R v Eades[2006] QDC 171

[2006] QDC 171

DISTRICT COURT

CRIMINAL JURISDICTION

JUDGE ROBERTSON

THE QUEEN

v.

RAYMOND BARRY EADES

MAROOCHYDORE

DATE 19/05/2006

ORDER

HIS HONOUR:  On the 20th of December 2001 the respondent was sentenced by me to an indefinite sentence for two offences of sodomy of a child for which I imposed nominal sentences of 10 years for each offence. As required by the Act the Director applied on the 28th of October 2005 for a review of the indefinite sentence and on the return date of the application,  the 5th of December 2005, I ordered a number of reports which are now in evidence.

I am told by Mr Copley that this is the very first application to review an indefinite sentence under part 10 of the Penalties and Sentencing Act. The only issue on a review of an indefinite sentence is whether or not I am satisfied that the respondent is still a serious danger to the community: section 173(1). Although it is not clear in the Act I agree with Mr Copley and Mr Reid that the Director has the onus of satisfying me that the respondent remains a serious danger to the community and the standard of proof is governed by section 170.

The Director's application is supported by a number of affidavits of Sharon Munday, to one of which is exhibited a psychological report under the hand of Mary Mackenzie from Psychologist Operations, Wolston Correctional Centre. As a result of the orders made by me on the 5th of December 2005 I have now before me a comprehensive psychological report under the hand of Linda Bennett dated the 6th of March 2006. Ms Bennett is a psychologist with specialised experienced in the assessment of male offenders convicted of sexual and violent offences. Her report reviews the many reports and assessments on the respondent's prison file including assessments done since the indefinite sentence was imposed. Annexed to her report is a comprehensive Sexual Offender Program Assessment dated the 6th of February 2006 undertaken by Robert Wood of Wolston Correctional Centre.

I also have a very comprehensive report from Professor Barry Nurcombe who is presently Emeritus Professor of psychiatry at Vanderbilt University and the University of Queensland. He is a highly qualified and experienced clinician with extensive experience in forensic psychiatry and he has prepared a number of reports for applications to the Supreme Court pursuant to the Dangerous Prisoners (Sexual Offenders) Act 2003.

The respondent does not seek to challenge any of the conclusions in these reports and none of these professionals have been required for cross-examination.

Since I imposed the sentence, the High Court has specifically considered the imposition of indefinite sentences under part 10 of the Act in Buckley v Queen [2006] 80 ALJR 605. In that case, the appeal of the prisoner Buckley, who had been sentenced to an indefinite sentence, was allowed on the basis of significant factual errors made by the sentencing Judge which, in the unanimous opinion of the members of the High Court, ought to have led to all members of the Court of Appeal considering the matter afresh. One member of the Court of Appeal, Holmes J, had found that errors had occurred and she did reconsider the matter but concluded nevertheless that the indefinite sentence should be maintained. The other two members of the Court did not agree that factual errors had been made and therefore did not consider the matter afresh.

Issues of that kind do not arise here. The respondent did not appeal against the sentence and it is not suggested now that I made any mistakes of fact or law at that time. I agree with Mr Copley and Mr Reid that in determining the issue identified in section 173(1) the principles referred to by the various members of the Court in Buckley should be applied. Indeed, I was conscious of similar statements of principle made by the High Court in relation to comparable provisions in other States at the time I imposed the original sentence.

In this regard I made reference to Chester v Queen (1988) 165 CLR 611 at 618 - 619 and McGarry v Queen (2001) 207 CLR 121 which had then recently been decided.

Although I am not considering whether an indefinite sentence should be imposed now, the same fundamental principles arise on a review such as this. As Mr Copley notes, the phrase, "a serious danger to the community" is not defined in the Act, but in determining this question on an application for the imposition of an indefinite sentence the Court must have regard to the matters set out in 163(4). It follows that on a review I am still required to consider the section 163(4) matters and whether or not the protection of the community could be met by a finite sentence at this stage and it is only if I conclude that it would not, that I can proceed to refuse and make the orders contemplated in section 173(1) so that the indefinite sentence continues in force.

