order may take effect after a person is on parole.

Second, the purpose of the Act, as explained in s 3, is to provide a regime for continued detention in custody or supervised release of a particular class of prisoners to ensure community safety and treatment of such prisoners to facilitate their rehabilitation. [36]. The Court also considered the regime under the CSA. If a supervision order were made, but the period of imprisonment for the index offence had not been fully served, a prisoner could apply for parole. [47]. However, the Parole Board would no doubt take into account that the effect of the supervision order would not commence until the end of that period, when determining the parole application. [47]. There was no contradictory or “perverse” outcome with this effect.

The Court also considered the obiter in Attorney-General (Qld) v Kanaveilomani [2015] 2 Qd R 509, especially at [123]–[128], upon which the primary judge relied. The Court held that decision must be considered in its factual context. [41], [57].

There, Morrison JA had considered that both ss 14 and 15 of the Act concerned orders under the Act generally taking effect at the expiration of the period of imprisonment of the index offence. [33]. As the Court of Appeal summarised, Kanaveilomani “illustrates that the period of imprisonment applicable to a prisoner for the purposes of the Act may alter as events transpire after an application was made for a division 3 order.” [41]. The focus there was on the period of the imprisonment, which had been extended by the time the division 3 supervision application was made. [40]–[41].

That case, however, is not applicable to the circumstances here. [41]. Although expressed in general terms, that decision was not intended to provide a principle for the other case. Other circumstances may arise, for which Kanaveilomani is not apposite. [41]. For example, a prisoner’s term of imprisonment for the index offence could have expired before an application for a division 3 order has been finalised. [42].

In those circumstances, proper statutory construction demonstrated that the meaning of “release day” in sch 1 also applied to s 15(a) of the Act.

The Court also found another error by the primary judge, although one which did not affect the outcome. The primary judge erred in attempting to back-date the finding relevant to imposing the supervision order to two years prior to the application, when the respondent would otherwise have been released from custody for the index offending. [57]. In accordance with s 13(1) of the Act and Kanaveilomani, the finding must be made on the hearing of the application for the order. [57].

H Edwards of Counsel

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