R v Stone[2015] QDC 310

DISTRICT COURT OF QUEENSLAND

1. [1]
   This is an application by the Director of Public Prosecutions pursuant to s 171(1)(b) of the Penalties and Sentences Act1992 (the Act) requiring a review of indefinite sentences imposed on the respondent in the District Court at Cairns on 16 November 1988.

2. [2]
   Indefinite sentences were imposed for four offences of rape. A period of 14 years was nominated as the term of imprisonment the court would have imposed on each count had it not imposed indefinite sentences (the nominal sentence).^[1]The respondent was also sentenced to lesser terms of imprisonment for other offences ranging from three years to eight years.  All terms of imprisonment were ordered to be served concurrently with each other but cumulative on the sentence then being served by the respondent.

3. [3]
   The sentencing court is required to conduct the first review of an indefinite sentence within six months after the offender has served 50% of the nominal sentence.^[2]That first review was held on 22 November 2010 and 9 December 2010 before his Honour Judge O'Brien DCJA (as his Honour then was).  The decision on that review was delivered on 25 March 2011.^[3]His Honour then conducted a second review in November 2013. 

Nature of respondent’s criminal history

4. [4]
   In his decision on the first review, O'Brien DCJA relevantly summarised the respondent’s offending history.^[4]It is sufficient for present purposes to repeat that summation here:

5. [5]
   At the first review, the court concluded that the respondent “remains still a serious danger to the community in that the relevant protective considerations cannot presently be met by the imposition of a finite sentence”.^[5]The indefinite sentences in respect of each of the rape offences (counts 2, 4, 6 and 8) continued in force. 

Second review

6. [6]
   The second review was held on 8 November 2013 pursuant to s 171(1)(b) of the Act which required the court to review the indefinite sentences within two years from the date when the last review was made.

7. [7]
   The review application was dismissed and the indefinite sentences in respect of each of the rape offences continued in force.

Current review

8. [8]
   A Notice of Application, dated 11 August 2014, was filed by the Director of Public Prosecutions in the District Court at Brisbane. That application sought the further review of the indefinite sentences and sought consequential orders pursuant to s 171(1)(d) of the Act which requires the court to review the indefinite sentences at an interval of not more than two years from the last review.

9. [9]
   Orders were made, pursuant to s 176(1) of the Act, that reports be prepared for the courts assistance and the matter was adjourned to enable those reports to be prepared.

The issue for determination

10. [10]
    Pursuant to s 173(1) of the Act, unless it is satisfied that a respondent is still a serious danger to the community, the court must order that an indefinite sentence be discharged and sentence the respondent for the qualifying offences^[6]for which the indefinite sentence was imposed.  Any such sentence must not be less than the nominal sentence.

Legislation and procedure

11. [11]
    Pursuant to s 172C of the Act, the court is obliged to give both the applicant and the respondent the opportunity to lead admissible evidence on any relevant matter.

12. [12]
    The applicant relied on the affidavit of Mr Craig Johnston, an officer of the Office of the Director of Public Prosecutions, an affidavit of Ms Jolene Monson, Acting Manager of the High Risk Offender Management Unit in Queensland Corrective Services, a report of Ms Jenny Lynas, Director of the High Risk Offender Management Unit, various Corrective Services documents tendered under the hand of a Ms Roberta Emery of the same office, a report dated 15 October 2014 by Dr Josie Sundin, Consultant Psychiatrist and reports dated 8 November 2014 and 20 May 2015 by Dr Lars Madsen, Forensic and Clinical Psychologist.

13. [13]
    The respondent relied on a report dated 22 July 2015 by Dr Jill Reddan, Consultant Psychiatrist.

14. [14]
    Additionally, doctors Sundin, Madsen, and Reddan provided oral testimony to the court.

15. [15]
    Pursuant to s 172C of the Act, the court is obliged to consider the reports (subject to s 172B), to have regard to any submissions made by the parties and have regard to the fundamental principles of justice for victims of crime declared by the Criminal Offence Victims Act1995, part 2.

