R v Smith[2008] QDC 261

• Exhibit 1 - Summary Behavioural Report - Lynley Milne dated 12 August 2008;
• Exhibit 2 - Specialist Summary Report - Robert Wood dated 6 August 2008;
• Exhibit 3 - Psychiatric Report - Dr Ken Arthur dated 15 August 2008;
• Exhibit 4 - Affidavit of Elizabeth Wall sworn 27 June 2008;

1. –Submissions to and sentencing remarks of Botting DCJ 21 February 1997 (relating to previous sexual offending);
2. –Sentencing remarks of Judge Nase dated 7 June 2001;
3. –Appeal decision R v Smith [2001] QCA 417;

• Exhibit 5 - Affidavit of Elizabeth Wall sworn 10 November 2008;

1. –Criminal history of Stuart McKay Smith;
2. –Report of Dr Frank Varghese dated 13th March 2001;
3. –Report of Dr Geoffrey Grantham dated 5 December 1996;
4. –Report of Dr Sue McCulloch dated 1 February 2001;
5. –Document entitled "Facts to be relied upon by Crown at sentence" - copy of the document tendered at sentence on 7 June 2001 as Exhibit 1 on those sentence proceedings;

• Exhibit 7 - R v Eades [2008] QDC 124;
• Exhibit 9 - Princess Alexandra Hospital - summary of attendances of Stuart McKay Smith;

• Exhibit 10 - Sexual Offending Program Assessment form - Ashley Phelan dated 20 February 2008;
• Exhibit 11 - Sexual Offending Programs - Individual Intervention Plan - P.Meyer, L.Minto, M.Thomson dated 3 July 2008;

1. [5]
   There are, in my view, significant inadequacies in the material placed before me in respect of this review, as well as a disturbing failure to place before me material likely to highly relevant to the consideration of the issues.  Although the Director of Public Prosecutions is, in effect, the conduit for the presentation of such material, the responsibility for the deficiencies in and lack of that material lies squarely at the feet of the Department of Corrective Services.
2. [6]
   Ultimately, counsel for the Director of Public Prosecutions and for Mr Smith have jointly agreed that this review can be decided without the necessity for cross-examination of relevant report writers, and without the necessity for a minute examination of the inadequacies of the material.  I take this opportunity, however, to stress that the detailed analyses undertaken by Mr Green (on behalf of Mr Smith) and the relevant criticisms contained at paragraphs 3.1-3.15, 4.1-4.16 and 5.1-5.26 of his submissions should be brought to the attention of the Acting Director of the Department of Corrective Services.  That analysis and those criticisms, although essentially untested in this litigation, raise serious systemic concerns in respect of reviews such as this one.
3. [7]
   There are further concerns which should also be set out clearly.  Mr Smith has been in custody since 29 June 1999.  As Exhibit 10 unsurprisingly concludes, Mr Smith should "Undertake the 'Getting Started: Preparatory Program' prior to consideration of his suitability to undertake the Crossroads: High Intensity Sexual Offending Program, given the offender's very high risk and need profile" (Exhibit 10 p. 16).  Mr Smith has now completed the "Getting Started: Preparatory Program" as of 25 June 2008, and is supported to undertake the Crossroads: High Intensity Sexual Offending Program (see Exhibit 1, p. 7).  It is utterly inexplicable, given the legislative time frame for this review, that the Department of Corrective Services has not seen fit to enable Mr Smith to complete the sexual offending program prior to this review, despite Mr Smith seeking to undertake such a program since 2002 (Exhibit 3, p. 15).  If there are other prisoners in a similar situation, then urgent steps should be taken immediately to rectify the problem.
4. [8]
   Another startlingly obvious issue is the complete lack of any material or reports in respect of Mr Smith's current mental health status and treatment.  There are "second-hand" reports contained in Exhibit 1 (p. 5) and Exhibit (pp 7-8, 22-23) which variously indicate that Mr Smith is diagnosed with, or may be suffering from, bipolar effective disorder, depression, and/or "episodic depressed mood and non-specific anxiety symptoms" (Exhibit 3 p. 22).  It appears Mr Smith is receiving both psychiatric treatment (including medication) and psychological counselling on a frequent and regular basis, but there are no firsthand reports from his treating professionals.  Such reports would, one could infer, be likely to be of considerable assistance to this Court in the conduct of this review.
5. [9]
   Ultimately, the highly persuasive judgment of his Honour Judge Robertson in R v Eades [2008] QDC 124, is considered by both Mr McCarthy (for the Director of Public Prosecutions) and Mr Green (for Mr Smith) to be of considerable assistance to this Court in arriving at its decision in respect of this review.  In the light of the decision in R v Eades, Mr Green is content not to pursue his detailed criticisms of the material placed before me (and criticisms of the failure to place material before me), and rather to allow me to reach a conclusion based on the DPP's material (or more correctly the Department of Corrective Services’ material) taken at its highest.
6. [10]
   The decision in R v Eades, delivered on 11 June 2008, postdates the High Court decision in Buckley v R (2006) 80 ALJR 605, the consequent and subsequent decision in the Court of Appeal of R v Buckley [2008] QCA 45, and takes into consideration the highly relevant provisions of the Dangerous Prisoners (Sexual Offenders) Act 2003 (Qld).
7. [11]
   In R v Eades, Robertson DCJ was considering an application to review (for the second time) an indefinite sentence he imposed on 20 December 2001 in respect of two offences of sodomy of a child.  In R v Eades, Robertson DCJ had to consider a report from Dr Ken Arthur, psychiatrist, which opined that Mr Eades "still represents 'an unacceptable risk of re-offending' should he be released" (para 19).  Robertson DCJ, drawing on the observations of Muir JA in R v Buckley [2008] QCA 45, at paragraph 19, in respect of the relevance of the Dangerous Prisoners (Sexual Offenders) Act 2003, concluded that Dr Arthur's opinion as to Mr Eades' risk was "a level of risk below that stated in s. 173(1) [of the Penalties and Sentences Act]" (R v Eades para 19).
8. [12]
   Penalties and Sentences Act s. 173(1) provides:

