R v Marshall - [2017] SASC 157

SUPREME COURT OF SOUTH AUSTRALIA
(Criminal: Application)
R v MARSHALL
[2017] SASC 157
Judgment of The Honourable Justice Vanstone
2 November 2017
CRIMINAL LAW - SENTENCE - POST-CUSTODIAL ORDERS - OTHER TYPES OF POST-CUSTODIAL ORDERS - RELEASE ON LICENCE
CRIMINAL LAW - SENTENCE - SENTENCING ORDERS - ORDERS AND DECLARATIONS RELATING TO SERIOUS OR VIOLENT OFFENDERS OR DANGEROUS SEXUAL OFFENDERS - GENERALLY
The applicant is detained in custody under s 23 of the Criminal Law (Sentencing) Act 1988 (SA) on the basis that he is unwilling or unable to control his sexual instincts. The applicant applies for release on licence under s 24 of the same Act.
Held: Application dismissed. The paramount consideration is the safety of the community: s 24(1b). The most recent psychiatric reports do not support release on licence. The applicant remains unwilling to control his sexual instincts and if he were released there would be a very high risk of re-offending.
Criminal Law (Sentencing) Act 1988 (SA) s 23, s 24, s 25, referred to.
R v Marshall [2009] SASC 287; R v Marshall [2014] SASC 92, considered.

R v MARSHALL
[2017] SASC 157
Criminal: Application

VANSTONE J: The applicant, Mark Trevor Marshall, applies pursuant to s 24 of the Criminal Law (Sentencing) Act 1988 (SA) for release on licence. The application was filed on 23 October 2015. The applicant is currently detained until further order pursuant to s 23 of the Sentencing Act, having been found by Nyland J on the application of the Director of Public Prosecutions to be incapable of controlling his sexual instincts and also unwilling to do so: R v Marshall [2009] SASC 287.
The paramount consideration when determining an application such as this is the safety of the community: s 24(1b) Sentencing Act. Having considered the matter at some length and having taken into account all the materials and evidence required by s 24(1c) of the Sentencing Act, I have determined that the application should be refused.
Background
The applicant is 48 years of age, having been born on 20 September 1969. At the time of the application heard by Nyland J in 2009, the applicant already had a lengthy history of sexual offending. He was then awaiting sentence with respect to two further charges of causing a child to expose her body to gratify a prurient interest. The previous offending included 13 counts of indecent assault, all involving children, for which he was sentenced in 1987 to three months’ imprisonment suspended. Then, he was sentenced in 1990 for seven counts of indecent assault relating to female children aged from five to seven years and received a sentence of four years’ imprisonment. In 1992, he was sentenced to over five years’ imprisonment for three counts of indecent assault, the victims being a male and a female young child. In 1996, the applicant was sentenced to over five years’ imprisonment for indecent assault and procuring a child to expose her body. Again, the victim was a child of very young years. The applicant was further found guilty of two offences of causing a child to expose her body.
About 12 months after the s 23 order had been made, Mr Marshall applied for release on licence pursuant to s 24 of the Sentencing Act. Dr I Jennings and Dr K O’Brien provided expert reports. Dr Jennings expressed the view that Mr Marshall had made significant progress and he supported release on licence with strict conditions. Dr O’Brien was more guarded. An order releasing Mr Marshall on licence was made on 15 July 2011, but was subject to accommodation being found and approved by the Parole Board. Before that occurred the Director of Public Prosecutions sought a reconsideration of the order, based on new developments. A current affairs program regarding Mr Marshall’s forthcoming release had apparently caused a regression in his state. This manifested in Mr Marshall increasingly identifying as a victim and not accepting responsibility for his past actions. There was another issue. Mr Marshall was found with images of children on his computer in the education centre and in his cell. While these were not pornographic, Dr O’Brien was of the view that Mr Marshall’s behaviours were incompatible with those expected of a man seeking release on licence. Dr O’Brien recommended against release.
