The State of Western Australia v Carter [No 3]
[2018] WASC 420
•4 JUNE 2019
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
CITATION: THE STATE OF WESTERN AUSTRALIA -v- CARTER [No 3] [2018] WASC 420
CORAM: CORBOY J
HEARD: 8 & 14 NOVEMBER 2018
DELIVERED : 14 NOVEMBER 2018
PUBLISHED : 4 JUNE 2019
FILE NO/S: DSO 6 of 2015
BETWEEN: THE STATE OF WESTERN AUSTRALIA
Applicant
AND
BRENDON CARTER
Respondent
Catchwords:
Criminal law - Dangerous Sexual Offenders Act 2006 (WA) - Second review of continuing detention order - Continuing detention order not rescinded
Legislation:
Dangerous Sexual Offenders Act 2006 (WA)
Result:
Expressly decline to rescind continuing detention order
Category: B
Representation:
Counsel:
| Applicant | : | Mr B Meertens |
| Respondent | : | Mr D McKenzie |
Solicitors:
| Applicant | : | Director of Public Prosecutions (WA) |
| Respondent | : | David McKenzie Legal Pty Ltd |
Case(s) referred to in decision(s):
Director of Public Prosecutions (WA) v Carter [2015] WASC 413
The State of Western Australia v Carter [No 2] [2016] WASC 374
CORBOY J:
On 6 November 2015, Hall J made a continuing detention order in respect of the respondent under the Dangerous Sexual Offenders Act 2006 (WA) (DSO Act).[1] The first annual review of the order was conducted by Hall J on 8 November 2016 (the First Review). His Honour found the respondent remained a serious danger to the community and the community could not be adequately protected if the respondent was released on a supervision order. Accordingly, his Honour declined to rescind the continuing detention order.[2]
[1] Director of Public Prosecutions (WA) v Carter [2015] WASC 413.
[2] The State of Western Australia v Carter [No 2] [2016] WASC 374.
I conducted the second review of the order. I found that the respondent remained a serious danger to the community. I further found that the community could not be adequately protected if the respondent was released on a supervision order. Accordingly, I declined to rescind the continuing detention order. These are my reasons for making those findings.
Background
The respondent's personal history and his history of offending were detailed in DPP v Carter.[3] In brief summary:
(1)In 1991, the respondent pleaded guilty in this court to a charge of sexual penetration without consent contrary to s 324D of the Criminal Code.[4] The offence occurred on 24 May 1990 when the respondent was aged 19 years. He was sentenced to a term of imprisonment of 3 years, 10 months and 2 weeks.
(2)In 1998, the respondent pleaded guilty to two charges 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 (WA). The offences were committed on dates unknown between 20 December and 30 December 1997. The respondent was 27 at the time that the offences were committed. He was sentenced to a total effective sentence of 3 years' imprisonment.
(3)In 2012, the respondent pleaded guilty to a charge of sexual penetration without consent contrary to s 325 of the Criminal Code. The offence occurred on 4 March 2011. The respondent was 41 at the time. He was sentenced in May 2012 to 3 years and 10 months' imprisonment for the offence. He was also sentenced to 2 months' imprisonment cumulative for another offence.
[3] DPP v Carter [25] - [35].
[4] The section has now been repealed.
The respondent has a serious mental illness. He has been previously diagnosed with drug induced psychosis, anti‑social personality disorder and schizoaffective disorder. He has a history of admissions to mental health facilities. He has been diagnosed with schizoaffective disorder, bipolar type. The respondent has also been diagnosed with paraphilia involving a deviant interest in non‑consensual violent sexual activity and paedophilia, non‑exclusive type. Those diagnoses were made by Dr Hall for the purpose of the application to have the respondent declared a dangerous sexual offender under s 17 of the DSO Act (the s 17 Application), but were adopted and accepted as being correct by Dr Wynn Owen for the purpose of this review.
