Attorney-General (Qld) v Valence

Case [2022] QSC 261

SUPREME COURT OF QUEENSLAND

CITATION:

Attorney-General (Qld) v Valence [2022] QSC 261

PARTIES:

ATTORNEY-GENERAL FOR THE STATE OF QUEENSLAND

(applicant)

v

KERRY PATRICK VALENCE

(respondent)

FILE NO/S:

BS No 2941 of 2009

DIVISION:

Trial Division

PROCEEDING:

Application

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED ON:

25 November 2022

DELIVERED AT:

Brisbane

HEARING DATE:

31 October 2022

JUDGE:

Davis J

ORDER:

The Court, being satisfied to the requisite standard that the respondent, Kerry Patrick Valence, is a serious danger to the community in the absence of an order pursuant to Division 3 of the Dangerous Prisoners (Sexual Offenders) Act 2003 (the Act), orders that:

1. The decision made on 13 August 2009 that the respondent, Kerry Patrick Valance, is a serious danger to the community in the absence of an order pursuant to Division 3 of the Act is affirmed.

2. Pursuant to s 30(3)(a) of the Act, the respondent continue to be subject to the continuing detention order made on 16 November 2018.

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 has been detained on a continuing detention order - where the Attorney-General applied for a review of the continuing detention order - whether the respondent is a serious danger to the community in the absence of an order pursuant to Division 3 of the Act - whether the adequate protection of the community can be ensured by the release of the respondent on a supervision order

Dangerous Prisoners (Sexual Offenders) Act 2003, s 13, s 20, s 21, s 21A, s 22, s 22A, s 27, s 30

Attorney-General v Francis [2007] 1 Qd R 396, cited
Attorney-General v Lawrence [2010] 1 Qd R 505, cited
Attorney-General (Qld) v Guy [2018] QSC 179, cited
Attorney-General (Qld) v Valence [2018] QSC 265, related
Attorney-General for the State of Queensland v Valence [2010] QSC 335, related
Attorney-General for the State of Queensland v Valence [2011] QSC 304, related
Attorney-General for the State of Queensland v Valence [2012] QSC 310, related
Attorney-General for the State of Queensland v Valence [2020] QSC 397, related
Attorney-General for the State of Queensland v Kerry Patrick Valence, unreported, Supreme Court of Queensland, Brisbane, 25 October 2021, Freeburn J, related
Kynuna v Attorney-General [2016] QCA 172, cited
Turnbull v Attorney-General [2015] QCA 54, cited

COUNSEL:

J B Rolls for the applicant

The respondent appeared on his own behalf

SOLICITORS:

GR Cooper, Crown Solicitor for the applicant

The respondent appeared on his own behalf

  1. The respondent is the subject of a continuing detention order made under s 13(5)(a) of the Dangerous Prisoners (Sexual Offenders) Act 2003 (the Act).

  2. This is an application brought by the Attorney-General pursuant to s 27 of the Act to review the continuing detention order to which the respondent is subject.

    Background

  3. The respondent was born on 15 June 1957.  He…

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AGLC
Attorney-General (Qld) v Valence [2022] QSC 261
Case
[2022] QSC 261
Decision Date

CaseChat Overview and Summary

The case of Attorney-General (Qld) v Valence involves an application brought by the Attorney-General for the review of a continuing detention order imposed on the respondent, Kerry Patrick Valence, under the Dangerous Prisoners (Sexual Offenders) Act 2003 (Qld). Valence is a 65-year-old man with a significant history of sexual offences against boys, including convictions in New South Wales and Queensland. The Attorney-General sought the review to determine whether Valence remains a serious danger to the community in the absence of a Division 3 order, and if not, whether adequate protection can be ensured through a supervision order.

The primary legal issues before the court were whether Valence continues to pose a serious danger to the community and if his risk could be managed by a supervision order rather than a continuing detention order. The court had to evaluate the psychiatric evidence and past conduct of Valence to make its determination. The statutory framework, particularly s 30 of the Act, required the court to first assess if Valence is a serious danger to the community in the absence of a Division 3 order. If he was found to be such a danger, the court had to consider if adequate protection could be ensured by releasing him under a supervision order. If the latter was not possible, a continuing detention order would be appropriate.

In reaching its decision, the court relied on the psychiatric evidence indicating that Valence remains a serious danger to the community due to his untreated paedophilia. Despite attempts at treatment, including a period of release under supervision, Valence demonstrated that he could not be managed under a supervision order. The court accepted the evidence that Valence's risk could not be reduced to an acceptable level through a supervision order and concluded that he continued to be a serious danger. Consequently, the court affirmed the previous finding that Valence is a serious danger to the community and ordered that he continue to be subject to the continuing detention order.

The court's orders affirm the earlier determination that Valence is a serious danger to the community and mandate that he remain subject to the continuing detention order. The court was satisfied that placing Valence under a supervision order would not sufficiently protect the community from the risk he poses.

Orders

Orders of the court

The Court, being satisfied to the requisite standard that the respondent, Kerry Patrick Valence, is a serious danger to the community in the absence of an order pursuant to Division 3 of the Dangerous Prisoners (Sexual Offenders) Act 2003 (the Act), orders that:

1. The decision made on 13 August 2009 that the respondent, Kerry Patrick Valance, is a serious danger to the community in the absence of an order pursuant to Division 3 of the Act is affirmed.

2. Pursuant to s 30(3)(a) of the Act, the respondent continue to be subject to the continuing detention order made on 16 November 2018.

