Director of Public Prosecutions v McIntosh
[2013] TASSC 21
•24 May 2013
[2013] TASSC 21
COURT: SUPREME COURT OF TASMANIA
CITATION: Director of Public Prosecutions v McIntosh [2013] TASSC 21
PARTIES: DIRECTOR OF PUBLIC PROSECUTIONS
v
McINTOSH, Gavin Raymond
FILE NO/S: 574/2009
DELIVERED ON: 24 May 2013
DELIVERED AT: Hobart
HEARING DATE: 22 October, 8, 19 November, 4, 17 December 2012,
17 May 2013
JUDGMENT OF: Wood J
CATCHWORDS:
Criminal Law – Sentence – Sentencing orders – Orders and declarations relating to serious or violent offenders – Dangerous criminal – History of serious violent offending - Signs respondent may be reforming – Lengthy finite sentence – Whether exceptional case warranting indefinite imprisonment.
Sentencing Act 1997 (Tas), s19.
Chester v R (1988) 165 CLR 611; Read v R (1994) 3 Tas R 387, applied.
McGarry v R (2001) 207 CLR 12; Buckley v R (2006) 224 ALR 416, referred to.
Aust Dig Criminal Law [3357]
REPRESENTATION:
Counsel:
Applicant: L A Mason
Respondent: T K Jago SC
Solicitors:
Applicant: Director of Public Prosecutions
Respondent: Legal Aid Commission of Tasmania
Judgment Number: [2013] TASSC 21
Number of paragraphs: 69
Serial No 21/2013
File No 574/2009
DIRECTOR OF PUBLIC PROSECUTIONS v GAVIN RAYMOND McINTOSH
REASONS FOR JUDGMENT WOOD J
24 May 2013
The application
The Director of Public Prosecutions has applied to have Gavin Raymond McIntosh declared a dangerous criminal, pursuant to the Sentencing Act 1997 ("the Act"), s19(1). On 17 May 2013, I made an order dismissing the application indicating that reasons would be published. These are the reasons for making that order. The respondent was last convicted and sentenced in October 2010. I imposed a sentence of eight years' imprisonment and ordered that he not be eligible for parole until he had served six years of that sentence. The term of imprisonment was to be served cumulatively to a term of imprisonment he was then serving of three and a half years. As a consequence, he will not be eligible to apply for parole until October 2018. If he is not successful in any applications for parole, he may be incarcerated until April 2021.
At the time of sentencing, Crown counsel applied for the declaration, but with the consent of counsel for the respondent, that application was adjourned sine die. It was subsequently adjourned on other occasions, with the consent of counsel, as the respondent sought legal advice with respect to various matters and investigations were undertaken on his behalf with regard to the application. In the end, the application was listed for hearing, approximately two years after he was sentenced. The hearing of the application spanned a number of days when evidence was called and comprehensive submissions were made.
The consequences of a declaration being made are set out in the Act. The respondent would be subject to incarceration for an indeterminate period. He would not be eligible for release from custody until the declaration is discharged, s19(4). That period may be beyond the expiry of his sentence, s19(5). He may not apply for discharge of the declaration until after he has served a term of imprisonment equal to the non-parole period applicable to that sentence, s20(2). The Court may only make an order discharging the relevant declaration if satisfied that the declaration was no longer warranted for the protection of the public, s20(3).
The Law
The Act, s19(1), prescribes the conditions that must be satisfied before a declaration may be made:
"19(1) A judge before whom an offender is convicted or brought up for sentence after being convicted may declare the offender to be a dangerous criminal if –
(a)the offender has been convicted for a crime involving violence or an element of violence; and
(b)the offender has at least one previous conviction for a crime involving violence or an element of violence; and
(c) the offender has apparently attained the age of 17 years; and
(d)the judge is of the opinion that the declaration is warranted for the protection of the public."
In this case, conditions (a), (b) and (c) have been satisfied. The fourth condition, (d), is in issue and demands careful consideration.
Section 19(2) provides that:
"(2) In determining whether to declare an offender a dangerous criminal a judge may have regard to all or any of the following:
(a) the nature and circumstances of the crimes referred to in subsection (1);
(b) the offender's antecedents or character;
(c) any medical or other opinion;
(d) any other matter that the judge considers relevant."
It is well established that observations by the High Court in Chester v R (1988) 165 CLR 611 at 618 – 619 have application to our statutory provisions governing indeterminate sentences.[1] These are general considerations which inform the exercise of the discretion provided for by such legislation.
[1] The Court of Criminal Appeal in Read v R (supra), at 395, accepted those general principles were applicable to the Criminal Code s392. The provision in the Criminal Code has since been repealed and, in substance, re-enacted in the Sentencing Act, s19, with the principles applied in that context: R v Minney (2003) 12 Tas R 46 at [32], DPP v Phillips [2006] TASSC 81 at [9] – [11].
These considerations are often summarised and repeated. They provide essential guidance in the exercise of this Court's discretion, and as familiar as they are, they bear repetition:
· The "extraordinary power" to authorise indefinite detention should be confined to "very exceptional cases" where the exercise of the power is demonstrably necessary to protect society from physical harm.
· There was reference to the "stark and extraordinary nature of punishment by way of indeterminate detention" and its impact on "The fundamental principle of proportionality [which] does not permit the increase of a sentence of imprisonment beyond what is proportional to the crime merely for the purpose of extending the protection of society from the recidivism of the offender".
· There is a need for the court to be "clearly satisfied by cogent evidence that the convicted person is a constant danger of physical harm to the community".
The power is only exercised in very exceptional cases, noting the making of a declaration is contrary to the common law which does not sanction preventative detention, and also, contrary to the fundamental principle of the criminal law that punishment must not be disproportionate to the crime. For discussion regarding the tension with our criminal justice system see McGarry v R (2001) 207 CLR 121 per Kirby J at [60] – [61], and R v McCrossen [1991] Tas R 1 per Green CJ at 7.
