McCrossen v The Queen
[2016] TASSC 3
•28 January 2016
[2016] TASSC 3
COURT: SUPREME COURT OF TASMANIA
CITATION: McCrossen v The Queen [2016] TASSC 3
PARTIES: McCROSSEN, Jamie Gregory
v
THE QUEEN
FILE NO: 1247/2013
DELIVERED ON: 28 January 2016
DELIVERED AT: Hobart
HEARING DATES: 4, 16 December 2013, 24 February, 16 April, 5 June, 22 July, 1, 25, 26 September, 10 October, 8 December 2014, 12 May, 3, 5 June, 20 July, 13 August 2015
JUDGMENT OF: Tennent J
CATCHWORDS:
Criminal Law – Sentence – Sentencing orders – Orders and declarations relating to serious or violent offenders or dangerous sexual offenders – Dangerous criminal – Application to discharge dangerous criminal declaration – Factors to be taken into account.
Sentencing Act1997 (Tas), s 20.
Chester v The Queen (1988) 165 CLR 611; Read v The Queen (1997) 94 A Crim R 539, referred to.
Aust Dig Criminal Law [3357]
REPRESENTATION:
Counsel:
Applicant: K Cuthbertson
Respondent: A R Jacobs
Solicitors:
Respondent: Director of Public Prosecutions
Judgment Number: [2016] TASSC 3
Number of paragraphs: 56
Serial No 3/2016
File No 1247/2013
JAMIE GREGORY McCROSSEN v THE QUEEN
REASONS FOR JUDGMENT TENNENT J
28 January 2016
These reasons relate to an application pursuant to the Sentencing Act 1997 ("the Act"), s 20, by Jamie Gregory McCrossen ("the applicant") for the discharge of a declaration made pursuant to what was then the Criminal Code, s 392, that the applicant was a dangerous criminal. That order was made on 18 January 1991, over 25 years ago. Save for the existence of the declaration, the applicant would have been entitled to release from custody after serving sentences, at the latest, at the end of 1992.
The application for discharge was filed with the Court on 25 September 2013. Section 20(3) provides that the 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. That level of satisfaction is required at the time any order of discharge is made.
Background
The applicant was born on 3 December 1971 and is now aged 44. He is single and has no dependants.
On 18 January 1990, the applicant was 18 years old. He entered an antique shop. He pointed an antique pistol at the female proprietor, holding it about a foot from her face. The lady believed she was going to be shot. She screamed and grabbed at the pistol. She struggled with the applicant, and, in the course of that struggle, the applicant hit the female to the head with the pistol causing a wound. The applicant then ran from the shop. The applicant was initially charged with attempted armed robbery. That charge was however not proceeded with after discussions between counsel, and the applicant was instead charged with one count of assault and one count of wounding. The applicant pleaded guilty.
At the time the applicant appeared for sentence, he already had a history with the courts. On 29 July 1985, the applicant was dealt with in the Children's Court on charges of robbery with violence and demanding property with intent to steal. He was made the subject of a supervision order for 12 months. The offences had been committed in May that year when the applicant was 13 years old. On 21 July 1986, the applicant was convicted of an attempted burglary, aggravated assault and stealing committed in December 1985 and January 1986. He was made a ward of the State. On 18 August 1986, the applicant was convicted of an assault which had been committed in January 1986, a few weeks before the one for which he was convicted in July. He was re-declared a ward of the State.
On 10 November 1988, the applicant was convicted of burglary and stealing and fined. That offending occurred in September 1988. On 25 November 1988, the accused was convicted of four counts of burglary and three counts of stealing. He was fined and a probation order made. On 26 April 1989, the applicant was convicted of aggravated assault which was committed on 9 December 1988 and sentenced to 18 months’ imprisonment to date from December 1988. On 21 September 1989, the applicant was convicted of a burglary and stealing committed on 8 December 1988. He was sentenced to serve four months’ imprisonment and a probation order was made to commence on his release from custody.
I have no accurate information as to when the applicant was released from custody after serving the sentences imposed in 1988 and 1989. However I can infer that he was out of custody by 18 January 1990 and that he had not been out long. On 4 June 1990, following the applicant's plea of guilty to assault and wounding, his counsel made a plea in mitigation. That plea contains detail which gives an insight into the applicant's life prior to the offending on 18 January 1990. It was as follows:
"…
Sir, the accused, Jamie Gregory McCrossen, is a man aged eighteen, his birth date being the 3rd of December, 1971. Sir, the accused has a low self-esteem and a degree of personal self-pity, which, from time to time, from my own assessment of him, develops to a moroseness. Sir, the common theme that appears to attend this accused, with his anti-social behaviour, is his own feelings of inadequacy and his desire for attention, and sir, I can indicate to the court that I've been benefited from a lengthy discussion with the accused's father, who is in fact in the court, indicating the problems that Jamie has had as a child – or had as a child. And, sir, it is for that purpose that I would seek to deal with Mr McCrossen's background at some length, as it provides a framework in which Jamie's behaviour can be understood. And sir, it's a framework which, in my submission, shows a deprived childhood and one where Jamie has battled with an incredibly difficult speech impediment which makes his social interaction quite difficult. As a result, sir, often suggestions that are put to him are accepted by him, to save him from having to give an explanation and then seeking to take instructions, it took quite some considerable time to obtain them because of Jamie's readiness from time to time, just to accept what was being put to him, rather than providing a detailed explanation.
Sir, Jamie is the only child of the marriage of his parents, which lasted for approximately four years, his parents, having married young, with Jamie being born shortly after the marriage. Sir, when the marriage ended, Jamie remained living with his mother for some years. However, due to the squallor and lack of care, his father commenced looking after Jamie. His father has a highly respectable job within the state public service and has committed his life to Jamie ever since, to assist him.
Sir, at first Jamie's school was changed: from the public school system to the private school system, and the cost of that was funded by his father, whilst Jamie was still living with his mother. By the end of grade 6, Jamie was doing well and was considered to be an above average pupil. At that time, sir, he was attending St Aloysius Primary School, and sir, as an aside I can indicate that at the time, towards the end of his primary schooling, Jamie's father, who lived in West Hobart, would drive Jamie to St. Aloysius School every morning, arrange for him to be looked after after school and would pick him up again after school, and that was done to ensure that Jamie didn't have to change primary schools.
Sir, after primary school, Jamie attended St. Virgil's and he was unfortunately required to leave that school. The circumstances surrounding that, refer to the first two prior convictions that are disclosed on the prior conviction list that is before Your Honour. Jamie had disliked the school, but suggestions or proposals to him that he change school, were not accepted by Jamie. And what occurred, sir, with those first two convictions, was that he held up a corner store of the father of a fellow student or pupil, so Jamie was well known to the person concerned, and as soon as Jamie was told to go, he left.
And if I can quickly digress, Your Honour, that, seems to be the situation with all these offences, that as soon as Jamie is confronted, he will try and do everything to extricate himself and run away, and my instructions are, sir, that those first two convictions relate to the holding up of a corner shop, and of course, it was an impossible situation for Jamie to remain at St. Virgil's, being in the same class with the son of the shopkeeper. As a result, Jamie left and he was then placed with the State Education Department in Wentworth Special School on the eastern shore and he progressed relatively well there until he attacked one of the teachers. And this unfortunately led to Jamie being refused then education. In 1985, he was charged with a series of criminal matters and on Doctor Fernando's recommendation, Jamie was placed in the Royal Derwent Hospital for approximately twelve months. From there, he went to Ashley Boys' Home. Whilst at Ashley, he completed grade 9 of high school and he was then placed at a school and nearly completed grade 10. During that time, doing grade 10, he was also placed with a private family. However, it appears, sir, that he could not contain himself, given the freedom that he received living with this private family, and as a result, sir, other offences occurred and in particular, sir, the one that was dealt with in the – I believe the Delor — yes, the Deloraine Childrens Court.
Sir, he was later placed with a woman living by herself in Hobart and what occurred, sir – Mr McCrossen's father had gone to Adelaide for the purposes of a conference and whilst out of the state, the department that was looking after Jamie, for whatever reason, considered it appropriate to send him on a bus to live with this lady, a Mrs C. She was a woman living by herself and that unfortunately, sir, was not a very helpful thing to have happened to Jamie, because as soon as he arrived in Hobart by himself to live with this Mrs C, the charge for which he has done a period of imprisonment that Mr Perks referred to, being the charge of attempted rape as well, the aggravated assault, sir, of the 26th of April, 1989, relates to that unfortunate incident.
Sir, last year – I should say, sir, that whilst Jamie was at Ashley, he did receive regular visits from his father and he would take him out from Ashley for the purposes of visits.
Sir, with Jamie's impending release from gaol, Jamie's father considered it may be of benefit to Jamie to have an interest and, therefore, bought a house in which Jamie could live. Now, Jamie had difficulties with that and, therefore, his father lived part-time with his son helping him to establish himself and half time back at his normal place of residence. He also had organised for Jamie's step brother to come over from Melbourne to try to live with Jamie in the house so that there might be some assistance in Jamie remaining in the house. Unfortunately, sir, as you've heard, he was released on the 7th of December, 1989, and by the 18th of January he was back in custody, and therefore the step brother never came across, although it had been anticipated that he would shortly arrive.
