Tasmania v Green

[2017] TASSC 70

[2017] TASSC 70

COURT:  SUPREME COURT OF TASMANIA

CITATION:                 Tasmania v Green [2017] TASSC 70

PARTIES:  STATE OF TASMANIA
  v
  GREEN, Nathan Michael

FILE NOS:  392/2015

316/2017

DELIVERED ON:  7 December 2017
DELIVERED AT:  Hobart
HEARING DATE:  13 November 2017
JUDGMENT OF:  Blow CJ

CATCHWORDS:

Criminal Law – Sentence – Sentencing orders – Orders and declarations relating to serious or violent offenders or dangerous sexual offenders – Dangerous criminal – Declaration – Violent crimes committed in prison – Extent of likely risk to community.

Sentencing Act 1997 (Tas), s 19.
Chester v The Queen (1988) 165 CLR 611; Read v The Queen (1994) 3 Tas R 387, followed.
Aust Dig Criminal Law [3357]

REPRESENTATION:

Counsel:
             Applicant:  D J Coates SC
             Respondent:  R Mainwaring
Solicitors:
             Applicant:  Director of Public Prosecutions
             Respondent:  Legal Aid Commission

Judgment Number:  [2017] TASSC 70
Number of paragraphs:  44

Serial No 70/2017

File Nos   392/2015
              316/2017

STATE OF TASMANIA v NATHAN MICHAEL GREEN

REASONS FOR JUDGMENT  BLOW CJ

7 December 2017

1. Mr Green has pleaded guilty to a charge of wounding and a charge of unlawfully destroying property. The Crown has applied for him to be declared to be a dangerous criminal pursuant to s 19 of the Sentencing Act 1997 ("the Act"). Under s 19(4), the making of such a declaration would result in him not being eligible to be released from custody unless and until a judge makes an order discharging that declaration, even if he finishes serving all prison sentences imposed upon him.

2. Mr Green committed the crime of wounding on 24 October 2015 at Her Majesty's Prison at Risdon, where he was and still is an inmate.  That afternoon, he was being escorted to the laundry by four correctional officers.  As one of them went to unlock the door to the laundry, Mr Green lunged at him and stabbed him in the left side of his jaw with a makeshift weapon.  He was restrained and taken back to his cell.  The victim was treated by prison medical staff and taken to hospital. He suffered a 3 mm stab wound, with some mild swelling and bruising, over the left side of his jaw.  There was no fracture.  He was given a tetanus booster and tested for hepatitis B, hepatitis C, and HIV.  He did not contract any of those diseases, but it no doubt took some months for the doctors to be certain that all was well.  The officer did not provide a victim impact statement.  Mr Green took part in an interview with police officers the day after the attack.  He said that he had made the makeshift weapon out of the lid of a biro. 

3. Mr Green did not know the officer whom he stabbed.  Rightly or wrongly, he was aggrieved by refusals by other officers to give him items or privileges that he had requested.  He became so angry and frustrated that he stabbed an innocent man in order to send a message to the prison authorities. 

4. Mr Green pleaded guilty to that charge on 21 March 2016. His sentencing has been delayed because of the Crown's application, and because there have been delays in marshalling the evidence relating to that application. If I declare him to be a dangerous criminal, s 19(3) of the Act still requires me to sentence him to a term of imprisonment for the crime of wounding.

5. While the Crown's application was pending, Mr Green committed the crime of unlawfully destroying property, contrary to s 273 of the Criminal Code, at the prison on 25 January 2017.  He has pleaded guilty to that crime in the Magistrates Court and has been committed to this Court for sentence.  On the day in question he was upset about a decision to remove a television set from his cell.  He had previously been allowed to have one.  He was given no explanation for the decision to remove it.  After exercising alone in a common room, he was asked to go into an exercise yard so that he could be returned to his cell.  He began to argue, saying that he would not return to his cell until he was provided with a television set.  He became increasingly agitated, and then began to damage items.  He picked up a basketball and threw it at various items.  He pulled a telephone off a wall.  He smashed intercom equipment.  He smashed a ceiling vent and a tap.  He smashed ceiling sprinklers, causing water to pour out.  He smashed an office door, entered the office, and damaged a variety of equipment there.  The incident ended as a result of him being restrained by members of the Tactical Response Group.  The cost of the damage that he caused has been estimated at about $16,000.  He was surprised by that figure.  He now acknowledges that he did the wrong thing.

