J. 2006 SKPC 95 IN THE PROVINCIAL COURT OF SASKATCHEWAN AT REGINA, SASKATCHEWAN Between: HER MAJESTY THE QUEEN [F.R.] Mr. John Stoesser For the Crown Mr. Drew Belobaba For the Accused C.A. Snell, PCJ JUDGMENT October 18, 2006 I. INTRODUCTION [1] The Crown has applied pursuant to section 753 of the Criminal Code to have Mr. [F.R.] designated a dangerous offender. The Defence position is that he should be designated long-term offender. This decision addresses the question of whether the Crown has established beyond reasonable doubt that the offender is “dangerous offender” and must be sentenced to indeterminate detention. II. PROCEDURAL BACKGROUND [2] On April 19, 2005 found [F.R.] guilty of aggravated assault for wounding [P.M.] between July 1st, 2004 and August 25th, 2004. then ordered the preparation of pre-sentence report. However, prior to sentencing the Crown applied for remand for assessment, pursuant to section 752.1 of the Criminal Code, and presented materials indicating that Dr. Roger W. Holden would be qualified and able to provide the Court with the necessary assessment within the required time.[1] [3] was satisfied on the information before me that Mr. [F.R.] might be found to be dangerous or long-term offender and therefore remanded Mr. [F.R.] for the purpose of having Dr. Holden perform the assessment and provide his report to the Court. The matter was adjourned to permit Dr. Holden to complete his assessment, as initially he did not provide his report on the date promised. Once Dr. Holden’s report was received there were further adjournments to permit an examination by an expert chosen by the Defence. Dr. Holden’s report offered the opinion that Mr. [F.R.] should be found dangerous offender. Due to the delays in receiving the reports, the hearing did not proceed until June 12, 2006, more than year after the conviction for the predicate offence. [4] propose to review the applicable law at the outset, given that there were significant amendments to Part XXIV of the Criminal Code in 1997 which have been interpreted recently by both the Supreme Court of Canada and the Saskatchewan Court of Appeal, and given the unusual nature of this sentencing procedure. [5] The statutory requirements for finding that an offender is dangerous offender are found in section 753(1) of the Criminal Code as follows: The court may, on application made under this Part following the filing of an assessment report under subsection 752.1(2), find the offender to be dangerous offender if it is satisfied (a) That the offence for which the offender has been convicted is serious personal injury offence described in paragraph (a) of the definition of that expression in section 752 and the offender constitutes threat to the life, safety or physical or mental well-being of other persons on the basis of evidence establishing (i) pattern of repetitive behaviour by the offender, of which the offence for which he or she has been convicted forms part, showing failure to restrain his or her behaviour and likelihood of causing death or injury to other persons, or inflicting severe psychological damage on other persons, through failure in the future to restrain his or her behaviour, (ii) pattern of persistent aggressive behaviour by the offender, of which the offence for which he or she has been convicted forms part, showing substantial degree of indifference on the part of the offender respecting the reasonably foreseeable consequences to other persons of his or her behaviour, or (iii) any behaviour by the offender, associated with the offence for which he or she has been convicted, that is of such brutal nature as to compel the conclusion that the offender’s behaviour in the future is unlikely to be inhibited by normal standards of behavioural restraint;... [6] new designation was created in the 1997 amendments. Section 753.1 sets out the requirements of the new long-term offender designation, as follows: (1) The court may, on application made under this Part following the filing of an assessment report under subsection 752.1(2), find an offender to be long-term offender if it is satisfied that (a) it would be appropriate to impose sentence of imprisonment of two years or more for the offence for which the offender has been convicted; (b) there is substantial risk that the offender will reoffend; and (c) there is reasonable possibility of eventual control of the risk in the community. (2) The court shall be satisfied that there is substantial risk that the offender will reoffend if ... (b) the offender (i) has shown pattern of repetitive behaviour, of which the offence for which he or she has been convicted forms part, that shows likelihood of the offender’s causing death or injury to other persons or inflicting severe psychological damage on other persons.[2] [7] There is significant difference between the sentence imposed on dangerous offender as opposed to long-term offender. The dangerous offender is made subject to an indeterminate sentence, with parole eligibility beginning after seven years in custody and reviewed every two years thereafter. The long-term offender is sentenced to definite term of imprisonment of more than two years, with normal parole eligibility, plus term of community supervision of up to ten years, which term can be reduced in certain circumstances. The result of the 1997 amendments, which did not change the criteria for finding person dangerous offender, is that some offenders who would previously have been found to be dangerous offenders may now be found to be long-term offenders, according to the cases decided since the amendments, which will now review. [8] In R. v. Johnson[3] the Supreme Court of Canada made it clear that the Court must now also consider, on dangerous offender application, whether the subject of the application might be found long-term offender, despite the fact that the requirements of s. 753(1) for dangerous offender finding have been met. The Court emphasized that the principles of sentencing contained in s. 718 to 718.2 of the Criminal Code continue to apply to the exercise of discretion in dangerous offender applications when determining what result will satisfy the sentencing objective of public protection. In particular, the fundamental principle of proportionality and the principle of restraint set out in paragraphs 718.2 (d), that an offender should not be deprived of liberty if less restrictive sanctions may be appropriate in the circumstances, and (e) that all available sanctions other than imprisonment that are reasonable in the circumstances should be considered for all offenders, with particular attention to the circumstances of aboriginal offenders, must be considered. The Supreme Court concluded as follows, at paragraph 28: The principles of sentencing thus dictate that judge ought to impose an indeterminate sentence only in those instances in which there does not exist less restrictive means by which to protect the public adequately from the threat of harm, i.e.. where definite sentence or long-term offender designation are insufficient. The essential question to be determined, then, is whether the sentencing sanctions available pursuant to the long-term offender provisions are sufficient to reduce this threat to an acceptable level, despite the fact that the statutory criteria in s. 753(1) have been met. [9] The Saskatchewan Court of Appeal issued concurrent judgments on three cases involving Part XXIV of the Criminal Code in 2004: Lemaigre v. The Queen,[4], R. v. K.R.S.,[5] and J.L.A.G. v. The Queen.[6] These cases all involved trial court decisions which pre-dated the Supreme Court of Canada decision in Johnson, so the Court of Appeal had to assess whether the trial judges in each of these cases had recognized the need to consider finding the offender long-term offender, even if he met the criteria of dangerous offender, and appreciated that the essential question to be considered was whether the risk to re-offend is reasonably open to eventual control in the community. Mr. Justice Cameron outlines the proper analysis in Lemaigre at paragraphs 14 to 16[7]: Having regard for the respective criteria governing the dangerous and long-term offender designations, an offender who qualified as dangerous offender will almost always qualify as long-term offender as well, provided there exists reasonable possibility of eventual control of the risk in the community. That leaves open the possibility that an offender, who would otherwise be sentenced as dangerous offender, might be sentenced as long-term offender instead. The sentence reserved for the latter is less restrictive, matter of significance because in principle the less restrictive sentence is to be imposed whenever reasonably fit. Hence, on dangerous offender application, the sentencing judge, before sentencing person to an indeterminate period of imprisonment as dangerous offender, must suitably consider the alternative, namely sentencing the person as long-term offender to determinate period in prison followed by period of community supervision: R. v. Johnson, 2003 SCC 46 (CanLII), [2003] S.C.R. 357. And in keeping with Johnson it is incumbent upon the judge, when considering the alternative, to bear in mind that Parliament intended the sentence reserved for dangerous offenders to apply only to that very small group of offenders whose personal characteristics and particular circumstances militate strenuously in favour of indefinite preventive detention. The corollary of this is that the sentence reserved for long-term offenders, the lesser of the two, is meant for that much broader group of offenders whose risk of re-offence, while exceptional, appears open to eventual control in the community by means of term in prison followed by period of supervision in the community supervision under such conditions as may serve to control the risk and reduce it to an acceptable level. [10] R. v. Lemaigre was case involving domestic violence which continued throughout the accused’s twenty year marriage to the victim. Mr. Lemaigre had lengthy criminal record for violence towards his wife and others, but over time he became less violent towards others. He also had serious alcohol problem. The types of offences committed by Mr. Lemaigre seemed to be explosive incidents of violence in the context of drunken arguments. The Court of Appeal remitted this matter back to the trial court as it was of the view that there had not been adequate consideration of the opportunities that might exist for the eventual control of the offender’s risk to re-offend in the future, stating as follows at paragraph 57 of the report: His test is not so much concerned with reducing the threat to an acceptable level as it is concerned with virtually eliminating the threat prior to release from prison. Not only that, his test excludes the potential for reduction of the risk to an acceptable level by means of community supervision, including the prescribed conditions to which community supervision is subject and the additional conditions that may be imposed by the Parole Board. [11] Mr. Justice Cameron also addresses, in Lemaigre, the responsibility of the trial court in assessing the evidence. At paragraphs 68 and 69 he states: .. An application to have an offender declared dangerous offender, and sentenced accordingly, cannot succeed without the sentencing judge being placed in position to properly discharge these responsibilities. Their proper discharge requires an appropriate base of fact and opinion. To the extent that base is lacking, the prosecutor’s application is at risk of being dismissed. Thus, if prosecutor, in advancing an application under section 753, should do nothing more than establish the existence of