Supreme Court of Tasmania|1991-01-18|Before: Green CJ

R v Jamie Gregory McCrossen [1991] TASSC 1 (18 January 1991)

GREEN CJ The accused has pleaded guilty to attempting to commit the crime of threatening to murder contrary to ss. 299 and 162 of the Criminal Code. The particulars of the charge are that the accused "at Hobart in Tasmania on or about the 14th day of August, 1990 knowing the contents thereof, wilfully, and with intent thereby to intimidate Frances Maree Christensen did attempt to cause her to receive a letter threatening to kill her". Section 162 of the Criminal Code reads as follows:

"Any person who, knowing the contents thereof, wilfully, and

with intent thereby to intimidate or influence any person,

causes such person to receive any writing threatening to

kill him or any other person, is guilty of a crime.

Charge: Threatening to murder."

2. The accused is and was at the time of the commission of this crime serving a sentence of imprisonment imposed upon his conviction for assault and wounding both of which counts related to the present complainant. The accused wrote a letter to the complainant and by some method other than the ordinary post the accused arranged for an envelope addressed to the complainant containing the letter to be delivered to the complainant's letter box. The complainant's husband found the letter and read the contents of it to the complainant over the telephone. The letter reads:

"You know how it feels to have blood come out of your head.

Tonighight i cut my hand so you can look at some of my

blood, and i going to tell you now i am thinking of Putting

you to death when i get out. you know why i hit you and you

lied about what happened You may think i will chicken out

from doing this because of the life term i will get. I do

feel sorry for my family but not myself and truthfully i

would not mind i got sentenced to death. Before i wanted to

chop your hands off and i am going to do that and also shoot

you in the head and after that i am going to kill everyone

in sight.

Death will overcome.

Yours faithfully Jamie xxxx"

3. The letter is stained with the accused's blood.

4. The accused was interviewed by Det. Sgt. Carrick and upon being asked whether he wrote the letter he said "course I did, and I mean it". Sgt. Carrick's account of the interview which the Crown adopted as part of its statement of the facts relevant to sentence continued:

"Detective SPINKS said, 'She is quite concerned about the

contents of the letter.'

The accused said, 'She should be, they can't keep me in here

forever, I get out in January.'

I said, 'Do you intend to carry out your threat.'

The accused said, 'Yes.'

Detective SPINKS said, 'How did you intend to carry out your

threat.'

The accused said, 'Like I said, chop her hands off and shoot

her in the head.'"

5. As part of his statement of the facts counsel for the Crown asserted that the requisite intent to intimidate may be inferred from the circumstances and counsel for the accused does not challenge that assertion.

6. Counsel for the Crown submits that pursuant to s.392 of the Criminal Code the accused ought to be declared a dangerous criminal. Section 392 reads as follows:

"(1) Where a person who has apparently attained the age of

17 years -

(a) is convicted of a crime involving an element of

violence; and

(b) has at least one previous conviction for a crime

involving such an element -

the judge before whom that person is so convicted or, as the

case may be, the judge of the court before whom that person

is brought up for sentence, may declare that that person is

a dangerous criminal if the judge is of the opinion that

such a declaration is warranted for the protection of the

public."

7. The following conditions need to be satisfied before the discretionary power conferred by s.392 may be exercised:

1. The accused has apparently attained the age of 17 years.

2. The accused has been convicted of a crime involving an

element of violence.

3. The accused has at least one previous conviction for a

crime involving an element of violence.

4. The judge is of the opinion that a declaration that the

accused is a dangerous criminal is warranted for the

protection of the public.

