Attorney-General v Carpenter[2008] QSC 225

SUPREME COURT OF QUEENSLAND

LYONS J:

The application

[1] Harold James Carpenter is 60 years old and is currently serving a 20 year sentence for rape which was imposed on 15 February 1989 by Dowsett J.  His remitted release date is 23 September 2008.  His current incarceration is his third period of imprisonment for rape having previously served periods of imprisonment in both New South Wales and South Australia.  The first rape conviction was in 1973 and he was sentenced to three years and 10 months in prison.  His second incarceration for rape attracted a substantial penalty of 10 years imprisonment.  He has also been charged with rape on at least two other occasions; one charge proceeded to trial where he was found not guilty and the other charges lapsed whilst he was incarcerated.  All the rapes have been characterised by the use of violence. 

[2] Mr Carpenter also has an extensive criminal history dating back to the age of 12.  This history includes crimes against property, assault against persons, sexual offences, drug offences, motor vehicle offences and possession of weapons.  He was in youth detention for six years from the age of 12 to 18 with eighteen months in the security section.  It would appear that he has spent in the vicinity of 37 years of the last 48 years in detention predominantly for the rape offences. 

[3] The Attorney-General seeks an Order that the respondent be detained for an indefinite term pursuant to s 13(5)(a) of the Dangerous Prisoners (Sexual Offenders) Act 2003 (Qld) (“the Act”).  In the alternative, a supervision Order under s 13(5)(b) of the Act is sought.

[4] On 15 May 2008, a risk assessment Order was made under s 8 of the Act requiring the respondent to undergo psychiatric examinations by two psychiatrists; Dr Joan Lawrence and Dr Donald Grant.

The requirements of the Act

[5] The objects of the Act are stated in s 3 as being:

“(a)To provide for the continued detention in custody or supervised release of a particular class of prisoner to ensure adequate protection to the community; and

  (b)To provide continuing control, care or treatment of a particular class of prisoner to facilitate their rehabilitation.”

[6] For the purpose of this application a prisoner includes a person who is detained in custody, serving a period of imprisonment for a serious sexual offence.  That term is defined as an offence of a sexual nature, whether committed in Queensland or outside Queensland, involving violence or against children.

[7] Section 13 of the Act provides for the making of a continuing detention Order or a supervision Order.  Before an Order can be made pursuant to this section the court must be satisfied that the prisoner is a serious danger to the community in the absence of a Division 3 Order because there is an unacceptable risk that the prisoner will commit another serious sexual offence if he is released from custody or released without a supervision Order being made.  Furthermore, s 13(3) provides that a court may only make a finding that a person is a serious danger to the community if the court is satisfied by acceptable, cogent evidence.  In Attorney-General v Van Dessel[1] White J stated that what is at stake is a prisoner’s fundamental legal right to unfettered personal liberty on the expiration of his term of imprisonment.  The serious nature of the inquiry is emphasised in the Act by the requirement that a court only make a finding that a person is a serious danger to the community if it is satisfied to a “high degree of probability”.

[8] A continuing detention Order is subject to periodic review.[2]  A supervision Order is made for a definite term.[3]  In determining whether to make a detention Order or a supervision Order, s 13(6) provides that the paramount consideration is the need to ensure the adequate protection of the community.

[9] Section 13(4) of the Act sets out the matters to which the court must have regard in determining whether a prisoner is a serious danger to the community in the absence of a Division 3 Order:

●the reports prepared by the psychiatrists;

●any other medical, psychiatric, psychological or other assessment relating to the prisoner;

●information indicating whether there is a propensity on the part of the prisoner to commit serious sexual offences in the future;

●whether or not there was a pattern of offending behaviour;

●efforts to address the cause or causes of the prisoner’s offending behaviour, including participation in rehabilitation programs;

●whether the participation in the programs has had a positive effect on the prisoner;

●the prisoner’s antecedents and criminal history;

●the risk that the prisoner will commit another serious sexual offence if released into the community; and

●the need to protect the members of the community.

[10] Pursuant to s 13(7) of the Act the Attorney-General has the onus of proving that a prisoner is a serious danger to the community.

Mr Carpenter’s personal antecedents

[11] I accept that Mr Carpenter came from an abusive family background and was physically and sexually assaulted by family members during his childhood.  When he was placed in care he was then exposed to abuse in a juvenile detention facility, including sexual abuse by staff members.  He had an extremely disruptive pattern of early schooling and performed poorly in the education system, with significant truanting and education problems. 

