Attorney-General (Qld) v GBE - [2024] QCA 6

SUPREME COURT OF QUEENSLAND

CITATION:

Attorney-General (Qld) v GBE [2024] QCA 6

PARTIES:

ATTORNEY-GENERAL FOR THE STATE OF QUEENSLAND
(appellant)
v
GBE
(respondent)

FILE NO/S:

Appeal No 10894 of 2022
SC No 6114 of 2020

DIVISION:

Court of Appeal

PROCEEDING:

General Civil Appeal

ORIGINATING COURT:

Supreme Court at Brisbane – (2022) 11 QR 462 (Hindman J)

DELIVERED ON:

2 February 2024

DELIVERED AT:

Brisbane

HEARING DATE:

17 October 2023

JUDGES:

Mullins P, Bond JA and Martin SJA

ORDERS:

1.   Appeal allowed.

2.   Set aside orders 1 and 2 made by the primary judge on 11 August 2022.

3.   Remit the originating application filed on 8 June 2020 to the Trial Division for rehearing.

CATCHWORDS:

CRIMINAL LAW – SENTENCE – SENTENCING ORDERS – ORDERS – ORDERS AND DECLARATIONS RELATING TO SERIOUS OR VIOLENT OFFENDERS OR DANGEROUS SEXUAL OFFENDERS – GENERALLY – where the primary judge made a supervision order against the respondent under division 3 of part 2 of the Dangerous Prisoners (Sexual Offenders) Act 2003 (Qld) (Act) for a period of five years to take effect on the day of the respondent’s release on parole – where the application of the division 3 order was heard after the respondent had been fully discharged from the period of imprisonment that included the sentence for a serious sexual assault but while the respondent was subject to another period of imprisonment for general offences – where the primary judge held that the definition of “release day” in schedule 1 to the Act did not apply to s 15(a) of the Act – where using the definition of “release day” would have the effect of the supervision order commencing the day after the end of the respondent’s period of imprisonment for the general offences – where the primary judge construed “release day” in s 15 of the Act on its ordinary meaning as the day the respondent is released on parole – whether context required “release day” in s 15(a) of the Act not to be given its defined meaning in schedule 1 to the Act

Acts Interpretation Act 1954 (Qld), s 32A
Corrective Services Act 2006 (Qld), s 200, s 211, s 215
Dangerous Prisoners (Sexual Offenders) Act 2003 (Qld), s 3, s 5, s 8, s 13, s 13A, s 14, s 15, s 22, s 23, s 24, s 43, s 51
Penalties and Sentences Act 1992 (Qld), s 4

Attorney-General (Qld) v Kanaveilomani [2015] 2 Qd R 509; [2013] QCA 404, considered
Attorney-General for Queensland v CCJ (2019) 2 QR 543; [2019] QSC 267, cited
Attorney-General for the State of Queensland v A (2020) 4 QR 668; [2020] QSC 178, related
Attorney-General for the State of Queensland v A [2020] QSC 279, related
Fardon v Attorney-General (Qld) (2004) 223 CLR 575; [2004] HCA 46, cited
R v A2 (2019) 269 CLR 507; [2019] HCA 35, considered

COUNSEL:

G J Del Villar KC SG, with J B Rolls, for the appellant

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 GBE

Details

AGLC: Attorney-General (Qld) v GBE [2024] QCA 6
Case: [2024] QCA 6
Decision Date: 2 February 2024

CaseChat Overview and Summary

In the case of Attorney-General (Qld) v GBE, the central issue involved the interpretation of the term "release day" under the Dangerous Prisoners (Sexual Offenders) Act 2003 (Qld) and the applicability of a supervision order made against the respondent. The respondent had been sentenced for several offences, including a serious sexual assault, and was subject to a supervision order under the Act. The appeal was against the declaration made by the primary judge regarding the supervision order and the exercise of the discretion to make such an order. The appellant argued that the primary judge had erred in not applying the defined meaning of "release day" in the schedule of the Act to section 15(a) of the Act, which would have resulted in the supervision order starting the day after the respondent's release from prison for general offences.

The legal issues before the court were whether the primary judge was correct in not applying the defined meaning of "release day" to section 15(a) and whether the primary judge's discretion in making the supervision order was properly exercised. The court had to consider the ordinary meaning of "release day" in section 15 of the Act and whether the context required the term to be interpreted differently from its defined meaning in the schedule. The court also had to evaluate the appropriateness of the supervision order in light of the respondent's criminal history and the potential risks he posed to the community.

The court found that the primary judge had indeed erred in not applying the defined meaning of "release day" to section 15(a) of the Act. The ordinary meaning of "release day" as the day of release on parole was upheld, but the court noted that this did not necessarily preclude the defined meaning from being considered in other contexts. The court also concluded that the primary judge had exercised the discretion to make a supervision order appropriately, taking into account the respondent's criminal history and the need to protect the community. However, the court allowed the appeal and set aside the orders made by the primary judge, remitting the originating application to the Trial Division for rehearing.

The final orders of the court were to allow the appeal, set aside the orders made by the primary judge, and remit the originating application filed on 8 June 2020 to the Trial Division for rehearing. The court's decision highlighted the importance of correctly interpreting statutory terms and exercising judicial discretion with careful consideration of the facts and the law.

