Attorney-General v Kanaveilomani [2013] QCA 404 [2015] 2 Qd R 509; (2013) 238 A Crim R 378

SUPREME COURT OF QUEENSLAND CITATION: Attorney-General (Qld) v Kanaveilomani [2013] QCA 404 PARTIES: ATTORNEY-GENERAL FOR THE STATE OF QUEENSLAND (appellant) v TIMOCI KURUYAWA KANAVEILOMANI (respondent) FILE NO/S: Appeal No 4632 of 2013 SC No 6425 of 2010 DIVISION: Court of Appeal PROCEEDING: General Civil Appeal ORIGINATING COURT: Supreme Court at Brisbane DELIVERED ON: 20 December 2013 DELIVERED AT: Brisbane HEARING DATE: 12 September 2013 JUDGES: Margaret McMurdo P and Morrison JA and Philippides J Separate reasons for judgment of each member of the Court, each concurring as to the order made ORDER: Appeal dismissed. 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 serving a period of imprisonment for offences committed in 1999, including two counts of rape – where in 2009, whilst on parole for the 1999 offences, the respondent committed the further offences of entering a dwelling house with intent to commit an indictable offence, grievous bodily harm and stealing – where the applicant’s parole was suspended indefinitely and he was returned to custody – where, five months before the full time release date for the 1999 offences, the Attorney-General filed an application for the respondent to be detained pursuant to the Dangerous Prisoners (Sexual Offenders) Act 2003 (Qld) (“DPSO Act”) – where, once the term of imprisonment for the 1999 offences ended, the respondent was held on remand for the 2009 offences – where, on 10 January 2012, the respondent was sentenced for the 2009 offences to 13 years imprisonment, making his full time release date 20 November 2023 – where the sentencing judge, exercising the power -- 1 of 43 -- 2 under s 159A(3) of the Penalties and Sentences Act 1992 (Qld) (“PSA”), declared the time served on remand between the end of the term of imprisonment for the 1999 offences and the date of sentence for the 2009 offences to be “imprisonment already served under the sentence” – whether the declaration made by the sentencing judge pursuant to s 159A(3)(c) of the PSA had the effect that the term of imprisonment imposed in respect of the 2009 offences, taken together with the term of imprisonment for the 1999 offences, constituted a “period of imprisonment that includes a term of imprisonment for a serious sexual offence” within the meaning of s 5(6) of the DPSO Act – whether, if that was so, the Attorney-General’s application, although validly instituted, had ceased to be efficacious because an application could be made at a time after 20 May 2023 pursuant to s 5(2)(c) of the DPSO Act CRIMINAL LAW – SENTENCE – SENTENCING ORDERS – ORDERS AND DECLARATIONS RELATING TO SERIOUS OR VIOLENT OFFENDERS OR DANGEROUS SEXUAL OFFENDERS – DANGEROUS SEXUAL OFFENDER – GENERALLY – where the application was made in respect of the 1999 offences, but the respondent’s full time release date for the 2009 offences was not until 20 November 2023 – where s 13(1) of the DPSO Act required the primary judge to determine whether, on the hearing of the application, the respondent was a serious danger to the community in the absence of a Pt 2 div 3 order if released from custody – where the primary judge determined that the respondent was a serious danger to the community at the time of the hearing of the application but that the appellant had not proved to the requisite threshold that the respondent would be a serious danger when likely to be released in 2023 – where, owing to such uncertainty, the primary judge exercised her discretion under s 13(5) not to make a Pt 2 div 3 order – where the respondent contended that the primary judge erred in being satisfied that he was a serious danger to the community under s 13(1) at the time of the hearing of the application, as the proper construction of s 13 required the risk assessment to be made in respect of his actual release in 2023 – where the appellant contended that s 13 requires the risk assessment to be made at the time of the hearing of the application and that, upon being satisfied that the respondent was a serious danger to the community at the time of the hearing of the application in the absence of a Pt 2 div 3 order, the primary judge erred in exercising her discretion not to make a Pt 2 div 3 order – whether the risk assessment for the purpose of s 13(1) is determined as at the time of the hearing of the application or at the time of actual release – whether the primary judge erred in making the s 13(1) determination or in exercising her discretion under s 13(5) -- 2 of 43 -- 3 Acts Interpretation Act 1954 (Qld), s 14 Dangerous Prisoners (Sexual Offenders) Act 2003 (Qld), s 3, s 5, s 8, s 9A, s 13, s 30 Penalties and Sentences Act 1992 (Qld), s 4, s 5, s 8, s 9A, s 154 (as amended by Act No 43 of 2004, s 79), s 158 (as per Reprint 1 until repealed by Act No 43 of 2004, ss 78, 79), s 159A (renumbered from s 161 by Act No 29 of 2006, s 496; see Reprint 8G), s 159A (as amended by Act No 43 of 2004, s 80; see Reprint 8D), s 161 (Reprint 8C), s 161 (renumbered as s 159A by Act No 29 of 2006, s 496; see Reprint 8G) A-G (Qld) v Fardon [2003] QCA 416, cited Attorney-General (Qld) v Lawrence [2010] 1 Qd R 505; [2009] QCA 136, cited Al-Kateb v Godwin (2004) 219 CLR 562; [2004] HCA 37, cited Attorney-General (Qld) v Phineasa [2013] 1 Qd R 305; [2012] QCA 184, cited Attorney-General (Qld) v Francis [2007] 1 Qd R 396; [2006] QCA 324, cited Attorney-General for the State of Qld v Kanaveilomani [2013] QSC 86, considered Attorney-General (Qld) v Kanoveilomani (No 2), unreported, Supreme Court of Queensland, No 6425 of 2010, 26 April 2013, cited Attorney-General for the State of Queensland v Sutherland [2006] QSC 268, cited Coco v The Queen (1994) 179 CLR 427; [1994] HCA 15, cited Dodge v Attorney-General for the State of Queensland [2012] QCA 280, cited Fardon v Attorney-General (Qld) (2004) 223 CLR 575; [2004] HCA 46, considered Geiger v The Queen (2001) 112 FCR 79; [2001] FCA 475, cited Hooson v Department of Corrective Services [2005] 2 Qd R 154; [2005] QSC 22, considered Keen v The Queen [2000] FCA 940, considered Kim v Arbuckle [2009] QDC 267, considered Lacey v Attorney-General (Qld) (2011) 242 CLR 573; [2011] HCA 10, cited Laman v Department of Corrective Services [2005] QSC 209, considered Plaintiff S157/2002 v The Commonwealth (2003) 211 CLR 476; [2003] HCA 2, cited Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355; [1998] HCA 28, considered R v Blake [1995] 2 Qd R 167; [1994] QCA 77, considered R v Gilbert [1975] 1 WLR 1012; [1975] 1 All ER 742, cited R v Holman [1995] 2 Qd R 176; [1994] QCA 110, considered R v Jones [1998] 1 Qd R 672; [1997] QCA 132, considered R v Wishart and Jenkins [1994] 2 Qd R 421; [1993] QCA 563, considered Tilbrook v Attorney-General for the State of Queensland [2012] QCA 279, considered -- 3 of 43 -- 4 Yeo v Attorney-General for the State of Queensland (2007) 170 A Crim R 213; [2007] QCA 32, considered COUNSEL: P Davis QC, with J B Rolls, for the appellant J J Allen for the respondent SOLICITORS: Crown Law for the appellant Legal Aid Queensland for the respondent [1] MARGARET McMURDO P: The appellant, the Attorney-General for the State of Queensland, has appealed from the order of a judge of the Trial Division dismissing the appellant’s application made under Pt 2 div 1 s 5 Dangerous Prisoners (Sexual Offenders) Act 2003 (Qld)1 (“DPSO Act”) for an order detaining the respondent under Pt 2 div 3 s 13 DPSO Act.2 Background [2] The following background facts are uncontroversial. The respondent was serving a period of imprisonment for two counts of rape which were each a serious sexual offence as defined in the dictionary schedule to the DPSO Act. He was granted parole on 14 November 2008. Just over two months later, he was charged with further offences and remanded in custody on 28 January 2009 when his parole was suspended indefinitely. These 2009 offences were arguably not serious sexual offences under the DPSO Act.3 On 22 June 2010, the appellant brought an application for Pt 2 orders under s 5 DPSO Act.4 It is common ground that the application, when brought, was properly made during the last six months of the respondent’s period of imprisonment for serious sexual offences.5 On 15 July 2010 at a preliminary hearing under s 8 DPSO Act, a trial division judge ordered the respondent to undergo psychiatric examinations. On 10 November 2010, the appellant’s application for final orders under Pt 2 div 3 DPSO Act was adjourned and the respondent was detained in custody under s 9A(2)(b) DPSO Act. On 19 November 2010, he completed serving his sentence for the rape offences. On 10 January 2012, he pleaded guilty to the 2009 offences and was sentenced to 13 years imprisonment. The sentencing judge declared under s 159A(3)(c) Penalties and Sentences Act 1992 (Qld)6 as part of the sentence, time spent in pre-sentence custody from 20 November 2010 (the day after he completed his sentence for the rape offences) to 10 January 2012 (the day of his sentence for the 2009 offences), a total of 417 days. His full-time release date on the 2009 offences is 20 November 2023. [3] The appellant’s application for a final order under Pt 2 div 3 DPSO Act came before the primary judge on 5 November 2012. The judge found that the application was validly made under s 5(2)(c) DPSO Act.7 After considering the matters listed in s 13(4), her Honour was satisfied the respondent was presently a serious danger to the community under s 13(1) as informed by s 13(2) DPSO Act,8 in the absence of an order under Pt 2 div 3. In then exercising her discretion under s 13(5) as to whether to 1 Set out in Morrison JA’s reasons, [37]. 2 Set out in Morrison JA’s reasons, [103]. 3 See Attorney-General for the State of Queensland v Kanaveilomani [2013] QSC 86, [11]. 4 See out in Morrison JA’s reasons, [37]. 5 See s 5(2)(c) DPSO Act set out in [37] of Morrison JA’s reasons. 6 Set out in Morrison JA’s reasons, [42]. 7 Attorney-General for the State of Queensland v Kanaveilomani [2013] QSC 86, [60]. 8 Above, [62]-[64]. -- 4 of 43 -- 5 make a Pt 2 div 3 order, her Honour determined that the appellant had not discharged his obligations in s 13(3) and (7).9 Ultimately her Honour determined that she: “could not be satisfied by cogent evidence to a high degree of probability that the evidence was of sufficient weight to justify a decision that the respondent would be a serious danger to the community in 2023. Whilst … the [appellant] had satisfied the requirements of s 13(1) of the DPSOA, [the judge] was not satisfied that an order should be made pursuant to s 13(5) of the DPSOA given both the lack of certainty about the nature and management of the risk and the lack of utility in the order. Whilst [the judge] was satisfied that the respondent is currently a serious danger to the community, [the judge] was not satisfied that the [appellant] had discharged the onus referred to in s 13(7) of the DPSOA that one or other of the orders specified in s 13(5) should be made.”10 [4] For these reasons the judge dismissed the appellant’s application. The issues [5] There are essentially three issues for consideration in this appeal. The first issue is whether the appellant’s application should have been dismissed once the respondent was sentenced for the 2009 offences. This issue arises from the interaction between the effect of the sentencing judge’s declaration and the definition of “prisoner” under s 5(6) DPSO Act. It raises the question whether once an application under s 5 for Pt 2 orders could be made after 20 May 2023 (s 5(2)(c)), the present application became otiose. [6] The second issue is raised in the respondent’s notice of contention. It is that the judge should have concluded that the respondent was not a serious danger to the community under s 13(1). This follows, the respondent contends, from the appellant’s failure to satisfy the judge to the requisite standard stated in s 13(3) and (7) that the respondent would be a serious danger to the community when ultimately released from custody in the absence of a Pt 2 div 3 order. Alternatively, the respondent contends he was not a present danger under s 13(1) as he was in custody for a lengthy period serving a sentence. The judge should have dismissed the application on either of these bases. [7] The third issue is raised in the appellant’s contention that the primary judge erred in exercising her discretion under s 13(5) not to make a Pt 2 div 3 order. The resolution of these issues is not straightforward and I will deal with each issue in order. The effect of the sentence for the 2009 offences on the appellant’s application [8] The first issue for consideration was not raised either before the primary judge, in the grounds of appeal or in the notice of contention but was raised by a member of the Court during argument at the appeal hearing. It is whether the s 159A(3)(c) Penalties and Sentences Act declaration on 10 January 2012 had the effect that, when the primary judge heard the appellant’s s 5 application under Pt 2 DPSO Act, 9 Above, [65]-[73]. 10 Attorney-General for the State of Queensland v Kanoveilomani (No 2), unreported, Supreme Court of Queensland, No 6425 of 2010, 26 April 2013, [5]. -- 5 of 43 -- 6 the respondent was serving “a period of imprisonment11 that includes a term of imprisonment for a serious sexual offence” within the definition of “prisoner” in s 5(6) DPSO Act.12 If so, the appellant could bring an application for orders under the DPSO Act after 20 May 2023, during the last six months of the respondent’s sentenced imprisonment, and the present application should be dismissed as otiose. [9] Although neither party contended for this conclusion, I agree with Morrison JA that, when the primary judge heard and determined the application, the respondent was serving “a period of imprisonment that includes a term of imprisonment for a serious sexual offence” which did not expire until 20 November 2023. [10] It is true, as the appellant emphasises, that the definition of “prisoner” in s 5(6) is, in terms, limited to s 5; there is a broader general definition of “prisoner” in the dictionary schedule to the DPSO Act. But the only rational conclusion from the terms and scheme of the DPSO Act is that the meaning of “prisoner” in Pt 2 div 3 s 13 is informed by the definition of “prisoner” in s 5(6). Once the respondent was sentenced for the 2009 offences and his sentence was backdated by way of a s 159A(3)(c) declaration, the appellant’s application for a Pt 2 div 3 order could not succeed as the respondent was serving a sentence of imprisonment which was part of “a period of imprisonment that includes a term of imprisonment for a serious sexual offence” (s 5(6)) so that an application for a Pt 2 order could be made after 20 May 2023 (s 5(2)(c)). As a result, the present application became otiose. [11] The appellant points out that it is arguable the sentencing judge on 10 January 2012 should not have issued the declaration under s 159A(3) in the terms made. For some of that period the respondent may have been in custody because of his breach of parole or interlocutory orders under the DPSO Act. In terms of s 159A(1) Penalties and Sentences Act, he may not have been “held in custody in relation to proceedings for the [2009 offences] and for no other reason”. But there was no appeal from the sentencing judge’s order which included the declaration. That order must be acted upon until set aside. This Court must proceed on the basis that the declaration was properly made. [12] Construing s 159A(3) as having the effect that the respondent’s sentence is backdated to 20 November 2010 is consistent with the previously expressed views of this Court concerning s 161 Penalties and Sentences Act, which was the predecessor of and in like to terms to s 159A. In R v Wishart and Jenkins13 the majority referred to a declaration under s 161 (now s 159A) as achieving “backdating” of the sentence.14 This Court unanimously followed that construction in R v Blake15 and specifically affirmed it in R v Holman,16 again referring to the utility of s 161 (now s 159A) to “achieve backdating” of the sentence.17 Of course, where a declaration covers more 11 The phrase “period of imprisonment” in s 5(6) DPSO Act “means the unbroken duration of imprisonment that an offender is to serve for 2 or more terms of imprisonment, whether– (a) ordered to be served concurrently or cumulatively; or (b) imposed at the same time or different times; and includes a term of imprisonment.” See Penalties and Sentences Act, s 4; dictionary schedule DPSO Act, “period of imprisonment”. 