R v Stone[2018] QDC 160

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 Act 1992 (“the Act”) requiring a review of indefinite sentences imposed on the respondent in the District Court at Cairns on 16 November 1998. 

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 cumulatively upon 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 per cent of the nominal sentence.^[2]

4. [4]
   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.  I conducted the third review in November 2015.^[4]At each review it was concluded that the respondent still constituted a serious danger to the community and that finite sentences were not of sufficient protective effect.

Nature of respondent’s criminal history

5. [5]
   In his decision on the first review, O'Brien DCJA relevantly summarised the respondent’s offending history.^[5]It is sufficient for present purposes to repeat that summation here:

“[3] The respondent presented as a man with a lengthy and serious criminal history.  On 25 August 1981 he had been convicted in the Supreme Court at Townsville of a series of offences including rape, sodomy and indecent assault committed against a 57 year old woman.  The circumstances of those offences involve the abduction of the complainant as she waited in a motor vehicle outside a bank in Tully.  The respondent had driven the vehicle to a cane field where the offences were committed.  The Court of Criminal Appeal, in imposing head sentences of 12 years imprisonment, referred to the offences as having been committed “in circumstances of considerable brutality”.  Whilst on bail for that offending, and on the very day of his release, the respondent had threatened a woman in Townsville with a knife demanding money from her.  When she refused his instruction to move to the rear of a nearby building, he threw her to the ground.  This offence attracted a cumulative sentence of three years imprisonment. 

[4] On 27 May 1988, whilst serving the above sentences, the respondent committed offences of assault occasioning bodily harm and sodomy in which the victim was a fellow prisoner.  For those offences he was sentenced to an effective term of seven years imprisonment, cumulative upon the sentence he was then serving. 

[5] It was whilst on parole for these offences that the offending the subject of this application occurred.  The victim was the 14-year-old daughter of the respondent’s cousin, with whose family he had resided for some two months following his release from prison on home detention.  Essentially, the offending involved the respondent abducting the complainant and driving her to an isolated beach track where, over an extended period he subjected her to “violent and perverse sexual acts and indignities, coupled with serious threats” (R v Stone CA No. 102 of 1998 and R v Stone Ex Parte the Attorney General (Qld) CA No. 190 of 1998 per De Jersey CJ).”

Current review

6. [6]
   A Notice of Application was filed by the Director of Public Prosecutions in the District Court at Brisbane on 30 October 2017. 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.

7. [7]
   Orders were made on 31 October 2017 pursuant to s 176(1) of the Act, that reports be prepared for the courts assistance and the matter be adjourned to enable those reports to be prepared.

The issue for determination

8. [8]
   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

9. [9]
   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.

10. [10]
    The applicant relied on the affidavit of Ms Emily McGregor, an officer of the office of the Director of Public Prosecutions which attached:

• A transcript of the sentencing remarks in R v Trevor Charles Stone on 16 November 1998, in the Cairns District Court, before Judge White;
• A transcript in the proceedings in R v Trevor Charles Stone on 22 November 2010, in the Brisbane District Court, before Judge O'Brien;
• A transcript in the proceedings of R v Trevor Charles Stone on 9 December 2010, in the Cairns District Court, before Judge O'Brien;
• The decision of R v Stone [2011] QDC, (unreported, O'Brien DCJA, Brisbane District Court, 25 March 2011);
• A transcript of the review hearing and a transcript of the ruling in R v Trevor Charles Stone on 8 November 2013, in the Brisbane District Court before Judge O'Brien;
• A transcript of the application hearing in R v Trevor Charles Stone on 3 September 2014, before Judge O'Brien;
• A transcript of the review hearing (part heard) in R v Trevor Charles Stone on 2 November 2015 in the Brisbane District Court before me;
• A transcript of the review hearing (part heard) in R v Trevor Charles Stone on 12 November 2015 in the Brisbane District Court before me; and
• The decision of R v Stone [2015] QDC 310 (unreported, Farr SC DCJ, Brisbane District, 9 December 2015).