6. Subject to the outcome of these proceedings, Mr Green will be eligible for parole in October 2019.  If not paroled, his earliest release date would be in November 2019, and his latest release date would be 19 April 2020. 

The law as to dangerous criminal declarations

1. The power to declare an offender to be a dangerous criminal is conferred by s 19(1) of the Act. That subsection reads as follows:

   "(1)  A judge before whom an offender is convicted or brought up for sentence after being convicted may declare the offender to be a dangerous criminal if —

   (a)  the offender has been convicted for a crime involving violence or an element of violence; and

   (b)  the offender has at least one previous conviction for a crime involving violence or an element of violence; and

   (c)  the offender has apparently attained the age of 17 years; and

   (d)  the judge is of the opinion that the declaration is warranted for the protection of the public."

2. Paragraph (a) of that subsection will be satisfied when I convict Mr Green of the crime of wounding. He has dozens of prior convictions for crimes involving violence. He was 29 years old when he committed the crime in question. The critical question is whether I am "of the opinion that the declaration is warranted for the protection of the public": s 19(1)(d).

3. The matters to be taken into account in forming that opinion are referred to in s 19(2). That subsection reads as follows:

   "(2)  In determining whether to declare an offender a dangerous criminal a judge may have regard to all or any of the following:

   (a)  the nature and circumstances of the crimes referred to in subsection (1);

   (b)  the offender's antecedents or character;

   (c)  any medical or other opinion;

   (d)  any other matter that the judge considers relevant."

4. Some guidance as to the principles to be applied on an application for an order whose effect is indefinite detention can be found in the High Court's judgment in Chester v The Queen (1988) 165 CLR 611. That was an appeal from the Supreme Court of Western Australia. Section 662 of that State's Criminal Code provided that, "When any person is convicted of any indictable offence … the court … may, if it thinks fit, having regard to the antecedents, character, age, health, or mental condition of the person convicted, the nature of the offence or any special circumstances of the case – (a) direct that on the expiration of the term of imprisonment then imposed upon him, he be detained during the Governor's pleasure …".  The Court (Mason CJ, Brennan, Deane, Toohey and Gaudron JJ) said at 618:

   "… it is now 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: Veen v The Queen [No 1] (1979) 143 CLR 458, at pp 467, 468, 482-483, 495; Walden v Hensler (1987) 163 CLR 561; Veen v The Queen [No 2] (1988) 164 CLR 465, at pp 472-474, 485-486. In the light of this background of settled fundamental legal principle, the power to direct or sentence to detention contained in s 662 should be confined to very exceptional cases where the exercise of the power is demonstrably necessary to protect society from physical harm."

1. Their Honours said at 619:

   "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 …".

2. In this State, those principles were applied by the Court of Criminal Appeal in Read v The Queen (1994) 3 Tas R 387. That appeal concerned an application for a prisoner to be declared a dangerous criminal pursuant to s 392 of the Criminal Code, which was the predecessor of s 19 of the Act. The Court (Wright, Zeeman and Crawford JJ) said at 396-397:

   "What the court is required to do is assess the risk posed to the community by the offender being at large. This in turn depends upon the likelihood of his committing further violent offences. This is something which must be judged taking into account all relevant circumstances, including the offender's propensity to commit such offences in the past. If the type [sic] of offences in contemplation are of a grave character and if there is a real likelihood that the offender will commit one or more of such offences if and when discharged from gaol, the court may make the appropriate declaration."