16. [16]
    Pursuant to s 172B(2) of the Act, the court must not take a report or any part of it which is disputed into consideration on the hearing of the review unless the party that has filed a Notice of Intention to Dispute the whole or any part of a report^[7]has been given the opportunity to lead evidence on the disputed matters and to cross-examine the author of the report on its contents.  That process has occurred in this matter. 

17. [17]
    The term “a serious danger to the community” is not legislatively defined. Section 163(3) and (4) relevantly states:

18. [18]
    In R v Garland,^[8]Morrison JA considered the operation of s 163(3) and (4) of the Act at paragraphs [52]-[58]:

“The various matters in s 163(4) are ones that are mandatory for the court to take into account.  However, the requirement is simply that the court must ‘have regard’ to those matters.  It is not bound by them to come to any particular conclusion.  The matters set out in s 163(4) are therefore merely factors to take into account in determining the main question, which is whether the offender is a serious danger to the community.  In that sense one could characterise the issue in s 163(3), whether the offender is a serious danger to the community, as being a jurisdictional issue, without which the court cannot impose an indefinite sentence.  The matters in s 163(4), however, are not the same, as they are matters to which the court must have regard, but what weight is given to them is a matter for the court.”

19. [19]
    I note that the Act does not make reference to the onus or standard of proof required on such a review. Nevertheless, in the first review of this matter, O'Brien DCJA accepted that the applicant bore the onus of proof pursuant to s 169 of the Act and that the standard of proof is that required by s 170 of the Act.^[9]I will proceed to consider this review on the same basis. 

20. [20]
    In Buckley v R^[10]the High Court stressed the importance of recalling that the imposition of an indefinite sentence involved a departure from the fundamental principle of proportionality and that such a step must be taken only upon cogent evidence.  It also said that it is necessary to first consider whether the protective considerations could be reasonably met by the imposition of a finite sentence and it is only when a finite sentence would not afford adequate protection that a court can proceed to impose an indefinite sentence.^[11]

21. [21]
    Of relevance to the present matter however, is the following comment by Morrison JA in R v Garland^[12]:

“…on a review the temporal difficulties addressed in R v Buckley are different.  On original sentencing the court is dealing with the situation where, if it imposes an indefinite sentence, the next review will be some years away.  On a review the time period to the next review is only two years.  That has an obvious effect on the consideration of the matters in s 163(3) and (4).”

Evidence

22. [22]
    The respondent has been in custody for most of the last 35 years. He has a history of having committed very serious offences of a violent and sexual nature up until 1997. His indefinite sentence was imposed in respect of offences committed in 1997. He has remained in custody since that time and has not been convicted of an offence since then.

23. [23]
    The respondent completed the High Intensity Sexual Offender program in 2008 and the Sexual Offender Maintenance Program in 2013. He has been receiving individual treatment from Dr Madsen since June 2014 and has had approximately 22 sessions with Dr Madsen in that time.

24. [24]
    The respondent has a history of breaches whilst in custody. Of the breaches that have allegedly occurred since the last review, it appears he pleaded guilty to two, was found not guilty of one and two remain under investigation.

25. [25]
    He has not been the subject of any breach action since November 2014.

26. [26]
    On 6 October 2015, he was moved to the residential accommodation unit at the Woodford Correctional Centre. When Dr Madsen gave his evidence on 2 November 2015, he had only seen the respondent on one occasion since the respondent had moved to that residential unit.

Dr Madsen’s evidence

27. [27]
    In his reports, Dr Madsen refers to the respondent’s risk level as high noting that he scores highly on historical factors related to risk but has shown improvements in his dynamic risk levels. Dr Madsen is of the view that there have been improvements in that regard even between the time of his first report and his second.

