THE STATE OF WESTERN AUSTRALIA -v- CARTER [No 4] [2021] WASC 186 (11 June 2021)

1. On a review under the HRSO Act the court has to consider: first, whether the person remains a high risk serious offender; and, second, if so whether the appropriate order is to continue the detention order or make a supervision order.
2. An offender is a high risk serious offender if the court is satisfied by acceptable and cogent evidence and to a high degree of probability that it is necessary to make a restriction order in relation to the offender to ensure adequate protection of the community against an unacceptable risk that the offender will commit a serious offence.[3]
3. The State bears the onus of satisfying the court that an offender is a high risk serious offender. In considering that issue the court must take into account the matters listed in s 7(3) of the HRSO Act.
4. If the court is satisfied that the offender is a high risk serious offender the remaining issue is whether a continuing detention order or a supervision order is the appropriate order. A court cannot make a supervision order in relation to an offender unless it is satisfied, on the balance of probabilities, that the offender will substantially comply with the standard conditions of such an order. The standard conditions are those contained in s 30(2) of the HRSO Act and include reporting, supervision and electronic monitoring. The onus is on the offender to satisfy the court that he will substantially comply. In deciding whether to make a continuing detention order or a supervision order, the paramount consideration is the need to ensure adequate protection of the community.[4]
5. The HRSO Act allows for periodic reviews of a continuing detention order. Such reviews allow for the possibility of change. If the offender is found to no longer be a high risk serious offender the continuing detention order must be rescinded. If the offender remains a high risk serious offender behavioural changes or improvements in management options may make a supervision order a viable possibility.

1. At the hearing of this review application I received in evidence a book of materials dated 5 November 2020,[5] a supplementary book of materials dated 31 May 2021[6] and an email chain containing information from Ms Aimee Goode of the Department of Corrections.[7] The book of materials contained psychiatric reports prepared by Dr Peter Wynn Owen, treatment progress reports from Ms Julia Morrison and community supervision assessment reports from Ms Brook Mandolene and Ms Trudy Hill. The materials also included prison records, medical records, previous judgments and previous treatment reports.
2. At the hearing, oral evidence was received from Dr Wynn Owen, Ms Morrison, Ms Hill and Ms Goode. The respondent did not elect to give or adduce any evidence.

