The State of Western Australia v Vanderplas [No 2]
[2021] WASC 180
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL
CITATION: THE STATE OF WESTERN AUSTRALIA -v- VANDERPLAS [No 2] [2021] WASC 180
CORAM: HILL J
HEARD: 25 AUGUST 2020, 11 JANUARY & 31 MARCH 2021
DELIVERED : 10 JUNE 2021
FILE NO/S: SO 2 of 2020
BETWEEN: THE STATE OF WESTERN AUSTRALIA
Applicant
AND
PAUL ANTHONY VANDERPLAS
Respondent
Catchwords:
Criminal law - High Risk Serious Offenders Act 2020 (WA) - Whether the respondent is a high risk serious offender - Whether the risk of committing further serious offences can be managed on a supervision order or whether a continuing detention order is necessary - Unmet treatment needs - Turns on own facts
Legislation:
Dangerous Sexual Offenders Act 2006 (WA)
High Risk Serious Offenders Act 2020 (WA)
Result:
Continuing detention order made
Representation:
Counsel:
| Applicant | : | B Merteens (25 August 2020 & 11 January 2021) T McPhee and F Allen (31 March 2021) |
| Respondent | : | S Rafferty |
Solicitors:
| Applicant | : | State Solicitor's Office |
| Respondent | : | Seamus Rafferty |
Case(s) referred to in decision(s):
Director of Public Prosecutions (WA) v GTR [2008] WASCA 187; (2008) 38 WAR 307
Director of Public Prosecutions (WA) v Williams [2007] WASCA 206; (2007) 35 WAR 297
Italiano v The State of Western Australia [2009] WASCA 116
State of Western Australia v Pas [No 3] [2021] WASC 117
The State of Western Australia v Cox Aka Roe [2020] WASC 344
HILL J:
By application dated 3 February 2020, the State of Western Australia applied for orders in relation to the respondent under s 14 and s 17(1) of the Dangerous Sexual Offenders Act 2006 (WA) (DSO Act).
On 31 March 2020, Corboy J, at a preliminary hearing under div 1 of the DSO Act, was satisfied, pursuant to s 14(1) of the DSO Act, that there were reasonable grounds for believing that the court might find that Mr Vanderplas was a serious danger to the community and fixed a date for the hearing of this application. His Honour also ordered, pursuant to s 14(2)(b) of the DSO Act, that Mr Vanderplas be detained in custody until further order.
The application came on for hearing before me on 25 August 2020. On that date, it was adjourned for hearing until 11 January 2021, and on that date adjourned to 31 March 2021.
On 26 August 2020, the High Risk Serious Offenders Act2020 (WA) (HRSO Act) was proclaimed. The HRSO Act repealed the DSO Act. For that reason, this application, which was commenced under the DSO Act, falls to be determined under the HRSO Act.
The relevant provisions of the HRSO Act which govern this application are in identical terms to the corresponding provisions of the DSO Act. That is, on this application, the issues that I must decide are:
(a)whether Mr Vanderplas is a high risk serious offender, within the meaning of the HRSO Act; and
(b)if so, whether he should be detained in custody for an indefinite term for control, care or treatment (continuing detention order) or, alternatively, be released into the community subject to conditions that the court considers appropriate (supervision order).
Counsel who appeared for the respondent at the hearing conceded that on the evidence before the court, there was sufficient evidence on which I could be satisfied that Mr Vanderplas was a high risk serious offender.
On the evidence before the court, I consider this was an appropriate concession as I have determined that Mr Vanderplas is a high risk serious offender. For that reason, the primary issues for determination by the court are whether Mr Vanderplas should be released into the community on a supervision order, the suitability of the proposed accommodation and whether Mr Vanderplas had discharged his onus of establishing on the balance of probabilities that he will comply with the standard orders of a supervision order.
For the reasons that follow, I have concluded that, in the circumstances of this case, the risk that Mr Vanderplas may commit a serious offence is not currently able to be managed within the community. This is primarily because the respondent has a significant number of outstanding treatment needs which have not yet been addressed. On this basis, I am required to impose a continuing detention order.
Procedural background
This application was originally listed for hearing on 25 and 26 August 2020. At that time, psychiatric reports had been prepared by Dr Peter Wynn Owen and Dr Mark Hall, as required under s 37 of the DSO Act. When the matter came before me on 25 August 2020, there was a material difference in their assessment of Mr Vanderplas, namely their scoring of the respondent on the Hare Psychopathy Checklist - Revised (PCL‑R) and whether he fitted the construct of psychopathy. The significance of this is twofold: first, psychopathy is a factor that is associated with the risk of reoffending and second, persons with psychopathy are more resistant to the benefits of therapeutic intervention.[1]
[1] ts 56 – 57.
After hearing evidence from Dr Hall on that date, the respondent applied for an adjournment, which was not opposed by the State. I agreed to an adjournment of the hearing for three reasons. First, to enable conferral to take place between Dr Hall and Dr Wynn Owen in respect of their scoring of the respondent on the PCL‑R. Second, at the time of the initial hearing, no suitable accommodation was available for the respondent. This effectively meant, given the concession that had been made by counsel for the respondent that there was sufficient evidence for this court to find that the respondent was a high risk serious offender, that the court was required to impose a continuing detention order. If the application was adjourned, there was a possibility that appropriate accommodation would become available. Third, the State agreed that the respondent could commence individual counselling sessions with a psychologist who would prepare a report before the final hearing. This would enable the court to better assess at the hearing of the application whether the respondent was responding to treatment and the extent of his outstanding treatment needs.
The matter was re-listed for hearing on 11 January 2021. At the commencement of the hearing on that date, the State applied for an adjournment due to matters that had arisen during the previous week. Those matters are not relevant for the purposes of the application. The application for an adjournment was not opposed by the respondent. On that basis, the hearing was adjourned until 31 March 2021.
Prior to the final hearing of the matter, supplementary reports of both Dr Wynn Owen and Dr Hall were filed, as well as a treatment progress report. During this period, accommodation had also become available in the event that the court determined that a supervision order could be made.
Legislative background
At the time the application was filed by the State, the application was governed by the DSO Act.
On 9 July 2020, pt 1 of the HRSO Act came into effect. On 26 August 2020, the remaining provisions of the HRSO Act came into force except for s 91 and sch 1, div 2, subdiv 1, item 1. On the same date, the DSO Act was repealed.[2]
[2] High Risk Serious Offenders Act 2020 (WA) s 123.
Pursuant to s 124(1) of the HRSO Act, if an application made under the DSO Act has not been finally determined by the commencement date of the HRSO Act, the application continues and is determined under the HRSO Act. The application is taken to have been lodged under the corresponding provisions of the HRSO Act.
Under s 35 of the HRSO Act, the State may apply for a restriction order in relation to a serious offender under custodial sentence who is not a serious offender under restriction, where there is a possibility that the offender might be released from custody within one year of the date the application is made. A serious offender under restriction is a person who is subject to a restriction order or an interim supervision order. Section 35(2) provides that an application may be made under the section whether the custodial sentence was imposed before or after the commencement of s 35 of the HRSO Act and whether or not the offender is in custody.
It was not in dispute that at the time the application was made, the respondent was a serious offender under a custodial sentence who was due for release within one year following the making of the application. As such, the application met the formal requirements of the HRSO Act.
The present application falls to be determined under s 48 of the HRSO Act. This section provides:
48. Restriction orders
(1) If the court hearing a restriction order application finds that the offender is a high risk serious offender, the court must -
(a) make a continuing detention order in relation to the offender; or
(b) except as provided in section 29, make a supervision order in relation to the offender.
(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.
