Director of Public Prosecutions (WA) v Carter
[2015] WASC 413
•6 NOVEMBER 2015
DIRECTOR OF PUBLIC PROSECUTIONS (WA) -v- CARTER [2015] WASC 413
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2015] WASC 413 | |
| Case No: | DSO:6/2015 | 26 OCTOBER 2015 | |
| Coram: | HALL J | 6/11/15 | |
| 29 | Judgment Part: | 1 of 1 | |
| Result: | Indefinite detention order made | ||
| B | |||
| PDF Version |
| Parties: | DIRECTOR OF PUBLIC PROSECUTIONS (WA) BRENDON VAUGHAN CARTER |
Catchwords: | Criminal law Dangerous Sexual Offenders Act 2006 (WA) Whether unacceptable risk of committing serious sexual offences Whether serious danger to the community Whether indefinite detention or supervision order appropriate |
Legislation: | Dangerous Sexual Offenders Act 2006 (WA) |
Case References: | Director of Public Prosecutions (WA) v Decke [2009] WASC 312 Director of Public Prosecutions (WA) v GTR [2008] WASCA 187; (2008) 198 A Crim R 149 Director of Public Prosecutions (WA) v Lyddieth [2012] WASC 246 Director of Public Prosecutions (WA) v Williams [2007] WASCA 206 The State of Western Australia v Latimer [2006] WASC 235 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CRIMINAL
- Applicant
AND
BRENDON VAUGHAN CARTER
Respondent
Catchwords:
Criminal law - Dangerous Sexual Offenders Act 2006 (WA) - Whether unacceptable risk of committing serious sexual offences - Whether serious danger to the community - Whether indefinite detention or supervision order appropriate
Legislation:
Dangerous Sexual Offenders Act 2006 (WA)
Result:
Indefinite detention order made
Category: B
Representation:
Counsel:
Applicant : Ms K Robinson
Respondent : Mr D J McKenzie
Solicitors:
Applicant : Director of Public Prosecutions (WA)
Respondent : David McKenzie Legal Pty Ltd
Case(s) referred to in judgment(s):
Director of Public Prosecutions (WA) v Decke [2009] WASC 312
Director of Public Prosecutions (WA) v GTR [2008] WASCA 187; (2008) 198 A Crim R 149
Director of Public Prosecutions (WA) v Lyddieth [2012] WASC 246
Director of Public Prosecutions (WA) v Williams [2007] WASCA 206
The State of Western Australia v Latimer [2006] WASC 235
- HALL J:
Introduction
1 Between 29 May 1990 and 4 March 2011 Brendon Vaughan Carter, the respondent, committed four serious sexual offences. For the last of these offences he was sentenced to 4 years' imprisonment, backdated to commence on 8 November 2011.
2 The respondent did not apply for parole on his most recent sentence and is due for release on 7 November 2015, having served his complete term of imprisonment. However, the Director of Public Prosecutions (WA) (DPP) has applied for an order that he be either detained in custody for an indefinite term for control, care and treatment or that he be released on a supervision order pursuant to s 17(1) of the Dangerous Sexual Offenders Act 2006 (WA) (the Act). The DPP has also sought that if these proceedings are not determined prior to the end of the respondent's present sentence he be detained in custody pursuant to s 14(2) of the Act.
3 The issues for determination in this case are:
1. is the respondent a serious dangerous to the community, and
2. if so, is the appropriate order one of indefinite detention or release into the community on a supervision order.
4 At the hearing counsel for the respondent conceded that on the evidence it was difficult to dispute that the respondent is a serious danger to the community and that orders under s 17 of the Act are open. The real issue was said to be whether the appropriate outcome is a supervision order or an indefinite detention order. Without conceding that an indefinite detention order should be imposed, the respondent's counsel also accepted that there were a number of impediments to a supervision order at the present time.
5 It was submitted that there were proposals which, if implemented, were likely to reduce the risk of reoffending and make that risk more manageable in the community. However, the respondent did not seek that the proceedings be adjourned because those proposals would require many months to be implemented. The respondent accepted that the application had to be determined on the evidence available at this point in time.
6 For the reasons that follow I have come to the conclusion that the respondent is a serious danger to the community. Where the court finds an offender is a serious danger to the community it must either order that the offender be detained for an indefinite term or make a supervision order. I have further concluded that at present there are no conditions that could be imposed that would adequately reduce the risk that the respondent would commit further sexual offences if he were released into the community on a supervision order and that such an order is, therefore, inappropriate. Accordingly, the appropriate order is one of indefinite detention. That does not preclude the possibility that the situation may change in the future and a supervision order may become appropriate. The Act allows for that possibility by providing for annual reviews of detention orders.
The evidence
7 The evidence is this case consisted of two volumes of materials and the oral testimony of a number of witnesses called by the applicant.
8 The documentary material was tendered by consent. The two volume book of materials consisted of historical information regarding the respondent's offending, his conduct and treatment in prison, reports prepared for this hearing and medical records. The reports included reports from two psychiatrists, Dr Mark Hall and Dr Gosia Wojnarowska. They were both called to give oral evidence and were cross-examined. The other witnesses were Dr Angela Cooney, a psychologist with the Department of Corrections, and Ms Julie Dabala, a Senior Corrections Officer. The respondent did not elect to give, or to call, any evidence at the hearing.
The law
9 Section 17 of the Act provides:
17. Division 2 orders
(1) If the court hearing an application for a Division 2 order finds that the offender is a serious danger to the community, the court may -
(a) order that the offender be detained in custody for an indefinite term for control, care, or treatment; or
(b) order that at all times during the period stated in the order when the offender is not in custody the offender be subject to conditions that the court considers appropriate and states in the order.
(2) In deciding whether to make an order under subsection (1)(a) or (b), the paramount consideration is to be the need to ensure adequate protection of the community.
11 Section 7(2) provides that the DPP has the onus of satisfying the court that a person is a serious danger to the community. The court has to be satisfied by acceptable and cogent evidence and to a high degree of probability. This is a standard that is greater than a finding on the balance of probabilities but less than a finding of beyond reasonable doubt, but is otherwise incapable of further definition: Director of Public Prosecutions (WA) v GTR [28] (Steytler P & Buss JA). This does not necessarily mean that the risk must be at some high percentage of probability, a risk may be less than 50% yet still be unacceptable. However, the court must identify what it is that constitutes the risk and makes it unacceptable and then consider whether or not those factors have been proved to a high degree of probability by acceptable and cogent evidence: Director of Public Prosecutions (WA) v GTR [34] (Steytler P & Buss JA).
