R v Hatten[2008] QSC 320

SUPREME COURT OF QUEENSLAND

     BYRNE SJA:

Indefinite Sentence Sought

[1] On his plea of guilty, Sean Hatten is to be sentenced for attempted murder.  The main question is whether an indefinite sentence should be imposed under s.163(1) of the Penalties and Sentences Act 1992 (“the Act”).

[2] In the circumstances of this case, before an indefinite sentence may be imposed, the court must be satisfied[1]:

“that the offender is a serious danger to the community because of –

(i) the offender’s antecedents, character, age, health or mental condition; and

(ii) the severity of the violent offence; and

(iii) any special circumstances”.

[3] The court may make a finding that Mr Hatten is a serious danger to the community only if satisfied by acceptable, cogent evidence and to a high degree of probability that the evidence is of sufficient weight to justify that finding.[2]

[4] By s. 163(4):

“In determining whether the offender is a serious danger to the community, the court must have regard to—

(a) whether the nature of the offence is exceptional; and

(b) the offender’s antecedents, age and character; and

(c) any medical, psychiatric, prison or other relevant report in relation to the offender; and

(d) the risk of serious physical harm to members of the community if an indefinite sentence were not imposed; and

(e) the need to protect members of the community from the risk mentioned in paragraph (d).”

[5] That list of considerations does not “limit the matters to which a court may have regard in determining whether to impose an indefinite sentence”.[3] 

[6] Mr Hatten has previously been sentenced to an indefinite sentence in respect of the attempted murder.  In those proceedings, the judge had not been asked to take into account the potential “protective effect of the finite sentence”[4].  In allowing the appeal, the Court of Appeal said:[5]

“… the need for the indefinite sentence was to be considered “in the light of the protective effect of a finite sentence”; and questions of risk assumed greater uncertainty because they had to be considered against a background in which the applicant would remain in custody for many years. The parole system and the possibility of treatment in custody required consideration. It was possible that the system of review under the Act would be, in a given case, the only proper way of balancing community interests against justice to the offender; but … “the protective potential of the ordinary sentencing regime needs to be examined first and most closely before deciding to depart from it”.

Offence and Offender

[7] The circumstances surrounding the attempted murder, Mr Hatten’s background and the psychiatric and psychological evidence available at the time were described by the Court of Appeal in this way:

“The attempted murder

[5]The applicant, without explanation or provocation, accosted a middle-aged woman walking in a reserve and stabbed her a number of times as she endeavoured to get away from him. In all, she received 13 stab wounds to her hand, arm, chest, side and back. Two of the wounds, over the sternum, were described in a medical report as deep; they were 10 cm in length.

[6] In the hours after the assault the applicant went to his father’s house and told him that he had stabbed someone, as a result of which the police were called. The applicant was interviewed. He said that he had been on his way to work from his uncle’s house where he had been living, but thoughts about hurting people, which he had constantly, drove him to the bush. He pictured how he might hurt people, how he might “bash them, stab them, choke them, hang them up”. When he initially arrived at the reserve, he intended to hang himself so as not to act on his violent thoughts but when he saw the woman something in him snapped and he lashed out with his pocket knife. He said that he had no thought of sexual assault but had a mental picture of himself killing her.

The applicant’s background

[7] The applicant was 20 years old when he committed the offence. He had a criminal history as a child; he had pleaded guilty to two counts of attempted robbery, one count of indecent assault, one count of common assault and one count of rape committed in 1999, when he was 16 years old, and had been sentenced to six years detention. The rape involved an attack on a 12 year old child riding her bike through a park. He had forced her into bushes where he raped her, using a condom. He was arrested almost immediately, but was given bail. A month later, in separate incidents, he assaulted two 16 year old girls, grabbing them and demanding money from them. (He said later that he needed money to buy cannabis.) In the course of one assault he held the victim down and rubbed her breast and buttock. He assaulted a friend who came to her aid, slapping her across her face.

The psychiatric and psychological evidence

[8] At the time he was dealt with in the Children’s Court and later while he was held in juvenile detention, the applicant was interviewed by a number of psychiatrists, psychologists and officers of the Department of Families, Youth and Community Care. All noted a lack of empathy for his victims. The various reports describe a background of disharmony and violence between the applicant’s parents, culminating in their separation when he was 14. After the applicant began high school he started to get into trouble, truanting, misbehaving and ultimately being expelled from school. He reported having had suicidal thoughts and having on occasion harmed himself in minor ways. He said that he sometimes experienced voices telling him to do things, including harming other people. A psychometric assessment established that his full scale IQ was within the borderline range.

