SUPREME COURT OF QUEENSLAND
CITATION: | Attorney-General (Qld) v Musso [2018] QSC 191 |
PARTIES: | ATTORNEY-GENERAL FOR THE STATE OF QUEENSLAND v FILIPPO JAMES MUSSO (respondent) |
FILE NO: | BS 2583 of 2018 |
DIVISION: | Trial Division |
PROCEEDING: | Application |
DELIVERED ON: | 24 August 2018 |
DELIVERED AT: | Brisbane |
HEARING DATE: | 2 and 6 July and 6 August 2018 |
JUDGE: | Davis J |
ORDER: | Pursuant to s 13(5)(a) of the Dangerous Prisoners (Sexual Offenders) Act 2003 (Qld), the respondent be 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 the respondent was subject to examination by psychiatrists for the purposes of the application – where the evidence of those psychiatrists was subject to objection – whether the evidence should be admitted – whether the applicant presents a serious danger to the community in the absence of an order under Division 3 of Part 1 of the Dangerous Prisoners (Sexual Offenders) Act 2003 (Qld) – whether such an order should be made Dangerous Prisoners (Sexual Offenders) Act 2003 (Qld) s 3, s 5, s 8, s 9, s 9A, s 11, s 12, s 13 Attorney-General v Francis [2007] 1 Qd R 396, cited Tilbrook v Attorney-General for the State of Queensland [2012] QCA 279, cited |
COUNSEL: | J Tate for the applicant S Robb for the respondent |
SOLICITORS: | Crown Solicitor for the applicant A W Bale for the respondent |
The respondent is presently in custody held under an interim detention order made under s 9A of the Dangerous Prisoners (Sexual Offenders) Act 2003 (DPSOA). The Attorney-General has applied for orders against the respondent under s 13 of the DPSOA. That application is resisted by the respondent.
Objection was taken to the admissibility of the expert opinion evidence of the psychiatrists who were called in support of the Attorney-General’s application. On
6 August 2018 I ruled that the evidence was admissible and that I would deliver reasons on that issue when I gave judgment on the Attorney-General’s application. These reasons deal with both the objection to evidence and the application.Statutory scheme
Section…
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- Case
- [2018] QSC 191
- Decision Date
CaseChat Overview and Summary
The court considered whether the evidence of psychiatrists examining Musso should be admitted. The respondent objected to this evidence, but the court found that the evidence was relevant and necessary for the Attorney-General to rely upon in making an application under s 13 of the Act. The court also examined whether the provisions of the Act, particularly sections 8, 11, and 12, were correctly applied in this instance. Section 8 allows for orders that a prisoner undergo psychiatric examination, and sections 11 and 12 detail the preparation and disclosure of psychiatric reports. The court found that the process was correctly followed and the evidence was admissible.
Musso's history of criminal behaviour, including charges of assault, public nuisance, theft, and attempted robbery, was reviewed. The court determined that his criminal conduct demonstrated a significant risk of reoffending, particularly in the absence of a supervision order. Based on the psychiatric evidence and the statutory criteria, the court concluded that Musso did indeed present a serious danger to the community.
In light of the findings, the court made the order sought by the Attorney-General. Musso was to be detained in custody for an indefinite term for control, care, or treatment. The court's decision was grounded in the statutory framework and the need to protect the community from a significant risk of serious sexual reoffending.
Orders
Orders of the court
Pursuant to s 13(5)(a) of the Dangerous Prisoners (Sexual Offenders) Act 2003 (Qld), the respondent be detained in custody for an indefinite term for control, care or treatment.
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
Orders which can be made under s 8 include orders that a prisoner undergo psychiatric examination. The evidence so obtained is then relied upon by the Attorney-General on the application brought under s 13. Relevant to examinations ordered under s 8, are ss 11 and 12 which are in these terms:“11 Preparation of psychiatric report(1) Each psychiatrist examining the prisoner must prepare a report under this section.(2) The report must indicate—(a)the psychiatrist’s assessment of the level of risk that the prisoner will commit another serious sexual offence—(i)if released from custody; or(ii)if released from custody without a supervision order being made; and(b)the reasons for the psychiatrist’s assessment.(3) For the purposes of preparing the report, the chief executive must give each psychiatrist any medical, psychiatric, prison or other relevant report or information in relation to the prisoner in the chief executive’s possession or to which the chief executive has, or may be given, access.(4) A person in possession of a report or information mentioned in subsection (3) must give a copy of the report or the information to the chief executive if asked by the chief executive.(5) Subsection (4) authorises and requires the person to give the report or information despite any other law to the contrary or any duty of confidentiality attaching to the report.(6) If a person required to give a report or information under subsection (4) refuses to give the report or information, the chief executive may apply to the court for an order requiring the person to give the report or information to the chief executive.(7) A person giving a report or information under subsection (4) or (6) is not liable, civilly, criminally or under an administrative process, for giving the report or information.(8) Each psychiatrist must have regard to each report or the information given to the psychiatrists under subsection (3).(9) Each psychiatrist must prepare a report even if the prisoner does not cooperate; or does not cooperate fully, in the examination.12Psychiatric reports to be given to the Attorney-General and the prisoner(1) Each psychiatrist must give a copy of the psychiatrist’s report to the Attorney-General within 7 days after finalising the report.(2) The Attorney-General must give a copy of each report to the prisoner on the next business day after the Attorney-General receives the report.” Section 16 deals with the contents of supervision orders but it is unnecessary to set that section out at this point.History The respondent was born on 16 October 1992 and is presently 25 years of age. He was placed in foster care in 2002 when he was about 10. His adult criminal history prior to the offences which explain his current incarceration is:(a)10 November 2010: The respondent was convicted in the Brisbane Magistrates Court on one count of common assault. No conviction was recorded and a community service order was made together with a compensation order.(b)7 January 2011: The respondent was convicted but not further punished in relation to six charges of committing a public nuisance.(c)6 February 2011: The respondent was fined $300 with respect to six charges of committing public nuisance and one charge of unauthorised dealing with shop goods.(d)14 July 2011: The respondent was fined $100 for breaching the community service order which was imposed on 10 November 2010.(e)19 April 2012: The respondent was convicted in the Southport District Court and sentenced to terms of imprisonment, the longest of which was two years. Those sentences concerned a charge of attempted robbery while armed and a charge of stealing. By the time the respondent was sentenced he had served 195 days in pre-sentence custody and was released on parole on the day he was sentenced.(f)16 April 2014: The respondent was fined $150 on a charge of unauthorised dealing with shop goods.