Attorney-General for the State of Queensland v Doolan [2021] QSC 168

SUPREME COURT OF QUEENSLAND CITATION: Attorney General for the State of Queensland v Doolan [2021] QSC 168 PARTIES: ATTORNEY-GENERAL FOR THE STATE OF QUEENSLAND (applicant) v GEOFFERY DOOLAN (respondent) FILE NO/S: No 1454 of 2013 DIVISION: Trial Division PROCEEDING: Application ORIGINATING COURT: Supreme Court at Brisbane DELIVERED EX TEMPORE ON: 22 July 2021 DELIVERED AT: Brisbane HEARING DATE: 22 July 2021 JUDGE: Callaghan J ORDER: 1. The respondent be released from custody to be subject to the requirements of the supervision order made on 1 May 2015 by A Lyons J, and 2. remain subject to those requirements until 6 March 2026. 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 the subject of a supervision order made on 1 May 2015 under the provisions of the Dangerous Prisoners (Sexual Offenders) Act 2003 (DPSOA) - where the respondent breached the supervision order by ingesting cannabis and alcohol - where the evidence showed that the release of the respondent on supervision would ensure the adequate protection of the community provided the respondent lived in Supported Independent Living Accommodation (SILA) with funding from the National Disability Insurance Agency (NIDA) - where the SILA had been identified and funding from NIDA arranged but where the SILA was not presently available to the respondent - where the parties sought an order releasing -- 1 of 4 -- 2 the respondent on supervision once arrangements had been made to the satisfaction of Queensland Corrective Services - whether the making of such an order was appropriate - whether release on supervision ought only be ordered once the SILA was available CONSTITUTIONAL LAW - THE NON-JUDICIAL ORGANS OF GOVERNMENT - THE CROWN - CLASSIFICATION OF FUNCTIONS: JUDICIAL, LEGISLATIVE OR ADMINISTRATIVE - GENERALLY - where the Dangerous Prisoners (Sexual Offenders) Act 2003 (DPSOA) confers judicial power upon the court and administrative power upon Queensland Corrective Services - where upon breach of a supervision order made under the DPSOA the court must consider whether the release of the respondent on the supervision order will ensure adequate protection of the community against the commission by the respondent of a serious sexual offence – where, under the DPSOA, Queensland Corrective Services may direct the respondent as to where he may reside - where the residence of the respondent in Supported Independent Living Accommodation (SILA) is relevant to risk - where a supervision order will not ensure the adequate protection of the community against the commission by the respondent of a serious sexual offence unless the respondent when on supervision is living in a SILA - whether it is an appropriate exercise of judicial power to order the release of the respondent subject to Queensland Corrective Services securing and approving a SILA - consideration of the grant of judicial and administrative power under the DPSOA Dangerous Prisoners (Sexual Offenders) Act 2003 Attorney-General for the State of Queensland v Doolan [2021] QSC 143 COUNSEL: S Richards for the applicant L Reece for the respondent SOLICITORS: Crown law for the applicant Legal Aid Queensland for the respondent [1] This is an application under Division 5 of Part 2 of the Dangerous Prisoners (Sexual Offenders) Act 2003 (“the Act”). It is made following a complaint that the respondent contravened a requirement of a supervision order made by A Lyons J (as her Honour then -- 2 of 4 -- was) on 1 May 2015. This was a requirement that the respondent “abstain from the consumption of alcohol and illicit drugs for the duration of this order.” [2] On 5 March 2021, the respondent submitted a urine sample that reflected his use of cannabis. On 9 March 2021, the respondent underwent a breath test which indicated a blood alcohol concentration (BAC) of 0.144% and a urine test which reflected a BAC of 0.232%. QCS officers found him, incoherent, on a bathroom floor in his underwear near an empty four litre wine cask. The respondent admits the contravention and I find that he has contravened the order. This is the seventh time the respondent has been the subject of contravention proceedings, all of which have involved the use of intoxicating substances. There has been no sexual offending since the respondent committed the “index offences.” [3] The hearing of this application commenced before Davis J on 11 June 2021. It did not conclude, and his Honour adjourned the hearing, but not before delivering reasons that are so comprehensive as to render otiose anything I could add about the background, applicable legislative provisions and evidentiary issues. They are all canvassed in Attorney-General for the State of Queensland v Doolan.1 [4] I can pick up from the conclusion of paragraph [30] in his Honour’s reasons. [5] On 15 July 2021, the High Risk Offender Management Unit within Community Corrections, Queensland Corrective Services received information that the respondent’s application for supported independent living accommodation had been finalised. That accommodation is available from today, 22 July 2021. [6] The further evidence received today indicates that the respondent will, at this accommodation, have access to 24/7 supports under the National Disability Insurance Scheme. This means he will receive assistance with daily living, transport community access, therapy supports and support coordination. [7] Since I am satisfied the respondent has contravened a requirement of his supervision order, it is for him to discharge the onus cast upon him by the Act. Now that such accommodation is available, he can do that by invoking the unchallenged opinion of Dr 1 [2021] QSC 143. -- 3 of 4 -- Harden (reproduced more fully at paragraphs [10] and [11] of Davis J’s decision) that the risk of serious sexual offending by the respondent in the community is, if he is on a supervision order, reduced to the low-moderate range. The applicant acknowledges the force of that evidence and allows that it is open to the Court on the evidence to re-release the respondent to the community under the existing supervision order. In those circumstances I find that the respondent has discharged the onus that was on him to demonstrate that, despite his contravention, the adequate protection of the community can be ensured by his re-release under the existing supervision order, as amended to reflect recent developments. The order does constrain the respondent’s behaviour by curtailing the respondent’s opportunities to commit sexual offences. [8] I shall, therefore, order that the respondent be released from custody to be subject to the requirements of the supervision order made on 1 May 2015 as amended. He was ordered by Brown J to remain subject to those requirements until 5 January 2026. However, in order to reflect 60 days that he spent in custody following his arrest for offending that did not involve sexual offending, that date should be amended to 6 March 2026. -- 4 of 4 --