Green v The Queen - [2001] NTSC 2

Green v The Queen [2001] NTSC 2
PARTIES:HARRISON GREEN

v
THE QUEEN

TITLE OF COURT:  SUPREME COURT OF THE NORTHERN TERRITORY
JURISDICTION:  SUPREME COURT OF THE NORTHERN TERRITORY EXERCISING TERRITORY JURISDICTION
FILE NO:  9721574
DELIVERED:  12 January 2001
HEARING DATES:  7 December 2000
JUDGMENT OF:  BAILEY J
REPRESENTATION:
Counsel:
Appellant:Rex Wild QC and Dr N Rogers
Respondent:  Mr M Bamber
Solicitors:
Appellant:DPP
Respondent:  CAALAS
Judgment category classification:    C
Judgment ID Number:  bai0101
Number of pages:  18

bai0101
IN THE SUPREME COURT
OF THE NORTHERN TERRITORY
OF AUSTRALIA
AT ALICE SPRINGS AND DARWIN
Green v The Queen [2001] NTSC 2
No. 9721574

BETWEEN:
HARRISON GREEN

Applicant
AND:
THE QUEEN

Respondent

CORAM: BAILEY J
REASONS FOR JUDGMENT
(Delivered 12 January 2001)

This is a review of an indefinite sentence pursuant to s 72(1)(a) of the Sentencing Act.

