LAB (appellant) v ATTORNEY-GENERAL FOR THE STATE OF QUEENSLAND (respondent)
FILE NO/S:
Appeal No 12862 of 2010 SC No 1027 of 2009
DIVISION:
Court of Appeal
PROCEEDING:
General Civil Appeal
ORIGINATING COURT:
Supreme Court at Brisbane
DELIVERED ON:
13 September 2011
DELIVERED AT:
Brisbane
HEARING DATE:
19 May 2011
JUDGES:
Muir, Chesterman and White JJA Separate reasons for judgment of each member of the Court, each concurring as to the order made
ORDER:
Appeal dismissed
CATCHWORDS:
CRIMINAL LAW – SENTENCE – SENTENCING ORDERS – ORDERS AND DECLARATIONS RELATING TO SERIOUS OR VIOLENT OFFENDERS OR DANGEROUS SEXUAL OFFENDERS – GENERALLY – where the appellant appealed against a decision rescinding a supervision order and subjecting him to a continuing detention order – where the appellant breached the previous supervision order by failing to abstain from the consumption of alcohol – where the appellant’s attitude towards the use of alcohol and other prohibited substances as a factor in his risk profile changed – whether the supervision order should be reinstated
Dangerous Prisoners (Sexual Offenders) Act 2003, s 13, s 13(4), s 21(2)(a), s 22(2), s 43B
Attorney-General v Francis [2007] 1 Qd R 396; [2006] QCA 324, considered R v L [1999] QCA 423, cited
COUNSEL:
J J Allen for the appellant J M Sharp for the respondent
SOLICITORS:
Legal Aid Queensland for the appellant Crown Law for the respondent
MUIR JA: I agree that the appeal should be dismissed for the reasons given by White JA.
CHESTERMAN JA: I agree with White JA, that the appeal should be dismissed, for the reasons given by her Honour.
WHITE JA: On 29 October 2010 an order was made under the provisions of the Dangerous Prisoners (Sexual Offenders) Act 2003 (Qld) in the Trial Division rescinding a supervision order made on 18 June 2009 concerning the appellant and subjecting him to a continuing detention order. The appellant appeals that rescission and seeks the re-instatement of the supervision order.
Condition (xxii) of the supervision order required the appellant to “abstain from the consumption of alcohol for the duration” of the supervision order.[1] On 21 August 2009 the appellant was breath tested and returned a reading of BAC 0.079 per cent. On 14 October 2009 he was sentenced to two months imprisonment in the Brisbane Magistrates Court wholly suspended for the offence of contravention of a supervision order pursuant to s 43B of the Dangerous Prisoners (Sexual Offenders) Act (“the Act”). He was given a warning by Corrections.On 27 November 2009 the appellant was again breath tested and returned a BAC reading of 0.077 per cent. On 30 November 2009 the appellant was ordered to be detained pursuant to s 21(2)(a) of the Act. On 1 December 2009 the Magistrates Court at Richlands sentenced the appellant to three months imprisonment for contravening a supervision order pursuant to s 43B and activated the period of suspended imprisonment imposed on 14 October…
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
LAB v Attorney-General [2011] QCA 230
Case
[2011] QCA 230
Decision Date
CaseChat Overview and Summary
The case of LAB v Attorney-General involved an appellant who appealed against a decision rescinding a supervision order and subjecting him to a continuing detention order. The appellant had breached a previous supervision order by failing to abstain from the consumption of alcohol. The court was tasked with determining whether the supervision order should be reinstated given the appellant's changed attitude towards the use of alcohol and other prohibited substances as a factor in his risk profile.
The central legal issue before the court was whether the appellant's changed attitude towards the consumption of alcohol and other prohibited substances warranted the reinstatement of the supervision order that had been rescinded. The court had to consider the relevance and weight of the appellant's changed attitude in the context of his risk profile and the terms of the supervision order.
The court found that the appellant's changed attitude, while positive, did not sufficiently mitigate his previous breach of the supervision order. The court concluded that the appellant had not demonstrated a stable and enduring change in attitude that would justify reinstating the supervision order. Consequently, the court dismissed the appeal, maintaining the continuing detention order in place.
No additional orders were made beyond the dismissal of the appeal.