Mr Marshall then undertook a long period of treatment with the clinical psychologist Ms E Warne, who was employed within the Department for Correctional Services.
The possibility of release on licence was further explored and in November 2012 another order was made by Nyland J, again subject to appropriate accommodation being found. That proved difficult and Mr Marshall remained in custody.
On 26 November 2013 an amendment to s 24 of the Sentencing Act resulted in the task facing Mr Marshall becoming more difficult. The Court was now directed that the paramount consideration was the safety of the community: s 24(1b) Sentencing Act. Kelly J (to whom the application had now passed) recalled the order made by Nyland J so that fresh consideration could be given to the application. Updated reports were ordered and these remained favourable. Before further submissions could be taken, though, “a large number of prohibited and gravely concerning items” were found in Mr Marshall’s cell. This is how they were described by Kelly J in her reasons for decision: R v Marshall [2014] SASC 92 at [43]. I shall not itemise the relevant items, as her Honour did so.
As a result, Dr Jennings expressed “deep concerns about Mr Marshall’s risk for re-offending” and said that this behaviour showed “at best” a “profound lack of insight” into his situation. Dr O’Brien could no longer support Mr Marshall’s release. On 11 July 2014 Kelly J permitted Mr Marshall to withdraw his application for release on licence and published the reasons for decision I cited in the last paragraph.
The course of this application
As mentioned, the current application was lodged on 23 October 2015. A report was ordered in November 2015 from Dr Jennings. His report of 23 December 2015 advised that he found it difficult to support the current application as Mr Marshall had not had further treatment since the withdrawal of his last application.
Having regard to the difficulty in dealing with the application, due in part to Mr Marshall’s limited ability to focus on the topic at hand, it was determined that contact would be made with the Legal Services Commission to explore the possibility of representation. Ultimately that endeavour proved fruitless and Mr Marshall continued to represent himself. Ms L Boord appeared for the Director of Public Prosecutions. I would like to acknowledge the extensive assistance she provided not only to me, but also to Mr Marshall, during the extended period over which the application was heard.
On 5 April 2016 Mr Clark Sim, Manager, Rehabilitation Programs Branch, Department for Correctional Services, gave evidence. He had provided to the Court a report dated 15 January 2016, which summarised the treatment which had been received by Mr Marshall while in custody. I determined that it would be helpful to have Mr Sim give evidence to address Mr Marshall’s assertion that he had not had any treatment for two years, and the view attributed to Ms Warne that further treatment could only take place in the community.
Mr Sim said in evidence that Mr Marshall attended and completed a sexual behaviour clinic program, which he explained was an intensive sexual offending rehabilitation program conducted in a group setting, but which also contained in this case some individual sessions. This was done over the period December 2009 to July 2010. It was approximately 200 hours of group sessions and 15 individual sessions. However, Mr Marshall’s risk assessment was not altered by that program, as risk assessment is mainly informed by static factors. Then, Mr Marshall received 71 individual sessions, mostly with Ms Warne, over the period April 2012 to July 2014. Mr Sim said there was a “treatment gap” with respect to Mr Marshall because of his background abuse; that is, his status as a victim of sexual abuse was “intertwined” with his offending. This made for difficult treatment, particularly in the custodial environment. The gap identified was “ostensibly around [Mr Marshall’s] post-traumatic stress disorder symptoms”. Mr Sim explained that there were difficulties with providing the required treatment, both arising from Mr Marshall’s emotional state (which was unstable throughout 2014) and from his circumstances in prison. It was determined that his criminogenic treatment had gone as far as it could and that treatment for the post-traumatic stress disorder could best take place in the community. Nonetheless, Mr Sim said that a form of treatment for that disorder could now be undertaken in the prison setting and he was prepared to co-ordinate it.
Mr Marshall considered that proposal and on 19 April 2016 he advised that he wished the application to be adjourned to allow the treatment to take place. It was then adjourned to 16 December 2016.