12 A serious sexual offence is defined in s 3 of the Act to have the meaning given to that term in s 106A of the Evidence Act 1906 (WA). That means an offence mentioned in pt B of sch 7 of the Evidence Act for which the maximum penalty is seven years imprisonment or more. The respondent has committed four offences that fall into this category. He has also committed a number of other offences that are not characterised as serious sexual offences. Offences of other types may be relevant in assessing the risk of serious sexual offending being committed in the future because other offences may be connected to behaviour which has the real potential to lead to serious sexual offending: Director of Public Prosecutions (WA) v Lyddieth [2012] WASC 246 [10].
13 The DPP may make an application under the Act where a person is under a sentence of imprisonment for a serious sexual offence. At the time this application was made the respondent was serving a 4 year sentence imposed on 30 July 2013.
14 What is meant by an 'unacceptable risk' was considered by Wheeler JA in Director of Public Prosecutions (WA) v Williams [63] - [65]. In that case her Honour said that a judge is required to consider the likelihood of the person offending and the type of offence likely to be committed in considering whether the risk is so unacceptable that the interests of the community require a person be subject to further detention even though they have already been punished for whatever offence they may have actually committed in the past. That does not exclude the possibility that an unacceptable risk may be effectively addressed and minimised by a supervision order.
15 In Director of Public Prosecutions (WA) v GTR, Steytler P and Buss JA said at [27] that the word 'unacceptable' connotes a balancing exercise that will take into account the nature of the risk (the commission of a serious sexual offence, with serious consequences for the victim), the likelihood of the risk being realised and the serious consequences for an offender if an order is made (either detention, without having committed an unpunished offence, or being required to undergo what might be an onerous supervision order).
16 Section 7(3) of the Act sets out a number of matters that the court must have regard to in considering whether a person is a serious danger to the community. Those matters are:
(a) any report that a psychiatrist prepares as required by section 37 for the hearing of the application and the extent to which the person cooperated when the psychiatrist examined the person; and
(b) any other medical, psychiatric, psychological, or other assessment relating to the person; and
(c) information indicating whether or not the person has a propensity to commit serious sexual offences in the future; and
(d) whether or not there is any pattern of offending behaviour on the part of the person; and
(e) any efforts by the person to address the cause or causes of the person's offending behaviour, including whether the person has participated in any rehabilitation program; and
(f) whether or not the person's participation in any rehabilitation program has had a positive effect on the person; and
(g) the person's antecedents and criminal record; and
(h) the risk that, if the person were not subject to a continuing detention order or a supervision order, the person would commit a serious sexual offence; and
(i) the need to protect members of the community from that risk; and
(j) any other relevant matter.
17 As s 7(3)(j) implies, the list of matters to be considered by the court is not a closed one.
18 While s 7(3)(g) provides that the court must have regard to the criminal record in deciding whether a person is a serious danger to the community, the mere fact that a person has committed previous offences does not necessarily mean that there is an unacceptable risk that the person would commit a serious sexual offence in the future. The relevance of a prior record will depend on the nature of the offences committed, the number of them and the period of time over which they occurred. However, past behaviour is often a good indicator of future conduct.
19 Once a court has concluded that an offender is a serious danger to the community it must make either an indefinite detention order or a supervision order: Director of Public Prosecutions (WA) v Williams [68] (Wheeler JA), and Director of Public Prosecutions (WA) v GTR [51]. In deciding between those two possibilities the paramount consideration is the need to ensure the adequate protection of the community: s 17(2). That does not exclude other considerations. The use of the word 'adequate' indicates that a qualitative assessment is required. It cannot simply be assumed that the most assured preventative is detention and, therefore, the protection of the community will always favour such an order: Director of Public Prosecutions (WA) v Decke [2009] WASC 312 [14].
20 Once a finding is made that the person is a serious danger to the community, the court may adjourn the proceedings for further evidence to be obtained to assist in deciding between a supervision order or continuing detention: Director of Public Prosecutions (WA) v Williams [45], [47] (Martin CJ) and [85] (Wheeler JA).
21 The court should choose the option which is least invasive or destructive of the respondent's right to be at liberty. At the same time it must ensure an adequate degree of protection of the community: The State of Western Australia v Latimer [2006] WASC 235, and Director of Public Prosecutions (WA) v Decke.
22 The court should not be concerned with funding concerns when setting the terms of a supervision order. The court can assume that, if an order is made, the executive will perform its function in protecting the community by provision of appropriate assessment and resources: Director of Public Prosecutions (WA) v Williams [81] (Wheeler JA).
History of offending and antecedents - s 7(3)(c), (d) and (g)
23 In deciding whether a person is a serious danger to the community the court must have regard to the person's antecedent and criminal record: s 7(3)(g). This means all prior offences, whether they be serious sexual offences or not, to the extent that such offences are relevant to the question of whether the person is a serious danger to the community within the meaning of the Act. It also requires consideration of the person's personal history, including the context in which past offences were committed.
24 The criminal record and antecedents are relevant in themselves, but also relevant to whether the person has a propensity to commit serious sexual offences in the future: s 7(3)(c). They are also relevant to whether there is any pattern of offending behaviour: s 7(3)(d).
25 The respondent was born on 8 February 1970. He is the oldest of his parents' two children, having a brother who is two years younger. The respondent believes that his parents are still married and live in Western Australia, however he has had no contact with them since 2005. The accounts that he has given of his early childhood have been inconsistent and are unable to be verified, accordingly they need to be treated with some caution.
26 The respondent reported that his father served in the armed forces and that as a result the family lived in various locations when he was a child, including overseas. Although he said that he had a very close relationship with his parents and brother, he described a deterioration in his behaviour from about the age of 8. He said that he would sneak out at night unsupervised and break into houses. He also deliberately lit a fire. He punched his infant brother on the leg in order to see what effect it would produce. He became disobedient, destructive and difficult to discipline. He was also disruptive at school and this drew complaints from teachers. Notwithstanding this, the respondent described himself as being popular at school because of his sporting prowess and that he had many girlfriends. He left school in Year 11 when he was aged 16 and also left home at around the same time.
27 After leaving school the respondent worked in a few labouring jobs before joining the navy. He left the navy after 12 months and claimed that this was a medical discharge because he slept too much. However other records suggest that he was discharged due to problems with substance abuse, anger and threatening behaviour. He later worked in a few bars and at a go-kart track, but had extended periods of unemployment. He undertook a pre-apprenticeship in motor mechanics whilst in prison, but did not pass the course work. After his last release from prison he worked for a landscape company for a short period of time. At other times he has been either in prison or on social security benefits. He has been the recipient of a disability support pension for a number of years in relation to a diagnosed mental condition.