It is worth noting that a declaration would not be made merely because it would protect the public. If that were so there would be many instances where orders would be made and they would be unexceptional orders. Further, they are not made merely because there was no guarantee that a prisoner would not reoffend and commit a serious crime, or merely because caution would dictate that outcome. We are not here concerned with some sort of cautionary principle where courts can err on the side of public safety or weigh in favour of the interests of protecting the community in the face of uncertainty about an offender's likelihood of committing serious crime.
On the other hand, in Read v R (1994) 3 Tas R 387, the Court of Criminal Appeal rejected the submission that, before a declaration could be made, there was a need for proof that the commission of further crimes of violence was a certainty, stating at 396 – 397:
"What the court is required to do is assess the risk posed to the community by the offender being at large. This in turn depends upon the likelihood of his committing further violent offences. This is something which must be judged taking into account all relevant circumstances, including the offender's propensity to commit such offences in the past. If the type of offences in contemplation are of a grave character and if there is a real likelihood that the offender will commit one or more of such offences if and when discharged from gaol, the court may make the appropriate declaration."
The exceptional nature of an indefinite sentence and the need for the Court to act upon cogent evidence has been reiterated by the High Court more recently: McGarry at pars[23], and [30] – [32] per Gleeson CJ, Gaudron, McHugh, Gummow and Hayne JJ, at [60] – [67] per Kirby J; Buckley v R (2006) 224 ALR 416 in the judgment of the Court at [5] – [6], [40], [42] – [44]; Yates v R [2013] HCA 8 per French CJ, Hayne, Crennan and Bell JJ, at [6] – [7].
In Buckley, at [6], it was stressed that in exercising such a discretion, a judge "must act upon cogent evidence, with a clear appreciation of the exceptional nature of the course that is being taken".
The applicant's case
In making this application the Crown relies heavily on the respondent's criminal conduct of violence, both in relation to his offending which gave rise to the last sentence, and also his history of offending. The Crown relied on a range of material including prior convictions, comments upon passing sentence, the charges particularising the conduct, and in some cases, extracts from the Crown papers or materials handed to the Court. The only other evidence produced related to prison case notes for the period December 2008 to May 2009 and some brief information about courses that the respondent may have been offered in prison, as a counter to evidence about these matters presented on behalf of the respondent. The notes and course information is dealt with when considering the respondent's case. The Crown did not call any witnesses.
The offences relied upon are largely offences of violence. There are 13 incidents, relied upon, which are summarised below. It is noted that these incidents of criminal conduct are not an exhaustive account of the respondent's criminal offending. His other offending includes various damage to property offences (8), motor vehicle stealing (1), burglary (9), attempted burglary (1), and stealing (10), breach of bail and bail conditions and other miscellaneous offences such as resist police and drunk and disorderly. Generally, this other offending attracted a range of sentences from non-custodial options to short periods of imprisonment. He received a term of imprisonment of five months in 2003 for offending which included burglary (5) and stealing (6). Most of these non-violent offences were committed in the period 1995-1998.
1 Common assault – 25 November 1992
The particulars of the charge provide that when the respondent was 15 years of age he assaulted a male person by striking him about the head with a chain. He pleaded guilty in the Children's Court and on 16 February 1993 he was ordered to enter into a bond requiring his good behaviour for 12 months.
2 Armed robbery – 17 April 1995
When the respondent was 17 years of age he committed a robbery of a small supermarket and stole approximately $300. He was disguised and armed with a knife. He demanded money from two female employees, and gestured threateningly towards them with the knife. He was apprehended soon afterwards, made admissions and stated he needed the money. He had become a heavy user of marijuana and his motive was to repay a debt to a drug dealer. He came from a stable home environment and had moved out at 15 years of age. He was sentenced by this Court to 15 months' imprisonment, nine months of which was suspended for two years, subject to his good behaviour during that period, and that he comply with supervised probation.
3 Common assault – 28 August 1996
The respondent, 18 years of age, assaulted a male which, according to the particulars, involved punching and kicking him about the head and body numerous times and hitting him on the head with a frying pan. The complaint reveals he was jointly charged with that offence with another male of about the same age. He was sentenced to 10 weeks' imprisonment.
This offence, together with other offences of burglary, stealing and breach of bail, amounted to a breach of the terms of his suspended term of imprisonment. His response to probation had been "less than satisfactory" (Wright J, 20 February 1997). On 20 February 1997, he was required to serve the balance of the sentence.
4 Common assault – 27 August 1996
The day before incident 3, he committed another offence of common assault. The particulars are that he assaulted a male by punching him to the face on two occasions. He was sentenced on 26 February 1997, to a term of imprisonment of two months, to be served concurrently with a term of imprisonment he was then serving, being the activated term imposed by Wright J.
5 Three charges of assault a police officer – 13 March 1998
The respondent, aged 20 years, assaulted a male police officer by kicking him to the leg, and twice assaulted another police officer, first by head-butting him to the face, and second by punching him to the face. He also threatened the first officer by shaping up to him in a fighting stance. He was sentenced to a term of four months' imprisonment.
6 Assault a police officer – 30 May 1998
The respondent pleaded guilty to assaulting a male police officer by pushing him to the nose. He received a term of one month's imprisonment.
7 Aggravated assault and escape – 3 August 1998
When the respondent was 20 years of age he and several other prisoners broke out of a prison van and, during that escape, he kicked a prison officer in the face on two occasions. He was sentenced in the Supreme Court to a term of imprisonment of 12 months, six months for each crime. It is noted that one of the other prisoners was the same male he had committed the attempted aggravated armed robbery with on 13 May 1998.
8 Attempted aggravated armed robbery – 13 May 1998
Shortly after 6am the respondent went with another man to the Goodwood Newsagency. He was armed with a mattock and had a stocking over his head, concealing his face. He demanded money from the proprietor who resisted his demands. He then struck the proprietor on the arm with the blade of the mattock. He was sentenced to a term of 18 months' imprisonment to commence on 3 November 1999. The sentencing judge noted that the sentence of imprisonment came at the end of substantial periods of imprisonment for other offending.
