Attorney General (NT) v EE (No 2)

• Jurisdiction: Northern Territory
• Court: Supreme Court
• Judge: Blokland J
• Judgment Date: 21 October 2013
• Neutral Citation: [2013] NTSC 68
• Docket Number: FILE NO: 62 of 2013(21328402)
• Date: 21 October 2013

[2013] NTSC 68

SUPREME COURT OF THE NORTHERN TERRITORY

IN THE SUPREME COURT OF THE NORTHERN TERRITORY OF AUSTRALIA AT DARWIN

Judgment of:

Blokland J

FILE NO: 62 of 2013(21328402)

Between:

Attorney-General of the NT

Applicant

and

EE

Respondent

REPRESENTATION:

Counsel:

Applicant: Mr Anderson

Respondent: Mr Wild QC, Mr Brock

Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (2009) 239 CLR 27 ; Attorney-General (QLD) v Francis [2006] QCA 324; M v M (1988) 166 CLR 69; WA v Latimer [2006] WASC 235; Attorney-General for the State of Queensland v Sutherland [2006] QSC 268, cited

Attorney-General for the State of Queensland v Sybenga [2009] QCA 382 , distinguished

Attorney-General (QLD) v Francis [2006] QCA 324 , applied

Serious Sex Offenders Act ss 6, 10, 16, 22, 23, 31, 32, 58, 71, 89.

STATUTORY INTERPRETATION — JURISDICTION, PRACTICE AND PROCEDURE — Where applicant applied for a final continuing detention order under s 23 of the Serious Sex Offenders Act — respondent a ‘qualifying offender’ as per s 22 — Court retains jurisdiction to make relevant order — respondent considered a ‘serious danger to the community’ as per s 31 — standard of proof is to a ‘high degree of probability’ — purpose of Act preventative not punitive — intensive supervision recommended by health professionals — final supervision order considered appropriate to meet risk of re-offending — final supervision order made —

REASONS FOR JUDGMENT

(Delivered 21 October 2013)

Introduction

1 On 1 July 2013 the Serious Sex Offenders Act (NT) (the Act) commenced. By amended originating motion filed 4 July 2013, the Attorney-General (the applicant) sought orders for a final continuing detention order, and alternatively a final supervision order in relation to the respondent. At the conclusion of the preliminary hearing on 16 July 2013, (conducted in accordance with s 25 of the Act), an interim supervision order was made pending the final hearing. The date for the hearing was set down for 25 September 2013. 1 A medical assessment order was made as required by s 26(2)(b) naming Dr Walton and Dr Raeside.

2 I reserved my decision after the substantive hearing on 25 September 2013. Since that hearing, further written submissions have been filed on behalf of both parties. I have taken those submissions into account. 2 These are the reasons for making a final supervision order. The applicant submitted a final continuing detention order was the appropriate order; the respondent submitted the Court should make no order; but if an order was to be made, a supervision order should be made.

3 The respondent has been on a strict interim supervision order since his release from prison as a consequence of the order made on 16 July 2013. He has been subject not only to supervision by Correctional Services, but the material before the Court indicates he has received significant additional support from Correctional Services staff as well as the North Australian Aboriginal Justice Agency (NAAJA), Mission Australia, Danila Dilba Health Services and a Lutheran Pastor. As will be seen in the reasons that follow, this extra support is a positive, possibly unexpected outcome of the operation of the Act and appears to have motivated the respondent towards more positive behaviours, rehabilitation and taking responsibility. In my opinion, however, the respondent presently remains at the level of risk

sufficient to enliven the provisions of the Act. The protection of the community is the predominant object of the Act.

Whether the Court retains Jurisdiction

4 Senior counsel for the respondent challenged the Court's jurisdiction to proceed to make final orders at the substantive hearing, arguing that the Act envisaged the whole process be commenced and concluded within the last 12 months of a respondent's sentence. As this respondent was a ‘qualifying offender’ only until 18 July 2013, the preliminary hearing under s 25 of the Act was necessarily expedited. 3

5 As the order made at the preliminary hearing was an interim supervision order pending the substantive hearing, it was argued that the order expired at the hearing on 25 September 2013 by operation of s 16(2) of the Act. As a final order could only then be made at the conclusion of the substantive hearing, it was submitted that the respondent was no longer, at the time of the conclusion of the hearing a ‘qualifying offender’ under the Act and the court's jurisdiction had lapsed.

