The State of Western Australia v Carter [No 2]
[2016] WASC 374
•8 NOVEMBER 2016
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL
CITATION: THE STATE OF WESTERN AUSTRALIA -v- CARTER [No 2] [2016] WASC 374
CORAM: HALL J
HEARD: 8 NOVEMBER 2016
DELIVERED : 8 NOVEMBER 2016
FILE NO/S: DSO 6 of 2015
BETWEEN: THE STATE OF WESTERN AUSTRALIA
Applicant
AND
BRENDON VAUGHAN CARTER
Respondent
Catchwords:
Criminal law - Dangerous sexual offenders - Annual review - Whether respondent remains a serious danger to the community - Whether detention order should continue or the respondent be released on a supervision order - Need to ensure adequate protection of the community
Legislation:
Dangerous Sexual Offenders Act 2006 (WA), s 33
Result:
Expressly decline to rescind continuing detention order
Category: B
Representation:
Counsel:
Applicant: Ms S Markham
Respondent: Mr D J McKenzie & Mr M G Saupin
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 Carter [2015] WASC 413
HALL J: This is the first annual review of a continuing detention order made under the Dangerous Sexual Offenders Act 2006 (WA) (DSO Act) by me on 6 November 2015: Director of Public Prosecutions (WA) v Carter [2015] WASC 413.
On an annual review the court must determine whether a person who is subject to a continuing detention order remains a serious danger to the community: s 33(1) DSO Act. If the person is no longer a serious danger to the community, the court must rescind the continuing detention order. However, if the court finds that the person remains a serious danger to the community it must either expressly decline to rescind the detention order, or rescind the order and make an order that the person be released into the community on conditions that the court considers appropriate: s 33(2) DSO Act. In making a decision as to whether a person who is a serious danger to the community should continue to be detained or be released on a supervision order the paramount consideration is the need to ensure adequate protection of the community: s 33(3) DSO Act.
On the hearing of this review there was no dispute that Mr Carter remained a serious danger to the community. All of the expert evidence supported that conclusion. The issue was whether Mr Carter could be released into the community on a supervision order with conditions that would adequately protect the community from the risk that he would commit further serious sexual offences. In this regard, counsel for Mr Carter accepted that significant treatment needs had not yet been met. Whilst there was some suggestion during the course of the hearing that some of these needs could be met in the community, it was ultimately accepted that the evidence indicated that further treatment in a custodial environment would be necessary before release into the community was a viable option.
At the conclusion of the hearing I was satisfied on the available evidence that adequate protection of the community could not be ensured by releasing Mr Carter on a supervision order at this time. Accordingly, I expressly declined to rescind the continuing detention order. These are my reasons for coming to that conclusion.
Background
Mr Carter's personal history and his history of offending were detailed in DPP v Carter [25] ‑ [35].
Between 29 May 1990 and 4 March 2011, Mr Carter 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. The first and last offences bore some similarities in that they both involved a young adult female with whom Mr Carter was already acquainted. Both of those offences involved a degree of deceit and force. The second and third offences occurred at the same time and involved indecent dealing with a child. There was no physical force in respect of this victim. The differences between these offences and those that occurred earlier and later in time show that there is some diversity in the offending.
Mr Carter completed a number of programmes prior to the first hearing. These were summarised at [36] ‑ [41] of the earlier judgment. His response to those programmes was mixed. One of the difficulties in engaging in programmes was that Mr Carter has a serious mental illness. He has been previously diagnosed with drug‑induced psychosis, antisocial personality disorder and schizoaffective disorder. He has had numerous admissions to mental health facilities. The discharge summaries from Graylands Hospital show poor compliance with his medication regime.
At the time of the first hearing Mr Carter was assessed by two forensic psychiatrists, Dr Gosia Wojnarowska and Dr Mark Hall. They both concluded that Mr Carter was at high risk of committing a serious sexual offence if not subject to a continuing detention or supervision order. Dr Hall said that the key factors contributing to the level of risk were persistence in sexual offending over time despite having participated in programmes, hypersexual drive, sexual deviance, antisocial 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. At that time both psychiatrists agreed that Mr Carter should be referred as an involuntary patient to the Frankland Centre to enable treatment with antipsychotic medication. This medication may also be effective in reducing libido. The medication should preferably be delivered in an injectable form to ensure compliance.
