McCrossen v Tasmania
[2018] TASSC 49
•4 October 2018
[2018] TASSC 49
COURT: SUPREME COURT OF TASMANIA
CITATION: McCrossen v Tasmania [2018] TASSC 49
PARTIES: McCROSSEN, Jamie Gregory
v
STATE OF TASMANIA
FILE NO: 373/2016
DELIVERED ON: 4 October 2018
DELIVERED AT: Hobart
HEARING DATE: 17 and 18 September 2018
JUDGMENT OF: Wood J
CATCHWORDS:
Criminal Law – Sentence – Sentencing orders – Orders and declarations relating to serious or violent offenders – Dangerous criminal – Application to discharge dangerous criminal declaration – Risk of violence mitigated by mandated mental health treatment – Declaration no longer warranted for the protection of the public.
Sentencing Act 1997 (Tas), ss 20 and 21.
Chester v The Queen (1988) 165 CLR 611; Read v The Queen (1997) 94 A Crim R 539; applied.
Aust Dig Criminal Law [3357]
REPRESENTATION:
Counsel:
Applicant: K Cuthbertson
Respondent: T Jacobs
Solicitors:
Respondent: Director of Public Prosecutions
Judgment Number: [2018] TASSC 49
Number of paragraphs: 124
Serial No 49/2018
File No 373/2016
JAMIE GREGORY McCROSSEN v STATE OF TASMANIA
REASONS FOR JUDGMENT WOOD J
4 October 2018
The applicant, Mr Jamie Gregory McCrossen, was declared a dangerous criminal on 18 January 1991. He has brought an application for the discharge of that declaration. If not for the declaration, he would have been entitled to be released from custody after serving his sentence of imprisonment, which had expired on 17 July 1992.
When the applicant was imprisoned he was 18, he is now 46. He has spent 26 years in prison under the declaration.
In Tasmania, unlike other jurisdictions, declarations are not subject to periodic review. The only means by which a declaration may be discharged is if a prisoner brings an application to the Court.
In 2013, the applicant brought his first application to have the declaration discharged. The application was dismissed by Tennent J on 28 January 2016. Tennent J noted the applicant was "in effect institutionalised". He had failed to participate in any pre-release programs. Her Honour found that with no support measures in place, and with a profound lack of preparedness for independent living there were risks of conflict in the community and a risk of "instrumental violence"; violence to get himself out of situations of perceived danger, or in the extreme, to ensure he was returned to prison. Tennent J was not satisfied that the declaration was no longer warranted for the protection of the community: McCrossen v The Queen [2016] TASSC 3.
The applicant brought a second application on 7 February 2016, and after many directions hearings and the provision of additional reports, a hearing has been held.
There have been significant developments since the order made by Tennent J. A turning point has been the applicant's transfer out of the prison environment to the Wilfred Lopes Centre, a secure mental health unit, as well as assessment of his mental health, treatment for his chronic symptoms and the involvement of a multidisciplinary team. The future management of his condition includes mandated treatment if the order is discharged.
The order discharging the declaration must be made if the Court is satisfied that the declaration is no longer warranted for the protection of the public. For the reasons I give, I am so satisfied.
The law
The declaration was made pursuant to s 392(1) of the Criminal Code which was then in the following terms:
"392(1) Where a person who has apparently attained the age of 17 years –
(a) is convicted of a crime involving an element of violence; and
(b)has at least one previous conviction for a crime involving such an element –
the judge before whom that person is so convicted or, as the case may be, the judge of the court before whom that person is brought up for sentence, may declare that that person is a dangerous criminal if the judge is of the opinion that such a declaration is warranted for the protection of the public."
The application for the discharge of the declaration is made pursuant to s 20(2) of the Sentencing Act 1997. Section 20(2) applies to the declaration made in respect of the applicant. The definition of "dangerous criminal" in s 20(1) includes an offender in respect of whom a declaration under s 392(1) of the Code is in force:
"20 Dangerous criminal may apply for discharge of status
(1) In this section and in sections 21, 22 and 23 –
applicant means a dangerous criminal who applies to have the declaration by which he or she acquired the status of a dangerous criminal discharged;
dangerous criminal means an offender in respect of whom –
(a) a declaration under section 19(1) is in force; or
(b)a declaration under section 392(1) of the Criminal Code, as in force immediately before the commencement of this Act, is in force;
sentence means the sentence of imprisonment imposed on an offender in respect of the offence by reason of which the offender was declared to be a dangerous criminal."
Subsection (3) provides:
"(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."
The applicant bears the onus of persuading the Court that the declaration is no longer warranted for the protection of the public: Read v The Queen (1997) 94 A Crim R 539 at 540 per Cox CJ; Bell v Director of Public Prosecutions [2011] TASSC 61 at [11] and [22]; IRS v State of Tasmania [2013] TASSC 66 at [33].
The Act is silent as to the matters to be taken into account when considering an application pursuant to s 20(2). The section refers to whether the declaration is no longer "warranted" for the protection of the public. The language invokes a consideration of the implications of the continuing existence of the declaration.
In Chester v The Queen (1988) 165 CLR 611 at 618-619, the High Court provided essential guidance in the making of the orders for indeterminate detention. The power is only exercised in "very exceptional cases", noting the making of a declaration is contrary to the common law which does not sanction preventative detention, and also contrary to the fundamental principle of the criminal law that punishment must not be disproportionate to the crime. The "extraordinary power" to authorise indefinite detention should be confined to those "very exceptional cases" where the exercise of the power is demonstrably necessary to protect society from physical harm. Indeterminate detention is "stark and extraordinary" punishment, and consequently the power to make an order should only be made if the court is "clearly satisfied by cogent evidence that the convicted person is a constant danger to the community."
The "exceptional" nature of the order informs not only whether the order is warranted, but also whether the declaration is no longer warranted: Carolan v The Queen [2015] VSCA 167. An evaluation of the drastic expedient of indefinite incarceration as being part of the question in determining whether the order is no longer warranted is implicit in comments of Cox CJ in Read v The Queen at 543-544.
Section 20(3) requires that the Court be satisfied that the declaration is no longer warranted for the protection of the public. It is the reverse of the test for the making of the order for indeterminate detention. The statutory test is not merely whether, if an order is discharged, there is a risk that the prisoner would reoffend and commit a serious crime.
In Director of Public Prosecutions v McIntosh [2013] TASSC 21 at [10], I noted that the making of orders discharging declarations are not contingent on a guarantee that a prisoner would not reoffend and commit a serious crime:
"[10]It is worth noting that a declaration would not be made merely because it would protect the public. If that were so there would be many instances where orders would be made and they would be unexceptional orders. Further, they are not made merely because there was no guarantee that a prisoner would not reoffend and commit a serious crime, or merely because caution would dictate that outcome. We are not here concerned with some sort of cautionary principle where courts can err on the side of public safety or weigh in favour of the interests of protecting the community in the face of uncertainty about an offender's likelihood of committing serious crime."
