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

16 Dr Wojnarowska administered actuarial tests and conducted an interview with Mr McGarry for the purpose of this annual review. She noted that in the last 12 months Mr McGarry had been seeing a psychologist for counselling on a weekly basis. This counselling had concentrated on mindfulness and selfawareness. The efficacy of this counselling was difficult to test in a prison situation. However, both the counselling psychologist and Mr McGarry claimed that there had been progress.

17 Dr Wojnarowska noted that Mr McGarry's ability to monitor his own thoughts and emotional states had improved. He had been compliant with the counselling and engaged well. However, she concluded that the risk of reoffending remained high. An assessment of the improvements depended upon Mr McGarry's selfreporting and his high levels of psychopathy made it difficult to assess whether his answers were genuine. Dr Wojnarowska considered that there had been a reduction in risk in the last 12 months but not sufficient to take Mr McGarry out of the high risk category.

18 Dr Wojnarowska said that given Mr McGarry's high score for psychopathy, further psychological counselling was unlikely to be of benefit. The only intervention that could potentially reduce the risk in future was a resumption of antilibidinal medication. Mr McGarry told Dr Wojnarowska that this was something that he wished to do. She thought it would be important for Mr McGarry to start antilibidinal treatment before being released. Psychological support in the community, specifically in relation to risk scenarios and stressors (rather than counselling as to underlying causes) would also be beneficial.

19 Dr Wojnarowska confirmed that if Mr McGarry was to resume antilibidinal medication there would need to be a period during which he was assessed to see whether that treatment had been effective in reducing his libido and sexual fantasies. If that treatment proved to be effective and there was also appropriate psychological risk management and supervision, she was of the view that the risk of reoffending would be manageable in the community.

20 Dr Wynne Owen had previously assessed Mr McGarry in 2009 and 2013. He said that the risk factors for sexual violent reoffending by Mr McGarry were unchanged from 2013. Those risk factors were the presence of psychopathy, the historical record of previous offending, the presence of sexual deviancy and a currently active libido.

21 Dr Wynne Owen acknowledged the efforts to engage Mr McGarry in psychotherapy and group therapy but said that there was extremely good evidence to suggest that it was very unlikely that such therapies would actually have any benefit when the person concerned has a high level of psychopathy. He considered it was unfair to continue to suggest to an individual in these circumstances that there may be significant change that could result from these therapies when that was unlikely to be the case. He said that psychopathy and sexual deviance were relatively immutable. Accordingly, he did not consider that the psychotherapeutic engagement in the previous 12 months was likely to have had a significant effect in reducing the risk of reoffending.

22 Dr Wynne Owen concluded that Mr McGarry's risk of future serious sexual offending remained high. He was of the opinion that reduction of sexual drive through antilibidinal medication was the only therapeutic intervention likely to reduce the reoffending risk in the short term. He noted, however, that the adverse side effects previously experienced made it unlikely that such medication could be continued safely for more than two years. He said that Mr McGarry is a reasonably healthy 53yearold man and that it was unlikely that his level of risk of sex offending would diminish for physiological or mobility reasons until he was at least over the age of 60.

23 Dr Wynne Owen said that if Mr McGarry's libido could be minimised by medication, such that the frequency and intensity of sexual thinking was reduced, there would be a consequential reduction in the reoffending risk. Where libido is characterised by sexual deviancy, that deviancy can be particularly effectively managed by use of such medication. Medication results in the reduction of the intensity and the frequency of sexual thinking, in particular of deviant thoughts. However, it was important that if the medication was to be prescribed it be by a general physician who could manage the significant side effects in regards to reduction of bone density, increased cholesterol, increased blood pressure and breast growth. He noted that Mr McGarry had experienced significant side effects during the period of his last use of the medication. He understood that Mr McGarry had been referred to Dr Hinton but was unaware of what treatment was proposed or how the side effects would be mitigated. He accepted, however, that it was positive that Mr McGarry was prepared to take the risk of using antilibidinal medication as a way of addressing his risk. He confirmed that the medication would not be effective immediately and that a period of time would need to elapse before its effectiveness could be assessed. He considered that that period was one to three months.

24 Ms Rankin is a senior clinical psychologist who works for the Department of Corrective Services. For the purposes of preparing the report for this review she had a discussion with Mr McGarry's treating psychologist. She reported that Mr McGarry has had 38 sessions of individual psychological counselling since his last annual review. Sessions began on 23 January 2014 and have generally been weekly.

25 The treating psychologist told Ms Rankin that Mr McGarry had been an active participant who was well engaged in treatment. Ms Rankin concluded that Mr McGarry appears to have benefited from the counselling. He appears to have increased awareness and recognition of his own emotions. Progression into the community would pose additional challenges to emotional regulation skills and expose Mr McGarry to situations and stressors that he does not have within the custodial setting. If he continues to engage with his treating psychologist Mr McGarry will have the opportunity to test his skills and develop appropriate strategies for managing a range of risk scenarios.