[9] A week after his apprehension on the attempted murder charge, the applicant was interviewed by a psychiatric registrar, Dr Voita, whom he informed that prior to the 1999 offending he had used cannabis, amphetamines and heroin; he had also, at the age of 15, sniffed aerosols and petrol. After his release from juvenile detention he had been using between 50 and 80 cones per day of cannabis. Eight months after his arrest, having cut himself with a razor, the applicant was examined in prison by a psychiatrist, Dr Schramm. He told Dr Schramm that after the attempted murder he had gone to other bushland to find another victim; he was unable to say why. Dr Schramm noted his lack of empathy with the victim.

[10] Dr Donald Grant, psychiatrist, prepared a report dated 18 July 2005 for the assistance of the sentencing judge and gave evidence at the sentence hearing. The applicant had refused an interview; the report was based on the available material, including the briefs of evidence for the attempted murder and the 1999 offences, and previous psychiatric and psychological reports. Dr Grant’s evidence was explored, but not challenged, in cross-examination. He noted the applicant’s disrupted family background and limited intellectual resources. He regarded him as having a “very disturbed personality with borderline and anti-social traits”. Dr Grant did not think that the voices that the applicant reported hearing were indicia of psychiatric illness; he thought it more likely that they were drug-induced.

[11] Dr Grant identified a number of features of particular concern: the fact that the applicant’s earlier offending behaviour had occurred when he was only 16; the extent of the violence used in the rape and the attempted murder, and the apparent escalation in violence between them; the emotional coldness with which the offences were carried out; the lack of warning signs before the behaviour in question making it difficult to predict impending offences; the fact that the offences were committed against strangers for motivations which were entirely internal to the applicant himself and were not identifiable; the applicant’s apparent inability to control his anger or impulses towards violence; his inability to understand the effects of his behaviour; his lack of understanding of future risks; the lack of any social network; the history of very heavy substance abuse; and the harm done to others.

[12] It was unlikely, Dr Grant said, that the applicant could establish himself in any secure social position soon after leaving prison; and there was some risk that he would offend simply to get back into the prison environment. He presented a high probability of recurrent offending. His personality disorder was not amenable to treatment. The only positive thing Dr Grant could find to say was that the applicant was young and might yet be malleable and able to develop better controls over his behaviour. He could be expected to mature over the next 10 to 20 years and “hopefully [sic] over a period of years will develop further insights into his own behaviour and need for assistance”. Dr Grant was not asked specifically to deal with the question of the risk the applicant might pose at given times in the future; at the end of, say, ten or fifteen years in custody.”

     Psychologist’s report

[8] In May this year, Ms Weston, a psychologist, furnished a report directed to the risk of serious physical harm to members of the community Mr Hatten would present if released now.  Unfortunately[6], she was not asked to express an opinion about the nature and extent of the risk he would pose after imprisonment for many years.  This matters because, as is common ground, as it happens, making due allowance for a guilty plea, 15 years is the appropriate sentence if an indefinite sentence is not to be imposed.  But the report is not devoid of value. 

[9] Ms Weston interviewed Mr Hatten a few days before her report.  He told her that after the attempted murder of his victim, he went to another bushland area to find another victim.  He waited half an hour before going to his father’s place. 

[10] Mr Hatten said that he tried to kill his victim so that he could be returned to prison.  He was finding it difficult to adjust to life in the community. 

[11] Ms Weston considered that Mr Hatten had limited insight into the gravity of his offending and failed to evince any victim empathy or remorse.

[12] Mr Hatten told Ms Weston that he hated school and left at the end of year 8, after being expelled.  He had never held a job for more than a few months.  He had generally had bad relations with teachers and employers.    He spent many of his teenage years in detention.  

[13] In prison, Mr Hatten had completed educational and vocational training courses in metalwork, health and safety and vocational literacy.  He enlisted for literacy and other educational programs but had failed to complete them because, he said, he did not feel comfortable in a classroom environment.  Mr Hatten expressed a willingness to participate in recommended programs.  Ms Weston was concerned, however, that he was not well motivated and that his prospects of completing courses were diminished by his low level of intellect and lack of insight, lack of empathy and absence of remorse.

[14] Ms Weston asked Mr Hatten about reports of poor relationships with his family, including that he did not speak to his mother, father, sister or brother.  He was uncomfortable responding to questions about family and early childhood.  Eventually, he disclosed that his mother had suffered bi-polar disorder and was violent towards him, his father and his siblings.  He also said that he has no friends or associates in the community.  Apart from two non-contact visits with a female, he had not had any visits since 2005:  his visitor was a 21 year old he had met through “a mate”.

