Attorney-General (Qld) v Robinson - [2024] QCA 206

SUPREME COURT OF QUEENSLAND

CITATION:

Attorney-General (Qld) v Robinson [2024] QCA 206

PARTIES:

ATTORNEY-GENERAL FOR THE STATE OF QUEENSLAND
(appellant)
v
NIGEL PATRICK ROBINSON
(respondent)

FILE NO/S:

Appeal No 4918 of 2024
SC No 4096 of 2006

DIVISION:

Court of Appeal

PROCEEDING:

General Civil Appeal

ORIGINATING COURT:

Supreme Court at Brisbane – Unreported: 22 March 2024 (Hindman J)

DELIVERED ON:

1 November 2024

DELIVERED AT:

Brisbane

HEARING DATE:

20 September 2024

JUDGES:

Bond and Brown JJA and Henry J

ORDER:

The appeal is dismissed.

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 dealt with under s 22 of the Dangerous Prisoners (Sexual Offenders) Act 2003 (Qld) for breaches of a supervision order – where the primary judge released the respondent under a supervision order – where the primary judge declined to include requirement 21 proposed by the appellant, which required the respondent to abstain from using illicit drugs for the duration of the supervision order – whether the primary judge was in error by removing requirement 21 from the supervision order

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

Kynuna v Attorney-General for the State of Queensland[2016] QCA 172, cited

COUNSEL:

J M Horton KC, with B H P Mumford, for the appellant
S J Hamlyn-Harris for the respondent

SOLICITORS:

C E Christensen, Crown Solicitor for the appellant
Cridland Hua Lawyers for the respondent

BOND JA: I agree with the reasons for judgment of Brown JA and the order proposed by her Honour.
BROWN JA: This is an appeal from a decision made by Hindman J on 22 March 2024 to release Nigel Robinson, the respondent, under a supervision order made by Bond J on 15 June 2015 as amended[1] (the supervision order), following a contravention hearing pursuant to s 22 of Dangerous Prisoners (Sexual Offenders) Act 2003 (Qld) (DPSOA). There is no issue raised as to the respondent’s release under supervision. The only issue raised on this appeal is as to the terms of the supervision on which the respondent was released. The Attorney-General for the State of Queensland (the Attorney-General), the appellant, contends that her Honour was in error in amending the supervision order to remove requirement 21, which required the respondent to abstain from using illicit drugs for the duration of the supervision order.
[1]The supervision order was subsequently amended by Davis J on 18 September 2020 and then Boddice J (as his Honour then was) on 17 August 2022.
The hearing below
In the court below, the appellant sought orders under s 22 of the DPSOA in relation to a number of contraventions by the respondent of the supervision order, including:
(a)breaches of a curfew or monitoring direction, contrary to requirement 5;
(b)breaches of the requirement not to use illicit substances, contrary to requirement 21; and
(c)breaches of the requirement to submit…

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 Robinson

Details

AGLC: Attorney-General (Qld) v Robinson [2024] QCA 206
Case: [2024] QCA 206
Decision Date: 1 November 2024

CaseChat Overview and Summary

The case of Attorney-General (Qld) v Robinson involves the Attorney-General appealing a decision of the Primary Judge to release Robinson under a supervision order, while removing a requirement that Robinson abstain from using illicit drugs for the duration of the supervision order. The case was heard by Justice Hindman in the Queensland Court of Appeal. The appeal hinged on whether the Primary Judge was in error by removing the requirement to abstain from using illicit drugs from the supervision order.

The legal issues the court was required to decide were whether the Primary Judge erred in removing the requirement for Robinson to abstain from using illicit drugs from the supervision order, and whether this decision was in line with the objectives of the supervision order under the Dangerous Prisoners (Sexual Offenders) Act 2003 (Qld). The court had to consider the evidence presented by the expert witnesses, Dr Sundin and Dr Harden, and how this evidence impacted the decision to remove the requirement for Robinson to abstain from using illicit drugs.

Justice Hindman reviewed all the material in relation to the history of the matter and considered how Robinson had reacted to the supervision imposed under the order. Her Honour accepted the evidence of Dr Sundin and Dr Harden, and found their evidence to be helpful, particularly that of Dr Sundin. The court considered the fact that the supervision order was coming to its end and that the time remaining was not sufficient for Robinson to be re-integrated into the community in a pro-social manner and demonstrate an ability to comply with the supervision order. The court found that two years of compliance with easing of restrictions, good compliance and no reoffending could give some confidence that the risk of reoffending without supervision was at an acceptable level. In the context of this finding, the court considered the question of how to incentivise Robinson to comply with the supervision order.

