R v Garland

[2012] QDC 228

DISTRICT COURT OF QUEENSLAND

CITATION:

R v Garland [2012] QDC 228

PARTIES:

THE QUEEN
(Applicant)

V

RAYMOND HENRY GARLAND
(Respondent)

FILE NO/S:

No 1976 of 2011

DIVISION:

Criminal

PROCEEDING:

Application to review indefinite sentences

ORIGINATING COURT:

District Court, Brisbane

DELIVERED ON:

29 August 2012

DELIVERED AT:

Brisbane

HEARING DATES:

13, 14 and 16 August 2012

JUDGE:

Dorney QC DCJ

ORDER:

1.    The review is made.

2.    No order is made on this application.

CATCHWORDS:

Indefinite detention – review – what “community” means – whether temporal aspects – whether potential parole needs to be considered – whether any recommendation for management and/or treatment can, or ought, be made

Corrective Services Act 2006 (Qld) Chapter 5, Part 1, s 181A
Criminal Law (Two Strike Child Sex Offenders) Amendment Act 2012 (Qld)
Dangerous Prisoners (Sexual Offenders) and Other Legislation Amendment Act 2010 (Qld)
Penalties and Sentences Act 1992 (Qld) ss 9, 163, 167, 169, 170, 171, 172A, 172B, 172C, 173, 174, 174B, 176, 187, s 217 (trans.), 223 (trans.)

Buckley v The Queen [2006] HCA 7
Gunn v Queensland Corrective Services Commission & Queensland Community Corrections Board (unreported; Application No. 28 of 1995; de Jersey J; 02/08/95)
Hancock v East Coast Timber Products Pty Ltd (2011) 80 NSWLR 43
Project Blue Sky v ABA (1998) 194 CLR 355
R v Buckley [2008] QCA 45
R v Fletcher [1998] QCA 286
R v Fletcher [2011] QSC 235
R v Stone [2011] QDC (25.03.11)
R v Young (1999) 46 NSWLR 681
Special Projects (Qld) Pty Ltd v Simmons [2012] QCA 205

COUNSEL:

S J Farnden for the Applicant
N M Cooke QC and H Trotter for the Respondent

SOLICITORS:

Office of the Director of Public Prosecutions for the Applicant
Aboriginal & Torres Strait Islander Legal Service for the Respondent

Introduction

1. The respondent to this application is a prisoner, Mr Raymond Henry Garland. He is, in terms of the legislation, the “offender”. The application before the Court, filed by the Director of Public Prosecutions on 31 October 2011, seeks a review of 4 indefinite sentences imposed by Hoath DCJ on 23 October 1998. The term of each “nominal sentence” was life imprisonment. On application, he had “served” 13 years.

1. The purpose of the review is to determine whether this Court must order that those indefinite sentences be discharged, with the default being that the indefinite sentences continue in force.

1. Many questions have arisen for determination in this application made pursuant to the Penalties and Sentences Act 1992 (Qld) (“PSA”).  They include:

·     whether the determination (of whether the “offender” is “still” a danger to the community “when” a review is “made”) involves temporal aspects;

·     whether, amongst any such temporal aspects, a consideration needs to be undertaken of the parole provisions contained in Part 10 (which deal generally with indefinite sentences);

·     what is meant by the term “to the community” (concerning “still a serious danger”) on such an application;

·     what effect the amendments to the PSA effected by the Dangerous Prisoners…