A continuing detention order is, pursuant to s 26(1) of the HRSO Act, an order that 'the offender be detained in custody for an indefinite term for control, care, or treatment'. If a court makes a supervision order, there are conditions that the court is required to impose (s 30(2) of the HRSO Act) and conditions that may be imposed (s 30(3), s 30(5) and s 30(6) of the HRSO Act).
The term 'high risk serious offender' is defined in s 7 of the HRSO Act. Specifically, it is defined in the following terms:
(1) An offender is a high risk serious offender if the court dealing with an application under this Act finds that it 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 the offender to ensure adequate protection of the community against an unacceptable risk that the offender will commit a serious offence.
(2) The State has the onus of satisfying the court as required by subsection (1).
(3)In considering whether it is satisfied as required by subsection (1), the court must have regard to the following -
(a) any report prepared under section 74 for the hearing of the application and the extent to which the offender cooperated in the examination required by that section;
(b) any other medical, psychiatric, psychological, or other assessment relating to the offender;
(c) information indicating whether or not the offender has a propensity to commit serious offences in the future;
(d) whether or not there is any pattern of offending behaviour by the offender;
(e) any efforts by the offender to address the cause or causes of the offender's offending behaviour, including whether the offender has participated in any rehabilitation programme;
(f) whether or not the offender's participation in any rehabilitation programme has had a positive effect on the offender;
(g) the offender's antecedents and criminal record;
(h) the risk that, if the offender were not subject to a restriction order, the offender would commit a serious offence;
(i) the need to protect members of the community from that risk;
(j) any other relevant matter.
(4) In considering whether it is satisfied as required by subsection (1), the court must disregard the possibility that the offender might temporarily be prevented from committing a serious offence by -
(a) imprisonment; or
(b) remand in custody; or
(c) the imposition of bail conditions.
Pursuant to s 5 of the HRSO Act, an offence is a 'serious offence' if it is specified in sch 1 div 1 of the HRSO Act. The offences of aggravated sexual penetration without consent, aggravated indecent assault, deprivation of liberty and sexual offence against a child under 13 are all specified in sch 1 div 1 of the HRSO Act.
The State has the onus of satisfying the court that Mr Vanderplas is a high risk serious offender. The court has to be satisfied of this 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 and less than a finding of beyond reasonable doubt. It is otherwise incapable of further definition.[3] 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 what makes it unacceptable and then consider whether or not those factors have been proved to the requisite standard, that being to a high degree of probability, furnished by acceptable and cogent evidence.[4]
[3] Director of Public Prosecutions (WA) v GTR [2008] WASCA 187; (2008) 38 WAR 307 [28] (Steytler P & Buss JA).
[4] Director of Public Prosecutions (WA) v GTR [34] (Steytler P & Buss JA).
A finding that there is an unacceptable risk is a balancing exercise which requires the court to have regard to, among other things, the nature of the risk (the commission of a serious offence, with serious consequences for the victim) and the likelihood of the risk coming to fruition whilst having regard, on the other hand, to the serious consequences for Mr Vanderplas if an order is made (either detention, without having committed an offence, or being required to undergo what might be an onerous supervision order).[5]
[5] Italiano v The State of Western Australia [2009] WASCA 116 [46] (Buss JA).
An unacceptable risk in the context of the HRSO Act is a risk which is unacceptable having regard to a variety of considerations. These may include the likelihood of the person offending, the type of offence which the person is likely to commit and the consequences of finding that an unacceptable risk exists. I am required to consider whether, having regard to the likelihood of Mr Vanderplas offending and the offence to be committed, the risk of that offending is so unacceptable that, notwithstanding the fact that Mr Vanderplas has already been punished for the offences he has committed, it is necessary in the interests of the community to ensure that he is subject to further control or detention.[6]
[6] Director of Public Prosecutions (WA) v Williams [2007] WASCA 206; (2007) 35 WAR 297 [63] (Wheeler JA).
Section 29 of the HRSO Act provides that a court cannot make a supervision order unless it is satisfied, on the balance of probabilities, that the offender will substantially comply with the standard conditions of the order. The onus of proof is on the respondent pursuant to s 29(2) of the HRSO Act. The standard conditions of a supervision order are those set out in s 30(2) of the HRSO Act. They include conditions as to reporting, notification of changes of circumstances, supervision by a community corrections officer, not leaving the State of Western Australia without permission, not committing a serious offence and being subject to electronic monitoring. A supervision order may also include such other conditions as the court considers appropriate to ensure adequate protection of the community, for rehabilitation, care or treatment of the offender and to ensure the adequate protection of victims.
The words 'will substantially comply with' in s 29(2) of the HRSO Act are identical to those that appeared in provisions of the DSO Act and bear the same meaning. These words should be given their ordinary meaning, consistent with the purposes of the HRSO Act and the general conditions of a supervision order, as well as the overall object of the HRSO Act which is to achieve the adequate protection of the community by appropriate management and mitigation of the unacceptable risk that the offender will commit a serious offence.
Even if the court is satisfied that the respondent will substantially comply with the standard conditions of a supervision order, the court must make a continuing detention order if it is not satisfied that conditional release under a supervision order will ensure an adequate degree of protection to the community.
To determine whether there are reasonable grounds to form the requisite belief, the court is required to consider the admissible evidence before it, as specifically modified by the HRSO Act. As Allanson J stated in The State of Western Australia v Cox Aka Roe:[7]
If there is to be a reasonable ground based on the existence of facts, I need to look at the evidence. Section 46, read with s 84 and s 7, provides for the evidence on which the court may act in a restriction order proceeding. Although s 84(3) refers to the court acting on admissible evidence, s 84(4) and s 84(5) modify the rules of evidence to allow the court to receive into evidence material including 'any document relevant to the antecedents' of the offender; and any medical, psychiatric, psychological or other assessment relating to the offender; and any information indicating whether or not the offender has a propensity to commit serious offences in the future.
[7] The State of Western Australia v CoxAka Roe [2020] WASC 344 [17].
The evidence
The State tendered four volumes of documents for the purposes of the application. Two volumes of a book of materials (Exhibit 1.1 and Exhibit 1.2) and a supplementary book of materials (Exhibit 2) were filed prior to the first hearing on 25 August 2020 and tendered at that hearing. A second supplementary book of materials (Exhibit 4) was filed prior to 11 January 2021 and tendered at the hearing on 31 March 2021.
The books of materials contained relevant information on Mr Vanderplas' prior offending, his conduct in prison, previous reports that had been prepared on him as well as reports which had been prepared for this hearing. The reports that were prepared for the hearing were the reports of Dr Peter Wynn Owen and Dr Mark Hall, both consultant forensic psychiatrists, Dr Mandy Vidovich, a neuropsychologist, Dr Ben Bannister, a forensic psychologist, and Ms Kimberley Comery, a senior Community Corrections Officer with the Community Offender Monitoring Unit.
Prior to the hearings in 2021, a series of updated reports were prepared, namely the supplementary reports of Dr Wynn Owen and Dr Hall, a treatment progress report of Dr Dylan Galloghly and an updated community supervision assessment report of Ms Emma Cashmore, a senior Community Corrections Officer with the Community Offender Monitoring Unit.
Dr Hall, Dr Wynn Owen, and Dr Galloghly all gave oral evidence at the hearings. The respondent elected not to give or adduce any evidence.
Factors under s 7(3) of the Act
Mr Vanderplas' antecedents and criminal record (s 7(3)(g))
There is a significant issue about the reliability of Mr Vanderplas' self‑reporting of his antecedents to the authors of the various reports that were tendered at the hearing. The following matters appear from these reports and appear not to be in dispute.
Mr Vanderplas was born in Queensland on 19 July 1968 and is currently 52 years old. His parents separated when he was about 12 years old. He has a sister and a half‑sister. He has never been married. Mr Vanderplas has previously reported having two or three children.