6 Section 31 of the Act provides that on the hearing of an application under s 23 of the Act, 4 the Supreme Court may make a final continuing detention order or a final supervision order in relation to the ‘qualifying offender’, if satisfied the ‘qualifying offender’ is a serious danger to the community.

7 Section 22 defines a “qualifying offender” as a person who has been convicted of a serious sex offence; and either:

‘Under sentence of imprisonment’ means the person is in custody serving the sentence; or is subject to certain enumerated orders pursuant to the Sentencing Act or the Parole of Prisoners Act. None of those are relevant here. Section 22(4) refers to a person who has served their sentence for the serious sex offence and is under sentence of imprisonment for another offence or is in custody for any other reason, other than a continuing detention order; and the person has not ceased to be under sentence of imprisonment; or in custody for any other reason.

• (i) he or she is under sentence of imprisonment for that offence; or

• (ii) subsection (4) applies to him or her

8 It is argued the respondent was no longer a ‘qualifying offender’ as he no longer met the criteria in s 22 of the Act by the time of the hearing on 25 September 2013. In terms of other indications in the Act that might inform this question, it is argued s 10, (that specifies when a continuing detention order comes into force), and s 16, (that provides when a supervision order comes into force), do not create powers to be exercised by the Court, but rather set out the mechanism regulating when orders come into force. It may be noted, however, the mechanism that provides for the commencement of supervision orders in s 16 of the Act permits two alternatives: if (emphasis added) the supervisee is a qualifying offender when the order is made — when he or she ceases to be a qualifying offender; or otherwise — at the time the order is made. I agree s 16 does not fully answer the issue posed, but by its terms s 16 contemplates the circumstances relevant to this hearing.

9 I do not agree with the submission that ss 58 and 71 detract from the indications drawn from ss 10 and 16. Sections 58 and 71 deal with separate fundamental issues of revocation on proof of contravention of orders and the review of certain orders. That a supervisee or detainee who is the subject of an application under ss 58 or 71 is not a ‘qualifying offender’ is unexceptional given the processes envisaged prior to the need to resort to those sections. Those sections do not, as far as I can tell, inform the interpretation issue raised.

10 It was submitted that the three categories of persons who may be subject to continuing orders under the Act are ‘qualifying offenders’ under s 31; a supervisee in contravention of their order who is then made subject to continuing detention, and a detainee made subject to a further order on review. The respondent, it was argued, does not come within any of these three circumstances. It was argued the Act is structured in this way to avoid the abhorrent result of a person being at liberty and returned to custody when they had not committed any further offence. The Act, in a narrow set of circumstances, does not prohibit this result, although it might be expected that in other cases it will operate in the manner suggested.

11 The respondent referred to the following portion of the second reading speech: 5

The application must be made within the period of 12 months before which the imprisonment sentence is due to end. The fact that a person may not be in custody because of parole or under a suspended sentence or home detention, or community custody does not affect the period in which an order can be sought.

It is important to note these detention and supervision orders will not, as a general rule, interfere with the parole process or any other process under which a person is released from prison prior to the time when their prison sentence is due to expire.

12 This part of the second reading speech does not in my view express the limitation suggested. The ‘application’ refers to the application being made; not the totality of the process. The second paragraph refers to a ‘general rule’, but in any event is referring to the special situation of preservation of conditional release orders.

13 Senior counsel also referred, by way of comparison to s 4 of the Serious Sex Offenders (Detention and Supervision) Act (Vic) and s 10 of the Dangerous Sexual Offences Act (WA). Clearly those provisions permit in express terms, applications to proceed beyond the release date. That does not detract from the terms of this Act.

14 Senior counsel for the respondent also referred to the interpretation of s 19(2)(a) Sentencing (Crime of Murder) and Parole Reform Act (NT) that provides the Director of Public Prosecutions must make an application to

extend the non parole period of certain prisoners beyond 20 years ‘not earlier than 12 months’ before the minimum 20 year period is due to expire. It was said that the whole application was to be heard and determined within 12 months. I have been unable to locate any relevant authority on this point, however, that provision is in the context of sentencing orders; a different context than this Act. It also strikes me that the reason such an interpretation may have been adopted is because if...