Barry William John Rodgers
From the Queensland Supreme Court Decision in October 2002
The applicant, who was at that time and is today self-represented, applied for leave to appeal against a sentence imposed upon him in the District Court for indecently dealing with a child under 16 years, the offence occurring in 1996.
The applicant has a long history of similar offending behaviour commencing in New Zealand in 1962. At the time this offence occurred, a warrant for his arrest was current in respect of offences which occurred in New South Wales between 1974 and 1989. The applicant fled to New Zealand where he committed further similar offences for which he served a period of imprisonment. He was then extradited to New South Wales and was sentenced to eight years' imprisonment. His full time release date for the New South Wales offences was 21 April 2005.
The Queensland sentencing Judge imposed a cumulative term of imprisonment of nine months, with a recommendation for paroleafter three months, indicating that this meant he would be eligible to apply for parole on 21 January 2003.
This Court, in an effort only to create greater certainty of release for the applicant in his sentence, granted leave to appeal against sentence, allowed the appeal and set aside the.original sentence, instead imposing a cumulative nine month term of imprisonment suspended after three months.
Unfortunately, the Court has now been informed that the effect of that sentence is that the suspended sentence cannot commence until the expiration of the eight year sentence, and the earliest potential release date is now 21 May 2004. This means this Court has unintentionally increased the applicant's actual period of imprisonment before becoming eligible for release, something which is not ordinarily done without giving the applicant notice and the opportunity to withdraw his application for leave to appeal.
The respondent concedes this an appropriate matter for re-opening under section 188(1)(c), Penalties and Sentences Act 1992 (Qld). The Court has also had assistance from Ms Rafter, a legal officer with the Corrective Services Department, who has helpfully attended the proceedings today at the request of the Court. Both she and the respondent inform us that the only sentence which can give effect to the intention of the original sentencing Court and the intention of this Court when it heard the appeal is, in fact, the original sentenceimposed.
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.
Date of Birth
Indecent assault of a 12 year old Queensland boy in April 1996
11 similar offences in New south Wales between 1974 and 1989
A series of convictions in New Zealand from 1962 to 1974
At large in Auckland
Sentenced to eight years in 1996
Sentenced to an addtional eight months in 2002
Released in 2005, returned to New Zealand
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OFFENCES / CONVICTIONS
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