Bell v Tasmania
[2016] TASSC 46
•16 September 2016
[2016] TASSC 46
COURT: SUPREME COURT OF TASMANIA
CITATION: Bell v Tasmania [2016] TASSC 46
PARTIES: BELL, Kevin Richard
v
STATE OF TASMANIA
FILE NO: 454/1998
DELIVERED ON: 16 September 2016
DELIVERED AT: Hobart
HEARING DATE: 2 May 2016
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), s 20.
Aust Dig Criminal Law [3357]
REPRESENTATION:
Counsel:
Applicant: G Barns
Respondent: P Dixon
Solicitors:
Applicant: In Person
Respondent: Director of Public Prosecutions
Judgment Number: [2016] TASSC 46
Number of paragraphs: 49
Serial No 46/2016
File No 454/1998
KEVIN RICHARD BELL v STATE OF TASMANIA
REASONS FOR JUDGMENT TENNENT J
16 September 2016
On 29 July 2015, the applicant, Kevin Richard Bell, applied pursuant to the Sentencing Act 1997, s 20, to have a declaration by which he was declared a dangerous criminal discharged. The applicant made an earlier application in September 2010 which was dismissed by the Court on 28 November 2011: Bell v Director of Public Prosecutions [2011] TASSC 61. The reasons for that decision are useful because they set out historical information relating to the applicant and his circumstances, as found, at the time. I set out those reasons below:
"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.
2 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 However, it seems his parole was revoked after that offending, such that he was returned to prison on 21 October 1998.
3 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.
4 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.
5 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.'
6 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
7 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.
8 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.
9 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.
10 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] HCA 62; (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
11 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
12 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.
13 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
14 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.
15 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. |
16 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.
17 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.
18 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.
19 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
79 In 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.
80 It 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
81 Mr 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.
82 Upon 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.
83 In 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.
84 Whilst 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.
85 Mr 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.
86 Mr 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.
87 Alcohol 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.'
20 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]:
'39 Mr 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.
40 If 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.'
21 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
22 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.
23 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.
24 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.
25 The application of Kevin Richard Bell filed on 22 September 2010 is therefore dismissed."
At [8] of those reasons, I indicated it was unclear when the offending for which the applicant was sentenced in 1991 occurred. On the present application, the evidence suggested that the offending commenced a couple of years after the applicant was released on parole, and indeed while he was on parole, even though he was not sentenced in relation to it until many years later.
Grounds of application
The grounds of the application filed 29 July 2015 were as follows:
"1 The Applicant was born on 10/02/1947 and is 68 years of age.
2The Applicant has been incarercerated [sic] for 16 years and 5 months, including 10 years 5 months since the expiration of his sentence.
3The Applicant has consistently engaged in treatment programs since the previous Application.
4The Applicant has completed the following courses:
aSex Offenders Course – 'New Directions'
bAnger Management Course
cPreparing to Change Course
5The Applicant has been held in minimum security since his incarceration, has not been found guilty of breach of any internal prison rules.
6The Applicant has successfully completed 45 hours of leave, pursuant to section 42 of the Corrections Act 1997 (Tas).
7The Applicant has secured stable and permanent accommodation if the Application is granted.
8The Applicant's health has deteriorated significantly whilst he has been incarcerated. His leg strength has deteriorated to the point that he can no longer walk normally. The Applicant has been diagnosed with Type 2 Diabetes. The applicant has also had a heart attack, which lead [sic] to multiple stents being placed in his chest. The Applicant has extensive arthritis in his hands and feet and has an extensive case of Sherman's Disease (the bones in his spine are misaligned).
9In 2014 the Applicant had a surgical procedure on what was an irregular shaped and enlarged prostrate [sic]. Further the Applicant has also had a laser technique performed on the prostrate [sic]. As a consequence of these surgical interventions the Applicant has no desire or capability in relation to sexual arousal.
10Medications taken by the Applicant also mean he can no longer achieve an erection and no longer has any sexual urges or thoughts."
