SUPREME COURT OF QUEENSLAND
CITATION:
Attorney-General for the State of Queensland v Newman [2018] QSC 156
PARTIES:
ATTORNEY-GENERAL FOR THE STATE OF QUEENSLAND
(applicant)
v
BRENTON JAMES NEWMAN(respondent)
FILE NO:
No 6241 of 2018
DIVISION:
Trial Division
PROCEEDING:
Application
DELIVERED ON:
6 July 2018
DELIVERED AT:
Brisbane
HEARING DATE:
3 July 2018
JUDGE:
Davis J
ORDER:
1. The application to adjourn the hearing under s 8 of the Dangerous Prisoners (Sexual Offenders) Act 2003 (“the Act”) is refused.
2. Being satisfied that there are reasonable grounds for believing that the respondent, Brenton James Newman, is a serious danger to the community in the absence of an Order pursuant to Division 3 of the Act, I order that:
(i) The application for a Division 3 Order be set for final hearing on 3 December 2018.
(ii) Pursuant to s 8(2)(a) of the Act, the respondent undergo examinations by two psychiatrists named by the Court, being Dr Scott Harden and Dr Josephine Sundin, who are to prepare independent reports, which are to be prepared in accordance with s 11 of the Act.
(iii) Being satisfied that it is in the interests of jusice, pursuant to s 39PB(3) of the Evidence Act 1977, the Court directs that Dr Michael Beech, Dr Scott Harden and Dr Josephine Sundin may give oral evidence to the Court other than by audio visual link or audio link.
(iv) Liberty to apply is granted.
CATCHWORDS:
CRIMINAL LAW – SENTENCE – SENTENCING ORDERS – ORDERS AND DECLARATIONS RELATING TO SERIOUS OR VIOLENT OFFENDERS OR DANGEROUS SEXUAL OFFENDERS – DANGEROUS SEXUAL OFFENDER – GENERALLY – where the Dangerous Prisoners (Sexual Offenders) Act 2003 (Qld) will preclude the respondent from making a parole application after the making of preliminary orders – whether preliminary orders can be made if the respondent is on parole – whether the making of preliminary orders should be adjourned to allow the respondent to apply for parole
Corrective Services Act 2006 (Qld) sch
Dangerous Prisoners (Sexual Offenders) Act 2003 (Qld) s 2, s 5, s 8, s 13, s 51
Johnston v The Central and Northern Queensland Regional Parole Board [2018] QSC 54, cited
Kynuna v Attorney-General (Qld) [2016] QCA 172, cited
Maycock v Queensland Parole Board [2015] 1 Qd R 408, cited
Minister for Immigration and Citizenship v SZJSS (2010) 243 CLR 164, cited
R v Newman (2007) 172 A Crim R 171, cited
Riddell v Secretary, Department of Social Security (1993) 42 FCR 443, cited
Smoker v Pharmacy Restructuring Authority (1994) 53 FCR 287, citedCOUNSEL:
Mr J Tate for the applicant
Ms S Robb for the respondent
SOLICITORS:
G R Cooper, Crown Solicitor for the applicant
Legal Aid Queensland for the respondent
The respondent, who is now 29 years of age, is presently in custody serving sentences imposed upon him in the District Court at Townsville on 5 March 2007. Those sentences included one of 13 years’ imprisonment for…
Continue reading Attorney-General v Newman
Sign in free to access the full text
- AGLC
- Attorney-General v Newman [2018] QSC 156
- Case
- [2018] QSC 156
- Decision Date
CaseChat Overview and Summary
The court addressed the question of whether it retained jurisdiction to make the preliminary orders after Newman's release on parole. It concluded that the court's jurisdiction to make such orders was not contingent on the timing of the parole application. The court also evaluated the prospects of Newman's parole application being successful, noting that the decision rested with the Parole Board. However, the court highlighted the importance of considering the ministerial guidelines in the parole process, which emphasised community safety as the highest priority. The court found that the guidelines did not necessarily bind the Parole Board to follow them, but they did provide a framework for decision-making.
In reaching its decision, the court refused the application for an adjournment, finding that there were reasonable grounds to believe that Newman posed a serious danger to the community. The court ordered that the application for a Division 3 Order be set for a final hearing on 3 December 2018. It also mandated that Newman undergo examinations by two psychiatrists, Dr Scott Harden and Dr Josephine Sundin, who were to prepare independent reports in accordance with the Act. The court further directed that the psychiatrists could give oral evidence in person. The final orders included setting the date for the final hearing, mandating psychiatric examinations, allowing the psychiatrists to give oral evidence, and granting liberty to apply.
Orders
Orders of the court
1. The application to adjourn the hearing under s 8 of the Dangerous Prisoners (Sexual Offenders) Act 2003 (“the Act”) is refused.
2. Being satisfied that there are reasonable grounds for believing that the respondent, Brenton James Newman, is a serious danger to the community in the absence of an Order pursuant to Division 3 of the Act, I order that:
(i) The application for a Division 3 Order be set for final hearing on 3 December 2018.
(ii) Pursuant to s 8(2)(a) of the Act, the respondent undergo examinations by two psychiatrists named by the Court, being Dr Scott Harden and Dr Josephine Sundin, who are to prepare independent reports, which are to be prepared in accordance with s 11 of the Act.
(iii) Being satisfied that it is in the interests of jusice, pursuant to s 39PB(3) of the Evidence Act 1977, the Court directs that Dr Michael Beech, Dr Scott Harden and Dr Josephine Sundin may give oral evidence to the Court other than by audio visual link or audio link.
