Allwood v Attorney-General for the State of Queensland [2021] QSC 15 (2021) 7 QR 346

SUPREME COURT OF QUEENSLAND CITATION: Allwood v Attorney-General for the State of Queensland [2021] QSC 15 PARTIES: GORDON ANTHONY ALLWOOD (applicant) v ATTORNEY-GENERAL FOR THE STATE OF QUEENSLAND (respondent) FILE NO/S: BS No 7178 of 2017 DIVISION: Trial Division PROCEEDING: Application ORIGINATING COURT: Supreme Court of Queensland at Brisbane DELIVERED ON: 12 February 2021 DELIVERED AT: Brisbane HEARING DATE: 3 December 2020 JUDGE: Davis J ORDER: 1. The application by Gordon Anthony Allwood to set aside the order made against him under Division 3, Part 2 of the Dangerous Prisoners (Sexual Offenders) Act 2003 pursuant to r 668(2)(b) of the Uniform Civil Procedure Rules 1999 is dismissed. 2. I will hear the parties as to the date upon which the Attorney-General’s application under s 22 of the Dangerous Prisoners (Sexual Offenders) Act 2003 should be set down. 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 applicant breached the supervision order made on 6 November 2017 under the Dangerous Prisoners (Sexual Offenders) Act 2003 (the DPSOA) by committing a serious sexual offence – where the respondent seeks the rescission of the supervision order and the imposition of a continuing detention order - where the applicant was sentenced in the District Court with respect to the serious sexual offence to a term of four years imprisonment with immediate eligibility for parole – where the applicant was sentenced in the Magistrates Court with respect to the contravention proceedings to a term of imprisonment of six -- 1 of 28 -- 2 months to be served concurrently with the sentence imposed in the District Court, suspended for an operational period of two years – where the applicant makes application under r 688 of the Uniform Civil Procedure Rules 1999 to have the supervision order revoked and the current breach proceedings dismissed – where the applicant submits that the respondent should make application for fresh orders under the DPSOA in respect of the current term of imprisonment being served by the applicant which will expire on 21 August 2022 - whether it is appropriate to continue the contravention proceedings and seek a continuing detention order where the applicant is detained serving a sentence – whether it is appropriate to rescind the supervision order. Commonwealth Criminal Code, s 272.14 Corrective Services Act 2006 Criminal Law Amendment Act 1945 Crimes Act 1914 (Cth), s 19AB, s 19AL, s 19ALA Dangerous Prisoners (Sexual Offenders) Act 2003, s 2, s 5, s 8, s 13, s 16, s 21, s 43AA Penalties and Sentences Act 1992, s 9(1)(e) Uniform Civil Procedure Rules 1999, s 668 Attorney-General for the State of Queensland v Allwood, unreported, Davis J, 6 November 2017, related Attorney-General (Qld) v Fardon [2019] 2 Qd R 487, cited Attorney-General v Francis [2007] 1 Qd R 396, cited Attorney-General v Kanaveilomani [2015] 2 Qd R 509, followed Attorney-General v Newman [2019] 2 Qd R 1, cited Attorney-General for the State of Queensland v WTA [2020] QSC 300, cited Clone Pty Ltd v Players Pty Ltd (2018) 264 CLR 165, cited Fardon v Attorney-General (Qld) (2004) 223 CLR 575, cited KGK Constructions Pty Ltd v East Coast Earthmoving Pty Ltd [1995] 2 Qd R 13, cited Minister for Home Affairs v Benbrika [2021] HCA 4, cited R v Perini; ex parte A-G (Qld) [2011] QCA 30, cited R v Wano; ex parte Attorney-General (Qld) [2018] QCA 117, cited Veen v The Queen (No 2) (1987) 164 CLR 465, cited Woods v Sheriff of Queensland (1895) 6 QLJ 163, cited Yeo v Attorney-General (2007) 170 A Crim R 213, followed COUNSEL: MJ Jackson for the applicant J Tate for the respondent SOLICITORS: Karsas Lawyers for the applicant GR Cooper, Crown Solicitor for the respondent -- 2 of 28 -- [1] On 6 November 2017, Gordon Anthony Allwood, then a prisoner, was released pursuant to a supervision order made under Division 3 of Part 2 of the Dangerous Prisoners (Sexual Offenders) Act 2003 (the DPSOA). [2] It is alleged that Mr Allwood breached the requirements of the supervision order. Breaches of supervision orders are, unfortunately, not uncommon. Fortunately, though, what are relatively rare are breaches which consist of the commission of “serious sexual offences”1 which result in a term of imprisonment. That is what has occurred here. [3] Because the Attorney-General may apply for orders under the DPSOA within six months of the expiry of a sentence being served for a serious sexual offence, an application could be made here within six months of the expiry of the new term which Mr Allwood is presently serving. Mr Allwood submits that the supervision order should be revoked and the current breach proceedings dismissed. He argues that the appropriate course is for the Attorney-General to make application for fresh orders under the DPSOA towards the end of his current period of imprisonment if she considers that appropriate. [4] Mr Allwood has made application under r 668 of the Uniform Civil Procedure Rules 1999 and submits that his latest conviction is a fact which has arisen after the making of a supervision order in 2017 and which entitles him to be relieved from the supervision order.2 Mr Allwood’s application raises fundamental questions about the structure and operation of the DPSOA. Background [5] Mr Allwood was born on 17 April 1968. He has a significant history of commission of sexual offences dating back to a conviction in the Clermont Magistrates Court in 1987. He was then placed on probation for an aggravated assault of a sexual nature on a female. He was placed on a further period of probation on 15 December 1988 for an offence of indecently dealing with a boy under the age of 14. 1 Dangerous Prisoners (Sexual Offenders) Act 2003, s 2, Schedule 1, definition of “serious sexual offence”, ss 5, 8 and 13. 2 Rule 668(1)(a). -- 3 of 28 -- 4 [6] In September 1993, Mr Allwood suffered his first period of imprisonment. He was sentenced to two years’ imprisonment with a parole recommendation after serving nine months for a number of charges of indecently dealing with a child under the age of 12. [7] There were no convictions against Mr Allwood for sexual offences after 1993 until, in 2009 he was sentenced to 18 months’ imprisonment, suspended after serving 194 days of pre-sentence custody in relation to a charge of indecent treatment of a child under the age of 16. On that occasion, he was also placed on three years’ probation. What followed were a number of convictions for failing to comply with reporting conditions and breaching the probation orders and the suspended sentence. [8] On 11 May 2012, in the Ipswich District Court, Mr Allwood was convicted of a number of offences, most significantly one of stalking, and was sentenced to two years’ imprisonment and a period of six months’ imprisonment cumulative upon that sentence for breach of the probation order imposed in 2009. [9] On 21 October 2015, Mr