[12] Throughout his life he has had a disruptive history of relationships, with limited relationships with his family of origin.  He has had multiple relationships with a number of women over the years and states he has fathered two children.  He has some limited contact with his son who lives in Newcastle but has had no contact with his daughter since she was 17 or 18 and he has no support from his siblings or family of origin.  The history which Mr Carpenter has given to the psychiatrists indicates that whilst he appears to be able to form intimate relationships, and has done so on a number of occasions including during his previous term of imprisonment, he is unable to sustain these relationships for any length of time.  He states the relationships have “…gone off the rails” every time.[4]  It seems that Mr Carpenter had a previous marriage to a woman called Leanne whom he married in 1978 while in prison but that the marriage broke up after she told him she had been unfaithful with his brother.

[13] There is a consistent history from Mr Carpenter and from the collateral information that alcohol abuse has been a significant factor in many of his crimes and he has also had a history of drug abuse particularly amphetamines.

[14] It is clear that during his time in prison, Mr Carpenter has been a model prisoner for most of this period and has significantly contributed to the lives of other prisoners.  He has achieved recognition for his work within the prison system and has also achieved significant educational goals.  Mr Carpenter is obviously highly functional within the prison system.  He stated to the psychiatrist, Dr Harden, that prison had been his life and “...there has never been anything frightening or scary about prison for me sadly.”[5]

Criminal history

[15] The relevant criminal history is set out as follows:

Current offence

[16] The circumstances surrounding the offence for which he is currently jailed are that on 11 June 1988, the female complainant was waiting for a taxi to go to a hotel in Townsville when Carpenter stopped to offer her a lift stating, “Hey, I’m harmless.”  He did not drive her to her destination however but drove around for a while and ultimately turned off onto a dirt track leading into the bush, where the car became bogged.  He then punched the complainant in the stomach, indecently assaulted her and raped her.  He then walked her to a friend’s house.  When a car passed and the complainant attempted to call for help, he punched her in the face.  On arriving at the house, Carpenter indecently assaulted and raped her again.  He then got into a taxi with her, taking with him items he had stolen from the house.  In sentencing him on 15 February 1989 Dowsett J observed:

“I am unable to deal with this offence on the basis other than it is a very serious one.  Substantial violence was offered to the victim.  At least two incidents of intercourse occurred, oral penetration occurred, she was picked off the street.  You inveigled yourself into a position of trust with her.

Your record is a very bad one. Two previous cases of rape, including one for which you were imprisoned for a period of ten years in 1977.  As best I can piece together from your record you must have served about six years, I would think.  There are then a number of relatively minor offences in 1983 and 1984.  In 1984 you were sentenced to five years for break, enter and steal, going armed with intent; and three years for possession of a shortened firearm.

…

The only thing that seems to me to give any mitigation is the fact that it is said that it was committed under the influence of liquor…

As I have earlier indicated, I have given serious consideration to imposing the maximum but after some reflection it is probably not appropriate.  Nonetheless a lengthy sentence is called for.”

Previous sexual offences

[17] In 1973 Carpenter was convicted of rape in the Adelaide Supreme Court and sentenced to three years and 10 months imprisonment.  Carpenter had been drinking when he found out that his girlfriend had been sleeping with another man.  He went to the man’s home at night and raped the man’s wife.  He assaulted her, punching her in the stomach and then raped her.  He served half of the sentence.

[18] In 1976 he was charged with rape in Queensland but found not guilty.  He was having a sexual relationship with a girl whilst living with another woman.

[19] In 1977 Carpenter was convicted and sentenced to 10 years imprisonment in relation to a second rape in Newcastle.  Carpenter was on parole in relation to the first rape at the time and apparently the circumstances are similar to that which took place in South Australia in that it took place when he was feeling angry with the world, particularly women.  He went to the complainant’s house, threatened her with a knife then punched and raped her.[6]

[20] Evidence indicates that Carpenter was wanted in Victoria in 1975 regarding a rape, robbery, and wounding but was not extradited.  In addition, Carpenter has outstanding charges in New South Wales in relation to a rape and attempted rape committed in December 1987.  They are alleged to have been committed at knifepoint.

Current circumstances

[21] Mr Carpenter’s current circumstances are fully set out in the reports.  I accept that Mr Carpenter has been a model prisoner and has been of good behaviour whilst incarcerated.  He has never been breached for drug use while in prison.  He has completed two programs; the basic level workshop in non-violent conflict resolution in 2004 and he has had individual counselling to address his offending behaviour between March 1998 and December 1999.