26 Ms Rankin concluded that Mr McGarry was near to a stage where he was unlikely to obtain further benefit from treatment in a prison environment. He would now benefit from opportunities to test his skills within the community. If released into the community Mr McGarry would benefit from regular sessions to address his treatment goals.

The community supervision assessment report - Ms Dabala

27 Ms Dabala completed a community supervision assessment report dated 12 December 2014. She also gave evidence at the initial hearing on 22 December 2014 and at the resumed hearing on 20 January 2015. Amongst other things, Ms Dabala's report considered proposed accommodation in the community, community supports and antilibidinal treatment.

28 Mr McGarry proposed living with his sister if released on a supervision order. Serious concerns were raised in regard to the proposed accommodation. These included the close proximity of the house to a school. Both of the psychiatrists considered that that proximity was inappropriate. The house was also close to a laneway and a public bus stop that would provide opportunities to watch children from the house. This was behaviour that could not be monitored even if Mr McGarry was limited by GPS tracking or a curfew. A further issue was that Mr McGarry's sister was willing to accommodate him only for a maximum of six months.

29 As to community supports, Mr McGarry referred to his sister and his daughter. As his daughter was a past victim and has continuously maintained a wish to only have limited contact with him, his nomination of her as a support person indicates a failure to understand or respect her wishes.

30 As regards the antilibidinal treatment, as noted above, Mr McGarry previously was prescribed such medication but ceased use of it due to adverse side effects. Prior to the last annual review he had expressed a wish to resume the treatment but was unable to obtain the medication due to a change in departmental policy. The Health Services Division of the Department of Corrective Services is no longer willing to prescribe antilibidinal treatment to people in a custodial setting. However, Health Services are willing to facilitate assessments and health checks for prisoners who are prescribed the medication by external doctors.

31 In April 2014, arrangements were made for Mr McGarry to consult Dr Steven Hinton, a general physician who visits the Bunbury Regional Prison. It was understood that Dr Hinton was prepared to assess individuals held on indefinite detention orders under the DSO Act for suitability for antilibidinal treatment in the prison. Should the detainees be found suitable for such treatment, it was expected that they would participate in six monthly reviews with Dr Hinton whilst in the custodial environment. For reasons that are not presently relevant, Mr McGarry did not see Dr Hinton at Bunbury Regional Prison until 17 November 2014. Subsequently, Mr McGarry informed Ms Dabala that Dr Hinton would not prescribe him with antilibidinal medication in prison due to his previous health issues. According to Mr McGarry, Dr Hinton had suggested radiation treatment to deal with breast growth, impact exercises such as skipping, cognitive treatment and supplements such as calcium to reduce the side effects of treatment. The implication of this was that Dr Hinton may be willing to prescribe the medication at some point in the future.

32 Prior to the resumed hearing on 20 January 2015, Mr McGarry advised Ms Dabala of proposed alternative accommodation. The accommodation was a house on a farm in a country area within 100 kms of Perth, that was available for rent. Ms Dabala received this information approximately one week before the resumed hearing and was unable to conduct a detailed community assessment. However, she did consult with the monitoring section of the Department and it was discovered that GPS monitoring at the house was not possible. Coverage by GPS only extended to the public road. The house was some distance from this road. The effect of this was that monitoring at the house itself could not occur. In the event that there was an attempt to remove the GPS anklet, the usual alert signal would not be received. For these reasons, Ms Dabala said that the proposed accommodation was considered to be unsuitable even without undertaking any further assessment.

33 Dr Steven Hinton is a general physician in practice in Bunbury. He provided a letter dated 19 January 2015. The letter was tendered in evidence at the resumed hearing on 20 January 2015.

34 Dr Hinton's letter confirmed that he saw Mr McGarry briefly in Bunbury Regional Prison on 17 November 2014. He took a history from Mr McGarry and confirmed that Mr McGarry had completed three years of antilibidinal medication in the past and had suffered significant side effects that had caused the discontinuation of the medication. Dr Hinton believed that it was a condition of release that antilibidinal medication be administered to Mr McGarry. He then stated that Mr McGarry had previously demonstrated side effects directly attributable to such medication. The severity of the side effects was directly related to the duration of therapy and the dosage used.

35 Dr Hinton stated that Mr McGarry does not require androgen suppression therapy for a medical condition. It would seem from this, for reasons that are not entirely clear, that Dr Hinton was excluding from medical conditions those psychiatric conditions referred to by Dr Wojnarowska and Dr Wynne Owen. He was of the view that the requirement for the treatment was of a legal and not a medical nature and that Mr McGarry would need to provide informed consent and acknowledge that therapy would result in adverse impacts on his physical health. He also said that antilibidinal therapy would provide only one component of management and was not guaranteed to be effective. He said that he was able to supervise therapy to ensure compliance and attempt to minimise side effects. It was not clear from this whether he was willing to prescribe the medication.

