1 The applicant, James Flavell Dick, is subject to a continuing detention order under the Dangerous Sexual Offenders Act 2006 (WA) (DSO Act). That order was made by McKechnie J on 18 September 2009: The State of Western Australia v Dick

3 On 4 April 2012 the applicant sought leave to make an application under s 30 of the DSO Act. Leave was granted on 12 April 2012 by McKechnie J. His Honour also made programming orders regarding the obtaining of reports and for the hearing of the application on 27 June 2012.

4 On 27 June 2012 the matter came before EM Heenan J. An application to adjourn the hearing was made on behalf of the applicant. The reason given for that application was that there was no accommodation available at that time in the event that the court considered that the applicant was suitable for release into the community on a supervision order. EM Heenan J granted the application for an adjournment. The matter was adjourned to 17 August 2012 for a hearing.

5 A review under s 30 of the DSO Act requires consideration of the same issues as those that arise on an annual review. In particular, the court must consider whether the person remains a serious danger to the community. If not, the continuing order must be rescinded. If so, the court must consider whether the continuing detention order should continue or whether the person should be released into the community on a supervision order. In deciding between these alternatives the paramount consideration is the need to ensure adequate protection of the community: s 33 DSO Act.

6 The applicant's criminal history in relation to sexual offences was summarised by McKechnie J in the original proceedings, The State of Western Australia v Dick [16]:

On 9 February 1994, following trial, the respondent was sentenced in the Supreme Court for one count of aggravated sexual assault and five counts of indecent dealing. He was sentenced to a total sentence of 4 years' imprisonment. The offences were in respect of a young girl, R. On 6 December 2001, the respondent was sentenced in the District Court for five counts of sexual penetration of a child and three counts of indecent dealing with a child. On 20 December 2001 in the District Court, the respondent was also sentenced for two counts of sexual penetration of a child under 16 and one count of indecently dealing with a child under 16. The total of all the sentences came to a term of 12 years' imprisonment. Some of the offences involved R. They occurred after his release from the first term of imprisonment.

7 Pending the hearing of the original application the applicant was released on an undertaking. That undertaking included a number of conditions. Amongst them was a condition that he undertook not to possess, consume or use any illicit drugs or substances including cannabis. Another was that he not associate with any person known by him to have committed a sexual offence. A third was that he have no contact with any child under the age of 17 years. Prior to the hearing of the original application those conditions were breached.

8 A urinalysis on 6 August 2009 showed that the applicant had used cannabis shortly after his release from prison. There was also evidence that he had associated with a person who he knew to have committed a sexual offence. Furthermore, he had had regular contact with the daughter of a woman with whom he had established a sexual relationship and with her daughter's young children who were living in the same house.

9 McKechnie J noted that these breaches provided 'powerful evidence of [Mr Dick's] attitude to supervision and lack of insight about risk laden situations': The State of Western Australia v Dick [15]. Whilst in prison for the original offences the applicant had undertaken a sex offending deniers programme. In his decision on the original application McKechnie J noted that despite having undertaken this programme the applicant had moved fairly quickly after his release into a high risk domestic relationship with young children present and with no effective supervision [33]. His Honour noted that the applicant had consciously withheld information from his Community Corrections Officer. His Honour concluded that the applicant was a serious danger to the community and that his risk of further offending was so great that an order for his continuing detention was appropriate.

10 At the first annual review on 20 September 2010 there was psychiatric evidence diagnosing the applicant as having 'paedophilia undifferentiated type'. This was explained as the applicant not having any specific preference for pubescent or prepubescent children and as having offended against both males and females.

11 The psychiatrist who prepared the report on that occasion, Dr Wojnarowska, concluded that the applicant had an antisocial personality with strong narcissistic traits. She noted that treatment options were very limited and had proved to be unsuccessful. She expressed the opinion that the applicant continued to be a high risk of reoffending if released. This was said to be due to his personality style and psychopathic traits. Dr Wojnarowska said that the applicant's high risk of reoffending was directly related to his deviant sexual preferences compounded by his deceptiveness, ability to manipulate and pathological lying.

12 McKechnie J concluded that the applicant remained a serious danger to the community and he expressly declined to rescind the continuing detention order: s 33(2) DSO Act.