The law
At the time I dealt with the applicant's 2010 application, I indicated that these types of applications were not common and referred to the last record of such an application that I was able to find as being one made by Mark Brandon Read in 1997. I adopted statements made by his Honour, Cox CJ, in that application. There have been a number of such applications dealt with since the applicant's last application. However, the law which applies has remained largely unchanged. I dealt with another application at the end of 2015 and handed down a decision in January this year. In that matter, McCrossen v The Queen [2016] TASSC 3, I made reference to other authorities beyond Read's case at [37]–[43]. Also, at [13], I said:
"In dealing with this application, it has been recognised that the Court has to be satisfied at the time any order might be made that the original declaration is no longer warranted for the protection of the public. Even though the Act provides that, if an order is made, the date upon which it is to take effect may be postponed to enable pre-release programs to be put in place, the Court still needs to be satisfied about the issue of risk to the public before any order may be made, and cannot make an order in the hope that a pre-release program to be completed after the order is made might remove any risk. Further, the Act does not allow the Court to make any type of conditional order which could perhaps be revoked were conditions breached. The order foreshadowed by the legislation creates an all or nothing situation. In my view, the legislation relating to applications such as this is unrealistic and promotes the continued incarceration of people who might, with assistance, be perfectly inoffensive members of the community were they given the opportunity."
The evidence on the application
The applicant relied on affidavits sworn by him on 28 July 2015 and 15 March 2016. He gave additional oral evidence and was cross-examined. His counsel tendered the following material:
·A report prepared by Mr Tim Sanderson, Psychologist, dated 15 November 2015;
·A letter dated 11 August 2015 from Dr David Onu, prison medical officer;
·A letter dated 21 October 2015 from Dr Thomas Ryan, Urology Registrar at the Royal Hobart Hospital;
·A letter dated 18 September 2015 from Ms Jo Maxfield, Acting Director, Tasmania Prison Service, in relation to the applicant, attached to which were a number of documents from his prison records;
·A statutory declaration by Christine Ann Fisher dated 14 July 2015.
Mr Sanderson and Ms Fisher gave oral evidence and were cross-examined.
For the State, the following documents were tendered:
·The applicant's record of prior convictions;
·A report dated 9 February 2016 from Mr Damien Minehan, Senior Psychologist, Forensic Mental Health Service;
·Comments on passing sentence relating to convictions of the applicant in 1977, 1991 and 1999.
Mr Minehan gave oral evidence and was cross-examined.
The issues on this application
Counsel for the applicant quite pragmatically identified that what the Court needed to look at was what had changed since the application by the applicant in 2011. In approaching the matter this way, he identified the following issues as ones which needed looking at:
·Firmness of accommodation arrangements;
·The applicant's involvement with Robert Cartwright;
·The applicant's state of health; and
·The psychological evidence about the nature of risk of re-offending.
Accommodation
As to accommodation, the applicant proposed that he live with Mrs Christine Fisher at her Housing Tasmania house at Glenorchy. The house is a 4-bedroom house and is occupied by Mrs Fisher and two adult sons. Other family members visit, as does Mrs Fisher's partner, Mr Alan Dobson. There are no young female children within the family network who might be at potential risk given the applicant's history of offending. The applicant would have his own room and, according to Mrs Fisher, he could stay there as long as he wished. Mrs Fisher said she knew of the applicant's offending history and had no concerns about his behaviour in her home.
Mrs Fisher's home was offered as a potential residence when the applicant made his application in 2011. She did not give evidence on that occasion, as she did in respect of this application. The nature of her relationship with the applicant and his knowledge of her circumstances were somewhat uncertain in 2011.
Mrs Fisher is aware that, if the applicant comes to live with her, she must notify Housing Tasmania and seek its approval for him to do so. She has made no enquiry about that because there is of course no release date. Mrs Fisher does not work. She drives, notwithstanding some health issues, and indicated a preparedness to take the applicant to places he might wish to go to. She would, of course, not be offering any form of supervision, simply a home.
While the applicant, in his affidavit sworn 28 July 2015, proposed that he live with Mrs Fisher, in an affidavit sworn 15 March 2016, he said:
"2 If I am unable to stay with Christine Fisher for any reason my second option for housing is through Colony 47.
3 Lily Aplin the inmate liaison at Colony 47 has offered me immediate accommodation at Bethlehem House when I am released and requested a referral from Camille Harris at the prison with a release date.
4 Ms Aplin explained to my counsel that once a release date is determined, I will then be found permanent housing by Housing Connect."
This evidence was not challenged.