Sir, my instructions are that Jamie's father did try to assist Jamie with getting used to people, and tried to take him out to social settings, but Jamie never liked them at all and was always eager to basically be by himself or just in the company of one other person, and my instructions are, sir, that going for walks with his father was enjoyed, but being in a large group of people, let's say like at an hotel, was something that Jamie did not like at all.
Sir, prior to moving on to the circumstances surrounding the events, I would, with respect, seek to tender to you a report from Mr Ian Sale, a psychiatrist, and also a report from the Royal Derwent Hospital, which – respectively dated 4th of April, 1989, and 2nd of July, 1986. Those reports, sir, were kindly made available by Gunson, Pickard and Hann, who had obtained them for Mr McCrossen's previous court — the court appearance, sir, in April of last year, 26th of April, 1989.
Sir, I would seek to draw specifically to your attention, page 6 of Doctor Sale's report and undoubtedly on the photocopy, the paragraph that I would seek to draw Your Honour's attention to, would be marked with the line down the right hand side. And it says: 'It would be my opinion that his personality development has been extremely abnormal and his personality irrevocably damaged, that is, he suffers a personality disorder. He is ill-equipped to deal with inter-personal relationships and is likely to lack the basic living skills necessary to cope with a non-institutional life. It is unlikely to be a coincidence that almost immediately after discharge from an institution, a series of events occurred leading to a return; and that, sir, seems to be in a nutshell, the unfortunate situation with this accused.
Sir, he suffers – well, looking at him, sir, one can see that he's not a man of extreme physical build and indeed, the reports refer to a dystrophy that he has in relation to his muscular development, and the family background and history is set out in great detail by Doctor Sale in his report, and I would, with respect, Your Honour, refer you to that.
The report from the Royal Derwent Hospital, sir, is approximately three years earlier in date, but sets out the situation as well as to why he presented and some of the observations and difficulties that Jamie encounters.
Sir, after Jamie's release from prison, which was on the 7th of December, 1989, Jamie did move into the house that his father had bought him, but after living there for approximately four to five weeks, he decided that he didn't want to live there anymore and, therefore, moved out to this boarding house. It was, however, agreed that when that week's rent would be finished, Jamie would move back home. Unfortunately, sir, these events intervened. The situation, on my instructions, is, sir, that Jamie had first made contact with the lady in the antique shop for the purpose of buying blankets and a few odds and ends, for setting up his new flat. Jamie did have money in his bank account for that. And indeed, my instructions are, that he had approximately six hundred dollars in a bank account at the time of this offence. My instructions are, sir, that when he first made a purchase at the shop, he spoke to the lady and she gave him too much change, as a result of which he pointed that out to her and she thanked him for it. Then the next day he went into the antique shop again, on my instructions, and had a discussion with her about the possibility of her buying an antique pistol, he having bought that from another dealer some short time prior to it. Jamie McCrossen was told by the dealer from whom he bought the antique pistol, that it was a pistol that would not fire and it would not operate, so he bought it on that basis. In his discussion with the lady from the Anchorage Antique Shop, the complainant in this matter, she indicated, sir, that she was not aware of the value of pistols but she had friends who might be able to assist and for him to bring it back at another time. My instructions are, sir, that that was the purpose of him taking the pistol to the shop that afternoon. Previously, sir, he had in fact left his name and address with the lady in the shop.
Sir, he says that he went into the shop again to have a look, not so much for blankets but a quilt cover, but they were at the same place as the blankets, and as Mrs Christiansen was leaning over – he doesn't know what overcome him or why – but he accepts, sir, that he pointed the pistol at her. She then screamed, and on my instructions, simultaneously grabbed the pistol and a short scuffle ensued. He hit her on the head during that scuffle. He instructs me, sir, it was not – it was struck to enable him to be freed so that he could run away. And as I said to Your Honour earlier in the plea in mitigation, it seems to be a situation with this accused, that as soon as he's confronted, he will run away and his physical prowess, sir, with respect to him, can be seen just with him seated in the dock.
Sir, in my respectful submission, and as was very fairly put by the Crown Prosecutor, Mr Perks, the actual wound was a simple one centimetre laceration and was, in my respectful submission, at the lower end of the scale of wounds that might come before this court.
Sir, to summarise, it would be fair to say that this accused comes from a deprived background and has serious speech and resultant personality problems. The assault, for whatever purpose it was intended, was undertaken with an instrument incapable of any other harm. It was taken there for an honest purpose, namely, to have it valued with the possibility of its re-sale. He had previously given the lady his name and address and therefore, sir, it would be appropriate to submit – and my instructions confirm that – that this offence was not one which was premeditated. One would imagine that if it was premeditated, the giving of the name and address and making oneself known by two previous visits, would not be appropriate.
Sir, as soon as the accused was challenged he sought to flee from the scene. Sir, when the accused was apprehended by the police, he had only been out of custody for a very short period of time, approximately - exactly one month and eleven days. He has been in custody, Your Honour, ever since the 18th of January, 1990. The reasons for the delay in this matter coming to a conclusion, is due to the fact of the initial Indictment that was filed, and then the negotiations between the Crown and the accused's legal representatives to try and resolve the matter in a way that was appropriate both from the Crown's point of view with the responsibilities it has, and also from the accused's point of view.
In my respectful submission, sir, the court has a difficult task in dealing with this accused because he appears to be, sir, at the crossroads; he's now an adult, he's aged eighteen years. He has had a substantial part of life in institutions, and given Doctor Sale's report that I respectfully draw your attention to, there seems to be a very real difficulty with Jamie living outside an institution.
Sir, Mr McCrossen senior, who is in the back of the court, has indicated to me as recently as Saturday, his willingness to do everything possible to help Jamie re-establish himself or – possibly that's even incorrect to say 're-establish' – to establish himself within the community and do everything possible so that Jamie might become a more useful member of the community.
Sir, it would appear that Jamie is at the crossroads of either being rehabilitated or living the rest of his life in an institutional environment. If Your Honour pleases."
Before sentence was passed, the sentencing judge had the benefit of a psychiatric report dated 20 June 1990, a psychiatric report dated 2 July 1986 and a pre-sentence report from 1986. On 26 June 1990, the applicant was sentenced to 18 months' imprisonment to date from 19 January 1990. There was also an order that he be afforded such treatment as may be recommended by Dr Lopes, the then prison psychiatrist.
It is very clear from the reports and plea in mitigation that the Court was then dealing with a young man with physical and mental difficulties and who was significantly lacking in an ability to live in the community unassisted.
About two months after he was sentenced, the applicant wrote two letters to the female whom he had assaulted and wounded in January that year. The second was intercepted. However in the first the applicant threatened to kill the lady. He was subsequently charged with attempting to commit the crime of threatening to murder and pleaded guilty. On 18 January 1991, as a consequence of an application by the State, the applicant was declared to be a dangerous criminal. He was not at the time actually sentenced for the crime he committed. The Court had the benefit of a further psychiatric report. At the time that declaration was made, the applicant was 19 years old.
In 1997, the Court dealt with an application by the applicant to be sentenced in relation to the crime of threatening to murder. On 4 March 1997, Underwood J (as he then was) sentenced the applicant to a period of 12 months' imprisonment to commence from the expiration of the sentence imposed on 26 June 1990. His Honour indicated at the time that the applicant was therefore eligible to make the type of application he now has.
The present application
The applicant has been represented throughout these proceedings. Notwithstanding that, the matter progressed very slowly. In August 2014, Mr Damien Minehan, a forensic and clinical psychologist who had previously dealt with the applicant within the prison environment, wrote a report in relation to him. That was supplied to the Court. As a consequence of some comments made by Mr Minehan in that report, it was recognised that, if the applicant were to be released from custody, he needed to have extensive support and preparation. Eventually, at my suggestion, a conference was conducted on 7 November 2014, convened pursuant to the Act, s 22. As a result, the applicant's application was adjourned for some months to enable programs to be put in place for him which might aid ultimate release. Subsequently, orders were made for the preparation of reports by Corrective Services and Forensic Mental Health to address the applicant's progress with steps put in place by those bodies. The Court was provided with a report dated 18 June 2015 from Dr Michael Jordan and a report dated 2 June 2015 from the Case Co-ordination Unit of the Tasmania Prison Service.
In dealing with this application, it has been recognised that the Court has to be satisfied at the time any order might be made that the original declaration is no longer warranted for the protection of the public. Even though the Act provides that, if an order is made, the date upon which it is to take effect may be postponed to enable pre-release programs to be put in place, the Court still needs to be satisfied about the issue of risk to the public before any order may be made, and cannot make an order in the hope that a pre-release program to be completed after the order is made might remove any risk. Further, the Act does not allow the Court to make any type of conditional order which could perhaps be revoked were conditions breached. The order foreshadowed by the legislation creates an all or nothing situation. In my view, the legislation relating to applications such as this is unrealistic and promotes the continued incarceration of people who might, with assistance, be perfectly inoffensive members of the community were they given the opportunity.
The evidence presented
The applicant gave no oral evidence. His counsel however put before the Court the following material:
· A record of the applicant's prior convictions.
· The decision of this Court pursuant to which the declaration was made on 18 January 1991.
· The decision of Underwood J by which the applicant was sentenced to a finite term made 4 March 1997.
· A psychiatric report of Dr Ian Sale dated 4 April 1998.
· A psychiatric report of Dr Wilfred Lopes dated 15 January 1991.
· A forensic psychological assessment by Damien Minehan dated 31 August 2014.
· A forensic mental health report of Dr Michael Jordan dated 18 June 2015.
