Attorney-General (Qld) v Sybenga - [2009] QCA 382

SUPREME COURT OF QUEENSLAND

CITATION:

A-G (Qld) v Sybenga [2009] QCA 382

PARTIES:

ATTORNEY-GENERAL FOR THE STATE OF QUEENSLAND
(applicant/respondent)
v
DANIEL PHILIP SYBENGA
(respondent/appellant)

FILE NO/S:

Appeal No 7551 of 2009
SC No 1206 of 2008

DIVISION:

Court of Appeal

PROCEEDING:

General Civil Appeal

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED ON:

11 December 2009

DELIVERED AT:

Brisbane

HEARING DATE:

3 November 2009

JUDGES:

Keane and Holmes JJA and Fryberg J
Separate reasons for judgment of each member of the Court, each concurring as to the order made

ORDER:

Appeal dismissed

CATCHWORDS:

APPEAL AND NEW TRIAL – APPEAL - GENERAL PRINCIPLES – INTERFERENCE WITH JUDGE’S FINDINGS OF FACT – OTHER MATTERS – where appellant appealed primary judge’s order, pursuant to s 13 of the Dangerous Prisoners (Sexual Offenders) Act 2003 (Qld), that he be detained in custody indefinitely for control, care or treatment – where experts assessed risk of appellant’s re-offending if released into community as high, and said 24 hour supervision of appellant was required – whether primary judge wrongly characterised appellant’s non-compliance with treatment in prison and while subject to interim supervision order as “wilful” – whether primary judge’s finding that the unanimous expert opinion was that risk of appellant’s re-offending was too great to allow his release was wrong – whether supervision order would adequately protect the community – whether primary judge’s order contrary to principle in Attorney-General v Francis [2007] 1 Qd R 396 – whether primary judge’s finding that supervision of appellant by his parents would cause destruction of their relationship was wrong – whether primary judge erred in making order for continuing detention for “treatment” as well as “control”

Dangerous Prisoners (Sexual Offenders) Act 2003 (Qld), s 13

Attorney-General v Francis [2007] 1 Qd R 396; [2006] QCA 324, cited
Attorney-General for the State of Queensland v Lawrence [2008] QSC 230, cited
Veen v The Queen [No 2] (1988) 164 CLR 465; [1988] HCA 14, cited

COUNSEL:

M A Green for the appellant
T A Ryan for the respondent

SOLICITORS:

Legal Aid Queensland for the appellant
Crown Law for the respondent

KEANE JA: I have read in draft the reasons for judgment prepared by Holmes JA. I agree with Holmes JA that the appeal should be dismissed for the reasons given by her Honour.

In Veen v The Queen [No 2], Deane J, speaking before the introduction of the Act, said:[1]

"... [T]he protection of the community obviously warrants the introduction of some acceptable statutory system of preventive restraint to deal with the case of a person who has been convicted of violent crime and who, while not legally insane, might represent a grave threat to the safety of other people by reason of mental abnormality if he were to be released as a matter of course at the end of what represents a proper punitive sentence. Such a statutory system could, one would hope, avoid the disadvantages of indeterminate prison sentences by being based on periodic orders…

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: [2009] QCA 382
Decision Date: 11 December 2009

CaseChat Overview and Summary

The appeal was brought by the Attorney-General of Queensland against a decision of the primary judge, who ordered that the appellant, Sybenga, be detained indefinitely for control, care or treatment under section 13 of the Dangerous Prisoners (Sexual Offenders) Act 2003 (Qld). The central issue was whether the primary judge erred in his characterisation of the appellant's non-compliance with treatment as wilful, and if his findings regarding the risk of re-offending and the necessity for indefinite detention were justified. Additionally, the appeal questioned whether the primary judge's decision to order indefinite detention for treatment, as well as for control, was in line with legal precedent.

The court examined the primary judge's findings that the appellant's risk of re-offending was high and that 24-hour supervision was required if he were released. It considered whether the primary judge's conclusion that the risk of re-offending was too great to allow his release, and that a supervision order would not adequately protect the community, was supported by the evidence. The court also assessed whether the primary judge's finding that supervision by the appellant's parents would destroy their relationship was justified. Furthermore, the appeal challenged whether the primary judge's order for continuing detention for treatment, as well as for control, contravened the principle established in Attorney-General v Francis.

The court found that the primary judge's findings were not clearly wrong and were supported by the evidence. The appeal was dismissed, and the primary judge's order for indefinite detention was upheld. The court determined that the primary judge had not erred in his assessment of the appellant's risk of re-offending and the necessity for indefinite detention. It also held that the primary judge's decision to order detention for treatment, as well as for control, was not contrary to established legal principles. The court concluded that the primary judge's findings were reasonable and that the appeal had no merit.

Orders

Orders of the court

Appeal dismissed

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:	A-G (Qld) v Sybenga [2009] QCA 382
PARTIES:	ATTORNEY-GENERAL FOR THE STATE OF QUEENSLAND (applicant/respondent) v DANIEL PHILIP SYBENGA (respondent/appellant)
FILE NO/S:	Appeal No 7551 of 2009 SC No 1206 of 2008
DIVISION:	Court of Appeal
PROCEEDING:	General Civil Appeal
ORIGINATING COURT:	Supreme Court at Brisbane
DELIVERED ON:	11 December 2009
DELIVERED AT:	Brisbane
HEARING DATE:	3 November 2009
JUDGES:	Keane and Holmes JJA and Fryberg J Separate reasons for judgment of each member of the Court, each concurring as to the order made
ORDER:	Appeal dismissed
CATCHWORDS:	APPEAL AND NEW TRIAL – APPEAL - GENERAL PRINCIPLES – INTERFERENCE WITH JUDGE’S FINDINGS OF FACT – OTHER MATTERS – where appellant appealed primary judge’s order, pursuant to s 13 of the Dangerous Prisoners (Sexual Offenders) Act 2003 (Qld), that he be detained in custody indefinitely for control, care or treatment – where experts assessed risk of appellant’s re-offending if released into community as high, and said 24 hour supervision of appellant was required – whether primary judge wrongly characterised appellant’s non-compliance with treatment in prison and while subject to interim supervision order as “wilful” – whether primary judge’s finding that the unanimous expert opinion was that risk of appellant’s re-offending was too great to allow his release was wrong – whether supervision order would adequately protect the community – whether primary judge’s order contrary to principle in Attorney-General v Francis [2007] 1 Qd R 396 – whether primary judge’s finding that supervision of appellant by his parents would cause destruction of their relationship was wrong – whether primary judge erred in making order for continuing detention for “treatment” as well as “control” Dangerous Prisoners (Sexual Offenders) Act 2003 (Qld), s 13 Attorney-General v Francis [2007] 1 Qd R 396; [2006] QCA 324, cited Attorney-General for the State of Queensland v Lawrence [2008] QSC 230, cited Veen v The Queen [No 2] (1988) 164 CLR 465; [1988] HCA 14, cited
COUNSEL:	M A Green for the appellant T A Ryan for the respondent
SOLICITORS:	Legal Aid Queensland for the appellant Crown Law for the respondent