Director of Public Prosecutions v Phillips
[2006] TASSC 81
•19 October 2006
[2006] TASSC 81
CITATION: Director of Public Prosecutions v Phillips [2006] TASSC 81
PARTIES: DIRECTOR OF PUBLIC PROSECUTIONS
v
PHILLIPS, Paul Vincent
TITLE OF COURT: SUPREME COURT OF TASMANIA
JURISDICTION: CRIMINAL
FILE NO/S: C 292/1998
DELIVERED ON: 19 October 2006
DELIVERED AT: Hobart
HEARING DATE: 22 September, 6 October 2006
JUDGMENT OF: Underwood CJ
CATCHWORDS:
Criminal Law – Jurisdiction, practice and procedure – Judgment and punishment – Sentence – Habitual criminals – Practice – Dangerous criminal declaration – Exercise of the discretion.
Sentencing Act 1997 (Tas), s19.
Chester v R (1988) 165 CLR 611; Read v R (1994) 3 Tas R 387, applied.
R v Minney (2003) 12 Tas R 46, referred to.
Aust Dig Criminal Law [862]
REPRESENTATION:
Counsel:
Applicant: M A Stoddart
Respondent: J S Wilkinson
Solicitors:
Applicant: Director of Public Prosecutions
Respondent: Wallace Wilkinson & Webster
Judgment Number: [2006] TASSC 81
Number of paragraphs: 44
Serial No 81/2006
File No C292/1998
DIRECTOR OF PUBLIC PROSECUTIONS
v PAUL VINCENT PHILLIPS
REASONS FOR JUDGMENT UNDERWOOD CJ
19 October 2006
The Director of Public Prosecutions seeks a declaration that Paul Vincent Phillips be declared a dangerous criminal.
The Law
The Sentencing Act 1997 ("the Act"), s19(1), empowers "a judge before whom an offender is convicted or brought up for sentence after being convicted" to declare the offender to be a dangerous criminal. Subsection (4) provides that a dangerous criminal is not eligible for release from prison until the declaration is discharged.
The Act, s20, gives the Supreme Court power to discharge a declaration that the offender is a dangerous criminal. The jurisdiction to make a declaration is conferred upon the sentencing judge, but the jurisdiction to discharge a declaration is conferred on the Court. This distinction is reinforced by s19(3) which provides:
"(3) A judge who declares an offender to be a dangerous criminal must, in addition to making that declaration, sentence that offender to a term of imprisonment for the crime referred to in subsection (1)(a)."
Section 19 contemplates that the declaration will be made at the time of imposing sentence, but because jurisdiction is conferred (inter alia) upon "the judge before whom an offender is convicted", the declaration does not have to be made at the time of imposition of sentence.
In this case, the respondent was last convicted and sentenced by me on 9 October 1998. At that time Crown counsel applied for a declaration that the respondent be declared a dangerous criminal, but with the consent of counsel for the respondent that application was adjourned to a date to be fixed. It seems that the fact that an application had been made at the time of imposing sentence was overlooked, for on 12 December 2002 the Director of Public Prosecutions filed a written application seeking a declaration. For a reason that I am unable to ascertain, the application did not come on for hearing until 12 May 2004. At that time then counsel for the respondent sought an adjournment. It was not opposed by the Crown. It was explained that the respondent had embarked upon a sexual offenders' treatment programme, but if the declaration were made he would be removed from it because the programme was only available to those offenders who would be released reasonably shortly after concluding the programme. Obviously, the effect of the treatment programme would be relevant to the outcome of the application for a declaration of dangerous criminal status. The respondent became eligible for parole this month and the application was re-listed for hearing on 22 September 2006.
The conditions precedent for making a declaration that an offender is a dangerous criminal are prescribed in the following terms by the Act, s19(1):
"(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."
As provided in subs(2), regard may be had to 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."
Relevantly, the Act, s20(3), provides that a declaration must be discharged if "the Court is satisfied [it] is no longer warranted for the protection of the public".