one or more of the dangerous offender criteria appearing in section 753(1)(a) the application runs the distinct risk of being dismissed, for the offender may choose to do nothing but stand passively aside. In that event, the sentencing judge would be left without the requisite base of fact and opinion to determine the essential question of whether the sentencing sanctions available under s. 753.1 are sufficient to reduce the threat of public harm to an acceptable level, notwithstanding the fact the requirements of section 753 have been met. In many instances the void will prove fatal to the application. This is especially so in borderline cases. [12] In R. v.K.R.S. the Court reversed finding that the accused was dangerous offender and found him to be long-term offender instead. The predicate offence which the offender had committed was an extremely brutal aggravated assault in which he caused irreversible brain damage to the victim whom he believed had sexually assaulted his sister. The accused had stomped on the victim’s head, stomach and groin area and kicked him when he was lying on the floor gravely injured. He had previously been convicted of another aggravated assault nine years earlier in which he had beaten the victim with baseball bat. Other previous convictions included robbery which involved him stabbing the victim in the thigh and assault with weapon for spanking six year old child with shoe. The error in law found by the Court in this case was the same as it found in Lemaigre; the standard is not whether cure is guaranteed but whether there is reasonable possibility of eventual control in the community. [13] On that issue Justice Jackson stated as follows, at paragraph 53 of the K.R.S. decision: To determine whether there is reasonable possibility of Mr. K.R.S. eventually being controlled in the community, one has to be concerned about behaviour exhibiting the degree of violence reflected in the aggravated assaults, and, to some extent, set aside the other offences. When one does this, one is left with one occasion with two aggravated assaults which occurred in 1991 when Mr. K.R.S. was 21 and the predicate offence, nine years later. There have been also periods when Mr. K.R.S. was drug and alcohol free, and he was working and not committing offences. From 1995 until 1998, Mr. K.R.S. seems, by all accounts, to have been living an appropriate life. Even after severely striking child in the guise of discipline in 1998, Mr. K.R.S. managed for almost another year and half to avoid violence. [14] The third case in the trilogy of Court of Appeal decisions noted above is R. v. J.L.A.G. The predicate offence in this case involved the attempted murder of woman and her parents. The accused had dated the woman briefly, but she had told him she no longer wished to date him. He attended to their home armed with three knives. The father was stabbed twenty-four times, the mother twelve times and the daughter thirty-six times. All suffered significant and long-term physical and emotional damage. The offender had previously been convicted of manslaughter for stabbing man who lived with his mother. He was only twenty years old at the time of this offence. [15] There was conflicting evidence at the hearing. The Crown expert reported that the accused “...suffered from severe personality disorder and presented high risk of serious violence offence, risk which was highly unlikely to be significantly modified within the foreseeable future, either through treatment, or aging, or restraining measures.”.[8] The Defence expert provided the opinion that the offender suffered from “...depression, post-traumatic stress, and an ‘intermittent explosive disorder’, conditions which were amenable to effective treatment with drugs.”[9] There had also been psychological assessments of the offender conducted previously, one of which suggested that he had an entrenched belief system foreclosing appreciation of the wrong he had done in his earlier offence. The trial judge concluded that the offender was not amenable to treatment. The Court of Appeal found he had properly considered the availability of long-term offender designation, therefore it upheld the dangerous offender designation. [16] Another Saskatchewan Court of Appeal decision which is instructive is R. v. Otto[10]. In this case the long-term offender designation was set aside and dangerous offender designation substituted. The Court concluded that the trial judge had failed to properly consider the evidence concerning attempts which had been made to control the offender’s behaviour in the community and the failure of the expert who testified to consider this when he gave his opinion. The Court quoted with approval at paragraph 20 passage from decision of the Ontario Court of Appeal[11] as follows: 47 Case law from this court and from the British Columbia Court of Appeal under the former dangerous offender legislation and the amended provisions has held that in order to achieve the goal of protection of the public under the dangerous offender and long‑term offender provisions, there must be evidence of treatability that is more than an expression of hope and that indicates that the specific offender can be treated within definite period of time: R. v. Poutsoungas (1989), 1989 CanLII 7104 (ON CA), 49 C.C.C. (3d) 388 (Ont. C.A.); R. v. Higginbottom (2001), 2001 CanLII 3989 (ON CA), 156 C.C.C. (3d) 178 (Ont C.A.). In R. v. M.(J.S.) (2003), 2003 BCCA 66 (CanLII), 173 C.C.C. (3d) 75 (B.C.C.A.), the court stated that the basic purpose of the dangerous offender provision before the 1997 amendment was the protection of the public and that under the amended legislation, the test for achieving that goal is set out in s. 753.1(c), namely, whether there is reasonable possibility of control in the community of the risk of the offender re‑offending. The court also noted that the French version of the section requires "une possibilité réelle", or "real possibility", which may require an even higher degree of certainty in the evidence than the English version, "reasonable possibility". [17] Thus, the decision in the present case will rest upon careful examination and evaluation of the evidence of the expert witnesses. There must be more than an expression of hope that the person can be treated, but we must not require an absolute guarantee of treatability. found the decision of my brother judge White, J. in R. v. R.H.L.,[12] to be very helpful on this issue, particularly his analysis at paragraph 13: The key factors which will determine whether there is reasonable possibility of control of the risk of harm in the community are those things that suggest that changing the offender’s behaviour is possible or whether it is well nigh impossible. Two situations immediately come to mind: the offender who is of low intelligence and/or has severe learning disabilities and the offender who suffers from deeply entrenched psychological disorder that is resistant to cognitively-based programming and/or treatment. These would constitute strong cases for dangerous offender designation. The contrary is also true; where the offender does not suffer from an inherent defect of character or reason one can often conclude that the possibility of change and reduction of risk in the future with treatment is not unrealistic it is not what one would call remote or unreasonable possibility. (references omitted) IV. PERSONAL HISTORY [18] Mr. [F.R.] is thirty-two years of age. He has amassed criminal record consisting of forty previous convictions, many of which were for violent offences, although ten convictions were for mischief. He is the youngest of eleven children.[13] He observed violence between his parents and did not have good relationship with his father. He has reported that he was physically abused by his father and by his siblings. His mother was, and is, his primary support within the family. However, his mother has acknowledged that she was busy raising some of her grandchildren when he was child and that he may have been neglected as result. [19] Mr. [F.R.] was placed in the Lebret Residential School when he was eight years of age for eight months, during which time he was subjected to physical and sexual abuse. Following the family’s move to Regina, he suffered racially based bullying at school, had few friends and often was involved in fights. His school attendance was poor and ended early. He achieved his Grade at the age of twenty, while he was in the penitentiary. [20] Mr. [F.R.] has long-standing history of alcohol and drug abuse. He began drinking at age twelve and by age fourteen he was drinking on regular basis, as much as he could, increasing as he got older. Similarly, he began using illicit substances at the age of twelve, beginning with marijuana and then Restoril, Valium and speed when it was obtainable. By the age of twenty he was using cocaine, morphine, Talwin and Ritalin intravenously. [21] Mr. [F.R.] has three children aged thirteen, eleven and nine from three separate relationships. He has little contact with his children. He acknowledged to the person who prepared the pre-sentence report that all three relationships involved domestic violence. As will be seen below, the most serious of his previous offences involve domestic violence. [22] He reported to one of the experts[14] that his father introduced him to Aboriginal traditions and his mother introduced him to Christian traditions. His familiarity with Aboriginal traditions is rudimentary at this time, but he has recently established contact with an Elder from his home Reserve. [23] Mr. [F.R.] has been made subject to various court orders to take substance abuse treatment and anger management or domestic violence treatment. His commitment to treatment while in the community was negligible. The probation documents in exhibit P-5 are replete with instances of his failures to report and to take programming arranged for him. He was manipulative with the probation officers who were very tolerant with his excuses and failures to respond and who were persistent in their efforts to supervise him and provide him with the programming he required and had been ordered to take. Although he was occasionally charged with breach of probation, he was by no means charged on every occasion when he might have been. [24] He did better when taking treatment while incarcerated. In particular, during his three year penitentiary term he successfully completed programs related to cognitive skills, parenting skills training, living without violence, and anger and emotions management. However, he was suspended for lack of attendance to an Aboriginal specific Alcoholics Anonymous program within the institution. Progress Report dated October 25, 1996 contained within the Correctional Service of Canada documents, marked exhibit P-6, states that he did not attend the Batterers Group as suggested, he did not make commitment to address his substances abuse issues and he did not address his aggression through the ABC program at the Regional Psychiatric Centre. V. CRIMINAL HISTORY A. The Predicate Offence- Aggravated assault of [P.M.] from July to August 25, 2004 [25] Mr. [F.R.], who was almost thirty years old at the time of the offence, and Ms. [P.M.], who was nineteen at that time, had been living together for about month and half prior to August 25th, 2004, when he was arrested for assaulting her. However, they had previously lived together for significant period of time prior to his service of jail term in 2003, beginning when she was seventeen years old. She testified at the hearing about Mr. [F.R.]’s violence toward her during that earlier time period, which will be outlined later in this decision. [26] On August 25, 