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[2009] WASC 226
mixed. The court found the respondent to be a serious danger to the community and, having amended and strengthened the proposed conditions (including express conditions for anti-libidinal treatment with...
The DPP applied for post-sentence orders under the Dangerous Sexual Offenders Act in respect of Michael McGarry, who has a longstanding history of sexual offences against children and escalating behaviour. Two psychiatrists assessed him as high risk of re-offending. The court found, to the required high degree of probability, that McGarry posed an unacceptable risk and was a serious danger to the community. Rather than indefinite detention, the court made a 10-year supervision order with highly restrictive conditions (approved residence, curfew, prohibitions on contact and work, mandatory anti-libidinal medication with serum monitoring and disclosure obligations, GPS/monitoring and mandatory psychological counselling) because, as amended, the order would adequately protect the community.
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1 cited instrument linked from this judgment.
The Director of Public Prosecutions (WA) applied under the Dangerous Sexual Offenders Act 2006 (WA) for either a continuing detention order or a supervision order in respect of Michael Alexander McGarry (the respondent). The respondent had an extensive history of sexual offending spanning decades, including indecent assaults and sexual penetrations of children, voyeuristic and exhibitionist behaviours, repeated parole breaches and escalation to more intrusive offending (see [23]–[38], [91]–[97]). At the hearing the DPP sought a supervision order (having earlier indicated risk of the respondent's proposed accommodation) and the respondent consented to a supervision order. The court ordered psychiatric examinations under s 37 and received two detailed psychiatric reports from Dr Gosia Wojnarowska and Dr Peter Wynn Owen (see [44]–[47], [72]–[84]).
Both psychiatrists diagnosed paraphilic disorders (voyeurism, exhibitionism, paedophilia) and anti-social personality disorder, scored the respondent highly on actuarial instruments (Static-99 score 8/12; PCL-R 27) and concluded he posed a significant or very high risk of re-offending in circumstances resembling his past offending, including risk to pre-pubescent and pubescent girls (see [63]–[71], [80]–[83]). The court accepted the psychiatrists' opinions, found the DPP had proved the s 7(1) matters to the statutory standard (acceptable and cogent evidence to a 'high degree of probability'), concluded the respondent was a 'serious danger to the community' and, after strengthening the proposed supervision conditions, made a ten-year supervision order with onerous restrictions and monitoring obligations including mandatory anti-libidinal medication with serum monitoring and reporting arrangements (see [4]–[6], [105], [109]–[123], [123]–[125]).
The decision turns on statutory structure and evidential assessment. The Act requires the DPP to satisfy the court that, on the evidence, there is an 'unacceptable risk' that the respondent would commit a 'serious sexual offence' if not subject to a continuing detention or supervision order (s 7(1)). The DPP bears the onus (s 7(2)) to prove the s 7(1) matters by 'acceptable and cogent evidence' and 'to a high degree of probability' (see [4]–[6]). Jenkins J treated that standard as higher than normal civil balance yet lower than criminal beyond reasonable doubt (see [6]).
The court must consider enumerated factors in s 7(3): psychiatric reports under s 37, other assessments, propensity to offend, patterns of offending, participation and response to treatment, antecedents, and the risk and need to protect the community (see [8], [45]–[106]). Here, the court had unchallenged, detailed s 37 psychiatric reports and a long offending history showing escalation and relapse after release. Both psychiatrists used validated risk tools and clinical judgment to place the respondent in a high risk category. Jenkins J accepted those opinions and drew adverse inferences from the respondent's minimisations and his expressed intention not to remain on anti-libidinal medication beyond a short period (see [50]–[71], [88]–[100]).
Once the statutory criteria for a 'serious danger' finding were met, s 17(1) required the court to make either a detention or a supervision order; s 17(2) makes the need to ensure adequate protection of the community the paramount consideration (see [3], [107]–[108]). The DPP proposed extensive supervisory conditions. The court scrutinised practical enforceability (especially medical compliance), insisted on express monitoring/reporting conditions for medication, required mandatory psychological counselling for the first 12 months and relied on police approval of an accommodation address before allowing release. Weighing the high risk against the prospect of strict, enforceable supervision, the court concluded a heavily conditioned supervision order could adequately protect the community (see [114]–[123], [123]–[125]).
Before the judgment the existing jurisprudence under the DSOA (as developed in cases such as Director of Public Prosecutions (WA) v Williams and DPP v GTR) had clarified important statutory concepts. Wheeler JA's discussion of 'unacceptable risk' in Williams (quoted at [10]) had been accepted and affirmed in GTR (see [9]–[11]). Jenkins J followed those authorities and applied the statutory test as requiring a qualitative assessment informed by likelihood of re-offending, the likely type of offence and consequences of making the finding (see [10]).
This judgment reinforces several legal positions:
Post-judgment, practitioners should note the court's willingness to make very intrusive supervisory conditions, including monitoring of medications by serum testing and requiring doctors to report non-compliance, as a means of meeting the s 17(2) threshold for adequate protection where appropriate.
This decision is instructive where:
This judgment explicitly follows and applies earlier appellate dicta (Williams, GTR) on interpretation of 'unacceptable risk' and the operation of ss 7 and 17. Jenkins J endorsed the approach of those appellate decisions (see [9]–[11]). The practical points emphasised here, particularly the insistence on express, monitored conditions for anti-libidinal medication and the requirement of enforceable monitoring/reporting arrangements, provide a template for later courts assessing whether community supervision can adequately protect the public. Practitioners should expect courts to scrutinise proposed conditions for enforceability and to require evidence that supervising agencies can and will implement monitoring and treatment regimes (see [114]–[123], [124]).
Conclusion: DPP v McGarry applies statutory tests strictly, requires strong psychiatric evidence, and demonstrates a willingness to impose highly intrusive but carefully framed supervision conditions (including monitored medical treatment) where those conditions, if enforceable, will achieve the statutory paramount objective of adequate community protection (see [105], [107]–[125]).
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
CITATION : DIRECTOR OF PUBLIC PROSECUTIONS FOR WESTERN AUSTRALIA -v- McGARRY [2009] WASC 226
HEARD : 12 NOVEMBER 2008, 23 FEBRUARY, 13 MARCH, 7 AUGUST 2009
MATTER : Sections 8, 14, and 17(1) of the Dangerous Sexual Offenders Act 2006
BETWEEN : DIRECTOR OF PUBLIC PROSECUTIONS FOR WESTERN AUSTRALIA
Criminal law and procedure - Dangerous Sexual Offenders Act 2006 (WA) - Application for continuing detention or supervision order - Whether respondent is a serious danger to the community - Whether community would be adequately protected by a supervision order
Evidence Act 1906 (WA), s 106A
Sentencing Act 1995 (WA), s 98
1. The respondent is a serious danger to the community
Director of Public Prosecutions (WA) v GTR [2007] WASC 318
Director of Public Prosecutions (WA) v Williams [2007] WASCA 206
McGarry v The Queen [2001] HCA 62; (2001) 207 CLR 121
McGarry v The State of Western Australia [2005] WASCA 252; (2005) 31 WAR 69
R v McGarry [2004] WADC 223; (2004) 37 SR (WA) 63
1 JENKINS J: This application is made by the Director of Public Prosecutions for Western Australia (DPP) pursuant to the Dangerous Sexual Offenders Act 2006 (WA) s 8 for either a continuing detention order or a supervision order. A few days before the hearing of the application, the DPP advised that he would be seeking a supervision order. However, on the day appointed for the hearing, the DPP sought an adjournment so that further enquiries could be made about the respondent's proposed place of residence, which the DPP thought was unsuitable. At the same time I raised a number of issues about the proposed conditions of the supervising order. The application was adjourned so these matters could be responded to. The DPP now says that a suitable place of residence has been found for the respondent and asks that a supervision order be made.