Mr Vanderplas spent his childhood and adolescence in Queensland. His first conviction of a serious sexual offence was in June 1982. At that time, when he was 14 years old, he was convicted in the Holland Park Children's Court, Queensland, of aggravated assault of a sexual nature on a female child under the age of 17 years. He was sentenced to two years' detention in a juvenile detention facility.
The respondent committed numerous further offences in Queensland between 1986 and 1995. None of those offences were of a sexual nature. He was first sentenced to a term of imprisonment in 1986 and received further sentences of imprisonment in 1988, 1990 and 1994.
Mr Vanderplas travelled and worked at various locations within Australia before arriving in Perth in early 1995. On 12 and 18 May 1995, the respondent committed a series of serious offences. These offences included stealing (on 12 May 1995); unlawful detention; sexual penetration of a person over 60 years of age, without her consent by penetrating her vagina and anus with his penis and then doing bodily harm to the victim; sexual penetration of the victim without her consent by penetrating her vagina and anus with a wooden object and then doing bodily harm to her; unlawful and indecent assault and then doing bodily harm to the victim; and stealing.
Mr Vanderplas did not dispute he committed these offences but pleaded not guilty by reason of unsoundness of mind. This plea was rejected by the jury.
The facts of the offences were summarised by the sentencing judge in the following terms. The victim was 83 years of age and lived alone in a house in Cottesloe. On 12 May 1995, the respondent broke into her house through a back window and stole money and wine. On the evening of 17 May 1995, the respondent consumed a substantial quantity of alcohol at several hotels in the Cottesloe area. He decided to again break into the victim's house with the apparent intention of stealing more money and alcohol.
On the same evening, the respondent went back to the victim's house sometime between 1.00 am and 2.00 am, forced open a rear window with a screw driver and gained entry. He searched the house for items to steal and, in the course of doing so, he entered the victim's bedroom and found her in bed. He placed a hand over her mouth and then wrapped insulation tape around her head so as to cover her eyes and mouth. He then ripped open her nightie and subjected her to repeated sexual assaults for a period of approximately two hours. During that time he penetrated the victim's vagina and anus with his penis and with a large wooden object. He repeatedly hit her chest causing significant bruising and forced the victim to masturbate him. The acts of penetration were violent and caused the victim extreme pain and heavy bleeding.
On hearing a noise, the respondent left the house. Before doing so, he bound the victim's hands and did not remove the tape that covered her face. After about four hours, the victim was able to work her hands free and managed to make small holes in the tape near her mouth and eyes. She was then able call her daughter for assistance. By the time her daughter arrived at her house, the victim had lost a significant amount of blood.
The victim suffered bruising to her arms and wrists and severe bruising to her breasts. She suffered anal bruising and some anal tears, a peritoneal tear and extensive injuries to her vagina and vaginal vault. She required emergency surgery and her genital injuries were medically assessed as being potentially life‑threatening.
The respondent was sentenced to a total sentence of 18 years' imprisonment, which was backdated to May 1995. For each of the offences involving sexual assault, he received a sentence of 16 years' imprisonment. Mr Vanderplas was made eligible for parole. He did not apply for release on parole and was ultimately released from custody at the conclusion of his sentence in 2007.
In May 2009, the respondent committed a series of offences in Donnybrook. The offences were sexual penetration of a child under 13 years by inserting his finger into her vagina; sexual penetration of a child under 13 years by performing cunnilingus on her; indecent recording of a child under 13 years by photographing her genitals; and being in possession of child pornography in the form of data on a mobile telephone.
In January 2010, the respondent pleaded guilty to these charges. The facts of these offences were summarised by the sentencing judge in the following terms. At the time the offences were committed, the victim was aged five. In April 2009, the victim's parents agreed that the respondent could use a caravan located on their property at Donnybrook. The offences were committed shortly after 4.45 am on 5 May 2009. In the hours prior to committing the offences, the respondent consumed alcohol and smoked cannabis.
At about 4.45 am, the respondent entered the house in which the victim lived with her parents. He went to the victim's bedroom and took photographs of her while she slept. He then pulled down her pyjamas and felt her vagina area with his hand and penetrated her vagina with his finger. He photographed himself committing the offence and the photograph was subsequently located on his mobile phone. The respondent then licked the victim's vagina and took several photographs of her vagina and her buttocks. The victim became extremely distressed and the respondent left the bedroom and returned to the caravan. The victim immediately ran to her parents' bedroom and told them what had happened. Her parents called the police and the respondent was arrested.
The police reviewed data stored on the respondent's telephone and found a large quantity of child pornography images. The images predominantly featured pre‑pubescent children. The sentencing judge described the images as 'extremely serious' and 'very distressing'.
The respondent was sentenced to 11 years' imprisonment, which was backdated to 6 May 2009. The sentencing judge did not make Mr Vanderplas eligible for parole.
Prior to this application being filed by the State, the respondent was due to be released from custody on completion of this sentence on 5 May 2020.
Psychiatric reports and extent to which Mr Vanderplas cooperated with psychiatric examinations - s 7(3)(a)
Dr Mark Hall
Dr Hall is a consultant forensic psychiatrist with over 25 years' experience. He interviewed and assessed Mr Vanderplas during four interviews conducted on 8 and 10 July 2020.
Dr Hall observed that the respondent made good eye contact throughout the interview and was not nervous about the assessment. Dr Hall expressed the opinion that Mr Vanderplas attempted to control the interview and that there were a number of inconsistencies between the account he gave to Dr Hall and those contained in records that had been made available to him. Notably, approximately one hour into the interview with Dr Hall, the respondent asked if they could start again and disclosed that part of the account he had given to Dr Hall, namely that he had been in the military and was suffering from post traumatic stress disorder (PTSD), was entirely fabricated.
Dr Hall spoke to Mr Vanderplas about his previous convictions. In relation to the offences in 1995, Mr Vanderplas told Dr Hall that he had been out of work at the time and as a result was using alcohol and illicit drugs heavily. Mr Vanderplas told Dr Hall that he did not recall a great deal about the offences as he had tried to 'block it out' because of their seriousness. He informed Dr Hall that because he could not recall the details of the offences, 'he could not be certain that the police had not fabricated some of the alleged facts, such as his use of a wooden object to assault the victim, so as to secure a harsher sentence.'[8]
[8] Exhibit 1.2, p 1162.
In respect of the index sexual offences, the respondent told Dr Hall that prior to the commission of these offences, his relationship had broken down and that he was using increased amounts of alcohol and cannabis as a coping mechanism. He told Dr Hall that his mistake was going back to child pornography after the relationship breakdown. He denied that he had developed an enduring or specific sexual interest in children. Mr Vanderplas acknowledged that he was heavily intoxicated at the time of offending.
Dr Hall spoke to Mr Vanderplas about his history of alcohol and substance abuse. He disclosed that he first consumed alcohol at around the age of six or seven. While he informed Dr Hall that he was not a heavy drinker outside prison, this is contradicted by other records including police interviews and pre-sentence reports. He stated that he first used amphetamines in his late teens but denied intravenous use. Again, this was contradicted by other records including information given to other medical practitioners. Mr Vanderplas disclosed that he first tried cannabis at the age of 14 and that he used it in prison between 1995 and 2007 and again on his release from prison in 2007.
Dr Hall's opinion was that Mr Vanderplas had a long history of substance abuse of both alcohol and illicit substances. However it was difficult to obtain an accurate report of his typical pattern of use. Dr Hall concluded that 'it has been highly problematic and is now associated with a degree of denial'.[9]
[9] Exhibit 1.2, p 1188.
Dr Hall's principal diagnosis was that the respondent had a personality disorder (severe) with predominantly antisocial and narcissistic traits, which he also referred to as a psychopathic personality disorder. His secondary diagnosis was that Mr Vanderplas had alcohol, cannabis and amphetamine abuse, all of which was in remission due to him being in custody, attention deficit hyperactivity disorder (ADHD) and chronic obstructive pulmonary disease.