3. That appeal was unsuccessful.  At 397 the Court concluded that: "… unless there is a marked change in attitude by him [the appellant] he will be violent to others if he is set at large."  An unusual feature of this case is that most of the respondent's crimes of violence, and all of the most serious ones, have been committed not when he was at large, but when he was in custody.

4. In Director of Public Prosecutions v McIntosh [2013] TASSC 21, Wood J made the following observations at [10]:

   "It is worth noting that a declaration would not be made merely because it would protect the public.  If that were so there would be many instances where orders would be made and they would be unexceptional orders.  Further, they are not made merely because there was no guarantee that a prisoner would not reoffend and commit a serious crime, or merely because caution would dictate that outcome.  We are not here concerned with some sort of cautionary principle where courts can err on the side of public safety or weigh in favour of the interests of protecting the community in the face of uncertainty about an offender's likelihood of committing serious crime."

   I agree with those observations. 

Mr Green's circumstances

1. Mr Green is now 31. He has spent a total of about five months outside prison in the last 13 years.  He has been in prison continuously since 15 December 2011.  He is not mentally ill.  He has a very high degree of hostility towards the correctional officers at the prison, but would have great difficulty living anywhere else. 

2. He has been brought before the courts for a total of 44 assaults, some of them the subject of serious charges, commencing in 1996 when he was 10 years old. The details of those cases are as follows:

   ·     On 11 July 1996, on three charges of assault, a magistrate made a supervision order, to operate for 12 months.

   ·     On 13 December 1997 he committed two assaults. In June 1998 a magistrate made another supervision order as a result.

   ·     In March, August and September 1998 he committed three more assaults.  On 4 September 1998 a magistrate declared him to be a ward of the State as a result.

   ·     On 11 November 1998, in relation to three assaults and some other charges, a magistrate re-declared him to be a ward of the State and committed him to the Ashley Youth Detention Centre.

   ·     On 1 April 2003 a magistrate dealt with him on one charge of assault, a number of charges of offences of dishonesty, and a charge of unlawfully setting fire to property.  He was convicted and sentenced to five months' detention under the Youth Justice Act 1997.

   ·     On 18 September 2003, a magistrate dealt with him in relation to four assaults, at least three of which were committed when he was a detainee, and various other offences.  He was sentenced to five months' detention under the Youth Justice Act.

   ·     In August 2004 he committed another assault. He appears to have been in custody at that time. On 21 October 2004 a magistrate sentenced him to one month's detention for it, cumulatively with a sentence that he was serving for other matters.

   ·     On 14 January 2005 a magistrate sentenced him on a large number of charges, including two charges of assault and a charge of assaulting a police officer.  He was sentenced to five months' imprisonment, cumulatively with a sentence of detention imposed in relation to other matters.

   ·     In May 2005 he was fined $150 for an assault committed in September 2003. 

   ·     On 5 December 2005 a magistrate recorded convictions on two charges of assaulting police officers, as well as other charges.

   ·     On 8 September 2006 I sentenced him for an assault on a policeman that he committed in July of that year.  When he was being held in a cell at the Devonport Police Station, he punched a sergeant so hard that he broke the man's jaw.  I sentenced him to 18 months' imprisonment, with a non-parole period of 12 months. 

   ·     In October 2006 he assaulted a man at the prison by throwing liquid and hitting his back and legs.  A magistrate fined him $300 for that assault.

   ·     On 12 December 2006 he assaulted a man at the prison by punching him to the head with both fists.  On 30 August 2007 a magistrate imposed on him a cumulative sentence of three months' imprisonment in relation to that assault and an offence of unlawfully injuring property.

   ·     On 25 January 2007 he assaulted a correctional officer at the prison by punching him to the face.  A magistrate fined him $200. 

   ·     On 26 April 2012 he assaulted a correctional officer at the prison by spitting through a door hatch into the officer's open mouth.  When that officer and others attempted to move him back to his cell, there was a struggle, during which Mr Green stuck two fingers into the officer's eyes, and struck him to the nose with his personal duress alarm.  In November 2012 a magistrate imposed a cumulative sentence of eight months' imprisonment for that assault.

