The State of Western Australia v Carlton - [2021] WASC 327

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL

CITATION:   THE STATE OF WESTERN AUSTRALIA -v- CARLTON [2021] WASC 327
CORAM:   QUINLAN CJ
HEARD:   24 SEPTEMBER 2021
DELIVERED          :   24 SEPTEMBER 2021
PUBLISHED           :   28 SEPTEMBER 2021
FILE NO/S:   SO 6 of 2021
BETWEEN:   THE STATE OF WESTERN AUSTRALIA
Applicant

AND

ANTHONY JOHN CARLTON
Respondent

Catchwords:

Criminal law – High Risk Serious Offenders Act 2020 (WA) – Preliminary hearing – Whether reasonable grounds for belief that restriction order might be made – Whether interim detention order is appropriate – Turns on own facts

Legislation:

High Risk Serious Offenders Act 2020 (WA)
Sentence Administration Act 2003 (WA)

Result:

Orders pursuant to s 46(2) made
Interim detention order made

Category: B

Representation:

Counsel:

Applicant	:	F M Allen
Respondent	:	A Fedele

Solicitors:

Applicant	:	State Solicitor's Office
Respondent	:	Legal Aid WA

Cases referred to in decision:

The State of Western Australia v PAS [2020] WASC 405
The State of Western Australia v Winder [2021] WASC 65

QUINLAN CJ:

Introduction

On 28 July 2021, the State of Western Australia applied for a restriction order in respect of Anthony John Carlton under the High Risk Serious Offenders Act 2020 (WA) (the Act). Mr Carlton is currently a sentenced prisoner, and will have completed his sentences on 14 October 2021.
The preliminary hearing of the application came before me on 24 September 2021.
On that day, counsel for Mr Carlton, Ms Fedele, conceded that, for the purpose of the preliminary hearing there were reasonable grounds for believing that the Court might find that Mr Carlton is a high risk serious offender within the meaning of that Act (see s 46(1) of the Act).
I accepted that concession and made orders for Mr Carlton to undergo examination by a psychiatrist and a qualified psychologist for the purpose of preparing reports to be used in the hearing of the restriction order application. I listed the restriction order application for hearing on 22 February 2022.
I also ordered that Mr Carlton be detained in custody until the final determination of the application, pursuant to s 46(2)(c)(i) of the Act. That order does not prevent Mr Carlton from applying for an interim supervision order in the meantime, in the event that circumstances change that make it desirable to make such an order.
Having made the orders on the preliminary hearing, I said that I would publish my reasons at a later date.
These are my reasons.

The law

Pursuant to s 46(1) of the Act, the main purpose of the preliminary hearing is to decide whether the Court is satisfied that there are reasonable grounds for believing that the Court might find that Mr Carlton is a high risk serious offender.
A 'high risk serious offender' is a person in relation to whom the Court is satisfied by acceptable and cogent evidence and to a high degree of probability, that it is necessary to make a restriction order in relation to, in order to ensure adequate protection of the community against an unacceptable risk that the person will commit a serious offence.
A 'serious offence' within the meaning of the Act, relevantly, includes aggravated grievous bodily harm and sexual penetration without consent.
While the definition of 'high risk serious offender' sets a relatively high bar for the imposition of a restriction order (in the sense of requiring proof to a high degree of probability), s 46(1) of the Act sets a low threshold for the purposes of a preliminary hearing. I do not have to be satisfied that a restriction order will be made. It is sufficient if there are reasonable grounds for believing that an order might be made. To say that something might occur, is to say that it is possible. Belief is an inclination of mind towards assenting to, rather than rejecting, a proposition. For there to be reasonable grounds for belief requires the existence of facts which are sufficient to induce that state of mind in a reasonable person.[1]
[1] The State of Western Australia v PAS [2020] WASC 405 [20] ‑ [21] (Allanson J); The State of Western Australia v Winder [2021] WASC 65 [16] (Quinlan CJ).