8. Conditions 1 and 3 have been satisfied. I turn to consider whether condition 2 has been satisfied.

9. I agree with respect with the view expressed by Wright J in R. v. Gill 52/1989 that in order to satisfy the requirements of s.392(1)(a) the "element of violence" involved need not be an essential ingredient of the crime. The section provides that the crime of which the accused is convicted must be a crime "involving" an element of violence. The word "involving" is not the equivalent of "one of the essential ingredients of which is" and there is no reason not to give the word its ordinary meaning. However if the element of violence relied upon is not an essential ingredient of the particular form of the crime with which the accused is charged I think that the crime may only be regarded as "involving an element of violence" if the violence relied upon is so connected with one of the ingredients of the crime that the court would be entitled to take it into account when exercising its ordinary sentencing discretion without violating the principle referred to in R. v. De Simoni [1981] HCA 31; (1981) 147 CLR 383 and Lovegrove v. The Queen (1961) Tas SR 106 that a judge may not take into account aggravating circumstances if the effect of his doing so is that the accused is sentenced for a crime other than that of which he has been convicted. Bearing in mind the very serious consequences which can follow from the operation of s.392, in the absence of a clear indication to the contrary I think that the court should lean against a construction of s.392(1)(a) which could result in a judge who is exercising his discretion under that section taking into account factors which he would not have been entitled to take into account when exercising his ordinary sentencing discretion.

10. The element of violence relied upon by the Crown is the making of the threat to kill. The word "violence" is not defined in the Criminal Code. It obviously includes the application of actual force to the person of another but the issue in this case is whether it is also capable of including a threat to apply force to another.

11. In R. v Criminal Injuries Board (1985) 2 All ER 1069 at 1076 the court held that for the purpose of the Criminal Injuries Compensation Scheme the words "crime of violence" included a threat to inflict personal injury on another. That decision was affirmed by the Court of Appeal (1986) 2 All ER 478. In R. v. Butcher 1986 VR43 the Full Court of the Supreme Court of Victoria was required to consider whether the crime of robbery which at common law was capable of being committed without the application of actual personal force was a crime "the necessary elements of which include violence" for the purposes of s.3A of the Crimes Act 1958 (Vic.). After an extensive review of the authorities the court concluded at p 50 that "both putting a person in fear or seeking to put a person in fear of being 'subjected to force' have always been accepted under the common law as violence" notwithstandinsg that actual force has not been applied. To similar effect in Brown v. the Queen; The Queen v. Brown 69/1987 Wright J sitting as a member of the Court of Criminal Appeal in reasons for judgment with which the other members of the court concurred said at pp 5 and 6:

"Rape is a crime of violence properly so called even if

threats express or implied have been sufficient to overbear

the victim's will without the offender resorting to a direct

physical attack."

12. Applying the meaning which the common law has given to the word "violence" I hold that for the purposes of s.392(1)(a) of the Criminal Code the making of a threat to kill with the intention of intimidating someone is capable of constituting a crime involving an element of violence.

13. I turn to apply the foregoing conclusions to the circumstances of this case.

14. The accused, intending to intimidate the complainant caused a written threat to kill the complainant to be carried to the complainant. Fortuitously the complainant did not physically receive the writing containing the threat but its contents were conveyed to her orally. I hold that the crime to which the accused has pleaded guilty was for the purposes of s.392(1)(a) of the Criminal Code "a crime involving an element of violence".

15. I shall consider whether I am of the opinion that a declaration that the accused is a dangerous criminal is warranted for the protection of the public in conjunction with my consideration of whether I am satisfied that in the exercise of my discretion I should make such a declaration.

16. In Chester v. The Queen [1988] HCA 62; (1988) 165 CLR 611 the High Court made some observations about the way in which a judge should approach the exercise of a discretion similar to that which is conferred by s.392 of the Criminal Code. Those observations must be read in the light of the fact that s.392 contains more detailed provisions about the matters about which the court must be satisfied before it may make an order than did the legislation which was under consideration in that case. However insofar as the court's observations deal with the general considerations which should inform the exercise of the discretion they are applicable to s.392. At pp 618 and 619 the court said that the power to impose such a sentence "should be confined to very exceptional cases" and that the sentencing judge must be "clearly satisfied by cogent evidence that the convicted person is a constant danger to the community". The policy considerations which the court emphasised were:

1. That it is "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".

2. "The stark and extraordinary nature of punishment by way

of indeterminate detention", and

3. The fact that the term of that indeterminate detention

"is terminable by the executive, not by judicial, decision".

17. I would enlarge upon those considerations as follows:

1. An indeterminate sentence is qualitatively different from

any other sentence which the court may impose because in

part at least its imposition involves a person being kept in

custody for crimes which it is feared he may commit but

which he has not in fact committed.

2. In addition to the fact that an indeterminate sentence

may result in the accused spending longer in prison than

would have been the case had he been merely sentenced for

the crime of which he has been convicted the fact that a

person upon whom an indeterminate sentence has been imposed

does not know when he is to be released or indeed whether he

will ever be released in itself substantially increases the

severity of the punishment.

