R v Guy

[2010] QDC 418

DISTRICT COURT OF QUEENSLAND

CITATION:	R v Guy [2010] QDC 418
PARTIES:	R V ERROL LEE GUY
FILE NO/S:	Original indictment no. 767/09 Breach file no. 2008/10
DIVISION:	Criminal
PROCEEDING:	Breach of intensive correction order
ORIGINATING
COURT:	Brisbane District Court
DELIVERED ON:	21 October 2010 (ex tempore)
DELIVERED AT:	Brisbane
HEARING DATE:	21 October 2010
JUDGE:	Irwin DCJ

ORDER:	1.	The breaches having been admitted, the intensive correction order made on 23 October 2009 is revoked;
2.	portion of the term of imprisonment to which he was sentenced that was unexpired on the day of the
The defendant is committed to prison for the which was 1 January 2010, namely 296 days;
3.	I state that the prisoner has been held in pre- sentence custody for this offence and for no other reason from and including 10 August 2010 to and including 21 October 2010, namely 72 days. I declare that period of 72 days to be time already served under the sentence;
4.	I fix a parole release date of 17 November 2010.

CRIMINAL LAW - SENTENCE - where the defendant was sentenced to a term of imprisonment for 1 year on his plea of guilty to one count of stalking a 12 year old private school

boy and an intensive correction order was made for him –
where the order was subject to five special conditions,
including that the defendant not go within 200 metres of a
private school and that he not use public transport between
specified hours on school days – where the defendant
committed three breaches of the order – where the first and
most serious breach was to ride on a school bus within the
specified times – where this breach was committed before the
defendant had commenced courses or programs to deal with
the causes of his offending – where the defendant committed
two further breaches of the order subsequent to commencing
such a program – where the two further breaches involved
going within 200 metres of a private school – where one of
the breaches related to a girls school – where the other breach
was committed in the night time – where the defendant had
complied with the order in a number of significant respects –
where the defendant was 44 years – where he had previously
been convicted of stalking in similar circumstances on two
previous occasions – where the defendant had been released
on 3 years probation on each of those occasions – where on
one of those occasions he was also sentenced to 4 months
imprisonment – where the defendant had been held in pre-
sentence custody for the breaches of the order and for no
other reason for 72 days – where it was recommended that
the defendant was unsuitable for further community
supervision – whether to resentence the defendant to a term
of imprisonment for the original offence or order the
defendant serve the remainder of the period of the intensive
correction order – whether, if the defendant was resentenced
to a term of imprisonment, he be released on probation at the
end of that term
Penalties and Sentences Act 1992 (Qld), ss 123(1), 126(4),

127(1)

COUNSEL:	B. J. Merrin for the Crown M.W. Harrison for the defendant
SOLICITORS:	Director of Public Prosecutions (Queensland) for the Crown Bell Miller for the defendant

2   SENTENCE

HIS HONOUR: Would you stand up, Mr Guy? Just under two days short of 12 months ago I sentenced you on your plea of guilty to one count of stalking which took place between the 13th of July 2008 and the 7th of October 2008. The complainant was a 12 year old private school boy.

Your offending was seen in the context that you had contact with him on two prior occasions when he was catching a bus home from school. At that time he was in his school uniform. You asked him what school he attended and what class he was in. On one of those occasions you provided him with a post-it note stating that you had second-hand school shoes for sale. There was a phone number on the note. You told the boy to give this to his mother and to have his mother call you.

There are overtones of your contact with that boy in the first of the sets of circumstances which has caused you to breach the intensive correction order that I imposed upon you in relation to that offence.

The first of the concerning acts for the purpose of that stalking charge was committed at a railway station where the complainant was catching the train home from school. You followed him to the local shops and from one platform to another. You also went into a recess where he had taken refuge. When he walked out, you followed him again.