After the initial hearing I concluded that Mr Carter was a high risk of committing further serious sexual offences if he was not subject to a continuing detention order or a supervision order. There were some indications that the risk of reoffending was capable of being reduced by treatment of the respondent's mental illness and by using medications and counselling to address his sexual deviancy and libido. However, the effectiveness of those treatments could not be predicted, nor could it be said with certainty when they would be complete. I was satisfied to a high degree of probability that there was an unacceptable risk that Mr Carter would commit a serious sexual offence if he was not subject to a detention order or a supervision order and accordingly that he was a serious danger to the community. I concluded that a supervision order was not appropriate because the effectiveness of any conditions could not be assessed until treatment had been put in place. There was no certainty that treatment would reduce the risk to an acceptable level. Furthermore, Mr Carter had no social support network, no arranged employment, no arranged further education and no available accommodation at that time. These were all factors that were relevant in assessing whether the risk of reoffending could be managed in the community. I concluded that a great deal more work needed to be done. Some initial steps had been taken but the complete lack of accommodation and social supports meant that Mr Carter was not a realistic candidate for release on a supervision order at that time. In any event, his unmet treatment needs could only be realistically addressed in a custodial environment.
Evidence on this annual review
At the hearing of this review the State tendered a book of materials dated 1 November 2016. This book included the following:
(1)a Department of Corrective Services Charge History for 1 September 2015 to 18 October 2016;
(2)a Department of Corrective Services Incidents History for 1 September 2015 to 18 October 2016;
(3)a Department of Corrective Services Individual Management Plan;
(4)a Department of Corrective Services Substance Use Test Results for 1 September 2015 to 18 October 2016;
(5)medical records for the period 19 October 2015 to 10 October 2016;
(6)Graylands Hospital Discharge Summary Report dated 5 August 2016;
(7)a Department of Corrective Services Programme Completion Report dated 7 December 2015;
(8)a psychiatric report by Dr Gosia Wojnarowska dated 26 October 2016;
(9)a Treatment Progress Report by Mr David Summerton dated 26 October 2016; and
(10)a Community Supervision Assessment by Ms Jane Henshall, a senior community corrections officer with the Department of Corrective Services dated 31 October 2016.
The applicant also called Dr Wojnarowska, Mr Summerton and Ms Henshall to give oral evidence. In their oral evidence they adopted their reports and provided some additional information.
Mr Carter chose not to give or adduce any evidence.
Programme report
At the time of the last hearing Mr Carter had commenced an intensive sex offender treatment programme (ISOTP). That programme commenced on 9 February 2015 and was completed recently on 26 October 2016. The programme targets high risk and high need male offenders where participants focus intensively on their sex offending behaviour, victim issues, identifying offence pathways and developing detailed self‑management plans to assist them to reduce reoffending. Mr Carter attended 104 of the 107 sessions of the programme and completed all work and other requirements. He missed the final three sessions due to having to be transferred to a metropolitan prison to facilitate his appearance on this review. He did not miss any content as the final three sessions consisted of participants presenting their self‑management plans and the closure session.
The treatment report notes that at the commencement of treatment Mr Carter presented with a number of core beliefs and unhelpful thinking styles associated with entitlement, grandiosity, antisocial thinking, revenge oriented beliefs and distrust generally of others. Some of his beliefs were considered to be delusional and/or paranoid in nature, especially when under periods of stress. He acknowledged that being challenged is difficult for him, although he was observed to be more accepting of constructive feedback as the programme progressed. He also acknowledged difficulties with emotional regulation. He was observed to become frustrated in group sessions, particularly when he was interrupted when talking extensively of conspiracy theories.
Mr Carter did compile a detailed self‑management plan to help him recognise and address the thoughts, feelings and behaviours that contributed to his offending. In this plan he listed many risk factors and warning signs. The programme coordinators suggested that Mr Carter's risk could also be mitigated by ongoing psychological counselling, maintaining mental health treatment, engaging in substance use counselling and by sharing his plan with a community corrections officer with a view to monitoring and continuing with its development.