13 The second annual review on 24 October 2011 was conducted by E M Heenan J. On that occasion the psychiatric evidence was given by Dr Bryan Tanney. Dr Tanney concluded that there continued to be a clear likelihood of serious sexual offending against young persons with whom the applicant established a relationship of family or close acquaintance. Dr Tanney expressed the view that no meaningful progress in modifying the applicant's personality disorder or its impact on his likelihood of sexual offending had occurred. He was of the view that no further psychological treatments were available.

14 At the time of the second annual review a trial of antilibidinal medication had recently been commenced. Dr Tanney said that this trial should be continued. However, Dr Tanney did not recommend at that stage that the applicant be released on community supervision. He was of the opinion that due to the applicant's personality disorder, the failure of a community based sex offender's treatment programme to prevent reoffending and failure to comply with the undertaking given in 2009, presented difficulties in being assured of compliance with a supervision order. Dr Tanney's conclusion was that except for the possible impact of the antilibidinal medication trial, which needed more time and evaluation, no active treatment was currently available that was likely to reduce the risk of sexual reoffending.

15 There was other evidence before E M Heenan J to the effect that the applicant continued to justify and minimise his reasons for breaching the 2009 undertaking and continued to maintain a stance of denial for his 2001 convictions.

16 E M Heenan J concluded that the applicant continued to be a serious danger to the community. He also noted that there was very little to support a submission that the applicant should be released into the community on a conditional supervision order. He noted that there was little by way of further treatment that could reduce the danger of reoffending, except for the possibility that antilibidinal medication may be effective. His Honour said that the point had not been reached where the antilibidinal trial had had sufficient time to establish that an effective therapeutic dosage had been identified or was having any desired effect. In these circumstances, his Honour continued the detention order but noted that if the antilibidinal medication were to prove clearly successful and the risk to the community represented by the applicant was thereby reduced to a tolerable level, this may provide grounds for the applicant to apply to this court for a review under s 30 of the DSO Act.

17 At the hearing the DPP took responsibility for calling witnesses and making them available for crossexamination. This was done as a matter of convenience and because the DPP customarily has carriage of the presentation of evidence on annual reviews. The fact that it took this role did not detract from the fact that Mr Dick was the applicant on this occasion.

18 The DPP tendered, without objection, two books of materials. The first book, dated 25 June 2012 contained the following:

1. A Department of Corrective Services Individual Management Plan dated 23 February 2012.
2. A letter from Dr C Fitzclarence dated 29 March 2012 attaching five blood test results from various dates in 2011 and 2012.
3. A further letter from Dr C Fitzclarence dated 29 May 2012.
4. A psychiatric report by Dr B Tanney, Consultant Forensic Psychiatrists dated 11 June 2012.
5. A treatment progress report by Ms C Zuin, psychologist, dated 12 June 2012.
6. A Community Supervision Assessment report by Ms J Dabala, Senior Community Corrections Officer, Department of Corrective Services dated 15 June 2012.
7. A letter from Mr T Murphy, Director General, Department for Child Protection dated 18 June 2012.
8. A statement from Ms L Charlesworth, Prison Officer, dated 20 June 2012.
9. A statement from Mr A Gorton, Senior Prison Officer, dated 23 June 2012.

19 A supplementary book of materials was also tendered and received without objection. The supplementary book contained the following information:

1. Results of a blood test of 30 May 2012.
2. Results of a sputum test of 10 July 2012.
3. Results of a sputum test of 11 July 2012.
4. An email from Dr C Fitzclarence of 13 July 2012.
5. A supplementary psychiatric report from Dr Tanney of 27 July 2012.
6. A Community Supervision Assessment Update report by Ms J Dabala dated 31 July 2012.
7. An updated Treatment Progress Report by Ms C Zuin, psychologist, dated 6 August 2012.

20 The DPP also called Dr Tanney, Ms Zuin, Ms Charlesworth, Mr Gorton and Ms Dabala to give oral evidence. The applicant did not give evidence nor did he seek to adduce any evidence on the hearing.

