Irs v Tasmania
[2013] TASSC 66
•12 November 2013
[2013] TASSC 66
COURT: SUPREME COURT OF TASMANIA
CITATION: IRS v Tasmania [2013] TASSC 66
PARTIES: IRS
v
TASMANIA, State of
FILE NO: 120/1995
DELIVERED ON: 12 November 2013
DELIVERED AT: Hobart
HEARING DATE: 26 March, 13 June, 8 and 19 July 2013
JUDGMENT OF: Tennent J
CATCHWORDS:
Criminal Law – Sentence – Orders and declarations relating to serious or violent offenders or dangerous sexual offenders – Dangerous criminal – Discharge of dangerous criminal declaration.
Bell v Director of Public Prosecutions [2011] TASSC 61; State of Tasmania v Read (1997) 94 A Crim R 539; Attorney-General v Francis [2006] 1 Qd R 396, referred to.
Sentencing Act 1997 (Tas), ss19, 20 and 21.
Aust Dig Criminal Law [3357]
REPRESENTATION:
Counsel:
Applicant: G Barns and J White
Respondent: P Dixon
Solicitors:
Applicant: Hobart Community Legal Service
Respondent: Director of Public Prosecutions
Judgment Number: [2013] TASSC 66
Number of paragraphs: 50
Serial No 66/2013
File No 120/1995
IRS v STATE OF TASMANIA
REASONS FOR JUDGMENT TENNENT J
12 November 2013
On 21 September 1995, the applicant, IRS, was declared a dangerous criminal pursuant to the Sentencing Act 1997 ("the Act"), s19. On 22 March 2012, he filed an application pursuant to the Act, s20, to have his status as a dangerous criminal discharged. In support of that application he filed an affidavit sworn 16 April 2012. The affidavit was in the following terms:
"1 I was born on 18 November 1970.
2On 21 September 1995, I was 24 years of age when I was sentenced by the Supreme Court of Tasmania.
3I was sentenced to six years imprisonment on two counts of rape and one count of aggravated sexual assault.
4In April 2010, I suffered a major heart attack at Risdon Prison.
5Since then I have suffered abnormal heart function: my movement is severely limited; I have trouble breathing and I often cough and wheeze; I feel dizzy when I try to walk; I must walk slowly, regularly stopping to rest and I can only walk a short distance; I cannot eat and toilet normally; I do not sleep properly and I feel constantly tired; I have lost weight and muscle strength.
6Since June / July 2010, when I suffered another series of smaller attack/s: my heart condition became worse; I am stressed and anxious that I will not be given treatment that will enable me to live.
7Since July 2010, I have been mostly confined to a wheelchair: I currently find it hard to shower; walk more than 100 metres slowly without stopping to rest; undertake any activities involving mobility.
8In addition to the symptoms above, I have developed permanent arterial disease with worsening hypotension due to the medication I have been taking.
9On my 41st birthday at 18 November 2011 in prison, I was examined by Dr Chris Wake. I have been advised that to treat my heart condition any further, I should be referred for specialised surgery and treatment which is only available in Victoria or New South Wales.
10The medications I take have left me essentially impotent/sterilised/devoid of sexual urges: I do not have sexual arousing thoughts anymore; I cannot get an erection at all.
11Since being sentenced to prison for six years in 1995, and including the backdated period, I have now been in prison for seventeen years.
12I am extremely remorseful with regards to the crimes which I committed in 1995 and previously since 1985. I am particularly remorseful for the pain and stress caused to the victims and their families.
13I do not believe I am a danger to the public. Apart from being extremely physically frail and fragile, I also believe that I am reformed.
14I have sought to improve myself by completing numerous educational courses (Shown in Annexure 'A').
15I have undergone behavioural change management sessions and attempted to participate in the 'Sex Offender Treatment Program' numerous times. Initially I was told that entry to the program was denied, because the program requires a certain non-parole period and expected release date. More recently Dr Chris Wake and Dr Fran Donaldson have told me not to participate in the program, as it is emotionally stressful and my heart condition will be affected.
16I have requested that a psychological evaluation be completed by Forensic Mental Health Services, but I have not been interviewed.
'A'
This is the annexure 'A' referred to in the affidavit of [IRS], sworn before me this 16th day of April 2012.
Educational Certificate's
1 In September 1996, I completed a Maths and English Refresher course, delivered by Adult Education.
2 In November 1996, I completed another Maths and English Refresher course, delivered by Adult Education.
3 From December 1996 to 1997, I completed first year apprenticeship modules in Upholstery, delivered by TAFE.
4 In February 1998, I completed a Workplace Safety course, delivered by TAFE.
5 In September 1998, I completed an Introduction to Word Processing, delivered by TAFE.
6 In August 1999, I completed a module in Computer Operations: Data Retrieval, delivered by TAFE.
7 In April 1999, I completed a Trade course in Upholstery, delivered by TAFE.
8 In September 2000, I was awarded Competency in Upholstery by TAFE.
9 Since 2005, I have completed Certificates in Business 1, 11 and 111, delivered by TAFE."
For various reasons, the substantive hearing of the application did not commence until 8 July 2013. Initially, delay occurred because then counsel for the applicant realised the evidence presented was inadequate, and sought to adjourn the matter to arrange additional material. It was some considerable time before any application was made to relist the hearing. Other delays occurred as a result of the need to obtain updated psychiatric reports and medical reports, and the need to explore the issue of the applicant's involvement with a sex offender program within the prison.