11. [11]
    The applicant also relies upon a report by Ms Jenny Lynas, Director High Risk Offender Management Unit, Queensland Corrective Services dated 21 February 2018, two reports by Dr Josephine Sundin, Forensic Psychiatrist, dated 31 January 2018 and 24 June 2018 and a report by Dr Lars Madsen, Forensic and Clinical Psychologist, dated 4 December 2017.

12. [12]
    Additionally, Drs Sundin and Madsen provided oral testimony to the court.

13. [13]
    The respondent also relies upon the reports and evidence of Drs Sundin and Madsen.

14. [14]
    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 Act 1995, Part 2.

15. [15]
    Pursuant to s 172B(2), 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 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.

16. [16]
    The term “a serious danger to the community” is not legislatively defined. Section 163(3) and (4) relevantly states:

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

(a) that the Mental Health Act 2000, chapter 7, part 6, does not apply; and

2. (b)
   that the offender is a serious danger to the community because of –

1. (i)
   the offender’s antecedents, character, age, health or mental condition; and

2. (ii)
   the severity of the qualifying offence; and

3. (iii)
   any special circumstances.

4. (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

2. (b)
   the offender’s antecedents, age and character; and

3. (c)
   any medical, psychiatric, prison or other relevant report in relation to the offender; and

4. (d)
   the risk of serious harm to members of the community if an indefinite sentence were not imposed; and

5. (e)
   the need to protect members of the community from the risk mentioned in paragraph (d).”

17. [17]
    In R v Garland,^[7]Morrison JA considered the operation of s 163(3) and (4) of the Act at paragraphs [52]-[58]:

“The various matters in section 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 section 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 section 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 section 163(4), however, are not the same, as they are matters to which the court must have regard, but what weight is to be given to them is a matter for the court.”

18. [18]
    The Act does not make reference to the onus or standard of proof required on such a review. Nevertheless, in previous reviews of this matter it has been 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.^[8]Accordingly, I will consider this review on that basis.

19. [19]
    In Buckley v R,^[9]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 is 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.^[10]

20. [20]
    Of continuing relevance to the present matter however, is the following comment by Morrison JA in R v Garland:^[11]

“…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 section 163(3) and (4).”

Evidence

21. [21]
    The respondent has been in custody for most of the last 38 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 but he has not been convicted of an offence since then.

22. [22]
    The respondent completed the Getting Started: Preparatory Program for Sexual Offending in November 2007, the High Intensity Sexual Offender Program in 2008 and the Sexual Offender Maintenance Program in 2012. He received individual treatment from Dr Madsen from June 2014 until 15 February 2017. Dr Madsen has had approximately 42 sessions with the respondent during that time.

23. [23]
    The respondent has a history of breaches whilst in custody. He has been identified as being involved in 23 adverse incidents since December 1997. The majority of those instances related to interpersonal violence (seven incidents related to “prisoner on prisoner violence”; three related to “threats against staff”; and, three related to “offensive behaviour”). Notably though, his most recent adverse incident occurred almost 4 years ago on 4 November 2014 and related to “offensive behaviour”.

24. [24]
    On 6 October 2015, the respondent was moved to the residential accommodation unit at the Woodford Correctional Centre where he remains housed to the present day.

Dr Madsen’s evidence

25. [25]
    Dr Madsen testified that initially his sessions with the respondent focused upon assisting him to develop skills at being able to monitor and then to tolerate and change his automatic reactions to situations and experiences in his day to day. He noted that historically, the respondent reported that he had struggled with tolerating feelings of vulnerability and the experience of being challenged or threatened by others. He said that these situations typically triggered the respondent to respond with displays of interpersonal aggression/intimidation and sometimes physical violence. Dr Madsen noted that occasionally this aggression appeared to have been instrumental and focused upon achieving some type of objective, however, on other occasions, he was uncontrolled and reactive. He noted that the respondent had a tendency to ruminate and have vengeful thoughts and had a poor capacity to tolerate negative affect which was probably related to his sexual offence in 1997. In that regard the respondent reported initially becoming overwhelmed with psychological distress due to his circumstances and then with anger and rage. It was in that context that the respondent reported “losing control” (i.e. cognitive and behaviourally dysregulated) before offending. Dr Madsen stated that the respondent’s institutional history shows that he has continued to struggle with interpersonal violence and aggression to a degree.^[12]

