Regina v Hall [2001] NSWSC 1125

New South Wales Supreme Court

CITATION : Regina v Hall [2001] NSWSC 1125 CURRENT JURISDICTION: Criminal FILE NUMBER(S) : SC L00001/98 HEARING DATE(S) : 23 November 2001; 29 November 2001 JUDGMENT DATE : 29 November 2001

PARTIES : The Crown Maddison Hall (Appl) JUDGMENT OF : McClellan J

LOWER COURT Supreme Court JURISDICTION : LOWER COURT FILE NUMBER(S) : LOWER COURT Enderby J JUDICIAL OFFICER :

COUNSEL : G Smith (Crown) A Webb (Appl) SOLICITORS : Director of Public Prosecutions Legal Aid Commission of NSW CATCHWORDS : Criminal law - sentencing - redetermination of life sentence - where applicant sentenced to penal servitude for life - offence of murder committed by applicant involved a high degree of criminality, however it did not involve criminality of the highest order - where appropriate to set a specified term for sentence LEGISLATION CITED : Crimes (Sentencing Procedure) Act 1999 Schedule 1 cl 3, cl 7, CASES CITED : R v Alexander (1999) 107 A Crim R 449 DECISION : See para 35

IN THE SUPREME COURT OF NEW SOUTH WALES criminal DIVISION McCLELLAN J THURSDAY, 29 NOVEMBER 2001 L00001/98 - REGINA v Maddison HALL Judgment: On redetermination of life sentence 1 HIS HONOUR: The applicant, then known as Noel Compton Hall, was found guilty by a jury of murdering Lyn Saunders on 22 December 1987 at Gol Gol in the State of New South Wales. He was sentenced by Enderby J who imposed a life sentence saying: "There are no mitigating circumstances. There could not be any. I sentence you to penal servitude for life." 2 The applicant has, since incarceration, identified herself as a female and undergone appropriate treatment, which will ultimately reassign her gender. She has changed her name to Maddison Hall. She was born on 4 December 1963 and was, accordingly, aged twenty-four at the time of the offence. 3 The circumstances of the murder reflect a very significant degree of criminality. The applicant and an associate had determined on a criminal enterprise with its aim being the purchase of marijuana in the Mildura area of the State. The associate had previously picked up the victim, who was a hitchhiker and it was intended that the victim would be used because of his contacts, to access drugs. He had apparently been in the course of hitchhiking to Adelaide where his parents lived. As time passed, the victim failed to produce the promised contacts to make the drugs available. The applicant gradually became angry and sarcastic and formed the view that the victim was using them to obtain a free lift on his way to his parents' home in Adelaide. He then decided to kill the victim who was shot, first in the back and then, the victim having fallen to the ground, he was shot through the mouth, blowing the back of his head away. 4 Enderby J described the events in this manner: "So the facts that the jury accepted are that you armed yourself with a deadly weapon, a shot gun which you had cut down and shortened and adapted so that it could be used in a surreptitious way. You and Higgins took off on a criminal venture which had as its aim the purchase of marijuana in the Mildura area of the State. Higgins had earlier by chance picked up the deceased who was a hitchhiker. There was conversation about drugs and him being able to obtain marijuana. Higgins brought him to your place, you took your gun but also arranged for him to be put in funds. It can all be summed-up as you sing the services of the deceased so that you could obtain drugs from him from contact that he had in the Mildura area. He was in the course of, at the time, hitchhiking to Adelaide where his parents lived. You could have had no animosity towards him at the beginning of the venture but what seems to have happened as time passed was that he failed to find the drugs which he told you he could find and you became angry with him and sarcastic and thought, rightly or wrongly, that you were being ripped off by him and that he was only using you to obtain a free lift on his way to his parents' home in Adelaide. That seems to be the most likely explanation for what happened. Of course, in normal circumstances, such a state of mind would not be expected to lead to such a terrible crime but in your case it did. On the evidence, the inference is overwhelming that you just decided to kill him. It may be suggested that perhaps your earlier consumption of drugs on the night in question in some way contributed to you forming the intent to kill but nothing has been put to me about that and I could not be satisfied about it. There was evidence that the deceased had taken some drugs and thee was evidence that Higgins had taken some drugs, but there was very little evidence that you had taken any, except much earlier. So at the time in question the evidence is that you were not affected in any way. During the trial you yourself made no claim to have been affected by drugs." 