Supreme Court of WA|2009-09-24|Before: Jenkins J

DIRECTOR OF PUBLIC PROSECUTIONS FOR WESTERN AUSTRALIA -v- McGARRY [No 2] [2009] WASC 287 (24 September 2009)

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

CITATION : DIRECTOR OF PUBLIC PROSECUTIONS FOR WESTERN AUSTRALIA -v- McGARRY [No 2] [2009] WASC 287

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) - Contravention of supervision order - Likelihood that order will be contravened - Whether continuing detention order required

Michael Alexander McGarry be detained in custody for an indefinite term for control, care, or treatment

Director of Public Prosecutions for Western Australia v McGarry [2009] WASC 226

1 JENKINS J: Michael Alexander McGarry comes before me on an application by the Director of Public Prosecutions for Western Australia (DPP) under the Dangerous Sexual Offenders Act 2006 (WA) (DSO Act). The DPP alleges that Mr McGarry has contravened, and is likely to contravene, conditions of his supervision order which came into force on Monday, 17 August 2009 (the supervision order). The DPP applies for an order under the DSO Act s 23 that Mr McGarry be detained in custody for an indefinite term for control, care, or treatment.

If the court is satisfied, on the balance of probabilities, that the person who is subject to the supervision order is likely to contravene, is contravening, or has contravened, a condition of the supervision order, the court may -

(a) make an order amending the conditions of the supervision order and, if the court considers it appropriate in order to achieve compliance with the supervision order or necessary in order to ensure adequate protection of the community, make any other order; or

(b) if the court is also satisfied that there is an unacceptable risk that, if an order under this paragraph were not made, the person would commit a serious sexual offence, order that the person be detained in custody for an indefinite term for control, care, or treatment.

Contravened condition 28 of the supervision order by having a face to face meeting with his daughter, the subject of that condition, which was not prearranged by telephone.
Contravened condition 44 of the supervision order by being on the premises of the Jull Court Shopping Centre in Armadale on Saturday 22 August 2009, without reasonable excuse.
Is likely to contravene conditions 30, 40, 42 and 46 of the supervision order. I will provide details of these alleged likely contraventions later in these reasons.

4 In response to these allegations, Mr McGarry acknowledges that he was at all relevant times subject to the supervision order and that he breached condition 28 of the supervision order by having a face to face meeting with his daughter, without that meeting being prearranged via telephone. He says that the breach was a minor breach because the meeting was not initiated by him. He denies that he breached condition 44 of the supervision order by being at a shopping centre on a weekend, without reasonable excuse. On Mr McGarry's behalf, his counsel submits that the conduct alleged by the DPP does not constitute a breach of condition 44 of the supervision order because although Mr McGarry was in a shopping centre at the time, he had a reasonable excuse for being there. That reasonable excuse was to shop.

5 Mr McGarry denies that he is likely to contravene any other condition of the supervision order because he is now aware of the consequences of doing so.

6 With the consent of the Mr McGarry, the DPP tendered a number of written statements, photographs and other paper exhibits. Mr McGarry did not seek to cross-examine any of the makers of the statements.

Background information and findings in respect to alleged contravention of the supervision order

8 I incorporate into these reasons my reasons for making the supervision order: Director of Public Prosecutions for Western Australia v McGarry [2009] WASC 226.

9 Mr McGarry signed the supervision order on 17 August 2009 and was released from custody on the same or the next day. Also on 17 August 2009, an officer from the Western Australian Police Service's Sex Offender Management Squad interviewed Mr McGarry and explained the conditions of the supervision order to him.

10 Condition 28 of the supervision order, read with the protective conditions referred to therein, prevented him from having face to face contact with his daughter unless the contact was prearranged, via telephone.

11 Condition 44 of the supervision order, amongst other things, prohibited Mr McGarry from being on the premises of a shopping centre, without a reasonable excuse, at any time on weekends, except for specific purposes.