Crown counsel highlighted various responses given by the respondent to police in his interview. Some of what he said is as follows:
· When asked about his purpose, he said he had "no idea, I probably done it for the rush" agreeing that he meant, "the buzz, the excitement of it".
· He was under the influence of alcohol and Rohypnol.
· Asked what affect that has he replied "makes you feel like you're Superman and the world is yours to take over" and "a thought just gets in your head and you have to live it, basically".
· He expressed remorse saying it was the first and last time he would take Rohypnol.
9 Two counts of stealing, three counts of aggravated burglary and unlawful injure property – June 1998
These were relied upon by the Crown as context only. They do not involve violence.
The crimes were committed in the company of another, over a three day period in June 1998 and involved entry into and theft from domestic households. On two occasions, the householder or neighbour interrupted the attempt. The respondent was 20 years of age at the time.
He was sentenced on 26 November 1999 to 12 months' imprisonment. It was noted that at the time of offending he was addicted to drugs, with the purpose of the thefts being to finance that addiction. On a positive note, he was said to be currently drug free and had undertaken some programs in prison.
He was released on parole on 27 November 2001 for five months and five days. He breached his parole by committing the crime set out below.
10 Two counts of assault, cause grievous bodily harm – 16 February 2002
The respondent was 24 years of age at the time. The crimes arose out of a single incident. The respondent assaulted a young man, punching him in the head several times and elbowing him in the back. That occurred after the respondent had made some derogatory comments about his father. The complainant fled. Another youth had attempted to defend the complainant. The respondent was so incensed at his interference that the respondent chased him, and when he was on the ground, kicked him several times to the arms and upper body. A confrontation then took place with the parents of the first mentioned complainant. During the course of that confrontation the respondent stabbed the father four times. He was unarmed. The learned sentencing judge described him as "extremely lucky to be alive" having regard to the number of blows struck, the force used, and the areas at which the respondent directed the blows.
Four stab wounds were inflicted, one to the victim's face, one to his neck and two to the left side of his abdomen. Three were deep wounds and required significant force. The wound to the neck penetrated 8 – 10cm and the entry point was 4cm from the carotid artery. The wound to the face was a laceration between his eye and ear. It severed some moderately large arteries and resulted in major bleeding. It was 5cm in depth and tracked downwards into the mouth cavity. It caused nerve damage and caused some facial paralysis.
The sentencing judge described the respondent as not displaying any "genuine remorse". A global sentence of two years' imprisonment was imposed. In reaching that sentence, two years was attributed to the charge of causing grievous bodily harm, two months' imprisonment on the first count, and three months' imprisonment on the second count of assault. Then the total was reduced by five months to take account of time spent in prison.
The sentence was appealed by the Crown. It was dismissed: Attorney-General v McIntosh [2002] TASSC 97. Some additional relevant facts are revealed in the reasons. The crime of causing grievous bodily harm occurred during the course of an altercation. The mother of the first complainant approached the respondent holding a baseball bat for protection. She demanded to know where her son was and what had been done to him. The respondent had a knife, and when he moved towards her, the father grabbed the respondent around the head and shoulder. The respondent stabbed the father while he was in a headlock. As noted by the Court, "the attack … whilst unjustified, contained elements of fear, retaliation and response to confrontation", [15].
The respondent was released on parole in March 2004. He committed his next crime over four years later on 31 August 2008.
11 Assault – 31 August 2008
The respondent had invited himself to the victim's home and was there with four male associates with the intention of partying there. One of his associates broke a small table. The victim enquired about that and then asked the respondent not to recline on a previously broken chair. He responded, "I'll show you broken", removed the leg from the table and struck her to the side of her face. She was not looking at the respondent at the time she was struck as her attention had been drawn to a call from her four year old daughter. She briefly lost consciousness. The blow caused substantial damage to her teeth and associated soft tissue injury to her face. She suffered significant emotional trauma. The respondent left the house leaving her alone with her daughter, incapacitated. He pleaded not guilty and exhibited no remorse during the course of the court proceedings. His defence, in the nature of an alibi, was described by the learned sentencing judge as "patently concocted". Furthermore, a few days after the assault he made a derisory comment which revealed a lack of remorse. He was not under the influence of drugs or alcohol. He was 30 years of age. The learned sentencing judge referred to his criminal history and the crime before him as "a further instance of his contempt for the law and others". On 7 May 2009 he was sentenced to a term of nine months' imprisonment backdated to 10 November 2008.
12 Assault – 14 October 2008
Causing grievous bodily harm, demanding property with menaces, stealing, and setting fire to property – 16 October 2008
Less than two months after committing the previous mentioned crime, incident 11, and some six months before he was sentenced for it, he committed other crimes of violence involving two women.
The crimes arose from his efforts to control the activities of the second victim who was, at the relevant time, a drug dealer, and to have her purchase amphetamine through a source with whom he was associated. He told her she was to do so or she was to stop selling drugs altogether, and then followed that with a threat. Subsequently, he gained the understanding that she had not done as he demanded.
On 14 October, he went to the home of the first victim, knowing she was a friend of the second victim. The respondent questioned her about the whereabouts of the second victim. She refused to tell him. The respondent threatened her and then punched her to the right eye causing a fractured eye socket and cheek bone as well as nerve damage. The victim's three year old daughter was present and screaming at the time that the events occurred. The respondent left her injured. She managed to get outside where she collapsed.
On 16 October the respondent accosted the second victim outside the Magistrates Court. He told her to get into her car and drive. He took her to the outskirts of a suburb and demanded money or drugs. She handed some money over. He thereby committed the crime of demand property with menaces. The respondent called her a liar and punched her to the face. She sustained two fractures to the lower jaw and a fracture to the base of her skull. He set fire to her motor vehicle and left her there.
