A-G (Qld) v Fardon - [2006] QCA 512

SUPREME COURT OF QUEENSLAND

CITATION:

A-G (Qld) v Fardon [2006] QCA 512

PARTIES:

ATTORNEY-GENERAL FOR THE STATE OF QUEENSLAND
(applicant/appellant)
v
ROBERT JOHN FARDON
(respondent/respondent)

FILE NO/S:

Appeal No 9605 of 2006
SC No 5346 of 2003

DIVISION:

Court of Appeal

PROCEEDING:

General Civil Appeal

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED ON:

4 December 2006

DELIVERED AT:

Brisbane

HEARING DATE:

10 November 2006

JUDGES:

McMurdo P, Williams JA and White J
Separate reasons for judgment of each member of the Court, each concurring as to the order made

ORDER:

Appeal dismissed

CATCHWORDS:

CRIMINAL LAW - JURISDICTION, PRACTICE AND PROCEDURE - JUDGMENT AND PUNISHMENT - SENTENCE - FACTORS TO BE TAKEN INTO ACCOUNT - PURPOSE OF SENTENCE - PROTECTION OF COMMUNITY AND PREVENTIVE DETENTION - where respondent has an extensive criminal history for serious offences of rape and sexual assault - where respondent completed his most recent term of imprisonment in 2003 but at that time was deemed an unacceptable risk to the community and ordered to be detained indefinitely - where that order is subject to annual review - where most recent review ordered respondent's release subject to 32 conditions relating to intensive supervision and lasting for 10 years or until further order of the court - where Attorney‑General (Qld) appeals against this supervised release order - whether the judge erred in making the order - whether the respondent is an unacceptable danger to the community if released from custody subject to supervision conditions

Corrective Services Act 2006 (Qld), s 72(1), s 478A
Dangerous Prisoners (Sexual Offenders) Act 2003 (Qld), s 13, s 27, s 30

A-G (Qld) v Fardon[2003] QSC 379; SC No 5346 of 2003, 6 November 2003, considered

A-G (Qld) v Fardon[2005] QSC 137; SC No 5346 of 2003, 11 May 2005, considered

A-G (Qld) v Fardon[2006] QSC 275[2006] QSC 275; SC No 5346 of 2003, 27 September 2006, considered

A-G (Qld) v Fardon[2006] QSC 336[2006] QSC 336; SC No 5346 of 2003, 8 November 2006, considered

A-G (Qld) v Francis[2006] QCA 324[2006] QCA 324; Appeal No 452 of 2006, 30 August 2006, applied

Fardon v A-G (Qld) [2004] HCA 46; (2004) 210 ALR 50, considered

House v The King (1936) 55 CLR 499, applied

COUNSEL:

W Sofronoff QC, with M D Hinson SC and M Maloney, for the appellant
D P O'Gorman SC for the respondent

SOLICITORS:

Crown Law for the appellant
Prisoners' Legal Service for the respondent

McMURDO P: The appellant, the Attorney-General for the State of Queensland, appeals from an order of a judge of the Trial Division of 8 November 2006. The order followed the annual review under s 27 Dangerous Prisoners (Sexual Offenders) Act 2003 (Qld) ("the Act") of the respondent Robert John Fardon's continuing detention under the Act after completion of the service of his most recent sentence of imprisonment. The appellant contends that although the judge was rightly satisfied that the respondent was a serious danger…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2006] QCA 512
Decision Date: 4 December 2006

CaseChat Overview and Summary

The Attorney-General for Queensland appealed against a decision of the Supreme Court to release the respondent, Fardon, from custody subject to certain conditions, arguing that Fardon posed an unacceptable danger to the community if released. The Supreme Court had ordered Fardon's release following an annual review under the Dangerous Prisoners (Sexual Offenders) Act 2003, which permits the review of sentences of individuals deemed to pose a significant danger to the community. Fardon had been imprisoned for serious sexual offences, and at the end of his most recent term of imprisonment in 2003, he was ordered to be detained indefinitely. The court was required to determine whether the Supreme Court judge erred in making the order for Fardon's supervised release and whether Fardon was an unacceptable danger to the community if released from custody subject to supervision conditions.