Allwood was convicted of a number of offences, most significantly using a carriage service to transmit indecent communications to persons under the age of 16 (the 2015 convictions). He was sentenced to an effective term of imprisonment of three years, to be released after serving 12 months. [10] The 2015 convictions led the Attorney-General to bring an application for orders under the DPSOA and that application resulted in the supervision order being made on 6 November 2017.3 The supervision order contained a number of conditions: “The respondent must: 1. … 9. not commit an offence of a sexual nature during the period of the order. Technology, telephones and devices 38. obtain written approval of a Corrective Services officer before accessing a computer or the internet … 40. supply to a Corrective Services officer details of any email address, instant messaging service, chat rooms, or social networking sites including user names and passwords; 3 Attorney-General for the State of Queensland v Allwood, unreported, Davis J, 6 November 2017. -- 4 of 28 -- 5 41. not access child exploitation material or images of children on a computer or on the internet or in any other form; 42. obtain the prior written approval of a Corrective Services officer before possessing any equipment that enables the respondent to take photographs or record moving images; 43. allow any other device including a mobile telephone or camera to be randomly examined. If applicable, account details and/or phone bills are to be provided upon request of a Corrective Services officer; and 44. except with prior written approval from a Corrective Services officer, you are not to own, possess or regularly utilise more than one (1) mobile telephone; 45. advise a Corrective Services officer of the make, model and phone number of any mobile telephone owned, possessed or regularly utilised by you within 24 hours of connection or commencement of use and includes reporting any changes to mobile telephone details.” [11] Section 16 of the DPSOA mandates the inclusion of certain conditions in a supervision order. Section 16(1)(daa) mandates a condition that an offender comply with reasonable directions of corrective services officers. This was condition 7 in Mr Allwood’s supervision order. [12] As part of the process of being released under the supervision order, Mr Allwood was given a series of directions with which he was bound to comply. Those directions included: 1. to provide to an authorised corrective services officer a list of all electronic devices in his possession; 2. not to create or access any social media website without prior approval of a corrective services officer; 3. not to delete data from any electronic device used by him. [13] As already observed, the Attorney-General alleges that Mr Allwood breached the terms of the supervision order and has filed an application seeking orders. The breaches alleged in the application are as follows: “On 23 August 2018, Detectives from the Serious Offender Team, QPS4 executed a search warrant on the respondent’s approved 4 A reference to Queensland Police Service. -- 5 of 28 -- 6 residence. During a search of the respondent’s room, Detectives located two (2) unreported mobile phones hidden in a backpack and a bag in the wardrobe. A further reported phone was located on his person. A preliminary forensic examination was carried out on the devices. In particular, the phone located in the backpack contained conversations with a person on Facebook Messenger. There were a series of messages between 14 and 22 August 2018 between the respondent and a person who identified herself as a 13 year old female from the Philippines. The respondent identified himself as a 25 year old male from Australia. During this period, the respondent procured the child to masturbate herself on five different occasions. The respondent was found in possession of a Telstra ZTE mobile phone which is internet capable. A triage examination of this phone was conducted and revealed that: • The device had been used to access and utilise a Facebook account in the name of ‘Peter ARMSTRONG’. • The ‘Peter ARMSTRONG’ Facebook account was used to communicate with an adult female, via Facebook Messenger, in the Philippines. This female is identified as the mother of a 13 year old female child (subject of aforementioned offences). • Images of unknown male and female children were located on the device. • Text conversations within Facebook Messenger between ‘Peter ARMSTRONG’ and the child were of a sexualized nature encouraging the child to commit sexual acts in exchange for money (subject of aforementioned charges). Also located during the search were numerous receipts identifying the respondent as having sent cash via Western Union to the Philippines. The receipts ranged from $50 to $100 AUD. One of the receipts matched the details provided by the 13 year old female child in the chat messages. The receipt confirmed that payment had been made to the child’s mother who appears to be acting as the child’s ‘pimp’. On 22 August 2018, during the search QPS Detectives showed QCS5 Manager, Operations several message logs obtained via forensic examination. The message logs demonstrated that the respondent had engaged in communication and payment in respect to sexual activities with a person who he believed to be a 13 year old female child based in the Philippines. Based on the observations of the search and nature of the charge facts by QPS, the respondent is reasonably believed to have contravened his order requirements by allegedly committing a sexual offence, having contact with a child, using the internet without approval, using 5 A reference to Queensland Corrective Services. -- 6 of 28 -- 7 social media without approval, using more than one mobile phone without approval, failing to disclose mobile phone details, failing to disclose password information and possessing images of children.” [14] Some of the conduct which breached the terms of the supervision order also constituted offences against s 272.14(1) of the Commonwealth Criminal Code. That section is as follows: “272.14 Procuring child to engage in sexual activity outside Australia (1) A person commits an offence if: (a) the person engages in conduct in relation to another person (the child ); and (b) the person does so with the intention of procuring the child to engage in sexual activity (whether or not with the person) outside Australia; and (c) the child is someone: (i) who is under 16; or (ii) who the person believes to be under 16; and (d) one or more of the following apply: (i) the conduct referred to in paragraph (a) occurs wholly or partly outside Australia; (ii) the child is outside Australia when the conduct referred to in paragraph (a) occurs; (iii) the conduct referred to in paragraph (a) occurs wholly in Australia and the child is in Australia when that conduct occurs. …” [15] On 6 April 2020, Mr Allwood pleaded guilty in the