R v Broadwater[1997] QDC 47

CRIMINAL JURISDICTION

JUDGE ROBERTSON

THE QUEEN

v.

DENNIS WAYNE BROADWATER

IPSWICH

DATE 04/04/97

SENTENCE

HIS HONOUR: I will give my reasons firstly in relation to the Crown application for an indefinite sentence under part 10 of the Penalties and Sentences Act.

The prisoner was convicted by a jury of a number of offences on 20 August 1996 after a six day trial. He had pleaded guilty on the first day of the trial to one count of indecent dealing. After the jury's verdict, the Crown made application for the imposition of an indefinite sentence pursuant to part 10 of the Penalties and Sentences Act. The sentence hearing was adjourned to a date to be fixed. The matter has taken until today to be ready to proceed and, in my view, it is important that the reasons for the long delay be publicly stated. Delay in these circumstances is highly undesirable as the prisoner, the victim and her family are left in limbo not knowing the final outcome.

The application made by the Crown brings into play part 10 of the Penalties and Sentences Act. The consequences to a prisoner of the imposition of an indefinite sentence are significant, indeed. These provisions constitute a legislative scheme which overcomes the principle of proportionality long recognised in the common law as an “entrenched sentencing principle,” (R v Hoare (1988-1989) 167 CLR 348 at 365). Although the principle of proportionality is not taken up in terms in the Penalties and Sentences Act, it has always been applied by the Courts in Queensland, both before and since the enactment of that legislation. The scheme in part 10 is of a type contemplated by Deane J in his judgment of The Queen v Veen (No 2) 164 CLR 465 at 495.

If a Court imposes an indefinite sentence, the offender cannot even apply to have the sentence reviewed until he or she has served one half of the nominal sentence. The nominal sentence is defined as a sentence that the Court would have imposed had it not imposed an indefinite sentence. Thus an offender who has been given an indefinite sentence and nominal sentence of, say, 20 years could not apply to review the sentence until he or she had served 10 years of that sentence. Thus all the regimes of parole and other re-integration schemes contemplated by the Corrective Services Act (1988) would be denied such an offender until the indefinite sentence order was successfully reviewed.

I was therefore surprised when the Crown initially made its application it did so only on the basis of the prisoner's previous criminal history and did not seek an order for pre-sentence assessment. Because of my concern, I arranged for the matter to be listed on 4 October 1996 and I raised my concerns then with counsel. I regarded some psychiatric assessment of the prisoner as essential to any determination of the Crown's application. The Crown thereupon applied for pre-sentence reports, and orders were made on that day and the sentence was listed for 6 December 1996. It was anticipated that the reports would be available by that date.

Dr Alcorn, who is a visiting psychiatrist at the Community Forensic Mental Health Service, was charged with the preparation of the report. In the course of preparing his report, he concluded that it was necessary that a complete assessment should be undertaken by a clinical neuropsychologist and Ms Sharon Leicht, a senior clinical and forensic psychologist, was engaged for that purpose. It became apparent that the reports would not be available by the due date and reluctantly I was again compelled to adjourn the further hearing of the matter to a date to be fixed. To appreciate the extent of the assessments undertaken by both Dr Alcorn and the psychologist, I need only refer to the assessments and tests done by Ms Leicht which involved 10 two-hour sessions from 10 December ‘96 to 26 March ‘97.

Another matter that has persuaded me that delay was necessary concerns the decision of The Queen v Robert Anthony Wilson, (unreported judgment of Fryberg J 1 August 1996.) His Honour, on that day, imposed an indefinite sentence on Wilson and an appeal was lodged and has been heard and, indeed, was heard by the Court of Appeal last year. As this legislation is extremely difficult, confusing and novel, it seemed desirable to await the judgment of the Court which, in terms of interpretation and principle, would have been binding on me. Unfortunately, the Court of Appeal has not yet delivered its judgment and it seemed to me, in the interests of justice, to delay further was inappropriate.