2 The respondent consents to a supervision order being made in the terms proposed by the applicant. However, it is still necessary for me to be satisfied that the requirements of the Act have been satisfied before I can make such an order.
3 The Act s 17(1) provides that if a court hearing an application such as this finds that the respondent is a serious danger to the community the court may:
(a) order that the offender be detained in custody for an indefinite period for control, care or treatment; or
(b) order that at all times during the period stated in the order when the offender is not in custody the offender be subject to conditions that the court considers appropriate and states in the order.
4 Section 7(1) provides that before the court can make a finding that the respondent is a serious danger to the community, it must be satisfied that there is 'an unacceptable risk that, if [the respondent] were not subject to a continuing detention order or a supervision order, the [respondent] would commit a serious sexual offence'.
5 Section 7(2) states that the DPP has the onus of satisfying the court of the matters in s 7(1) and that the court must be satisfied:
(a) by acceptable and cogent evidence; and
(b) to a high degree of probability.
6 The standard of proof to a 'high degree of probability' is higher than the civil standard, being proof on the balance of probabilities, but lower than the criminal standard, being proof beyond reasonable doubt.
7 The term 'serious sexual offence' is defined in the Act s 3 to have the meaning given to that term in the Evidence Act 1906 (WA) (Evidence Act) s 106A. The Evidence Act s 106A read with pt B of sch 7 of the same Act and the Criminal Code (WA) (Criminal Code) relevantly provides that serious sexual offences are any of the offences contained in ch XXXI of the Criminal Code, the penalty for which is 7 years' imprisonment or more. The Criminal Code ch XXXI is headed 'Sexual Offences' and contains the majority of the sexual offences in Western Australia. Offences contained in ch XXXI which would fall within the definition of a 'serious sexual offence' include all sexual offences against children under the age of 13 years, all sexual offences by a person over the age of 18 years, against a child between the ages of 13 and 16 years, aggravated indecent assault, sexual penetration without consent, sexual penetration of a de facto child or lineal relative, indecent dealing of a de facto child or lineal relative under the age of 16 years and sexual offences against incapable persons. Indecent assault simplicitur and indecent dealing with a child over the age of 16 years are not serious sexual offences.
8 The Act s 7(3) states that in deciding whether to find that a person is a serious danger to the community, I must have regard to the following matters:
(a) any report that a psychiatrist prepares as required by section 37 for the hearing of the application and the extent to which the person cooperated when the psychiatrist examined the person;
(b) any other medical, psychiatric, psychological, or other assessment relating to the person;
(c) information indicating whether or not the person has a propensity to commit serious sexual offences in the future;
(d) whether or not there is any pattern of offending behaviour on the part of the person;
(e) any efforts by the person to address the cause or causes of the person's offending behaviour, including whether the person has participated in any rehabilitation program;
(f) whether or not the person's participation in any rehabilitation program has had a positive effect on the person;
(g) the person's antecedents and criminal record;
(h) the risk that, if the person were not subject to a continuing detention order or a supervision order, the person would commit a serious sexual offence;
(i) the need to protect members of the community from that risk_;_ and
(j) any other relevant matter.
9 In Director of Public Prosecutions (WA) v Williams [2007] WASCA 206 [68] - [72] Wheeler JA (Le Miere AJA agreeing) held that if a court found that an offender was a serious danger to the community it must make either an order under s 17(1)(a) or (b) for custody or supervision, respectively. A court does not have a discretion not to make an order.
10 Her Honour also considered what was meant in s 7(1) by the words 'unacceptable risk'. Her Honour said:
In my view, an 'unacceptable risk' in the context of s 7(1) is a risk which is unacceptable having regard to a variety of considerations which may include the likelihood of the person offending, the type of sexual offence which the person is likely to commit (if that can be predicted) and the consequences of making a finding that an unacceptable risk exists. That is, the judge is required to consider whether, having regard to the likelihood of the person offending and the offence likely to be committed, the risk of that offending is so unacceptable that, notwithstanding that the person has already been punished for whatever offence they may have actually committed, it is necessary in the interests of the community to ensure that the person is subject to further control or detention.
11 Wheeler JA's views were affirmed in the Director of Public Prosecutions (WA) v GTR [2007] WASC 318.
12 I now set out my findings in respect to the background of the respondent.
13 The respondent has been the subject of three reported judicial decisions. Some of his relevant background to the end of 2005, which is not in dispute, has been set out in these cases and, thus, it is unnecessary for me to repeat it in detail. I respectfully adopt the descriptions of the respondent, his background and offending in the earlier reported decisions of the High Court in McGarry v The Queen [2001] HCA 62; (2001) 207 CLR 121 [2], [42] - [47], [87] - [105], Muller DCJ in R v McGarry [2004] WADC 223; (2004) 37 SR (WA) 63 [4] - [21] and the Court of Appeal in McGarry v The State of Western Australia [2005] WASCA 252; (2005) 31 WAR 69 [41]-[56].
14 In summary, the respondent is a 47-year-old single male who is currently being held in custody pursuant to an interim custody order made under the Act. He is the youngest of five children. His father died in 2000 but his mother is alive and lives in Perth. She remains supportive of her son. The respondent has six biological children with four different mothers. He only has regular contact with his eldest daughter.
15 During the respondent's childhood his father was often away from home due to work and his mother had difficulty coping with looking after five children. The respondent's eldest sister assisted her mother to look after the respondent. His father was verbally and physically abusive and displayed inappropriate behaviour towards his daughters.
16 Although intellectually able, the respondent did not succeed at school due to behavioural problems which commenced when he was still in primary school. He attended high school until the end of year 10.
17 After school, the respondent had a number of short term jobs. He has had employment as a truck driver and after his release from prison in 2001 he started a handyman business.
18 His first sexual relationship with a female of his own age was when he was 16. Subsequently, he has had a number of relationships with adult women. He had his first child when he was about 22 years of age. For many years, he was in and out of the relationship with the mother of his first child. He had relationships with other women during and after this. Those relationships have not endured, even intermittently. The respondent has also had many short term sexual relationships, between or during relationships of longer duration.
19 The respondent has shown little parental interest in most of his children. Though he says that he has a relationship with his eldest child, it is important to note that he sexually offended against her when she was a child. To the extent that the relationship exists it can not be said that it does so because the respondent has appropriately nurtured and developed the father/daughter relationship. As I will relate later in these reasons, the respondent has also offended in a sexual manner against two of the children of one of his girlfriends.