2004, the police were investigating reported stabbing which took them to Mr. [F.R.]’s residence. Mr. [F.R.] initially denied them entry into the residence, but eventually did allow them to come in to check if anyone inside required assistance. [P.M.] was found lying in bed in one of the bedrooms, flat and still, with the sheets pulled up to her face. The officer was able to observe some injuries to Ms. [P.M.] and although she was not immediately cooperative, she went with the officer to the police vehicle and then to the hospital. Ms. [P.M.] initially blamed third party for her injuries, but later gave statement that Mr. [F.R.] had caused them. [27] The evidence at the trial was that Mr. [F.R.] had assaulted the victim with his fists, had whipped her with an electrical cord and had hit her on the head with bottle. She was observed to have suffered many injuries, but some of them had been caused on an earlier occasion. For example, her jaw was broken in two places but she had suffered pain in that area prior to the night in question so Ms. [P.M.] was not sure if it was broken on that night or if it had been broken previously. She testified that she had been whipped on the back with electric cords both on that night and previously. Ms. [P.M.]’s right eye was completely swollen shut; her other eye was swollen and bruised. She had cut to her right earlobe and the top of her ears were black with bruises. She had two cuts to the top of her head. She had bruises, of different ages, on both legs, her breasts and her arms. Her hands had cuts all over them. The photographs of her injuries which had been marked exhibit P-1 at the trial, made it clear that Ms. [P.M.] had been assaulted over period of time and not just on the evening of August 25, 2004. [28] Ms. [P.M.] testified that she did not report any of the incidents of violence to the police because Mr. [F.R.] told her that he would leave her and her family alone if she did not tell on him. She said that she was not allowed to see her family and rarely went out. She testified that she did not try to get away that night because he was always there making sure she did not phone anyone. B. Previous Criminal Behaviour [29] will review only the offences which involve violence. In addition to receiving evidence concerning previous convictions, the Court is entitled to receive and consider evidence of events which did not proceed to judicial determination previously, if the evidence is credible and reliable.[15] Accordingly, received evidence from [S.O.] concerning an assault on her by Mr. [F.R.], and, as noted above, from [P.M.] concerning other incidents of violent behaviour towards her by Mr. [F.R.], in addition to the predicate offence. [30] The incidents are set out in chronological order, except that have placed the description of Mr. [F.R.]’s only sexual offences in sequence at the time when they were dealt with in court, despite the fact that they would have been the first offences he committed. Since it is significant to know whether there have been periods of time when Mr. [F.R.] has been law-abiding citizen, have also attempted to outline when he was at large in the community although was not provided with documentary evidence of his release dates from prison, so have had to estimate those as best could. (1) Aggravated assault of Trevor Leigh on August 25, 1991 [31] On October 2nd, 1991 Mr. [F.R.] was convicted in youth court of aggravated assault. He received sentence of 11 months secure custody plus probation for two years, condition of which was that he take alcohol treatment. As there was no transcript available concerning this conviction, but there was Certificate of Conviction, admitted the statement of Lisa Marie Grey, as exhibit P-11, which outlines the circumstances surrounding the offence. She describes an incident in which Mr. [F.R.] got into fight with male victim. He then produced knife and stabbed the victim twice in the back. Apparently the injuries were not life-threatening. At the time of this offence he had already been before the youth court on two occasions concerning break and enter offences for which he had received probation and community service work sentences. He would have just completed his probation term when he committed this offence. [32] The next three violence related convictions all concern [T.R.], who was involved in relationship with Mr. [F.R.] on and off from January to December of 1993. There are three separate sentencing proceedings concerning offences during that time because initially Ms. [T.R.] was only prepared to testify about isolated incidents and not the entire sequence of events. In the result, there is an overlap, as outlined below, in the dates of the offence covered by the last of those convictions, which was entered on April 15, 1994 (for an assault causing bodily harm between April and October 1, 1993) and those entered earlier (on May 5, 1993 and December 29, 1993). Mr. [F.R.] would have been on probation at the time all of these offences were committed, having been released from custody on Sept. 21, 1992. (2) Assault on [T.R.] on January 14, 1993 [33] On May 5th, 1993 Mr. [F.R.] was convicted of assaulting [T.R.], for which he received $150.00 fine plus probation for months. The circumstances surrounding this offence are contained in the sentencing transcript, exhibit P-3. The victim was approached by Mr. [F.R.], who was her ex-boyfriend, at family recreation centre. An argument ensued. Mr. [F.R.] yelled at her, slapped her and kicked her. The Crown characterized the incident as unprovoked. However, the Summary of Mr. [F.R.]’s previous convictions prepared by the Crown (P-4) indicates that the incident was precipitated by Ms. [T.R.] having had fight with Mr. [F.R.]’s present girlfriend. This additional comment, while not in the sentencing transcript, is of benefit to Mr. [F.R.], as somewhat mitigating factor, so will consider it as such given that it was mentioned by the Crown in its Summary. (3) Assault causing bodily harm to [T.R.] and breach of probation on December 7, 1993 [34] Mr. [F.R.] was convicted of this offence on December 29, 1993. He received one month in jail for the assault and 15 days concurrent for the breach of probation, plus one year probation with the condition that he take anger management counselling. [35] Information provided at the sentencing hearing was that the parties became involved in an argument. Mr. [F.R.] grabbed Ms. [T.R.] by the hair and tried to pull her upstairs, then he grabbed her by the throat and choked her, following which he punched her in the eye so hard she fell to the ground. She was unable to see because her eye was swollen shut, cut and bleeding. She required stitches to her right eyelid and had other bruises to the face area. [36] The accused said in his sentencing remarks that he had enrolled in the Alternatives to Violence program himself. He said he was sorry and ashamed of himself. When asked by the court what started the fight he indicated that Ms. [T.R.] had been swearing at him and calling him down in front of his nephews and he felt humiliated. He said they had previously talked about his bad temper and that their relationship needed to be worked on, and that he had pleaded with her not to test his temper or provoke him but to help him work with it. He said he had quit drinking and drugs but that day it went awry and he felt really bad about that. He stated that he breached his probation condition not to contact her because he wanted to see how she was doing as she was having his baby in one month. He said that he wished she could really understand that he has problem with his temper and that he felt the program he was in could help him. (4) Assault causing bodily harm to [T.R.] between April 1, 1993 and October 1, 1993, and breach of probation [37] On April 25, 1994 Mr. [F.R.] plead guilty to serious continuing assault on Ms. [T.R.], which in fact preceded the individual incident that he was sentenced for on December 29, 1993 and in terms of the time period covered, would have included the single incident that led to the assault conviction on May 5, 1993. It may be noted that much of the assaultive behaviour occurred after the conviction on May 5, 1993. [38] The Crown outlined to the presiding judge that Ms. [T.R.] had been subjected to lengthy period of physical and emotional abuse by Mr. [F.R.] during their common law relationship. The Crown stated that Ms. [T.R.] had suffered beatings inflicted by Mr. [F.R.] on numerous occasions, beginning in mid-April of 1993 and carrying on through that year. She was pregnant for part of this time. The Crown indicated that Mr. [F.R.] isolated Ms. [T.R.] from her family and friends; that if Ms. [T.R.] wanted to go out he would ask his mother to keep an eye on her to make sure that she did not go anywhere. In addition, if she did go out, he would often accompany her. [39] Some of the events which Ms. [T.R.] provided details about are described in the sentencing submissions. One incident occurred when Mr. [F.R.] and Ms. [T.R.] were sleeping in bed. Mr. [F.R.], for no apparent reason, began kicking Ms. [T.R.] in the jaw. Her jaw locked and also she suffered swelling and bruised eye. [40] The next incident described occurred when Ms. [T.R.] decided to leave and was packing her clothes. An argument resulted. Mr. [F.R.] hit her in the face when she got out the door. She fell to the ground and screamed for the accused’s mother to try to stop him. However, Mr. [F.R.] then grabbed her by the hair, dragged her back into the apartment and kneed her in the head so hard that she blacked out. When she regained consciousness he was slapping her on the face. He proceeded to choke her until she passed out and then he threw her into the tub. Although he was continuing to hit her in the tub, his mother convinced him that he should stop because he was frightening his nephew who was present in the apartment. Mr. [F.R.] threatened to kill Ms. [T.R.]’s family and threatened to use Indian medicine on her. Approximately forty-five minutes later he renewed the assault and began hitting her with the crutches she required at the time as she was recovering from an operation on her foot. She suffered black eye and numerous bruises on her body. [41] On May 13th, 1993 Ms. [T.R.] moved out of the apartment. She visited Mr. [F.R.] periodically following that time but she did not move back in with him. In mid-August of 1993 Ms. [T.R.] was at her sister-in-law’s apartment when Mr. [F.R.] arrived there and began punching her, pulling her hair and burning her with cigarettes. They left to go to party and get something to eat. Mr. [F.R.] began hitting her again while she was driving the vehicle. They eventually pulled up to Mr. [F.R.]’s parents’ apartment. Ms. [T.R.] got out of the vehicle and began running. Mr. [F.R.]’s parents told her to keep running, but Mr. [F.R.] caught her on the front lawn and dragged her into the apartment. Once inside the apartment he kept the apartment door shut with her crutch and punched her in the face four times, which resulted in bruising on her forehead and swollen lip. She also suffered bruising to her wrists and legs. Although the police were contacted regarding this incident, Ms. [T.R.] did not complete the statement form they left for her so no charges were laid at that time. [42] In September of 1993 Ms. [T.R.] and Mr. [F.R.] got into an argument over his allegations that she was dating someone else. He punched her, knocked her to the ground and then punched her in the face. As she got up he pulled out inch locking blade knife and threw it at her, however it stuck in the wall. Ms. [T.R.] ran to the door but as she did he stabbed her in her upper left biceps. [43] In the same month Mr. [F.R.] and Ms. [T.R.] again got into an argument over her seeing another man. On this occasion Mr. [F.R.] took hockey stick and hit her several times causing significant bruises to her head, ribs and back. She indicated that her head hurt so badly that she could not wash her hair for at least month. Subsequently to the hockey stick assault Mr. [F.R.] hit Ms. [T.R.] on her legs with baseball bat, resulting in soreness and bruises. Ms. [T.R.] advised that Mr. [F.R.] had also occasionally struck her with steel bar. [44] In another incident, Mr. [F.R.] criticized Ms. [T.R.] for going to tanning studio. He grabbed her leg stating that if she wanted her skin another colour he would make her think twice. He then cut her above the left ankle and smeared blood up her leg. Finally, in October of 1993 Mr. [F.R.] inflicted two puncture wounds to Ms. [T.R.]’s left leg and one to her right leg. The Crown stated that Mr. [F.R.] prevented Ms. [T.R.] from seeking medical attention regarding any of her injuries. He stated to the Correctional authorities that this was because none of the injuries were serious enough to warrant medical attention.