   ·     On 6 November 2013 Mr Green assaulted another correctional officer.  When the officer opened his cell door to bring him some medication, Mr Green threw a cup of faeces in the man's face.  In February 2014 a magistrate sentenced him to eight months' imprisonment for that assault. 

   ·     On 19 February 2014 Mr Green attacked another prisoner from behind and struck him ten times about the head and body with a hard plastic cricket bat.  A correctional officer told him to stop, but he struck three further blows.  The victim suffered an undisplaced fracture of a bone in his right wrist, a 6 cm scalp wound that required seven sutures, severe bruising across his back, and soft tissue injuries to the base of his thumb.  He reported chronic headaches, little ability to grip things, difficulty in day to day tasks of feeding himself and attending to personal hygiene, debilitating levels of anxiety, and flashbacks.  Mr Green pleaded guilty to a charge of committing an unlawful act intended to cause bodily harm, contrary to s 170 of the Criminal Code. The sentencing judge, Porter J, accepted that the victim had provoked the attack by making sexual advances towards Mr Green over several days, putting his hand on his groin, rubbing his penis, and threatening that Mr Green would be killed.  The victim was a convicted murderer.  Porter J sentenced Mr Green to 12 months' imprisonment, commencing on the day of sentencing, which was 26 August 2014.  His Honour also made a probation order for two years, commencing on the date of Mr Green's release.  He has not been released since then.

   ·     On 6 March 2014 Mr Green assaulted two correctional officers by throwing water through a door hatch onto them. On 25 May 2014 he assaulted a third correctional officer by throwing water over him.  On each of those occasions he pretended that he had thrown urine rather than water. In June 2014 a magistrate imposed a cumulative sentence of three months' imprisonment for those assaults.

   ·     On 1 November 2014 Mr Green attacked another prisoner in a kitchen.  He removed a glass plate from a microwave oven and smashed it over the man's head. The plate broke. Mr Green then picked up a piece of glass and used it to stab the man to the chest.  The victim suffered lacerations to the scalp, forehead and nose, and a 2 cm wound to the right side of his lower chest. That wound was repaired with sutures. The attack was completely unprovoked. Mr Green was upset about having been moved to a particular unit inside the prison, and attacked an innocent man in order to show how unhappy he was.  He pleaded guilty to one count of assault and one count of wounding.  On 6 November 2015 Tennent J sentenced him to two years' imprisonment with effect from 20 July 2015, with a non-parole period of 18 months.

   ·     During the period from 20 February 2015 to 19 May 2015 inclusive, Mr Green committed six more assaults on correctional officers.  For those assaults, as well as an offence of destroying property, a magistrate sentenced him in January 2016 to 15 months' imprisonment, cumulatively with the two-year sentence imposed by Tennent J.  The first of those assaults was on 20 February 2015, when Mr Green punched an officer to the face through the food hatch of a cell door.  On 12 March 2015, when Mr Green was upset about the unwillingness of prison authorities to move him from one part of the prison to another, he attacked an officer by striking his right hand with a racquet in an exercise yard.  On 23 March 2015 he assaulted first one officer and then another by throwing liquid into their faces. They described the liquid as smelling like urine. On 8 May 2015 Mr Green started to throw kitchen items around a room.  When correctional officers approached him, he produced a broken toothbrush handle from his trousers and stabbed at one of them, causing a small cut to his left elbow.  On 19 May 2015 he spat onto an officer's face. 

   ·     Mr Green's next crime of violence was the wounding of the correctional officer on 24 October 2015 – the crime that led to the present application.

   ·     Mr Green subsequently assaulted correctional officers on three occasions. On 18 November 2016, while being escorted to an exercise yard in handcuffs, he spat onto an officer's face. On 11 January 2017 he threw some liquid through the hatch of his cell door onto a female officer's chest and face. The officer thought it was urine but Mr Green subsequently said that it was water.  On 3 June 2017 he assaulted four officers by throwing faecal matter onto them through the hatch of his cell door.  In respect of these assaults, and an offence of destroying property, a magistrate sentenced Mr Green on 7 September 2017 to 18 months' imprisonment, cumulatively with his current sentences.

