Rodgers v The Queen

[2004] QDC 475

DISTRICT COURT OF QUEENSLAND

CITATION:	Rodgers v R [2004] QDC 475
PARTIES:	BARRY WILLIAM JOHN RODGERS
v
R
FILE NO/S:
DIVISION:	Criminal
PROCEEDING:	Reopening of a sentence [Penalties and Sentences Act 1992].
ORIGINATING
COURT:	District Court, Ipswich
DELIVERED ON:	2 December 2004
DELIVERED AT:	Ipswich
HEARING DATE:	17 August 2004
JUDGE:	Richards DCJ
ORDER:	Application refused.
CATCHWORDS:	Reopening of sentence – error of law or factual error of substance
COUNSEL:	Mr Rodgers was self represented Mr Lehane for the Crown
SOLICITORS:	DPP for the Crown

1. Mr Rodgers has applied to have his sentence reopened under s 188 of the Penalties and Sentences Act 1992 on the basis that here has been an error and/or illegality in the sentence imposed upon him in this court on 14 December 2001.

2. The appellant was sentenced on one charge of indecent dealing of a child under 16 after fondling a 12 year old boy’s penis and then sucking on it. The young child ran straight to a police station and Mr Rodgers fled the house. The police found him and he admitted the allegation, but once he was given bail he absconded from the jurisdiction.

3. He was arrested in New South Wales for a series of sexual offences committed between 1 January 1974 and 21 July 1989 and was sentenced to a term of imprisonment which expires on 21 April 2005. He was eligible for parole on 21 October 2002. Those offences also involved young boys, and involved sucking on their penises. He also has previous convictions for indecently assaulting boys in New Zealand, and thus can fairly be described as a serious paedophile.

4. As a result of Mr Rodgers’ serious criminal history, even though he had received eight years imprisonment in New South Wales in 1998, a further cumulative term of nine months imprisonment was imposed with a recommendation that he not be released before the expiration of three months of that sentence. It was therefore ordered that he not be considered eligible for parole before 21 January 2003.

5. After the sentence was imposed in the District Court, Mr Rodgers appealed to the Court of Appeal and on the first occasion was successful in his appeal in that the court replaced the cumulative sentence with a suspended sentence in an effort to give him some certainty of release.

6. Unfortunately the order had the opposite effect in that his sentence would have been much longer than was originally intended and therefore the Court of Appeal revoked their order and the original sentence was left to stand.

7. The submission in relation to the reopening of the sentence is that the sentence of nine months should have been made concurrent under s 155 of the Penalties and Sentences Act (1992) because:

• the Queensland sentence was imposed for an offence for which he was charged on 12 April 1996 and

• he was not charged with the other offences at that time, nor was he sentenced until 21 April 1997.

• in New South Wales another charge was added after his original sentence and a concurrent sentence was imposed.

1. Mr Rodgers proposition that a cumulative sentence cannot be made upon a sentence for charges which were not laid until after the second offence was committed is plainly wrong in law.

2. A sentence can be made cumulative upon any existing sentence pursuant to s 156 of the Penalties and Sentences Act (1992). That Act provides that a court imposing punishment in relation to a sentence may order a cumulative term of imprisonment in circumstances where the offence requires it. This plainly authorises a sentence of cumulative imprisonment provided the court observes the normal rules of sentencing, namely that the total effect of the sentence must be considered.

3. The fact that a New South Wales court chose to give Mr Rodgers a concurrent sentence for a later offence, does not advance Mr Rodgers’ argument. In the case of the Queensland sentence, Mr Rodgers’ offending occurred a long time after the New South Wales offences in circumstances where he absconded whilst on bail and he had a very serious criminal history in relation to similar offences.

4. Taking into account the total term of imprisonment already ordered to be served, it seemed to me then and it seems to me now that an additional period of imprisonment was required to reflect the seriousness of the offending. I note that that view was also upheld by the Court of Appeal.

5. Part of the confusion for Mr Rodgers seems to lie in the recommendation made for post-prison community-based release on 21 January 2003, which is a date that has come and gone without Mr Rodgers being released on parole.

6. Mr Rodgers was eligible for parole on 21 January 2003 as ordered by this court. Mr Rodgers made a decision that he did not want to participate in the Sexual Offenders Treatment Program. His reason for this is that he has previously completed the program in New South Wales. Whilst that may seem like a very good reason to him, I do not think it unreasonable that Corrective Services would insist that a man with Mr Rodgers history should complete the Sexual Offenders Treatment Program in Queensland. The program may or may not be different to program offered in New South Wales, and it is important for the parole authorities in Queensland to satisfy themselves that he has been rehabilitated.

7. If Mr Rodgers is in fact rehabilitated, it is likely that he would progress through the course in the minimum, but more importantly, the reason he has not been given parole has nothing to do with his sentence and everything to do with his attitude in relation to the programs that he is required to attend.

8. In all the circumstances there is no basis for reopening the sentence and the application is refused.