28 The respondent had his first serious relationship when he was aged 19. He and his partner lived together for approximately two years and had a daughter. During this relationship the respondent was charged with his first serious sex offence and imprisoned. Whilst he was in prison his partner had a child with another man and the relationship ended. The respondent's next long term relationship occurred when he was aged 24. This relationship was unstable and marred by drug use and conflict. The respondent made threats to kill his partner on one occasion for which he was charged and convicted and served a term of imprisonment. He and his partner reconciled following his release but the relationship subsequently ended after a total of three years when the respondent committed two serious sexual offences against his partner's daughter. After serving a further period of imprisonment the respondent commenced another relationship when he was aged 30. That relationship was also unstable and characterised by substance abuse and conflict. He had five children with this partner, all of whom were later taken into State care.
29 The respondent's first serious sexual offence was committed on 29 May 1990 when he was aged 19. At that time he was living in a hostel in West Perth. He became acquainted with a 17-year-old girl who was living in an adjacent hostel. Both hostels were operated by the same church group. The day prior to the offence the respondent had made a sexual advance to the complainant at Kings Park, which she had rejected. The following evening, at about 8.30 pm, the girl had asked to borrow a chisel in order to free a jammed window in her bedroom. The respondent invited the girl to his room at the hostel, telling her that there would be other people present. When they got to the room there was no-one present. He placed some hair mousse from a can into her hair and commenced 'fooling around' with her. He then pulled her onto his bed. She resisted his advances, broke free and moved towards the door, which he then locked. He grabbed her and pushed her to the floor and removed her shorts, shoes, underwear and pantihose. He then removed his own trousers and penetrated her vagina with his penis. She was resisting at this stage, crying and becoming hysterical. Intercourse continued to ejaculation and lights then shone through the bedroom window from a car, indicating that another person had arrived at the hostel. The respondent threatened the girl to be quiet and told her that there would be trouble for her if she was found in the bedroom. A person came into the room and then left. After a short time the girl managed to put on her shorts and run from the hostel. She later made contact with police and the respondent was arrested and charged. The girl was examined by a doctor and some bruising to her shoulder, wrists and knees was observed. The respondent was interviewed by police and made some admissions. He pleaded guilty to a charge of sexual penetration without consent contrary to s 324D of the Criminal Code (now repealed) but there was a dispute as to the facts. The respondent claimed that the girl had initially consented to sexual intercourse and then had withdrawn that consent. He also claimed that he had not used any force. A trial of issues was conducted and the respondent's version was rejected. On 4 September 1991 the respondent was sentenced to a term of 3 years 10 months and 2 weeks' imprisonment with an order that he be eligible for parole. That sentence was equivalent to one of 4 years' imprisonment after taking into account time spent in custody prior to sentence.
30 The next serious sexual offences were committed on dates unknown between 20 December and 30 December 199 7. At this time the respondent was living in a de facto relationship with the mother of the victim, a girl aged 9 years. The respondent, the child, her mother and another younger child were living together at a house in Bunbury. On an evening between 20 and 30 December 1997 the respondent entered the child's bedroom to kiss her goodnight. He rubbed the child's stomach with his hand and then placed his hand on her thigh, moving up and rubbing her vagina on the outside of her underpants. This lasted for approximately 15 seconds. On another evening during the same period the respondent and the victim were lying on the lounge room floor when he began rubbing her stomach with his hand. He then rubbed her leg moving his hand back up her body and into her underpants. He rubbed her vagina with his hand. This again lasted approximately 15 seconds before he removed his hand. The respondent presented himself to police to confess the offences, which at that stage had not been reported. However, this occurred in a context where the respondent was aware of another complaint in respect of the younger child, which he denied. He was charged with two offences of indecently dealing with a child under the age of 16 years who he knew to be a de facto child contrary to s 329(4) of the Criminal Code. He pleaded guilty to those charges and on 14 August 1998 was sentenced to 18 months' imprisonment on each charge, those sentences to be cumulative, resulting in a total effective sentence of 3 years' imprisonment. An order was made that the respondent would be eligible for parole and the sentence was backdated to commence on 18 June 1998.
31 The next serious sexual offence was committed on 4 March 2011. At this time the respondent was 41 years old. The victim was a 21-year-old female who the respondent had known for some years, though they had never been in a sexual relationship. On the evening of the offence an arrangement was made for the respondent to pick up the victim in his car and go with her to a party. At the party they socialised with friends and consumed alcohol. At around 9.00 pm the respondent drove the victim to a service station in order to buy some cool drink. Whilst at the service station he falsely gave the impression that he had received a telephone call from his brother to the effect that his brother was bogged in the Gnangara pine plantation and required assistance. The victim said that she did not want to go to the pine plantation and asked to be dropped off at home. The respondent said that they would not be long and then drove to the pine plantation where they became bogged themselves. He got out and placed a blanket on the ground at the rear of the vehicle. He requested the victim to join him and when she refused he grabbed her by the shoulders and forced her to the rear of the vehicle and onto the blanket. He forced her to lie down on her back and then pulled her pants and underwear down to her ankles. He penetrated the victim's vagina with his penis whilst she struggled and told him to stop. When he had finished the respondent pulled up his jeans and continued to dig out the vehicle. The victim was in shock and, having nowhere to go, got back into the car. The respondent then drove the victim back to the party. During the ride home he apologised for what he had done and told the victim not to tell anyone. He was arrested on 12 July 2011 and made partial admissions when interviewed. He was charged with one count of sexual penetration without consent contrary to s 325 of the Criminal Code (WA). He pleaded guilty to that offence and on 22 May 2012 he was sentenced to 46 months' imprisonment for that offence and a further 2 months for a breach of bail offence, making a total effective sentence of 4 years' imprisonment. An order was made that the respondent be eligible for parole and the sentence was backdated to 8 November 2011 to take into account time in custody.
32 The respondent has committed a number of other non-sexual offences. As mentioned earlier, he also committed an offence of making a threat to kill contrary to s 338(a) of the Criminal Code on 3 November 1996. That offence was committed against the woman the respondent was then in a de facto relationship with and who was the mother of the victim of the sexual offences committed in 1997. The respondent and his then partner were going through a relationship breakdown and agreed to meet in a park to discuss their problems. In the course of the discussion the respondent became angry and said that if his partner left him he would trash her house and that if he saw her on the road he would run her over or knife her. The woman was terrified by these threats. The respondent was charged with the offence and pleaded guilty. He was sentenced on 31 January 1997 to 15 months' imprisonment with eligibility for parole. The sentence was backdated to commence on 6 November 1996 to take into account time in custody. The sentencing judge noted that the respondent had a very significant substance abuse problem and psychiatric issues.
