Attorney-General for the State of Queensland v Dowsett [2019] QSC 225 [2019] 39 QLR

SUPREME COURT OF QUEENSLAND CITATION: Attorney-General for the State of Queensland v Dowsett [2019] QSC 225 PARTIES: ATTORNEY-GENERAL FOR THE STATE OF QUEENSLAND (Applicant) v WILLIAM BERNARD DOWSETT (Respondent) FILE NO/S: BS No 7925 of 2019 DIVISION: Trial Division PROCEEDING: Application DELIVERED ON: 29 August 2019, ex tempore DELIVERED AT: Brisbane HEARING DATE: 29 August 2019 JUDGE: Bowskill J ORDER: The application under section 8 of the Dangerous Prisoners (Sexual Offenders) Act 2003 is dismissed. CATCHWORDS: CRIMINAL LAW – SENTENCE – SENTENCING ORDERS – ORDERS AND DECLARATIONS RELATING TO SERIOUS OR VIOLENT OFFENDERS OR DANGEROUS SEXUAL OFFENDERS – DANGEROUS SEXUAL OFFENDER – GENERALLY Dangerous Prisoners (Sexual Offenders) Act 2003 (Qld) COUNSEL: J Tate for the applicant D Holliday for the respondent SOLICITORS: Crown Law for the applicant Legal Aid Queensland for the respondent [1] The Attorney-General has applied for an order under section 8 of the Dangerous Prisoners (Sexual Offenders) Act 2003 that the respondent undergo examinations by two psychiatrists in advance of an application under section 13(5) of the Act for an order that he either be detained in custody for an indefinite term for care, control or treatment, or alternatively be released, subject to a supervision order. [2] The respondent has raised a fundamental challenge to the Attorney-General’s application, on the basis that he is not a “prisoner” within the meaning of and for the purposes of section 5 of the Act. -- 1 of 4 -- 2 [3] Under section 5(1), the Attorney-General may only apply for an order under section 8 and a division 3 order in relation to a “prisoner”. Under section 5(6), for the purposes of section 5, “prisoner” means “a prisoner detained in custody who is serving a period of imprisonment for a serious sexual offence, or 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”. [4] Significantly, the term “serious sexual offence” is defined in the schedule to the Act to mean an offence of a sexual nature, whether committed in Queensland or outside Queensland, relevantly, involving violence. The definition, of course, includes offences of a sexual nature against a child, but there is no contention about that in this case. “Violence” is also defined in the schedule to include intimidation or threats. [5] The respondent is presently serving a period of imprisonment imposed on him in respect of a number of offences, including convictions for assault occasioning bodily harm, common assault, assault occasioning bodily harm whilst armed, and sexual assault. Also, in a separate incident, a conviction of doing an indecent act. [6] The factual circumstances are set out in the statement of facts that was relied upon at the sentence. It is relevant that I note what the facts are in order to explain the decision that I have reached. The statement of facts outlines that the respondent was previously in prison in relation to other offences. He was released from prison on about 14 July 2015 and shortly after that, went to stay with the complainant. They are said to have had a functional relationship, which involved the complainant driving him to his parole appointments, and she described their relationship as “good friends”. [7] On 25 July 2015, the complainant told the respondent that she was going to visit her current partner, who was himself in prison. They got into some kind of argument and the respondent cupped his hand and hit the complainant on the right side of her face, giving rise to the assault occasioning bodily harm charge. She walked into her bedroom to get her bag. He approached her in her room and kicked her in the stomach area with the base of his foot. That was the common assault charge. She told him she was leaving and the defendant then squeezed her around the throat until she nearly fell unconscious. That was a further common assault charge. [8] About two weeks later, in the early hours of the morning, the complainant woke up to the defendant chasing her dog around the house. He was brandishing a kitchen knife and yelling irrational things. He is said to have lunged at the complainant and the dog a number of times with a larger knife that he picked up. The knife made contact with the dog’s throat, resulting in a summary offence of injuring animals. It also made contact with the complainant’s fingers, causing cuts, resulting in the assault occasioning bodily harm whilst armed charge. The complainant telephoned the police. Later that morning, the police came along. She seems not to have said very much to the police. [9] There is then a further gap until later that afternoon, when the respondent woke up, approached the complainant, who was on her couch, and demanded drugs from her. The complainant denied being in possession of any drugs. The following appears in paragraph 15 of the schedule of facts: -- 2 of 4 -- 3 “The defendant then grabbed the waistline of the complainant’s pants and said ‘I know you banked them.’ [secreted drugs in her vagina]. The complainant moved her arms in an attempt to prevent the defendant from touching her. The defendant pushed the complainant’s hands away. He then pulled her pants and underwear away from her body. He said to her ‘I am allowed to inspect, you are my woman.’ The complainant told the defendant again ‘I am not your woman.’ The defendant then patted the complainant down looking for drugs. His hands came in contact with the complainant’s vagina.” [10] That gave rise to the charge of sexual assault. [11] According to the criminal history, that offence was committed on 8 August 2015. The next day or the day after, on 9 or 10 August, there was a further offence committed, of doing an indecent act. This involved the defendant getting in a car when he was hitchhiking and putting his hands down into his pants and then engaging with the driver of the car about his penis. It is unnecessary to say much more about that. The Attorney- General does not rely on that offence as a serious sexual offence. [12] For the respondent, it is said that the sexual assault involving, effectively, patting the complainant down looking for drugs and, in that process, his hands coming into contact with the complainant’s vagina, is not a “serious sexual offence” within the meaning of the Dangerous Prisoners (Sexual Offenders) Act and, therefore, he is not a “prisoner” within the meaning of section 5(6). [13] In support of the respondent’s submission, the Court is referred to the decision of the Court of Appeal in Attorney-General v Phineasa [2013] 1 Qd R 305, in which the Court of Appeal addressed the meaning of “violence” in the definition of serious sexual offence. As is made clear in that decision, in particular in the reasons of Justice Muir, it is necessary in construing that provision to have regard to the objects and purposes of the Act, including as informed by the second reading speech and the explanatory notes. When it was enacted, the legislation was intended to provide protection for the community from what was described as a discrete and small number of cases, involving very, very serious offenders who represented such a risk to the community that post- sentence preventative detention or supervision was warranted. Justice Muir, at paragraph 38, said that: “[t]he ‘violence’ referred to in the definition of serious sexual offence is force significantly greater in degree than mere physical contact or even, at least as a general proposition, acts such as pawing, grasping, groping, or stroking.” [14] Further, that: “The language of sections 8 and 13 [of the Act]… is inconsistent with the application of the Act to sexual offences other than of a very serious kind where offending against adults is concerned.” [15] His Honour also said that: “[t]he ‘violence’ contemplated by the Act (excluding for present purposes threats or intimidation) would normally involve the use of force against a person to facilitate the ‘rape’ of that person within the meaning of section 349 of the Criminal Code or which caused (or in the case of predicted conduct -- 3 of 4 -- 4 would be likely to cause) that person significant physical injury or significant psychological harm.” [16] That construction of the term is consistent with the objects and purposes of the Act, as I have said, clearly intended to apply in the case of very serious sexual offences involving adults. [17] The applicant argues that it is appropriate to consider the whole of the course of conduct engaged in by the respondent in determining whether or not the sexual assault is a sexual offence involving violence. That is, that one has regard to the conduct involving the assaults, presumably including two weeks earlier, but also earlier on the very day, involving the knife. [18] To the extent that it was submitted, by reference to Justice Davis’ decision in Attorney- General v Sorrenson [2019] QSC 203 at [72]-[74], that one might consider those earlier offences as being within the meaning of an offence of a sexual nature, because there was a sexual assault later in the episode, I reject that submission. [19] Further, it seems to me that it is important to have regard to the separation in time, not only from 25 July to 8 August; but even in the course of 8 August, the separation in time from the morning until the afternoon. In my view, it is not an appropriate analysis of the factual circumstances of the offending in this case to conclude that the particular conduct involved in the sexual assault could be said to be an offence of a sexual nature involving violence, by reference to the earlier violent conduct occurring between the parties. There was, as submitted by counsel on behalf of the respondent, no sexual element to that earlier violence, as reprehensible as it was. And, insofar as the sexual conduct comprising the sexual assault was concerned, one could not conclude that there was violence within the meaning of the Dangerous Prisoners (Sexual Offenders) Act, as explained by the Court of Appeal in Phineasa. Nor do I accept that there was intimidation or threats within that broader meaning of violence in the Act. [20] The whole of the definition ought to be construed, in my view, consistent with the approach taken by the Court of Appeal in Phineasa. The nature of this particular offence committed by the respondent, comprising the sexual assault, in my view, does not come within the meaning of “serious sexual offence” in the legislation. It follows that I find that the respondent is not a “prisoner” within the meaning of section 5(6) of the Act and therefore, that the application under section 8 of the Act should be dismissed. -- 4 of 4 --