Attorney-General for the State of Queensland v Sibley [2012] QSC 54

SUPREME COURT OF QUEENSLAND CITATION: A-G v Sibley [2012] QSC 54 PARTIES: ATTORNEY-GENERAL FOR THE STATE OF QUEENSLAND (applicant) v JOHN RAYMOND SIBLEY (respondent) FILE NO: BS 956 of 2012 DIVISION: Trial PROCEEDING: Application DELIVERED ON: 17 February 2012 DELIVERED AT: Brisbane HEARING DATE: 17 February 2012 JUDGE: Fryberg J ORDERS: Application is dismissed. CATCHWORDS: Criminal Law – Sentence – Sentencing orders – Orders and declarations relating to serious or violent offenders or dangerous sexual offenders – Dangerous sexual offender – Generally Words and phrases – “serious danger to the community” Dangerous Prisoners (Sexual Offenders) Act 2003 s 8(2)(a) COUNSEL: RA Ryan for the applicant L Falcongreen the respondent SOLICITORS: Crown Law for the plaintiff Legal Aid for the respondent HIS HONOUR: This is an application by the Attorney-General, pursuant to section 8(2)(a) of the Dangerous Prisoners (Sexual Offenders) Act 2003 for an order that the respondent undergo examinations by two psychiatrists for the preparation of reports. -- 1 of 6 -- Section 8(2) operates only if the Court is satisfied as required under subsection (1) of that section. Subsection (1) provides as follows: "If 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 of the application." The satisfaction that is referred to in subsection (2) is, therefore, satisfaction that there are reasonable grounds for believing the prisoner is a serious danger to the community in the absence of a Division 3 order. Serious danger to the community is a term which is defined in the dictionary of the Act. It is there defined with the illuminating words, "See section 13(1)." That subsection uses the term "a serious danger to the community", and subsection (2) sets out when a prisoner is a serious danger to the community. It provides, "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." A serious sexual offence is defined in the dictionary to mean an offence of a sexual nature involving violence or against children. -- 2 of 6 -- In the present case it is only an offence against children that is relied on by the applicant. The respondent is a prisoner. He was convicted in 2004 of a series of offences, some involving unlawful carnal knowledge of children under 16 (there were four girls involved) and others being nonsexual offences of violence. The offences of violence seem to have been regarded seriously by the sentencing Judge. He imposed a head sentence of nine years imprisonment. He had regard to the fact that there were four separate complainants and that the offences of violence were quite serious offences of violence. As regards the sexual offences his Honour, as the applicant put it in his outline, "properly recognised that the offences ought to be seen in the context of the community on Palm Island where the offences were committed." His Honour described Palm Island as a highly dysfunctional community with grave social problems, such that the respondent may well, as a product of that community, be affected by those problems. His Honour set a parole eligibility date after three years and six months. That means that the applicant would have become eligible for parole at the end of 2007 approximately. He was not granted parole and, in fact, has made a number of applications for parole, always unsuccessfully. The usual -- 3 of 6 -- reason for failing to get parole seems to have been the absence of any proper place for him to reside and some difficulty with his work relationships. It was not alleged that the Board perceived a risk of his reoffending. He was examined for the purposes of a parole application on behalf of the Parole Board by Dr Kar, a psychiatrist. Dr Kar noted that he had successfully completed all recommended courses, that he was accepting of responsibility, remorseful and planned not to offend. Factors working against him were the risk of associating with dysfunctional peers with criminal attitudes and substance abuse. Dr Kar expressed the view that he was not a serious danger to the community if the terms of his parole prevented his forming unlawful relationships with minors. He thought that the respondent had learned the unlawfulness of his relationships and because of his age, maturity, the prolonged time in prison and the benefit of the courses, in Dr Kar's opinion, the risk of forming similar relationships was reduced. For the purposes of the present application, the respondent was seen by Professor Nurcombe in April 2011 for the purposes of this application. Professor Nurcombe assessed his risk of sexual re-offending as low on two occasions. On the second occasion he added in parenthesis, "or, at most, low to moderate." -- 4 of 6 -- He continued, "In the current circumstances, the relevance to him of this Act could be questioned. He is not likely to re-offend against underage females and since such behaviour was the norm in the Palm Island subculture and his 'victims' were willing partners, the degree of dangerousness is debatable." Professor Nurcombe recommended that on release he enter a program for the control of aggression. That was, no doubt, in relation to the offences of violence. That is not, unless associated with a sexual offence, a relevant consideration here. On behalf of the Attorney two grounds are put forward for the purposes of section 8. The first is that there is a risk of the respondent committing another sexual offence against a child. That is said to come from Professor Nurcombe's opinion. In my judgment that opinion clearly shows that the risk, such as it is, does not fall within the description of “serious danger to the community”. I have already referred to the definition. The evidence does not, on this ground at least, satisfy me that there is any such danger. The other ground that was put forward is that there is a risk of the respondent's returning to Palm Island. Whether the respondent is at liberty to return to Palm Island when released has not been the subject of evidence but, in any event, assuming that he is at liberty to return to Palm -- 5 of 6 -- Island I do not see that the risk factors are thereby significantly aggravated. The problems of life on Palm Island have, since the 1990s been more readily recognised and steps have been taken to attempt to improve living conditions on that island. The fact that the risk of re-offending is low is, in my view, much more significant. I do not think it would be significantly aggravated even were the respondent to return to Palm Island. Certainly, there is no evidence before me to suggest that conditions on Palm Island today are such that the subculture which has been referred to continues with the same strength as was there in the 1990s and early part of the first decade of this century. In short, I am not satisfied that there are reasonable grounds for believing the prisoner is a danger to the community in the absence of a Division 3 order. With the greatest respect to the applicant and to those who advise him, this is a ridiculous application. The evidence comes nowhere near satisfying the requirements of the Act and it has always been doomed to fail. The application is dismissed. -- 6 of 6 --