Mr Cartwright
The evidence disclosed that Mr Cartwright had at some time been convicted of sex offences. He had spent a number of years in Risdon Prison, and he and the applicant met and became friends there. At some stage after he was released from prison, Mr Cartwright went to live in a home at Huonville with a Lynette Nichols. She was in a wheelchair, and he effectively became her carer. The applicant also knew Ms Nichols although he said he had nothing to do with her meeting Mr Cartwright, and it was purely coincidental that two people he knew came to share accommodation. Ms Nichols used to visit him in prison and Mr Cartwright would drive her. On at least one occasion the applicant obtained permission to return Ms Nichols to her car and Mr Cartwright was there.
Inmates at Risdon Prison, before they can make telephone calls from the prison, must apply to have any telephone number for a person they wish to call approved by the prison. In about April 2013, the applicant applied to have Ms Nichols’ telephone number placed on the list of numbers which the prison approved he could call. The applicant did not disclose that Mr Cartwright lived at the address to which the number was connected and, in effect, the applicant would telephone Ms Nichols' number and speak to Mr Cartwright. The applicant claimed in his oral evidence that "everyone" at the prison knew about this. I do not accept that evidence. The applicant ultimately accepted that he had not been entirely truthful about this issue in his most recent affidavit.
The issue is of concern for two reasons. Firstly, Mr Cartwright is also a sex offender, and secondly the applicant demonstrated a preparedness to deceive authorities so that he could maintain contact with Mr Cartwright.
The applicant was interviewed by two psychologists for the purpose of the hearing. He disclosed to neither his relationship with Mr Cartwright. In his oral evidence, the applicant attempted to downplay any sort of relationship with Mr Cartwright. This was despite admissions that, from time to time, Mr Cartwright had been putting money into the applicant's prison bank account, Mr Cartwright had purchased a razor for the applicant, and the applicant provided to Mr Cartwright items he had made through a woodworking hobby to sell. It was also established during cross-examination of the applicant that he had a number of activities/hobbies in common with Mr Cartwright. In particular, the applicant indicated that he hoped to be able to either get paid work or work voluntarily in the area of minor repairs, and generally the use of his collection of woodworking tools. He acknowledged this was an area in which Mr Cartwright was also interested.
At least one of the psychologists who interviewed the applicant asked him about any support he might have in the community on release. The applicant did not mention either Ms Nichols or Mr Cartwright, and maintained that Mr Cartwright was not "support" just one of many friends.
The applicant's state of health
The applicant is 69 years old. Prior to his 2011 application to the Court, the applicant had problems with coronary artery disease. He had a past smoking history, peripheral vascular disease affecting his lower limbs and chronic anaemia. The prison doctor, in a report dated 11 August 2015, said the applicant was on a number of medications which had documented side effects of sexual dysfunction. He named an anti-depressant, and medications relating to the applicant's myocardial infarction and for prostate enlargement. On 7 March 2014, the applicant underwent prostate surgery. After six months, there was a significant improvement in his symptoms. The report from the urologist at the Royal Hobart Hospital indicated there was no documentation from the applicant's post-operative consultations to suggest impotence had been a problem for the applicant. The doctor also noted in his report which was dated 21 October 2015 that the hospital prescribed no medication for the applicant.
The applicant said he had had a number of excursions outside of the prison pursuant to the Corrections Act 1997, s 42, but that he had stopped those in recent times because he had had difficulty walking.
Psychological evidence
Evidence was given by two psychologists, one called on behalf of the applicant and one called on behalf of the respondent. Each interviewed the applicant and each prepared a report which was tendered to the Court.
The psychologist called on behalf of the applicant was a Mr Sanderson. His report identified him as a psychologist/counsellor/expert witness. He told the Court that he was a psychologist in general practice and that, while he had dealt with people involved in the criminal justice system, he had never before been involved in an application such as the present one. In the opening paragraph of his report, he said that he was a member of the International Association of Correctional and Forensic Psychologists. It became apparent that he did not work in the field of correctional and forensic psychology, and that his membership of the association had resulted from the lodgement of an application form and the payment of a fee to the relevant body in the United States of America. Mr Sanderson was unfortunately not the most impressive witness. His report, in places, appeared not to have been proofread and did not make for clear reading. During the course of his cross-examination by counsel for the respondent it became apparent that he had not been aware of the details of the applicant's offending history, and had made little or no attempt to confirm self-report by the applicant for the purpose of his assessment. He was unaware of aspects of the applicant's background. He maintained that he was not dealing with the past, only the present and the future.