District Court to a charge of an offence against s 272.14(1) (the 2020 offence) and was sentenced to a term of imprisonment of four years with 593 days of pre-sentence custody declared as time served under the sentence. A non-parole period of 593 days was fixed making him eligible for parole immediately. [16] Section 43AA of the DPSOA makes the breach of the terms of a supervision order a criminal offence. Mr Allwood was charged with offences against s 43AA of the DPSOA alleging the same contraventions as is alleged in the present application by -- 7 of 28 -- 8 the Attorney-General. On his own plea of guilty, Mr Allwood was convicted and sentenced to a term of imprisonment of six months to be served concurrently with the sentence imposed in the District Court. The magistrate suspended the sentence forthwith for an operational period of two years. [17] Mr Allwood has not obtained parole and the sentence imposed in the District Court will expire on 21 August 2022. He is presently in custody by reason of the fact that he is still serving the sentence imposed in the District Court and in respect of the contravention proceedings.6 Statutory provisions [18] Section 3 of the DPSOA identifies the objects of the legislation. That section provides: “3 Objects of this Act The objects of this Act are— (a) to provide for the continued detention in custody or supervised release of a particular class of prisoner to ensure adequate protection of the community; and (b) to provide continuing control, care or treatment of a particular class of prisoner to facilitate their rehabilitation.” [19] The “particular class of prisoner” referred to in s 3, consists of prisoners who have committed a “serious sexual offence”. That term is defined in Schedule 1 as follows: “serious sexual offence means an offence of a sexual nature, whether committed in Queensland or outside Queensland— (a) involving violence; or (b) against a child; or (c) against a person, including a fictitious person represented to the prisoner as a real person, whom the prisoner believed to be a child under the age of 16 years.” [20] The DPSOA is a regime for preventative detention. Preventative detention, that is the detention of persons for the sole object of preventing them from committing further offences, is unknown to the common law. While risk of further offending is a consideration in sentencing, those considerations cannot result in a sentence 6 Dangerous Prisoners (Sexual Offenders) Act 2003, s 21. -- 8 of 28 -- 9 otherwise disproportionate to the offending. This was made clear by the High Court in Veen v The Queen (No 2).7 Section 9(1)(e) of the Penalties and Sentences Act 1992 prescribes protection of the community as a relevant sentencing consideration which has been construed consistently with the principles stated in Veen.8 However, statutory preventative detention schemes are not new.9 The DPSOA has survived constitutional challenge as has a similarly structured Commonwealth scheme.10 [21] Three schemes for preventative detention have been implemented in Queensland, all of which involve judicial assessment of risk of reoffending. One is the DPSOA. The other two are the Criminal Law Amendment Act 1945 and Part 10 of the Penalties and Sentences Act 1992. Those two schemes are fundamentally different to that established by the DPSOA. Both schemes operate upon an assessment, undertaken at the time of sentence, of the offender’s future dangerousness. Under the DPSOA, assessment of risk is undertaken towards the end of the term of the sentence imposed. [22] Section 5 of the DPSOA provides that the Attorney-General may make an application for orders, but the application must “be made during the last six months of the prisoner’s period of imprisonment”.11 The term “period of imprisonment” is defined in s 5(6) as: “5 Attorney-General may apply for orders … (6) In this section— … period of imprisonment includes— (a) a period of detention mentioned in the definition prisoner, paragraph (b); and (b) a term of imprisonment a person is liable to serve as mentioned in the definition prisoner, paragraph (c)(iii); and (c) a period a person is kept in a prison during a suspension period of a parole order as mentioned in the definition prisoner, paragraph (d)(iii).” 7 (1987) 164 CLR 465 at 472-473. 8 R v Wano; ex parte Attorney-General (Qld) [2018] QCA 117 at [37] and R v Perini; ex parte A-G (Qld) [2011] QCA 30 at [20]. 9 Fardon v Attorney-General (Qld) (2004) 223 CLR 575 at [83]. 10 Minister for Home Affairs v Benbrika [2021] HCA 4. 11 Section 5(2)(c). -- 9 of 28 -- 10 [23] Section 5(6) also contains a definition of “prisoner” for the purposes of s 5. It provides, relevantly: “5 Attorney-General may apply for orders … (6) In this section— … prisoner— (a) means a prisoner detained in custody who is serving a period of imprisonment for a serious sexual offence, or is serving a period of imprisonment that includes a term of imprisonment for a serious sexual offence, whether the person was sentenced to the term or period of imprisonment before or after the commencement of this section; and (b) includes a person who, as mentioned in the Youth Justice Act 1992, section 138(3), is serving a period of detention, and is being held in custody in a corrective services facility, for a child offence that is a serious sexual offence; and (c) includes a person who— (i) was serving a period of detention, in a detention centre under the Youth Justice Act 1992, for a serious sexual offence; and (ii) under part 8, division 2A, subdivision 1 of that Act, has been transferred to a corrective services facility and is being held in custody in the facility; and (iii) is liable, under section 276E of that Act, to serve a term of imprisonment for the offence equal to the period of detention the person remains liable to serve for the offence; and (d) includes a person who— (i) was serving a period of imprisonment mentioned in paragraph (a) or a period of detention mentioned in paragraph (b) or (c)(i); and (ii) is the subject of a parole order that has been suspended under the Corrective Services Act 2006; and -- 10 of 28 -- 11 (iii) is being kept in a prison during the suspension period.”12 [24] Section 8 provides for a preliminary hearing. Section 8 is in these terms: “8 Preliminary hearing (1) If the court is satisfied there are reasonable grounds for believing the prisoner is a serious danger to the community in the absence of a division 3 order, the court must set a date for the hearing of the application for a division 3 order. (2) If the court is satisfied as required under subsection (1), it may make— (a) an order that the prisoner undergo examinations by 2 psychiatrists named by the court who are to prepare independent reports; and (b) if the court is satisfied the application may not be finally decided until after the prisoner’s release day— (i) an order that the prisoner’s release from custody be supervised; or (ii) an order that the prisoner be detained in custody for the period stated in the order.”13 [25] The notion of “serious danger to the community in the absence of a division 3 order” in s 8(1) is the same as what appears in s 13 which is the provision under which final orders (Division 3 order) are made.14 Section 13 relevantly provides as follows: “13 Division 3 orders (1) This section applies if, on the hearing of an application for a division 3 order, the court is satisfied the prisoner is a serious danger to the community in the absence of a division 3 order (a serious danger to the community). (2) A prisoner is a serious danger to the community as mentioned in subsection (1) if there is an unacceptable risk that the prisoner will commit a serious sexual offence— (a) if the prisoner is released from custody; or (b) if the prisoner is released from custody without a supervision order being made. 12 See generally Attorney-General v Newman [2019] 2 Qd R 1. 