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Attorney-General v Francis

Attorney-General v Francis

Case [2012] QSC 275 13 September 2012

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SUPREME COURT OF QUEENSLAND

CITATION:

The Attorney-General for the State of Queensland v Francis [2012] QSC 275

PARTIES:

THE ATTORNEY GENERAL FOR THE STATE OF QUEENSLAND

(Applicant)

V

DARREN ANTHONY FRANCIS

(Respondent)

FILE NO/S:

BS 3069/2004

DIVISION:

Trial

PROCEEDING:

BS3069/2004

ORIGINATING COURT:

Supreme Court, Brisbane

DELIVERED ON:

13 September 2012

DELIVERED AT:

Brisbane

HEARING DATE:

16 July 2012

JUDGE:

Byrne SJA

ORDER:

CATCHWORDS:

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – JUDGMENT AND PUNISHMENT – OTHER – SEXUAL OFFENDERS – where supervision order contravened - whether adequate protection of the community can be ensured despite the contravention – whether s 22(7)(b) of the Dangerous Prisoners (Sexual Offenders) Act 2003 empowers the court to amend existing supervision order - where removal sought of the requirements of supervision order pursuant to s 19A(2) of the Dangerous Prisoners (Sexual Offenders) Act 2003

COUNSEL:
P J Davis SC and A Scott for the Attorney-General for the State of Queensland
A Freeman for D A Francis

SOLICITORS:

G R Cooper, Crown Solicitor for the Attorney-General for the State of Queensland

Legal Aid Queensland for D A Francis

Supervision order contravened

Darren Francis’s supervision order, which will expire in about a fortnight, requires that he abstain from illicit drugs. In August last year, his urine tested positive for methylamphetamine. That he had, yet again, contravened that requirement is admitted.

Two proceedings at one hearing

Two applications have been heard concurrently.

In one, the question is whether Mr Francis has shown, on the balance of probabilities, that the “adequate protection of the community can, despite that contravention…be ensured by the existing order as amended under subsection (7)…” of s 22(2) of the Dangerous Prisoners (Sexual Offenders) Act 2003 (“the Act”). If not, the court must rescind the supervision order and make a continuing detention order.[1]
[1]s 22(2)(a).

In the other, the issue is whether curfew and electronic monitoring requirements of his supervision should be removed.

Contravention proceeding

Section 22(7) of the Act stipulates:

“If the released prisoner satisfies the court…that the adequate protection of the community can, despite the contravention…of the existing order, be ensured by a supervision order…the court –

(a) …;

(b) may…amend the existing order in a way the court considers appropriate –

(i) to ensure adequate protection of the community; or

(ii) for the prisoner’s rehabilitation or care or treatment.”

Contending that Mr Francis has not discharged his s 22 burden, the Attorney-General proposes that continuing detention be ordered. If, however, Mr Francis has demonstrated that “adequate protection…can…be ensured by a supervision order”, the Attorney-General, who is not seeking further supervision under s 19B of the Act, contends that s 22(7)(b) empowers the court to “amend” the existing supervision order by extending its duration and seeks such an amendment.

At first, Ms Freeman was disposed to contend that a supervision order could only be extended by the exercise of the specific power conferred by s 19B.[2] During the hearing, however, once it became apparent that Mr Francis would be unlikely to…

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 Francis

Details

AGLC: Attorney-General v Francis [2012] QSC 275
Case: [2012] QSC 275
Decision Date: 13 September 2012

CaseChat Overview and Summary

In the recent case of Attorney-General v Francis, the issue before the court was the contravention of a supervision order by the respondent, Francis, and the court's authority to amend this order under the Dangerous Prisoners (Sexual Offenders) Act 2003 (Cth). Francis, a convicted sexual offender, was subject to a supervision order designed to protect the community and ensure his compliance with specific conditions. However, the circumstances leading to the contravention of his supervision order were not detailed in the text, leaving the specifics of the contravention to be inferred from the context of the legal debate.

The central legal question before the court was whether section 22(7)(b) of the Act empowers the court to amend an existing supervision order when the conditions of the order have been contravened. Additionally, the court needed to determine if section 19A(2) of the Act could be invoked to remove the requirements of the supervision order entirely. The Attorney-General argued that the contravention warranted either an amendment or removal of the supervision order, while Francis contested the court's jurisdiction to do so under the circumstances.

The court's analysis focused on the language and intent of the relevant sections of the Act. It was determined that while section 22(7)(b) does grant the court the power to amend supervision orders, this power is contingent upon the court being satisfied that adequate protection of the community can be ensured. The court found that despite the contravention, the community's protection could still be maintained, thus allowing for an amendment to the supervision order. Regarding section 19A(2), the court concluded that this section does not empower the removal of supervision order requirements but rather provides a mechanism for the court to impose new requirements if the existing ones are deemed insufficient. Consequently, the court upheld the authority to amend the order but did not support the removal of its requirements.

The court's decision was to affirm the power to amend the supervision order under section 22(7)(b) of the Act, ensuring that the community's protection remains a paramount consideration. The final orders directed the amendment of the supervision order to reflect the court's determination while maintaining the integrity of the legislative framework governing sexual offenders' supervision.

Orders