Dr Wojnarowska gave evidence in the s 17 Application that, in her opinion, the respondent suffered from paranoid schizophrenia. She stated that this was similar to a diagnosis of schizoaffective disorder, but the trajectory of the illness differed. She agreed the respondent presented with a history of deviant sexual interest in violence which was independent of his psychiatric disorder. She considered the respondent fulfilled the criteria for a diagnosis of paraphilic disorder and an anti‑social personality disorder.[5]
[5] DPP v Carter [53].
At the First Review, Dr Wojnarowska stated that the respondent had a longstanding diagnosis of schizoaffective disorder complicated by polysubstance abuse.[6] Dr Wojnarowska also stated that:
(a)The respondent was admitted to the Frankland Centre following the s 17 Application. His medication was adjusted to a depot injectable antipsychotic. At the time of the First Review, the respondent was medicated with Paliperidone at 100 mg.
(b)The respondent's mental illness had much improved since the s 17 Application. However, there was still some evidence of delusional thinking that was likely to impede effective counselling.
(c)The respondent's future treatment should include a trial on a higher dose of antipsychotic medication. A mood stabiliser such as lithium or sodium valproate could also be trialled.
(d)The respondent's psychopathy was fixed and not amenable to change, but he was cognitively intact and was capable of some improvement in insight and acceptance of his condition. He had limited insight into his treatment needs and his offending, but was intellectually capable of learning not to be distracted by his mental illness. He could be treated in the community, but he would benefit from further treatment in a more structured environment.
[6] The State of Western Australia v Carter [No 2] [27].
Justice Hall noted in the First Review that the respondent had made progress in completing the Intensive Sex Offender Treatment Program and in weekly counselling. However, the extent of his progress was minimal and there had been some regression due to anxiety about the outcome of the review. His Honour considered Dr Wojnarowska's recommendations for the future treatment of the respondent should be investigated, noting that significant treatment needs remained.
Justice Hall also noted the respondent's release plan was superficial ‑ the respondent had no support networks and there was no suitable accommodation available should the respondent be released to the community. His Honour observed:
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, [the respondent] would require significant supervision and support if released into the community.[7]
[7] The State of Western Australia v Carter [No 2] [37].
The evidence in the review
The State provided for this review a report from a consultant forensic psychiatrist, Dr Wynn Owen, and a forensic psychologist, Ms Hasson. The State also provided a community supervision assessment report prepared by Mr Farrall, a community corrections officer attached to the Community Offender Monitoring Unit, Corrective Services, and progress notes about the respondent's mental health during 2018. Dr Wynn Owen, Ms Hasson and Mr Farrall gave oral evidence in the review. No reports were served on behalf of the respondent and he did not give or call evidence.
Several matters were clearly established by the evidence presented in the review. First, there has been little change in the factors relevant to the risk of the respondent committing a serious sexual offence since the First Review. Second, the respondent's mental health has deteriorated since the First Review. Third, the deterioration in the respondent's mental health is likely to be related to his medication regime. Fourth, the deterioration in the respondent's mental health has adversely affected his capacity to benefit from psychological counselling and complicates the task of assessing the risk of reoffending. Fifth, there was, at the time of review, no suitable accommodation for the respondent should he be released to the community.
The cumulative effect of those matters explains the findings that I made in the review. The findings were accepted by counsel for the respondent at the review. They were inevitable in light of the evidence presented.
Progress notes
The progress notes indicated that the respondent was examined by psychiatrists, Dr Davison and Dr Bilyk, in August 2018 and October 2018 respectively. He was also examined by a clinical nurse. The notes made by the clinical nurse indicated that she had reviewed the respondent monthly since his transfer to Karnet Prison Farm in October 2017.
Dr Davison noted that her examination of the respondent was difficult because of his monosyllabic answers to her questions. However, she did not identify any symptoms of psychosis.
The clinical nurse who assessed the respondent noted that he experiencing obvious side effects from his medication by August 2018. The respondent requested a psychiatric assessment for the purpose of reducing his medication dosage.
Dr Bilyk noted in her examination of the respondent that he reported experiencing persecutory beliefs that were similar in content to those described by Dr Wynn Owen in his evidence. Dr Bilyk did not alter the respondent's medication regime.