28. [28]
    Dr Madsen also gave evidence that in his view, the respondent’s capacity for self-awareness is improving.^[13]It is his view that as a consequence of the respondent’s treatment with him, that the respondent is developing greater insights into his past and current circumstances.  In that regard, Dr Madsen said:^[14]

“I think Mr Stone is older.  He’s – he’s also quite a clever man.  He’s quite able to be self-reflected on his own – self-reflective on his own thoughts and his own reactions to things.  I think, in our sessions, you know, he can talk about difficult experiences and give very understandable, plausible, sort of, explanations of his reaction to things without externalising responsibility upon other people or saying that, you know, other folks are completely to blame for what he’s – for what he’s feeling.  He can recognise that – that the way he interprets and the way he responds to things is – is his reactions, his thoughts, his attitudes and sensitivities perhaps.”

29. [29]
    Dr Madsen has addressed the respondent’s breaches in custody during his treatment of him and is of the view that the respondent’s ability to manage stress within the custodial setting is improving and that the respondent is managing stress and his reactions to stress much better than in the past.^[15]

30. [30]
    Dr Madsen is of the view that the respondent is open and candid in his disclosures with him, including in relation to the incidents that have occurred in custody. His view about that appears to be supported by information from the prison which “seem to indicate that things are actually going quite well and have been for some time.  So that leaves me feeling more confident about those kinds of issues to do with Trevor”.^[16]

31. [31]
    Dr Madsen gave evidence that, apart from an allegation of sexually intimidatory behaviour by the respondent that was investigated in 2014, there is no evidence to suggest that sexual deviance is an ongoing problem for the respondent.^[17]The respondent does not express violent or suicidal ideation in his sessions with Dr Madsen.^[18]

32. [32]
    The overall tone of Dr Madsen’s evidence was that the respondent is making significant gains towards rehabilitation. The following question and answer in cross-examination is relevant to his overall view of the respondent’s risk level:^[19]

“In light of the gains that you’ve talked about, primarily based on his engagement with you in treatment in recent times, that is 2014 and 2015, do you accept then that there is a lessening of the risk that he poses in terms of recidivism? - - - Look, that would be my view, of course, that the changes in the dynamic areas that are perhaps relevant for Mr Stone equate to the fact that he represents less of a risk than he has at other times.”

33. [33]
    On the question of whether the respondent could be safely managed in the community at the present time, Dr Madsen opined:^[20]

“I was asking whether or not it’s your view, Dr Madsen, that Mr Stone is now in a position where he could be managed in the community, supported by one-on-one treatment in the community? - - - Look, I’d have to think a little bit more about that.  I guess of the - to caveat that what I would say is that I think, if Mr Stone is able to demonstrate a period of time, a substantial period of time – I don’t know what that means.  I can’t – may be longer than two months, perhaps, where he can function within a residential context and demonstrate that he can get along and do things there quite well, I would - I’d feel much more confident with his capacity to transition into a community context where he has support.  And I would say that any kind of support that - you know, he would need quite a bit of support.  He would need support with, you know, accommodation and making sure he has people around him, someone like myself to be able to access and sort of work with and help that adjustment he would require.

In light of your answer, are you able to offer an opinion about how long would be required for Mr Stone to demonstrate that he would be safely managed in a community setting? - - - Well, at least 6 months, I would say.”

Dr Sundin’s evidence

34. [34]
    Dr Sundin interviewed the respondent on 3 October 2014 for the purposes of preparing a report for these proceedings. She had previously prepared a report relating to him in December 2012.

35. [35]
    In her report, she opined that, taken globally, the respondent poses a serious risk to the community, that his risk of general violent recidivism is high and his risk of sexually violent recidivism is moderate to high.^[21]

36. [36]
    On the issue as to whether the respondent could be safely managed in the community, Dr Sundin opined that his risk level could be moderated with an intensive/high level supervision programme that would need to engage curfews, GPS monitoring, abstinence from alcohol and drugs, counselling and a requirement not to engage in any activity which would give him access to vulnerable females.^[22]She recommends that the respondent be subject to a 10 year period of supervision.