20 The respondent's anti-social behaviour appears to have started in the home when he was still a young child. When he was still at primary school he regularly 'wagged' classes and shoplifted. At high school he continued those activities. He was also involved in a lot of fights. He had friends at school but none of any significance.
21 At the age of 14 he was convicted of five counts of stealing. Thereafter, the respondent has only a few convictions for non-sexual offending but he acknowledges that he has committed a significant number of stealing offences, including stealing tools and equipment from retail outlets and employers.
22 During his adulthood, the respondent has had times when he abused alcohol. He has not had problems with drug abuse.
23 The respondent first became interested in sex at about the age of 11 or 12. He became aroused when seeing his sisters undress and he commenced covertly observing them. This progressed to masturbating whilst he did so. The respondent then commenced venturing outside the home to find women and girls to observe. He also started exposing himself to them and, at times, masturbating in front of them. In 1985 he was convicted of two counts of wilful exposure and one of loitering. The loitering offence occurred outside a primary school. For the last of the two wilful exposure offences he received his first sentence of imprisonment. The victim was a 13-year-old female in front of whom he masturbated. He was 24 years of age. On his release from prison, the respondent continued to commit similar offences.
24 In January 1989, the respondent commenced offending against the 10-year-old daughter of his then partner. This offending was regularly repeated up until September 1990 when it was reported by the complainant. In 1990 the respondent offended in a similar manner against the 8-year-old daughter of the same partner. Also during 1990, the respondent continued to commit offences of wilful exposure against a number of women who were otherwise strangers to him. When questioned about these offences, the respondent readily admitted them.
25 The offending against the older girl consisted of the respondent touching and rubbing her genital area underneath her clothing and other indecent behaviour whilst he masturbated. In respect to the younger girl, the respondent said he touched her on the top of her leg or on her bottom as he masturbated.
26 On 19 April 1991 the respondent was sentenced to a total of 7 years and 8 months' imprisonment for 21 counts of indecent assault of a person under the age of 16 years, four counts of sexual penetration of a person under the age of 16 years and seven counts of wilful exposure in respect to the offending described in the above paragraph.
27 The respondent was released on parole in February 1994. He returned to live with the mother of his first child. In April of the same year, the respondent repeatedly offended against his daughter, then aged 12, by touching her indecently and masturbating in front of her. On 9 August 1994 the respondent was convicted of two counts of indecently dealing with his daughter. He was sentenced to a total of 2 years' imprisonment to be served cumulatively on the balance of the earlier sentence he was yet to serve. He was not made eligible for parole.
28 On 26 February 1996 the respondent was released on parole after serving the two year finite term of imprisonment. In December 1997 the respondent saw a photograph and the name of an 11-year-old girl in a local newspaper. He used a telephone directory to discover her home telephone number and address. The respondent then went to the complainant's home address and entered the rear yard. He observed the complainant and her 14-year-old sister through the windows of their home. He obtained the complainant's attention by tapping on the window. As she approached the window he exposed himself and masturbated. The respondent then left the premises. The respondent made several telephone calls to the complainant's home in the following days. On each occasion he impersonated a police officer and discussed the offence that had been committed. As he did so, he masturbated.
29 The respondent was questioned by the police in January 1998 about the offences and readily admitted them.
30 At the time those offences were committed the respondent was in a de facto relationship with a woman with a 15-year-old daughter. After having been released on parole in 1996, the respondent had obtained employment as a truck driver and was highly thought of by his employer.
31 On 30 October 1998 the respondent pleaded guilty to indecently dealing with a child under the age of 13 years, in respect to the 11-year-old complainant. He also was dealt with for two summary offences in respect to the impersonation of a police officer. For the purpose of the sentencing proceedings, the respondent relied upon references from other members of a group called Sexaholics Anonymous, which the respondent had been involved with. The respondent also wrote a letter to the sentencing judge stating that he was 'confident of not re-offending again'.
32 The State sought an indefinite period of imprisonment pursuant to the then Sentencing Act 1995 (WA) s 98. On 16 December 1998 the respondent was sentenced to 5 years' imprisonment. The learned sentencing judge did not make a parole eligibility order. There was an order made that the respondent be imprisoned indefinitely pursuant to the then Sentencing Act 1995 (WA) s 98.
33 On 6 December 1999 the Court of Criminal Appeal reduced the finite sentence to 3 years' imprisonment but upheld the order for indefinite imprisonment. On 6 September 2001 the High Court quashed the order for indefinite imprisonment and on 12 September 2001, consequent upon the result of his appeal, the respondent was released from custody.
34 A month earlier a clinical and forensic psychologist completed an 'Independent Clinical Review/Assessment' of Mr McGarry for the then Parole Board. The recommendation of the psychologist was that the respondent did not progress to a pre-release programme at that time. He recommended that the respondent attend individual counselling on a regular basis and that he be supported to 'remain focussed without diverting his attention with involvement in other activities especially work'. There was a further recommendation that if the respondent be assessed as having achieved substantial progress with counselling that he be reconsidered for another intensive sexual offender treatment programme (SOTP).
35 On the respondent's release from prison, he became self-employed as a handyman. He became involved in a church. However, he also became again preoccupied with offending behaviour. On 16 April 2002 the respondent hid in some bushland and waited for a girl to walk to school along the nearby path. As the 14-year-old complainant walked by, the respondent walked onto the path and grabbed her. He dragged her into the bushland and pushed her onto the ground. The respondent initially threw a jumper over the complainant's face so that she could not see him. He disturbed her clothing and indecently assaulted her. The respondent then knelt next to the complainant and masturbated until ejaculation. The respondent rummaged through the complainant's backpack, apparently looking for money, and after saying that he would return in a short while, he fled the scene. The matter was reported to the police. It was not until late 2003 that the respondent was identified as the offender as a consequence of DNA he left at the scene.
36 On 12 March 2003 the respondent approached an 8-year-old girl who was playing in a park near her home. He called her over to him and asked her how old she was. After the complainant told the respondent her age, he offered her money in return for her showing him her pants. In order to induce her to do that, the respondent told her that he was a councillor and that this activity was part of his job. The complainant screamed and ran from the respondent. The matter was reported to the police. A short time later police located the respondent walking through the grounds of a local primary school towards his vehicle. He was observed to be buttoning up the front of his pants. His vehicle was searched and a number of pornographic magazines were located in the respondent's vehicle. The respondent admitted to the police that he was in the area but did not make any admissions in respect of any offending behaviour.
37 When the respondent pleaded guilty to offences relating to the last two attacks, the State again sought an indefinite imprisonment order. The State led evidence from a psychiatrist and a number of psychologists in support of its application. The respondent called a psychiatrist in support of his opposition to the making of such an order. On 12 November 2004 his Honour Muller DCJ sentenced the respondent to a total sentence of 3 years' imprisonment for one count of deprivation of liberty, one count of aggravated indecent assault and one count of indecent dealing with a child between the ages of 13 and 16 years. His Honour declined to make an order for parole eligibility and further ordered that the respondent be imprisoned indefinitely.
38 On 22 December 2005 the Court of Appeal quashed the sentence but remitted the matter to the District Court for resentencing. The respondent was remanded in custody.