On 21 October 1998, Thomas J made an order pursuant to s 65(2) of the Sentencing Act sentencing the offender, Harrison Green, to an indefinite term of imprisonment.
The order was made after the offender had been convicted upon his own plea of guilty to a violent offence, namely that on 25 September 1997 at Ali Curung the offender did have sexual intercourse with ZH, an eight year old boy, without the consent of ZH.
Thomas J imposed a nominal sentence of imprisonment for a term of six years with effect from 26 September 1997 to take account of time served in custody. Pursuant to s 72(1)(a) of the Sentencing Act this Court is required for the first time to review the indefinite sentence not later than six months after an offender has served 50% of the offender’s nominal sentence (ie. 25 September 2000).
On 25 September 2000, Riley J pursuant to s 76 of the Sentencing Act ordered that certain reports be prepared to assist the Court in conducting the review. Subsequently the three reports ordered to be prepared were received by the Court and made available to the parties for consideration.
The three reports ordered to be prepared by Riley J and received by the Court have been marked as exhibits:
(a)A psychiatric assessment prepared by Dr Marcus Tabart, Consultant Psychiatrist – dated 3.11.00 – Marked P1.
(b)An Alice Springs Correctional Centre Institution Report – prepared by Ken Robinson, Chief Prison Officer, Classifications Alice Springs Correctional Centre – dated 28.9.00 – Marked P2.
(c)An Indigenous Sex Offenders Program Assessment Report – prepared by Geoff Manu, Programs Manager Alice Springs Correctional Centre – dated 29.9.00 – Marked P3.
On 7 December 2000, oral submissions were made by Rex Wild QC, DPP and Dr N Rogers for the Crown and by Mr M Bamber, counsel for Harrison Green. The authors of the three reports – Dr Tabart, Mr Robinson and Mr Manu - were called to give evidence and were cross-examined by Mr Bamber.
Before proceeding to the consideration of the three reports, the evidence of the witness and the submissions of counsel, I will refer to the circumstances generally in which the order for an indefinite sentence was made by Thomas J.
The offender, Harrison Green, has a history of criminal violence, which dates back to 1978. A summary of his convictions for violence is as follows:
(i)September 1978      Assault x 2, unlawful use of a motor vehicle and malicious damage. Sentence: 5 months imprisonment.
(ii)February 1979        Aggravated assault. Assault of a female teacher – intoxicated. Sentence: 6 months imprisonment, suspended after 2 months on 2 year good behaviour bond.
(iii)October 1980          Assault with intent to rape – intoxicated. Victim 12 year old girl. Victim covered by a blanket and struck several times about the face. Sentence: 3 years, non-parole period 12 months.
Concerns about the suitability of his plans on release delayed grant of parole and eventually he was refused parole after indicating he wanted to return to Ali Curung. Served full sentence. While doing so, he received an additional three months for assault of a Prison Officer.
(iv)June 1984               Convicted of an assault involving one of his brothers and two juveniles. Sentence: 6 months imprisonment.
(v)December 1985      Convicted of three counts of assault against females and one count of assault against a male. His mother was the victim in two counts. The other victims were his father and his sister-in-law. Sentence: 13 months, suspended after 2 months on 12 month good behaviour bond including a condition not to travel to, stay or reside at Ali Curung or Wycliffe Well.
(vi)February 1986        Breached bond by going to Ali Curung. Convicted and ordered to serve the outstanding balance of 11 months imprisonment from the 12/85 sentence. A non-parole period of 3 months was fixed, but he served the full sentence because parole was refused on account of concerns of the Ali Curung Community and previous breaches of court orders.
(vii)August 1989           Convicted of assaulting Police and sentenced to one month imprisonment. Cumulative upon sentences (6 months) for other offences.
(viii)November 1990      Convicted of common assault x 2, aggravated assault (male/female) and aggravated assault (aged and disabled person).
(ix)December 1990      Convicted of assault with intent to have carnal knowledge causing bodily harm. Victim was an 8 year old girl. Sentenced to 4 years imprisonment, non-parole period of 2 years. Initially refused to apply for parole – later changed his mind. Parole was refused and he served his full term.