3. For the purposes of this application, Mr Green was assessed by two experienced forensic psychiatrists, Dr Jordan and Dr Ball.  Both gave evidence at the hearing of the application.  Neither of them considers Mr Green to be mentally ill.  Dr Ball reported that, "There is considerable evidence to suggest that he demonstrates a significant degree of antisocial personality disorder."  Dr Jordan went a little further, and said that he had a diagnosis of antisocial personality disorder. 

4. Dr Ball explained that that term "refers to a personality type that underpins a behavioural syndrome in which there is a gross disparity between the behaviour and accepted social norms".  He said, "It is specifically characterised by an enduring and gross disregard of rules and personal obligations, inability to maintain relationships, very low tolerance to frustration and a tendency to project outwards, blaming others for any conflict in which the individual finds him/herself. … The disorder tends to be enduring in nature, although it's [sic] more extreme manifestations (eg violence and offending behaviour) may diminish from the fourth decade of life onwards."  Dr Jordan said much the same.

1. Mr Green, at the age of 31, is at the beginning of the fourth decade of his life.  There is a possibility, but no more than a possibility, that his violent behaviour will diminish, but not disappear, as he gets older.  The timing and extent of any such changes cannot be predicted.

2. Mr Green is a person of "borderline" intelligence.  That is to say, his IQ is in the 70s.  He has no friends.  He has practically no contact with other prisoners.  He exercises alone.  He has never married.  As far as I know, he has not seen his father since his parents separated when he was very young.  He has had no contact with his mother for some five years.  He has one surviving sibling.  He told Dr Jordan that that sibling, a brother, is about 15 years old and "retarded".  He has a daughter who is about 10 years old.  According to Dr Jordan, he does not appear to have any relationship with that daughter or her mother.  He spent much of his adolescence in the Ashley Youth Detention Centre, as well as spending the bulk of his adult life in prison.

3. It appears that Mr Green has no positive role models. He grew up in a violent and dysfunctional household. His father was physically abusive towards his mother, and he witnessed that.  His father also directed violence towards him.

4. During the short periods in his adult life when Mr Green has not been in custody, although he has committed relatively few assaults, he has committed a great many other crimes and offences, most of them being offences against property.  In respect of the periods that he has been at large between November 2003 and November 2011 inclusive, he has convictions for the following:

Crime or Offence	Number of Convictions
Aggravated robbery	1
Burglary	23
Aggravated burglary	5
Stealing	16
Motor vehicle stealing	1
Destroying property	12
Injuring property	6
Tampering with a motor vehicle	1
Possessing dangerous article in public	1
Minor drug offences	7
Breach of restraint order	18
Escape	1
Fail to appear	2
Breach of bail conditions	2
Contravene conditions of a notice	5
Threaten police	3
Resist police	2
Abusive language to police	1
Using telecommunication service to menace	1
Riding bicycle with no helmet	1

1. Many of his assaults on correctional officers and other prisoners appear to have resulted from Mr Green becoming frustrated in relation to decisions affecting him that were made by the prison authorities.  He told Dr Jordan that "violence is a means of communication". 

2. In a report dated 11 April 2017, Dr Jordan said the following in relation to Mr Green's recent violent behaviour:

   "30During the last two years Mr Green has been charged with numerous 'non-code' assaults, mainly upon correctional officers.  Although admitting to possessing a 'bad temper' and problems with 'control', he believed that at the time of committing these assaults, such as the assaults on the custodial officers were justified on the grounds of him being 'singled out', by his own account, for unfair treatment within the prison system. Most of his assaults are opportunistic rather than instrumental, although his history of manufacturing a makeshift weapon for one more serious assault did indicate premeditation."

