McCrossen v Tasmania - [2018] TASSC 49

[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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading McCrossen v Tasmania

Details

AGLC: McCrossen v Tasmania [2018] TASSC 49
Case: [2018] TASSC 49
Decision Date: 4 October 2018

CaseChat Overview and Summary

In the case of McCrossen v Tasmania, the appellant, Mr. McCrossen, sought to have a dangerous criminal declaration made against him discharged. The declaration had been made under the Sentencing Act 1997 (Tas). The dispute hinged on whether the risk of Mr. McCrossen committing acts of violence had been sufficiently mitigated by mandated mental health treatment, rendering the declaration unnecessary for the protection of the public.

The court was tasked with determining whether the criteria for maintaining the declaration had been met, specifically whether Mr. McCrossen remained a danger to the public. The central legal issue was whether the appellant's current mental health treatment and reduced risk of reoffending justified the discharge of the declaration. This involved assessing the evidence of the appellant's current risk level, the effectiveness of the mandated treatment, and the potential impact on public safety if the declaration were discharged.

The court found that the appellant's risk of committing violent acts had been significantly reduced due to ongoing mental health treatment. The evidence demonstrated that the appellant's compliance with treatment and the resultant stability in his mental health condition meant that the risk of reoffending was minimal. Consequently, the court concluded that the declaration was no longer warranted for the protection of the public. The court's decision was based on a comprehensive assessment of the appellant's current circumstances, the effectiveness of the treatment, and the low likelihood of future violent behaviour. As a result, the declaration was discharged.

Orders