12 Set out in Morrison JA’s reasons, [98]. 13 [1994] 2 Qd R 421. 14 Macrossan CJ and Pincus JA, 426, 427. 15 [1995] 2 Qd R 167, 169. 16 [1995] 2 Qd R 176. 17 Above, 180. -- 6 of 43 -- 7 than one time period, the backdating can only cover the specific time periods referred to in the declaration: see R v Blake.18 In the present case, in making the s 159A declaration on 10 January 2012, the judge backdated the respondent’s sentence to the commencement of his pre-sentence custody on 20 November 2010, the day after his sentence for the rape offences finished. [13] Contrary to the appellant’s contentions, the construction of s 159A which I adopt is not inconsistent with s 154 Penalties and Sentences Act19 which deals with the calculation of a term of imprisonment. The references there to “sections 156(1), 158A and 159” refer respectively to cumulative orders of imprisonment; time when an offender is on bail awaiting appeal; and time when an offender has absconded from prison. It is also true that s 154 is “subject to an order being made under the repealed s 158” whereas it is not subject to an order made under s 159A. That is because, unlike backdating an order under the repealed s 158, a declaration under s 159A(3)(c) that presentence custody is to be time served under the sentence operates according to its own terms and without recourse to s 154. There is nothing in s 154 to suggest the legislature did not intend a backdated term of imprisonment imposed by way of s 159A to be part of a period of imprisonment for the purposes of the DPSO Act. [14] The respondent contends that support for construing a s 159A declaration as not backdating a sentence was found in Hooson v Department of Corrective Services,20 Laman v Department of Corrective Services21 and Kim v Arbuckle.22 [15] For the following reasons, I cannot accept that contention. Hooson concerned eligibility for conditional release under the Corrective Services Act 2000 (Qld) and the meaning of “period of imprisonment” for the purposes of s 76 to s 81 of that Act. Wishart and Jenkins, Blake and Holman were not discussed. Nothing said by Holmes J (as her Honour then was) in Hooson detracts from the previously stated view of this Court that a declaration under s 161(3) (now s 159A)(3)) has the effect of backdating the sentence to the commencement of the time period covered by the declaration. Laman had similarities to Hooson in that it concerned eligibility for remission under the Corrective Services Act. Philippides J, in agreeing with Holmes J’s statements in Hooson, said nothing to detract from this Court’s by then established construction of s 161 (now s 159A). Insofar as the District Court decision of Kim v Arbuckle may be inconsistent with this Court’s statements in Wishart and Jenkins, Blake and Holman as to the backdating effect of a s 159A declaration, it should not be followed. [16] Consistent with that construction of s 159A, since 10 January 2012 when the respondent was sentenced for the 2009 offences, he has been serving a sentence which commenced on 20 November 2010, the day after he completed his sentence for the rape offences. There was no break in his imprisonment. It follows that, in terms of s 5(6) DPSO Act, at the time the primary judge heard the appellant’s application for a final order under Pt 2 div 3 DPSO Act, the respondent was “serving a period of imprisonment that includes a term of imprisonment for a serious sexual offence”. The appellant’s application was properly made under s 5 on 22 June 2010, well prior to his sentence for the 2009 offences. But the backdated sentence for the 2009 18 [1995] 2 Qd R 167, 170. 19 Set out in Morrison JA’s reasons, [41]. 20 [2005] QSC 22, [12]. 21 [2005] QSC 209, [38]-[39]. 22 [2009] QDC 267, 1-5. -- 7 of 43 -- 8 offences meant that by the time this application came before the primary judge for a final order under Pt 2 div 3, the appellant could apply after 20 May 2023 for Pt 2 orders: see s 5(2)(c) DPSO Act. The original application had become otiose. The judge was right to dismiss it. [17] This construction sits comfortably with the scheme of the DPSO Act23 and with its objects which include “to ensure adequate protection of the community”.24 Ordinarily, the community is best protected by making an assessment on current psychiatric and other material of a DPSO Act prisoner’s potential danger to the community close to, at or after the end of the prisoner’s period of sentenced imprisonment. This construction also avoids wasting limited public resources on regularly reviewing Pt 2 div 3 orders when a prisoner is serving a lengthy sentence. [18] The primary judge’s order dismissing the application, although made on a different basis, was plainly correct. My conclusion on this issue is sufficient to dispose of the appeal, but in case I am wrong, I will deal with the remaining issues. Did the judge err in finding the respondent was a serious danger to the community under s 13(1) DPSO Act? [19] The respondent does not contest the judge’s finding under s 13(1), overwhelmingly supported by the material before the court, that the respondent, if released at the time of the hearing of the application, was a serious danger to the community in the absence of a Pt 2 div 3 order. In his notice of contention he submits the primary judge erred in considering under s 13(1), informed by s 13(2), whether, at the time the application was heard and determined, he was a serious danger to the community in the absence of a Pt 2 div 3 order if then released. The proper construction of s 13, the respondent contends, requires an assessment of the respondent’s danger to the community at the time he would actually be released from custody in 2023. Alternatively, he contends that the respondent does not present such a current risk as he is unlikely to be released from prison until 2023. [20] The issues raised in these arguments highlight the good sense of dismissing the application on the grounds raised in the first issue. [21] I consider the better construction of s 13 is that, in light of its terms, the question whether the respondent is a serious danger to the community in the absence of a Pt 2 div 3 order is to be determined at the time of the hearing of the application. The use of the phrase “on the hearing of an application”; the present tense in s 13(1), (2), (3), (4) and (7); and the use of “if” require the court at the time of the hearing of the application to make a hypothetical assessment of a prisoner’s future risk assuming he is presently released. As Morrison JA points out, this construction is consistent with the scheme of the Act considered as a whole and with Gummow J’s observations in Fardon v Attorney-General (Qld).25 [22] The fact that the respondent will be unlikely to be released into the community before November 2023 is not relevant to the issue for determination under s 13(1), informed by s 13(2), namely the assessment of his future risk without a Pt 2 div 3 order at the time of the hearing of the application, hypothetically assuming he would be released at that time. It follows from this construction that the fact that he could not be released at the time of the hearing as he is serving a lengthy sentence is an irrelevant consideration. It therefore cannot be taken into account under s 13(4)(j). 23 Set out in Morrison JA’s reasons, [97]-[106]. 24 DPSO Act, s 3(a). 25 [2004] HCA 46, [112], Hayne J concurring. -- 8 of 43 -- 9 [23] If I were wrong on the first issue and the judge was required to determine the application, her Honour did not err in being satisfied that the respondent was a serious danger to the community under s 13(1) and (2) in the absence of a Pt 2 div 3 order at the time of the hearing and determination of the application, assuming he was released at that time. Did the judge err in exercising her discretion under s 13(5) to refuse to make an order under Pt 2 div 3 DPSO Act? [24] As with the second issue, the arguments raised by the appellant in this issue demonstrate the good sense in dismissing the application on the ground raised in the first issue. [25] The primary judge provided persuasive reasons for exercising her discretion to dismiss the application.26 The only errors established by the appellant arise from the primary judge’s statements that she could not: “be satisfied by cogent evidence to a high degree of probability that the evidence is of sufficient weight to justify a decision that the Respondent will be a serious danger to the community in 2023. That may well be the position in 2023 but there are currently too many variables to be satisfied of that question to a high degree of probability”;27 and “I am not satisfied that the [appellant] has discharged the onus referred to in s 13(7) of the DPSOA that one or other of the orders specified in s 13(5) should be made.”28 [26] The judge was first required to determine under s 13(1), informed by s 13(2), (3), (4) and (7), whether the respondent was a serious danger to the community in the absence of a Pt 2 div 3 order. Only if satisfied of that threshold question is it necessary for the court to consider under s 13(5), taking into account the matters in s 13(6), whether to exercise its discretion to either detain the prisoner in custody for an indefinite term for control, care or treatment29 or release the prisoner from custody subject to a supervision order.30 The judge erred in considering that the matters raised in s 13(3) and (7) directly informed the exercise of the s 13(5) discretion when they clearly relate to the threshold question under s 13(1). It is difficult, however, to see how these errors adversely affected the exercise of discretion. Having reasonably reached the views set out in the preceding paragraph, they were relevant to the exercise of discretion under s 13(5) and the judge was entitled to consider them. The judge’s reasons make clear that the principal factors which caused her to dismiss the application were the uncertainty about the nature and management of the respondent’s risk to the community when ultimately released, almost certainly many years into the future, and the lack of utility in making a Pt 2 div 3 order as he is serving a lengthy sentence. If the judge erred and it were necessary to re-exercise the discretion, I would dismiss the application for the two factors emphasised by her Honour. Those factors are why the application should have been dismissed on the grounds raised on the first issue. 26 Attorney-General for the State of Queensland v Kanaveilomani [2013] QSC 86, [68]-[73]. 27 Above, [71]. 28 Above, [73]. 29 DPSO Act, s 13(5)(a). 30 DPSO Act, s 13(5)(b). -- 9 of 43 -- 10 Summary [27] The primary judge was right to dismiss the appellant’s application for a Pt 2 div 3 order. By the time that application was heard, the respondent was serving a period of imprisonment that includes a term of imprisonment for a serious sexual offence so that the appellant could apply under s 5 DPSO Act after 20 May 2023 for Pt 2 div 3 orders concerning the respondent. As a result, the present application was inutile. If I am wrong, the judge was right to find the respondent a serious danger to the community under s 13(1) DPSO Act in the absence of an order under Pt 2 div 3 DPSO Act. This was so despite her lack of satisfaction under s 13(3) and (7) DPSO Act that the respondent would be a danger when released into the community in 2023 and even though he was unlikely to be released into the community until 2023. The judge did not err in exercising her discretion under s 13(5) to refuse to make an order under Pt 2 div 3 DPSO Act. If I am wrong and the judge erred in this respect, I would re-exercise the s 13(5) discretion by refusing to make a Pt 2 div 3 order because of the uncertainty of predictions as to the respondent’s dangerousness when he was likely to be released in 10 years time and the lack of utility of such an order, given the respondent is almost very likely to be serving a prison sentence until 2023. It follows that the judge was right to dismiss the application and this appeal must also be dismissed. [28] I agree with the order proposed by Morrison JA. ORDER: The appeal is dismissed. [29] MORRISON JA: This is an appeal by the Attorney-General for the State of Queensland against the refusal to make an order for the detention of the respondent under the Dangerous Prisoners (Sexual Offenders) Act 2003 (“DPSO Act”). The application for that order was filed on 22 June 2010 and was finally heard on 5 November 2012. Interim orders had been made for the respondent to undergo psychiatric examinations, following which the application was adjourned from time to time until the final hearing. Relevant chronology [30] When the application was filed the respondent was then serving a period of imprisonment for offences, including two counts of rape, of which he was convicted on 13 August 1999 (“the 1999 offences”). The full time release date in respect of the 1999 offences was 19 November 2010. [31] On 14 November 2008, the respondent was granted parole. On 25 January 2009, the respondent committed the offences of entering a dwelling house with intent to commit an indictable offence, grievous bodily harm and stealing. He was arrested in respect of those offences (“the 2009 offences”) on 28 January 2009. His parole was suspended indefinitely and he was returned to custody. [32] Some five months before the full time release date in respect of the 1999 offences, the application was filed. That was in accordance with s 5(2)(c) of the DPSO Act, which requires such an application to be “made during the last 6 months of the prisoner’s period of imprisonment”. [33] The orders made in respect of the application can be summarised as follows: -- 10 of 43 -- 11 1. 