The Act, s20(2), (3) and (4) provide:
"(2) A dangerous criminal who has served a term of imprisonment equal to the non-parole period applicable to his or her sentence may apply to the Supreme Court to have the declaration by which he or she acquired the status of a dangerous criminal discharged.
(3) On an application under subsection (2), the Supreme Court must make an order discharging the relevant declaration if the court is satisfied that the declaration is no longer warranted for the protection of the public.
(4) An order under subsection (3) does not take effect until –
(a) if no appeal is lodged under section 23(1), the end of the appeal period or, in a case to which section 21(10) applies, such later date as may be specified by the court; or
(b) if an appeal is lodged under section 23(1), the dismissal of the appeal."
The applicant became eligible for parole on 15 January 1998. Two things flow from the provisions of s20. Before it may make an order, the Court must be satisfied that the relevant declaration is no longer warranted for the protection of the public. It is not sufficient that the Court may find that the declaration may no longer be warranted if the applicant takes certain steps. Further, the Court has no power to impose conditions on an order under this section. In the applicant's case, if an order is made, he is entitled, subject to the provisions of subs(4), to immediate and unconditional release from custody.
The applicant's offending background
The applicant did not disclose, in his affidavit in support of his application, material relating to his offending history which was clearly relevant to his application. The applicant was born on 18 November 1970 and is aged 43.
On 25 March 1985, when the applicant was 14 years old, he was charged with assaulting a female by striking her to the face. He was admonished and discharged upon his plea of guilty. On 4 September 1985, he was charged with indecently assaulting a female by touching her on the vagina. He pleaded guilty, and was made subject to a 12 month supervision order. There was a condition attached to that order which required the applicant to attend counselling in human relationships as directed by a child welfare officer.
On 4 April 1986, the applicant was charged with wilfully and obscenely exposing himself in a public park. He pleaded guilty, and was again made the subject of a 12 month supervision order. On 22 July 1986, he was charged with another count of wilfully and obscenely exposing himself. He pleaded not guilty on that occasion. The charge was found proved, and the applicant was declared a ward of the state.
On 9 December 1986, the applicant was convicted of assault with indecent intent. He was re-declared a ward of the state, and committed to an institution. On 2 March 1989, the applicant was convicted of an aggravated assault. He committed a sustained violent and sexual attack on a 14 year old girl who was a complete stranger to him. He was sentenced to 18 months' imprisonment, nine months of which were suspended. A probation order was made for a period of two years from the date of release.
Shortly after his release from custody, the applicant committed a serious sexual assault on a 7 year old girl. The attack involved penetration and some violence. He was charged with abduction, aggravated sexual assault (two counts), indecent assault and rape (two counts). On 4 May 1990, the applicant was convicted and sentenced to a term of five years' imprisonment with 12 months suspended. A probation order was made to take effect on release which included a condition requiring psychological treatment. On that occasion, the Court had psychiatric reports. The sentencing judge summarised the salient points in his comments on passing sentence. He said the applicant was suffering from a psychopathic disorder, he had only a limited ability to control impulses, he had a limited appreciation of the seriousness of the crimes he had committed, and there was a real possibility that a combination of psychological therapy and drug treatment, together with the ordinary process of maturation, would significantly reduce the possibility of re-offending.
On 15 January 1995, the applicant offended again. He committed an aggravated sexual assault and two rapes on a woman whose house he had recently visited. He used a degree of violence and also threats of violence. On 21 September 1995, he was sentenced to serve a period of six years' imprisonment. On that date, he was also declared a dangerous criminal.
The evidence
At the hearing of this matter, counsel for the State, who was opposing the application, indicated he intended to rely on a set of Crown papers filed 4 July 2013. Indeed the first 22 pages of those papers, which included copies of various complaints, comments on passing sentence and a record of prior matters, became exhibit R1. Additionally the State tendered and relied upon a report by Damien Minehan, a psychologist then working within the prison system dated 7 April 2006 (R2), a report by Mr Minehan dated 11 June 2013, prepared in his capacity as a psychologist in private practice, (R3), and a report by Dr John Crawshaw, Chief Forensic Psychiatrist, dated 19 April 2006 (R4). The 2006 material related to a previous unsuccessful application by the applicant to discharge his dangerous criminal status.
For the applicant, his counsel tendered a report by Dr Lester Walton, a consultant psychiatrist from Melbourne, dated 5 March 2013 (exhibit A1), a second report by Dr Walton dated 9 April 2013 (A2), a report from a Dr Black at the Royal Hobart Hospital dated 2 May 2013 (A3), a letter dated 10 July 2013 from the Tasmanian Prison Service to the office of the Director of Public Prosecutions (A4), and an email exchange between the applicant's solicitors and Dr Frances Donaldson, the prison doctor, in July 2013 (A5).
