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R v Dobbs[2015] QDC 64

DISTRICT COURT OF QUEENSLAND

CITATION:

R v Dobbs [2015] QDC 64

PARTIES:

THE QUEEN

v

GEOFFREY ROBERT DOBBS

(Respondent)

FILE NO:

No. 3475 of 2000 and 3336A of 2002

DIVISION:

Criminal

PROCEEDING:

Application to review indefinite sentence

ORIGINATING COURT:

District Court, Brisbane

DELIVERED ON:

6 March, 2015

DELIVERED AT:

District Court, Brisbane

HEARING DATE:

27 November 2014

JUDGE:

Chief Judge O'Brien

ORDER:

  1. The indefinite sentences imposed in the District Court of Brisbane on 24 July 2003 are discharged
  2. In respect of the offences which were subject to indefinite sentences, the respondent is sentenced to periods of 15 years imprisonment to be served concurrently with each other and concurrently with the life sentences he is presently undergoing

CATCHWORDS:

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – JUDGMENT AND PUNISHMENT – SENTENCE – indefinite sentence – periodic review of indefinite sentence – whether the offender is still a serious danger to the community

Corrective Services Act 2006 (Qld) s 200, s 227.

Dangerous Prisoners (Sexual Offences) Act 2003 (Qld).

Penalties and Sentences Act 1992 (Qld) s.163, s 169, s 170, s.171, s 173.

Attorney-General v Francis [2005] QSC 381

Buckley v R (2006) ALJR 605

R v Garland [2014] QCA 3

COUNSEL:

Ms DA Holliday for the applicant 

Mr RA East for the respondent

SOLICITORS:

Director of Public Prosecutions for the applicant

Legal Aid Office for the respondent

  1. [1]
    This is an application by the Director of Public Prosecutions pursuant to s.171 of the Penalties and Sentences Act 1992 (Qld) (“the Act”) for the review of an indefinite sentence imposed on the respondent, Geoffrey Robert Dobbs, in the District Court at Brisbane on 24 July, 2003.  On that occasion, the respondent was sentenced in relation to a total of 103 offences involving the sexual mistreatment of children.  The sentences imposed ranged from 5 years imprisonment through to life imprisonment for offences of maintaining a sexual relationship with a child.  In respect of two offences of aggravated unlawful carnal knowledge, indefinite sentences were imposed on the respondent pursuant to s.163(1) of the Act.  In compliance with s.163(2), a term of 15 years imprisonment (the nominal sentence) was stated as the term the Court would have imposed had it not imposed the indefinite sentence.
  1. [2]
    Pursuant to s.171(1)(a)(i) of the Act the sentencing court is required to review the indefinite sentence within six months of the offender having served 50% of the nominal sentence. Thereafter, in accordance with s.171(1)(b) of the Act, the court is required to review the sentence at intervals of not more than two years from when the last review was made.
  1. [3]
    This in fact is the fourth review of the respondent’s indefinite sentences, with previous reviews having been conducted in December 2008, April 2011 and April 2013. On each of those occasions, the indefinite sentence was maintained.
  1. [4]
    Section 173 of the Act provides that unless it is satisfied that the offender is still a serious danger to the community when the review is made, the court must order that the indefinite sentence be discharged and sentence the offender to a finite term of no less duration than the nominal sentence. If the court does not make such an order, the indefinite sentence continues in place. Those provisions of the Act which deal with a review of an indefinite sentence, that is ss.171-176, do not define the expression “a serious danger to the community”. Nor do they make reference to the onus and standard of proof required with such a review. Section 163 however, does set out those matters to which a court should have regard in determining whether to impose an indefinite sentence. Relevantly, that section provides:-

“(3)Before a sentence is imposed under sub-section (1), the court must be satisfied –