In Chester v R (1988) 165 CLR 611 the High Court considered an analogous provision in the Criminal Code (WA) and, at 618, expressed this general sentiment which is applicable to the Act, s19:
"The fundamental principle of proportionality 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: Veen v The Queen (No 1) (1979) 143 CLR 458, at pp 467, 468, 482-483, 495; Walden v Hensler (1987) 163 CLR 561; Veen v The Queen (No 2) (1988) 164 CLR 465, at pp 472-474, 485-486. In the light of this background of settled fundamental legal principle, the power to direct or sentence to detention contained in s662 should be confined to very exceptional cases where the exercise of the power is demonstrably necessary to protect society from physical harm."
In Read v R (1994) 3 Tas R 387, the Court of Criminal Appeal considered the provisions of the Act, s19, then enacted, in substance in the same terms in the Criminal Code, s392. The Court adopted as apposite to the Tasmanian legislative provisions the general views of the High Court expressed in Chester with respect to the power to impose preventative detention. (See also R v McCrossen [1991] Tas R 1 at 7.) The Court of Criminal Appeal rejected the submission that before a declaration could be made, the Tasmanian provisions required proof that the commission of future crimes of violence was a certainty. The Court said, 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."
In R v Minney (2003) 12 Tas R 46 at par5, Crawford J adopted the views expressed in Chester and Read.
The respondent's criminal conduct
The respondent will be 46 years of age next month. On 22 March 1985, when he was aged 25, the respondent was convicted in the Supreme Court of the Australian Capital Territory of rape, robbery with violence and abduction. He was sentenced to imprisonment for seven years, four years, and three years respectively. The last two sentences were ordered to be served concurrently with the first, and a four year non-parole period was fixed.
The crimes were all committed after about 10pm on 21 September 1984. The complainant, a young woman, had driven her car to a Canberra shopping centre. She returned to her car after a short time and had just got into the driver's seat when the respondent opened the driver's side door and threatened the complainant with a knife that he was carrying. The respondent forced the complainant to move over and drove off in her car. The respondent forced the complainant to sit in the footwell of the front passenger seat and made her pull her hat down over her eyes so she would not recognise him. He drove to Pine Forrest, in the Brindabella Mountains, I infer some distance from Canberra. There he pulled a beanie that he had been wearing down over her eyes and vaginally raped the complainant.
In his interview with police, the respondent claimed that his motivation for the crime was simply to get a ride from the shopping centre back to a caravan park where he was living in a tent. He claimed that the idea of rape only occurred to him after they arrived at the Pine Forrest. The respondent admitted to police that his original plan was to drive off and leave the complainant abandoned in the Pine Forrest, but subsequently, he changed his mind and drove her back to the city. There he let her get out. He drove off in her car and parked it a short distance from the caravan park.
A psychiatric report put before the learned sentencing judge contained the following material:
·The respondent has a history of behavioural disturbance, cannabis use and alcohol abuse. For some years the respondent has suffered from a personality disorder arising, at least in part, from his fractured upbringing.
·The respondent has complete insight into the criminality of his conduct and the likely consequences of it upon his victim.
·Although the respondent had a normal relationship with a girlfriend, he was a loner, preferred to be on his own, and had a poor tolerance for social activities with groups of people.
·The respondent tended to act impulsively and was at a low point in his life when he committed the crimes, having just lost his job and his accommodation.
His report concludes with the following two paragraphs which have relevance to the respondent's future events:
"Your client has had limited control over his affairs since his teenage years. Your client has frequently abused alcohol and behaved in a disturbed manner. Your client has been before the courts on several occasions, and spent time in a boys home and prison.
I believe that the general low state of your client's life in September 1984 led to him behaving without serious consideration of the effect of his behaviour. While he behaved in a most unsatisfactory manner in kidnapping and raping [Miss S G], it would appear that he was able to show some compassion towards this young woman during the course of his sexual assault upon her."
