1 This is the fourth annual review of a continuing detention made under the Dangerous Sexual Offenders Act 2006 (WA) (DSO Act) by Jenkins J on 24 September 2009: Director of Public Prosecutions (WA) v McGarry [No 2]

3 In making a decision as to whether a person who is a serious danger to the community should continue to be detained or be released on a supervision order, the paramount consideration is the need to ensure adequate protection of the community: s 33(3) DSO Act.

4 On this review Mr McGarry did not dispute he remained a serious danger to the community. All of the expert evidence supported that conclusion. The matter in issue was whether Mr McGarry could be released into the community on a supervision order with conditions that would adequately protect the community from the risk that he would commit further serious sexual offences.

5 The hearing of this review commenced on 20 January 2016. The hearing was then adjourned to 29 February 2016 to enable further enquiries to be made regarding suitable accommodation. Those enquiries were not completed and further hearings occurred on 8 and 11 March 2016.

6 Mr McGarry's personal history and his history of offending were detailed by Jenkins J in Director of Public Prosecutions (WA) v McGarry [2009] WASC 226 [14] [41]. I summarised that history in DPP v McGarry [No 4] [8] [13].

7 Mr McGarry was due to be released from prison on the conclusion of a sentence of imprisonment for serious sexual offences on 2 January 2009. Prior to that date, on 7 November 2008, the State filed an application under the DSO Act. On the hearing of that application the DPP sought that a supervision order be made. Such an order was made and Mr McGarry signed that order on 17 August 2009 and was released from custody shortly thereafter. The conditions of the order included a prohibition on Mr McGarry having facetoface contact with his daughter unless the contact was prearranged via telephone. A further condition prohibited him from being at a shopping centre without reasonable excuse at any time on weekends, except for specified purposes.

8 Mr McGarry breached the terms of the order and the DPP brought proceedings for contravention of the supervision order pursuant to s 23 of the DSO Act. Those contraventions were found proven: DPP v McGarry [No 2]. Jenkins J concluded that she was not satisfied that Mr McGarry had complied with the constraints of the order and was not likely to comply with them in the future. In these circumstances she concluded that there was an unacceptable risk that if a continuing detention order was not made Mr McGarry would commit a serious sexual offence [74] [77]. A continuing detention order was then made of which this is the fourth annual review.

9 At the last annual review I concluded that the factors that contribute to Mr McGarry's risk of reoffending include a sustained deviant sexual interest and a continuing sexual desire. Other factors included psychopathy, narcissism and antisocial personality traits. The nature of those factors mean that psychotherapy has limited benefit. Unless the risk could be reduced by some other means it was not of a nature as to be capable of being adequately managed in the community. I noted that the only reasonable option for reducing the risk to a manageable level was antilibidinal therapy. Mr McGarry had previously undertaken a course of such therapy but had ceased it due to significant adverse health effects. As at the date of the last annual review he was seeking to resume antilibidinal medication but had been unable to find a doctor who was willing to prescribe it. I concluded that until Mr McGarry had been prescribed the medication and been on it for some period of time to determine whether it has been effective in reducing the risk of reoffending it was impossible to make a determination as to whether a supervision order was a viable option. It was also unclear at that stage whether a programme could be developed by Mr McGarry in consultation with his doctors to take the medication, monitor its effectiveness and mitigate its side effects.

10 There was another factor which made a supervision order a nonviable option at the time of the last review. That is that there was no suitable accommodation to which Mr McGarry could be released. Two suggested options had been assessed and found to be inappropriate either because of the proximity to a school or because the property was in an area not capable of being monitored by GPS tracking. Both of the psychiatrists who gave evidence at the last review stressed the importance of suitable accommodation and employment in reducing the risk of reoffending by minimising exposure to risk factors and boredom.

11 Due to the factors referred to I was not satisfied as at the last annual review that Mr McGarry's risk of reoffending could be adequately managed if he was released on a supervision order.