3. In a report dated 24 August 2016, Dr Ball said the following in relation to Mr Green's violence towards correctional officers:

   "6.3.6    He has said that he knows his behaviour is morally wrong, but he doesn't know how to stop it. He has lost trust in the prison system. He is unable to see Correctional Officers in a supportive light when they are responsible for implementing the rules of the regime that he is currently subject to. He further said that he is aware that Correctional Officers are 'petrified of him' and that they see him as a non-compliant prisoner. However, he believes that the system must make the first move in any attempt at rapprochement.

   …

   7.1.4     The scenario in which he now finds himself, although uncommon is not an unusual one within a prison system. His increasingly entrenched perception and views about his relationship with the correctional system has resulted in a Mexican stand-off in which neither party can safely take a step backwards."

4. Mr Green will need a lot of help if he is ever released into the community.  He does not appear to have any friends, relatives or acquaintances who are likely to provide him with any help.  It is fortunate that he is not mentally ill, and that he does not have a significant history of abusing illicit drugs.  However his formal education appears to have been minimal.  He has had little experience in looking after himself outside prison.  If released, he will need to have dealings with Centrelink, a bank, and various government and non-government agencies.  It is likely that he will encounter some frustrating situations.  That is a great concern because, at least when he has been in custody, he has commonly reacted to frustration by becoming violent.

5. It is fair to say that the likelihood of Mr Green re-offending in non-violent ways if he is released into the community is extremely high.  He will need a lot of guidance and an unprecedented degree of self-control if he is to stay out of trouble.  The risk of him re-offending in non-violent ways is not directly relevant to the application for him to be declared a dangerous criminal.  Such declarations are made because of a risk of violence, not a risk of other types of unlawful activity. However Mr Green has had a tendency to become violent towards police officers and other authority figures.  If he re-offends in non-violent ways, it is likely that he will be arrested by police officers and/or apprehended by other citizens.  In any such situation there will be a risk that he will become frustrated, and resort to violence.

6. However, it is fair to say that very little of his violent offending, and apparently none since about 2004, has been directed towards individuals other than correctional officers, prisoners and police officers.

7. The material before me suggests that in recent times there has been a reduction in Mr Green's level of violence and some improvement in his attitude towards violence.  I say that in the light of the following matters:

   ·     An analysis of Mr Green's violent acts shows a much greater level of violence in 2014 and 2015 than in the preceding seven years or the subsequent two years. His attack on the murderer who made sexual advances towards him occurred in February 2014. The attack when he smashed a microwave oven plate on a prisoner's head and stabbed him with a piece of broken glass was in November 2014. The stabbing with the broken toothbrush handle was in May 2015. The final stabbing was in October 2015.  The assaults since then have not involved the use of improvised weapons or the infliction of wounds.

   ·     As far as I know Mr Green has not committed any assaults since 3 June 2017. 

   ·     In his report of 24 August 2016, Dr Ball said that Mr Green "demonstrated a degree of insight in that he was aware of the impact upon Correctional Officers that his behaviour has had".  He also said, "He was also clear that he wishes to extricate himself from his current situation; however, he had little understanding about what he could do himself in order to progress in this regard."

   ·     In his report of 11 April 2017, Dr Jordan said this:

   "31He has previously made threats to assault officers upon any putative release to the community. In the interview for the purposes of this report, Mr Green has modified his position indicating that he is now set on wishing to get released rather than perpetuating his aforementioned position that he would continue to assault officers until he was 'taken seriously' by the prison system. There does appear to have been a downturn in his aggressive attitude and assaultive pattern towards the custodial officers in recent months."

   ·     Dr Jordan gave evidence that Mr Green had made requests at the prison to participate in rehabilitation programs, and that he had recently asked a general practitioner at the prison for advice about how he could extricate himself from the difficult situation that he found himself in.  He also said that Mr Green has "aims of eventually, hopefully, moving forward". 