[16] [45] Mr. [F.R.] received penitentiary term of three years imprisonment for the continuing assault and one month concurrent for the breach of probation offence. In addition, he was made subject to ten year Firearms Prohibition Order. [46] Arrangements were made for Mr. [F.R.] to plead guilty to three dated sexual assault offences after he received the three year jail term, so what follows is not in chronological order. (5) Sexual Assault on S.C. October 21, 1988, sexual assault on N.B. between July 27, 1986 to August 31, 1987; sexual assault of A.R. between July 27, 1986 to August 31, 1987- conviction June 16, 1994 [47] On June 16th, 1994 Mr. [F.R.] entered guilty pleas to three counts of sexual assault related to offences occurring between July 27th, 1986 and August 31st, 1987 when Mr. [F.R.] was twelve and thirteen years of age, and one count which occurred on October 21st, 1988 when he was fourteen years of age. The Crown submissions were that these incidents were episodes of fondling younger cousins on their private parts, over their clothing. [48] In light of the fact that two of these three incidents occurred before Mr. [F.R.] was fourteen years old there was joint submission of one year concurrent time with respect to the incident which occurred in 1988, and time served on the two other matters since he had been denied bail earlier with respect to those charges. The presiding judge noted that had Mr. [F.R.] been sentenced at the time of the offences the sentence would not have been so severe and he would not have been denied bail. In all the circumstances, he accepted the joint submission, stating that the sentence was likely heavier than it would have been if imposed earlier. [49] Mr. [F.R.] was held until warrant expiry on his three year sentence in the penitentiary so he was not released until April 24, 1997. (6) Assault on [M.Z.] on November 6, 1997 [50] On March 17th, 1998 Mr. [F.R.] was convicted of assaulting [M.Z.]. He received sentence of six months imprisonment plus eighteen months probation. The transcript with respect to these proceedings was not available and Ms. [M.Z.] did not respond to personally served subpoena to testify on the application hearing. Since there was Certificate of Conviction in exhibit P-2 confirming that she was the complainant in this matter, permitted the Crown to file her statement regarding the incident, which was marked exhibit P-12. [51] Ms. [M.Z.]’s statement indicates that she began going out with Mr. [F.R.] around the beginning of July, 1997. His violence towards her commenced around the end of July. She lived with Mr. [F.R.] for few months but there were also times of separation. She agreed to go back to his house with him on November 6, 1997. Mr. [F.R.] became angry at her lack of response to his overtures and hit her once on the cheek, twice on the back of the head and punched her in the buttocks. Photographs marked exhibit P-7 from the Regina Police Service file, which also admitted, show minor bruising to the face and abdomen. [52] Since Mr. [F.R.] was released in April of 1997 there was really no gap in his violent behaviour prior to the commission of this offence, given Ms. [M.Z.]’s statement that he became violent with her towards the end of July, 1997. He would have been released from the jail term he received for his offence against Ms. [M.Z.] around the middle of July, 1998 so there was short gap of four months prior to his next offence but he would have been on probation at the time he committed the next collection of offences. (7) Uttering threats to [N.R.] November 30, 1998 (conviction January 31, 2000) [53] The complainant reported that her brother, Mr. [F.R.], telephoned her residence. When Ms. [N.R.]’s boyfriend answered the phone, Mr. [F.R.] told him to tell the complainant, “Quit fucking phoning here”. Ms. [N.R.] picked up another phone and told him that he was not supposed to be telephoning her residence. She indicated that Mr. [F.R.] started to swear and use foul language towards her and said that he was going to “come over and kill her”. He also threatened to damage her vehicle. She indicated that he sounded sober. Mr. [F.R.] received sentence of four months imprisonment for this offence. (8) Breach of Probation on January 26, 1999 (conviction January 31, 2000) [54] This offence related to Mr. [F.R.]’s failure to take the Abuse Prevention Education Supervision Group as instructed. He received two year suspended sentence. (9) Assault on Falcon Bitternose on June 23, 1999 (conviction January 31, 2000) [55] Apparently Ms. Bitternose and Mr. [F.R.] occasionally stayed in the same residence, but they were not involved in domestic relationship at the time of the offence. Mr. [F.R.] came home the evening of this offence and stood in front of Ms. Bitternose, who was lying down. He stated to her several times that he was not skinner and that he liked her. She reported that he then kicked her in the mouth. Although she tried to leave, Mr. [F.R.] grabbed her by the arm and told her she was not allowed to go anywhere. He apologized for kicking her. However, he then became aggressive again and punched her in the face. She told Mr. [F.R.] that she was feeling dizzy, but he punched her in the face again. The Crown indicated that she stated she was punched so hard that she blacked out. When she awoke she went downstairs and Mr. [F.R.] told her to get dressed because he wanted her to go out and commit theft. She ran to the 7-11 store with Mr. [F.R.] chasing her. She waited there until he left. When she was seen by the police later, they noticed bruises on her face and cuts to her shoulder. [56] Mr. [F.R.] spoke to Dr. Holden about this incident.[17] He stated that he came home drunk and was blacked out and he accidentally stepped on the victim’s head. He told Dr. Holden that the fact that he was charged with this made no sense to him. However, he was present at the sentencing hearing so he would have heard the facts related by the Crown on this occasion, and more importantly, the remarks of the sentencing judge, which will reproduce in the next paragraph. [57] The presiding judge, on this sentencing, noted that the accused was getting close to the point when the Crown might be prepared to consider taking habitual offender proceedings. Defence counsel told the court that the accused was now motivated to change. The judge addressed Mr. [F.R.] as follows:[18] You’ve shown by your record and what I’ve heard today that time and time again your mother, other members of your community, Probation Services, the courts have attempted to do things with you to help you to get hold of your spirits and make some changes so that rather than getting into trouble learn to understand the respect that people owe as first obligation to one another so that we can live in harmony in our communities. And you haven’t been able to do that and until you do you leave me with absolutely no choice with all of these violent offences in the past, particularly violent offences against women. You leave me no choice. don’t give up on you and that’s why- and I’m sure your family doesn’t give up on you either. That’s why there’s going to be probation order for as long as can make it at the end to provide for people to help open doors again for you. But do you understand what mean when say you’ve got to walk through those doors? It doesn’t do any good if make probation order saying you’re going to get treatment. If you don’t go for that treatment you’re going to be back here. And you are in very, very vulnerable position. You’ve got whole lot of serious offences against women, violent offences against women. And that’s why asked the prosecution that question. They are very close to making some form of habitual criminal application which would mean that you’d be in jail for –one doesn’t know how long, but you know it could be for the rest of your life, mean it’s as close as we come to throwing away the keys. When somebody has shown themselves by their offending to be permanent threat to the innocent members of society there are ways that those people can be locked up for literally permanently. And you don’t need that, your family doesn’t need that. You have to make these changes that are necessary. [58] Mr. [F.R.] was sentenced to four months imprisonment, consecutive, for this offence, and was placed on probation for two years as result of the suspended sentence received for the breach of probation offence dealt with at the same sentencing proceeding. (10) Assault causing bodily harm to [S.O.] on November 17, 1999 [59] Ms. [S.O.] is Mr. [F.R.]’s niece. She testified at the dangerous offender hearing about an incident which she said occurred on November 17th, 1999. However, it may be that she is mistaken about the date as the transcript of the January 31, 2000 hearing indicated that Mr. [F.R.] had been on remand from the end of October, 1999. Alternatively, it may be that the time of remand began little later. There was no evidence concerning whether this incident had been reported to the police but was not proceeded with, for some reason, or if it simply was not reported. However, as there was no indication that this matter had previously been adjudicated upon, permitted Ms. [S.O.] to testify about this incident and considered her evidence on the application. [60] Ms. [S.O.] testified that she had fallen asleep at her residence but awakened to discover that her sister Kara was arguing with Mr. [F.R.] outside the residence. She went outside and asked what was happening. Mr. [F.R.] asked Ms. [S.O.] to tell the other women who were there at the time who he was. She replied that he was “nothing but woman beating punk”, because she was friend of [F.B.], who had been assaulted by Mr. [F.R.] as outlined above. Mr. [F.R.]’s immediate response to this insult was to punch her in the jaw, breaking it. Her jaw was wired shut for two months. Ms. [S.O.] was sixteen years of age at the time of this incident. [61] Ms. [S.O.] was very good witness. She gave her evidence in very straightforward fashion and there was nothing in her demeanour or her testimony which would suggest that her evidence should not be accepted as truthful. Accordingly, believe her evidence and am satisfied, beyond reasonable doubt, that Mr. [F.R.] did assault her as testified to.