[22] It is also clear that it was recommended that Mr Carpenter complete the preparatory and high intensity sexual offender treatment programs.  While he expressed a willingness to participate in the sexual offenders program he has only completed three days of the preparatory course and withdrew because the course was held in an air-conditioned room.  Mr Carpenter has, in general, consistently refused to participate in sex offender treatment programs, providing a variety of excuses.

[23] Mr Carpenter currently suffers from emphysema, which causes him some concern, and his symptoms are worse in cold, wet weather or in an air-conditioned climate.  He experiences breathlessness on exertion.  Mr Carpenter also has coronary artery disease and suffered a heart attack in 2002.  He experiences regular episodes of angina.  The angina episodes usually occur if he is under stress.

[24] Mr Carpenter is currently engaged to a woman called Biancha who he met 10 years ago whilst he was a prisoner at Borallon.  She is a member of the Baha’i faith, which is a religion Mr Carpenter joined whilst at Lotus Glen.  Biancha is 62 years old and lives alone at Esk.  She is on a pension and does volunteer work for the Baha’i faith and at schools.  Biancha and Mr Carpenter have become very close over the last 10 years and are engaged and wish to marry on Mr Carpenter’s release from prison.  They applied for permission to marry in 2003 but this was refused.  The couple have daily phone contact and Biancha visits whenever she is able. 

[25] Whilst Mr Carpenter has previously not had any difficulty in getting work and has previously worked in the construction industry or as a truck driver, it would seem clear that he is not currently fit to work. 

[26] Mr Carpenter has always been a heavy smoker and a heavy drinker when outside prison.  He used to drink up to three bottles of Rum a day.  Mr Carpenter has indicated that his intake of alcohol was fairly consistent for four or five years prior to his arrest for the most recent offence.  In terms of his drug use, Mr Carpenter admits he has used marijuana and amphetamines and states that when he was an interstate truck driver he became hooked on Speed, using it six or seven times a day.  Mr Carpenter indicated that he was using alcohol and Speed heavily leading up to his most recent rape offence. 

The reports of the psychiatrists

[27] Mr Carpenter has been assessed by a psychologist Robert Wood and three psychiatrists.  Dr Harden assessed Mr Carpenter on 27 September 2007 in relation to the initial application for Orders under s 8 of the Act.  He was then subsequently assessed by Drs Grant and Lawrence in July and August 2008.    The three psychiatrists gave evidence at the hearing of the application.

The report of the psychologist Robert Wood dated 30 November 2005

[28] Mr Wood assessed Mr Carpenter to determine his risk of re-offending and his treatment needs.  Mr Wood assessed Mr Carpenter as being at high risk of re‑offending on the Static -99 Scale which is an instrument used to assess the risk of sexual recidivism.  He also assessed him as being in the high needs category in terms of his treatment needs. 

[29] Mr Wood also considered that Mr Carpenter would benefit from both the preparatory and high intensity sexual offending programs.

Dr Harden’s report dated 27 October 2007

[30] Dr Harden stated that in his opinion Mr Carpenter was a high risk of re-offending if released into the community and that this opinion was borne out by assessments he had undertaken.  Dr Harden applied the following psychometric tests; Static-99, HCR-20, SVR-20, Violent Risk Appraisal Guide (VRAG), Sexual Offender Risk Appraisal Guide (SORAG) and the HARE Psychopathy Checklist.  On all of these tests Dr Harden found that Mr Carpenter was in the high risk category of re‑offending and in the HARE Psychopathy Checklist he gave him a score of 27, which is very close to the cut off score of 30 for the category of psychopath. 

[31] Dr Harden indicated that whilst Mr Carpenter claimed to have new insights into his functioning as well as having a new faith and a supportive partner, he noted that there were similar claims made by him to staff members prior to his release in 1986.  Dr Harden indicates that those comments may well have been correct but that, significantly, those insights did not stop him offending again.  Dr Harden stated that this brings into question the degree to which his psychological insight into his offences has decreased his risk of re-offending. 

[32] Dr Harden also indicated that he is concerned that Mr Carpenter has avoided doing a sex offenders treatment program, despite 20 years in prison, and that he has a large number of reasons for doing this but it would seem that he has avoided having to undertake such a program. 

[33] Dr Harden also stated:[7]

“The risk of re-offending is particularly significant because of the ready availability of alcohol in the environment outside the detention centre and the fact that the prisoner has not demonstrated any ability in the past to abstain from alcohol use despite attempts at monitoring by various authorities.  The pattern of his sexual offences in particular suggests that alcohol has played a significant mediating factor in disinhibiting him.  If he were to be released into the community he would need to be monitored extremely carefully and any breach of a no alcohol policy taken very seriously.

