SUPREME COURT OF QUEENSLAND
CITATION:
Attorney-General (Qld) v Jackway [2020] QSC 377
PARTIES:
ATTORNEY-GENERAL FOR THE STATE OF QUEENSLAND
(applicant)
v
DOUGLAS BRIAN JACKWAY
(respondent)
FILE NO/S:
BS 7422 of 2011
DIVISION:
Trial Division
PROCEEDING:
Application
ORIGINATING COURT:
Supreme Court at Brisbane
DELIVERED ON:
15 December 2020
DELIVERED AT:
Brisbane
HEARING DATE:
26 October 2020
JUDGE:
Brown J
ORDER:
The Court affirms the decision of O’Brien AJ made on 28 February 2012 that the respondent, Douglas Brian Jackway is a serious danger to the community in the absence of an order pursuant to Division 3, Part 2 of the Dangerous Prisoners (Sexual Offenders) Act 2003 and orders that:
1. Pursuant to s 30(3)(b) of the Act, the respondent, Douglas Brian Jackway be released from custody and from that time be subject to the requirements contained in the draft Supervision Order for a period of 15 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 respondent is detained under a continuing detention order for 7 years under the Dangerous Prisoners (Sexual Offenders) Act 2003 (Qld) – where applicant applied for the order to be reaffirmed under s 30 of the Act – where respondent’s treating forensic psychologist opines respondent is demonstrating positive behaviour – where reporting psychiatrists both opined that if respondent were released on supervision order there would be moderate risk of reoffending – where potential for escalation to high risk of reoffending if respondent took illicit substances or experienced stressors – whether respondent serious danger to community in absence of Division 3 order – whether adequate protection of community can be reasonably and practically managed by supervision order – whether s 16 requirements can be reasonably and practically managed by corrective services officers
Dangerous Prisoners (Sexual Offenders) Act 2003 (Qld), s 16, s 27, s 29, s 30, s 33
Attorney-General (Qld) v Beattie [2007] QCA 96, considered
Attorney-General (Qld) v DBJ[2017] QSC 302, considered
Attorney-General (Qld) v Fardon [2011] QCA 111, considered
Attorney-General (Qld) v Francis [2007] 1 Qd R 396; [2006] QCA 324, considered
Attorney-General (Qld) v Jackway[2015] QSC 26, cited
Attorney-General (Qld) v Jackway [2016] QSC 74, cited
Attorney-General (Qld) v Jackway[2017] QSC 67, cited
Attorney-General (Qld) v Jackway[2018] QSC 137, cited
Attorney-General (Qld) v Jackway[2019] QSC 261, cited
Attorney-General (Qld) v Lawrence [2010] 1 Qd R 505; [2009] QCA 136, cited
Attorney-General (Qld) v S[2015] QSC 157, considered
COUNSEL:
J Rolls for the applicant
S Lewis with C Smith for the respondent
SOLICITORS:
Crown Law for the applicant
Legal Aid Queensland for the respondent
This is an application pursuant to s 27 of the Dangerous Prisoners (Sexual Offenders) Act 2003 (Qld) (the Act)[1] for review of the continuing detention of Douglas Brian Jackway, the respondent.[2] The applicant seeks to have a decision of…
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- AGLC
- Attorney-General (Qld) v Jackway [2020] QSC 377
- Case
- [2020] QSC 377
- Decision Date
CaseChat Overview and Summary
The central legal issues before the court were whether Jackway remained a serious danger to the community and if his risk could be adequately managed by a supervision order rather than continuing detention. The court had to consider psychiatric evaluations indicating that Jackway's risk of reoffending was moderate under a supervision order, although there was potential for escalation to high risk if he engaged in substance abuse or experienced stressors. The court also had to assess whether the Queensland Corrective Services could manage the conditions of a supervision order.
The court, after reviewing the psychiatric evidence and Jackway's behaviour both in custody and during previous reviews, concluded that Jackway remained a serious danger to the community and that his risk could be adequately managed by a supervision order. The court found that while Jackway had shown improvements in his behaviour and demonstrated some positive changes, the risk he posed, particularly in relation to substance abuse and stress, was still significant. The court accepted the opinion of the psychiatrists that a 15-year supervision order would be appropriate, considering Jackway's institutionalisation and the time needed for him to develop positive networks and reduce his risk of reoffending. The court also determined that the Queensland Corrective Services could manage the requirements of a supervision order.