   ·     Later in his evidence Dr Jordan said:

   "… in 2017, he indicated that he did want to change his modus operandi on how he interacted with the officers. In my understanding he's written to the prison authorities on a number of occasions, or sometimes got another prisoner to do it for him because his writing skills actually aren't that great, asking for means to gain rehabilitation skills.  Clearly it's very perplexing for Mr Green to understand exactly what's wrong with him at times, but even he has been aware that his behaviours have been wrong, and has expressed regret. Obviously there's slippage back, I think for periods of time there has been some glimmers of improved insight."

   ·     Mr Green's counsel told me that he has recently been receiving counselling within the prison from a psychologist; that that commenced at his request; and that he has also commenced a program that addresses anger issues and emotion issues, at his own request.

Arrangements after release from prison

1. If an offender is declared to be a dangerous criminal, and that declaration is subsequently discharged, there is no provision in the Act or any other legislation whereby, in conjunction with the discharge of the declaration, an order can be made for the offender to be released on parole, under supervision, or conditionally. Such provisions exist in other Australian jurisdictions: Sentencing Act 1991 (Vic), s 18M(1)(b); Penalties and Sentences Act 1992 (Qld), ss 173 and 174; Criminal Law (Sentencing) Act 1988 (SA), ss 23(4) and 24; Sentencing Act 1995 (WA), s 101; Sentencing Act (NT), s 5.

2. In McCrossen v The Queen [2016] TASSC 3 at [53], Tennent J regarded the fact that the Court has no power to make any sort of conditional order that would provide support for a former prisoner after the discharge of a dangerous criminal declaration as a significant factor weighing against the discharge of such a declaration. In this case, if I make the declaration sought and if it is subsequently discharged, or even if I do not make the declaration sought, the probation order made by Porter J on 26 August 2014 will operate for two years, commencing on the date of Mr Green's release. That order contains special conditions requiring him to "attend education and other programs, undergo assessment and treatment for alcohol or drug dependency, and submit to medical, psychological or psychiatric assessment, all as directed by a probation officer".

3. When and if that probation order takes effect, Mr Green will have a probation officer to whom he can complain if he thinks he has been unjustly treated. The probation officer might be able to defuse difficult situations and remove the temptation for Mr Green to resort to violence. However, if Mr Green were to choose not to engage with a probation officer, the consequences would probably not be as serious as the consequences for a parolee who chooses not to engage with a parole officer. A parolee could have his parole revoked. By contrast, the possible consequences of breaching a probation order, which are listed in s 42(6) of the Act, are far less drastic. A judge of this Court could confirm the probation order, increase its duration, or vary its special conditions: s 42(6)(a), (b) and (c). Section 42(6)(d) empowers the Court to "cancel the order and deal with the offender for the offence or offences in respect of which the order was made in any manner in which the court could deal with the offender had it just found the offender guilty of that offence or those offences". However Mr Green finished serving the sentence of 12 months' imprisonment that he received for the crime that led to the making of the probation order as long ago as August 2015. It would no doubt be regarded as unjust for him to be given a second prison sentence in respect of that crime.

4. In my view the nature of the arrangements that can be made for the supervision and assistance of an offender who is released, either upon the discharge of dangerous criminal declaration or otherwise, can properly be taken into account in deciding whether to make such a declaration in the first place. Steps have been taken towards the reform of s 19 with a view to legislation being enacted to provide for dangerous criminals to be released either on parole or under an arrangement similar to parole. In July 2017 the Tasmanian Law Reform Institute published a report containing, amongst other things, a recommendation that this Court should have the power to impose both pre-release and post-release conditions on the discharge of dangerous criminal declarations. However it by no means follows that the legislation will be amended. It would be inappropriate for me to assume that it will be, or to take into account the possibility that it will be.

Interstate transfer as a solution?