15 July 2010 – order pursuant to s 8 of the DPSO Act, that the respondent undergo psychiatric examination; 2. 10 November 2010 to 13 July 2012 – application adjourned on seven occasions; each order (until that made on 13 July 2012) included an order that the respondent be detained in custody pursuant to s 9A(2)(b) of the DPSO Act; and 3. 13 July 2012 – hearing further adjourned until 5 November 2012. [34] The term of imprisonment imposed for the 1999 offences ended on 19 November 2010. From that time the respondent was held on remand for the 2009 offences.31 [35] When the respondent was sentenced in respect of the 2009 offences on 10 January 2012, the sentencing judge exercised the power under s 159A(3) of the Penalties and Sentences Act 1992 (Qld) (“PSA”), to calculate the time that elapsed between 20 November 2010 and 10 January 2012, and declare that time to be “imprisonment already served under the sentence”.32 [36] The sentencing judge made a formal declaration under s 159A(3) in these terms: “I declare the time you have spent in presentence custody from the 20th of November 2010 to the l0th of January 2012, a total of 417 days, as part of the sentence.”33 Relevant statutory provisions [37] The Attorney-General’s application was brought under s 5 of the DPSO Act, which provides: “5 Attorney-General may apply for orders (1) The Attorney-General may apply to the court for an order or orders under section 8 and a division 3 order in relation to a prisoner. (2) The application must – (a) state the orders sought; and (b) be accompanied by any affidavits to be relied on by the Attorney-General for the purpose of seeking an order or orders under section 8; and (c) be made during the last 6 months of the prisoner’s period of imprisonment. … (6) In this section— 31 AR 279-280. 32 AR 303. The verdict and judgment record AR 277 records the declaration. The pre-sentence custody certificate provided to the sentencing judge certified that the respondent was “held in custody on these charges from his date of arrest”, and listed the dates as being 20 November 2010 to 9 January 2012: AR 279-280. 33 AR 303. -- 11 of 43 -- 12 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.” [38] The Schedule to the DPSO Act defines both “period of imprisonment” and “term of imprisonment” by reference to s 4 of the PSA. That section defines “period of imprisonment” to mean: “…the unbroken duration of imprisonment that an offender is to serve for 2 or more terms of imprisonment, whether— (a) ordered to be served concurrently or cumulatively; or (b) imposed at the same time or different times; and includes a term of imprisonment.” [39] Section 4 defines “term of imprisonment” in the following way: “term of imprisonment means the duration of imprisonment imposed for a single offence and includes— (a) the imprisonment an offender is serving, or is liable to serve— (i) for default in payment of a single fine; or (ii) for failing to comply with a single order of a court; and (b) for an offender on whom a finite sentence has been imposed, any extension under section 174B(6) of the offender’s finite term.” [40] Sections 154 and 159A of PSA impact on the questions before this Court. [41] Section 154 provides as follows: “154 Calculation of term of imprisonment (1) Except as provided in sections 156(1), 158A and 159 and subject to an order being made under the repealed section 158, a term of imprisonment— (a) on conviction on indictment—starts on the day the court imposes imprisonment on the offender; and (b) on a summary conviction—starts at the beginning of the offender’s custody for the imprisonment. -- 12 of 43 -- 13 (2) In this section— repealed section 158 means section 158 as in force immediately before it was repealed by the Justice and Other Legislation Amendment Act 2004.” [42] Section 159A relevantly provides as follows: “159A Time held in presentence custody to be deducted (1) If an offender is sentenced to a term of imprisonment for an offence, any time that the offender was held in custody in relation to proceedings for the offence and for no other reason must be taken to be imprisonment already served under the sentence, unless the sentencing court otherwise orders. … (3) If an offender was held in custody in circumstances to which subsection (1) applies, and the court has not made an order mentioned in subsection (3A), the sentencing court must, as part of the sentencing order— (a) state the dates between which the offender was held in presentence custody; and (b) calculate the time that the offender was held in presentence custody; and (c) declare the time calculated under paragraph (b) to be imprisonment already served under the sentence. (3A) Subsection (3B) applies if— (a) an offender was held in custody in circumstances to which subsection (1) applies (presentence custody); and (b) the sentencing court orders that the time, or part of the time, the offender was held in custody is not to be taken to be imprisonment already served under the sentence. … (3C) If an offender was held in presentence custody and the sentencing court makes a declaration under subsection (3)(c) or (3B)(c), the sentencing court must cause the chief executive (corrective services) to be advised in writing of the declaration and its details.” -- 13 of 43 -- 14 The “period of imprisonment” issue [43] At the hearing of the appeal the Court raised the following questions. First, whether the declaration made by the sentencing judge on 10 January 2012, pursuant to s 159A(3)(c) of the PSA, had the effect that the term of imprisonment imposed in respect of the 2009 offences, taken together with the term of imprisonment for the 1999 offences, constituted a “period of imprisonment that includes a term of imprisonment for a serious sexual offence” within the meaning of s 5(6) of the DPSO Act. Secondly, if that was so, was the Attorney-General’s application one which, although validly instituted, had ceased to be efficacious because the six month period stipulated under s 5(2)(c) of the DPSO Act would now be a point of time in 2023. [44] Both parties joined in seeking that this Court resolve the questions,34 and they were given leave to file supplementary submissions on the point. Each have done so. The parties’ submissions on the “period of imprisonment” point [45] The appellant submits that s 154 of the PSA has the effect that the sentence for the 2009 offences did not commence until the day of sentencing on 10 January 2012. It is said this follows from the wording of s 154(1): “Except as provided in sections 156(1), 158A and 159 and subject to an order being made under the repealed section 158, a term of imprisonment … starts on the day the court imposes imprisonment on the offender”. The contention is that s 154 makes express reference to four sections, but not s 159A and is therefore not subject to it. Further, s 159A does not deem the sentence to have been imposed at an earlier time, but merely allows time served to be calculated off the sentence in a manner described as “an artificiality”. [46] The respondent’s supplementary submissions accepted that the application was validly brought, and was not invalidated by the imposition of any subsequent sentence. They observe that the term of imprisonment for the 1999 offences expired on 19 November 2010, and because of the declaration made by the sentencing judge in 2012, the period in custody from 20 November 2010 to 10 January 2012 would, on the face of it, result in an unbroken period of imprisonment. They contend that, had the respondent been sentenced for the 2009 offences prior to 20 November 2010, with the term of imprisonment imposed cumulatively on the sentence that he was then serving, there would be no doubt that the respondent was presently “serving a period of imprisonment that includes a term of imprisonment for a serious sexual offence”. They then point to the fact that there is no apparent policy reason why the circumstances of the timing of the respondent’s sentence should result in a different outcome for the purposes of the Act. [47] However, the respondent’s submissions also make the point that s 154 is not made subject to s 159A, with the effect that the respondent’s term of imprisonment for the 2009 offences started on 10 January 2012. Ultimately the respondent did not contend that he was presently “serving a period of imprisonment that includes a term of imprisonment for a serious sexual offence”. Discussion [48] Sections 154 and 159A have been in substantially the same form since the Penalties and Sentences Act commenced in 1992. The only change to s 154 since 34 Transcript of Attorney-General for the State of Queensland v Kanaveilomani (Court of Appeal, Appeal No 4632 of 2013, 12 September 2013), at 1-43 to 1-44. -- 14 of 43 -- 15 that time was to accommodate the fact that s 158 was repealed by the Justice and Other Legislation Amendment Act 2004.35 That led to the reference to s 158 changing to refer to the “repealed s 158”, and the inclusion of subsection (2) to identify that section.36 [49] Section 159A commenced life as s 161, being renumbered as s 159A in 2006.37 Until 2005, s 161 relevantly provided as follows: “(1) If an offender is sentenced to a term of imprisonment for an offence, any time that the offender was held in custody in relation to proceedings for the offence and for no other reason must be taken to be imprisonment already served under the sentence, unless the sentencing court otherwise orders. … (3) If an offender was held in custody in circumstances to which subsection (1) applies, the sentencing court must— (a) state the dates between which the offender was held in presentence custody; and (b) calculate the time that the offender was held in presentence custody; and (c) declare the time calculated under paragraph (b) to be imprisonment already served under the sentence; and (d) cause to be noted in the records of the court— (i) the fact that the declaration was made and its details; and (ii) unless the court otherwise orders under subsection (1), the fact that the declared time was taken into account by it in imposing the sentence; and (e) cause the chief executive (corrective services) to be advised of the declaration and its details.”38 [50] In amendments taking effect in 2005 subsection (3)(d) was deleted.39 This was because of an amendment to subsection (3), adding the words “as part of the sentencing order” to the court’s obligation. In other words, subsection (3) then made it plain that the declaration had to be made as part of the sentencing order, which obviated the need for subsection (d). The second change was the relocation of the subject matter of subsection (3)(e), which became subsection (3)(c). 35 Act No. 43 of 2004, s 79. 36 Act No. 43 of 2004, s 78. 37 See Reprint 8G, effective 28 August 2006, incorporating amendments pursuant to Act No 29 of 2006, s 496. 38 Reprint No. 8C, effective 31 August 2005. 39 See Reprint No. 8D, effective 19 November 2005, incorporating amendments pursuant to Act No. 43 of 2005, s 80. -- 15 of 43 -- 16 [51] However, in all material terms s 161(1) and (3)(c) were in the same terms as they are now, as s 159A(1) and (3)(c). [52] The proper construction of s 161, and in particular the effect of a declaration under s 161(3)(c), was considered by this Court in R v Wishart and Jenkins.40 It is essential to understanding the Court’s reasons to note that, at the time, s 158 was in operation, and made provision as follows: “158(1) Imprisonment to have effect from arrest If— (a) an offender— (i) is convicted of an offence; and (ii) has been in custody in relation to proceedings for the offence and for no other reason; and (b) the court sentences the offender to imprisonment for the offence; the court may order that the term of the imprisonment is to have effect on and from the day the offender was arrested. (2) If subsection (1)(a) applies to an offender, the sentencing court must— (a) state the dates between which the offender was in custody in relation to proceedings for the offence and no other reason; and (b) calculate the time that the offender was in custody in relation to proceedings for the offence and no other reason; and (c) declare the time calculated under paragraph (b) to be imprisonment already served under the sentence; and (d) cause to be noted in the records of the court— (i) the fact that the declaration was made and its details; and (ii) unless the court otherwise orders under subsection (1), the fact that the declared time was taken into account by it in imposing sentence; and (e) cause the [chief executive (corrective services)] to be advised of the declaration and its details.”41 40 R v Wishart and Jenkins [1994] 2 Qd R 421. 41 Reprint 1, effective 23 July 1993. -- 16 of 43 -- 17 [53] Section 158 provided the court with power to declare pre-sentence custody as part of the imprisonment already served under the sentence, but also order a term of imprisonment to “have effect” from the day of arrest. On more than one occasion this Court drew attention to the difficulties created by having two such sections,42 and the need for legislative amendment to resolve the “obscurities and inconsistencies” thereby created.43 Presumably those calls were part of the reason s 158 was eventually repealed. [54] In R v Wishart and Jenkins the joint judgment of Macrossan CJ and Pincus JA had this to say: “Prior to the commencement of the Penalties and Sentences Act 1992 pre-sentence custody was ordinarily taken into account by the sentencing judge. The practice was that the sentence which would otherwise have been imposed was reduced by twice the period in custody. For example, if one year had been spent in custody in relation to the offence for which the sentence was being imposed, and the judge would ordinarily have ordered five years imprisonment, then he would impose only three years; that would ordinarily give a right to apply for parole after having served half the sentence – in the example given, 18 months. The relevant provisions of the Penalties and Sentences Act 1992 are ss 158 and 161. They commenced on 27 November 1992 and have been amended by Act No. 36 of 1993 which commenced on 23 July 1993. It is not very clear why the subject is dealt with in two separate provisions; they do not seem to mesh very well and indeed some obscurities and inconsistencies appear. Section 158(1) gives the court discretion to back-date the term of imprisonment to the day of arrest; so that, in the example given above, the court would, if it exercised that power, perhaps order that the term of imprisonment have effect from a date one year before the date of sentencing. Subject to parole, it would expire four years after the date of sentencing. Section 161(1) does not contemplate that the sentence will be expressly backdated, but has the effect that, in the circumstances to which it applies, time spent in custody is deemed to be time served under the sentence. The main differences between the two provisions – ss 158 and 161 – are two. First, under s. 158 the term of imprisonment may be begun from the date of arrest; that may occur even if the custody mentioned in subs. (1) has not been continuous since arrest. Under s. 161, on the other hand, the term of imprisonment cannot be made to begin from the date of arrest unless the offender has been continuously in custody, in the circumstances mentioned in the subsection, since arrest. The second major difference is that backdating takes effect under s. 158 only if so ordered; under s. 161, backdating is automatic unless otherwise ordered.”44 [55] Macrossan CJ and Pincus JA went on to state the proper use of s 161: 42 Namely, ss 158 and 161. 