The King v Hughes - [2023] NTSC 52

CITATION:The King v Hughes [2023] NTSC 52
PARTIES:THE KING

v
HUGHES, Clifford

TITLE OF COURT:  SUPREME COURT OF THE NORTHERN TERRITORY
JURISDICTION:  SUPREME COURT exercising Territory jurisdiction
FILE NO:21606713
DELIVERED:  14 June 2023
HEARING DATES:  19 April & 5 June 2023
JUDGMENT OF:  Grant CJ

Counsel:
Crown:D Jones
Defence:B Wild

Solicitors:
Crown: Office of the Director of Public Prosecutions
Defence:North Australian Aboriginal Justice Agency

Judgment category classification:    C
Judgment ID Number:  GRA2309
Number of pages:  8

IN THE SUPREME COURT
OF THE NORTHERN TERRITORY
OF AUSTRALIA
AT DARWIN
The King v Hughes [2023] NTSC 52

No. 21606713
BETWEEN:

THE KING
AND:

CLIFFORD HUGHES

CORAM: GRANT CJ
REASONS FOR JUDGMENT
(Delivered ex tempore on 14 June 2023)

On 15 June 2017 the offender was sentenced by this Court to an indefinite sentence for the crime of attempted murder. That sentence was backdated to 9 February 2016 with a nominal period of 14 years.
Section 72 of the Sentencing Act 1995 (NT) provides that where the Court imposes an indefinite sentence, it must review that sentence not later than six months after the offender has served 50 percent of the nominal sentence.
Section 74 of the Sentencing Act provides that unless it is satisfied to a high degree of probability that the offender is still a serious danger to the community, the Court must order that the sentence is discharged and sentence the offender for the offence for which the indefinite sentence was imposed.
If the court is satisfied to a high degree of probability that the offender is still a serious danger to the community, no order is made and the indefinite sentence continues in force until the time of the next periodic review under the legislation.
The offence in question was committed in February 2016. On the day in question, the offender had been consuming alcohol with others in Palmerston. One of his drinking acquaintances went to sleep and the offender began rifling through his pockets. The acquaintance awoke while the offender was doing this, and the offender then attacked the victim by kicking him repeatedly and stomping on his head and chest with great force. The offender left and returned to resume the attack on a number of occasions, and stomped on or kicked the victim approximately 51 times over a total period of 15 minutes. The offender was well-coordinated and deliberate in his actions, and the attack included dragging the victim under a railing into a garden and then removing his clothing. It is also of note that the victim was a relatively frail and much older man.
The victim sustained a severe traumatic brain injury, multiple rib fractures, widespread facial soft tissue and bone injuries, a fractured jaw, a broken collarbone, lacerations and bruising. The victim would have died from his head injury or an airway obstruction had he not received medical treatment. The sentencing judge described the attack as exceptional because of its duration, the number of times the offender struck the victim, the offender’s grossly disproportionate reaction, and the extremely vicious and callous nature of the attack generally.
The offending took place in a context in which the offender already had an extensive criminal history, including five prior convictions for crimes of violence. In 2004 he had committed the crime of causing serious harm in circumstances similar to the subject offending. That previous offence involved a severe assault on his stepbrother while the victim was incapable of defending himself and despite the intervention of family members. Again, the victim on that occasion suffered a severe brain injury and multiple fractures. The offender had also previously assaulted his partner on three occasions, including on one occasion with a brick. He also had prior breaches of parole and orders suspending sentence.
I have received a psychiatric assessment dated 16 April 2023 which addresses the offender’s personal history, medical history, psychiatric history, substance abuse history, progress in custody and, ultimately, his risk of committing further offences of violence. So far as the offender’s social history is concerned, the report concluded that his adult life in the community had been characterised by homelessness, itinerancy and alcohol dependence. His affiliations were predominantly with intoxicated peers, and those interactions involved frequent fighting and offending, including to obtain alcohol. The offender was diagnosed with a severe substance use disorder involving alcohol. He had attended rehabilitation on at least three previous occasions prior to this offending. He had been expelled before completing two of those programs, and he rapidly relapsed into alcohol abuse immediately upon leaving all three.
So far as the risk assessment is concerned, the risk of further offending and danger to the community is almost exclusively associated with alcohol use. If the offender is released and does not consume alcohol, his risk of violence would be low. However, if he consumed alcohol his risk would immediately escalate to a high risk of violence which would likely remain so elevated that it could not be managed effectively. The risk of a relapse into alcohol use is assessed as high based upon the offender’s history of alcohol use in the past, despite it being in breach of parole conditions and following rehabilitation placements. That opinion and conclusion is consistent with the other material before the court in the matter, including the exit report from the violent offender treatment program and the institutional report from the Darwin Correctional Centre.
