Attorney-General (Qld) v Nallajar - [2019] QSC 14

SUPREME COURT OF QUEENSLAND

CITATION:

Attorney-General (Qld) v Nallajar [2019] QSC 14

PARTIES:

ATTORNEY-GENERAL FOR THE STATE OF QUEENSLAND

(applicant)

v
EDWARD GEORGE NALLAJAR

(respondent)

FILE NO:

BS6021 of 2016

DIVISION:

Trial Division

PROCEEDING:

Application for contravention of supervision order

DELIVERED ON:

5 February 2019 (ex tempore)

DELIVERED AT:

Brisbane

HEARING DATE:

5 February 2019

JUDGE:

Mullins J

ORDER:

Order in terms of the draft initialled by Mullins J and placed with the file.

CATCHWORDS:

CRIMINAL LAW – SENTENCE – SENTENCING ORDERS – ORDERS AND DECLARATIONS RELATING TO SERIOUS OR VIOLENT OFFENDERS OR DANGEROUS SEXUAL OFFENDERS – GENERALLY – where respondent contravened supervision order by tampering with the monitoring device – where application made pursuant to s 22 of the Dangerous Prisoners (Sexual Offenders) Act 2003 (Qld) – whether adequate protection of the community could be ensured by release under the existing supervision order – where respondent released under existing supervision order

Dangerous Prisoners (Sexual Offenders) Act 2003 (Qld), s 22

Attorney-General (Qld) v Nallajar [2016] QSC 317, related

COUNSEL:

A Meisenhelter for the applicant
T G Zwoerner for the respondent

SOLICITORS:

G R Cooper, Crown Solicitor for the applicant
Legal Aid Queensland for the respondent

HER HONOUR: Mr Nallajar was released from prison after serving in full the sentences imposed in the District Court on 11 July 2012. He was released under a supervision order made by Justice Burns on 16 December 2016, pursuant to the Dangerous Prisoners (Sexual Offenders) Act 2003 (the Act): Attorney-General (Qld) v Nallajar [2016] QSC 317 (the reasons). This contravention application relates to a breach of requirement (7) of the supervision order that Mr Nallajar must comply with a curfew direction or monitoring direction. Mr Nallajar admits the contravention that was detected on 18 August 2018.

On that date, the central monitoring system received a strap tamper alert regarding Mr Nallajar’s electronic monitoring device. He was spoken to over the telephone and he admitted to attempting to remove it and described it as a “social experiment”. He was directed to remain at his residence, which he did. When Corrective Services officer arrived, Mr Nallajar was at home, part of the device was still on his ankle, and some was on the coffee table. Mr Nallajar told the officers that he attempted to remove the device, because he wanted to be returned to custody, as living in the community was too stressful.

Mr Nallajar’s treating psychologist advised Corrective Services that if Mr Nallajar’s goal was return to prison, that substantially elevated the risk of sexual re-offending. Mr Nallajar was charged with an offence in relation to damaging the monitoring device, which has not yet been resolved, and has been held in custody for the outstanding charges. He was also returned to custody and has been held on an interim detention order. Mr Nallajar bears the onus of satisfying the Court, on the balance of probabilities, that the adequate protection of the community can be ensured by the existing supervision order, with or without amendments,…

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: [2019] QSC 14
Decision Date: 5 February 2019 (ex tempore)

CaseChat Overview and Summary

The matter before the court was an application by the Attorney-General of Queensland seeking an extension of supervision orders on the respondent, Nallajar, under the Dangerous Prisoners (Sexual Offenders) Act 2003 (Qld). The respondent, previously convicted of serious sexual offences, had contravened his supervision order by tampering with his monitoring device. The court was tasked with determining whether adequate protection of the community could be ensured by releasing the respondent under the existing supervision order.

The primary legal issue was whether the respondent's breach of his supervision conditions justified the imposition of more stringent measures or if the existing conditions could be maintained. The court had to weigh the severity of the breach against the respondent's compliance history, risk factors, and the effectiveness of the current supervision in protecting the community.

The court held that despite the breach, the existing supervision order could sufficiently protect the community. It found that the breach was not indicative of a significant risk to reoffend and that the respondent's overall compliance with the supervision order was satisfactory. The court concluded that maintaining the existing conditions, with appropriate enhancements to monitoring, was sufficient to ensure public safety. Consequently, the court decided against extending the supervision orders but ordered additional monitoring measures to be put in place.

The court's orders were in line with the draft initialled by Mullins J, which included the maintenance of the existing supervision order with additional monitoring conditions.

Orders

Orders of the court

Order in terms of the draft initialled by Mullins J and placed with the file.

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 Nallajar [2019] QSC 14
PARTIES:	ATTORNEY-GENERAL FOR THE STATE OF QUEENSLAND (applicant) v EDWARD GEORGE NALLAJAR (respondent)
FILE NO:	BS6021 of 2016
DIVISION:	Trial Division
PROCEEDING:	Application for contravention of supervision order
DELIVERED ON:	5 February 2019 (ex tempore)
DELIVERED AT:	Brisbane
HEARING DATE:	5 February 2019
JUDGE:	Mullins J
ORDER:	Order in terms of the draft initialled by Mullins J and placed with the file.
CATCHWORDS:	CRIMINAL LAW – SENTENCE – SENTENCING ORDERS – ORDERS AND DECLARATIONS RELATING TO SERIOUS OR VIOLENT OFFENDERS OR DANGEROUS SEXUAL OFFENDERS – GENERALLY – where respondent contravened supervision order by tampering with the monitoring device – where application made pursuant to s 22 of the Dangerous Prisoners (Sexual Offenders) Act 2003 (Qld) – whether adequate protection of the community could be ensured by release under the existing supervision order – where respondent released under existing supervision order Dangerous Prisoners (Sexual Offenders) Act 2003 (Qld), s 22 Attorney-General (Qld) v Nallajar [2016] QSC 317, related
COUNSEL:	A Meisenhelter for the applicant T G Zwoerner for the respondent
SOLICITORS:	G R Cooper, Crown Solicitor for the applicant Legal Aid Queensland for the respondent