Dr Hall set out in his report details of the programs offered to the respondent during his terms of imprisonment. During his term of imprisonment for the 1995 offences, Mr Vanderplas was deemed suitable for inclusion in a sex offender treatment program and a substance abuse program but had declined to participate. At that time, Mr Vanderplas said that he had reservations about participating in a group based program.
After he was imprisoned for the index offences in 2010, Mr Vanderplas was transferred to Bunbury regional prison in 2012. He participated in a Sex Offending Intensive Program between December 2012 and August 2013. At that time, he told facilitators that he had been in the military and was suffering from PTSD. The treatment completion report for the program noted that the respondent had accepted responsibility for his offending and was able to display empathy and awareness of the impact of his offences on the victims. It concluded that the respondent had met all program objectives, made treatment gains, was observed to gain a greater understanding of the factors underlying his offending and demonstrated acceptance of responsibility for his behaviour. Dr Hall asked the respondent what he had gained through participation in the program and was told that the respondent had not been able to identify 'the core driver' to his offending but had learned that the contributing factors were loss of employment, depressive thinking and the use of alcohol and illicit and prescription drugs to cope with negative feelings.
Between June 2017 and November 2017, Mr Vanderplas participated in a Pathways Program at Acacia prison, which is a program focused on substance abuse. Dr Hall noted that the respondent's claim that he suffered from PTSD from military service was prominent in his treatment completion report and appeared to have pervaded his participation in this program. Dr Hall expressed the opinion that given the respondent's reported history of military service and PTSD was fabricated, his participation in the program was 'highly disingenuous'.
Dr Hall assessed the respondent's risk of reoffending using the instruments Static‑99R, Risk for Sexual Violence Protocol (RSVP) and the PCL‑R.
Dr Hall found that Mr Vanderplas' Static–99R score was 7. This placed him in the 'well above average' risk category, which is the highest of the categories.[10] The recidivism rate of sexual offenders with the same score as the respondent is approximately five times higher than that of a typical sex offender. For a Static‑99R score of 7, the sexual recidivism rate at the five year mark is 30.7% and within 10 years is 42.8%.[11]
[10] ts 52.
[11] Exhibit 1.2, p 1191.
Dr Hall scored Mr Vanderplas on the PCL‑R, a 20 item scale which uses both historic and dynamic data for the assessment of psychopathic traits, at 31.[12] This score placed him in the high range indicating the presence of psychopathy. Dr Hall expressed the opinion that this was consistent with his clinical assessment of Mr Vanderplas as having a severe personality disorder with antisocial and narcissistic traits. Specifically, Mr Vanderplas scored in the high range on the facets of the instrument that assess interpersonal aspects, affective features and antisocial features and scored in the moderate to high range on the facet of the instrument that captures lifestyle features.
[12] ts 52.
Dr Hall also assessed the respondent using the RSVP framework. This involves consideration of 22 individual risk factors over five domains being: sexual violence history, psychological adjustment, mental disorder, social adjustment and manageability. In the case of Mr Vanderplas, Dr Hall identified that a number of risk factors were exhibited by the respondent or were present. The risk factors that the respondent exhibited were chronicity of sexual violence, diversity of sexual violence, problems with self‑awareness, problems with stress or coping, problems with intimate relationships, problems with non-intimate relationships, and problems with employment. Those that he found to be present were the risk factors of physical coercion and sexual violence, problems resulting from child abuse, psychopathic personality disorder, problems with substance abuse, violent or suicidal ideation, non-sexual criminality, problems with planning, problems with treatment and problems with supervision.
Dr Hall noted that while Mr Vanderplas accepts he committed the offences, his history is to displace personal responsibility onto medical causes.
Based on these matters, Dr Hall was of the view that the respondent is at high risk of committing a serious sexual offence in the future without intervention. Based on the respondent's past offending behaviour, Dr Hall expressed the opinion that if he were to reoffend sexually, he was likely to do so against victims who were vulnerable by way of age or other factors. His offending behaviour was most likely to be fuelled by anger and envy and facilitated by dismantling his inhibitions by the use of alcohol or other illicit substances. The victims of any offences were likely to suffer significant and enduring psychological harm and it was possible that his sexual violence would escalate to serious and potentially life threatening violence.
Dr Hall's opinion was that the respondent was unlikely to live 'offence free' for more than a couple of years. Dr Hall assessed the risk posed by Mr Vanderplas as 'chronic and expected to persist well into his 60s or beyond'.
Dr Hall's conclusion was that Mr Vanderplas presents a high risk of committing a serious sexual offence if not subject to a continuing detention order or community supervision order. The specific factors contributing to Mr Vanderplas' high level of risk are his history of recurrent sexual offending over decades and committing offences after a relatively short time on each occasion, unaddressed sexual treatment needs, psychopathy, poor behavioural controls and impulsivity, unaddressed substance use treatment needs, and lack of social network or positive support. Prior to any release into the community, Dr Hall expressed the opinion that Mr Vanderplas would need stable accommodation and have also demonstrated his engagement with a forensic psychologist and a substance abuse counsellor.
In oral evidence, Dr Hall emphasised the issues that Mr Vanderplas' lack of honesty regarding his background presented (including his military service and PTSD as well as his reported epilepsy). First, it was unclear what, if any, treatment gains Mr Vanderplas had obtained from the programs he attended while in prison. The reports from these programs indicated that the respondent had maintained that he had been in the military and suffered from PTSD, which he now accepted was untrue.[13] Second, given his lack of social support, it was essential that those who were supervising him could rely on what Mr Vanderplas told them.[14] This was because it was likely that there would be no third party who could verify what Mr Vanderplas told those supervising him. Third, it was necessary for Mr Vanderplas to be honest in his treatment relationships so that there could be a degree of confidence that he had gained from these relationships and that the risks associated with his behaviour could be managed.[15] Fourth, it would be important for the foundations of the treating relationship to be in place prior to Mr Vanderplas' release from custody so that his risk factors could be appropriately managed.[16]
[13] ts 61.
[14] ts 61.
[15] ts 62.
[16] ts 70.
Following the adjournment of the initial hearing, Dr Hall considered the report of Dr Wynn Owen and met with him in November 2020. In his supplementary report dated 21 December 2020, he noted that the score above which psychopathy is diagnosed in some jurisdictions is 30 and 25 in others.[17] On conferral, it was evident that Dr Hall and Dr Wynn Owen differed significantly in respect of their scoring of the PCL‑R in relation to Mr Vanderplas. This was due to the difference in presentation by Mr Vanderplas at each of their respective interviews and the unreliability of the respondent. Following conferral, Dr Hall adjusted his assessment of the respondent under the PCL‑R and re‑scored the respondent at 30, which still placed him in the high range and indicated the presence of psychopathy.
[17] Exhibit 4, p 10.
When he was recalled to give evidence at the hearing on 31 March 2021, Dr Hall explained that there were two ways of looking at the PCL‑R. First, it is a continuum. Second, the profile that is obtained on the various items can sometimes be more useful and informative in assessing likely behaviour and response to treatment.[18] He explained that a person without criminal offences would be unlikely to score more than 12 and that a score of 25 or more was the point at which there was a steep increase in recidivism following release. Specifically, Dr Hall's evidence was that someone with a score of 25 was twice as likely to reoffend in a general way and nine times as likely to reoffend in a violent way.[19]
[18] ts 181 – 182.
[19] ts 182.
Under cross-examination, Dr Hall explained that where two psychiatrists had administered the PCL‑R, the most likely scenario was that the respondent would be at the mean of those two scores. In the respondent's case, this would result in a score of 27.5.[20] His evidence was that there was no significant reduction in risk between a score of 27 and 30 but that what might be relevant is the distribution of the score and whether the additional points are relevant to protective factors or the type of offending.[21]
Dr Peter Wynn Owen
[20] ts 184.
