Attorney-General (Qld) v Brown - [2020] QSC 57

SUPREME COURT OF QUEENSLAND

CITATION:

Attorney-General (Qld) v Brown [2020] QSC 57

PARTIES:

ATTORNEY-GENERAL FOR THE STATE OF QUEENSLAND

(applicant)

v
TROY JIMMY CHARLES BROWN

(respondent)

FILE NO/S:

BS No 422 of 2009

DIVISION:

Trial Division

PROCEEDING:

Application

ORIGINATING COURT:

Supreme Court of Queensland

DELIVERED ON:

1 April 2020

DELIVERED AT:

Brisbane

HEARING DATE:

2 March 2020

JUDGE:

Burns J

ORDER:

Being satisfied that the respondent, Troy Jimmy Charles Brown, has contravened a requirement of a supervision order made by this court on 28 April 2014, the order of the court is that:

1. The supervision order made on 28 April 2014 is rescinded; and

2. The respondent is detained in custody for an indefinite term for control, care or treatment.

CATCHWORDS:

CRIMINAL LAW – SENTENCE – SENTENCING ORDERS – ORDERS AND DECLARATIONS RELATING TO SERIOUS OR VIOLENT OFFENDERS OR DANGEROUS SEXUAL OFFENDERS – DANGEROUS SEXUAL OFFENDER – GENERALLY – where a supervision order was made with respect to the respondent under Division 3 of Part 2 of the Dangerous Prisoners (Sexual Offenders) Act 2003 (Qld) – where it was alleged that the respondent contravened a requirement of the supervision order – where a warrant was issued for the arrest of the respondent pursuant to the Act and the respondent was detained in custody – where the applicant sought orders with respect to the respondent under s 22 of the Act – where the contravention was admitted by the respondent – where the respondent had previously contravened the supervision order but not committed any further serious sexual offences – whether the adequate protection of the community could, despite the contravention of the order, be ensured by the existing supervision order

Dangerous Prisoners (Sexual Offenders) Act2003 (Qld), s 13, s 16, s 22

Attorney-General for the State of Queensland v Brown [2014] QSC 84, cited

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

Attorney-General for the State of Queensland v Sutherland [2006] QSC 268, cited

Attorney-General for the State of Queensland v Waghorn [2006] QSC 171, cited

Attorney-General for the State of Queensland v WW [2007] QCA 334, cited

Kynuna v Attorney-General for the State of Queensland [2016] QCA 172, cited

COUNSEL:

J Rolls for the applicant

C Reid for the respondent

SOLICITORS:

Crown Solicitor for the applicant

Legal Aid (Qld) for the respondent

This is a contravention hearing pursuant to s 22 of the Dangerous Prisoners (Sexual Offenders) Act2003 (Qld).
On 28 April 2014, Lyons SJA ordered that the respondent be released from custody subject to a supervision order made under s 13(5)(b) of the Act.[1] One of the requirements of that order obliged the respondent to abstain from the consumption of illicit drugs for the duration of the order. The applicant alleges that this requirement was contravened on more than one occasion in May, June and July 2019. If the court is satisfied of that on the balance of probabilities then, unless the respondent satisfies the court,…

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.

Continue reading Attorney-General (Qld) v Brown

Details

AGLC: Attorney-General (Qld) v Brown [2020] QSC 57
Case: [2020] QSC 57
Decision Date: 1 April 2020

CaseChat Overview and Summary

The case of Attorney-General (Qld) v Brown involved the respondent, who had a history of serious sexual offences, contravening the terms of his supervision order. The supervision order was made pursuant to the Dangerous Prisoners (Sexual Offenders) Act 2003 (Qld) and required the respondent to abstain from the consumption of illicit drugs and to submit to drug testing. The Attorney-General sought orders under s 22 of the Act, contending that the adequate protection of the community could not be ensured by the existing supervision order despite the contravention. The respondent conceded the contravention but argued that the existing supervision order could ensure adequate community protection.

The central legal issue before the court was whether the adequate protection of the community could be ensured by the existing supervision order despite the respondent's contravention. The court had to weigh the respondent's history of serious sexual offences, his failure to comply with the supervision order, and his potential risk to the community against the effectiveness of the existing supervision order in managing that risk. The court's decision hinged on whether the contravention was so significant that it rendered the supervision order ineffective in protecting the community, or whether the order could still be effective despite the breach.

The court found that the adequate protection of the community could not be ensured by the existing supervision order, despite the contravention. The respondent's history of serious sexual offences, his failure to comply with the supervision order, and his potential risk to the community were significant factors. The court was not satisfied that the existing supervision order could effectively manage the risk posed by the respondent. Consequently, the supervision order was rescinded, and the respondent was detained in custody for an indefinite term for control, care, or treatment. This decision underscored the seriousness of the respondent's history and the need for stringent measures to protect the community.