(x)March 1994            Convicted of aggravated sexual assault. Victim was a 10 year old girl. Sentenced to 2 ½ years’ imprisonment with a non-parole period of 18 months. In sentencing, Martin CJ expressly warned the prisoner that further offending of a similar nature might lead to an indeterminate sentence. He refused to co-operate with a psychiatrist and declined to apply for parole. Served full sentence and was released on 8.8.95.
(xi)Matter dealt with by Thomas J – committed offence on 25.9.97 – raped an 8 year old boy after carrying him to the rear of an old school building. On 21.10.98 Thomas J imposed an indefinite sentence and pursuant to s 65(3) of the Sentencing Act, a nominal sentence of 6 years imprisonment.
I will not set out here the extensive reasons that Thomas J delivered on the making of the order for the offender’s indefinite sentence. I note that I have considered her Honour’s reasons together with all the material which was exhibited before her.
The decision of Thomas J to grant the order was the subject of appeal to the Criminal Court of Appeal. The Criminal Court of Appeal granted leave to appeal but dismissed the appeal: see Green v R (2000) 133 NTR 1. At para [33] Angel J noted the following matters were not in dispute and continued at para [34]:
“The applicant is an intelligent, articulate full blood Aboriginal man. Gaol apart, he has lived almost his whole life in Ali-Curung. He is married. He is 38 years of age. He is alcohol dependent. Under the influence of alcohol he is violent and aggressive and unable to control his sexual instincts. Since 1980 he has committed four serious sexual offences, the last three on young children. In addition he has 12 convictions for assault and aggravated assault since 1978 for which sentences of imprisonment were imposed. Very significantly for present purposes imprisonment in the past has proved no deterrent. There is no discernible trend of psychological maturation despite his age. In the past he has refused parole on a number of occasions because he will not accept ‘vigilant supervision’. He has never completed available alcohol abuse rehabilitation programmes in the past. There is nothing in his history to indicate he has the capacity or the will to change his ways. The Ali-Curung community do not want him to return to the community and there is no post release plan for him. Prior to the present offences he had received strong comments from various sentencing judges and magistrates about his offending. In March 1994 he was specifically warned by the Chief Justice that if he did not mend his ways, any further offending may well result in the imposition of an indefinite sentence of imprisonment. Her Honour found that the applicant is a serious danger to the community and that there was a risk of serious physical harm to young children if an indefinite sentence was not imposed. Implicit in this finding was a rejection of a fixed term sentence as a suitable alternative. Such a finding was in my view justified given, inter alia, that imprisonment in the past had proved no deterrent, that the applicant had neither the capacity nor the will to change his ways and that he had deliberately refused rehabilitative efforts in the past. At all events, it has not been shown to be wrong.”
Mildren J at para [72] observed:
“The findings her Honour made, so far as s65(9) are concerned, included findings that the nature of the offence was exceptional; that imprisonment in the past has not acted as a deterrent; that, under the influence of alcohol, the appellant is violent and aggressive and loses control of his sexual restraints; that in the past the appellant has refused parole because he would not accept vigilant supervision; the appellant has failed to take previous opportunities available to him to redress his alcoholism; there is nothing in the appellant's history to show the will to change his behaviour; the appellant is a serious danger to the community; that there exists a risk of serious physical harm to young children if an indefinite sentence is not imposed, and a need to protect the community, particularly young and vulnerable children. There are no countervailing findings, except that her Honour did not completely rule out the appellant's prospects of rehabilitation, but, as she pointed out, there was nothing to indicate any capacity or will to change his ways.”
The passages quoted from the judgments of Angel and Mildren JJ provide the essential background to the present review.
Section 74(1) of the Sentencing Act provides:
“74(1)Unless it is satisfied to a high degree of probability that the offender is still a serious danger to the community when a review is made under section 72 or 73, the Supreme Court shall -
(a)order that the indefinite sentence is discharged; and
(b)sentence the offender under this Act for the violent offence for which the indefinite sentence was imposed.”
