SUPREME COURT OF QUEENSLAND

1. WILLIAMS JA:   I agree that the application should be refused for the reasons stated by Chesterman J.

2. CHESTERMAN J: On 25 May 2000 the applicant pleaded guilty to 17 counts of sexual offences against children. On 9 June 2000 count 17 was amended to add an allegation that at the time of the offence the applicant was armed with an offensive weapon.  He was re-arraigned on the amended charge and again pleaded guilty. Some immaterial amendments were made to other charges. A further indictment was presented alleging that on 25 June 1999 the applicant unlawfully procured a child under the age of 16 to perform an indecent act.  He pleaded guilty to this charge as well. The applicant was sentenced on 7 June 2001.  The delay was to accommodate the making of an application by the Crown for a sentence of indefinite detention which was imposed upon the applicant in respect of count 16, a charge of sodomy.  

3. The offences to which the applicant pleaded guilty and the penalties imposed on him are:

4. The applicant seeks leave to appeal against the indefinite sentence imposed in respect of count 16 and seeks, instead, a term of 16 years imprisonment.

Part 10 of the Penalties and Sentences Act provides for the imposition of a sentence of imprisonment for an indefinite term.  A court may, on its own initiative or on application made by counsel for the prosecution, instead of imposing a fixed term of imprisonment, impose an indefinite sentence on an offender convicted of a violent offence, s 163(1).  A “violent offence” must be an indictable offence

“(i)that, in fact, involves the use of … violence against a person;  and

(ii)for which an offender may be sentenced to imprisonment for life …”, s 162.

Before an indefinite sentence may be imposed a court must be satisfied

“(b)that the offender is a serious danger to the community because of-

1. the offender’s antecedents, character, age, health or mental condition;  and

2. the severity of the violent offence;  and

3. any special circumstances”, s 163(3).

In determining whether the offender is a serious danger to the community a court is required to have regard to

“(a)whether the nature of the offence is exceptional;  and

2. the offender’s antecedents, age and character;  and

3. any medical, psychiatric, prison or other relevant report in relation to the offender;  and

4. the risk of serious physical harm to members of the community if an indefinite sentence were not imposed;  and

5. the need to protect members of the community from the risk mentioned in paragraph (d).”

These identified criteria do not limit the factors to which a court may have regard in determining whether to impose an indefinite sentence, s 163(5).

The onus is on the prosecution to prove “that an offender is a serious danger to the community”, s 169.   The “court may make a finding that an offender is a serious danger to the community only if it is satisfied (a) by acceptable, cogent evidence and (b) to a high degree of probability, that the evidence is of sufficient weight to justify the finding”, s 170.

If an indefinite sentence is imposed a court must state in its order the term of imprisonment (the “nominal sentence”) that it would have imposed had it not imposed an indefinite sentence.

5. The applicant has a significant criminal history. Of particular relevance is his conviction in the District Court of Brisbane on 21 February 1997 on 7 charges of indecent dealing with a child under the age of 12 with circumstances of aggravation. He was sentenced to a term of imprisonment of 40 months with a recommendation that he be eligible for parole after serving 10 months. The applicant did not satisfy the Corrective Services authorities that he was suitable for release on parole and remained in prison until his early release date on 28 November 1998. The offences related to two very young children, boys aged 3 and 4, who were friends and neighbours of the applicant’s own children. One of the boys complained to his father that the applicant had touched and sucked his penis. The same day the other boy made a similar complaint to his mother. Because of their very tender age the information they could give to the police was imprecise. The applicant was interviewed and provided substantial corroboration for the infants’ allegations. The essence of the charges was that Smith procured one of the boys to fondle his exposed genitals while he fondled the boy’s genitals. On some occasions he had the boy sit on his lap and touch his (the applicant’s) penis. On another occasion the applicant masturbated the boy and had the boy perform the same act on him. He applied cream to both their members. He sought to induce the child’s participation by giving him sweets. On two or three occasions the applicant removed the boy’s pants and sucked his penis. On at least one occasion the boy was distressed and cried.

6. The pattern of conduct with the other boy was much the same. On more than six occasions he touched the boy’s penis, sucked it and induced the boy to fondle his own penis. The duration of each incident was between 15 and 20 minutes and was persisted in to the point of ejaculation. At times the boy became upset and would cry. The applicant sought to console him with sweets.

7. The circumstances of the offences the subject of the present application are sufficiently described in the remarks of the sentencing judge.

“D was aged 10 years.  He was at a shopping centre at Woodridge with two other boys of similar ages.  (The applicant) started following the boys.  He spoke to D at a car park and persuaded him to ride down to the bottom level by telling him there were puppies down there.  An offence of indecent dealing was committed at that time.  D tried to cycle away but was caught.