39 Wheeler JA (Roberts-Smith and McLure JJA agreeing), after reviewing the respondent's background, said [96]:
Given the nature of the [respondent's] offending, and the selection of the young and vulnerable as his victims, together with the apparent escalation in harmfulness of the [respondent's] offending over time, his Honour was, in my view, plainly correct to characterise the [respondent] without successful treatment, as a danger to that part of society consisting of girls under the age of 16 or thereabouts.
40 The appeal was allowed on the basis that there was a latent ambiguity in Muller DCJ's reasons. The Court of Appeal did not suggest that, on a proper view of the facts, it was not open for an indefinite imprisonment order to be made.
41 The matter then returned to the District Court for resentencing. On 26 October 2006 the respondent was resentenced in the District Court to 5 years and 24 days' imprisonment. The State withdrew its application for an order for indefinite imprisonment in light of the then recent enactment of the Act.
42 On 7 November 2008 the State filed this application under the Act. The respondent's sentence expired on 2 January 2009.
43 In support of this application the DPP has filed three volumes of material containing transcripts of relevant court proceedings, excerpts from prosecution briefs in respect to the respondent's charges and various reports and other records contained on the Department of Corrective Services file for the respondent.
44 At a preliminary hearing of this application the court ordered that pursuant to the Act s 37, the respondent undergo examination by two psychiatrists, Dr Gosia Wojnarowska and Dr Peter Wynn Owen. The reports of both psychiatrists are also contained in the three volumes of materials. For the purposes of this application an assessment report was prepared for the Chief Executive Officer of the Department of Corrective Services dated 13 February 2009. This report is also included in the materials. The respondent did not object to the tender of any document in the three volumes of materials and did not seek to cross-examine any of the authors of the material. Consequently, the material was tendered without any oral evidence being called in the applicant's case. The respondent did not adduce evidence in the application.
Matters referred to in the Act s 7(3)
45 I now turn to consider the matters referred to in the Act s 7(3) which I must have regard to in deciding whether or not the respondent is a serious danger to the community.
Psychiatric reports under the Act s 37
46 Dr Wojnarowska interviewed the respondent on three occasions for a total of eight hours. She also had regard to the three volumes of materials which are in evidence.
47 Dr Wojnarowska's report contains significant detail concerning the respondent's history. Most of this has been related elsewhere and I do not intend to repeat it. However, several matters which Dr Wojnarowska says the respondent told her should be noted. In respect to the most recent offences the respondent acknowledged that prior to the offending he was 'bored and disconnected'. Dr Wojnarowska reported:
His anxiety had been increasing which he tended to relieve by driving aimlessly, looking for a victim, in his case for a female approximately 12 - 14 years old, and after spotting one, masturbating in his car. His preoccupation was increasing and he was no longer satisfied to just look at the pornographic materials or the dressed young girls. At some stage he became preoccupied with the thought of seeing a naked pubescent girl. He started to look for a place where school age children frequented, and was quite satisfied when he found the path with dense bush on one side. He observed it for some time prior to the day of the offence.
48 Apparently, his attack on the school girl did not entirely relieve the respondent's anxiety and he reported to Dr Wojnarowska that before re-offending the following year against the 8-year-old complainant, he frequented prostitutes three to six times per week. He agreed that even though he would choose prostitutes based on their size, ideally looking for a size 6, this activity again became unsatisfactory and he then offended against the 8-year-old complainant.
49 In relation to his past criminal history, Dr Wojnarowska noted:
[The respondent] maintains he has always had a rational understanding of his problems and the inappropriateness of his behaviour, but had limited motivation to change in the past as the benefits outweighed the consequences. He was able to identify the patterns of his offending and admitted that some of the offences, particularly the intrafamilial ones were opportunistic while the others were premeditated and predatory in nature. There were no particular circumstances or life events which would clearly demarcate an offending from a non-offending period. [The respondent] admitted on his own volition that he was committing various sexual offences almost continuously during his adolescent and adult life and has been charged for only a portion of these.
50 In respect to this respondent's cycle of offending Dr Wojnarowska is of the opinion that the treatment programmes which the respondent participated in prior to his most recent imprisonment did not appear to diminish the frequency or severity of his offending. She noted that the respondent had breached parole on two occasions and the offence-free period had shortened in relation to the most recent offences (seven months) compared to the previous offences (22 months).
51 In respect to the respondent's choice of victims, Dr Wojnarowska noted that Mr McGarry offended against pre-pubescent and adult females. The victims were either randomly selected, were present in his life or were carefully chosen. She noted that there were no contact sexual offences with mature women.
52 The respondent apparently told Dr Wojnarowska that he was more interested in the size, that is he favoured a size 6 female, as opposed to the age of his victims, that is that he was not particularly interested in young females. Dr Wojnarowska concluded that this claim was not reflected in his offending history. She was of the view that it was fascination with female pre-pubescent and pubescent genitalia that led to a majority of his convictions.
53 The respondent admitted to Dr Wojnarowska that in respect to the occasion where he selected his victim from the local newspaper, he had been searching the newspapers for weeks hoping to find an appropriate victim. Dr Wojnarowska is of the view that the respondent's behaviour in impersonating the police after offending against the complainant, indicated that he had become 'bolder in his actions' and that this conduct 'signified a marked escalation in his offending'.
54 Dr Wojnarowska noted that the offence committed on 16 April 2002 involved the physical assault and restraint of the victim. However, Dr Wojnarowska said that there was no evidence that the respondent's intention was to hurt the complainant. In her view the use of physical violence was 'purely instrumental in achieving the victim's compliance'.
55 In respect to escalation of offending Dr Wojnarowska said:
The progression from non-contact (voyeurism) to contact offences was the first signs of escalation. This was followed by targeting the stranger victims and engaging in careful planning. Finally the progression to physical apprehension of the victim and engagement in rough behaviour while acting on his sexual urges suggests a serious escalation in [the respondent's] offending behaviour.
56 Dr Wojnarowska commented that the respondent's attitude towards his victims has altered over the years due to appropriate education, with the respondent having much more of an understanding of the long term psychological sequelae for his victims. However in the Doctor's view this insight remains an intellectual one and further development in this area is not expected.
57 In respect to his relationship with his daughter whom he abused in the past, Dr Wojnarowska commented that the respondent's close feelings towards his daughter stemmed from the fact that she had been the 'care provider' to him rather than he being an appropriate parental figure towards her.
58 Dr Wojnarowska described the respondent's history of sexual offending in the following terms:
... [the respondent's] sex-offending began as voyeurism, which continued until the age of 22 when he was convicted of wilful exposure for the first time. The voyeurism progressed to exhibitionism and continued until his conviction in 1998. The 'hands on' offences started in 1991 ... and were not just opportunistic offences but had all the features of paedophilia. Despite this [the respondent] denies that he is a paedophile. In summary his sexual development had a maladaptive pattern, reflecting his characterological immaturity and were not drug or alcohol related.
59 Dr Wojnarowska reviewed the other expert reports that have been completed following treatment and assessment of the respondent. It is only necessary for me to refer to her views in respect to one of them. Dr Zdenek Srna, consultant psychiatrist, completed a psychiatric assessment and forensic psychiatric report on the respondent on instructions from the respondent's solicitors and in relation to his most recent sentencing. Dr Srna's report forms part of the material before me as does the evidence that he gave before Muller DCJ. Contrary to any other psychiatrist who has examined the respondent, Dr Srna diagnosed the respondent having an adjustment disorder with depressed mood, underlying obsessive compulsive disorder (OCD) and conduct disorder that developed into a 'mild degree of anti-social personality disorder (APD)'.
