Pollentine v Bleijie [2014] HCA 30: Provision For Indefinite Detention Of Child Sex Offenders Valid
Thursday 14 August 2014 @ 12.03 p.m. | Crime
The High Court has unanimously found that section 18 of the Criminal Law Amendment Act 1945 (Qld) is valid and not contrary to Chapter III of the Constitution. Section 18 of the Queensland Act allows directions to be made for the indefinite detention of a person who has been found guilty of committing a sexual offence against a child, subject to a number of conditions, including medical opinions the offender “is incapable of exercising proper control over the offender’s sexual instincts”. The plaintiffs in this case are both currently detained under the provision, and challenged it on the grounds that the section was beyond the legislative power of the Parliament of Queensland and invalid.
Section 18
Section 18(1)(a) of the Act states that where a person is found guilty of committing a sexual offence against a child, a judge may direct that two medical practitioners inquire as to whether “the offender's mental condition is such that the offender is incapable of exercising proper control over the offender's sexual instincts”.
Section 18(3) states that if the medical practitioners are of the view that the offender is incapable of exercising this control, the judge may “in addition to or in lieu of imposing any other sentence ... declare that the offender is so incapable and direct that he be detained in an institution during Her Majesty's pleasure.”
Facts
Edward Pollentine pleaded guilty in 1984 to 14 counts of sexual offences committed against children. He was immediately detained under section 18 and no other sentence was passed. Errol George Radan also pleaded guilty in 1984 to eight counts of sexual offences committed against children, and received a “total effective sentence of 12 years’ imprisonment”, to be followed by detention under section 18. Mr Radan’s sentence was later reduced to three years, but the section 18 direction was undisturbed.
Decision
The majority of the High Court wrote a joint judgment in which they firstly reiterated that they have previously noted “great care must be exercised in seeking and considering the making of an order for indefinite imprisonment” [at 22].
They noted that:
“any differences in opinion or disputes about the validity of the premises for the operation of s 18 do not touch the question of the validity of s 18. If, as there may appear to be, there is some tension between notions, on the one hand, of mental condition, incapacity to control and "cure", and, on the other, of punishment for crime and community protection from crime, those tensions are relevant, if at all, only because they may bear upon the proper construction and application of s 18. Whether and how these apparent tensions in legislative purpose affect the proper construction or application of s 18 need not be decided.” [at 30]
The plaintiffs submitted that section 18 infringes the principles laid out in Kable v Director of Public Prosecutions (NSW) [1996] HCA 24 that limit State legislative power. They made three arguments:
- Section 18 is an “impermissible delegation of the sentencing task” to the Executive
Their Honours rejected this argument on the basis that section 18 is a discretionary section that need not be applied, and that release from the sentence is “not at the unconfined discretion of the Executive, but dependent upon demonstration by medical opinion of the abatement of the risk of reoffending.” [44] – [45].
- “A political decision to allow detention to continue is cloaked “in the neutral colours of judicial action”” [46]
The Court also dismissed this argument, as they considered that the decision to release a person, which is made by the Governor in Council on the advice of a Minister, was clearly one made by the Executive. They also noted that the decision may be judicially reviewed.
- Section 18 lacks sufficient safeguards
Their Honours also rejected this argument, finding that there were no arguments that demonstrated that giving the Executive the power to make decisions about the release of prisoners under section 18 was incompatible with the institutional integrity of State courts.
Gageler J wrote a separate judgment that agreed with the result.
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Sources:
Pollentine v Bleijie [2014] HCA 30 (14 August 2014)