The programme coordinators concluded that Mr Carter had made minimal treatment gains. He did demonstrate some insight into how his antisocial attitudes and behaviours, including his conspiracy theories, had negatively impacted on his life. He gained some insight into how his behaviour had impacted on his relationship with his family and how he coped with associated grief and loss by using drugs. The coordinators acknowledged that Mr Carter was not medicated for his medical condition throughout most of the programme and this, along with personality factors, may have acted as a barrier to successful treatment gains.
Treatment progress report
Mr Carter commenced individual counselling with a psychologist on 24 November 2015. Sessions were initially fortnightly for one and a half hours. After three months this was changed to weekly sessions of one hour. This shift was undertaken in order to assist with continuity and integration of the issues addressed.
The counsellor identified a number of challenges to Mr Carter's effective involvement in treatment. These included mental health issues and personality factors. The counsellor noted variability of disclosure within and across counselling sessions. Apparent progress was sometimes followed by regression and/or retraction of what had previously been agreed. The counsellor suggested that the reason for this was that the experience of counselling was in many ways difficult for Mr Carter, noting that at one point he described the experience as a form of punishment.
During the initial four months of counselling Mr Carter showed instability of mood. He displayed tangential thinking including a sustained focus on religious concepts, paranoid ideation and elevated mood. At this stage Mr Carter was taking oral medication for his mental illness and the counsellor attributed his instability to non‑compliance with that medication. The need for compliance was impressed on Mr Carter and there was a noted improvement in his behaviour. Notwithstanding this, the counsellor was of the view that Mr Carter had limited insight into his mental health.
Despite the general improvement, there was still some instability in Mr Carter's presentation over the course of counselling and often within a given session. The counsellor described a broadly avoidant style of coping. His mood seemed stable on various occasions but this appeared to be due to him exerting control of himself by way of avoiding disturbing emotions and associated content. He would tend to shift from a position of over‑regulation to under‑regulation followed by attempts to regain control. The counsellor described times when Mr Carter would 'blurt', where he would temporarily address relevant issues more openly, but in so doing leave himself feeling emotionally vulnerable. He would then regret what he had said, prompting him to abruptly change, resulting in a degree of confusion. There was also a tendency for impression management, whereby Mr Carter attempted to pre‑empt what might be asked of him in order to offer the answer that he believed was required. When contradictions were highlighted regarding aspects of his sexual offending behaviour, he took the position that he would simply say what was expected of him.
In the lead up to this annual review, counselling had reached something of an impasse. This was because Mr Carter became preoccupied and anxious with the outcome of the review. Counselling sessions became devoted to this issue. The counsellor told Mr Carter that by placing counselling effectively on hold there was a risk that his unmet treatment needs could not be adequately addressed before the review. She reported that Mr Carter appeared to have some awareness of the implications but appeared helpless to alter it.
In the last six months Mr Carter had identified an association between methamphetamine use and non‑consensual sexual fantasies. The counsellor assessed Mr Carter's high level of sexual preoccupation to be current at that time and she consequently instituted a sexual arousal monitoring diary. The level of preoccupation is important as in this period Mr Carter was taking his antipsychotic medication and he has subsequently reported that this has lowered his libido and sexual thinking. There appears to be significant inconsistency here. The diary exercise was employed in order to assess the content of fantasy and the cognitive processes that led to it. At the time the diary was first introduced Mr Carter reported having sexual fantasies on a daily basis, accompanied by masturbation every three to four nights. He later reported some variability with some indication that his medication regime was having a dampening effect. However, the counsellor also considered that the claimed changes and frequency of fantasy and arousal were potentially linked to impression management.
In Mr Summerton's report he stated that Mr Carter had made limited treatment gains in programmes prior to commencing the current course of counselling. Impediments to gains were mental health and personality factors. There was also mention of a tendency to intellectualise course content. Mr Summerton noted that Mr Carter had commenced treatment for his mental health condition prior to starting on the current course of counselling and that this seemed to offer, for the first time, an opportunity for intervention to occur from a position of relative psychological stability. However, there was evidence to suggest that he continued to lack insight into his mental health and that this has hampered his capacity to meaningfully engage in treatment. The broad picture of counselling was that there was a period of months aimed at settling his mood and forging a viable working relationship and that this was followed by a moderately productive phase of intervention and then a period of impasse seemingly prompted by his anxiety regarding this review.