Both victims were so fearful of the respondent that they did not pursue necessary medical treatment. They both suffer ongoing effects of their injuries.
The respondent pleaded guilty but sought to justify his actions, demonstrating a lack of remorse.
His conduct was not motivated by drugs.
On 6 May 2010, he was sentenced to three years and six months' imprisonment to commence on 29 October 2009, with eligibility for parole after three years. The respondent appealed his sentence but it was dismissed.
The respondent was released on 5 June 2009 after serving the sentence of nine months' imprisonment for incident 11. He was released in error on that date and then returned to custody. He was granted bail on 1 July 2009 for the above crimes. It was while he was on bail for these crimes that he committed the most recent crimes.
13 Aggravated burglary, stealing and two counts of committing an unlawful act intended to cause bodily harm -12 November 2009
On 12 November 2009 disguised wearing home made balaclavas, and carrying implements as weapons, the respondent and two co-offenders forced entry into a home where a couple was sleeping. A shovel was used to smash the rear glass sliding door. The respondent was carrying a metal bar. Inside the bedroom one of the offenders blocked the exit while another demanded money, and the respondent said to the couple, "youse are fucked". The young woman sat up in bed and a co-offender struck her to the top of her head with a metal implement. The respondent stepped in and, intent on causing serious harm, delivered a forceful and direct blow to her head with his metal bar. She cried, cowering, with her face in her hands as it was swung down on her head. She was rendered unconscious and had convulsions on the floor, while the male victim was attacked by the three offenders. He was the victim of a savage, determined and sustained attack with the three offenders acting in concert with the intention of causing him grievous bodily harm. He was struck many times by the co-offenders with their weapons. He received many blows to the head. He escaped from the house but collapsed shortly afterwards. Both victims were taken to hospital and required urgent medical attention. The woman suffered two lacerations to her head and bleeding to two different parts of the brain. She had some residual symptoms such as memory difficulties and impaired balance. She was traumatised, with the obvious prospect of long term emotional consequences.
The male victim suffered a depressed comminuted fracture to his skull, the depression about 7mm deep. He also suffered an underlying blood clot. There were at least ten separate lacerations to the face and scalp, and significant bruising to his face. He also suffered multiple bruising and abrasions to his body, arms and knees. Some of the bruising was severe. While clinically he was making a good recovery, he suffered a debilitating level of emotional trauma.
The respondent was the driving force in the commission of the crimes, and influenced the other co-offenders, who were younger than him. The crimes involved some calculation and planning. His criminal history was seen as revealing about his culpability, showing a continuing disregard for defenceless victims and contempt of the law. His association with the victims was remote. There was no apparent motive and the victims had not provided any reason for grievance or resentment.
He showed presence of mind after the crime, and when confronted by the police, provided a lie which was subsequently useful to him in his defence.
On 20 October 2010 the respondent was sentenced to eight years' imprisonment to commence at the end of his current sentence of three and a half years. A minimum non-parole period was fixed at six years.
The respondent may serve all of the sentence of eight years' imprisonment if he is not granted parole and if he does not receive remissions for good behaviour. Noting the sentence is to be served cumulatively to the sentence of three and half years, the longest period he may serve is 11½ years' imprisonment from 29 October 2009. If he receives parole as soon as he is eligible to apply with respect to both sentences, he would serve nine years from that date. Of course, if he does receive parole and he reoffends, it may be revoked.
The respondent's case
The respondent called Dr Lester Walton, consultant psychiatrist. During the course of his evidence-in-chief a report from Dr Walton of 6 August 2012 was tendered. He gave evidence of information that the respondent had given him in terms of history and matters relevant to this application and his diagnosis, and matters broadly relating to the risk of reoffending. There was no objection to any of the evidence given by Dr Walton, notwithstanding the fact that the respondent did not give evidence on the application. Rather, submissions were made about the weight that should be given to claims and assertions made by the respondent to Dr Walton. Dr Walton was cross-examined by Crown counsel, and the Crown in fact relied on much of his evidence.
The defence also relied on material to show that in the past two years the respondent had engaged well in a rehabilitative process. Various materials were relied upon to demonstrate his efforts. A report was provided from "Newpin Family Futures", and the "Getting SMART" program. The reports were tendered by consent of the Crown without the authors being called. The respondent also relied on prison case notes said to demonstrate Mr McIntosh's behaviour since the last sentence was imposed. I set out below a summary of the information provided.
The Getting SMART program
The Getting SMART program is a voluntary 12 session program based on the theory and principles of cognitive behavioural therapy. It teaches techniques that can be used to overcome maladaptive behaviours such as substance abuse or criminal activity. The respondent completed all 12 sessions between May and June 2012. The report identified the respondent as motivated, and said that he had demonstrated his understanding and put into practice some of the strategies of the program. For example, he participated enthusiastically in a lateral thinking activity about solving problems. During the program the respondent identified his two important goals as having a purpose in life and being a good parent. In identifying how he would achieve these goals he applied the goal setting strategy he had been taught in the program.
The Newpin program
The program is run by Uniting Care Tasmania. It is aimed at supporting inmates to build stronger relationships with their children and significant others. Mr McIntosh participated in the program, involving 27 hours, between April 2010 and June 2012. There are two components consisting of educational modules and a therapeutic component. The program is based on four core values: support, empathy, equality and respect. It included two, two hour sessions with the inmates' children, providing an opportunity to observe the inmates and to assess how they put into practice what they had learnt. In a report signed by Tracey Wicks, Therapeutic Practice Manager, and Maurice Dawe, State-Wide Family Support Manger, it was observed that there was "a very strong attachment between father and son", the respondent "demonstrated great empathy and understanding for his little boy", he was aware of his son's needs, and, in playing with him, he followed his son's lead.
It was noted that during the program the respondent was able to identify new ways of building and maintaining a healthy relationship with his partner and son. He also provided support for other inmates, reiterating information in a basic way they could understand. A "constant theme [from the Respondent]… was the loss of not being able to see his son grown, and the developmental stages of his son's growth that he will miss out on". The report also noted that he was the only inmate who completed more than 20 hours in the program.