[19] [62] As noted above, Mr. [F.R.] was sentenced on January 31, 2000 to total of eight months imprisonment, having been credited for three months on remand, plus two years probation. [63] There is gap in Mr. [F.R.]’s record from whenever he was released from jail after this sentencing, presumably around June of 2000 until March of 2002 when he was convicted of breach of recognizance, fail to appear and two counts of breach of probation, for which he received total sentence of four months imprisonment. This appears to be the only real gap of no criminal convictions or evidence of violent behaviour since his initial conviction as youth in 1990. There is only short period of time, from approximately May or June of 2002, when he would have been released after the four month jail term, until he began his relationship with Ms. [P.M.] later in 2002 or early 2003. (11) Assault causing bodily harm to [P.M.] alleged to have occurred prior to, and on April 9, 2003 [64] On April 9th, 2003, when the police were investigating an incident involving an assault and threats to Ms. Keshane, Mr. [F.R.]’s neighbour, which will be described below, the investigating officers discovered Ms.[ P.M.] (also the victim in the predicate offence) hiding in closet in the basement suite. She was taken to the General Hospital. Constable Hegi testified at the dangerous offender hearing that he observed great deal of swelling to her face and that her cheekbones were starting to blacken. When she was at the hospital in hospital gown the officer could observe that Ms. [P.M.] had great deal of swelling on her back and small lacerations, some short and some long, as well as puncture wounds to her legs. She had bruising and swelling on almost all parts of her body and the officer indicated that it was the worst assault result that he had ever seen to that point in his career. [65] Ms. [P.M.] testified at the dangerous offender hearing with respect to this incident and the period of time she cohabited with Mr. [F.R.]. She stated that during the time period when she lived with Mr. [F.R.], which began when she was seventeen years old, he would often assault her, when he was angry. She indicated that she often did not know what he was angry about. [66] She heard his argument with the neighbors on April 9, 2003. Mr. [F.R.] then came downstairs and took his anger out on her. He told her that she had better not tell anyone about him hitting her or she would get worse licking. She said that she had hidden in the closet because she had been beaten and Mr. [F.R.] did not want the police to see her like that. He told her to go into the closet and she did so. Although she was initially cooperative with the police, she later lied about the events because she was still with Mr. [F.R.] and did not want to get him in trouble and because he had promised that it would not happen again. [67] Ms. [P.M.] testified that she still has scars all over her body from the beatings she suffered at Mr. [F.R.]’s hands throughout the time she lived with him. The photographs introduced both at the trial and at the dangerous offender hearing confirm her evidence. She testified that in addition to whipping her on the back with curtain rod, he would use bat on her, on one occasion breaking her arm. Her arm was in cast when the police found her in the closet. In addition, he would use his hands and knives. She also testified that he would make her stand with her arms against the wall and then he whipped her with radio cord. [68] She indicated that marks shown in the photographs on her knee and just above her knee are places where he stabbed her. She also said that she had bald spots from stitches on the top of her head from injuries that he had caused. She agreed that Mr. [F.R.] used alcohol and drugs whenever he possibly could and that he certainly was high at the time of the incident on April 9, 2003. [69] found Ms. [P.M.]’s evidence to be credible and reliable and accepted it without reservation. (12) Assault with weapon and uttering threats to Shirley Keshane on April 9, 2003 (P certificate of conviction; transcript) [70] Mr. [F.R.] was convicted on December 16th, 2003 for assault with weapon and uttering threats. He had spent months on remand and received further six months imprisonment. This incident concerned an encounter between Mr. [F.R.] and neighbors who lived in the same building. Mr. [F.R.] came to the back door of the building and was pounding on it yelling, “let me in”, or words to that effect. This disturbed Ms. Keshane and her siblings who were living in an upstairs suite. They eventually went to the door and let him in. They asked what the noise was all about and asked him to be quiet. There was an argument, in the course of which Mr. [F.R.] threatened Ms. Keshane. She stated to him that she was not afraid of him at which point he pulled knife and threatened that he could “do her right there on the stairs”. He also uttered words to the effect that he could make phone call and have all of them “done in”. At that point Mr. [F.R.] went to the lower suite which was his and Ms. [P.M.]’s residence. [71] Presumably Mr. [F.R.] would have been released from this last jail term sometime in April of 2004. This was his last conviction prior to the predicate offence which was committed between July and August 25, 2004. [72] Before leaving this portion of the decision, some comments would be in order concerning Mr. [F.R.]’s criminal history. There are striking similarities between the evidence of Ms. [P.M.] and that of Ms. [T.R.] regarding the type of continuing physical and emotional abuse they suffered, controlling behaviour and threats to them and their families. [M.Z.] also referred in her statement to this type of behaviour when describing her relationship with Mr. [F.R.]. She mentions in her statement that Mr. [F.R.] made her kneel in front of him, lined up to be struck, while he yelled at her. At one point he threatened to cut her face. There are elements in these offences of acts designed to subjugate the victims which appear to be taken deliberately, as opposed to impulsively. [73] Since Ms. [M.Z.] did not testify, was hesitant to consider allegations which were not essential facts for the common assault offence on which the court was sentencing Mr. [F.R.]. However, given the similarity between what she describes and the accounts of the accused’s behaviour towards Ms. [T.R.] and Ms. [P.M.], believe that am entitled to consider his behaviour towards her to be another example of that pattern of behaviour. [74] also note that Mr. [F.R.] seems to have been particularly inclined to hit or kick women in the face, since this was an element of his assaults on [T.R.], [P.M.], [F.B.] and [S.O.]. VI. EXPERT EVIDENCE A. Evidence of the Crown Expert Dr. Holden[20] [75] Dr. Holden was qualified as an expert in forensic psychology. He has had extensive experience with providing risk assessments both for the National Parole Board and as an expert witness to the courts of Manitoba and Saskatchewan on many dangerous and long-term offender application hearings. [76] Dr. Holden interviewed Mr. [F.R.] for approximately six hours on September 26th and 27th, 2005. In addition, he administered number of tests or had Mr. [F.R.] complete tests on his own. In all, thirteen tests are outlined at pages 13 and 14 of his report. He felt that the results of the Minnesota Multiphasic Personality Inventory (MMPI) were not valid, on the basis that he felt Mr. [F.R.] was “faking good”, so he did not have the benefit of that test result in arriving at this opinion. However, he indicated that the fact Mr. [F.R.] did this did not affect the risk assessment, since this is not surprising thing for someone in Mr. [F.R.]’s position to do.[21] [77] With respect to his assessment of the risk which Mr. [F.R.] would present, Dr. Holden relied to great extent on the HCR-20, version 2, which is list of risk factors for predicting violent behaviour. There are twenty items of which ten are past or historical factors, five are present or clinical variables and five are future risk or risk management variables. One of the variables was psychopathy for which Dr. Holden used the PCL-R test. He stated that score of above 30 indicates serious psychopathy. Mr. [F.R.]’s score was 32. His total score on the HCR-20 was 36 out of 40, which resulted in Dr. Holden concluding that he has very high risk to re-offend violently in the future. On each variable examined in this test Mr. [F.R.]’s score was either that he was at an extremely high risk to re-offend violently or at very high risk or probability to re-offend violently, except with respect to the variable concerning mental illness. Mr. [F.R.] does not have any mental illness. [78] Dr. Holden testified that Mr. [F.R.] has significant personality issues; that he is untreatable; that his risk to re-offend is very high; that his risk to re-offend sexually is high and that he meets the criteria of dangerous offender. His opinion was that Mr. [F.R.] suffers from an antisocial personality disorder, some kind of substance abuse disorder and that aspects of his personality mirror psychopathy. [79] He testified regarding the issue of whether Mr. [F.R.] was psychopath or not, as follows:[22] I’m reluctant to label anyone psychopath because of the amount of connotations in the public of labeling someone psychopath, so prefer to suggest that he has aspects of personality which mirror psychopathy as we-as understand it. Psychopathy is constellation of personality attributes which tend to produce an individual who has little or no regard for convention, tends to be quite selfish, tends to justify behaviour on the basis of expediency, tends not to learn from one’s own–his own mistakes, tends not to accept treatment or accept even the possibility of needing treatment, very often has –psychopathy is (inaudible), 93 percent of the time actually with substance abuse; alcohol, 26 percent of the time with alcohol abuse, so there is hard relationship between (inaudible) abuse disorders and psychopathy. [80] Although Dr. Holden outlined what types of changes and treatments would be required, at minimum, to permit Mr. [F.R.] to be safe in the community, his conclusion was that it was not realistic to think that this could be achieved. He testified as follows:[23] think he has well-entrenched antisocial behavioural patterns. He has well-entrenched violence patterns going back to his early adolescence, perhaps earlier. He has personality traits which suggest that he hasn’t been able, up to this point, to live successful life, hasn’t been able to establish non-violent part of living, and hasn’t been able to establish any of the skill-sets or demonstrate the skill-sets which we would suggest are part of being successful in the community. So my suspicion is that it would take significant amount of work on his part. If indeed he is psychopathic, that’s not likely to work. In fact, the cognitive behavioural approaches which are the basis of corrections and other agencies rehabilitative efforts with inmates probably would be counterproductive with Mr. [F.R.]. [81] Dr. Holden was familiar with the Aggressive Behavioural Control program at the Regional Psychiatric Centre, and acknowledged that it is superior program. He agreed that if Mr. [F.R.] came out of that program admitting that he was very high risk to re-offend violently for the rest of his life, it might possibly make him safe, but only if he completely abstained from drinking. However, he doubted that Mr. [F.R.] would be able to do this. He notes in his report that Mr. [F.R.] told him that he had essentially sabotaged any treatment offered to him and that he continued to use illicit substances during his present incarceration at the Regina Correctional Centre. [82] Dr. Holden recognized that if there was any possibility of treatment rendering Mr. [F.R.] safe in the community, long-term offender designation should be the result, but his conclusion was that there was no possibility of that which he could anticipate at this time.