Background
Background to the litigation
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 However, it seems his parole was revoked after that offending, such that he was returned to prison on 21 October 1998. 3 Counsel for the applicant calculated that, had the applicant served all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 Background7 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 law11 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 Court12 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: