Attorney-General (Qld) v XHW

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SUPREME COURT OF QUEENSLAND

CITATION:

Attorney-General (Qld) v XHW [2020] QSC 138

PARTIES:

ATTORNEY-GENERAL FOR THE STATE OF QUEENSLAND

(applicant)

v
XHW

(respondent)

FILE NO/S:

BS No 13569 of 2019

DIVISION:

Trial Division

PROCEEDING:

Originating application

ORIGINATING COURT:

Supreme Court of Queensland

DELIVERED ON:

27 May 2020

DELIVERED AT:

Brisbane

HEARING DATE:

11 May 2020

JUDGE:

Burns J

ORDER:

Being satisfied to the requisite standard that the respondent, is a serious danger to the community in the absence of an order under Division 3 of Part 2 of the Dangerous Prisoners (Sexual Offenders) Act 2003 (Qld), the order of the court is that the respondent is 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 there is an application pursuant to s 5 of the Dangerous Prisoners (Sexual Offenders) Act 2003 for an order pursuant to Division 3 of Part 2 of that Act – whether the respondent is a serious danger to the community in the absence of a Division 3 order – where the court may order a continuing detention order or a supervision order pursuant to s 13(5) of the Act – whether the adequate protection of the community could be reasonably and practicably managed by a supervision order – whether the requirements under s 16 of the Act could be reasonably and practicably managed by corrective services officers

Dangerous Prisoners (Sexual Offenders) Act2003 (Qld), s 13, s 16, s 27

Attorney-General for the State of Queensland v Beattie [2007] QCA 96, cited
Attorney-General for the State of Queensland v Fardon [2011] QCA 155, cited
Attorney-General v Francis [2007] 1 Qd R 396, cited
Attorney-General for the State of Queensland v Sutherland [2006] QSC 268, cited
Attorney-General for the State of Queensland v Waghorn [2006] QSC 171, cited

COUNSEL:

J Tate for the applicant

J P Benjamin for the respondent

SOLICITORS:

Crown Solicitor for the applicant

Legal Aid (Qld) for the respondent

  1. The Attorney-General for the State of Queensland applies for an order pursuant to s 13(5) of the Dangerous Prisoners (Sexual Offenders) Act 2003 (Qld) to detain the respondent in custody for an indefinite term for care, treatment or control.

  2. The statutory premise for the making of a continuing detention order is that there is evidence on which the court can be satisfied that the respondent is a serious danger to the community, that is to say, that there is an unacceptable risk that he will commit a serious sexual offence if released into the community. The respondent concedes, through his counsel, that he is a serious danger to the community in the absence of an order under Division 3 of Part 2 of the Act but contends that the adequate protection of the community can be ensured by his release subject to a supervision order. Nevertheless, the applicant,…

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Details
Case
[2020] QSC 138
Decision Date

CaseChat Overview and Summary

The case of Attorney-General (Qld) v XHW involved an application by the Attorney-General of Queensland for an order under the Dangerous Prisoners (Sexual Offenders) Act 2003. The respondent, a 52-year-old man with a lengthy criminal history, was subject to the application due to his past convictions for serious sexual offences, including rape and indecent assault. The court was required to determine whether the respondent posed a serious danger to the community in the absence of a Division 3 order and, if so, whether his detention could be managed through a supervision order or if continuing detention was necessary.

The court considered various factors, including the respondent's criminal history, the nature and severity of his past offences, and the risk he posed to the community if released. It was noted that the respondent had demonstrated a significant breach of trust and had shown no remorse for his actions. The court also took into account reports from psychiatrists and psychologists, as well as the respondent's lack of participation in rehabilitation programs. The paramount consideration in the court's decision was the protection of the community and the risk of the respondent committing another serious sexual offence if released.

The court found that the respondent was indeed a serious danger to the community in the absence of a Division 3 order. It determined that adequate protection of the community could not be reasonably and practicably managed by a supervision order, given the respondent's history and the nature of his offences. The court concluded that continuing detention for control, care, or treatment was the appropriate measure to ensure the protection of the community.