[24] While it is not for the experts, but for the Court, to determine whether dangerous offender or long-term offender designation should be made, Dr. Holden’s opinion regarding Mr. [F.R.]’s potential for effecting change in his behaviour is worthy of consideration. [83] An issue arose concerning the reliability of one aspect of Dr. Holden’s opinion, as he was given incorrect information about Mr. [F.R.]’s criminal background. description of Mr. [F.R.]’s only sexual offences, which occurred between 1986 and 1988, but on which convictions were not entered until June 16th, 1994, is presented at page four of Summary prepared by the Crown, which was marked exhibit P-4. The description of these offences in this Summary is completely different from the circumstances presented by the Crown at the sentencing hearing as set out in the transcript, exhibit P-3, which have outlined above. The facts asserted, apparently from the police report, outline extremely intrusive and deviant behaviour far beyond that described by the Crown at the sentencing hearing which were incidents of fondling younger female cousins on their private parts, over clothing. [84] The information provided to Dr. Holden in the Summary was that one incident involved Mr. [F.R.] rubbing his penis on the sides of the victim’s vagina and forcing that same victim to perform fellatio on him. The other offences were described as fondling as well as one instance of Mr. [F.R.] laying his privates on top of the victim’s privates. The Summary states the plea bargain was necessary because of the weakness of the Crown’s evidence. It acknowledges that the facts provided to the court were “minimized” and sets out those facts. Nevertheless, from this point on in the Summary, with one exception, only the more serious facts are mentioned and noted to have been relied upon by the various correctional authorities who had subsequent dealings with Mr. [F.R.].[25] In the course of his testimony, Dr. Holden noted that he found Mr. [F.R.] to be in denial regarding his sexual crimes and resistant to any treatment concerning sexual deviancy. [85] The Crown Prosecutor candidly acknowledged that it was an error to provide the Crown expert with the more serious facts regarding the sexual offences. In the result, must discount Dr. Holden’s opinion concerning the risk Mr. [F.R.] presents of future sexual offending. [86] When asked to comment on the report and conclusions of the defence expert, Dr. Hengen, Dr. Holden stated that in his opinion Dr. Hengen’s assessment that Mr. [F.R.] was amenable to treatment was really an assessment that he was amenable to be taught to change, in the sense of having the intellectual capacity to change, rather than an assessment of his motivation to change.[26] [87] Dr. Holden testified that persons who are made subject to dangerous offender designation are provided with treatment opportunities such that this is no longer lifetime commitment to jail, as it used to be. In his view, person who is committed to treatment may well do very well under dangerous offender designation within the system.[27] B. Evidence of the Defence Expert Dr. Thomas J. Hengen[28] [88] Dr. Hengen has doctorate degree in cognitive psychology. His primary area of expertise concerns adult education. He also has extensive experience with Aboriginal learning, the Cree culture and post-traumatic stress disorder. He is clearly someone who has had great involvement and success in treating Aboriginal persons and the description of the programming and counselling he provides in his practice was quite impressive. He had never before been involved in providing an opinion in dangerous offender hearing but he had treated persons who were involved with the criminal justice system and utilized some tests specifically created to assess criminality. [89] Dr. Hengen also interviewed Mr. [F.R.] for considerable period of time and administered different tests than those used by Dr. Holden. He and Dr. Holden agree that Mr. [F.R.] is fairly bright individual, certainly above average intelligence. [90] Dr. Hengen’s conclusion was that Mr. [F.R.] likely suffered from post-traumatic stress disorder, the adult consequences of childhood attachment issues and serious drug and alcohol abuse problem. He outlines in the conclusions portion of his report at pages 17 to 21 the specific types of programs and focused treatment which he believes would render Mr. [F.R.] safe in the community by the use of intensive investment in holistic counselling and case management. He notes the importance of strong culture base to the learning plan, and the support required which has already begun by the involvement of Mr. Frank Lerat, an Elder who has been contacted by Mr. [F.R.] and is apparently willing to assist him in the future. [91] Dr. Hengen’s opinion was that one should not conclude, from Mr. [F.R.]’s history of involvement with treatment programs, that he is unwilling or unable to change his violent behaviour. He was critical both of the type of program offered to Mr. [F.R.] in the past and of the lack of culture base to that programming. Dr. Hengen’s conclusion at page 19 of his report is that: ...[F.R.] presents sufficient indicators of learning capability to provide reasonable probability that learning program designed specifically to address deficits in his self-regulating mechanisms of behaviour, based on the appropriate psycho-neurological assessment, might yield desirable results. Such an individualized learning program based on prescriptive assessment and professionally assigned remedy does not appear in any of the records or reports available to me at the time of the present report. include in this statement the records and reports that issue from various corrections services. [92] Dr. Hengen advised that the treatment programs he would be creating for Mr. [F.R.] would not be instituted in the correctional setting, but rather on release, and that one would know in the first six months if any success was being achieved. He indicated that motivation can be instilled through the programming, and that success provides its own motivation. [93] There was an area of disagreement between Dr. Holden and Dr. Hengen where felt Dr. Hengen’s opinion had more validity. Dr. Holden took note of the fact that Mr. [F.R.] had been involved in four fights and once was found to have an iron bar in his cell, while on remand at the Regina Provincial Correctional Centre. Dr. Holden factored this into his conclusion that Mr. [F.R.] was untreatable on the basis that if he could not control himself in structured setting like the jail he would not be able to do so in the community.[29] However, Dr. Hengen noted that the remand centre is very stressful environment and one’s behaviour there should not be used to determine how they would respond to treatment.[30] [94] There is no question but that Mr. [F.R.] presents, at this time, clear danger to the community, so in my view the fact that he also presents that danger, and acts it out, in the jail, is of little assistance in determining if his behaviour could eventually be controlled in the community on long-term offender sentence made up of lengthy period of incarceration followed by strict supervision in the community. Accordingly, do not accept Dr. Holden’s opinion that this is factor which should be taken to contribute to negative conclusion regarding Mr. [F.R.]’s amenability to treatment. [95] Dr. Hengen’s primary conclusion was that he does not believe that Mr. [F.R.] is psychopath who cannot be treated. He states at page six of his report that Mr. [F.R.] does not present evidence of entrenched psychopathy that is not profoundly influenced by his lack of impulse control in respect to drugs and alcohol. He clarified this statement in his evidence. He believes that Mr. [F.R.] is not psychopath, but rather that his violent behaviour will be controlled if his drug and alcohol addictions can be controlled. [96] Dr. Hengen questioned some of the variables of the psychopathy checklist utilized by Dr. Holden, indicating that they might not be accurate for Aboriginal persons. Examples he gave concerned the factors of having multiple relationships and of having children from multiple relationships. He indicated that these are not behaviours which are viewed negatively by the Aboriginal community and therefore they should not be assessed as indicators of psychopathy. Dr. Holden agreed with the suggestion by defence counsel that care must be taken to ensure there are no cultural impediments to an accurate test result, thus Dr. Hengen’s evidence raised concern about the reliability of Dr. Holden’s conclusions concerning Mr. [F.R.]’s score on the psychopathy checklist. Dr. Holden was cross-examined on this issue and stated that the way many of Mr. [F.R.]’s relationships ended was part of the assessment which resulted in points being attributed on this factor.[31] This makes it clear that there is more to this test and its proper application than is apparent from simply looking at the checklist. [97] Nevertheless, this is an important area of dispute, relating directly to the issue of whether Mr. [F.R.] is psychopath, and untreatable, or not. Dr. Hengen testified that neuropsychological assessment would be the only way to determine whether Mr. [F.R.] is amenable to treatment, or is psychopath who cannot be treated.[32] Since there was clear dispute between the experts on this issue, and it was the defence expert who was of the view that further investigation was required, concluded that should obtain this further information, particularly in light of the fact that of the experts, Dr. Holden had far greater experience in forensic psychology so his evidence on this specific issue would normally carry more weight. [98] Accordingly, ordered that such an assessment be conducted pursuant to section 723 of the Criminal Code. It was determined that Dr. Stevens would be able to perform this service, so the hearing was adjourned to August 28, 2006 to permit the assessment and report to be prepared, and for Dr. Stevens to attend to be questioned on his report. C. Evidence of Dr. Greg Stevens[33] [99] found Dr. Stevens to be an excellent and knowledgeable witness who was completely independent. Accordingly, within his area of expertise, where his opinion differs from that of the other experts, accept his evidence. Where his evidence confirms that of one of the other experts, it gives greater weight to that opinion. Dr. Stevens made it clear in his evidence that he was not in position to comment on the likelihood of success of any treatment programs which might be devised for Mr. [F.R.] as this was outside his area of expertise. [100] Although was not provided with the materials given to Dr. Stevens about Mr. [F.R.]’s previous offences, received an assurance by the Crown that the materials would be corrected to remove the improper information about his previous sexual offences.[34] [101] Dr. Stevens administered two personality tests, the Minnesota Multiphasic Personality Inventory-2 (MMPI-2)[35] and the Self-Regulation Skills Interview (SRSI). With respect to the results of the MMPI-2, Dr. Stevens’ report states at page 16 that while those with similar personality profile might express personal misgivings or vague sense of remorse for past acts, these feelings are often situationally based and dependent on their current circumstances. Such persons are often poor candidates for psychotherapy as they often resist psychological intervention, tend to argue with others, and rationalize or blame others for their problems. [102] In support of these findings, Dr. Stevens recounts at page 17 of his report Mr. [F.R.]’s comments concerning his present situation. He spoke of the ongoing uncertainty, dehumanizing treatment, lack of programs, “doing all these tests like monkey”, and the sense that the entire system is working against him “for one drunken night”, which has him on edge and under lot of pressure. While have some sympathy for the earlier comments, am concerned about his reference to his situation being the result of “one drunken night”, rather than prolonged period of violent conduct towards Ms. [P.M.]