R v Rodgers

[2002] QCA 148

[2002] QCA 148

COURT OF APPEAL

de JERSEY CJ
WILLIAMS JA
ATKINSON J

CA No 13 of 2002

THE QUEEN

v.

BARRY WILLIAM RODGERS  Applicant

BRISBANE

..DATE 22/04/2002

JUDGMENT

WILLIAMS JA:  The applicant pleaded guilty to an offence of indecent dealing with a child under 16 years.  The offence occurred on the 12th of April 1996 but he was not convicted until 14 December 2001.  The reason for that lapse of time will be explained later.

The complainant boy was 12 years of age and was staying at the applicant's house on the occasion in question.  At about 10.30 p.m. that night while the complainant was lying on a lounge in the bedroom watching television the applicant lay down nearby.  The applicant pulled the complainant over towards him, fondled the complainant's penis, initially under his shorts, then removed the shorts and sucked on the boy's penis.  The complainant boy fled and complained immediately to the police.

The applicant has an unfortunate history of similarly offending with young boys.  His first relevant conviction appears to have been on the 19th of March 1962.  He has a series of convictions in his homeland, New Zealand, in New South Wales and this offence in Queensland.  He apparently committed some 11 offences in New South Wales between the 1st of January 1974 and the 21st of July 1989.

He was facing a warrant for arrest with respect to those charges when the present offence occurred.  He fled to New Zealand very shortly after committing the offence in Queensland and, whilst in New Zealand, was convicted of certain offences which had occurred in the 1980s. 
He served a period of imprisonment there, was then extradited to Sydney in April 1997 and faced the 11 charges to which I have already referred.  He was dealt with for those offences in 1998 and 1999.  The original sentence imposed was reduced in one respect on appeal. 

The sentencing Judge here was told that the applicant's full time release date with respect to the New South Wales sentence was the 21st of April 2005 with an eligibility for release on parole from the 21st of October 2002. The applicant had applied to be transferred to Queensland under the Prisoners Interstate Transfer Act 1982 and he was so serving his New South Wales period of imprisonment in Queensland at the time he was dealt with for this offence.

The learned sentencing Judge had regard to the issue of totality given the sentences which had been imposed in New South Wales.  I am of the view that she gave adequate regard to that particular principle of sentencing.  She came to the conclusion that the appropriate sentence to impose here was nine months' imprisonment cumulative on the sentence presently being served with a recommendation that he be eligible to apply for parole after serving three months of that sentence.  The sentencing Judge then indicated that her view was that that meant that he would be eligible to apply for parole on the 21st of January 2003.

That sentence, which was imposed on the 14th of December 2001, could only have been imposed because the offence in question took place in 1996 and, pursuant to section 11(2) of the Criminal Code, the sentence or penalty had to be that which applied when the offence occurred.

Section 157 of the Penalties and Sentences Act now provides that a Judge on sentence may only make a recommendation for early eligibility for parole where the head sentence imposed is for more than two years. The apparent philosophy behind that is that prisoners should undergo certain courses before they meet the criteria for eligibility for parole recognised by the parole board.

The concern that I have here is that, if that criteria was applied to this applicant, he may not be in fact released after serving three months cumulative on the New South Wales sentence.  It is agreed by the Crown that the appropriate sentence in all the circumstances is one which would require him to actually serve three months cumulative on the New South Wales sentence.

In my view it is desirable that there be some greater certainty in the sentence imposed on the applicant. That can be achieved by utilising section 144 of the Penalties and Sentences Act and suspending the sentence after three months with an operational period of 12 months.

In the circumstances I would grant leave to appeal against sentence; allow the appeal; set aside the sentence imposed below and in lieu thereof order that the applicant be sentenced to nine months' imprisonment cumulative upon the New South Wales sentence he is presently serving. 

I would further order that that sentence be suspended after serving three months thereof and I would fix the operational period as a period of 12 months. 

THE CHIEF JUSTICE:  I agree with the orders proposed by Justice Williams and with his reasons.

ATKINSON J:  I also agree.

THE CHIEF JUSTICE:  The Court makes those orders.

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