Dr Walton
Dr Walton first saw the applicant at Risdon Prison on 1 February 2013. Dr Walton had been provided with copies of the applicant's application and supporting affidavit, comments on passing sentence from 21 September 1995, the record of prior convictions, medical reports from a Dr Wake and Dr Costello (both dated 12 April 2012), Mr Minehan's report of 7 April 2006, Dr Crawshaw's report of 19 April 2006, and the report of another psychiatrist Dr Sale dated 12 January 2007. Not all of this material was before the Court.
In Dr Walton's first written report, he reviewed the material he had been supplied with, detailed the self report of the applicant about his current state of mind, and outlined certain conclusions. He then said at 7:
"Of the different approaches to assessment of risk of recidivism (clinical assessment, so-called dynamic/current and actuarial/historical) the actuarial instruments seem to be least unreliable and thus it is the case that once a person achieves classification as being in an at risk category then despite any process of reformation which may occur, the classification of risk will alter little, if at all. Clearly this is an unfortunate catch 22 for a prisoner who has made an active effort to rehabilitate himself.
I remain to be convinced that sex offender treatment programs confer much benefit other than upon those mindful to reform themselves spontaneously but those considerations are irrelevant in this case as [IRS] was previously prevented from participating in the sex offender program, as I understand it largely due to an administrative conundrum, and now he is prevented from participation because of his frail state of physical health and inability to tolerate any type of stress. Thus [IRS] will be prevented permanently from such treatment and rehabilitation, even it if were deemed necessary.
It is [IRS's] contention that sex offender treatment is no longer necessary both on the basis that he has developed understanding into the nature of his offending and victim empathy, as well as his no longer having any type of sexual desire. Of course we are substantially reliant upon his account on that regard but it would not be inconsistent with his changed medical circumstances."
He then went on to say:
"While there might be some equivocation about how much, if any, reformation [IRS] has managed to achieve, the concrete reality is that his stated laudable intentions to remain offence free do not need to be relied upon at this stage. [IRS] has reached a stage where he is simply so physically frail that he likely lacks the wherewithal to commit any violent or sexual crime other than say, attempted groping at a female from his wheelchair, but even that would presume some persisting as sexual interest."
After that report was provided to the Court, I queried Dr Walton's knowledge of the type of application with which the Court was dealing. I did not seek an addendum to his report. Nevertheless that is what he was apparently asked for, and it resulted in his second report dated 9 April 2013. For the purpose of that report Dr Walton was supplied with decisions of this Court relating to Kevin Richard Bell and Mark Brandon Read.
In his second report Dr Walton effectively repeated his views earlier expressed that the applicant had been prevented from taking part in any sex offender program, initially because of his dangerous criminal status, but more recently because of his health. Dr Walton went on to say that he did not see any particular utility in such a program, firstly because he said it was yet to be established that sex offender treatment and rehabilitation did actually confer benefit towards lowering the risk of re-offending, and secondly because physically, even if he wanted to, he doubted the applicant could give effect to any sexual desire because of his health. The report also indicated that Dr Walton seemed unaware that the Court could not impose any type of supervisory conditions on any order it made.
When he gave evidence, it became apparent that Dr Walton had not reviewed the applicant's general prison file or his prison health file. He had also not sought to explore with prison staff anything about the applicant's behaviour while in prison. He also accepted that just because a male may be impotent did not mean he could not commit a sexual offence, and that there were categories of people, vulnerable to people minded to commit such crimes, who may not have the ability to "fight". Ultimately, however, his view was that any risk posed by the applicant was quite low.
In his oral evidence it also became clear that Dr Walton still assumed that, if the applicant were released, parole authorities would have some supervisory role. When it was pointed out to him that would not be the case, he accepted that would be less than ideal.
The applicant
The applicant also gave evidence. He acknowledged there was an error in details about a TAFE course he had done provided in his supporting affidavit. He had said he had completed three levels for one certificate, when, in fact, he was only half way through level 2. He also, in effect, updated his medical situation. He said that his blood pressure was now down because he took medication. He could now walk certain distances although not a long way, and was therefore not confined to a wheelchair. Despite there being a direction that he not deal with female staff, female officers were regularly assigned to him and he saw Dr Donaldson, a female doctor. He said he wanted to do the sex offender treatment program and had made enquiries, although it was some time ago, after he got sick. He confirmed that he was not to have a heart transplant, but that it was planned he have surgery to have a defibrillator implanted.
The applicant confirmed that he had regular telephone contact with his parents, but that he had no place to actually go and live on release. He had spoken to a case worker but nothing could really be done without a confirmed release date, including involvement in pre-release programs.
The applicant agreed he had had trouble in relation to his dealings with female prison officers. He said the last time he was aware of such an incident was in 2007. Another incident in 2009 was suggested to him, and he agreed that had occurred but he forgot about it. There had in the past been instances where he had targeted a female officer with physical threats and had exposed himself to a female officer.
The applicant was taken through his sexual offending history. He agreed that, in relation to some, it was the result of an inescapable urge. He agreed he probably had some control over that urge, but the fact was he had the urge and just "did it". In relation to his attack on a 14 year old, which only ended when her brother intervened, he agreed he could not control himself. As to the last offending, he accepted that he had maintained for many years the female involved had consented to sexual activity, but eventually accepted that she had not.