Prior to any consideration of him being released into the community, all efforts should be made for him to undertake both introductory and the high-intensity sexual offenders treatment program even if this required special measures such as holding classes in non-air-conditioned areas.  These efforts would provide further information about his actual willingness to engage in such programs and the material that emerged from the program would also provide useful information about further risk.”

[34] Dr Harden stated that whilst Mr Carpenter has a supportive relationship with Biancha and also the support of two friends, this was not the same as having prepared a relapse prevention plan and that “…they in no way resemble a relapse prevention plan.”[8]  Whilst he has some supports in place he is concerned that Mr Carpenter does not have any real understanding of his criminogenic behaviour and an understanding of what constitutes high risk behaviour.  Dr Harden stated:[9]

“It is encouraging to see that there are individuals who wish to support Mr Carpenter in the community, and obviously that’s a very good thing.  However, that’s not the beginning or the end of a relapse prevention plan.  A relapse prevention plan involves a very detailed understanding of the criminogenic needs which have led to the offending behaviour, attempts at ameliorating those needs if possible, and then plans around high risk situations, contingency management et cetera, and the support of these individuals in the community in a supportive and quasi monitoring fashion is in no way a substitute for that kind of a plan.”

[35] Dr Harden stated that the relapse prevention plan was one of the strategies that was addressed during the sexual offending treatment programs and that the goal of the programs was to reduce recidivism rates.  He stated that the programs namely the Preparatory Program and the High Intensity Program were recommended because they would provide an insight and give a better understanding of the reasons for Mr Carpenter’s offending and would ascertain whether he can develop a “…realistic and detailed relapse prevention plan”.[10]  He said that “…one of the goals those programs work towards is to develop individualised and very specific prevention plans.”[11]  He went on to say that the programs should be undertaken whilst he was in custody because:[12]

“…he is at high risk of re-offending in the general community, it would be infinitely preferable if these plans were undertaken – if the programs were undertaken and the detailed relapse prevention plan was developed prior to his release.”

[36] Dr Harden accepted that Mr Carpenter had undergone counselling but considered that counselling was not a substitute for participation in the program.  Dr Harden also considered that only very restrictive conditions would manage the risk and, in fact, the conditions would need to be so restrictive that the conditions would need to be such “…that it would be very similar to being detained still.”  He indicated that he considered Mr Carpenter’s freedom of movement and freedom of association would need to be significantly restricted.  There would also need to be mandatory compliance with a sex offender treatment program.  He concluded that if a supervision Order was considered appropriate a very restrictive supervision Order would be required, with a high degree of monitoring.

Dr Grant’s report dated 30 July 2008

[37] In his report, Dr Grant noted that Mr Carpenter had undergone courses in prison and had been helpful to other younger prisoners and he had undergone some individual counselling.  He noted, however, that he had not undergone a sexual offender treatment program and had used various reasons and excuses to avoid such a program.  Dr Grant concluded that Mr Carpenter’s motivation to complete such a program was poor.  Dr Grant also concluded that whilst Mr Carpenter indicates that he has given some thought to his behaviour and has benefited from counselling, caution needed to be exercised in taking at face value statements of personal reformation, given that he had made similar statements prior to his release on the last occasion.  Dr Grant conceded, however, that Mr Carpenter had been in prison for 20 years and had possibly matured to some extent.  Dr Grant noted that Mr Carpenter was very institutionalised and concluded:[13]

“If one looks simply at Mr Carpenter’s background and criminal history, it is very difficult to be confident that the risk to the community if he was to be released from prison would be substantially less now than it ever has been.  In the past, his offences have been associated with relationship problems, increasing anger and the associated use of alcohol, marijuana and amphetamines, acting on the underlying personality structure of anti-social traits with egocentricity and a lack of concern for the needs of others.  His offences have been associated with physical aggression and threatening with a knife as well as the actual rape offences.  However, there are some current mitigating factors.  Mr Carpenter has had 20 years to think about his life and his actions, and apparently has done a good deal of such thinking and contemplation, along with individual therapy… Mr Carpenter also has the apparent steadfast support of his friend Biancha whom he sees as his life partner.  He and Biancha have attempted to marry whilst he was in prison but have not been granted permission to do so.  He expresses great confidence in the stability and support that that relationship will provide for him when he leaves prison.”