33 In 2008 the respondent committed offences of aggravated burglary and arson. At this time he was residing at Graylands Hospital as a patient. He had an argument with his former partner and believed that she was allowing people to stay at her house who he did not like. He went to the house one night when no-one was at home, broke in and removed a number of electrical items which he then smashed with a sledge hammer. He also removed two rugs and some curtains, placed them on the ground in the backyard and set them alight. He was apprehended at the scene and later made full admissions. The respondent pleaded guilty and was sentenced on 17 March 2009 to 18 months' imprisonment on each count concurrent. The sentencing judge noted that the respondent had very little insight into his mental health issues and had not been compliant with his medication.
34 The respondent has committed some other less serious offences, including traffic offences and minor drug offences. He was also convicted on 28 December 2011 of failing to comply with his reporting obligations under the Community Protection (Offender Reporting) Act 2004 (WA). This latter offence was committed when the respondent failed to attend a meeting after being served with a notice of reporting obligations.
35 It is relevant to take into account the periods that the respondent has been in custody. Disregarding short periods served for fine defaults, the respondent was in prison for the first serious sexual offence between 4 September 1991 and 11 September 1992, when he was released on a work release order. He was then in prison between 6 November 1996 and 6 September 1997 serving the sentence imposed for the threat to kill offence. He returned to prison on 18 June 1998 and between that date and 17 June 2000 he was serving the sentence for the two offences of indecent dealing. He did not return to prison serving a sentence for the aggravated burglary and arson offences, which was completed on 16 September 2010. Since 8 November 2011 he has been in custody serving the sentence for the most recent offence of sexual penetration without consent, which will be completed on 7 November 2015.
Efforts to address offending behaviour - s 7(3)(e)
36 It is necessary to consider whether the respondent has made any efforts to address the cause or causes of his offending behaviour, including participation in any rehabilitation programmes: s 7(3)(e).
37 In 1992 to 1993 the respondent participated in a community-based sexual offender treatment programme whilst on parole for his first serious sexual offence. There is no completion report in respect of this programme. However, an assessment conducted in 1998 by the Sex Offender Treatment Unit noted that treatment gains in this programme were minimal (exhibit A1, page 299). That assessment also stated that the respondent had reverted to a stance of denial in which he considered the victim of the first offence to have been a consensual partner. He expressed the view that facilitators of the programme had 'proved his innocence' by completion of the programme. The 1998 assessment also states that whilst the respondent appeared on the surface to be attempting to make changes in the earlier programme his degree of commitment was questionable. On completion of the programme he was considered to continue to present a high risk of reoffending in a sexual manner.
38 A further treatment assessment report dated 23 October 1998 (exhibit A1, page 301 - 302) was prepared whilst the respondent was in custody serving the sentence for the second and third serious sexual offences. That report states that the respondent justified and minimised his actions in respect of the second and third sexual offences. He claimed that he was hallucinating because he had taken drugs and believed that the child victim was a woman he had been talking to earlier in the evening. He stated that he then realised who the girl was and stopped the behaviour. He also minimised his actions by saying that the victim's compliance was forthright and that the child had frequently attempted to touch him. He blamed drugs, alcohol and a 'lack of understanding about sexual matters' for his offending behaviour. Whilst not motivated for treatment, it was recommended that the respondent participate in an intensive sex offender treatment programme. However that did not occur before the respondent was released on 17 June 2000.
39 During his current term of imprisonment the respondent has completed three programmes. Between 27 September 2012 and 27 November 2012 he took part in the 'Think First' Cognitive Skills Programme. The particular programme undertaken was specifically targeted at sex offenders. The respondent was said to be a very active participant who enthusiastically engaged in all aspects of the programme. He occasionally exhibited rigid thinking, particularly towards authority. There were also a tendency to display a disproportionate emotional response when aroused. This caused him to behave impulsively. According to the completion report, by his own admission his emotional management was an area which he still found challenging. An assessment of his social problem-solving skills indicated that he had made no significant gains.
40 In February 2013 the respondent commenced a Pathways programme. This is a 50 session programme aimed at assisting participants to understand their drug use and offending behaviour and to develop a relapse and recidivism prevention plan. The respondent withdrew from the programme because he said he had personal issues which were impacting on his ability to participate. However he later re-enrolled in another identical programme which commenced on 24 March 2014 and attended 48 of the 50 sessions. The completion report (exhibit A1, page 323 - 329) states that the respondent presented as an individual with a strong desire to make positive changes in his life. For the most part he engaged with the programme in a positive and moderate manner. He made a number of gains and demonstrated a number of strengths, including empathy, self-reflection and insight into his drug problem. However he occasionally presented with a distorted sense of reality and eccentric thought patterns. He tended to include information in his oral statements that were seemingly designed to impress, shock or imply dominance over his peers. The facilitators of the programme considered that the respondent had a need for psychological assistance to assist his self-development and external regulation.
41 The respondent has very recently completed an intensive sex offender treatment programme. At the hearing of this application I was informed that no completion report in respect of that programme was available, nor would such a report be available until sometime in November. The only information as to his participation comes from his self-report to Dr Cooney. The respondent said that he had gained insight into the reasons underlying his past decisions as well as understanding the link between his thought patterns, feeling and behaviour. He says that he has developed a comprehensive list of triggers and risk factors and incorporated these into a relapse prevention plan. He claims to be aware of the challenges he is likely to face upon release.
Psychiatric reports and the extent to which the respondent cooperated with psychiatric examinations - s 7(3)(a)
42 The court ordered the respondent to undergo examination by two psychiatrists, Dr Mark Hall and Dr Gosia Wojnarowska. Both psychiatrists met with him for the purpose of preparing reports. He fully cooperated with the psychiatric examinations. The reports were tendered and both psychiatrists gave oral evidence at the hearing. Before turning to that evidence it is necessary to set out a summary of the respondent's mental health history.
43 The respondent has previously been diagnosed with drug induced psychosis, anti-social personality disorder and schizoaffective disorder. He has had numerous admissions to mental health facilities. The discharge summaries from Graylands Hospital indicate poor compliance with his medication regime. The respondent has also acknowledged that he has declined to be placed on medication in prison because of a concern regarding long term side effects.