13 Legislative note omitted. 14 Consistently with the reasoning in Attorney-General (Qld) v Fardon [2019] 2 Qd R 487. -- 11 of 28 -- 12 (3) On hearing the application, the court may decide that it is satisfied as required under subsection (1) only if it is satisfied— (a) by acceptable, cogent evidence; and (b) to a high degree of probability; that the evidence is of sufficient weight to justify the decision. … (5) If the court is satisfied as required under subsection (1), the court may order— (a) that the prisoner be detained in custody for an indefinite term for control, care or treatment (continuing detention order); or (b) that the prisoner be released from custody subject to the requirements it considers appropriate that are stated in the order (supervision order). (6) In deciding whether to make an order under subsection (5)(a) or (b)— (a) the paramount consideration is to be the need to ensure adequate protection of the community; and (b) the court must consider whether— (i) adequate protection of the community can be reasonably and practicably managed by a supervision order; and (ii) requirements under section 16 can be reasonably and practicably managed by corrective services officers. (7) The Attorney-General has the onus of proving that a prisoner is a serious danger to the community as mentioned in subsection (1).” [26] The assessment of the relevant risk at a time close to release is a fundamental cornerstone of the scheme implemented by the DPSOA. In Yeo v Attorney-General,15 Williams JA observed: “[9] Under the Act the order for continuing detention, or release subject to a supervision order, is made at about the end of the penalty imposed by way of imprisonment. At that time an evaluation is made of the risk to the community of the offender being released. As pointed out in my reasons in upholding the validity of the Act in Attorney-General v Fardon [2003] QCA 416 , the Court at that stage is not ‘second guessing’ what might 15 (2007) 170 A Crim R 213. -- 12 of 28 -- 13 be the effect of imprisonment on the rehabilitation of the offender, but is basing its decision on cogent evidence obtained towards the expiration of the period of imprisonment when possible rehabilitation can be evaluated. The Court is then required to apply the test prescribed by the Act, and there is no basis for concluding that an order pursuant to the Act may only be made in ‘exceptional’ circumstances.” [27] In Fardon v Attorney-General (Qld),16 the High Court considered the constitutional validity of the DPSOA. Gummow J referred to s 30(1) which deals with the periodic review of a continuing detention order. I shall come to s 30 shortly. It though, like ss 8 and 13, concerns the concept that the prisoner is “a serious danger to the community in the absence of a division 3 order”. His Honour observed: “The purpose of Pt 3 ‘is to ensure that a prisoner’s continued detention under a continuing detention order is subject to regular review’ (s 26). That statement of purpose guides the construction of the balance of Pt 3.17 That which is affirmed under s 30 is the primary decision ‘that the prisoner is a serious danger to the community in the absence of a division 3 order’ (emphasis added) (s 30(1)). The phrase ‘is a serious danger’ involves the use of the continuous present to require a decision that, by reason of the attainment of satisfaction by the means and to the degree specified in s 30(3), the prisoner presently is a serious danger to the community in the absence of a Div 3 order.”18 [28] In Attorney-General v Kanaveilomani,19 a prisoner was serving a sentence for a “serious sexual offence”, namely rape. He was paroled but then committed offences which were arguably not “serious sexual offences”. His parole was suspended and he was returned to custody. Questions arose as to whether the prisoner was serving a continuous period of imprisonment so as to qualify him as a “prisoner” for the DPSOA. If so, the Attorney-General could make an application at the end of the second term that was imposed. If not, an application would have to be made within six months of the end of the first term. In the course of analysing that issue, Morrison JA observed as follows: “[119] In deciding whether a prisoner is a serious danger to the community under subsection (1), s 13(4) requires that the court have regard to a number of matters. Whilst it is no doubt true that any psychiatrist reports will assess risk in the future, there are three matters which the court must take into account which, by their terms, look to future matters. Subsection (4)(c) requires 16 (2004) 223 CLR 575. 17 Part 3 concerns annual reviews of continuing detention orders. 18 At [112]. 19 [2015] 2 Qd R 509. -- 13 of 28 -- 14 the court to consider ‘information indicating whether or not there is a propensity on the part of the prisoner to commit serious sexual offences in the future’. That refers to a current propensity, but obviously in respect of future offences. The second is under subs (4)(h) which refers to the risk that the prisoner will commit another serious sexual offence if released into the community. That clearly looks to the future, though it requires the court to make an assessment of that risk at the time of the hearing. The third is under subs (4)(i), which is the need to protect members of the community from the risk the prisoner will commit another serious sexual offence if released. [120] In my opinion s 13 is to be construed as its plain words suggest, namely that the court’s assessment is of the prisoner’s current state and in respect of release at the time the application is determined, and not at some indeterminate time in the future. Since an application has to be brought within six months of the end of the period of imprisonment, followed by a period of time for the preliminary hearing under s 8, the preparation of psychiatric reports under s 11 and the eventual hearing, one could confidently expect that the normal course would mean that the final