18. I turn to a consideration of the circumstances of this particular case. The accused is aged 19 years. During the last five years the accused has committed at least five offences or sets of offences involving violence in addition to the crime for which he is now being sentenced. He has a severe personality disorder. In a report dated 4 April 1989 a psychiatrist, Dr. Sale, expressed the following opinions:

"He is ill equipped to deal with interpersonal

relationships, and is likely to lack the basic living skills

necessary to cope with a non-institutional life. It is

unlikely to be a coincidence that almost immediately after

discharge from an institution, a series of events occurred

leading to a return.

...

No practical treatment measures exist.

...

His future is bleak. It is difficult to see him ever being

able to live outside of a controlled institutional setting."

19. In a report dated 15 January 1991 the Senior Forensic Psychiatrist in the Department of Health, Dr. Lopes, expressed these opinions:

"Following my last suggestion to the The (sic) Court in my

report of June 1990, I undertook to organise a treatment

programme for Jamie but he consistently refused to

co-operate and was non compliant when any suggestions were

made to him.

...

He continues to be impulsive, behave in an immature way and

is really not amenable to any 'treatment' programmes.

I am afraid that Mr. McCrossen is going to pose a continual

problem and it appears that he will need time to mature

sufficiently to get motivated to avail himself of the

counselling that is being offered to him. In the meantime I

consider him a danger in the community because of his

impulsive behaviour."

20. In addition to those opinions the accused himself has provided evidence which bears upon the issue of whether he is likely to re-offend. When he was interviewed in relation to the charge which is presently before the court the accused said that he intended to carry out the threat contained in the letter he had sent to the complainant. After that interview and after he had been charged the accused wrote another letter dated 2 December 1990 addressed to the complainant which was intercepted by the prison authorities. This letter was blood stained and contained a number of references to violence and death. In particular it contained the following statement:

"You may think I will stay here now that you gave that love

letter I wrote to you to the police but I will get out and I

will butcher you like the vermin you are. ......"

21. In another letter dated 18 December 1990 which was written by the accused and handed up to me by his counsel the accused acknowledged that what he did was wrong and expressed regret for having written what he did. He also said that he bears no malice towards the complainant or anyone else. The accused then went on to explain why he struck the complainant. However the accused does not expressly say that he no longer intends to carry out the threats he has made to the complainant although that might have been intended to be implicit in his expression of contrition. But in the same letter the accused also said that if his grandmother who is in ill health dies as a result of her learning of the sentence which is imposed upon him "I would probably do what I said if that happened". I construe those words as meaning that in the event of his grandmother dying the accused would probably carry out the threats made in his previous letters. Counsel for the accused did not seek to make any submissions that I should construe those words in any other way.

22. I bear in mind that the accused is not being sentenced for forming the intention to carry out the threat which is the subject of the present charge or for making the threats contained in his letters of 2 December 1990 and 18 December 1990. However those matters are relevant to the issue of whether the accused represents a danger to the community.

23. I am satisfied that the accused is likely to commit further crimes of violence if he is released from prison now and that for some time at least it is unlikely that either treatment or the deterrent effect of a sentence of imprisonment would significantly reduce the likelihood that he will commit further crimes of violence.

24. I take into account that the crimes to which I have regard for the purposes of s.392(1) of the Criminal Code were not especially serious examples of crimes of violence but they cannot be dismissed as trivial. I have regard to the matters which have been put to me by counsel for the accused and to the fact that the accused has had a most disturbed and deprived background. I am very conscious of the gravity of a decision which results in a 19 year old offender being declared to be a dangerous criminal. However such is the danger which I am satisfied the accused represents to the community I am not satisfied that any sentence other than a sentence imposed pursuant to s.392 would be in the public interest. I am satisfied that a declaration pursuant to s.392 is warranted for the protection of the public and in all the circumstances I am satisfied that it would be appropriate in the exercise of my discretion to make such a declaration.

25. I declare that the accused is a dangerous criminal.

R v Jamie Gregory McCrossen [1991] TASSC 1

At a glance

Court

Decision date

Before

Source

Judgment (38 paragraphs)

R v Jamie Gregory McCrossen [1991] TASSC 1 (18 January 1991)

Parties

Cases Cited (2)