. It is of particular concern that even after two years on remand, with one of those years being under the threat of being found dangerous offender, he still does not appear to have accepted the seriousness of his offences and that he cannot drink or use drugs if he is to be in the community.[36] [103] This attitude is similar to that noted in the Penitentiary Placement Report dated October 1, 1994, contained within exhibit P-6 on the application, during Mr. [F.R.]’s incarceration in the Penitentiary for his previous serious domestic assault on [T.R.]. The report notes that Mr. [F.R.] admits most of the events and demonstrates some remorse, but also lacks empathy and insight, given that he made the statement that he didn’t owe her anything now as he is serving three year sentence for only six months of abuse. [104] The Self-Regulation Skills Interview (SRI) mentioned above is designed to measure number of dimensions related to rehabilitation and change. It assesses person’s awareness of the behaviour that needs to be changed, his expressed motivation to change the behaviour and the likely effectiveness of various strategies designed to counteract the target behaviour. While Mr. [F.R.] self reported that he was well motivated to change, his scores on the other two dimensions were closer to individuals who have experienced brain injury than non-brain injured individuals. Mr. [F.R.] is not in fact brain injured, but his similarity to those who are bodes ill for the likelihood of him responding positively to treatment. [105] In cross-examination Dr. Stevens indicated that the conclusion he drew from Mr. [F.R.]’s poor performance on this test was that he does not have the sophistication around the awareness to change and does not have the depth and richness to explore it. Dr. Stevens did not rule out the possibility that there are aspects of Mr. [F.R.]’s behaviour that are amenable to change, but he could not answer the question about whether there were enough aspects or if they would change to an acceptable degree to be safe in the community. [106] Dr. Stevens states in the summary of his report that Mr. [F.R.] could rightfully be classified as having an antisocial personality disorder and at least one or more substance abuse-related disorder. He noted that in addition to demonstrating number of the antisocial/lifestyle behaviours associated with psychopathy, he could also be evaluated as having some of the affective/interpersonal features of the disorder. [107] At Dr. Hengen’s suggestion, the instruction to Dr. Stevens was that he should place emphasis on the assessment of Mr. [F.R.]’s executive functions. Dr. Stevens describes executive function as being related to an individual’s ability to engage in goal-directed, planned and controlled behaviour. Dr. Stevens found no impairment of Mr. [F.R.]’s executive functions and found he had intact neuro-cognitive functioning, which were all in the average or above average ranges. In the result, there was no evidence of neuro-cognitive cause for Mr. [F.R.]’s violent behaviour. That being said, Dr. Stevens explained that this does not mean that his tests have established that Mr. [F.R.] is not psychopath, it just means that he did not find neuro-cognitive basis to state that he is psychopath. [108] Dr. Stevens testified that psychopathic personality disorder does not exist as legitimate diagnostic category in the DSM-IV-TR, which is the most widely used taxonomy of official classifiable mental disorders. As he is not trained in the administration and interpretation of the PCL-R instrument which Dr. Holden administered to Mr. [F.R.], he was not in position to comment on those results. He accepted that this test was the most widely accepted “formal” way to determine if person is psychopath, noting that it must be administered by suitably trained and experienced individual.[37] Accordingly, while did have some concern about the possible cultural bias in the PCL-R, as raised by Dr. Hengen, and noted earlier, was satisfied by Dr. Stevens’ evidence that Dr. Holden’s conclusions based on this test could properly be relied upon. [109] Dr. Stevens testified that there has recently been some change in the belief that psychopaths cannot change. He testified that many of the core elements which are the hallmarks of psychopathy are too entrenched to change. These include: being superficial, narcissistic, egocentric, having limited remorse, insight or empathy regarding the effect of their behaviour on others, and failure to accept responsibility. But there is now belief that psychopathy tends to decrease with age (from mid-40's on) and that the anti-social/lifestyle features of psychopathy including impulsivity, irresponsibility and the need for stimulation could be changed with proper programming and analysis. However, he was not able to give any indication of how long it would take to effect such changes, other than to say it would be long-term, nor was he able to indicate way to predict if the efforts would be successful. In his view, at minimum the individual must be willing, insightful and motivated to change. [110] There was no dispute about whether the offence of which Mr. [F.R.] was convicted qualifies as ‘serious personal injury offence’ as that term is defined in section 752, and as interpreted by the Saskatchewan Court of Appeal in R. v. Goforth.[38] [111] In addition, it is clear that Mr. [F.R.]’s predicate offence and past behaviour leads to the conclusion that the requirements set out in s. 753(1) have been met. The evidence presented at the trial of the predicate offence and during the dangerous offender application establish that he presently constitutes threat to the life, safety and well-being of other persons because of his persistent, repetitive behaviour that has shown failure to restrain his behaviour and that there is likelihood that he will cause injury to others through failure to restrain his behaviour in the future. There is also pattern of persistent, aggressive behaviour showing substantial degree of indifference regarding the reasonably foreseeable consequences of his behaviour to other people. In sum, he meets the criteria to be found dangerous offender. [112] It is equally clear that the pre-conditions in s. 743.1 (2)(a) and (b) have been met. Since he was previously sentenced to three years for similar offence, sentence of greater than two years would necessarily result if he was sentenced in the normal course on the predicate offence. Given his previous record of convictions there is clearly substantial risk that he will re-offend in violent manner. The sole issue left for me to determine is whether the evidence permits me to find that there is a reasonable possibility of eventual control of the risk Mr. [F.R.] poses to the community, so that he could be designated a long-term offender rather than a dangerous offender. This is not case where definite term of imprisonment would be appropriate, as was conceded by Defence counsel in argument. [113] The case law makes it clear that in order to find Mr. [F.R.] to be long-term offender it is not necessary to find that the risk he poses could be eliminated. The assessment relates to whether the risk he poses could be eventually reduced to an acceptable level if Mr. [F.R.] were sentenced to several years in prison, exposed to the treatment programs offered in prison, and then released into the community under supervision on conditions specially created to reduce the risk. This could include conditions that he take the treatment and counselling which could be provided by Dr. Hengen, and there could be limitations on his freedom of movement and living companions. [114] Dr. Hengen provided great deal of information about the opportunities for treatment programs specially designed for Aboriginal offenders and the evidence indicates that Mr. [F.R.] has the intellectual capacity to benefit from those programs if he has sufficient motivation to do so. The description he gave of an individualized adult learning program with holistic approach including cultural support seems the ideal program for any offender. Dr. Hengen has undertaken to assist Mr. [F.R.] in establishing connections to Elders and to provide the treatment programs required. [115] have referred earlier to the problem created by Dr. Holden having been given facts concerning Mr. [F.R.]’s sexual offences which did not accord with, and which were much more serious than those admitted in court at the time of sentencing.[39] Those more serious facts had also been provided to the Correctional Service of Canada following the sentencing, while Mr. [F.R.] was serving his three year penitentiary sentence. This has created an additional issue for me to consider in this application. [116] The correctional officials accepted the more serious facts as accurate, therefore they considered Mr. [F.R.] to be dangerous sexual offender who required specialized treatment. Mr. [F.R.] continued to assert that the facts were as stated in court and he refused treatment on the basis that the offences involved minor touching of an experimental nature, when he was very young, and that he did not require treatment since there had been no further sexual offence convictions. His refusal to take sex offender treatment resulted in the National Parole Board refusing him parole and holding him until his warrant expiry.[40] have had to consider Dr. Hengen’s evidence in the context of the Correctional Service of Canada focus on Mr. [F.R.] as dangerous sexual offender, which do not believe the evidence establishes, and whether the programming that he was offered was so inappropriate as to lead to the conclusion that he has not shown himself resistant to treatment and that he should therefore be allowed the opportunity to take the programming Dr. Hengen suggests. [117] However, while the programming offered to Mr. [F.R.] was not individualized, he was offered and in fact took programs designed to address aggression, domestic violence, anger management and substance abuse. Nevertheless, his conduct concerning [P.M.] was almost identical to his treatment of [T.R.]. In the result, while his failure to agree to take sex offender treatment resulted in his being denied parole, cannot conclude that Mr. [F.R.] was denied appropriate programming for his problems. He received the programming but his behaviour was not altered by taking that programming. Similarly, although he was denied the opportunity for gradual release into the community under supervision, he was often subject to sentences of community supervision through probation orders. These were not in any way successful in changing his behaviour, even after he was warned that an application such as this one might be taken if he continued with his violent behaviour. [118] Justice Jackson, as noted earlier, found it significant that the offender in R. v. K.R.S., supra, had managed, for some significant periods of time, to be in the community without criminal behaviour. I note, to the contrary, that Mr. [F.R.] does not have significant gaps in his violent offending, except for one period of about nineteen months between August of 2000 to March of 2002. While there is a significant time period between his offences concerning Ms. [T.R.] (1993) and those involving Ms. [P.M.] (2003), there are also the other violent offences concerning women which are of concern, both with respect to [M.Z.], which is a third example of that type of controlling, violent behaviour and the incidents concerning [F.B.] and [S.O.] which denote more explosive violent behaviour. [119] Dr. Stevens agreed with the suggestion by defence counsel that many of Mr. [F.R.]’s antisocial kinds of explosive behaviour, acts done in rages, are somewhat uncharacteristic of psychopath.