The second concerning act on which the stalking was based intimidating manner. I considered that you were deliberately present near the child, in circumstances where you were deliberately putting yourself at a place where schoolboys would be at that time of the day. The child boarded the train and you followed him. You moved into the carriage where he was and you sat close to him. Your mobile phone was directed towards his feet. Although in sentencing you, I proceeded on the basis that you were using the viewfinder to look at his legs rather than to take photographs or video footage of him. 3 SENTENCE

occurred at another train station. You were there at a time
when you must have expected that school students in their
school uniforms would be using the station to return home.

When you were questioned by the police, you volunteered that you had a fetish for school uniforms. You agreed that the fetish was basically for schoolboys wearing those uniforms. You said you did not get aroused but it made you feel better about yourself.

Again, when the police interviewed you about your breaches of the intensive correction order, you indicated to them that you had similar urges and fetishes working on you at that time.

You accepted that you did take photographs covertly using your phone at the time you were interviewed by the police about your original conduct for which I sentenced you last year.

I sentenced you on the basis that on the two occasions in the position where it was likely that children would be present, and once children were present at places like railway stations, you intentionally approached the children and directed your conduct towards them. 4 SENTENCE

question involving the child whom I have mentioned, you did
not get sexually aroused by seeing him.

I accepted in sentencing you, however, that your conduct lacked many of the features which are normally associated with stalking offences which come before the Court. Your offending involved less persistence and it did not involve the vindictiveness or the meanness which is often associated with those types of offences. Consistently with what I have already mentioned, your conduct on those occasions did not involve a planned repetition but rather taking the opportunity that arose when you saw the boy at the railway stations to deliberately place yourself near him.

As I have said, I approached your sentencing on the basis that it was not a sexual approach to the child and that your conduct on those occasions did not have a sexual motivation.

In sentencing you, I also referred to the fact that you had previously been dealt with by the District Court for similar offending. In 2001 there were two victims who were both 13 year old boys and were students at private schools.

You followed the first child when he left school and asked him you having a conversation with another child at a bus stop with the result that he gave you his phone number. You then called him a number of times but would hang up when the phone was answered. On another occasion the child saw you when he left school. The matter was reported to the police and your house was searched. They found a camera and photos of boys in school uniform. They also found yearbooks of private schools. It seems that you had on occasions pretended that you had a son so you could gain access to private schools, although no pornography of any sort was found in the house. 5 SENTENCE

to slow down.

When you were interviewed by the police, you said that you had an urge to watch young boys in private school uniform. You said you were driven by urges to look at them and you felt happy to see them, because you hadn't had those opportunities when you were a child. As in the case I was sentencing you for, there was no suggestion that you attempted to touch these children and no evidence of threats or violence being used.

As a result of those offences, you were placed on probation with which you were generally compliant until you committed another offence involving a 13 year old child, who was one of

two children of a woman with whom you established a

friendship.

This 13 year old was also a student at a private college. You sent him unwanted text messages as well as making phone calls to him over a two month period. You were asked not to contact him as you made him feel uncomfortable. You were seen waiting at a railway station in the afternoons to see him. Again, 6 SENTENCE

1

there was no suggestion that any of the phone calls were
suggestive or asking him to meet you, and there was no

suggestion that they were sexually explicit.

On this occasion, when you were sentenced by her Honour Judge	10
Richards to four months' imprisonment and another three year
probation order, her Honour told you that you must modify your
behaviour and learn how to control your actions. You said
that you realised that. She also told you that it was
important to get treatment so that you could modify your	20
behaviour and learn to keep away from schools. Again, you answered her in the affirmative.
On that occasion, you completed the probation period without
committing any further offences, however about 12 months after	30
the end of that period you committed the offence for which I sentenced you. In sentencing you I had regard in particular to the report by Dr Moyle a psychiatrist. In that report he suggested that you needed to be closely monitored for the next
five years. As I said in sentencing you, there was no order	40
that this Court could make within the range of sentencing
options available to it, particularly having regard to the
nature of your offending, that could result in you being
monitored closely as suggested by Dr Moyle for five years. As
I noted when sentencing you, the only thing that the Court	50
could do for any lengthy time was to make a restraining order
of sufficient length to cover the school years of the
complainant in that case.