5 Enderby J went on to say: "The opinion I have formed – and I am sure it is the opinion the jury formed – is that you are unhappily the sort of person who, when placed in a situation of that kind, where you believed as I have said, rightly or wrongly, that you were being ripped off, was capable of cold-bloodedly reacting in the way you did. There is no evidence of provocation by the deceased, it was just a simple decision on your part to brutally snuff out the life of a young man." 6 The applicant was sentenced to penal servitude for life and, having regard to the fact that he was already serving a gaol term in relation to a previous offence, his Honour determined that the sentence would date from 1 August 1989, being the date his Honour found the applicant was held in custody in relation to the charge of murder. 7 The applicant now seeks to have that sentence redetermined pursuant to Schedule 1 of the Crimes (Sentencing Procedure) Act 1999. The application was originally listed before Barr J at which time the applicant was facing a charge of sexual assault involving another inmate of a correctional institution. 8 The Crown sought that the application be adjourned. This was opposed by the applicant. However, Barr J was persuaded that, unless the charge had been determined, a serious injustice may occur, and he adjourned the matter. 9 The applicant was first received into Long Bay prison, where, for a time, she was held with an A2 classification. Although she received some adverse reports, she generally received positive reviews. She was drug dependent when admitted but underwent a methadone program. With time it would appear the applicant is no longer dependent on drugs, although there is evidence of continued marijuana usage for a greater period of time. However, the applicant presently appears not to be using that substance. 10 The applicant was later transferred to Maitland were she performed well. In 1996, following favourable reports, she was transferred to Junee with a B classification. 11 It appears that it was sometime before 1998 that the applicant first raised with the prison authorities, her claims to be a female. She claimed to be entitled to a transfer to a female gaol and the Serious Offenders Management Committee recommended her transfer to Mulawa which occurred on 14 August 1999. At that prison, problems seemed to have arisen, which included the allegation of sexual assault. As a result of these problems, the applicant was transferred and has since been held in the Acute Crisis Management Unit at Bathurst Correctional Centre since February 2001 under the status of a female. She has received excellent reports from that centre. 12 The sexual assault matters did not ultimately proceed. The complainant was released from prison and, I understand, travelled to New Zealand. There being no evidence, the matters were "no billed." The charges are not relevant to the decision which I must make. 13 The Department of Corrective Services, having concerns in the matter, carried out an investigation. Superintendent Lee Downes provided a report, as a result of which Acting Commissioner Woodham, on 9 November 2001, wrote to the Serious Offenders Review Council, asking that the applicant be managed in a male prison and be given a male classification. 14 During the investigation, Superintendent Downes interviewed the applicant. In the course of the interview, the applicant speaks of the difficulties with her sexual identity and her involvement with drug taking within the complex at Junee. It is clear that the applicant has been involved in a number of relationships and has offered sex to inmates in return for drugs within the prison system. 15 She was asked by Superintendent Downes about the circumstances of the murder and responded: "At that stage I just denied it to him because I denied it to him before. But I always knew that I had done it and I accepted responsibility for it. I regret it tremendously. I am not saying I would trade places – if I could go back not even with what I know now. I could go back to the day before it happened I'd guarantee it wouldn't happen. I would have done things differently, I wouldn't have gone that day, I would have stayed at home, especially because knowing what the outcome of the day was. Regards the fact that I got life that's got nothing to do with it. I'm just not happy that things got out of control and someone lost their life. As I said I will do whatever time I have to do for whatever I've done. I've got no issue with that … I regret terribly that he died. He was a nice person. Things just got out of control and he died." 16 The applicant gave evidence before me. She told of her recent work experience in prison and I was shown examples of her craft, using recycled materials. She is also undertaking a course of study in community work and hopes ultimately, to undertake a university course through Charles Sturt University. She told the court of her progress towards gender reassignment, including her understanding that she may have a full reassignment, including surgery, within nine months. 