60 Dr Wojnarowska said that in her view there is no diagnosis of a mild degree of APD. She also noted that the respondent has a lifelong history of disregard towards societal norms which she said is quite separate from his psychopathy. In respect to Dr Srna's diagnosis of OCD, Dr Wojnarowska is of the view that neither the respondent's history nor his current presentation is indicative of the presence of such a disorder. To support this proposition, Dr Wojnarowska said that, in contradistinction to Dr Srna's view, she concluded that the respondent's history of stealing was not compulsive in the true meaning of the word given that the respondent stole objects which were of use to him whereas, compulsive stealing suggested that there was no monetary incentive in stealing. In respect to Dr Srna's conclusion in a second report that there is a 'significant psychiatric pathology in this case that has a potential for treatment and that has been a part of a psychological mechanism in [the respondent's] sex offending' Dr Wojnarowska said:
Given that there has been no evidence of the presence of OCD and given the strong presence of psychopathic traits, the above statement appears to have little predictive value.
61 Dr Wojnarowska's assessment of the respondent's current functioning is of interest. She noted that according to her observations the respondent has a 'somewhat domineering role' in the prison hierarchy. This was also noted by Dr Wynn Owen. Dr Wojnarowska also noted that the respondent described his mood as 'content' and stable. He attributed this to the antidepressant medications he started in September 2008. The respondent denied experiencing any anxiety or obsessional thoughts. The respondent also reported to Dr Wojnarowska that since he started antidepressant treatment his sexual drive had reduced to almost non-existent levels. He demonstrated this by a computer printout of his 'diary' where he noted his sexual interests since September 2008. The respondent denied experiencing any deviant sexual fantasies claiming that he had no interest in pre-pubescent females and that his sexual interest is now related to women around 35 years. He told Dr Wojnarowska that it is a 'frame that is important' but also admitted to liking a physical characteristic which Dr Wojnarowska said is not seen in adult females.
62 The respondent told Dr Wojnarowska that his sexual deviance has been successfully treated with the anti-depressant, Zoloft. He relied upon the opinion of Dr Srna who had told him that he had an obsessive nature and that his offending had been driven by compulsions. The respondent also told Dr Wojnarowska that he would not take anti-libidinal treatment for longer than 12 months.
63 Dr Wojnarowska diagnosed the respondent with the clinical disorders of Paraphilia, Voyeurism, Exhibitionism, Paedophilia - sexual attraction to females non-exclusive type. She further diagnosed the respondent with anti-social personality disorder and assessed his global assessment functioning at 90/100.
64 Dr Wojnarowska completed a risk assessment. In the risk assessment she used three tools. These were the Static-99, the Hare Psychopathy Check-list - Revised (PCL-R), the Risk Sexual Violence Protocol (RSVP) and the Historical Clinical Risk 20 (HCR-20). The results were as follows.
65 The respondent received an overall score of 8/12, which indicates that he is in the 90-100 percentile range with a 4 in 10 chance of re-offending within five years.
66 The respondent received an overall score of 27. It has previously been noted that offenders scoring high on the PCL-R (more or equal to 26) were significantly more often reconvicted than other offenders. Dr Wojnarowska noted that the respondent scored equally high on factors I and II, which meant that his psychopathic traits were equally distributed between interpersonal/affective and social deviance areas.
67 Dr Wojnarowska noted that the respondent has risk factors associated with his history of sexual violence, in the psychological domain, in respect to mental disorder, social adjustment, problems with treatment and manageability. In respect to problems with treatment Dr Wojnarowska noted that it was to the respondent's credit that he accepted treatment with anti-libidinal medications. However, his attitude towards the treatment is ambivalent as he denies experiencing any sexual desires since he started on anti-depressant medication and is highly convinced that he has been 'cured'. Thus Dr Wojnarowska questions whether the respondent would comply with the anti-libidinal treatment in the community.
68 Dr Wojnarowska noted under manageability that the respondent's main risk factors are the presence of sexual deviance and the presence of psychopathy. She opined that the respondent requires management by a very experienced team, with particular attention to his ability to use his charm to manipulate others.
69 She stated that she was of the opinion that the respondent's current denial of any sexual interests can potentially hamper implementation of the appropriate strategies which could assist with his management in the community.
70 In terms of risk scenarios Dr Wojnarowska expressed the view that the respondent is likely to re-offend in a similar manner to that of past offending. She is of the opinion that the circumstances would be that after some time (not in the imminent future), the respondent would settle in the area where he is living and his work would no longer be a challenge to him. He would again become bored with his life and possibly with his relationship. He may primarily attempt to seek stimulation through a socially acceptable manner. However, it would not suffice and after some time he would again become preoccupied with his primary sexual interests, which is pre-pubescent or very young pubescent females. He would start going out to seek such females. His exhibitionism may return but his primary goal would be to see and touch a naked female child. The likelihood of him sexually penetrating the child or inflicting additional physical harm on the victim is low.
71 In summary, Dr Wojnarowska is of the view that the respondent's risk of re-offending is in the 'very high' category. She observed that he has agreed to the treatment with anti-libidinal medications, most likely to improve his legal outcome. Dr Wojnarowska is of the view that the respondent has benefitted from his recent psychological treatment to some degree, but future treatment would be hampered by his limited insight and erroneous belief that he has been 'cured'.
72 Dr Wynn Owen also saw the respondent on three occasions for approximately 7 1/2 hours, in total.
73 Dr Wynn Owen's report details the respondent's background. I need not repeat this part of his report.
74 Dr Wynn Owen reported that the respondent does not regard himself as a sex offender, 'apparently because he does not violently assault his victims or seek intercourse with them'. The respondent apparently regards himself as 'a hard working man for whom others (such as prison officers) has some respect. In this regard Dr Wynn Owen reported that he observed the respondent's interaction with prison officers. He noted a familiarity, encompassing rudeness, which was apparently accepted by the prison officers. Dr Wynn Owen suggested that the respondent had to an extent, 'groomed' prison staff to achieve his own ends. Dr Wynn Owen's view was that this fed the respondents 'ongoing minimisation and to an extent normalisation of his offending history'.
75 However, objectively, Dr Wynn Owen concluded that the respondent had demonstrated himself to be untruthful, manipulative and exploitative. He is a person who acts without reference to consequences and has a shallow understanding of his own and others emotional states.
76 The respondent also admitted to Dr Wynn Owen that he had committed many more sexual offences than those for which he had been convicted. He acknowledged to Dr Wynn Owen a long standing interest in girls aged 12 to 14 years. He was less willing to acknowledge interest in younger females despite his offending against such girls. His explanation for such offending appears to be that the offending was opportunistic; that is, the girls were available to be used to satisfy his base urges but that he does not have an interest in that age group. It is of little comfort to the victims, their parents or those in the community who wish to prevent such offences to know that the respondent has been prepared to commit such offences because the young girls were convenient victims.