Mr Summerton said that there had been signs of progress in Mr Carter's counselling, though any gains should be viewed as tentative. Apparent progress has been followed by seeming reversal of gains. This process may have a number of possible explanations. There is evidence of quite transparent impression management. There is also evidence to indicate that Mr Carter has experienced the process of counselling to be quite challenging. Whilst his mental health has been more effectively managed during the period of counselling, it is still considered to have undermined his progress to some degree. The conclusion reached by Mr Summerton is that Mr Carter is assessed as having made some preliminary progress in counselling, but that his insight into his offending and commensurate need for self‑management remains limited. As such, the initially defined treatment targets remain current.
Psychiatric evidence - Dr Gosia Wojnarowska
Dr Wojnarowska interviewed Mr Carter at Acacia Prison on 21 October 2016 for two hours. She noted that Mr Carter provided a similar description of what, according to him, was the factual background to his sexual offending. She noted that he had made some progress in accepting responsibility for his offending. When asked why he thought he had committed the offences, he suggested that it was something to do with his childhood but did not elaborate. Only with prompting did he acknowledge other factors such as drug and alcohol use, loneliness and high sexual drive.
Dr Wojnarowska was of the view that Mr Carter had been able to make appropriate, albeit superficial, comments about his behaviour and what were his motives to engage in sexual offending. However, his reflections were lacking depth and he struggled to recognise what were offence‑related factors. He also had a limited appreciation of his own and his victims' mental state at the time when the offences took place. However, he was considered to have gained some intellectual insight into his behaviour and what changes were expected of him.
When questioned about his progress in prison, Mr Carter told Dr Wojnarowska that he was 75% different and that he was no longer depressed or lonely and was in touch with his feelings. He said that he had learned to think positively about his life. He reported that antipsychotic medication had reduced his libido to 'almost non‑existent'. He also said that he had stopped having rape fantasies 'a long time ago'. Dr Wojnarowska noted that this was not consistent with her knowledge of him.
Dr Wojnarowska stated in her report that Mr Carter has a long‑standing diagnosis of schizoaffective disorder complicated by polysubstance abuse. He was first treated in 1997 whilst on remand in Bunbury Prison. He has had numerous admissions to Graylands Hospital and this was followed up by the Osborne Park Community Mental Health Service. His compliance with medications has been poor. When unwell he could present with a manic relapse and paranoid delusions including grandiose beliefs. Following the last hearing Mr Carter was admitted to the Frankland Centre in July 2016. His medication was then adjusted to a depot injectable antipsychotic and his oral medication (Seroquel) was ceased. His last review by a psychiatrist was in September 2016 and his mental state has been assessed as stable.
Dr Wojnarowska said in her evidence that the antipsychotic presently being administered, Paliperidone at 100 mg, can have the effect of reducing libido but not to the extent that she would expect Mr Carter to have no deviant sexual thinking at all. This suggests that Mr Carter is exaggerating the effect of the medication. Dr Wojnarowska said that she was sceptical of Mr Carter's report that his deviant fantasies had gone. She said that such fantasies are lifelong, chronic and obsessional. Sex is his way of coping and it is unlikely that antipsychotics would completely eradicate his sexual thinking.
Dr Wojnarowska said that Mr Carter's mental illness had much improved since 2015. At that time he had been preoccupied with religious delusions. Those symptoms were no longer present. However, when pressed, there was still evidence of delusional thinking. This was also likely to have been one of the impediments to effective counselling.
Dr Wojnarowska suggested that future treatment should include a trial on a higher dose of antipsychotic medication. Mr Carter's present dose is an average one. She also suggested that a mood stabiliser such as lithium or sodium valproate could be trialled. Whilst Mr Carter's psychopathy is fixed and not amenable to change, he is cognitively intact and is capable of some improvement in insight, and acceptance of his condition. Dr Wojnarowska said that Mr Carter is intellectually capable of learning, if not distracted by his mental illness. He has limited insight into his treatment needs and his offending. Whilst treatment could be delivered in the community, he would benefit from further treatment in a more structured environment.