[21] ts 184.
Dr Wynn Owen is also a forensic psychiatrist. Dr Wynn Owen interviewed and assessed the respondent on two occasions. Dr Wynn Owen reported that Mr Vanderplas made normal eye contact during the interviews and participated in the interviews.
Dr Wynn Owen's opinion was that Mr Vanderplas fitted the diagnostic criteria for an antisocial personality disorder.
Dr Wynn Owen also spoke to Mr Vanderplas about his previous sexual offences and his alcohol and illicit drug use. There were a number of differences between the information provided by Mr Vanderplas to Dr Wynn Owen compared to the information he provided to Dr Hall.
Mr Vanderplas informed Dr Wynn Owen that he accepted responsibility for the offences committed in 1995 and 2007. On being told by Dr Wynn Owen of the extent of the physical injuries sustained by the victim of his 1995 offences, Mr Vanderplas said that he had never been told this before and that he found it difficult to continue with the interview. He expressed empathy with his victim and remorse for the offences. In respect of the index offences, he told Dr Wynn Owen that he tried not to think about these offences as it was upsetting and he avoids thinking about it. He expressed empathy with his victim and remorse for the offences.
In relation to his history of alcohol and substance abuse, Mr Vanderplas told Dr Wynn Owen that he first drank alcohol from the age of four or five but did not drink socially with friends until his mid‑teens. He told Dr Wynn Owen that alcohol 'was never an issue as long as my life was on track'. He reported beginning to use cannabis at the age of 14 and was using regularly from the age of 16. He also reported regular use of 'speed'.
In assessing Mr Vanderplas' risk of future sexual offending, Dr Wynn Owen also utilised the Static‑99R, the PCL‑R and the RSVP. On the Static‑99R, Dr Wynn Owen placed the respondent at risk level IVb, that is, a well above average risk for committing future sexual offences. As the respondent fitted the category of a high risk/high need offender, he was assessed as having a 36.3% likelihood of sexual reoffending within five years of release and an approximately 42.8% likelihood of reoffending within 10 years. To place these figures in context, Dr Wynn Owen explained that the likelihood of an adult male committing a sexual offence over his lifetime is less than 1% and the average five year sexual recidivism rate of a sexual offender is approximately 10 to 15%. Dr Wynn Owen noted that these rates tend to be underestimated as they are based on offence data and that a significant proportion of sexual offending is not reported by victims.
Dr Wynn Owen also assessed the respondent using the PCL‑R. Dr Wynn Owen initially did not score Mr Vanderplas at or above the threshold for psychopathy. Dr Wynn Owen originally scored the respondent highly on PCL‑R Factor 2, specifically on Facet 4, social deviance, which is highly consistent with a diagnosis of antisocial personality disorder.
As noted above, this assessment was different to the initial opinion of Dr Hall. Following conferral between Dr Wynn Owen and Dr Hall, Dr Wynn Owen produced an addendum to his report which re‑scored Mr Vanderplas on the PCL‑R at 25. In evidence, he agreed this score had a standard margin of error of two.[22] Dr Wynn Owen noted that a score of 25 is the cut‑off used in Europe and some other jurisdictions for concluding that an individual is at a significantly elevated risk of future offending.
[22] ts 137.
During the conferral of Dr Wynn Owen and Dr Hall, it became apparent that Mr Vanderplas had presented very differently to each of them. This difference in presentation and, in particular, the lies the respondent told to Dr Hall at the start of his interview, caused the difference in their initial scoring. While Dr Wynn Owen noted that differences remained between his and Dr Hall's scores, he did not consider their results were inconsistent. This was because the PCL‑R allows for a degree of variance between clinicians. Dr Wynn Owen expressed the opinion that his revised score indicated there was a significant personality contribution to Mr Vanderplas' elevated risk of future serious offending and that his opinion that the respondent presents a high risk of a future serious sexual offence was reinforced by, but not varied by, this finding.
Dr Wynn Owen was cross-examined extensively about his rescoring of Mr Vanderplas on the PCL‑R and the margin for error in this score. Dr Wynn Owen agreed that if the respondent's score was 23, the likelihood of risk of re‑offending was 'a lower risk by quite a significant amount'.[23] In re‑examination, Dr Wynn Owen emphasised that every score has a margin of error of at least plus or minus two and this did not mean that there was an error in his assessment of the respondent.[24]
[23] ts 162.
[24] ts 165.
Dr Wynn Owen also assessed the respondent using the RSVP. In the case of Mr Vanderplas, Dr Wynn Owen expressed the opinion that a number of the risk factors were present or possibly present. He considered that the risk factors which were present were diversity of sexual violence, physical coercion in sexual violence, problems with self‑awareness, problems with stress or coping, problems with substance abuse, problems with intimate relationships, problems with non-intimate relationships, problems with employment, non‑sexual criminality, and problems with treatment. The risk factors that were possibly present were sexual deviance and problems with supervision. Dr Wynn Owen noted that the risk factor of violence or suicidal ideation had been present in the past although Mr Vanderplas currently denied that he had violent or suicidal thoughts.
Dr Wynn Owen considered possible risk scenarios. He noted that the respondent's selection of victims was diverse and expressed the view that the circumstances of his offending are likely to be related to stress, leading to the adoption of pathological coping mechanisms such as substance abuse and increasing use of pornography. He considered that the offence is likely to be opportunistic and in the context of intoxication. In his opinion, the risk scenarios would potentially result in significant acute long‑term psychological harm and physical harm to any victims of his offending. The imminence of any offences is likely to depend on the presence of stress and increased illicit substance use. Once stressors reach a certain threshold, coupled with a failure of appropriate coping mechanisms, Dr Wynn Owen considered an offence may occur within weeks.
Dr Wynn Owen's conclusion was that Mr Vanderplas presents a high risk of future serious sexual offending if not subject to a restriction order under the HRSO Act. He considered that the most significant risk factors were the respondent's antisocial personality disorder, substance abuse, poor coping and limited interpersonal functioning. He noted that while Mr Vanderplas was cognitively able to learn and engage with treatment, it was not clear that he would do so or was motivated to do so. Dr Wynn Owen recommended that it was necessary to develop an accurate agreed chronology of the respondent's life, medical and psychiatric history and key life events which was validated by medical records and other official documents which could be shared with all treating and supervisory staff. He also recommended that Mr Vanderplas receive individual treatment with a forensic psychologist to address his outstanding treatment needs, in particular his interpersonal skills, his coping skills, emotional self-management and his exploration of offence specific issues such as a possible sexual deviance and cognitive distortions.
In oral evidence, Dr Wynn Owen emphasised the importance of the difference in the respondent's presentation to him and Dr Hall. Specifically, he stated that:[25]
Mr Vanderplas is quite able to fabricate a story about his life and himself – the way he functions, the things that he has done – in an interview and assessment situation – in a clinical situation, because it is also evidence in his medical records and in other situations. For example, the way that he has presented to Uniting WA in requesting an assistance dog because of his PTSD as a result of Gulf War issues. This is a problem with his self-report. Essentially, it means that it is very difficult to know whether he is telling the truth or not at any particular time. That unreliability goes to the core of a particular risk in managing him and suggests that any supervision regime will require the supervision regime itself to be the risk mitigation strategy, rather than relying on – particularly at this point – Mr Vanderplas himself.
[25] ts 138 – 139.
Dr Wynn Owen noted that this was a long-term issue for the respondent. In this regard, he referred to the 'horse kick head injury' story and expressed the opinion that it probably explains the way that the respondent has 'embraced alternative diagnoses as explanations for his behaviour'.[26] He considered there were indications throughout the respondent's history that he fabricated aspects of his life to meet his then current needs. This was part of the respondent's personality and was unlikely to change dramatically.
