The Dangerous Prisoner (Sexual Offenders) Act 2003 (Qld) (DPSO Act) enables the Queensland Attorney-General to apply to the Supreme Court for a Continuing Detention Order against a person who is serving the last six months of their period of imprisonment, without the prisoner having committed any further offence. At the initial hearing, the court may order an interim detention order based only on a finding that there are reasonable grounds to believe that the person poses a serious danger to the community if released in the absence of a supervision order. The court, in addition to making an interim detention order, may make a risk assessment order (i.e. an order that the person be examined by two psychiatrists, appointed by the court, who are required to prepare independent reports for the court). The effect of an interim detention order is that it permits a person to be imprisoned beyond the end of their sentence.
At the final hearing of the application, evidence will be provided by the two court-appointed psychiatrists. Sometimes, the prisoner is interviewed by another psychiatrist before the assessment order is sought, and their evidence is also presented. If the court is satisfied that the prisoner, if released in the absence of a supervision order under the DPSO Act, would be a serious danger to the community, it may make either a continuing detention order or a supervision order requiring the prisoner to be released under strict supervision as provided in the DPSO Act. The DPSO Act is crafted to capture most sexual offences, therefore making most sexual offenders potentially subject to indefinite imprisonment or supervision under the Act. It defines ‘serious danger to the community’ as meaning an unacceptable risk that the prisoner will commit a serious sexual offence if released from custody without a supervision order being made. A serious sexual offence is broadly defined to mean a sexual offence involving violence or a sexual offence against children.
A continuing detention order differs from an indefinite sentence imposed by a court after a criminal trial and a finding of guilt. An indefinite sentence applies the principles of sentencing as it forms part of the sentencing process. It is clear that imprisonment in that case is related to the penalty imposed upon the prisoner for commission of an offence or offences. The effect of the continuing detention order is that it provides for indefinite imprisonment of a prisoner who has not committed any further offence, and in a process that is not a criminal trial. Under a continuing detention order, the person is imprisoned purportedly for care, control and treatment. It should be noted, however, that by the time the application is brought, the person will have already spent some considerable time in prison. The DPSO Act makes no provisions for care or treatment that in any way differentiates imprisonment under a continuing detention order from imprisonment under sentence.