[15] Ms Weston’s assessment of reports of prison staff indicated that Mr Hatten had generally presented with an acceptable level of institutional behaviour.  There was, however, a concern about his having been identified as the perpetrator in six custodial incidents with other prisoners, most of which involved violence by him.

[16] Ms Weston concluded:

“… there is extremely high risk of serious physical harm to members of the community if offender Hatten was released. 

This conclusion is based on [his] past criminal history, his current presentation and his total lack of victim empathy and remorse.  He has no insight into his offending behaviour and he appears to have a total disregard for the rights of others.

[His] previous sentence and custodial placement for the rape of the twelve year old child appeared to offer no form of deterrent as he re-offended within a five month period of being released.  It should also be noted that offender Hatten’s rationale for committing his current offence was to be returned to secure custody where he felt safe.

[His] current institutional behaviour appears to be stable … however he has in the past demonstrated violent behaviour towards the other prisoners …

Although … he was willing to participate in the recommended programs it would be questionable as to how motivated he would be to complete the programs successfully given his lack of insight, lack of empathy, lack of remorse and his level of intellect.

…he has no external support from his family, peers or community agencies.  .. he has no plans for gaining employment or finding appropriate accommodation upon release.

…[he] dismissed the gravity of his offending and stated that all he wanted to do was get out of jail.”

Psychiatric assessments

[17] The report of the psychiatrist, Dr Kar, of 12 May 2008 is also directed to present rather than future risk on release.  Even so, it is of some use.

[18] Dr Kar was left with the impression that Mr Hatten’s family history reveals serious mental illness.  Mr Hatten told him that his mother had been hospitalized in a psychiatric institution; and that an older sister and younger brother suffered from schizophrenia. 

[19] Dr Kar thought that Mr Hatten had low borderline intelligence and learning difficulties.  He diagnosed him as suffering from anti-social personality disorder.  Dr Kar also reports:

“Regarding his offences, Mr Hatten showed no empathy … he had no remorse”. 

Dr Kar expressed the opinion that it was extremely rare for someone to want to kill a stranger without any reason “but just for the sake of killing the person”.  And, as Dr Kar understood things, the attempted murder was not directed to some goal, such as monetary gain or sex.  Nonetheless, the offence was planned.  Mr Hatten had armed himself with a knife and attacked a stranger in a quiet place.  According to Dr Kar, the “offence does not show any reasonable explanation”, and Mr Hatten has “no internal control such as a moral conscience which would prevent him from doing harm to another”.

[20] Dr Kar considers that:

“It is possible that his personality will improve to a small extent over one to  two decades and thereby reduce his dangerousness.  However his intelligence will not improve …  His psychosis … will not resolve …

… due to his criminal history, his escalating dangerousness, his personality and his mental illness, he is an extremely dangerous person … due to his current lack of remorse and completely (sic) absence of empathy, low intelligence, Antisocial Personality Disorder characteristics and a complete lack of insight into what he has done, I cannot see any improvement …

…the risk of serious physical harm to members of the community if he was released now is … extremely high.  It is … very likely that he would commit a serious offence involving serious personal violence, extreme violence or a sexual offence or use a weapon and cause serious injury, sexual assault or death.  This is based on his past criminal history and his complete lack of regard for the law  or for the rights of others. 

His previous sentences and convictions appear to have had no deterrence value to him, in fact, they have become a reason for him to offend …

I cannot envisage this man being safely released into the community …”

[21] Dr Grant, who has not interviewed Mr Hatten, testified to his opinions about the nature and extent of the risk that Mr Hatten would present to community safety were an indefinite sentence not imposed. 

[22] Mr Hatten scored 28 on the Hare Psychopathy Checklist, which is, Dr Grant said, “indicative” of a “high level of psychopathy”[7].  The psychopathy is untreatable. There may be some “maturation” in Mr Hatten after “decades, not just months” which might result in a lessening anger and a reduction in its expression through physical aggression.  Still, the prognosis is poor.  Even in the controlled environment of a prison, Mr Hatten has had difficulty controlling his rage and aggressive behaviour, as the assaults on other prisoners attest.

[23] Programs and courses in custody are unlikely to reduce the risk of serious physical harm to others on release after serving a finite term.

[24] Mr Hatten is of borderline intelligence with a very poor educational history.  In Dr Grant’s assessment,  programs such as cognitive skills and anger management often require a level of literacy that Mr Hatten has not attained.  So courses that might offer some assistance would be difficult for him, even if he were motivated to undertake them. 