1. Dr Wynn Owen conducted a risk assessment using a range of actuarial tools and clinical judgment frameworks.[8] It is unnecessary to describe these in detail as the nature and degree of the risk of recidivism remains high unless either a detention order or supervision order is made. That is, the respondent remains at a high risk of committing further serious offences unless he is subject to a restriction order (either a continuing detention order or a supervision order).
2. The real issue was whether the risk could be managed and reduced to an extent that provides adequate protection to the community if the respondent is placed on a supervision order. In relation to manageability, one of the tools utilised by Dr Wynn Owen identified a number of risks that needed to be taken into account in management planning. These were that the respondent has problems with planning, supervision and treatment. These problems are principally based on the respondent's major mental illness (that is, his schizoaffective disorder) and his lack of insight in regard to that illness and the need for treatment.
3. Prior to the hearing an occupational therapist had conducted a functional capacity assessment in respect of the respondent.[9] Dr Wynn Owen noted that this assessment indicated that the respondent had a range of issues and support needs and identified the level of support that was required to address those needs. That report concluded that the respondent needed 24 hour 7 day a week support on a one-on-one basis to provide assistance with daily living. This would include assistance with cleaning, household maintenance and everyday living skills (such as prompting to take medications, cleaning, cooking and personal hygiene). The report highlighted the importance of support in the transition from a structured prison environment to a much less structured independent or semi-independent living arrangement in the community. It also identified that although the respondent was currently in a self-care unit within the prison, he required ongoing prompting and assistance from staff and other inmates in a range of areas including personal hygiene, meal planning and preparation. Dr Wynn Owen stated that the recommended level of support was consistent with the respondent's identified deficits. However, the report did not specifically address psychosocial impairments, which was an additional area of need for the respondent.
4. Dr Wynn Owen noted that there had been a letter written to the NDIS by the respondent's treating prison psychiatrist, Dr Natalia Bilyk.[10] This letter (which was also included in the book of materials) identifies additional areas of psychosocial function impairment secondary to schizoaffective disorder, in particular impairments in the area of communication, social engagement and motivation. These impairments are consistent with Dr Wynn Owen's examination of the respondent.
5. In the view of Dr Wynn Owen, the respondent is currently compliant with his treatment regime, however he has, at best, only partial insight into his illness and the need for his medications. The respondent has reported that he takes the psychotropic medications that are prescribed because he believes he is legally required to do so. In fact this is not the case as he is not an involuntary patient under the Mental Health Act. He has also indicated a desire to cease the medications. These views are at odds with the fact that the combination of medications that the respondent is presently receiving appear to be very effective and his mental illness is presently viewed as being in remission. This represents a notable improvement from past reviews. However, the respondent's condition is of a chronic and lifelong nature and will almost certainly recur if treatment is discontinued.
6. One matter that was of concern to Dr Wynn Owen was that the respondent gave conflicting answers to questions regarding sexual thoughts and fantasies. Whilst at one stage he said such thoughts were infrequent, at another stage he said that there were times where he was bombarded with sexual fantasies. This caused Dr Wynn Owen to recommend use of a hormonal anti-libidinal medication. The respondent, after being advised of the potential side effects of such medication, declined to take it. However, he did agree to commence taking a selective serotonin reuptake inhibitor (SSRI) antidepressant medication, Sertraline, which has also been shown to have anti-libidinal effects. At the time of the review hearing the respondent had been taking Sertraline for several months. That was sufficient time for it to have produced the desired effect but there had been no subsequent assessment which could provide some evidence that the effect had been experienced by the respondent.
7. Dr Wynn Owen was concerned that the respondent's social and psychosocial impairments meant that he was unlikely to cope with life in the community without a significant degree of support. Without such support he would experience stress, may resort to illicit drugs and may become non‑compliant with his medications. This would have significant consequential effects on raising the risk of reoffending. In these circumstances it was important that the respondent have assertive management of his mental illness and support workers to assist him with daily living.
8. Dr Wynn Owen noted that the respondent had been accepted as a client by the Community Forensic Mental Health Service. This would give him access to a consultant psychiatrist, mental health nurses, psychologists and social workers. This would not constitute regular support with daily living and would likely represent brief home visits by a nurse and occasional consultations with a psychiatrist.[11] Medications could be taken under supervision and if there was a failure to comply, consideration could be given to putting the respondent on a community treatment order.
9. As regards daily living support, Dr Wynn Owen noted the requirement for 24 hour 7 day a week one-on-one care recommended by the occupational therapist for disability purposes. If such care was provided it would also have incidental benefits for the containment of risk, even if that were not its primary purpose. This is because assistance to the respondent in negotiating daily life would reduce stress, ensure compliance with treatment and reduce the risk of decompensation. Dr Wynn Owen estimated that support at a level of four to five hours per day would be effective in reducing the risk of reoffending to an acceptable level. Stable accommodation was also a necessity.
10. In Dr Wynn Owen's addendum report of 23 May 2021, he concluded as follows:

There is no change to the risk assessment of November 2020 arising from the passage of time since the assessment was completed or from the additional information provided. Stable accommodation and the supports outlined in the occupational therapy report, augmented by medical/psychiatric oversight through the Community Forensic Mental Health team, will provide Mr Carter with his best opportunity for managing in the community on a supervision order should that be the court's disposition. A lower level of support than that outlined would be a cause for concern as Mr Carter will be at risk of decompensation, an acute relapse of illness if under protracted stress on release, this will in turn elevate his risk of future offending.[12]