43 R v Blake [1995] 2 Qd R 167; [1994] QCA 77 at p 10. 44 R v Wishart and Jenkins (supra) at 425-426 (emphasis added). -- 17 of 43 -- 18 “We think it useful to state, in summary, the proper use of ss 158 and 161, by a court at first instance. These provisions apply only where there has been pre-sentence custody in relation to proceedings for the offence for which the sentence is imposed and for no other reason. 1. If the court’s intention is that the sentence actually pronounced is to begin to run from the date of sentencing, then the court should order that any time that the offender has been held in custody to date is not to be taken to be imprisonment already served under the sentence, or words to that effect. 2. If the intention is that the sentence actually pronounced is to begin to run at a date before sentencing, then that may be achieved under s. 158 or under s. 161. ... 5. To achieve backdating under s. 161, the following orders are necessary: (a) The dates between which the offender was held in pre-sentence custody are and (b) The period of such custody was days. (c) That period is declared to be imprisonment already served under the sentence.”45 [56] It will be evident that the court held that the effect of a declaration under s 161(3)46 was to backdate the sentence and that “the sentence actually pronounced is to begin to run at a date before sentencing”. That construction was adopted subsequently by this Court in R v Blake.47 [57] In R v Holman48 this Court again turned its attention to s 161. The joint judgment of the Court49 had the following to say in respect of the proper operation of s 161: “In the present matter, no attempt was made to implement s. 158. We agree with that course. In our view, neither s. 158 nor the former practice of reducing a head sentence by double the amount of presentence custody should ordinarily be adopted. The latter course led to the error in the present case. If s. 161 had been used, as it should have been, the sentencing judge would have had the option of imposing the head sentences of three years’ imprisonment and directing that the period of presentence custody not be taken to be imprisonment already served under the sentence, or of setting a head sentence of approximately five years nine months in respect of each of the breaking and entering and burglary counts and then taking the steps required by s. 161(3). This would have given the prisoner full 45 R v Wishart and Jenkins (supra) at pages 426-427 (emphasis and underlining added). 46 Now s 159A(3). 47 [1995] 2 Qd R 167 at 169. 48 R v Holman [1995] 2 Qd R 176 (emphasis added). 49 Constituted by Fitzgerald P, McPherson JA and Pincus JA. -- 18 of 43 -- 19 credit for the time already spent in prison, which would in turn have been taken into account in determining when the prisoner should be considered for release on parole. In R. v. Wishart and Jenkins, there were two judgments delivered, each of which expressed an opinion with respect to the implementation of s. 161. We have taken the occasion of this unanimous judgment to restate the position for the future. To achieve backdating under s. 161, the following orders are necessary: ‘(a) The dates between which the offender was held in presentence custody are and (b) The period of such custody was days. (c) That period is declared to be imprisonment already served under the sentence. (d) The registrar is to inform the Commission of the content of these orders.’”50 [58] The decision of this Court in R v Holman makes plain that a declaration under s 161(3) – now s 159A(3) – has the effect of backdating the sentence to the commencement of the pre-sentence custody taken into account. That result followed from the plain wording of the section, but the logic is also revealed in the passage cited above. It gives the prisoner full credit for the time already spent in prison, which in turn has an impact on when the prisoner should be considered for release on parole. [59] What is also plain from R v Wishart and Jenkins and R v Holman is that, as a matter of proper construction, the fact that s 159A is not referred to in s 154 has no bearing on the operation of s 159A. In my respectful opinion that approach is correct. The two sections operate on different subject matters. Section 154 deals with calculation of the term of imprisonment. So much is plain from the heading.51 In other words, for the purposes of calculating the term of imprisonment, the term starts on the day that the court imposes imprisonment. That says nothing about whether the sentence is backdated, or deemed to have commenced at an earlier time, by reason of a declaration under s 159A(3)(c). [60] By contrast s 159A commences with the title “Time held in presentence custody to be deducted”.52 One might ask, deducted from what? The answer, in my respectful opinion, is deducted from the overall term of sentence. That suggests that if time held in pre-sentence custody is deducted, the term of the sentence from which it is deducted runs from the commencement of the pre-sentence custody. [61] That also is the natural meaning of the words used in s 159A(3)(c), which refers to “imprisonment already served under the sentence”.53 A sentence is something imposed by court order. It has no existence otherwise. Custody, on the other hand, is not something created or commenced by order of a court; it follows from the 50 R v Holman (supra) at 180 (emphasis and underlining added). 51 Which forms part of the Act: s 14 of the Acts Interpretation Act 1954. 52 As before, the heading of the section forms part of the Act: see s 14, Acts Interpretation Act 1954. 53 Emphasis added. -- 19 of 43 -- 20 arrest of an alleged offender. As R v Holman held, s 161 (now s 159A) “is not in any way related to the date of arrest …”.54 If a court, as part of its sentencing process, decides to make a declaration under s 159A(3)(c), it is engaging in the form of backdating referred to in R v Wishart and Jenkins, and R v Holman. [62] In a similar context the same approach was taken in relation to the Crimes Act 1900 (ACT). In Keen v The Queen55 the Full Court of the Federal Court had to consider sentences imposed under the Crimes Act, and to the interplay between s 451(1) and s 441A of the Crimes Act. Those sections provided: “Time held in custody to count 451(1) If an offender is sentenced to a term of imprisonment in respect of an offence, any period of time during which he or she was held in custody in relation to proceedings for that offence or proceedings arising from those proceedings shall be reckoned as a period of imprisonment already served under the sentence. When sentence takes effect 441A Where a court passes a sentence, the sentence shall, subject to this Part, take effect from the date on which it is passed unless the court otherwise orders.” [63] The sections are not the same as those under the PSA, but nonetheless deal with a similar regime. The Full Court decided that s 441A must be read subject to s 451. [64] The Full Court had this to say:56 “It is not easy to reconcile the provisions of s 441A and s 451. However, being part of a penal statute they should be construed in favour of freedom and not in favour of incarceration. Such a construction would give full effect to s 451 and is consistent with the words “subject to this Part” which were inserted into s 441A by Act No. 73 of 1993, as was s 451 itself. On the face of it, s 451 appears to be an instruction to the prison authority responsible for executing the sentence of the Court as to how the sentence is to be calculated for the purpose of fixing a date for the release of the prisoner serving the sentence, rather than constraining the sentencing judge or magistrate in the sentence to be imposed.” [65] That approach was adopted in Geiger v The Queen.57 In other words, the equivalent of s 154 in the PSA was to be read subject to the equivalent of s 159A, providing that pre-sentence custody was to form part of the imprisonment already served under the sentence. [66] In my respectful opinion when a court makes a declaration under s 159A(3)(c), that has the effect that the actual period of imprisonment commences from the start of the pre-sentence custody taken into account. That sits well with the definition of “term of imprisonment”, which means “the duration of imprisonment imposed for a single offence …”. 54 R v Holman (supra) at 179-180. 55 Keen v The Queen [2000] FCA 940. 56 Keen v The Queen (supra) at [7]. 57 Geiger v The Queen [2001] FCA 475. -- 20 of 43 -- 21 [67] There is another reason why the approach adopted by the appellant should be rejected. The appellant contends that the declaration under s 159A(3)(c) merely allows time served to be calculated off the sentence and is “an artificiality”. With respect, I do not agree. It is the fact that the sentencing judge has exercised the power to make a declaration under s 159A(3)(c). That is an order of a court which should not be ignored by this Court. Courts in Australia must give full faith and credit to the regular decisions of another court.58 That is the case here. The sentencing court has declared the pre-sentence custody “to be imprisonment already served under the sentence” imposed by that court and, by that declaration, to have backdated the sentence. To adopt the approach for which the appellant contends would be to deny full faith and credit to that decision. [68] The consequence is that the sentence imposed for the 2009 offences commenced immediately following the day on which the sentence for the 1999 offences came to an end. There was thus a period of unbroken duration of imprisonment under the two terms, falling within the definition of “period of imprisonment” in s 4 of the PSA. [69] It follows that the respondent was, at the time the application was heard,59 a prisoner “detained in custody who is … serving a period of imprisonment that includes a term of imprisonment for a serious sexual offence …” within the meaning of s 5(6) of the DPSO Act. [70] On that basis the Attorney-General’s application ceased to be efficacious when the sentence in respect of the 2009 offences was pronounced on 10 January 2012. It was, on any view, validly instituted when filed, because at that point the second term of imprisonment had not been imposed. However, it ceased to be an appropriate application to pursue once the declaration was made in respect of the sentence imposed for the 2009 offences. [71] Under s 5(2)(c) of the DPSO Act the time for an application by the Attorney- General will now be “during the last six months of the prisoner’s period of imprisonment”, which ends in 2023. Conclusion on the “period of imprisonment” point [72] For the reasons set out above: (a) on 10 January 2012, when the declaration was made under s 159A(3) of the PSA, declaring that the time between 20 November 2010 and 10 January 2012 was imprisonment already served under the sentence imposed, that declaration had the effect of backdating the sentence so that it was deemed to have commenced on 20 November 2010;60 (b) the declaration by the sentencing judge is an order of a court which cannot be ignored by this Court, which must give it full faith and credit; therefore this Court must give effect to the declaration by which the sentence was backdated so it commenced on 20 November 2010; (c) as a consequence the sentence imposed for the 2009 offences commenced immediately following the day on which the sentence for the 1999 offences came to an end, and there was, thus, a period of 58 For example, s 118 of the Constitution and s 185 of the Evidence Act (Cth). 59 Indeed, at all times from 20 November 2010. 60 R v Wishart and Jenkins [1994] 2 Qd R 421; R v Blake [1995] 2 Qd R 167; R v Holman [1995] 2 Qd R 176. See also Keen v The Queen [2000] FCA 940, and Geiger v The Queen [2001] FCA 475. -- 21 of 43 -- 22 unbroken duration of imprisonment under the two terms, coming within the definition of “period of imprisonment” in s 4 of the PSA; (d) as a result, as from 10 January 2012 the time for an application by the Attorney-General under s 5(2)(c) of the DPSO Act was to be a time during the last six months of the prisoner’s period of imprisonment ending in 2023. Proceedings before the learned primary judge [73] The application before the learned primary judge was dealt with on the basis that the term of imprisonment imposed for the 2009 offences was not in respect of “serious sexual offences” within the definitions in the DPSO Act, and therefore “… an application under the DPSOA may not be able to be made six months before the full time release date in November 2023.”61 [74] Because of the perception that an application under the DPSO Act could not be made in 2023 the appellant wished to proceed with the application despite the fact that the respondent would not be living in the community in the foreseeable future. The contention was that the application had been validly brought and that a continuing detention order should be made, even though it would not have any practical effect until the end of the respondent’s sentence in 2023. [75] The learned primary judge had the benefit of psychiatric reports dealing with the respondent’s behaviour, personality and, most importantly, the risk of reoffending. It is not necessary on this appeal to review those reports in detail as no challenge was made to the conclusions they expressed, or the conclusion that might be drawn from them if the court was considering the respondent’s release on the determination of the application. [76] However, it is important to have an appreciation of the nature of the evidence in relation to the risk of reoffending, which can be summarised in the way set out below. All psychiatrists were asked to assess the likelihood of reoffending in 2023, as well as presently. [77] Dr Lawrence conducted extensive interviews with the respondent as well as undertaking a number of formal risk assessments. Her opinion was that the respondent “is a very high risk of re-offending sexually, if released currently or in the near future”.62 She noted that the respondent displayed a lack of compliance with supervisory conditions, virtually from the outset of his parole, and totally disregarded many of the conditions. There was a deliberateness of his behaviour in the 2009 offences and she was concerned by the violence of the attack on the woman involved, with its concentration on her face and neck, and also with the coolness of his response even when disturbed in the act. In her view the violence was a prelude to a sexual attack and the behaviour indicated a high degree of callousness, recklessness and ruthlessness. [78] Dr Lawrence also noted the respondent’s long term conning and manipulation of his mentor, “both leading up to parole and subsequently” and referred to evidence of deliberate acts suggestive of a plan to escape imprisonment.63 61 Attorney-General for the State of Queensland v Kanaveilomani [2013] QSC 86 at [11]. 