Mr Sanderson found no evidence of mental illness in the applicant which included any evidence of depression. He did determine however that the applicant suffered from a personality disorder. He set out a number of symptoms generally associated with Antisocial Personality Disorder. These were a failure to conform to social norms with respect to lawful behaviours as indicated by repeatedly performing acts that were grounds for arrest, deceitfulness as indicated by repeated lying, use of aliases, or conning others for personal profit or pleasure, impulsivity or failure to plan ahead, irritability and aggressiveness as indicated by repeated physical fights or assaults, reckless disregard for safety of self or others, consistent irresponsibility and lack of remorse.
Mr Sanderson was specifically asked to respond in his report to certain questions by the applicant's legal representative. The second related to the impact, if any, of any mental illness which the applicant might have been suffering from upon the likelihood of his committing violent crimes, in particular, committing sexual offences. Mr Sanderson responded to that question in the following terms:
"Personality Disorders per se are known to be intransigent but not impossible to address, the reality is that not all psychopaths are criminals. However, in Mr Bell's case, he has been able to address the core issues relating to his sex offending, gaining a powerful and practical understanding which he has integrated into his daily living, substantially and positively altering his interaction with others. A number of guards at the prison commented positively about Mr Bell and his substantial change in demeanour from his initial incarceration."
The response by Mr Sanderson quoted in the preceding paragraph was provided on 15 November 2015 after a visit to the prison on 2 November. It is unclear to whom Mr Sanderson spoke about changed demeanour. Prison records disclose that the applicant committed an assault, apparently unprovoked, on another inmate on or about 9 September 2015. It is interesting to note in the context of references to the applicant's many illnesses and their impact on his physical abilities that the assault occurred while the applicant and the other inmate were in a stairwell, and the applicant kicked the other inmate from behind and then became involved in a fist fight with him. Apart from anything else, that would appear to be inconsistent with the applicant's stated physical limitations.
Mr Sanderson was also asked for his opinion as to whether the prospect of the applicant committing violent crimes, including sexual offences, was "sufficiently slight". I do not know if Mr Sanderson was made aware of why he was asked that question, in particular whether he was referred to the case from which the phrase came. If he was not, it is difficult to know what he thought he was dealing with. Mr Sanderson's response was in the following terms:
"It is impossible to categorically determine risk, being called upon to do so is onerous and not entered into lightly or naïvely by this psychologist. Mr Bell has committed heinous acts in the past. He has been substantially incarcerated, and designated dangerous. I acknowledge the legal, medical, social and political environment in which this risk is being considered. I claim no special insight or prior expectation in responding to this question. On the basis of the information with which I have been provided, my interview with Mr Bell and considering his psychological profile. I must conclude based only on this information that the prospect of Mr Bell committing violent crimes or sexual offences again is indeed 'sufficiently slight'."
In his response, Mr Sanderson said he acknowledged the "legal, medical, social and political environment in which this risk is being considered". What he meant by that was unclear. He gave no information about what the content of those various environments was that he was acknowledging. In particular, what relevance any political environment might be to the Court's decision was not explained.
Mr Sanderson was also asked to address risk on a statistical basis. He responded:
"Were Mr Bell physically able, between 12% and 14% in my opinion. Age and health further mitigate risk in this case. Sex Offender Therapy appears to have had a profound and sustainable affect on Mr Bell and how he thinks about himself and his life. Gelb (2007) also cites Canadian research which calls into serious question the efficacy and effectiveness of continued preventative detention of sex offenders. It may have political appeal, but it is not well supported by research evidence."
Mr Sanderson emphasised in his report that his views about risk were influenced by what he had been told about the applicant's physical limitations and age.
Mr Sanderson then made a number of recommendations. He acknowledged that the applicant had complex ongoing mental health needs and suggested a referral to a service described as "Partners in Recovery". He indicated that such a service would appoint a case manager to assist the applicant to access a range of practical services as needed. Mr Sanderson referred to guidance being provided by the Sex Offenders Program exit report. Mr Sanderson also recommended:
·ongoing counselling and psychotherapy, as indeed did Mr Minehan,
·community-based sex offender support,
·referral to the Salvation Army out-patient Bridge Program, Alcoholics Anonymous or Holyoake for support in relation to alcohol overuse, and
·that the Salvation Army Pre and Post Release service might also be appropriate for the applicant.