hearing was at some point close to the prisoner’s release day under the period of imprisonment. That being so, the court’s assessment under s 13(1) is of matters that are current and do not look to the indeterminate future. Where the final hearing might extend beyond the release date, and orders are made under s 9A of the Act, the assessment by the court is still of matters that are current to the time of the hearing, and not looking to the indeterminate future.” (emphasis added) [29] If, as in the present case, a supervision order is contravened, the respondent may be arrested on a warrant issued pursuant to s 20, held under s 21 and then dealt with under s 22. Section 22 is relevantly in these terms: “22 Court may make further order (1) The following subsections apply if the court is satisfied, on the balance of probabilities, that the released prisoner is likely to contravene, is contravening, or has contravened, a requirement of the supervision order or interim supervision order (each the existing order). (2) Unless the released prisoner satisfies the court, on the balance of probabilities, that the adequate protection of the community can, despite the contravention or likely contravention of the existing order, be ensured by the existing order as amended under subsection (7), the court must— (a) if the existing order is a supervision order, rescind it and make a continuing detention order; or -- 14 of 28 -- 15 (b) if the existing order is an interim supervision order, rescind it and make an order that the released prisoner be detained in custody for the period stated in the order. … (7) If the released prisoner satisfies the court, on the balance of probabilities, that the adequate protection of the community can, despite the contravention or likely contravention of the existing order, be ensured by a supervision order or interim supervision order, the court— (a) must amend the existing order to include all of the requirements under section 16(1) if the order does not already include all of those requirements; and (b) may otherwise amend the existing order in a way the court considers appropriate— (i) to ensure adequate protection of the community; or (ii) for the prisoner’s rehabilitation or care or treatment. (8) The existing order may not be amended under subsection (7)(b) so as to remove any requirements mentioned in section 16(1).” [30] Section 22, like ss 8 and 13, concern “adequate protection of the community”. Section 22 therefore also concerns the assessment of risk, although the onus shifts to the prisoner to demonstrate that a supervision order “[ensures] the adequate protection of the community” from the commission by the prisoner of a “serious sexual offence”. If he fails to discharge that onus, then the supervision order is rescinded and a continuing detention order is made. [31] Whether a continuing detention order is made under s 13(5)(a) upon the initial application made by the Attorney-General under Division 3 or under s 22 upon breach of a supervision order, the continuing detention order must be reviewed. Part 3 deals with this. Relevantly here, are ss 27 and 30 which provide as follows: “27 Review—periodic (1) If the court makes a continuing detention order, it must review the order at the intervals provided for under this section. (1A) The hearing for the first review and all submissions for the hearing must be completed within 2 years after the day the order first had effect. -- 15 of 28 -- 16 (1B) There must be subsequent annual reviews while the order continues to have effect. (1C) Each annual review must start within 12 months after the completion of the hearing for the last review under this section. (2) The Attorney-General must make any application that is required to be made to cause the reviews to be carried out. … 30 Review hearing (1) This section applies if, on the hearing of a review under section 27 or 28 and having regard to the required matters, the court affirms a decision that the prisoner is a serious danger to the community in the absence of a division 3 order. (2) On the hearing of the review, the court may affirm the decision only if it is satisfied— (a) by acceptable, cogent evidence; and (b) to a high degree of probability; that the evidence is of sufficient weight to affirm the decision. (3) If the court affirms the decision, the court may order that the prisoner— (a) continue to be subject to the continuing detention order; or (b) be released from custody subject to a supervision order. (4) In deciding whether to make an order under subsection (3)(a) or (b)— (a) the paramount consideration is to be the need to ensure adequate protection of the community; and (b) the court must consider whether— (i) adequate protection of the community can be reasonably and practicably managed by a supervision order; and (ii) requirements under section 16 can be reasonably and practicably managed by corrective services officers. (5) If the court does not make the order under subsection (3)(a), the court must rescind the continuing detention order. -- 16 of 28 -- 17 (6) In this section— required matters means all of the following— (a) the matters mentioned in section 13(4); (b) any report produced under section 28A.” [32] Section 30 also contains the term “serious danger to the community in the absence of a division 3 order”. It is well-established that the term “serious danger to the community” in s 30 bears the same meaning as it does in s 13, namely as defined in s 13(2). What is clear is that the considerations raised by s 13 are revisited upon a review conducted under s 30. If the threshold finding of risk is affirmed then, like with s 13, s 30 requires an exercise of discretion as to what order should be made. The continuing detention order may be affirmed or that order may be rescinded and a supervision order made. [33] If a continuing detention order is made, whether under s 13 or under s 22, a prisoner’s right to apply for parole under the provisions of the Corrective Services Act 2006 is suspended. This is by force of s 51 which provides as follows: “51 Parole (1) This section applies if— (a) under section 8(1), the court has set a date for the hearing of an application for a division 3 order in relation to a prisoner and the application has not been discontinued or finally decided; or (b) a prisoner is subject to a continuing detention order or interim detention order, whether or not the order has taken effect. (2) The prisoner is not eligible for parole under the Corrective Services Act 2006 or the Penalties and Sentences Act 199220 and can not be issued a parole order under those Acts. (3) Subsections (4) and (5) apply if the prisoner is the subject of a parole order under the Corrective Services Act 2006 that— (a) has been suspended under that Act; and (b) has neither been cancelled under that Act nor has expired. 