Attorney-General for the State of Queensland v Ellis

Case [2012] QCA 182


SUPREME COURT OF QUEENSLAND

CITATION:

Attorney-General for the State of Queensland v Ellis [2012] QCA 182

PARTIES:

ATTORNEY-GENERAL FOR THE STATE OF QUEENSLAND
(appellant)
v
ANDREW CLIVE ELLIS
(respondent)

FILE NO/S:

Appeal No 10922 of 2011
SC No 4389 of 2011

DIVISION:

Court of Appeal

PROCEEDING:

General Civil Appeal

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED ON:

29 June 2012

DELIVERED AT:

Brisbane

HEARING DATE:

20 February 2012

JUDGES:

Margaret McMurdo P and White JA and Margaret Wilson AJA
Separate reasons for judgment of each member of the Court, White JA and Margaret Wilson AJA concurring as to the orders made, Margaret McMurdo P dissenting

ORDERS:

1.    Appeal allowed.

2.    The order made 25 October 2011 be set aside.

3.    The respondent be detained in custody for an indefinite term for control, care or treatment pursuant to the Dangerous Prisoners (Sexual Offenders) Act 2003.

CATCHWORDS:

CRIMINAL LAW – SENTENCE – SENTENCING ORDERS – ORDERS AND DECLARATIONS RELATING TO SERIOUS OR VIOLENT OFFENDERS OR DANGEROUS SEXUAL OFFENDERS – GENERALLY – where the primary judge made a supervision order under s 13(5)(b) of the Dangerous Prisoners (Sexual Offenders) Act 2003 – where the primary judge thought that it was highly likely that the respondent would breach the supervision order – where the primary judge did not think that the risk that the respondent would commit a serious sexual offence if released on a supervision order was unacceptable – whether the primary judge erred in her construction of s 13(3) of the Act – whether ss 13, 16 and 20 of the Act ought to be read together – whether the primary judge’s findings were insupportable given the psychiatric evidence – whether the primary judge did not take into account the appellant’s submissions

Dangerous Prisoners (Sexual Offenders) Act 2003 (Qld), Pt 2, Div 3, Pt 2, Div 5, s 11, s 13, s 16, s 20

Attorney-General (Qld) v Fardon[2011] QCA 155, considered
Attorney-General (Qld) v Francis
[2007] 1 Qd R 396; [2006] QCA 324, considered
Attorney-General (Qld) v WW [2007] QCA 334, considered
Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355; [1998] HCA 28, cited

COUNSEL:

P J Davis SC, with B H P Mumford, for the appellant
J J Allen with J Lodziak for the respondent

SOLICITORS:

Crown Solicitor (Brisbane) for the appellant
Legal Aid Queensland for the respondent

  1. MARGARET McMURDO P: Unlike my colleagues, I would dismiss the Queensland Attorney-General’s appeal from the primary judge’s order releasing the respondent (whom she found to be a serious danger to the community in the absence of an order under Pt 2 Div 3 Dangerous Prisoners (Sexual Offenders) Act 2003 (Qld) (the Act)) from custody on a supervision order containing the following 36 requirements until 12 January 2017:

“The respondent must:

ibe under the supervision of a corrective services officer for the duration of the order;

iireport to a corrective services officer at the Queensland Corrective Services Probation and Parole Office closest to…

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AGLC
Attorney-General for the State of Queensland v Ellis [2012] QCA 182
Case
[2012] QCA 182
Decision Date

CaseChat Overview and Summary

The respondent, Ellis, was subject to an appeal by the Attorney-General for the State of Queensland concerning sentencing orders made under the Dangerous Prisoners (Sexual Offenders) Act 2003. The primary judge had made a supervision order under s 13(5)(b) of the Act, believing it highly likely that Ellis would breach the order, but not considering the risk of him committing a serious sexual offence if released as unacceptable. The appeal centred on whether the primary judge had erred in her interpretation of s 13(3) of the Act, whether sections 13, 16, and 20 of the Act should be read together, if the primary judge’s findings were insupportable based on psychiatric evidence, and whether the primary judge failed to consider the appellant’s submissions. The court was required to determine the correct application of the Act's provisions and the weight to be given to psychiatric evidence and the appellant's submissions in making sentencing decisions.

The court examined whether the primary judge correctly applied the provisions of s 13(3) of the Act, which pertains to the risk of a serious sexual offence if a person is released on a supervision order. It was noted that the primary judge’s decision to impose a supervision order despite the high likelihood of breach suggested a misunderstanding of the statutory criteria. The court also considered whether the primary judge should have read sections 13, 16, and 20 of the Act together, as the appellant argued. The court found that the primary judge's interpretation did not align with the statutory framework, particularly regarding the risk assessment required under s 13(3). Additionally, the court assessed whether the psychiatric evidence, which suggested a high risk of reoffending, was adequately considered in the sentencing process. It was determined that the primary judge did not sufficiently weigh the psychiatric evidence in making her decision.

Upon reviewing the psychiatric evidence and the primary judge's findings, the court concluded that the primary judge's decision was flawed. The court found that the primary judge did not adequately consider the psychiatric evidence and the appellant's submissions, leading to an incorrect application of the statutory criteria. Consequently, the appeal was allowed, the supervision order was set aside, and the court ordered that Ellis be detained in custody for an indefinite term for control, care, or treatment pursuant to the Dangerous Prisoners (Sexual Offenders) Act 2003. This decision highlights the importance of correctly interpreting statutory provisions and appropriately considering psychiatric evidence in sentencing decisions for dangerous sexual offenders.

Orders

Orders of the court

1. Appeal allowed.

2. The order made 25 October 2011 be set aside.

3. The respondent be detained in custody for an indefinite term for control, care or treatment pursuant to the Dangerous Prisoners (Sexual Offenders) Act 2003.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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