R v Miller

Case [2003] QCA 404

SUPREME COURT OF QUEENSLAND

CITATION:

Attorney-General (Qld) v Kanaveilomani [2013] QCA 404

PARTIES:

ATTORNEY-GENERAL FOR THE STATE OF QUEENSLAND
(appellant)
v
TIMOCI KURUYAWA KANAVEILOMANI
(respondent)

FILE NO/S:

Appeal No 4632 of 2013
SC No 6425 of 2010

DIVISION:

Court of Appeal

PROCEEDING:

General Civil Appeal

ORIGINATING COURT:


Supreme Court at Brisbane

DELIVERED ON:

20 December 2013

DELIVERED AT:

Brisbane

HEARING DATE:

12 September 2013

JUDGES:

Margaret McMurdo P and Morrison JA and Philippides J
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 – DANGEROUS SEXUAL OFFENDER – GENERALLY – where the respondent was serving a period of imprisonment for offences committed in 1999, including two counts of rape – where in 2009, whilst on parole for the 1999 offences, the respondent committed the further offences of entering a dwelling house with intent to commit an indictable offence, grievous bodily harm and stealing – where the applicant’s parole was suspended indefinitely and he was returned to custody – where, five months before the full time release date for the 1999 offences, the Attorney-General filed an application for the respondent to be detained pursuant to the Dangerous Prisoners (Sexual Offenders) Act 2003 (Qld) (“DPSO Act”) – where, once the term of imprisonment for the 1999 offences ended, the respondent was held on remand for the 2009 offences – where, on 10 January 2012, the respondent was sentenced for the 2009 offences to 13 years imprisonment, making his full time release date 20 November 2023 – where the sentencing judge, exercising the power under s 159A(3) of the Penalties and Sentences Act 1992 (Qld) (“PSA”), declared the time served on remand between the end of the term of imprisonment for the 1999 offences and the date of sentence for the 2009 offences to be “imprisonment already served under the sentence” – whether the declaration made by the sentencing judge pursuant to s 159A(3)(c) of the PSA had the effect that the term of imprisonment imposed in respect of the 2009 offences, taken together with the term of imprisonment for the 1999 offences, constituted a “period of imprisonment that includes a term of imprisonment for a serious sexual offence” within the meaning of s 5(6) of the DPSO Act – whether, if that was so, the Attorney-General’s application, although validly instituted, had ceased to be efficacious because an application could be made at a time after 20 May 2023 pursuant to s 5(2)(c) of the DPSO Act

CRIMINAL LAW – SENTENCE – SENTENCING ORDERS – ORDERS AND DECLARATIONS RELATING TO SERIOUS OR VIOLENT OFFENDERS OR DANGEROUS SEXUAL OFFENDERS – DANGEROUS SEXUAL OFFENDER – GENERALLY – where the application was made in respect of the 1999 offences, but the respondent’s full time release date for the 2009 offences was not until 20 November 2023 – where s…

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AGLC
R v Miller [2013] QCA 404
Case
[2003] QCA 404
Decision Date

CaseChat Overview and Summary

In the case of R v Miller, the respondent was imprisoned for a number of offences committed in 1999, including two counts of rape. While on parole in 2009, he committed additional offences, leading to the suspension of his parole and a return to custody. The Attorney-General subsequently filed an application for the respondent to be detained under the Dangerous Prisoners (Sexual Offenders) Act 2003 (Qld). The respondent was later sentenced to 13 years imprisonment for the 2009 offences, with a full time release date of 20 November 2023. The sentencing judge declared that the time served on remand between the end of the term for the 1999 offences and the date of sentence for the 2009 offences constituted "imprisonment already served under the sentence." The appeal raised questions about whether the declaration made by the sentencing judge constituted a "period of imprisonment that includes a term of imprisonment for a serious sexual offence" within the meaning of the DPSO Act and whether the Attorney-General's application had ceased to be efficacious.

The legal issues in this case revolved around the interpretation and application of the Dangerous Prisoners (Sexual Offenders) Act 2003 (Qld) and the Penalties and Sentences Act 1992 (Qld). The primary question was whether the declaration made by the sentencing judge had the effect of constituting the term of imprisonment imposed in respect of the 2009 offences, taken together with the term of imprisonment for the 1999 offences, as a "period of imprisonment that includes a term of imprisonment for a serious sexual offence" within the meaning of the DPSO Act. The appeal also questioned whether the primary judge erred in being satisfied that the respondent was a serious danger to the community under s 13(1) at the time of the hearing of the application, as the proper construction of s 13 required the risk assessment to be made in respect of his actual release in 2023. Furthermore, the appellant contended that s 13 requires the risk assessment to be made at the time of the hearing of the application and that, upon being satisfied that the respondent was a serious danger to the community at the time of the hearing of the application in the absence of a Pt 2 div 3 order, the primary judge erred in exercising her discretion not to make a Pt 2 div 3 order.

The Court dismissed the appeal, holding that the sentencing judge's declaration did not constitute a "period of imprisonment that includes a term of imprisonment for a serious sexual offence" within the meaning of the DPSO Act. The Court further held that the primary judge was correct in being satisfied that the respondent was a serious danger to the community at the time of the hearing of the application, as the proper construction of s 13 required the risk assessment to be made in respect of his actual release in 2023. The Court also found that the primary judge did not err in exercising her discretion not to make a Pt 2 div 3 order, given the uncertainty surrounding the respondent's risk at the time of his likely release in 2023.

The Court made no orders as the appeal was dismissed.

Orders

Orders of the court

Appeal dismissed.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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