The applicant was questioned about his dealings with the psychologist, Mr Minehan. It was suggested to him that, during his interview with Mr Minehan just weeks before the hearing commenced, he had said to Mr Minehan that he knew how to manipulate the body. Having first indicated he did not recall making that statement, he agreed that, if Mr Minehan said he said that, then he probably did. However, he said he made the remark in the context of how to survive in prison.
Damien Minehan
Mr Minehan is a clinical psychologist with a masters degree. He worked in the prison system as a psychologist from 2001 to 2012. He entered part-time private practice in 2007, and full-time practice on leaving the prison system in 2012. He first met the applicant in 2001/2002. The applicant was referred by the then prison psychiatrist because of allegations of inappropriate behaviour. Mr Minehan met with the applicant many times over two or three years. In 2006, he prepared a report for the Court at the time the applicant then sought to have the dangerous criminal declaration discharged. He was then asked to prepare a further report for the purpose of this application in June 2013.
On page 7 of his June 2013 report, Mr Minehan said:
"As we were finalising the interview [IRS] was talking about his previous offending. His final comment to me was 'I know how to manipulate the human body to get what I want, I know I shouldn't be proud of that.' He went on to say 'you look for the soft part of the body in a fight' commenting that the 'female body is just the same'".
This was the comment put to the applicant which he said was in the context of his survival in prison. Mr Minehan was asked about the context of the remarks. He said the comments were not made in the context of the applicant's survival in prison. He and the applicant had been discussing the applicant's 1995 offending and the issue of consent. The applicant had in that context volunteered the comments.
Mr Minehan's report was lengthy, and I do not propose to summarize it all. Suffice to say that at pars[115] – [120] he said the following:
"115 [IRS's] offending has had a strong psychological component. Anger, control and dominance of his victim have been prominent. He has historically had a strong sexual drive. Offences have been predatory and opportunistic. He has targeted vulnerable victims, including a child in church, and has also impulsively attacked a medical professional assisting in his care as juvenile.
116 [IRS] reported he currently has no sexual thoughts, drive, desire or fantasy. He also claims erectile dysfunction. The observation of multiple staff is that he continues to stare at female staff, to a point well above what would be considered normal amongst a male prison environment. He has stated to his custodial case manager that he wanted leave to have sex again before he died.
117 [IRS's] prior offences have included high levels physical violence including choking. Whilst this is at the extreme end he has also used other methods, such as bending back fingers, to achieve his goals. There are questions regarding his physical state and recovery of some function. Health and prison staff note an improvement. It could be argued that he remains capable of using these methods of physical control against vulnerable individuals.
118 One of the prominent issues that has been noted, including to the present day, is the inconsistency between [IRS's] self report and the objective data, file material and observation of others. For example he has viewed intimidatory and predatory sexual behaviours as misunderstandings, reported having no sexual drive but then requesting leave to have sex before he dies, stating his health is so poor that he cannot shower. However, observations suggest he is physically more capable than he reports. This becomes clear from a thorough review of file materials and discussion with staff.
119 [IRS's] self report is that he has no sexual desire or drive, which is relied upon in the medical reports. [IRS's] report is that this is due to the medication, which is subject to change by medical practitioners but also his compliance in taking it. In terms of erectile dysfunction the only definitive measure is physiological, in the form of phallotmetry or penile plethysmography.
120 The risk assessment, using an anamnestic approach, suggests ongoing sexual violence risk despite his physical condition. The PCL-R results indicate a high level of core psychopathic traits. To date [IRS] has undergone no offence specific rehabilitation or treatment programs. On the basis of all the information considered it is my opinion that the risk of opportunistic sexual assault remains high."
Mr Minehan then went on in his report to address risk management recommendations. He said at pars[121] – [125]:
"121 There is little purpose in completing a risk assessment if a management plan or a set of measures to address risk factors are not outlined. A glaring omission from [IRS's] rehabilitation during the past 18 years of imprisonment is access to a group or individual based sex offender treatment. He himself has made repeated requests over a number of years but has not been able to access these for a variety of reasons, some of which he has contributed to himself and others out of his control. I would very strongly recommend [IRS's] participation in the sex offender treatment program. Release of an individual classified with his offending record without any form of offence specific rehabilitation would seem counter intuitive, particularly if his release is without any form of supervision. [IRS] has consistently stated his desire and high motivation to complete this program, including in my interview with him. Careful evaluation of his progress throughout this assessment is also a key requirement.
122 There is very little literature specifically evaluating sexual offenders subject to preventative detention in Australia. Doyle, Ogloff & Thomas (2010) described an early characterisation of this group drawn from offenders (n=50) in Victoria, New South Wales and Western Australia. Amongst their recommendations was the statement that 'the multiple vulnerability factors present in the histories of these men demand a multifaceted treatment approach that addresses their criminogenic psychopathology but also the psychologicial and social determinants of the offenders' problematic sexual behaviour'. As stated [IRS] is highly motivated to complete the sex offender treatment program. The effectiveness of many of these programs has been evaluated with research generally suggesting positive effects and reduced reoffending rates (Hanson et al 2002, Losel & Schmucker 2005). It is not just a matter of [IRS] attending such a program but engaging and completing it successfully. I am aware that there are some practical issues to overcome, for example his access to health services in minimum security, but it is my opinion that access to rehabilitation is crucial prior to his future possible release. Improving accessibility to health services in minimum security would be of benefit to all prisoners. It is unfortunate that such an extended period of time has passed without [IRS] being able to access a treatment program.