· Report by Norman Alexander from the Tasmania Prison Service dated 2 June 2015.
· Letter from Katherine Ibbot, Corrective Services Division, Tasmania Prison Service dated 13 May 2015.
· Letter from Brian Edwards, Corrective Services Division, Tasmania Prison Service dated 5 June 2104.
Only Mr Minehan and Dr Jordan gave evidence. The Crown did not present any evidence.
The application of the applicant was hand-written and provided as follows:
"I am remorseful for my actions and i do not think that i am a danger to society if i ever was. I do not want to get out for myself, but i would like to get out to care for my grandmother who is 91 years old. obviously i do not expect this application to be unopposed as i am sure that the director of public prosecutions is aware of my past history. However that does not really worry me as i am confident that my application will be successful. There has been untold millions of dollars wasted on keeping me locked up in prison. I am sure that it is in everybodys best interest to put an end to the waste. If the court orders me to leave the state of Tasmania, and go to another state or territory i will.
But i would prefer to stay in this state as i have family here and it would be more convenient for me. I am not insane or have any mental health issues so i cannot see if any of that is realvant to the application. If this application is unsuccessful i will die in prison as I will not be making another one.
Application for discharge of dangerous criminal declaration on 18th January 1991 the applicant, Jamie Gregory McCrossen, was ordered by the Supreme Court of Tasmania to be detained at the Governor's pleasure with no finite sentence on one count of attempting to threaten to commit murder.
At the time of sentencing the applicant was also the subject of a 'dangerous criminal' declaration under section 392 of the Criminal Code Act as it was then.
On the 4th March, 1997 on application made by the applicant, the Supreme Court of Tasmania, changed the sentence of Governor's pleasure to 12 months imprisonment.
There fore from the 4th March 1997, the applicant was held in detention only because of the dangerous criminal declaration, as the 12 month sentence [illegible] or in 1992.
The applicant is 41 years old and as a result of his incarceration which is almost 24 years, he is in poor health.
The applicant does not think he has all that long to actually live, and would like to die outside of prison.
Applicant does not deny he has led a [illegible] life, but he can not change the past and has no intention of trying.
If the applicant's application is unsuccessful, he will die in prison as there will not be another application by him to be released.
If applicant is ordered by the Supreme Court of Tasmania to leave the State of Tasmania as a condition of his release he will do so, if any of the mainland States want him.
Signed by the applicant Jamie Gregory McCrossen."
The evidence of Damien Minehan
Mr Minehan is a very experienced psychologist who, while now working essentially in a private capacity, previously worked extensively in the Forensic Mental Health Service. In his report Mr Minehan said he interviewed the applicant for the purpose of it on 24 May 2013. That date appeared more than once in his report and was not corrected in his oral evidence. I have proceeded on the basis that the interview occurred on 24 May 2014, because Mr Minehan was not instructed by the applicant's counsel to prepare the assessment the subject of the report until January 2014. Mr Minehan had some personal knowledge of the applicant prior to that interview through contact with him within the prison system between 2001 and 2006. He also had regard to prison and prison hospital files and a number of historical police and other statements.
Mr Minehan outlined that he was employed at the prison in what was then the prison hospital between 2001 and 2006 and that the applicant was housed there for the vast majority of that time. While he did not have regular clinical contact with the applicant, Mr Minehan interacted with him in passing and was involved in case discussions relating to him. After that period, Mr Minehan had seen the applicant twice, once in his role as Senior Psychologist, and the second in relation to an assessment, similar to that which he was conducting, by Dr O'Donnell in 2008. Mr Minehan's 2014 report was conducted in consultation with Dr O'Donnell.
Mr Minehan began his report by saying that it was striking how much the applicant appeared to have aged, and noted the applicant's general physical deterioration since he had last seen him. He noted the applicant had a debilitating stutter, and was at times difficult to understand. Given that difficulty, Mr Minehan provided the applicant with a document, in which a number of questions were asked about his family contacts, where he would live on release, how he would handle reintegration into the community and other issues. The applicant was asked to take his time in writing his responses and to return the documents when completed. Despite repeated prompts, the applicant did not return the documents, reportedly saying, "it was too hard to answer".
Mr Minehan went on in his report to deal with a number of matters. While the material is lengthy, it is useful to set out what he said at pars 20-81:
"20 Mr McCrossen is a 42 year old man who was declared a Dangerous Criminal on 18 January 1991 by then Chief Justice Green. He has been housed at Risdon Prison since this time. During this period he has spent a large period of time in 'N' Division (segregation unit in the former prison), the prison hospital, Mersey Unit and the crisis support unit. There have also been admissions to the Wilfred Lopes Centre, the last of these in 2010.
21He was subject to numerous punishments and segregations within the prison environment and responded either with long periods of isolation and minimal communication or occasional aggressive outbursts. These outbursts were usually preceded by actual taunts from others or perceived slights, usually relating to his speech or intellectual capacity.
22At the time he was interviewed for this assessment he had progressed to Medium Security and has remained there for over 12 months.
23Mr McCrossen has been the subject of a number of psychiatric and psychological assessments including those by Dr Ian Sale, Dr Wilfred Lopes, Dr Patrick Fernando and more recently by psychologist Dr Georgina O'Donnell.
Background History
24The following historical information was collated from the previously described sources. Mr McCrossen has spent his adult life incarcerated in Risdon Prison since the age of 18. He has largely been housed in an institutional setting, including an extended period at Ashley Youth Detention, since 14 years of age.
Family and Relationships
25Mr McCrossen's childhood has been well-documented as traumatic, and characterised by neglect and abuse. Dr Sale referred to it as 'a background of almost indescribable deprivation' (p5 psychiatric report 4th April 1989), and went on to state that Mr McCrossen's difficulties 'have been compounded by such factors as the failure or inability of welfare authorities to effectively protect Mr McCrossen and his brother during their early years.'
26Mr McCrossen is the middle child of three siblings, all born to different fathers. It has been reported that Mr McCrossen was the victim of, and witness to, 'extreme' domestic violence. His father left the family home when Mr McCrossen was a child, and he and his parents have reported that his severe speech impediment started when he reacted with distress to his father's departure. This has tended to suggest that his communication difficulties are at least in part due to childhood psychological trauma.
27Mr McCrossen's mother reportedly had considerable difficulty caring for the children on her own, and significant problems ensued. Mr McCrossen was apparently subjected to a squalid and filthy home environment, lack of parental supervision and severe neglect, and he accompanied his mother while she shoplifted. His mother reportedly had mental health difficulties at that time. Mr McCrossen went to live with his father in 1980 after living for three years in these conditions with his mother, but by then he was experiencing severe psychological and physical problems. Mr McCrossen's difficulties apparently worsened when he progressed to secondary school and faced numerous challenges there, and his father became increasingly involved in his work and less available to provide help and support. A placement with his grandparents reportedly provided some encouraging results, however Mr McCrossen's behaviour resulted in him being declared a Ward of the State as an adolescent.
28Mr McCrossen's mother has remained in sporadic contact with Mr McCrossen over the years. According to Dr O'Donnell's previous assessment, Mrs McCrossen now lives interstate. At that time, in 2008, Mrs McCrossen was reportedly in poor physical health with multiple medical conditions.
29Mrs McCrossen reported that she and her children remain supportive of Mr McCrossen, and that they would offer assistance to him if he was released from prison, albeit potentially limited due to their own responsibilities and commitments interstate. Mr McCrossen's siblings Scott and Elizabeth also reside in Victoria and reportedly travelled to Tasmania to visit him in 2007, but he refused their visit due to anxiety. Mr McCrossen's sister was quite young when living with Mr McCrossen, and thus has never had the chance to get to know him.
30Mr McCrossen has a conflictual relationship with his father, and they have not been in contact for several years. Early reports suggest that he idolised his father, but has felt rejected and abandoned by him. The nature and intensity of this perceived rejection has seemingly had significant negative implications for Mr McCrossen's capacity to form relationships and he continues to feel threatened by forming emotional attachments, engaging in social withdrawal or acting out to push people away.
31There has seemingly been one relationship that he has consistently trusted. Mr McCrossen's most positive and bonded relationship is with his grandmother, who lives locally and is now aged in her nineties. He has consistently expressed his desire to see her and have the opportunity to spend time with her. He recalled that his best times in childhood were when he was living with her.
32Mr McCrossen's grandmother was interviewed by Dr O'Donnell in 2008. She spoke very fondly of him, and was quite protective of him in the context of the trauma and abuse he has experienced during his life. Given his severe speech impediment, Mr McCrossen avoids telephone contacts which he finds frustrating and distressing.
33Mr McCrossen has established tentative friendships with other people in custody however he tends to be socially isolative. His social behaviour tends to be cyclical, in that he engages in periods of social interaction with staff and prisoners characterized by good humour and practical jokes, interspersed with periods of marked social withdrawal and isolation. There were times in the early stages of his incarceration when Mr McCrossen did not communicate with anyone for months on end. These episodes have diminished in frequency and duration, however in recent years he has still had days where he has isolated himself from others, and requested to be alone. He appears to be a sociable individual however his sensitivity to interpersonal stressors resulting from past trauma has resulted in avoidant coping strategies.