17 The applicant's use of drugs and problems with her gender status have been examined by the Department of Corrective Services. In a letter to the Serious Offenders Review Council, dated 22 October 2001, Alcohol and Other Drug worker Trezise, reported as follows: "Ms Hall is always polite and willing to work whenever we have met for counselling. Also she displays a realistic view of her A & OD and Transgender issues, her incarceration and potential difficulties associated with her possible release from custody. Ms Hall has stated on numerous occasions that her substance use was a way of coping with the stress related to her early sexuality conflicts. She feels that as she has now fully accepted herself for who she is there will no longer be any conflict that requires the use of drugs as a way to escape. Ms Hall certainly does appear to have a healthy self esteem in regards to her sexuality and gives every indication that other people's opinion of her transgender status no longer matters. Ms Hall also appears to have overcome her drug use and expresses the view that she no longer needs or desires drugs and has too much to lose by returning to substance use. I have discussed at length with Ms Hall the possibility of using substances to cope with difficult situations if she is released from custody and whilst she feels that this will not be the case, she wants to maintain regular contact with the counsellors at the Gender Centre for support. In this worker's professional opinion, Ms Hall has recovered from her past addictions and is looking forward without them, however, she would benefit from ongoing support from the counsellors at the Transgender Centre whilst incarcerated and in the community. Ms Hall appears to have realistic goals and expectations of herself if she is released from custody but will need support with her reintegration back into the community." 18 The applicant has been assessed by Dr William Lucas, a forensic psychiatrist. In a report dated 21 June 2000, he concluded: "Ms Hall's only psychiatric diagnosis is gender identity disorder, trans-sexual type. The diagnosis is recent, in the official sense, but she has given a history of seeing a general practitioner in 1985, this diagnosis being made and apparently some form of treatment instituted. It would be interesting to have corroborating information from this general practitioner or Ms Hall's relatives, if any at that time knew of her difficulties. I do not think there is sufficient information to make a personality diagnosis. Ms Hall has a history suggesting anti-social traits but drug abuse possibly clouds the picture and if sexual identity problems did arise many years ago these two would have to be taken into account. Anti-social personality traits may still be present but they are likely to have moderated over the yeas. Ms Hall's prison record is generally favourable, as it is most life sentence prisoners who have already served a substantial time. This is to her credit but one must always be cautious in using prison conduct to predict behaviour in the community. A long term prisoner needs to be prepared for release and carefully assessed during this process. It should be clear from this report there are some uncertainties about Ms Hall. I would have preferred to have received a more straightforward and detailed account of the offence itself. However, I think the setting of a minimum sentence would assist both Ms Hall and the correctional authorities in planning for her eventual release. Ms Hall's psychiatric condition, gender identity disorder, is not, as far as I can see, relevant to her crime but is a matter which will have to be dealt with by Ms Hall and the authorities during the remainder of her sentence. It will be a factor in the preparation for her release and how she is supervised in the community. The question of further medical treatment and other assistance is primarily the responsibility of her medical advisers. The question of the possibility of a further serious offence will be of concern to the court, especially in the light of Justice Enderby's sentencing remarks. From the psychiatric point of view, Ms Hall's diagnosis does not provide information relevant to future violent conduct other than it could be said that the successful adoption of female identity and the continuation of treatment with hormones may well reduce her aggressiveness. The offence occurred when she was involved in drug use and dealing so it is essential that Ms hall is not in any way involved in drugs on release and receives counselling and supervision. If problems arise with her psychiatric treatment or she reverts to drug use problems with behaviour could well arise." 