20 The Penalties and Sentences Act 1991 is not relevant here. -- 17 of 28 -- 18 (4) For subsection (1)(a), if the suspension period for the parole order would, other than for this section, end before the application for the division 3 order is discontinued or finally decided, the suspension period is taken not to end before the application is discontinued or finally decided. (5) For subsection (1)(b), if the suspension period for the parole order would, other than for this section, end while the prisoner is subject to the continuing detention order or interim detention order, the suspension period is taken not to end while the prisoner is subject to the order.” Mr Allwood’s application [34] As already observed, Mr Allwood applies for orders under r 668 of the UCPR. That rule provides: “668 Matters arising after order (1) This rule applies if— (a) facts arise after an order is made entitling the person against whom the order is made to be relieved from it; or (b) facts are discovered after an order is made that, if discovered in time, would have entitled the person against whom the order is made to an order or decision in the person’s favour or to a different order. (2) On application by the person mentioned in subrule (1), the court may stay enforcement of the order against the person or give other appropriate relief. (3) Without limiting subrule (2), the court may do one or more of the following— (a) direct the proceedings to be taken, and the questions or issue of fact to be tried or decided, and the inquiries to be made, as the court considers just; (b) set aside or vary the order; (c) make an order directing entry of satisfaction of the judgment to be made.” [35] The rule and its predecessors have a long history.21 It exists as an exception to the general rule that, subject to a statutory right of appeal, a court’s decision is final. The court making the order or judgment has no jurisdiction to revisit the case. Various 21 Woods v Sheriff of Queensland (1895) 6 QLJ 163. -- 18 of 28 -- 19 exceptions to that rule are recognised by Equity, most particularly judgments obtained by fraud. For an historical analysis, see Clone Pty Ltd v Players Pty Ltd.22 [36] Rule 668 has been the basis of setting aside orders made under the DPSOA. However, that case, Attorney-General for the State of Queensland v WTA,23 was very different to the present. There, WTA, who was the subject of a supervision order, brought a successful appeal against the convictions which brought him within the DPSOA. Upon the fall of the convictions, the supervision order was rescinded in reliance upon r 668. [37] Rule 668 of the UCPR recognises various circumstances in which an order may be set aside. Relevantly here: 1. a factor rises after the making of the order; 2. that fact entitles Mr Allwood to be relieved from the order.24 [38] Here it is submitted by Mr Allwood that the new facts are: 1. Mr Allwoods’s 2020 conviction; 2. the sentence of imprisonment passed upon Mr Allwood consequent upon those convictions. [39] Mr Jackson, for Mr Allwood, submits that as an application under s 5 of the DPSOA can only be made within the last six months of a term of imprisonment for a serious sexual offence, Mr Allwood should be relieved of the orders made against him under s 5 and s 13 (the supervision order) and, if so minded, the Attorney-General can institute a new application in the six months before 21 August 2022. One effect of rescinding the supervision order is that the contravention proceedings would fall away. [40] Mr Tate, for the Attorney-General, resists the application. He submits that r 668 is inconsistent with ss 20 and 22 of the DPSOA. He submits that once the court is satisfied that a prisoner “is likely to contravene, is contravening or has contravened, 22 (2018) 264 CLR 165 at [52]-[60]. 23 [2020] QSC 300. 24 For an example of the operation of this part of r 668, see KGK Constructions Pty Ltd v East Coast Earthmoving Pty Ltd [1995] 2 Qd R 13 which considered O 45 of the Supreme Court Rules. -- 19 of 28 -- 20 a requirement of the supervision order”, the court must then make an order, either under s 22(2),25 or s 22(7).26 Section 22 does not contemplate, Mr Tate submits, the rescission of the orders made under either s 8 or 13. Section 22 contemplates the continuance of an order under the DPSOA, being a supervision order or continuing detention order. [41] Mr Tate’s alternative submission is that if r 668 does arise for consideration, then the discretion ought to be exercised in favour of maintaining the supervision order and dismissing Mr Allwood’s application. He points to Dr Arthur’s evidence, the effect of which is that Mr Allwood is currently an unacceptable risk. Maintenance of the supervision order, he submits, is then consistent with the objects of the DPSOA. If the supervision order remains on foot, the contravention proceedings are competent. Those proceedings should, he submits, result in the rescission of the supervision order and the making of a continuing detention order. Consideration [42] I reject Mr Tate’s submission that the operation of r 668 is impliedly excluded by ss 20 and 22 of the DPSOA. True it is that s 22 mandates an order under either of subsections (2), that is a continuing detention order, or (7), that is release on the supervision order, upon the conclusion of breach proceedings under s 22. However, s 22 does not operate at all unless there is a supervision order. If circumstances arise such that a discretion arises under r 668 to rescind the supervision order, then the rescission of the order is not inconsistent with ss 20 or 22. [43] Mr Jackson submits that if Mr Allwood’s application fails and the breach proceedings are determined, then the outcome of those proceedings must be either a continuing detention order or a supervision order. That submission should be accepted. That result would be odd, Mr Jackson submits. Mr Allwood, a prisoner serving a term of imprisonment, would be either the subject of a supervision order, which would have no effect because he could not be released, or alternatively, he would be the subject of a continuing detention order. If he were the subject of a continuing detention order, that continuing detention order would, by force of s 27, have to be reviewed and it determined periodically whether the continuing detention order should remain in 25 Rescinding the supervision order or making a continuing detention order. 