12 After his release from custody, Mr McGarry had a number of telephone conversations with his daughter. These telephone calls did not breach the supervision order. During one of these conversations his daughter advised him that she could not meet him on Friday, 21 August 2009 because she had a Doctor's appointment at Armadale Hospital. She did not tell him the time of the appointment.

13 On Friday, 21 August Mr McGarry went to Armadale Hospital, ostensibly to see a former partner who worked there. He later told the police that on arrival he found that his former partner was not there and that she must have had a day off. Whilst still at the hospital, he attempted to contact his former partner by mobile telephone. Mr McGarry's daughter saw him in a hospital reception area. She walked past him but saw him again when she later returned to the reception area. At that point he was walking towards his vehicle. Because she thought that Mr McGarry had seen her and because she did not want to appear to be rude, she approached his car and spoke to him. Mr McGarry asked his daughter how she was getting home and when she said by bus, he told her that he would give her a lift.

14 Mr McGarry drove his daughter to the car park of a particular shop at the Jull Street shopping centre in Armadale. The identity of the shop is known to the parties. Throughout these reasons I will call it 'the shop'. During the drive Mr McGarry and his daughter talked about various members of his family and members of the family of his ex-partner. On arriving at the car park, Mr McGarry's daughter advised him that the step-sister of one of his other children worked in the shop. The identity of the step-sister is also known to the parties. I will call her 'the complainant' to protect her privacy. The complainant is a 19-year-old young woman. She is also the daughter of one of Mr McGarry's former partners. He said something to indicate that he would be going into the shop in order to purchase some goods.

15 Mr McGarry asked his daughter whether she wanted to get something to eat with him and she declined the offer. In her statement she says that she did not want to get a lift with Mr McGarry but that she has problems saying no to him and neither did she want to be rude to him. This daughter is a victim of Mr McGarry's past offending (see [27] of my earlier reasons) and I can well understand that she has this difficulty. It was that likelihood which prompted me to query the original proposal from Mr McGarry and the Department of Corrective Services that his daughter be a mentor to him (see [120] of my earlier reasons).

16 When later spoken to by the police about this meeting, Mr McGarry acknowledged that he had met with his daughter and given her a lift. He denied that he knew that she was going to be at the hospital and said that he went there only to see his former partner. He now concedes that he was probably told by his daughter that she was going to the hospital that day but, from the bar table, his counsel says that he does not concede that he remembered being told that information. His counsel submits that Mr McGarry's intention not to breach the supervision order can be seen in that he subsequently met with his daughter after arranging such meetings via the telephone, as required by the supervision order.

17 I do not accept that Mr McGarry forgot that his daughter was going to the hospital that day. There is no evidence to that effect apart from his self serving comments to the police that he did not know that she was going to be there. This assertion is contradicted by her statement that she told him that she was going to be at the Hospital that day. It seems unlikely that, less than a week later, he would have forgotten that information. Further, it seems unusual behaviour to go to the Hospital to see a former partner, during her working day, without contacting her to make an appointment. On the balance of probabilities I find that at the very least, Mr McGarry went to the Hospital knowing that it was a possibility that he would see his daughter, without prior arrangement via the telephone. Given the number of phone calls and attempts made by Mr McGarry to meet with his daughter in the period after his release, I find that Mr McGarry was interested in meeting with his daughter. Probably, Mr McGarry thought that an apparently chance meeting with her at the Hospital would be desirable. When she did make contact with him, he breached his order by maintaining and extending the meeting by giving her a lift.

18 After being told of the complainant's place of work, Mr McGarry went to the shop on two separate occasions on the same day, Friday 21 August, at times which did not breach the supervision order. The last of those visits was close to 5 pm.

19 On the first of these visits Mr McGarry started a conversation with the complainant about members of her family and their personal circumstances. The complainant knew who Mr McGarry was and of his relationship with her family, but this appears to have been her first contact with him since his release from custody. Mr McGarry had discovered information about the complainant's family through the conversation which he had with his daughter, earlier that day.

