Attorney-General v Flenady - [2022] QSC 231

SUPREME COURT OF QUEENSLAND

CITATION:

Attorney-General v Flenady [2022] QSC 231

PARTIES:

ATTORNEY-GENERAL FOR THE STATE OF QUEENSLAND

(Applicant)

v

JAMES BRIAN ROBERT FLENADY

(Respondent)

FILE NO/S:

10062 of 2019

DIVISION:

Trial Division

PROCEEDING:

Application

DELIVERED ON:

28 October 2022

DELIVERED AT:

Brisbane

HEARING DATE:

24 October 2022

JUDGE:

Bowskill CJ

ORDERS:

1. The decision made by Burns J on 13 March 2020, that the respondent is a serious danger to the community in the absence of a division 3 order, is affirmed.

2. The respondent, James Brian Robert Flenady, continue to be subject to the continuing detention order.

CATCHWORDS:

CRIMINAL LAW – SENTENCE – SENTENCING ORDERS – ORDERS AND DECLARATIONS RELATING TO SERIOUS OR VIOLENT OFFENDERS OR DANGEROUS SEXUAL OFFENDERS – DANGEROUS SEXUAL OFFENDER – GENERALLY – review of a continuing detention order

COUNSEL:
M Maloney, for the applicant

S Robb, for the respondent

SOLICITORS:
Crown Solicitor, for the applicant
Legal Aid Queensland, for the respondent

On 13 March 2020, the Court found 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) and made an order, under s 13(5)(a) of the Act, that the respondent be detained in custody for an indefinite term for control, care or treatment: Attorney-General (Qld) v Flenady[2020] QSC 44.
As required by s 27(2) of the Act, that order was first reviewed by the Court on 30 August 2021. For reasons given on 15 October 2021, the Court affirmed the decision that the respondent is a serious danger to the community and ordered that the respondent continue to be subject to a continuing detention order: Attorney-General (Qld) v Flenady [2021] QSC 256.
This is the second annual review of the continuing detention order.
In July 2017, the respondent was convicted following a trial of five offences – common assault with intent to rape, attempted rape, common assault, deprivation of liberty and indecent treatment of a child under 12. All the offences arose from one incident, committed in December 2013, against the nine year old daughter of the respondent’s then de facto wife. The circumstances of the offences are, as Burns J said in the 2020 decision, confronting; involving persistence and a degree of personal violence. They are described in [11]-[12] of that decision. For those offences, the respondent was sentenced to an effective head sentence of three years’ imprisonment. He had a relevant criminal history prior to that, which is summarised in [7]-[10] of the 2020 decision. His full time release date would have been 14 March 2020. As a consequence of the continuing detention order, the respondent has remained in custody since then.
In the 2020 decision, Burns J recorded, at [20], that:
“At different times whilst in custody, risk assessments have been made, in consequence of which it was recommended that he participate in a specialised sexual offending program, as well as low intensity substance intervention. Although…

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 v Flenady

Details

AGLC: Attorney-General v Flenady [2022] QSC 231
Case: [2022] QSC 231
Decision Date: 28 October 2022

CaseChat Overview and Summary

In the matter of Attorney-General v Flenady, the High Court was asked to review a continuing detention order concerning the respondent, James Brian Robert Flenady, who was classified as a dangerous sexual offender. The Attorney-General sought to uphold a decision by Burns J that Flenady posed a serious danger to the community if not subject to a division 3 order, which mandates ongoing detention. The High Court was tasked with determining the correctness of this assessment and the appropriateness of the order.

The legal issues before the court involved interpreting the criteria for determining whether an individual is a serious danger to the community, as outlined in relevant legislation. The court had to examine whether the lower court’s findings were supported by evidence and whether the order was justified under the law. Specifically, the court needed to assess whether Flenady’s risk of reoffending was such that it warranted continued detention beyond his sentence expiry.

The court found that the decision made by Burns J was well-reasoned and supported by substantial evidence. The evidence indicated that Flenady had a significant history of sexual offences and a high risk of reoffending, justifying the classification as a dangerous sexual offender. The court concluded that the lower court's determination of Flenady’s dangerousness and the necessity of a continuing detention order were correct. Consequently, the High Court affirmed the lower court's decision and upheld the continuing detention order against Flenady.

The final orders of the court were to affirm the decision of Burns J, maintaining that Flenady is a serious danger to the community in the absence of a division 3 order. The court also ordered that Flenady continue to be subject to the continuing detention order, ensuring his ongoing supervision and detention.

Orders

Orders of the court

1. The decision made by Burns J on 13 March 2020, that the respondent is a serious danger to the community in the absence of a division 3 order, is affirmed.

2. The respondent, James Brian Robert Flenady, continue to be subject to the continuing detention order.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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CITATION:	Attorney-General v Flenady [2022] QSC 231
PARTIES:	ATTORNEY-GENERAL FOR THE STATE OF QUEENSLAND (Applicant) v JAMES BRIAN ROBERT FLENADY (Respondent)
FILE NO/S:	10062 of 2019
DIVISION:	Trial Division
PROCEEDING:	Application
DELIVERED ON:	28 October 2022
DELIVERED AT:	Brisbane
HEARING DATE:	24 October 2022
JUDGE:	Bowskill CJ
ORDERS:	1. The decision made by Burns J on 13 March 2020, that the respondent is a serious danger to the community in the absence of a division 3 order, is affirmed. 2. The respondent, James Brian Robert Flenady, continue to be subject to the continuing detention order.
CATCHWORDS:	CRIMINAL LAW – SENTENCE – SENTENCING ORDERS – ORDERS AND DECLARATIONS RELATING TO SERIOUS OR VIOLENT OFFENDERS OR DANGEROUS SEXUAL OFFENDERS – DANGEROUS SEXUAL OFFENDER – GENERALLY – review of a continuing detention order
COUNSEL:	M Maloney, for the applicant S Robb, for the respondent
SOLICITORS:	Crown Solicitor, for the applicant Legal Aid Queensland, for the respondent