Justice Hindman found that there was considerable merit to the proposition that the use of illicit drugs being a breach of the supervision order is causative of an unhelpful cycle, that is, it is not assisting in the rehabilitation of Robinson and preparing him for reintegration into the community without supervision. The court found that the supervision order was not intended to directly manage illicit drug use, but rather to protect the community from violent and serious sexual offending, and that it had been achieving that aim. The court concluded that the use of illicit drugs being a breach of the supervision order was not assisting in the rehabilitation of Robinson and preparing him for reintegration into the community without supervision.

ORDERS:
The appeal is dismissed.

Orders

Orders of the court

The appeal is dismissed.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

In addition to there being cross-examination of each witness, her Honour asked each witness questions about the effect of removing requirement 21.The Primary Judge’s decision Justice Hindman reviewed all of the material in relation to the history of the matter and considered how the respondent had reacted to the supervision imposed under the order. Her Honour accepted the evidence of Dr Sundin and Dr Harden. She found their evidence to be helpful, particularly that of Dr Sundin. Justice Hindman considered the fact that the supervision order was coming to its end and that the time remaining was not sufficient for the respondent to be re-integrated into the community in a pro-social manner and demonstrate an ability to comply with the supervision order. She considered two years of compliance with easing of restrictions, good compliance and no reoffending could give some confidence that the risk of reoffending without supervision was at an acceptable level. It was in that context her Honour considered the question of how to incentivise the respondent to comply with the supervision order. In her reasons for determining the respondent could be released under a supervision order and that the supervision order should be amended to remove requirement 21, her Honour noted the evidence of Dr Sundin and her recommendation for the easing of restrictions and the removal of requirement 21 and for illicit drug use to be managed by the usual legal sanctions. Her Honour stated: “I note that the purpose of the supervision order is not, per se, to directly manage illicit drug use. It is to protect the community from violent and serious sexual offending, and it has been achieving that aim. Even though it appears, from about 2018, the respondent has been engaging in at least semi-regular methamphetamine use (sic). I think that there is considerable merit to the proposition in this case that the use of illicit drugs being a breach of the supervision order is causative of an unhelpful cycle, that is, it is not assisting in the rehabilitation of the respondent and preparing him for reintegration into the community without supervision.” In reaching that view, her Honour took into account that the person supervising the respondent considered it was important for them to have power to take positive action if he was detected using drugs. Her Honour, however, did not consider that that positive action is required to be the result of a contravention of the supervision order, particularly given the provision for drug testing and a curfew remained part of the supervision order. As to determining the condition enabling corrective services to test the respondent should continue, her Honour stated that “[k]nowing if the respondent is using should assist in his supervision, including in terms of the restrictions to which he should be subject if he is demonstrated to be using illicit drugs…”. That is against the background of her Honour having also acknowledged that “[a]ny release on supervision would necessarily envisage initial tight restrictions, likely a 24-hour curfew at the Precinct, with restrictions being eased as compliance is demonstrated”.

Ratio Decidendi

Legal Principle Established

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CITATION:	Attorney-General (Qld) v Robinson [2024] QCA 206
PARTIES:	ATTORNEY-GENERAL FOR THE STATE OF QUEENSLAND (appellant) v NIGEL PATRICK ROBINSON (respondent)
FILE NO/S:	Appeal No 4918 of 2024 SC No 4096 of 2006
DIVISION:	Court of Appeal
PROCEEDING:	General Civil Appeal
ORIGINATING COURT:	Supreme Court at Brisbane – Unreported: 22 March 2024 (Hindman J)
DELIVERED ON:	1 November 2024
DELIVERED AT:	Brisbane
HEARING DATE:	20 September 2024
JUDGES:	Bond and Brown JJA and Henry J
ORDER:	The appeal is dismissed.
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 dealt with under s 22 of the Dangerous Prisoners (Sexual Offenders) Act 2003 (Qld) for breaches of a supervision order – where the primary judge released the respondent under a supervision order – where the primary judge declined to include requirement 21 proposed by the appellant, which required the respondent to abstain from using illicit drugs for the duration of the supervision order – whether the primary judge was in error by removing requirement 21 from the supervision order Dangerous Prisoners (Sexual Offenders) Act 2003 (Qld), s 22 Kynuna v Attorney-General for the State of Queensland[2016] QCA 172, cited
COUNSEL:	J M Horton KC, with B H P Mumford, for the appellant S J Hamlyn-Harris for the respondent
SOLICITORS:	C E Christensen, Crown Solicitor for the appellant Cridland Hua Lawyers for the respondent