A-G v Kynuna (No 2)

[2011] QSC 376

SUPREME COURT OF QUEENSLAND

CITATION:

A-G v Kynuna (No 2) [2011] QSC 376

PARTIES:

ATTORNEY-GENERAL FOR THE STATE OF QLD

(applicant)

v

GREGORY DAVID KYNUNA

(respondent)

FILE NO/S:

BS9492/09

DIVISION:

Trial

PROCEEDING:

Application under the Dangerous Prisoners (Sexual Offenders) Act 2003

DELIVERED ON:

11 November 2011

DELIVERED AT:

Brisbane

HEARING DATE:

9 November 2011

JUDGE:

Dick AJ

ORDER:

Application successful

CATCHWORDS:

CRIMINAL LAW – JUDGMENT AND PUNISHMENT – SENTENCE – MISCELLANEOUS MATTERS – SEXUAL OFFENDERS – Dangerous Prisoners (Sexual Offenders) Act 2003 (Qld) – respondent convicted of sexual offences – respondent contravened supervision order - application by Attorney-General to have the supervision order rescinded and the respondent detained indefinitely or alternatively amend the supervised order – whether conditions of the supervision order are appropriate

Dangerous Prisoners (Sexual Offenders) Act 2003

COUNSEL:

M. Maloney for the applicant

T. Ryan for the respondent

SOLICITORS:

Crown Solicitor for the applicant

Howden Saggers for the respondent

1. Dick AJ: This is an application pursuant to s 22(2)(a) of the Dangerous Prisoners (Sexual Offenders) Act 2003 hereinafter called “the Act”. The application is made on the grounds that the respondent has contravened the requirements of his supervision order made by Justice JS Douglas on 29 January 2010 and as amended by me on 9 June 2011. The application is that the supervision order be rescinded and that the respondent be detained in custody for a definite term for care, control or treatment. In the alternative an application is made pursuant to s 22(7) of the Act that the supervision order be amended and the respondent be subject to such amended conditions as the court considers appropriate and that are stated in the order.

1. The application involves a two-part process:

(a)           determination of the breach or breaches of the supervision order;

(b)           in the event that the breach or breaches are proven, discretion then arises for the court to rescind or amend the supervision order.

1. The application alleges that the supervision order was contravened in the following way:

1.          The respondent failed to comply with a curfew direction or a monitoring direction as required by (v) of the supervision order; and

2.          The respondent failed to abstain from illicit drugs for the duration of the order, a condition contained in paragraph (xxv) of the supervision order.

1. The onus is on the Attorney-General to satisfy the court on the basis of probabilities that the respondent contravened a supervision order.  The respondent admits that he has contravened the order in the manner particularised.

1. Once the court is satisfied the order has been contravened, the onus then shifts to the respondent to satisfy the court that, on the balance of probabilities, the adequate protection of the community can, despite the contraventions, be assured by the supervision order in its current form or as amended.

1. If the respondent does not discharge that onus the court must rescind the supervision order and make a continuing detention order, see s 22(2) of the Act. 

Background

1. The respondent was born on 18 November 1964…