Attorney-General (Qld) v Kennedy - [2017] QSC 178

SUPREME COURT OF QUEENSLAND

CITATION:

Attorney-General (Qld) v Kennedy [2017] QSC 178

PARTIES:

ATTORNEY-GENERAL FOR THE STATE OF QUEENSLAND

(applicant)

v
DAMIEN PAUL KENNEDY

(respondent)

FILE NO/S:

BS No 9531 of 2016

DIVISION:

Trial Division

PROCEEDING:

Application

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED EX TEMPORE ON:

21 August 2017

DELIVERED AT:

Brisbane

HEARING DATE:

21 August 2017

JUDGE:

Burns J

ORDER:

The court, being satisfied to the requisite standard that the respondent, Damien Paul Kennedy, has contravened requirement 21 of the supervision order made on 5 December 2016, orders that:

1. The respondent, Damien Paul Kennedy, be released from custody and continue to be subject to the supervision order made on 5 December 2016;

2. The affidavit of the respondent, Damien Paul Kennedy, be placed in an envelope, sealed and not opened without an order of a Judge of this court.

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 had 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 – 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) Act 2003 (Qld), s 22(2)

Attorney-General for the State of Queensland v Kennedy [2016] QSC 287, cited

COUNSEL:

J Rolls for the applicant

J McInnes for the respondent

SOLICITORS:

G R Cooper Crown Solicitor for the applicant

Legal Aid Queensland for the respondent

HIS HONOUR: On 5 December 2016 I made an order pursuant to Division 3 of Part 2 of the Dangerous Prisoners (Sexual Offenders) Act 2003 (Qld) that the respondent, Damien Paul Kennedy, be released from custody on a supervision order. The order was for a period of five years: see Attorney-General (Qld) v Kennedy [2016] QSC 287. It was clear to me at the time I made that order that one of Mr Kennedy’s major problems was substance abuse. It would require close and careful management and the order was accordingly designed to contain conditions directed to that problem. At paragraph 49 of that judgment, I stated:

“Each of the psychiatrists supported release on supervision, and a supervision order will significantly reduce his risk of sexually violent reoffending. In particular, it will provide for a structured regime of supervision and monitoring to ensure that Mr Kennedy abstains from the abuse of illicit substances. This is critically important. It will also serve to monitor his relationships with others…

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.

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Details

Case: [2017] QSC 178
Decision Date: 21 August 2017

CaseChat Overview and Summary

The Attorney-General of Queensland sought orders against Damien Paul Kennedy, who was subject to a supervision order made under the Dangerous Prisoners (Sexual Offenders) Act 2003 (Qld). The Attorney-General alleged that Kennedy had contravened a requirement of his supervision order and sought to have him detained and subject to further orders. Kennedy admitted to the contravention and was detained, but the Attorney-General subsequently applied for orders under the Act, seeking that Kennedy be detained and that an affidavit he provided be sealed and not opened without a court order. The court had to determine whether, despite the contravention, the adequate protection of the community could be ensured by the existing supervision order.

The court examined whether the contravention was serious enough to warrant a departure from the existing supervision order. The court found that the contravention was not so serious as to undermine the effectiveness of the supervision order in ensuring the adequate protection of the community. The court considered the nature of the contravention and the overall circumstances of the case, including Kennedy’s compliance with other requirements of the supervision order and the risk he posed to the community. The court was satisfied that the existing supervision order could still ensure the adequate protection of the community, despite the contravention.

Accordingly, the court ordered that Kennedy be released from custody and continue to be subject to the supervision order made on 5 December 2016. The court also ordered that Kennedy’s affidavit be placed in an envelope, sealed and not opened without an order of a Judge of the court. The court’s decision reflects the need to balance the seriousness of the contravention with the overall effectiveness of the supervision order in ensuring the adequate protection of the community. The court found that the contravention did not warrant a departure from the existing supervision order, and that the adequate protection of the community could still be ensured by the supervision order.

Orders

Orders of the court

The court, being satisfied to the requisite standard that the respondent, Damien Paul Kennedy, has contravened requirement 21 of the supervision order made on 5 December 2016, orders that:

1. The respondent, Damien Paul Kennedy, be released from custody and continue to be subject to the supervision order made on 5 December 2016;

2. The affidavit of the respondent, Damien Paul Kennedy, be placed in an envelope, sealed and not opened without an order of a Judge of this court.

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

Full text does not contain this section.

CITATION:	Attorney-General (Qld) v Kennedy [2017] QSC 178
PARTIES:	ATTORNEY-GENERAL FOR THE STATE OF QUEENSLAND (applicant) v DAMIEN PAUL KENNEDY (respondent)
FILE NO/S:	BS No 9531 of 2016
DIVISION:	Trial Division
PROCEEDING:	Application
ORIGINATING COURT:	Supreme Court at Brisbane
DELIVERED EX TEMPORE ON:	21 August 2017
DELIVERED AT:	Brisbane
HEARING DATE:	21 August 2017
JUDGE:	Burns J
ORDER:	The court, being satisfied to the requisite standard that the respondent, Damien Paul Kennedy, has contravened requirement 21 of the supervision order made on 5 December 2016, orders that: 1. The respondent, Damien Paul Kennedy, be released from custody and continue to be subject to the supervision order made on 5 December 2016; 2. The affidavit of the respondent, Damien Paul Kennedy, be placed in an envelope, sealed and not opened without an order of a Judge of this court.
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 had 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 – 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) Act 2003 (Qld), s 22(2) Attorney-General for the State of Queensland v Kennedy [2016] QSC 287, cited
COUNSEL:	J Rolls for the applicant J McInnes for the respondent
SOLICITORS:	G R Cooper Crown Solicitor for the applicant Legal Aid Queensland for the respondent