[38] Dr Grant, however, had some concerns about the support that Mr Carpenter would have if he left prison and noted that those supports were “…quite limited”.  Dr Grant indicated that his relationship with Biancha would provide support but:[14]

“…relationships formed between prisoners and women outside of prison have often been seen to fail once the prisoner is released, and suitable caution would need to be exercised in regard to the long-term prognosis for Mr Carpenter’s relationship with Biancha.”

[39] Dr Grant also noted the issue of drug and alcohol abuse was also very important to Mr Carpenter’s prognosis and that he would need to refrain from substance abuse.  However, he had previously found it very difficult to abstain when he was released previously.  Dr Grant concluded that such abstinence would be vital to the success of any release plan.

[40] Whilst Dr Grant noted Mr Carpenter’s physical limitations, in particular his emphysema and heart condition, he stated that:

“He may still be capable of a degree of violent behaviour in his current physical condition.  In the past his rape offences have followed the breakdown of an interpersonal relationship and I would be concerned that Mr Carpenter might still be capable of at least some violent offending if his relationship with Biancha was to deteriorate.  Biancha herself might well be at risk of aggressive behaviour from Mr Carpenter if things did not work out in the way in which they planned.  This would be much more likely if he was to resume abuse of alcohol or drugs.”

[41] Dr Grant considered that Mr Carpenter had an anti-social personality disorder and he also administered a number of the standard assessment instruments.  On the HARE Psychopathy Checklist Dr Grant rated Mr Carpenter with a score of 29 out of 40, which is close to the cut-off point of 30 for the category of psychopath.  On the Static-99 he was in the high risk category, on the HCR-20 he was a moderate to high level risk, on the SORAG he was Category 8, and on the VRAG he was Category 7.  On the SONAR he had a moderate risk level.

[42] Dr Grant concluded that if Mr Carpenter was to be released into the community he would need a strict supervision Order, including electronic monitoring, and that he should not be allowed to leave his home unaccompanied.  He should not be permitted to drive and he should be subject to a curfew, as well as random drug and alcohol testing.  Dr Grant also indicated that there would need to be a risk management plan put into place for Biancha as she may be the person most at risk if Mr Carpenter was to destabilise and become aggressive.

[43] Dr Grant concluded that in his opinion the overall risk for violent or sexual re‑offending in Mr Carpenter’s case was at least “moderate to high”.  He concluded:

“He is particularly susceptible to destabilisation, his social and interpersonal situation if he is released and particularly susceptible to the effects of the recurrence of alcohol and drug abuse in the community.”

Dr Lawrence’s report dated 27 August 2008

[44] Dr Lawrence considers that Mr Carpenter suffers from a psychopathic personality disorder and she also indicates that alcohol and substance abuse are of concern in relation to his past offending behaviour and notes that all three stranger rape offences occurred whilst he had an ongoing intimate relationship with a partner.

[45] Dr Lawrence considered that under the DSM-IV classification Mr Carpenter should be classified as follows:

AXIS 1 - alcohol and other substance dependence, especially amphetamines, and that it was in remission in prison only.

AXIS 2 - anti-social personality disorder.

AXIS 3 - past history of inferior myocardial infarction in 2002 and chronic obstructive airways disease, which was medically well treated and stable.

AXIS 4 - no known stable, reliable supports in Queensland.

[46] On the HARE Psychopathy Checklist Dr Lawrence gave a score of 40 out of 40, which she indicated is “...certainly the highest I’ve ever given anybody in this particular test”.[15]  Dr Lawrence indicated her concerns are in relation to Mr Carpenter’s re-offending.  Dr Lawrence considered that not only did Mr Carpenter have an anti-social personality disorder, but that he fulfilled the criteria for psychopath.  Under cross-examination, Dr Lawrence was taken through the assessment tool and the reasons for her assessment by Counsel for Mr Carpenter.  Dr Lawrence indicated that apart from an alteration of the score with respect to Item 2, which relates to “…grandiose sense of self worth” which she would reduce by a score of one, her assessment otherwise would remain the same.  Dr Lawrence defended the accuracy of her assessment despite having been taken by Mr Carpenter’s Counsel thoroughly through the reports of Mr Carpenter’s progress in prison, his medical reports, and the reports of the assessment of the other two psychiatrists. 