77 It is indicative of the respondent's refusal to take responsibility for his offending that he apparently commented to Dr Wynn Owen that, in respect to his latest convictions, the victim should be able to bring a case against the Department of Corrective Services for his inadequate supervision and treatment whilst on parole. Dr Wynn Owen notes that empathy and remorse are notably absent from the respondent's thinking about his offending history. The respondent also told Dr Wynn Owen that he regarded his offending and the underlying ongoing sexual rumination on young girls as compulsive behaviour and something he has no control over. However, he reported that when taking anti-depressant medication he had control over his thinking, had no sexually deviant thoughts and his libido is 'non-existent'.
78 In this regard Dr Wynn Owen said that the respondent's history that the anti-depressant medications had led to a cessation of masturbation after three days of treatment and a subsequent complete suppression of his sexual drive to be unlikely. Dr Wynn Owen noted that the active ingredient did have some libido reducing properties (6% of those taking it reported this versus 1% taking placebo) but that this did not usually affect the ability to achieve an erection, something that the respondent reported.
79 In respect to past treatment, Dr Wynn Owen noted that the respondent had completed four SOTPs, the most recent being from 6 December 2006 to 19 December 2007. The reports of these noted that the respondent disclosed his offending with some minimisation and that he gained an intellectual understanding of the concepts but was not able to 'integrate this into an emotional and behavioural level change'. The respondent told Dr Wynn Owen that he could run the SOTP and that he knew everything he needs to do. The respondent told Dr Wynn Owen that he required one-to-one counselling such as he has had in the past. He is also of the view that he requires the anti-depressant medication for his OCD. Dr Wynn Owen noted in respect to the respondent's stated desire to continue the anti-depressant medication:
It appears [the respondent] currently has a significant motivation to manage his urges and his libido and prefers this method to others, it is unlikely to sustain efficacy when he is released and has access to a significantly greater type and range of stimuli to those in the controlled prison environment. I note with concern that shortly prior to taking [anti-depressants] [the respondent] reported arousal to female child visitors to prison and to ongoing use of magazines and watching television programmes such as Neighbours with young female actors. His detailed diarising of sexual thinking suggests ongoing pre-occupation notwithstanding the regular self report of no sexual thinking.
His overall attitude is to retain control of his treatment and supervision and to make the key decisions in regard to his future such as taking medication. This must be taken in the light of his statement at interview although now we must accept that he is in complete control of his thinking prior to this period of imprisonment and for many years he had the view that 'it's there, it's available, I don't say no' and 'I have no boundaries, it's easy to do that, to offend'.
80 Dr Wynn Owen diagnosed the respondent with the clinical disorders of Voyeurism, Exhibitionism and Paedophilia. He also diagnosed the respondent with anti-social personality disorder and assessed his global assessment of functioning in the past six months at 90.
81 In his risk assessment, Dr Wynn Owen used the RSVP. Dr Wynn Owen noted the same risk factors as noted by Dr Wojnarowska. He also noted that the respondent's PCL-R score was 27. He also assessed the respondent's Static-99 score at putting him in the high risk group of offenders, that is there is a 4 in 10 chance based on his fixed historical factors that he will re-offend within five years. Dr Wynn Owen noted that the presence of psychopathy is a factor increasing the respondent's risk of re-offending.
82 Dr Wynn Owen was also of the view that there was no evidence of OCD. He believes that this may have been an incorrect diagnosis by Dr Srna. Dr Wynn Owen's opinion was that the respondent's sexual urges and fantasies are the only 'obsessional' component of the respondent's thinking and behaviour. Whereas the respondent's shoplifting and stealing behaviour had been for financial gain.
83 Dr Wynn Owen identified the nature of the respondent's risk of re-offending as repeating his previous offending by seeking to see a 14-year-old girl, undressing her and masturbating or he would revert to and repeat exhibitionist offending. Dr Wynn Owen also identified a risk in escalation of the respondent's offending by offending against a younger girl, aged 8 - 10. Dr Wynn Owen identified that this may be more forceful offending and that the respondent may digitally and sexually penetrate her. Dr Wynn Owen also identified the potential for an escalation and change in the respondent's offending, for example by sexually assaulting a prostitute. In respect to timing, Dr Wynn Owen noted that the respondent had offended in the past within a relative short time of release, 6 - 12 months. Warning signs would include poor compliance with supervision, alcohol use, unemployment, social isolation and boredom.
84 I have found the reports of both psychiatrists to be thorough, factually correct and the opinions expressed therein to be credible. The respondent did not challenge those opinions. Dr Wojnarowska expressed the clear view that the respondent's risk of re-offending is in the 'very high' category. Dr Wynn Owen was not so expressive. However, his report is clear that both on the basis of the risk assessment tools and his clinical judgment, the respondent is at a significant risk of re-offending if released into the community.
85 I have found the reports of both psychiatrists to be very helpful and I place considerable weight on their conclusions. One thing is clear, that is that neither psychiatrist is satisfied on the basis of the respondent's self report of being 'cured' or of not having sexual interest or preoccupation, that the respondent's risk of re-offending has been significantly diminished. I accept the psychiatrist's respective opinions that if the respondent was released into the community without very close supervision it would be unlikely that he could be relied upon to take his medication or to report the presence of deviant sexual arousal.
Any other medical, psychiatric, psychological or other assessment relating to the respondent
86 A number of other assessments of the respondent by psychiatrists or psychologists are included in the evidence. I have referred in particular to that conducted by Dr Srna. His diagnosis of OCD is unique among the practitioners who have assessed the respondent. Given Dr Wojnarowska's and Dr Wynn Owen's criticisms of that diagnosis, I do not think it is appropriate that I place weight on it.
87 In respect to the other assessments which are included in the evidence, I note that they are generally in agreement with Dr Wynn Owen and Dr Wojnarowska. It does not seem to me to be helpful for me to repeat the content of them. They fortify my conclusion that I can rely on the opinions of Dr Wojnarowska and Dr Wynn Owen.
Information indicating whether or not the respondent has a propensity to commit serious sexual offences in the future
88 I have said in an earlier decision under the Act that I assume that the legislature has used the word 'propensity' in its ordinary meaning. That is, to have an inclination or tendency to do something.
89 I accept that the respondent may not currently wish, or intend, to commit serious sexual offences if released into the community. However, his history of sexual offending (including his commission of a number of serious sexual offences), the psychiatrist's view that the causes of his offending are longstanding and are entrenched, his psychiatric diagnoses, his naive belief that anti-depressant medication has 'cured' him and his re-offending on a number of occasions after having been convicted of sexual offences, having been incarcerated for long periods of time and completion of SOTPs causes me to conclude that the respondent still has a propensity to commit serious sexual offences in the future.
90 I also take into account that the respondent has shown himself to be a dishonest person. His protestations that he no longer has any sexual interest, let alone deviant sexual interests, must be viewed with some scepticism in the light of that prior dishonesty, as well as in light of his re-offending after having been released into the community on previous occasions.