I have been greatly assisted by written submissions prior to today's hearing delivered by both counsel, both of whom are experienced criminal advocates. The submissions have been made exhibits. There is no dispute that the power to impose an indefinite sentence is enlivened in this particular matter by virtue of the accused's conviction for rape, which is clearly a violent offence as defined by section 162. The remaining offences of which the prisoner has been convicted do not in my judgment satisfy the definition of “violent offence” set out in section 162. Although count 1 carries a maximum term of life imprisonment, it cannot be said on the evidence that, in fact, the offence involved the use or attempted use of violence against the person of the child. The Crown did not submit otherwise.

I make it clear, therefore, that the Crown's application, relates only to count 2, the conviction for rape. It will be necessary for me to sentence the prisoner in the ordinary way for the other offences, whatever the result of the Crown's application.

The critical section is section 163:

Both counsel submit that the relevant time for determining whether the prisoner is a serious danger to the community is at the time of the sentencing hearing and not at some time in the future. This was the approach taken by Mr Justice Fryberg in Wilson, relying upon the judgment of the Victorian Court of Appeal in The Queen v Carr (1995) 84 ACR 409. Although neither decision binds me, both are highly persuasive and as a matter of logic the section probably does not permit any other interpretation.

I must admit, however, to some reservations because of the consequences of making such an order to which I have earlier referred. No doubt the legislation (which seems to be in almost identical terms to the Victorian legislation discussed in Carr), was deliberately drafted in such a way because of the great difficulty attached to any assessment of future dangerousness. Nevertheless, a consequence of the order is that the accused must serve half of the nominal sentence before an application to review the sentence can be made. The wording of section 163(4)(d) and (e) does suggest some future assessment of risk.

It does seem to me that an indefinite sentence, having regard to the matters to which I must consider pursuant to section 163(3) and (4) should only be imposed, to adopt the words of Mr Farr in his written submissions, “in the most exceptional and compelling of circumstances.”

As a matter of principle, I consider that I should approach the determination in such a way because of the stark and extraordinary nature of such a punishment. Although dealing with a different issue and a different scheme, this approach seems to derive support from the decision of the Victorian Court of Appeal in The Queen v Connell (1996) 1 VR 436.

The use of the word “may” in section 163(1) indicates that the power to impose an indefinite sentence may be exercised or not exercised in my discretion. The use of the word “must” in sections 163(3) and (4), obliges a Court to have regard to the matters set out in determining how the discretion is to be exercised. (See the discussion of the Court of Appeal as to the use of these words in other sections in the Penalties and Sentences Act in The Queen v Holcroft CA 245 of 1986, (unreported judgment of the Court appeal delivered 29 November 1996)).

I intend to deal with the matters raised in sub-section (3) and (4) in order. Section 163(3)(a) does not apply. The matters raised in 163(3)(b)(i) and (ii) are to some extent replicated in section 163(4)(a), (b) and (c). Why it was necessary to draft the sub-sections in such a confusing manner is beyond me. I must, however, do my best to interpret and apply the law as it is set out.

As I apprehend the submissions of Mr Farr, he does not demur from Mr Clark's submission for the Crown that the offence of rape in the circumstances was both severe and exceptional. The offence was particularly brutal and sadistic, causing grave injury to the child's genitalia, and the rape of a child so young is exceptional from any point of view.

The Crown submits that there are special circumstances because of the extraordinary parallel between the circumstances of the offence of rape and those of the prisoner's conviction for grievous bodily harm in 1989.

The transcript of the prisoner's trial before Mr Justice Dowsett is an exhibit. The prisoner was acquitted of rape of the complainant child who was a little girl aged four and a half years. At that time, sections 21A and 93A of the Evidence Act were not in force and, not surprisingly, the child was able to recall very little of what had occurred at the time of the trial.

The prisoner had pleaded guilty to grievous bodily harm at the start of the trial and had admitted to inserting his fingers into the child's vagina causing her to bleed. In his trial for rape in 1996, he again denied intercourse and told the jury that he had forcefully inserted his fingers into the child's vagina, causing her to scream in pain, and by implication, causing the dreadful injuries later observed by Dr Walker.

I note that in his extensive interviews with the psychologist, the prisoner has now retreated from his own sworn testimony to this effect, and has revived the spectre of some unknown white man as being the perpetrator.