37. [37]
    In evidence, Dr Sundin expressed the view that if the respondent had been in a residential setting in custody for two months’ incident free (which, at the time she gave evidence, was believed to have been the time period that he had been in the residential unit), then “that speaks well to his increasing emotional self-regulation”.^[23]

38. [38]
    She also expressed the view that the respondent’s engagement with Dr Madsen over the past 12 months represents a lessening of risk from a dynamic perspective. She said:

“I would assume that Dr Madsen has been trying to work with Mr  Stone on a number of the routes of his offending behaviour, the pathway to offending.  That usually involves talking to someone about quite difficult material; at that time, it’s quite common to see people become quite emotionally destabilised, at which time they may regress and act out even more.  The fact that Mr Stone has not done so bodes well for his future.”

39. [39]
    In cross-examination, Dr Sundin said:^[24]

“Now, in light of the evidence that you’ve given about both the static and the dynamic risk factors around Mr Stone’s future risk of recidivism, are you of the view that Mr Stone, if released presently from custody, could be successfully managed, in terms of his risk, in the community? - - - Yes.  If he was placed under an appropriate high-level supervision programme similar to – with inclusion criteria similar to those that we see with DPSOA prisoners upon release, so that there is GPS monitoring, curfew, regular urinary drug screening, random breath testing, engagement with sexual offenders’ maintenance programme, engagement with indigenous elders, and most importantly, of course, continuing therapy with Dr Madsen – I think that Mr Stone has progressed to the point that that certainly is something that could be encompassed.”

40. [40]
    Later Dr Sundin said:^[25]

“… I would refer you to the advice given by Dr Madsen: that he would like to see how Mr Stone does after a full 6 months in the lower-security area of residential, to give us a better indication as to how he is likely to manage.  If it is not possible under parole conditions for Mr Stone to have a very high level of supervision, then I would be advising the court to proceed very cautiously, and see solid evidence of continued improvement in Mr Stone’s emotional and behavioural self-regulation within the residential setting.

And your reference there to your note of caution and referring the court to giving solid evidence of demonstrated good behaviour, to - - -? - - - Yes.

- - - put it that way, is a reference to 6 months successfully living in the residential unit? - - - Yes.  For any prisoner leaving prison after a lengthy period of institutionalisation, the transition back into the community is extremely challenging.  That’s the reason why I’ve recommended that when his ultimate release occurs, that it will need - need - a high level of supervision is tremendously important so that he doesn’t become overwhelmed by the stress of that transition, regress, and act out.

All right.  Accepting for the moment that parole conditions can include things like a requirement to tell parole authorities where one is living and working and to obtain permission to leave the State, to undertake drug and alcohol counselling and any other counselling as required by the parole officers - in your view, are those the sorts of high-level supervisory conditions which could assist Mr Stone? - - - Yes, but what you’re describing is in my opinion too low-level.  I would consider that certainly in his initial period of transition, he would need frequent random breath and urine drug screening for alcohol and illicit substances.  I think he should be subject to a curfew so that he is in - within a specified residence at particular hours, 6.00 pm to 6.00 am initially.  And that any alleviation of that curfew was reflecting an ongoing successful transition to life in a community.

OK.  And they’re the two conditions over and above the ones that I indicated to - - -? - - - No.  There would be other conditions that I would recommend.  They would include that he not attend licensed premises, that he not associate with criminal associates, that he engage – continue to engage with Dr Madsen, that he undertake a sexual offenders maintenance program, that he link with indigenous elders and a community support program within the indigenous community.  These are the sorts of things that I think would be required and would need to be particularly a part of the first 12 months to two years of his transition back into the community to protect him and aid his transition.”