  1. (a)
    that the Mental Health Act (2000), ch 7, Pt 6, does not apply; and
  1. (b)
    that the offender is a serious danger to the community because of -
  1. (i)
    the offender’s antecedence, character, age, health or mental condition; and
  1. (ii)
    the severity of the qualifying offence; and
  1. (iii)
    any special circumstances.
  1. (4)
    In determining whether the offender is a serious danger to the community the court must have regard to –
  1. (a)
    whether the nature of the offence is exceptional; and
  1. (b)
    the offender’s antecedence, age and character; and
  1. (c)
    any medical, psychiatric, prison or other relevant report in relation to the offender; and
  1. (d)
    the risk of serious harm to members of the community if an indefinite sentence were not imposed; and
  1. (e)
    the need to protect members of a community from the risk mentioned in paragraph (d).
  1. (5)
    Sub-section (4) does not limit the matters to which a court may have regard in determining whether to impose an indefinite sentence.”
  1. [5]
    In R v Garland [2014] QCA 3 Morrison JA, with whom Fraser JA and Philipppides J (as Her Honour then was) agreed, considered the above provisions as follows:-

[52]Section 163(3) sets out two factors as to both of which the court must be satisfied, before it can impose an indefinite sentence. The first is that certain provisions of the Mental Health Act do not apply. The second is that the offender ‘is a serious danger to the community’, because of: (i) the offender’s antecedents, character, age, health or mental condition; and (ii) the severity of the offence; and (iii) ‘any special circumstances’. The phrase used is ‘because of’ which means there must be a direct causal link between the matters specified and the conclusion under s.163(3)(b) that the offender is a serious danger to the community.

[53]Two things can be noted about s.163(3)(b). First, the state of satisfaction that the offender is a serious danger to the community is one that can be reached notwithstanding the availability of a fixed term sentence. That follows from the fact that the court must reach that state of satisfaction before being able to impose an indefinite sentence, which it can do instead of a fixed term: s.163(1). Secondly, there is no requirement that relates to the impact of the parole regime.

[54]In determining whether an offender is a serious danger to the community, s.163(4) stipulates that the court ‘must have regard to’, amongst other things, ‘the risk of serious physical harm to members of the community if an indefinite sentence were not imposed’, and ‘the need to protect members of the community’ from that risk.

[55]There is a difference between what is required under subsection (3) and subsection (4). Under s.163(3) the court cannot impose an indefinite sentence unless it first reaches a state of satisfaction which includes that the offender is a serious danger to the community. The phrase ‘must be satisfied’ is used and clearly indicates the mandatory nature of that requirement. Absent that state of satisfaction a court cannot impose an indefinite sentence.

[56]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.”

  1. [6]
    So far as the onus of proof is concerned, I accept that the applicant bears that onus pursuant to s.169 of the Act. I also proceed on the basis that the standard of proof is that required by s.170 of the Act.
  1. [7]
    In Buckley v R (2006) ALJR 605, the High Court recognised that, as the imposition of an indefinite sentence represents a departure from normal sentencing principles, the court must consider the imposition of such a sentence in the light of the protective effect that might be achieved by the imposition of a finite sentence.  The court also observed at p.607:-

”Such a sentence involves a departure from the fundamental principal of proportionality.  The statute assumes that there may be cases in which such a departure is justified by the need to protect society against the serious physical harm;  but a judge who takes that step must act upon cogent evidence, with a clear appreciation of the exceptional nature of the course that is being taken.  Furthermore as was pointed out in McGarry (McGarry v The Queen (2001) 207 CLR 121), the assessment of risk required by the statute may involve temporal issues requiring careful examination.”

  1. [8]
    In considering this matter of “temporal issues”, Morrison JA observed in Garland supra at para [62]:-

“On a review the temporal difficulties address in R v Buckley are different. On the 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.  This has an obvious effect on the consideration of the matters in s 163(3) and (4).”