In R v O'Shea (1997) 94 A Crim R 560 at 564, Doyle CJ was concerned with a different statutory regime, but relevantly noted that the statutory test was not whether there is no risk of the person reoffending.
I accept Ms Cuthbertson's submission that the Court needs to be satisfied that indefinite detention is no longer "warranted" in light not only of factors such as the risk currently posed by the applicant, his antecedents, character and other circumstances, but also in light of "the stark and extraordinary nature" of such an order.
The declaration
The declaration was made by Green CJ when the applicant was 19 years of age. It was made following the applicant's plea of guilty to a charge of attempting to commit the crime of threatening to murder contrary to ss 299 and 162 of the Code. The sentencing judge did not impose a fixed term sentence for that crime, but on the application of the Crown made the declaration that the applicant be declared a dangerous criminal, pursuant to s 392 of the Code. The statutory test was whether the "declaration is warranted for the protection of the public".
Background
On 18 January 1990, when the applicant was 18 years of age, the applicant entered an antique shop with an antique pistol and, after a physical struggle with the female owner, struck her to the head with it, causing a small wound. In respect of that conduct, the applicant was convicted of assault and wounding and sentenced to 18 months' imprisonment to commence on 19 January 1990.
While serving the sentence of imprisonment for assault and wounding, the applicant committed the crime in respect of which the dangerous criminal declaration was made. In August 1990, the applicant wrote to the female he had assaulted. The letter was found by her husband. It had been hand delivered to their letter box at their home. The letter contained an explicit threat to kill the female and appeared to have blood on it. The applicant wrote a second letter to the female in similar terms to the first, which was intercepted by prison officers. The applicant was charged with attempting to commit the crime of threatening to commit murder.
[This paragraph deleted from the published version.]
Application for fixed term
In 1997, the Court dealt with an application by the applicant for the imposition of a fixed term sentence in relation to the crime of attempting to threaten to murder. This step had significance for the applicant because if a fixed term sentence was imposed and served by him, he could then apply to the Court to have his dangerous criminal declaration discharged.
On 4 March 1997, Underwood J (as he then was) sentenced the applicant to a fixed term of 12 months' imprisonment to commence from the expiration of the sentence of 18 months' imprisonment imposed on 29 June 1990: Re the Criminal Code Amendment (Life Prisoners and Dangerous Criminals) Act 1994 and Re Jamie Gregory McCrossen [1997] TASSC 13. His Honour noted that the sentence he imposed had expired, and this meant that the applicant was now entitled to make an application to this Court to have the declaration by which he acquired the status of dangerous criminal discharged. His Honour noted that was dependent upon the appropriate application being made.
Psychiatric opinions in 1991
At the hearing of the application for a dangerous criminal declaration, the Court was provided with two psychiatric reports concerning the applicant, one from then Senior Forensic Psychologist, Dr Wilfred Lopes, dated 15 January 1991, and the other from Dr Ian Sale, dated 4 April 1989. It is evident from those reports that Dr Lopes and Dr Sale shared opinions that the applicant has muscular dystrophy, a severe speech impediment, a background of almost indescribable deprivation and a severely damaged personality. Dr Sale noted the applicant's despair, sense of futility and depression were pervasive. Past assessment had noted he was extremely depressed, and intellectual or cognitive deficits had been mooted, although Dr Sale considered that would be difficult to assess due to his communication difficulties and somewhat unco-operative attitude. Dr Lopes noted the applicant had very poor self-esteem and very strong fear of rejection. He noted the applicant had developed self-defeating attitudes which he used to set himself up to reject situations. He had been non-compliant with a treatment program offered to him. The applicant was considered by Dr Lopes to be a danger in the community because of his impulsive behaviour.
Green CJ concluded that, notwithstanding the age of the applicant, a declaration was warranted for the protection of the public: Regina v McCrossen [1991] Tas R 1.
Having had the opportunity to read these reports, the following matters are noted arising from Dr Sale's report. In Dr Sale's opinion the applicant's personality has been irrevocably damaged. There was a history of prolonged institutionalisation, including a period at "Wybra Hall" due to anti-social behaviours, and when his behaviour deteriorated further he was transferred to the Royal Derwent Hospital, an adult secure mental health facility (described by Dr Minehan later in his report dated 31 August 2014 as "cohabiting with adults experiencing the State's most severe mental and behavioural disturbances") and spent nearly one year there as a 14-year-old in a secure ward of the hospital (ward 7). Dr Sale noted that prolonged observation at this hospital led staff to reach the conclusion that there was no evidence of a formal psychiatric illness. Dr Sale noted that it is difficult to reconcile this opinion with the hospital's apparent willingness to keep a 14-year-old in a secure ward for many months. Subsequently he was transferred to "Ashley boy's home".
Dr Sale considered the applicant unlikely to have the basic skills necessary to cope with a non-institutional life. Dr Sale noted that the ideal treatment setting would be a long stay "closed" rehabilitation unit dedicated to the management of individuals with severe personality disorder. He noted that the appropriate treatment facility does not exist in Tasmania.
Twelve years: 1991–2013
Since the making of the declaration in 1991, the applicant has largely been housed at Risdon Prison. Drawing on Mr Damien Minehan's report dated 31 August 2014, the applicant had a volatile history within the prison which reduced in severity and frequency over the years. His institutional disciplinary proceedings relate to matters involving disruptive behaviour. He was convicted of assaulting a public officer on three occasions involving custodial officers, twice in 1994 and again in 1999. He was sentenced in the Magistrates Courts to terms of six months' imprisonment for each of the 1994 assaults and seven months' for the assault dealt with in 1999. Mr Minehan noted that these episodes appear to have been triggered by the applicant experiencing depressive episodes, agitation/frustration and interpersonal conflict, and are consistent with a pattern of avoidance behaviour and self-punishment. The applicant was often punished for these incidents with segregation in punishment divisions.
The applicant has also spent large periods of time in the prison hospital, Mersey Unit and there have been multiple admissions to the Crisis Support Unit. There have also been admissions to the Wilfred Lopes Centre.
Of significance, in October 2008, the applicant was admitted to the Wilfred Lopes Centre for a period of approximately 12 months. During this period rehabilitation and leave programs were devised and attempts were made to increase his skills in a number of areas. During mid-2009 he was housed in the extended care unit. He worked in the kitchen, completed cleaning duties, attended a TAFE group and participated in gardening. For extended periods he appeared in good humour and interacted well with staff. Visits were facilitated with his grandmother, as well as a visit with his mother. He progressed to having visits in the community at his grandmother's home and walks around Risdon Brook Dam. This has represented a high point in the applicant's rehabilitation.
However, the applicant made multiple requests to return to the prison. The applicant's behaviour deteriorated and he was returned to the high dependency unit. He requested to be returned to the prison, and the decision was made to return him to the prison facility which occurred in November 2009. There were brief admissions to the Wilfred Lopes Centre in 2010, but he was quickly returned to the prison. As of 14 December 2012, the applicant has been classified as a minimum security inmate.