19 Dr Lucas saw the applicant again in November 2001. On this occasion he concluded: "Ms Hall's psychiatric diagnosis remains gender identity disorder, trans-sexual type. Reference should be had to the psychiatric report of 8 September 1999 prepared by Dr Louise Newman which discussed diagnostic issues. Dr Newman excludes additional diagnoses such as psychosis or mood disorder. A similar assessment was made by Dr Parmegiani who saw Ms Hall in Junee during 1998. My assessment of Ms Hall is consistent with those of Dr Newman and Dr Parmegiani. My reassessment of Ms Hall indicates that she is now more settled in prison, although not in an institution for female inmates, and that her mental state is stable. She had no complaints indicating depression and she has been free of thoughts of self-harm and has not attempted to injure herself at Bathurst Correctional Centre. It should be noted that when I first saw her she had been in Mulawa for six weeks. It remains a good question as to how well Ms Hall and that institution had been prepared for her arrival. From November that year she was in a number of other prisons, segregated from male inmates and in a situation of personal and legal uncertainty. It seems she has responded to a more stable placement and an opportunity to work, study and form relationships with staff. Ms Hall has sensible and realistic plans for her future. She intends to pursue studies while still in prison and has ideas about how she might resettle in the community following her release. Her remaining years in prison may not be without difficulty in relation to classification, but I believe that both she and the Department of Corrective Services will be assisted by the setting of a minimum sentence so that appropriate planning can be undertaken. There are a number of possible classifications available once her sentence is determined: she could remain in Bathurst, be transferred to Emu Plains or, perhaps less appropriately, be returned to Mulawa. As far as I know the management of her gender disorder has been satisfactory and professional support is available for future treatment. At the time of the killing which led to her conviction for murder, Ms Hall was involved in drug abuse. There were indications of antisocial traits, as described in my previous reports, but these are likely to have modified over the years. If Ms Hall's gender disorder is well managed and she is able to resettle satisfactorily in the community, and avoid drug abuse, then the chances that she will reoffend in a serious fashion will be substantially reduced. She does not require treatment for a major psychiatric disorder but if needed psychiatric assessment and support can be provided during the remainder of her sentence and when she returns to the community. 20 Ms Kylie Lander, a clinical psychologist, assessed the applicant when she was in the Junee Correctional Centre. In her report, dated 16 May 1997, she summarised her findings as follows: "Mr Hall was compliant and communicative during the assessment process. He appears to accept full responsibility for his crime and discussed his regret for having committed the act. Mr Hall stated that he now has an extremely high frustration tolerance level and described the interventions he uses to manage stressful or potentially volatile situations. These interventions demonstrate that Mr Hall not only has the capacity to regulate his behaviour and enact non-violent coping strategies, but that he is able to plan ahead and engage in decisional balancing. With regard to the results of the MMPI-2, it would appear that Mr Hall has in the past had difficulties with authority figures. Mr Hall acknowledges this, but accounts from both Mr Hall and Correctional Staff indicate that this is not currently a problem. Mr Hall also acknowledges social non-conformity as an issue for him, but the manner in which Mr Hall exhibits his social non-conformity, namely his feminine appearance, is not pertinent to his capacity to handle aggression It is the author's opinion that Mr Hall does possess a number of strategies for dealing with stress and anger. His specific coping skills, in addition to his global coping skills appear to have been effective. Mr Hall has no internal charges of a violent nature on record." 21 Evidence was tendered of the applicant's criminal history before the offence of murder. The record contains convictions for drug offences and a number of offences for dishonesty. I have no doubt that drugs played a significant part in all those matters. The applicant was taking drugs at about the time of the murder, although I have already related Enderby J's comments in that regard. 22 I am required, by clause 3 of Schedule 1, when redetermining the applicant's sentence to have regard to: "(1)(a) all of the circumstances surrounding the offence for which the sentence was imposed, and (b) all offences, wherever and whenever committed, of which the offender has been convicted …" 23 I must also have regard to the matters identified in clause 7 of the Schedule, being: "(a) any reports on the offender made by the Review Council, and any other relevant reports prepared after the offender was sentenced, that are available to the Supreme Court, and (b) the need to preserve the safety of the community, and (c ) the age of the offender (at the time the offender committed the offence and also at the time the Supreme Court deals with the application), and (d) in the case of an offender sentenced before 12 January 1990 … the fact that the sentencing court: (i) would have been aware that an offender sentenced to imprisonment for life was eligible to be released on licence under section 463 of the Crimes Act 1900, and (ii) would have been aware of the practice relating to the issue of such licences, and (e) any other relevant matter." 