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Dangerous Prisoners (Sexual Offenders) and Other Legislation Amendment Bill 2009
Dangerous Prisoners (Sexual Offenders)
and Other Legislation Amendment Bill
2009
Explanatory Notes
Objectives of the Bill
The primary objectives of the Dangerous Prisoners (Sexual Offenders) and
Other Legislation Amendment Bill 2009 (the Bill) are to:
� Increase flexibility for the management of offenders under the
Dangerous Prisoners (Sexual Offenders) Act 2003 (the DPSOA); and
� Enhance the ability of the court to make indefinite sentence orders
under part 10 of the Penalties and Sentences Act 1992 (PSA).
Reasons for the Bill
In November 2007 the Government began a review of Queensland's public
protection legislation in the context of the community's sustained and valid
concerns about high risk sexual and violent offenders.
The review involved an extensive evaluation of the effectiveness of
preventative detention legislation, namely the DPSOA and Part 10 of the
PSA.
A review report entitled "A New Public Protection Model for the
Management of High Risk Sexual and Violent Offenders" was publicly
released in 2008. Consultation feedback was received on the report's
recommendations, which in turn informed the development of the Bill.
The Bill continues the Government's commitment to ensuring the ongoing
efficacy of Queensland's public protection legislation.
Achievement of the Objectives
The policy objectives will be achieved through a range of core provisions
discussed below:
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Dangerous Prisoners (Sexual Offenders) and Other Legislation Amendment Bill 2009
Amendments to the Dangerous Prisoners (Sexual Offenders) Act 2003
Threshold Test
Section 13 (1) and (2) of the DPSOA set out the legal test for determining
whether a prisoner is a serious danger to the community. This involves a
determination of whether there is an unacceptable risk that the prisoner will
commit a serious sexual offence if they are released from custody, or
released from custody in the absence of a supervision order. Section 13(6)
of the DPSOA states that the paramount consideration for the court in
deciding whether to make a continuing detention order or supervision order
is the need to ensure the adequate protection of the community.
Clause 7(2) of the Bill amends section 13(6) of the DPSOA and will oblige
the court, in considering whether or not to impose a supervision order, to
consider not only the need to ensure the adequate protection of the
community, but also whether the adequate protection of the community can
be reasonably and practicably managed by a supervision order and whether
any appropriate conditions of the supervision order can be reasonably and
practicably managed by corrective services officers.
Clause 4 of the Bill supports the amendment to the threshold test. It inserts
a new section 8A into the DPSOA which will require the Attorney-General
to produce a report, prepared by the chief executive of the Department of
Community Safety, setting out the requirements necessary to ensure the
adequate protection of the community if the offender were to be released
on a supervision order. Further, the report is to indicate the extent to which
the proposed requirements can be reasonably and practicably managed by
corrective services officers.
Clause 7(1) amends section 13(4) of the DPSOA and will require the court,
when deciding whether the prisoner is a serious danger to the community,
to consider, along with the other matters listed in section 13(4), any report
produced by the Attorney-General under the new section 8A.
Length of supervision orders
The DPSOA currently imposes no restriction on the length of a supervision
order that may be imposed by the court.
Clause 8 of the Bill inserts a new section 13A into the DPSOA and will
limit the maximum period of a supervision order to five years.
The highest risk period for offenders is the first few years after their release
from custody. It is considered that a limit is appropriate for the length of
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Dangerous Prisoners (Sexual Offenders) and Other Legislation Amendment Bill 2009
supervision orders and that a period of five years supervision should
provide adequate protection to the community.
Clause 17 of the Bill, however, inserts a new division 4A into Part 2 of the
DPSOA which will allow the Attorney-General to make unlimited
applications for further supervision orders of up to five years duration
where risk factors remain. In this way the amendment will also facilitate an
automatic review of supervision orders where previously no such process
existed.
Conditions of Supervision orders
Clause 14 of the Bill inserts new sections 16B to 16D into the DPSOA.
These new sections will give corrective services officers the power to issue
binding directions to released prisoners on supervision orders in relation to
matters such as where they are to live, if they are required to engage in
treatment programs and restrictions in relation to alcohol and other
substance use. This will enable corrective services officers to deal with
risk factors that develop in these discreet and common problem areas
without necessitating a return to court for an application to amend the
conditions of an offender's supervision order.
This new power is not without fetter. The new sections include the
following requirements, which must be complied with by corrective
services officers who issue directions in relation to these matters:
� Under new section 16B(3) any direction must not be directly
inconsistent with a requirement of the order; and
� Under new section 16C any direction must be considered reasonably
necessary by the corrective services officer to ensure either the
adequate protection of the community or the prisoner's rehabilitation,
care or treatment.