A pre-sentence report furnished to the learned sentencing judge spoke of the respondent's apparent non-disclosure of his true feelings in relation to the crimes and "little self-awareness in relation to his motivation for committing them". This report concludes:
"Mr Phillips maintains that he will not commit similar offences in the future. However, given his lack of expressed understanding of his actions, such a statement seems to lack credence without a period of psychiatric assessment, and possible treatment."
The sentences imposed on 22 March 1985 were ordered to take effect from that day, although the learned sentencing judge said that he had taken into account the time the respondent had already spent in custody which, I infer, commenced on the day of his arrest, 22 September 1984.
Although the non-parole period did not expire until 22 March 1989, the respondent was released in about July 1988, no doubt in accordance with some early release legislative provisions in the ACT. Only four months after his release, the respondent committed two assaults on a young woman in New Norfolk. Although the respondent committed no sexual crime and none was intended on this occasion, there were chilling similarities between the events in New Norfolk on 18 November 1988 and those that occurred in Canberra on 21 September 1984. The indictment contains these particulars of the two assaults:
"— … unlawfully assaulted [SST] by depriving her of her liberty in that he forced her to remain in a motor vehicle against her wishes and attempted to drive the said vehicle away.
·… by saying the words to the effect 'Just get over. I've got a knife here and I'll slit your throat', by pointing the said knife at her throat, by grabbing her hair and pulling her back, by grabbing her by the arm and by later grabbing her t-shirt."
I happened to be the sentencing judge on that occasion and stated at the time of sentence:
"Phillips, you appear for sentence on two counts of assault. On the afternoon of 18 November 1988, you attacked a female who was a complete stranger to you by forcing your way into her car and attempting to drive her away. You produced a knife and terrorised this woman by pointing it at her throat. You threatened to cut her with it and then assaulted her in the manner described in the particulars to the second count on the indictment, and it was only as a result of the complainant's courage that she managed to open the car door, throw herself out and get away from you."
By the time the respondent appeared before me in June 1989, his parole in the ACT had been revoked and he had been returned to custody. I imposed a three year sentence of imprisonment to commence at the expiration of the sentence the respondent was serving, and fixed a two year non-parole period.
The material before me on this application does not disclose when the respondent was again released from custody, but his record of convictions makes it clear that he had been freed by 1992 and was again abusing alcohol. He was convicted of driving with a blood alcohol concentration in excess of the prescribed maximum, twice in 1992 and once in 1995.
In April 1998, the respondent offended again, and in October of that year he pleaded guilty to four counts of aggravated assault and three counts of rape. Upon his plea, he was sentenced to ten years' imprisonment to commence on 24 April 1998. It was ordered that he not be eligible for parole until he had served seven years of that sentence. As mentioned at the beginning of these reasons for judgment, the Crown then made an application for a declaration that the respondent be declared a dangerous criminal, but at the request of counsel, the hearing of the application was adjourned to a date to be fixed.
The following is taken from my comments on passing sentence:
"All these crimes were committed over a period of about ten hours on 15 April 1998. Together they constituted what must have been a prolonged and terrifying ordeal for the 18 year old female victim during which she must have feared for her life on more than one occasion.
The prisoner gave his victim a lift in his motor vehicle. Shortly after she got in the car, the prisoner pulled out a knife and forced the complainant to lie on the floor. He then drove to his home, a tin hut on a isolated mountain side near Cygnet and held her captive until after dark. During this time, the prisoner forced his victim to have oral intercourse, once in his hut and once in the nearby bush and, in addition, he forced her to put on a school uniform and then vaginally raped her. The prisoner tied the hands of his victim and led her into the bush where he also tied her feet and secured her to a tree. She managed to get free and ran off into the bush but the prisoner recaptured her, gagged her, retied her and left her bound to a tree. She was untied only long enough for the prisoner to commit the crime of vaginal rape, to which I have referred.