1-7 SENTENCE 60

In sentencing you, I imposed a sentence which I considered
reflected the serious aspects of your offending behaviour and
in particular that it was the latest instalment in offending
of a serial nature. It also reflected your lack of remorse

and your high risk of re-offending in a similar way, according	10
to Dr Moyle, as well as your failure to be deterred by the
four month term of imprisonment that was imposed upon you in
2004 and your failure to seize the opportunities of
rehabilitation, which had been given to you by probation on
two occasions.	20
In sentencing you, I also recognised the need for a sentence which expressed both general and personal deterrence and the need to protect the community. I sought to balance that
against the benefit of your early plea of guilty and your	30
cooperation with the police in engaging in a lengthy record of interview with them, as well as speaking to them when they executed the search warrant on your premises.
I also took into account that by adopting the course of action	40
of pleading guilty before the pre-recorded evidence of the child was taken, it meant that the child did not have to further suffer the trauma of reliving these experiences by giving evidence about those events and being cross-examined.
50

I had regard to the actual nature of your offending in that case and I sought to balance the protection of the community with imposing a sentence which gave you the opportunity for rehabilitation, it being recognised that eventually you would 1-8 SENTENCE 60

1

be released back into the community again and it was in the
community interest that you would be able to rehabilitate

yourself.

Because I considered that for the reasons that I have	10
mentioned, your offending fell towards the bottom end of
seriousness of the type of offending I was sentencing you for,
that was to say stalking, I came to the conclusion that I
could best reflect those competing considerations by recording
a conviction against you and subject to your agreement, which	20
you gave, to sentencing you to a term of 12 months' imprisonment by way of an intensive correction order.
That intensive correction order was subject not only to the
general conditions of such an order, but also to a number of	30
special conditions. There were five such special conditions, which were as follows:

1.    You must attend assessments for appropriate programs

conducted by Queensland Corrective Services or other 40

agencies and if assessed as suitable, participate in such
programs as directed;

Secondly, and this is of particular relevance to how I deal

with you today; 50

2.    That you not go within 200 metres of any private school during the period of the order;

1-9 SENTENCE 60

Thirdly, and this is also of particular relevance to my

1

sentencing today;

3. That you not use public transport within the times of 7 a.m. and 9 a.m. and 2 p.m. and 4.30 p.m. on school days and at other times as directed by an authorised 10

Corrective Services officer.

Those were paragraphs K and L of the requirements of the order.

20

4.    That you attend and submit to such medical, psychiatric and psychological treatment and counselling as directed by an authorised Corrective Services officer, and

5.    That you not use a mobile phone that includes a capacity

to take photographs. 30

In imposing those requirements upon you as part of the
intensive correction order, I explained to you that if you
breached the order the consequence would be that for the

period of time that remained unserved after the breach of that	40
order, you would be required to serve the balance. I asked you if you understood that and you said that you did.
I also told you that while I was exercising my discretion not
to declare 23 days that you had already served in pre-sentence	50
custody as time already served under the sentence, I took it
into account in arriving at the sentence of 12 months'
imprisonment that I imposed upon you.

1-10 SENTENCE 60

I also made it clear to you that the order would be breached,
not only by committing offences during the course of the
period of operation of that order, but also if you failed to
comply with any other directions and requirements of the

order. Again, you told me that you understood that. So, as	10
the Crown Prosecutor has said today, you clearly understood the consequences of breaching the order.
I said to you that you must discipline yourself with the
assistance that can be given to you by the Department of	20
Corrective Services, just as you had promised to do on the
last occasion you were before a Court, by entering into a
program to prevent your relapse by staying away from places
and times where you would expect that young children were
likely to be.	30
I told you that that is the way to solve the issues that were bringing you before the Court and that no-one was going to accept any excuses that you didn't know that in future.
40
When I completed sentencing you, you chose to speak to me and
you said to me that you would like to say that what rings in
your ears every day is that I had made a comment during the
course of the sentencing proceedings about you being tired of
coming before the Court, and you indicated to me in effect	50
that you were tired of coming before the Court and that you
were actually going to do something about your lifestyle. You
spoke about taking courses at university.