62 AR 331. 63 AR 332. -- 22 of 43 -- 23 [79] In response to a question about whether she thought the respondent’s present risk would alter over the next decade, she said that even though offences might be more frequent in early life rather than in middle or late life: “… the underlying personality characteristics of the individual don’t change. So it just sort of goes underground or is, perhaps, less evident in terms of criminal activity. But the other thing I think that should be borne in mind with this man is that I think I estimated that he would only be about 43 or something about that age if he were to serve the current sentence and be released, 43 is not very old in these days and certainly couldn’t affect his, his sexual drive.”64 [80] A number of statements were made by Dr Lawrence which pointed to the fact that events over the next decade might have an impact on the way in which the respondent could be judged to behave in 2023. They included matters such as possible injury to his head, or potential benefit from high intensity sexual offender programs. However, her view was that the risk in 2023 was only going to be marginally less, but should be assessed closer to the time of release. Notwithstanding that, her conclusion was that the respondent was “a very high risk of re-offending sexually and … the risk is likely to continue.”65 She considered that it was far more probable than not that the risk would remain high at the time of the respondent’s future eligibility for release. [81] Dr Beech applied various statistical tests concluding that the respondent’s scores in those tests were such as to indicate a high risk for sexual reoffending. Whilst the respondent displayed antisocial personality and significant psychopathic traits, Dr Beech was not satisfied that there was a sufficient basis for a diagnosis of sexual sadism at the present time. [82] He reviewed the range of possible treatment options such as high intensity sexual offender programs and high intensity violent offender programs. He also considered that there might be some benefit in intensive cognitive therapy. [83] Ultimately Dr Beech considered it would be difficult to make predictions over the next 13 years taking the respondent’s age at release into account. Whilst he considered people would change, he nonetheless considered that the respondent would be a risk of further sexual offending on release. [84] As to the way in which the respondent might change over the next 10 years, Dr Beech said that it could not be accurately predicted. Nonetheless, the respondent was, in his view, someone who was at a high risk of sexual reoffending. Ultimately he considered that an assessment of risk on release would need to be done closer to the release date. His conclusion was that “what’s known is that on an actuarial basis, in 10 years’ time, he would still be within the group viewed as being at high risk of re-offending”.66 In terms of the respondent’s current risk he considered the respondent was currently a high risk of reoffending sexually if released from custody, and that the likely offence would be a violent rape. [85] Dr Nurcombe diagnosed the respondent as suffering from paraphilia, sexual sadism, possible voyeurism, antisocial personality disorder and psychopathic personality disorder. He said that in the interviews with the respondent he had been “conned”, 64 AR 542. 65 AR 333. 66 AR 547. -- 23 of 43 -- 24 which led to his revision of the respondent’s scores under various tests. The revisions of the scores led him to a more severe view of the respondent’s personality disorders and risk of reoffending. [86] Dr Nurcombe was of the view that it was essential that the respondent undergo high intensity sex offender treatment programs and that those who treat him need to be sceptical about claimed improvements. Even if such resources were applied, Dr Nurcombe said he would still be sceptical about its effectiveness. He considered that the risk was that the respondent, on release, would reoffend by way of breaking in and being sexually sadistic to a woman. [87] Dr Nurcombe was guarded in his view about the likelihood of improvement over the next decade, particularly in terms of the respondent’s possible maturity. Ultimately he considered “it would be most unfair to make an assessment of risk factors that ignored what might occur over the next 13 years”. Notwithstanding that, Dr Nurcombe was of the view that the respondent’s psychopathic personality meant that the risk of sexual violence soon after release was very high. In terms of the respondent’s current risk, he said the respondent “remains a very high risk of enacting violent sexual fantasies if released”.67 [88] That review is sufficient to demonstrate that there was a solid foundation for the learned primary judge’s assessment as to whether the respondent was currently a serious danger to the community. It was expressed in these terms: “The unanimous view of all of the reporting psychiatrists is that the Respondent is currently a serious danger to the community. I am satisfied that such a finding can currently be made by acceptable, cogent evidence having had regard to all of the factors the Court must have regard to pursuant to s 13(4) of the DPSOA. Clearly the evidence of all the psychiatrists as set out in these reasons does not allow for any other conclusion. I consider that there is ample evidence to support such a finding to a high degree of probability at this point in time.”68 [89] The learned primary judge then turned her attention to whether an order should be made pursuant to s 13(5) of the DPSO Act. In that regard the contentions for the parties highlighted the dilemma created for the learned primary judge by the failure to recognise that, by the time of the hearing of the application, the imposition of the term of imprisonment for the 2009 offences meant that the “period of imprisonment” relevant for the purposes of the DPSO Act was then one ending in 2023. [90] The Attorney-General contended that the risk of reoffending was so high, and there was so little likelihood of a change over the next decade that an order should be made notwithstanding that it would have no current utility because the respondent would remain imprisoned until 2023. The respondent’s contention was that no order should be made because even if the respondent currently constituted a serious danger to the community, he was not about to be released because he was serving a further term of imprisonment. Thus he did not actually present any risk, and an order under Division 3 of the DPSO Act would have no utility. [91] The learned primary judge referred to 11 issues that were raised as a result of the evidence of the psychiatrists.69 They included: 67 AR 551. 68 [2013] QSC 86 at [64]. 69 [2013] QSC 86 at [70]. -- 24 of 43 -- 25 (a) the benefits that might result from offender programs, psychotherapy and cognitive therapy; (b) that there might be a decline in the appellant’s sexual desire around the age of 45; (c) the current lengthy prison term may act as a personal deterrent; (d) there may be advances in the development of courses for sex offenders; there might also be advances in the medications used to treat sex offenders over the next decade; (e) there may be improvement in the use and predictability of actuarial assessments over the next decade; none of the actuarial tools used to predict risk were designed to assess a person’s risk 10 years hence after a period of imprisonment; (f) the risk of reoffending may reduce in the event of adverse health matters; and (g) none of the psychiatrists was prepared to rule out the “possibility” of the risk changing, even though they were sceptical. [92] The learned primary judge’s conclusion was then expressed in these terms: “[71] Accordingly, given the presence of those factors, I cannot be satisfied by cogent evidence to a high degree of probability that the evidence is of sufficient weight to justify a decision that the Respondent will be a serious danger to the community in 2023. That may well be the position in 2023 but there are currently too many variables to be satisfied of that question to a high degree of probability. [72] Significantly, even if I was satisfied that the Respondent would be a serious danger to the community in 2023 in the absence of a Division 3 Order, given the uncertainty in relation to those factors it would be impossible to determine whether the final order should be a continuing detention order pursuant to subsection (5)(a) of s 13 of the DPSOA or a supervision order pursuant to subsection (5)(b). Indeed, the factors I have identified in paragraph [70] may well determine the questions posed in s 13(6)(b) of the DPSOA as to whether the adequate protection of the community “can be reasonably and practicably managed by a supervision order” and whether the requirements under s 16 “can be reasonably and practicably managed by corrective services officers”. [73] In my view, whilst the Applicant has satisfied the requirements of s 13(1) of the DPSOA, the Applicant has not satisfied me that an order should be made pursuant to s 13(5) of the DPSOA given both the lack of certainty about the nature and management of the risk and the lack of utility in the order. I consider that this is indeed the type of case foreshadowed by Chesterman JA in A-G (Qld) v Lawrence -- 25 of 43 -- 26 where his Honour indicated that “it is to be expected that it will be rare indeed for a court to make no order where the finding is made”.70 In the present case, despite a finding that the Respondent is a serious danger to the community, I am not satisfied that the Applicant has discharged the onus referred to in s 13(7) of the DPSOA that one or other of the orders specified in s 13(5) should be made.” Contentions on appeal [93] The appellant’s contentions were that the learned primary judge erred in dismissing the application because the matter was looked at in terms of whether the respondent would be a serious danger to the community in 2023. Whilst it was accepted that the discretion under s 13(5) of the DPSO Act included the ability to make no order, it was contended that where the court could not be certain whether the prisoner would impose a risk at the date of likely release, the only exercise of discretion reasonably open was to make a continuing detention order. It was contended that under s 13(2) of the Act the test is a hypothetical one concerned with whether the prisoner is released at the time of the determination of the application, and not at the end of the period of imprisonment (in this case 2023). It was pointed out that the respondent would not necessarily be in custody until 2023, and reference was made to the possibility of an appeal out of time. The contentions pointed to the fact that whilst a finding was made under s 13(1) of the DPSO Act,71 the learned primary judge wrongly treated the factors leading to the conclusion (as to whether she could be satisfied that the respondent would be a serious danger to the community in 2023) as though they were governed by s 13(3). [94] The respondent’s contentions were that the learned primary judge erred in finding that the court could be satisfied under s 13(1) of the DPSO Act that the respondent was a serious danger to the community, given that the respondent would not be released from custody until 2023. The contention was that s 13(1) required the court to be satisfied that a prisoner would be a serious danger to the community “at the time he would in fact be released from custody”,72 namely 2023. [95] The appellant rejected the respondent’s approach to s 13, contending that the assessment had to be made at the date of the application and not when the prisoner would in fact be released from custody. It was said that the proper construction of s 13, by use of the present tense, is that the court must assess the matters required under s 13(2) on the hypothetical basis that the prisoner is released at the time of hearing or determination of the application. [96] The resolution of these matters involves careful consideration of the wording of the Act and its objects, and the principles applicable to the construction of such an Act. Statutory framework and relevant principles of construction [97] Section 3 of the DPSO Act defines the objects in the following terms: “3 Objects of this Act The objects of this Act are – 70 [2009] QCA 136 at [29]. 71 [2013] QSC 86 at [63]-[64]. 72 Respondent’s Outline of Submissions, filed 18 July 2013, at para 3. -- 26 of 43 -- 27 (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.” [98] Under s 5 the Attorney-General may apply for an order “in relation to a prisoner”. The term “prisoner” is defined in s 5(6) in this way: “(6) In this section – 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.” [99] Under s 5(2)(c) the application “must … be made during the last 6 months of the prisoner’s period of imprisonment”. On the filing of an application the registrar must record a return date for the matter to come before the court, and that return date “must be within 28 business days after the filing”: s 5(4). [100] The preliminary hearing under s 8 of the Act may be held only 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”: s 8(1). If the court is so satisfied it can order that a prisoner undergo psychiatric examination: s 8(2). Further, if the court is satisfied that the application might not be finally decided until after the prisoner’s release day, it can order further detention in custody or supervised release: s 8(2)(b). [101] Under s 8 of the Act, 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: s 8(1). If a hearing date is set there are provisions for production of reports about the prisoner,73 risk assessment orders authorising the examination of the prisoner by two psychiatrists,74 and notification to victims so that they might make a submission.75 [102] An application can be adjourned on the court’s own initiative or on application by one of the parties: s 9A. If there is an adjournment the court has power to make orders for release under supervision, or further detention: s 9A(2). [103] Section 13 of the Act makes provision in respect of the final orders on such an application. Its full terms are 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 73 DPSO Act, s 8A. 74 DPSO Act, ss 8(2), 9 and 11. 