Pursuant to s 70 of the Sentencing Act the prosecution has the onus of proving that an offender is a serious danger to the community in relation to the impositions of an indefinite sentence of imprisonment. Mr Wild conceded, correctly in my view, that the prosecution has the same burden pursuant to s 74(1) of establishing to the Court’s satisfaction that the offender is still a serious danger to the community when a review is made under s 73. The standard of proof required for such a finding is dealt with in s 71.
Sections 65(8), (9) and (10) provide:
“65(8) The Supreme Court shall not impose an indefinite sentence on an offender unless it is satisfied that the offender is a serious danger to the community because of -
(a)the offender's antecedents, character, age, health or mental condition;
(b)the severity of the violent offence; and/or
(c)any special circumstances.
(9)     In determining whether the offender is a serious danger to the community, the Supreme Court shall have regard to –
(a) whether the nature of the offence is exceptional;
(b)     the offender's antecedents, age and character;
(c)   any medical, psychiatric, prison or other relevant report in relation to the offender;
(d)     the risk of serious physical harm to members of the community if an indefinite sentence were not imposed; and/or
(e) the need to protect members of the community from the risk referred to in paragraph (d).
(10) Subsection (9) does not limit the matters to which the Supreme Court may have regard in determining whether to impose an indefinite sentence.”
These provisions – despite the difficulties in their drafting and interpretation noted by the Court of Criminal Appeal in Green v R, supra – apply equally to a review of an indefinite sentence as to its original imposition.
Against this background, I turn now to the reports and the oral evidence of the authors.
In summary, Dr Tabart’s psychiatric assessment (Exhibit P1) offers the following opinions:-
·The offender tends to minimise his offending behaviour and explains it all being due to drunkenness.
·The offender demonstrated little remorse for his victims.
·The offender is of average intelligence and not mentally ill. In this regard, Dr Tabart agrees with the views of Dr Lester Walton (whose assessment was before Thomas J) that the offender suffers from alcohol dependence and manifests antisocial personality traits.
·In the past, the offender has not been able to demonstrate lasting sobriety upon release from prison.
·Dr Tabart is not convinced that the offender has been able to demonstrate responsibility for his actions except to naively blame alcohol and perhaps his own past history of sexual abuse.
·Dr Tabart is unable to predict the offender’s future behaviour and is unable to guarantee ongoing appropriate behaviour – albeit some of those responsible for caring for the offender consider that he is slowly undergoing a process of delayed psychological maturity (referred to by Dr Walton in his assessment of the offender).
·Dr Tabart considers that there has been insufficient time to deal with all aspects of the offender’s offending behaviour since the indefinite sentence was imposed by Thomas J.
Dr Tabart gave evidence that in the case of a sexual offender the most reliable predictor of future behaviour is an offender’s past behaviour. He agreed with the opinion of Dr Walton that if the offender could achieve sustained sobriety then his risk of recidivism would be significantly lower. Dr Tabart also agreed that during his current incarceration, the offender had steadfastly maintained an interest in both the Ending Offending Alcohol Program and the Indigenous Sex Offenders Program. He also expressed the opinion that it would be very hard for an offender to maintain enthusiasm for such rehabilitation programs without the offender knowing whether and when he might be released in the future. Dr Tabart maintained it would be very important that the offender receive close supervision if he was released into the community. In this regard the doctor emphasised that it is not possible to test the veracity or effectiveness of treatment programs until an offender is released into the general community.
Mr K Robinson, Chief Prison Officer, Classifications, Alice Springs Correctional Centre prepared an ‘Institution Report’ (Exhibit P2) with respect to the offender.
The report details the education and institutional programs undertaken by the offender (including the Ending Offending Alcohol Program and the Indigenous Sex Offenders Program). The report includes an assessment that the offender:-
·Accepts the prison lifestyle.
·At times plays an insubordinate role.
·Gets on well with fellow inmates.