1. Ms Morrison is a senior counselling psychologist with the Department of Justice. She had interviewed the respondent on a number of occasions for the purpose of producing a report regarding his treatment progress.[13] It is unnecessary to set out treatment that occurred prior to the last review. That treatment is summarised in the judgments relating to those previous reviews.
2. Since the last review, the respondent has continued to engage in individual counselling treatment with a psychologist on a fortnightly to monthly basis. The treating psychologist reported that the respondent's mental health had gradually improved and stabilised throughout 2019 and 2020. Some of the sessions had aimed at assisting the respondent to develop insight into his mental health and the management of it.[14]
3. The respondent has become more accepting of his mental health diagnosis and has developed better insight into his need for symptom management. He has become more agreeable in relation to the taking of prescribed psychiatric medications. However it was noted that on one occasion when asked about his medication regime, the respondent had suggested that whilst he agreed with its efficacy and had a broad understanding of his diagnosis, he would likely stop taking the medication when any supervision order is completed. He believed that he was fine previously without medication and that his problems were more related to drug use and a chaotic lifestyle rather than illness. He expressed the desire to recover certain features of his personality which he believed the medications had suppressed.
4. The treating psychologist had noted that during the two year period since the last review, no psychiatric symptoms had been evident. A nurse had also worked consistently with the respondent to assist him in engaging with mental health services and managing his medications.
5. Ms Morrison stated in her report that the respondent appears to have made progress in treatment over the past two years and impressed as having a sound understanding of the factors contributing to his sexual offending behaviour. He identified risk factors such as drug and alcohol use, the use of pornography, deviant sexual thoughts and fantasies, masturbation to thoughts of his victims and a sense of entitlement in getting his sexual needs met regardless of the victim's consent. He was also able to provide a reasonable summary of his risk management plans and strategies. However, he tended to revert to a generalised and learned manner of responding when discussing these matters. This may be related to anxiety in interview situations and a desire to recall adequate information in order to express himself effectively.[15]
6. Ms Morrison said that impression management may have been a factor in the past but in interviews with her for the purposes of this review, the respondent appeared to be less concerned about how he was being perceived. He was able to detail his offences calmly and openly. He acknowledged that he does not like to view himself as a sex offender and finds this shameful. He suggested that he had to come to terms with this and to 'stop fighting the system'. He displayed increased acceptance and willingness to take responsibility and this may be attributable to his stable mental health and greater clarity of thought.
7. Ms Morrison said that the respondent impressed as having achieved more emotional awareness and an improved ability to tolerate negative emotional states. His growing insight may be related to the presence of consistent and strong therapeutic alliances with his treating psychologist and mental health nurse. This appears to have contributed to a more authentic and sustained engagement in treatment and a better ability to express himself.[16]
8. The respondent's accounts of the goals he has set for the future represented appropriate planning and indicated an increased awareness as to what might constitute a positive lifestyle. He acknowledged that he would need support in order to create this, including gaining employment and supported accommodation prior to being able to live on his own. Ms Morrison suggested that this may represent a shift in the respondent's willingness to accept the implications of his mental illness and to acknowledge the areas in his life where he lacks capacity and needs support. Ms Morrison states that the respondent appears to be 'at the beginning stages of developing his social skills and this may be an area where he needs to increase his confidence'. He has acknowledged that he finds it difficult to meet and get to know new people.
9. The respondent's future treatment needs include consolidation of his risk management plan. He appears to have responded positively to rehearsal and practice in relation to risk management. A continuation of this approach will assist with skill development and recall. In her oral evidence, Ms Morrison agreed that this could be characterised as the maintenance of existing gains. She also suggested that further focus on self-management and social skills development would assist the respondent to consolidate his ability to maintain positive mental health and symptom management. An increase in social supports would assist him to reduce risk factors related to social isolation and access support at times of heightened stress or anxiety.[17]
10. Whether the respondent remains on a continuing detention order or is released on a supervision order, he will continue to have access to a treating psychologist from the forensic psychological service. There has recently been a change in the psychologist who has been counselling the respondent. Over a period of five years he had built up a positive and trusting therapeutic relationship with a psychologist. A new psychologist has recently taken over that role and Ms Morrison said that an initial meeting with the new psychologist had been positive.
11. In conclusion, Ms Morrison said that many of the gains arising from the most recent period of treatment are yet to be tested outside the prison environment. Within the prison environment there are limited opportunities to experience situations of increased risk in relation to drugs and mental health relapses and sexual offending. Furthermore, the respondent's psychiatric medications provide an additional externalised control. He has demonstrated a willingness to disclose and monitor his sexual arousal and behaviour on a consistent basis which would suggest positive progress and that he is better positioned to do this in the future in order to reinforce his learning and maintain his approach to risk management.