75 DPSO Act, s 9A. -- 27 of 43 -- 28 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. (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. (4) In deciding whether a prisoner is a serious danger to the community as mentioned in subsection (1), the court must have regard to the following – (aa) any report produced under section 8A; (a) the reports prepared by the psychiatrists under section 11 and the extent to which the prisoner cooperated in the examinations by the psychiatrists; (b) any other medical, psychiatric, psychological or other assessment relating to the prisoner; (c) information indicating whether or not there is a propensity on the part of the prisoner to commit serious sexual offences in the future; (d) whether or not there is any pattern of offending behaviour on the part of the prisoner; (e) efforts by the prisoner to address the cause or causes of the prisoner’s offending behaviour, including whether the prisoner participated in rehabilitation programs; (f) whether or not the prisoner’s participation in rehabilitation programs has had a positive effect on the prisoner; (g) the prisoner’s antecedent and criminal history; -- 28 of 43 -- 29 (h) the risk that the prisoner will commit another serious sexual offence if released into the community; (i) the need to protect members of the community from that risk; (j) any other relevant matter. (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).” [104] Under s 14(1) of the Act a continuing detention order “has effect in accordance with its terms … on the order being made or at the end of the prisoner’s period of imprisonment, whichever is the later”. [105] Part 3 of the Act provides for annual reviews of a prisoner the subject of continued detention. Section 27(1) requires that a continuing detention order be reviewed “at the intervals provided for under this section”. Then the section provides: “(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. (1B) There must be subsequent annual reviews while the order continues to have effect.” [106] Under s 28 of the Act a prisoner can apply for a review of a continuing detention order “at any time after the court makes its first review under section 27(1) if the court gives leave to apply on the ground that there are exceptional circumstances that relate to the prisoner”. -- 29 of 43 -- 30 [107] In construing statutes which abrogate or curtail fundamental rights or freedoms certain principles are established. In Tilbrook v Attorney-General for the State of Queensland76 this Court referred to the decision in Lacey v Attorney-General (Qld)77 where the High Court said: “The effect of the common law on the interpretation of criminal statutes was stated by Deane J in terms later quoted by the plurality in Byrnes v The Queen: ‘As a matter of established principle, a general statutory provision should not ordinarily be construed as conferring or extending such a prosecution right of appeal against sentence unless a specific intention to that effect is manifested by very clear language.’ Indeed, as Deane J explained, the requirement of ‘clear language’ in this context did not depend critically upon the rule against double jeopardy, for even assuming that rule to be limited to the determination of guilt or innocence and not extending to the quantification of punishment ‘that established principle of construction extends to require clear and unambiguous words before a statute will be construed as effecting, to the detriment of the subject, any fundamental alteration to the common law principles governing the administration of justice.’”78 [108] As was said in Tilbrook, it cannot be doubted that the operation of the DPSO Act has the potential to operate to the detriment of a prisoner and affects fundamental alterations to the common law principles governing the administration of justice. [109] In Project Blue Sky Inc v Australian Broadcasting Authority79 the relevant canon of statutory construction was identified in these terms: “… the presumption that, in the absence of unmistakable and unambiguous language, the legislature has not intended to interfere with basic rights, freedoms or immunities.” [110] There can be little doubt that the DPSO Act reflects the intention of the legislature to interfere with basic rights and freedoms. However, as Lacey and Project Blue Sky show, the proper construction of such a statute militates against giving the legislation an operation which impinges on prisoner’s rights and freedoms to any greater extent than the language of the Act requires. Assessment of unacceptable risk “if released” or “when released”? [111] An application can only be made for a Division 3 order80 in relation to a prisoner as defined in s 5(6) of the DPSO Act. That means a prisoner who is: 76 Tilbrook v Attorney-General for the State of Queensland [2012] QCA 279. 77 Lacey v Attorney-General (Qld) (2011) 242 CLR 573 at 582-583. 78 Tilbrook v Attorney-General for the State of Queensland (supra) at [17] (internal references omitted). See also: Al-Kateb v Godwin (2004) 219 CLR 562 at 577; Dodge v A-G (Qld) [2012] QCA 280 at [22]; Plaintiff S157/2002 v the Commonwealth (2003) 211 CLR 476 at 492; A-G (Qld) v Phineasa [2012] QCA 184 at [40]-[41]. 79 Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 at 384 [78] referring to Coco v The Queen (1994) 179 CLR 427 at 437. 80 That is, a continuing detention order or a supervision order under s 13(5). -- 30 of 43 -- 31 (a) detained in custody; (b) serving a period of imprisonment for a serious sexual offence; or (c) serving a period of imprisonment that includes a term of imprisonment for a serious sexual offence; and (d) whether the prisoner was sentenced to the term or period of imprisonment before or after the commencement of s 5. [112] The definitions in the schedule to the DPSO Act define “period of imprisonment” as being that under the PSA, s 4. That definition is: “period of imprisonment means the unbroken duration of imprisonment that an offender is to serve for 2 or more terms of imprisonment, whether – (a) ordered to be served concurrently or cumulatively; or (b) imposed at the same time or different times; and includes a term of imprisonment”. [113] Therefore, where the unbroken duration of imprisonment that a prisoner is to serve is for a serious sexual offence, or includes a term of imprisonment for a serious sexual offence, an application under s 5 must be made “during the last 6 months of the prisoner’s period of imprisonment”: s 5(2)(c). In other words, the Act provides that the application can only be made during the last six months of the unbroken duration of imprisonment which is for, or includes imprisonment for, a serious sexual offence. [114] Once filed the Act requires that the application come before the court very quickly. The preliminary hearing must be within 28 business days after filing81 and if on that occasion the court is satisfied that 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.82 [115] Thereafter the progress of the application is subject to management by the court. That may require the hearing date to be adjourned. Where such an adjournment will take the final hearing beyond a prisoner’s release day,83 s 9A gives the court power to make interim orders for supervised release or continued detention until the hearing. [116] In a matter that affects the liberty of the prisoner as dramatically as the DPSO Act does, “rigorous adherence to legislative time requirements is essential”.84 Thus the Act contemplates that an application will be brought towards the end of the period of imprisonment, and dealt with in as expeditiously as is possible, balancing the competing interests revealed by the objects of the Act (including adequate protection of the community) and the rights of the prisoner. The benefits of having the application 81 DPSO Act, s 5(4). 82 DPSO Act, s 8(1). 83 The prisoner’s “release day … means the day on which the prisoner is due to be unconditionally released from lawful custody under the Corrective Services Act 2006”: DPSO Act, Schedule, Dictionary. 84 Attorney-General (Qld) v Francis [2006] QCA 324 at [44] fn 32. -- 31 of 43 -- 32 heard in such a way were referred to by Williams JA in Yeo v Attorney-General for the State of Queensland85 in these terms: “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 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.” [117] With respect I agree with those observations. [118] In that context s 13 falls for consideration. The section only applies if the court is satisfied that the prisoner “is a serious danger to the community in the absence of a division 3 order”: s 13(1). Section 13(2) then provides a definition for when a prisoner is “a serious danger to the community”. That is the case where there is an unacceptable risk that the prisoner will commit a serious sexual offence “… if the prisoner is released from custody”. In subsection (1) the present tense is used, and in subsection (2) the wording says “if” the prisoner is released, not “when” the prisoner is released. [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 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 subsection (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 subsection (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. 85 Yeo v Attorney-General for the State of Queensland [2007] QCA 32 at [9]. -- 32 of 43 -- 33 [121] Support for this approach can be seen in the judgment of Gummow J86 in Fardon v Attorney-General for the State of Queensland.87 His Honour had the following to say in relation to s 30(1) of the DPSO Act which deals with review hearings of a continuing detention order: “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. 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.”88 Relevance of subsequent custody to s 13(1)? [122] Under s 5(1) of the Act an application for a Division 3 order can only be made in relation to a prisoner as defined under s 5(6). [123] Section 9A provides a mechanism whereby the prisoner can be detained in custody if the final hearing may occur “after the prisoner’s release day”. Since an application has to be made within the last six months of the prisoner’s period of imprisonment,89 and brought on with some speed90 it seems clear that the reference to the prisoner’s release day in s 9A(2) is to the release day in respect of the custody under the period of imprisonment referred to in s 5(6). [124] Section 13(2) defines when a prisoner is a serious danger to the community for the purposes of s 13(1). That is so if there is an unacceptable risk that the prisoner will commit a serious sexual offence if the prisoner is released from custody, or released from custody without a supervision order being made. In my opinion the reference to being “released from custody” refers to the custody resulting from the period of imprisonment referred to in s 5(6) of the Act, as extended by any interim custody the product of an order under s 9A(2)(b), that is to say the period of imprisonment which relates to the serious sexual offence, or that which includes a term of imprisonment for a serious sexual offence, as extended by any detention order (pending the hearing of the application) under s 9A(2)(b). A term of imprisonment for another offence which does not form part of the “period of imprisonment” for the purposes of s 5(6) of the Act does not result in custody for the purposes of s 13(2). [125] Were it otherwise, as the respondent contends, the court would be required to assess the question of risk at an indeterminate point in the future. Whilst the respondent argues that it would be at the end of the subsequent term of imprisonment, that does not necessarily follow. A subsequent term that did not form part of the “period of imprisonment” for the purposes of s 5(6) would be the subject of possible remissions, parole, a successful appeal out of time or even (perhaps more remotely) a pardon. 86 Hayne J concurring. 87 Fardon v Attorney-General (Qld) [2004] HCA 46. 88 Fardon v Attorney-General for the State of Queensland [2004] HCA 46 at [112] (emphasis added). 89 DPSO Act, s 5(2)(c). 90 DPSO Act, ss 5(4) and 8(1). -- 33 of 43 -- 34 At the point in time at which the court is making its assessment under s 13 how could the court possibly know when that eventual release from custody might occur? [126] An example will suffice to illustrate the problem with adopting that approach, and why it runs contrary to the objects of the DPSO Act (in particular that relating to ensuring adequate protection of the community) and the proper construction of s 13(1) and (2) as set out above. [127] Consider a prisoner serving a period of imprisonment which qualifies for the purposes of s 5(6) of the Act. An application is regularly brought for a continuing detention order. Because the application may be finally determined after the release day under that period of imprisonment, orders are made under s 9A for further detention in custody. The release day passes but the prisoner is still in custody under those orders. The prisoner commits another offence whilst in custody and as a consequence is sentenced to a term of imprisonment for a substantial period of years. The subsequent offences are not serious sexual offences. There is no declaration under s 159A of the PSA, backdating the sentence to a point earlier than the commission of the offences. [128] Under that scenario the second term of imprisonment could not be part of the “period of imprisonment” for the purposes of s 5(6) of the Act. On the respondent’s approach the court would nonetheless have to make its assessment of risk under s 13(2) by reference to the eventual release date under the second term of imprisonment. However, the eventual release date from custody under that term of imprisonment may not be a set time. That time may vary according to parole, possible appeals or even a pardon. How can the court dealing with the application predict when that release date might be? In my opinion, the indeterminate nature runs entirely contrary to the scheme of the DPSO Act, and the canons applicable to the construction of such a statute, which require interference with the rights and liberties of a prisoner to no more than the necessary extent, and timely determination of an application for a Division 3 order. [129] The scenario postulated becomes even more difficult to sustain if one follows the course which is advanced by the respondent in this particular case. The contention was that because the learned primary judge had to look to the eventual release date under the subsequent term of imprisonment91 the court could not come to a conclusion that there was a relevant risk at that eventual release date, even though if that question was assessed at the date of the determination of the