There was also reference to future involvement in groups such as men's sheds and continued contact with the prison chaplain. That prison chaplain indicated, in the form of a letter provided to the Court, that he would continue to provide support for the applicant in the community.
In his oral evidence, Mr Sanderson essentially agreed with the conclusion of Mr Minehan. He also indicated that, as far as the applicant's health was concerned, he relied on the letter from the prison doctor, Dr David Onu, dated 11 August 2015. When Mr Sanderson was cross-examined and a number of matters were put to him about which he did not seem to be aware, he maintained that none of those matters would affect his ultimate conclusion.
The psychologist who gave evidence for the Crown, Mr Damien Minehan, is a clinical psychologist with many years of involvement with the prison system. He has prepared reports and given evidence in this type of application before. He is aware, as is the Court, of the limitations created by the legislation under which this application has been brought. The particular limitations are that the Court must be satisfied as at the date it makes any order that the discharge of a dangerous criminal declaration is no longer warranted for the protection of the public. There is no scope for the making of an order which might see a prisoner released in some sort of staged way to ensure, post- order, that the declaration is no longer warranted. There is also no scope for an order with conditions which will provide support and assistance to a prisoner once in the community. I accept those limitations perhaps place an unfair burden on a prisoner who has been incarcerated for many years and will inevitably find it difficult re-adjusting to life in the community. However, it is the legislative framework which Parliament has provided.
Mr Minehann conducted a number of tests for the purpose of his report and indicated he had done the same for the purpose of his report in 2011. The particular assessment tools he used were what he called "Static-99" and "RSVP" (Risk for Sexual Violence Protocol). In his report at [65] and [66], Mr Minehan said after referring to these:
"65 In summary there were a number of factors present in Mr Bell's history and current presentation that indicated ongoing risk. Those historical factors and also those relating to personality and sexual deviance have not altered significantly and remain an issue.
66 The more concerning risk factors are those that are dynamic in nature and included a lack of any form of supervision and concerns in relation to future plans, particularly around accommodation."
Mr Minehan went on to say at [67] to [79]:
"67 In answer to your questions;
Mr Bell's antecedents and offending history
68Mr Bell's offending history and factors relating to it are covered in this report and the attached report from 2011. Essentially Mr Bell has displayed psychopathic personality traits across his lifespan. He has a sexually deviant pattern of arousal in relation to young females. His offending history is extensive and he has spent the vast majority of his adult life incarcerated for his crimes. Alcohol has been a contributing factor at times. It is my understanding that he was last sentenced in 1999 and has spent the past 10 years in prison solely on the basis of his Dangerous Criminal status after all other sentences had expired.
Any psychological or psychiatric treatment Mr Bell has received while he has been in prison
69Mr Bell has not received any psychological treatment or follow up in the intervening years since my last report, whether that be from a mental health perspective or offence rehabilitation perspective.
70The New Directions Exit report indicates that Mr Bell commenced the course in April 2008 and completed in February 2009 over 105 sessions. He reported no further contact with the facilitators of this program since its completion. It should be noted that the primary risk management recommendations of this report were largely based on supervision, no contact with primary victim groups and support.
71Mr Bell has participated in a leave and re-integration program. He has previously contacted ForensiClinic and has been accepted as a client in the event he is released into the community.
Your opinion in relation to whether Mr Bell should remain in prison to protect the public from him (s20 (3) of the Sentencing Act) and;
Your opinion as to Mr Bell's risk of reoffending and;
Your opinion as to whether that risk is low, medium or high
72The risk assessment literature is moving away from attempting to predict recidivism and categorisation such as high, medium or low risk. Instead those undertaking risk assessments identify and assess risk factors and evaluate if and how well these risk factors can be managed in a particular setting.
73To summarise the discussion in relation to risk within the body of the report, research has generally found that increasing age results in a reduction in offending. In addition, individuals with psychopathic personalities tend to engage in less antisocial behaviour, as a group, as they age. Despite this there remains a small group who continue to offend.
74Due to these already identified circumstances, namely the effect of ageing on Mr Bell's personality and sexual deviance, his health issues and possibly interventions that he is undertaken [sic], it would seem clear that Mr Bell presents less risk now than he did when the original dangerous criminal declaration was made.