12 At the hearing of this review the DPP tendered a book of materials. There was no objection to the tender. In addition to historic materials, the book included the following:

(1) an individual management plan prepared by the Department of Corrective Services dated 14 December 2015;

(2) prison medical records for the period 18 November 2014 to 3 December 2015;

(3) a treatment progress report by Ms Vanessa Rankin, a senior clinical psychologist with the Department of Corrective Services dated 14 December 2015;

(4) a community supervision assessment by Ms Jane Henshall, a senior community corrections officer with the Department of Corrective Services dated 13 January 2016;

(5) a psychiatric report by Dr Gosia Wojnarowska dated 7 January 2016;

(6) a psychiatric report by Dr Peter Wynn Owen dated 13 January 2016; and

(7) a number of letters written by Mr McGarry from prison to a woman with whom he proposes to have a relationship.

13 The applicant called Ms Rankin, Ms Henshall, Dr Wojnarowska and Dr Wynn Owen to give oral evidence.

14 In addition the applicant tendered by consent a bundle of medical records setting out the details of Mr McGarry's resumption of antilibidinal medication and subsequent testing of his hormone levels.

15 At the resumed hearing on 29 February 2016 the applicant tendered an 'Update Community Supervision Assessment' Report dated 24 February 2016. This report provided information as to a number of accommodation options that had been put forward by Mr McGarry. Further such reports were tendered on 8 and 11 March 2016.

16 Mr McGarry elected not to give or adduce any evidence on the application.

17 At the last annual review the court was informed that the prison medical authorities had made a decision that they would not prescribe antilibidinal medication. This meant that detainees like Mr McGarry who wished to take such medication in order to lower their risk of reoffending and improve their chances of release were faced with the difficult prospect of finding a private doctor who would take them on as a patient and agree to prescribe the medication. For reasons that are unclear, during the course of 2015 the prison medical authorities decided to make an exception in the case of Mr McGarry and he was prescribed Androcur, an antilibidinal medication, by a prison doctor. He commenced on Androcur on 26 September 2015 at a dose rate of 25 mg per day.

18 Mr McGarry has undertaken blood tests since he commenced on Androcur to monitor its effects, both in reducing the male hormone testosterone and any possible adverse side effects. Prior to commencing on Androcur his testosterone levels were 21 nanomoles per litre of blood (the normal range is 10 to 35 nanomoles per litre). Two months after commencing on Androcur testing was again undertaken on 26 November 2015. This testing showed that there had been a marked reduction in testosterone, (namely to 3.8 nanomoles per litre. That result was significantly lower than the normal range and indicated that Androcur had been effective.

19 Since his last annual review Mr McGarry has continued psychological counselling. There have been 17 such sessions which initially occurred fortnightly, reducing to monthly in May/June 2015. The reduction in frequency coincided with Mr McGarry's increasing investment in a relationship with a woman in the Philippines, to whom he has written letters. He appeared to be aggrieved by what he perceived as a high degree of scrutiny regarding this relationship. He also said that he was becoming weary of repeatedly addressing the same material in regard to his ongoing treatment goals.

20 Mr McGarry's treating psychologist reported that he continued to be well engaged with the therapeutic relationship and was an active participant. He was usually open to feedback and would often raise issues arising from previous sessions. In doing so he demonstrated that he had reflected on session content in the time between those sessions. He was generally comfortable to discuss a range of issues, including his deviant sexual interests.

21 The psychologist advised that Mr McGarry was still sexually driven, although this had declined somewhat over the years. There was a regular pattern of masturbation to still images but he demonstrated insight into the links between his current sexual behaviour and his sexual behaviour in the community. Whilst he acknowledged a residual interest in 12 to 16yearold girls for visual sexual stimulus he stated that his preference for actual sexual activity was adult females. The psychologist considered that Mr McGarry had a realistic view of the status and future of his relationship with the woman he was writing to. This relationship was characterised as being potentially protective.

22 Ms Rankin interviewed Mr McGarry for the purposes of her report. She noted that in contrast to the assessment for the last annual review he presented as being relaxed and had engaged well. He discussed a wide range of topics relevant to his potential release without any visible signs of discomfort. Information he provided was consistent with other sources of available information. Mr McGarry told Ms Rankin that since he had recommenced on Androcur his general motivation had declined. He said that the effect of the medication was to override any urge to respond to sexual triggers. There had been a decline in masturbation and he said that he was no longer seeking out visual material for this purpose due to his waning libido.