21 The medical evidence was that the applicant had been taking the antilibidinal drug, Cyproterone Acetate, orally on a dose of 50 mgs daily from mid September 2011. The blood test results showed that the applicant's testosterone levels had fallen to low, although not zero, levels. He had selfreported a lower libido. He had also reported a number of possible side effects including increased lethargy and fatigue, headaches and some feelings of agitation and irritability.

22 For the purposes of his report, Dr Tanney interviewed the applicant at Casuarina Prison on 10 June 2012. Dr Tanney noted that, to the extent that his report was based upon information from the applicant, the applicant had shown himself in the past to be untruthful, extremely guarded and selective in his reporting of life events. Dr Tanney asked the applicant how he would use social and psychological supports to address issues that might arise respecting any encounters with children if he were released into the community. Dr Tanney said that the applicant's responses were appropriate but that he was unable to enter into, or engage with, the simulated role. This was said to demonstrate long term issues around emotional problemsolving and an inability to engage appropriately with those who could assist him. The applicant expressed a lack of trust in others but was much less able to acknowledge that others might feel unable to trust his assurances respecting community supervision. Dr Tanney considered that this behaviour reflected a narcissistic component of the applicant's personality. However, Dr Tanney noticed a less selfcentred and aggressive attitude than at previous interviews. The applicant acknowledged on several occasions his responsibility for the breaches of the undertaking in 2009.

23 Dr Tanney utilised four risk assessment tools which had previously been applied to the applicant. He noted that the results suggested a decreased likelihood of sexual reoffending. In his initial report of 11 June 2012 Dr Tanney concluded that there was some likelihood of serious sexual reoffending but that there had been progress in regard to manageability since the last annual review. He expressed the view that based on the applicant's personality disorder, the previous failure of a treatment programme to prevent reoffending and the failed undertaking in 2009, there was likely to be difficulties in ensuring adequate supervision. However, Dr Tanney was of the view that these were no longer sufficient to deny the opportunity to the applicant to demonstrate that he could reenter the general community with the aid of sufficient supported supervision.

24 Subsequently Dr Tanney came to have reservations about those conclusions. An assessment of the effectiveness of the antilibidinal medication was based on the applicant's selfreporting of diminished sexual interest, desire and function. Dr Tanney said that whilst blood tests indicated a lowering of testosterone there was not necessarily an exact relationship between biological change and psychological changes. He said that decreased testosterone did not necessarily mean that sexual interest, desire and function were decreased or that, as a collorary, the likelihood of sexual offending had decreased. He said that this was an inference that was usually drawn but it needed to be validated by experience. The selfreporting was congruent with the decrease in testosterone. However, there had been evidence from a female prison officer that the applicant had been observed masturbating and this was contrary to the applicant's selfreports of an absence of sexual desire.

25 Dr Tanney also said that whilst lowering testosterone may have an effect of reducing sexual interest it did not change the nature of any sexual interest that a person had. Thus to the extent that the applicant had in the past had a sexual interest in children, the antilibidinal medication could reduce, but not change the nature of that interest. Dr Tanney said that if, as alleged, the applicant had been masturbating then this suggested that notwithstanding the lowering of testosterone he continued to have some sexual interest and desire. He said that the conclusion that could be drawn is that the antilibidinal medication had not been effective or as effective as one would likely require it to be in order to be comfortable with the applicant undertaking community supervision (ts 294).

26 Dr Tanney also gave evidence that adequate community support was an important component of an effective community supervision process. He noted that the applicant's support systems were minimal and had diminished significantly over time. He said that the applicant 'doesn't have the sort of supports and the amount of support that we associate with successful community supervision'. He noted that the applicant had the ability to form relationships relatively quickly and that he would be able to create some social support relationships if he desired to do so. He said that the applicant's current lack of social supports seemed to be not only due to unavailability but because the applicant, by his own choice, was not using those that were available to him.

27 Dr Tanney gave evidence in regard to the applicant's insight into his own behaviour and the need to avoid high risk situations. He said that it was notable that the applicant continued to have a lack of understanding that placing himself in high risk situations is something that is unhealthy and potentially dangerous for him in terms of the likelihood of reoffending. As regards the breaches of the undertaking in 2009, Dr Tanney said that whilst the applicant showed some insight that his conduct had led to those breaches, he did not show insight into why the conditions had been imposed upon him in the first place.