The child D was then abducted from the car park by (the applicant) in his car.  D was driven to a recreation reserve several kilometres from the shopping centre.  Another offence of indecent dealing was committed during the drive.  At the reserve D was told to walk a short distance into the bush.  His hands were then bound with sticky tape.  The summary of facts proceeds as follows:-

• D protested that it was hurting, but the applicant kept on applying the sticky tape and told D he hoped it hurt.

• (The applicant) also tried to gag and blindfold D with a nappy.  D pulled the nappy off and started to try and bite through the sticky tape.  D was also yelling and crying.

• (The applicant’s) response was to put D on the ground and slap him across the face with an open hand five times.  D’s nose started to bleed as a result.  D continued to yell, cry and beg.

That assault is charged as a serious assault.  (The applicant) committed a further three offences of indecent treatment or attempted indecent treatment before ejaculating and returning D to a Hungry Jack’s outlet near the shopping centre from which he had been abducted.  The child was told not to tell anyone and was given $3.00.

The offences concerning A & B occurred eleven days later.  The boys were aged 10 and 8 years respectively.  They were riding their bikes along a bicycle track on their way home at about 11 am on a week day.  The older boy, A, needed to go to the toilet so they stopped at a toilet block.  (The applicant) was sitting on a seat nearby.  As the boys headed towards the toilets he followed them, saying he thought he had seen a puppy in the toilet block.

Inside the toilet block (the applicant) produced a knife and told the boys to remove their clothes and be quiet or he would kill them.  After the boys undressed he indecently dealt with them then committed sodomy on A while B was forced to watch.  (The applicant) used a lubricant to effect entry and sodomised A until he ejaculated.  Before he ejaculated he withdrew his penis at one stage and made A play with it, although the boy was crying.  After he had finished he left.”

8. While held in custody pending sentence the prison authorities censored the applicant’s mail. Four letters written by him contained passages which the sentencing judge rightly thought were significant. In a letter written in September 1999 by the applicant to a friend he said:

“. . . I don’t like this feeling I get it’s out of control I can’t stop how I feel about boys I want them continuous It’s a need I don’t seem to need anything but sex with boys I can’t work out what is wrong with me I feel sometimes I would be better of dead as I am so scared that I can’t control my sexual rage that takes over in my head.  I don’t feel like I am doing anything wrong yet I know I am but I can’t stop doing it . . . I see young men in this jail and I want to approach them but can’t.  Then I get a sense of wanting to just make them have sex with me by force and this scares me.  . . . I have been throwing up lately because I crave a boy.  I don’t care what colour age or anything . . .”

 In another letter written about the same time to another friend the applicant said:

“. . . I hope to get sentenced real soon.  I’m waiting on a shrink report.  I am doing the whole stuffed up life routine as I didn’t use it last time.”

9. Doctor Varghese, psychiatrist, examined the applicant on 19 February 2001 to prepare a report for use in connection with the application for the indefinite sentence.  He gave Dr Varghese a history of parental neglect, paternal sexual abuse and similar abuse at an orphanage where he was placed when about 10 years of age.  Between the ages of 15 and 24 he lived variously on the streets, with his mother, and independently in a caravan.  He had intermittent work.  He married at age 24 and fathered three children.  His marriage failed when he was convicted of the present offences.  It was his only heterosexual relationship.  He has had many homosexual ones. 

10. Doctor Varghese concluded:

“. . . (the applicant) suffers from a severe disorder of personality with narcissistic, dependent and anti-social features. In the context of this personality disorder there is also very significant sexual pathology.  It is clear that (the applicant’s) primary sexual orientation is homosexual even though he denies this.  While the homosexuality . . cannot be regarded as a disorder . . what is pathological is the preference for non- adult males, and what is particularly of concern is the apparent presence of a sadistic component involving bondage and infliction of pain, and the exercise of power.  . . . the Mental Health Act . . .  does not apply.   (The applicant) is not of unsound mind and . . . is fit for trial.

With respect to whether the (applicant) is a ‘serious danger to the community’ the following issues are relevant. 

• It appears . . . that (the applicant) may have been engaged in sexual offences other than the ones for which he has been charged and convicted.

• I note that (the applicant) gives a different account of the two recent incidents as against the reported facts of the case.  This demonstrates some lack of acceptance of responsibility . . . 

• Of particular concern in the homosexual paedophilia (is) the use of bondage, the threat with a knife, apparent enjoyment in the infliction of pain and fantasies of force in sexual relationships.”