1. Ms Hill is a Senior Community Corrections Officer and is currently a Community Corrections Officer assigned to the respondent. She had produced an updated community supervision assessment report for the purposes of this review.[18]
2. Ms Hill confirmed that supported accommodation through Uniting West was available to the respondent. It should be noted that 'supported' in this context does not mean that the accommodation comes with any dedicated support worker. It simply means that Uniting West will provide the accommodation and assistance in moving into it. There is also a possibility of Uniting West providing some short term assistance with reintegration. This could amount to between 10 and 20 hours of support worker time per week. It should be emphasised that this is not disability related care and would not address the respondent's mental health related issues. Furthermore, Uniting West can make no commitment in this regard until it is known what disability care the respondent can access through the National Disability Insurance Scheme (NDIS).[19]
3. The accommodation has been assessed and appears to be suitable. The proximity of schools, day care centres, refuges and other risk related locations is no greater than for other accommodation that has been used for this purpose. If the respondent cannot take up this opportunity in the short term he will lose it and will go to the bottom of the list of those seeking supported accommodation.
4. Ms Hill also gave evidence that the respondent has few family or social supports in the community. There has been recent contact with a daughter but it cannot be assumed that she would provide any support at this very early stage. The respondent has expressed a desire to work and to engage with a church group. However, he has limited employment skills and whether his hopes in these respects are realistic is difficult to assess.
5. A draft of proposed supervision order conditions was annexed to an earlier community supervision assessment report. Those conditions include reporting, attendance at programs, restriction on contact with victims, restriction on the use of illicit drugs and alcohol and a curfew. The conditions are numerous and onerous, but are believed to be necessary to adequately manage the risk of re-offending.

1. Ms Goode is a team leader at the Community Offender Management Unit of the Department of Justice. She has been responsible for coordinating efforts to obtain funding for the respondent from the NDIS. Ms Goode prepared an updated report for the review hearing.[20]
2. Ms Goode said that the respondent had been approved for a limited level of funding, which did not relate to the provision of a support worker. Efforts in this case (and other similar cases) to obtain funding for core support services were met with the difficulty that the National Disability Insurance Agency (NDIA) has stated that it will not provide such funding whilst a person is detained in prison and will not provide predictive funding on the assumption that the person will be released unless a definite release date can be provided. Although inconsistent answers have been given on occasions, more recently this position has been maintained.[21]
3. Funding was released by the NDIA to enable a functional capacity assessment report to be undertaken by an occupational therapist. That report was referred to earlier in the summary of the evidence of Dr Wynn Owen. The purpose of that report was to determine the nature of the respondent's functional deficits and the level of support that he would require to live in the community. The obtaining of this report appeared to represent some progress towards a resolution.
4. Ms Goode said that after that report was obtained she and her colleagues sought to obtain some indication from the NDIA as to the level of support that would be provided to the respondent given that the report recommended core support of a 24 hour 7 day one-on-one carer. The initial response was that the conclusions in the report were not accepted, even though that report had been commissioned by the NDIA. No reason was advanced at that time as to why the recommendations were not accepted. There were also problems in that a support planner engaged by the NDIA did not initially have access to the report.[22]
5. Very shortly before the review hearing a meeting was held at which the support planner was in attendance. The planner advised Ms Goode that the report was not now disputed and a further report would not be required. He also said that he would be willing to support the provision of a support worker for 15 hours per week, though the basis for that figure was not explained and fell significantly below the amount of support recommended in the report.[23]
6. Ms Goode said that the 15 hour figure has never been confirmed in writing and that she understood that this was only a possibility and not an assured outcome. She said the process, as she understood it, was that no funding for core support (that is support workers) would be approved until a definite release date had been set by the court. If a release date was set a 'change of circumstance' application could then be submitted. The NDIA would determine within 14 days whether that change of circumstance application would be considered. If it was accepted for consideration, an actual determination of that application would occur at some unknown time thereafter.
7. In another case in which there had been evidence of a greater degree of confidence that the change of circumstance would be accepted and dealt with expeditiously, a supervision order had been approved by the court and a release date set at 21 days. However, Ms Goode said that the change of circumstance application had not been dealt with in that timeframe and this had necessitated a contingency plan to deal with that offender's release. In that case, some limited interim funding had been obtained but there now appeared to be a real risk that an adequate level of funding for continued support may not be forthcoming. In those circumstances, Ms Goode said that she could not express any degree of confidence that, if the court determined that a supervision order in the respondent's case was appropriate and set a release date, an appropriate level of funding for core support would necessarily be funded by the NDIS. Nor was it even certain that the assessment process would be completed within that timeframe.[24]
8. Ms Goode said that some other options had been raised as possibilities. One was a process known as a positive behaviour support assessment. As Ms Goode understood it, this involved the NDIA obtaining a report from a person who had assessed the respondent's functional deficits and how these would impact on his relationship with any carers. It is understood that a person who can conduct such a review has been identified but has said that such reviews can take up to six months. At a minimum a review could be done within two to three months. Ms Goode said that she understood that if such a review was undertaken it could be used to support a change of circumstance application whilst the respondent remained in custody and may result in some core funding being provided before he was released. However, there was considerable uncertainty in this regard and the amount of core funding would not relate to the respondent being in the community on a supervision order. It would likely only cover any costs associated with the need for support workers to build up rapport with the respondent whilst he was still in custody.[25]