The material before me indicates that the respondent's son is his only child and had been born during the respondent's recent custodial period.[2] In this sense, the respondent's child represented a new incentive.
[2] Reference to the respondent's infant son having been born while he was in custody was made in comments upon passing sentence for the most recent criminal conduct.
The Crown provided information of a number of other courses that the respondent may have been offered. Given that it was not established that they had been offered, this equivocal evidence does not assist in any way. It is accepted that he had been offered an intensive drug and alcohol rehabilitation program and in April 2012 had refused to participate in that program. I do not see that that refusal should be seen as indicative of someone who is not actively seeking to reform, given the evidence suggests that he has not had a drug and alcohol problem for some years.
The prison case notes
The prison case notes for the period November 2009 to July 2012 are relied upon by the respondent to show generally that the respondent has behaved well and has been compliant. Overall, that is borne out by the notes, with a few relatively minor examples of behaviour that was somewhat difficult. There was one entry where the officer described the respondent as "recalcitrant and demeaning". The notes are positive in a number of respects indicating his interest in programs offered by the prison, his positive relationship with his son, and polite interactions with custodial officers.
The Crown's argument was that it was troubling that he was compliant and well behaved as a prisoner, when he was someone who had committed serious crime in the community. The Crown tendered prison notes for the earlier period December 2008 to May 2009 relied on as revealing that the respondent's pattern of behaviour in prison was usually compliant and well behaved and thus demonstrating that he had not changed. However, those notes reveal that in that period of six months he was disciplined for assaulting an inmate and was sanctioned. Accordingly, it seems that, contrary to the Crown's submission, there may have been a degree of improvement in his behaviour. In conclusion, I do not accept the Crown's contention that his more recent compliance and co-operation suggests he is not reforming. While his compliance and co-operation is consistent with the respondent's case about reform, it does not advance matters to a significant degree.
Dr Lester Walton
Dr Walton was admitted as a Fellow of the Royal Australian and New Zealand College of Psychiatrists in 1981. He works mainly in private practice but is retained by St Vincent's Hospital as part of the Correctional Health Service. His work in that regard includes providing psychiatric treatment to inmates at Port Philip Prison. Dr Walton examined the respondent on 4 January 2010, and reassessed him on 15 June 2012. The original examination was with respect to the sentencing proceedings referred to above, in relation to incident 12. The reassessment concerned the application to have Mr McIntosh declared a dangerous criminal. Dr Walton had been provided with copies of the respondent's criminal history, sentencing remarks, and the prison case notes for the period November 2009 to July 2012.
Dr Walton described his encounters with Mr McIntosh as thoroughly pleasant and Mr McIntosh as co-operative. On both occasions he exhibited evidence of obvious distress. Dr Walton did not find any evidence of psychotic disturbance. Dr Walton's opinion was that "simply on the basis of his well established criminal history Mr McIntosh likely would attract a diagnosis of an antisocial personality disorder". He also believed Mr McIntosh "would attract a diagnosis of a chronic post-traumatic stress disorder". Before turning to a more detailed consideration of these opinions, it is useful to set out a summary of the history provided by the respondent, drawn from Dr Walton's report and his evidence.
The history provided by Mr McIntosh included the claim that he had been a reasonably well behaved prisoner in recent times and more consistently compliant, as a contrast with earlier behaviour. Noting my observations about the prison notes and that they may show a degree of improvement, the history is not controversial in this regard. Dr Walton noted that the respondent's compliance was borne out by the prison case notes. Dr Walton noted there were only a small number of instances attracting adverse comments by prison officers, suggesting they were of a trivial nature. The overwhelming majority of the comments were of a positive nature.
Mr McIntosh told Dr Walton that he was pleased he had managed to avoid altercations with other prisoners. He provided an example of a prisoner wanting to fight but that he "walked away". He had a reputation in the past with other prisoners looking to him to sort out issues including dispensing of violence if necessary. He insisted his approach has now changed.
Dr Walton's report noted that Mr McIntosh told him that he had been active in organising programs within the prison. He acts as an assistant sports co-ordinator and as a personal trainer. He was active in establishing the "Dad's Day" program which occurs four times annually. Mr McIntosh freely admitted that it was partly driven by self-interest in relation to him having contact with his own son, but was pleased that his efforts have also borne fruit for other imprisoned fathers. Mr McIntosh stated that he is "nothing short of being terrified that he may never be released to be available for his son". His next project was in relation to organising couple counselling, and that he was motivated by a friend's suicide. Mr McIntosh informed Dr Walton that a fellow prisoner who was a friend had taken his life and that "it shattered" him. Dr Walton noted a depressed mood and sporadic sleep. He considered these symptoms attributable to grief rather than depression.
Mr McIntosh told him he had been undergoing counselling with a prison psychologist, involving either weekly or fortnightly sessions. He found the counselling helpful. Recently, the counselling had focussed upon Mr McIntosh's reaction to the death of his friend. Further rehabilitative endeavours included participation in a parenting program twice a week, and group counselling in relation to drugs, alcohol and addictive behaviour. Mr McIntosh was hopeful he might be transferred to a lower security setting where he could undertake training as a boilermaker.
Dr Walton noted various matters of background reported by the respondent. The following is extracted from his report but the paragraphs are not in the same order:
· "He was raised in Bridgewater and he achieved a Year 9 level of education but he was then invited to seek exemption, in a context of recurring altercations at school and truancy, although apparently his academic record was satisfactory. Mr McIntosh has pursued further education to a Year 12 level in a custodial context."
· "Mr McIntosh describes his childhood as characterised by a largely absent father but he has a vivid recollection that when he was around five years old his father was, at least as he perceived it, brutally subdued by police, which seems to have been the beginning of Mr McIntosh's protracted animosity towards police and authorities in general."
