Bell v Director of Public Prosecutions

[2011] TASSC 61

[2011] TASSC 61

COURT:  SUPREME COURT OF TASMANIA

CITATION:              Bell v Director of Public Prosecutions [2011] TASSC 61

PARTIES:  BELL, Kevin Richard
  v
  DIRECTOR OF PUBLIC PROSECUTIONS

FILE NO/S:  454/1998
DELIVERED ON:  28 November 2011
DELIVERED AT:  Hobart
HEARING DATE:  15, 18 February, 2 September and 13 October 2011
JUDGMENT OF:  Tennent J

CATCHWORDS:

Criminal Law – Sentence – Sentencing orders – Orders and declarations relating to serious or violent offenders or dangerous sexual offenders – Dangerous criminal – Discharge of dangerous criminal declaration.

Sentencing Act 1997 (Tas), s20.
Aust Dig Criminal Law [3357]

REPRESENTATION:

Counsel:
             Applicant:  S Chopping
             Respondent:  P Dixon
Solicitors:
             Applicant:  Steven Chopping
             Respondent:  Director of Public Prosecutions

Judgment Number:  [2011] TASSC 61
Number of paragraphs:  27

Serial No 61/2011
File No 454/1998

KEVIN RICHARD BELL v DIRECTIOR OF PUBLIC PROSEUCTIONS

REASONS FOR JUDGMENT  TENNENT J

28 November 2011

1. On 31 March 1999, Kevin Richard Bell ("the applicant") was sentenced by the Court in respect of one count of indecent assault and one count of aggravated sexual assault to serve a period of 18 months imprisonment to take effect from the expiration of a sentence he was already then serving. He was also declared a dangerous criminal pursuant to the Sentencing Act 1997 ("the Act"), s19.

1. On 5 June 1991, the applicant had been sentenced to serve 12 years imprisonment with effect from 13 April 1991 in respect of six counts of rape, one count of indecent assault and four counts of defilement. On 28 April 1998, the applicant was released on parole, with five years and one month of that sentence still to serve. On 11 October 1998, he committed the offences for which he was sentenced on 31 March 1999. However, it seems his parole was revoked after that offending, such that he was returned to prison on 21 October 1998.

1. Counsel for the applicant calculated that, had the applicant served all outstanding sentences with remissions allowed, he would have, absent the dangerous criminal status, been entitled to release about March/April 2001. I have not been supplied with anything from correctional authorities to confirm that is the case. However, even had the applicant served his outstanding sentences in full, he would have been eligible for release around May 2005. His detention, at least since then, if not before, therefore has been solely as a result of his dangerous criminal status.

1. The applicant has applied, pursuant to the Act, s20(2), for an order that the declaration by which he acquired dangerous criminal status be discharged. If the applicant is successful on his application, he will be entitled to immediate release.

1. The relevant provisions of the Act are as follows:

"20(2) A dangerous criminal who has served a term of imprisonment equal to the non-parole period applicable to his or her sentence may apply to the Supreme Court to have the declaration by which he or she acquired the status of a dangerous criminal discharged.

20(3) On an application under subsection (2), the Supreme Court must make an order discharging the relevant declaration if the court is satisfied that the declaration is no longer warranted for the protection of the public."

1. This application was initially filed in September 2010. Some preliminary steps were taken, and the substantive hearing commenced on 18 February 2011. The application was opposed by the Director of Public Prosecutions. The hearing was adjourned part heard to enable counsel for the applicant to address some issues raised with him by both the Court and counsel for the Director of Public Prosecutions. The applicant did not seek to have the matter re-listed until September 2011, at which time, again at the request of the applicant, the matter was adjourned to enable further information to be put before the Court. The hearing of the application was finally completed on 13 October 2011.

Offending Background

1. The applicant was born on 19 February 1947 and is now aged 64. On 9 October 1969, when the applicant was 22 years old, he was convicted of two counts of indecent assault. He was sentenced to serve 12 months imprisonment. An order was also made that, after serving that sentence, the applicant was to be detained in a reformatory prison during the Governor's Pleasure in accordance with the provisions of the Indeterminate Sentences Act 1921. On 25 May 1972, he was convicted of another indecent assault and ordered to serve a further three months imprisonment. On 26 June 1974, he appeared before a magistrate on a charge of being a male in female apparel after dark. It was ordered he serve a period of 14 days and that he be returned to Her Majesty's Prison. On 4 April 1977, the applicant was convicted of rape and sentenced to six years imprisonment. He was released on parole on 15 December 1981. He committed a number of other non-sexual type offences over the ensuing years.

