Attorney-General v Francis

Case [2005] QSC 381

SUPREME COURT OF QUEENSLAND

CITATION:

Attorney-General v Francis [2005] QSC 381

PARTIES:

ATTORNEY-GENERAL FOR THE STATE OF QUEENSLAND
(applicant)
v
DARREN ANTHONY FRANCIS
(respondent)

FILE NO/S:

SC No 3069 of 2004

DIVISION:

Trial Division

DELIVERED ON:

21 December 2005

DELIVERED AT:

Brisbane

HEARING DATE:

2, 3, 4 and 24 November 2005

JUDGE:

Mackenzie J

ORDER:

It is ordered that Darren Anthony Francis continue to be subject to the continuing detention order made by Byrne J on 13 August 2004

CATCHWORDS:

STATUTES – ACTS OF PARLIAMENT – INTERPRETATION – STATUTORY POWERS AND DUTIES – EXERCISE – GENERAL MATTERS – where respondent convicted of multiple sexual offences – where respondent “serious sexual offender” for purposes of Dangerous Prisoners (Sexual Offenders) Act 2003 (Qld) – where respondent detained after expiration of sentence pursuant to a continuing detention order – where treatment plan developed by psychiatrists to be implemented whilst respondent subject to continuing detention order – where evidence suggests that certain aspects of plan not carried out – whether Court should affirm decision that respondent is a “serious danger to the community” – whether court satisfied by acceptable, cogent evidence and to a high degree of probability that the evidence is of sufficient weight to affirm decision – whether respondent should continue to be subject to continuing detention order or should be released from custody subject to a supervision order – factors relevant to decision.

Dangerous Prisoners (Sexual Offenders) Act 2003 (Qld)

Fardon v Attorney-General for Queensland (2004) 210 ALR 50, considered

COUNSEL:

M D Hinson SC with M Maloney for the applicant
M Cooke QC with M Rinaudo for the respondent

SOLICITORS:

Crown Solicitor for the applicant
Aboriginal and Torres Strait Islander Legal Service for the respondent

  1. MACKENZIE J: This is an application by the Attorney-General under s 37(2) of the Dangerous Prisoners (Sexual Offenders) Act 2003 (Qld) (“the Act”) for review of a continuing detention order.

Nature of Review

  1. On 13 August 2004 an order was made by Byrne J that the respondent be detained in custody for an indefinite term for care, control and treatment. The order was made pursuant s 13(5)(a) of the Act. By s 14, a continuing detention order, which the order was, has effect from the later time of the time when the order is made or the end of the prisoner’s period of imprisonment, and until rescinded by an order of the court. The person subject to a continuing detention order remains a prisoner (s 14(2)).

  1. Part 3 has the express purpose of ensuring regular review of continuing detention under a continuing detention order (s 26).  The Attorney-General is required by s 27(2) to make the necessary application.  While the prisoner continues to be subject to a continuing detention order, the court must review the order at the end of one year after the order first had effect and at intervals of not less than one year after the last review was made (s 27(1)).  The present proceedings are the first review of the…

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AGLC
Attorney-General v Francis [2005] QSC 381
Case
[2005] QSC 381
Decision Date

CaseChat Overview and Summary

The case of Attorney-General v Francis involved the respondent, Darren Anthony Francis, who had been convicted of multiple sexual offences and was deemed a "serious sexual offender" under the Dangerous Prisoners (Sexual Offenders) Act 2003 (Qld). Following the expiration of his sentence, Francis was detained under a continuing detention order, subject to a treatment plan developed by psychiatrists. The central issue before the court was whether Francis should remain subject to the continuing detention order or be released into the community under a supervision order. The court was required to determine whether the evidence was sufficient to affirm that Francis posed a serious danger to the community, warranting his continued detention, or whether a lesser degree of control would provide adequate protection.

The court found that the evidence presented, which included detailed accounts of Francis's violent and sadistic sexual offences, was acceptable, cogent, and of sufficient weight to affirm that Francis remained a serious danger to the community. The court acknowledged the imprecision of risk prediction but emphasised the need for adequate, not absolute, protection of the community. The court highlighted that Francis's risk was particularly severe if he formed an intimate relationship with a woman and was abusing amphetamines or alcohol. Given the nature and level of the risk he posed, the court concluded that anything less than a continuing detention order would not provide adequate protection to the community.

In affirming the decision of Byrne J, the court underscored the paramount consideration of ensuring adequate protection of the community, as stipulated in section 30(4) of the relevant Act. The court rejected the alternative of releasing Francis under a supervision order, finding it insufficient to manage the identified risk. Therefore, it was ordered that Darren Anthony Francis continue to be subject to the continuing detention order made by Byrne J on 13 August 2004.