The Evidence

  1. [9]
    On the occasion of the first sentence review it was apparent that the respondent had received no treatment through any sexual offender intervention programs since his incarceration. On that occasion I made reference to the comments of Mackenzie J in Attorney-General v Francis [2005] QSC 381 and recommended to the prison authorities that immediate steps be taken to provided sexual offender treatment programs to the respondent.  The situation now is that the respondent has twice completed the High Intensity Sexual Offender Program (HISOP) as well as the Sexual Offenders Maintenance Program (SOMP).  He has also engaged in one on one counselling with a forensic psychologist Dr Lars Madsen.
  1. [10]
    For the purposes of this review, I have the benefit of reports from Dr Madsen and from a forensic psychiatrist Dr Joan Lawrence. Both Dr Madsen and Dr Lawrence have had the benefit of treating and/or assessing the respondent over a lengthy period of time. Dr Madsen first commenced individual treatment sessions with the respondent in July 2004. By the time of his most recent report, dated 4 November 2014, Dr Madsen had seen the respondent on about 50 occasions, most recently in October 2014. Dr Madsen reports as follows:-

“Dobbs has made good progress in the one to one intervention.  He was a diligent attender and compliant with all tasks.  He appeared open to both feedback and challenge, and seemed to genuinely reflect on the topics and issues that were discussed during the sessions.  Mr Dobbs demonstrates good insight into his offending pathway and has a realistic appraisal of his future risk (ie he will always represent some risk to young, female children).  He has developed strong relapse prevention strategies, and positive personal goals and future aspirations.”

  1. [11]
    Dr Lawrence has had involvement with the respondent since January 2008. As long ago as November 2010, she had expressed the view that the respondent’s paedophilic sexual orientation was unlikely to change and that prevention of reoffending must rely on adequate control of any sexual drive that continues to operate. In previous reports, Dr Lawrence had made reference to the respondent’s “denial and minimisation, avoidance and continuing cognitive distortions associated with his sexual offending behaviour”. In a report of October 2012 however, Dr Lawrence noted that there appeared to be some diminution in the respondent’s obsessive defences and that he appeared to be benefiting from the implementation of recommendations made for him to participate in the sexual offender maintenance programs. That improvement seems also to be associated with the commencement of Dr Madsen’s treatment in July 2012.
  1. [12]
    Dr Lawrence has seen the reports of Dr Madsen and the various worksheets completed by the respondent. In her most recent report prepared for the purposes of this review and dated 5 September 2014, Dr Lawrence comments:-

“Reflecting on the detailed reports of Dr Madsen and the detailed completed worksheets provided by Mr Dobbs and his responses to questions and explorations at interview, I was impressed by the significant change evident in Mr Dobbs understanding of his sexual offending behaviour and his obvious motivation towards change and his understanding of the strategies by which he can effect change and lead an offence free life in the future.

This change is a very significant change from the impressions and opinions I formed of him at the time of my first assessment of Geoffrey Dobbs in October 2008 and also the significant improvement that has occurred since my last assessment in 2012.”

  1. [13]
    Whereas Dr Lawrence had previously considered the respondent’s risk of reoffending to be high she now regards it as being “moderate to low, or even low”. Her report concludes as follows:-

“It is my opinion that Geoffrey Dobbs has benefited to a significant extent from the sexual offender treatment programs that he has received, particularly on an individual basis from Dr Lars Madsen in recent years, as well as group programs.  It is my opinion that he has benefited from those programs significantly.

It is my opinion that what previously could be regarded as a high risk of sexually offending against female children as a result of his Paedophilic (heterosexual) Disorder has been reduced over time from high level of risk over recidivism to a now low to moderate low risk of recidivism in my structured professional judgment.

Conditions that may be of assistance in supporting and monitoring his risk of offending should he be released have been indicated.”

  1. [14]
    The conditions to which Dr Lawrence refers are set out in paragraphs 11.16 to 11.22 of her report. They include reference to the need for ongoing support and monitoring from a trusted professional psychologist.

Does the respondent still represent a serious danger to the community

  1. [15]
    Of the matters referred to in s.163(4), the critical issues for present purposes are those identified in ss.163(4)(d) and (e) – that is the risk of serious harm to members of the community if the indefinite sentences were not maintained and the need to protect the members of the community from any such risk.
  1. [16]
    On the basis of the evidence of both Dr Madsen and Dr Lawrence I am satisfied that the respondent’s risk of reoffending has reduced significantly over the last 14 years. He has reached now the stage where there does not appear to be any therapeutic benefit to the respondent remaining in custody for further treatment. There is as Dr Madsen and Dr Lawrence acknowledged, some risk that the respondent will reoffend, but that is risk capable of being managed.
  1. [17]
    In Garland supra, the Court rejected the argument that the prospect that the offender will at some point be able to access the parole system is of itself sufficient to overcome the risk referred to in s.163(3)(b) of the Act.  Morrison JA said at para [64], had that been the intention of the legislature, one might have expected to find some words that would suggest such an outcome.  That however is not to say that the availability of the parole system can never be a relevant consideration.  In Garland, Morrison JA went on to say at para [67]:-