36 It would appear that Dr Hinton was under a misunderstanding as to the basis upon which it was proposed that Mr McGarry would commence taking antilibidinal medication. There is no court order or legal requirement for Mr McGarry to take the medication. Nor, at present, is there any supervision order that requires Mr McGarry to do so. What Mr McGarry wishes to do is commence taking such medication whilst in custody in order to reduce his risk of reoffending and that the effectiveness of that therapy would be monitored in that environment. If the medication proved to be effective, that could then be taken into account in assessing risk and determining whether a supervision order was appropriate.

37 It was expected that the report from Dr Hinton would address the following issues:

(1) whether he was prepared to prescribe antilibidinal medication;

(2) whether there were programmes or therapies could be put in place to mitigate adverse side effects and if so, what they are and what was their likely effectiveness; and

(3) what period of time on the medication was required before a determination could be made that testosterone levels had fallen to a stabilised level.

38 Unfortunately, it appears that Dr Hinton was not made aware of what was required. As at the date of the resumed hearing Mr McGarry had not been prescribed medication and there was no indication of when that might occur, if at all. However, counsel for the applicant did confirm that if Dr Hinton did prescribe the medication departmental medical services would dispense and monitor its use.

39 Mr McGarry gave evidence at the resumed hearing. He said that he had been on antilibidinal medication in the past but had ceased using it two and a half years ago due to the side effects. He asked to resume the medication 18 months ago but departmental doctors refused to prescribe it.

40 Mr Garry saw Dr Hinton in Bunbury Prison on 17 November 2014. He said that the consultation was for about 40 minutes. Nothing happened thereafter and there were no further consultations with Dr Hinton. He returned to Casuarina Prison the following day.

41 Mr McGarry said that he wished to resume antilibidinal medication notwithstanding the risk to his health. He reported that on the previous occasion his libido had reduced significantly and he did not have sexual thoughts. He said that in the consultation with Dr Hinton he had been advised to commence some steps that would mitigate possible side effects if he was to resume the medication. This included impact exercise, a weight loss diet and cholesterol medication. He had commenced the implementation of these suggestions, including resuming anticholesterol medication about one week earlier.

42 Mr McGarry said that be became aware of the accommodation on the farm through a newspaper. The house was 12 km west of the nearest town. He agreed that he spoke to Ms Dabala about the house in the week prior to the resumed hearing. He said that his sister had contacted the owner who was willing to lease it to him on an agreement that Mr McGarry would pay six months' rent in advance. He said he was in a position to meet that financial commitment.

43 It is clear on the evidence that Mr McGarry remains a serious danger to the community. This was not disputed on the hearing. The issue is whether the risk of reoffending can be adequately managed in the community on a supervision order.

44 Mr McGarry remains at high risk of reoffending. The factors that contribute to that risk include a sustained deviant sexual interest and continuing sexual desire. Other facts include psychopathy, narcissism and antisocial personality traits. The nature of these factors means that psychotherapy has limited benefits in reducing the risk of reoffending. Unless that risk can be reduced by some other means it is not of a nature that can be adequately managed in the community. The only reasonable option for reducing the risk to a manageable level is antilibidinal therapy. It would appear that there is some prospect that such therapy could reduce libido and sexual fantasies and have a significant consequential effect upon the risk of reoffending.

45 As at the date of the hearing, Mr McGarry had not commenced taking antilibidinal medication. Notwithstanding his wish to resume that medication, it would appear that no doctor has yet prescribed it. Doctors employed by the Department of Corrective Services are not willing to do so. It is not clear from Dr Hinton's report whether he is willing to do so.

46 Until Mr McGarry has 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 is impossible to make a determination as to whether a supervision order is a viable option. Whether a programme can be developed by Mr McGarry, in consultation with his doctors, to take the medication, monitor its effectiveness and mitigate any side effects, is not yet clear. It is impossible to make any predictions as to how such a programme might impact on a longterm risk. In these circumstances, at present, the risk is not such as could justify release on a supervision order.

47 There is another factor that makes a supervision order a nonviable option. That is that there is no suitable accommodation to which Mr McGarry could be released. It is clear that his sister's house is not suitable given its proximity to a school and to walking routes used by children. The farm property is not suitable because it is not in an area that is capable of being monitored by GPS. Both Dr Wojnarowska and Dr Wynne Owen stress the importance of suitable accommodation and employment in reducing the risk of reoffending by minimising exposure to risk factors and boredom. In the absence of suitable accommodation I cannot be satisfied that release into the community could be on a basis that would adequately protect the community.

48 For these reasons, I am satisfied that Mr McGarry remains a serious danger to the community. I am also satisfied that his risk of reoffending cannot, at present, be adequately managed if he is released on a supervision order. In saying that, I am satisfied that there are no conditions that could be imposed that would reduce to an acceptable level the risk that Mr McGarry could reoffend. For those reasons, I expressly declined to rescind the continuing detention order.

49 I take this opportunity to note that the reason that it was necessary to adjourn this review was because not all of the relevant evidence was available on 22 December 2014. It is important that reviews of this nature be heard and resolved in a timely way. Delays can adversely affect those who are detained because they set back the date for future reviews in the event that the detention is not rescinded. It is desirable that every effort is made by both parties to obtain all relevant evidence prior to the review hearing date.