The court considered the relevant legislation, including the Corrective Services Act 2006 and the Dangerous Prisoners (Sexual Offenders) Act 2006, and the relevant case law, including A-G (Qld) v Fardon and A-G (Qld) v Francis. The court held that the Supreme Court judge did not err in making the order for Fardon's supervised release, as the evidence presented at the review hearing demonstrated that Fardon no longer posed an unacceptable danger to the community. The court also held that the evidence demonstrated that Fardon was suitable for release under supervision conditions. The court found that the Supreme Court judge had considered all relevant factors in making the order for Fardon's release and had given proper weight to the need to protect the community.

The appeal was dismissed, and the order for Fardon's supervised release was upheld. The court held that the Supreme Court judge had not erred in making the order for Fardon's release, and that Fardon was not an unacceptable danger to the community if released from custody subject to supervision conditions. The court emphasised the importance of ensuring that individuals who pose a significant danger to the community are detained, but also the importance of ensuring that individuals who no longer pose such a danger are released. The court found that the evidence presented at the review hearing demonstrated that Fardon no longer posed an unacceptable danger to the community and was suitable for release under supervision conditions.

Orders

Orders of the court

Appeal dismissed

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	A-G (Qld) v Fardon [2006] QCA 512
PARTIES:	ATTORNEY-GENERAL FOR THE STATE OF QUEENSLAND (applicant/appellant) v ROBERT JOHN FARDON (respondent/respondent)
FILE NO/S:	Appeal No 9605 of 2006 SC No 5346 of 2003
DIVISION:	Court of Appeal
PROCEEDING:	General Civil Appeal
ORIGINATING COURT:	Supreme Court at Brisbane
DELIVERED ON:	4 December 2006
DELIVERED AT:	Brisbane
HEARING DATE:	10 November 2006
JUDGES:	McMurdo P, Williams JA and White J Separate reasons for judgment of each member of the Court, each concurring as to the order made
ORDER:	Appeal dismissed
CATCHWORDS:	CRIMINAL LAW - JURISDICTION, PRACTICE AND PROCEDURE - JUDGMENT AND PUNISHMENT - SENTENCE - FACTORS TO BE TAKEN INTO ACCOUNT - PURPOSE OF SENTENCE - PROTECTION OF COMMUNITY AND PREVENTIVE DETENTION - where respondent has an extensive criminal history for serious offences of rape and sexual assault - where respondent completed his most recent term of imprisonment in 2003 but at that time was deemed an unacceptable risk to the community and ordered to be detained indefinitely - where that order is subject to annual review - where most recent review ordered respondent's release subject to 32 conditions relating to intensive supervision and lasting for 10 years or until further order of the court - where Attorney‑General (Qld) appeals against this supervised release order - whether the judge erred in making the order - whether the respondent is an unacceptable danger to the community if released from custody subject to supervision conditions Corrective Services Act 2006 (Qld), s 72(1), s 478A Dangerous Prisoners (Sexual Offenders) Act 2003 (Qld), s 13, s 27, s 30 A-G (Qld) v Fardon[2003] QSC 379; SC No 5346 of 2003, 6 November 2003, considered A-G (Qld) v Fardon[2005] QSC 137; SC No 5346 of 2003, 11 May 2005, considered A-G (Qld) v Fardon[2006] QSC 275[2006] QSC 275; SC No 5346 of 2003, 27 September 2006, considered A-G (Qld) v Fardon[2006] QSC 336[2006] QSC 336; SC No 5346 of 2003, 8 November 2006, considered A-G (Qld) v Francis[2006] QCA 324[2006] QCA 324; Appeal No 452 of 2006, 30 August 2006, applied Fardon v A-G (Qld) [2004] HCA 46; (2004) 210 ALR 50, considered House v The King (1936) 55 CLR 499, applied
COUNSEL:	W Sofronoff QC, with M D Hinson SC and M Maloney, for the appellant D P O'Gorman SC for the respondent
SOLICITORS:	Crown Law for the appellant Prisoners' Legal Service for the respondent