The report notes that the offender has attended education courses on a full-time basis since Thomas J imposed the indefinite sentence and that the offender assists the program officer with the Ending Offending Alcohol Program as a peer educator. In that regard the offender’s performance and conduct is noted as being “highly regarded”. However, the report also includes the observation that:-
“Green’s conduct away from the education section can only be regarded as acceptable. He has been described by supervising officers as manipulative, insubordinate and sly.”
The report notes that the offender was charged with threatening an officer and acting in an insubordinate manner in September 1999 and in consequence received three days loss of privileges.
In evidence, Mr Robinson agreed with Mr Bamber that the disciplinary matter in September 1999 was “not a particularly serious incident” and that in recent times the offender’s behaviour could be regarded as good. Mr Robinson was not aware of any reason based on the offender’s recent behaviour which would suggest that he would be ineligible for parole.
Mr G Manu, Programs Manager, Alice Springs Correctional Centre prepared a report (Exhibit P3) concerning the offender’s participation in the Indigenous Sex Offenders Program.
The report notes that the program was implemented in 1998 and covers three main topics:-
(a)Taking responsibility for the offence committed;
(b)Understanding why the offence was committed;
(c)Developing a plan to stop offending behaviour on release.
The program is open-ended (ie. it has no specific duration). The offender has attended 38 (weekly) sessions since April 1999 and has been actively involved for approximately twelve months. During the period September 1999 to January 2000 the offender had a break from the program to concentrate on his role as a peer educator with the Ending Offending Alcohol Program.
Mr Manu commented on the offender’s participation in the Indigenous Sex Offenders Program in the following terms:-
“The writer has discussed with prisoner Green his thoughts and feelings in relation to his participation in the program. Prisoner Green stated he has found the sessions helpful in understanding the reasons for his anger and offending behaviour. The prisoner has been able to identify incidents from his childhood that have contributed to his offending behaviour and is continuing to address these matters in the program. As a co-facilitator, the writer has seen an improvement in prisoner Green’s attitude and behaviour within the program. Initially his response to the group work was controlling and intimidating toward others, however he has responded to the program and has begun to accept responsibility for his offending behaviour. He no longer contends that alcohol is the only reason for his offences and dealing with some highly personal issues. His involvement as a peer educator in the Ending Offending Alcohol Program has also contributed to building his self-esteem and changing his attitudes. Prisoner Green has shown a genuine concern in assisting other prisoners with their welfare and education needs.
He has discussed with the writer the possibility of his release, which concerns him. He has mentioned that not returning to Ali Curung if released would be a preferable option, as he has many unhappy memories related to the community. Although this is the case, prisoner Green stated he misses his family and friends who reside there. He also mentioned to the writer he would like to reside in Alice Springs and continue his education through Batchelor College. Prisoner Green would like to be employed as an alcohol counsellor at CAAAPU to continue his involvement as an alcohol educator. These plans have not been fully explored due to the uncertainty attached to prisoner Green’s indefinite sentence status and some preparation would be necessary to effect his safe reintegration into the community should he be considered for release.
As a facilitator of this program the writer feels prisoner Green has fulfilled the first two requirements of this program, which are, taking responsibility for his offence, and understanding why he has committed the offences.
All the sessions with this prisoner have been undertaken in a controlled environment, which does not allow for variables and or external influences, the writer is unable to predict what events may unfold if he is granted release.”
In evidence, Mr Manu explained that the offender has not embarked on the third stage of the Indigenous Sex Offenders Program (developing a plan to stop offending behaviour on release) because the offender has no set release date. Mr Manu estimated that the third stage of the program would extend over a period of approximately three months.