Clause 11(4) of the Bill inserts a new sub-section (daa) into section 16(1)
which will make it a standard requirement of a prisoner's conditions of
supervised released that he/she comply with directions given by corrective
services officers in accordance with new sections16B.
An offender's failure to comply with any such direction would allow
corrective services recourse to the formal contravention process contained
in Division 5 of the DPSOA which results in the released offender's
immediate detention and appearance before the Supreme Court.
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Dangerous Prisoners (Sexual Offenders) and Other Legislation Amendment Bill 2009
Review periods for continuing detention orders
Section 27 of the DPSOA requires continuing detention orders to be
reviewed annually. Clause 21 of the Bill increases the interval for the first
review to 2 years, but retains an annual review mechanism for all
subsequent reviews.
The first review period is unique in that it is generally during this period
that offenders, who have not yet undertaken a sex offender treatment
program in custody, will complete one. A two year period for the first
review represents a more appropriate interval to allow offenders time to
complete treatment programs and demonstrate a reduction in their risk of
re-offending.
Change of Name
Clause 25 of the Bill inserts a new offence section 43AB into the DPSOA
which extends the prohibition applying to offenders on continuing
detention orders contained in section 27 of the Corrective Services Act
2006 to offenders on supervision orders in the community. Requiring a
released prisoner to seek the chief executive's permission before changing
their name will provide further protection for the community against the
risk posed by these offenders.
Improved victim provisions
Clause 5 and several consequential clauses of the Bill amend the DPSOA to
provide that the chief executive of the Department of Community Safety,
instead of the Attorney-General, be responsible for notifying victims in
relation to DPSOA proceedings. The Department of Community Safety's
Victims Register is staffed by officers who are experienced in responding to
and supporting victims.
Clause 29 of the Bill inserts a new section 49A into the DPSOA which will
make it clear that, for the purposes of DPSOA hearings, it is not mandatory
for a victim to provide to the chief executive of the Department of
Community Safety, details of the harm caused to them by the crime. The
new provision will also clarify that where details of the harm caused to a
victim by the crime are absent at the hearing, this does not of itself give rise
to an inference that the crime caused little or no harm to the victim or that
the victim has no interest in the outcome of the application.
Clause 19 of the Bill amends section 21A of the DPSOA to allow victims
to `opt-out' of receiving notification of contravention hearings for DPSOA
offenders on supervision orders or interim supervision orders. Victims are
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Dangerous Prisoners (Sexual Offenders) and Other Legislation Amendment Bill 2009
currently required to be notified of all contravention proceedings. For some
victims the notification itself can cause distress, while for others the
frequency with which some DPSOA offenders breach their orders, means
that they may have nothing new to add to submissions lodged in respect of
earlier contravention hearings.
Parole
Section 51 of the DPSOA ensures that offenders subject to a continuing
detention order or interim continuing detention order are not eligible for
parole. There is currently no similar provision to prevent the parole board
granting parole to an offender who is the subject of an ongoing application
by the Attorney-General for a DPSOA order.
At the preliminary hearing of the Attorney-General's application for an
order, the court, under section 8(1) of the DPSOA, will determine whether
or not there are reasonable grounds for suspecting that the offender poses a
serious danger to the community in the absence of a DPSOA order. If the
court is so satisfied, it will set a date for the hearing of the
Attorney-General's application and order that the offender undergo risk
assessments. The court will only make an interim order for detention (or
supervision) under the DPSOA in cases where the offender's custodial
sentence has expired or is due to expire imminently.
It is therefore incongruous for the parole board to retain the power to grant
an offender parole in circumstances where a court has made a threshold
determination as to the potential risk posed by the offender.
Clause 30 of the Bill replaces the current section 51 of the DPSOA to
ensure that once a court has set a date, under section 8(1) of the DPSOA,
for the hearing of the Attorney-General's application, and that application
has not been discontinued or finally decided, an offender will not be
eligible for parole.
Amendments to the Penalties and Sentences Act 1992
Before imposing an indefinite sentence, the court is required by section
163(3) of the PSA to be satisfied :
"(b) that the offender is a serious danger to the community because of-
(i) the offender's antecedents, character, age, health or mental
condition; and
(ii) the severity of the violent offence; and
(iii) any special circumstances."
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Dangerous Prisoners (Sexual Offenders) and Other Legislation Amendment Bill 2009
It is further provided in s.163(4) that in determining whether the offender is
a serious danger to the community, the court must have regard to a number
of matters including whether the nature of the offence is exceptional and
the offender's antecedents, age and character. It is, however, unnecessary
for the court to find the existence of all of these matters in order to make a
finding that the threshold of serious danger to the community is met.
