McCrossen v The Queen - [2016] TASSC 3

[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…

Grounds of appeal

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

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

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

Consideration

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

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

Continue reading McCrossen v The Queen

Details

AGLC: McCrossen v The Queen [2016] TASSC 3
Case: [2016] TASSC 3
Decision Date: 28 January 2016

CaseChat Overview and Summary

In the Supreme Court, the applicant, Mr McCrossen, sought the discharge of a declaration made under the Sentencing Act 1997 (Tas) that he is a dangerous criminal. Mr McCrossen was declared a dangerous criminal in 1991 and has been incarcerated at Risdon Prison since that time. The primary issue before the Court was whether the criteria for discharging a dangerous criminal declaration under section 21D(2) of the Sentencing Act had been satisfied. Specifically, the Court had to consider whether Mr McCrossen no longer represented a significant danger to the safety of members of the public.

The Court examined various expert reports and considered Mr McCrossen's history of mental health issues, including severe posttraumatic stress disorder, major depressive disorder, and personality disorder, as well as his history of institutional behaviour and numerous disciplinary charges within the prison system. The expert evidence indicated that Mr McCrossen's mental health had stabilised, and there had been a significant reduction in his institutional misconduct over the years. The experts also noted that while Mr McCrossen had engaged in periods of social withdrawal and isolation, these episodes had lessened in frequency and duration. Despite this, the Court found that Mr McCrossen's history of violent offending, particularly the nature of his offences at a young age, remained a significant concern.

The Court concluded that, while Mr McCrossen's current institutional behaviour suggested a reduction in the risk he posed, his past history of violent offending and the nature of those offences were critical factors that could not be overlooked. The Court held that Mr McCrossen had not demonstrated a sufficient change in his circumstances to warrant the discharge of the dangerous criminal declaration. Consequently, the application was dismissed.

The Court ordered that the application be dismissed, and no further orders were made.

Orders

Orders of the court

The application is dismissed.

Background

Background to the litigation

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 History24The 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 Relationships25Mr 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 History35 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 History38 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 History47 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 institutionalization48 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 Behaviour55 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 hatch62 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 Centre67 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 staff71 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."

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.