26. [26]
    Dr Madsen noted that specific skills either practiced or attempted by the respondent, included cognitive reframing, social problem solving, emotional self-management and identification of social-ecological risk management strategies (i.e. avoiding contact with triggering individuals, etc). Additionally, he engaged in goal setting and “good-life” planning (i.e. identifying positive activities and strategies to cope with potential future challenges in the community etc).

27. [27]
    Dr Madsen is of the view that the respondent has done well, noting that he appeared intrinsically motivated throughout and had demonstrated a good grasp of many of the concepts/strategies that had been covered in the sessions. He is also of the view that the respondent enjoyed the individual sessions and that he would often independently bring up issues, anxieties or concerns that he was experiencing. Dr Madsen believes that the respondent now has good insight into the impact of his historical attitudes and automatic ways of reacting and responding to others and that the respondent now copes in a pro social way with challenging situations with other prisoners, whereas historically he would have resorted to violence or intimidation. In Dr Madsen’s view, the fact that the respondent has not been breached since November 2014 is independent evidence of this progress.

28. [28]
    Dr Madsen believes that it is significant that the respondent has been domiciled in the residential section of the prison since 6 October 2015. In his view, this tends to show that the respondent is able to function in the least restrictive part of the prison for an extended period of time without engaging in problematic or violent behaviours. In fact, it was due to the respondent’s good progress in treatment and his stable emotional presentation in sessions together with his self-reported capacity to manage emotional triggers and challenging circumstances that resulted in the session frequency being reduced from fortnightly to monthly in late 2016. By the beginning of 2017 Dr Madsen was of the view that it was unnecessary to continue with regular psychological sessions.

29. [29]
    As regards to risk, Dr Madsen opined that when considering only historical factors, the respondent would be regarded as a “high risk”. He has noted however that many of the factors that were likely relevant for his historical offending have changed for the better, noting that the respondent is a 55 year old man that has some physical vulnerability due to health conditions of diabetes and a heart condition and has completed group and individual treatments which have been evaluated as having been beneficial. In his report, Dr Madsen said:

“So whilst he may be evaluated as a high risk, it is my view that his actual risk is lower.”^[13]

30. [30]
    In evidence, when questioned as to the respondent’s risk of future offending, Dr Madsen stated that if the numerous conditions that Dr Sundin suggested would need to be in place as conditions of his parole, were in fact implemented, then the respondent’s risk of future reoffending would be “less than high”.^[14]Dr Madsen was also of the view that the respondent’s risk of future offending would be lessened further if he were able to avail himself of continuing psychological treatment sessions upon his release.  He accepted however that the parole authorities do not have the power to make any such order.

31. [31]
    Finally, Dr Madsen noted that the respondent will undoubtedly experience stress as a consequence of him returning to life in the community after such a lengthy period of incarceration, and that the degree of stress would be significant. He said however that though the respondent’s capacity to tolerate stress was not great in the past and may very well be one of the triggers for his offending conduct, he has nevertheless demonstrated, most recently, over a lengthy period of time, a good attitude and an ability to appropriately deal with stressful situations.

32. [32]
    It should be noted that all of Dr Madsen’s opinions are based on the understanding that the respondent will require significant structures in place to assist him in reintegrating into the general community.

33. [33]
    I should also note that when giving evidence during the third review, Dr Madsen was of the view that the respondent would need to demonstrate for a period of at least six months that he could appropriately live in the residential housing unit to demonstrate that he would or could be safely managed in the general community. At the time of that review he had only lived in that residential unit for two months. He has now lived in that unit for approximately two years and ten months without breach. Dr Madsen accepted that that is an ample period of time for the respondent to demonstrate his ability to behave appropriately in a less controlled setting.