Dr Wynn Owen
Dr Wynn Owen accepted that the respondent suffered from schizoaffective disorder which he described as 'bipolar type, multiple episode, currently in partial remission'.[8] He also accepted previous diagnoses of paraphilia (deviant interest in non-consensual violent sexual activity), paedophilia (non-exclusive type) and anti-social personality disorder. The respondent did not suffer from a psychopathic personality disorder.
[8] Book of Materials (Exhibit 1), p 50.
Dr Wynn Owen considered the respondent remained a high risk of future serious sexual offending if released to the community unsupervised or not detained.[9] The factors that contributed to the respondent's risk of future offending had not markedly changed since the First Review and there had been a deterioration in his mental state since that time. Actuarial testing confirmed the presence of a number of risk factors.
[9] ts 132.
There were problems associated with the respondent's medication regime. The respondent had experienced various side effects from the medication ‑ Parkinsonian extrapyramidal side effects, tardive dyskinesia and loss of libido. There were references to those effects in the progress notes and they were apparent to Dr Wynn Owen at interview. The respondent was resistant to being further medicated. The side effects no doubt contributed to that attitude, but Dr Wynn Owen noted the respondent denied suffering from any mental illness and claimed he did not require treatment.
The respondent's resistance to his medication regime had adverse consequences for his well-being and for counselling directed to the causes of his offending. At the First Review, Dr Wojnarowska recommended that the dosage of the respondent's antipsychotic medication be increased. However, that did not occur because of the respondent's attitude towards his medication. In Dr Wynn Owen's opinion, the respondent's mental health had deteriorated so that the respondent 'currently presents with a deteriorated mental state evidenced by the emergence of acute persecutory delusional thinking and violent ideation, while at the same time requesting a reduction in his antipsychotic medication'.[10]
[10] Book of materials, p 58.
The reference to persecutory delusional thinking was to the respondent's firmly held belief that he would be stabbed, and probably killed, shortly after release from prison by the boyfriend and family of the victim of the March 2011 offence. The belief was apparently based on a telephone call the respondent stated he had received from the victim's brother after the March 2011 offence. The respondent reported visualising about, and ruminating on, how he could defend himself against an attack. Dr Wynn Owen considered that the emergence of these delusional beliefs marked a significant deterioration in the respondent's mental state since the First Review.
Dr Wynn Owen also considered that the respondent's insight and judgement were impaired as a result of his mental state. In particular, the respondent lacked awareness about the causes of his offending, and his preoccupation with the perceived threat of retribution for his offending distracted him from counselling and from developing realistic plans to manage the risk of reoffending. Consequently, the respondent still had significant treatment needs for his mental illness and for the psychological and other causes of his offending. The presence of an untreated mental illness was a significant risk factor.
Dr Wynn Owen also considered that the respondent's experience of delusional thoughts was related to stress associated with the review procedure under the DSO Act. The stress experienced by the respondent indicated he required further counselling for stress management to ensure that he could cope with the stress associated with being released to the community after a long period in custody without his mental health being put in jeopardy.
In Dr Wynn Owen's opinion, the respondent required further psychiatric assessment in light of the side effects he was experiencing from his current medication regime and the emergence of persecutory delusional beliefs. It was noted the respondent had been assessed infrequently while in custody and the assessments had been undertaken by different psychiatrists. Dr Wynn Owen considered that the respondent's mental state will continue to deteriorate unless a therapeutic medication regime can be established.
It was plain from the evidence that this would require a change of medication and a willingness by the respondent to remain compliant with whatever regime was prescribed. The respondent has a history of non‑compliance or poor compliance with medication and with other treatment interventions. It was also noted that he was resistant to taking any new medication as he did not believe that he had a mental illness and could see no reason why he should be subjected to antipsychotic medication.
Dr Wynn Owen observed that the respondent's attitude towards his mental illness and medication regime would pose significant challenges if the respondent was released to the community. There was also a concern that the respondent might act in an aggressive and violent manner while suffering from a delusional belief that he was to be harmed by someone.