The 2013 application for discharge
On 25 September 2013, the applicant made his first application for discharge of the declaration.
The application was heard by Tennent J. Her Honour was provided with a report by Mr Minehan dated 31 August 2014. Extensive parts of the report have been set out in the reasons of Tennent J (McCrossen v The Queen [2016] TASSC 3). In particular, set out at [26], Mr Minehan stated:
"This is a difficult case to navigate, as this man has been severely psychologically damaged by long term incarceration, and presently does not have the skills to function successfully in the community without support. If Mr McCrossen was released from prison unconditionally in his current psychological state, there would be a high risk of suicide or reoffending for the purpose of returning to prison."
It was recommended that the applicant be afforded a multidisciplinary reintegration program to assist him to build his resilience in a community setting and develop the capacity to live an independent life. Time was allowed for the formulation of a pre-release program.
Dr Michael Jordan, then the Clinical Director of Forensic Mental Health Services, prepared a report at the Court's request for the purpose of the application. It was provided as a joint report with occupational therapist, Statewide Forensic Mental Health Services, Mr Brendan Long. The Court was informed that a comprehensive rehabilitation program involving extensive efforts on Mr Long's part, was largely unsuccessful due to the applicant's pattern of self-defeating behaviours and attitude.
In her reasons Tennent J stated (McCrossen v The Queen):
"[47]As I said at [36], it is a tragedy that the 'system' has largely created the dilemma the Court now faces …
[48]For most of his life, the applicant has lived in structured environments … If he is released from custody, that will change. The applicant will need to obtain and manage his own housing and needs generally. He will need to organise an income and be able to buy food and other necessities. He will need to, in general terms, be able to look after himself and to know who to approach or where to go if something goes wrong for him.
[49]Prison authorities have, more particularly in recent times, done their very best to try to teach the applicant the skills he will need in the community and to connect him with those services through which he could obtain housing, Centrelink benefits, medical insurance and support generally. The applicant has at times started to engage with authorities in this process. Family members have offered a level of support. However the applicant has ultimately refused to complete this process. He appears to see connections with family, support services, Centrelink and Medicare as charity which he does not want. He appears to be of the view that he can walk out the front door of the prison with no external support at all and survive perfectly well.
[50]His approach is entirely unrealistic and one which is doomed …
[51]…
[52]Absent support structures in the community, and potentially absent housing or an income, there will be nothing to mitigate the applicant's behaviour towards members of the public who may unwittingly offend the applicant in some way. The applicant would have no-one, because he would not know who might fulfil the role, to whom he could verbally complain of an actual or perceived injustice, and who might defuse the situation to prevent actual violence. The applicant may very well engage in what Mr Minehan described as 'instrumental violence' to get himself out of situations or perceived danger or, in the extreme, to ensure he is returned to prison.
[53]I have no doubt that there are various services available to assist the applicant in the community, including Forensic Mental Health. However, the applicant cannot be forced to engage with those services. As I have already pointed out, the Court has no power to make any sort of conditional order which would provide support for the applicant on release. That is in my view, a significant problem with the legislation as it stands …
[54]…
[55]I have not made this decision lightly and I very much regret having to make it. It should have been apparent to counsel and to the authorities who have been involved in this case that I had formed the view that with appropriate supports in the community and pre-release preparation, the applicant cold and should be released. Unfortunately, in my view the applicant has himself sabotaged the process. I do not mean to say he does not want to be released, simply that he has no appreciation of what is needed for that to happen, given his many years in custody."
A second application
The applicant made a fresh application on 2 February 2016. This is the application now before the Court. The matter was listed for numerous directions hearings. Initial directions hearings focussed on the applicant's participation in proceedings and the organisation of a co-ordinated pre-release program. The Court heard from therapists and others with expertise in rehabilitation as to what was needed in terms of a program.
A Plan of Engagement Report was also sought to enable a co-ordinated and informed offering and implementation of necessary supports. Madeleine Eiszele, occupational therapist, provided a Plan dated 19 June 2017. The applicant's participation in the court proceedings fluctuated. From time to time he made comments that suggested he was ready for positive engagement, but any sustained engagement did not eventuate. The application was set down for hearing for 21 August 2017.
At my request Dr Jordan provided an updated report dated 21 June 2017. Dr Jordan noted that the applicant's circumstances had not changed to any significant degree since his joint report with Mr Brendan Long two years before. Dr Jordan noted his diagnosis and the applicant's mental health difficulties as previously documented. He noted that the applicant has chronic problems with self-esteem. A DSM – 5 diagnosis of an Unspecified Personality Disorder would be appropriate in that he has evidence of personality dysfunction across a broad range of personality domains. He described these types of dysfunction as entrenched and significant. Intermittently the applicant has been diagnosed with Major Depression over the last two decades. The applicant presents with features of institutionalisation.
Significantly, Dr Jordan noted that a further period of assessment at the Wilfred Lopes Centre remained "essential" to map out and objectively assess his needs. It would allow a more informed opinion on what might be suitable should he leave the custodial system.
He noted that it was unlikely that the applicant would engage with psychiatrists, psychologists or counsellors while placed in the custodial system. Efforts by occupational therapists from Forensic Mental Health Services had met with negligible progress. He noted his own attempts to interview the applicant at the Risdon Prison Complex on 9 June 2017 were unsuccessful. The applicant did not engage, he was frail and dishevelled.
At a directions hearing on 25 July 2017, the Court raised Dr Jordan's report and the need for the applicant to be transferred to the Wilfred Lopes Centre for assessment. Dr Leila Kavanagh, Clinical Director, Forensic Mental Health Services, attended the directions hearing and agreed that the applicant should be transferred to the Wilfred Lopes Centre for assessment, treatment if necessary and rehabilitation. She advised that there was a waiting list and that it was unlikely that he could be transferred in time for his hearing in August. Subsequently, the matter was listed for directions hearing on six occasions with regard to the applicant's transfer to the Wilfred Lopes Centre. On 14 August the Court was informed that the applicant was first on the waiting list as there were concerns about his self-care and there had been a deterioration in his mental state. The ward was presently unstable and he could not be transferred, but it was expected that he may be able to be transferred the following week. On 21 August the Court was informed that he should be transferred that week. However, the applicant was not transferred at that time and the hearing date in August was vacated and adjourned until the transfer had been arranged. On 26 September 2017, the Court was informed that the applicant could not be transferred due to industrial action which included a ban on admissions. I expressed concern that the applicant's court case could not progress without a period of assessment at the Wilfred Lopes Centre. On 6 October 2017 the applicant's counsel referred to concerns she had expressed about the applicant's deteriorating mental health and self-care in August as "noticeable". The Clinical Director noted that she shared those concerns. I expressed concerns that the delay in transferring the applicant was thwarting the Court process, and that because the transfer had not occurred, the medical concerns identified by health professionals were not being addressed. At later directions hearings the Court was provided with reports as to the efforts to try and resolve the industrial action and once resolved, expectations as to when the applicant would be transferred.