Dr Sundin’s evidence

34. [34]
    Dr Sundin interviewed the respondent on 25 January 2018 for the purposes of preparing a report for these proceedings. She has previously prepared reports relating to the respondent in December 2012 and October 2014.

35. [35]
    In Dr Sundin’s opinion the respondent’s primary diagnosis is one of anti-social personality disorder. She noted that on an actuarial instrument such as the Static 99R, the respondent scores 6 which would place him among a group of offenders considered to be at high risk for future sexual offending. By contrast though she would score him in the moderate range for future sexual violence on the Sexual Violence Risk Scale (SVR-20).

36. [36]
    At page eight of her report, Dr Sundin said:

“Mr Stone’s risk to the community would increase if he reverted to abuse of disinhibiting substances (licit or illicit), failed to remain engaged with appropriate individual and group treatments designed to assist with abstinence and emotional self-regulation, began to self-isolate or failed to engage with meaningful activities through work and/or recreation.  Regression into cognitions of resentment or perceiving himself to be a victim should raise concern as these may presage aggressive acting out behaviours.  Given his current age and lengthy incarceration he is unlikely to act out in a sexually violent manner immediately upon release and an appropriate supervision program would have the capacity to identify any rise in risk factors.”

37. [37]
    Later she said:

“Overall he shows a clear improvement in his capacity for emotional self-regulation and although he continues to express a degree of indignation and a number of self as a victim cognitions, he is no longer acting out this negative mindset and has been less inclined to ruminate upon his own adversities.”

38. [38]
    In relation to the respondent’s risk of future sexual offending, Dr Sundin stated:

“In determining the issue of risk to the community, historically Mr Stone does represent a high risk for future sexual recidivism.  However, from a risk management perspective I am of the opinion that his actual future risk has reduced to moderate.  This reflects his successful completion of therapy programs, his emotional maturation, his improved capacity for self-regulation and the substantial reduction in his capacity for aggressive behaviour.

If Mr Stone’s sentence is transferred to a finite period and parole is being given consideration, he will need considerable assistance in preparing for the transition back into the community and it would be appropriate for him to complete a Transitions Program prior to release from incarceration.”

39. [39]
    In evidence before the court, Dr Sundin added that the respondent should also complete a Resilience Program prior to release on parole.

40. [40]
    Finally, Dr Sundin recommended that if the respondent is to transition to the community he should be the subject of high levels of support and supervision given his length of incarceration and the seriousness of his past offences. She suggested that by way of case management, he should be supported by the following:

• the imposition of curfews;
• GPS monitoring;
• exclusion zones;
• total abstinence from alcohol and illicit substances;
• repetition of the sexual offenders maintenance program, and
• participation in a sobriety maintenance program within the community.

She also said that any assistance that could be provided to link him into some form of meaningful activity either by way of paid employment or volunteering will be of benefit in improving his prospects as would linkage to pro-social indigenous community support groups as well as linkage with supportive elders.

41. [41]
    Dr Sundin also noted that the respondent is now 55 years of age and is rapidly approaching the age (60 years) when his actuarial risk for future sexual offending is further reduced. When questioned as to whether this intensive support would be sufficient in the circumstances for a maximum period of five years to reduce or minimise the respondent’s risk of sexual or violent reoffending, Dr Sundin noted that if the respondent were able to not reoffend for a five year period following his release from incarceration, then his risk of reoffending would automatically be halved before even taking into account the fact that he would then be at least 60 years of age which on the actuarial tables is suggestive of a further reduction in risk.

42. [42]
    In her brief addendum report of 24 June 2018, Dr Sundin helpfully suggested that the respondent’s release, whenever that might arise, should not be abrupt or without release planning.

Submissions

Applicant’s submissions

43. [43]
    Counsel for the applicant has submitted that whilst the respondent may presently present as a moderate risk of future sexual or violent reoffending, his historical factors place that risk as high.