Mr Manu’s evidence was that the offender is enthusiastic and serious about his role as a peer educator in the Ending Offending Alcohol Program. The offender has also demonstrated a keenness to help others and has assisted Mr Manu in relation to Aboriginal welfare. Mr Manu considers that during his time in prison, the offender has adopted a more mature approach to his offending behaviour and that the offender’s role in the Ending Offending Alcohol Program has increased his self-esteem.
The offender did not give evidence or call any witnesses for the purposes of the present review.
In submitting that the Court should be satisfied to a high degree of probability that the offender is still a serious danger to the community, Mr Wild referred in detail to the reasons given by Thomas J for imposing the indefinite sentence. In particular, Mr Wild highlighted the offender’s twenty year history of violent offences, including four of a sexual nature and the last three of which involved young children. Mr Wild pointed to the finding of Thomas J that under the influence of alcohol the offender becomes a violent and aggressive man and a man who loses control of his sexual instincts. In the past, the offender has not responded well to attempts at rehabilitation and has refused to accept parole because he cannot or will not accept vigilant supervision.
Mr Wild, while acknowledging that during the offender’s current term of imprisonment the offender has participated in alcohol abuse and sexual offending programs with apparent enthusiasm, submits that it is as yet too soon to be confident that the offender is no longer a serious danger to the community. In the Crown’s submission, the offender’s past behaviour in the community remains the best indicator of his likely behaviour in the future outside the alcohol-free and institutional environment of a prison.
On behalf of the offender, Mr Bamber stressed both the exceptional nature of an indefinite sentence and the onus on the Crown to establish that the offender is still a serious danger to the community. Mr Bamber referred to the unanimous decision of the High Court in Lowndes v R (1999) 163 ALR 483 where in commenting upon legislation of Western Australia providing for an indefinite sentence, the Court observed at p 487:
“This Court, in Chester v R (1988) 165 CLR 611 considered s 661 of the Code, which was the precursor of s 98. It was there said (at p 618) that the exercise of the power ‘should be confined to very exceptional cases where the exercise of the power is demonstrably necessary’. It was pointed out in Moffatt [1998] 2 VR 229 at 255 that, because an indefinite sentence of the kind provided for in such legislation goes beyond punishing an offender to an extent that is proportionate to the crime, the power conferred upon the court is exceptional, as are the cases that warrant an exercise of the power.”
In upholding the decision of Thomas J to impose an indefinite sentence in the offender’s case, Angel J in Green v R, supra at para [34] stressed the findings of Thomas J that:
“…imprisonment in the past has proved no deterrent, that the applicant had neither the capacity nor the will to change his ways and that he had deliberately refused rehabilitative efforts in the past.”
(and see Mildren J in Green v R at para [72], quoted at para [11] above).
Mr Bamber submitted that the offender’s apparent lack of capacity and lack of will to change and his wish not to be subjected to vigilant supervision were central to the decision to impose an indefinite sentence upon the offender. In Mr Bamber’s submission, the reports (Exhibits P1, P2 and P3) prepared for the present review indicate that there has been a major change in the offender’s attitude to rehabilitation. In particular, Mr Bamber emphasised the evidence and report of Mr Manu with respect to the offender’s participation in both the Ending Offending Alcohol Program and the Indigenous Sex Offenders Program. Mr Bamber conceded that the effectiveness of such rehabilitation programs can only be tested once the offender has been released to the community. However, in his submission, the offender has done all he can to advance his rehabilitation within the present restraints of an indefinite custodial sentence. Mr Bamber submitted that the offender cannot progress further until a release date is fixed and plans for post-release supervision and rehabilitation can be developed.
In Mr Bamber’s submission, the Crown has not been able to establish with a high degree of probability that the offender is still a danger to the community.
This is not a submission with which I can agree. I am satisfied to a high degree of probability that the offender is still a serious danger to the community.
In reaching this conclusion, I have considered the material which was before Thomas J in October 1998, her Honour’s reasons for imposing the indefinite sentence, the three reports (Exhibits P1, P2 and P3) prepared for the current review and the evidence of the authors of those reports.
I consider that the favourable assessment of Mr Manu as to the offender’s participation in alcohol abuse and sexual offending programs needs to be considered in the context of the reports prepared by Mr Robinson (Exhibit P2) and Dr Tabart (Exhibit P1). Dr Tabart is of the opinion that the offender has not been able to demonstrate responsibility for his actions except to naively blame alcohol and perhaps his own past history of abuse. Mr Robinson’s report indicates that away from Alice Springs Correctional Centre’s education centre, the offender’s behaviour “can only be regarded as acceptable” and supervising officers describe him as “manipulative, insubordinate and sly”. While Mr Manu’s report and evidence was considerably more favourable to the offender, Exhibit P 3 refers to the offender only having “begun” to accept responsibility for his offending behaviour and refers to the offender’s own “concerns” at the possibility of his future release.
I do not consider that the acceptable and cogent evidence which led Thomas J to being satisfied to a high degree of probability that the offender is a serious danger to the community has been diminished in any substantial way by the reports and evidence before me. There is nothing before me to suggest that the offender is prepared to comply with a lengthy period of close supervision upon his release into the community. While it is encouraging to see that the offender is prepared to undertake rehabilitation programmes for both alcohol abuse and sexual offending within the controlled environment of a prison, there must be a serious question about his motives while his supervising officers assess him as manipulative, insubordinate and sly. Further, according to Mr Manu’s report, while the offender has mentioned that it would be “preferable” that he not return to Ali Curung, the offender also stated that he misses his family and friends there. Thomas J found that there was a particular fear for the young children in Ali Curung. I do not consider the offender’s expressed desire to study and work in Alice Springs after his release is realistic. According to the material before Thomas J, aside from Ali Curung, the offender’s only realistic source of family support lies with his siblings in Darwin.
The present review is not, of course, concerned directly with the offender’s post-release plans. However, I consider the offender’s thoughts in this regard are relevant in assessing whether the offender is demonstrating signs of a late psychological maturity and a genuine desire for rehabilitation.
On all the materials before me, I consider that there are some positive signs for the offender’s future rehabilitation, but I am also satisfied to a high degree of probability that he is still a serious danger to the community. In short while the offender has made some progress, he needs to advance his rehabilitation considerably further before the Court orders the discharge of his indefinite sentence.

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