The evidence

The State filed an affidavit of Meagan Elizabeth Hemsley affirmed on 28 July 2021, which contains Mr Carlton's criminal history and several previous reports in relation to him (including a psychological report).
The evidence reveals that Mr Carlton has a history of violent and sexual offending, including sexual offending against a minor. In particular, Mr Carlton has a long history of violent offending against intimate partners or their relatives.
Mr Carlton also has a demonstrated history of not complying with court orders. Relevantly, Mr Carlton has convictions for the following offences: 16 breach of bail or bail condition, five failure to comply with reporting obligations, two breach of a community order, one breach of a violence restraining order, two giving false details to police, four driving without a licence, five escaping from lawful custody and one resisting arrest. Notably, the most recent offence was a breach of bail offence committed in March 2016, only one month before the offending for which he is now serving a sentence of imprisonment.
While the offences referred to in the preceding paragraph were not 'serious offences' within the meaning of the Act, they are relevant to the utility of ordering an interim supervision order, rather than an interim detention order.
The offending that gave rise to the State's application under the Act, and for which Mr Carlton is currently serving terms of imprisonment, includes one count of aggravated grievous bodily harm, one count of an act or omission causing bodily harm, one count of aggravated assault occasioning bodily harm, two counts of aggravated sexual penetration without consent and one count of aggravated unlawful wounding. The circumstances of those offences were as follows.
Each of the offences was committed against the same victim, SM. SM was Mr Carlton's domestic partner, and as a result each of the offences were committed in circumstances of aggravation, in that Mr Carlton and SM were in a domestic or family relationship.
On 8 May 2015, SM came into the bedroom where Mr Carlton was sleeping and hit him with a bottle. Mr Carlton then chased her into the kitchen where he punched her twice to the jaw. SM was taken to hospital and suffered numerous injuries including a fractured mandible that required two lag screws to be inserted into her jaw. The injuries were likely to cause a permanent injury in the form of an altered bite and face deformity.
On 2 April 2016, Mr Carlton yelled at SM outside in the driveway of a house before punching her to the face and body causing her to fall to the ground. When she was on the ground, he kicked her body and stomped on her chest several times. He attempted to pull down her shorts, but she held onto them. He then stomped on her head until she lost consciousness and poured beer over her to try to wake her up. The attack only ceased when police arrived at the scene and Mr Carlton fled.
On 15 April 2016, Mr Carlton and SM got into a fight while at a relative's house. Mr Carlton accused SM of being with other men and followed her into the kitchen where he started punching her until he hurt his hand. He then picked up a broom and hit SM to the body with the broom. SM ran to her bedroom where Mr Carlton forcibly sexually assaulted her by penetrating her vagina and her anus with his fingers. That conduct constituted the two counts of sexual penetration without consent.
Finally, SM took herself into a different bedroom where Mr Carlton hit her over the head with a beer bottle repeatedly until the bottle broke. He then took a drawer from the cupboards and hit her over the head, body and legs with it until it broke.
The total effective sentence for this offending was 5 years and 6 months imprisonment. As I have previously said, Mr Carlton is still serving this term of imprisonment.
The nature of Mr Carlton's offending on this occasion was consistent with earlier offending for which he has been convicted. In that regard, Mr Carlton has previous convictions for violent offences against one other domestic partner, and sexual offences against two other victims, including a brutal sexual assault on a child who was only eight years of age. That victim was the sister of Mr Carlton's then partner.
There are a number of reports annexed to Ms Hemsley's affidavit. Those reports include one psychological report prepared by Ms Maria Krabbe on 19 July 2016. This was prepared as a pre‑sentence report prior to Mr Carlton's most recent sentence. There are no psychiatric reports available.
The material reveals that Mr Carlton is now 41 years old. He is an Aboriginal man who was born in Port Hedland but has lived most of his life in Wyndham. Much, although not all, of Mr Carlton's offending occurred in Wyndham.
Mr Carlton was raised by his aunt and grandmother, because his mother was unable to care for him due to her 'serious alcohol problems' and his father was 'never around'. As a child he was deemed a 'failure to thrive baby' due to heart problems and he self-described as a 'handful' when growing up.
In Ms Krabbe's report of 19 July 2016, she reported that Mr Carlton denied that he had been the direct victim of neglect, violence or abuse, however described having witnessed family violence, alcoholism and broader patterns of violence whilst growing up.
Mr Carlton has four children from two different relationships. Ms Krabbe's report described that Mr Carlton 'expressed little interest or attachment towards his children'. Ms Krabbe also noted that Mr Carlton described that largely his intimate relationships were marred by alcoholism and physical violence. His anger in these relationships is described as being sparked by jealousy or stemming from a desire to control women he is in a relationship with.