20 On that first occasion the complainant told Mr McGarry that she had to go and turned her back on him. He left the shop. On the second occasion he grinned at her as he entered the shop. He later came up to the complainant's checkout with goods to purchase. She walked away and started to stock shelves. He purchased his items at another checkout and left the shop.

21 The complainant did not wish to have any contact with Mr McGarry and intended by her attitude and words to him to indicate that was so. After the two visits on Friday 21 August, the complainant told her mother of the unwanted attention from Mr McGarry and arrangements were made to speak to the police about it. The complainant and other female members of her family found Mr McGarry's contact with her to be intimidating.

22 On Saturday, 22 August 2009 at about 10.45 am Mr McGarry was again in the shop in Jull Street Armadale. I find that at about that time he stood at the end of an aisle and stared at the complainant. She advised a manager of his presence in the store. She then walked to the back of the store. The complainant's mother was also in the shop at that time and saw Mr McGarry staring at the back of the shop, where the complainant had gone. Mr McGarry then made his way to the checkout with his intended purchases being a doona and doona cover. The manager called him over to her checkout and completed his purchases. The manager told him that it would be the last time he was served in the store. He said 'ok' and left the store.

23 I find that the shop is part of a large complex of shops situated at 193 Jull Street Armadale. There are approx 70 shops in the area, under one roof. The complex includes the Big W complex which in turn contains a food hall, cinemas and a mix of shops including those that cater to children. The shop has only one entrance which is situated on one side of the complex, adjacent to a car park. The back wall of the shop is attached to a set of stairs which leads to other attached shops including take away food shops, a bank and other retail shops.

24 The complex has a single managing agent. I do not know the details of the ownership of the land and buildings which make up the complex.

25 The supervision order does not contain a definition of a shopping centre. The phrase is a phrase in everyday use in our society. When used in the supervision order it bears its ordinary meaning. That is, a collection of premises, either under the one roof, attached to one another or adjacent to one another which are mainly used to offer goods and services for retail sale and in which the retail sale of goods and services occurs. The Shorter Oxford English Dictionary defines a shopping centre as 'an area or complex of shops'. The Macquarie Dictionary defines a shopping centre as 'that part of a town or suburb where shops are most densely concentrated'.

26 At one extreme there may be a question as to whether a small number of shops which are close to one another but not joined together constitute a shopping centre. However, this is not such a case. The shop is obviously part of a shopping centre of a considerable size and with all the characteristics that ordinary people would associate with a shopping centre.

27 Mr McGarry later told the police that he did not regard the shop as being part of a shopping centre, because he walked into it off the road. He said that after he went through the conditions of the supervision order with the police on his release from prison, his assessment of a shopping centre was a centre like Garden City or Carousel, 'Where you walk in the mall'.

28 It is instructive to consider what was said between the police and Mr McGarry during the earlier discussion about the conditions of the supervision order. Mr McGarry was told by the police officer that he could not define a 'shopping centre' for him. After some discussion, Mr McGarry said:

... yeah, so it's really anytime time where kids are going to be there, I don't go shopping - into a shopping centre; just go to the deli and get what I need. So that's fine.

29 Nothing was said to Mr McGarry to lead him to believe that 'shopping Centre' meant a shopping mall, only. He clearly understood that he was permitted to go to 'delis' on the weekend. The fact is, that the shopping centre, which includes the shop, is like a Garden City or Carousel shopping mall and nothing like a deli. A shopping mall is a form of a shopping centre but there is no reason to place such a narrow meaning on the phrase shopping centre and I do not do so.