The prisoner left his victim gagged and tied to a tree in the bush as darkness fell. Fortunately, she was able to free herself and in the dark ran as hard as she could in fear of being caught again. She was rescued by a kindly motorist. Not surprisingly, this sustained course of systematic violent sexual torture has caused and will continue to cause the victim long term psychological harm. "
By now, the respondent's pattern of criminal conduct had become plainly apparent. He is still in custody serving that sentence but, as also mentioned earlier, is eligible for parole some time this month.
Prior to imposing sentence, the respondent was examined by consulting psychiatrist, Dr Pargiter. As had been the case in Canberra, at the time the crimes were committed, the respondent was in a normal relationship with a girlfriend. They lived in a small hut in an isolated bush setting. About nine months before the crimes were committed, the respondent started abusing alcohol and had become paranoid and over-protective towards his girlfriend. Dr Pargiter made this formulation:
"His long term complaints are of social alienation with paranoid/jealous ideation, difficulties in interpersonal relationships, episodes of violence associated with amnesia and drug related depression. The clinical picture is completed by obsessional thought, poor concentration and symptoms of anxiety. The mental state assessment revealed mainly depression. In the interplay of aetiological factors those predisposing are considerable and numerous including personality problems in part genetic and in part due to adverse early family experience reinforced by substance abuse. Perpetuating factors are his social isolation, criminal record and substance abuse. The exacerbation of his condition relating to his offences is cannabis related."
Dr Partiger's opinion was that the respondent's prognosis depended upon his ability to control substance abuse, and time. His report concluded:
"His state of mind at the time of the offence was probably affected by cannabis which can cause intoxication, delirium, delusions, hallucinations or anxiety. The first two can be ruled out – he would have been incapacitated but the first is a necessary precursor to the two psychotic disorders. They would also explain his longer term paranoid ideation and jealousy (perhaps aggravated by alcohol). These psychotic episodes are more than transient so one would expect some manifestations after the offence. It is probable that psychosis slowly remitted during the nine days between the offence and his surrendering himself."
It can be seen that over the preceding decade and a half, there had been little change with respect to the applicant's mental state, his alcohol abuse and substance abuse, and his lifestyle. In substance, the triggers that motivated criminal violence in 1998 were the same triggers that motivated criminal conduct in 1984.
Recent events
With this application in view, the respondent was examined by consultant psychiatrist, Dr Ian Sale. He wrote reports dated 4 November 2002 and 20 November 2002. In the first, he said that his clinical assessment of the respondent is very similar to that of Dr Pargiter and he referred to an underlying personality disorder and the respondent's abuse of alcohol and cannabis. In the second report, Dr Sale said:
"I believe that it would be difficult to escape the conclusion that Mr Phillips is a repetitive sexual offender, and that he constitutes a continuing risk if and when he regains liberty. This conclusion is based on the similarity of the three incidents, the known high recidivism rate for sexual offences, and lack of evidence of remorse. One would also have to take into account his psychopathological problems which, although not actually causative of his offending, would be making a contribution, and are probably not remediable."
More recently, the respondent was seen by the Chief Forensic Psychiatrist, Dr Crawshaw and forensic psychologist, Mr Damien Minehan. Before I turn to the opinions expressed in their reports, it is necessary to refer to the sex offenders' treatment program which the respondent undertook in Risdon Prison between March 2004 and March 2006. Mr Wilkinson, counsel for the respondent, fairly conceded that but for this factor, he would be hard pressed to persuade me that a declaration was not warranted for the protection of the public.
I had the very considerable benefit of evidence from the Director, Community Corrections, Ms Marja Elizabeth, who was responsible for the implementation of the Sex Offenders Program in March 2004. She provided the respondent with group and individual therapy from the time he started in the program until she left the prison service in December 2005 to take up her present position. Ms Elizabeth has an impressive list of academic qualifications, including a Master of Arts, majoring in psychology, with first class honours, and Bachelors of Science and Arts. Her evidence was persuasive. She explained that the aim of the program is to reduce the frequency and extent of re-offending. The program is based on cognitive-behavioural principles and has a strong relapse prevention focus. It is designed as a pre-release program so offenders who are not likely to be released soon after completing the program are not accepted. Hence the history of this application.