“The plain words of s.163 give the court power to impose an indefinite sentence notwithstanding that the alternative fixed term (the nominal sentence) brings with it a form of protection to the community by reason of the parole provisions.  There can be little doubt that s.163(4)(d) and (e) would require a consideration of whether the protective element could be met by the normal process of the parole provisions.  Such an approach would conform with Buckley v The Queen. But there is nothing in the plain words of the section which suggests that the availability of parole must be taken by the court to meet the need for protection in such a way that it means there is no risk of serious physical harm posed by the offender.  To adopt that interpretation is to not only ignore the evident legislative purpose in s.163, but to effectively read into the section a serious qualification on the power it provides to the court.   Indeed, that approach would mean that an indefinite sentence would rarely, if ever, be imposed because in every case there is, at some point of a finite sentence, the prospect of the Parole Board’s governance on the question of release.” (My italics)

  1. [18]
    Section 200(1) of the Corrective Services Act 2006 sets out the mandatory conditions which must accompany parole.  They include provisions as to supervision, an obligation to carry out lawful instructions, to report and receive visits, to notify changes of address or employment and, of course, to commit no further offences.  Section 200(2) permits the Parole Board to impose further conditions that the Board reasonably considers necessary to ensure good conduct and to stop offending.  Ministerial guidelines to the Queensland Parole Board made in accordance with s.227 of the Corrective Services Act require, in s.1.2, that when considering an application for parole the highest priority for the Board should always be, the safety of the community.  In deciding the level of risk which an applicant may pose to the community, the Board should have regard, inter alia, to whether the offender has been convicted of a sexual offence (s.2.1(d)).  Sections 5.4 and 5.5 of those guidelines provides as follows:-

5.4When the Board grants parole to a prisoner who is serving a life sentence, careful consideration should be given to the imposition of a requirement that the prisoner wear an electronic monitoring device as directed by the Chief Executive, and that the prisoner comply with a curfew direction by the Chief Executive to remain at a place during specified periods of time.

5.5When the Board grants parole to a prisoner who was previously subject to an indefinite sentence for their offence/s, the Board must refer to s.174 and s.174A of the Penalties and Sentences Act 1992 to determine the period of parole supervision.”

  1. [19]
    The respondent continues to serve the life sentences imposed on 24 July 2003. These sentences place him in a situation where, if he is released into the community, that can only occur with parole supervision. If that were to occur then there is ample power to impose conditions of the type identified by Dr Lawrence and other conditions of the sort regularly imposed under the Dangerous Prisoners (Sexual Offences) Act 2003.  Given these matters, and accepting as I do the evidence of Dr Madsen and Dr Lawrence, I am satisfied that the protective element can here be met by the normal process of the parole provisions.  For these reasons, I am not satisfied that the respondent is still a serious danger to the community within the meaning of s.163 of the Act.
  1. [20]
    It follows that the indefinite sentences imposed in the District Court of Brisbane on 24 July 2003 should be discharged. In respect of those offences for which the indefinite sentences were imposed, I now sentence the respondent to periods of 15 years imprisonment. Those sentences of imprisonment are to be served concurrently with each other and concurrently with the life sentences he is presently undergoing.
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Editorial Notes

  • Published Case Name:

    R v Dobbs

  • Shortened Case Name:

    R v Dobbs

  • MNC:

    [2015] QDC 64

  • Court:

    QDC

  • Judge(s):

    Chief Judge O'Brien

  • Date:

    06 Mar 2015

Appeal Status

Please note, appeal data is presently unavailable for this judgment. This judgment may have been the subject of an appeal.

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