A-G for the State of Qld v Carpenter

[2009] QSC 422

SUPREME COURT OF QUEENSLAND

CITATION:

A-G for the State of Qld v Carpenter [2009] QSC 422

PARTIES:

ATTORNEY-GENERAL FOR THE STATE OF QUEENSLAND

(Applicant)

v

HAROLD JAMES CARPENTER

(Respondent)

FILE NO/S:

No 3830 of 2008

DIVISION:

Trial Division

PROCEEDING:

Application under the Dangerous Prisoners (Sexual Offenders) Act 2003

ORIGINATING COURT:

Supreme Court, Brisbane

DELIVERED ON:

14 December 2009, ex tempore

DELIVERED AT:

Brisbane

HEARING DATE:

14 December 2009

JUDGE:

Byrne SJA

ORDER:

There will be an order in terms of the draft, as initialled and placed with the papers. 

CATCHWORDS:

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – JUDGMENT AND PUNISHMENT – SENTENCE – MISCELLANEOUS MATTERS – SEXUAL OFFENDERS – Dangerous Prisoners (Sexual Offenders) Act 2003 (Qld) – where the respondent’s continuing detention order is reviewed under section 27 of Dangerous Prisoners (Sexual Offenders) Act 2003 – where psychiatric evidence confirms respondent is serious danger to the community – whether respondent should be subject to continuing detention or supervision order – where circumstances justify order for continuing detention

s 30 Dangerous Prisoners (Sexual Offenders) Act 2003 (Qld)

COUNSEL:

Ms M Maloney for the Applicant

Ms K Prskalo for the Respondent

SOLICITORS:

Crown Law for the Applicant

Legal Aid Queensland for the Respondent

1. This is a review hearing conducted pursuant to section 30 of the Dangerous Prisoners (Sexual Offenders) Act 2003. The Attorney-General seeks an order affirming the decision made by A Lyons J on 18th September last year that Harold James Carpenter is a serious danger to the community in the absence of an order under Division 3 of that Act.

1. On such a review as this, the Court may affirm the decision only if it is satisfied, by acceptable cogent evidence and to a high degree of probability, that the evidence is of sufficient weight to affirm the decision: see section 30 subsection(2). If such a decision is affirmed, the Court may order that the prisoner continue to be subject to the continuing detention order or else be released from custody subject to a supervision order.

1. The applicant presses for an affirmation of the decision and an order that the respondent continue to be subject to the continuing detention order.

1. The respondent, who appears by counsel, is also able to observe and participate in these proceedings by video link from a custodial environment.

1. The application for an order affirming the decision that the respondent is a serious danger to the community and for an order that he be subject to the continuing detention order is not resisted. 

1. Nonetheless, there is material in the opinions of two psychiatrists showing that there has been no significant alteration to the degree of risk the respondent poses to women were he to be released since the continuing detention order was made a little less than 14 months ago.

1. In the meantime, the respondent has attended a sexual offender treatment program. It was a program to get him started on a course which would lead to his undertaking the High Intensity Sexual Offenders Program.  He has maintained an unwillingness to participate in that program.  His expressed reason for doing so is that he does not wish to associate with child sex offenders. Despite his tendency to psychopathy, there may be substance in that objection based upon early life experiences. But Dr Grant, one of the psychiatrists who has examined him for the purpose of this proceeding, has concluded that part of his motivation for refusing to undertake the High Intensity Sexual Offenders Treatment Program may be to ensure that he remains in prison where "he is actually more comfortable than he would be in the community."  See page 11 of Dr Grant's report.

1. Dr Grant considers that completion of such a high intensity program would be important before the respondent's release from prison. Such a program would give a better indication of potential risks and would potentially reduce the risks of sexual and violent re‑offending against women. The respondent, however, will not go to the Wolston Correctional Centre to undertake such a course. That refusal makes completion of the high intensity program impossible.  Dr Grant concluded in his report in August this year with: "I believe that the risks to the community if Mr Carpenter was to be released from prison remain at least moderate and in many circumstances would be high.  If he was to be released it would need to be under a strict supervision order...In my opinion despite the completion of the Getting Started Program, the risks of re‑offending remain unchanged to any significant degree since my last report of July 2008."

1. A report has also been provided by Dr Lawrence.  She, too, speaks of the completion by the respondent of the Getting Started Program in June this year.  Material available to her indicated that the respondent was actively involved in that program and regularly asserted willingness to gain an understanding of his offending behaviour. But he indicated to Dr Lawrence, as the respondent has on other occasions, that he would refuse to participate in the high offender program because it would mean mixing with child sex offenders and, if necessary, he would assault one of them to avoid participation in the program.

1. Dr Lawrence records that this persisting unwillingness to participate in the program is maintained despite the fact that the respondent appreciates that his continued refusal to participate in the program increases the risk of his continued detention on the footing that he remains an unacceptable risk if released to the community.

1. As Dr Lawrence records - see paragraph 10.12 - the respondent appreciates that by refusing participation in the high offender course he is at greater risk of being detained indefinitely on the footing that the relevant risk for assessment by the Court will not have changed.  Despite this understanding, on several occasions, the respondent restated to Dr Lawrence his refusal to participate in such a program.

1. Dr Lawrence considers that the respondent remains at high risk of re-offending in a violent and sexual way against women if discharged without conditions; and, if discharged on conditions, the respondent, in her assessment, would ultimately breach them.  The risk may have been moderated to a degree since her earlier report in 2008 by virtue of the respondent's increasing age, deteriorating health and what Dr Lawrence described as a “subtle change of attitudes”.  Her report continues:  "However, in my opinion, the risk of re‑offending even if released on strict conditions remains high."

1. Dr Lawrence refers to a lack of realistic and reliable supports, the prospect of unemployment and increasing ill health, which expose the risks of frustrations and return to alcohol and drug abuse, which would be disadvantageous to the respondent's ability to control his aggressive and sexual impulses.  Dr Lawrence concludes, "In my opinion, Harold Carpenter appears to have accepted the prospect of indefinite detention in a prison environment and appears to be reasonably content and accepting of this.  His behaviour within the prison environment in recent years is consistent with an acceptance of a prison environment and acceptance of authority.  Thus, his apparent and the mild emotional response to the initial indefinite detention order, which he said was expected, is consistent with his present stance."

1. The psychiatrists differ slightly in their degree of assessment of the risk. But their reports and other material  establish, by acceptable cogent evidence and to a high degree of probability, that the evidence is of sufficient weight to affirm the earlier decision that the respondent is a serious danger to the community in the absence of a Division 3 order.

1. In those circumstances, the question is whether there ought to be an order for continuing detention or supervision.

1. In view of the matters to which I have referred, the fact that the paramount consideration is the need to ensure adequate protection of the community - see section 34 - and the other considerations that are made material by the Act I am persuaded that there ought to be an order (which, as I have said, is not resisted) for continuing detention.

1. There will be an order as per draft.