On 30 October 2017, the applicant was transferred to the Wilfred Lopes Centre.
Further directions hearings were held in order to have the matter ready for hearing. Ms Marita O'Connell, a court liaison officer with Forensic Mental Health Services, was asked by the Court to provide recommendations as to any steps the Court should take to facilitate the applicant's full participation in the proceedings.
On 16 March 2018, the Guardianship and Administration Board ordered that the Public Guardian be appointed as the applicant's guardian pursuant to the Guardianship and Administration Act 1995. The order remains in effect until 15 March 2021.
During the directions hearings, the applicant has from time to time provided the Court with hand written notes. These were made available to Crown counsel. In those notes he said on a number of occasions that he was very sorry and that he wanted to get out of prison. I have taken those into consideration.
The hearing
A number of reports were provided to the Court, and members of the applicant's treating team at the Wilfred Lopes Centre gave evidence, as well as psychiatrist Dr Jordan and forensic psychologist Mr Damien Minehan.
Forensic Psychiatrist Dr Andrew Kalnins' report 22 August 2018
Dr Kalnins is a forensic psychiatrist who has worked as a "long term locum" for Tasmanian Forensic Mental Health Services. In that capacity he first met the applicant when he was an inpatient at the Wilfred Lopes Centre in 2009. Since that time, he has met and consulted with the applicant when he has returned for locum assignments. His most recent involvement with the applicant has been since December 2017 until August 2018 while working as Locum Forensic Psychiatrist and in the role of acting Head of Department.
Dr Kalnins reviewed the applicant's mental state:
"Mr McCrossen's behaviour within the ward presented as withdrawn and aimless …
Mr McCrossen's affect presented as blunted much of the time, he appeared flat and expressionless. It was evident he harboured an element of ongoing hoplessness, despair and existential uselessness in his life.
…
… he has a degree of insight to his circumstances, as evidenced by the commebnts made in the past regarding his many years in custody and the waste of these years of his life. In many respects, this level of insight served to worsen his mental state, in that it brought home to him the current uselessness and futility of his existence.
…
Mr McCrossen has suffered a long history of trauma. First of all his traumatic childhood developmental years, disruptive behaviour during his teenage years and followed by many years of incarceration …
Examination of Mr McCrossen's mental state shows a man presenting with withdraw and aimless behaviour. He has no sense of self, no desire to care for his appearance and presented a sense of hopelessness about his life and his future. He had no control over where his life was headed. In my opinion, his refusal to wash and keep himself clean was his only method of some form of control over his circumstances …
Diagnostically, in my opinion, he is suffering from a: Chronic Post-traumatic Stress Disorder (PTSD).
… Post-traumatic Stress Disorder is a diagnosable psychiatric condition. PTSD can present with symptoms that are strange, bizarre, unusual and can mimic psychotic conditions. Those who have treated refugees in long-term detention have seen a similar picture, whereupon patients present with what on the surface may be considered initially a psychotic illness, but in fact being result of the high level of trauma they have suffered. In many respects, Mr McCrossen's condition is similar."
Dr Klanins' outlined the applicant's recent progress at Wilfred Lopes Centre:
"Following assessment, diagnostic clarification and initial management, Mr McCrossen's self-care improved. After an initial period of refusal to shower he began to shower on his own, wash his own clothes and has allowed his beard, hair and fingernails to be groomed and cut.
He has now been placed under Guardianship with a Guardian appointed in order to assist managing his affairs into the future.
He has accepted the regular monthly depot injection of paliperidone. This has provided his mental state with some degree of regulation and has reduced the intensity of his emotionality and despair regarding his circumstances.
… spontaneous requests for showering and improved self-care are a very positive sign.
A rehabilitation plan has been developed with a gradual increase of activity, increasing exposure to outside the confines of the Wilfred Lopes Centre and increasing interaction within the community …
… during the recent months of this admission, Mr McCrossen has not exhibited any aggressive or violent behaviour. I note this especially as the initial attempts of showering had required a degree of manual handling. He resisted this but his resistance was considered to be within normal limits of an individual in his position."
Dr Kalnins ventured some opinions as to how the applicant may function in the community:
"… the observations within the Wilfred Lopes Centre indicates that when faced with some stressor, Mr McCrossen has a pattern of withdrawal from the stressor. His habitual response is to remove himself from the situation, usually by retreating to his room. This can be reasonably expected to be his response in the wider community, i.e. a desire to remove himself from stressful situations. He does not present with verbal suggestion when placed under stress.
…
I note Dr Jordan's comments surrounding risk. He has confirmed no assaultive behaviour over the past 14 months …
Mr McCrossen's ageing and poor physical health has been commented on by Dr Jordan, I would also add the effect upon ageing of a chronic state of institutionalization. When Dr Jordan commented; 'sits in a chair either doing nothing or occasionally reading a book', I am reminded of the 'back ward' patients we used to see in the old asylum psychiatric hospitals back in the 1970's. With prolonged incarceration, one's behaviour becomes increasingly withdrawn and restricted."
The report goes on to express views and opinions about the future direction of the applicant's case management and rehabilitation. These are key recommendations, adopted by other medical practitioners as appropriate. They are set out in full:
"Views and opinions about the future direction of Mr McCrossen's case management and rehabilitation:
…In the future, he will require extensive rehabilitation, support and care. It is unreasonable to expect him to cope in an environment without a high level of assistance.
… In my opinion he presents as a psychologically damaged individual. He will require the support of an environment that understands his mental condition.
Should he be discharged from the Dangerous Criminal declaration, he will require admission to a facility that can manage his complex circumstances. At this stage, there are, to my knowledge, two Mental Health Rehabilitation facilities in Tasmania, Millbrook Rise and the Tolosa Street facility. Given his current presentation, he is not yet at a level to consider admission o either of these facilities. After a further period of rehabilitation, the appropriate pathway would then be to Millbrook Rise and subsequent progress through this facility on to the Tolosa Street unit. This would be a very long-term goal.
Given the above, the Wilfred Lopes Centre remains the most appropriate facility for the foreseeable future. In my opinion, since my assessment, opinions and recommendations earlier this year, including the decision he would remain at the Wilfred Lopes Centre for rehabilitation and not be returned to the prison, Mr McCrossen has made significant progress. There is the potential for further improvement. If removed from the 'Dangerous Criminal' status he would revert to becoming a 'civil patient'.
Mr McCrossen meets the criteria for a civil patient to be admitted to the Wilfred Lopes Centre under Section 63 of the Mental Health Act 2013.
These criteria being:
·He would need to remain an inpatient of an approved hospital.
·He was a danger to himself by virtue of his chronic mental illness.
·His situation was such that a Secure Mental Health Unit (i.e. the Wilfred Lopes Centre) being the only appropriate place where he could be detained (as an acute facility such as the Royal Hobart Hospital acute Psychiatric Unit would be inappropriate and the Rehabilitation Units referred to above would also be inappropriate).