Once the threshold is met courts retain a wide discretion as to whether to
impose an indefinite sentence as pursuant to s. 163(1). The High Court has
repeatedly stated that in exercising this discretion judges must have a clear
appreciation of the exceptional nature of an indefinite sentence order. The
power to impose an indefinite sentence is a discretion which is only
exercised by courts in exceptional circumstances in view of the
extraordinary departure from the fundamental sentencing principles of
proportional punishment that this kind of sentence represents.
The amendments to the PSA contained in the Bill are not intended to alter
the existing threshold.
Expansion of Offences for which Indefinite Sentence order can be
made
Currently under sections 162 and 163 of the PSA an indefinite sentence
may only be imposed for Queensland Criminal Code offences carrying a
maximum penalty of life imprisonment where the offence involves
violence or is one of several specified sexual offences.
Clauses 35 and 45 of the Bill amend the PSA by expanding the range of
offences for which an indefinite sentence may be imposed. A specific
schedule of certain offences, carrying maximum penalties ranging from
between 10 years to life imprisonment, is inserted into the PSA. The new
schedule captures only those sexual and violent offences where the risk
posed by the offender to the community is likely to be most acute. The
schedule retains those offences captured by the current indefinite
sentencing regime and will serve to more appropriately reflect the
preventative purpose of the order.
Prohibition on court considering availability of DPSOA
It is currently open to the courts to consider the future prospect of the
Attorney-General, prior to the release of the prisoner, making an
application for a permanent detention order or supervision order under the
DPSOA as a relevant factor in deciding whether or not an indefinite
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Dangerous Prisoners (Sexual Offenders) and Other Legislation Amendment Bill 2009
sentence is necessary to protect the community from the risk posed by an
offender.
This is concerning as there is no guarantee that the current preventative
detention regime under DPSOA will remain available at the expiration of a
lengthy term of imprisonment, which would be the alternative where an
indefinite sentence was not imposed.
Clause 41 of the Bill inserts a new section 172D into the PSA prohibiting
the court, when considering whether or not to impose an indefinite
sentence, from having regard to the later availability of an order under
Division 3 of the DPSOA were the offender to be granted a finite sentence.
Report by QCS
Under section 167(3) of the PSA the court may consider reports presented
to it when considering whether to impose an indefinite sentence, but there
is no specific provision allowing the court to order, or be provided with, an
assessment of the offender. This is in contrast to the situation for periodic
reviews of indefinite sentences where the court, under section 176 of the
PSA, may order reports about the offender to be obtained. In practice,
medical reports and assessments are usually only used at the time of
sentencing where there has already been an interaction between the
offender and the mental health processes or there are previous assessments
available due to the offender having spent time in custody on previous
convictions.
Clause 39 of the Bill inserts new sections 166A to 166C into the PSA.
These sections require that before a court imposes an indefinite sentence it
must order that a report, from the chief executive of the Department of
Community Safety in relation to the offender, be obtained. This report may
include reports from Queensland Corrective Services as to the offender's
conduct in custody and assessed level of risk as well as psychiatric or
psychological reports as deemed appropriate by the chief executive or
ordered by the court. It will be a matter for the court to determine what
weight to attach to any such report. This amendment is not intended to limit
the court's power to hear any other evidence.
An indefinite sentence is an extraordinary order for a court to make. These
amendments will ensure that prior to making such an order the court is able
to appropriately inform itself as to the level of risk posed by an offender.
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Dangerous Prisoners (Sexual Offenders) and Other Legislation Amendment Bill 2009
Post-release supervision
Currently, pursuant to section 174 of the PSA an offender who has been
discharged from an indefinite sentence and sentenced to a finite term, is
liable to 5 years parole supervision regardless of the time remaining on
their sentence. For example, a prisoner serving a 20 year nominal sentence
that applies for, and is granted parole, at 18 years would be subject to up to
five years parole notwithstanding that he or she only had 2 years of their
sentence remaining. This five year supervision period only applies where
the offender submits an application for parole and is approved for release to
parole. Offenders who serve their full-time nominal sentence are not
subject to any parole upon release.
Clause 43 of the Bill amends section 174 to provide that where an offender
has been sentenced under section 173(1)(b), and is not granted parole
before the end of the term of their imprisonment, the offender, at the end of
that term of imprisonment must be under the authority of the Queensland
Parole Board and the supervision of an authorised corrective services
officer for 5 years.
Estimated Cost for Government Implementation
It is not anticipated that the proposed amendments will significantly impact
on prisoner numbers or impact on the costs involved in the supervision of
released prisoners.