1. On 5 June 1991, the applicant was convicted of six counts of rape, one count of indecent assault and four counts of defilement. It is unclear when this offending started. However, the comments on passing sentence indicate the offending occurred over a three year period and related to the applicant's step-daughter. He was sentenced to 12 years imprisonment to date from 13 April 1991. At the time the applicant was sentenced, the Crown made an application, then pursuant to the Criminal Code Act 1924, s392, to have the applicant declared a dangerous criminal. Zeeman J declined to make that declaration. He had been supplied with a report from a psychiatrist, Dr Wilfred Lopes, in which Dr Lopes expressed the view that the applicant did not then pose a danger to the community.

1. On 28 April 1998, the applicant was released on parole. Less than six months later he committed one aggravated sexual assault and one indecent assault. It was upon his convictions for those matters in March 1999 that a successful application for a declaration was made, although by this time the relevant legislation was the Act.

1. Underwood J (as he then was) gave reasons for his decision to make the declaration. He said:

"When you were sentenced on the last occasion it appears that Dr Lopes expressed the view that you did not present a danger to the community.  Recent events have shown that opinion to be wrong.  In his report written this year Dr Lopes does not express that opinion.  He writes that 'the prognosis is necessarily guarded.'  The crimes for which you were sentenced in 1991 were committed over a three year period.  As in the present matter, the victim was a female child.  She was your step daughter.  She was just about the same age as the complainant in the present matter when you first preyed upon her.  The learned trial judge said this when he then passed sentence:

'The totality of the crimes amount to a cruel exploitation, abuse and denigration of a young girl.  The accused paid no regard to the complainant's feelings or well being.  He engaged in intercourse when he desired it.  On a number of occasions he used a knife in a threatening manner to ensure that the complainant submitted to him.  She, unfortunately, found herself in a household where the mother provided little support or refuge and where her step-father sexually abused her.'

The victim's of the prisoner's other sexual crimes were also children aged between three years and sixteen years.

The application to declare the prisoner a dangerous criminal is resisted.  His counsel based the resistance on the sole proposition that the prisoner was going to undergo chemical castration while in prison.  No expert evidence was called to support the application.  I do not know if the so-called chemical castration is medically indicated in the case of the prisoner.  Even if it is medically indicated I do not know if any medical practitioner would prescribe whatever was necessary for it.  Even if there was such a medical practitioner I do not know anything about the proposed programme, how long it takes, nor what its effect will be, other than counsel's word that it will lower the prisoner's sexual libido.  There is neither weight nor substance to the prisoner's argument that the order should not be made on the sole ground that he is going to undergo chemical castration while in prison.  If there is such a programme and if he does undertake it and if it does permanently remove his sexual desire, then it may be a relevant matter on an application for a discharge of a declaration that the prisoner is a dangerous criminal.

I approach the exercise of the statutory discretion with caution, for I am mindful of the words of the High Court in Chester v R (1988) 165 CLR 611 at 618 that the exercise of a power of this kind 'should be reserved for those very exceptional cases' and at 619 that:

'there must be acceptable evidence that the convicted person is by reason of his antecedents, age, health, mental condition, the nature of the offence or any special circumstances, so likely to commit further crimes of violence that he constitutes a constant danger to the community.'

However, I am satisfied that the prisoner is a constant danger to the community.  I so conclude because of the number of serious sexual crimes that he has committed, the fact that his victims are all young females, the fact that lengthy sentences have failed to deter or curb his predatory sexual deviancy.  In this respect I am particularly influenced by the fact that the present crimes were committed so soon after he was released from prison on parole.  In the absence of an indication to the contrary the inference is inescapable that the prisoner is likely to offend again if he released from custody."

The law

1. This type of application is not common. The last record of such an application I have been able to find was one made by Mark Brandon Read in 1997. The application was dealt with by Cox CJ and determined on 18 July that year. His Honour pointed out in his reasons for judgment that the applicant bore the onus of persuading the Court that the declaration was no longer warranted for the protection of the public. He said that the applicant needed to demonstrate some alteration in the circumstances, which justified a change from the Court having initially been satisfied that such a declaration was warranted, to being satisfied it was no longer warranted. His Honour formed the view that the declaration should be discharged. In making the order he said:

"I acknowledge that no one can give any guarantee that he will not expose the public to the danger of some form of violent crime, but I think the prospects of that eventuating are sufficiently slight that the drastic expedient of his indefinite incarceration beyond the expiration of his finite sentence is no longer warranted."

I endorse his Honour's comments generally.

Material before the Court

1. For the applicant, there was an affidavit of his solicitor sworn 21 September 2010, an affidavit of the applicant sworn 9 August 2011, and an affidavit of Christine Anne Fisher sworn 8 September 2011. There was no cross-examination of any of these deponents.