34He has never had the opportunity to have adult intimate relationships outside of an institutional setting. There has been some suggestion that Mr McCrossen has been the victim of sexual assault in the past, however he has denied this to be true. He has grown up in institutional environments that are not conducive to healthy sexual development. He has been observed to engage in disinhibited sexual behaviours at times in the prison environment (eg, openly masturbating and naked posturing in his cell, and inserting objects into his anus). Although elements of sexual intent have been raised during court proceedings relating to the offences he committed against two middle-aged women as a teenager, he has not been convicted of sexually offending against a person in the community or in prison.
Educational & Occupational History
35 Mr McCrossen initially ceased formal education at age 13 after specialist assessments found that he could not cope with the emotional demands of a school environment. It has been documented that he was the victim of bullying, and was extremely frustrated by his severe speech impediment and the impact it had on his communication with teachers and peers. Specialist education and intervention programs were recommended by child psychiatrist Dr Patrick Fernando.
36 However, within months of Dr Fernando's assessment, Mr McCrossen was instead admitted to the Royal Derwent Hospital after having difficulties at his Wybra Hall placement following being declared a Ward of the State. The admission is quite controversial in retrospect, as Mr McCrossen was a fourteen year old boy accommodated in an adult secure mental health facility, co-habiting with adults experiencing the State's most severe mental and behavioural disturbances in a secure setting for almost a year. According to Dr Sadler's report, Mr McCrossen did successfully engage in some distance education and speech therapy during the admission.
37 During his adolescent years, Mr McCrossen transitioned from the Royal Derwent Hospital to the Ashley Youth Detention Centre and then to Risdon Prison. He reportedly completed grade ten secondary school studies via Deloraine High School when he was residing at Ashley. Mr McCrossen has been offered numerous educational and speech therapy opportunities while in prison however his frustration with his severe speech impediment has been a barrier to his acceptance of these programs. He has not engaged in further formal education, but has accessed reading material of his own volition and gained prison employment as a wardsman. This job entails duties such as cleaning and handing out meals to prisoners and detainees.
Drug & Alcohol History
38 Mr McCrossen has no known drug or alcohol abuse history.
39 The full details of Mr McCrossen's forensic history are available to the Court in the relevant sentencing judgments and associated records. However, a brief summary will be provided to acknowledge the context of this report.
40 At age 13 Mr McCrossen was convicted of robbery with violence. Dr Fernando described in his report that Mr McCrossen had attempted to hold up a shopkeeper with a knife, but had not physically harmed the victim. It was reported that the shopkeeper was a parent of the school Mr McCrossen was attending at the time, and he deliberately carried out the act with the instrumental purpose of being expelled from school as he was not coping there. Dr Fernando expressed that the combination of Mr McCrossen's problems, namely the physical condition which resulted in muscle weakness and difficulties with participating in activities such as sport; his severe speech impediment which made verbal communication frustrating and near impossible for him; and his traumatized and distressed emotional state; all culminated in overwhelming barriers for Mr McCrossen to participate in formal education.
41 After this incident, he was apparently moved to a 'special school' which reportedly caused him considerable distress as he did not want to be considered disabled. He reacted against this placement by threatening a teacher with a pair of scissors, again not causing any physical harm but engaging in an instrumental act to be removed from the school where he was feeling distressed. His goal was achieved. Dr Fernando asserted that these early threatening incidents were cries for help.
42 Between the ages of 13 and 16, Mr McCrossen was convicted in the Children's Court of numerous charges pertaining to burglary and attempted burglary, stealing, aggravated assault, assault, refusing to supply his name to Police and resisting arrest. I have not been privy to the specific facts of these offences, however I am aware that one incident involved breaking into his father's place of work. It has also been reported that Mr McCrossen made a false claim that he had committed a murder by throwing someone into the Derwent River, resulting in an extensive search being undertaken. He developed a reputation for telling 'tall stories' that would place him in a negative light, and heighten his reputation for violence when the actual physical harm he had caused to others was relatively minimal. Due to his antisocial behaviour, Mr McCrossen was declared a Ward of the State at the age of 14.
43 At the age of 17 he was convicted of aggravated assault in the Supreme Court. I have not been privy to the prosecution facts regarding this incident, however I believe the matter is referred to in Dr Sale's report dated the 4th of April 1989. It is my understanding that Mr McCrossen was discharged from Ashley when his father was absent from Hobart, and placed with a middle aged woman who lived alone. It is also my understanding that Mr McCrossen was convicted of aggravated assault against this woman.
44 At age 18 he was convicted of assault and wounding and sentenced to 18 months imprisonment. These charges pertained to an incident during which Mr McCrossen hit a female shopkeeper over the head with an antique gun, and then fled the scene. Mr McCrossen had visited the shop on previous occasions that week to buy goods for setting up his new flat and spoken with the victim, which he had apparently done without incident. He reported to Police he was going to steal a cash tin from the store, and hit the victim because she was screaming and attracting attention. He later described and has maintained that he hit the victim because she made fun of his stutter. The medical report (dated the 26th of February 1990) indicates that the victim sustained a 1cm laceration of her scalp.
45 While in prison, Mr McCrossen wrote two graphic and threatening letters to the victim in which he threatened to kill her, himself and 'anyone else in sight'. He had stained the prison-issue notepaper with drops of his own blood. In relation to these letters, and Mr McCrossen's assertions of carrying out the threats in response to Police questioning, he was declared a Dangerous Criminal at the age of 19.
46 In making the declaration of dangerous criminal status in relation to Mr McCrossen the Honourable Justice Green expressed: 'I am satisfied that the accused is likely to commit further crimes of violence if he is released from prison now and that for some time at least it is unlikely that either treatment or the deterrent effect of a sentence of imprisonment would significantly reduce the likelihood that he will commit further crimes of violence.' It is now in over 23 years since this declaration was made.
Relevant Physical and Mental Health History
47 According to Dr Fernando's report Mr McCrossen was first referred to mental health services when he was five years old. He has been diagnosed with various conditions over the years including:
·Severe non-progressive muscular dystrophy
·Severe speech impediment
·Intellectual Disability (unspecified)
·Personality Disorder (schizoid, schizotypal, paranoid, antisocial, not otherwise specified)
·Major Depressive Disorder (recurrent)
·Chronic Posttraumatic Stress Disorder (commencing from severe childhood abuse and neglect)
·Debilitating psychosocial effects of chronic institutionalization
48 It is clearly evident that Mr McCrossen has a severe speech impediment, with the reported history of onset suggesting that this developed at least in part in response to extreme traumatic distress in childhood.
49 In relation to the mental health diagnoses, I concur that Mr McCrossen has a symptom history consistent with diagnoses of chronic Posttraumatic Stress Disorder [PTSD] and Major Depressive Disorder, as defined in the Diagnostic and Statistical Manual of Mental Disorders Fourth Edition Text Revision [DSM-1V-TR] (American Psychiatric Association, 2000). These conditions are major anxiety and mood disorders respectively and have been evident in Mr McCrossen's documented clinical presentation since childhood. He has received psychological and psychiatric interventions in recent years which have assisted him to manage these symptoms.
50 The debilitating psychosocial effects of chronic institutionalization for Mr McCrossen since early adolescence have resulted in disordered personality development. His self-esteem is extremely low, and he appears to genuinely believe that he does not deserve anybody's help.
51 In relation to the diagnosis of intellectual disability, although there were early suggestions that Mr McCrossen may have 'intellectual deficiencies', it has since been the general agreement of mental health staff working with him in adulthood that he has an average level of intelligence. Dr Lopes reported that Mr McCrossen's IQ had been assessed as within the range of 92-102 (p 1, report dated 26th of July 1996).
52 Mr McCrossen has consistently reported that past incidents of aggression in the community and prison have been his response to perceived bullying (eg, people laughing at his speech impediment or calling him derogatory names such as 'retard'). Mr McCrossen adamantly rejects opinions that he has an intellectual disability or mental illness. These views have contributed to his reluctance to accept long term help from health professionals, or be accommodated in health facilities when this may have been of benefit to him at times.
53 In 2006, Mr McCrossen experienced periods of major depressive illness seemingly in response to the prison facility restructure. The Prison Hospital was decommissioned and Mr McCrossen was transferred to the new Risdon Prison complex. Many of his long term peers were moved to the Wilfred Lopes Centre, and he was exposed to increased bullying from others. Mr McCrossen became severely depressed, expressing suicidal ideation, feelings of worthlessness and hopelessness, and distressed sexual disinhibition. He was admitted several times to the Wilfred Lopes Centre, and accepted psychiatric medication for a brief period to alleviate his symptoms. Mr McCrossen expressed that he did not deserve to be at the Centre as he is a dangerous criminal, and that he did not want people to waste their time on him. After some settled periods, he rejected the help of staff by engaging in threatening behaviour and property damage to facilitate his transfer back to the prison. He did not physically harm any staff members or patients during the admissions.
54 Since that time he has had sporadic periods of depression and agitation in response to environmental stressors and becoming overwhelmed that he will never be released from prison. He has been assessed as being at chronic risk of suicide with ongoing incarceration, with his most recent suicide attempt being in November 2006 occurring at the time of the new prison transition. Mr McCrossen's prison file contains a memo of concern expressed by a senior custodial officer several years ago stating 'Mr McCrossen is tired of institutional life. He is depressed, and should he choose to end his suffering it would be unannounced and covert'
History of Institutional Behaviour
55 Mr McCrossen has had a volatile history within the prison which has reduced in severity and frequency over the years. He has exhibited a pattern of threatening to harm others and/or damaging property in order to be transferred within the prison environment. These episodes appear to be triggered by numerous factors including Mr McCrossen experiencing depressive symptoms, agitation/frustration, and interpersonal conflict. They are consistent with a pattern of avoidance behaviour and self-punishment.