44 In March 1998 the respondent was admitted to a psychiatric hospital as an involuntary patient after being seen by a psychiatric emergency team. The respondent's father had contacted the psychiatric emergency team on a number of occasions prior to this admission. At this time the respondent was living alone in a caravan park. He had made threats to his family and strange statements of a paranoid quality, believing that people were after him and watching him. He presented as aroused, anxious and verbally aggressive with threats of violence and grandiose delusions. At that time, however, the treating psychiatrist's view was that his presentation was not consistent with the presence of a major mental illness, but of a personality disorder. This was despite assessments by three other psychiatrists during that admission who all diagnosed the respondent as suffering from a psychotic disorder.
45 The respondent's second admission to a psychiatric hospital was in 1998 to the Frankland Centre after he was charged with the two counts of indecent dealing. He was placed under observation for a week and the treating team came to the conclusion that there was no evidence that he was suffering from a mental illness as defined under the Mental Health Act 1962 (WA). There was evidence of paranoid and anti-social personality traits and 'the risk of reoffending without appropriate psychological support' was highlighted.
46 In subsequent years the respondent's mental health followed a pattern of non-compliance with treatment coupled with ongoing substance use. This resulted in further admissions to Graylands Hospital. A diagnosis was eventually made of schizoaffective disorder. When unwell the respondent would present with manic relapses and paranoid delusions. The medical records indicate that although he had persistent delusions and continued to lack insight even when taking medication, his overall mental state improved considerably when treated.
47 In late 2008 the respondent was again admitted to Graylands Hospital following an altercation with his then partner. The relationship broke down and it was during this admission that the respondent went to his partner's house and committed the offences of burglary and arson. Although his mental state improved with treatment he was discharged without accommodation and consequently represented to hospital a short time later. He then remained in hospital for another month until he was sentenced for the burglary and arson offences. Whilst in prison for those offences he refused to take any further psychotic medication and it would seem that the medical officer who assessed him in prison did not have access to the hospital records. He was not deemed to be at sufficient risk to himself or others to be transferred to the Frankland Centre for compulsory treatment. His mental state did not change to any noticeable extent whilst in prison and psychiatric follow-up did not occur when he was transferred to Acacia Prison. As a result, when released on 16 September 2010, he was not referred to any community psychiatric service, nor did he seek one out. He did not come to the attention of any mental health professional again until he returned to Hakea Prison in 2011.
48 Following his return to prison on 8 November 2011 the respondent refused to commence taking antipsychotic medication but did agree to periodical reviews of his mental state. However, as had occurred previously, his mental state was never viewed as quite reaching a threshold that would justify admitting him to the Frankland Centre for involuntary treatment. This position continued until he was interviewed by Dr Hall and Dr Wojnarowska for the purposes of this application. During those interviews it became apparent that he continued to hold delusional thoughts and had little insight into his own mental health. However after lengthy discussion he did indicate a willingness to recommence taking antipsychotic medication.
49 A review by a visiting prison psychiatrist resulted in the respondent commencing both oral and depot antipsychotic medication on 19 October 2015. The effectiveness of this medication has yet to be assessed. However, the respondent's consent to treatment is likely to have been influenced by his belief that it will assist in his release from prison. It is possible that he could withdraw his consent if not referred for involuntary treatment of his mental illness at the Frankland Centre.
Dr Gosia Wojnarowska
50 Dr Wojnarowska reported (exhibit 1, page 363) that the respondent gave an account of the sexual offending that differed in some respects from the admitted facts. She said that his speech revealed cognitive distortions regarding his offences, as well as grandiose delusions about his past achievements and his intellectual abilities. He reported a long history of a high sex drive, saying that he had started to masturbate at the age of 7, was exposed to pornography as a young person and had always had an interest in it. He said that he had had multiple sexual partners and always engaged emotionally during the sexual act. He perceived himself as sexually desirable. He denied having any deviant interest in rough or violent sex or in children.
51 Dr Wojnarowska said that the extent of the respondent's delusional thinking was not immediately apparent. He had some ability to moderate his responses to meet what he understood to be the expectations of the person who was questioning him. However, as the questioning progressed delusional beliefs became apparent.
52 In Dr Wojnarowska's view the respondent presents with a long history of fluctuating psychotic illness. Periods of functional decline and aggression, have alienated him from his family of origin. His illness has had a variable course with frequent relapses due to illicit substance use and non-compliance with medication. Differences of opinion regarding his diagnosis have also adversely affected his engagement with mental health services. His illness is characterised by the presence of delusions, which have persisted in a drug free environment such as prison.
53 Dr Wojnarowska concluded that the respondent fulfilled the criteria for paranoid schizophrenia. She said this was similar to a diagnosis of schizoaffective disorder, but differed in regard to the trajectory of the illness. He also presents with a history of a deviant sexual interest in violence which is independent of his psychotic disorder. The circumstances of the offending did not suggest that there was a direct causal relationship between the paranoid schizophrenia and the incidence of sexual violence. On the other hand there is historical evidence of a pre-occupation with violent fantasies and of acting on those fantasies. Dr Wojnarowska concluded that he therefore also fulfilled a diagnosis of a paraphilic disorder. In addition he fulfils the criteria of anti-social personality disorder because anti-social behaviours have been present at times when there was no evidence of acute psychotic symptoms. She also referred to substance use disorder as evidenced by a pattern of cannabis, alcohol and amphetamine use resulting in exacerbation of psychosis and contributing to his offending behaviour.
54 In regard to assessing the risk of reoffending, Dr Wojnarowska utilised actuarial instruments and structured professional judgment tools. The Static 99R test is an actuarial tool designed to assess the long term potential for sexual recidivism amongst adult male sex offenders. The Hare Psychopathy Checklist - Revised (PCL-R) assesses the extent to which an individual's personality structure conforms to the clinical construct of psychopathy. The PCL-R score has come to be recognised as a useful indicator of likely future recidivism for general, violent and, to a lesser degree, sexual offending. The score obtained from this test can be an important component of other risk assessment tools including structured clinical guides. The Risk for Sexual Violence Protocol (RSVP) is such a guide and requires consideration of a comprehensive range of risk factors for sexual offending with emphasis given to manageability of the risk of future sexual violence.