11 SENTENCE 60

I said to you, before I left the Court, as the last thing that
I said to you, that what had to continue to ring in your ears
was that way of thinking if you were thinking at any time of
putting yourself in the position where that sort of conduct

was likely to happen again.	10
Now, regrettably, despite what you told me on that occasion
and your clear understanding of the consequences of breaching
the order, in particular, breaching clauses K and L of the
order which were particularly directed towards preventing you	20
from taking the opportunities that had led you to offending, you have breached the order by acting contrary to both of those requirements.
Your first breach of the order was committed relatively soon	30
after the order commenced to take effect. That was some time between the 1st of November 2009 and the 1st of January 2010. Out of fairness to you today, the prosecution have proceeded
on the basis that, if I am to activate the balance of the time
to be served under the intensive correction order, I should	40
proceed on the basis that this occurred on the 1st of January 2010, although I note that the person who brought your breach to attention says that it occurred in November or December of 2009.
50

That breach has circumstances which are very similar to the way that you first came into contact with the complainant of the offence for which I was sentencing you. I regard it as the most serious breach of the order because you were on a bus 12 SENTENCE 60

1

during the time that I had specifically required that you not
use public transport; that was at a time between 2 and 4.30
p.m. The person who made the complaint thought that it was

approximately 3.30 p.m.

10

It was a bus which was full of school children in their school uniforms. Again, you could have had no doubt that you were in breach of the order and, indeed, you were in breach of the

spirit in which I made that requirement of the order. This

person saw you observing a school boy and, when the school boy	20
the sale of school shoes. It had your telephone number on.
got off the bus, you handed him a note. That was a note about opportunity to make contact with a young school child.
30
Fortunately, the person who observed these things took the
note off the school boy and it was he, rather than the school
boy or his parents, who rang you. The matter was then
reported to the police. In those circumstances, the conduct
you were engaging in was effectively nipped in the bud. You	40
could take the matter no further with that child because that child was never going to contact you. Nonetheless, it was not an offence of stalking, but a breach of a condition of the order.
50

I do take into account, however, that at this time you had not yet entered into any programs that Queensland Corrective Services had assessed you as being required to undergo to assist you to deal with the behaviour which gives rise to your 13 SENTENCE 60

1

offending. That did not occur until the 11th of March 2010 was commenced, you still breached the order on two occasions.
when you commenced a program known as the Medium Intensity

10

The next occasion on which you breached the order was on the 28th of June 2010. This related to you being at a train station directly opposite St Aidan's Girls School and about 50 to 100 metres from the school.

20

While you were at the station, you had put up a flyer seeking interest in persons delivering pamphlets for you in the area. My understanding from what I was told previously, is that you had two ways of earning an income; one was through selling

renovated school shoes - that's the best way to describe it -	30
and the other, was by pamphlet distribution.
I appreciate that you were in the vicinity not of a boys'
private school, but of a girls' private school on this
occasion, and that it is your presence near boys' private	40
schools that gives the greatest cause of concern. There has never been a suggestion that you have an interest in female children. Nonetheless, you knew you were committing a clear breach of the order on this occasion.
50

It could not be excluded that boys as well as girls, may have seen that flyer and have responded to you. As it was, however, it was a young girl rather than a boy who responded 14 SENTENCE 60

1

to that flyer.

The third breach which occurred between the 30th of June 2010
and the 15th of July 2010, involved you walking home past the

Brisbane Grammar School. At least on this occasion while you	10
were in breach of the order, the facts placed before me suggest that this happened at night time and it is not suggested that it is a time when school children were in the vicinity.
20
So, although you walked past the school, it does not appear to
be an occasion where you were taking the opportunity to place
yourself in the vicinity of school boys at a time when you
might expect them to be present near a school. Although this
was one way that you could walk home, you told the police that	30
you could have walked home by avoiding the school and complying with my order.
It was on that occasion that you located the school tunic that
the Crown Prosecutor has referred to and you did ring the	40
school on a later date and ask if anyone had lost the tunic and also asked the school whether they would buy the tunic.
In all the circumstances, I consider that it is the first
breach that I mentioned when you got on the school bus	50

containing school children, and passed the note to the boy,
which was the most serious breach of the order.
The other matters are breaches of the order, but the 1-15 SENTENCE 60

1

circumstances in which they occurred were less serious
compared to your normal type of behaviour in trying to place

yourself near young boys.