[26] ts 139.
Dr Wynn Owen expressed the opinion that this pattern of the respondent's behaviour was long-standing, was still a current issue that had not changed in the short term and was not likely to be changed in a short timeframe. However, under cross‑examination, Dr Wynn Owen agreed that the respondent's disclosure to both him and Dr Hall that some of the matters he had told them were fabrications was 'a definite starting point'.[27] Dr Wynn Owen noted that if the respondent's treating clinician is aware of the issue and has built a therapeutic relationship with the respondent, it would be possible to challenge the respondent quickly as to the veracity of information provided.
[27] ts 146.
Dr Wynn Owen also expressed the opinion that this pattern of behaviour was deployed by the respondent in a variety of situations, including to explain why things had occurred and as an alternative to accepting full responsibility for his actions.[28] Dr Wynn Owen explained the importance of honesty for the treating clinician as being:[29]
really essential because you can only treat what the person tells you. You can only, really, make any difference to somebody if they are completely honest about their emotional state at the time that something occurred, the way they thought about that thing and what actually occurred.
[28] ts 139 – 140.
[29] ts 140.
Dr Wynn Owen's opinion was that the respondent has a number of outstanding treatment needs in relation to both his sexual offending and his substance use. In particular, Dr Wynn Owen considered that it was important to not only understand the link between substance abuse and offending, but to be able to reflect on what caused the substance abuse and what alternative strategies could be put in place and where the respondent could turn when he recognised that his stress and use of substances was escalating.[30]
[30] ts 143 – 144.
Under cross-examination, Dr Wynn Owen agreed that the respondent's behaviour in prison over the last two years was a positive development, demonstrating a greater degree of self-management and evidencing his capacity to self‑manage.[31] He acknowledged that Mr Vanderplas' desire to be released and, if released, to stay in the community under a supervision order was likely to be a strong motivator.[32] Dr Wynn Owen agreed that Mr Vanderplas' abstinence from alcohol and the number of conditions that he would be subject to if released on a supervision order, including the requirement for individual treatment, would reduce his risk of re‑offending.[33]
Other assessments relating to Mr Vanderplas (s 7(3)(b))
[31] ts 148.
[32] ts 148.
[33] ts 162- 163.
The other assessments relating to Mr Vanderplas prepared for the purpose of this application were prepared by Dr Mandy Vidovich, Dr Ben Bannister, and Dr Dylan Galloghly. In addition, the court received reports from the respondent's community corrections officers.
Report of Dr Vidovich
Dr Vidovich conducted a neuropsychological assessment on Mr Vanderplas on 5 and 15 June 2020. Dr Vidovich assessed the respondent's intellectual functioning, attention working memory and processing speed, verbal skills, visual perceptual and constructional skills, learning and memory and executive abilities and behaviour.
Dr Vidovich's opinion was that:[34]
(a)Mr Vanderplas has areas of relative impairment across aspects of his attentional capacity, processing speed and executive abilities;
(b)these deficits are not inconsistent with a neurodevelopmental disorder such as ADHD;
(c)previously, weight has been given to Mr Vanderplas' subjective report of a brain injury when he was 17 or 18 years old, which is not reflected in his neuropsychological profile. His history suggests that behavioural and possible learning issues were noted during primary school;
(d)Mr Vanderplas' cognitive weaknesses are not of a degree that impedes his capacity to learn, respond to, or be able to implement information from treatment programs.
Report of Dr Ben Bannister
[34] Exhibit 1.2, p 1145 – 1147.
Dr Bannister, a forensic psychologist, prepared a proposed high risk serious offender management plan to assist with the identification of relevant treatment issues in the event that Mr Vanderplas was made subject to a restriction order.
Dr Bannister interviewed and assessed Mr Vanderplas on 29 June 2020 and consulted with Ms Comery, a senior community corrections officer with the Community Offending Monitoring Unit, in preparing his report.
Using the STABLE‑2007 assessment tool to identify outstanding treatment needs, Dr Bannister identified the respondent's dynamic risk factors as being: significant social influences; intimacy deficits; general self‑regulation; sexual self‑regulation; cooperation with supervision and substance use.[35]
[35] Exhibit 1.2, p 1154 – 1156.
Dr Bannister concluded that Mr Vanderplas continued to have outstanding treatment needs that required attention, including targeting the role that drugs and alcohol have in his sexual offending; understanding the dynamics of his substance use; improvement of his skills in maximising the establishment and development of successful interpersonal relationships, including intimate relationships; establishing the relevance of matters relating to his impulsivity; and the extent of any current sexual deviance.[36]
[36] Exhibit 1.2, p 1156.
Dr Bannister expressed the opinion that if a continuing detention order were made, the respondent's treatment would be case managed by his allocated psychologist.
Dr Bannister noted that in the event that Mr Vanderplas was released on a supervision order, Mr Vanderplas would 'receive psychological contact' to address his outstanding treatment needs as determined by his treating clinician. Further group treatment was not recommended, as an individualised approach was considered to be more appropriate to allow for a targeted approach to his specific needs and to ensure greater accountability.
Dr Dylan Galloghly
Dr Galloghly is a senior clinical and forensic psychologist employed by the Forensic Psychological Service within the Department of Corrective Services.
Dr Galloghly prepared a high risk serious offender treatment progress report in respect of Mr Vanderplas. In preparing his report, he met with Mr Vanderplas on 27 November 2020. He also discussed the respondent with Dr Kathryn Riordan, a senior forensic and clinical psychologist, Ms Jessica Gerace, a team leader at Uniting West and the Community Offender Management Unit.
During his interview, Mr Vanderplas expressed his frustration at being made subject to the HRSO Act and was despondent at still being in prison. At the time of the report, Mr Vanderplas had attended two sessions with Dr Riordan which were due to occur on a fortnightly basis. Dr Riordan reported that the respondent was generally not enthusiastic in the sessions and expressed the opinion that he did not need counselling. Mr Vanderplas informed Dr Galloghly that his sessions with Dr Riordan were his first of individual psychotherapy and that he knew it took time for a therapeutic relationship to form. He told Dr Galloghly that 'if I had of talked to someone earlier the offences (sexual) may not have occurred.'[37]
[37] Exhibit 4, p 3.
When asked about the veracity of some of the information he had previously given, particularly in relation to his military service and PTSD, the respondent said that this was 'a defence mechanism' to protect himself in the prison environment. In response to a question from Dr Galloghly about his understanding of the causal factors that led to his offending, Mr Vanderplas said 'If I knew that I could have prevented it from happening'.[38] He said that he was depressed prior to each of the offences, which was compounded by his abuse of alcohol, illicit substances and prescribed medication. He stated that some of these issues related to his loss of employment and low self‑esteem.
[38] Exhibit 4, p 4.
Dr Galloghly asked Mr Vanderplas about his alcohol and substance use and was told that the respondent had not used either since he was incarcerated. He said that he did not consider alcohol was a big problem for him and would drink socially if permitted but would abstain if required by the court. Dr Galloghly acknowledged that both the respondent's prison records and his self-reporting indicated that he had the capacity to abstain from substance misuse. However, Dr Galloghly considered the motivation was primarily extrinsic (in not wanting to return to prison) as opposed to intrinsic.
Dr Galloghly acknowledged that Mr Vanderplas was animated and energetic when he spoke about his academic interest in gaming theory and confirmed his intention to go to university to pursue this if he is released from prison.
Dr Galloghly's opinion was that Mr Vanderplas was motivated to engage in counselling in order to gain release but was ambivalent and possibly resistant to treatment. He considered that the current proceedings had required Mr Vanderplas to admit to lying about his past which was a critical development 'as authenticity and transparency are typically viewed as necessary factors for therapeutic gain.'[39] Dr Galloghly expressed the view that 'Mr Vanderplas is likely in the pre-contemplation to contemplation stages of change in that engaging in treatment has only recently been mandated.'[40] Dr Galloghly noted that the respondent has some insight into his sexual offending but does not understand why or how these matters contribute to his sexual offending.