30 When later spoken to by the police, Mr McGarry said he went to the shop on the Saturday because he wanted a doona. He said he was, 'freezing'. There is no evidence that Saturday, 22 August or the day beforehand was particularly cold. Mr McGarry said that he purchased a doona and a doona cover. This is confirmed by other evidence. A subsequent search of his premises found the doona and cover on his bed. He had another doona and blanket in his house, as well.

31 I reject Mr McGarry's contention that he had a reasonable excuse for being on the premises of the shopping centre on Saturday to buy a doona and cover. First, he had other warm bedding available to him. Secondly, if he truly needed further warm bedding before Monday, 24 August 2009, when he could have legitimately visited a shopping centre, he could have sought the assistance of a charity. Thirdly, he had last been in the store the afternoon of the previous day. No explanation has been proffered as to why he did not buy the bedding on that occasion. Fourthly, on each of the three occasions that Mr McGarry went to the shop he used the opportunity to make contact or try to make contact with the complainant. It was only when Mr McGarry found out that the complainant worked at the shop that he started to shop there. This contact and the lack of a reasonable excuse for it given the age difference between the complainant and Mr McGarry, their lack of a recent familial or social relationship and the indifferent attitude displayed by the complainant to Mr McGarry on these occasions points strongly to the inference that Mr McGarry was using the visits to the store, at least in part, as an excuse to make contact, which he would not otherwise have had, with the complainant.

32 Lastly, the terms of condition 44 specify that Mr McGarry is permitted to be on the premises of a shopping centre on a Saturday for specified reasons. It is clear from those reasons, that simply shopping is not a 'reasonable excuse' for being at a shopping centre. If this was so, the condition would have little, if any, effect, as a protection to the community.

33 For all these reasons I am satisfied that Mr McGarry did not have a reasonable excuse for being on the premises of the shopping centre on Saturday, 22 August 2009.

34 I do not go so far as to find, as alleged by the DPP, that Mr McGarry's reason for being at the shop on 22 August was to intimidate the complainant or her family. I do not believe that the evidence enables me to come to that finding. I do conclude that he intended to make contact with the complainant. However, it may be that he was hoping to ingratiate himself with the complainant or her family; rather than intimidate them.

35 After considering all the evidence, I find that on Saturday, 22 August 2009 at approximately 10.45 am Mr McGarry contravened condition 44 of the supervision order by attending at the shop which is part of a shopping centre, without reasonable excuse. This breach is in addition to his admitted contravention of condition 28.

Findings in respect to alleged likely contraventions of the supervision order

36 The DPP alleges that Mr McGarry is likely to contravene condition 30 of the supervision order which requires him not to commit offences against the Criminal Code (WA) s 557K. That section provides that a child sex offender commits an offence if, without reasonable excuse, they are in or near a place which is a public place where children are regularly present.

37 In addition to the evidence about Mr McGarry's presence at the shopping centre, there is evidence before me that after his release from prison Mr McGarry had gone to or intended to go to various suburban markets held on weekends. There is also evidence before me that on Friday, 21 August 2009 he purchased and ate food in the restaurant area of a take away food outlet. Whilst eating his food he sat overlooking a children's play area.

38 On the face of it this evidence leads me to be satisfied that Mr McGarry is likely to contravene condition 30 of the supervision order.

39 In response, Mr McGarry says that as a consequence of this application and having been charged with breaching his supervision order, he is well aware of how careful he has to be to ensure that he complies with the conditions of the supervision order. In effect, his counsel submits that these and related proceedings have been a 'wake up call' to him and the court can be satisfied that he will not breach the conditions of the supervision order in the future.

40 Given what I said in my earlier written reasons and what I said orally to Mr McGarry when I published those reasons, I am of the view that Mr McGarry could not have been under any illusions about the strict requirements of the supervision order or the consequences should he not comply with them. As he did not properly heed the warnings I gave to him, I do not have any confidence that he will do so in the future.

41 The DPP also alleges that Mr McGarry is likely to contravene condition 40 of the supervision order which states that he is not to access the internet via public terminals or to access the internet via wireless communication unless such access is approved in advance by his supervising community corrections officer.