24 I am also required to have regard to the matters provided by subcl 3 of clause 7, but it is not necessary for me to relate them. 25 I have, when considering this application, had regard to the various reports of the Serious Offenders Review Council to this Court. I have identified in these reasons some matters of particular relevance from those reports, but I indicate that I have had regard to the whole of the material contained within them. 26 It is submitted by the Crown that, although there may be significant factors favouring a redetermination of the applicant's sentence, there are other matters mitigating against that course. The submission that the Crown makes is that I should not proceed to redetermine the applicant's sentence, but indicate that, having regard to a number of matters, that decision should await a further two or three year period. It is submitted that the applicant has lied to the prison authorities about her relationships, claiming a number of de facto partners, has been ambivalent about accepting responsibility for the murder, and has denied having a drug problem. 27 I accept that at times the applicant has not been accurate and may not have been truthful about all of her relationships. She says that this occurred out of a concern for the other person involved and not to assist herself. I accept this explanation as generally correct. In any event, I do not believe these matters would disentitle the applicant to a redetermination of her sentence. 28 With respect to the murder itself, I have referred to the original difficulty the applicant had in this respect but now believe her position has genuinely changed. Drugs remain a significant potential problem, but I am persuaded that the applicant has been, for some time, clean, and maintains a determination to avoid drugs in the future. I do not believe the apparent prostitution of herself in Junee prison, a matter adverted to by the Crown, would disentitle the applicant to have her sentence redetermined. Nor am I of the view that the difficulties which the applicant has experienced in her gender identification, and the fact that her reassignment is not yet complete, are matters which would preclude a redetermination. 29 These matters remain significant problems for the applicant. They will have to be addressed and, ultimately, her capacity to function in the general community will be, in part, dependent upon the success of the gender reassignment. However, those difficulties are difficulties faced by members of the community, no doubt, who have never experienced a custodial sentence, and, accordingly, I do not believe those matters should preclude a redetermination at this time. 30 In my opinion the offence of murder committed by the applicant, involved a high degree of criminality. However, it did not involve criminality of the highest order (for a discussion of these matters see R v Alexander (1999) 107 A Crim R 449). Nevertheless, an apparently innocent person lost his life when the applicant, impatient to achieve her own ends, shot the deceased. The murder was both chilling and cold-blooded. 31 I accept that the applicant has made progress towards her rehabilitation which will be assisted if I now determine a term for her sentence. She is now remorseful and has real insight into her crime. She will obviously have ongoing difficulties, both within prison and perhaps on her subsequent release because, of her gender difficulties. She will need considerable supervision and assistance if she is to be successfully rehabilitated into society. 32 Mindful of these matters, I believe it appropriate for me to set a specified term for the sentence. I also indicate that in my opinion the particular needs of the applicant make plain that, upon her release, she will require considerable supervision and assistance if she is to successfully adapt to her role as a woman in society and remain free of drugs. 33 There has been some consultation as to the operative date for any sentence which I now determine, the applicant being in custody in relation to other matters when charged with the offence of murder. Enderby J determined that, having regard to the circumstances of her imprisonment, the sentence which he imposed should commence on 1 August 1989. 34 However, as the applicant was remanded in custody for the offence, it is that date which operates for the purposes of cl 5(1) of the Schedule. Like Enderby J, I am of the view that that date is also 1 August 1989, for, until that date, the applicant was in custody in relation to the other matters. 35 Mindful of all the evidence before me, the applicant's age, the offence of murder for which she was sentenced by Enderby J, and her other offences, and having regard to the matters in cl 7 of the Schedule, in particular the reports of the Review Council and the need to preserve the safety of the community, I am satisfied that it is appropriate to resentence the applicant to a term of twenty-two years imprisonment commencing on 1 August 1989 and expiring on 31 July 2011. I set a non-parole period of sixteen years and six months so that the first date on which the applicant will be eligible for release is 28 February 2006.