[39] Exhibit 4, p 5.
[40] Exhibit 4, p 5.
Dr Galloghly's conclusion was that:[41]
Mr Vanderplas is a man that has been assessed as having significant personality issues and numerous treatment needs. He has engaged in individual counselling and reported an interest in working through personal issues and his offending. His engagement in treatment and interaction with others indicated that he can be initially cantankerous and irritable. These traits have likely been galvanised by the current legal proceedings and it is not unusual for offenders to be agitated when placed under an order at the end of their sentence. It therefore it usually takes a considerable amount of time for such offenders to settle into the therapeutic process whereby change might occur. This early phase of therapy may be more prolonged for Mr Vanderplas given his personality structure, issues with trust and overall defensiveness. While Mr Vanderplas appears to have the capacity to make behavioural change, significant changes in his personality are unlikely to occur.
[41] Exhibit 4, p 6.
Between the preparation of the report and the hearing before me, Mr Vanderplas attended a further four sessions with Dr Riordan. Prior to giving evidence at the hearing, Dr Galloghly had spoken to Dr Riordan and obtained updated information from her. His evidence was that:[42]
I wouldn't say there would be quantifiable progress per se, there's still, again, building the therapeutic relationship, looking at what treatment goals may be, what Mr Vanderplas might think would be part of a treatment plan moving forward, but also a lot of the content of the sessions has been, you know, filled up with issues about Mr Vanderplas being under this legislation, his possible pessimism about being released from prison and dealing with those sort of issues. I know they have spent one session going through his life history which was, I think, was outlined by Dr Wynn Owen as being a place to start and that they have done that. And they have also looked at issues like his interest in his gaming and his academic studies and really, seems to be still trying to figure out and feel out what would be, you know, agreed upon treatment goals and a treatment plan that Mr Vanderplas would – would be motivated to partake in.
[42] ts 170.
As at the date of the hearing, Dr Galloghly's views in respect of the respondent had not changed since writing his report.
Under cross-examination, Dr Galloghly agreed that Mr Vanderplas was both able to learn and willing to engage in the therapeutic process.[43]
Community Supervision Assessment Reports
[43] ts 171.
Ms Kimberly Comery is a senior community corrections officer with the Community Offender Monitoring Unit and was the initial community corrections officer assigned to the respondent. Ms Comery prepared a community supervision assessment report in August 2020 that was included in the books of materials filed with the court.[44] This report summarises the respondent's offending history, his prison behaviour, the programs he has undertaken in prison and a proposed community supervision plan.
[44] Exhibit 2, p 27.
The report notes that over the current period of his imprisonment, Mr Vanderplas received a significant number of warnings in relation to attending late for muster between 2012 and 2018. There were two other incidents of note in 2018. Ms Comery reported that Mr Vanderplas had not been involved in any formal incidents since 2018. She reported that prison staff reported that Mr Vanderplas is polite and respectful towards them and is making steady progress.
At the time of Ms Comery's report, there were no properties available for Mr Vanderplas under the Uniting WA supported accommodation program. Her report considered strategies to manage Mr Vanderplas' offending behaviours and the proposed conditions of any supervision order in the event such an order was considered appropriate. Given the ultimate decision I have reached, I do not intend to set out these conditions.
An updated report was prepared by Ms Emma Cashmore in December 2020. Ms Cashmore is a senior community corrections officer with the Community Offender Monitoring Unit and is the current community corrections officer assigned to the respondent. At the time of Ms Cashmore's report, a property had become available under the Uniting WA supported accommodation program.
A 'desktop spatial analysis' of the property was provided to Ms Cashmore by WA Police. The WA police identified a number of concerns in respect of the proposed accommodation, which is not unusual. These included the presence of a nursing home and a number of child care centres within a 2 km radius of the property, as well as a number of licensed premises and liquor outlets. There were families with children living in the area that had been the subject of domestic violence reports in the previous 12 months. The time estimated for police response, in the event there was an incident, is 10 to 15 minutes depending on tasking priorities. The WA Police raised significant concerns about the proposed accommodation and considered that the respondent's placement near any aged care facility carried significant risk.[45]
[45] Exhibit 4, p 16.
In her report, Ms Cashmore noted that Mr Vanderplas had informed her that he was uncertain whether he could continue working with his then current psychologist, although he knew that he required intensive intervention.
Information indicating whether or not Mr Vanderplas has a propensity to commit serious offences in the future - s 7(3)(c)
As Murray AJA stated in Director of Public Prosecutions for Western Australia v GTR,[46] 'propensity' in this context has the following meaning:
It 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.
[46] Director of Public Prosecutions for Western Australia v GTR [178] (Murray AJA).
It is clear from Mr Vanderplas' offending history that he has a propensity to commit serious offences of a sexual or violent nature.
Whether or not there is a pattern of offending behaviour - s 7(3)(d)
The State's application is based on two series of offences, where the respondent's victims were 83 years old, in respect of the 1995 offences, and 5 years old, in respect of the 2009 offences. Both of the victims were, prior to the offences, known to the respondent. The offences occurred when both victims were vulnerable and asleep in their beds at night or in the early hours of the morning. The offences occurred after the respondent had ingested significant quantities of alcohol and/or drugs.
Dr Hall expressed the opinion, which I accept, that there is no pattern to the respondent's offending behaviour. This was on the basis that it was not uncommon for serious sexual offences to occur at night in the victim's home. Dr Hall expressed the opinion that the respondent had committed very serious offences against the two victims but had not been 'a prolific sexual offender' which enabled him to express a view as to whether there was a pattern to his offending.[47]
Efforts to address the causes of offending behaviour - s 7(3)(e)
[47] ts 66.
The respondent's participation in courses to address the causes of his offending behaviour is summarised in each of the reports of Dr Hall and Dr Wynn Owen, as well as the report prepared by Ms Comery.
Specifically, Mr Vanderplas has participated in the Intensive Sex Offender Treatment Program and the Pathways Drug and Alcohol program.
Whether participation in rehabilitation programs have had a positive effect on Mr Vanderplas - s 7(3)(f)
During each of the programs that he participated in, Mr Vanderplas maintained a false narrative as to his background and PTSD. Specifically, these matters were proffered as a possible explanation for his offending. I accept Dr Wynn Owen's opinion that any apparent treatment gains are potentially invalidated by this false narrative.
I accept the views expressed by Dr Wynn Owen that Mr Vanderplas' participation in these programs has had minimal effect on him.
Each of Dr Wynn Owen, Dr Hall, Dr Bannister and Dr Galloghly emphasised the importance that Mr Vanderplas receive individual therapy. I accept Dr Galloghly's evidence that Mr Vanderplas is willing to engage with his treating psychologist.
The risk that, if not subject to a continuing detention order or supervision order, Mr Vanderplas would commit a serious offence and the need to protect the community from that risk - s 7(3)(h) & (i)
The State submits that, based on the respondent's criminal history and the reports that have been obtained, there is a need to protect the community from the risk of the respondent committing serious offences, and in the respondent's case, serious sexual offences, against vulnerable females in the community.
Consistent with the opinions of Dr Wynn Owen and Dr Hall, I accept that there is a high degree of risk that Mr Vanderplas will commit a serious offence if a restriction order is not made. The risk of serious offending by Mr Vanderplas carries with it the risk of serious harm being suffered by the victims of the reoffending. The community needs to be protected from this risk of harm.
Is the respondent a high risk serious offender?