The evidence before me establishes that the respondent, who is now 54, has an appalling criminal history of sexual offending against children dating back to when he was 15 involving 10 children, male and female from ages six to 15, who has at no time undertaken any treatment or attended any of the programs conducted within Queensland prisons designed to deal with his serious sexual deviancy.

At the time I imposed the indefinite sentence on the 20th of December 2001 I noted, "I am told today that he has enrolled in the Sexual Offenders Introduction program and the Sexual Offenders Treatment program. From my own knowledge, particularly during the time that I was deputy president of the Queensland Community Corrections Board in the early nineties I am aware that programs of this nature, some very intensive involving over a year's therapy, have operated throughout the nineties in Queensland prisons."

In fact, it now appears that he did apply to become involved in the then operating Intensive Sexual Offenders Treatment program. So much is borne out by an important passage at page 13 of Mr Wood's assessment report which Mr Reid brought to my attention.

"A memorandum dated the 19th of February 2002 from Ms               Eli Skye, co-ordinator of the Sexual Offenders               Treatment program, noted that offender Eades' Sexual               Offender Treatment referral from psychologist, Mr               Troy Winterflood, was received at the SOTP at               Wolston Correctional Centre on the 18th of February               2002. At that time it was noted that the offender               would be wait-listed for participation in the SOTP.

• To date during his current period of imprisonment,               offender Eades has not been offered a place on any               sexual offending program.

• On the basis of all available file and supporting               interview information, it was determined that to               this date, through his correctional history the               offender has not engaged in any interventions to               address the criminogenic needs associated with his               sexual offending behaviour."

Not surprisingly, Mr Reid in his submission, focused on this passage.

Because of its importance, I asked Mr Copley to check with Corrective Services to see if, in fact, the respondent had been wait-listed and, if so, why he had not been offered a place in the intervening four years or so.

Mr Copley made these inquiries and it is quite correct what Mr Wood says, and the reasons advanced by the Department are that the respondent himself has not asked again until recently to be placed on one of these programs; and that, in any event, within the Department, these programs, as a matter of policy, are regarded as being more effective when conducted towards the end of a prisoner's term of imprisonment.

As Mr Copley observed during his oral submission, there is a certain Catch 22 flavour in that aspect of the explanation. In any event, it does not make any sense in relation to an indefinite sentence because, unless a Court reviews the sentence, it has no finite end.

There is no doubt that the expert reports before me from Professor Nurcombe and the psychologist, Ms Bennett, refer to his failure to address his offending behaviour as a factor that bears on their assessments of the level of risk he would pose if released on a finite sentence.

I infer that one of the reasons that the respondent has not been placed on a sexual offender's treatment program, since he applied in 2002, i.e. over four years ago, is that there are not sufficient resources available to the Department to enable it to provide access to programs in a timely way for all serious sexual offenders.

One of the factors that may come into play (on the evidence I cannot say) is that there has been a significant increase in penalties for sex offending over the last decade, and fewer offenders are being released on parole and, of course, in relation to the most serious sexual offenders, a number are now being detained in prison after the exploration of finite sentences, pursuant to orders made under the Dangerous Prisoners (Sexual Offenders) Acts 2003.

In this context, that is, where this respondent has been wait-listed on but not offered a place in a program designed to assist him to deal with his sexual deviancy with the aim of reducing the risk to the community if he released, Mr Copley helpfully referred me to some observations of Justice McKenzie in Francis ex parte Attorney-General [2005] QSC 381 where his Honour was reviewing an earlier decision to impose a preventative detention order on the prisoner.