[25] Dr Grant is “extremely pessimistic” that, in the next 10 to 15 years, Mr Hatten might participate effectively in a program that has some prospect of reducing his risk to community safety, mainly because of the level of Mr Hatten’s psychopathy, his low intelligence and a lack of effective participation in courses to this stage. 

[26] In Dr Grant’s opinion, there is a very high risk that Mr Hatten would be very violent if released.  The violence, which is more likely to be directed against women, is:

“That he would kill somebody or … at least would cause very serious harm …”.

[27] In Dr Grant’s prediction, it is difficult to see that the relevant risk would change after 15 years. 

[28] Asked to consider whether parole might reduce the risk on release, Dr Grant said that Mr Hatten’s psychopathy, personality disorder, low intelligence and tendency to substance abuse furnish grounds for pessimism.  Unless some “miracle new way of supervising or treating people” comes along in the next 10-15 years, it would be “very hard for a parole service to manage or prevent the risk of serious physical harm to members of the community that Mr Hatten would present at the end of that period.”

Serious danger to the community

[29] Mr Hatten is a “serious danger to the community” within the meaning of s. 163 of the Act.  That fact is established by acceptable, cogent evidence, to a high degree of probability.

[30] The attempted murder was exceptional, in the sense that the attack was upon a stranger and its motivation remains obscure.  Mr Hatten’s antecedents involve multiple offences of violence committed by a young man and, in the case of the attempted murder, while on supervised release a few months after being released from detention.  Dr Grant’s testimony, the psychiatric and Ms Weston’s reports[8] in particular  present a picture of a man at great risk of killing or causing serious harm were an indefinite sentence not imposed.[9]

[31] Imposition of an indefinite sentence is exceptional.  Here, however, such a sentence is “the only proper way of balancing community interests against justice to the offender”[10].  A finite sentence that would have Mr Hatten in custody for another 12 years or so would have little or no  “protective effect”[11]. And supervision under parole has no realistic prospect of reducing the grave danger that Mr Hatten would kill. 

Nominal sentence

[32] The nominal sentence should be 15 years.

Section 159A Declaration

[33] The next question is whether there should be an order pursuant to s. 159A(1) of the Act that time spent in custody in relation to proceedings for the attempted murder and for no other reason not be declared to be imprisonment already served under the sentence.

[34] In originally sentencing Mr Hatten, the judge said:

“The prisoner has been held in custody in relation to the attempted murder … and for no other reason.  The Crown has submitted that the court should exercise the discretion … to order otherwise, and order that only the period  from 7 February 2005 to 3 October 2005 be declared as time served under the sentence I have imposed today.

That submission is based on the circumstances that when taken into custody for this offence, on remand, the prisoner was subject to and in breach of the fixed release order in respect of the rape.  From his arrest on 15 September 2003 until 7 February 2005, the prisoner was subject to that fixed release order relating to the earlier rape conviction.

Now, the legislative provisions in the Juvenile Justice Act 1992 do not contain automatic retrospective cancellation provisions …

No action was taken by those responsible for the prisoner’s fixed release order to breach him … Accordingly, the prisoner was not held in custody in relation to the remainder of his rape sentence.  He was still subject to the fixed release order which entitled him to be at large and he was held in custody only in relation to the attack ...

He was potentially subject to the provisions of s. 231 of the Juvenile Justice Act under which application could have been made to a Childrens Court Magistrate for a finding that he had breached the order and for the issue of a warrant for his detention.

The consequence of that would have been that he would not have been entitled to a declaration.  However, no such application was made on behalf of those responsible for managing his detention.

… the view was held that such an application could only be made after conviction …

In my view, the prisoner should not take the advantage of a pre-sentence custody declaration from the date of his arrest on 15 September 2003  to today’s date.  One of the conditions of his release on the fixed release order was that he not commit any offence while subject to that order. 

The result of my not extending the declaration to include the period between 15 September, 2003 and 7 February 2005 when the fixed release order in respect of the rape expired is that the prisoner would not have served out the time of imprisonment ordered in respect of the rape, in the sense that he would be denied credit now in respect of that period viz a viz the sentencing for attempted murder.

I consider that to be the just result.  In other words, as to the rape and attempted robbery sentences, he should get credit only for the period that he was on the fixed release order and did not further offend”.  

[35] I shall follow that approach.[12]

[36] Accordingly, it is declared, pursuant to s. 159A (1) of the Act, that the 1401 days spent in pre-sentence custody from 7 February 2005 until today be taken to be imprisonment already served under the sentence.