56 Mr McCrossen's record of institutional disciplinary proceedings reflects many internal charges between 1989 and 1998. These charges include: assaulting prison officers and other prisoners, failing to obey orders, behaving indecently, abusive language, disrupting the good order of the prison, property damage, disorderly conduct, committing a nuisance, disrespecting a prison officer and one incident of setting alight an article. For the majority of these incidents, Mr McCrossen was punished with segregation in division eight.
57 There was a time in the 1990s during which Mr McCrossen reportedly spent many months in continuous segregation in the punishment division (N Division), during which time he hid under a blanket, refusing to communicate/exercise/shower and infrequently ate. Prison staff were reportedly required to hose out his cell while he was still lying in it, in order to maintain some level of hygiene. Extreme concerns were raised regarding his mental state at that time, and the psychological impact of the ongoing segregation sanctions.
58 Over time, prison staff reportedly became more aware of Mr McCrossen's emotional difficulties and his desire for segregation when depressed. Management strategies changed to a more therapeutic approach utilizing 'intensive personal behaviour management programs', to which Mr McCrossen gradually responded. Mr McCrossen has been charged with few prison offences requiring disciplinary action since 1999.
59 Throughout the period encompassing the late 1990s to the opening of the new prison facility in 2006 Mr McCrossen was housed almost exclusively in the prison hospital. During this period there were few serious incidents, with occasional aggression towards other inmates. Concerns regarding sexual behaviours within the prison were also raised at times, usually in terms of Mr McCrossen making himself vulnerable to others or engaging in bizarre behaviour. He would also make allegations of being sexually assaulted.
60 When moved to the new prison facility he was housed in the Mersey (Needs Assessment) Unit, originally planned to house vulnerable or high needs inmates.
61 The period from mid-2008 through until the end of 2011 is characterised by multiple admissions to the Crisis Support Unit in relation to various behaviours that include;
· allegations that he has been sexually assaulted
· threats of suicide and self harm
· claims that he has swallowed various items including cutlery and pencils
· verbal aggression
· physical aggression, including attempts to grab staff through the door hatch
62 Physical intervention by staff was only required when custodial staff were forced to intervene to subdue Mr McCrossen on two occasions. There are two incidents documented of physical fights between Mr McCrossen and other inmates during this period. There are regular and multiple entries in his health file regarding monitoring and his mental state. During this period he was also admitted to the Wilfred Lopes Centre, which are summarised further below.
63 The year 2012 contains some further admissions to the crisis support unit, but there are noticeably less. During this period the first attempt to move Mr McCrossen from the Mersey unit to medium security was made, where he remained for a few weeks until returning.
64 As of 14/12/12 Mr McCrossen has been classified as a minimum security inmate. In January 2013 a plan was formulated proposing that he be moved to the Ron Barwick minimum-security unit. A program of scheduled visits and a gradual transition to the unit was formulated to proceed over the period of two months. This was presented to Mr McCrossen but at the time he did not feel comfortable with the move.
65 However, he did agree to a return to medium security where he remained for approximately 8 months, the longest period of time he has been out of either the prison hospital or the Mersey unit for approximately 15 years. He returned to the Mersey unit for a brief respite before returning to medium security in September 2013 where he has been housed ever since.
66 His last contact with the correctional health service was recorded in October 2013. He has not required assistance from a health professional since that time. Discussion with therapeutic services staff indicate that there were some problem sexual behaviours during the early period that he was placed in medium security but that these have also lessened. The behaviours were largely statements that he made, for example making requests to staff stating that he wanted to be a 'stripper' and required assistance to achieve this goal.
Wilfred Lopes Centre
67 Mr McCrossen has had five admissions to the Wilfred Lopes Centre. Three of these were in 2006, a lengthy admission of 13 months in 2008/09 and a brief admission in 2010.
68 1 have been provided with a complete record of his admissions at this facility. During the course of these admissions he was largely not given a diagnosis of a mood or anxiety disorder. There was some acknowledgement of a 'complex post- traumatic stress disorder' as well as documentation of his severe history of emotional deprivation and institutionalisation.
69 The primary diagnosis recorded was 'severe personality disorder with borderline and antisocial traits'.
70 As stated, the majority of his admissions were relatively short with the exception of an admission that began in October 2008 when he was primarily under the care of psychiatrist, Dr Rosemary Schneider. During the first 12 months significant effort was made to assist Mr McCrossen in a number of ways. Rehabilitation and leave programs were devised. Occupational therapy assessment took place and attempts were made to increase his skills in a number of areas. During mid-2009 he was housed on the extended care unit, was working in the kitchen, completing cleaning duties in the gym, attending the TAFE group and also gardening. For extended periods he appeared in good humour and interacted well with staff
71 Visits were facilitated between Mr McCrossen and his grandmother. At one visit in 2009 Mr McCrossen was noted to listen intently to his grandmother speak about other family members. Mr McCrossen's mother was also present during the visit.
72 By September 2009 Mr McCrossen had progressed to having visits in the community at his grandmother's home in Risdon Vale. He also was allowed leave to walk around Risdon Brooke Dam. During the course of these walks he encountered several people, but looked at the ground and did not speak to anyone.
73 During the course of this admission Mr McCrossen made multiple requests to return to the prison. At times he stated that this was because he was bored and others because he did not deserve the help that he was being given.
74 During this period of time Mr McCrossen started to make sexually inappropriate comments to staff, for example stating that he had written to a male stripper organisation and they had sent him a G string, that he was wearing it and asked staff if they wanted to see it. There are also some noted outbursts of anger, although these did not escalate initially.
75 Unfortunately in early October 2009 Mr McCrossen was returned to the high dependency unit due to the deterioration in his behaviour. Shortly after this he was placed in seclusion at his request and was noted to have stripped naked and made a comment that he 'wanted to be punished'. When he was spoken to by Dr Schneider it became clear that some incidents in the previous week, being accused of stealing chocolate and an argument with a staff member, had been a trigger for his deteriorating behaviour and mood. He also reported that he no longer wanted to go on leave and requested to be returned to the prison.
76 During the following weeks these requests continued and in early November 2009 he was again secluded following an aggressive incident. It is noted that he pushed his way into an interview room, became very hostile, aggressive and was threatening towards staff. When he was escorted to seclusion he became agitated during a search and threatened to kill staff.
77 He was reviewed the following morning by Dr Schneider. In response to one of her questions Mr McCrossen lunged towards her, screaming, but did not make contact. He then grabbed Dr Schneider by the hand, scratching her palm. Staff intervened and placed him back in seclusion. Approximately a week later nursing staff note that Mr McCrossen had threatened one of them with a knife during breakfast.
78 Shortly after this the decision was made to return Mr McCrossen to the prison facility which was completed on 11th November 2009. Mr McCrossen's family expressed their dismay at his return to the jail.
79 This period of time gives an example of a cycle Mr McCrossen has repeated many times, both before this admission and since. He engages with assistance and programs for a period of time before his behaviour deteriorates and he actively sabotages any program and regresses back to an earlier stage of behaviour and interaction.
80 There were brief admissions that followed this in 2010, however he was quickly returned to the prison. He has not been to the Wilfred Lopes Centre for approximately four years."
Mr Minehan then spoke about assessing the risks involved in placing the applicant back into the community. He said at par 86:
"86 Mr McCrossen would not be described in clinical terms as having a psychopathic personality. To the contrary, he demonstrates low self-esteem, has severe communication difficulties, and is generally isolative. There are some problematic personality traits and behavioural tendencies, which are highlighted in bold in the table above. These include: lack of remorse; lack of realistic long term goals; impulsivity; irresponsibility; poor behavioural controls; early behavioural problems; juvenile delinquency; and promiscuous sexual behaviour. It is noted that some of these identified factors are historical in nature, and others reflective of long-term institutionalisation."
Mr Minehan then dealt with a specific clinical guide utilised to establish future violence risk. He said at par 87 and then par 89 about this:
"87 The HCR – 20 is a structured clinical guide utilised to establish future violence risk. It assesses information based on 20 historical, clinical and risk management factors considered, when present, to increase an individual's likelihood of future violent acts and has been found to be a reliable risk assessment tool.
89 The factors highlighted in bold represent those identified as concerns. It is noted that the risk management factors are all of concern, which is highly relevant in the context of current legal decision-making with respect to Mr McCrossen's dangerous criminal status. It is noted that various factors cannot be rated due to Mr McCrossen's institutionalisation status (eg, lack of opportunity to engage in intimate long term relationships, employment etc)."
At pars 90 and 91 Mr Minehan dealt with a risk for sexual violence protocol. He said at par 91:
"91 Mr McCrossen does not have a history of convictions for sexual violence. However, there have been behaviours of a sexual nature while incarcerated that may be considered disinhibited. It is noted that the risk factors rated with respect to social adjustment are largely associated with Mr McCrossen's institutionalisation and severe speech impediment."
Mr Minehan identified protective factors. He said at pars 92 and 93:
"92 Assessment of risk should also acknowledge those factors or circumstances which are protective or serve to ameliorate risk. Mr McCrossen is capable of forging lasting relationship with the professionals he comes in contact with. He has displayed a good sense of humour. He responds positively to individuals who interact with him in a respectful and patient manner.
