R v Smith

[2008] QDC 261

DISTRICT COURT OF QUEENSLAND

CITATION:

R v Smith [2008] QDC 261

PARTIES:

R

v

STUART MCKAY SMITH

FILE NO/S:

Indictment 199A of 2000

DIVISION:

Criminal

PROCEEDING:

Application to review Indefinite Sentence

ORIGINATING COURT:

District Court

DELIVERED ON:

10 November 2008

DELIVERED AT:

Beenleigh

HEARING DATE:

10 November 2008

JUDGE:

Dearden DCJ

ORDER:

That the indefinite sentence be discharged and that the defendant be sentenced to the nominal sentence originally imposed: 18 years.

CATCHWORDS:

Indefinite sentence - review - conviction of a serious violent offence - sodomy of a child under 12 years – nominal sentence - significant inadequacies in the material - responsibility for the deficiencies lies with Department of Corrective Services - systemic concerns –completion of sexual offending program prior to review - risk of recidivism

LEGISLATION:

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

Dangerous Prisoners (Sexual Offenders) Act 2003 (Qld)

CASES:

Buckley v R (2006) 80 ALJR 605

R v Buckley [2008] QCA 45

R v Eades [2008] QDC 124

R v Smith [2001] QCA 417

HIS HONOUR:  1.  This is an application to review an indefinite sentence imposed by Judge Nase in the District Court at Beenleigh on 7 June 2001 in respect of Stuart McKay Smith.  That indefinite sentence was imposed in respect of count 16 on a 17 count indictment - a charge of sodomy of a child under 12 years.  The sentence which would have been imposed, had an indefinite not been imposed, was a sentence of 18 years imprisonment.  Concurrent finite sentences ranging between two years and eight years' imprisonment were imposed in respect of counts 1-15 and 17 on the 17 count indictment, as well as a sentence of five years on a separate indictment in respect of a single count of unlawfully procuring a child under the age of 16 to perform an indecent act.

2.  The indefinite sentence imposed by Judge Nase was the subject of an unsuccessful appeal to the Court of Appeal (R v Smith [2001] QCA 417 - judgment delivered 5 October 2001).

3. The application is governed by part 10 of the Penalties and Sentences Act 1992 (Qld). The required review must be conducted within six months of the offender completing 50 per cent of the nominal sentence (Penalties and Sentences Act S.171(1)(a)(i)). The Director of Public Prosecutions calculates that the review must be completed within six months of 21 July 2008 (DPP Outline of Submissions para 2).

4.  The following material has been placed before the Court for the purpose of this review:

• Exhibit 1 - Summary Behavioural Report - Lynley Milne dated 12 August 2008;
• Exhibit 2 - Specialist Summary Report - Robert Wood dated 6 August 2008;
• Exhibit 3 - Psychiatric Report - Dr Ken Arthur dated 15 August 2008;
• Exhibit 4 - Affidavit of Elizabeth Wall sworn 27 June 2008;

- Submissions to and sentencing remarks of Botting DCJ 21 February 1997 (relating to previous sexual offending);

- Sentencing remarks of Judge Nase dated 7…