Should he then remain at the Wilfred Lopes Centre, his rehabilitation could continue into the foreseeable future. His risk profile would continue to be assessed and thus his level of dangerousness could be appropriately monitored.
There are further advantages I foresee should he be made a 'civil patient':
·A greater degree of flexibility in rehabilitation. Once no longer a prisoner, the Chief Forensic Psychiatrist (or delegate) can authorise rehabilitation leaves quickly and in response to his progress and presentation on the day. Risk can be monitored and addressed immediately.
·The label of 'Dangerous Criminal' being removed from Mr McCrossen can be assisted in applying for a Disability Pension (which in my opinion he qualifies for, given his condition). This would serve to provide him with the ability to begin to work together with his appointed Guardian to manage his own affairs and take responsibility for decision's regarding his future."
Finally, Dr Kalnins addressed the question of dangerousness and risk to the public:
"… I acknowledge Mr McCrossen has not had the opportunity of being observed in the broader community. His behaviour within the setting of Wilfred Lopes Centre has not resulted in any actions indicating dangerousness toward staff and other patients. In fact his response to stress has been a withdrawal from the situation.
… a review of his psychiatric status does not indicate a condition that could lead to potential dangerous or violent behaviour. By this I am considering issues such as paranoid ideation towards others, delusional belief toward others, command hallucinations to harm and the suchlike.
… should he be discharged as a Dangerous Criminal and continue his admission as a civil patient, he would continue to be subject to the checks and risk management procedures as carried out on all patients in a rehabilitation program at the Centre."
Having regard to the contents of Dr Kalnins' report there are four main areas of evidence of significance to this application:
·the applicant's mental health and assessment of his functioning;
·the treatment he is receiving now and his future management;
·recent progress; and
·future risk of further violence.
At the hearing witnesses were called and reports produced from Ms Hannah Miller, Occupational Therapist with Forensic Mental Health Services, Dr Dallas Hope, Clinical Psychologist with Forensic Mental Health Services, Dr Jordan, Consultant Psychiatrist with Forensic Mental Health Services, and Clinical Psychologist, Mr Minehan.
The applicant gave evidence at various stages of the hearing, wrote notes for the Court and called his father as a witness.
Occupational therapist Hannah Miller
Ms Miller assessed the applicant's occupational functioning as well below standard scores with decreased efficiency, safety (with respect to his own safety) and needing therapist intervention. He needs maximum supports involving inpatient care.
After his transfer to the Wilfred Lopes Centre, his physical health was significantly compromised due to him not attending to his self-care. In January 2018, an intensive shower intervention plan was implemented by the multidisciplinary team. Initially, eight staff were required to physically restrain the applicant to undertake basic washing. Staff intervention was able to be decreased, and since July the applicant has been self-initiating showers, laundering his clothes and changing his bed linen.
Ms Miller noted the following challenges:
"… sudden disengagement, it can however be seen as a pattern within his care that he has periods of engagement followed by periods of withdrawal. A potential contributing factor could have been me taking annual leave and that coinciding with one of his treating psychologist leaving the service. Based on his trauma history, feelings of abandonment have no doubt contributed to Mr McCrossen's disengagement."
She also noted some recent significant developments. On 3 September 2018, the applicant agreed to attend community day leave to Woolworths Lindisfarne to purchase flowers and to the Kingston Cemetery to visit his grandmother's grave. His grandmother had been a central figure in his life. He had been informed of her death in November 2017.
Ms Miller explained in her report that on this excursion, he was "provided with a small sum of money and with clinician intervention he was able to plan what he would purchase and make reasonable decisions in regard to his budget. He was able to navigate the cemetery to find his grandmother's grave and was able to recognise his feelings of sadness around her death. Mr McCrossen demonstrated that he was present in the situation, by seeking reassurance from staff about his performance, thanking them for taking him and being concerned about how long he should have stayed at the gravesite."
Due to the applicant's complex presentation, his long history of incarceration and, in turn, a considerable period of "occupational deprivation", rehabilitation attempts have been compromised. Ms Miller explained that occupational deprivation is when an individual is denied the opportunity to engage in meaningful occupations due to factors outside their control. This has resulted in him deskilling and feeling apathetic and hopeless towards his occupational roles and needs. The applicant sees himself as "Jamie the dangerous criminal".
Ms Miller noted that the applicant has a long history of trauma related to his childhood and his lengthy period within the prison system. In order to move forward in his rehabilitation, the applicant needs to feel safe and secure within his environment. He needs the certainty that he will be staying within one environment, which he feels safe in, for a considerable amount of time.
The Wilfred Lopes Centre would be the most appropriate setting in order for the applicant to feel safe and receive appropriate rehabilitation to meet his needs. Plans need to be put in place for the applicant to remain at the Wilfred Lopes Centre even if senior clinical leadership changes.
Without appropriate supports in place, the applicant would be at risk of self-neglect and physical health deterioration due to poor self-care, and an inability to complete basic cooking and activities of daily living. The applicant has demonstrated on the ward that his usual method of coping is withdrawal.
It appears that the applicant demonstrates a lack of insight into his occupational needs and deficits. During discussions in 2016, the applicant highlighted his desire to not be a "burden" to society and to live independently upon release.
In relation to future planning, the applicant's care "will need to continue to be slow and gradual. It will be important for service providers to continue to offer a client centred rehabilitation program that focusses on Mr McCrossen's strengths and interest and promotes independence whenever possible. Given Mr McCrossen's long institutionalised history it will be expected that at times he will disengage and reengage with the process. However, it is important that service providers continue to offer rehabilitation opportunities. It is envisioned that Mr McCrossen will need long term highly supportive rehabilitative care in order to potentially reside safely within the community in the future. This environment would need to be able to provide the security and safety Mr McCrossen needs and assist him developing a more suitable occupational identity. The care would need to provide support and guidance in regard to his activities of daily living particularly surrounding his self-care and personal ADLs, cooking skills and accessing the community."
Ms Miller's recommendations are reflected in the following:
"Recommendation: From a rehabilitative perspective, there are considerable benefits of Mr McCrossen being discharged from his Dangerous Criminal Declaration and put under the Mental Health Act 2013, which will allow him to continue to receive rehabilitation services within Wilfred Lopes Centre but also give him access to a Disability Support Pension (DSP). Having access to a DSP would mean Mr McCrossen would have greater access to finances, and with the assistance of his Guardian, the opportunity to increase responsibility for community activities of daily living.
… The other benefits of being placed under the Mental Health Act 2013 would be that Mr McCrossen could not be transferred back to the Risdon Prison Complex so he will remain within the supportive rehabilitative setting of the Wilfred Lopes Centre and receive slow stream rehabilitation. The order also allow easier access to community day leave and in turn more rehabilitation opportunities in a safe and gradual way. This order will balance the risk to the community (by Mr McCrossen continuing to be housed within a secure environment) and the risk Mr McCrossen poses to himself through self-neglect and poor coping strategies."