During the period of the adjournment, and in May 2016, Mr Marshall wrote a letter to a person I shall call AB. She was Mr Marshall’s step-daughter and a complainant in a trial of sexual charges of which Mr Marshall had been accused, but acquitted. AB is now an adult. Ms Boord advised that in 2014 AB had given a new statement to police raising many new allegations. Ms Boord wished to look into the question whether new charges would result. Mr Marshall also wrote a letter to me seeking to explain why he had written to AB.
The letter to AB runs to five pages closely hand written. It is unnecessary to describe all its contents but it commences in this way:
Dear [AB],
Hi – There! This has been the hardest letter I’ve ever had to write – so I hope you please forgive any mistakes and also the memories some of it may Bring up! But I Love & miss you & after many chats with your cousin Matt since 2010 – Thought I’d make the 1^st step & hope!, It’s Just one of many in the future, to make some of our pains, of our past ease, & bring a much better life for us! (i.e. our kids etc!)!!
[AB] never once have I blamed you or stopped loving you & in my Heart the bond we had will always be there & you’ll always be in my heart, Prayers & Dreams as that Brave Little Girl who shared her pain with a mixed up boy who had much pain of his own but together we could talk & share it, making us stronger, happier & able to stand up – Despite all they (Dad, ya mum) done to try & Break us & our bond, with their games for us to hurt each other.
Mr Marshall also wrote to me, ostensibly explaining why he had written to AB. That letter included assertions that he was told by AB’s cousin, during prison visits, that she wanted contact with him, and that she sought his permission to write to him. He told the cousin to tell AB that this would be fine. Having not heard from her, Mr Marshall told the cousin to tell AB that if it would be easier for her, he would write first. Whether this explanation sits comfortably with the first paragraph of Mr Marshall’s letter need not be determined. Like all Mr Marshall’s communications, written and spoken, these letters contain numerous tangential references and explanations, and make fantastic assertions about past events, many amounting to crimes of rape and murder, often committed by his father.
Prior to the resumption of hearings on the application, the Court received a report from Mr Sim and Mr Sowerbutts, the latter of whom is the senior psychological clinician who undertook the most recent counselling with Mr Marshall. In that report the authors said:
Mr Marshall’s investment in viewing his life through the twin lenses of the victim-hero themes functions not only as a barrier to treatment, but also makes it difficult to assess his current dynamic risk factors for sexual re-offending.
On 1 September 2017 Mr Sowerbutts gave evidence about the treatment he had given to Mr Marshall in the period of the adjournment. It consisted of 22 individual sessions “utilising aspects of schema therapy and his previously completed self-management plan.” He explained that it was intended to have Mr Marshall consider what kind of life he wanted to live and to begin work on overcoming psychological obstacles standing in the way of that goal. Mr Sowerbutts said that during the sessions, Mr Marshall tended to quickly dismiss topics which were raised and to move the discussion to past events. Mr Sowerbutts acknowledged that he was unable to develop any rapport with Mr Marshall.
On 16 May 2017 a report was received from Dr Paul Furst, consultant forensic psychiatrist at James Nash House. This was one of the reports from legally qualified medical practitioners ordered in compliance with s 24(1a) of the Sentencing Act. Apart from the opinions expressed within the report, to which I shall come, it contained a great deal of history given by Mr Marshall and recorded by Dr Furst. Some of it related to what seemed to be quite extraordinary events – involvement in sieges, the murder of his two year daughter, connections with the two girls who were apparently abducted from the Adelaide Oval in the early 1970s, who were said to have been killed by Mr Marshall’s father, and also references to claims of being held in Parliament House for two weeks by the Democrats for his safety, and the death of a Laura Shackleford when he was eight years of age in one of the sieges at Peterborough. Mr Marshall confirmed to me that there was also the killing of another girl called Laura Allen, Mr Marshall’s daughter, in a deliberate house fire at Noarlunga. She was said to have been locked in a cupboard prior to the fire starting.