23 Ms Rankin concluded that Mr McGarry remained well engaged with his counsellor, with whom he had formed a strong and positive relationship. However, the ability to achieve more from counselling is limited in a prison environment. Ms Rankin concluded that Mr McGarry would benefit from opportunities to test his skills in the community with continuing individual sessions with his existing counsellor. Release into the community would also provide him with the prospect of exploring his capacity to develop and maintain a healthy intimate relationship.

24 Dr Wynn Owen has assessed Mr McGarry on previous occasions in 2009, 2013 and 2014. He undertook an interview with Mr McGarry and also utilised a number of risk assessment tools. He concluded that Mr McGarry's risk of future serious sexual offending is high based on historical factors, the presence of antisocial personality disorder and high levels of psychopathy. That risk can, however, be addressed by use of antilibidinal therapy.

25 In Dr Wynn Owen's opinion antilibidinal medication is an effective way of reducing the risk of reoffending and would be an essential component in managing any such risk in the community. Mr McGarry had reported a significant reduction in his libido following his resumption of Androcur. This was consistent with the test results and past experience. Dr Wynn Owen suggested that an increase in the dose rate could be trialled in order to see whether the amount of active testosterone could be reduced still further. He acknowledged that this carried with it some risk of increased side effects.

26 Dr Wynn Owen did not consider that the relationship with the woman to whom Mr McGarry is writing is presently protective because it is not yet clear whether the correspondence can translate into a real relationship in the community. He also noted that it was possible that the effects of the Androcur would frustrate an intimate relationship with the woman and reduce the desire to be compliant with the medication.

27 Dr Wynn Owen was of the view that continued use of medication was essential in the effective management of risk and that there should be a mechanism for reassessing the risk in the event that Mr McGarry became noncompliant with the medication regime. Use of the medication should continue until at least the age of 60, that is for five years, when the need for its continuation could be reviewed. Dr Wynn Owen suggested that other ways in which the risk of reoffending could be managed would be the continuation of regular counselling, GPS monitoring and conditions that would ensure that Mr McGarry does not have unsupervised contact with children.

28 Dr Wojnarowska has also previously assessed Mr McGarry. For the purposes of this review she reinterviewed him and reassessed his risk of reoffending. Mr McGarry reported that his libido had declined since he started Androcur. He also reported that he had not had any deviant thoughts about children for the last three years. However he did accept that he fitted the 'paedophile criteria', though claiming that his sexual preference had always been for adult females. Dr Wojnarowska considered that this concession was significant because Mr McGarry had never previously accepted that his past behaviour fell within the criteria for paedophilia.

29 Dr Wojnarowska concluded that Mr McGarry's risk of reoffending was still high though some reduction had occurred in the areas of motivation, recommencement of antilibidinal medication and improvement in the ability for selfreflection and acceptance of a diagnosis of paedophilia.

30 Dr Wojnarowska also considered that antilibidinal medication was an important factor in reducing the risk of reoffending and that its continued use would be essential if Mr McGarry was to be released into the community. She did not recommend an increase in the dose rate. This was in part due to the fact that the existing dose rate had been effective and also because increasing the dose rate could be counterproductive. An increased dose rate may make Mr McGarry more prone to lethargy and boredom. Dr Wojnarowska said that boredom was a factor which could increase risk. She concluded her oral evidence by saying that with continued use of antilibidinals and other appropriate conditions Mr McGarry was now capable of being adequately managed in the community.

31 Mr McGarry received a significant inheritance, approximately $100,000, on the death of his mother in 2012. Whilst this means that he has an independent source of funds to obtain accommodation, it disqualifies him from any supported accommodation from Homeswest or other service providers who obtain their accommodation through Homeswest. This places him in an unusually difficult position. Most private rental landlords and agents require a personal application or meeting with the prospective tenant. This is something that it is impossible for Mr McGarry to do whilst he remains detained in prison. One possible solution is to obtain some short term private accommodation that does not require obtaining a formal lease with a view to finding more permanent accommodation after release.