Orders

Orders of the court

1. Appeal allowed.

2. Set aside orders 1 and 2 made by the primary judge on 11 August 2022.

3. Remit the originating application filed on 8 June 2020 to the Trial Division for rehearing.

Background

Background to the litigation

The appellant appeals against the declaration made pursuant to s 15(a) of the Act on the ground that the primary judge erred in holding that the definition of “release day” contained in schedule 1 to the Act did not apply to s 15(a) of the Act. The appellant also appeals against the primary judge’s exercise of the discretion to make a supervision order.Relevant facts The respondent was born in March 2000. On 7 November 2016, he was sentenced in the Children’s Court of Queensland for several offences, including to a period of detention of four years for rape (which was a serious sexual assault for the purpose of the Act). Whilst in custody, he was convicted of various offences including riot and sexual assault and was sentenced to a further period of detention of three years. (That sexual assault was not a serious sexual offence for the purpose of the Act. Before the primary judge the parties referred to the rape as the “index offence” and that terminology will also be used in these reasons.) On 12 April 2018, the respondent was transferred from youth detention to a correctional centre. He was released on parole in December 2018 but returned to custody a few days later and his parole was cancelled on 5 September 2019. The respondent’s custodial end date in respect of the offence that enabled the application for division 3 orders under the Act to be filed on 8 June 2020 was 16 June 2020. On 16 June 2020, orders were made releasing the respondent from custody subject to an interim supervision order until 28 August 2020: see Attorney-General for the State of Queensland v A (2020) 4 QR 668 (Attorney-General v A [No 1]). In that decision, Davis J determined (at [64]) that the respondent was a prisoner for the purpose of s 5 of the Act. The respondent failed an alcohol test and on 19 August 2020 a warrant under s 20 of the Act was obtained and subsequently executed. On 21 August 2020, the respondent was ordered to be detained pending resolution of the contravention application filed on that date pursuant to s 22 of the Act. On 4 September 2020 the Court ordered that the respondent be released from custody subject to the requirements of the interim supervision order to which he had been previously subject: see Attorney-General for the State of Queensland v A [2020] QSC 279. The respondent did not comply with that order in that he failed an alcohol test and removed his electronic monitoring device on 28 October 2020. He also committed numerous non-sexual offences. On 29 October 2020 he was again arrested pursuant to a warrant under s 20 of the Act. By order made on 29 October 2020, he was detained in custody pending a final decision of the Court under s 22 of the Act. The related contravention application was filed on 6 November 2020. On 29 September 2021 the respondent pleaded guilty to the offences of wilful damage, robbery armed in company, unlawful use of a motor vehicle and dangerous operation of a motor vehicle that were all committed on 28 October 2020. He also pleaded guilty to several summary offences. He was sentenced to imprisonment that ends on 23 April 2025 (the general offending sentences). He has a parole eligibility date of 22 April 2022 but up until the date of the hearing before the primary judge no application for parole had been made as s 51 of the Act precluded such an application whilst he was the subject of the interim detention order.Relevant statutory provisions

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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CITATION:	Attorney-General (Qld) v GBE [2024] QCA 6
PARTIES:	ATTORNEY-GENERAL FOR THE STATE OF QUEENSLAND (appellant) v GBE (respondent)
FILE NO/S:	Appeal No 10894 of 2022 SC No 6114 of 2020
DIVISION:	Court of Appeal
PROCEEDING:	General Civil Appeal
ORIGINATING COURT:	Supreme Court at Brisbane – (2022) 11 QR 462 (Hindman J)
DELIVERED ON:	2 February 2024
DELIVERED AT:	Brisbane
HEARING DATE:	17 October 2023
JUDGES:	Mullins P, Bond JA and Martin SJA
ORDERS:	1. Appeal allowed. 2. Set aside orders 1 and 2 made by the primary judge on 11 August 2022. 3. Remit the originating application filed on 8 June 2020 to the Trial Division for rehearing.
CATCHWORDS:	CRIMINAL LAW – SENTENCE – SENTENCING ORDERS – ORDERS – ORDERS AND DECLARATIONS RELATING TO SERIOUS OR VIOLENT OFFENDERS OR DANGEROUS SEXUAL OFFENDERS – GENERALLY – where the primary judge made a supervision order against the respondent under division 3 of part 2 of the Dangerous Prisoners (Sexual Offenders) Act 2003 (Qld) (Act) for a period of five years to take effect on the day of the respondent’s release on parole – where the application of the division 3 order was heard after the respondent had been fully discharged from the period of imprisonment that included the sentence for a serious sexual assault but while the respondent was subject to another period of imprisonment for general offences – where the primary judge held that the definition of “release day” in schedule 1 to the Act did not apply to s 15(a) of the Act – where using the definition of “release day” would have the effect of the supervision order commencing the day after the end of the respondent’s period of imprisonment for the general offences – where the primary judge construed “release day” in s 15 of the Act on its ordinary meaning as the day the respondent is released on parole – whether context required “release day” in s 15(a) of the Act not to be given its defined meaning in schedule 1 to the Act Acts Interpretation Act 1954 (Qld), s 32A Corrective Services Act 2006 (Qld), s 200, s 211, s 215 Dangerous Prisoners (Sexual Offenders) Act 2003 (Qld), s 3, s 5, s 8, s 13, s 13A, s 14, s 15, s 22, s 23, s 24, s 43, s 51 Penalties and Sentences Act 1992 (Qld), s 4 Attorney-General (Qld) v Kanaveilomani [2015] 2 Qd R 509; [2013] QCA 404, considered Attorney-General for Queensland v CCJ (2019) 2 QR 543; [2019] QSC 267, cited Attorney-General for the State of Queensland v A (2020) 4 QR 668; [2020] QSC 178, related Attorney-General for the State of Queensland v A [2020] QSC 279, related Fardon v Attorney-General (Qld) (2004) 223 CLR 575; [2004] HCA 46, cited R v A2 (2019) 269 CLR 507; [2019] HCA 35, considered
COUNSEL:	G J Del Villar KC SG, with J B Rolls, for the appellant