In her written proof of evidence, Ms Elizabeth lists the respondent's gains from the program and what she called "protective factors". She expanded upon these points in her oral evidence. Significantly, the program has enabled the respondent to understand that there is an increased risk of re-offending if he abuses alcohol and/or drugs. Ms Elizabeth believes that the respondent genuinely wants to stop using alcohol and drugs and is motivated to do so. As she explained, she believes that the respondent "really wants to do this". The program has also taught the respondent to recognise that low self-esteem, stress, depression and relationship problems, individually or collectively, increase the risk of re-offending. The respondent has learned to accept full responsibility for his crimes and has shown insight into the extent of his involvement in them. The program has shown the respondent how assistance from others can prevent the risk factors building up, and he appears to Ms Elizabeth to now be willing to seek such assistance. The program has also taught the respondent how to develop social skills and cope with social groups.
A great deal of the cross-examination of Ms Elizabeth was directed towards the support strategies such as attendances at a regional correction facility and consultations with a regional therapist that could be put in place to assist the respondent if he is released upon parole. Compliance with these strategies and control over his place of residence and associates would all be supervised under sanction of revocation of parole. However, the relevance of these strategies during a period of release on parole is not high. The sentence will expire on 24 April 2008 and the issue of whether the declaration is warranted for the protection of the public concerns a period of time extending far beyond that date. I accept that parole strategies in place until April 2008 may assist the respondent avoid re-offending after that date, but apart from that, they are of little significance.
If released, the respondent has a long, hard road in front of him. He has no job to go to and no skills. Ms Elizabeth's opinion is that any future employment for the respondent is an unlikely prospect. The respondent's plan is to buy a property with some money that he can realise by selling a property that belongs to him. The history and details of how the respondent came to own a property are not clear to me, but the plan is to live self-sufficiently on the property he will buy. I assess the prospects of this project being successful in the hands of an unskilled person with an underlying personality disorder as most unlikely. Further, these plans will put the respondent in an isolated environment, similar to the ones he was in when he committed the crimes in 1984 and in 1998.
Immediately after release on parole, the respondent intends to live with his mother, but she resides at St Helens, which although not isolated, is some considerable distance from the support that it is said that the respondent is likely to need to avoid re-offending.
Ms Elizabeth said with respect to the respondent, "no one would put him in the low end of risk for re-offending at any time" and she reluctantly agreed with the expression that the risk of him re-offending was "moderate", as expressed by Dr Crawshaw in his report. As I understand it, the thrust of Ms Elizabeth's evidence is that but for the respondent's participation in the sexual offenders' treatment program, she would assess his risk of re-offending as high. However, participation in that program has provided the respondent with access to the tools which, if he chooses to use them, will decrease the risk of him re-offending. However, should he slide back and become isolated, depressed and/or turn to alcohol and drug abuse, the risk becomes very high. The risk of the respondent doing just that will, of course, increase if he is put under stress. Ms Elizabeth said, most significantly in my view, that when people are stressed, they tend to revert to behaviours with which they are most comfortable. Those are not the behaviours that the respondent learnt in the sexual offenders' treatment program because they are recently learned behaviours and require a conscious effort to apply.
Mr Minehan's report makes the point that seems to be common to all the expert opinions, viz, "there is no method [of assessment of risk] that gives absolute certainty that an individual will or will not offend". To that proposition Mr Minehan added that research has disclosed that clinical judgment alone is not a reliable predictor of future violence, aggression and recidivistic behaviour.
Mr Minehan detailed an actuarial risk assessment tool that he called HCR-20 which measures ten factors relating to previous behaviour, mental health and social situations. This actuarial tool places the respondent in a group considered at high risk of offending, but the measurement is largely of static factors and they are "mitigated somewhat by his active participation in an intensive sex offender treatment program, improvement in his social network and willingness to accept assistance". Mr Minehan notes that the success of the sexual offenders' treatment program cannot be tested until the respondent moves outside the institutional environment and is exposed to potential destabilisers.