93 Mr McCrossen does have an interest in his family relationships, and expresses loyalty to those with whom he has formed an attachment (eg, his grandmother)."
At pars 94 to 97, Mr Minehan said:
"94 The process of risk assessment using a structured clinical guide such as the RSVP allows for the consideration of risk scenarios to assist with risk prediction. These are generated on the basis of risk concerns or issues identified.
95 Given that Mr McCrossen has not had the opportunity to develop and engage in healthy adult relationships in the community, he lacks interpersonal skills and is also severely hampered in his communication due to his speech impediment. It will be difficult for Mr McCrossen to function at a social level in the general community, and his presentation is likely to make him vulnerable to bullying. Mr McCrossen's sensitivity to perceived criticism is a trigger for a violent reaction.
96 The use of instrumental violence as a means to return to prison or to sabotage progress is also a possibility. His violence history is not at the extreme end and if he were to engage in this it seems likely to be at a similar or lower level.
97 With specific reference to sexual violence risk, it is more likely on the basis of past behaviour that Mr McCrossen would behave in a sexually disinhibited manner (eg, appearing naked or masturbating in public) rather than him behaving in a sexually predatory manner towards another individual."
At par 98 onwards of his report, Mr Minehan dealt with a current assessment and risk formulation and recommendations. It is useful to set out this material because to an extent it informed some of the steps later taken by the prison service. Mr Minehan said at pars 99 to 116:
"99Mr McCrossin is a 42 year old man who has been in prison continuously since the age of 18 after being declared a Dangerous Criminal. Although early assessments suggested that he had some intellectual deficits, his full scale IQ has later been estimated to be in the average range. His childhood was marked by severe emotional and physical neglect as well as being witness to violence. Parental relationships and attachment were poor. Mr McCrossen has felt abandoned by those whose responsibility it was to care for him as a child. His education became increasingly disrupted and eventually led to severe behavioural disturbance.
100At this time Mr McCrossen's often repeated pattern of using violence, threats of violence or threats of self harm began to emerge. Descriptions in the psychiatric reports indicate that Mr McCrossen threatened two teachers with a knife and scissors in order to achieve his goal of being removed from school environments that he did not like.
101The escalating pattern of violence continued and he was increasingly placed in ever more restrictive institutional environments, including an extended period at the Ashley Youth Detention Centre. His periods in the community became increasingly brief. From the age of 14 through to 18 he was convicted of a variety of crimes including robbery with violence, burglary, stealing, aggravated assault and criminal code assault. In 1990 he was convicted of assault and wounding along with the later crime of attempts to commit crime of threatened to murder. Following this he was declared a dangerous criminal. Subsequent to this he was convicted of assault a public officer on three occasions after assaults on custodial officers twice in 1994 and then again in 1999.
102In the latter part of his incarceration efforts have been made by prison on health staff to assist Mr McCrossen, most notably at the Wilfred Lopes Centre in 2008 and 2009. Unfortunately, Mr McCrossen's often repeated pattern of engagement followed by deterioration in behaviour and mood, aggressive behaviour and withdrawal back into the prison environment occurred.
103In 2014 Mr McCrossen presents as a man of average intelligence, with a severe stutter and a profoundly damaged personality. His physical state and general health and well-being appears to have deteriorated. He is now in medium security and he rarely has contact with health or therapeutic staff. He has not had any family visits for some time.
104Mr McCrossen is a man prone to depression and anxiety. He has a history of multiple and complex traumas. His personality remains severely disordered.
105The risk assessment tools utilised indicate that a risk of physical violence remains a significant possibility. Any release to the community would require an intensive pre-release program followed by a high level of community support. Mr McCrossen's cycle of actively sabotaging support and progress will need to be acknowledged and contingency plans made to effectively address this before it escalates to aggression.
106Mr McCrossen's past violence has largely been instrumental in nature. During incarceration it has usually been aimed at removing himself from a situation or placement he does not like or feels he does not deserve. The actual physical harm he has caused to others is very minimal, and is markedly disproportionate to the length of incarceration he has served to date.
107The original treatment plan developed at the Wilfred Lopes Centre by Dr Schneider and the staff at the time remains an excellent resource and starting point. This plan is very detailed and includes input from a wide range of professionals.
108Key features of a reintegration plan would include engagement with therapeutic staff, occupational therapy assistance and skill development, education and meaningful activity, assistance with personal care and hygiene, reconnecting with family relationships, utilising Mr McCrossen's strengths and a leave program aimed at preparing him for the possibility of community living.
Recommendations, Risk Management and Rehabilitation Plan
109A clear and practical plan for rehabilitation was laid out in 2009 by Dr Rosemary Schneider and her colleagues. Sadly, this plan was discontinued after Mr McCrossen's behaviour became challenging and incidents of aggressive behaviour occurred. Mr McCrossen was discharged from the Wilfred Lopes Centre and returned to the prison. Since then no plan that has included leave or skills based work has been undertaken. It would seem that the last four years have been characterised by the prison dealing with occasional problem behaviours, but little else. Mr McCrossen is in a stagnant position.
110There has been some support from Therapeutic Services in Mr McCrossen's integration from the Mersey Unit to Medium Security, which has met with some success to date.
111From the records available, Mr McCrossen has not been seen by the Correctional Health Service since October 2013. He has not seen a psychiatrist since 2010. It would also appear that his contact with the prison Therapeutic Services team is also dwindling. This is likely representative of a decline in problem behaviours on his behalf, but also signals an 'out of sight, out of mind' attitude by the services that are available to assist Mr McCrossen.
112At times Mr McCrossen has languished in a system that did not have the resources or capabilities to effectively manage him, let alone return him to the community. Long term segregation, sometimes self-imposed and other times not, have only reinforced the level of institutionalisation and alienation.
113His current presentation, reduction in problem behaviour and medium security rating may provide an opportunity for some or all of the measures outlined in 2009 to be enacted, whether that be through a program of leave provided by the prison or another mechanism. It would seem, from my discussions, a very remote possibility that the Wilfred Lopes Centre/Forensic Mental Health will have any involvement, leaving the onus on the prison, which may not have the resources or professional staff.
114This 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.
115Prior to the Declaration being lifted and release from prison is considered it is my recommendation that Mr McCrossen is afforded a multi-disciplinary reintegration program to assist him to build his resilience in a community setting, and develop the capacity to live an independent life.
116Mr McCrossen may have some difficulty coping with the medium to long term nature of such a plan. It is possible, as in the past, he may adopt an attitude of there being 'no point'. Thus, clear parameters of such a plan, and the expected outcomes, would be essential to the success of a reintegration plan."
It was as a consequence of that report by Mr Minehan that a conference was held on 7 November 2014 which involved representatives of Forensic Mental Health and the prison service with a view to structuring a type of pre-release program which might assist were an order made discharging the dangerous criminal status.
In his oral evidence, Mr Minehan observed that, as far as any incidents of violence or threatened violence by the applicant towards prison staff and other inmates, in the last five or six years there had been few incidents of violence and none of threatened violence. Frequency and severity of this pattern of behaviour had decreased. Mr Minehan confirmed observing marked aging and a level of frailty. He also observed difficulty with eyesight.
Mr Minehan was asked about his use of the term "instrumental violence". He said it was violence directed at and for a particular purpose. In the applicant's case, more often than not, it was violence used to escape a situation he did not like. Mr Minehan was asked if that pattern of aggression was resorted to as a first step in trying to achieve a particular outcome. He responded:
"Not necessarily, the usual pattern for Mr McCrossen appears to be, as I outlined before, he may speak to somebody, speak to a custodial officer, speak to a trusted health worker – this is within the prison context – and then may display periods of depression, withdrawal, perhaps some other unusual behaviours as well, there's reference to unusual sexual behaviours at times, and then the threats and potential violence seems to be the next level after that. That pattern was again repeated in 2008 during his stay at the Wilfred Lopes Centre. Mr Minehan went on to say that generally speaking over the last five to ten years violence had been threatened rather than actual and you would have to go back to the wounding and assault to find an incident involving serious violence."
Mr Minehan did not believe that the applicant would be a constant danger to the community if he were released. He might resort to threats of violence if facing interpersonal difficulties but was unlikely to carry out the threats. Even that pattern would usually be preceded by some sort of complaint about what the applicant perceived as a wrong to him, and, provided supports were in place to assist with such complaint, the next level of aggression might not occur. Absent supports in the community, the level of likelihood of aggression in some form would increase. Mr Minehan's assessment of problematic family dynamics for the applicant would suggest family would be an unlikely support.
When cross-examined, Mr Minehan told the Court he adhered still to the view expressed at par 114 of his report extracted at [26] above. He also was of the view that the applicant would be at risk of a pattern of threatened violence and even perhaps physical violence.
Dr Michael Jordan
Dr Jordan is the Clinical Director of Forensic Mental Health Services in Tasmania. At the Court's request, Dr Jordan prepared a report for the purpose of this application. His report was prepared having regard to observations by Mr Brendan Long, an occupational therapist with the service, who interviewed the applicant a number of times between December 2014 and June 2015. Dr Jordan also interviewed the applicant. He had regard also to many of the resources which were available to Mr Minehan, and indeed Mr Minehan's 2014 report. Dr Jordan's report responded to some specific questions and it is useful to set out the questions and responses, even though again they are quite lengthy:
"Questions a and b covered by Brendan Long; c and d by Dr Jordan.
a What rehabilitative and pre-release programs, services, interventions and supports have been provided for the purpose of possible release in to the community.