44. [44]
    The applicant further submits that for that reason the court would be satisfied that the respondent is still a serious danger to the community and that a finite sentence would not have a sufficient protective effect.

Respondent’s submissions

45. [45]
    Counsel for the respondent naturally has referred the court to the opinions of Drs Madsen and Sundin.  Dr Sundin has expressed the view that the respondent presents as a moderate risk of reoffending if the parole conditions which she has identified are put into place in support of his reintegration into the general community.  Dr Madsen of course has offered the opinion that the respondent presents at a risk level of something less than high. 

Conclusion

46. [46]
    In determining whether the respondent still is a serious danger to the community, I must have regard to those matter listed in s 163(4) of the Act:

Section 163(4)(a) whether nature of offence is exceptional

47. [47]
    There can be little doubt that the nature of the offences to which the indefinite sentences are attached are exceptional. In fact, the learned sentencing judge at first instance, White DCJ, first imposed indefinite sentences for these charges on 16 December 1997 but that decision was overturned on appeal and the matter was referred back to his Honour for further consideration. In the judgment of the Court of Criminal Appeal, the Chief Justice said:

“It would, I think, be difficult to regard the nature of these offences as other than exceptional; a 33 year old, just released from custody, in the early hours of the morning, abducting the 14 year old daughter of a woman who was helping him re-enter the community, and subjecting her over an extended period to violent and perverse sexual acts and indignities, coupled with serious threats.”

Section 163(4)(b) the respondent’s antecedents, age and character

48. [48]
    The respondent’s antecedents, in particular his criminal history and history of breaches whilst in custody do him no favours on this review. Nevertheless, those matters must be viewed in the full context of considerations. His behaviour in custody for the past 3 years 10 months has been impressive and there is clear evidence that as he ages his developing maturity when combined with the extensive counselling he has received has resulted in an improved attitude and ability to appropriately respond to stressful situations. For this reason his age is also a relevant consideration.

49. [49]
    Insofar as his character is concerned there is little before the court that informs other than his criminal history and breach history. I note though that the respondent’s interactions with correctional centre staff have been characterized as appropriate and respectful and he maintains a paid position as a unit cleaner in the residential section.

50. [50]
    He has no visitors although he has telephone contact with a pastor once weekly. He intends to reside for a short undefined time with that pastor upon his eventual release before obtaining independent accommodation. That is the extent of his post-prison plans.

Section 163(4)(c) medical, psychiatric, prison or other relevant reports

51. [51]
    I have already referred to the reports of Drs Sundin and Madsen. Dr Madsen summarised his opinion as to the respondent’s future offending risk as follows:

“As regards to risk, obviously when considering only history factors Mr Stone would be regarded as a “high risk”.  On the positive side, however, many of the factors that were likely relevant for his historical offending has [sic] changed for the better.  He is a 55 year old man, and is physical [sic] vulnerable due to diabetes and a heart condition.  He has also completed group and individual treatment and been evaluated as having benefitted from such.  So whilst he may be evaluated as a high risk, it is my view that his actual risk is lower.”^[15]

52. [52]
    In evidence Dr Madsen said that the respondent is now at a stage of life where he understands that his offending behaviour was his own responsibility and does not victim blame in that regard, and that he expresses remorse and understands the reasons why he offended.^[16]Dr Madsen also confirmed that in his opinion the respondent has now demonstrated over a long period of time a very good capacity to deal with very tricky, stressful situations and interactions in an elegant way and without causing problems.^[17]

53. [53]
    Dr Madsen also noted that the respondent was very willing to undertake the Transitions Program in preparation for release on parole but that he has been unable to undertake that program due to the fact that he has been the subject of indefinite sentences.^[18]

54. [54]
    Dr Madsen also gave the following, very relevant, evidence:

“In my engagement with him consistently, he hasn’t appeared resentful and – and argumentative.  He hasn’t denied offending.  He hasn’t denied his needs for getting support and help.  He presented a (sic) very practical and understandable concerns and anxieties about the future and that kind of thing.  So I think the person that he is today is very different to the person that he was in – in – in the late ‘90s.”^[19]

55. [55]
    Correctional Centre records show that the respondent continues to be held under a high security classification notwithstanding being housed in the residential section.