Consistency with Fundamental Legislative Principles
There may be an argument that certain proposed amendments to the
DPSOA do not have sufficient regard to the rights and liberties of
individuals as required by the Legislative Standards Act 1992.
Clause 21 amends section 27 of the DPSOA to increase the first review of a
continuing detention order from one to two years. Whilst this impacts on
the rights of detained prisoners, such an interval for the first review will
afford sufficient time to implement the Court's recommendations and
assess the prisoner's progress in achieving the goals in his/her individual
management plan. More importantly it will allow more time for the
manifestation of changes in behaviour and reduction in risk to the
community. All subsequent reviews on an annual basis will remain
unchanged by the Bill.
Amendments to Part 10 of the PSA will have the effect of widening the
court's ability to impose indefinite sentences. Whilst this will arguably
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Dangerous Prisoners (Sexual Offenders) and Other Legislation Amendment Bill 2009
affect the rights and liberties of individuals the Bill seeks to minimise
infringements of fundamental legislative
principles by retaining a rigorous judicial process including:
� requiring the Attorney-General's consent to an application being
made;
� providing for notice to be given to the court of the intention to
make the application;
� specific evidence provisions;
� requiring the court to set out reasons when imposing an indefinite
sentence;
� requiring the prosecution to bear the onus of proof at all times;
� the right of the offender to appeal the order; and
� the right of the offender for the court to review the order.
It is considered that the breach of fundamental legislative principles is
justified in order to protect the community from prisoners who pose a
significant risk to the community.
Clause 44 sets out transitional provisions that give rise to a retrospective
application of the Part 10 amendments. There is retrospectivity to the
extent that a person who has committed an offence prior to commencement
but is sentenced after commencement will be subject to the new provisions.
Whilst this may adversely affect the rights and liberties of certain offenders
it is justified in order to protect the community from offenders who pose a
serious danger to the community.
Consultation
Consultation was undertaken with key Department of Justice and
Queensland Corrective Services' stakeholders on a consultation draft of the
Bill. All submissions received were considered in finalising the Bill and
informed development of the Bill. Broad consultation also took place with
Queensland Government departments during the preparation and
finalisation of the Bill.
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Dangerous Prisoners (Sexual Offenders) and Other Legislation Amendment Bill 2009
Notes on Provisions
Part 1 Preliminary
Clause 1 provides that the short title of the Act is the Dangerous Prisoners
(Sexual Offenders) and Other Legislation Amendment Act 2009.
Clause 2 provides that the Act will commence on a day to be fixed by
Proclamation.
Clause 3 provides that Part 2 of the Act amends the Dangerous Prisoners
(Sexual Offenders) Act 2003.
Clause 4 creates a new section 8A. New section 8A provides that where a
date for hearing of a Division 3 application has been set pursuant to section
8, the Attorney-General may produce to the court a report that sets out the
proposed supervision order conditions considered necessary to ensure the
adequate protection of the community. The report will also indicate the
extent to which the conditions can also be reasonably and practicably
managed by corrective services officers.
Clause 5 (1) amends section 9AA (1) to (3) to replace reference to
`Attorney-General' in section 9AA with `chief executive'. The affect of
this amendment is to require the chief executive of the Department of
Community Safety rather than the Attorney-General to provide the
required notice to victims in relation to the hearing of Division 3
applications.
Subclause (2) inserts new subsection (3A) into section 9AA. This provides
that prior to the hearing of a DPSOA application, the chief executive must
either provide the Attorney-General with any submission received from an
eligible person or notify the Attorney-General that the eligible person has
not provided a submission.
Subclause (3) omits section 9AA (5).
Clause 6 amends section 10 to replace reference to `Attorney-General' in
sub section (4) with `chief executive'. The affect of this amendment is that
where the Attorney-General discontinues an application for a Division 3
order by notice to the registrar and prisoner, it is the chief executive rather
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Dangerous Prisoners (Sexual Offenders) and Other Legislation Amendment Bill 2009
than the Attorney-General who is required to notify the eligible person who
has provided a submission.
Clause 7 subclause (1) inserts a new subsection (aa) into section 13(4).
The affect of this amendment is that in deciding whether a prisoner is a
serious danger to the community, in the absence of a Division 3 order, the
court must have regard to a report produced by the Attorney-General
pursuant to new section 8A.
Subclause (2) amends section 13(6) to set out the matters the court must
consider when determining whether to impose either a continuing
detention order or supervision order. Sub section (6) retains the general
proposition that in making the determination on the type of division 3
order, the paramount consideration is the need to ensure adequate
protection of the community. The sub section however further requires the
court to consider whether adequate protection of the community can be
reasonably and practically managed by a supervision order and also
whether the requirements can be reasonably and practically managed by
corrective services officers.
