Carolan v The Queen

In Carolan v The Queen, the appellant, Carolan, sought to appeal against the refusal to discharge his indefinite sentence under the Sentencing Act 1991. Carolan was sentenced to an indefinite term for sexual offences and was subject to strict supervision and detention conditions under the Serious Sex Offenders (Supervision and Detention) Act 2009. Carolan argued that the conditions of his supervision and detention under the latter Act meant he was no longer a serious danger to the community, and therefore, his indefinite sentence should be discharged.

The primary legal issues before the court were whether the judge had erred in not making an order under section 18M of the Sentencing Act and whether the existence of the SSODSA regime was sufficient to conclude that Carolan would not be a serious danger to the community if his indefinite sentence was discharged. The court had to interpret section 5(2BD) of the Sentencing Act in light of the SSODSA regime and determine if this precluded the court from reviewing the indefinite sentence with regard to the supervision and detention provisions. Additionally, the court needed to consider the implications of the Charter of Human Rights and Responsibilities Act 2006 on the appellant's liberty.

The court found that the judge had erred by not considering the SSODSA regime in determining whether Carolan was still a serious danger to the community. It held that the proper construction of section 5(2BD) of the Sentencing Act did not prevent the court from reviewing the indefinite sentence with regard to the supervision and detention provisions. The existence of the SSODSA regime indicated that Carolan would not be a serious danger to the community if his indefinite sentence was discharged, given the strict conditions of supervision and detention. The court emphasised that a construction which least impinges on an offender’s liberty should be preferred, aligning with the principles of the Charter of Human Rights and Responsibilities Act 2006. Consequently, the court allowed the appeal, discharged the indefinite sentence, and ordered a five-year re-integration period for Carolan.