Ms Krabbe commented in her report that Mr Carlton 'has not engaged in any pro social activities since he left school in year nine' and that drinking appears to be his 'main coping strategy in life', although he also uses violence as a maladaptive coping strategy. She noted that there are no indications of any mental health disorders although his affect is blunted. The report describes that 'Mr Carlton has had a serious problem with alcohol and cannabis use from a young age.' Indeed, Mr Carlton described to Ms Krabbe that 'he starts the day drinking and spends the rest of the day either sleeping or searching for more alcohol.' An earlier pre‑sentence report, dated 16 April 2010, noted that Mr Carlton 'is able to recognise the link his alcohol consumption [has] with his offending', but that he 'continued to drink heavily'.
Mr Carlton has in the past participated in numerous treatment programs. Mr Carlton successfully completed a Pre‑Release Offender Treatment Programme in 1998, a Kimberley Offender Program in 1999, Cognitive Brief Intervention Programs in 2008 and 2012, and the Indigenous Men Managing Anger and Substance Use program in 2009. It will be apparent that the most recent program was completed almost 10 years ago.
Mr Carlton was assessed, on his most recent entry into prison, as to his treatment needs. A Treatment Assessment Report dated 3 January 2017, said, in relation to Mr Carlton's violent offending:
Mr Carlton's history of violence related offending occurs predominantly within the context of domestic relationships and against authoritian figures. The Pre-Sentence Psychological report (19 July 2016) noted that Mr Carlton's use of alcohol exacerbates his anger and violent tendencies. Mr Carlton admitted to his violent acts but did not demonstrate any empathy or shame. Mr Carlton demonstrated normalised violence within the context of an intimate relationship.
Overall, Mr Carlton presents with high treatment needs in the areas of, Violent Lifestyle, Interpersonal Aggression, Emotional Control and Impulsivity.
In relation to his sexual offending, the Treatment Assessment Report said:
Noted is a Static 99R and Stable 2007 assessment completed in July 2016 which were taken into account for the purposes of this assessment.
In consideration of his risk and needs, Mr Carlton presents as high risk overall. Noted is that his index sexual offences are his third such convictions. The index sexual offending occurred in the context of an intimate relationship where he used sexual violence as a means of punishment.
Mr Carlton presents with cognitive distortions and attitudes regarding control of women and demonstrated hostility towards women. Specifically, he stated he believes that men should dominate and control women and that some women deserved to be raped. Further, he demonstrated a persistent antisocial attitude and sense of entitlement particularly within the context of his relationship. Mr Carlton demonstrated deficits in the areas of self-regulation (impulsivity), coping skills and problem solving, and emotional regulation. He has issues in relationships needs in the area of his relationships including a lack of relationship skills, intimacy deficits and a maladaptive attachment style. Further he demonstrated sexual entitlement, sexual pre-occupation and deviant sexual interests.
In relation the recommendations in this report as to Mr Carlton's treatment needs, a subsequent report dated 23 September 2019:
It is noted on TOMS (10/01/2017) that Mr Carlton refused to transfer to Greenough Prison to complete the NOW Program stating he doesn't like Greenough Regional Prison. Mr Carlton's current recommendation of Indigenous High Intensity Substance Abuse Program should be removed. Mr Carlton is recommended for the Pathways Program. This program will afford Mr Carlton the opportunity to meet his treatment needs related to substance misuse. Mr Carlton's current recommendation of Indigenous High Intensity Substance Abuse Program should be removed as it is no longer available. He is recommended for the Intensive Sex Offending Treatment Program. This program will afford Mr Carlton the opportunity to meet his treatment needs of sex offending, hostility towards women, poor problem solving and impulsivity.
An attempt for Mr Carlton to complete the Pathways Program in 2020 failed. The Non‑Completion Report stated:
Mr Carlton initially participated in 3 sessions with another Pathway program group, which had two female facilitators. Both female facilitators had stated that they were uncomfortable with Mr Carlton and believed that they were potentially being groomed. Given this, the decision was made to switch Mr Carlton to the other Pathways group (which had male facilitators). After attending the second class (of the second group), Mr Carlton (without notice to facilitators) did not return to the program. Due to the limited amount of time in the Pathways Program, Mr Carlton was unable to acknowledge and adequately address his treatment needs.
The Treatment Assessment Report dated 3 January 2017 also addressed Mr Carlton's risk of reoffending using various assessment tools. The report recorded Mr Carlton to be at 'Very High' risk of general offending, 'High' risk of violent reoffending and 'High' risk of sex offending. Ms Krabbe had earlier noted, in her psychological report dated 19 July 2016, that Mr Carlton's risk assessment using the STATIC-99R assessment tool put him in the high risk category for sexual and violent offending and the STABLE-2007 assessment tool put him in the high risk category for sexual offending.
In light of this summary of the evidence, I turn to my assessment.