Clause 8 inserts a new section 13A in Part 2, division 3 that provides that in
relation to supervision orders, the court must state a period for which the
order is to have effect. Subsection (2) of the new section 13A further
provides that a supervision order can not end later than 5 years after the
prisoner's release day.
Clause 9 amends section 15 to replace the term `at the end of the prisoner's
period of imprisonment' with the term `on the prisoner's release day'.
Clause 10 inserts a new part 2, division 3B, subdivision 1 headed:
`Requirements for supervised release'.
Clause 11 (1) amends the heading to section 16 by replacing the term
`supervised release' with `orders'.
Subclause (2) amends section 16(1) to replace the existing term 'a judicial
authority' with the more specific term: `the court or a relevant appeal
court'.
Subclause (3) amends section 16(1)(b) and (2) to replace the existing term
'the judicial authority' with the more specific term: `the court or a relevant
appeal court'.
Subclause (4) inserts into section 16(1) a further sub section (daa) that sets
out an additional requirement for supervision orders or interim supervision
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Dangerous Prisoners (Sexual Offenders) and Other Legislation Amendment Bill 2009
orders. The additional requirement is that the prisoner complies with any
reasonable direction under section 16B given to the prisoner.
Subclause (5) amends the condition for a supervision order or interim
supervision order contained in section 16(1) (db). The effect of the
amendment is that an order for a supervision order or interim supervision
order must contain the requirement that the prisoner comply with every
reasonable direction of a corrective services officer that is not directly
inconsistent with a requirement of the order.
Clause 12 inserts a new part 2, division 3B, subdivision 2 heading:'
Directions to released prisoners'.
Clause 13 amends section 16A by omitting the current subsection 16A (4)
and replacing it with a new provision. The effect of the new section 16A
(4) is that a direction relating to curfew or monitoring under section 16A
must not be directly inconsistent with a requirement of the relevant order
for the released prisoner.
Clause 14 inserts new sections 16B, 16C and 16D into Part 2, division 3B,
subdivision 2.
New section 16B empowers a corrective services officer to give a released
prisoner reasonable directions about the prisoner's accommodation,
rehabilitation, care or treatment, and drug or alcohol use. Such a direction
must not be directly inconsistent with a requirement of the order.
New section 16C sets out criteria for the giving of directions by corrective
services officers under section 16(1) (db) or 16B. A corrective services
officer may give a direction only if the officer reasonably believes the
direction is necessary to ensure the adequate protection of the community
or for the prisoner's rehabilitation, care or treatment.
New section 16D provides that the section 16(1) (db) requirement in a
supervision or interim supervision order that the released prisoner comply
with every reasonable direction of a corrective services officer is not
limited by the requirement in section 16(1) (da) or the new requirement in
section 16(1) (daa) relating to directions about the released prisoner's
accommodation, rehabilitation or drug or alcohol use.
Clause 15 subclause (1) amends the heading in section 17 from `Court to
give reasons' to `Court or relevant appeal court to give reasons'.
Subclause (2) amends section 17 to replace the term "a judicial authority"
with the term: "the court or a relevant appeal court".
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Dangerous Prisoners (Sexual Offenders) and Other Legislation Amendment Bill 2009
Clause 16 amends section 19(3) such that where a court amends the
requirements of a supervision order or interim supervision order on
application by the chief executive, the court must also amend the order to
include all of the requirements listed in section 16(1) if the order does not
already include all of these requirements.
Clause 17 inserts a new Part 2, Division 4A entitled: "Extending supervised
release".
New section 19B under this division enables the Attorney-General to apply
for a further supervision order where the application is made within the last
6 months of a current order. This provision also permits the making of
further orders in this manner regardless of how many supervision orders
have already been made upon the released prisoner.
New section 19C requires that in any application under new section 19B,
the Attorney-General must set out the period of supervised release that is
sought. The application must also be supported by affidavits.
New section 19D applies the relevant procedural and evidentiary provisions
that apply to an initial application for an order under the Act to the new
provisions inserted by this Bill allowing the Attorney-General to apply for
further supervision orders.
New section 19E requires the court, when granting a further supervision
order, to state the period for which it is to have effect. This period can be
any period up to 5 years after the end of the current order.
New section 19F provides that a further supervision order will have effect
for the period stated in the order.
Clause 18 amends section 21(7) (a) such that where the court orders the
release of a prisoner brought before them on a section 20 contravention
warrant and orders that the prisoner be released subject to the existing
supervision order or existing interim supervision order, the court must
amend the existing order to include all of the requirements listed in section
16(1) if the order does not already include all of these requirements.