42 During the course of the interview with the police, Mr McGarry revealed that he had accidentally touched the wireless internet access on his mobile phone. However, there is no evidence before me that he did make any wireless connection to the internet, by doing so.

43 There is also evidence before me that Mr McGarry has purchased a second hand, ADSL modem. This, of itself, is permitted if connected to the internet via a telephone line. During his subsequent interview with the police there is a confusing exchange between the interviewing officer and Mr McGarry as to whether he can or intends to connect to the internet wirelessly, using the ADSL modem. After considering this evidence, I am not satisfied that Mr McGarry is likely to contravene condition 40 of the supervision order.

44 The DPP alleges that the complainant is likely to contravene condition 42 of the supervision order which, amongst other things, prohibits him from collecting, in a permanent form, images of children, whether indecent or not, with the exception of images of his immediate family which are not indecent images.

45 When Mr McGarry's home was searched by police on 27 August 2009, a photograph album was found containing photos of a number of identifiable members of Mr McGarry's immediate family. None of the photographs are indecent. They all appear to be the normal sort of photographs people keep of family and friends. The evidence discloses that one of the photographs is of the child of Mr McGarry's niece. The DPP says that she is not a member of Mr McGarry's immediate family. There is no evidence as to the identity of another child shown in a photograph. A witness who has known Mr McGarry and his family for approximately 27 years is unable to identify the child. That witness identifies a child shown in two other photographs as a member of Mr McGarry's family. However, the DPP says that that identification is wrong and the photograph is of a child who is not related to Mr McGarry. That may be the case, but there is no evidence to that effect. Consequently, I can not accept the DPP's submission.

46 Thus, I find that Mr McGarry was in possession of a photograph of one of his niece's children and a photograph of an unknown child.

47 Mr McGarry submits that his possession of these photographs do not breach the requirement that he not 'collect' children's photographs. Further he says that his possession of these two photographs is insufficient to prove that he is likely to contravene the supervision order in the future. This is because now that he has been warned about possessing such photographs, he will not possess them in the future.

48 Given my other findings relevant to this application, I find it unnecessary to decide whether this particular allegation has been made out. Even if it was established, the nature of the photographs and the unsuspicious manner in which they are kept would cause me to put little weight on such a finding in my overall assessment of the DPP's application.

49 The DPP also alleges that Mr McGarry is likely to contravene condition 46 of his supervision order which requires that he not be within 50 m of a children's playground.

50 As I have said, there is evidence that on 21 August 2009 Mr McGarry purchased and ate food in a fast food outlet. At the time he did so he was sitting within 50 m of a children's playground situated within the outlet. He sat in a position overlooking the playground.

51 Mr McGarry's response to this allegation is the same response that he makes to the allegation that he is likely to contravene condition 30. He told the police that he did not think about condition 46 when he sat where he did. My conclusions are also the same as my conclusions at [40] - [41].

52 In coming to my findings about these likely contraventions, I have also taken into account Mr McGarry's general conduct on his release from prison. In particular, his contraventions of the supervision order indicate to me that he is not prepared to or not able to live a cautious enough life to ensure that he complies with his supervision order. For example, Mr McGarry breached condition 28 when he was out in a very public place where he may well have come into contact with children and young people. He says he coincidentally met his daughter. Despite being fully aware of the requirement to make prior telephone appointments to meet her, he knowingly entered into a conversation with her and offered her a lift. A person who was not likely to breach his conditions of supervision would have told his daughter that he could not talk to or have contact with her in these circumstances and withdrawn from the contact. The obligation on him in this respect was obvious. Yet, he did not take any steps to comply with it.

53 Similarly, in breaching condition 44, it seems from what Mr McGarry told the police that he did not think twice about the legality of him attending the shop on a Saturday and the risk that in so doing he may come into contact with a child under the age of 17 and so breach, not only condition 44, but also conditions 30 and 37.