56. [56]
    With one minor and irrelevant exception for which no breach was recorded, his urinary drug screens from May 2011 have been clear.

57. [57]
    In addition to that which is contained in her reports, Dr Sundin said in evidence that the respondent’s level of acceptance of responsibility for his offending behaviour is still somewhat reduced^[20]and she rated his risk of future offending as being in the moderate to high category as opposed to simply being moderate^[21]unless: 

“there was a comprehensive program of supervision and management in the community, yes, I think that that level of supervision has the potential to moderate his risks sufficiently that he could be placed in the community”.^[22]

Section 163(4)(d) and (e) The risk of serious harm to the community if the indefinite sentence is discharged and the need to protect members of the community from that risk

58. [58]
    Danger to the community is to be assessed on the basis of temporal issues that span at least the future period of two years until the next statutorily mandated review.^[23]That is, consideration can be given to the possibility that the respondent would be released on parole at some point during the next review period.  The possible engagement of parole conditions therefore forms part of the considerations when assessing whether the respondent still constitutes a risk of serious harm to members of the community. 

59. [59]
    As I have already stated, Dr Sundin is of the view that provided certain identified conditions form part of the respondent’s parole requirements, then she would rate his risk of future offending as moderate. It is accepted by both parties that the suggested conditions fall within the ambit of the Parole Board’s authority.

60. [60]
    Upon an application for parole the Board would be provided with all information regarding the respondent, including his prison records and all the reports of Doctors Sundin and Madsen, as well as previous reports prepared by other health professionals. The impact of the availability of parole is therefore a relevant consideration. When taken into account with the opinions of Doctors Sundin and Madsen, I am of the view that the applicant has not proved, to the requisite standard that the defendant is “still a serious danger to the community”. In other words, it appears that at this stage of his life, community safety can be adequately addressed by the introduction of finite sentences.

61. [61]
    That is not to say that the respondent does not present with some degree of risk. Quite clearly he does. However to categorize that risk as a “serious risk” is not supported by the evidence. The historical considerations, whilst still of relevance, must be viewed and assessed in light of the respondent’s more recent behaviour, his improved attitudes, his appropriate interactions with others and his improved capacity for self-regulation. Additionally, he has demonstrated a developing insight into triggers and how to better respond to them. His age is also of significance as are his health conditions. As I have said, it is upon the entirety of the information before the court that the assessment must be based. In that regard, the court places heavy reliance upon the opinions of the experts, both of whom are highly regarded in their respective fields.

62. [62]
    Taking all those matters into account, the time has now come for the discharge of the indefinite sentences and the imposition of finite sentences.

The respondent’s parole predicament

63. [63]
    The notional sentence of 14 years has now expired.

64. [64]
    Section 174(1) of the Act allows an offender upon whom a finite sentence has been imposed to apply for parole release under the Corrective Services Act 2006.

65. [65]
    Under s 180 of the Corrective Services Act 2006:

“(1) A prisoner may apply for a parole order if the prisoner has reached the prisoner’s parole eligibility date in relation to the prisoner’s period of imprisonment.

3. (2)
   However, a prisoner cannot apply for a parole order—

1. (a)
   if a previous application for a parole order made in relation to the period of imprisonment was refused—

1. (i)
   until the end of the period decided under s 193(5)(b); or

2. (ii)
   unless the parole board consents; or

2. (b)
   if an appeal has been made to a court against the conviction or sentence to which the period of imprisonment relates – until the appeal is decided; or

3. (c)
   otherwise – more than 180 days before the prisoner’s parole eligibility date.

3. (3)
   The application must be made—

1. (a)
   in the approved form; and

2. (b)
   to the parole board.