1. "(1)
   Unless it is satisfied that the offender is still a serious danger to the community when a review is made under s. 171 or 172, the Court must -

1. (a)
   order that the indefinite sentence is discharged; and
2. (b)
   sentence the offender under this Act for the violent offence for which the indefinite sentence was imposed."

1. [13]
   In the review before me, Dr Ken Arthur (the same psychiatrist who provided the report in the matter of R v Eades) expresses the opinion that "If released from custody without a supervision order … at the current time Mr Smith would present an unacceptable risk to the community of violent sexual recidivism", but "If released from custody under a supervision order … Mr Smith would continue to present as a moderate risk of recidivism" (Exhibit 3 p. 25).
2. [14]
   I refer to and adopt the observations of Robertson DCJ at para 18 of R v Eades in respect of the (undefined) phrase "a serious danger to the community", as utilised in s. 173(1) of the Penalties and Sentences Act, as well as his Honour's analysis of Dr Arthur's opinion expressed in R v Eades, compared to that s. 173(1) formulation.
3. [15]
   I am required by Penalties and Sentences Act s. 170 to "make a finding that an offender is a serious danger to the community only if … satisfied -

1. (a)
   by acceptable, cogent evidence; and
2. (b)
   to a high degree of probability;

that the evidence is of sufficient weight to justify the finding."  The onus of proof lies on the prosecution (Penalties and Sentences Act s. 169).

1. [16]
   I conclude that, despite the provisions of Penalties and Sentences Act s. 163(4)(a)&(b), I am not satisfied to the requisite standard that Mr Smith "is still a serious danger to the community", even taking the opinion of Dr Arthur at its highest.  Of course, Mr Smith's continued incarceration remains subject to the provisions of the Dangerous Prisoners (Sexual Offenders) Act 2003.
2. [17]
   Accordingly, I order that the indefinite sentence is discharged.
3. [18]
   Judge Nase, as I've previously indicated, imposed a nominal sentence in respect of count 16 (the subject of the indefinite sentence), of 18 years.  Mr Green on behalf of Mr Smith does not challenge that nominal sentence.  Any sentence imposed in respect of a (previously) indefinite sentence "is taken to have started on the day the indefinite sentence was originally imposed; and takes the place of the indefinite sentence" (Penalties and Sentences Act s. 173(3)(a)&(b)).  Such a sentence "must not be less than the nominal sentence" (Penalties and Sentences Act s. 173(3)(c)), and Mr McCarthy on behalf of the Director of Public Prosecutions does not press for any higher sentence than the 18 year nominal sentence indicated by Judge Nase at the original sentencing hearing.
4. [19]
   I therefore sentence the defendant, Stuart McKay Smith, to 18 years imprisonment in respect of count 16.  Pursuant to Penalties and Sentences Act s. 161B(1), I declare the conviction to be a conviction of a serious violent offence.
5. [20]
   I'll order that the Registrar, upon correction of the text of my decision, forward a copy directly to the Director-General of the Department of Health and the Director-General of the Department of Corrective Services or presumably the Acting Director-General at the moment.
6. [21]
   I declare in respect of the sentence I have just imposed (18 years' imprisonment in respect of count 16) that the defendant was held in presentence custody from 29 June 1999 to and including 6 June 2001, a period of 710 days, which is to be counted as part of the sentence already served in respect of the sentence which I have imposed today (10 October 2008) but which is legislatively deemed to have been imposed on 7 June 2001.  The sentence imposed is concurrent.