· "Mr McIntosh left home at the age of 14 years old and he travelled widely around Australia. Soon after he left it seems that his parents [sic] marriage failed. He describes his father as being an alcoholic who is actually quite unwell with liver disease (Mr McIntosh having his own problems in that regard) but they have maintained ongoing contact, in contrast with his mother."
· "Mr McIntosh entered a de facto relationship around 12 years ago which was formalised in marriage in 2003. Mr McIntosh and his wife have produced no children and she continues to live in Melbourne.
· "It is Mr McIntosh's preference to reconcile with his wife but since they became geographically separated he did establish a relationship with another woman who has given birth to his only child, a son born on 17 March 2010. He now finds himself in a situation of considerable conflict as he does wish to be available as a father to his son."
· "Mr McIntosh commenced drinking alcohol at the age of 12 years old, that actually being instigated by his father. He describes a pattern of weekly intoxication when at large.
· Mr McIntosh has a past history of cannabis, amphetamine, cocaine and heroin abuse, he becoming addicted to the latter but he stated that he had refrained from drug abuse since the age of 23 years old. Breath testing and urinalyses within the prison in recent years have routinely disconfirmed any substance abuse."
Mr McIntosh reported that he had experienced a number of traumatic events. One of them involved the incident of his father being brutally subdued, mentioned above. Others of relevance to Dr Walton's opinion were referred to and he commented about them as follows:
· "Mr McIntosh stated that when he was nine years old he observed an adult male bleeding profusely from multiple stab wounds to his chest. He was told that this person was a victim of 'suburban warfare' and Mr McIntosh recalls remaining fearful that he might be a victim of stabbing himself, he adopting an attitude of what I would describe as proactive self-defence, that is, he would retaliate prior to others actually attacking him if he felt in such danger. That remained a characteristic of Mr McIntosh's behaviour in prison previously but he is adamant that he has now changed."
· "In a similar vein, when he was at secondary school, Mr McIntosh was the victim of bullying and bashing by older students, apparently orchestrated by his own brother. In that context he became a reasonably competent fighter in relation to defending himself and he had a growing sensitivity towards others being bullied and he would intervene on behalf of fellow students who were less capable of protecting themselves. Again this attitude and behaviour has featured in both Mr McIntosh's offending and his previous prison behaviour."
· "Mr McIntosh sustained serious facial injuries, including fragments of shotgun pellets being embedded in both eyes, when he was shot in 2001 at reasonably close range, apparently by a shotgun-wielding man in the grips of an amphetamine-induced psychosis."
· "Mr McIntosh was also the victim of an assault soon after he returned to Tasmania most recently, he sustaining back injuries, including a fractured spine. He has been left with chronic pain but he does not receive any active medical treatment in that regard."
Generally speaking, the history was not verified by Dr Walton. An exception was Mr McIntosh's account of having sustained gun shot wounds to his face and eyes which had been corroborated by reference to the Royal Hobart Hospital file.
During cross-examination Dr Walton agreed that the respondent's claims should not be accepted without question, noting that he is someone who has been demonstrated to be deceitful from time to time. Dr Walton made the general observation that to have a high degree of scepticism of the respondent's claims is entirely appropriate.
Dr Walton expressed the view that the respondent's attitude to life and behaviour to others was influenced by his early childhood experiences, in particular, seeing his father brutalised by police, being the subject of bullying at school, and witnessing the "horrific stabbing incident".
In relation to the diagnosis of chronic post-traumatic stress disorder, Dr Walton stated that while the respondent's symptom profile was not entirely typical, that can be the case when trauma is suffered in childhood. The respondent has "sustained permanent psychiatric injury because of the multiple past psychological traumata".
Dr Walton noted that Mr McIntosh believes he has developed some insight into the relevance of previous traumatic incidents. He seemed to appreciate that he was somewhat of a vigilante and that the recent incidents of serious assault did involve "drug dealer victims". I understood that to be a reference to victims who were drug dealers, not who were victims of drug dealers. Mr McIntosh insisted that he had distanced himself from those preoccupations. In the context of discussion about his risk of re-offending he stated that he had something now he never had before, that is, his son.
Dr Walton was cross-examined about the characteristics of a person with anti-social personality disorder and agreed that the characteristics involve a pervasive pattern of disregard for, and violation of the rights of, others. According to Dr Walton's oral evidence other criteria that would, or may, be present, include:
· deceit and manipulation;
· a failure to conform to social norms;
· having a disregard for the wishes, rights, or feelings of others;
· repeated lying;
· being deceitful to gain personal profit or pleasure;
· making spur of the moment decisions without consideration for the consequences to others;
· a tendency to be aggressive resulting in physical fights and assaults; and,
· commonly showing little remorse for the consequences of their actions, so they might excuse themselves of responsibility but with islets of high morality.
A personality disorder tends to be fixed and enduring over time. Dr Walton expressed the view that in Mr McIntosh's case, his pattern of violent behaviour, anti-social behaviour, has continued over a significant period of time and appears entrenched. A person with Mr McIntosh's violent history would be placed in a category of high-risk of re-offending in a violent way.
Dr Walton noted that the diagnosis of the disorder of anti-social personality is not to state that the respondent is a remorseless psychopath. It was noted that some of his offending has been driven by victims breaching his moral standards.
Dr Walton gave evidence that while it was previously considered that anti-social personality disorder was a largely immutable condition, it is recognised that a proportion of such persons undergo a delayed psychological maturation. If that is to occur it usually begins by the individual's mid-30s. Dr Walton stated that there is some indication of that trend here, noting that the respondent is seeking to reform himself, and his seemingly improved behaviour in prison. Dr Walton also mentioned Mr McIntosh spoke of developing insight into the nature of his psychological functioning and behaviour. He seems to have some understanding of the relevance of adverse events in his early life and how they have affected his approach to life and his criminal behaviour. Mr McIntosh's recent status as a parent is a focus for him, and while to treat it as a comprehensive explanation for reform is simplistic, Dr Walton stated he has no doubt that it is a genuine motivation. It remains to be seen whether he can sustain his reform.