Dr Crawshaw expresses agreement with the opinions of Drs Sale and Pargiter. However, again, the success of the sexual offenders' treatment program is the unknown factor. Dr Crawshaw states that although the respondent's history indicates a high risk of offending:
"… we need to also take into account the fact that there has been an intervention program which has targeted some of the specific factors that had led to the offending. In particular Mr Phillips now appears to be focused on maintaining abstinence with respect to substances and relative abstinence with respect to alcohol. His alcohol and cannabis abuse played a major part in his offending behaviour. Therefore if he is able to maintain this commitment to abstinence or relative abstinence this would be likely to reduce his risks. His greater degree of insight into himself and his improved mental stability are also likely to reduce his risks. This is reflected in the ratings given on the HCR 20 in that he has a high loading for historical actuarial risk factors but a low rating for clinical and future risk management factors.
Of significance is the fact that Mr Phillips does not score in the high end of the psychopathy check list. A high score on this instrument would indicate a high risk of recidivism. It would also indicate that the capacity to learn and change his behaviour was reduced."
In conclusion, Dr Crawshaw's opinion is that the risk of the respondent re-offending is moderate, and while "greater than the average offender would not be at the high end".
Summary
I hope I do not do an injustice to the detailed and carefully expressed opinions of which I have had the benefit, if I summarise their totality as follows:
(1)There is a high likelihood of re-offending if, post-release, the respondent:
· returns to alcohol and substance abuse;
· experiences social isolation;
· experiences a relationship breakdown;
· has no or little communication with others;
· loses his accommodation; and/or
· becomes depressed.
(2)If the respondent is able to use strategies that he has learnt in the program to avoid these circumstances, his risk of re-offending is only slightly higher than the average offender.
(3)The respondent has recognised his risk factors and has accepted a need to use the strategies he has learnt to avoid them. As Ms Elizabeth put it, colloquially but graphically, "we think he's got it".
(4)Whether the respondent does use the strategies and avoid the risk factors has not been tested, is simply not known, and cannot be predicted with any confidence.
Conclusion
It seems to me that I should approach this application bearing strongly in mind that the making of a declaration is contrary to a fundamental principle of the criminal law that punishment must not be disproportionate to the crime. The onus is on the Director of Public Prosecutions to persuade me that I should hold the opinion that the making of the declaration is warranted for the protection of the public. I can only hold that opinion if it is very plain, or demonstrably clear, that the declaration is necessary to prevent the public from violence at the hands of the respondent. But for the evidence concerning the sexual offenders' treatment program, and its possible success in the case of the respondent, I would have held the requisite opinion. But for that evidence, the only conclusion I could have reached would have been that the risk of the respondent re-offending is high.
However, the evidence is that the respondent's present intentions are to avoid getting into situations that are likely to give rise to a repetition of his criminal conduct. The evidence is that the respondent's present motivation to do this is not dependent upon an exercise of willpower but springs from a genuinely held desire to avoid "trigger situations", particularly alcohol and substance abuse. If, upon his release from custody, the respondent's expectations of himself become a reality, the risk of re-offending recedes to a degree that would not justify making a dangerous criminal declaration. Whether the respondent's expectations will in fact become a reality and consequently the risk of re-offending reduced to an acceptable level, cannot be determined in advance.
If the onus on this application lay upon the respondent to show that his indeterminate detention was not necessary for the protection of the public, he would not succeed. However, relevant to the facts of this case, the words of the Act and the admonition of the High Court makes it clear that the onus is on the Crown to persuade me that the respondent's participation in the sexual offenders' treatment program has not materially reduced the high risk of re-offending, and it is plain that if released, there remains a real danger of further violent criminal conduct. This onus has not been discharged and the application for a declaration that the respondent is a dangerous criminal must be dismissed.