55 Dr Wojnarowska said that the respondent's score on the STATIC 99R test placed him in the high risk category for reoffending in a sexually violent manner. She considered the PCL-R test in the context of the RSVP tool. In her opinion the respondent fulfils the criteria for a prototypical psychopath because he reaches the threshold for this disorder. Psychopathy is associated with diverse sexual violence, targeting unknown victims, threating with weapons, causing physical harm to victims and opportunism. She also took into account other factors in respect of the RSVP, including the chronicity of sexual violence, the diversity of that violence, the escalation in offending, physical coercion, attitudes that condone or support sexual violence, problems with self-awareness, problems with stress and coping, problems as a result of childhood abuse, sexual deviance, major mental illness, substance abuse, violent or suicidal ideations, problems with intimate relationships, problems with non-intimate relationships, problems with employment, non-sexual criminality, problems with planning and problems with treatment and supervision. Some of the more significant findings are that the respondent's victims have been of varying ages and that his 1990 and 2008 offending involved planning and premeditation. The 1997 and 2008 offences involved intoxication with illicit substances or alcohol. He does not appear to have intellectual insight into the nature, motivations and consequences of his sexual behaviour. His responses to past treatment have resulted in limited gains. He has maintained a high degree of minimisation and denial in relation to his offending. This risk factor is important in treatment and in managing risk because it highlights the respondent's reluctance to assume personal responsibility for his offending.
56 The respondent disclosed fantasies regarding the victims that he had attacked. This did not sit comfortably with his denial of any deviant sexual interest. A significant risk factor is the respondent's major mental illness that has been well documented over a number of years. There is a possibility that when the respondent is unwell his grandiosity and the unrealistic expectations of others, as well as misinterpretations of his environment, can contribute to his sexual offending. It may also have acted as an impediment to successful treatment in programmes in the past.
57 Dr Wojnarowska concluded that the respondent is at high risk of reoffending sexually if not subject to either a detention order or supervision order. In the event of reoffending the offence is likely to be similar to his last offence and involve a young adult female about whom he would have sexual fantasies that would progress to violent fantasies. His mental state and use of alcohol or drugs could exacerbate the risk.
58 Dr Wojnarowska said that the best case scenario was that the respondent would live in supported accommodation, would repair his relationship with his family, engage in meaningful employment, be compliant with follow-up from mental health services, that his mental state remains stable and his substance abuse under control, that he forms a relationship with a woman who does not abuse substances and who does not herself have major personality vulnerabilities and that he is engaged in ongoing substance counselling and random urine drug screens. On this scenario the respondent could be manageable in the community.
59 However there are a number of practical impediments to the achievement of that scenario. Prior to his release the respondent's mental state needs to be stabilised and assessed and his sexual fantasies and libido also need to be reduced. Dr Wojnarowska was of the view that he should be treated with antipsychotic medications, preferably in an injectable form to ensure compliance. Treatment with an anti-libidinal medication should also be seriously considered.
60 Dr Wojnarowska agreed with Dr Hall that the respondent's mental state justified a referral as an involuntary patient to the Frankland Centre. This would enable treatment with antipsychotic medication as an involuntary patient. The antipsychotic medication may also be effective in reducing libido but, if it was not, anti-depressants could then be trialled. However anti-depressant medication needed to be tested in a controlled environment as there was a potential for an adverse reaction for a person with the respondent's mental illness. If anti-depressants were also ineffective the next line of defence was the use of an anti-libidinal treatment, though this could only be utilised with the consent of the respondent. Dr Wojnarowska considered that the period required to assess and stabilise the respondent's mental condition was approximately eight weeks, though this would depend upon the availability of a bed at the Frankland Centre.
Dr Mark Hall
61 Dr Hall reported (exhibit A1, page 385) that the respondent has a longstanding diagnosis of schizoaffective disorder. However a number of psychiatrists have assessed him and come to differing opinions regarding the diagnosis. This has contributed to inconsistency in his treatment.
62 Dr Hall said that the respondent gave a history of high sex drive and activity. He described an active sexual fantasy life and had a marked tendency to objectify women. The respondent referred to having fantasies of a sexually violent nature which he referred to as 'rape fantasies'. He said he had had such fantasies since he was very young and that the fantasies could become 'obsessive' if he did not keep them in check. He described the content of the fantasy as 'recruiting' a victim and then planning when, where and how he would rape her. He said he would masturbate to these fantasies. He denied that he would ever attempt to make such a fantasy a reality because he said that the fantasy was better than reality. This denial was inconsistent with the fact that on previous occasions he had admitted to having fantasies regarding some of his past victims before the offences occurred. He said that he continued to have a high sex drive and currently masturbated daily.
63 As noted earlier, Dr Hall had a lengthy discussion with the respondent regarding his psychiatric history. Whilst the respondent denied that he needed any psychiatric treatment he eventually said that he was prepared to recommence taking antipsychotic medication. His lack of acceptance of the need for treatment was a reflection of his lack of insight. Whilst aware that some of his beliefs are considered odd or unhealthy by others he does not share that view. However, he was able for some time to moderate his presentation. As the interview progressed his ability to do so lapsed and his delusional beliefs emerged. Dr Hall said that the respondent's ability to present at a superficial level as normal served to conceal the continuing existence of his underlying mental health issues.
64 Dr Hall diagnosed the respondent has having a schizoaffective disorder of a manic type which secondary diagnoses of anti-social personality disorder, cannabis dependency, alcohol and methamphetamine abuse and paraphilia of an unspecified form. In Dr Hall's view, appropriate treatment of the schizoaffective disorder requires referral as an involuntary patient to the Frankland Centre. His response to antipsychotic medication could be monitored in that environment. That medication may also reduce the respondent's libido. If it did not an anti-depressant could be trialled in that controlled environment. The anti-depressant medication that would normally be considered for paraphilia would be a selective serotonin re-uptake inhibitor (SSRI). However treatment with an SSRI is relatively contra-indicated for a person with schizoaffective disorder. Any adverse consequences would be better monitored in a psychiatric hospital than in prison. If the antipsychotic and SSRI medications failed to reduce the symptoms of hyper-sexuality and paraphilia anti-libidinal treatments could then be tried.
65 Dr Hall also utilised the Static 99R and PCL-R tests and the RSVP tool in assessing the respondent's risk of reoffending. The respondent's Static 99R score placed him in the moderate to high risk category. The recidivism rate for sexual offenders with the same score would be expected to be approximately two to three times that of a typical sex offender. Offenders with this score have been shown as a group to reoffend within five years at a rate of 25% and within ten years at a rate of around 35%.
