Attorney-General (Qld) v Kanaveilomani

In this matter the Court of Appeal had occasion to examine the necessary prerequisites of an application for an order under Pt 2 div 3 of the Dangerous Prisoners (Sexual Offenders) Act 2003 (“DPSOA”) (a continuing detention or supervision order) in the context of an order sought for a prisoner that had, during his term of imprisonment for a serious sexual offence, committed another offence for which he was subsequently imprisoned and was, at the time of the determination of the application, serving out this second term of imprisonment. This important decision of the Court of Appeal discusses a number of important principles in the DPSOA.

The central issue before the Court was whether or not a custodial sentence, “backdated” pursuant to s 159A(3)(c) of the Penalties and Sentences Act 1992 (“PSA”) was deemed to start from the first day of pre-sentence custody. The Court considered a number of decisions concerning the effect of a declaration made pursuant to s 159A(3)(c) PSA, concluding that where s 159A applies, time spent in pre-sentence custody is automatically deemed to be time served under the sentence [166] and that the period of imprisonment commences from the start of the relevant pre-sentence custody: [43], [66]. Therefore, in the particular circumstances of this case, the s 159A(3)(c) declaration by the sentencing judge had the effect that the Respondent’s period of imprisonment was “unbroken”: [68]. His term of imprisonment for the second offence was deemed to commence on the day following the conclusion of his previous sentence and, pursuant to s 4 PSA, the Respondent was thus serving a single period of imprisonment, which, significantly for this case, included a term of imprisonment for a serious sexual offence as defined by s 5(6) of the DPSOA. Consequently, though the DPSOA application filed by the Appellant, prior to the Respondent’s conviction for the second offence, was valid, following his conviction, the Appellant’s application was moot, because by the time the primary judge heard the application for a final order the Respondent was “serving a period of imprisonment that include[d] a term of imprisonment for a serious sexual offence” and thus the correct time for the Appellant to apply for an order was within six months of the end of this (combined) period of imprisonment. In reaching this decision, the Court rejected, because of its failure to give “full credit” to the order of the sentencing judge, the contention of the Appellant that a declaration under s 159A(3)(c) was “an artificiality” and that it simply allowed for time to be deducted from the sentence, rather than moving the date of its commencement: [67]. Though the Court’s conclusion on this issue was determinative of the appeal, it did briefly consider the interpretation of s 13 DPSOA, in particular the point in time at which the court should determine whether a serious sexual offender is a “serious danger to the community in the absence of a division 3 order”: [118]. In considering both the language and structure of the section, in particular the tense used, their Honours concluded that the section requires the court to make “a hypothetical assessment of a prisoner’s future risk assuming he is presently released” rather than, as argued by the Respondent, at the date of his (potential) release: [121]. Given this reasoning, the fact that the Respondent was in custody at the time of the hearing was not a relevant consideration. [124]