Dr Reddan’s evidence

41. [41]
    Dr Reddan is of the view that the respondent’s “sexual offences have been more related to anger and retaliation, and to a greater or lesser extent power and dominance”.^[26]

42. [42]
    In her report, Dr Reddan said:^[27]

“Thirdly, there is no convincing evidence that Mr Stone has one or more paraphilias.  As is clear from Mr Trevor Stone’s longitudinal history, he has had a history of serious offending.  His criminal history commenced as a juvenile but his most serious offending has involved violent sexual offences, particularly rape.  Mr Stone has, for most of the past 35 years, been in custody and it is very likely that during that time if he had one or more paraphilias this would have become apparent.  It is most likely that his sexual offences have been a reflection of a complex combination of poor attitudes towards women, a sense of entitlement, an expression of anger and/or a desire for power and retaliation. 

Fourthly, in the past he has endorsed attitudes and cognitions supportive of offending behaviour and he has been callous and lacked empathy for others including his victims.  He has lacked the skills necessary to contain anger and hostile impulses as well as anxiety and other dysphoric emotions.  However, as time has gone on Mr Stone’s impulsivity has reduced and he has been forced by age and his circumstances to reflect upon himself and his behaviour, and he has engaged in programs to address his sexual offending.  By necessity the environment he has been in however has not always been conducive to him developing pro-social behaviours.  However, his ability to contain his anger and his tendency to act out has significantly reduced. 

Mr Stone’s case reflects the difficulties that the aging offender may represent.  On the one hand it is likely there is a significant possibility that Mr Stone continues to represent a risk to others although it is also likely that the risk he represents has substantially reduced.  In determining whether the risk he may represent is now manageable, depends on how such a risk can or should be managed.  In addition, to manage any risk he may represent, it is also necessary to manage the effects of institutionalisation.  However, the problems in skill acquisition and the development of capacity to manage emotions and behaviour better requires some degree of deinstitutionalisation of Mr Stone to occur whilst he still has some degree of flexibility and capacity for learning and negotiating new challenges.”

43. [43]
    Dr Reddan concluded her report by recommending that the following conditions should be imposed on the defendant if he is released on parole:

1. That Mr Stone reside at an address approved by the court.

2. That Mr Stone not be allowed to reside with any persons under the age of 18 or any women.

3. That Mr Stone be required to wear a GPS monitoring device so that his whereabouts are at all times able to be ascertained.

4. That Mr Stone not attend licensed premises.

5. That Mr Stone be at his residence by 8pm every evening unless he is engaged in a specific program approved by the Department of Corrective Services.  In other words, a curfew should be imposed.

6. That Mr Stone continue to attend upon a psychologist with experience in the management of offenders at a frequency to be determined between the practitioner and Mr Stone.

7. That Mr Stone not consume any alcohol or un-prescribed drugs of any nature and that he comply with all procedures to test him for use of such substances.

8. That Mr Stone refrain from acquiring any weapons.

9. That Mr Stone not carry any sharp implement with him.

10. That Mr Stone be required to develop, in consultation with an appropriate staff member, a schedule about how he will use his time.^[28]

44. [44]
    In evidence however, Dr Reddan conceded, that Dr Madsen’s view that the respondent should be required to demonstrate his ability to live appropriately in the residential unit of the prison for at least six months before any assessment can be made of his capacity to transition to community living, is reasonable.^[29]

45. [45]
    More importantly, Dr Reddan noted that the respondent still has “a way to go to learn anger management skills”. This is of particular significance given that Dr Reddan is of the view (as is Dr Sundin) that the respondent’s sexual offending is integrally related to his anger rather than sexual impulses. In that regard, she was firmly of the view that the defendant needs specific pre-release training and tuition in being able to function in everyday life in society. She said that he needs to learn skills such as how to shop, how to cook for himself, how to manage money, how to use a mobile telephone, how to use a GoCard, and how to set up and keep to a routine. This list is not exhaustive. Whilst acknowledging that some things can only be learned after release, Dr Reddan was nevertheless of the view that many such skills could and should be learned before his release and in that way, better prepare him for life in the general community and thus reduce the potential for him to become angry because of his inability to cope.^[30]In fact Dr Reddan holds the view that the respondent should be the subject of a ‘graded response’ to independent living, with the first step being him housed in the residential facility at the corrections centre.^[31]

46. [46]
    Finally, Dr Reddan said that one of the most important conditions that would need to be placed on any parole order is the requirement that the respondent continue to engage in individual therapy even when released on parole, as well as engaging in group therapy. In fact, all three experts agree that continuing therapy was essential to assist in the effective management of future risk.