Orders

Orders of the court

Being satisfied to the requisite standard that the respondent, is a serious danger to the community in the absence of an order under Division 3 of Part 2 of the Dangerous Prisoners (Sexual Offenders) Act 2003 (Qld), the order of the court is that the respondent is detained in custody for an indefinite term for control, care or treatment.

Background

Background to the litigation

For the reasons that follow, the respondent will be detained in custody for an indefinite term for control, care or treatment. Background The respondent is a 52 year old indigenous man. He was born in Sydney and had what his reporting psychologist, Dr Madsen, described as a “chaotic, stressful and impoverished early home environment”. His parents separated when he was very young. The respondent stayed with his mother and sister until he was about 15 years of age. He ran away but later returned and went back to school before leaving at the end of that year. The respondent then lived on the streets in the Penrith area. From that point on, he became increasingly involved in criminal activities which ran hand-in-hand with his abuse of alcohol and illicit substances. At the age of 21 or 22, he moved to Queensland after one of his relatives promised him work as a concreter but he soon found himself in trouble again with the authorities. Thereafter, he seems to have moved backwards and forwards between the two States whenever he has not been in custody. Otherwise, the respondent has struggled to obtain lasting employment with most of what work he has done consisting of casual labouring. The respondent has few skills and little in the way of an education. He is reported to be the father of ten children from a string of relationships over the course of his adult life. The respondent has a lengthy, and relevant, criminal history in Queensland and New South Wales. He has been before the courts on no less than 18 occasions and has been incarcerated a number of times, his first such period of imprisonment commencing when he was about 18 years of age. In addition to his convictions for sexual offences, the respondent has also been dealt with for an array of other offences involving theft, drugs, false pretences, assault, offensive behaviour, robbery with wounding, property damage and assault occasioning bodily harm. The respondent’s history of sexual offending commenced with convictions on 8 February 1995 in the District Court at Bowen with respect to one count of rape and one count of indecent assault with a circumstance of aggravation. He was sentenced to an effective head sentence of nine years imprisonment. He subsequently applied to the Court of Appeal for leave to appeal against his sentence but, on 27 April 1995, that application was dismissed. In the course of doing so, Ambrose J (with whom Davies JA and Moynihan J agreed) had this to say about the circumstance of the offences:“The complainant with her fiance, with whom she was then cohabiting, met the applicant at a party in a caravan park. Conversation turned to the fact that the complainant and her young man were anxious to find accommodation outside the caravan park and the applicant told them that he knew of an old house that was available for rental at $50 per week.Subsequently, excited by this prospect, the complainant approached the applicant and asked about it, and he said he would take her to see his mother who knew all about it. She accompanied him and in fact when they approached the derelict house, in which apparently the appellant was residing in rather primitive conditions, he suddenly took hold of her, holding her in a vice-like grip preventing her movement.She was naturally afraid and the fear was not lessened by his observation to her that he wanted to, as he said, fuck her. He threw her inside the fence so that she fell with her back down on the ground, jumped on top of her, [and] threatened to kill her. She said she was terrified. He told her that she could scream as much as she liked, but nobody would hear her. He covered her mouth and nose. She struggled as best she could to avoid his attentions, clenching her legs together tightly, but he was very strong young man and eventually he managed to penetrate her with difficulty. The difficulty apparently caused him some anger and in the course of having intercourse with her, he, as it is said, pounded her, causing her pain and breathlessness. She continued to cry and call out for her fiancé upon which the applicant abused her, and then told her that he was going to, as he said, ‘stick it up your arse’. He rolled her over onto a filthy mattress and effected anal penetration which caused her intense pain. He then volunteered to her, ‘I have come in your cunt and I have come in your arse’. He then left her to satisfy his toiletry needs and she took the opportunity to run away from the place. She was bleeding and painful and quite hysterical. She attended a hospital where it was found that she had a wound to the lower lip caused by a punch that the applicant had inflicted on her. She was scratched and bruised on her leg and back. The labia and tissue around the anus was extremely tender and swollen, so tender indeed that it was not possible, without causing unacceptable pain, to effect any internal examination of those parts of her.”