She explained that long term the goal of the treating team would be for the applicant to live semi-independently. She gave evidence that the treating team was committed to mandated care under the Mental Health Act in the event that the declaration was lifted.
It is thought that the appointment of the Public Guardian has been of assistance and should be helpful in future planning such as dealings with Centrelink.
Treating Psychologist Dr Dallas Hope
Dr Hope has been the applicant's treating psychologist since August this year.
It is Dr Hope's opinion, based on historical and contemporaneous reports of staff at the Centre and his own interactions with the applicant, that the applicant suffers from Complex Post Traumatic Stress Disorder. He noted:
"Complex PTSD is a psychological condition that can develop in response to prolonged or repeated episodes, or multiple types, of interpersonal trauma in which the victim experiences little or no hope of escape …
…
The symptoms of Complex PTSD are similar to those of 'simple' PTSD (such as re-experiencing trauma, avoidance or emotional numbing, and hyperarousal or vigilance), but may also include:
feelings of shame and/or guilt, difficulty regulating emotions, relational distancing, mistrust, dissociation, somatisation, suicidality, and destructive or risky behaviour. Complex PTSD is considered more debilitating than 'simple' PTSD due resultant disturbance in the organisation of the self. This 'disorder of self' is manifest in three domains: affective dysregulation, negative self-concept, and disturbances in relationships. It reflects the loss of emotional, psychological, and social resources under conditions of prolonged adversity."
He also referred to the condition as "complex relational trauma".
Dr Hope spoke of the type of treatment that was required. Most important is that the approach to treatment is committed and consistently trauma-informed. Trust and reliability are paramount. So is a sense of security and stability. The applicant's knowledge that his dangerous criminal declaration means that his treatment may be terminated at any moment, whereby he would be returned to prison for ongoing, indefinite detention, has likely contributed to his history of poor response to treatment. Dr Hope also considers that his poor response to treatment has been significantly contributed to by his dangerous criminal declaration in other ways. The declaration has had a profound impact on his already compromised identity. The situation of his indefinite detention has effected a sense of hopelessness. The combination of these factors has compounded his sense of unworthiness, and fostered a sense of incapacity and resignation.
Dr Hope noted that he agreed with the views of Ms Miller and Dr Kalnins as to the applicant's rehabilitation and Dr Kalnins' views and opinions about the future direction of the applicant's case management and rehabilitation. If the applicant was a civil patient at the Wilfred Lopes Centre, that would remove the option of prison and he would expect that the applicant's sense of safety would increase. He considered that the Wilfred Lopes Centre was the most appropriate facility for the foreseeable future. It was the only institution in Tasmania that would be able to offer and co-ordinate the comprehensive and long term therapy and care that the applicant requires. The treating team was committed to providing that therapy and care to him. He emphasised that transitions between contexts must be graduated seamlessly, and that stability is vital. The applicant's recent favourable response to treatment was promising, but adequate recovery and rehabilitation was dependent on a commitment to the provision of long-term, high quality, bespoke care.
Case manager Tracey Withers
Ms Withers is a case manager with Community Forensic Mental Health Service. She would have involvement in transitioning the applicant into the community and arrangements for leave. It would be part of her role, and also the role of the social worker, to work with service providers to assess the applicant's needs and to co-ordinate the provision of those services to ensure his needs were met. She noted the potential for funding under the National Disability Insurance Scheme. There would be an assessment of his needs, including treatment, accommodation, support in the community and vocational and educational options. She would be involved in having discussions with the NDIS to ensure appropriate funding was allocated. She would participate in reviews to ensure that his needs were being addressed.
Clinical Psychologist Mr Damien Minehan
Mr Minehan, Clinical Psychologist, provided a report dated 17 August 2017 as an updated assessment, but had not seen the applicant since June 2014. In the 2017 report he focussed on issues relating to "violence risk" having assessed the applicant's current risk profile. He noted that physical violence, threats of violence and other challenging behaviours were documented in the early years prior to his incarceration or in the first 5-10 years of his imprisonment.
Since then there has been a notable decline in many areas of the applicant's functioning, mental well-being and physical health. There has been ever decreasing instances of actual violence and threatened violence. The incidents have become less serious. The last violent incident was relatively minor and occurred during the 2009 admission to the Wilfred Lopes Centre when the applicant wanted to leave.
Mr Minehan did not regard the applicant as presenting a high risk to the community in terms of violent offending. The risk would be mitigated by "rehabilitation, support and a Guardianship and Administration Order".
In evidence, Mr Minehan agreed with Dr Kalnins that chronic post-traumatic stress disorder was the best diagnosis to describe the applicant's presentation.
He noted that the applicant's primary coping strategy when he sees no escape from a situation is to withdraw. The use of threats or aggressive behaviours is very much a last resort.
He agreed with Dr Kalnins' plan adding that the best way of managing risk was for the applicant to be an inpatient at the Wilfred Lopes Centre under the Mental Health Act, in the event the declaration was discharged. He agreed with Dr Hope as to the importance of building relationships between the treatment providers and the applicant.
He noted that the applicant has always articulated a sense of hopelessness about his situation and having the declaration lifted would address that sense and provide certainty that he will not be returned to the prison environment. If "his mental state improves and remains improved, his risk is lessened."
Psychiatrist Dr Michael Jordan
Dr Jordan is presently a psychiatrist with Forensic Mental Health Service. He was aware of the applicant from the period when he was Clinical Director of the Service from 2009 to 2016. His most recent report, dated 16 August 2018, predated improvements such as the occasion of leave in early September. He did not then have the benefit of Dr Kalnins' report. Dr Jordan stated that the Wilfred Lopes Centre provided the most suitable environment for the applicant's rehabilitation. He expressed hope that the applicant's transfer might allow escorted leave into the community in a controlled fashion. He noted the applicant showed a pathological indifference to partake meaningfully in rehabilitative processes. He noted that the applicant remains a significantly damaged, institutionalised and socially incompetent individual who is more than likely going to require ongoing institutional care for the foreseeable future. He added that from a clinical perspective it is most encouraging to see that the applicant is now housed at the Wilfred Lopes Centre and that it was his opinion that the venue will remain the most appropriate place for his ongoing rehabilitation in the upcoming years.
Dr Jordan was asked about the opinions expressed by Dr Kalnins in his report. He regards the diagnosis of chronic post-traumatic stress disorder as a reasonable diagnosis in the sense it provides a reasonable paradigm to approach the applicant's care needs.
In Dr Jordan's opinion the applicant suffers from a mental illness as defined by the Mental Health Act.
He agreed that the antipsychotic medication was appropriate, improving the symptoms of affect dysregulation and effective as a mood stabiliser. His understanding was that it was proving to be reasonably successful, and that the applicant would need to remain on that medication for years to come.
He agreed that the applicant meets the criteria for admission to the Wilfred Lopes Centre pursuant to s 63 of the Mental Health Act. There would be no debate about the existence of a mental disorder and that by reason of mental illness he is a danger to himself. He noted this pathway has been used before and there is precedent of civil patients being treated at the Centre, sometimes for long periods of time.