1. Other material before the Court on this application included:

·     comments on passing sentence dated 31 March 1999, with a copy of complaint number 13674/98, and a report of Dr Lopes dated 19 February 1999;

·     comments on passing sentence dated 4 April 1977;

·     comments on passing sentence dated 5 June 1991;

·     letter from Dr Georgina O'Donnell, a psychologist, to the applicant dated 21 January 2011;

·     Prison Episode summary dated 10 November 2010;

·     report of Dr Michael Evenhuis, a psychiatrist with the Community Forensic Mental Health Services, dated 3 February 2011; and

·     report of Mr Damien Minehan, a psychologist with the Department of Health and Human Services, dated 2 February 2011.

The applicant's circumstances

1. As I said, the applicant it is now 64 years old. He has spent all save approximately six months of the last 20 years in jail.

1. In his affidavit sworn 9 August 2011, the applicant stated that, on his release from custody, he planned to live with a Mr and Mrs Fisher at 100 Pitcairn Street, Glenorchy. He stated he had known the family for 15 years, and had stayed in regular contact with them throughout his time in prison. What is apparent from Ms Fisher's affidavit is:

·     there is no Mr Fisher;

·     she has had a long term relationship with a Mr Dobson by whom she has two sons, now aged 16 and 13;

·     Mr Dobson and she do not live together;

·     she met the applicant when he and Mr Dobson were both prisoners at the Hayes prison farm in or about 1994 or 1995;

·     her household, as at September 2011, was made up of her, her sons and a Mrs Jennifer Jones;

·     Mrs Jones is a disability pensioner who was at one stage in a relationship of some description with the applicant. Mrs Jones was expected to move out of Ms Fisher's home, although the date when this would happen was uncertain;

·     Ms Fisher was aware of the applicant's history;

·     she regarded the applicant as trustworthy;

·     she spoke to the applicant daily by telephone; and

·     he would have his own room at her home and she had "no present intention" of restricting the length of time the applicant could live with her.

1. There are matters of concern about the evidence of the applicant in relation to the Fisher family, taking into account the affidavit of Ms Fisher. The applicant did not seem to know that there was no Mr Fisher. He had known in prison the person with whom Ms Fisher had been in a relationship for many years. Despite this, he did not seem to know the nature of the relationship between them, or perhaps that the person he thought might be Mr Fisher was in fact Mr Dobson. The applicant also made no mention that Mrs Jones might possibly still also be living at Ms Fisher's home when he moved in there.

1. The applicant also stated that he would, on release, have the support of a Pastor David Steven of the Tasmania Council of the Prison Fellowship Australia. He attached to his affidavit a letter from Pastor Steven in which that person confirmed that he had known the applicant for about 13 years, and considered him a friend. In the same letter, Pastor Steven said he had had many long talks with the applicant. The applicant, he said, believed he was confident that he would not re-offend. The applicant had told him that he did not want to die in jail. There is a difficulty in placing a great deal of reliance on this letter from Pastor Steven in that it is over four years old and there is no indication his relationship with the applicant is ongoing.

1. The reports of Dr Evenhuis and Mr Minehan were both very detailed. Each of these professionals had had access to the applicant's medical and psychiatric files from within the prison system, parole records, comments on passing sentence and generally a range of other historical records relating to the applicant. Each had also interviewed the applicant for the purpose of his report.

1. As to Mr Minehan's report, I do not pause to set out all of the matters he canvassed,  since the material runs to some 15 pages. It is useful however to set out the following material which appears in the last two pages of the report. It is as follows:

"Risk Summary

79In formulating Mr Bell's risk profile I have taken into account the information available at the time of sentencing, file information, Mr Bell's current presentation, the sex offender treatment program report, additional collateral information and the risk assessment tools completed. Mr Bell's risk profile suggests that a number of factors associated with a high risk of sexual offending remained present. His sexual offending history, sexual deviance, predatory methods and psychopathic personality traits are all suggestive of a high risk individual. The likelihood of effectiveness of treatment is further complicated by his history of repeat offending and psychopathic personality traits which are often resistant to treatment interventions.

80It must be acknowledged that Mr Bell has taken some steps to address his offending behaviour, however a number of risk management strategies would need to be put in place if he were to be released into the community. There are also some protective factors present that may serve to ameliorate risk, however Mr Bell does remain at risk of sexual offending behaviours in the future if the opportunity arises.

Risk Management Recommendations

81Mr Bell has not yet had access to any form of pre-release program. He has been incarcerated for the vast majority of the past 20 years and his only periods in the community during that time were a brief period of parole, during which he re-offended, and brief leave from the prison to attend medical appointments. A program of graded leave is recommended to assist him in reintegration into the community. This may also allow some supervised in vivo exposure to potential risk situations Mr Bell will have to manage if released. Any leave program would need to consider ensuring Mr Bell has no unsupervised access to potential victims.