Whether or not there is any pattern of offending behaviour on the part of the respondent
91 There have been patterns of offending behaviour in the past. However, it is clearly of concern and an indication of the risk of the commission of serious sexual offences, that past patterns of minor indecent offences, such as voyeurism and exhibitionism, have given way to examples of the commission of serious sexual offences such as those committed against his natural daughter and the daughters of his ex-partner as well as the offences committed in 2002.
92 It is clear that in respect to less serious sexual offending, the likely victims are pubescent and adult women. It is of concern, that the respondent's victims of sexual offences involving direct indecent touching have been children. I agree with the psychiatrist's view that future serious sexual offending is likely to be against pubescent or pre-pubescent female children. It is highly unlikely to include penile penetration or physical assault other than for the purpose of detaining and ensuring the compliance of the victim.
Any efforts by the respondent to address the cause or causes of his offending behaviour, including whether he has participated in any rehabilitation programme
93 I have already referred to the number of SOTPs that the respondent has completed whilst in custody. The respondent has also had approximately 12 months of one-to-one counselling with a psychologist employed by the Department of Corrective Services. This counselling concluded when the psychologist left that employ. The respondent had 70 hours of individual sex offender therapy over a 12 month period between 2006 and 2007. In the final report dated 8 January 2008 the author indicated that the respondent had 'met some of the treatment objectives, and made some treatment gains which included gaining a greater understanding though still limited understanding of the factors underlying his offending'. The report also stated that the respondent was still engaging in inappropriate sexual fantasies and that excessive sexual desire was still problematic for him. The report highlighted that the respondent was motivated and committed to further treatment. The recommendations for further individual treatment and psychiatric evaluation for anti-libidinal medication were made. Two areas of outstanding treatment needs were identified; masturbatory fantasy control and accessing emotion. Both of these areas were considered central to any relapse prevention plan. No further treatment has been provided.
94 As I have stated previously, the respondent is taking anti-depressant medication, partly, at least in his view, as a treatment for his deviant sexual interest. Further, in January 2009 the respondent commenced anti-libidinal medication. The most recent blood tests show that this is effective in suppressing his testosterone levels. Last week I received advice from the prison authorities that the respondent has been compliant with the medication. I note that the respondent has told others that he does not intend to take anti-libidinal medication once released into the community for more than 12 months.
95 The respondent's participation in the SOTPs, the one-to-one counselling and the chemical treatment is to his credit. It reflects a desire to participate in treatment and rehabilitation programmes. Based on all the material I have seen, this motivation is primarily in order to facilitate and expedite his release from custody. His motivation to continue with such treatment and programmes once in the community must be doubted given his past relapses in the community and breaches of community based orders. It also must be doubted given his expressed decision not to take anti-libidinal treatment in the long term. Whilst this may be based on what he has been told about the side effects of such treatment, it remains of concern that he is more motivated to avoid adverse consequences for himself than to ensure that he does not offend against others.
Whether or not the respondent's participation in any programme has had a positive effect on him
96 I have already dealt with the effect of the respondent's participation in programmes under the previous heading. There is no doubt that the respondent's participation in treatment and programmes will have had a positive effect on him. However, I am not satisfied that the SOTPs and the counselling that the respondent has undertaken has significantly reduced his risks of re-offending, without ongoing treatment and supervision. As to the oral medication treatment that he is currently undergoing, there is no objective evidence before me that the anti-depressant treatment he is taking will significantly reduce his risk of re-offending. In respect to the anti-libidinal treatment, I assume that this will reduce his risk of re-offending so far as it is related to physical sexual desire. However, to the extent that the risk is related to psychological and behavioural causes there is reason to doubt that it will be effective in reducing his risk of re-offending.
The respondent's antecedents and criminal record
97 I have detailed the respondent's antecedents and criminal record earlier in these reasons. The respondent's criminal history is an important matter to take into account when assessing the likelihood of his committing serious sexual offences in the future. I acknowledge that many of his sexual offences have not been serious sexual offences as defined by the Act. On the other hand, a number of them have been. These offences have been committed over the course of many years. Up until the time the respondent was incarcerated at the end of 2003 there did not seem to be any evidence that the respondent's rate of offending was decreasing. As the psychiatrists have noted, the attack on the school girl in April 2002 exemplified an escalation in the seriousness of his offending. However, this assessment must be balanced against the fact that as early as 1989 the respondent repeatedly offended against young children in a very serious manner.
The risk that if the respondent were not subject to a continuing detention order or a supervision order that he would commit a serious sexual offence
98 The respondent concedes that there is an unacceptable risk that if he were not subject to a continuing detention order or a supervision order that he would commit a serious sexual offence.
99 Based on the evidence before me, I am satisfied to the requisite standard that if the respondent is not subject to a continuing detention order or a supervision order there is a significant risk that he will commit a serious sexual offence in the future. The respondent's history of offending, in particular his commission of sexual offences over a period of 18 years, his commission of serious sexual offences against at least five young females, some on repeated occasions, and his relapse to serious sexual offending when previously released into the community confirms the existence of that risk.
The need to protect members of the community from that risk
100 Whilst I have found that it is unlikely that the respondent will have penile sexual intercourse with his victims or will physically assault them except for the purpose of detaining and ensuring compliance, there is an undoubted need to protect young female members of the community from the risk of the respondent re-offending. The respondent's likely victims come from the more vulnerable group in our community. Young children are unable to protect themselves from risks that adults would foresee and be able to prevent. Further, it is the responsibility of adults to protect young children from physical trauma and psychological harm from the commission of serious sexual offences. Lastly, the community has a special obligation to ensure, so far as possible, that children have the opportunity to develop into stable and responsible members of our community. Thus, there is a need to protect the respondent's likely victims from the risk that he will commit serious sexual offences in the future.
The potential consequence of an order under the Act for the respondent
101 The respondent accepts that an order should be made under the Act. He does not accept that it is necessary to make a detention order. He submits that his risk of re-offending can be successfully managed by appropriate supervision in the community. I will address that issue in due course.
102 Any order under the Act will have a significant impact on the respondent. The order which would have the most impact would be an order for his continuing detention. The respondent has already been in custody for a significant period of time. His most recent period of incarceration is now over five years in length. The effect of such incarceration on his ability to cope with freedom cannot be underestimated. There is, however, no pressing need, such as medical treatment, for the respondent's release.
The type of sexual offence which the respondent is likely to commit
103 I have already referred to the psychiatrists' views about the type of sexual offence which the respondent is likely to commit in the future. The likelihood is that he will commit serious sexual offences against pre-pubescent or pubescent girls. The likelihood is the offences will not involve penile penetration and will not involve physical assault other than for the purpose of detention and compliance. The offences may include digital penetration. They may well include assault for the purpose of removing the child's clothing so the child's body can be viewed by the respondent. The offences may also involve the respondent forcing the victim to watch him masturbate. In any event, the offences are likely to involve the respondent masturbating and ejaculating close to the victim.
104 I note Dr Wynn Owen's comment that a change in the respondent's offending may include offences against prostitutes. I agree that this possibility cannot be discounted. However, in my view, the respondent's history has shown that he has a deviant sexual interest in pre-pubescent and pubescent girls and that they remain his likely victims.