123 [IRS] has not yet had access to any form of pre-release program. There has been no Section 42 leave program or re-integration into the community, from which he was removed in 1995. I would recommend that such a program and evaluation of his progress would be required before release is considered. [IRS] has expressed his own preference for this to occur.
124 Clarification regarding his medical condition at the current time is also required. At the outset of this assessment I was under the impression that [IRS] required a heart transplant. This is now not the case as he does not meet medical eligibility criteria. He is receiving an internal defibrillator on 12/6/13, which he has been able to access as an inmate of the prison. According to medical information his medication is optimal. Observations indicate an improvement in physical condition, for example less reliance on a wheelchair or carer. This is an important consideration in his physical ability to commit a sexual or violent offence. This is a key factor, heavily relied upon in other assessments.
125 In essence concern remains regarding his current offence specific attitudes, his actual physical ability and sexual dysfunction, the inconsistency between his self report and behaviour and the lack of offence specific rehabilitation."
Availability of sex offender treatment program
Even prior to the conclusion of the hearing in this matter, it became clear that what was being pursued for the applicant was an order discharging his dangerous criminal status, but that such order be post-dated to enable the applicant to complete a sex offender treatment program and other pre-release programs. As a consequence, during the course of the hearing, an adjournment was taken to enable enquiries about various programs to be made. Following the adjournment, the documents which became exhibits A4 and A5 were tendered.
In exhibit A4, prison authorities advised that the applicant's suitability to participate in a group sex offender program could be assessed within eight to ten weeks. If he were deemed unsuitable for a group arrangement, he would be assessed for an individual program. Assuming he was assessed as suitable for one or the other, he could potentially complete a program within nine to 12 months. In 2008, the applicant had been assessed for the purpose of participation. However at that time his inappropriate level of behaviour and his protection issues resulted in a refusal to allow him to participate. In 2011, health staff at the prison advised that the applicant was too unwell to participate.
Prison authorities had been asked to advise whether they would consider leave pursuant to the Corrections Act 1997, s42, while the applicant was completing a sex offender treatment program. That section provides:
"42. Leave permits
(1) The Director may grant to a prisoner or detainee a leave permit authorising the prisoner or detainee to be absent from a prison for any of the following purposes:
(a)to visit a near relative or a person with whom the prisoner or detainee has had a longstanding relationship if that relative or person is seriously ill or in acute personal need;
(b)to attend the funeral of a near relative or a person with whom the prisoner or detainee has had a longstanding relationship;
(c)to attend interviews and discussions in relation to the prisoner's or detainee's proposed employment;
(d)to attend a place of education or training in connection with a course of education or training;
(e) to perform unpaid community work;
(f)in the case of a prisoner or detainee who is an Aboriginal person, to attend events of special cultural significance to the Aboriginal community;
(g)to take part in a program approved by the Director that is designed to facilitate –
(i) the rehabilitation of the prisoner or detainee; or
(ii) the reintegration of the prisoner or detainee in the community; or
(iii) the preparation of the prisoner or detainee for release; or
(iv) the maintenance of the family ties of the prisoner or detainee;
(h)with the Minister's approval, any other purpose which the Director considers appropriate.
(2) …
(3) A leave permit –
(a)is to specify the period during which a prisoner or detainee may be absent from a prison in pursuance of the permit; and
(b)is subject to such conditions and restrictions as the Director considers appropriate and as are specified in the permit.
(4) Without limiting the generality of subsection (3)(b), the conditions and restrictions to which a leave permit may be subject may include a condition that the prisoner or detainee to whom the permit is granted is, while absent from prison during the currency of the permit, to be in the custody of –
(a) a correctional officer; or
(b) a probation officer; or
(c) any other person authorised by the Director for that purpose.
(5) A leave permit may authorise the absence of –
(a) a prisoner or detainee on one occasion or a number of occasions; or
(b) a prisoner or detainee for one purpose or a number of purposes; or
(c)a number of prisoners or detainees for the same purpose on one occasion or a number of occasions.
(6) A leave permit may authorise a number of absences within the period of 31 days from its granting but no one absence is to be for more than 72 hours."
Prison authorities advised in relation to this issue that normally sex offenders who had not completed the relevant program, other than those assessed as being at a low risk of re-offending, would not be granted such leave. Due to the nature and seriousness of his offences and his status as a dangerous criminal, prison authorities would not grant such leave while the applicant was undertaking a sex offender program. They would reconsider that position once he had completed the program.
As to exhibit A5, that was an email exchange between the applicant's counsel and Dr Frances Donaldson, the prison doctor. She pointed out that the sex offender program was held at the Ron Barwick facility for minimum category prisoners and that, because of the applicant's health, he could not be housed there. If the prison authorities were however prepared to have someone drive the applicant to and from that facility to enable him to attend, there seemed no reason why he could not do so, subject to his health allowing it to continue.