Dr Walton referred to "preliminary indications" that Mr McIntosh is reforming and that he intends to apply himself to ongoing rehabilitation. It cannot yet be said whether it is the beginning of a long-term favourable trend. He said it would be very useful to observe Mr McIntosh's behaviour and document it for some years to come. The question of whether he has actually managed to reform would be clearly established over time. His expectation would be that there will either be a re-emergence of his typical anti-social conduct, or he will continue with his positive efforts to reform, being an ongoing process of psychological maturation. He expressed the view that it would be "most unfortunate" if the application had to be determined at this preliminary stage. Dr Walton added to this, stating that the respondent claimed to have begun a process of reformation, and his view was that the claim should be tested by ongoing observation. Dr Walton's evidence was that he was confident that if the respondent was in the process of constructing a ruse at this point, he will not be able to maintain it over the years to come, referring to the period he will be in prison.
Dr Walton's evidence was that developing genuine remorse was not absolutely necessary to obviate the risk of re-offending. He said that absence of remorse has been somewhat over-rated as a consideration in terms of risk of re-offending. Modern research indicates the degree of impulsivity is more relevant. Dr Walton also noted that it may be that an individual stops offending, not because he develops a sophisticated morality, but because of a fear of punishment.
Dr Walton described the task of assessing future risk as impossible if you are referring to a particular individual. There is no way to reliably predict how anyone may behave at a future date, especially if you are talking about years hence. Dr Walton described a person's criminal history as probably the most reliable of a number of unreliable indicators of what the future might hold. Mr McIntosh's criminal history would be seen as "high risk" particularly noting the escalation in his violent conduct. Dr Walton would place Mr McIntosh in that category principally on the basis of his past history. It was evident from Dr Walton's evidence that to refer to the category of "high risk" is a general proposition, as a contrast to other broad categories such as "low risk". It is impossible to say where an individual might lie within the spectrum of risk captured by the category of "high risk". Having placed people in categories of risk, they should "on average" hold up over time. Although, the passage of time reduces risk because generally speaking an individual's rate of offending reduces as they get older.
Dr Walton accepted the proposition advanced by the Crown that an explanation of the efforts made to reform are that they have been made in light of the pending application and therefore, merely an attempt to convince others that he has changed. However, he countered this, observing that it may be the case that the respondent's efforts are genuine, or they may be due to both reasons.
Discussion
I turn now to my assessment and consideration of the material before me, dealing first with Dr Walton's evidence and then other matters including the prominent issue of Mr McIntosh's criminal history.
Dr Walton's opinions that the respondent has an anti-social personality disorder and post- traumatic stress disorder are not challenged. I accept his opinions in this regard. The diagnostic criteria of the disorder, as elicited in cross-examination, are amply demonstrated by features of his violent offending.
In essence, Dr Walton's evidence was not challenged, rather, cross-examination highlighted the question of whether the respondent's history, his account of his offending including justifications for his conduct, and claims he has made, are unreliable. Further, the prospect was raised that an explanation for his efforts to rehabilitate was a response to this application rather than a genuine attempt to reform. In considering these possibilities and counter-explanations that were advanced by the Crown, it must be borne in mind that the respondent does not have the task of establishing that he is telling the truth or that he is not a danger. Further, in determining whether I am affirmatively satisfied that the declaration should be made, I should act on cogent evidence relating to future behaviour.
The Crown has not established or sought to establish that the respondent has lied to Dr Walton. The Crown has not proved that his efforts to reform are not genuine. The respondent's statements indicating a level of insight regarding the reasons for his past offending have not been shown to be disingenuous.
I am mindful of Dr Walton's evidence regarding scepticism with respect to the respondent's claims. I have approached the account given by the respondent to Dr Walton, and claims made by him, with a strong measure of scepticism.
I summarise other aspects of Dr Walton's evidence which are also uncontroversial and which I accept:
· There are limitations on the ability to accurately predict risk with respect to individuals.[3]
· The respondent's high risk categorisation is based on his violent history and the escalation in his offending.
· There is a percentage of individuals with anti-social disorder who mature psychologically. There are early signs that the respondent might be one of those individuals; he has expressed some insight regarding his offending and seemingly begun a process of reform.
· The respondent is genuinely motivated to be a good father and positive role model to his son. His son provides the respondent with an incentive to make efforts to reform.
· There may be improvement in his personality disorder as a consequence of maturation and the efforts he is making. Only time will tell in that regard.
[3] For judicial recognition of these limitations see Kirby J in McGarry at 61.
Dr Walton's evidence regarding preliminary indications that the respondent may have begun a process of reform is supported by the evidence of his participation in the two rehabilitation programs that have been discussed and the reports regarding his participation. The reports are in positive terms and indicate that he has demonstrated a level of real engagement in those programs, as well as in relation to various initiatives he has been involved in.
The respondent's history of offending is a most weighty consideration. His history reveals a propensity to commit serious crimes of violence. There is an escalation in his offending, as to the rate of offending, seriousness of violence inflicted, and the injuries sustained. This is evident in the commission of four serious incidents of violence, 11 – 13, committed in the short period of approximately 15 months.
A concerning feature of his conduct with respect to these incidents is that his violence was carried out by him in confrontations or situations he had created for the purpose of inflicting violence. They share in common:
· A propensity to harm victims who are vulnerable.
· He did not reveal a capacity or desire for restraint.
· After acting with brutal violence he walked away from his victims showing callous indifference to them.
· He acted without any real motive, but also, rationalised his conduct and the harm he caused.
· He did not accept responsibility for his wrong-doing and did not demonstrate an understanding of the seriousness of his conduct.
Incidents 12 – 13 involve planning. In common with earlier offending he has shown a lack of remorse.