On both occasions the little girl was in the care of the prisoner; on the first occasion with the consent of the mother and on this occasion without consent. The injuries suffered by both children were severe and strikingly similar. The prisoner was intoxicated to some extent on both occasions. On both occasions, he attempted to minimise his own conduct immediately afterwards. In the 1989 matter, he attempted to explain the blood on him by reference to other people who he said had bashed him. In the trial before me, the prisoner raised the presence of some unknown white man as being responsible. In his interview with the psychologists, he has obviously built upon that earlier lie and exaggerated the story further to minimise his own conduct.

In light of the extraordinary parallel between the circumstances of the offence of rape and the earlier offence of grievous bodily harm, I am satisfied that there are special circumstances in this case.

In considering the Crown's application and bearing in mind that it bears the onus of proving that the prisoner is a serious danger to the community to a high degree of probability, the most difficult area is the assessment of the psychiatric and psychological reports to which I have earlier referred and to which I must have regard (s. 163(4)(c)).

Doctor Alcorn and Ms Leicht have had access to an extraordinary amount of material referred to in their reports, which relates to the prisoner's various Court appearances, his custodial sentences, and earlier psychiatric assessments for parole purposes.

Dr Alcorn, in an extremely comprehensive report, and in his evidence today, expresses various opinions which impact on the issues raised by the Crown's application. He assesses the prisoner as satisfying the diagnosis of a number of conditions, including a major depressive disorder and alcohol dependence. Both conditions, he describes as being presently in remission. He assesses the prisoner as having a narcissistic border line and anti-social personality type, an assessment borne out to some extent by the battery of psychological tests undertaken by Ms Leicht, and borne out by my own careful observations of him during his testimony in the two trials that have been conducted before me.

Both Dr Alcorn and Ms Leicht comment on the prisoner's ambivalent attitude towards females. Dr Alcorn, in his report at page 16 says this:

The common theme throughout the reports and in Dr Alcorn's evidence today and, indeed, in the commission of the offences is the involvement of alcohol. His alcohol dependence is in remission now because he has been in custody since September of 1995. It is clear, in my view, that alcohol consumption has played a role in all of the serious offences committed by the prisoner. It is also clear that while in the community it is highly likely that he will abuse alcohol. Dr Alcorn, not surprisingly, describes him as high risk.

In the custodial setting, the report of Mr Morris, senior community correctional officer, indicates that the prisoner behaves appropriately and uses his time constructively. When he was released on parole on 19 November 1993, he initially managed his parole satisfactorily, although on occasions he missed appointments with the drug and alcohol counsellor. On two occasions he breached the terms of his parole by the commission of offences.

On each occasion, alcohol was involved and on each occasion he was warned. It is clear on the material before me that leading up to the commission of the offence of rape on his 15-year-old neighbour on 24 July 1995, he was extensively abusing alcohol. A number of stressors, including a break-up with a girlfriend, also played a part.

At the time of sentencing for the offence of rape of the 15 year old on 1 April 1996, Ms Pope, the prisoner's community correction officer during his parole, told me that he had been resisting treatment and not co-operating. This pattern continued after he was granted bail for the offence of rape, and the offences on 19 September 1995 followed.

Mr Clark in his submission argued that some of the evidence in the trial before Mr Justice Dowsett suggests that he was not affected by alcohol at the time of the commission of the offence. It is clear, however, from His Honour's sentencing remarks that he took the view that he must have been to some extent affected by liquor, but he was not satisfied that he was drunk at the time.

In my view, considering the evidence as a whole, the prisoner is unable to control his alcohol use whilst in the community for any period of time, and whilst intoxicated, he does present as a very significant risk of re-offending in a like manner.

The difficulty I have on the evidence is that there is no acceptable and cogent evidence that, absent alcohol, the accused is a serious danger to the community. Dr Alcorn's evidence in cross-examination this morning is a stark indicator of that observation.

It is clear that he demonstrates minimal empathy for the victims of his crimes and to adopt Dr Alcorn's personality assessment: “...indicates long-standing difficulty with self-mastery of feelings and aggression and disturbed interpersonal relationships.” He does not suffer from any psychotic illness nor does he suffer from any significant organic disturbance as a result of alcohol abuse or otherwise.

