SUPREME COURT OF QUEENSLAND
CITATION:
Attorney-General for the State of Qld v Jacob [2015] QSC 273
PARTIES:
ATTORNEY-GENERAL FOR THE STATE OF QUEENSLAND
(applicant)
v
RAYNARD SMITH JACOB(respondent)
FILE NO/S:
SC No 5548 of 2015
DIVISION:
Trial Division
PROCEEDING:
Application
ORIGINATING COURT:
Supreme Court at Brisbane
DELIVERED ON:
22 September 2015
DELIVERED AT:
Brisbane
HEARING DATE:
21 September 2015
JUDGE:
Ann Lyons J
ORDER:
Pursuant to s 13(5)(b) of the Dangerous Prisoners (Sexual Offenders) Act 2003, the respondent be subject to a supervision order in terms of the order in the attached Schedule for a period of five years.
CATCHWORDS:
CRIMINAL LAW – SENTENCE – SENTENCING ORDERS – ORDERS AND DECLARATIONS RELATING TO SERIOUS OR VIOLENT OFFENDERS OR DANGEROUS SEXUAL OFFENDERS – DANGEROUS SEXUAL OFFENDER – GENERALLY – where the applicant seeks a Division 3 order under the Dangerous Prisoners (Sexual Offenders) Act 2003 that the respondent be detained indefinitely for control, care or treatment, or alternatively, that the respondent be released subject to a supervision order – where the respondent argues that the evidence is insufficient to justify a finding that the respondent is a serious danger to the community in the absence of a Division 3 order – whether the respondent presents a serious danger to the community in the absence of a Division 3 order – whether the respondent should be subject to a Division 3 order
Dangerous Prisoners (Sexual Offenders) Act 2003, s 3, s 13, s 15, s 27, Schedule
Attorney-General v Van Dessel [2006] QSC 16, considered
COUNSEL:
B H Mumford for the applicant
M C Chowdhury for the respondent
SOLICITORS:
Crown Law for the applicant
Legal Aid Queensland for the respondent
ANN LYONS J:
The applicant, Attorney-General for the State of Queensland, applies under s 13 of the Dangerous Prisoners (Sexual Offenders) Act 2003 (the Act) for a Division 3 order that the respondent, Raynard Smith Jacob, be detained indefinitely for control, care or treatment or alternatively an order that he be released subject to a supervision order.
Counsel for the respondent argues that the evidence is insufficient to justify a finding that the respondent is a serious danger to the community in the absence of such an order.
The requirements of the Act
The objects of the Act are stated in s 3 of the Act as being:
“(a)To provide for the continued detention in custody or supervised release of a particular class of prisoner to ensure adequate protection to the community; and
(b)To provide continuing control, care or treatment of a particular class of prisoner to facilitate their rehabilitation.”
For the purpose of this application, a prisoner includes a person who is detained in custody, serving a period of imprisonment for a serious sexual offence. That term is defined as an offence of a sexual nature, whether committed in Queensland or outside Queensland, involving violence or against children.
Section 13 of the Act provides for the making of a continuing detention order or a supervision order. Before an…
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- AGLC
- Attorney-General for the State of Qld v Jacob [2015] QSC 273
- Case
- [2015] QSC 273
- Decision Date
CaseChat Overview and Summary
The court considered the risk assessment reports provided by Professor Nurcombe and Dr Sundin, both of whom expressed reservations about the applicability of risk assessment instruments for indigenous communities in Australia. Despite this, the court found that the respondent had a history of alcohol-fuelled violence and had been convicted of two different types of sexual offences and one of indecent treatment of a child. Although the court acknowledged that the later offence of rape and assault with intent to rape occurred in the context of high levels of intoxication and a property dispute, it concluded that the evidence was sufficient to find that the respondent was a serious danger to the community. The court also considered Professor Nurcombe's recommendation that a supervision order would be necessary for a period of five years, with strict conditions such as abstinence from alcohol and illicit drugs, regular testing, and living apart from his social group.
Ultimately, the court found that the respondent was a person who was a serious danger to the community in the absence of a continuing detention or supervision order under the Act. The court noted that the risk assessment instruments may not be valid for Australian indigenous communities but concluded that the evidence was sufficient to support the application for a supervision order for a period of five years. The court also noted Professor Nurcombe's recommendation that the most important provision would be a complete abstinence from alcohol and illicit drugs and that supervision would require the respondent to live apart from his social group. The court did not consider it necessary for the respondent to be separated from children or adolescents of either sex and did not think he would benefit from the Sexual Offender Maintenance Program.
The final orders of the court were that the respondent be subject to a supervision order in terms of the order in the attached Schedule for a period of five years. The court ordered that the respondent must comply with the conditions of the supervision order, including abstinence from alcohol and illicit drugs, regular testing, and living apart from his social group.
Orders
Orders of the court
Pursuant to s 13(5)(b) of the Dangerous Prisoners (Sexual Offenders) Act 2003, the respondent be subject to a supervision order in terms of the order in the attached Schedule for a period of five years.
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
Ultimately, Professor Nurcombe questioned whether the degree of risk reaches a level that would warrant the application of the Act. However, if a supervision order was considered necessary, he recommended that such an order should be for a period of five years and indicated that the most important provision would be a complete abstinence from alcohol and illicit drugs. He considered that the alcohol or drug use could be monitored by regular breath analysis and urine testing. He noted that supervision would require the respondent to live apart from his social group. He did not consider there was any need for the respondent to be separated from children or adolescence of either sex and did not think he would benefit from the Sexual Offender Maintenance Program. He also doubted that he had benefited from SOPIM. Consideration The real issue in this case is whether the applicant has satisfied me that the respondent is a person who is a serious danger to the community in the absence of a continuing detention or supervision order under the Act. Is the evidence before me such that I can be satisfied that there is an unacceptable risk that the respondent will commit a serious sexual offence if he is not either supervised or detained? As outlined above, the Act provides that a Court can only make a finding that a person is a serious danger to the community if it is satisfied to a “high degree of probability”. In this regard, I note in particular the caution raised in the reports of the psychiatrists Professor Nurcombe and Dr Sundin that the risk assessment instruments may not be valid for Australian indigenous communities. Counsel for the respondent argues that the applicant has not discharged the onus of satisfying the Court and relies on the views of Dr Sundin and Professor Nurcombe querying whether the respondent’s offending was of sufficient seriousness to warrant an order under the Act. Dr Sundin summed up the issue in her report when she stated that “Whilst my clinical impression of Mr Jacob [the respondent] was of an arrogant individual with a fairly spectacular history of alcohol fuelled violence, I am not certain whether he rises to the level of seriousness that would warrant a supervision order under the Dangerous Prisoners (Sexual Offenders) Act 2003 [the Act].”As Dr Sundin noted, the respondent has convictions for two different types of sexual offences and the offence of indecent treatment of a child, whilst serious, was at the lower end of the spectrum and involved the groping of a child through her clothes without penetration or any violence. The later offence of rape and assault with intent to rape occurred in the context of high levels of intoxication and a property dispute. Professor Nurcombe also stated that the sexual violence was not chronic and that “There have been three charges in 36 years that have a sexual connotation. The sexual violence has not been diverse. However it has escalated in seriousness.” Ultimately, he questioned “whether the degree of risk in this case reaches a level which would warrant the application of the Dangerous Prisoner (Sexual Offenders) Act 2003 [the Act].”