26 Releasing the prisoner back onto supervision. -- 20 of 28 -- 21 place. The continuing detention order has no practical effect because Mr Allwood is serving a term of imprisonment. [44] This, Mr Jackson submits, is inconsistent with the basic structure of the DPSOA as explained by the Court of Appeal in Attorney-General v Kanaveilomani.27 Risk ought to be considered close to the time of release, not, Mr Jackson submits, some two years prior to the expiry of the current sentence [45] The DPSOA contains no provisions which especially provide for the current circumstances. There is, for instance, no provision which suspends the operation of ss 27 and 30 while a second sentence is being served. Therefore, revisions of continuing detention orders must continue notwithstanding that such reviews could not possibly result in the release of a prisoner who is serving a sentence. [46] In my view, the discretion under r 668 has arisen and it will be appropriate to exercise it in favour of rescinding the s 8 and s 13 orders unless the maintenance of those orders has some useful purpose or effect. [47] Were the s 8 order to be rescinded, the Attorney-General could then, if so minded, recommence proceedings afresh within six months of the end of the second term. She would be faced with then having to prove “by acceptable cogent evidence”28 and “to a high degree of probability”29 that there is “an unacceptable risk that [Mr Allwood] will commit a serious sexual offence” if released without an order under the DPSOA. [48] If the s 8 order is not rescinded, then Mr Allwood will face the breach proceedings. There, upon proof of the contravention of the supervision order, the onus falls upon him to prove that “adequate protection of the community can, despite the contravention … of the [supervision order] be ensured by [the supervision order]”.30 If he fails to discharge that onus, then a continuing detention order must be made. [49] While it might be thought that the maintenance of the Division 3 order therefore has some practical effect upon the onus of proof, that is not in reality the case. As already observed, every continuing detention order must be reviewed.31 Upon the review of 27 [2015] 2 Qd R 509. 28 Section 13(3)(a). 29 Section 13(3)(b). 30 Section 22(2). 31 Sections 27 and 30. -- 21 of 28 -- 22 a continuing detention order, the onus falls back upon the Attorney-General. The continuing detention order may only be affirmed if the court is satisfied “by acceptable cogent evidence” and “to a high degree of probability” that it should be affirmed.32 What is being “affirmed” is the order made under s 13. Therefore, what must be “affirmed” is the conclusion “that there is an unacceptable risk that [Mr Allwood] will commit a serious sexual offence” in the absence of an order. [50] Consequently, whether the Division 3 order remains in place or is rescinded, the onus will at some point fall upon the Attorney-General to prove that Mr Allwood is an unacceptable risk of committing a serious sexual offence if not subject to an order under the DPSOA. [51] As already observed, s 51 of the DPSOA renders a prisoner ineligible for parole while subject to a continuing detention order under the DPSOA. It is unnecessary to analyse the State parole provisions. In Mr Allwood’s case, parole is not an issue in relation to the 2015 offences. His period of imprisonment in relation to those offences has expired. [52] On a proper construction of s 51(1)(b) and (2) of the DPSOA, the prohibition on parole is absolute so would prevent the grant of parole in relation to the 2020 offence. Therefore, the rescission of the supervision order and the making of a continuing detention order consequent upon the contravention, clearly has a practical and important effect. If it is maintained, then Mr Allwood remains subject to orders under the DPSOA and subject to the court’s periodic consideration of his risk of committing serious sexual offences. If the orders are rescinded, then he will become eligible for parole at some point and may be released. True it is that if released by the Parole Board, Mr Allwood would be subject to parole and therefore supervision. However, Mr Allwood has been found to be within the “particular class of prisoner”33 in relation to whom special considerations of protection of the community apply and who therefore is dealt with outside the parole system. [53] There are special considerations here because Mr Allwood is presently serving a term for the commission of Commonwealth offences. Therefore, his parole is governed by the Crimes Act 1914 (Cth). By s 19AB of the Crimes Act, a court sentencing an 32 Section 30(2). 33 Section 3. -- 22 of 28 -- 23 offender for a Commonwealth offence must fix a non-parole period. That occurred here and the non-parole period expired on 6 April 2020. [54] Section 19AL then provides: “19AL Release on parole—making of parole order (1) The Attorney-General must, before the end of a non- parole period fixed for one or more federal sentences imposed on a person, either make, or refuse to make, an order directing that the person be released from prison on parole (a parole order). Note: See subsection (5) if the person is subject to a State or Territory sentence. (2) If the Attorney-General refuses to make a parole order for a person under subsection (1) or paragraph (b) of this subsection, the Attorney-General must: (a) give the person a written notice, within 14 days after the refusal, that: (i) informs the person of the refusal; and (ii) includes a statement of reasons for the refusal; and (iii) sets out the effect of paragraph (b) of this subsection; and (b) reconsider the making of a parole order for the person and either make, or refuse to make, such an order, within 12 months after the refusal. Note: See subsection (5) if the person is subject to a State or Territory sentence. (3) A parole order must: (a) be in writing; and (b) specify whether or not the person is to be released subject to supervision; and (c) if it is proposed that the supervision period for a person released on parole subject to supervision should end before the end of the person’s parole period—specify the day on which the supervision period ends. (3A) If the Attorney-General considers that in all the circumstances it is appropriate to do so, the Attorney- General may specify in a parole order that a person is to be released from prison on a day that is before the -- 23 of 28 -- 24 end of the non-parole period, but is not earlier than 30 days before the end of the non-parole period. Person subject to State or Territory sentence (4) Subsections (5) and (6) apply if the person is subject to a State or Territory sentence. (5) The Attorney-General is not required to make, or to refuse to make, a parole order under subsection (1) or paragraph (2)(b) if: (a) the State or Territory sentence is a life sentence for which a non-parole period has not been fixed; or (b) the State or Territory sentence ends after the end of the last of the federal sentences to end; or (c) the non-parole period for the State or Territory sentence ends after the end of the federal non- parole period; or (d) the State or Territory sentence ends after the end of the federal non-parole period. (6) However, the Attorney-General must either make, or refuse to make, a parole order before: (a) if paragraph (5)(c) applies (and paragraphs (5)(a) and (b) do not)—the end of the non-parole period for the State or Territory sentence; or (b) if paragraph (5)(d) applies (and paragraphs (5)(a), (b) and (c) do