66 The respondent's score on the PCL-R test was in the moderate to high range, thereby indicating that he has many of the features of psychopathy. His scoring profile on this test was consistent with a diagnosis of anti-social personality disorder. A PCL-R score should not be considered to mark a clear dividing line that distinguishes psychopaths from non-psychopaths. Rather any PCL-R score needs to relate to contextual factors. In the respondent's case his moderate to high score reflected elevations across all facets of the instrument indicating that his mental illness is not the sole contributor and that attitudes that support or condone offending might impact on his responsiveness to interventions.
67 As regards the RSVP tool, Dr Hall reported that the respondent possesses a number of risk factors for future sexual offending. This included that he had been persistent in his offending over time and had committed offences against both adult females and a female child. He had minimised or denied sexual violence and this was likely to have limited the gains he was able to make in treatment programmes. The risk factor of sexual deviance was present, given his paraphilic disorder. The psychopathic personality disorder was considered to be an equivocal factor because elevations across all facets of the PCL-R instrument indicated that mental illness was not the sole contributor to the observed behaviour and attitudes. However, the schizoaffective disorder was likely to impair judgment and potentially increase libido during times of a manic relapse. This could be compounded by alcohol and drug use.
68 Dr Hall concluded that in his opinion the respondent is at high risk of committing a serious sexual offence if not subject to a continuing detention or a supervision order. The key factors contributing to the level of risk are persistence in sexual offending over time despite having participated in programmes, hyper-sexual drive, sexual deviance, anti-social personality disorder with psychopathic traits including lack of empathy, major mental illness, namely schizoaffective disorder, about which he has poor insight resulting in a history of refusing treatment, problems with substance abuse and a lack of support in the community.
69 If the respondent reoffended the offence was likely to be one of sexual penetration or attempted sexual penetration of a female acquaintance. The likely motivation would be anger, revenge or the realisation of a rape fantasy consistent with is paraphilia. There would likely be acute distress and fear caused to the victim, with long term psychological issues. If the respondent remains untreated he is likely to reoffend at some time in the future however there was no pattern that would indicate whether this would occur within weeks or months of release.
70 Dr Hall concluded that the respondent requires antipsychotic as well as anti-libidinal treatment. Management of his psychosis and a reduction in his libido may be achievable through the prescription of antipsychotic medication alone. SSRI medication would normally be first line anti-libidinal treatment but it is relatively contra-indicated in the respondent's case due to its potential to exacerbate mania and should only be trialled in an in-patient setting where his mental state can be closely monitored and carefully managed. The respondent may ultimately require hormonal anti-libidinal treatment such as anti-androgen medications for his risk to be manageable in the community. Dr Hall considered that it would be preferable to know prior to any release into the community whether this would be the case. Furthermore, given that the respondent's untreated mental illness is a factor in both the assessment and management of his risk and given that he lacks insight into his treatment needs, the management approach described would best be initiated in a forensic mental health in-patient facility.
Other assessments - s 7(3)(b)
71 Dr Angela Cooney is a Senior Forensic Psychologist with the Specialist Psychological Service of the Department of Corrective Services. She interviewed the respondent and prepared a management plan to assist with the identification of relevant supervision, management and intervention strategies should the respondent be made subject to an order under the Act.
72 Dr Cooney identified unmet treatment needs of the respondent that were specific to his sexual offending. She recommended that if he was detained in custody individual counselling with a psychologist should occur. This counselling should include the development of skills for developing and maintaining healthy intimate relationships, methods for managing his high sex drive and sexual preoccupation and developing ways to manage feelings of loneliness or rejection.
73 If the respondent was to be released into the community Dr Cooney recommended that he be subject to regular multi-disciplinary discussions in the form of risk management meetings with his Community Corrections Officer. Stable accommodation would be necessary in order to successfully integrate into the community. The respondent was likely to require practical assistance in regards to developing a budget and paying his bills as well as ensuring his health issues are monitored and treated. Whilst the respondent has completed the Pathways programme, he would also need ongoing substance use counselling to counter the additional temptation and stressors which he would experience in the community. He would also require assistance to redevelop an appropriate support network. He would require ongoing management of his mental health issues, including compliance with a medication regime. Dr Cooney also recommended psychological counselling in the community.
The propensity to commit serious sexual offences in the future - s 7(3)(c)
74 The word 'propensity' is taken to have its ordinary meaning in the context of the criminal law: Director of Public Prosecutions (WA) v GTR. At [178] of GTR Murray AJA stated that:
[propensity] means that the offender has an inclination or tendency, a disposition to commit serious sexual offences generally, in a particular way, or upon a particular type of victim. The word refers to some identifiable characteristic of the offender, something in his makeup or personality which may or may not be of the quality of a diagnosable mental illness or personality disorder.
75 The respondent has committed four serious sexual offences over a 21 year period between 1990 and 2011. The first of those offences occurred when the respondent was aged 19. There are no other offences on the respondent's criminal record that indicate an tendency to sexual offending. However the offences of threat to kill, aggravated burglary and arson do indicate a tendency to violence and difficulty in managing his emotions and mental illness. It is apparent, however, that the respondent has spent long periods of time without committing any sexual offences. On the other hand his most recent offence was in many respects the most serious. It involved a victim about whom the respondent admitted to having had sexual fantasies. The offence involved some obvious planning and the use of deceit in order to lure the victim to a remote location. When these facts are viewed in the context of the respondent's admitted rape fantasies it can be inferred that he does have a tendency to commit sexual offences of a serious and violent nature, though it is not one that manifests itself in frequent offending.
Whether or not there is any pattern of offending behaviour - s 7(3)(d)
76 There are a number of similarities between the first and last offences. They both involved a young adult female with whom the respondent was already acquainted. Both offences involved a degree of deceit and force. Both psychiatrists predict that if the respondent reoffends any offence is like to follow this pattern.
77 The second and third offences of indecent dealing do not follow the same pattern, insofar as they involved a child and there was no suggestion of physical force. These differences must be a matter of some concern because they show that the respondent's offending has some diversity and will not, therefore, necessarily be predictable in the future.
The risk that a serious sexual offence will be committed if a continuing detention order or supervision order is not made - s 7(3)(h)
78 The psychiatric evidence is that the respondent continues to be at high risk of committing further serious sexual offences. This assessment of risk takes into account his unmet treatment needs and his deviant sexual interest in violent non-consensual sex. Whilst he has undertaken a number of treatment programmes, their effectiveness has been questionable. He has very recently completed an ISOTP programme and his self-report is that this has been of considerable assistance to him. However, Dr Hall said that even a favourable completion report for this programme would be very unlikely to affect his views as to the nature and manageability of the risk of reoffending. This is because treatment of the respondent's mental illness has only recently commenced and medication to address his sexual deviance and libido has not yet been assessed.
