Attorney-General for the State of Queensland v Swinnerton
[2004] QDC 274
To print this judgment please return to the case and click on the PDF icon
next to the
case name. For court use, a full PDF copy is required or preferred.
Exit Distraction Free Reading Mode
Please Note: You are about to print a copy of the onscreen
version of
this judgment. For court use, a full PDF copy of the judgment is required or preferred. Please
return to
the case for PDF printing options.
- Unreported Judgment
- Attorney-General for the State of Queensland v Swinnerton[2004] QDC 274
- Add to List
Attorney-General for the State of Queensland v Swinnerton[2004] QDC 274
Attorney-General for the State of Queensland v Swinnerton[2004] QDC 274
DISTRICT COURT OF QUEENSLAND |
CITATION: Attorney-General for the State of Queensland v Swinnerton [2004] QDC 274
PARTIES:
ATTORNEY-GENERAL FOR THE STATE OF QUEENSLAND | Applicant |
v
BENJAMIN ROBERT SWINNERTON | Respondent |
FILE NO/S: BD1218/2004
DIVISION:
PROCEEDING: Originating application
ORIGINATING COURT: District Court, Brisbane
DELIVERED ON: 29 June 2004
DELIVERED AT: Brisbane
HEARING DATE: 29 June 2004
JUDGE: McGill DCJ
ORDER: Application dismissed.
CATCHWORDS:
CRIMINAL LAW - Sexual Offences - imposition of requirement for reporting name and address to police after release - requirements for making order.
Criminal Law Amendment Act 1945 s 19.
R v C [2002] QCA 156 - distinguished.
COUNSEL: | M Moloney for the applicant No appearance for the respondent. |
SOLICITORS: | Crown solicitor for the applicant The respondent was not represented. |
DISTRICT COURT | No BD1218 of 2004 |
CIVIL JURISDICTION
JUDGE McGILL SC
ATTORNEY-GENERAL FOR THE STATE OF QUEENSLAND | Applicant |
and
BENJAMIN ROBERT SWINNERTON | Respondent |
BRISBANE
..DATE 29/06/2004
ORDER
HIS HONOUR: This is an application for an order under section 19 of the Criminal Law Amendment Act 1945. That section provides that where a person has been convicted on indictment of an offence of a sexual nature committed in relation to a child under 16 years then the Court of trial may make a reporting order against the offender.
By subsection 2 an order shall not be made under subsection 1 unless the Court is satisfied a risk exists that the offender will thereafter commit any further offence of a sexual nature upon or in relation to a child under the age of 16 years.
The respondent was convicted on indictment of an offence of a sexual nature, namely rape, committed in relation to a child under the age of 16 years. The child was a boy 13 years of age at the time of the offence.
The circumstances were that he had been doing some gardening for the respondent and at a time when the respondent was affected by alcohol he took the child into the house and pulled his pants down and forced the child to perform oral sex on him and then performed some oral sex on the child. There was an attempt at digital penetration of the anus.
The child complained promptly. The respondent pleaded guilty on an ex officio indictment. He was sentenced to a term of imprisonment with a recommendation for early parole which does not appear to have been acted upon.
The appeal to the Court of Appeal was dismissed. There is nothing in the material to suggest that any consideration was given to making an order under this section at the time of the sentencing or on the appeal.
The material indicates that there was a presentence report obtained by the sentencing Judge and that included a psychological report, but that is not the material before me, which seems to me to be unsatisfactory.
I should say that I therefore cannot act on anything which might have been said although I notice there was some comment about the risk of reoffending on the part of the sentencing Judge. It may be, of course, that there was simply the usual risk of re-offending in the case of any sexual offence, although it may be said that this offender was, I think, 65 at the time that he was sentenced and he had no convictions for previous sexual offences. He had previously been married and had two adult children.
The material indicates that notwithstanding the recommendation of the sentencing Judge, no program for treatment of sexual offenders was offered to the respondent. He applied for participation in such a program, but apparently there were circumstances which were regarded as making him unsuitable for that. They appear, however, to have been largely arbitrary, that is, that the victim was the same sex as the offender, that there was some level of coercion and that the victim was somebody who wasn't a family member of the offender.
Presumably this was in order to fit the offender profile for which the particular treatment had been designed, and it may well be that he was correctly assessed as being unsuitable for that particular program, but there is nothing in that assessment to suggest that the explanation is not simply that he ought to have been offered some different program. The situation is not one where as a result of participation in a program his participation suggested a particular risk of re-offending.
The section refers to a Court being satisfied that a risk exists that the offender will thereafter commit any further offence of a sexual nature upon or in relation to a child under the age of 16. The section previously referred to a substantial risk and there was some reference to that in the decision of R v. C [2002] QCA 156.
The section has subsequently been amended and I have not been referred to any authority in relation to the meaning of the section in its current form. However, in circumstances where the Court is given a discretion as to whether or not to make the order, and in circumstances where it is a requirement before the order can be made that a risk exists of reoffending, then presumably the Legislature contemplated that there should be some particular reason why an identifiable risk for a particular offender existed over and above the ordinary risk of re-offending which might be thought to apply in the case of any offender or, indeed, any sexual offender.
There are two further matters to which I should refer in relation to the evidence. One was the evidence of a psychologist who has been a psychologist in private practice since 1997. He has since then, and in particular apparently during 2003, had had some experience in relation to the assessment of prisoners, but not very much, and it seems that such experience as he has obtained has mostly been in other areas.
He prepared a report in July 2003. He expresses the conclusion that the respondent presents a moderate risk of recidivism. However, this seems to be based in part on the fact that he has not been able to access a sex offender program and has little opportunity to develop the awareness and skills required to manage potential situations in which he could find himself alone and inebriated with a younger person. He does, however, indicate in the course of the report that the response of the respondent was that he was proposing to avoid getting himself in a situation where he was alone and inebriated with a younger person.
Now, it may well be that more sophisticated management than that may be appropriate but, in circumstances where he is not without some basic and, one would think if complied with, effective method of avoiding that situation from arising, the fact that he has not developed a more subtle understanding of the difficulty as a result of not having the benefit of a sexual offender program during incarceration does not seem to me to provide much justification for concluding that there is any particular risk of recidivism as a result. I should say that there is nothing in the report which suggests any particular risk of recidivism to me.
The application is not supported by the expert opinion of a psychiatrist, which would carry, in my view, a good deal more weight than the opinion of a psychologist.
There is also material from a counsellor, the counsellor who interviewed the respondent in relation to the participation in the course, to which I have referred earlier. He also refers to an incident where there was another prisoner who was complaining of some sexual interest in him by the respondent. Presumably, the prisoner was over 16 and therefore this might not be regarded as an indication of further sexual interest in children, but perhaps other sexual interest of a different nature. It is not something which I regard as indicating a particular risk of re-offending against children.
There is nothing in the material which persuades me that any particular risk exists in the case of this offender that he will commit any further offence of a sexual nature upon or in relation to a child under the age of 16. For that reason, the application is dismissed.
-----