(iv) Liberty to apply is granted.
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
Ratio Decidendi
Legal Principle Established
Consequently, the Attorney-General may only file an application against a prisoner “detained in custody”. However, if, after the filing of the application, the prisoner is released on parole, the Court retains jurisdiction to make both s 8 and s 13 orders.Discretionary consideration on the application for adjournmentProspects of the parole application being successful Mr Tate submitted that the application for parole was unlikely to be successful. Ms Robb on the other hand submitted that the application for parole was a strong one from the point of view of the present respondent. The invitation by both parties for me to assess the likely outcome of the exercise of executive power by the Parole Board is not attractive. However, a matter of construction of the Corrective Services Act 2006 and the ministerial guidelines made thereunder has arisen which I ought to deal with. The ministerial guidelines concern the performance of the Parole Board’s functions. They were issued pursuant to s 242E of the Corrective Services Act 2006. Section 242E provides as follows:“242E Guidelines The Minister may make guidelines about policies to help the parole board in performing its functions.” In considering the exercise of an executive power, the status of guidelines relevant to that function is critical. Often, the guidelines themselves have no statutory force and have just been developed as an aid to the decision-maker. In those circumstances, complaint is often made that adherence to the guidelines improperly fetters the discretion of the decision-maker.[14] However, guidelines may have a statutory force such that they must be followed by the decision-maker and therefore act as a valid fetter to a discretion.[15] Ministerial guidelines promulgated pursuant to the now repealed s 227 of the Corrective Services Act 2006 were guidelines that were required to be followed.[16] Section 227(1) was in the following terms:“227 Guidelines (1)The Minister may make guidelines about the policy to be followed by the Queensland board when performing its functions.” (emphasis added)[14] Minister for Immigration and Citizenship v SZJSS (2010) 243 CLR 164; Riddell v Secretary, Department of Social Security (1993) 42 FCR 443.[15] Smoker v Pharmacy Restructuring Authority (1994) 53 FCR 287.[16] Maycock v Queensland Parole Board [2015] 1 Qd R 408; Johnston v The Central and Northern Queensland Regional Parole Board [2018] QSC 54. Section 242E, the section which now authorises the making of ministerial guidelines, perhaps does not mandate that the Parole Board follow the guidelines in the way s 227 operated. It is not necessary to decide that issue. Nevertheless, it is necessary to refer to two sections of the ministerial guidelines, being section 1 and section 2. Those sections are as follows:“SECTION 1 – GUIDING PRINCIPLES FOR PAROLE BOARD QUEENSLAND1.1 Under section 242E of the Corrective Services Act 2006 (the Act) the Minister may make guidelines about policies to assist Parole Board Queensland in performing its functions. In following these guidelines, care should be taken to ensure that decisions are made with regard to the merits of the particular prisoner’s case.1.2 When considering whether a prisoner should be granted a parole order, the highest priority for Parole Board Queensland should always be the safety of the community.1.3 As noted by Mr Walter Sofronoff QC[17] in the Queensland Parole System Review ‘the only purpose of parole is to reintegrate a prisoner into the community before the end of a prison sentence to decrease the chance that the prisoner will ever reoffend. The only rationale for parole is to keep the community safe from crime’. With due regard to this, Parole Board Queensland should consider whether there is an unacceptable risk to the community if the prisoner is released to parole; and whether the risk to the community would be greater if the prisoner does not spend a period of time on parole under supervision prior to the fulltime completion of their prison sentence.[17] As the President of the Court of Appeal then was.SECTION 2 – SUITABILITY2.1 When deciding the level of risk that a prisoner may pose to the community, Parole Board Queensland should have regard to all relevant factors, including but not limited to, the following – a)the prisoner’s criminal history and any patterns of offending;b)the likelihood of the prisoner committing further offences;c)whether there are any other circumstances that are likely to increase the risk the prisoner presents to the community (including any of the factors set out in section 5.1 of these guidelines);[18][18] Section 5.1 concerns parole orders and conditions.d)whether the prisoner has been convicted of a serious sexual offence or serious violent offence or any of the offences listed in section 234(7) of the Act;e)the recommendation for parole, parole eligibility date, or any recommendation or comments of the sentencing court;f)the prisoner’s cooperation with the authorities both in securing the conviction of others and preservation of good order within prison;g)any medical, psychological, behavioural or risk assessment report relevant to the prisoner’s application for parole;h)any submissions made to Parole Board Queensland by an eligible person registered on the Queensland Corrective Services (QCS) Victims Register;i)the prisoner’s compliance with any other previous grant of parole or leave of absence;j)whether the prisoner has access to supports or services that may reduce the risk the prisoner presents to the community; andk)recommended rehabilitation programs or interventions and the prisoner’s progress in addressing the recommendations.2.2 A prisoner is not eligible for parole if under section 8(1) of the Dangerous Prisoners (Sexual Offenders) Act 2003 (DPSOA), a court has set down a hearing of an application for a Division 3 Order in relation to the prisoner and the application has not been discontinued or finally decided.2.3 For serious sexual offenders who are not subject to a DPSOA application at the time of applying for parole, Parole Board Queensland should consider the likelihood of an application being sought in the future, prior to making a decision to grant parole. It is recommended Parole Board Queensland apply the same criteria used by the Attorney-General in these instances.”