54 Neither did Mr McGarry give any thought to the appropriateness of having contact with the complainant, who he told the police he believed to be 18 years of age, for the third time in two days. Nor did he apparently give any consideration to her feelings or how she may view his conduct.

55 There is sufficient evidence to satisfy me that Mr McGarry is likely to contravene conditions 30 and 42 of the supervision order. These findings and Mr McGarry's general conduct since he was released from prison indicate to me that he is prepared to engage in activity in which there is a substantial risk that he will contravene his supervision order.

Determination of application for an indefinite detention order

56 The Act s 23 provides that on being satisfied that Mr McGarry is likely to contravene, is contravening, or has contravened, a condition of the supervision order, I may either amend the order and rerelease him on a supervision order or make an order that Mr McGarry be detained for an indefinite period.

57 I can only make an order that Mr McGarry be detained if I am satisfied that there is an unacceptable risk that, if I do not make such an order Mr McGarry would commit a serious sexual offence.

58 In my opinion, the proper construction of s 23 requires that I must make an order for Mr McGarry's continuing detention if I am satisfied that there is an unacceptable risk that, if I do not make such an indefinite detention order, Mr McGarry would commit a serious sexual offence.

59 The onus is on the DPP to persuade me that there is an unacceptable risk that, if an indefinite detention order is not made, Mr McGarry would commit a serious sexual offence.

60 The proper construction of s 23 also requires that in deciding whether there is such an unacceptable risk I must apply the standard of proof to the higher degree of probability which applies to an application for an order under the DSO Act s 17. That is, in order to discharge the onus to satisfy the court that there is an unacceptable risk that, if an indefinite detention order is not made, Mr McGarry would commit a serious sexual offence, the DPP must produce acceptable and cogent evidence which satisfies me of this matter to a high degree of probability.

62 On 17 August 2009 I delivered my reasons for finding that Mr McGarry was a serious danger to the community. Before I made such a finding I had to be satisfied that that there was an unacceptable risk that, if Mr McGarry were not subject to a continuing detention order or a supervision order, he would commit a serious sexual offence.

63 At the commencement of the earlier proceedings Mr McGarry conceded that this was the case. Nonetheless, I examined all relevant matters and gave detailed reasons for deciding that there was an unacceptable risk that, if Mr McGarry were not subject to a continuing detention order or a supervision order, Mr McGarry would commit a serious sexual offence.

64 Mr McGarry now submits that in coming to that decision I took into account reports from psychiatrists that were over eight months old and that he had made a positive change to his life, in the meantime, which should have affected my decision as to whether there was such an unacceptable risk. The change to which he alludes is his compliance with a regime of antidepressant and anti-libidinal medication.

65 The evidence satisfied me a mere month ago that there was an unacceptable risk that, if Mr McGarry were not subject to a continuing detention order or a supervision order, he would commit a serious sexual offence. This was despite the age of the psychiatric and other reports before me. The only thing which had changed since the psychiatric reports were written was that Mr McGarry had commenced and stayed on the anti-libidinal medication for some months and the tests conducted indicated that his testosterone levels were very low as compared to the average levels for men. This was a matter which, hopefully, would reduce his risk of offending, but it did not reduce it to an acceptable level.

66 The psychiatrists, Dr Wojnarowska and Dr Wynn Owen, both of whom I found to be credible and reliable, were of the view that if Mr McGarry were released into the community, without very close supervision, it would be unlikely that Mr McGarry could be relied upon to take his medication or to report the presence of deviant sexual arousal ([85] of my earlier reasons).