In particular, the assessment of suitability for supervision draws the following conclusion: “Mr Hughes’s risk of recidivism within the community is assessed as high based on his history of non-compliance, lack of internal motivation and insight, lack of a pro-social network, and risk of relapse within the community.”
The psychiatric assessment goes on to identify a number of possible interventions should the offender be considered for conditional release. They include placement in a location where alcohol is limited, supervision and oversight by Community Corrections, unannounced visits, random alcohol testing, curfew, a condition precluding attendance at licensed premises, real-time monitoring, and Naloxone at a minimum and ideally in combination with a range of other pharmacotherapy. Oral medication would be required under supervision on at least 2 to 3 occasions per week. The offender would also require social support including stable accommodation, psychosocial support and employment or other meaningful occupation. Residence in Maningrida, or some other community, is not a feasible option given the unavailability of adequate supervision and some of the more intensive medical and pharmacological interventions which would be necessary.
Unfortunately, even in Darwin many of those interventions would be either unavailable to the offender or at the very least speculative in terms of their availability. It is possible that if he were accepted into the Anglicare OutCare Program he may receive assistance with employment services, accommodation referrals and similar supports. However, there has been no formal referral in the circumstances and, accordingly, no clear indication as to whether the offender would be assessed as suitable.
It would be a condition of any acceptance into the program that the offender undertake a residential rehabilitation program for his alcohol abuse condition before entry into the OutCare program. Again, it cannot be determined whether the accused would be assessed as suitable for those programs, particularly having regard to his three previous failed attempts and his extensive history of violent offending.
Moreover, the offender’s entrenched social history and record of non-compliance give rise to substantial doubt about the likely success of those interventions. In particular, the notion that the offender will find and retain meaningful employment or vocational occupation is at odds with his history of unemployment throughout his adult life. It would also seem highly optimistic to conclude that the offender will remain abstinent given his social history and his lack of insight. His lip-service to abstinence seems directed primarily to enhancing his prospect of an early release from prison.
The body worn alcohol detection device recommended in the psychiatric assessment is not available in the Northern Territory. Similarly Naloxone implants are not available in the Northern Territory, although there are other alcohol abstinence related medications for which the offender could be assessed.
It cannot now be concluded that the offender would secure the supported accommodation, occupational support, alcohol-related intervention and pharmacotherapy necessary to reduce the risk of a relapse into alcohol use and further offending. In part, that is because formal referrals cannot be made until there is a potential date fixed for the offender’s release. Counsel for the offender concedes that even in the event that the indefinite sentence is discharged and the court sentences the offender for the attempted murder, something more than the minimum non-parole period of 50 percent would be called for having regard to the nature of this offence and his extensive history of violent offending. That being the case, if the offender was sentenced at this time and a non-parole period of, say, nine or 10 years was fixed, no formal referrals could or would be made until that time.
Leaving that matter of practicality aside, given the offender’s current age of 36, his criminal history, his lack of insight into his condition, and his adult history of unregulated alcohol abuse, I consider there is a high degree of probability that upon release the offender would quickly relapse into alcohol abuse. That is consistent with the psychiatric assessment of that risk. I also find that the offender’s risk of further offending and danger to the community is almost exclusively associated with alcohol use, and on relapse his risk would immediately escalate to a high risk of violence.
For these reasons, I am satisfied to the requisite high degree of probability that the offender is still a serious danger to the community, and that the indefinite sentence should continue in force. There will be a further periodic review in accordance with the legislation.

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