On the basis of the evidence before me, I am satisfied to a high degree of probability that the respondent is a high risk serious offender and that it is necessary to make a restriction order in respect of Mr Vanderplas to ensure the adequate protection of the community from an unacceptable risk that he will commit a serious offence. In reaching this decision, I have had particular regard to the history of respondent's offending, his outstanding treatment needs and the opinions of Dr Wynn Owen and Dr Hall. In my view, the likelihood that Mr Vanderplas will commit further serious offences is such that the community cannot be adequately protected unless a restriction order is imposed.
Which of a continuing detention order or a supervision order should be made?
Having decided that Mr Vanderplas is a high risk serious offender, it is necessary to determine whether he should be detained pursuant to a continuing detention order or released into the community pursuant to a supervision order. Before I can make a supervision order, I must be satisfied on the balance of probabilities that Mr Vanderplas will substantially comply with the standard conditions of a supervision order and that the proposed conditions will provide adequate protection of the community against the risk that he will commit a serious offence.
In this case, there are four factors that weigh heavily against a supervision order. The first of these is that Mr Vanderplas has unmet treatment needs. While Mr Vanderplas has participated in two programs, it is unclear, for the reasons that I have set out above at [123] ‑ [125]; whether he made any substantial gains from his participation in these programs. He has only just commenced individual therapeutic sessions and it is unclear whether, at this stage, he has made any substantial gains from these sessions. At present, Mr Vanderplas is still establishing a therapeutic relationship with his treating clinician and setting the treatment goals and a treatment plan. At this stage, he has outstanding treatment needs, particularly in relation to the risk factors of serious sexual offending and substance abuse.
While I accept that Mr Vanderplas has abstained from alcohol and substance use in a custodial setting, it is unclear whether this will be maintained in a community setting. In this regard, I note that he has expressed the view that he does not consider he needs to abstain from alcohol, although he would do so if it was a requirement of the order.[48]
[48] Exhibit 1.2, p 1183 – 1884.
Counsel for the respondent drew to my attention the fact that when Mr Vanderplas was released into the community in 2007, it was without any form of supervision. If he was released on a supervision order, any order would contain requirements for urinalysis testing which would pick up any substance use at an early stage. While I accept that the urinalysis testing will assist in the management of this risk, I accept the evidence of Dr Wynn Owen that it is necessary for the respondent to understand what has caused him to misuse illicit substances and alcohol in the past, which is a factor common to his previous offending, so that he can put in place appropriate strategies to manage this risk.
The second factor is the respondent's PCL‑R score which is indicative of psychopathy. I accept the evidence of Dr Hall and Dr Wynn Owen that Mr Vanderplas' score on the PCL‑R is 25 or more and that it is likely to take longer for Mr Vanderplas to establish a therapeutic relationship with his treating clinician and for treatment gains to occur. I accept that Mr Vanderplas is both able to learn and motivated to learn so that he can be released on a supervision order.
The third factor is the lack of social supports that Mr Vanderplas has in the community. This means that any supervision of Mr Vanderplas in a community setting will be dependent on his honesty and reliability in the information he provides.
The fourth factor is Mr Vanderplas' longstanding lack of honesty and unreliability in self‑reporting, which he has only relatively recently accepted. As set out in the reports of each of the experts, Mr Vanderplas has, for some time, constructed a false narrative about his history. The two most notable examples are the head injury Mr Vanderplas said he sustained from a horse kicking him in his late teens or early twenties, which is not supported by the medical evidence, and his self‑reporting of military service (including special operative roles that he was unable to disclose as he was bound by the Official Secrets Act) and PTSD. I accept the evidence of Dr Wynn Owen that Mr Vanderplas' lack of honesty and unreliability has become habituated and is now part of his personality. For this reason, it is likely to take a period of time and therapeutic intervention to address this.
I accept that Mr Vanderplas has made significant efforts over the past two years, which provide some evidence of his ability to comply with a supervision order. Most notably, there have not been any prison issues over this period of time and he has, albeit only recently, accepted that the narrative he has constructed about his life is false. However, Mr Vanderplas' unmet treatment needs are such that I am not satisfied on the balance of probabilities that, if released on a supervision order, he would substantially comply with the standard conditions. This is principally because I am not satisfied that he would not commit a serious offence during the period of the order. Until Mr Vanderplas has had the opportunity to have real gains from the therapeutic intervention that has only relatively recently commenced, I am concerned that there is a risk that once he is in the community, he will relapse into substance abuse leading to reoffending. Specifically, it is essential that the respondent gain insight into what stressors have previously caused him to relapse into substance abuse and to develop and implement strategies to recognise and manage this.
I am also not satisfied that at this stage a supervision order would provide adequate protection for the community from the risk that the respondent would commit further serious offences. In my view, on the evidence before me, there is a high risk that Mr Vanderplas will not be open and honest with his community corrections officer. Unless the respondent is open and honest, the risk that the respondent will commit further offences of the types the respondent has previously committed, namely serious sexual offending, will remain high. The degree and nature of the risk is such that there are currently no conditions that can adequately protect the community.
Future treatment needs
As specifically set out in s 26 of the HRSO Act, a continuing detention order is an order that the offender be detained in custody for an indefinite term for control, care or treatment.[49] The objects of the Act are to provide for the detention or supervision of high risk serious offenders to ensure adequate protection of the community and victims, and to provide for the continuing control, care or treatment of high risk offenders.[50] Where a continuing detention order is made, the HRSO Act provides that periodic reviews will occur after the end of the first year and then every two years after that time.[51]
[49] HRSO Act, s 26.
[50] HRSO Act, s 8.
[51] HRSO Act, s 64.
The order that I am required to make under the HRSO Act is depriving Mr Vanderplas of his liberty, not for something that he has done, but for something that he might do. For this reason, Mr Vanderplas' treatment needs should be addressed to maximise the prospects that he will be released at the first review date. Although Mr Vanderplas had been imprisoned in Western Australia for almost the entirety of the last 26 years, until the application for a restriction order was made, there was no significant effort to address his unmet treatment needs. Mr Vanderplas only commenced individual sessions after the initial hearing of this application was adjourned to enable these sessions to occur.
As was noted by Hall J recently in the State of Western Australia v Pas [No 3]:[52]
It might be thought that a better utilisation of public resources would be to identify the need for such treatment at an earlier stage. If the respondent's treatment needs had been addressed earlier in his sentence there may have been a possibility that he would have been suitable for release on a supervision order at the end of his sentence . It is a false economy to deprive offenders of the treatment that they need if this results in an application for further detention under the HRSO Act. The further loss of liberty for the individual and the public cost of further detention may be avoided if the resources used to make an application were deployed at an earlier stage.
…
There is a risk that once a detention order has been made the prison authorities will default to treating the respondent as if he is simply another prisoner serving a sentence. A person detained under the HRSO Act is not a prisoner and should not be treated as such. One of the reasons such a person is detained is to receive treatment.
[52] State of Western Australia v Pas [No 3] [2021] WASC 117 [109], [112] (Hall J).
Every effort should be made to ensure that Mr Vanderplas continues to receive individual counselling of one hour's duration at least fortnightly with a psychologist with whom he is able to build a therapeutic relationship. It is imperative that this continues so that the time before the first review can be used effectively to give Mr Vanderplas the best prospects for release on a supervision order.
I also consider that it is imperative that an accurate chronology of the respondent's life, medical and psychiatric history is prepared and validated by medical records (which are not dependent on the self-reporting of Mr Vanderplas) and other official documents. This record can then be provided to all treating and supervisory staff to assist in the treatment and supervision of Mr Vanderplas.
Order
For these reasons, I order that the respondent be detained in custody for control, care and treatment pursuant to s 48(1) of the High Risk Serious Offenders Act 2020 (WA).
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
HW
Research Associate to the Honourable Justice Hill
10 JUNE 2021
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