75That said some risk factors do remain. Despite some age effects aspects of sexually deviant patterns of arousal and psychopathic personality traits remain. Whilst Mr Bell maintains some degree of sexual dysfunction as a result of his health conditions it is well-established that sexual offending may be motivated by complex psychological needs other than simply the satisfaction of sexual drive or impulses. As Mr Bell himself pointed out in his interview with Dr Evenhuis in 2011, offending sexually does not require the ability to maintain or achieve an erection. It has been some seven years since Mr Bell's last contact with any form of sexual offender treatment. His accommodation options remain the same as last time he made an application for the status to be discharged.
76The primary risk factor in Mr Bell's case is largely the lack of any form of mandated supervision, conditions or consequences for non-compliance upon release.
77There also must be some concern raised in relation to his choice of accommodation. The same residence that Mr Bell proposed to reside in 2011 post release, and was of concern to Her Honour at that time, has again been proposed as his primary residence. In a relatively short 15 minute conversation with Ms Fisher it became clear that there were several more people living in the home that Mr Bell was aware of or disclosed, that there were a number of children who were regular visitors to the home, that one of his offences occurred in a residence next door, that Ms Fisher held beliefs about Mr Bell being 'set up' and that she seemed unaware of the full extent of his offending history. Under circumstances where Mr Bell would be under Community Corrections supervision there would no doubt have been a thorough assessment of the residence as to it suitability, individuals residing in the home and location (for example proximity to high-risk locations such as playgrounds or schools).
78Returning to the question of whether recidivism risk can be appropriately managed in the community, it is my opinion that it is likely risks could be acceptably managed if Mr Bell were subject to the appropriate levels of supervision and therapeutic contact as well as having appropriate an [sic] accommodation option. In these circumstances it would likely be my recommendation that Mr Bell be supervised by community corrections and maintain some therapeutic or treatment contact in relation to his offending. Engagement in pro-social activity and monitoring of alcohol and other substance use would also be recommended.
79As has been the case with previous applications for discharge of dangerous criminal status the difficulty remains in that the court has no power to order that any supervision or conditions be placed once the order for discharge is made. As a result checks and balances that may have mitigated risk cannot be applied in the event the order is discharged."
Discussion
I last dealt with an application by the applicant to have his dangerous criminal declaration discharged in November 2011. That is now almost five years ago. In support of his application now, the applicant proposes to live with Mrs Christine Fisher, the same lady he proposed to live with in 2011. On this occasion, the Court has more information about Mrs Fisher's circumstances than it had in 2011. Firstly, the Court now knows that there are no young female children within Mrs Fisher's family network with whom the applicant might come into contact were he living in her house. The applicant's offending has always involved young females.
There are concerns about Mrs Fisher's attitude to the applicant's situation. She clearly believes he should no longer be incarcerated and there is a perception he was hard-done by in relation to at least the conviction which arose from offending which occurred in the house next door to her. There are also concerns about what I might describe as the permanency of the accommodation arrangement. The applicant has expressed a wish to live independently and it would seem may not want to stay with Mrs Fisher long-term. The other aspect of the accommodation is that Mrs Fisher is a tenant of Housing Tasmania and must have its approval if she wishes to have someone live full-time with her. She had not sought that. To an extent that is understandable because she did not know if or when the applicant might be released. However, it would have assisted the Court were that enquiry to have been made, simply because had Housing Tasmania indicated a refusal at least the situation would have been clear.
What must be acknowledged however in relation to proposed accommodation arrangements with Mrs Fisher is that firstly, she is offering a home and not supervision, and secondly, the Court has no power in any event to require the applicant to live anywhere in particular. Even were the arrangements proposed with Mrs Fisher to be entirely appropriate, and on the face of it long-term, there would be nothing to stop the applicant from changing his mind about where he proposed to live, the moment any order in his favour was made. I have no particular confidence he will not do that, having regard to his deception within the prison environment about contact with Mr Cartwright.
Of course, I also note that the applicant has given evidence about possible alternative accommodation arrangements if he does not live with Mrs Fisher and that that evidence was not challenged.
However, what I am concerned about is the protection of the public, and stability of accommodation is only one of the factors I need to consider.