He noted the following plan would be implemented if the declaration was lifted: a treatment order would be sought to be made by the Mental Health Tribunal; then once the applicant is an involuntary patient at an approved hospital (Royal Hobart Hospital), an application would be made to have his treatment referred to the Secure Mental Health Unit (the Wilfred Lopes Centre is the only such unit in Tasmania), under s 63. A period of three months would be reasonable to allow paperwork to be prepared, orders to be sought and transfers to be arranged. It was noted that this will be a challenging time for the applicant and the period would allow time to prepare him for that.
He agreed that lifting the declaration would have a beneficial effect. The declaration has had a significant effect upon the applicant and at times crushed his ability to engage in rehabilitation.
He considered that any risk arising from the declaration being discharged would be soundly managed by the plan that has been outlined by Dr Kalnins. Dr Jordan elaborated further and explained that the applicant's risk of physical violence to others was now low. Even in the past it was a risk of lashing out against others, normally after significant provocation, rather than serious violence. That risk has reduced already. Any risk that might exist will be managed by the applicant remaining in the present environment. As mood dysregulation and other factors improve, his risk of any incidents of violence will be reduced as well. The intention is to keep him in the hospital setting for quite a few years.
Further recent progress
Ms Miller noted that recently "Jamie has really stepped up his engagement" involving walks outside the grounds of the Wilfred Lopes Centre. He has shown a commitment to engaging and he has discussed some goals for his future at the Centre, including mowing the lawns, wanting to do some cooking and moving over to the extended care unit. Ms Miller expressed the view that over the last few months the applicant has demonstrated more willingness to engage in the rehabilitation process with the treating team. It seems he has a sense of hope for his situation.
The applicant has been in contact with his mother and sister, who reside in Melbourne, and he has been telephoning them a couple of times a week.
Dr Hope was asked about the improvement in the applicant's engagement with therapy and staff and the reasons for that. He attributed three reasons: Dr Kalnins' decision to use medication to help calm the applicant, communication to the applicant from his treating team that he would not be sent back to prison, and the ongoing and improving coordination and approach to his care. That building of trust has been imperative and meant the applicant has felt safe enough to improve.
The hearing of the application to discharge the declaration spanned two days. On the night of the first day the applicant telephoned his father and had a conversation with him.
On the second day, his father attended court to support his son. The applicant called him as a witness.
Gregory McCrossen
Mr Gregory McCrossen gave evidence:
"And you had some contact with him last night? …..Yes, for the first time in a long time – well the first time ever that Jamie's phoned me – we haven't seen each other probably since the last court appearance in 2016, so I took that as a really positive effort on Jamie's behalf and I just wanted to let him know that I'm here to support him in any way I can and when the time comes for him to be released I'll be there to guide him and give him that family support. I've also got a brother who lives in Hobart and he's also very interested in Jamie, so I think that Jamie will have some family support when the time comes. You know, if Jamie's ready to accept help, which I believe he is now, I think that we can, over a period, successfully bring him back into society."
The applicant's contact with his father represents another significant step taken by the applicant towards rehabilitation.
The applicant's evidence
The applicant gave evidence a number of times at various stages of the hearing. He was not cross-examined.
He was dignified, respectful and courteous at all times. His evidence included:
"I am no danger to society…"
"I respect the Court …"
"I respect Mr Jacobs as a prosecutor …"
"I regret my actions, I should not have done what I did …"
"I can do more good outside of prison …"
"I've been locked up too long and I only have one life …"
He said he was not guilty, but he realised his mistake too late.
The applicant said that he has "been locked up too long" and "other people have done worse" and "it's not fair."
He told the Court that he has improved himself, playing chess, going for walks outside and going on leave. He would like that to continue. He has plans to mow the lawns at Wilfred Lopes and raise money and help other people.
During the hearing the applicant handed up three notes for me to read. The most comprehensive states:
"I would like to say that I deserve to be released and that I am not dangerous and I do not want to waste the courts valuable time. Too much time has already been wasted and I would like to get out there and do good deeds, like having a job and actually doing something. There is nothing dangerous about me, and I take the ……… that I am dangerous as an insult. I promise to get out and do good deeds. I am not perfect and I am the first to acknowledge that. However I cannot change that, but the time has come to move forward instead of backwards."
Discussion and conclusions
The State does not oppose the making of the order. As can be seen, I have the benefit of comprehensive medical reports and evidence from experts in psychiatry, psychology, occupational therapy and rehabilitation, experienced in their field and familiar with the applicant and his background. The experts are agreed on the following critical matters:
·The applicant has a mental illness involving a constellation of symptoms. These symptoms include periods of major depression, a personality disorder or significant personality dysfunction, mood dysregulation, features of institutionalisation, chronic problems with self-esteem, a sense of hopelessness about his life and his future, feelings of despair and unworthiness, against a background of trauma.
·The diagnosis which provides an appropriate paradigm for treatment is chronic post-traumatic stress disorder.
·The treatment approach identified by Dr Kalnins regarding medication and occupational therapy is appropriate.
·That if the declaration is discharged, the appropriate approach to take is the course recommended by Dr Kalnins at [53] involving mandated treatment under the Mental Health Act. Steps will be taken to seek the necessary authorisation from the Mental Health Tribunal so that the applicant receives treatment at the Wilfred Lopes Centre as a civil patient.
·The applicant's treating team are committed to this plan.
·It is agreed that as a civil patient the applicant will need years of stable treatment and therapy at the Wilfred Lopes Centre.
·There should be tailored, high quality care and therapy provided to him at the Wifred Lopes Centre.
·Ultimately, the applicant may be able to live in a supported residential environment suitable for someone with his needs and condition such as Millbrook Rise.
·It will promote his rehabilitation and offer a more flexible response to his rehabilitation needs for the order to be lifted.
I accept the weight of the evidence that I have heard that the principal concern about risk relates to the applicant's safety, rather than the safety of the public. There has been a decrease in the number of violent or volatile incidents and the severity of them; the most recent episode of aggression occurred approximately a decade ago and was relatively minor. His most recent assault offence was in 1999. His original offending and aggressive outbursts in the prison environment have given rise to concerns about impulsivity, rather than suggesting a propensity for serious acts of violence. He has been subjected to challenging and confronting situations earlier this year involving manhandling for the purpose of showering, and he did not respond with violence. Typically his reaction to difficult situations now involves physical withdrawal and disengagement.
The current plan no longer involves waiting for the applicant to voluntarily engage with treatment in circumstances where his constellation of symptoms is such that he likely lacks capacity to make rational decisions to do so. Instead it involves the relentless offering of support and building of trust.