28 Dr Tanney expressed some concerns that psychological counselling with the applicant had been focused on his denial of his offending rather than issues that related to his personality and victimisation issues arising from his childhood. He said that if the applicant's sexual offending was related primarily to the personality and victimisation issues then exploration of those issues might be of significant value. He said that the issues that had created the applicant's personality were important as it was his personality that represented the most significant barrier to rehabilitation (ts 302).

29 In crossexamination Dr Tanney accepted that the applicant had explained that the occasion on which he was observed masturbating was 'to see if it would work'. He conceded that if the applicant was motivated by curiosity rather than sexual interest there would be less of a problem. However, Dr Tanney thought that it was odd that the applicant would be motivated by curiosity so many months after the medication had been commenced.

30 Ms Cinzia Zuin is a psychologist with past experience working with sex offenders. She conducted an interview with the applicant at Casuarina Prison on 14 May 2012. She reviewed the progress that had been made during the previous six months with particular focus on counselling treatment. She noted that counselling had recommenced with the applicant on 20 April 2012. Unfortunately this was not with a counsellor who had previously had a long term counselling engagement with the applicant. The applicant had expressed some disappointment about this. The applicant informed the new counsellor at the first session that he did not trust him and that trust would take significant time to establish. There had been five sessions with the new counsellor as at the date of Ms Zuin's report. However, the counsellor had stated that the applicant's attitude towards his offending had not altered and little progress had been made with respect to counselling goals.

31 Ms Zuin reported that the applicant was adamant that he did not have any treatment issues and that he did not pose a danger to the community. However, he accepted that he would be obliged to abide by conditions imposed on him as he realised that noone trusted him. The applicant expressed strong contempt for conditions that were previously imposed and described them as 'ridiculous' but said that he did not 'want any trouble coming my way'.

32 When asked about the alleged incident of masturbation in the prison the applicant gave contradictory responses to Ms Zuin. In her report in this regard she stated:

Mr Dick also volunteered that he was recently alleged to have been masturbating in his cell by a female prison officer, an allegation he denied. It is understood this has been recorded in the 'offender notes' on the Total Offender Management System (TOMS) without any formal incident report or charge resulting. However, immediately contradicting himself Mr Dick stated that he was trying to masturbate but 'it didn't work anyway'. The impression gained from Mr Dick's comments was that he was not being particularly open about the presence of sexual thoughts and fantasies, albeit that his ability to act on them is compromised by his lowered testosterone levels (Book of Materials, page 36).

33 Ms Zuin noted that the applicant has very limited support networks in the community. His most recent former partner no longer visits him in prison. He does not have any suitable accommodation identified and options that had previously been identified are no longer available to him. Ms Zuin considered that the applicant's attitude to lack of accommodation was somewhat blasé and that he failed to recognise that unless he had suitable accommodation his release is unlikely to be considered, regardless of any other measures that are in place.

34 Ms Zuin concluded that very little appeared to have changed since the applicant's last review in 2011 aside from his continued use of the antilibidinal drug. She said that in fact some previous protective factors related to social supports appeared to have reduced. Psychological intervention has been limited and as such very little progress has been made towards the applicant addressing selfmanagement and risk related needs in the community.

35 In her oral evidence, Ms Zuin said that the purpose of antilibidinal medication was to dampen arousal. However, she said that the lowering of testosterone does not necessarily mean that the individual is not having sexual thoughts. She said that sexual thoughts did not require testosterone levels to be high. She said that the idea of reducing testosterone was to diminish sexual arousal, but it was not necessarily eliminated. She said that this was because a lot of sexual behaviour is behavioural. Ms Zuin noted that the applicant's past sexual conduct had included a history of grooming children within relationships he had formed with their mother. She noted that the sexual interest that motivated this grooming behaviour did not depend upon him being sexually aroused the whole time.

36 Ms Zuin was asked about her observation that the applicant had expressed a strong contempt for the conditions previously imposed. She had prepared a supplementary report for the purposes of this review and seen the applicant for that purpose on 6 August 2012. In that report she said that the applicant continued to have a negative view about supervision requirements. He stated that in his view he did not require a supervision order at all, but that he would comply with conditions as directed. Ms Zuin said that this attitude was a significant concern because it was quite possible that the applicant would have a blatant disregard for any conditions given that he does not genuinely consider that he poses a risk to children.