[47] In particular, Dr Lawrence was asked to justify her revised score of 39 on the HARE Psychopathy Checklist, given the score by Dr Grant of 29 and the score by Dr Harden of 27, using the same tool.  Dr Lawrence concluded that she was more “sceptical” than her colleagues but that ultimately her view was based on a clinical judgment overall.  She stated:[16]

“I would give most emphasis to the clinical assessment taking into account all these various factors past, present and assessment of the risk issues.  The actuarial tools are more mechanical, if you like, and they provide figures based on other studies that have been done in the past, and they’re useful guides.  If the two coincide that can be, you know, confirmation, if you like, of the clinical opinion.  But the overall report is based on a combination.”

[48] Dr Lawrence concluded:[17]

“My assessment is that Harold Carpenter suffers from a Psychopathic Personality Disorder. This is characterised by a significant lack of any sense of morality.  He lacks a conscience.  He lacks internal behavioural controls.  Behavioural controls are learnt in childhood and are based on a sense of guilt or shame and a learned behaviour and the ability to learn from the consequences of one’s behaviour.”

[49] And later she stated that Mr Carpenter:[18]

“…lacks empathy and is at risk of re-offending.  Harold Carpenter also has a lifelong history of other antisocial behaviour and criminal activities and has spent the vast majority of his life, since the age of 15, in criminal detention. 

Based on structured clinical judgment as well as actuarial assessments, in my opinion Harold Carpenter is a high risk of re-offending on release.  Conditions on release have been suggested but the likelihood of his breaching conditions of release is also very high, in keeping with his past behaviour and his Psychopathic Personality.

He has avoided participation in SOTPs.  There is some evidence in the literature which would suggest that, even if he were to participate, the benefits to him are likely to be minimal and might actually be disruptive to others.  He also has a high risk of breaching any conditions of conditional release.”

[50] Dr Lawrence noted Mr Carpenter’s medical conditions and considered they were well controlled and stable.  She concluded, however, “…he is currently demonstrating a capacity to use these in manipulation of authorities for his own ends.”[19]

[51] In terms of the assessment tools on the HCR-20 Dr Lawrence scored him at a very high risk.  On the SVR-20 she also scored him at a very high risk.  On the VRAG she scored him at Category 8.  On the SORAG she scored him at Category 9.

Plans on release

[52] The affidavit of Biancha indicated that she understood the nature of the offences for which Mr Carpenter had been convicted and that she had received material from him over the years, including his psychological reports.  She indicated, however, that she was offering to have Mr Carpenter reside with her at her residence at Esk and that she would provide support to him to assist him in reintegrating into the community.  She also indicated that she would immediately report Mr Carpenter if he was consuming alcohol or drugs and she also indicated that if Mr Carpenter ever physically or sexually abused her or threatened to harm her in any way she would contact the police immediately.  She also stated that she had a number of close friends and family who could assist her if she had any problems adjusting to cohabitation with Mr Carpenter.  There was also an affidavit in support of Biancha from her next-door-neighbour.  There was a further affidavit from a friend of Mr Carpenter’s who is a former property manager and she has indicated she would provide assistance to Mr Carpenter in obtaining alternative accommodation if his residence with Biancha was not successful.  Mr Carpenter has indicated a willingness to do the sex offenders treatment program in the community if he should be released.

Is Mr Carpenter a serious danger to the community in the absence of a Division 3 Order?

[53] Taking into account the matters that I am required to take into account pursuant to s 13(4) of the Act, I am satisfied that Mr Carpenter is currently a serious danger to the community in the absence of a Division 3 Order in that there is an unacceptable risk that he will commit a serious sexual offence if released from custody or released without a supervision Order.  I am so satisfied on the basis of acceptable, cogent evidence and the requisite degree of probability.

Should a detention Order or a supervision Order be made?

[54] The question that next arises is whether, in the circumstances of this case, a supervision Order would be an appropriate means of managing the risk of further sexual offences being committed or whether it is necessary to make a detention Order.  On behalf of Mr Carpenter, it was argued that a supervision Order would adequately protect the community and reduce the risk of re-offending to an acceptable level.  Mr Carpenter’s Counsel submitted that a supervision Order would be, in fact, sufficient to ensure the adequate protection of the community. 

[55] In particular, Counsel placed reliance on the decision in Attorney-General (Qld) v Francis[20] where the Court of Appeal said:

"If supervision of the prisoner is apt to ensure adequate protection, having regard to the risk to the community posed by the prisoner, then an order for supervised release should, in principle, be preferred to a continuing detention order on the basis that the intrusions of the Act upon the liberty of the subject are exceptional, and the liberty of the subject should be constrained to no greater extent than is warranted by the statute which authorised such constraint."