1 Mr McCrossen has applied pursuant to s20 of the Sentencing Act 1997 for the discharge of a Dangerous Criminal declaration. He was referred for Occupational Therapy input in November 2014 and Mr McCrossen has had scheduled weekly sessions with myself (Brendan Long). Six areas of for occupational rehabilitation were identified including;
(i)meal preparation,
(ii)cleaning & domestic management,
(iii)managing finances,
(iv)community access / public transport use,
(v)shopping,
(vi)managing technology (computers, ATMs, phones) with the aim of developing skills in each of these areas to a level that will allow for community living.
2 In developing an initial rehabilitation plan, Mr McCrossen was offered referral to a Speech and Language Therapist to address his communication difficulties and a move to the minimum secure facility to better facilitate leaves, and allow greater access to occupational opportunities - such as engagement in the work program.
3 Concurrent to my involvement, Mr McCrossen also had scheduled fortnightly sessions with his prison allocated case manager for community reintegration. This included progressing Mr McCrossen towards engaging with a program of section 42 leaves, and providing practical assistance with accessing Centrelink benefits, accommodation and community support networks.
4 Mr McCrossen was also allocated a Care Co-ordinator through Community Forensic Mental Health Services as an additional support post release.
b Mr McCrossen's progress to date in respect of any programs, services, interventions and supports
5 Mr McCrossen's chronic institutionalisation has severely impacted his ability to acquire daily living skills. His avoidance of engaging with practical activities and services has been a further impediment to significant progress with rehabilitation.
6 On being offered, Mr McCrossen declined input from the Speech & Language Therapist stating it had not assisted him in the past, and declined to move to minimum secure citing past traumatic experiences in that environment While Mr McCrossen also rejected the need for input from Occupational Therapy, he continued to attend weekly sessions and some rapport was established over time. Themes of abandonment would arise in the event of a session being cancelled and Mr McCrossen would spend significant time speaking about his losses and perceived injustice at the time he had spent in prison.
7 Mr McCrossen was generally reluctant to engage in practical rehabilitation activities and would externalise responsibility for decision making wherever possible. This pattern was highlighted in an early practical session around meal preparation. Mr McCrossen was provided with a range of possible ingredients and asked to prepare a sandwich that he would like to eat. Mr McCrossen included all items that had been provided and ultimately identified that the sandwich he had made was inedible. Mr McCrossen's difficulty with making decisions / choices significantly impairs his capacity to undertake even simple daily living tasks that would be required in all but the most supported community living environments.
8 Mr McCrossen made some progress with reintegration activities with his prison case manager - engaging with the prison therapy dog and consenting to go on section 42 leave on two occasions. In discussing a leave he had undertaken Mr McCrossen Identified that he neither felt safe in prison or outside of prison.
9 Mr McCrossen has declined to engage with any of the accommodation or support services his case manager has arranged to facilitate his release. Mr McCrossen also states he does not want to apply for Centrelink benefits as he does not like the idea of 'charity'.
10 In discussing Mr McCrossen's possible release from prison he states his plan is to 'disappear'. He identifies that this would involve him leaving the state and not having any contact with support or correctional services, instead he would 'find work and live in hotels'. This highlights Mr McCrossen's limited capacity to reflect on his own skills and abilities or to identify difficulties he may experience with day to day living outside of prison.
11 As greater rehabilitation demands have been placed on Mr McCrossen and his hearing date has approached, an increase in negative behaviours has been noted. These have included:
• Feedback from Correctional Officers that Mr McCrossen was increasingly using strategies to avoid social contact -
(i)asking to move cells away from other inmates,
(ii)standing in the corner with his back to other inmates during exercise and social times.
• Reports from other inmates in Mr McCrossen's unit that he was 'continually masturbating' - prison staff have indicated that this pattern of behaviour has previously emerged when he is not coping well.
• Mr McCrossen's prison health record indicates that he was seen on both 31/3/2015 and 17/5/2015 following making an accusation that he was sexually assaulted.
12 Attempts to increase the demands of Mr McCrossen's rehabilitation have been met with increased anxiety levels and dysfunctional coping. As such progress with occupational rehabilitation has been minimal. Mr McCrossen's choice not to engage with community based services has been a further impediment to planning for an appropriately supported release.
c Any further rehabilitative pre-release programs/services, interventions or supports that might be recommended for the purpose of assisting the possible release of the applicant into the community.
13Given Mr McCrossen's current intransigence in terms of engaging with options provided both by the Department of Corrective Services and Forensic Mental Health Services it is difficult to identify exactly what further rehabilitative measures could be put in place. Historically, bar periods circa 2007/2008, Mr McCrossen has rejected the need for rehabilitative measures in terms of his potential return to the community.
14My current opinion, notwithstanding Mr McCrossen's stance in terms of accepting help, would be to boost both Psychological and Occupational Therapy input within his current environment. Forensic Mental Health Services' Occupational Therapist, Brendan Long, has diligently attempted to engage with Mr McCrossen over a six (6) month period. After several initial successes, this engagement has lost traction particularly in the weeks leading up to Mr McCrossen's last appearance in Court and since that appearance. Psychological help to aid Mr McCrossen come to terms with his traumatic past both when younger and during his prison years remains an area of potential intervention. However this can only occur with Mr McCrossen's agreement.
15Discussions are on an ongoing basis with the Department of Corrective Services how to optimise the potential for psychological therapy. Mr McCrossen remains somewhat sceptical of interventions provided by both Corrections and Health, mainly on account of perceived and real instances that have occurred over the last twenty (20) year period. One answer may be for Corrections to consider employing an independent Psychologist to begin work with Mr McCrossen. That individual would not be tainted by historical events and would be able to concentrate more narrowly on clinical progress rather than the associated issues of Court, legal matters etc that tend to contribute to Mr McCrossen's disengagement from interventions. There is a pattern of him disengaging when progress maybe beginning to be achieved.
16As will be cognisant to the Court, a past lengthy admission to the Wilfred Lopes Centre (2008/9) did bring about some transient successes. Given Mr McCrossen's current stated attitudes, any more immediate transfer to the Wilfred Lopes Centre would be counterproductive. However this may change into the future although the environment of the Wilfred Lopes Centre with its cohort of mainly mentally disordered individuals is not seen by Mr McCrossen as an appropriate environment for him; he does not consider himself to be affected by mental disorder and grossly underestimates the barriers and problems he would face should he attempt to return to the community without adequate supports. In short, the Wilfred Lopes Centre may remain an option into the future but it is hard to put a timeline on when he might transfer there and even harder to state how long he might need to be there to reach a perceived set of goals. He may never reach certain goals.
17Any holistic rehabilitation program for Mr McCrossen would invariably need to consider the need for measures to reduce his risk, particularly to others within in the community. The brief of this report does not prompt much discussion around this area and I refer to Mr Damian Minehan's psychological report of last year for suggestions and comments around Mr McCrossen's risk. However any risk that Mr McCrossen may still pose to the community, certainly in terms of what would be viewed as serious risk, is not significant in my opinion. However certainly without him accepting support both in terms of accommodation and other necessary processes, there is considerable scope for Mr McCrossen to become involved in spontaneous and tempestuous interpersonal dynamics with those within his close vicinity. This could occur almost at any time post any eventual release.
dThe role that either or both the Department of Corrective Services and Forensic Mental Health Service would propose to have in relation to any such programs in the event that an order is made under Section 21 (10) of the Sentencing Act 1997 between the date of the order of the Court and the date of any subsequent proposed release.
18At this given point given Mr McCrossen's attitude and ability to partake in rehabilitative processes, even basic skills acquisition, it is almost impossible to conceive how Mr McCrossen could currently be maintained in the community without the expectation of either deterioration in his self-care, Mr McCrossen disappearing or him quickly becoming involved in an adversarial approach with either authorities or those in contemporaneous proximity to him. Further I am unable to suggest, with any precision, how long it might be before Mr McCrossen is able to engage with agencies and further maintain that engagement to a level that might allow a more ordered return to the broader community.
19This notwithstanding, Mr McCrossen's presentation does indicate a source of resilience which, although currently misguided in terms of what he believes might occur for him, could form the basis of progress into the future. But such are his needs, both physical and psychological, any smooth and safe transition to the community cannot and will not be conceivable until engagement between Mr McCrossen and various supportive agencies is forged.
20Forensic Mental Health Services, in tandem with the Department of Corrections, will continue to review Mr McCrossen. If any initiatives can be sustained, progress may be possible but history suggests that Mr McCrossen is deeply embedded in a pattern of self-defeat that has paradoxically become comforting to him. If any 'breakthrough' was made, either via transfer to Wilfred Lopes Centre or via another avenue, it is hard to predict how long that progress could be sustained.
21If released at some point into the future, there would be a role for Forensic Mental Health Services but most of the support he requires would be based around practical support in terms of housing, cleaning, financial management and shopping. Use of a Guardianship Order, as opposed to Mental Health Legislation, is likely to be required in order to try and maintain contact. However those processes, even when mandated by a Guardianship Order, still require some level of commitment by the client. At this point, this type of scenario is difficult to envisage."
Dr Jordan discussed his report to an extent in his oral evidence. However, the applicant's counsel returned to the theme of supports for the applicant in the community were he released and what might happen if they were not there. Dr Jordan said that, while it was a generalisation to an extent, if the applicant were under pressure and was struggling to deal with basic issues such as housing and feeding himself, that might increase his potential to lash out. Dr Jordan felt, from what he had seen in prison notes, that that was more likely to be threats and shouts rather than more serious violence.