During the course of counsels' submissions once the evidence had been completed, I raised two matters with the applicant's senior counsel. The first was whether the applicant had actually asked to be assessed for inclusion in the sex offender treatment program since this application had been commenced. The second was whether any advice had been sought from prison authorities as a result of Dr Donaldson's comments as to whether prison authorities would facilitate the applicant's travel to and from the program. The hearing was stood down to enable enquiries to be made. Subsequently, from the bar table, and without objection from counsel for the respondent, I was told that the applicant had actually made no further application to be assessed. I was also told that prison authorities would facilitate attendance at the program. If it involved a group, that would be at the Ron Barwick facility and the applicant would be taken there and back. If the program were to be on a one to one basis, it would be conducted in the prison where the applicant was housed.
Submissions and discussion
Cox CJ dealt in 1997 with an application by Mark Brandon Read (Mark Brandon Read (1997) 94 A Crim R 539) to discharge the declaration relating to his dangerous criminal status. His Honour said at 540 in relation to an application:
"The Court is obliged to do so if it is satisfied that the declaration is no longer warranted for the protection of the public. The applicant bears the onus of persuading me of that proposition. Put another way, he must demonstrate some alteration in the circumstances which justifies a change from my having been of the opinion that the declaration was warranted for the protection of the public to my being satisfied that it is no longer warranted for that purpose."
His Honour went on to say, at 543, having expressed the view that the declaration in that case was no longer warranted:
"In saying that I acknowledge that no one can give any guarantee that he will not expose the public to the danger of some form of violent crime, but I think the prospects of that eventuating are sufficiently slight that the drastic expedient of his indefinite incarceration beyond the expiration of his finite sentence is no longer warranted."
It is necessary to look at what Wright J said about the applicant's circumstances at the time the relevant declaration was made, and the principles to which he had regard when making his decision. He said in his comments on passing sentence:
"[IRS], you have been convicted of one count of aggravated sexual assault and two counts of rape. On 15 January 1995 you entered the home of [complainant A] in Burnie on the pretext of retrieving a jacket left there by [a] friend, [DE], with whom you had been visiting the premises a short time previously.
Your behaviour at the house earlier in the evening had caused a good deal of uneasiness on the part of [complainant A], and, with hindsight, it may be said that she was perhaps unwise to have re–admitted you when she did. This however provides no excuse or justification for what followed.
[Complainant A] wanted you to leave the house and requested you to go. You ignored her and entered her bedroom where the offences took place, accompanied by violence and threats of violence on your part. It is fair to remark that the degree of actual violence used was not so severe as to cause actual physical injury to [complainant A]. On the other hand you have a substantial and disturbing record of offences of violence and sexual assault over a number of years. You were dealt with for offences of assault with indecent intent in the Children's Court in November 1985 and again in December of 1986. Then, on 2 March 1989 you appeared before Mr Justice Underwood in this Court on a charge of aggravated assault. In sentencing you to eighteen months' imprisonment his Honour described your offence as 'a serious and sustained violent and sexual assault on a 14 year old girl who was a complete stranger to you.' To aid your rehabilitation his Honour suspended one half of the sentence and placed you under supervision so that you could obtain psychiatric treatment and counselling.
Five months after your discharge from prison you committed a series of serious sexual assaults upon a 7 year old girl. You were convicted of abduction, sexual assault, of which there were two counts, indecent assault, attempted rape and rape. The Chief Justice, Sir Guy Green, sentenced you to five years' imprisonment on that occasion, but once more part of the sentence was suspended. His Honour had before him medical reports which suggested that you had some form of mental disorder and were likely to respond to treatment. Accordingly, the final twelve months of the sentence were suspended on conditions which were designed to ensure that you received further counselling and treatment, as well as supervision by the Probation Service. At this time Dr Lopes was of the opinion that you were likely to benefit from, and be responsive to, treatment designed to overcome your sexually deviant behaviour. You were released from custody on 16 October 1992. Following your discharge from prison on 27 July 993, you committed a trespass at the home of [complainant B] at Shorewell. There was no sexual assault on that occasion but your behaviour was plainly disturbing to [complainant B] and in view of your past history it may be reasonable to suspect, or indeed to infer, as suggested by the Crown, that there was a sexual dimension to your conduct on that occasion as well.
In November 1993 the Chief Justice revoked the probation order which he had made in May of 1990 and then substituted a new probation order to run until 16 October 1995. The new order made provision for your continuing supervision and psychiatric counselling. The offences for which you are now to be sentenced took place some fourteen months after that last appearance before the Supreme Court.
Mr Porter, in his very detailed submissions on your behalf, suggested that there was a significant gap between the various sexual assaults which you have committed and that those assaults have changed somewhat in character over the years, but in my opinion neither of those submissions should be given undue weight in the circumstances. Whilst [complainant A] is a mature woman and was not a complete stranger to you, this feature in no way lessens the gravity of the crimes which you committed against her and by any yardstick I cannot regard fourteen months, or even eighteen months, as constituting a significant gap in the pattern of offending which is disclosed by your record. This is your fifth appearance for sentence for sexual assault within ten years, but perhaps more importantly, it is your third appearance in the Supreme Court for very grave sexual misconduct since March 1989. Both Mr Justice Underwood and the Chief Justice gave you every opportunity to receive and benefit from counselling and treatment but apparently to no avail.