79 The respondent has recently commenced taking both oral and depot antipsychotic medication. There is some possibility that this will both improve his mental health and reduce his libido, however it is too early to make an assessment in that regard. There is a clear and sensible plan for managing the respondent. It includes referring him as an involuntary patient to the Frankland Centre, continuing the antipsychotic medication, trialling an anti-depressant if necessary and, if both of those medications fail to reduce libido, trialling an anti-androgen. This process has been estimated to take between eight and 12 weeks. Following from that the respondent could then receive individual psychological counselling to address his unmet needs. Until this process is well advanced, if not completed, it is impossible to determine how effective it will be in reducing the risk of reoffending. At this point in time the risk is a high one, albeit that there is some prospect that that will change in the following months.
The need to protect members of the community from that risk - s 7(3)(i)
80 As I have noted, the psychiatrists both predict that in the event that the respondent reoffended the offence would involve a violent sexual assault upon an adult female acquaintance. It can be assumed that any offence of this nature would be likely to cause very considerable fear and long term psychological harm. The possibility of physical harm can also not be discounted. There is clearly a need to protect members of the community from the risk of an offence of this type.
Any other relevant matter - s 7(3)(j) - Community supervision assessment
81 Ms Julie Dabala, a Senior Community Corrections Officer with the Public Protection Unit of the Department of Corrective Services provided a community supervision assessment report and gave oral evidence at the hearing. The matters addressed in the report included whether the respondent has a community support network, accommodation and employment prospects.
82 The respondent advised Ms Dabala that he was unaware of where his parents and younger brother currently reside and that he has been estranged from them for the last 10 years. He initially claimed not to know why his parents no longer involved him in their lives but he later conceded that this was probably due to him threatening his family in the past. Departmental records from as far back as 1998 indicate that the respondent's relationship with his parents was strained and that whilst they were willing to support him at that time they were finding it difficult to maintain that support when confronted by ongoing disruption and upheaval to their lives. Ms Dabala attempted to locate the respondent's parents without success. The respondent also revealed that whilst he had a large extended family he had not had contact with any of them since the age of 15.
83 The respondent also told Ms Dabala that he had been involved with an independent church and had been undertaking a bible course by correspondence. However he has had no prison visits from the church he nominated. He did have five prison visits between January and July 2014 from a member of a different church, but those visits appear to have discontinued at his instigation. He has had no social visits during his current term of imprisonment.
84 The respondent advised that he has no contact with his previous de facto partners. He also currently has no contact with any of his six biological children. Ms Dabala confirmed that the five youngest of those children are in State care and that they had been removed due to the respondent's drug use, neglect and his mental health issues. The Department of Child Protection and Family Support have advised that there will be no reunification between the respondent and his children until the age of 18 years unless they express a desire for contact with their father. They may consider supervised contact visits should any of the children express such a desire, but at this time only one had done so.
85 Ms Dabala also made enquiries regarding the availability of accommodation in the community for the respondent. He was unable to identify a place of residence should he be released. He has applied for accommodation with the Salvation Army, Department of Housing, Outcare and Uniting Care West, without success. Uniting Care West have advised that should the respondent be declared a dangerous sexual offender it would be their intention to accept him into their supported accommodation programme once a referral was completed by DCS. Ms Dabala initiated such a referral on 14 October 2015. However at this point there is no available accommodation under the programme for the respondent. Whilst that may change in the future there is a long waiting list for the very small amount of accommodation available.
86 The respondent has relatively limited work experience. He informed Ms Dabala that he has held employment in the hospitality industry as a barman, has undertaken roof restoration work, metal work, woodwork and landscaping. None of this employment had been long term. He said that he enjoys working outdoors but would like to obtain a degree in psychology and human behaviour. At present he has no confirmed employment and if released would be dependent on Centrelink benefits.
87 Ms Dabala noted that it was apparent in her dealings with the respondent that he holds a conspiracy theory that the government, police and government workers are programmed to 'set him up'. As a consequence she suggested that there could be difficulty in managing him in the community until he has commenced mental health treatment and has stabilised.
Conclusion - Serious danger to the community
88 The respondent is a high risk of committing further serious sexual offences if he is not subject to a continuing detention order or a supervision order. I have come to this conclusion based upon his past offending history and the evidence of Dr Wojnarowska and Dr Hall, which I accept. There are some indications that the risk of reoffending may be capable of being reduced by treatment of the respondent's mental illness and using medications and counselling to address his sexual deviancy and libido. However the effectiveness of those treatments cannot be predicted, nor can it be said with certainty when they will be complete. What is clear is that at present the respondent is at high risk of committing a serious sexual offence of a violent nature.
89 I am satisfied to a high degree of probability that there is an unacceptable risk that the respondent would commit a serious sexual offence if he was not subject to either a continuing detention order or a supervision order. Accordingly, I find that he is a serious danger to the community.
Continuing detention order or supervision order
90 In deciding whether to make a continuing detention order or a supervision order the paramount consideration is the need to ensure adequate protection of the community: s 17(1) and s 17(2).
91 When considering whether a supervision order would adequately protect the community it is necessary to take into account any conditions which can be placed on a supervision order so as to ensure adequate protection of the community, the rehabilitation of the respondent and his care and treatment: s 18(2).
92 Conditions could be imposed that would restrict the respondent's place of residence, his movements and his use of illicit drugs. The use of medication to address his mental illness, reduce sexual libido and minimise his sexually deviant thinking may well be significant in addressing the risk of reoffending. However until that treatment has been put in place and its effectiveness assessed there can be no certainty that the risk will be reduced to an acceptable level.
93 The respondent presently has no social support network, no arranged employment, no arranged further education and no available accommodation. These are all factors which are relevant in assessing whether the risk of reoffending can be managed in the community. Clearly a great deal more work needs to be done in this regard. Some initial steps have been taken, but the present complete lack of accommodation and social supports mean that the respondent is not a realistic candidate for release on a supervision order. In any event, the respondent has significant unmet treatment needs that can only be realistically addressed in a custodial environment.
94 In my view, there are no conditions that would either be effective or adequate to manage the risk that the respondent currently presents, or reduce it to an acceptable level. Having said that, there are options for his treatment whilst in custody that may have the effect of reducing the risk and I have detailed those earlier in these reasons.
Conclusion
95 Pursuant to s 17(1) of the Act I order that Brendon Vaughan Carter be detained in custody for an indefinite term for control, care and treatment.
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