Dr Wojnarowska conducted a risk assessment using actuarial instruments and structured clinical guides. It is unnecessary to detail the results in this regard as they are largely unchanged. Dr Wojnarowska's conclusion is that Mr Carter's risk of sexual reoffending remains high and is associated with the presence of deviant sexual arousal, antisocial personality, psychopathic traits and alcohol and illicit drug use disorder. His management in the community would be challenging due to a propensity for non‑adherence to orders. Dr Wojnarowska concluded that Mr Carter continues to be at high risk of sexual reoffending if not subject to a continuing detention order or a supervision order.
If Mr Carter were to reoffend he would most likely commit an offence involving sexual penetration. Such offending could be planned, preceded by a period of time during which he would fantasise about the victim, and occur in the context of alcohol or drug intoxication. Offending behaviour is likely to be driven by rape fantasies, anger, general disregard for women, a possible sense of entitlement, a need for power and dominance, and impulsivity facilitated by disinhibition whilst intoxicated. Whilst not likely to inflict life‑threatening injuries, any victims would be likely to suffer from long‑term psychological trauma. He is unlikely to attack a complete stranger and as such the risk is not imminent. But his grooming process would be relatively short. The warning signs would be difficult to predict as he is able to cover up his symptoms for a long time and has limited ability for the development of meaningful therapeutic relationships.
Community supervision assessment
Ms Henshall's report states that a residential unit is available to Mr Carter through Uniting Care West. An analysis of this address was undertaken by the WA Police Sex Offender Management Squad on 28 October 2016. This analysis revealed within a 2 km radius of the proposed residence numerous areas of concern. In particular, illicit drug activity is known to occur in the immediate vicinity and that the unit complex has been the location for the supply of illicit substances. This raises a concern that if placed at this accommodation Mr Carter could readily access drugs which are a known risk factor for his offending.
Mr Carter also has limited supports in the community. He has had no contact with his immediate family in recent times. He has expressed a wish to engage in a church group, however did not nominate any group until October 2016. When the pastor of this group was contacted he said that Mr Carter had not had contact with him for a significant period of time. Any decision to provide support to Mr Carter would need to be approved by the church leadership team and this could not occur until late November 2016. Mr Carter also nominated two individuals, one attached to Uniting Care West and another with the Stepping Out Services voluntary programme. When enquiries were made it was apparent that Mr Carter had not made any arrangements with either of these people to provide the support that he was seeking. At present there is no positive peer or support network available to Mr Carter on release. His efforts to establish such a network appear to have been superficial.
Findings
It is clear on the evidence that Mr Carter remains a serious danger to the community. This was not disputed at the hearing. It is equally clear that the risk of reoffending cannot be adequately managed in the community on a supervision order at this stage.
There has been some progress in the last 12 months in the completion of the ISOTP and in weekly counselling. However, this progress has been minimal and there has been some regression in recent times due to anxiety regarding this review. The most significant improvement in the last 12 months has been in regard to Mr Carter's mental health. His schizoaffective disorder has significantly improved with the shift to a regime of depot injections of antipsychotic medication. However, there are residual symptoms that appear to be acting as an impediment to counselling and further treatment gains. Significant treatment needs remain.
Dr Wojnarowska has suggested that Mr Carter's mental illness could be more aggressively treated. There may also be benefits in introducing a mood stabiliser. These are possibilities that should be investigated in the next 12 months. Further improvements in this regard could assist in making Mr Carter more amenable to treatment and developing a viable release plan. At present his planning in that regard is superficial. He has no support networks and the only presently available accommodation is unsuitable. Given that he is a person who has proven to be non‑compliant with treatment in the past and who has limited insight into his mental illness, he would require significant supervision and support if released into the community.
Conclusion
I am satisfied that Mr Carter remains a serious danger to the community. I am also satisfied that his risk of reoffending cannot, at present, be adequately managed if he is released on a supervision order. He has made minimal progress in the past year and has not yet reached a stage where release is a practical option. I am satisfied that there are no conditions that could be imposed at present that would reduce to an acceptable level the risk that he could reoffend.
For those reasons, at the hearing of this matter on 8 November 2016 I expressly declined to rescind the continuing detention order.
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