The present report from Dr Lopes, who originally held such high hopes for your rehabilitation, gives a much bleaker picture than he painted in 1991 and he suggests now that the only management properly available and likely to succeed is chemical castration to curb your libido. This of course is not a solution which can be imposed upon you against your will by order of the court or by intervention by psychiatrists or others. Dr Lopes does not consider you to be subnormal or to have any form of mental illness, although he does consider you to have a number of firmly established anti–social characteristics and he expresses concerns, which are plainly well founded, about the future. Your behaviour during the trial and the comments attributed to you by Dr Lopes in his report convince me that you have absolutely no remorse for your criminal assaults on [complainant A]. The material presented to me by Mr Stoddart satisfies me that [complainant A] has suffered from a severe post traumatic stress disorder as a consequence of your attack upon her and although this has responded well to treatment, she still suffers from insomnia, nightmares and occasional episodes of fear when alone at night.
The Crown has asked me to declare you to be a dangerous criminal pursuant to the Criminal Code, s392. The prerequisite for and the circumstances in which such declaration may be properly made were discussed by the Chief Justice in the case of R v McCrossen in [1991] Tas R 1 and by the Court of Criminal Appeal in Read v The Queen A15/1994. In the latter case the court had this to say at 5:
'The second ground of the application asserts that the material before the learned judge did not clearly establish that the applicant was "a constant danger to the community". Those words were taken from Chester v The Queen (1988) 165 CLR 611 where the High Court said at 619: "The stark and extraordinary nature of punishment by way of indeterminate detention, the term of which is terminable by executive, not by judicial, decision, requires that the sentencing judge be clearly satisfied by cogent evidence that the convicted person is a constant danger to the community in the sense already explained." Counsel for the applicant submitted that this Court is bound to apply what the High Court said in Chester, but clearly that is not so for that case concerned provisions of the Criminal Code of Western Australia which were substantially different. Under s392(1) a sentencing judge may exercise the discretion to declare a person who has been convicted as prescribed a dangerous criminal provided that the judge is of the opinion that such a declaration is warranted for the protection of the public'. That is the test established by Parliament as the prerequisite for the exercise of the discretion in this State. However we agree with the dicta of the Chief Justice in R v McCrossen [1991] Tas R 1, at 7 that insofar as the High Court's observations in Chester v The Queen deal with the general considerations which should inform the exercise of the discretion, they are applicable to s392. The High Court said it is firmly established that the common law does not sanction preventive detention. 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. But the indeterminate sentencing provisions of s392 provide an exception to the common law principle and empower the criminal courts to in fact order preventive detention. In Chester v The Queen (1988) 165 CLR 611 at 619 the High Court referred to "the stark and extraordinary nature of punishment by way of indeterminate detention" and to the need for the sentencing judge to be "clearly satisfied by cogent evidence that the convicted person is a constant danger to the community". The court said at 618 that the power to direct preventive detention should be confined to very exceptional cases where the exercise of the power is demonstrably necessary to protect society from physical harm. In this State these considerations have clearly played a significant part to the extent that it has only been in exceptional cases that a declaration has been made that a convicted person is a dangerous criminal. According to counsel there are currently only two prisoners, apart from the applicant, who are the subject of such a declaration. Counsel for the applicant submitted that a dangerous criminal declaration ought not to be made unless it is certain that upon release from prison the offender will commit a violent offence. In the absence of direct evidence of some plan or conspiracy to commit such an act or a clear and unequivocal declaration of such an intent (as for example in R v McCrossen) it would rarely be possible for a court to be affirmatively satisfied to the point of certainty that violent criminal conduct would occur upon release from custody, but in our view persuasion to this degree is not required either by the provisions of the Code or the general considerations discussed by the High Court in Chester v The Queen (1988) 165 CLR 611. 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.'
Mr Porter submits that the Crown has not established that you should be classified as a dangerous criminal because, he says, such a step is not warranted for the protection of the public. That however is not a view which I am able to share. Having regard to the factors enumerated in the Criminal Code, s392(1A) and the principles discussed in the cases to which I have just referred, I have reached the affirmative conclusion that there is a very high likelihood that you will re–offend violently if and when discharged from gaol and that the declaration sought by the Crown is demonstrably necessary to protect female members of our society from the constant danger of physical harm which your presence in the community represents."
Counsel for the applicant also referred to remarks I made at par[24] in Bell v Director of Public Prosecutions [2011] TASSC 61, another application to discharge a dangerous criminal declaration.
Another authority to which counsel for the applicant referred was that of Attorney-General v Francis (2007) 1 Qd R 396. In that case, the court at first instance had made an order, under legislation which permitted indefinite incarceration for control, care and treatment, for the continuing detention of an offender. On appeal, that decision was overturned. The legislation is different from that in this State which is under consideration. However, counsel referred to some general principles appearing at 401, par[31]:
"It is possible, too, that the view taken by Gummow J in Fardon v Attorney-General for Queensland supports an argument that executive government repudiation of the preventive objects of the Act in a particular case (as, for example, by the refusal of any treatment to a prisoner clearly capable of, and amenable to, rehabilitation) could lead the court to refuse to make any order at all. If it were to appear to the court that any further detention would be truly punitive in character and, thus, contrary to the intention of the legislation, there would be no basis for the court to make an order of any kind under the Act. The conditions of further restraint upon the detainee's liberty would be out of character with the intention of the legislature: that such restraint is preventive."