Ms Hasson
Ms Hasson reported that the respondent had continued with individual counselling since the First Review. The counselling sessions were frequent and focussed on coping skills, self-esteem, mental health monitoring, anxiety and exploring the causes of his past offending.
Ms Hasson's report presented a complex picture, particularly in the part of her report that dealt with the respondent's account of the treatment progress. As Ms Hasson noted, the respondent had made some gains through psychological counselling. He had a good relationship with his counsellor and was able to identify factors that contributed to his risk of reoffending. However, it was difficult to assess the extent to which he had internalised the knowledge that he had acquired about those factors. Some answers to questions concerning his risk factors appeared rehearsed and a side effect of his medication was a reduction in his libido, so he claimed he no longer had an interest in sex. The effects of his medication meant it was possible that the respondent had not sufficiently addressed the factors that underpinned his history of offending in a meaningful way since the First Review. In Ms Hasson's opinion, it was difficult to assess this issue while the respondent remained on his present medication regime.
A persistent theme in Ms Hasson's report was the respondent's refusal to accept the mental health diagnoses made by various psychiatrists and consequently, the need for medication. He took his prescribed medication because he did not want to jeopardise his prospects for release.
Ms Hasson concluded that there was evidence of 'significant cognitive distortion involving justification, minimisation, rationalisation, neutralisation and denial of various aspects of his offending behaviour'.[11] She thought that the respondent was less willing to accept responsibility for his offending than his treatment notes suggested. However, Ms Hasson also recognised that the respondent's presentation in her interviews might have reflected anxiety about the review process and difficulties in discussing issues surrounding his offending with an unfamiliar person, particularly as the respondent wished to be well thought of and did not see himself as sex offender or a danger to the community.
[11] Book of materials, p 74.
Nevertheless, Ms Hasson considered that the respondent still had significant treatment needs - he lacks insight into the nature and extent of his mental illness and requires further counselling around the personality factors that have contributed to his offending. His treatment needs concerned 'core and key risks' relevant to his history of offending; they were not 'minor needs of improving his socialisation'.[12]
[12] ts 160.
Ms Hasson was concerned that the respondent had limited insight into consent and related issues in intimate relationships. She was also concerned that the respondent could regress back to his previous pattern of using sex as a maladaptive coping mechanism if his sex drive was not repressed by medication. That concern reflected the limited extent to which the respondent had developed sufficient skills and strategies for coping with emotional and other stresses and those features of his personality which underpinned his past offending. Ms Hasson considered the respondent's release plans were superficial and unrealistic, reflecting a limited understanding of the difficulties he will encounter in transitioning to the community. In her opinion, the respondent will require significant support and supervision in the community.
Mr Farrall
Mr Farrall advised in his report that the respondent had engaged with Uniting Care West (UCW) since 2015 with a view to obtaining accommodation on his release. No accommodation was available at the time of Mr Farrall's report or when he gave oral evidence in the review. Further, UCW had expressed concern that the respondent would require considerable support to function in the community. The respondent had qualified for National Disabiltiy Insurance Scheme (NDIS) funding, but otherwise lacked community support. A six‑month plan had been prepared by NDIS to be implemented if the respondent was released to the community.[13] UCW was aware of the plan, but remained concerned about whether the respondent would be sufficiently supported if he was living in the community as part of the DSO Supported Assistance Program. That was because of their assessment of the respondent's care requirements.
[13] NDIS do not provide housing, but rather support such as occupational therapy, assistance with daily care needs and funding for transport.
Mr Farrall contacted another accommodation service that did not accept referrals from Community Corrections but might be prepared to assess the respondent's suitability for its program by consulting directly with him and NDIS. Otherwise, the accommodation services that had been contacted by Mr Farrall had indicated they did not consider the respondent could be accommodated within their facilities. Further, there was a waiting list of approximately 92 months for public housing.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
MB
Associate to the Honourable Justice Corboy4 JUNE 2019
2
1