application the conclusion would be that there was an unacceptable risk. Under that scenario the application would be dismissed. Subsequent to the dismissal the prisoner brings a successful appeal in respect of the subsequent term of imprisonment (obtaining an extension of time to do so). Thus the reason why the court could not conclude that there was a risk has disappeared and a prisoner who would have been assessed as an unacceptable risk but for that fact, is released into the community. [130] What is a court to do when confronted with that situation? Should it simply adjourn the application to see what might unfold in respect of the second sentence of imprisonment? The answer is clearly, no. 91 Here, the term of imprisonment imposed for the 2009 offences. -- 34 of 43 -- 35 [131] The foregoing is sufficient to demonstrate why the respondent’s contention does not sit with a sensible construction of s 13(2), nor with the objects of the Act. [132] Therefore, in my opinion, when s 13(2)(a) refers to a risk being assessed “if the prisoner is released from custody”, that is a reference to the custody which is a product of the period of imprisonment referred to in s 5(6), as extended by any interim custody the product of an order under s 9A. [133] That construction conforms with the evident purpose behind requiring that any application for a Division 3 order be made during the last six months of the prisoner’s period of imprisonment, brought on within 28 business days after filing, and given a timely hearing. It means that the court will be making its assessment under s 13 at a time proximate to the possible release of the prisoner, and not in relation to some indeterminate period or point in the future. That level of certainty is consistent with the balancing that must be made between what the legislation requires, the protection of the community, and the rights of the prisoner. [134] None of the foregoing means that the subsequent term of imprisonment would not be a relevant factor for the court to take into account in exercising its discretion under s 13(5) of the Act. But that is a different question from the one postulated under s 13(1) and (2). Error in the approach of the learned primary judge? [135] The learned primary judge correctly held that the application had been validly made pursuant to s 5(2)(c) of the DPSO Act. The respondent concedes so much. [136] The learned primary judge then went on to consider whether she could be satisfied to a high degree of probability “that the Respondent is currently a serious danger to the community if released from custody without an order being made under Division 3”.92 When that question was addressed at paragraph [64] the learned primary judge referred to the psychiatrist’s unanimous view that “the respondent is currently a serious danger to the community”.93 She then expressed her satisfaction that the finding could be made by acceptable cogent evidence, and referred to the factors to which she had regard in s 13(4) of the Act. [137] Paragraph [64] concluded with the sentence: “I consider that there is ample evidence to support such a finding to a high degree of probability at this point in time”.94 [138] In my opinion it is evident from the words highlighted in the passages referred to above that the learned primary judge was approaching the application of s 13(1) on the basis that it required an assessment of whether the risk was unacceptable if the prisoner was released at the time that the application was determined. In my respectful opinion, for the reasons outlined above, no error can be demonstrated in that approach. [139] The learned primary judge then turned to the question of whether an order should be made under s 13(5) of the Act and that was identified as being whether the applicant had satisfied the onus that “a continuing detention order is currently required”.95 That the 92 [2013] QSC 86 at [64] (emphasis added). 93 Emphasis added. 94 Emphasis added. 95 [2013] QSC 86 at [67]. -- 35 of 43 -- 36 learned primary judge was still focussing on the question of risk at the time that the respondent might be released upon determination of the application is apparent from the words quoted above from paragraph [67], and also paragraph [68] where her Honour said: “As Counsel for the Respondent has argued, the real issue is whether any order under s 113(5)96 of the DPSOA should in fact be made. Whilst I accept that the Respondent is currently “a serious danger to the community in the absence of a division 3 order” he is not about to be released because he is serving a further period of imprisonment and is incarcerated. When one examines the requirements of s 13(5) there is no doubt that the focus of the subsection is on determining how the risk that the prisoner currently poses can be managed to ensure the adequate protection of the community. The underlying assumption is clearly that if a Division 3 Order is not made there will be a risk that the prisoner will commit another serious sexual offence. In the present case the Respondent does not present such a risk as he is incarcerated. A Division 3 Order will make no difference in managing the current risk that the Respondent poses to the community. A Division 3 Order will in fact have no current utility. If a Division 3 Order is not made the risk to the community will be no greater. There is no need for a continuing detention order or a supervision order under the DPSOA as the Respondent is serving a period of imprisonment imposed by the District Court. Any current risk to the community is in reality being managed by corrective services officers in his current custodial setting.” [140] In my respectful opinion, the learned primary judge did not lose sight of the fact (at that point) that the risk to be considered was the risk to the community at the time the application was determined. The repeated use of the words “currently”, “the current risk” and “no current utility” make that clear. Furthermore, it is evident that the learned primary judge was weighing, as a discretionary factor, the fact that the respondent was serving “a further period of imprisonment and is incarcerated”. In other words, her Honour was proceeding on the basis that the discretionary factor was a period of imprisonment other than that which caused the respondent to qualify under s 5(6) of the Act. [141] As I have said above, where the court is faced with the circumstances as her Honour took them to be, namely that the prisoner under s 5(6) of the DPSO Act was or would be serving a period of imprisonment other than that which caused the prisoner to come within the definition in s 5(6) of the Act, that fact is a matter properly to be taken into account as a matter affecting the discretion to be exercised under s 13(5) of the Act. On that assumption there is no error in her Honour’s approach.97 [142] What then followed is evident from paragraph [69] of the reasons: “Despite the fact that the Division 3 Order will have no current utility, the Applicant argues that the order should still be made given the risk is 96 This is clearly a typographical error and should refer to s 13(5). 97 The only error at that point occurred because the case was not approached by the parties on the basis that the sentence for the 2009 offences causes the respondent’s relevant period of imprisonment to end in 2023, and not at the end of his first term of imprisonment. -- 36 of 43 -- 37 so high and there is no real likelihood that circumstances will change in the next decade.” In other words, it seems the learned primary judge was urged to exercise the discretion under s 13(5) of the Act on the basis that there was no real likelihood that the current risk would change over the next 10 years. It was to that issue that her Honour then turned in paragraphs [70] to [71]. Having referred to the various factors that might impact upon the respondent, in terms of programs, therapy and physical and mental change, the learned primary judge expressed the conclusion in paragraph [71] that: “… given the presence of those factors, I cannot be satisfied by cogent evidence to a high degree of probability that the evidence is of sufficient weight to justify a decision that the Respondent will be a serious danger to the community in 2023.” [143] That finding seems to have been in direct response to an invitation by the applicant to make an order under s 13(5) of the Act because “there is no real likelihood that circumstances will change in the next decade”.98 The contention was that the court should treat the evidence on the basis that in 2023 there would still be an unacceptable risk that the respondent will commit a serious sexual offence if then released. In my respectful opinion, for the reasons given above it was an error to do so. The court must assess the risk relevant to s 13(1), under s 13(4), at the time of determination of the application, not at a point many years hence. The uncertainties involved in such an exercise, some of which are identified by the learned primary judge, run counter to the level of satisfaction that a court must reach under s 13(3) and (4). [144] In paragraph [73] the learned primary judge returned to the correct question, namely whether, being satisfied that the requirements of s 13(1) of the Act had been met, the appellant had satisfied the court that an order should be made under s 13(5) of the Act. Once again reference was made to the lack of certainty about the nature and management of the risk and the lack of utility in the order. That was a clear reference to the fact that the respondent would still be incarcerated under the further term of imprisonment. [145] The final sentence of paragraph [73] is in these terms: “In the present case, despite a finding that the Respondent is a serious danger to the community, I am not satisfied that the Applicant has discharged the onus referred to in s 13(7) of the DPSOA that one or other of the orders specified in s 13(5) should be made.” [146] The learned primary judge’s reliance on s 13(7) was clearly an error, given that s 13(7) specifies the onus relevant to s 13(1)99 and not to s 13(5). [147] However, that error and the error invited by the appellant (see paragraph [142] above), do not, in my respectful opinion, require this Court to exercise the discretion for itself. That is because of the matters referred to in paragraphs [48] to [72] above, namely that the effect of the sentence imposed for the 2009 offences means that the 98 [2013] QSC 86 at [69]. 99 Attorney-General for the State of Queensland v Sutherland [2006] QSC 268 at [27]. -- 37 of 43 -- 38 appropriate time for an application to be made under s 5(6) of the Act is in the last six months of the overall period of imprisonment, namely in 2023. Disposition of the appeal [148] In the event that the Court held that the appeal should be dismissed on the ground that the relevant “period of imprisonment” included the term imposed on 10 January 2012 (for the 2009 offences), the appellant sought a declaration in the following terms: “It is declared that while the respondent is serving part of the term of imprisonment imposed on 10 January 2012, he is serving a period of imprisonment that includes a term of imprisonment for a serious sexual offence.” [149] I do not consider that such a declaration should be made. This was an appeal against the decision of the learned primary judge, dismissing the application under s 5(1) of the DPSO Act. Declaratory relief is not one of the usual forms of relief applicable to such an appeal since it is not part of the orders that are available on the application itself. Declaratory relief was not sought on the application before the primary judge, nor as part of the appeal itself, but only as a response to the Court’s raising the question as to the correct period of imprisonment. The grant of declaratory relief was not endorsed by the respondent. In the circumstances it would be inappropriate to grant such relief. Orders [150] I would dismiss the appeal. PHILIPPIDES J: Background [151] The Attorney-General for the State of Queensland appeals against the dismissal of an application made pursuant to the Dangerous Prisoners (Sexual Offenders) Act 2003 (DPSOA) for a s 13 order in respect of the respondent. [152] The application was filed on 22 June 2010, during the last six months of the respondent’s period of imprisonment for offences, which included two rapes for which he was sentenced in 1999. By the time of the hearing of the application on 5 November 2012, the respondent had served the 1999 sentences (the full time release date being 19 November 2010) and was serving 13 years imprisonment for offences committed in 2009 (after he was released on parole on 14 November 2008100). The respondent was sentenced for the 2009 offences on 10 January 2012 and declarations were made pursuant to s 159A(3)(c) of the Penalties and Sentences Act 1992 (Qld) (PSA) in respect of time spent in presentence custody of 417 days from 20 November 2010 to 10 January 2012 (covering the period from the expiry of the 1999 sentences). The respondent’s full time release date is 20 November 2023. [153] The trial judge held the application pursuant to s 5(2)(c) of the DPSOA was validly made as the respondent “was a prisoner” as defined by s 5(6) of the DPSOA.101 Her Honour also held that the requirements of s 13(1) DPSOA were met and found that the respondent “is currently a serious danger to the community if released from 100 He was arrested on 28 January 2009 on charges for the 2009 offences whereupon his parole was suspended indefinitely and he was returned to custody. 