The concerns about the potential for conflict in the community and risk involving instrumental violence, presented to Tennent J, have been more than adequately addressed. The Court is not faced with the prospect of him being released without any supports in place and not having engaged in occupational therapy and pre-release programs. The risk of conflict will not be significant given that that his release would not occur unless he was provided with appropriate housing and other supports, and given the role of the Public Guardian with regard to financial decisions. In addition, the availability of the NDIS scheme is to be explored and may provide a budgetary allocation commensurate with his complex needs.
The agreement of the experts as to the pathway under the Mental Health Act is highly significant. The mechanism for the applicant to remain at the Wilfred Lopes Centre to continue his rehabilitation as an involuntary patient under the Mental Health Act is as follows. The applicant is already subject to an authorisation to treat pursuant to s 88 of the Act to enable medication to be administered as recommended by Dr Kalnins. Once the applicant ceases to be a forensic patient under the Mental Health Act the authorisation is taken to be a treatment order: s 90. There would then be an application to vary that order to require the applicant's detention in an approved hospital, in addition to the requirement regarding medication. Once such a treatment order was in place, the applicant would be transferred to the Royal Hobart Hospital and detained. An application may then be made pursuant to s 63 of the Mental Health Act for him to be transferred as a civil patient to the secure mental health unit, the Wilfred Lopes Centre. The criteria to be taken into account by the Tribunal for the making of an order under s 63 are not materially different to the criteria for the authorisation to treat that is already in place. My attention was drawn to the criteria under s 63, and, in particular, that the Chief Forensic Psychiatrist is to be satisfied that the patient is by reason of mental illness a danger to himself or herself or to others, s 63(2)(d)(i), and further, that a secure mental health unit is the only appropriate place where the patient can be safely detained, s 63(2)(d)(iii). The evidence of Dr Kalnins and Dr Jordan is that the applicant would meet the necessary criteria under s 63 for the making of a treatment order. Furthermore, the evidence clearly demonstrates a commitment on the part of the treating team to follow this course. From a legal perspective, it is clear that the availability of a pathway under the Mental Health Act informs the question of whether the declaration is no longer warranted: Chester v The Queen (above) at 617-618.
Finally, there are promising signs that the approach taken to treatment will be successful. The applicant is engaging with clinicians, and recent gains that the applicant has made were not envisaged just a few months ago. The applicant's response is very encouraging, including the steps he has taken to communicate with his family and visit his grandmother's grave. I accept that there are sound grounds to consider that the applicant will continue to make further significant progress in the environment of the Wilfred Lopes Centre.
I accept that the test of whether the applicant has shown that he would not pose a constant danger to the community if the order were discharged has been satisfied. The therapeutic and treatment response outlined by Dr Kalnins, including mandated treatment under the Mental Health Act, and agreed to by the multi-disciplinary team, manages any residual risk, and the applicant's indefinite detention is no longer warranted.
It is contended that it would be appropriate that I make an order under s 21(10) of the Sentencing Act that the discharge of the declaration not take effect until some time is allowed for preparatory work in relation to proceedings for orders under the Mental Health Act. In the interim, rehabilitation and occupational therapy will continue and the applicant will be prepared for the process of being transferred to the Royal Hobart Hospital which otherwise, may be destabilising. These steps qualify as pre-release programs for the purpose of the section and I will defer discharge for a period of two months and two weeks.
Observations and concluding remarks
I wish to add some observations in case that may be useful.
There were difficulties in the applicant being transferred to the Wilfred Lopes Centre. It took three months and delayed the applicant's hearing. The transfer was essential for an assessment and in order for his case to progress. His treating psychiatrist informed the Court throughout this period that his condition was deteriorating and he needed to be transferred. The time he spent on the waiting list unable to be transferred, notwithstanding psychiatric opinion that it was necessary for his court case and that his health was compromised, was worrying.
The High Court has called indeterminate detention stark and extraordinary punishment. The applicant's case exemplifies that description. He has spent 26 years in custody because of the declaration. The length of time is Dickensian.
When the applicant said in evidence that it is not fair and he has spent more time in prison than other people who have done worse things, there was nothing that could be said. It is true.
What this case has demonstrated is that the indeterminate nature of the sentence was in itself crushing and counterproductive in terms of the applicant's rehabilitation. Since there has been talk of the order being lifted, the applicant has made significant progress in a short time. To offset these crushing effects, a prison system would have to be vigilant and have a committed and co-ordinated approach to an individual's rehabilitation. Questions may be asked about whether more could have been done from the beginning by the prison system to promote the applicant's rehabilitation in a committed way which recognised the applicant's profound difficulties and mental health condition. His potential for reform cannot be doubted, noting the marked significant improvement away from the prison during his admissions to the Wilfred Lopes Centre, particularly in 2009.
In addition to the remarks of Tennent J at [13] regarding the legislative framework, I would add the following. The legislation that allows for no periodic review or obligation on the State to justify the continuing detention, carries wide implications, beyond the individual prisoner. As the High Court said in R v Chester (above) one of the reasons why indeterminate detention is stark and extraordinary punishment is because it violates the principle of proportionality that punishment should be commensurate with the offence committed. As the applicant has adverted to, it also leads to inconsistency. Consistency and proportionality are hallmarks of justice. The absence of safeguards comes at a great potential cost not only to individuals, but to our society, measured by how it treats its most disadvantaged citizens.
The Tasmania Law Reform Institute recommended in July last year that the Sentencing Act be amended to provide for periodic review: Tasmania Law Reform Commission, A Comparative Review of National Legislation for the Indefinite Detention of 'Dangerous Criminals', Research Paper No 4, (2017) at [7.1.10]. It is noted that in Tasmania an offender "may remain incarcerated until such time as she or he initiates the review process" [7.1.8]. It is also recommended that the Act be amended to provide that the prosecution bears the onus of proof on an application for discharge and periodic review of a dangerous criminal declaration [7.1.9].
The final observation that I would wish to mention is that inherent in the legislative framework, is the potential for a Catch 22. Factors which may be conducive to a prisoner not initiating an application for discharge are many personal and situational factors including mental health issues such as depression, low self-esteem, despair and hopelessness. It is well documented that a large percentage of prisoners have mental health difficulties. As we have seen, these symptoms are compounded by an order for indeterminate detention which has the potential for long term incarceration, stigmatisation and the prisoner being institutionalised.
It has been my privilege to be the presiding judge in this case, to make the order which is sought and which, given the thorough reports and the dedication and commitment of the applicant's treating team, is now inevitable. I have been assisted by Ms O'Connell who has provided the Court with recommendations as to the applicant's participation in the process, and kept the Court appropriately informed at directions hearings. I have been ably assisted by counsel for the applicant; the respondent's counsel has been most fair in his conduct of the hearing.
While privileged today to make this order, I am troubled that tomorrow I may be confronted with a case that, given the current legislative framework, may see history repeated.
Order
I am satisfied that the declaration made by Green CJ on 18 January 1991 that Jamie Gregory McCrossen be declared a dangerous criminal is no longer warranted for the protection of the public. I order that the declaration be discharged, but that the discharge is not to take effect for a period of two months and two weeks, the date being 14 December 2018.
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