It might be said that the conduct on each occasion was not sustained. Incidents 11 and 12 both involved one punch. The crime of causing grievous bodily harm upon the female complainant in the last incident involved one blow. However, in each of these three cases, the single blow was delivered with devastating force and caused substantial harm. There was significant potential for more serious harm to have been caused to the victims. Having regard to all his violent offending, at least three of his victims are lucky to be alive.
At the time he carried out the violence set out as incident 12, the heaviest sentence he had received for an act of violence was two years. When he committed the 13th criminal incident he had not yet been sentenced for the 12th incident. Having been sentenced for both, he is now incarcerated for a very long period of up to 11½ years. He has not before received such a sentence, or even one approaching that length, or even a quarter of that length. This is not a case where it is evident that sentences of that kind have been ineffective as a deterrent in the past.
An offender may be deterred by the experience of serving a heavy sentence. If the sentence is effective as a deterrent, then the protection of the public will be served. This is a matter to be taken into account in determining whether an indefinite sentence is necessary. It may be that the protective purpose of preventative detention has been met, Buckley at [7], [42] – [43].
The significance of the present sentences he is serving go beyond that matter. The sentences fix the time-frame by reference to which assessment of risk is to be examined. In assessing whether the order is warranted, the time when the community will be exposed to risk is relevant. The Court is concerned with making a prediction about future behaviour after the respondent has served his sentence some years away. There is necessarily significant uncertainty in estimating the danger to the community of a person who is to be incarcerated for a lengthy period. For discussion about the uncertainty of estimating risk in cases involving long sentences, see Buckley at [7] and [43], and in relation to assessment of risk to the community at the end of the fixed sentence, see McGarry at [23] and [26].
In Buckley, the judgment of the Court, at [43], addressed the difficulties that arise in cases involving long sentences, and stated that the operation of the parole system, and the possibility of treatment while in prison, are matters that call for close attention. In this case, Crown counsel has conceded that conditions that may attach to parole, if granted, would undoubtedly be aimed at protecting the public. If he were to fail to comply with such conditions his parole may be revoked.
In determining this application I have approached the matter with a strong appreciation of the very exceptional nature of the declaration that is sought.
If I view in isolation the respondent's history of violent offending, and the diagnosis of an anti-social personality disorder usually involving enduring and static personality characteristics, then I would have little hesitation in making the order. His violent offending gives rise to serious concerns about the risk of re-offending and the danger he poses to the community.
However, there are considerations which militate against the making of a declaration. These considerations are the current lengthy period of incarceration, the signs that he may have commenced a process of reform, the efforts he has made towards his rehabilitation, and his genuine motivation in making those efforts.
A significant factor is the lengthy sentence the respondent is already serving. Predicting the danger a person will pose to the community in more than five years' time necessarily introduces another dimension of uncertainty to the task of predicting risk, already attendant, with difficulty. The respondent was aged 32 years when he first commenced his present period of incarceration. Depending on whether he is granted parole, he will be 41 – 43 years of age when he is released. It is less clear that he will be a danger to the community at that future time than when he was sentenced, being close in time to the crimes of violence he committed. The lengthy sentence of eight years' imprisonment was imposed with a view to protecting the community. That sentence may have a protective effect if he is deterred from committing further acts of violence. As noted, the respondent has not been previously sentenced to a very lengthy period of imprisonment. There is the potential that his violence will be checked by his experience of approximately a decade in prison. Also bearing on the protective potential of the sentence is that the operation of the parole system may prove to be effective in promoting reform and controlling his behaviour.
Another significant factor is the indications that the respondent may have commenced a process of reform and a possibility that his personality disorder may improve as the respondent undergoes psychological development. I am conscious that in relation to the question of reform we are here concerned with a possibility that may or may not eventuate. However, there is support for the prospect of reform arising from the efforts the respondent has been making while in prison in the two year period since he was most recently sentenced. He has expressed insight with respect to his offending and demonstrated a real engagement in rehabilitation programs. He is regarded as having made substantive efforts in relation to those programs. It has not been shown that he could reasonably have done any more towards his rehabilitation. While I approach with scepticism his claims and the reasons he has expressed for his efforts, it is undoubtedly the case on the evidence before me that he has a genuine motivation to improve. It is demonstrated that his son, and his desire to be a good father, provide a strong motivation. This incentive may compel him to conform to society's norms and expectations. It may simply be that once released he will want to avoid periods of separation from his son. It remains to be seen whether or not his motivation translates into these consequences and whether he can sustain the efforts he is making. On the evidence before me, the possibility that he may have commenced the process of reform has not been shown to be unrealistic.
If the law was otherwise and orders were made subject to a respondent demonstrating that he was not a danger to the community, the application would be successful. If that was the law, indeterminate sentences would be commonplace in cases of serious violent offenders and they are not.[4] The power is reserved for very exceptional cases.
Conclusion
[4] In Buckley the judgment of the Court at [42] referred to the banalisation of indefinite imprisonment.
The factors I have referred to, particularly the length of the finite sentence, the potential for it to operate as a deterrent to the respondent and the indications regarding the potential for reform, bear on the question of the risk that the respondent will pose to the community when he is ultimately released. It cannot be known at this time whether or not these potential developments will become a reality. If they do become a reality they would reduce, and may significantly reduce, the risk that he would pose to the community.
These factors militate against the making of the order. Because of them the need for an indefinite sentence is rendered less clear.
The respondent's serious violent offending weighs heavily in favour of making the order. However, as a consequence of the factors which militate against the order, it is a case which falls short of the very high threshold that applies. Having regard to the totality of the circumstances, I am not clearly satisfied that it is plain that, by the time the respondent is released, indefinite imprisonment will be required to protect the public and that there will then be a real likelihood that he will commit further crimes of serious violence. It is not demonstrably clear that the fixed sentence will be inadequate to protect the community.
It has not been clearly established that the extraordinary step of making an order for a declaration resulting in indefinite detention is required. For these reasons the application has been dismissed.
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