Although made in the context of a review under the Dangerous Prisoners (Sexual Offenders) Act and not a review under Part 10 of the Penalties and Sentencing Act, his Honour's remarks are equally apposite to the unfortunate situation that has occurred in this case. I have respectfully adapted his remarks at paragraphs 33 and 137 to the case here, and I quote: 

"Undue protraction of incarceration of the person because administrative procedures either do not exist to enable him to rehabilitate sufficiently to be released or to prove that the actual risk in his case is not unacceptable or because the administrative procedures unduly delay such rehabilitation or proof is hard to convincingly justify …  It is not intended to lock up people and throw away the key if they may have prospects of rehabilitation to an extent where they can be released given the opportunity, but are denied that opportunity due to administrative or procedural inadequacies."

Then 137:

"If the Department provides no mean of effectively staging release of this category of prisoner back into the community, it may be that decisions about whether to maintain the indefinite sentence beyond the finite term of imprisonment imposed when the person is originally sentenced, will take that into account. It will have to be put into the balance along with the fact that an indefinite sentence is an extraordinary sanction. The consequences that flow from it by reason that it allows potentially an open-ended deprivation of liberty and the inherent element of uncertainty in predicting further offending … "

Mr Copley informed me today, based on his instructions from the Department of Corrective Services, that the respondent is now, in fact, enrolled in the preparatory intervention and high intensity sexual offending program to commence on the 24th of May 2006, as was recommended by Mr Wood on the 6th of February 2006.

It was explained to me that he had not been enrolled in the intervening period because of difficulties in relation to the transfer of prisoners between correctional centres.

I must confess I do not know what that means, but the very fact that he is now enrolled does tend to fly in the face of one of the Department's reasons for not placing him on a program for, and that was because he was not towards the end of the sentence that he was serving.

I will say it as clearly and fairly as I can and, bearing in mind that the Department of Corrective Services is not a party to these proceedings, it is essential that extraordinary forms of punishment, such as an indefinite sentence, are supported by programs designed to help serious offenders like this man, address his offending behaviour to reduce his risk to the community if released.

Indeed, the High Court in Buckley at paragraph 43 specifically referred to the possibility of treatment in prison as being a matter of importance in assessing the protective potential of an ordinary proportionate finite sentence.

With that in mind, I now turn to the uncontested evidence before me bearing upon the central issue for me on a review such as this.

Ms Bennett reviewed the pre-existing assessment material and professional reports relating to the respondent. As far as I can tell, she did not conduct a personal interview:

"6. Prisoner Eades is a 50 year old man who identifies as being of Aboriginal descent. He has a long history of sexual and non-sexual offending, with sexual convictions dating back from 1973 when he was aged 17 and extending over 28 years. His offences include sexual assaults of a predatory nature against predominantly male but also female children. He is currently incarcerated for an indefinite term on convictions for sexual offences for which he was sentenced in December 2001.

7. Whilst having formed and sustained sexual relations with adult women and fathered children of his own, prisoner Eades clearly manifests a deviate sexual arousal to children. His victims have ranged in age from six to 15 years. He has also demonstrated a propensity to target particularly vulnerable victims such as a runaways, the very young, and those who have intellectual delays and impairments.

8. Prisoner Eades has demonstrated preference for initiating a sexual offending cycle in the context of forming relationships with his victim's parents whereby he has offended against the children of friends, neighbours and female partners.  He evidently attempts to develop superficial relationships with his victims through befriending them and offering them inducements, such as cigarettes, to entice the children into situations where they are no longer under the supervision of protective adults. He contrives or waits for opportunities to be alone with his victims, such as offering to baby-sit, or requesting that the children accompany him on fishing trips, or help him with domestic tasks."

9. Prisoner Eades impresses as more opportunistic than impulsive, although he does appear to engage in prolonged planning of his offences. When alone with the children he may instigate a sexual assault by initiating discussions or queries of a sexual nature, or he may simply physically molest his victims, in silence, whilst using force or threats to prevent his victims from raising the alarm.

10. When he has been confronted with his abuse, Prisoner Eades has variously denied any wrong-doing; accused his victims of lying or claimed they consented. He is maintaining his innocence of the current offences, but has acknowledged, to varying degrees, his responsibility for previous convictions.