Ms Jolene Monson

47. [47]
    In her affidavit, Ms Monson addressed the conditions that can be imposed on a parole order. In particular, parole conditions can include the imposition of a curfew, the imposition of a requirement for a parolee to provide samples for testing, residential and employment conditions, a condition requiring participation in a particular program and a requirement that the parolee wear a monitoring device.^[32]Significantly, however, individual psychological treatment is not funded by Queensland Corrective Services and would rely on the respondent’s willingness to fund his own treatment.^[33]

48. [48]
    As I have mentioned, the term ‘serious danger to the community’ is not legislatively defined although ss 163 and 164 provide some guidance in that regard. His Honour O'Brien DCJA when applying the provisions of s 163 (3) and (4) during the first review said:^[34]

“Of the matters referred to in s 163, there is no suggestion that the Mental Health Act 2000 (Qld) has any application in these proceedings. The respondent’s criminal record reveals a history of serious sexual violence – including a pattern of offending shortly after release from prison. The nature of his offending was undoubtedly serious and met the requirement of ‘exceptional’ for the purposes of s 164(4)(b) (see R v Stone, supra, per de Jersey CJ at [23]). The critical issue for present purposes must involve a consideration of the several medical psychiatric and prison records that are before the court as well as an evaluation of the risk of serious harm to members of the community if the indefinite sentence is not maintained as well as the need to protect members of the community from that risk.”

49. [49]
    That statement has equal applicability to this review application.

Conclusion

50. [50]
    After taking into account the expert opinions of Drs Sundin, Reddan and Madsen, I am satisfied that the respondent still constitutes a serious danger to the community and that a finite sentence is not of sufficient protective effect.

51. [51]
    Dr Madsen does not consider that the respondent is now in a position where he could be managed in the community, even if supported by one on one treatment. The respondent only transitioned from high secure to a residential unit within the Woodford Correctional Centre on 6 October 2015. Both doctors Madsen and Sundin are of the opinion that the respondent needs at least six months in that setting before they could offer an opinion as to whether the respondent could be safely managed in a community setting. Dr Reddan agrees that such an approach to the issue is reasonable.

52. [52]
    I note that since the last review, there have been a number of incidents involving the respondent in the correctional centre. These incidents are accurately set out in Dr Sundin’s report at pp 7-8 and the report of Ms Lynas at p 2. Whilst it is clear that as time passes, the respondent is improving in attitude, insight and behaviour (particularly over the last 12 months), and that the risk that he presents to members of the public is diminishing he nevertheless still presents as a serious danger to the community.

53. [53]
    As Dr Sundin said, the respondent “…is a person who poses a serious risk to the community.  Overall, this man’s risk of general violent recidivism is high and his risk of sexually violent recidivism is moderate to high”.  She also said that the respondent “…is an individual who has the potential to stretch and test the boundaries of parole conditions when he is ultimately released.  In my opinion, very great caution should be in place if this man were to be released”.^[35]

54. [54]
    Furthermore, Dr Sundin stated that a 10 year period of supervision would be necessary with the strict supervisory conditions proposed by her. Yet, this would not be possible under the legislation as, pursuant to s 174 of the Act, the respondent’s parole period would five years. Dr Madsen did not comment on the length of the supervisory period he considered would be necessary, whilst Dr Reddan was unable to offer an opinion in that regard although she conceded that it may need to be well in excess of 5 years.^[36]In oral evidence, Dr Sundin said that if such strict supervisory conditions were not available to the respondent, then she would be “…advising the court to proceeding very cautiously, and see solid evidence of continued improvement in Mr Stone’s emotional and behavioural self-regulation within the residential setting”.^[37]  

Order

55. [55]
    The review application is dismissed.