37 Ms Zuin said that counselling was yet to achieve any real progress towards addressing selfmanagement and risk related needs in a community setting. She said that one of the issues was that the applicant consistently views himself as a victim. She said that he needs to work on this perception of victimisation so that he can better appraise situations in a realistic manner. He needs to be able to selfmanage the way he relates to other people. He also needs to have a genuine understanding that he should not be having unsupervised contact with children. She said that this lack of understanding places the applicant at risk because he has a complacent attitude and could potentially place himself in situations of high risk (ts 318).

38 Ms Lana Charlesworth is a prison officer. In April of this year she was working at Casuarina Prison. She said that she performed a shift on 6 April 2012 commencing at 5.30 pm. At the commencement of her shift she reported to the control room. She said that normally two random checks are conducted on the prisoners prior to midnight, after the prisoners are locked in their cells. These checks require a prison officer to walk to each cell and lift a viewing hatch on the door and switch on the cell observation light. She said that when she checked on the applicant he was lying on his bed wearing only a jumper. She observed him masturbating and as she looked through the hatch he looked at her. He then quickly pulled a doona cross him. Ms Charlesworth said that a similar incident had occurred two nights earlier. She said that because there had been an earlier incident she was inclined to think that the applicant had deliberately behaved in this way at a time when she was on duty.

39 In crossexamination Ms Charlesworth conceded that the applicant would have no way of knowing when she was on duty and that the random checks were intended to be unpredictable. She could not say that the applicant had seen her at the time that she commenced her shift in respect of the second incident.

40 The DPP also called Mr Andrew Gorton, a senior prison officer who was also working at Casuarina in April 2012. He said that on the morning of 8 April 2012 he became aware of the incident referred to by Ms Charlesworth. He then had a conversation with the applicant. He said the gist of his questioning was that he asked the applicant whether he had been masturbating while Ms Charlesworth was on duty. The applicant's initial reaction was to deny that this had occurred but when he was challenged he admitted that he had been masturbating. It was not clear from the evidence whether the admission was that the conduct had been deliberately directed to Ms Charlesworth.

41 Ms Julie Debala is a Senior Community Corrections Office with the Department of Corrections. She prepared a Community Supervision Assessment Report dated 15 June 2012. In that report Ms Debala noted that the applicant had no confirmed accommodation despite efforts from Adult Community Corrections to assist in that regard. The applicant had been depending on obtaining accommodation through a community agency at his scheduled annual review in October 2012. However, the agency concerned had been unable to secure accommodation at an earlier time. Attempts to source other suitable accommodation had been unsuccessful. Ms Debala reported that the applicant needs a period of supported accommodation by an established community agency who could then assist him to source suitable private rental accommodation.

42 In regard to community supports, Ms Debala noted that when interviewed on 10 April 2012 the applicant had named two support persons. However, when interviewed again on 10 May 2012 he had stated that he did not intend to have any contact with one of those persons other than to collect personal belongings and a motor vehicle that was stored at her residence. He added that he did not view this person as a support person in the community and did not want to contact her for the purposes of the preparation of an assessment report. He confirmed these views again on 5 June 2012.

43 Ms Debala had also made some enquiries in regards to the applicant's proposed employment. This was in a cleaning business operated by a friend. Ms Debala determined that the business was contracted to clean both commercial and residential properties. She said that concerns were raised regarding the applicant attending residential premises. However, in crossexamination Ms Debala conceded that the possibility of the applicant only cleaning commercial properties had not been raised with his potential employer.

44 The most significant change since the last annual review is that the applicant has now been on antilibidinal medication for approximately 12 months. It is clear from the evidence that this has resulted in a significant reduction in his testosterone levels. The expectation is that such a reduction will also lead to a reduction of sexual desire and functioning. The applicant has selfreported such a reduction. However, he has not given evidence in these proceedings and his reliability has been doubted by Dr Tanney.