As to the applicant's connection with Mr Cartwright, I have no background information in relation to Mr Cartwright, save that he was convicted at some time of sexual offences. I have no idea, for example, whether he and the applicant engaged in the same sort of sexual behaviour in their offending. I do not know his age or anything about the circles he moves in. All I know is that the applicant has maintained contact with him, in circumstances where I accept the applicant deliberately deceived prison authorities for the purpose of maintaining that contact, Mr Cartwright has assisted the applicant financially while he has been in prison, and they share a number of interests. The likelihood is that contact will be re-established were the applicant released.
As to the psychological evidence before the Court, I must consider it in the context that it is for the applicant to satisfy the Court that the declaration is no longer warranted for the protection of the public. This case is not like that of Mark Brandon Read to which I referred in my 2011 reasons relating to the applicant. The offending background of Mark Read was not of a sexual nature, and he had a home, family and income to go to already established. The applicant has none of those. Further, in my view, cases which involve a background of repeated sex offending are different because the issue of risk is often so heavily dependent on psychological evidence.
The applicant relies on Mr Sanderson's report and oral evidence in that regard. Mr Sanderson has stated clearly that, while he accepts Mr Minehan's conclusions generally, he is of the view that the risk posed by the applicant is "sufficiently slight" so as to warrant the declaration being discharged. He relies heavily on the applicant's age and health as reported for that conclusion. What also came through from his report and oral evidence was a general view that keeping the applicant in prison served no useful purpose, and the applicant should be given a chance in the community. That was against the background of several recommendations about services and support the applicant would benefit from in the community, none of which the Court has power to mandate.
Mr Sanderson's views must be considered in light of my earlier comments about his report and evidence generally, and the report and evidence of Mr Minehan.
Counsel for the respondent submits that the applicant has not established that the declaration is no longer warranted for the protection of the public. While neither counsel specifically drew the distinction, "the public" as far as the applicant is concerned is really that class of persons made up of young females. The respondent referred to the applicant's offending history which disclosed a preparedness to re-offend soon after release from custody and even while on parole. It was submitted the Court could have no confidence that pattern would not be repeated, notwithstanding the time that has passed since it was last evident, and the applicant's age and state of health. He pointed to Mr Minehan's view that age and sexual dysfunction did not necessarily mean the applicant would not re-offend, although accepted the risk might be reduced because of those factors.
Mr Minehan accepts that any risk posed by the applicant in the community could be appropriately managed with levels of supervision of, and support for, the applicant. He is aware that the applicant has made contact with a service provided by Dr Georgina O'Donnell and expressed a willingness to be seen by her in the community. He is also aware that involvement in that arrangement, and indeed in any other that the applicant says he will be involved with, is entirely voluntary on the applicant's part. However, he is clearly of the view that absent some form of mandated supervision and/or support, the risk posed by the applicant is not in the words of Cox CJ "sufficiently slight" to enable this Court to determine the declaration is no longer warranted.
Outcome
The applicant carries the onus of satisfying the Court that the continuation of the declaration is no longer warranted for the protection of the public. The nature and prevalence of the applicant's past offending requires the Court to be particularly vigilant in assessing the need for protection. Offending of a sexual nature can have devastating and long-term consequences for victims, and the applicant's historical target group is a particularly vulnerable one. Having said that, I accept that long- term incarceration may not necessarily be either the best or even the most sensible option for a sex offender. I accept also that the applicant perhaps should have the opportunity to be re-integrated into the community.
However, Parliament has seen fit to create a legislative framework pursuant to which an offender can be incarcerated indefinitely and has, in my view, created a system, because of the limitations on the powers of the Court in an application such as the present, whereby it can be difficult for an applicant to get over the bar authorities have established to gain release. That that has occurred may seem unfair. However, my role is to uphold the system Parliament has created.
In all the circumstances, having regard to the opinions expressed by Mr Minehan, which I accept in preference to those expressed by Mr Sanderson for the reasons I have already outlined, and
·the uncertainty as to the applicant's future accommodation,
·the applicant's preparedness to deceive in relation to his contact with a known sex-offender,
·the fact that questions of risk of re-offending are unable to be addressed through mandated supervision and support in the community,
I am of the view that the risk of the applicant re-offending is not so sufficiently slight as to justify the removal of the declaration. I dismiss the application.
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