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

The sentencing judge, his Honour Judge Farr SC, made the following observations:“The offences that you have been convicted of before me are serious indeed. You caused your own daughter to perform oral sex on you on four separate occasions over two separate days. You ejaculated into her mouth on each of those occasions. You told her not to tell anyone. You were, as I’ve indicated already, of a mature age at the time. You have demonstrated absolutely no remorse for your behaviour in the course of this matter. You put the complainant through the rigours of a trial and questioning. You have, as I’ve already indicated, a lengthy and serious criminal history for offences that include offences of relevance, and you were on a suspended sentence for a sex offence at the time of the commission of these offences. To say that the breach of trust that you have displayed in the commission of these offences is significant would be an understatement.Given your criminal history and the nature of the offending conduct, the subject of the trial before me, it is quite obvious that the primary sentencing consideration is the protection of the public. General deterrence is, of course, also a significant consideration on sentence. Whilst your rehabilitation, of course, is to be hoped for it really assumes … minimal significance at this stage of your life, given the nature of the offences and your criminal history. As I say, protection of the public is of paramount importance. It appears to me that your behaviour, as exhibited in the most serious of the offences that you have already been convicted of, and the offences that you have been convicted of today, demonstrate that you are, potentially, a danger to female members of society, particularly young persons, and that that protection aspect must be given due recognition in the sentence which I impose.” [Emphasis added] On each count, the respondent was sentenced to a term of five years imprisonment to be served concurrently. A period of pre-sentence custody in the order of 438 days was declared as time already served under those terms. In respect of the suspended sentence, the breaches were proven, and the sentence on each count (two years imprisonment) was fully invoked. It was ordered that these terms be served cumulatively on the five year term imposed with respect to each count of rape. The respondent’s full time release date was on 25 May 2020, but an interim detention order was made ahead of that date and expires today. Is the respondent a serious danger to the community in the absence of an order? Section 13 of the Act is in the these terms:“13 Division 3 orders (1) This section applies if, on the hearing of an application for a division 3 order, the court is satisfied the prisoner is a serious danger to the community in the absence of a division 3 order (a serious danger to the community).(2) A prisoner is a serious danger to the community as mentioned in subsection (1) if there is an unacceptable risk that the prisoner will commit a serious sexual offence—(a) if the prisoner is released from custody; or(b) if the prisoner is released from custody without a supervision order being made.(3) On hearing the application, the court may decide that it is satisfied as required under subsection (1) only if it is satisfied—(a) by acceptable, cogent evidence; and(b) to a high degree of probability; that the evidence is of sufficient weight to justify the decision.(4) In deciding whether a prisoner is a serious danger to the community as mentioned in subsection (1), the court must have regard to the following—(aa) any report produced under section 8A;(a) the reports prepared by the psychiatrists under section 11 and the extent to which the prisoner cooperated in the examinations by the psychiatrists;(b) any other medical, psychiatric, psychological or other assessment relating to the prisoner;(c) information indicating whether or not there is a propensity on the part of the prisoner to commit serious sexual offences in the future;(d) whether or not there is any pattern of offending behaviour on the part of the prisoner;(e) efforts by the prisoner to address the cause or causes of the prisoner’s offending behaviour, including whether the prisoner participated in rehabilitation programs;(f) whether or not the prisoner’s participation in rehabilitation programs has had a positive effect on the prisoner;(g) the prisoner’s antecedents and criminal history;(h) the risk that the prisoner will commit another serious sexual offence if released into the community;(i) the need to protect members of the community from that risk;(j) any other relevant matter.(5) If the court is satisfied as required under subsection (1), the court may order—(a) that the prisoner be detained in custody for an indefinite term for control, care or treatment (continuing detention order); or(b) that the prisoner be released from custody subject to the requirements it considers appropriate that are stated in the order (supervision order).(6) In deciding whether to make an order under subsection (5)(a) or (b)—(a) the paramount consideration is to be the need to ensure adequate protection of the community; and(b) the court must consider whether—(i) adequate protection of the community can be reasonably and practicably managed by a supervision order; and(ii) requirements under section 16 can be reasonably and practicably managed by corrective services officers.(7) The Attorney-General has the onus of proving that a prisoner is a serious danger to the community as mentioned in subsection (1).”