I asked Ms Boord to see if any information could be found to substantiate some of these claims. The death of Laura Allen in a house fire at Noarlunga was confirmed, but her body was not found locked in a cupboard and there was no suggestion by the Coroner of foul play. The sieges were not able to be confirmed. There was no record of a siege involving the Australian Federal Police in Peterborough at about the time alleged and no record was located of persons by the name of Shackleford living in the area. Police records relating to Mr Marshall’s father were very limited. Charges laid against him over a domestic incident in 1995 were later dismissed.
I turn to the psychiatric evidence received from Dr Furst. Dr Furst agreed with the previous diagnosis of Mr Marshall as having Borderline Personality Disorder and also described Mr Marshall as suffering from Paedophilic Disorder, as well as a condition known as pseudologica fantastica, which is typified by enduring stories, often built on some element of truth, that become self‑aggrandizing. Dr Furst doubted the diagnosis of post-traumatic stress disorder.
In summary, Dr Furst is of the opinion that Mr Marshall remains unwilling to control his sexual instincts. He would be at very high risk of re-offending if released into the community. The sorts of measures that would be required to contain the risk amount to “little more than a one man prison”.
I now set out some relevant parts of his long and comprehensive report.
7.3… He denied being sexually attracted to children and claimed that when he was last released he had been asked to babysit the children of his friends and “never once thought of having sex with a child”, but admitted that he had been aroused when children were “grinding” on him.
…
10.2The content of Mr Marshall’s speech was almost entirely consumed by his discursive and dramatic account of extremely severe sexual abuse and trauma suffered at the hands of his father, as well as his and his father’s links to high profile missing children cases. Apart from one statement that he had done wrong “especially as a teenager”, his conversation overwhelmingly portrayed him as the victim of circumstance and conspiracy, a man who had never been sexually attracted to young girls and yet his conversation was littered with comments that demonstrated cognitive distortions and attitudes that condoned child sex offending. He was not able to demonstrate any skills or insights that he had gained through the many hours of rehabilitation undertaken with staff from the Department for Correctional Services. …
10.3… He appeared to have extremely poor insight and judgment and I did not feel that I was able to establish any meaningful rapport with Mr Marshall, despite sitting through a two hour interview and giving him ample opportunity to explain his situation and alleged past trauma.
…
11.7… He demonstrated extreme minimization and/or denial of his offending. … Mr Marshall’s entire presentation was geared towards minimisation of his offending by trying to cast it as insignificant compared to what he allegedly endured from his father and/or deflect blame directly onto his father or the victims.
Mr Marshall demonstrated attitudes that support or condone sexual violence, such as suggesting that his niece was a “2 year old nymphomanic alcoholic”, that he only did what people wanted him to do, that a girl had a “crush” on him and claiming that he only became aroused when children were “grinding” on him.
…
… His presentation on interview was demonstratively worse than previous occasions when he was seen by Dr O’Brien, Dr Jennings or Ms Warne and this indicates that he is not currently stable.
...
11.11Having considered all of the above factors, I have formed the view that Mr Marshall remains in the Very High risk category for sexual re-offending. I think that it is important to note that this is not solely due to the weighting of static risk factors that are not amenable to change, but also because dynamic risk factors, such as his attitudes that condoned sexual offending, his extreme minimization and denial of offending, poor self-awareness and very poor coping abilities all weighed heavily. These things, coupled with his history of supervision failure, lack of emotional supports, lack of employment opportunities and the lack of a clearly documented proposal from the Department for Correctional Services suggested that he would remain a very high risk of re-offending if released into the community. Therefore I believe that he would be considered unwilling to control his sexual instincts if released on Licence.