1. I am satisfied that the respondent remains a high risk serious offender. The level of risk has not significantly changed since the last review. The uncontested expert evidence is that a restriction order is necessary in the circumstances of this case.
2. However, there have been a number of changes that are relevant to the issue of whether that risk can be managed appropriately in the community. Amongst these are the treatment gains made in psychological counselling, the stabilisation of the respondent's mental illness and the availability of suitable accommodation. These factors improve significantly the respondent's prospects of being released on a supervision order. The major impediment, however, is the lack of assured funding for support workers. Without a minimum level of daily support there is a risk that the respondent would not cope with the pressures of living in the community, would become non-compliant with his medication, would decompensate and become ill, may resort to alcohol and illicit drugs and, as a result, would be at higher risk of reoffending. Accordingly, without having at least four to five hours of support per day, the risk of reoffending could not be adequately reduced and the protection of the community could not be ensured.
3. The obvious source of funding for core support is the NDIS. The respondent has a very serious chronic mental illness which affects his functional capacity. There would seem to be little doubt that he qualifies for assistance under the scheme. However, it appears that there is an inflexible policy not to assess a person who is detained in prison unless a certain release date is set by the court. In the case of prisoners who are serving a finite sentence it may be possible to provide a release date. However, this policy creates an impossible barrier in the case of an offender dealt with under the HRSO Act. Under the HRSO Act, the court cannot approve a supervision order unless satisfied that the risk of reoffending can be reduced to a level consistent with adequate protection of the community. In a case such as the respondent's, that means that the court must be assured that the support necessary to reduce that risk will be provided.
4. Of course the NDIA is not concerned with the risk of reoffending, its concern is with the provision of disability services. However, the two areas are not mutually exclusive. It is likely that if the respondent's disability needs are met to the recommended level this would also produce, as an incidental benefit, a reduction in the risk of re-offending. There appears to be some concern within the NDIA that the support sought for the respondent is related to re-offending risk and not disability support. With all due respect, that concern seems to be ill‑founded and fails to appreciate that it is the respondent's disability (his mental illness and attendant deficits) that is one of the factors contributing to risk. Other contributors to risk are being addressed by a range of supports from other service providers, such as the Department of Justice, Uniting West and Community Mental Health Services. But the contribution required from the NDIS remains critical.
5. The fact is that unless the policy of the NDIA changes, the respondent's disability needs will continue to be met by the prison system. This is in neither his interests nor the public interest generally. If adequate core support is funded and made available for the respondent the likelihood is that he can be released on a supervision order. The refusal to assess him for such support means that he must continue to be detained in a prison.
6. Although there is a possibility that support services might be provided by the NDIS if a release date was set (that is a supervision order was approved), there is very considerable uncertainty as to whether or when that could occur. The level of uncertainty is such that I can have no confidence that if released the respondent would have the support the needs to ensure that his mental illness remains well‑managed. The consequence of this for the risk of re-offending is such that I cannot be satisfied at this time that the community would be adequately protected by a supervision order.
7. For these reasons it was not possible to make a supervision order and at the conclusion of the review hearing I affirmed the continuing detention order.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.

[1] The State of Western Australia v Carter [2016] WASC 374; [2018] WASC 420.

[2] Director of Public Prosecutions (WA) v Carter [2015] WASC 413.

[8] Exhibit 1, 172 - 186; Exhibit 2, 29 - 33.

[13] Exhibit 1, 134 - 148; Exhibit 2, 26 - 28.