45 Both Dr Tanney and Ms Zuin have given evidence that whilst a reduction in testosterone is expected to reduce sexual desire and functioning it does not necessarily do so. Any sexual desire that the applicant continues to have is likely to be associated with his past deviant behaviour. The existence of desire notwithstanding the antilibidinal medication is therefore a matter of importance.

46 I accept the evidence of Ms Charlesworth that she observed the applicant to be masturbating on two occasions in April of this year. That conduct would clearly be more serious if it could be established that it was specifically directed at Ms Charlesworth. Whilst that was her impression, I am unable to conclude on the available evidence that the applicant did have such a purpose. Nonetheless, the applicant has not denied masturbating or at least attempting to do so, when he was interviewed by Mr Gorton, Dr Tanney and Ms Zuin. He has given somewhat differing explanations for this. However, at the very least this conduct indicates the existence of some sexual interest or desire. The possibility raised by the applicant's counsel that the applicant was merely motivated by curiosity does not negate the significance of this evidence. If he was curious it must be a curiosity motivated by some sexual interest. As Dr Tanney noted, the existence of sexual interest some seven months after the commencement of the antilibidinal medication is a matter of concern. It causes me to doubt that the medication has achieved, or has yet achieved, the intended effect.

47 Even if I were satisfied that the antilibidinal drugs had been effective in reducing sexual desire and functioning that is only one factor in respect of assessing risk of reoffending. It may not be sufficient on its own. It is also relevant to consider whether the applicant has developed an understanding of his own past behaviour and that he needs to address it. Both attitude and the acquisition of the life skills are relevant in assessing risk. This is particularly so if there is some real possibility that the applicant continues to experience sexual interest or desire.

48 It is relevant to consider whether there have been any changes to psychological factors that may affect the risk of reoffending. In this regard, I accept the evidence of Dr Tanney and Ms Zuin that there has been no significant change. Whilst the applicant accepts the necessity to comply with conditions and understands the consequences of failing to do so it is clear that he continues to deny the need for any such conditions. He maintains that he is not a risk to children and this attitude has real potential to undermine the effectiveness of any conditions.

49 It is also clear that counselling to address the underlying causes of the applicant's behaviour has not yet occurred. Nor has counselling achieved insight on the applicant's part in identifying risk behaviours and selfmanaging those behaviours in a community setting.

50 An insuperable difficulty for the applicant is the absence of any suitable accommodation. It is not simply a matter of assessing a person as being suitable for release and then accommodation being found. The nature and location of proposed accommodation is a relevant factor in assessing risk. There is, in fact, no suitable accommodation presently available. In the event accommodation did become available it would need to be assessed for suitability having regard to the applicants particular risk profile. Factors like the proximity of the accommodation to places frequented by children, the ease with which the applicants movements to and from the property could be monitored and whether the property would meet other likely conditions, would need to be considered.

51 The applicant's counsel acknowledged that lack of accommodation was a difficulty and suggested at the end of the hearing that the proceedings could be adjourned yet again. I stated that that course would not be appropriate as the evidence that had been gathered for this review related to a particular time and further delays would cause that information to be outdated. In particular, this relates to reports from the psychiatrist and psychologist.

52 At some point the further adjournment of proceedings of this nature will involve not merely the continuation of a hearing but will necessitate the conduct a totally new hearing. The present hearing was originally intended to occur on 27 June 2012 and has already been once adjourned. That adjournment necessitated update reports from Dr Tanney, Ms Zuin and Ms Debala. To further adjourn on the basis of a hope that suitable accommodation would become available is inappropriate.

53 I accept that the result of bringing an unsuccessful s 30 review is that the annual review that would have occurred in October this year will not now occur. By virtue of s 29(2)(b) of the DSO Act the next annual review will not now occur until after the end of the period of one year commencing from this most recent review. However, that is the consequence of bringing a review at a time when the available evidence does not support a conclusion that the applicant can be released into the community on a supervision order.

54 I am satisfied that the applicant remains a serious danger to the community. That danger arises from there being an unacceptable risk that the applicant will reoffend if released into the community. I am not satisfied that that risk can be adequately managed on a community supervision order, at least on the evidence available to me at this time. In coming to that conclusion I have borne in mind that the paramount consideration is the need to ensure adequate protection of the community. In those circumstances the application is refused and I expressly decline to rescind the continuing detention order.