[41] However, while some of the assaults which are on his record appear to be of this type, such as the immediate punch to Ms. [S.O.]’s jaw when she insulted him, his treatment of his domestic partners, as noted above, was not of that character, being deliberate rather than explosive. [120] In my assessment of the expert evidence am placing great deal of weight on Dr. Stevens’ evidence, since he is independent of both the parties and was specially qualified to assess Mr. [F.R.]’s personality characteristics and the potential for altering his future behaviour. consider Dr. Stevens to have corroborated the evidence of Dr. Holden in many respects, which has resulted in my acceptance of his opinion regarding Mr. [F.R.]’s amenability to treatment over that of Dr. Hengen. [121] In particular, on the issue of Mr. [F.R.]’s psychopathic characteristics, I have concluded that Dr. Stevens’ opinion supports that of Dr. Holden that Mr. [F.R.] is not someone who can be treated so as to reduce the risk of re-offence he presents to the community to an acceptable level. Dr. Stevens disagreed with Dr. Hengen’s conclusion that Mr. [F.R.] suffers from post-traumatic stress disorder. This then adversely affects Dr. Hengen’s opinion regarding the treatment programs which would be beneficial for Mr. [F.R.] and his anticipated prognosis for possible success in altering his behaviour after taking those programs. [122] There is also concern about Dr. Hengen’s conclusion that Mr. [F.R.]’s violent propensities will disappear if he gains control over his substance addictions. Although many of Mr. [F.R.]’s offences were committed while he was under the influence of drugs or alcohol, it is doubtful that the continuous beatings which he inflicted on his domestic partners can all be attributed to violence while under the influence of substances. Dr. Stevens noted that some, but not all, of Mr. [F.R.]’s previous offences involved the use of alcohol, therefore he viewed this as crucial area to be addressed, but he did not accept that substance abuse was the cause of all the earlier behaviour.[42] accept Dr. Stevens’ opinion on this issue. [123] Unlike the situation in R. v. Lemaigre, the risk Mr. [F.R.] poses is not just to a single person. Any woman he has contact with either through family relationships, intimate relationships or purely social relationships is at risk of his penchant to punch or kick them in the face. Those he is involved with in domestic or intimate relationship are at grave risk of his controlling, violent and torture-like abusing behaviour over lengthy period of time. It is unlikely that restrictions on his living arrangements would be effective in preventing him from being intimately involved with women, who would then be at risk. [124] Mr. [F.R.] is relatively young, so one is reluctant to order his detention on an indeterminate basis. As set out in the relevant authorities which were outlined above, restraint must be exercised in determining what sentence to impose. It must be the least restrictive sentence which is appropriate in the circumstances. On the other hand, Mr. [F.R.] is still long way from the age at which the experts say there may begin to be diminution of violent behaviour. [125] designation of Mr. [F.R.] as long-term offender subject to definite period of incarceration followed by close supervision, even for many years, would be based on hope that all persons are capable of rehabilitation rather than on evidence that it is reasonable to anticipate that he could be treated and controlled by combination of lengthy jail term and community supervision to the point where the risk he would pose to the community would be at an acceptable level. Unfortunately, I have come to the conclusion that Mr. [F.R.] has significant psychopathic features of his personality that are so entrenched as to be impervious to change such that the sentencing principle of public protection can only be achieved by an indeterminate sentence. Mr. [F.R.] falls within that small group of offenders described by the Supreme Court of Canada in R. v. Lyons as those “...whose personal characteristics and particular circumstances militate strenuously in favour of preventive incarceration...”.[43] [126] Accordingly, for these reasons, and pursuant to section 753(4) of the Criminal Code, I find Mr. [F.R.] to be a dangerous offender and sentence him to indeterminate detention. Pursuant to section 760 of the Criminal Code order that copy of all reports filed, this decision and the trial transcript be forwarded to the Correctional Service of Canada. [127] will hear counsel with respect to any other orders which should be made to conclude sentencing. C.A. Snell Judge of the Provincial Court of Saskatchewan [1]Section 752.1 of the Criminal Code requires that the remand order for the purposes of the assessment should be for period not exceeding 60 days, and that the report of the person conducting the assessment is to be made available 15 days after the end of the assessment period. [2]This creates presumption that substantial risk is to be found in these circumstances, but it can also be found without the necessity of finding this pattern of repetitive behaviour. (see R. v. K.R.S., 2004 SKCA 127 (CanLII), [2004] S.J. No. 591; 2004 SKCA 127; 254 Sask.R. 211, para. 49) [3]2003 SCC 46 (CanLII), [2003] S.C.R. 357; 177 C.C.C. (3d) 97; 13 C.R. (6th) 205. [4]2004 SKCA 125 (CanLII), [2004] S.J. No. 589; 2004 SKCA 125; 254 Sask.R. 255; 189 C.C.C. (3d) 492 [5]Supra, footnote [6][2004] S.J. No. 590; 2004 SKCA 126 (CanLII); 254 Sask.R. 276; 189 C.C.C. (3d) 512 [7] Mr. Justice Cameron expresses the same principles in R. v. J.L.A.G. at paragraphs 40 to 42. [8]At paragraph 12. [9]At paragraph 21. [10] 2006 SKCA 52 (CanLII), [2006] S.J. No. 303; 2006 SKCA 52 [11]R. v. McCallum (2005), 2005 CanLII 8674 (ON CA), 201 C.C.C.(3d) 541; [2005] O.J. No. 1178 [2005] S.J. No. 70 (CanLII) 2005 SKPC 9; upheld without written reasons by the Sask.C.A., Oct. 19, 2005, leave to appeal to the S.C.C. denied, [2006] S.C.C.A. No. [13]This is according to the Pre-sentence Report. Other personal histories in the materials contain different numbers. do not think this is significant as the relevant point is that he came from large family and was by far the youngest. [14]Dr. Hengen’s report, page 10. [15]See R. v. Probe, [1983] S.J. No. 912 (Sask.C.A.) [16]Psychological/psychiatric Assessment Report dated July 28, 1994, Correctional Service of Canada records, exhibit P-6. [17]See page of Dr. Holden’s report, exhibit P-9. [18]At pages 50-51 of the collection of sentencing transcripts, P-3. [19]Note: Dr. Holden’s report includes an account by Mr. [F.R.] concerning an assault on niece, but it is so different from the account given by Ms. [S.O.] that am not confident that Mr. [F.R.] was referring to the same event. am giving him the benefit of the doubt and will not consider it to be his version of the events, which would have amounted to serious minimization of the incident. [20]His report was marked exhibit P-9 on the application. [21]Pages 21 to 23, Transcript. [22]Page 26, Transcript. [23]Page 35 to 36, Transcript. [24]Pages 50 to 51, Transcript. [25]Another defect in the Summary, P-4, concerns an assertion that the accused stabbed Mr. Desjarlais on the same date as the predicate offence. This was not established and should not have been referred to. [26]Pages 99-101, Transcript. [27]Page 128, Transcript. [28]His report was marked exhibit P-10 on the application. [29]Page 182-184, Transcript. [30]Page 322, Transcript. [31]Page 165, Transcript. [32]Page 292, Transcript. [33]His report was marked exhibit C-1. [34]Page 396, Transcript. [35]This was the personality test on which Dr. Holden was unable to obtain valid results. [36]Dr. Stevens recounts at page of his report that Mr. [F.R.] stated to him that he acknowledged that many of his problems occur when he is intoxicated and that he has “been considering making decision to stop- no, have made decision to stop.” [37]Page 18 of Dr. Stevens’ report. [38]2005 SKCA 12 (CanLII), [2005] S.J. No. 79; 257 Sask.R. 123; 193 C.C.C. (3d) 354; (motion for extension of time to apply for leave to appeal dismissed Dec. 22, 2005 [2005] S.C.C.A.No. 456). [39]Paragraphs 83-85 of this decision. [40]See exhibit P-6, the Correctional Service of Canada records. [41]Page 460, Transcript. [42]Page 456, Transcript. [43]1987 CanLII 25 (SCC), [1987] S.C.R. 309; 37 C.C.C. (3d) 1; 61 C.R. (3d) 1, at paragraph 44.
The Crown has applied pursuant to s. 753 of the Criminal Code to have the accused designated a dangerous offender. There is no question that the accused was convicted of a 'serious personal injury offence' as that term is defined in s. 752 of the Code. It is also clear that the accused's predicate offence and past behaviour lead to the conclusion that the requirements set out in s. 753(1) of the Code have been met. The sole issue left for the Court to determine is whether the evidence permits the Court to find that there is a reasonable possibility of eventual control of the risk the accused poses to the community so that he could be designated a long term offender rather than a dangerous offender. This is not a case where a definite term of imprisonment would be appropriate, as was conceded by defence counsel. HELD: The accused is a dangerous offender. He is sentenced to indeterminate detention. 1) The accused does not have significant gaps in his violent offending, except for one period of about 19 months beginning August 2000. While there is a significant time period between his offences concerning T.R. (1993) and those involving P.M. (2003) there are also the other violent offences concerning women which are of concern, both with respect to MZ, which is a third example of that type of controlling, violent behaviour and the incidents concerning F.B. and S.O. which denote more explosive violent behaviour. 2) The expert evidence supports a finding that the accused is not someone who can be treated so as to reduce the risk of re-offence he presents to the community to an acceptable level.  3) Although many of the accused's offences were committed while he was under the influence of drugs or alcohol, it is doubtful that the continuous beatings which he inflicted on his domestic partners can all be attributed to violence while under the influence of substances. 4) The accused does not pose a risk to just a single person. Any woman he has contact with either through family relationships, intimate relationships, or purely social relationships is at risk of his penchant to punch or kick them in the face. Those he is involved with in a domestic situation or intimate relationship are at grave risk of his controlling, violent and torture-like abusing behaviour over a lengthy period of time. It is unlikely that restrictions in his living arrangements would be effective in preventing him from being intimately involved with women, who would be at risk. 5) The Court was of the opinion that the accused has significant psychopathic features of his personality that are so entrenched as to be impervious to change such that the sentencing principle of public protection can only be achieved by an indeterminate sentence.