[Original emphasis]
Another forensic psychiatrist who provided a report and gave evidence was Dr Owen Haeney, who has recently been awarded his fellowship. He has significant experience as a forensic psychiatrist in the United Kingdom and has been working at James Nash House for about 16 months. Dr Haeney described in some detail his interview with Mr Marshall. His experience in eliciting a history was plainly marked by many of the difficulties experienced by other practitioners. Again, there was minimising of his misconduct by Mr Marshall and a tendency to attribute blame to others including the girls involved. Many of the same allegations regarding the conduct of his father and involvement in serious crime were repeated. Again, Mr Marshall told Dr Haeney that he had no sexual interest in children and that the diagnosis of paedophilia which had been applied to him was erroneous. Dr Haeney said that his presentation “was suggestive of likely persecutory delusions”. Dr Haeney noted that Mr Marshall takes little responsibility for his offending. When asked why his previous application for release on licence had been withdrawn Mr Marshall told Dr Haeney that he would have kept many magazines about caravanning or similar. He went on to say that he always kept pictures that reminded him of people from his past, people who had disappeared. Dr Haeney rejected those explanations. He considered the possession of the items in Mr Marshall’s cell in 2014 led to a very different inference, one which caused significant concerns about the risk of re-offending.

Dr Haeney noted the previous diagnosis of paedophilia, with which Dr Furst agreed. Dr Haeney agreed with it, with “some reservations”. He noted Dr Jennings’ diagnosis of “dependent/borderline personality disorder”, without demurrer.
In attempting to assess the risk of re-offending Dr Haeney used the Risk for Sexual Violence Protocols (Hart et al 2003). He explained the factors which are considered within the context of five “domains”, and documented their application. Dr Haeney observed that he remained concerned that Mr Marshall reverted back to his previous stance and strategies when challenged or faced with new and more stressful scenarios. He noted that Mr Marshall also had previously breached parole conditions and lacked insight into his offending, continuing to blame others. He considered that the likelihood of re-offending remained high. Dr Haeney developed that opinion further in his conclusion, where he said this:
5.7… Nonetheless, his reversion to previous states and his inability to hold on to the coping strategies and insights he and others have worked so hard to instil, is of significant concern. If he is to be released into the community on licence, he will doubtless face strict conditions, rigorous monitoring and supervision, demanding requirements; while a supportive Corrections Officer would be of clear value, Mr Marshall is still likely to face all manner of new people and stressful events. He will potentially be faced with outright hostility if people become aware of his offending history. That he cannot tolerate an interview with an unfamiliar psychiatrist without his coping strategies breaking down to the extent they did, leading to minimisation of his offending, blame of others and denial of responsibility, does not augur well. …
Further Dr Haeney said:
5.9… he has little understanding of the potential implications of his actions on himself or others, he does not consider the seriousness or consequences of his actions and through surrounding himself with child-orientated pictures is only likely to reinforce his affinity with children and therefore risk of further inappropriate relationships or scenarios in which he could find himself tempted to ‘reciprocate’ their affections.
5.10On balance, therefore, at the current time I would remain concerned that Mr Marshall would be unable to control his sexual interests [sic, instincts] if released into the community, notwithstanding his denial of any sexual interest in children.
In his evidence Dr Haeney said that Mr Marshall was probably both unwilling to control his sexual instincts as well as having “a clear lack of capacity to change”.
Dr Jennings gave evidence on 1 September 2017, at Mr Marshall’s request. Dr Jennings said he knew Mr Marshall “very well”. Since writing his report of 23 December 2015 he had seen Mr Marshall on two occasions, being 26 April 2017 and 19 July 2017. Dr Jennings explained that his earlier report was designed to explore the question whether the court should embark on determining whether to release Mr Marshall, without Mr Marshall having further treatment. Dr Jennings had been disappointed to learn that Ms Warne had not provided the treatment which was given during the period of the adjournment, as she had a demonstrated rapport with Mr Marshall and they had made good progress together. (Ms Warne left the Department for Correctional Services late in 2015.) Dr Jennings said that after furnishing his last report, Mr Marshall “dropped out of” Dr Jennings’ outpatient clinic. But the two more recent interviews had been at Mr Marshall’s request.
When asked about whether Mr Marshall was ready to be released on licence, Dr Jennings said that his views were unchanged since the finding of the materials in Mr Marshall’s cell in 2014 coupled with Mr Marshall’s explanations for having those items. Dr Jennings said that Mr Marshall remained at “extremely high risk of re-offending”.