I do take into account in your favour, as I have said, that	10
you had not commenced any courses or programs to deal with the causes of your offending at the time of that first breach.
So far as your compliance with the Intensive Correction Order
is concerned, it is also in your favour that other than the	20
breaches I have referred to, you are described as being
compliant with the terms of that order. The report I have
received tells me that you were completing community service,
engaging in individual intervention and undertaking the medium
intensity sexual offending program that I have referred to.	30
Unfortunately, because you breached the order, you were unable
to complete the total 44 sessions required to finalise that
program. Before you were taken into custody you had completed
36 sessions, but the author of the report concluded that	40
particularly in light of your breach of the order for the other reasons, that this suggests that the program had little impact on your risk of re-offending.
I also note that you participated in a mental health	50

assessment with your general practitioner and you were
referred to a clinic for the purpose of participating in
intervention and you attended there on six occasions and as I
have said, you also participated in community service as 1-16 SENTENCE 60

1

directed.

I also therefore recognise that you complied with paragraphs
"J" and "M" of the special requirements of the Intensive

Correction Order about attending assessments and participating	10
in programs as directed and submitting to such medical,
psychiatric and psychological treatment and counselling as
directed by an authorised Corrective Services officer. I also note, and I consider it is significant, that you have complied with the requirement that you not use a mobile phone that	20
includes a capacity to take photographs. A mobile phone was
found by the police when they executed a search warrant at
your address after these breaches came to light. It is not
suggested that the phone had those capacities and that it
seems to me is a step forward for you. I consider in the	30
circumstances that you have in a number of significant respects complied with the requirements of the Intensive Correction Order.
In determining how to address these breaches today, the	40
Prosecutor has suggested two alternatives to me; one is to
activate the balance of the unserved period of the Intensive
Correction Order from the time of the breach, which is a total
of 296 days; the other which is her preference is that I
sentence you to a term of imprisonment of up to 12 months,	50

perhaps eight months, and then require you to undertake a
further lengthy period of probation to fulfil the requirements
of rehabilitation which have been identified by Dr Moyle and
which as he has indicated, will require some considerable 1-17 SENTENCE 60

1

further period of therapy to address.

However, given the fact that you have now had the benefit of

probation orders for a total of three years on two occasions,

and have now had the benefit of an intensive correction order,	10
which is the most intense form of community based sentence
which a Court can impose, and recognising that the
recommendation in the report is that you are unsuitable for
further community supervision, I do not consider that it is	20
appropriate to give you the opportunity of a further probation
order. In any event, no probation order that this Court can
impose can operate for as long as Dr Moyle considers
necessary.
30
The fact is that you know from what you said to me last time
what your problems are. You know what causes you to commit
offences. You know what upsets and causes fear in young
children, and that is taking opportunities to approach them at	40
places like schools and railway stations during school hours
or times when they would be taking transport to and from
school. You know it is from handing them pamphlets and fliers
and putting up fliers so that people might contact you about	50
distributing pamphlets or buying shoes from you. You know it

is by using mobile phones to photograph children's legs.
You, despite some of the intellectual difficulties which are 1-18 SENTENCE 60

1

described to me in the reports, should at this stage, at 44

years of age, and having appeared before the Court for this

sort of conduct now on three occasions for stalking and this

fourth occasion for breaching the terms of this order, know	10
what you must do and what you must not do so that you don't
keep coming before the Courts.
In all the circumstances, I consider that the appropriate
approach to adopt to your offending is to effectively order	20
that you serve the remainder of the period of the intensive
correction order subject to an appropriately structured parole
release date and a recognition of the time that you have
already spent in custody in respect of these offences.	30
Proceeding on the basis that it is agreed by both counsel that
from the time of the breach, giving you the benefit of the
last possible date of that breach being the 1st of January
40
2010, there are still 296 days of that order unexpired from the time of the breach.
In sentencing you, I take into account the factors in your
favour that caused me to adopt the approach that I did on the	50

previous occasion.
In light of the breaches, I revoke the intensive correction 19 SENTENCE 60