67 Thus, the fact that Mr McGarry is on medication and it is working to reduce his testosterone levels is but one strategy to reduce Mr McGarry's risk of reoffending. I am satisfied that the psychiatrists were of the view, as were and am I, that along with a requirement for Mr McGarry to take his medication there was a need for very close supervision and control of Mr McGarry in the community. Dr Wynn Owen in his report of 15 February 2009 said that risk management in the community, even under close supervision, will not reduce Mr McGarry's risk of reoffending unless major constraints are applied. The conditions on Mr McGarry's supervision order were designed to provide that constraint.

68 I do not accept Mr McGarry's contention that the fact that he is taking anti-libidinal and antidepressant medication means that he will not commit a serious sexual offence.

69 Given that there has been no other positive change in Mr McGarry's circumstances since I published my earlier reasons on 17 August 2009, it is unnecessary for me to either reconsider all the matters I considered in my earlier reasons or for altering the decision I came to on that date. I remain of the view that there is an unacceptable risk that, if Mr McGarry is not subject to a continuing detention order or a supervision order, he will commit a serious sexual offence.

70 When I came to this view in August, I then went on and determined that the community would be adequately protected from that risk if Mr McGarry were placed on a supervision order containing very stringent conditions.

71 In making that determination I said at [123] - [124] of my reasons:

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.

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.

72 Further, when I delivered my written reasons I said to Mr McGarry:

I have delivered my reasons in respect to this application and I have made the necessary finding that you are a serious danger to the community. Having regard to the Director of Public Prosecutions' opinion that you may be released on a supervision order and having regard to the fact that the police have located a residence which they say is suitable for you to live in, I am prepared to make a supervision order for a period of 10 years.

The conditions of that supervision order, as I say, go for eight pages. They are extremely stringent. At the end of the day you may well feel that you had more freedom in prison than you have in the community because of those conditions but I make it abundantly clear, Mr McGarry, it is only upon you agreeing to kept to those conditions, and in fact keeping to the letter of them, that I am prepared to grant you a supervision order.

THE RESPONDENT: Thank you.

JENKINS J: If there is any evidence in any further application certainly brought before me that you are not complying with the terms of that supervision order, then certainly my view at this point is that the community could only be protected by a detention order. So the ball is entirely in your court, Mr McGarry. You either comply with these conditions or you will be in breach of your supervision order and you will have to return to custody. That is the position.

73 I remain of the views that I expressed in my earlier written reasons and in my oral comments to Mr McGarry.

74 The conditions of the supervision order were not just to try and reduce Mr McGarry's physical or psychological desire to offend. They were also for the purpose of making sure that the authorities could appropriately monitor Mr McGarry so as to reduce the risk of him reoffending. They were also for the purpose of controlling or constraining Mr McGarry's movements so that he would not put himself into high risk situations which may tempt him to reoffend.

75 I was of the opinion then and remain of the opinion that a multi pronged approach was necessary to reduce Mr McGarry's risk of offending to an acceptable level which would enable him to be released into the community under a supervision order.

76 The fact that his proven contraventions and likely contraventions of the supervision order do not directly relate to serious sexual offending, does not mean that they should be given little weight in my determination of this application. As I said in my original decision, it is only if all the conditions of the supervision order are complied with that I can be satisfied that the community will be adequately protected from the risk that Mr McGarry will commit a serious sexual offence.

77 Now that I am satisfied that Mr McGarry has not complied with those constraints and is likely not to comply with them all in the future, I conclude that there is an unacceptable risk that, if I do not make a continuing detention order Mr McGarry will commit a serious sexual offence.

78 I order that Mr McGarry be detained in custody for an indefinite term for control, care, or treatment.

Sexual Offenders Act 2006

DIRECTOR OF PUBLIC PROSECUTIONS FOR WESTERN AUSTRALIA -v- McGARRY [No 2] [2009] WASC 287 (24 September 2009)

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Judgment (91 paragraphs)

DIRECTOR OF PUBLIC PROSECUTIONS FOR WESTERN AUSTRALIA -v- McGARRY [No 2] [2009] WASC 287 (24 September 2009)

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