82Upon release Mr Bell would require a high level of coordinated supervision. I note that the sex offender treatment program recommendations refer to Mr Bell being on 'parole. I have been advised that parole or probation may not be available as an option to the court am uncertain what measures the court may have at its disposal to ensure that this level of supervision would occur.

83In the community Mr Bell should have no unsupervised access to his target victim group. This may also need to be taken into account when considering accommodation options.

84Whilst Mr Bell has completed the treatment program in prison he would need to participate in a community-based program to maximise the transfer of skills learnt into the community. This would also give him a support network to assist him to manage high risk situations. It is my understanding that a community-based sex offender treatment program or support service is not currently in place.

85Mr Bell may also benefit from accessing a private psychologist to assist him with anger issues, relationship problems, coping with stress, managing strong emotions and managing anxiety. This may be accessed via a referral from his community general practitioner.

86Mr Bell indicated that he does have some plans regarding accommodation, although these are not firmly set. He may need assistance with this from one of the prison-based pre-release programs.

87Alcohol use has also been a significant issue for Mr Bell in the past. Assistance, support and counselling available from a drug and alcohol service immediately upon release may help him to ensure he maintains abstinence or an acceptable level of alcohol use."

1. As to the report of Dr Evenhuis, it also provides insight into the issue of potential risks involved in the release of the applicant into the community. He said the following in pars[39] - [40]:

"39Mr Bell's psychopathic and antisocial personality, sexual deviancy and extensive history of sexual offending place him in a high risk group for future sexual offending. Research evidence suggests his risk is mitigated somewhat by his advanced age and his completion of a treatment program. His poor physical health and loss of sexual function may also be protective. As noted above, given Mr Bell's previous statements and his subsequent behaviour concerns could be raised about his self report. The majority of treatment studies demonstrate only moderate efficacy (for example, Hanson et al, 2002 found that psychological treatments, on average reduced recidivism from 16.8% to 12.3%). It should be noted that these studies describe the effect of treatment on a population of offenders and it may be inappropriate to apply these findings directly to an individual.

40If he were to be released, ongoing engagement in a psychologically based treatment program may reduce his risk of recidivism. In Tasmania, the facilities to provide a sex offender treatment program for outpatients is limited. Mr Bell's stated plan to engage in individual therapy with a psychologist is reasonable. If Mr Bell were to develop significant cognitive impairment his capacity to engage in a psychological treatment program may be limited. It would be reasonable for him to remain on an antidepressant. If his report of low sex drive, infrequent or absence sexual fantasies and poor sexual function is true to it seems unlikely that anti-androgen therapy would further reduce his risk of re-offending."

1. The applicant has experienced poor health. He had an operation on his prostate at the beginning of this year. He also had a heart attack some years ago which resulted in a stent being inserted in an artery. When he spoke to Dr Evenhuis at the beginning of this year, he reported ongoing chest pain with exertion. He also reported that he was unable to achieve or maintain an erection since his heart trouble and that, as a consequence, he no longer engaged in masturbation. He also complained of shortness of breath whilst walking on flat ground and said that he suffered from sleep apnoea.

Conclusion

1. The Court must discharge the declaration if it is satisfied that the declaration is no longer warranted for the protection of the public. The onus falls on the applicant to satisfy the Court as to that. The Court must consider its level of satisfaction in the context of the impact of the order sought. If the order as sought by the applicant is made, subject to an appeal period, the applicant will be entitled to immediate release from prison. Neither this Court nor parole authorities will have any capacity to impose conditions on that release. The applicant will therefore be subject to no structured supervision on release.

1. While the applicant has provided the Court with some detail about where he proposes to live upon release, it is clear that his knowledge of the circumstances in which he will live is very limited. This must cause the Court to have some concerns about how successful the proposed placement will be. Accepting, however, that the applicant will be accommodated where he says he will be, the presence of two teenage boys does not cause concern because they are not, in the context of the psychiatric and psychological reports provided to the Court, in any possible target group for sexual predation by the applicant. The applicant has already taken steps to put in place ongoing assistance from a psychologist in the community. Any access however which the applicant may have to any form of treatment programs, even if they are available, will be entirely voluntary.

1. The applicant's age and health status militate against likely re-offending. However, the contents of the reports of Mr Minehan and Dr Evenhuis still leave open, unreservedly in my view, the existence of an unacceptable risk to the community being posed by the applicant. It is not a "sufficiently slight" risk, adopting the words used in Read's case, which would suggest the Court could be minded to discharge the declaration. In those circumstances I am unable to be satisfied that the applicant does not continue to represent a risk to the community.

1. The application of Kevin Richard Bell filed on 22 September 2010 is therefore dismissed.