Attorney-General v Carter [2020] QSC 217
Date: 21 July 2020
Court/Tribunal: Queensland Supreme Court
Judicial Officer: Jackson J
Human Rights Act 2019 (Qld) Sections: ss 19, 29
Rights Considered: Right to liberty and security of person; Freedom of movement
Other Legislation: Corrective Services Act 2006 (Qld), ss 21, 200, 200A, 201-215; Criminal Code Act 1899 (Qld) ss 228D(1)(b), 210; Criminal Code Act 1995 (Cth) s 474.19 (1)(a)(i),(ii),(iii), (b), (aa), 474.27(1), 474.26(1), 474.27A(1); Criminal Code Act 1913 (WA) ss 320(2), 320(4); Dangerous Prisoners (Sexual Offenders) Act 2003 (Qld), ss 5(3), 8(1), 8(2), 11, 13, 13A, 16, 16A, 16B, 20, 21, 22, 43A, 43AA, 45(2), 55(3); Penalties and Sentences Act 1992 (Qld), ss 93, 94, 120-132
Keywords: Corrective services
Pursuant to section 13 of the Dangerous Prisoners (Sexual Offenders) Act 2003 (Qld), the Attorney-General applied to the court for either a continuing detention order or a supervision order in relation to the respondent, Carter, who was convicted of serious sexual offences. The court noted that supervision orders limit the right to liberty and freedom of movement contained in sections 29 and 19 of the Human Rights Act 2019 (Qld), but that they did so to fulfil the statutory purpose of the Dangerous Prisoners (Sexual Offenders) Act 2003 (Qld) relating to the safety of the community.
On 28 January 2016, Terance Carter was convicted of the offence of using a carriage service to transmit, make available, publish, advertise or promote child pornography material. The total period of imprisonment ordered to be served was five years and six months, and a non-parole period of three years and nine months was fixed. The respondent’s full time release date was imminent.
The Attorney-General applied to the court under section 13 of the Dangerous Prisoners (Sexual Offenders) Act 2003 (Qld) for either a continuing detention order or a supervision order in relation to Carter. The court considered whether the respondent was a serious danger to the community, whether adequate protection of the community could be reasonably and practically managed by a supervision order (and whether the requirements under section 16 of the Act could reasonably and practicably be managed by corrective services officers), and what requirements were appropriate to include in any supervision order.
His Honour stated that ‘given the requirements of and operation and effect of a supervision order...the release of a prisoner on a supervision order is made subject to requirements that are more rigorous and onerous than the terms on which an offender who is released into the community on parole or probation serves their sentence in the community:’ at [59]. As such, supervision orders can only be justified if they serve the protective purposes of the Dangerous Prisoners (Sexual Offenders) Act 2003 (Qld): at [59]. His Honour also noted that supervision orders limit the rights to liberty and freedom of movement in sections 29 and 19 of the Human Rights Act 2019 (Qld)
On an assessment of the overall evidence, including the respondent’s relevant earlier criminal history of sexual offences, the court was satisfied that the respondent was a serious danger to the community. Whilst it found that a continuing detention order would not be appropriate, applying the usual considerations under the Dangerous Prisoners (Sexual Offenders) Act 2003 (Qld), a supervision order was made for a period of 10 years following the respondent’s release from prison.
LINK TO JUDGMENT: Attorney-General v Carter [2020] QSC 217