[56] Counsel also submitted that in Attorney-General (Qld) v Waghorn[21] Justice McMurdo said:

"A continuing detention order is warranted if it is proved by the Attorney-General that the risk of re-offending is unacceptable if he is released even under strict supervision."

[57] Counsel submitted that the critical question is whether despite a supervision Order the risk of a serious sexual offence will remain unacceptable.  In relation to the s 13(4) factors that the Court is required to take into account, Counsel submitted that, while a propensity and a pattern in the offending is conceded, there was much to confirm a high degree of general rehabilitation.  In particular, it was submitted that the prison files contain several assessments and reliance was placed on the period of counselling from March 1998 to December 1999 and the reports of it.  It was also submitted that the material also shows that Mr Carpenter’s overall conduct and industry improved during the first five years of his sentence and remained at a high level after that.  His health has deteriorated significantly in recent years.  His objection to air-conditioning has been catered for and would seem to be genuine, even if not medically confirmed.

[58] Counsel also relied on the medical reports as follows:

“a) Dr Harden, at p.20 of his report, does not go so far as to say that supervision with strict monitoring and a no alcohol policy would be ineffective. He suggests efforts should be made to have the applicant complete sex offender treatment programs ‘prior to any consideration’ of his release. He states that useful information could thereby be gained about further risk. That is not the same as saying that the failure to complete such program necessarily elevates the risk.

b) Dr Grant at p.26 of his report contemplates that the level of risk would be ‘reduced to a relatively lower level’ provided personal supports are stable and close monitoring occurs. Dr Grant clearly established a superior rapport with the Respondent, as evidenced by the latter’s degree of candour.

c) Dr Lawrence opines that conditions would only slightly reduce the risk: report p.27. Her opinion was based on a truncated interview, and a sceptical stance to what she was being told.”

[59] Counsel also stated that while all expert witnesses agreed that if Mr Carpenter were to be released strict conditions would have to be imposed, he has sworn his willingness to comply with such conditions.  Section 16 of the Act makes provision for conditions of supervised release and it allows all of the conditions suggested to be made.  Counsel submitted that there seems to be no reason why a residential condition could not be included.

[60] Counsel for Mr Carpenter also submitted that the evidence of Dr Grant should be preferred to that of Dr Lawrence and he argued that Dr Lawrence’s assessment was based on an uncompleted interview, given the fact that Mr Carpenter terminated the interview after an hour as he was uncomfortable in an air-conditioned office and was experiencing chest pain.  It was submitted that Dr Lawrence’s opinion and the integrity of the primary data was, therefore, not as persuasive as that for the other two experts.  It is also submitted that Mr Carpenter’s failure to complete a sex offender treatment program was not fatal to the management of the risk and relied on the decision of the Attorney-General for Queensland v Voois[22] where release on a supervision Order was allowed, despite the prisoner’s failure to complete the relevant sex offender treatment programs.

[61] It was also submitted that Mr Carpenter’s state of health is a relevant factor which mitigates against the level of risk in that he has an ischemic heart condition and also emphysema.  It is also clear that Mr Carpenter is currently 60 years of age.  Counsel also submitted that Mr Carpenter had supports in the community in that he had a very close and ongoing relationship with Biancha, as well as the support of her neighbours and one of his own friends.

Conclusion

[62] I accept the evidence of the psychologist and the three psychiatrists.  Whilst there is a difference in scoring on the psychopathy checklist, it is clear that ultimately they all consider he scores very high on that scale.  Indeed, Dr Harden indicated that his scoring was at the low end and that “...27 would be the lowest score I could have given him.”  In virtually all other respects the evidence is consistent.  Ultimately, in weighing up all the factors which I need to consider in accordance with s 13(4), I make the following factual findings on the basis of the evidence:

1. Mr Carpenter has been convicted of a series of rape offences and has served three periods of imprisonment for rape including a sentence of 10 years and a sentence 20 years.  He was charged with rape in 1976 but was found not guilty and he also faced charges of rape and attempted rape in New South Wales which were discontinued because of Mr Carpenter’s sentence of 20 years for his current offence.  Mr Carpenter is currently wanted for questioning in regard to a 1975 incident in Victoria involving rape or attempted rape; 

2. Mr Carpenter’s overall conduct and industry in prison has been good;

3. Dr Lawrence and Dr Grant consider that Mr Carpenter has an anti-social personality disorder;

4. Mr Carpenter has a high score from all three psychiatrists on the psychopathy checklist.  Dr Lawrence considers that Mr Carpenter is a psychopath and Dr Harden and Dr Grant have also scored him close to the cut off point for a psychopath;

