Attorney-General for the State of Queensland v Larry [2021] QSC 6

SUPREME COURT OF QUEENSLAND CITATION: Attorney-General for the State of Queensland v Larry [2021] QSC 6 PARTIES: ATTORNEY-GENERAL FOR THE STATE OF QUEENSLAND (applicant) v THOMAS JOEL LARRY (respondent) FILE NO/S: BS No 396 of 2011 DIVISION: Trial Division PROCEEDING: Application ORIGINATING COURT: Supreme Court of Queensland at Brisbane DELIVERED ON: Orders made on 29 January 2021, reasons delivered on 12 February 2021 DELIVERED AT: Brisbane HEARING DATE: 29 January 2021 JUDGE: Davis J ORDER: IT IS DELCARED THAT pursuant to s 24(2) of the Dangerous Prisoners (Sexual Offenders) Act 2003: 1. The period of the respondent’s supervision order made on 20 May 2011 (CFI No 29) and as amended on 10 December 2013 (CFI No 66) and on 28 August 2017 (CFI No 150) has been extended from 22 May 2021 to 21 July 2021. 2. The supervision order expires on 21 July 2021. 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 is subject to a supervision order – where, during the currency of the supervision order, the respondent was held in custody for a period – where the applicant seeks a declaration that the duration of the supervision order has, by force of ss 23 and 24 of the Dangerous Prisoners (Sexual Offenders) Act 2003, been extended by a period equivalent to that during which the respondent was in custody – whether the effect of the operation of ss 23 and 24 of the DPSOA upon the supervision order ought be the subject of declaration -- 1 of 4 -- 2 Dangerous Prisoners (Sexual Offenders) Act 2003, s 13, s 16, s 16A, s 16B, s 16C, s 20, s 22, s 23, s 43AA Attorney-General for the State of Queensland v Larry [2011] QSC 120, related Attorney-General for the State of Queensland v Ruhland (2020) 3 QR 449, followed COUNSEL: J Tate for the applicant JC Johnsen for the respondent SOLICITORS: GR Cooper, Crown Solicitor for the applicant Legal Aid Queensland for the respondent [1] The respondent has a lengthy criminal history commencing with convictions in the Thursday Island Magistrates Court on 16 August 1994. In 2003, he was convicted of a series of offences including burglary and attempted rape. He was sentenced to a term of imprisonment of eight years. [2] The offence of attempted rape was an “offence of a sexual nature … involving violence”1 and was therefore a “serious sexual offence” for the purposes of the Dangerous Prisoners (Sexual Offenders) Act 2003 (DPSOA). In due course, an application for orders under the DPSOA was made resulting in the respondent being released on supervision.2 The term of the supervision order was 10 years and was to expire on 22 May 2021. [3] During the currency of the supervision order, the respondent has been convicted of offences and returned to custody. The applicant sought a declaration that the duration of the supervision order has been extended by a period equivalent to that during which the respondent was in custody. [4] On 29 January 2021, I made the following declarations: “IT IS DELCARED THAT pursuant to s 24(2) of the Dangerous Prisoners (Sexual Offenders) Act 2003: 1. The period of the respondent’s supervision order made on 20 May 2011 (CFI No 29) and as amended on 10 December 2013 (CFI No 66) and on 28 August 2017 (CFI No 150) has been extended from 22 May 2021 to 21 July 2021. 1 Dangerous Prisoners (Sexual Offenders) Act 2003, Schedule 1, Dictionary. 2 Dangerous Prisoners (Sexual Offenders) Act 2003, ss 13(5)(b), 16 and Attorney-General for the State of Queensland v Larry [2011] QSC 120. -- 2 of 4 -- 3 2. The supervision order expires on 21 July 2021.” History of the matter [5] On 29 January 2020, the respondent pleaded guilty to six charges of having contravened the supervision order between 27 March 2019 and 17 October 2019. Breach of a supervision order is made an offence by s 43AA of the DPSOA. It is unnecessary to descend into the detail of the breaches. In the main, they concerned possession of electronic devices and access to social media in circumstances which constituted a breach of the conditions of the supervision order. The respondent was sentenced to a term of imprisonment of two months wholly suspended for an operational period of 18 months. [6] On 2 September 2020, the respondent was convicted of a further seven charges of breaching the supervision order. Those offences also concerned the unauthorised possession of electronic devices and the unauthorised access to social media. The respondent was sentenced to a term of imprisonment of four months. The suspended sentence of two months was wholly activated and the two sentences were ordered to be served cumulatively. A parole release date of 1 November 2020 was fixed. [7] The result of those sentences was that the respondent served a period of 61 days in custody. There is no suggestion that any of the offences were offences “of a sexual nature”.3 Relevant statutory provisions [8] Sections 23 and 24 of the DPSOA provide as follows: “23 Application of division This division applies if, after being released from custody under a supervision order or interim supervision order, a released prisoner is sentenced to a term or period of imprisonment for any offence, other than an offence of a sexual nature. 24 Period in custody not counted (1) The released prisoner’s supervision order or interim supervision order is suspended for any period the released prisoner is detained in custody on remand or serving the term of imprisonment. 3 Dangerous Prisoners (Sexual Offenders) Act 2003, s 23. -- 3 of 4 -- 4 (2) The period for which the released prisoner’s supervision order or interim supervision order has effect as stated in the order is extended by any period the released prisoner is detained in custody.” [9] The effect of ss 23 and 24 is that where a person subject to a supervision order is, during the currency of the supervision order, sentenced to a term of imprisonment for an offence other than an offence of a sexual nature, the time the person spends in custody, whether serving the terms of imprisonment or on remand, is added to the term of the supervision order. That occurs by force of s 24. The term of a supervision order is not extended by exercise of judicial power.4 Consideration [10] The parties agree that the supervision order has, by force of ss 23 and 24 of the DPSOA, been extended by 61 days from 22 May 2021 to 21 July 2021. There is therefore no real controversy between the parties and questions arise as to the utility of making a declaration as to the effect of ss 23 and 24 on the duration of the supervision order. [11] It is usually desirable to declare any time by which a supervision order is extended by force of ss 23 and 24 of the DPSOA. That is because a supervision order vests significant powers upon Corrective Services officers,5 imposes significant obligations on the person subject to supervision6 and provides criminal sanction for breach7 and other consequences.8 [12] In the circumstances, I considered it appropriate to make the declarations and I did so. 4 Attorney-General for the State of Queensland v Ruhland (2020) 3 QR 449. 5 Dangerous Prisoners (Sexual Offenders) Act 2003, ss 16A, 16B, 16C. 6 Dangerous Prisoners (Sexual Offenders) Act 2003, ss 16(2), 16(1)(da), (daa), (db), 16(1)(c), 16(1)(e). 7 Dangerous Prisoners (Sexual Offenders) Act 2003, s 43AA. 8 Dangerous Prisoners (Sexual Offenders) Act 2003, ss 20 and 22. -- 4 of 4 --