11. The doctor continued:

“It is unlikely that (the applicant) would be voluntarily able to keep his dangerous sexual impulses in check.  I note that there is a very short period of time between his release from prison following his first imprisonment and the committing of the sexual assaults with violence.  It would have to be stated that he is likely to re-offend and moreover there is danger of escalation of the degree of violence.”

12. The applicant was also examined by Dr McCulloch a consulting psychologist at the request of Legal Aid Queensland. Dr McCulloch reported:

“. . . (the applicant’s) early life circumstances have been extremely unfavourable to his later achieving success across all aspects of his life.

His family’s serious individual and group dysfunction with their disengaged relationships have shaped (the applicant) into a life of seeking out, and therefore relating to “peers”, in the form of children who have reached a similar interpersonal and emotional developmental stage . . . (The applicant) . . . allegedly experienced not only physical abuse . . . he also reportedly experienced severe sexual molestation at an early age, over a protracted period of time . . .  Both of these types of events are seriously emotionally disturbing and debilitating . . . and typically set the scene for significantly dysfunctional (and often times criminal) behaviours . . . in the future .”

13. Doctor McCulloch also addressed the question whether the applicant poses a serious danger to the community. She thought:

“. . . (the applicant) has little, if any understanding of the motivations for his offending behaviour.  Thus, he has not addressed any of the issues which predispose him to offend.  . . . the letters . . . suggest that he has little motivation in seriously addressing the issues underpinning his offending behaviour. Instead, one receives the impression that the (applicant) rather enjoys his notoriety, suggesting that this also in some way sures up his ‘fragile ego’.  Alternatively, this literature implies that (he) experiences little remorse for his behaviour towards the victims of his offences, who are weaker people.

Additionally, because he is mixing with individuals with similar attitudes and propensities in . . . prison . . . he is likely to find his circumstances less threatening . . . and more reinforcing of his behaviour than . . . in a community setting.  In fact the (applicant) has reportedly experienced sexual/love relationships as a prisoner, so that the prison setting serves little as a deterrent in his altering his attitudes, beliefs and behaviours . . .

Thus I consider that at this point in time, (the applicant) presents a serious danger to the community.

. . . I am of the view that presently, (the applicant) poses an unacceptable risk of re-offending . . . and that in order for there to be greater confidence in his behaving in a pro-social manner, he requires an ongoing intensive therapeutic rehabilitation program, so as to develop attitudes and behaviours which satisfy . . . current standards and expectations of safety in the community.”

14. The first point taken by the applicant is that the sentencing judge applied the wrong test in concluding that an indefinite sentence was called for. His Honour said:

“. . . there is a substantial possibility that (the applicant) may not respond to therapeutic or other intervention and remain at risk of re-offending on his release under a fixed sentence” (R 79 L 59-60);  and

“. . . the critical questions . . . are . . . whether (the applicant) is a serious danger to the community including the risk of re-offending when released if a fixed sentence was imposed and the nature of any offence he might commit. . .” (R82 L20-40).

It is submitted that the proper test is that set out in s 163(4)(d) of the Penalties and Sentences Act, namely whether there was a “risk of serious physical harm to members of the community if an indefinite sentence were not imposed”.

15. Mr Devereaux’s point was that when speaking of the risk the applicant might pose to the community if he were released at the expiration of a fixed term of imprisonment his Honour referred to the “unacceptable risk (that he) will re-offend”, and “the risk of re-offending when released . . . and the nature of any offence he might commit when released”.

The submission is that his Honour addressed the risk of re-offending in general, and not the particular risk of the applicant committing further offences that would inflict serious physical harm on members of the community.  Chester v The Queen (1988) 165 CLR 611is authority for the proposition that it is only offences which will expose the community to a likelihood of violence or sexual depredation that will justify an order for indefinite detention.  The probability that offences of other kinds will be committed upon release is insufficient to justify such a drastic measure.

16. It should be noted that the sentencing judge expressly referred to the terms of the subsection. His Honour said (R70 L20-40):

“While the primary question is the offender’s dangerousness at the time of sentencing, the court is also required to have regard to the risk of serious harm to the community if an indefinite sentence was not imposed . . . That involves looking forward to the . . . release date and reaching a judgment as to the risk the offender poses to the community at that future time.”

His Honour then referred to Dr Varghese’s diagnosis and noted the opinion that the applicant is unlikely to be amenable to psychiatric treatment to overcome his offending propensities because of “the totality of the clinical situation and the severity of the disorder”.  His Honour also mentioned Dr Varghese’s opinion that it will be difficult to know whether the applicant had responded to appropriate treatment.  He then rehearsed Dr McCulloch’s opinion that the applicant’s prison setting is likely to reinforce his behaviour though there is a possibility of “successful therapeutic intervention”.  His Honour concluded:

“At the moment (the applicant) is living with individuals with attitudes and propensities sympathetic to paedophilia and incarceration alone is unlikely to bring about any significant change or insights into his offending behaviour.”