Counsel for the applicant submitted that the Court should make an order pursuant to the Act, s21(10). That provides:
"If the discharge of the declaration would result in the immediate release of the applicant from custody, the court may order that the discharge is not to take effect for such time as it considers necessary for the applicant to undergo a pre-release program under the supervisions of the DCS."
He submitted that any order could be post-dated to enable the applicant to complete a sex offender treatment program, to have s42 leave, and to undertake other pre-release programs for the purpose of reintegrating him into the community. It was accepted that this Court had no power to order either the applicant to take part in any of these activities or the prison authorities to make them available.
The applicant, it was submitted, is now 42 years old, and has been in custody for close to 18 years. His physical health is much deteriorated from that in 1995 in that he has heart disease which renders him unable to walk long distances or, it was suggested, engage in any activity which would allow him to physically overcome a potential victim. His life expectancy is also limited. The applicant has undertaken a number of educational courses while he has been in prison, and has repeatedly expressed a willingness to undertake a sex offender treatment program. He has been denied the ability to do so through no fault of his own.
Counsel for the respondent submitted that the Court would need to be satisfied at the time of making any order that the applicant no longer posed a risk to the public. It was not sufficient that he might not do so at some time in the future. He further submitted that s21(10) was not designed to deal with a case such as the present, that is, to facilitate the participation of a prisoner in a program designed to assist with rehabilitation. The section was designed to allow prisoners to undertake steps to prepare them for release into the community. He submitted that the applicant had not completed the sex offender treatment program, and that the reason he had not done so was not material.
As to participation in the sex offender program, the views of Dr Walton and Mr Minehan were at odds. Dr Walton could not see the utility in it, and said that the applicant did not see the need. The applicant's view about participation, as I understand it, could only have been one expressed to Dr Walton during the course of an interview in February 2013. However, that view is completely contrary to the opposite view the applicant expressed to this Court, Mr Minehan and Dr Donaldson. It is difficult not to conclude that the applicant was tailoring what he said to the particular circumstances in which he said it.
As to the efficacy of such a program, Mr Minehan referred to such programs at par[122] of his 2013 report, which I extracted at par[26] of these reasons under the heading "Risk Management Recommendations". At par[121] of his report, also extracted, Mr Minehan said "Careful evaluation of his progress throughout this assessment is also a key requirement."
Mr Minehan is clearly of the view that the risk of the applicant committing an opportunistic sexual assault remains high. In reaching that conclusion, he was cognizant of the applicant's health situation but also mindful of the applicant's history prior to and while in prison, and his recently made comments about his ability to manipulate "the body". He saw the fact that the applicant had not taken part in a sex offender treatment program as "a glaring omission from [IRS's] rehabilitation ...".
While Dr Walton is clearly an experienced psychiatrist, his reports and evidence were, in my view, lacking in a detailed and thorough examination of the situation of the applicant which was in contrast to the approach of Mr Minehan. I appreciate that Mr Minehan perhaps had the advantage of having worked with the applicant before. However, Dr Walton did not look at any prison files which would have disclosed complaints of inappropriate behaviour by the applicant towards female staff, he seemed unaware of the actual physical state of the applicant which had clearly improved from the description given by Dr Walton in his first report, he relied almost exclusively on the applicant's self-report, and he did not appreciate the context in which he was asked to report. That is, he did not appreciate that any order made would be subject to no conditions and no form of post-release supervision, a situation which even he acknowledged was not ideal.
On the other hand, Mr Minehan's approach was detailed and he took active steps to "check" the applicant's self-report in relation to matters, finding some checks caused him to doubt the accuracy of the self-reporting.
The applicant himself was an unimpressive witness. As counsel for the respondent submitted, the applicant's memory was selective, he was evasive and his responses, when questioned about his attack on the 7 year old girl, demonstrated a complete lack of insight into that offending.
Conclusion
I accept that the applicant's physical health is far different from that at the time of the declaration in 1995, and that his present state of health would render the likelihood of any real level of force or violence being able to be used to offend very low. However, I also accept that such a level of force would not always be necessary where potential victims were vulnerable, that is, for example, they were children or people with a disability. The applicant has offended seriously in relation to a child before and, as I have indicated, even now seems to display a singular lack of insight into his behaviour on that occasion.
It is Mr Minehan's view, which I accept, that the risk of the applicant re-offending remains high. Despite the fact that the applicant has made a number of statements to the effect that he wants to take part in a sex offender program, nothing was put before me to the effect he had actually applied for any assessment since 2011. This is despite the fact that his health had improved since then and it was clearly a plank in his case that such a program should be undertaken.
I am mindful of the fact that the applicant has been in prison for many years beyond that to which he was originally sentenced, and has remained in custody only because of the dangerous criminal declaration. I am also mindful that, if this application is refused, the applicant will be prevented from making a further application for a period of two years.
The applicant has not satisfied the Court that his circumstances have changed to such a degree that it could be satisfied that there is no risk to the public occasioned by his release, or that any risk is sufficiently slight. Quite clearly, if the applicant was able to complete a sex offender treatment program and his involvement was assessed as being successful, his situation may be different.
The application is dismissed.
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