5. Dr Harden considered Mr Carpenter was a high risk of re-offending if released into the community and that this opinion was borne out by assessments he had undertaken;

6. Dr Grant concluded that in his opinion the overall risk for violent or sexual re‑offending in Mr Carpenter’s case was at least “moderate to high”;

7. Dr Lawrence considered that based on structured clinical judgment as well as actuarial assessments, Mr Carpenter is a high risk of re-offending on release;

8. Mr Carpenter has been in prison for the last 20 years and is very institutionalised.  He has also spent only 11 years outside of prison since the age of 12;

9. Mr Carpenter’s rapes involved violence;

10. All of Mr Carpenter’s rapes occurred when he was in an intimate relationship with a partner and occurred when he was angry and the relationship had de-stabilised;

11. Alcohol and/or drugs have played a role in all of his sexual offences;

12. Mr Carpenter has not previously abstained from alcohol or drugs whilst in the community;

13. Mr Carpenter has not completed a sex offender treatment program;

14. Mr Carpenter does not have an understanding of how to monitor his behaviour to avoid high risk situations and he has not prepared a relapse prevention plan;

15. Mr Carpenter has been in a long term relationship with Biancha during this time in prison and wishes to marry her on release;

16. Mr Carpenter has some degree of support in the community which provides some assistance and quasi monitoring;

17. Mr Carpenter currently suffers from emphysema and coronary artery disease.  He had a heart attack in 2002 and experiences episodes of angina if he is under stress; and

18. Mr Carpenter’s medical conditions are well controlled and stable.

[63] It is clear that pursuant to s 13 (6) the paramount consideration is the need to ensure adequate protection of the community and that the purpose of Orders under s 13 is not punishment but the protection of the community.[23]  It is also clear that the existence of some risk of re-offending is not sufficient but that the risk must be of an unacceptable order.

Is the risk of an unacceptable order?

[64] Each of the psychiatrists is of the view that there is a high risk of re-offending as does the psychologist.  Mr Carpenter clearly has a propensity to commit sexual offences given his extensive criminal history and he has a pattern of offending behaviour.  Whilst there has been counselling and some educational courses undertaken he has not completed a sex offender’s treatment program.  Two of the major factors in relation to the risk of re-offending are substance abuse and a destabilised relationship and Mr Carpenter does not have a relapse prevention plan in place to cope with these factors.

[65] I consider that the risk is unacceptably high even under a supervision regime as is proposed by the respondent.  Even if a supervision Order contained very restrictive conditions such as electronic surveillance, nightly curfews, a prohibition on driving, restrictions on movement as well as random drug and urine testing, they could not sufficiently address the risk given that the risk is so high.

[66] I do not consider that the risk can be addressed by a supervision Order.  The risk is high because of his psychopathic personality, his clear propensity to commit sexual offences accompanied by violence, his lack of a relapse prevention plan, and the fact his plans lack feasibility in terms of practical day-to-day support from people other than Biancha.

[67] It is also of significant concern that he has not completed a sex offender treatment program which would give him some insights into his behaviour.  Of particular concern is the fact that all of his previous offences have occurred whilst he has been in a relationship with a woman and on all previous occasions, when that relationship begins to destabilise and he becomes angry, he has gone out and raped someone, essentially, off the street.

[68] Furthermore, Mr Carpenter has never managed his alcohol or drug abuse whilst he has been in the community and this has been a significant factor in all of his offending.  Mr Carpenter will be exposed to considerable stress on his release, given he is institutionalised and has only spent 11 years since the age of 12 in the community.  I consider that the likelihood of Mr Carpenter breaching conditions of release is also very high, in keeping with his past behaviour and his Psychopathic Personality.

[69] Given the level of risk which is presented, I consider that Mr Carpenter needs to be detained to ensure the adequate protection of the community and to provide continuing control, care or treatment of him to facilitate his rehabilitation.  In particular, valuable insights would be gained from his completing a sex offender treatment program before his release.

[70] Given that the paramount consideration in deciding whether a continuing detention Order as opposed to a supervision Order should be made is the need to ensure adequate protection of the community, I am satisfied that a continuing detention Order in this case is appropriate.

Orders

1. I am satisfied to the requisite standard and on the basis of acceptable, cogent evidence that the respondent is a serious danger to the community in the absence of a Division 3 Order.

2. It is ordered, pursuant to s 13(5)(a) of the Act, that Mr Carpenter be detained in custody for an indefinite term for control, care or treatment.