Orders

Orders of the court

It is ordered that Darren Anthony Francis continue to be subject to the continuing detention order made by Byrne J on 13 August 2004

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

(a)Should Byrne J’s decision be affirmed? Mr Cooke accepted, on the respondent’s behalf, that the decision of Byrne J that the respondent was a serious danger to the community in the absence of a Division 3 order should be affirmed. The evidence summarised earlier in these reasons is acceptable, cogent evidence by which I am satisfied to a high degree of probability that he remains a serious danger to the community in the absence of such an order. I am satisfied that it is of sufficient weight to require me to affirm Byrne J’s decision, which I do. (b) Considerations in making an order. According to s 30(3), the two options are that a continuing detention order to be made, or that he be released from custody subject to a supervision order. The paramount consideration is the need to ensure adequate protection of the community (s 30(4)). Adequate protection, not absolute protection, is what is referred to. What is adequate protection requires a judgment to be made concerning the nature of the risk, the level of risk he poses and what measures would provide protection commensurate with the risk. Where a person has a history of violence, there can be no certainty that he will not commit further violence again if circumstances arise in which he is prone to do so. Most offenders are released into the community, without any external control, either because post prison community based release has come to an end, or they have completed the full sentence. Not all re-offend, notwithstanding that there are factors, peculiar to them, in their personality and history that suggest that there may be a significant risk that they may. The evidence of the psychiatrists confirms that risk prediction is necessarily imprecise. Where the choice is between preventive detention, which a continuing detention order is by another name, and allowing the offender to live in the community subject to a supervision order, the difficulty is to identify, as precisely as possible, circumstances in which danger to the community is likely to occur and whether there is a degree of control short of continuing detention that will provide adequate protection to the community. That formulation of the approach to be followed recognises that continuing detention beyond the expiry date of a finite sentence imposed for an offence can only be justified by the existence of a risk that is so great that anything less than a continuing detention order would not provide adequate protection to the community from it. (c)What is the nature of the risk? Unlike many sexual offenders, the respondent’s sexual offending has been of a particular kind. The two incidents which led to imprisonment, first in New South Wales, and then in Queensland, the latter of which led to his continuing detention order, were very violent and sadistic. In each case, they occurred in circumstances where amphetamine and alcohol abuse were factors. In each case, he assaulted a woman with whom he was in a sexual relationship because he apparently believed she had been unfaithful to him. In each case, there were bizarre acts involving insertion of objects into and other forceful acts in relation to the woman’s sexual organs, and otherwise. Details of the offences can be found in Appendix C to Dr Moyle’s report (pp 65-72 of his affidavit).

Ratio Decidendi

Legal Principle Established

(b) Considerations in making an order. According to s 30(3), the two options are that a continuing detention order to be made, or that he be released from custody subject to a supervision order. The paramount consideration is the need to ensure adequate protection of the community (s 30(4)). Adequate protection, not absolute protection, is what is referred to. What is adequate protection requires a judgment to be made concerning the nature of the risk, the level of risk he poses and what measures would provide protection commensurate with the risk. Where a person has a history of violence, there can be no certainty that he will not commit further violence again if circumstances arise in which he is prone to do so. Most offenders are released into the community, without any external control, either because post prison community based release has come to an end, or they have completed the full sentence. Not all re-offend, notwithstanding that there are factors, peculiar to them, in their personality and history that suggest that there may be a significant risk that they may. The evidence of the psychiatrists confirms that risk prediction is necessarily imprecise. Where the choice is between preventive detention, which a continuing detention order is by another name, and allowing the offender to live in the community subject to a supervision order, the difficulty is to identify, as precisely as possible, circumstances in which danger to the community is likely to occur and whether there is a degree of control short of continuing detention that will provide adequate protection to the community. That formulation of the approach to be followed recognises that continuing detention beyond the expiry date of a finite sentence imposed for an offence can only be justified by the existence of a risk that is so great that anything less than a continuing detention order would not provide adequate protection to the community from it. (c)What is the nature of the risk? Unlike many sexual offenders, the respondent’s sexual offending has been of a particular kind. The two incidents which led to imprisonment, first in New South Wales, and then in Queensland, the latter of which led to his continuing detention order, were very violent and sadistic. In each case, they occurred in circumstances where amphetamine and alcohol abuse were factors. In each case, he assaulted a woman with whom he was in a sexual relationship because he apparently believed she had been unfaithful to him. In each case, there were bizarre acts involving insertion of objects into and other forceful acts in relation to the woman’s sexual organs, and otherwise. Details of the offences can be found in Appendix C to Dr Moyle’s report (pp 65-72 of his affidavit). None of the psychiatrists consider he is a danger to children; he is not, in their opinion, a paedophile. None of the other previous offences suggest a propensity to commit serious sexual offences. Dr Hogan, the only psychiatrist asked about, it said that there might be some risk if he met someone in a social situation and attraction occurred on the sudden. However, that is as high as he put it. The nature of the identified risk is that, if he forms an intimate relationship with a woman, he may commit a serious sexual offence on her, especially if he were to be abusing amphetamines or alcohol during the relationship.