Conclusion as to whether there is an unacceptable risk that if the respondent were not subject to a continuing detention order or a supervision order, he will commit a serious sexual offence
105 In coming to a conclusion in respect to the issue as to whether there is an unacceptable risk that if the respondent were not subject to a continuing detention order or a supervision order, he will commit a serious sexual offence I have taken into account all the evidence. In particular, I have taken into account the reports of Dr Wojnarowska and Dr Wynn Owen. I have also taken into account the inferences that can be drawn from the respondent's past offending. I have considered those matters in light of the standard of proof, the statutory provisions and the Court of Appeal's dicta in the various cases to which I have referred.
106 I conclude that the DPP has proven that there is an unacceptable risk that if the respondent is not subject to a continuing detention order or a supervision order, he will commit a serious sexual offence. I find that the unacceptable risk that the respondent poses is one that makes him a serious danger to the community. That is, he is likely to offend against members of a particular vulnerable group from within the community. Such offending not only directly affects the complainants but also their families and associates. Further, the offending is contrary to the wider community's interests and responsibility to protect members of that group. Thus, I find that the respondent is a serious danger to the community.
Continuing detention order or supervision order
In deciding whether to make an order under subsection (1)(a) or (b), the paramount consideration is to be the need to ensure adequate protection of the community.
108 This is the only guidance given by the legislature as to considerations which a court should take into account when deciding whether to make a continuing detention order or a supervision order. The court must, during this process, take into account any conditions which can be placed on a supervision order so as to ensure the adequate protection of the community and the rehabilitation of the offender: s 18(2).
109 The conditions that the DPP has proposed be placed on any supervision order are numerous and would involve a substantial restriction on the respondent's freedom. It is proposed that a supervision order be made for a period of 10 years which would, in summary, ensure that the respondent:
110 The DPP submits that such conditions on a supervision order would adequately protect the community.
111 The respondent consents to such an order being made. He submits that given the length of time he has spent in custody, the rehabilitation programmes he has undergone, the insight he has gained into the causes of his offending, the anti-depressant medication he is taking, the anti-libidinal treatment that he is taking and the demonstrated effects of this treatment on him will, in addition to the conditions of the supervision order, adequately protect the community from the risk of him committing serious sexual offences in the future.
112 Neither Dr Wojnarowska nor Dr Wynn Owen made a recommendation that the respondent either be kept in custody or released into the community. However, it is still relevant for me to take into account their views when making a determination as to whether the respondent can be released under a supervision order. Dr Wojnarowska, in summary, made the following recommendations in managing the respondent in the community:
Dr Wojnarowska was also of the view that the respondent requires continuous psychological intervention by a very experienced psychologist.
113 Dr Wynn Owen, in summary, recommended that should the respondent be released into the community the following conditions should be imposed:
114 At the hearing of this matter I raised several areas of concern with the applicant concerning the proposed conditions of supervision. First, there is the issue of ensuring compliance with the anti-libidinal treatment. There remains a conflict between enforcement of any order made by the court or direction given by a CCO that a person take anti-libidinal treatment and prescription of such medication against a person's will. It seems that most medical practitioners will not prescribe or force a patient to take anti-libidinal treatment against their will.
115 In my view it is necessary that there be very strict conditions on any supervision order to ensure that if McGarry declines, once in the community, to take any medical treatment which is either required under the supervision order or expected under the supervision order that this is reported to the relevant CCO and if necessary to the court. In my view it is necessary to strengthen the conditions of the supervision order to ensure that this occurs.
116 In a different application under the Act I expressed the view that I would not compel a dangerous sexual offender to take anti-libidinal medication against their will. It remains the case that it is neither appropriate nor possible to force a person to take such medication against their will. However, there are some cases, and this is one, where the safety of the community cannot be ensured unless the dangerous sexual offender agrees to and does comply with an anti-libidinal treatment regime in the community. It is necessary that this be an express condition of the respondent's supervision order. This is particularly so, in light of both Dr Wojnarowska's and Dr Wynn Owen's opinions, that such anti-libidinal treatment should be a condition of the supervision order and that the respondent should take the treatment for a considerable period of time.
117 Given that the respondent has expressed a view that he will not take the anti-libidinal treatment for more than 12 months and to ensure the protection of the community, it is necessary that the taking of the medication be made an express condition of the supervision order, that there be regular monitoring of his blood levels and that the respondent authorise his prescribing doctor to advise his supervising CCO if the respondent should leave his practise or refuse to take the anti-libidinal treatment.
118 The respondent's proposal was that he reside with his elderly mother. It has been noted that the police do not support this condition as the respondent's mother lives in an area close to bushland and close to various community resources which may give him an opportunity to re-offend. I have further concerns about the appropriateness of the respondent living with his elderly mother who he has not lived with for a considerable period of time and with whom he apparently had a problematic relationship when he was a child. Thus, I was not prepared to release the respondent without other arrangements being made for his accommodation.
119 The police have subsequently found an address for the respondent, which they regard as suitable. I am substantially reliant on their assessment of the suitability of the address and it is only on the police's approval of that accommodation that I am prepared to make the supervision order.
120 There are references in the material to the respondent seeking mentoring from his daughter against whom he offended. As I expressed to counsel at the hearing, it is of considerable concern to me both that the respondent would think that this was appropriate and that any supervising officer would contemplate facilitating such a relationship without, at the very least, providing considerable support to the respondent's daughter and ensuring that she was prepared to take on this role, freely and voluntarily. I do not believe that it is necessary to refer to this issue particularly in the supervision order but I make it clear that I expect the respondent's supervising CCO to ensure that the respondent's daughter is provided with such support and that the supervising CCO does not encourage the respondent to have contact with his daughter unless she wishes the contact to occur and appropriate support is provided.
121 The most recent report that I have received from community corrections is to the effect that community corrections does not believe that one-to-one counselling is necessary for the respondent's treatment in the community. In light of Dr Wojnarowska's and Dr Wynn Owen's opinions about the need for the respondent to receive one-to-one psychological counselling by a very experienced psychologist, I am not prepared to order the respondent's release on a supervision order without this being a mandatory requirement of the supervision order for the first 12 months of the order.
122 I am of the opinion that further conditions have to be added to the proposed supervision order to prevent the respondent from loitering near schools, shopping centres, playground and childcare centres.
123 After giving careful consideration to all of the evidence and to the proposed conditions of a supervision order, as amended by me, I am satisfied that the community will only be adequately protected by a supervision order in those terms. They are extremely onerous. That is inevitable and if the respondent is not prepared to comply with the conditions of the order then the community will only be protected by the making of a detention order.
124 It is of the utmost importance that those responsible for monitoring, treating and supervising the respondent comply with the spirit and the letter of the supervision order. It is only by ensuring strict compliance with the terms of the supervision order that the respondent's risk of re-offending can be reduced to such an extent that the community can be adequately protected by the supervision order.
125 I will hear the parties as to the final terms of the order.
(2001) 207 CLR 121
(2005) 31 WAR 69
The court found the respondent to be a serious danger to the community and, having amended and strengthened the proposed conditions (including express conditions for anti-libidinal treatment with monitoring and mandatory one-to-one counselling for at least 12 months), made a supervision order for a period of 10 years with onerous restrictions and reporting obligations to ensure adequate protection of the community (see [105], [109]–[123], [123]–[125]).