Assessment

I am satisfied that there are reasonable grounds to believe that a court might find Mr Carlton to be a high risk serious offender.
My reasons are as follows.
Mr Carlton has a significant history of violent and sexual offending. A significant portion of his violent offending is against domestic or intimate partners, although it includes a capacity for violent and, in particular, sexual offending against others. This history could well lead the Court to conclude that Mr Carlton has a propensity to commit serious offences.
Mr Carlton's risk assessments also reveal that his offending can be traced to disturbing and vicious attitudes, particularly in relation to women. Those underlying attitudes must be addressed. During Mr Carlton's most recent term of imprisonment he has failed to complete any recommended treatment programs.
On the basis of Mr Carlton's offending history and his wholly unmet treatment needs, I am satisfied that there are reasonable grounds to believe that a court might find that he is a high risk serious offender.
For these reasons, I made orders for the hearing of the restriction order application and for Mr Carlton to be examined by a psychiatrist and qualified psychologist for the purposes of preparing reports to be used at that hearing.

Interim detention order

In the meantime, the State submitted that I should make an interim detention order pending the determination of the restriction order application, pursuant to s 46(2)(c)(i) of the Act.
Notwithstanding what a serious step it is to detain a person beyond their sentence end date, I was satisfied that, in Mr Carlton's case, the adequate protection of the community requires that he be detained in custody while a thorough assessment can be done in relation to whether he is a high risk serious offender.
My reasons for that conclusion are as follows.
Were Mr Carlton to be released on an interim supervision order under the Act or a post sentence supervision order under the Sentence Administration Act 2003 (WA), the only residence that, on the evidence before me, would be available to him would be with a relative in Wyndham.
The State filed two affidavits in relation to the proposed address: an affidavit of Brooke Elizabeth Mandolene affirmed on 10 September 2021 and an affidavit of Martyn James Clancy‑Lowe sworn on 23 September 2021.
Those affidavits reveal that the relative with whom Mr Carlton proposed to reside, lives at the address in Wyndham with his wife and children. According to that evidence, the relative's partner has taken out two family violence restraining orders in the past 12 months. While those orders were revoked, the making of the orders provides some evidence of dysfunction within the household.
The children residing at the address include the relative's son aged 19 years and two daughters aged 16 and 13 years respectively.
Enquiries made with Mr Carlton's relative suggest that he and his wife were not happy about the prospect that the police would attend at their address to check on Mr Carlton. He also stated that he was not aware of the nature of Mr Carlton's offending (although Mr Carlton denied this).
According to the evidence, the street containing the address proposed by Mr Carlton is responsible for most of the antisocial related incidents in the town, including involving alcohol. Much of Mr Carlton's offending, of course, has occurred in the context of his own community, when he was heavily intoxicated and involved a rapid escalation of violence.
In this context, the evidence reveals a very regrettable lack of government and non‑government support resources in Wyndham. The police station is not staffed 24 hours per day, and generally not at all on a Sunday. Nor is there a Department of Justice Community Corrections Officer (CCO) in Wyndham. The closest CCO is an hour's drive away in Kununurra.
In those circumstances, as I said to Mr Carlton at the time of making the orders, 'it's just too risky for the community' for Mr Carlton to return to that address in Wyndham. I have significant concerns that, if released, even under supervision, Mr Carlton would quickly return to alcohol use and would pose a serious threat to those around him, particularly those people (including children) with whom he would be living. The protection of Mr Carlton's community in Wyndham requires that he not be returned there at this time.

For these reasons, I ordered that Mr Carlton be subject to an interim detention order until the completion of the proceedings.
At the hearing on 24 September 2021, counsel for Mr Carlton advised me that she was exploring other residential options for Mr Carlton and how appropriate management in the community might occur. In the event that circumstances change that make it desirable to make an interim supervision order, it would be open to Mr Carlton to make an application for such an order at the appropriate time.

I certify that the preceding paragraphs comprise the reasons for decision of the Supreme Court of Western Australia.
LH
Research Associate to the Honourable Chief Justice Quinlan
28 SEPTEMBER 2021