Margaret McMurdo P and Morrison JA and Applegarth J Separate reasons for judgment of each member of the Court, each concurring as to the orders made
ORDERS:
1. The appeal is allowed.
2. The order of the primary judge is set aside.
3. Instead it is ordered that, being satisfied to the requisite standard that Gregory David Kynuna is a serious danger to the community in the absence of an order pursuant to Division 3 of the Dangerous Prisoners (Sexual Offenders) Act 2003 (Qld):
A. The decision made on 30 November 2011, that Gregory David Kynuna is a serious danger to the community in the absence of an order pursuant to Division 3 of the Act is affirmed;
B. The continuing detention order made on 30 November 2011 is rescinded;
C. Gregory David Kynuna is released from custody on 23 June 2016 and from that time is subject to the requirements set out in [8] of these reasons until 23 June 2026.
CATCHWORDS:
CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – GENERALLY – where the appellant was a serious danger to the community in the absence of an order pursuant to Division 3 Dangerous Prisoners (Sexual Offenders) Act2003 – where the appellant was released on a supervision order but contravened the terms of that order by committing a sexual assault – where the appellant sexually assaulted a nurse after he placed her hand onto his genitals and held it there until she pulled it away – where, at the time, the appellant was admitted to hospital and was hypoxic – whether the primary judge erred in categorising this contravention as a serious sexual offence under the Act
T Ryan for the appellant P J Davis QC for the respondent
SOLICITORS:
Howden Saggers Cridland & Hua Lawyers for the appellant Crown Law for the respondent
MARGARET McMURDO P: The appellant, Gregory Kynuna, is a 51 year old man from the Kungai and Kooberra people who has spent most of…
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.
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Details
AGLC
Kynuna v Attorney-General for the State of Queensland [2016] QCA 172
Case
[2016] QCA 172
Decision Date
CaseChat Overview and Summary
In Kynuna v Attorney-General, the Court addressed an appeal concerning the appellant's status under the Dangerous Prisoners (Sexual Offenders) Act 2003 (Qld). The appellant, Kynuna, had a history of sexual offences and was released on a supervision order, which he violated by committing a sexual assault. The central issue was whether the primary judge correctly categorised this contravention as a serious sexual offence under the Act. The Court examined the nature of the offence and its alignment with the statutory definition of a serious sexual offence, which requires the potential for significant physical injury or psychological harm.
The Court held that the primary judge's classification of the sexual assault as a serious sexual offence under the Act was incorrect. The definition of a serious sexual offence in the Act implies an offence with the potential to cause significant physical injury or psychological harm. The Court found that the offence in question did not reach the level of violence contemplated by the Act. The Court reasoned that the statutory definition of "serious violent offence" requires more than mere physical contact, such as "pawing, grasping, groping or stroking", and includes acts like rape that would likely cause significant physical injury or psychological harm. The Court concluded that the appellant's conduct did not involve the requisite level of violence to constitute a serious sexual offence under the Act.
The Court allowed the appeal, set aside the primary judge's order, and affirmed the decision that Kynuna is a serious danger to the community. However, the continuing detention order was rescinded, and Kynuna was ordered to be released from custody under specific conditions until a future date.
Orders
Orders of the court
1. The appeal is allowed.
2. The order of the primary judge is set aside.
3. Instead it is ordered that, being satisfied to the requisite standard that Gregory David Kynuna is a serious danger to the community in the absence of an order pursuant to Division 3 of the Dangerous Prisoners (Sexual Offenders) Act 2003 (Qld):
A. The decision made on 30 November 2011, that Gregory David Kynuna is a serious danger to the community in the absence of an order pursuant to Division 3 of the Act is affirmed;
B. The continuing detention order made on 30 November 2011 is rescinded;
C. Gregory David Kynuna is released from custody on 23 June 2016 and from that time is subject to the requirements set out in [8] of these reasons until 23 June 2026.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
For these reasons, the respondent contends that the appellant has not disclosed any appealable error and the appeal should be dismissed.Conclusion In Phineasa, the Attorney-General appealed from a judge’s decision that Phineasa, who had a considerable history of sexual offending, should not be subject to an order under the Act. In 2006, he exposed his penis, masturbated in the presence of women at a hotel in Cairns, touching a woman’s bottom whilst doing so; masturbated and then attempted to rub his penis against the back of another woman; exposed his penis on a chair and attempted to poke a woman on her back with his penis as he ran it along the top of the chair; and walked closely behind a woman while fiddling with his groin area. In 2007, he entered a woman’s bedroom and touched her buttocks, pulling her underwear to one side; put his hands down his shorts and appeared to masturbate in front of a 64 year old woman, asking, ‘Do you get naked?’; approached a female shop assistant, masturbated in front of her to ejaculation and touched her on the bottom; grabbed and rubbed a woman’s bottom in a McDonald’s Restaurant; looked into the house of a woman when she was naked, rattled the security door and threatened to come inside; and masturbated or exposed himself in front of female Corrective Services officers on nine occasions.[49][49][2013] 1 Qd R 305, [7]. Muir JA, with whom White JA[50]and Philippides J[51] agreed, rejected the contention that any physical contact of a sexual nature would necessarily involve violence within the meaning of the term “serious violent offence”[52] under the Act. His Honour noted the pivotal role of the definition of “serious sexual offence” in the Act[53] and concluded that “A serious sexual offence is thus an offence, the commission, or potential commission, of which may represent ‘a serious danger to the community’.”[54] The objects of the Act, Muir JA considered, do not suggest that Parliament contemplated that those who posed a risk of only minor offending came within the Act.[55] To constitute “violence” within the term “serious violent offence” under the Act, more than mere physical contact or the application of force is required.[56] Force significantly greater in degree than mere physical contact such as “pawing, grasping, groping or stroking” is required. The term “serious violent offence” relates to sexual offences against adults of a very serious kind such as rape within the meaning of s 349 Criminal Code 1899 (Qld) which caused, or would be likely to cause, significant physical injury or significant psychological harm.[57] Whether conduct involves that kind of violence must always be determined by reference to the particular facts and circumstances of the case. Violation of a victim’s body by rape would normally involve violence of the kind envisaged by the Act.[58] This construction, the Court considered, is consistent with the principle of statutory construction that it is improbable that the legislature would overthrow fundamental principles, infringe rights or depart from the general system of law without the clearest of stated intentions.[59] It is also consistent with the Minister’s second reading speech which stated that the Act would be likely to apply only to “a dozen or so very, very serious offenders.”[60] The Court concluded that Phineasa’s offending did not involve force sufficient to constitute violence within the meaning of the Act.[50]Above, [58] and [59].[51]Above, [61].[52]Above, [25] and [26].[53]Above, [28].[54]Above, [29].[55]Above, [33].[56]Above, [36].[57]Above, [38].[58]Above, [39].[59]Above, [40] – [41].[60]Above, [42].