Clause 19 subclause (1) amends section 21A sub sections (1) to (3) to
replace reference to the `Attorney-General' with `chief executive'. The
effect of this will be that the obligations to give notice to victims with
respect to DPSOA application will shift to the chief executive of the
Department of Community Safety.
Subclause (2) replaces the term `written notice' with the more appropriate
term `hearing notice'.
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Dangerous Prisoners (Sexual Offenders) and Other Legislation Amendment Bill 2009
Subclause (3) inserts a new sub-section (1A) in section 21A. This new
sub-section provides that the chief executive is not obliged to notify a
victim pursuant to section 21A(1) where the chief executive has already
given the eligible person a hearing notice or where the person has informed
the chief executive that they do not wish to receive any hearing notices
relating to the prisoner.
Subclause (4) inserts a new subsection (3A) into section 21A. New
sub-section (3A) requires the chief executive of the Department of
Community Safety to provide to the Attorney-General any submission
received from the eligible person before the hearing date or alternatively
information that the victim has declined to provide a written submission.
Additionally the chief executive must advise the Attorney-General where
an eligible person has informed the chief executive that they no longer wish
to receive hearing notices in relation to the prisoner.
Subclause (5) omits the current section 21A (5)
Clause 20 subclause (1) amends section 22(3)(b) to include a report under
the new section 8A as a matter to which the court must have regard to in
deciding whether a prisoner is a serious danger to the community.
Subclause (2) amends section 22(3) to require that a court in deciding
whether to make a continuing detention order as mentioned in section
22(2)(a), may consider any further report or revised report in the nature of a
report described in new section 8A.
Subclause (3) amends section 22(7)(a) so that where it is satisfied that
despite the contravention of an existing order, a supervision order or
interim supervision order can be made, the court must amend the existing
order to include all the requirements under section 16(1) if the order does
not already include all those requirements.
Clause 21 amends section 27 to require that the first review of a continuing
detention order be finalised by the end of two years after the first order was
made. All subsequent reviews must start within 12 months after the
completion of the hearing for the last review.
Clause 22 inserts a new section 28A that extends the application of the new
section 8A to applications for reviews of detention orders under sections 27
and 28. The effect of this new provision is that upon a review of a
detention order whether it is on the application of the Attorney-General or
the prisoner, the Attorney-General may produce a report, prepared by the
chief executive of corrective services, that proposes the requirements
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Dangerous Prisoners (Sexual Offenders) and Other Legislation Amendment Bill 2009
necessary to ensure the adequate protection of the community if the
offender were to be released on a supervision order.
Clause 23 subclause (1) amends section 30 to state that the section applies
where on the hearing of a review of a continuing detention order under
section 27 or 28, and having regard to `required matters', the court affirms
a decision that the prisoner is a serious danger to the community in the
absence of a division 3 order. The term `required matters' has supplanted
the existing term: `matters mentioned in section 13(4)'. A `required
matter' is defined in the amended section 30 to include the matters
mentioned in section 13(4) in addition to any report produced under the
new section 28A.
Subclause (2) amends section 30(4) to set out the test to be applied by the
court in determining whether or not to affirm or rescind the continuing
detention order on review. In addition to the paramount consideration of
the need to ensure adequate protection of the community, the court must
consider whether adequate protection of the community can be reasonably
and practicably managed by a supervision order and also whether the
requirements can be reasonably and practicably managed by corrective
services officers.
Subclause (3) omits section 30(4A).
Subclause (4) inserts a definition of the term: `required matters'. This term
means the matters mentioned in section 13(4) as well as any reports by the
Attorney-General or the chief executive given under section 28A.
Clause 24 subclause (1) amends section 41(2) to replace the term `the
judicial authority' with the term `the court'.
Subclause (2) amends section 41(2) to replace the term `a judicial
authority' with the term: `the court hearing an appeal'.
Clause 25 inserts a new part 4A entitled: `Offences'. Two new offences are
created under this part.
New section 43AA makes it an offence for a released prisoner to
contravene a supervision order or interim supervision order, without a
reasonable excuse. The offence is punishable by 2 years imprisonment.
New section 43AB makes it an offence for a released prisoner to change
their name under the Births, Deaths and Marriages Registration Act 2003,
without the consent of the chief executive. Sub section (2) of new section
43AB sets out the matters that the chief executive must consider when
deciding whether or not to give permission.
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Dangerous Prisoners (Sexual Offenders) and Other Legislation Amendment Bill 2009
New section 43AC confirms that proceedings for the new offences are
summary offences.