1. In a report dated 9 October 2015 Dr Jordan made a suggestion that Mr Green might respond well if he were moved to a prison in another State.  He wrote this:

   "Further consideration might be given to Mr Green temporarily being housed within an interstate correctional facility, depending upon the analysis of any new expert opinion, if that is sought.  A period within a different custodial setting would give the opportunity for Mr Green to be managed in a different environment; on many levels this would disarm many of his current volitional forces and local grievances that are so distorting his behavioural patterns.  It would allow an assessment in a 'neutral' environment."

2. In his report of 24 August 2016, Dr Ball commented on that suggestion as follows:

   "I cannot comment upon Dr Jordan's recommendation in relation to an interstate prison transfer because I lack sufficient familiarity with the Australian legal and penal system. However, there is no doubt that if it were possible, then a different prison environment may allow the opportunity for Nathan Green to progress away from his current situation."

3. Dr Jordan did not comment on the possibility of an interstate transfer in his report of 11 April 2017.  In his oral evidence he said he thought there would be merit if Mr Green could be in a new environment. 

4. It is unfortunate for Mr Green that Tasmania has only one prison.  Whilst there is legislation that permits prisoners to be transferred interstate, that legislation is normally used so that prisoners can serve sentences in their home States, close to their relatives and loved ones. Tasmania is Mr Green's home State.  He does not have close relationships with his relatives or anyone else.  The prison authorities in other States might not welcome the transfer of a violent and problematic prisoner.  In the circumstances, I infer that it is most unlikely that anyone will ever arrange an interstate transfer for Mr Green's benefit.

Sentencing for wounding and destroying property

1. The crimes for which I must sentence Mr Green involved serious breaches of prison discipline by a repeat offender. The only appropriate penalty for each crime is a sentence of imprisonment. I will impose a global sentence in respect of the two crimes. Because they were prison offences and, in my view, there were no exceptional circumstances, s 15(3) of the Sentencing Act requires me to impose a cumulative sentence.  I must also take into account the "totality principle" as discussed by the High Court in Mill v The Queen (1988) 166 CLR 59. That is to say, I will take into account in Mr Green's favour the fact that he has been in prison ever since December 2011.

2. Having regard to all the relevant circumstances, I have decided to convict Mr Green of both crimes and sentence him to eight months' imprisonment, cumulatively with his other sentences. 

Should Mr Green be declared a dangerous criminal?

1. I have to assess the risk that will be posed to the community by Mr Green being at large if he is released after serving all his sentences.  If he completes them without re-offending, he will be released at some stage during 2020.  If that happens, his last assault will have been the one committed on 3 June 2017, some three years before his release. 

2. Another possibility is that Mr Green will continue to re-offend in the prison, and will accumulate more prison sentences.  If that happens, he will never be released unless there comes a time when he ceases to offend in the prison, and is of good behaviour for so long that he is eventually released.  Whether he continues to offend before being released or not, there is no likelihood of him being released until there has been a marked and sustained improvement in his behaviour. 

3. Mr Green's crimes and offences involving violence when not in prison would not of themselves warrant a declaration that he is a dangerous criminal.  It is true that he has committed several assaults when not incarcerated, including the one in 2006 when he broke a police sergeant's jaw.  But the frequency and severity of the assaults committed by him when at large do not suggest that his indefinite detention is needed to protect the public from physical harm. It does not necessarily follow that the level of violence that he has shown as a result of frustrations experienced in the prison will be continued if he is released into the wider community.

4. As I have said, there are a number of signs that his level of violence in the prison and his attitude towards violence are both improving.  In the light of the psychiatric evidence, there seems a chance that his level of violence may soon begin to reduce as he ages, though the timing and extent of any such diminution is unpredictable. If he behaves well enough for long enough to be released from prison, he will have the assistance of a probation officer for two years under the order made by Porter J. 

5. Having regard to all these matters, I am not satisfied that the risk that will be posed to the community by Mr Green being at large is so exceptional as to warrant the making of a declaration that he is a dangerous criminal.  There is a real likelihood that he may commit further assaults if and when he is released, but I am not satisfied that there is a sufficient risk of him committing very serious assaults for this to be a proper case for the making of the declaration sought. The application is therefore refused.