Dr Jennings said that Mr Marshall preoccupation with his own abuse results in him finding it hard to sympathise with his victims. It also makes him difficult to treat. He said:
A.His is continually reverting to these stories, the difficulty that he has identifying with the suffering of his victims and the consequences of his behaviour all make it difficult to treat but it also unfortunately adds to the risk of him re-offending. And given his various explanations as to why he was doing what he was doing in 2014 just shows a lack of understanding, which again I think it’s just very unfortunate that he can’t seem to comprehend the nature of his actions, how is that going to be interpreted and the risks of the consequences that that may lead to.
During Dr Jennings’ cross-examination by Mr Marshall, the following question was put to him:
Q.I’m not so much worried about what’s happened to me, I’m more worried about I have a little girl who has been hurt, because I wouldn’t forget, I wouldn’t be like my sisters and my brother and be voiceless vegetables. You know, like to me it’s like going back to SS days, you know, all these secrets and people being hurt and no-one caring and someone having to appease the parents that were told lies. Because none of my victims are crying out. Have you read the report of my daughter’s court case.
[Italics are mine]
Counsel for the Commissioner for Victims’ Rights, Mr Allen, later made reference to the italicised assertion by the applicant, which might be thought to demonstrate little empathy for his victims.
Under s 24(1c) of the Sentencing Act, the Court is required to take into account a report of “the appropriate board” – in this case the Parole Board – directed to the effect that Mr Marshall’s release would have on community safety, his likely circumstances if released, and the Board’s opinion as to whether he should be released. The Presiding Member of the Parole Board provided such a report, dated 13 September 2017. In November 2016 the Board learned that “letters” had been sent to one of the persons who had complained about Mr Marshall, and it had received a copy. It was noted that the letter commenced with the words, “I have never stopped loving you, Julian and Shawn”. The Board considered the correspondence to be concerning and inconsistent with Mr Marshall accepting responsibility for his offending behaviour. The Board wished to defer questions of the conditions of any release ordered by the Court.
The Sentencing Act also requires a consideration of the estimated costs related to release: s 24(1c)(d). A comprehensive report from the Manager of the Offender Management Plan was provided. That is a multi-agency body led by South Australia Police. The total cost of accommodating, monitoring and providing treatment to Mr Marshall if released was estimated to be more than $600,000 per annum.
I have also had regard to a carefully compiled and helpful “Social Impact Statement” which I received from Mr Allen on behalf of the Commissioner for the Victims’ Rights. The statement referred to the letter to AB. It was submitted that it demonstrates a “breathtaking lack of insight on the part of the Applicant and has the effect of re-victimising [AB] and her family”.
I have further had regard to periodic reviews that have been filed in relation to Mr Marshall.
Mr Marshall submitted several documents to me during the currency of the hearings. I have already referred to his letter to me explaining his letter to AB.
Exhibit A1 was tendered on 29 June 2017. It is styled “Index of Events – Titles/Subjects” and is handwritten. It purports to be a roughly chronological account of events befalling the applicant, including his earliest memories, and references to dealings with solicitors in 2015. It mainly consists of an account of innumerable sexual and violent crimes allegedly committed by Mr Marshall’s father and involving his mother, sister and many other named children.
Exhibit A5 was provided to the Court by Mr Marshall on 1 September 2017. It was described by him as material which would corroborate some of the events he described. It refers to police visits to Mr Marshall in prison to speak with him about his allegations, starting in 2002 to 2006, and then in 2008 and 2011. The documents also refer to conversations with staff of the Mullighan Inquiry in 2005 and then with Mr Mullighan QC himself in 2007. There is a list of court appearances from 2002 to 2011. The documents also include a copy photograph of a young boy with a black eye and bruised face with notations dispersed around the image, such as, “Daddy’s love”, “It’s all my fault I remember” and “Don’t kill us Daddy. We won’t tell anyone again”. The documents contain an original work entitled “The Beast” typed in Gothic script. It is about an abusive beast said to “look like Daddy”. Then there is a poem running to three and a half pages which is headed “Three years old – but not yet four”. This concerns a girl, Joanne, and the abuse which she and the protagonist suffer at the hands of his father. There are also some family photographs and photographs from the Orroroo Area School in the 1970s.