not)—the person’s expected release from prison for the State or Territory offence.” (legislative notes omitted) [55] Section 19ALA prescribes matters that may be considered in relation to parole decisions. It provides: “19ALA Matters that may be considered in decisions about parole orders (1) In making a decision under section 19AL in relation to a person, the Attorney-General may have regard to any of the following matters that are known to the Attorney-General and relevant to the decision: (a) the risk to the community of releasing the person on parole; (b) the person’s conduct while serving his or her sentence; -- 24 of 28 -- 25 (c) whether the person has satisfactorily completed programs ordered by a court or recommended by the relevant State or Territory corrective services or parole agency; (d) the likely effect on the victim, or victim’s family, of releasing the person on parole; (e) the nature and circumstances of the offence to which the person’s sentence relates; (f) any comments made by the sentencing court; (g) the person’s criminal history; (h) any report or information in relation to the granting of parole that has been provided by the relevant State or Territory corrective services or parole agency; (i) the behaviour of the person when subject to any previous parole order or licence; (j) the likelihood that the person will comply with the conditions of the parole order; (k) whether releasing the person on parole is likely to assist the person to adjust to lawful community life; (l) whether the length of the parole period is sufficient to achieve the purposes of parole; (m) any special circumstances, including the likelihood that the person will be subject to removal or deportation upon release. (2) Subsection (1) does not limit the matters that the Attorney-General may consider in making a decision under section 19AL.” [56] Mr Allwood received a letter dated 24 November 2020 from the Commonwealth Attorney-General’s department advising that his release on parole was refused on 17 April 2020 and that the Commonwealth Attorney-General would reconsider parole within 12 months of that date. In the letter of 24 November 2020, the Commonwealth Attorney-General advised Mr Allwood of various issues which might impact adversely upon the reconsideration of parole. The purpose of raising these issues was clearly to afford Mr Allwood procedural fairness by giving him an opportunity to respond. The matters raised included: 1. Mr Allwood is subject to orders under the DPSOA; -- 25 of 28 -- 26 2. Mr Allwood has allegedly contravened his supervision order and is detained on interim detention awaiting the determination of that application; 3. the opinions of psychiatrists who had provided opinions for the purposes of the DPSOA proceedings were adverse to him; 4. that s 19ALA(1) of the Crimes Act makes “risk to the community of releasing the person on parole” a relevant consideration. [57] It seems clear that the Commonwealth Attorney-General has access to material concerning Mr Allwood’s DPSOA proceedings and that the Commonwealth Attorney-General regards that material as relevant to risk which is a consideration under s 19ALA(1)(a) of the Crimes Act. It is inappropriate to speculate though as to what impact rescinding the Division 3 orders would have upon the determination of parole by the Commonwealth Attorney-General. [58] There is no suggestion that the maintenance of Division 3 orders in relation to the 2015 offences would be inconsistent with a grant of parole by the Commonwealth in relation to the 2020 offence such as to raise any issues of Constitutional inconsistency.34 Therefore, notwithstanding any parole order that might be made by the Commonwealth Attorney-General in relation to the 2020 offence, Mr Allwood would remain subject to Division 3 orders in relation to the first offences. [59] It can be seen then that notwithstanding the fact that Mr Allwood is in custody serving the sentence for the 2020 offence, the Division 3 orders still have a practical impact and operate so as to promote the objects of the DPSOA. [60] There will no doubt be cases where resort ought to be had to r 668 to dissolve orders made under the DPSOA. However, in most cases and in Mr Allwood’s, the appropriate course will be to maintain the supervision order and proceed and hear the application under s 22 for contravention. If, in the unlikely event that it is determined that Mr Allwood can be released on a supervision order, then that supervision order would operate as and from the expiry of his second sentence. If he were paroled earlier by the Commonwealth Attorney-General, then the supervision order could be varied to operate from that date. If a continuing detention order is made upon the 34 Constitution of the Commonwealth of Australia, s 109. -- 26 of 28 -- 27 contravention proceedings, then it ought to be reviewed in accordance with ss 27 and 30 notwithstanding that Mr Allwood remains in custody under the second sentence. Final orders [61] Mr Allwood’s application ought to be dismissed. [62] Both parties have submitted that an alternative to proceeding with the s 22 application is to adjourn that proceeding to a date to be fixed close to a time when Mr Allwood is to be released on the second sentence. Risk could be assessed then. In my view, that is not a course which ought to be followed. [63] If the s 22 application is adjourned to a date near 21 August 2022 and a continuing detention order is made, the continuing detention order may not be reviewed for up to two years.35 On the other hand, if the contravention proceedings were heard now and a continuing detention order was made, it would be reviewed in early 2023 at the latest. The holding of a prisoner in custody beyond his term of imprisonment is a serious invasion of his rights. The Queensland Parliament has recognised this and the DPSOA contains provisions for the review of continuing detention orders. The Court of Appeal has also recognised that the imposition and maintenance of a continuing detention order is a last resort.36 It is therefore inappropriate to effectively place the contravention proceedings on hold. If the Attorney-General alleges a contravention (which she does) and intends at some stage to seek orders consequent upon the contravention, then the application should be prosecuted now. [64] I will hear the parties as to setting the matter down for hearing. [65] The orders are: 1. The application by Gordon Anthony Allwood to set aside the order made against him under Division 3, Part 2 of the Dangerous Prisoners (Sexual Offenders) Act 2003 pursuant to r 668(2)(b) of the Uniform Civil Procedure Rules 1999 is dismissed. 35 Section 30. 36 Attorney-General v Francis [2007] 1 Qd R 396 at [39.] -- 27 of 28 -- 28 2. I will hear the parties as to the date upon which the Attorney-General’s application under s 22 of the Dangerous Prisoners (Sexual Offenders) Act 2003 should be set down. -- 28 of 28 --