I have come to the view that the prohibition in s 5(2BD) of the Act does not apply to the review for the following reasons. Firstly, in my view, the words 'in sentencing an offender' apply only at the stage of the imposition of the indefinite sentence and not at the point of its review. In my opinion, the purpose for the prohibition was to, in effect, concentrate the sentencing judge's attention on matters properly to be considered in the fixing of an appropriate sentence. The sentencing guidelines provided in s 5(1) of the Act direct the sentencing judge to the fundamental principles of sentencing: punishment, deterrence, rehabilitation, denunciation, and protection of the community. In my opinion, the rationale for the prohibition was to ensure that an anticipation of the likelihood of post-sentence supervision or detention did not distort the initial sentencing process by, for example, leading to less weight being given to punishment, general deterrence, denunciation and the like, in the belief that the protection of the community, a legitimate non-punitive public interest, would be catered for at some later point in time. The nature of the review on the other hand is to focus almost solely on danger to the community, that is, the non-punitive aspects of the [appellant's] ongoing detention.
Secondly, I am mindful that I should construe the prohibition, instructed by Momcilovic, against the background of the human rights and freedoms set out in the Charter in the same way as the principle of legality requires the same statutes to be construed against the background of common law rights and freedoms. The phrase 'in sentencing an offender' is not free from ambiguity and, where the words of the statute are capable of more than one meaning, the court should give them whichever of those meanings best accords with the human right in question. Where penal legislation can be interpreted beneficially to the offender then it ought be so interpreted.
Thirdly, it seems obvious to me that, in the absence of a strict prohibition such as is now contained in the Queensland legislation, a court, in determining whether an offender is a serious danger to the community if released forthwith, must give consideration to the definition of the community into which the offender is to be released. The question of dangerousness is governed, in my opinion, by an understanding of what constitutes the relevant community. To return to the example given in the course of submissions: If [the appellant] was ill and confined to an iron lung, he would not constitute a danger to the community upon release from prison. Whilst this may be better explained by reference to the proper characterisation of [the appellant's] capacity, rather than the community into which he is to be released, it probably does not matter in the end. What matters is that, in considering the risk, regard is had to both. He is not relevantly dangerous whilst in custody because of the nature of his detention, the supervision available, and the fact that there is no access to persons within the risk group identified by Dr Davis. The question is whether 'community' is to be defined by reference to the risk of offending in a proscribed way. Put another way, would it not follow that if released into a community in which there were no children, or where he was supervised all the time, or where because of some physical incapacity or restriction he was unable to contact children, would he still be a serious risk to the community?
It follows that in determining whether [the appellant] is still a serious danger to the community I am not prevented from taking into account the likelihood or possibility that at the conclusion of the sentence application may be made to a court for orders that [the appellant] either be under supervision or detained in custody. As to the former, it is common knowledge that the supervision of high risk sex offenders inevitably involves detention in Corella Place and only supervised access to the general community.[33]