Clause 26 omits section 43B. The offence provided for in section 43B has
been superseded by the offence in new section 43AA.
Clause 27 amends section 44 to enable the court to impose an interim
supervision order (under new section 19D) entirely or partly from a
consideration of the documents filed.
Clause 28 amends section 49 to include reference to the new section 19D.
The effect of this is that a prisoner has a right of appearance at a
preliminary hearing with respect to an application by the Attorney-General
for a further supervision order.
Clause 29 inserts a new section 49A which provides that it is not
mandatory for a victim to provide to the chief executive of the Department
of Community Safety details of the harm caused to them by the crime. The
new provision will also clarify that where details of the harm caused to a
victim by the crime are absent at the hearing, this does not of itself give rise
to an inference that the crime caused little or no harm to the victim or that
the victim has no interest in the outcome of the application.
Clause 30 replaces the current section 51 of the DPSOA to ensure that once
a court has set a date, under section 8(1) of the DPSOA, for the hearing of
the Attorney-General's application, and that application has not been
discontinued or finally decided, an offender will not be eligible for parole.
Clause 31 inserts a new part 8 entitled: `Transitional provisions for
Dangerous Prisoners (Sexual Offenders) and Other Legislation
Amendment Act 2009'.
New section 59 provides that any supervision order or interim supervision
order that is in force at commencement will continue to remain in force in
accordance with the order's terms notwithstanding new section 13A. The
provisions contained in part 2 division 4A will apply to existing orders.
New section 60 provides that the new section 16B, that empowers a
corrective services officer to give a released prisoner reasonable directions
about the prisoner's accommodation, rehabilitation, care or treatment, and
drug or alcohol use does not apply with regard to any supervision order or
interim supervision order that is in force at commencement. The exception
to this is where the court amends the requirements of an existing order to
include a requirement to comply with any direction given to the relevant
prisoner under section 16B.
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Dangerous Prisoners (Sexual Offenders) and Other Legislation Amendment Bill 2009
New section 61 provides that where a continuing detention order is in force
at the time of commencement, and no application for review has been made
under section 27 or 28, the first review must start within 12 months after
the completion of the hearing for the order.
Clause 32 amends the schedule dictionary to omit the definitions of the
terms: `judicial authority' and `supervision order'. Definitions of `current
order', `relevant appeal court' and `supervision order' are inserted. The
definition of `interim supervision order' is amended to include reference to
new section 19D (2).
Clause 33 provides that Part 3 of the Act amends the Penalties and
Sentences Act 1992.
Clause 34 amends section 4 to insert definitions for the terms: finite
sentence, finite term, indefinite sentence, nominal sentence, qualifying
offence, Queensland board and serious harm.
Clause 35 amends section 162 to omit the definition of "violent offence"
and insert a new definition of "qualifying offence". Under this new
definition, a `qualifying offence' is an indictable offence contained in the
new schedule 2 to the Act or an offence involving the counselling or
procuring the commission of, or attempting or conspiring to commit an
offence contained in the new schedule 2.
Clause 36 subclause (1) is an amendment to section 163 that is
consequential to the replacement of the term "violent offence" with
"qualifying offence".
Subclause (2) amends section 163(4)(d) to replace the term `serious
physical harm' with the term; `serious harm'.
Clause 37 is an amendment to section 165 that is consequential to the
replacement of the term "violent offence" with "qualifying offence".
Clause 38 subclause (1) is an amendment to section 166 that is
consequential to the replacement of the term "violent offence" with
"qualifying offence".
Subclause (2) amends section 166(b) by supplanting the term `called by
prosecution and the offender' with the term `received by the court'. The
effect of this amendment is that after an offender is advised that the court
may consider the imposition of an indefinite sentence, the court must
adjourn the sentence for at least 20 business days from date of conviction
so that the evidence on sentence can be received by the court.
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Dangerous Prisoners (Sexual Offenders) and Other Legislation Amendment Bill 2009
Clause 39 inserts new sections 166A to166C.
New section 166A provides that where the court adjourns the offender's
sentencing, it must order that the chief executive of the Department of
Community Safety prepare a report about the offender and provide the
same to the court within a stated period. The court may also order the chief
executive to provide or obtain any other report that the court considers
appropriate to enable it to impose the proper sentence. The term `report' is
defined to include an assessment of, or information about, the prisoner.
New section 166B provides that where a report is ordered pursuant to new
section 166A, the court must provide a copy to the prosecution and the
offender's lawyers. The court must ensure that both parties are afforded
sufficient time before sentence to consider and respond to the report prior
to sentence. Additionally the section provides that the court may order that
the report, or part of the report, not be shown to the offender.