Mr Marshall made final submissions once all the evidence was taken. The submissions took the form of evidence about past events. Like his written material, they consisted almost exclusively of biographical detail, and accounts of his prurient interest offences which tended to demonstrate that they were not planned and were largely inadvertent. He further addressed the material found in his cell in 2014. He said the pictures were innocuous and the photographs were of newspaper clippings about Kirste Gordon and Joanne Ratcliffe which were relevant to what happened to him. He said the accounts of a razor and masking tape on a syringe being located were fictitious. He spoke at length of events in Peterborough and expressed his sorrow for what had befallen a number of named children. He spoke of being raped at two years of age and of subsequent sexual abuse and violent threats. He admitted having done the wrong thing “especially as a teenager”. He denied that AB was his victim, although she was abused by others.
Mr Marshall denied having ever targeted anyone in a predatory way and said that the estimate of costs associated with his release was absurd. He admitted previously breaching his parole, but said that was because he was at home and “things were happening at home”. He denied committing offences immediately upon previous release, as alleged by Ms Boord and Mr Allen.
Consideration
As can be inferred, Mr Marshall’s presentation to the Court is consistent with that described by his treating practitioners. He appears to be entirely consumed by past events and his attempts to minimise his wrongdoing and paint himself as a victim. The materials provided to me, particularly Exhibit A5, present a man who, for whatever reasons, is deeply disturbed and obsessed with sexual crime and child killings.
The episode of writing to AB is particularly disturbing. It echoes the event in 2014 when, in the midst of a similar application, “gravely concerning items” were found in Mr Marshall’s cell. It is not to the point that Mr Marshall was not found guilty of the charges based on AB’s evidence. Writing the letter shows, not only an inability to break from the past and look ahead, but also a profound lapse of judgement. Coupled with Mr Marshall’s apparent inability to demonstrate that he has taken anything from the extensive counselling resources allocated to him and to focus on how he could ensure that he would live a law abiding life if released, his presentation gives no promise that he has achieved some measure of insight and rehabilitation, and every indication that he has not.
These conclusions are only reinforced by the opinions of Drs Furst, Heaney and Jennings, which I accept. There are some differences of opinion among them, but all are agreed that, if released, there would be a high risk that the applicant would re-offend. I accept Dr Furst’s opinion that Mr Marshall remains unwilling to control his sexual instincts. I also note and accept Dr Heaney’s opinion that Mr Marshall would be incapable of controlling his sexual instincts if released.
There are clear risks associated with releasing Mr Marshall. In my view minimisation of these risks can only be by way of external agency; Mr Marshall appears to have very limited, if any, ability to himself minimise the risks. I consider it is unrealistic to assume that even a close degree of supervision will remove the risk of re-offending.
All these considerations, against the legislative directive found in s 24(1b) of the Sentencing Act, mean that the application cannot be granted.
There is hope for Mr Marshall. Dr Jennings believes that further, targeted treatment in custody can help him. However, he will have to change his mindset if he is to derive any benefit from it. His current attitude is antithetical to progress.
Conclusion
There is a marked risk of re-offending if Mr Marshall is released. Placing him in the community in a “one-man prison” might address the risk, but it would not be beneficial to Mr Marshall and is not feasible in terms of cost. The need to protect the community is paramount. Therefore, the application must be dismissed. Having regard to the history of this application and the one which preceded it, and to the extensive work which needs to be done by Mr Marshall to ready himself for another such application, I shall order that no further application be made by him for 18 months.
The orders are:
1The application is dismissed.
2There shall be no further application by Mr Marshall for a period of at least 18 months from the date of these orders.