Background

Background to the litigation

This is an application brought by the Attorney-General pursuant to s 27 of the Act to review the continuing detention order to which the respondent is subject.Background The respondent was born on 15 June 1957. He is presently 65 years of age. As to the respondent’s criminal history which led to proceedings being taken against him under the Act, I observed this in earlier proceedings:[1][1]Attorney-General (Qld) v Valence [2018] QSC 265.“[12] The respondent has a criminal history both in New South Wales and Queensland. Serious offences of a sexual nature were committed in New South Wales in 1975 and again in 1980. His criminal history in Queensland commenced in 1996. Between 1996 and 2000 the respondent appeared in the Emerald Magistrates Court on three occasions and was dealt with for various offences: wilful and unlawful destruction of property in the night-time,[2] possession of a dangerous drug,[3] refusal to leave premises when required by the licensee and being drunk and disorderly.[4] Between 1999 and 2004, the respondent offended sexually against two young boys. Between September 2003 and March 2004, he was also convicted for various offences under the Bail Act 1980 (Qld) and fined in the Magistrates Court.[13]The sexual offending in New South Wales and Queensland was described by White J (as her Honour then was) when making a continuing detention order,[5] against the respondent on 13 August 2009,[6] as follows:‘It is convenient to start with the respondent’s relevant prior criminal history. He is now aged 52. Some sexual offending occurred in New South Wales in 1975 and 1980 when the respondent was aged 18 and 23 respectively. The criminal history describes the offences as buggery and indecent assault on a male and assault with intent to commit buggery. He was bound over to be of good behaviour in 1975 and in 1980 sentenced to two years' imprisonment which was deferred on him entering into a recognisance and under supervision. In 1970 the victim was about 12 and in the 1980 offences, the victim eight years.In the latter case, after an encounter in the caravan park showers, the respondent invited the boy back to his caravan. In both cases the respondent denied penetration but admitted physical contact with the boys to ejaculation. He has numerous other offences involving excessive consumption of alcohol and possession of illegal drugs. The history supports a long-existing problem with alcohol and unlawful drugs of various kinds. The current offences concern two boys aged about 10 years and the offences were separated by some years.The first offence occurred in 1999 and 2000 against a boy with whose family the respondent was friendly. On one occasion he grabbed the boy’s penis through clothing. On the second, despite resistance, the respondent engaged in fellatio on the boy and threatened to kill him if he revealed the assault. The later offence occurred in 2004 when the respondent was on bail for the earlier offences when he was befriended by a family and when in the home fondled the boy’s penis after pulling down his pants. The respondent tended to attribute initiating conduct to the boy.’[14]As a result of the offending between 1999 and 2004, the respondent was charged with three counts of indecent treatment of children under 16 with the circumstance of aggravation that the child was under 12 years of age. On each of those charges, he was sentenced respectively to 2 years and 6 months imprisonment, 4 years imprisonment and 3 years imprisonment. Those terms were all ordered to be served concurrently. The respondent’s bail had been revoked by the time he was sentenced and 193 days of pre-sentence custody between 30 August 2005 and 10 March 2006 was declared as time served.”[2]30 September 1996.[3]7 April 1997.[4]17 November 2000.[5]Section 13(5).[6]Attorney-General for the State of Queensland v Valance [2009] QSC 255.

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

Section 30 operates in this way:1.Firstly, the court must consider whether the respondent is “a serious danger to the community in the absence of a Division 3 order”.[26]2.If the answer to that question is in the affirmative, then consideration must be given to whether “adequate protection of the community” can be ensured by release of the respondent on a supervision order.[27]3.If the answer to that question is in the negative, then a continuing detention order should be made.[28][26]Section 30(1) and (2).[27]Section 30(3).[28]Section 30(4) and see generally the discussion in Attorney-General (Qld) v Guy [2018] QSC 179.Consideration In 2009, when the continuing detention order was originally made, the respondent was considered an unacceptable risk of committing sexual offences against boys. That risk stemmed from the respondent’s paedophilia for which he had not received treatment. At that stage, what was recommended was the HISOP. Consistently over the years, findings have been made that the respondent continues to be an unacceptable risk of committing sexual offences against boys because of his paedophilia. His release in 2016, after individual treatment, proved a failure. Consistently from the recission of the supervision order, the psychiatric evidence has been that he remains a serious danger to the community which cannot be reduced to an acceptable level by a supervision order. That is the effect of the psychiatric evidence before me on this review and I accept it. The respondent appears to be treatment adverse. Dr Moyle, in particular, seems convinced that the respondent could undergo the HISOP and be released under a supervision order. That appears to be a way forward for the respondent. On the evidence currently before me, I find the respondent is a serious danger to the community in the absence of an order pursuant to Division 3 of the Dangerous Prisoners (Sexual Offenders) Act 2003. It is therefore appropriate to affirm the finding made on 13 August 2009 to that effect. The continuing detention order ought to be continued as a supervision order will not reduce the risk to an acceptable level. I order that:The Court, being satisfied to the requisite standard that the respondent, Kerry Patrick Valence, is a serious danger to the community in the absence of an order pursuant to Division 3 of the Dangerous Prisoners (Sexual Offenders) Act 2003 (the Act), orders that:1.The decision made on 13 August 2009 that the respondent, Kerry Patrick Valance, is a serious danger to the community in the absence of an order pursuant to Division 3 of the Act is affirmed.2.Pursuant to s 30(3)(a) of the Act, the respondent continue to be subject to the continuing detention order made on 16 November 2018.