New section 166C provides that lawyers for the offender may in advance of
the sentence, file with the court a notice of intention to dispute the whole or
part of the report given under section 166A. Where such a notice is filed,
the court must not take the report of the part in dispute into consideration
on the sentence unless the offender's lawyers have been given the
opportunity to lead evidence on the disputed matters and to cross-examine
the author of the report on its contents.
Clause 40 subclause (1) is an amendment to section 167 that is
consequential to the replacement of the term "violent offence" with
"qualifying offence".
Subclause (2) inserts a new subsection (4) into section 167 that provides
that with regard to a report provided pursuant to section 166A, subsections
(1) and (2) of section 167 do not affect the admissibility, under section
166C.
Clause 41 inserts new section 172D. New section 172D prohibits the court
determining whether to impose an indefinite sentence from having regard
to the availability of an order under Division 3 of the DPSOA were the
offender to be granted a finite sentence.
Clause 42 subclause (1) replaces subsection 173 (1)(b). The new sub
section (1)(b) incorporates a consequential amendment, replacing the term
"violent offence" with "qualifying offence. Additionally the concept of
`finite sentence' is introduced to describe the sentence that is imposed on
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Dangerous Prisoners (Sexual Offenders) and Other Legislation Amendment Bill 2009
the offender by the court after the indefinite sentence is discharged upon
review.
Subclause (2) amends section 173(3) to replace the term `a sentence
imposed under subsection (1)(b)' with the term `finite sentence'.
Clause 43 replaces existing section 174 and creates new sections 174A,
174B and 174C.
New section 174 provides that an offender who has been sentenced to a
finite sentence must apply for parole at least 6 months before the finite term
ends. The Queensland Parole Board must hear and decide the application
notwithstanding section 187 of the Corrective Services Act 2006. Where
the application is granted, the offender must be under the authority of the
Queensland Parole Board and supervision of an authorised corrective
services officer for at least 5 years or a shorter period decided by the board.
Sub section (6) provides that where the finite term ends within 5 years from
when the parole starts, the duration of parole is taken to extend until the
end of either 5 years or if a shorter supervision period has been decided -
that period.
New section 174A provides that where an offender has been sentenced to a
finite sentence and is not on parole 6 months before the finite term ends,
the Queensland Parole Board must make a parole order under section 194
of the Corrective Services Act 2006 as if an application had been made
under section 174 before the end of the 6 month period. The parole order
must be for the duration of either at least 5 years or a shorter period as
decided by the Queensland Parole Board.
Subsection (6) provides that where the finite term ends within 5 years from
when the parole starts, the duration of parole is taken to extend until the
end of either 5 years or if a shorter supervision period has been decided -
that period.
New section 174B provides that chapter 5, part 1, divisions 5 and 6 apply to
parole orders made under sections 174 and 174A. The provision also
clarifies that the making of a parole order or the application of section 174
or 174A does not limit or otherwise affect any application of the
Dangerous Prisoner (Sexual Offenders) Act 2003 to the prisoner the
subject of the order.
New section 174C provides that where a parole order granted under section
174 or 174A is cancelled, those sections cease to apply to the offender in so
far as the sentence can not be further extended. Therefore an offender's
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Dangerous Prisoners (Sexual Offenders) and Other Legislation Amendment Bill 2009
parole can only be extended under sections 174 and 174A on one occasion.
Sub section (2) of new section 174C provides that a prisoner who has
received an extended sentence under section 174 or 174A whose parole is
later cancelled, will be able to apply for parole under the ordinary parole
provisions of the Corrective Services Act 2006.
Clause 44 inserts a new section 217, which provides the transitional
provisions
of the Act. The amendments to Part 10 of the PSA (with the exception of
sections 174 to 174C) will apply to an offender no matter when the offence
the subject of the indefinite sentence application or review application
occurred but only if the conviction for that offence occurred after the date
of assent of the amendments.
With regards to new sections 174 to 174C, these will apply to all offenders
on whom a finite sentence has been imposed no matter when the offence or
conviction occurred or when the finite sentence was made.
Clause 45 inserts new schedule 2, Qualifying Offences. The schedule sets
out the Criminal Code offences to which the application of the indefinite
sentencing regime contained in Part 10 of the PSA will extend.
Clause 46 provides that part 4 of the Act amends the Births, Deaths and
Marriages Registration Act 2003.
Clause 47 amends section 42 of the Births, Deaths and Marriages
Registration Act 2003 to empower the registrar to correct the register upon
application of the chief executive under section 43AB(4) of the Dangerous
Prisoners (Sexual Offenders) Act 2003.
� State of Queensland 2009
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