101 [2013] QSC 86, [61]. -- 38 of 43 -- 39 custody without an order being made under Division 3 of the DPSOA.”102 However, her Honour determined that the appellant had not “discharged the onus referred to in s 13(7) of the DPSOA that one or other of the orders specified in s 13(5) should be made”.103 Her Honour was not satisfied that an order should be made in the exercise of her discretion under s 13(5) DPSOA “given both the lack of certainty about the nature and management of the risk” presented by the respondent “and the lack of utility in the order”.104 Those comments were made in the context of issues raised on the evidence as to risk bearing in mind the respondent’s 13 year term of imprisonment and full time discharge date being in 2023.105 [154] The issues raised for determination are threefold and can be broadly stated as follows. Firstly, whether, upon the declarations made as part of the 2012 sentences imposed for the 2009 offences, the respondent was serving a period of imprisonment as defined in s 5(6) DPSOA, and if so, whether the application, although validly instituted, ceased to be efficacious, since an application may be brought after 20 May 2023. Secondly, whether the primary judge erred in being satisfied that s 13(1) DPSOA applied; in particular in failing to consider that question as at the time of the respondent’s full term discharge date in 2023. Thirdly, whether the primary judge erred in failing to exercise her discretion to make the order sought by the appellant pursuant to s 13(5) DPSOA and in respect of the onus on the appellant. Whether the respondent was serving “a period of imprisonment” as defined in s 5(6) DPSOA [155] An application for a Division 3 order can only be made in relation to a “prisoner” as that term is defined in s 5(6) DPSOA. A prisoner is there defined as meaning a prisoner detained in custody who is serving a period of imprisonment for a serious sexual offence, or that includes a term of imprisonment for a serious sexual offence. The meaning of the expressions “period of imprisonment” and “term of imprisonment” is as defined in s 4 of the PSA. Relevantly, a period of imprisonment means “the unbroken duration of imprisonment that an offender is to serve for 2 or more terms of imprisonment” whether imposed at the same or different times or concurrently or cumulatively. [156] The primary judge rightly determined that the application was validly made, since at the time the application was made he was “a prisoner detained in custody serving a period of imprisonment for a serious sexual offence”106 (the two rape offences). As for the 2009 offences, the approach taken was that they were arguably not “serious sexual offences” as defined in the DPSOA, so no application could be brought six months before the full time release date in November 2023.107 The hearing thus proceeded on the basis that the respondent was “not currently serving a period of imprisonment for a serious sexual offence.”108 No question was raised as to whether the respondent was, however, serving a period of imprisonment that included “a term of imprisonment for a serious sexual offence” such that at the time of the hearing he was indeed serving a “period of imprisonment” as defined by s 5(6) of the DPSOA that expired in 2023. 102 [2013] QSC 86, [63]-[64]. 103 [2013] QSC 86, [73]. 104 [2013] QSC 86, [73]. 105 [2013] QSC 86, [70], [72]. 106 [2013] QSC 86, [61]. 107 [2013] QSC 86, [11]. 108 [2013] QSC 86, [53]. -- 39 of 43 -- 40 [157] At the hearing of the appeal that question was raised by the Court. Central to that question is the effect of the declarations made under s 159A of the PSA as part of the 2012 sentences. In relation to the declarations made, it should be noted that, although their correctness was questioned,109 no appeal has been brought in respect of the sentencing orders and their validity must be accepted for present purposes. [158] The appellant’s position was that the 1999 and 2012 sentences did not together represent a “period of imprisonment” because there was a break between the 1999 sentences, which expired on 19 November 2010, and the sentences imposed on 10 January 2012. There was not, therefore, in respect of those terms of imprisonment taken together an “unbroken duration of imprisonment”. As for the s 159(3)(c) declarations the appellant argued that “s 159A does not deem the sentence to have been imposed at an earlier time”, but “assumes the sentence will commence on the date it is imposed”, and “then allows time served to be calculated off the sentence”. That construction was reinforced by the fact that s 154 was not made subject to s 159A. Accordingly, for the period from 20 November 2010 to 10 January 2012, the respondent was not serving “a term of imprisonment” but was “only on remand and detained” under the PSA. [159] The respondent’s submissions accepted that, for the purposes of calculation of time served as a consequence of the declarations, the respondent is taken to be serving consecutive terms of imprisonment unbroken by the period in fact spent on remand. But the respondent did not ultimately contend for a position contrary to that put forward by the appellant, acknowledging the strength of the appellant’s argument as to the construction of s 159A PSA in the light of the failure to exclude that provision from s 154 PSA, in circumstances where other provisions were excluded. The respondent also accepted that the appellant’s argument derived support from a comparison of the terms of the repealed s 158 PSA (excluded by s 154 PSA) which did allow a court to order, as to presentence custody, that “the term of imprisonment is to have effect on and from the day the offender was arrested”. Additionally, it was submitted that the approach urged by the appellant found some support, albeit in different contexts, in statements of Supreme and District Court judges.110 [160] A proper understanding of s 159A PSA requires a consideration of the previous provisions in the PSA dealing with presentence custody; s 158 and s 161 PSA. These are set out in the judgment of Morrison JA.111 As explained by Morrison JA previously, there were two provisions in the PSA dealing with presentence custody; s 158 entitled “Imprisonment to have effect from arrest” and s 161 entitled “Time held in presentence custody to be deducted”. The latter, which was replaced by s 159A PSA in substantially the same terms, is the only provision concerning presentence custody that remains. [161] The previous provisions were considered in a line of authority not referred to by counsel but examined by Morrison JA in his reasons. They comprise R v Wishart and Jenkins,112 R v Blake113 and R v Holman.114 As explained by Morrison JA, those 109 For example, interim detention orders were made on 10 November 2010 and continuously thereafter, the last being made on 15 June 2012 detaining the respondent to 13 July 2012. A question was thus raised as to whether, for the period covered by detention under the interim detention orders, the respondent was relevantly “held in custody in relation to the proceedings for the offence and for no other reason” as required by s 159A(1). Transcript 1-35. 110 Hooson v Department of Corrective Services [2005] 2 Qd R 154, [12], Laman v Department of Corrective Services [2005] QSC 209, [38] – [39] and Kim v Arbuckle [2009] QDC 267, p 1-5. 111 See reasons of Morrison JA at [49], [52]. 112 [1994] 2 Qd R 421. -- 40 of 43 -- 41 authorities recognised that backdating in respect of a term of imprisonment was able to be achieved under either s 158 or s 161 PSA, albeit by different means stemming from the essential differences between those provisions. The essential differences were identified by Macrossan CJ and Pincus JA in Wishart and Jenkins as follows.115 Firstly, “under s 158 the term of imprisonment may be begun from the date of arrest; that may occur even if the custody mentioned in [s 158(1)] had not been continuous since arrest”. But, under s 161, the term of imprisonment could not “be made to begin from the date of arrest unless the offender has been continuously in custody, in the circumstances mentioned in [s 161(1)] since arrest”. Secondly, backdating took effect under s 158 PSA only if so ordered, while under s 161 PSA, backdating was automatic unless otherwise ordered. Therefore, where the intention was “that the sentence actually pronounced is to begin to run at a date before sentencing”, then that might be achieved under either section.116 Under s 158 the backdating took effect only if an order was made,117 and since the date of arrest was fixed as the date “on and from” which the sentence was to take effect, it was apposite if the offender had been continuously in custody since arrest or it was desired that the term begin from arrest.118 Under s 161, backdating was automatic unless otherwise ordered and was achieved through the making of the requisite orders as to the declaration of presentence custody set out in the judgment.119 [162] Since the repealed s 161 PSA and the present s 159A PSA are essentially in the same terms, there is no basis for doubting that the reasoning in Wishart and Jenkins, affirmed in Blake and Holman, as to the effect of a declaration made under s 161 PSA applies equally to a declaration made under s 159A PSA. In that regard, the authorities of Hooson v Department of Corrective Services120 and Laman v Department of Corrective Services121 referred to by the respondent do not provide any assistance. They deal solely with provisions of the Corrective Services Act 2000 and how in that context the term “period of imprisonment” in s 4 of the PSA should be construed. They have nothing to do with the nature of presentence custody under the PSA and unsurprisingly have nothing to say about Wishart and Jenkins and the cases that followed it. [163] The appellant’s submission that s 159A(1) PSA “does not deem the sentence to have been imposed at an earlier time” fails to appreciate the particular way in which s 159A PSA, like its predecessor s 161 PSA, operates to achieve backdating. As was explained in Wishart and Jenkins,122 while s 158 PSA gave the Court “discretion to back-date the term of imprisonment to the day of arrest”, s 161(1) PSA (now s 159A) “does not contemplate that the sentence will be expressly backdated”. Instead, it achieves a backdating of the sentence because it “has the effect, that in the circumstances to which it applies, time spent in custody is deemed to be time served under the sentence”. For that reason, contrary to the appellant’s submissions, s 159A(1) PSA does more than merely provide for time served to be “calculated off” or “deducted off” the sentence by means of an artificiality. The declaration made 113 [1995] 2 Qd R 167. 114 [1995] 2 Qd R 176. 115 [1994] 2 Qd R 421, 426. 116 [1994] 2 Qd R 421, 426. 117 [1994] 2 Qd R 421, 426. 118 [1994] 2 Qd R 421, 427. 119 [1994] 2 Qd R 421, 426-427. 120 [2005] 2 Qd R 154. 121 [2005] QSC 209. 122 [1994] 2 Qd R 421, 425-426. -- 41 of 43 -- 42 under s 159A(3)(c) as part of a sentencing order specifies that the period of time of presentence custody is “imprisonment already served under the sentence”. By that means the sentence is automatically treated as having run for the duration of the time declared. [164] Nor is that position altered because s 154 PSA is not made subject to s 159A PSA. Section 154 PSA is headed “Calculation of term of imprisonment”.123 As explained in R v Jones,124 s 154(1)(a) states the general sentencing requirement (formerly under s 20 of the Criminal Code), that on conviction on indictment a term of imprisonment starts on the day that the court imposes the sentence. And, implicitly, that time under the term continues to run thereafter for the purposes of calculation of the term of imprisonment. Accordingly, the exclusions expressly provided for, namely ss 156(1), 158A and 159 PSA and an order being made under the repealed s 158 PSA, are readily understood. The exclusion of s 158A and s 159 ensures that, while the sentence commences when imposed, time does not run under the sentence respectively when a prisoner is on bail awaiting appeal or at large. The exclusion of s 156(1) in respect of a cumulative sentence and the exclusion of an order under the repealed s 158, has the consequence that, contrary to the general position stated in s 154, the court is empowered to order that the starting date of the term of imprisonment is a date other than the date the sentence is imposed. [165] That s 154 PSA excludes certain provisions (including an order made under the repealed s 158 dealing with presentence custody) yet does not similarly exclude s 159A(1) PSA is of no moment, because no exclusion of s 159A(1) is required for it to operate in the manner explained in Wishart and Jenkins. As already outlined, unlike an order under the repealed s 158 PSA, a declaration made under s 159A(3) PSA is not concerned to backdate the date “on and from” which the term of imprisonment commences to run. (Nor could it where the declaration concerns broken periods of presentence custody. The backdating achieved under s 159A(1) will not necessarily run continuously from the commencement date of the period of presentence custody declared.125) And, unlike an order under the repealed s 158, in making a declaration under 159A(3), the court is not exercising a power to antedate the commencement date of the sentence imposed; the backdating that occurs by virtue of s 159A(1) occurs automatically. [166] Accordingly, the backdating achieved under s 159A(1) PSA is not inconsistent with s 154 PSA. While s 154 ensures that time under a sentence runs on and from the date the sentence is imposed, it is not concerned with how presentence custody is treated, except where that custody is taken into account by an order expressly antedating the commencement date of a sentence, as an order under s 158 does. Section 159A(1) does not by its terms expressly antedate the commencement date of a sentence (although that result occurs incidentally, where the period of presentence custody is an unbroken period). What s 159A(1) does is automatically deem presentence custody to be imprisonment under the sentence so that credit is given for that period (unless the court otherwise orders). [167] I agree therefore with Morrison JA that the declarations made as part of the 2012 sentences had a retrospective effect. And because, in the present case, the effect of 123 As to its terms see [41] of Morrison JA’s reasons. 124 [1998] 1 Qd R 672, 677. Such was the position at common law; a sentencing court was not empowered to antedate the commencement of a sentence: R v Gilbert [1975] 1 WLR 1012. 125 See R v Holman [1995] 2 Qd R 176, 179-180. -- 42 of 43 -- 43 the declaration was to backdate as imprisonment served under the sentence the period of custody from 20 November 2010 (immediately following the expiry of the 1999 sentences on 19 November 2010) to 10 January 2012, there was no unbroken duration of imprisonment in respect of the 1999 and 2012 sentences. Consequently, the respondent was serving “a period of imprisonment” of an unbroken duration for two or more terms of imprisonment within the definition of s 4 PSA at the time of the hearing for final orders under the application. Moreover, since it included sentences for serious sexual offences, the respondent was serving a “period of imprisonment” in terms of s 5(6) DPSOA. [168] I also agree with what McMurdo P and Morrison JA have said in respect of the meaning of the term “prisoner” in s 13 DPSOA being informed by the definition of “prisoner” in s 5(6) DPSOA. Any other approach would be nonsensical and inconsistent with the objects and scheme of the DPSOA. [169] The application, which was validly brought, when filed on 22 June 2010, was premised on a then correct understanding that the respondent’s period of imprisonment expired on 19 November 2010. By the time of the hearing, the period of imprisonment in terms of s 5(6) DPSOA that applied had altered and the relevant full time discharge date had been superseded by one that expired on 20 November 2023. In those circumstances, the application was futile; it ceased to have any utility. It is not necessary for the disposition of the appeal to deal with the other issues raised. [170] Accordingly, on that different basis, the order made by the primary judge should be upheld and the appeal should be dismissed. -- 43 of 43 --