The psychologists opinion at paragraph 15.3 is stated thus:

I have therefore concluded in light of the expert evidence to which I have referred, that at the present time, given that the accused is in custody and alcohol free, the Crown have not satisfied me to a high degree of probability that he is a serious danger to the community.

In so concluding, I have taken into account the detailed accounts of his background set out in various exhibits and the details of the offences set out in the transcripts. I have also considered the matters referred to in section 163(4)(d) and (e). In my view, these matters can be appropriately addressed by the imposition of a sentence proportionate to the circumstances of the offence.

Would you stand up, please? Dennis Wayne Broadwater, you were convicted last August by a jury of supplying a six year old child with alcohol with the intent to rape her, of raping her and causing her grievous bodily harm, and three counts of indecently dealing with her.

At the commencement of the trial you pleaded guilty to one count of indecent dealing. The Crown case against you, in my view, was overwhelming and the jury verdicts reflect this observation. Your transparent attempt to deceive the jury by pleading guilty to one count and denying the others has understandably failed. You continue in recent contact with experts to minimise your conduct. Your plea of guilty can in no way be seen as a reflection of remorse. Indeed, you have throughout, and still do today, show a callus disregard for what you have done to this little girl. The way in which you described to the jury what you say you did to the child was' chilling in its lack of empathy and human feeling.

The offences are, in my view, of the very worst kind imaginable. I have the misfortune to see many victims of sexual abuse give evidence before juries, as do other Judges of this Court. I can tell you this, Broadwater, for as long as I live I will not forget the face of that little girl.

Perhaps it is because we could see her pretty face so clearly on the television monitor. Perhaps it is because she is such a typical little girl and her face is the face of innocence. Innocence that you defiled and degraded by your terrible conduct. By your actions you have struck an evil blow against a basic tenet of our community - that our children are to be protected and nurtured, not abused, degraded and defiled.

Your criminal history is a powerful testament to your true nature. The incident in 1988 is almost a replica of what you did to this child in 1995. You were released on parole in 1993 and one and a half years later you committed rape on a 15 year old neighbour. You were released on bail for that offence, undoubtedly because the Magistrate was not told that your earlier conviction for grievous bodily harm was of a sexual nature. Indeed, if the provisions of the Evidence Act introduced in 1989, which enabled the child before me to be treated as a special witness were in place in 1988, you may have been convicted of rape then. Therefore, when you committed these evil acts you were on parole for an offence of a strikingly similar nature and on bail for rape.

When drunk, Broadwater, or under the influence of liquor you are without doubt a dangerous sexual predator particularly towards young females. Despite difficulties in your childhood which are canvassed in great detail in the various reports, I have had the opportunity of seeing a number of your siblings give evidence in both trials and notwithstanding their similar roots they seem to be responsible members of the community.

You are obviously intelligent, indeed of above average intelligence. You are certainly quite cunning, a factor in my view which compounds your dangerousness.

By your actions you have undoubtedly seriously compromised this child's social and sexual development. It is probably too early at this stage to be sure to what extent. She will have to live for the rest of her live with the effects of your criminal acts. You have also brought untold suffering to other people. Mrs Tilbrook, the child's foster mother at the time, is clearly a deeply troubled and burdened woman. I suspect she feels in some way responsible, which she is not, but it was obvious to me from her responses in the witness box that she is suffering greatly as a result of what you have done.

In my view there are no redeeming features and there is no basis for mercy. There is no way you can be prevented from drinking when you are in the community. I am sure that the authorities in the future will approach any application for community based release of you with great caution.

In relation to count 1, the administering of alcohol with intent to rape, I sentence you to imprisonment for 10 years. In relation to count 3, the grievous bodily harm, I sentence you to imprisonment for 12 years. In relation to count 6, the indecent dealing to which you pleaded guilty, I sentence you to imprisonment for eight years. In relation to counts 5, 7 and 8, I sentence you in relation to each to five years imprisonment. I order that all those sentences be served concurrently with each other, that is a head sentence in relation to those counts of 12 years, but I order that that sentence be served cumulatively upon the sentence imposed on 1 April 1996 for rape.

In relation to count 2, the charge of rape, having regard to the decisions of Breckenridge (1966) QdR 189 and Luke CA 342 of 1986, I sentence you to life imprisonment.