Orders

Orders of the court

Being satisfied that the respondent, Troy Jimmy Charles Brown, has contravened a requirement of a supervision order made by this court on 28 April 2014, the order of the court is that:

1. The supervision order made on 28 April 2014 is rescinded; and

2. The respondent is detained in custody for an indefinite term for control, care or treatment.

Background

Background to the litigation

On the hearing of the application, it was conceded on behalf of the respondent that he contravened his supervision order as alleged but the submission was made that the court ought be satisfied that the adequate protection of the community can, despite those contraventions, be ensured by his return to supervision on the terms of the existing order, or on such further or other terms that the court considers appropriate. On the other hand, counsel for the applicant submitted that the court could not be satisfied on the whole of the evidence that the respondent has discharged the onus on him and, as such, the supervision order ought to be rescinded and a continuing detention order made in its place.Background The respondent is 39 years of age. He has an extensive criminal history stretching back to September 1994 when he was still a teenager. His sexual offending commenced in July 1995 when he committed an indecent assault and then, 10 days later, gained entry to a room in a retirement village in Cairns and raped an 86 year old woman. This was shortly before his fifteenth birthday. He was detained for a period of five years. After his release, and in between bouts of other, street-level offending, he was again convicted on 1 November 1999 of indecent assault and sentenced to another period of detention, this time, for six months. On 6 February 2003, the respondent was convicted in the District Court at Cairns of rape and robbery with actual violence. These offences were committed on 27 June 2002. The victim was a 26 year old female who had left a Cairns nightclub in the early hours of the morning. She entered a public toilet cubicle and closed the door. The respondent forced his way in, pushed her against the wall, punched her, and digitally penetrated her vagina. He was under the influence of alcohol, cannabis and amphetamines. The respondent received an effective head sentence of seven years imprisonment and a serious violent offence declaration was made with respect to both offences. It was these offences which ultimately led to an order being made under Division 3 of Part 2 of the Act. In that regard, on 16 June 2009, Martin J ordered that the respondent be detained in custody for an indefinite term for care, control or treatment. When making that order, his Honour observed that “the respondent’s problems may have developed in part from serious dependence problems he had with respect to alcohol, cannabis and petrol”. On 22 June 2011, Daubney J affirmed that order and, on 12 November 2012, Henry J did the same. Both judges referred to the respondent’s problems with alcohol and drugs and their causal relationship to his offending. Then, as earlier mentioned, on 28 April 2014, Lyons SJA ordered that the respondent be released from custody subject to a supervision order for a period of 10 years. Condition 22 of that order required the respondent to abstain from the consumption of illicit drugs, and condition 24 required him to, relevantly, submit to drug testing. When making that order, her Honour stated:“On this review there are very real concerns in relation to the respondent’s motivation to be involved in his ongoing rehabilitation, and the rehabilitation courses are important and clearly go to addressing the risk factors. It is clear that the minimisation of those risk factors lies in Mr Brown’s hands. It is important that Mr Brown understands that he must not take any substances or use any alcohol and that the concern about his relapse is in relation to the resumption of his use of substances and alcohol. It is clear that if those factors can be addressed then the risk to the community can be managed to an appropriate degree.”[2][2]Ibid, [18].

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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CITATION:	Attorney-General (Qld) v Brown [2020] QSC 57
PARTIES:	ATTORNEY-GENERAL FOR THE STATE OF QUEENSLAND (applicant) v TROY JIMMY CHARLES BROWN (respondent)
FILE NO/S:	BS No 422 of 2009
DIVISION:	Trial Division
PROCEEDING:	Application
ORIGINATING COURT:	Supreme Court of Queensland
DELIVERED ON:	1 April 2020
DELIVERED AT:	Brisbane
HEARING DATE:	2 March 2020
JUDGE:	Burns J
ORDER:	Being satisfied that the respondent, Troy Jimmy Charles Brown, has contravened a requirement of a supervision order made by this court on 28 April 2014, the order of the court is that: 1. The supervision order made on 28 April 2014 is rescinded; and 2. The respondent is detained in custody for an indefinite term for control, care or treatment.
CATCHWORDS:	CRIMINAL LAW – SENTENCE – SENTENCING ORDERS – ORDERS AND DECLARATIONS RELATING TO SERIOUS OR VIOLENT OFFENDERS OR DANGEROUS SEXUAL OFFENDERS – DANGEROUS SEXUAL OFFENDER – GENERALLY – where a supervision order was made with respect to the respondent under Division 3 of Part 2 of the Dangerous Prisoners (Sexual Offenders) Act 2003 (Qld) – where it was alleged that the respondent contravened a requirement of the supervision order – where a warrant was issued for the arrest of the respondent pursuant to the Act and the respondent was detained in custody – where the applicant sought orders with respect to the respondent under s 22 of the Act – where the contravention was admitted by the respondent – where the respondent had previously contravened the supervision order but not committed any further serious sexual offences – whether the adequate protection of the community could, despite the contravention of the order, be ensured by the existing supervision order Dangerous Prisoners (Sexual Offenders) Act2003 (Qld), s 13, s 16, s 22 Attorney-General for the State of Queensland v Brown [2014] QSC 84, cited Attorney-General for the State of Queensland v Ellis [2012] QCA 182, cited Attorney-General for the State of Queensland v Sutherland [2006] QSC 268, cited Attorney-General for the State of Queensland v Waghorn [2006] QSC 171, cited Attorney-General for the State of Queensland v WW [2007] QCA 334, cited Kynuna v Attorney-General for the State of Queensland [2016] QCA 172, cited
COUNSEL:	J Rolls for the applicant C Reid for the respondent
SOLICITORS:	Crown Solicitor for the applicant Legal Aid (Qld) for the respondent