3. (4)
   A parole order for a prisoner may start on or after the prisoner’s parole eligibility date.”

66. [66]
    Under s 200 of the Corrective Services Act:

“(1) A parole order must include conditions requiring the prisoner the subject of the order – 

1. (a)
   to be under the chief executive’s supervision –

1. (i)
   until the end of the prisoner’s period of imprisonment; or

2. (ii)
   if the prisoner is being detained in an institution for a period fixed by a judge under the Criminal Law Amendment Act 1945, Part 3 – for the period the prisoner was directed to be detained; and

2. (b)
   to carry out the Chief Executive’s lawful instructions; and

3. (c)
   to give a test sample if required to do so by the Chief Executive under s 41; and

4. (d)
   to report, and receive visits, as directed by the Chief Executive; and

5. (e)
   to notify the Chief Executive within 48 hours of any change in the prisoner’s address or employment during the parole period; and

6. (f)
   not to commit an offence.

2. (2)
   A parole order may contain a condition requiring the prisoner to comply with the direction given to the prisoner under s 200A.

3. (3)
   A parole order granted by the parole board may also contain conditions the board reasonably considers necessary—

1. (a)
   to reasonably ensure the prisoner’s good conduct; or

2. (b)
   to stop the prisoner committing an offence.”

67. [67]
    The finite sentence cannot be less than the nominal sentence and is taken to have begun on the day that the indefinite sentence was imposed.^[24]

68. [68]
    The respondent accepts, that if only the nominal sentence were imposed, he would be released without any supervision. He also accepts that such an outcome would be unacceptable.

69. [69]
    Both parties accept that the full time release date of his nominal sentence would have fallen around July 2017.^[25]

70. [70]
    Section 174A of the Act states:

“(1) This section applies if an offender on whom a finite sentence has been imposed is not currently on parole 6 months before the relevant period of imprisonment for the offender ends (the 6-month period).

2. (2)
   To remove any doubt, it is declared that this section applies even if the offender made an application under section 174 (an offender application) that has not been decided.

3. (3)
   The Queensland board must, within the 6-month period, make a parole order under the Corrective Services Act 2006, section 194.

4. (4)
   If the offender has made an offender application, subsection (3) applies even if the decision on the application was or would not have been to grant the parole.

5. (5)
   If the offender has not made an offender application, subsection (3) applies as if the offender had lawfully made an offender application.

Note – the word ‘lawfully’ is necessary because ordinarily an offender application within the 6-month period would be prevented under section 174(2).

6. (6)
   The parole order may order the offender’s release at any time during or at the end of the 6-month period for a parole period ending after the relevant period of imprisonment ends.

7. (7)
   The board must decide the parole period which is to start from the release.

8. (8)
   The parole period decided by the board must be 5 years, subject to subsection (9).

9. (9)
   The parole period may be less than 5 years only if the board considers that period is appropriate having regard to any relevant board guidelines.

10. (10)
    In this section—

Relevant period of imprisonment, for the offender, see section 174(9).”

Accordingly, the respondent submits that if finite sentences were imposed such that he was within 6 months of completing them (such as a period of 15 years and 6 months), the parole board would be obliged to make a parole order and that the parole period would almost certainly be 5 years. Pursuant to s 174B(6) of the Corrective Services Act the term by which the parole order extended beyond the expiry of the finite sentence would be deemed to extend that finite sentence.

71. [71]
    The applicant on the other hand has submitted that concurrent finite sentences of 18 years imprisonment should be ordered. That period has not been arbitrarily selected, but rather is based upon the sentencing remarks of his Honour Judge White on 16 November 1998 when he ordered the indefinite sentences. To understand those comments I need to refer to the history of the matter. White DCJ first imposed indefinite sentences in respect of those charges on 16 December 1997. The respondent appealed that decision and the appeal was upheld by judgment of the Court of Appeal delivered on 20 October 1998.^[26]The Court of Appeal held that the learned sentencing judge failed to expressly consider a material issue as required by law and returned the matter to the sentencing judge to consider the matter according to law. It was at that further hearing that the indefinite sentences the subject of this application were imposed.