1

order made on the 23rd of October 2009, and I commit you to

prison for the portion of the term of imprisonment to which

you were sentenced that was unexpired on the day of the

breach, which was 1 January 2010, that is a total of 296 days'	10
imprisonment.
I state that you have been held in custody for this offence
and for no other reason from and including the 10th of August
2010 to and including the 21st of October 2010, namely 72	20
days. I declare that that period of 72 days be time already
served under the sentence.
I do not intend to give you the further benefit of the 23 days	30
that you have previously spent in custody in relation to this
offence because I took it into account on the previous
occasion in determining to set a sentence of 12 months'
imprisonment. If I was to give you the benefit of that 23
40
days again, you would in fact be getting a double dip so far as that period of time in custody is concerned.
However, I do consider that because you have, in a number of
significant respects, complied with the requirements of the	50
order, and remembering that the most serious breach of the
order was before you commenced to gain access to a program

from Queensland Corrective Services, I consider it appropriate
to set a parole release date for you at one-third of the 20 SENTENCE 60

1

effective sentence that I am imposing of 296 days. I

calculate that as being 99 days, and, in other words, that is

a further 27 days of actual imprisonment to serve before you

reach the one-third mark of the sentence, deducting the 72	10
days that I have declared as being already served under the
sentence. I therefore set your parole release date as 17
November 2010.
Is there anything further, Ms Merrin?	20
MS MERRIN: No, thank you, your Honour.
HIS HONOUR: Anything further, Mr Harrison?
MR HARRISON: No, thank you, your Honour.
30
HIS HONOUR: Yes, and one other thing that I do need to do.
This is just a technical matter for the Court. Because this
matter was set down originally for hearing at 10 a.m. on the
10th of December 2010, I formally de-list the hearing of that
40
matter. That just simply assists with the Court records and avoids any risk of the need to mention the matter again.
All I'll say to you, Mr Guy, because I do say things to
defendants, as you know, beyond my sentencing remarks, and	50
this will appear on the record as well, is you will get the
benefit of the assistance of parole for about six and a-half

months from the date that you are released from prison. You must understand that during that period of time you must not 21 SENTENCE 60

1

commit another offence. You must not commit any sort of

offence no matter how minor it is. If you commit an offence

during that period of time that you're under parole, you will

have your parole suspended, and, with your record, I can	10
guarantee it will be revoked and you will spend whatever time
is left on the parole in custody.
If you are required to report to a parole office or to undergo
some program as part of the parole and you don't do that, or	20
you don't properly participate in the program, then you are in
breach of that parole order, and, again, it will result in
your parole being suspended and ultimately being revoked.
30
As I have said to you in the course of my sentencing remarks,
you have been given numerous opportunities by the Court. You
have been given the benefit of every reasonable community
based order - probation and intensive correction orders. You
40
are now being given the benefit of serving yet again part of your term of imprisonment in the community through parole.
You cannot expect any further opportunities or chances from
the Court. You have to do what you said last time to me you
were going to do and that is that you were going to take steps	50
to stop yourself being in situations where these offences are
likely to occur. It is going to be completely in your hands

again when that parole period has finished.
You must understand that, given your record, if you come back 22 SENTENCE 60

before the Court on offences involving unlawful stalking of

young children, or any offences of a similar nature, you are

going to go to prison and you are going to go to prison for a	10
long period of time. And if you keep doing this, you will go
to prison for longer and longer periods of time.
You are not stupid. You know what the causes of your
offending are. You know how to avoid offending. It is in	20
your hands after you finish parole as to whether or not you
live a life in the community or you live most of the rest of
the years that you've got left for you in prison.
30

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40

50

23 SENTENCE 60