Attorney-General v Kanaveilomani

In the matter of Attorney-General v Kanaveilomani, the respondent, a prisoner serving a term of imprisonment for offences committed in 1999, was the subject of an application by the Attorney-General for a declaration that he was a dangerous sexual offender under the Dangerous Prisoners (Sexual Offenders) Act 2003 (Qld). The application was filed five months prior to the respondent's full time release date for the 1999 offences, but while he was still on remand for further offences committed in 2009. The respondent's parole had been suspended and he was returned to custody following the 2009 offences. The sentencing judge had declared the time served on remand between the end of the term of imprisonment for the 1999 offences and the date of sentence for the 2009 offences to be "imprisonment already served under the sentence".

The central legal issues in this case were whether the sentencing judge's declaration regarding the time served on remand had the effect of making the terms of imprisonment for the 1999 and 2009 offences a "period of imprisonment that includes a term of imprisonment for a serious sexual offence" within the meaning of the DPSO Act. The court also had to determine whether the risk assessment for the purposes of section 13(1) of the DPSO Act should be made at the time of the hearing of the application or at the time of actual release, and whether the primary judge had erred in making her determination or in exercising her discretion under section 13(5).

The court held that the sentencing judge's declaration did not have the effect of making the terms of imprisonment a "period of imprisonment" within the meaning of the DPSO Act. The court also found that the risk assessment for the purposes of section 13(1) should be made at the time of the hearing of the application, not at the time of actual release. However, the court held that the primary judge had not erred in exercising her discretion under section 13(5) not to make a Part 2 Division 3 order, given the uncertainty surrounding the risk assessment at the time of actual release.

The appeal was dismissed, and the orders of the primary judge were upheld.