17. The judge noted that all the offences were committed on young boys and that the offences for which he had to sentence the applicant were committed within a few months of the applicant’s release from a lengthy term of imprisonment for similar misconduct. His Honour was satisfied that the applicant was a serious danger to the community because of the combination of his past sexual offences on young boys, the increasing violent elements of the present offences, in particular the use of restraints and a knife to abduct and restrain the children and the sadistic elements of the offences as well as the applicant’s current mental state and the difficulties involved in treatment. His Honour noted the obvious difficulty involved in predicting how the applicant might behave after a very lengthy period of imprisonment which will be imposed if an indefinite sentence were not awarded, remembered the medical opinion as to the difficulty of treatment and uncertainty of outcome and expressed the conclusion which his counsel challenges, namely that there was a substantial possibility that the applicant would remain at risk of re-offending on release from a fixed sentence.

18. I cannot detect any error in this process of reasoning which led to his Honour’s conclusion. The particular question which a court must address before imposing an indefinite sentence is whether the offender is a serious danger to the community. In determining that the court is to have regard to the factors set out in s 163(4) one of which is the “risk of serious physical harm to members of the community if an indefinite sentence (is) not imposed”. The learned judge addressed that very question.

19. The applicant relies upon Chester for the proposition that a probability that an offender will re-offend on release is not enough to justify an order for indefinite detention.  Two things may be said about Chester.  It predates Part 10 of the Penalties and Sentences Act which sets out a comprehensive legislative scheme for the imposition of such sentences.  Once the statutory preconditions are satisfied there is a discretion to impose an indefinite sentence which the comments in Chester cannot fetter.  The second point is that Chester was not convicted of offences involving personal violence and the High Court was concerned to limit such sentences where it was necessary to protect society from physical harm.  Part 10 does that.

20. I am satisfied there is no validity in the applicant’s point. The context of his Honour’s remarks about re-offending makes it clear that he was considering offences of the kind being dealt with, that is, violent sexual assaults and sodomitical attacks upon young boys. This is clear from the passage at R79 where, having spoken of the risk of re-offending the judge went on immediately to discuss the specialists’ opinion as to the efficacy of treatment that might be offered the applicant. This discussion makes sense only if one predicates that the judge was discussing the applicant’s propensity to violently molest young boys.

21. The applicant’s second point was that insufficient weight was given to his pleas of guilty. Although reference was made to them it is apparent from the sentence imposed that they are not reflected in any reduction in the nominal sentence or in the exercise of the discretion to impose the indefinite sentence. Counsel for the applicant very properly accepts that a plea of guilty does not necessarily preclude the imposition of a maximum sentence applicable. The comparable cases to which the court was referred would suggest that for conduct of the kind here in question the range of appropriate punishment is a term of imprisonment of between 14 years and life. The nominal sentence fixed is less than the maximum and cannot, in my opinion, be criticised. The appellant’s conduct was unspeakable. It involved a degree of planning and premeditation. The circumstances were rightly described by Mrs Clare as “chilling”. The applicant pursued innocent children relentlessly and removed them to secluded places where they were subdued by violence and threats of violence. The victim of count 16 was subjected to what can only be described as an atrocity.

22. With one exception a plea of guilty is irrelevant to the exercise of the discretion to impose an indefinite sentence, which has as its purpose not the punishment of the offender, but the protection of the community. Once the point is reached that preventative detention is necessary to safeguard the community it becomes immaterial to consider circumstances that effect the level of punishment that would otherwise be appropriate. A plea of guilty, may, of course, affect the nominal sentence that must be fixed.

23. The exception is where the plea of guilty can be seen to be an expression of genuine remorse which, if sufficiently compelling, either by itself or with other considerations might lead a sentencing court to conclude that there will not be such a risk of serious physical harm as to justify an indefinite sentence.

That was not the case here.  Although the pleas were put forward as indicating remorse the other material indicated that the applicant lacked empathy for his victims and any desire to change his behaviour.

24. Although the sentence is a heavy one and has serious consequences for the applicant the statutory preconditions for the imposition of the sentence were made out and no error has been demonstrated in the exercise of the discretion to impose it. The learned judge was rightly concerned that, in the future, children should not be put at risk of suffering as did the victims of the applicant’s last offences.

25. In my opinion the application should be refused.

26. MULLINS J: I agree that the application should be refused for the reasons stated by Chesterman J.