32 Ms Henshall reported that with her assistance Mr McGarry had located short term accommodation that was available for a four week period at serviced apartments south of the river. A booking at these apartments was made and a deposit paid on behalf of Mr McGarry by his sister. However Ms Henshall reported that subsequent checks with the Department of Child Protection and Family Support revealed that the apartments in question were used from time to time for crisis accommodation for victims of domestic violence and their families. In the period covered by the booking one such family would be in residence at the units. That family included a vulnerable child. In these circumstances the Department of Child Protection and Family Support were not supportive of Mr McGarry being released to reside at that location. It was in these circumstances that the proceedings were adjourned to 29 February. Mr McGarry's counsel sought that adjournment in order to make enquiries regarding other possible accommodation.

33 The Community Supervision Assessment Report dated 24 February 2016 states that a number of other options had been investigated. The first of these was short stay accommodation in Belmont. There was availability in the necessary timeframe, however inquiries established that there was a primary school within 150 metres and that school children walked directly past on their way to or from school. The second option was for Mr McGarry to reside with his nephew. The nephew was contacted and expressed a guarded willingness to provide accommodation for up to three months. However, on further inquiry the nephew said that he provides refuge to his sister and her four children (aged between three months and nine years) at times when her relationship becomes volatile. The children also visit at other times, staying overnight once every three weeks. The third option was a private rental in Cardup, but an application to rent that property was unsuccessful. The fourth option was a second private rental in Parmelia. This property was available and the owner was willing to rent it to Mr McGarry, though he had some concerns that if the address was made public the property could be damaged by vigilantes. However, the most recent information is that a former victim of Mr McGarry lives in close proximity to this house and this is a matter of concern to the authorities. Attempts to contact that victim have not yet been successful.

34 On 29 February 2016 counsel for McGarry acknowledged that the several options considered up to that time had not proven to be suitable. However, he then sought a further adjournment to explore yet another accommodation option which had recently been identified. This was a house in a new estate which was available for rent for at least nine months. With some reluctance I allowed a further adjournment, although I noted that this was a process that must reach an end point. The intention of the Act is that there be an annual review; not that the court conduct an ongoing supervision process.

35 Some information about the final property was available on 8 March 2016, but the Sex Offender Management Squad of the WA police had not completed their inquiries and I asked for some specific issues to be addressed. On 11 March 2016 a further 'Update Community Supervision Assessment' Report dated 9 March 2016 was tendered. This report confirmed that the proposed residence is a single storey dwelling in a new residential area in a semirural area south of Perth. There are relatively few other houses in the area at this time, though that is likely to change. Within two kilometres of the dwelling are several parks, sporting complexes and public spaces. Significantly, there are four schools within that area, three primary schools and one secondary college. There are also a further two primary schools and three kindergarten or child care centres just outside the two kilometre radius. Police intelligence indicates that there are families with children in the area who have been the subject of domestic violence incidents in the last 12 months. There are also two convicted child sex offenders living within 500 metres of the proposed residence, and a nonconsorting notice under s 557K of the Criminal Code is likely to be necessary.

36 An analysis by the WA Police Sex Offender Management Squad expresses a number of concerns about the proposed residence. Amongst these are the close proximity of schools and the fact that Mr McGarry's past offending has included randomly selected girls. There is a concern that the premises would afford an opportunity to identify, observe and plan further offending. The police also note that the nearest 24 hour police station is a significant distance away and that the earliest response time would be 40 to 50 minutes.

37 There is another significant impediment to the suitability of the proposed residence. Testing at the site has shown that the general area of the residence and the immediate surroundings does not have mobile network coverage of sufficient quality to support real time GPS tracking. The GPS device would record movements but only be able to transmit them when it was next in a good mobile coverage area. A landline at the dwelling would allow for transmission of information when the device was placed into a docking station but would not improve coverage at that area or beyond it to exclusion zones, like schools and playgrounds, in the surrounding area. The effect of this is that GPS tracking could not be done in real time and, at best, there may be a delay of several hours before movements that might indicate high risk or prohibited behaviour were detected. This would render GPS tracking largely futile.