11. Whilst Prisoner Eades is not a particularly physically violent offender he does have convictions involving sexual penetration. He is liable to use forceful coercion and threats of harm to gain compliance from his victims, rather than bribes or more seductive forms of abuse. There is evidence of increasing severity in his sexual offending." 

She concludes at paragraph 22:

"Prisoner Eades represents an ongoing and high risk of sexual abuse to all children including his own. I believe this offender will always require close supervision to manage his risk to children, and should never be trusted to his recognisance." 

Professor Nurcombe reviewed all the material, including Ms Bennett's report, and interviewed the respondent for six hours. He conducted a whole raft of tests designed to assess his risk of re-offending, although he was not specifically requested to assess this by reference to the imposition of a finite sentence.

His diagnosis relevant to the issue before me is:

Axis 1: paedophilia, non-exclusive, involving pre-pubertal and pubertal minors of both sexes, but predominantly males, regressive in type.

Axis 2: antisocial personality disorder (psychopathic personality).

At paragraphs 86 and following, he says this:

"Apart from sexual offending, Mr Eades has not been a violent offender. His sexual offences occurred along with many non-violent property offences, predominantly car theft. The sexual offences involve fondling; oral sexual contact, and digital and penile vaginal and anal penetration involving pre-pubertal and pubertal males and females, predominantly males.

The offences were related to moods of bitterness, anger, and a need to take revenge for traumatic sexual experiences that occurred during his childhood. (It was done to me, so why shouldn’t I do it to them). The only physical harm likely to be suffered by his victims would be that associated with vaginal and/or anal penetration; however the psychological harm to victims is likely to be serious. It is unlikely that the violence involved in his sexual offending would escalate to life-threatening levels.

If he is released from prison sexual offending is likely to recur only after the offender has formed a relationship with a family or woman with dependant children. Warning signs that might signal sexual risk is imminent are moods associated with rejection, abandonment, loneliness and injustice. If sexual re-offending reoccurs it is likely to do so repeatedly over a period of time.

87. The offender has been sentenced on nine occasions for 19 sexual offences. At present the probability that he will re-offend sexually is too high for early release to be safe. It should be noted, however, that he has recently become more willing to deal with his denial and minimisation of offences. He is motivated to begin treatment in the high intensity sex offender treatment program.

88. Mr Eades' risk of re-offending is likely to be increased if he experiences rejection, loneliness, bitterness, and a sense of injustice. It is obvious that he should avoid contact with children. A satisfactory result with an adult female partner would be protective against re-offending. Whenever he is released it should be with the protection of a coordinated post-release plan involving a supervising officer; psychotherapist; community sex offender maintenance program and an overall plan coordinator.

89. Prior to release it is essential for Mr Eades to complete the introductory sex offender program. (Getting started preparative program), and the high intensity sex offender treatment program. His response to these programs will indicate whether the degree of risk of sexual re-offending, which is high at present, has been mitigated." 

On the basis of all the evidence before me, I am satisfied that the imposition of a finite sentence of 10 years will not sufficiently protect minors from serious sexual abuse by the respondent, and that he still remains a serious danger to the community.

Professor Nurcombe goes on to make some helpful observations about research findings relating to the effectiveness of psychological and cognitive behaviour therapy based programs (which I assume includes the program he is about to enter), on sexual offenders. He notes relevantly that the research indicates that if an offender drops out of a treatment program, after it commences, that is a risk factor predictive of re-offending.

It remains to be seen how this respondent responds to an intensive treatment program. He is now able to apply to review the indefinite sentence at any time, upon the Court granting him leave on the ground of exceptional circumstances, and in any event the sentence must be reviewed no more than two years from when the last review was made. No matter what happens the indefinite sentence will have to be reviewed at least twice again before the expiration of the nominal sentence.

These safeguards built into the Act are a sure sign that in providing for this extraordinary form of punishment, the Parliament of Queensland did not intend Courts to approach the sentencing of dangerous sex offenders on the basis that they should be locked up forever, with no hope of release and no hope of rehabilitation.