Counsel's submissions
At the commencement of submissions, counsel for the Crown asked for leave to make a statement to the Court which he said might save time. He said that, as he understood it, what the applicant's counsel was asking the Court to do was to make an order, but postpone the date of actual release while the applicant participated in pre-release type programs. Counsel indicated that the Crown would oppose that because the applicant had not shown any inclination to participate in such programs. He suggested that, instead, the matter be adjourned without any order to allow the applicant to demonstrate a willingness to be involved in pre-release arrangements. The applicant gave instructions to his counsel that he wished to have the matter dealt with without any adjournment.
Discussion
The evidence in my view establishes that the applicant is in effect institutionalised. He has known no other environment save prison or the prison hospital for almost the entirety of his adult life. Even prior to adulthood, he spent lengthy periods in youth detention and psychiatric facilities. He has no skills which would enable him to live in the community and, despite efforts by prison authorities and hospital staff to attempt to recreate family relationships, the applicant is unwilling to have anything really to do with family members or accept their help or support. He says he will not take Centrelink benefits if released and yet has no other form of income which would allow him to meet his basic needs. He has talked of going interstate because he recognises that his chances of obtaining employment here are almost non-existent. He has declined to engage with prison authorities who have attempted over the months prior to the hearing to, in effect, teach him the skills he will need to survive in the community and provide him with a framework which will get him housing, an income and a support structure in the community.
The applicant has a debilitating stutter which he has had for many years. It has resulted in his being belittled about it in the prison environment. There will be those who no doubt may do the same in the community. The applicant looks far older than his 44 years. He is somewhat frail and has poor eyesight. Nevertheless he is not unintelligent. His written application to the Court was coherent and logical. It is nothing short of a tragedy that our justice system has taken in a damaged youth and effectively allowed the applicant to become the person he now is, and to place him in a position where he has to surmount a significant hurdle to gain freedom, some 25 years after he was incarcerated. The difficulties which the applicant had when he entered the justice and health systems at a very young age have been magnified by the environments in which he has been kept.
Against that background, the applicant seeks an order that his dangerous criminal status be discharged. The declaration was made by Green CJ. When considering whether to make the declaration, his Honour referred to a matter of Chester v The Queen (1988) 165 CLR 611, a decision of the High Court in which observations were made about the way in which a judge should approach the exercise of a discretion similar in nature to that his Honour was exercising. Green CJ said at [16] and [17]:
"At 618 and 619 the court said that the power to impose such a sentence 'should be confined to very exceptional cases' and that the sentencing judge must be 'clearly satisfied by cogent evidence that the convicted person is a constant danger to the community'. The policy considerations which the court emphasised were:
1 That it is 'firmly established that our 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'.
2 'The stark and extraordinary nature of punishment by way of indeterminate detention', and
3 The fact that the term of that indeterminate detention 'is terminable by the executive, not by judicial, decision'.
17I would enlarge upon those considerations as follows:
1 An indeterminate sentence is qualitatively different from any other sentence which the court may impose because in part at least its imposition involves a person being kept in custody for crimes which it is feared he may commit but which he has not in fact committed.
2 In addition to the fact that an indeterminate sentence may result in the accused spending longer in prison than would have been the case had he been merely sentenced for the crime of which he has been convicted the fact that a person upon whom an indeterminate sentence has been imposed does not know when he is to be released or indeed whether he will ever be released in itself substantially increases the severity of the punishment."
His Honour then concluded at [23] of his reasons:
"I am satisfied that the accused is likely to commit further crimes of violence if he is released from prison now and that for some time at least it is unlikely that either treatment or the deterrent effect of a sentence of imprisonment would significantly reduce the likelihood that he will commit further crimes of violence."
This Court has, since that decision in 1991, considered applications for discharge of such a declaration a number of times.
In July 1997, Cox CJ dealt with an application to discharge a dangerous criminal declaration in a matter of Mark Brandon Read v The Queen (1997) 94 A Crim R 539. In that case the application was brought pursuant to the Code, s 393(3), as it then stood. That section was in identical terms to the present s 20(3). At 540, his Honour said:
"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 it is no longer warranted for that purpose."
In that case, his Honour determined that the declaration was no longer warranted and said at 543-544:
"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."
The Act does not provide for any factors to be considered by the Court for the purpose of determining if it could be satisfied that a declaration is no longer warranted.
Counsel for the applicant submitted that the principles espoused by courts in relation to applications for declarations in the first instance are relevant to applications for discharge. A phrase particularly relied upon was "a constant danger" of causing physical harm to the community. This was referred to by Wood J in her summary of relevant principles in Director of Public Prosecutions v McIntosh [2013] TASSC 21 at [8]. The phrase in fact came from Chester's case and was referred to by Green CJ when he made the original declaration in this case. What the High Court actually said at 618-619 was:
"The exercise of the power should be reserved for those very exceptional cases which do not attract the operation of s 661 of the Code or for which s 29(1) of the Mental Health Act is unlikely to be appropriate and in which the sentencing judge is satisfied by acceptable evidence that the convicted person is, by reason of his antecedents, character, age, health or mental condition, the nature of the offence or any special circumstances, so likely to commit further crimes of violence (including sexual offences) that he constitutes a constant danger to the community. 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. What we have said accords with the view expressed by Burt CJ in the Court of Criminal Appeal in the present case."
Counsel for the applicant ultimately submitted that there were a number of matters which were sufficient to satisfy the Court that the declaration in this case was no longer warranted. She listed those factors as follows:
"a The crimes for which the applicant was original sentenced were not especially serious examples of crimes of violence, although they cannot be dismissed as trivial – HB 16;
b Green CJ relied on the content of the letters as bearing on the likelihood of re-offending – HB 14-15;
c The report from Dr Sale referred to in the original decision did not clearly articulate a risk of future violent offending of a type leading to the conclusion that the applicant would be a constant danger to the community if he was not declared a dangerous criminal – HB 22-29;
d The report from Dr Lopes referred to the applicant posting a continual problem and considered him a danger in the community because of his impulsive behaviour – HB31A.
e The making of the order by Green CJ was one that would appear to have been finely balanced;
f Evidence of problematic behaviours in the prison system since the declaration was made do not evidence significant violence;
g None of past offences or behaviour have resulted in the infliction of significant physical harm;
h The applicant's history of volatile behaviour in the prison system has reduced in severity and frequency;
i The last significant disciplinary offence involving the applicant within in the prison involving violence was in 1999;
j His physical condition has deteriorated, he is more frail and has poor eyesight which reduces his capacity to inflict significant harm;
k He has engaged, albeit incompletely, in therapeutic programmes within the prison and Wilfred Lopes Centre;
l He has shown a capacity to forge lasting relationship with professionals involved in his treatment;
m The applicant is classified as a minimum risk prisoner and has maintained that classification for some time."
Counsel also acknowledged that there was evidence of risk of future offending but that the level of risk was not such as to warrant the applicant's continued detention. It was submitted the applicant would not pose a constant danger to the community and that the continuation of the declaration was disproportionate to the risk posed. Counsel submitted that yelling and threats of harm did not amount to someone being a constant danger to the community.
As to the factors identified by counsel set out in [44] above, I do not cavil with any, save the suggestion that the decision of Green CJ when he made the original order was finely balanced. That in my view is not necessarily borne out by his Honour's reasons.
As I said at [36], it is a tragedy that the "system" has largely created the dilemma the Court now faces. The very fact that the applicant has spent such a huge portion of his life in custodial or quasi-custodial environments has in itself created a set of circumstances which in my view are very relevant to this application.
For most of his life, the applicant has lived in structured environments which have provided him with a roof over his head, food and his basic needs, without his having to do anything at all or exercise any level of independent thought. If he is released from custody, that will all 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.
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.
His approach is entirely unrealistic and one which is doomed to failure.
The reason this is of concern is the evidence about the applicant's likely reaction to situations which place him under pressure. Counsel for the applicant has relied on the fact that the applicant in recent years within the prison environment has threatened violence, but that there has been no actual violence. There has, she says, been a reduction in the frequency and severity of even those threats. I accept that is the evidence of the witnesses on this application. It must be remembered however that that is against a background of the applicant living in the type of structured environment to which I have referred where, if he was placed under pressure by perceived or actual bad behaviour towards him, the applicant could in effect retreat to his cell. There were also custodial staff around to manage any behaviour of the applicant which was reactive to external events.
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 of perceived danger or, in the extreme, to ensure he is returned to prison.
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. It is interesting to note that when the Court dealt with the application to discharge in Read's case, the Court was mindful of the arrangements in place for the applicant in that case on release. He had married while in prison, he and his wife had a house to live in and he had forged a career as a writer which provided him with an income.
The evidence clearly demonstrates that the applicant's behaviour is generally unpredictable. Counsel for the applicant emphasised what might be described as the potential low level of risk the applicant posed. I am not satisfied on the evidence presented, given the circumstances the applicant will face on release, that the potential level of risk is as low as counsel suggests. Actual violence by the applicant is a very real risk if he is placed under significant pressure. I am not satisfied that the applicant has demonstrated that the dangerous criminal declaration to which he is subject is no longer warranted for the protection of the public.
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 could 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.
The application is dismissed.
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