In summary, the court affirmed that Jackway remained a serious danger to the community in the absence of a Division 3 Order under the Act. The court ordered that Jackway be released from custody and placed under a supervision order for a period of 15 years, allowing for adjustments in the conditions as his behaviour warranted.
Orders
Orders of the court
The Court affirms the decision of O’Brien AJ made on 28 February 2012 that the respondent, Douglas Brian Jackway is a serious danger to the community in the absence of an order pursuant to Division 3, Part 2 of the Dangerous Prisoners (Sexual Offenders) Act 2003 and orders that:
1. Pursuant to s 30(3)(b) of the Act, the respondent, Douglas Brian Jackway be released from custody and from that time be subject to the requirements contained in the draft Supervision Order for a period of 15 years.
Background
Background to the litigation
Full text does not contain this section.
Evidence
Evidence Before The Court
Decision
Reasons for decision
Ratio Decidendi
Legal Principle Established
According to what Mr Jackway has told the psychiatrists he has regular telephone contact with his mother and brother, albeit they live interstate. Mr Jackway also has a sister on the Sunshine Coast. Although limited, it is evidence of some family support he can access upon his release.ConsiderationIs the respondent a serious danger to the community in the absence of a Division 3 Order? The first question is whether the respondent is a serious danger to the community in the absence of a Division 3 Order under the Act. As set out above, the respondent concedes that the evidence supports a finding that he is a serious danger to the community in the absence of a Division 3 order and that the order of O’Brien AJ in that regard should be affirmed. Given the evidence before me, particularly the psychiatric evidence and the psychiatrists’ assessment of Mr Jackway’s unmodified risk, which I accept, that concession is a properly made. I am satisfied to a high degree of probability that there is acceptable cogent evidence that has been presented to me, that is of sufficient weight to conclude that the respondent continues to be a serious danger to the community in the absence of a Division 3 Order under the Act. I have reached that conclusion having regard to the matters which I am required to consider under the Act, a number of which are addressed in the psychiatric opinions and Dr Madsen’s evidence. I am therefore satisfied that the court should affirm the decision of O’Brien AJ that the respondent is a serious danger to the community in the absence of a Division 3 Order. Should the respondent be released on a supervision order? The Attorney-General submits that Mr Jackway should be the subject of a continuing detention order in the exercise of the Court’s discretion pursuant to s 30(3) of the Act. The applicant carries the onus to persuade the Court in that regard.[54] As provided under s30(4) of the Act, the paramount consideration is the need to ensure adequate protection of the community. The court must consider whether the adequate protection of the community can reasonably and practicably be managed by a supervision order and whether the requirements of s 16 of the Act can be reasonably and practicably managed by QCS. There is no evidence suggesting that QCS cannot reasonably and practicably manage the requirements under s 16 of the Act in this instance. [54]Attorney-General (Qld) v Lawrence [2009] QCA 136; Attorney-General (Qld) v Francis [2007] 1 Qd R 396. In previous reviews one of the key issues has been whether Mr Jackway was able to exercise a sufficient level of control in response to various stresses, notwithstanding his antisocial personality, other personality traits and diagnosed conditions. As is evident from the above decisions, each year has seen Mr Jackway’s behaviour improving with signs of maturation, although he still engaged in self-sabotaging behaviour in 2018 and 2019. Psychiatric opinion has previously been that a minimum of 12 months of good and controlled behaviour is required in order for Mr Jackway to demonstrate sufficient control for a person with the respondent’s psychiatric condition to be the subject of a supervision order.[55] Mr Jackway had committed numerous breaches in custody demonstrating a lack of control with impulsive behaviour and violent, aggressive outbursts. His aggressive behaviours were often linked to when he was feeling agitated and frustrated when he could not get his own way. He was observed to have a low threshold in that regard. The breaches have however progressively reduced throughout the period he has been the subject of a continuing detention order and he has demonstrated significant improvement in the regulation of his behaviour.[55]Attorney-General (Qld) v Jackway [2017] QSC 67.