72. [72]
    At that second hearing, when discussing the nominal sentences his Honour said:

“As to the nominal sentences, out of fairness to the prisoner, and because the error which brought this matter back to me was mine, I feel bound to adhere to the nominal sentences I stated at the earlier hearing. However, I feel that I should mention a possible error on my part which was not identified by the Court of Appeal. In stating those nominal sentences I took into account that I had already ordered indefinite sentences and made the nominal sentences somewhat less than I would have if I had dismissed the application for a nominal sentence or if the application had not been made. I did this on the basis that the “punishment effect” of an indefinite sentence over a long period of years would be greater than if a fixed term sentence were imposed from the start.

It would not follow therefore that if the immediate (sic) sentence was not imposed that fixed term sentences equivalent to the nominal sentences would automatically result. If I dismissed the application for an indefinite sentence I would impose fixed sentences of 18 years.”^[27]

73. [73]
    Notwithstanding that his Honour in fact identified nominal sentences of 14 years imprisonment, I nevertheless find myself in agreement with his statement that finite sentences of 18 years imprisonment are called for in the circumstances of this matter taking into account:

• the fact that the respondent pleaded not guilty and the complainant therefore had to endure the anxiety, duress and emotional stress of giving evidence;^[28]
• the seriousness of the offending behaviour including its protracted repetition of brutal conduct;
• the abuse of trust involved in the commission of the offences;
• the emotional trauma suffered by the complainant and her mother;
• the disruption to normal life for the complainant and her family as a consequence of the behaviour;
• the respondent’s very serious and relevant criminal history;
• considerations such as general deterrence, just and appropriate punishment, and public denunciation of such vile behaviour.

74. [74]
    In the respondent’s favour I take into account those areas of his personal improvement to which I have already referred.

75. [75]
    Both expert witnesses in this matter noted that the respondent will need considerable assistance in preparing for life outside of prison and a carefully planned transition process. There is no evidence before the court that any steps in that regard have yet commenced. The respondent himself has no real plans for his release other than to reside at first with a pastor who has befriended him during his incarceration. As was recognised by each expert, such lack of planning is hardly surprising given his circumstances to the present time.

76. [76]
    Notwithstanding that finite terms of 14 years were declared by the learned sentencing judge, his sentencing remarks make it abundantly clear that he would in fact have imposed sentences of 18 years imprisonment if he had not ordered that the respondent be sentenced indefinitely. He adopted that approach in an attempt to not act unfairly to the respondent, noting that as he had imposed finite terms of 14 years during the first sentencing hearing, he felt obliged to maintain that position notwithstanding his later realisation of the error in his approach. The effect of his ultimate approach however is that the respondent gained the potential benefit of having his indefinite sentences first reviewed at an earlier time than would otherwise have occurred.

77. [77]
    Nevertheless, given the serious features to the respondent’s offending conduct and his antecedents, it is clear that finite sentences of 14 years imprisonment are inadequate in the circumstances. In my view, the sentence nominated by White DCJ of 18 years is the appropriate sentence in all the circumstances and would reflect all relevant considerations.

Orders

1. The indefinite sentences imposed by his Honour Judge White on 16 November 1998 in respect of Counts 2, 4, 6, and 8 are discharged;

2. In lieu thereof, the respondent is sentenced to 18 years imprisonment in respect of each of Counts 2, 4, 6, and 8 to be served concurrently with each other but cumulatively upon the sentence the respondent was serving on 16 November 1998;

Recommendation

78. [78]
    It follows that the respondent is now eligible for parole consideration. I recommend that the Parole Board be provided with a copy of all relevant material if and/or when the respondent makes a parole application including all reports of Doctors Sundin and Madsen as well as the transcript of the hearing before me on 6 August 2018.

79. [79]
    I appreciate that such a recommendation is likely unnecessary as the Parole Board would ordinarily require and receive such information as a matter of course.