38 Ms Henshall gave evidence on 11 March 2016 regarding testing of the GPS device and was crossexamined. She said that on 6 March 2016 officers of the monitoring section of the Department had attended at the residence and established that there was no coverage sufficient to transmit information from the device at the address or in the immediate area. Ms Henshall said that whilst there may well be 4G mobile network coverage in that area the devices all use the 3G network because they were manufactured before the 4G network was developed. In any event the devices require stronger signals than mobile telephones to operate. The possibility that the device tested was dysfunctional was discounted because it was found to operate appropriately both before and after the test.

39 Mr McGarry remains a serious danger, however the essential issue is whether he can be adequately managed in the community on a supervision order. The consensus of opinion of the psychiatrists and psychologists is that he can, subject to conditions that require continued taking of antilibidinal medication, continued counselling and conditions that would exclude opportunities to come into contact with children.

40 Mr McGarry has now been taking Androcur for some months. It has proven effective in lowering his testosterone levels and reducing his libido. He is willing to continue taking the medication and negative sideeffects have not (as yet) recurred.

41 At the last annual review I noted that at that time Mr McGarry had not resumed antilibidinal medication and that would need to occur and be shown to be effective before he stood a real prospect of release on supervision. However, there was at that time another impediment; suitable accommodation.

42 As I have noted in another case, the availability of suitable accommodation is not simply a question of finding somewhere to live. Any place of residence needs to be at a location where controls to prevent the risk of reoffending can be put in place and adequately managed: Director of Public Prosecutions (WA) v West [No 3] [2015] WASC 188 [34]. Each of the proposed accommodation options has problems that, in my view, make them unsuitable. The proximity of children or former victims would make management considerably more difficult and increase the risk of offending. This is so even taking into account the antilibidinal medication, which (as I have noted on a previous occasion: Director of Public Prosecutions (WA) v McGarry [No 4] [2012] WASC 349 [69]) is not a panacea, but rather one facet of a possible management plan.

43 Any supervision order must include some mandatory conditions, as well as such other conditions as the court thinks appropriate: s 18. One of the mandatory conditions is to be under the supervision of a Community Corrections Officer, which includes complying with directions, including a direction to comply with electronic monitoring or a curfew: s 18(1)(d) and s 19A and s 19B. The last accommodation option is unviable in this respect. Electronic tracking by GPS could not be done in real time and would therefore provide no realistic control measure. I note in this regard that GPS monitoring was one of the conditions mentioned by Dr Wynn Owen as being necessary. A curfew is not a realistic alternative because it would have to be monitored by police and there is no nearby 24 hour police station. In any event a curfew could not exceed 12 hours in any one day: s 19B(4).

44 Counsel for Mr McGarry submitted that I should release him on a supervision order to reside at the property assessed for GPS, with a strict curfew. This, it was said, would enable him to look for other more suitable accommodation and then seek an amendment of the supervision order. This is not a practical suggestion. As I have noted, any curfew could not extend beyond 12 hours a day and would be difficult to monitor. During the balance of the day there could be no effective monitoring because of the absence of adequate mobile network coverage. In any event it is undesirable to release a person on a supervision order which is only an interim measure when there is no real certainty that permanent suitable accommodation can be found.

45 In Director of Public Prosecutions (WA) v Griffiths [2015] WASC 393 I noted that an inability to find suitable accommodation for detainees who were otherwise suitable for release on supervision was a frequently recurring problem. Some form of halfway house or supervised accommodation would substantially alleviate this problem. But such facilities as exist are generally not available for people released on supervision orders. As frustrating as this is, it cannot compromise the safety of the public, which is, and remains the paramount consideration.

46 In the circumstances I conclude that Mr McGarry is presently suitable for release on a supervision order but only if that can be to a place where the conditions of release can be effective. No such place has been found and I have no reason to believe that a suitable place is presently available. Accordingly, I am not satisfied that Mr McGarry can presently be released on conditions that would be effective in managing the risk that he would commit a further serious sexual offence if released, or in reducing that risk to an acceptable level.

47 I expressly decline to rescind the continuing detention order.