PAUL DOUGLAS ALLEN also known as PAUL ALAN FRANCIS DEVERELL

Criminal law - Dangerous Sexual Offenders Act 2006 - Contravention of supervision order - Whether amended supervision order will adequately protect the community - Whether order for indefinite detention is required

Dangerous Sexual Offenders Act 2006 (WA), s 23

Director of Public Prosecutions v Allen [2006] WASC 160

1 BLAXELL J: On 12 March 2007, I placed Paul Douglas Allen on a supervision order after finding that he was a 'serious danger to the community' within the meaning of the Dangerous Sexual Offenders Act 2006 (WA). The supervision order was subject to very rigorous conditions designed to minimise the risk of him sexually reoffending. Those conditions were amended and further tightened by an order made on 28 April 2008.

2 Mr Allen now comes before me on an application by the Director of Public Prosecutions alleging that he has committed 14 breaches of the conditions of the supervision order. Mr Allen admits those breaches and has pleaded guilty to 14 related charges in separate proceedings on indictment. He has been in custody since 16 September 2009 as a result of being refused bail in respect of those other matters.

3 In relation to the present application, I must decide whether to exercise my discretion under s 23 of the Act to either:

(a) amend the conditions of the supervision order, and make any other order that is appropriate to achieve compliance, or is necessary to ensure adequate protection of the community; or

(b) order that Mr Allen be detained in custody for an indefinite term for control, care of treatment. (I should only make this order if I am satisfied that without it, there is an unacceptable risk that he will commit a serious sexual offence.)

4 Mr Allen is 29 years of age and has a history of sexual offending against young children. He committed a total of 12 such offences between 1998 and 2001, when he was aged between 18 and 21 years. The offences involved seven complainants of varying ages between 4 years and 10 years. Some of the offences were committed while Mr Allen was on bail or on parole in respect of previous offences. (A full summary of Mr Allen's offending history can be found in my decision: Director of Public Prosecutions v Allen [2006] WASC 160 [14] - [24]).

5 Mr Allen first entered the prison system at the age of 20 years, and was ultimately released 6 years later on 23 June 2006. Prior to his release, he had commenced weekly (and occasionally fortnightly) counselling sessions with the forensic psychologist, Dr Tarmala Caple, and those sessions have continued up until the present date. At all times following his release into the community, Mr Allen was monitored by members of the WA Police ANCOR squad, and also required to comply with conditions designed to minimise the risk of him reoffending. (These conditions were initially contained in a written personal undertaking to the court, but from 12 March 2007 were the subject of the supervision order which he has now breached.)

6 The conditions of the supervision order are very detailed and include obligations for Mr Allen to abide by requirements to the following effect:

- Condition (xv): to regularly report to the Armadale police station.

- Condition (xxvii): to allow entry into his home at any time by his supervising Community Corrections Officer (CCO) or any officer of the WA Police ANCOR unit.

- Condition (xii): to regularly attend upon a medical practitioner as directed by his CCO, so that he can be prescribed (anti-libidinal) drugs as recommended by that medical practitioner.

- Condition (xviii): to undergo medical testing (including tests of testosterone levels) as directed by his CCO to ensure that the anti-libidinal medications have been taken.

- Condition (xxii): not to access or possess any pornographic material.

- Condition (xxiv): not to access any computer or other device capable of Internet access without approval of his CCO.

- Condition (xxv): not to search for images of children, whether indecent images or not, while using any computer or other device capable of Internet access.

- Condition (xxvi): not to collect or retain images of children in any format or media (whether indecent images or not) unless such possession is approved by his CCO or by an officer of the WA Police ANCOR unit.

- Condition (xxiii): not to tell lies to or deceive his CCO or any officer of the WA Police ANCOR unit

7 Under this regime, Mr Allen must not only make regular visits to Armadale police station and to his CCO, but also receive unannounced home visits by the ANCOR unit of the WA Police. He is also required to take oral medications to reduce his sex drive, and to undergo regular testing to confirm his compliance with that condition. The conditions prohibiting Mr Allen from searching for or collecting images of children are not limited to indecent or pornographic images, because he can be sexually aroused by very ordinary images of children (of the type which regularly appear in newspapers, magazines and other forms of media.)

8 These conditions were specifically designed to meet the concerns of the psychiatrists who assessed Mr Allen for the purposes of the Act. In that regard, the focus of treatment (and an important 'relapse prevention strategy') was for Mr Allen to cease fantasising about children as objects of sexual gratification. For this reason it was critically important that he not continue to collect images of children for sexual purposes. In a report dated 15 December 2006, Dr Bryan Tanney stated:

Certainly, his admission of ongoing interest in male children as objects for sexual fantasy and arousal, even when of decreasing intensity (frequency) due to antiandrogen, is a critical concern, the more so when it occurs despite his awareness of the adverse consequences for such behaviour, and the availability and use of alternate and culturally appropriate objects of sexual gratification.

9 Another important element of the relapse prevention strategy was the prescription of oral anti-libidinal medications to reduce his sexual drive. In this regard the consultant psychiatrist Dr Mark Hall stated (in a report dated 8 December 2006):

It is my opinion that he would benefit from treatment with a selective serotonin reuptake inhibitor (SSRI) medication. He should also be required to continue treatment with the anti-libinal medication Androcur. If the introduction of an SSRI does not produce sufficient reduction in his sexual urges then the dose of Androcur could be increased. Should Mr Allen become non-compliant with androcur in the future or should be begin to expose himself to high-risk situations more frequently or should the frequency of his use of deviant fantasy for arousal escalate significantly then his anti-libinal medication could be given in depot (long acting injectable) form.

10 The following is a short summary of Mr Allen's 14 breaches of the conditions of the supervision order:

11 Between 12 and 26 March 2009, Armadale police made two unannounced visits to Mr Allen's home. At the time of the first visit, they found a total of 140 videos and 64 DVDs which had covers containing images of children. A further quantity of videos and DVDs with similar covers were found at the time of the second visit. Mr Allen did not have approval from his CCO or from ANCOR police to collect these images. Although the videos and DVDs were not in any way indecent, Mr Allen admitted that he had used them for the purposes of sexual arousal and masturbation.

12 On 13 March 2009, members of the ANCOR squad asked Mr Allen if he had any other images of children. He then produced a satchel containing 175 pages of newspaper and magazine cuttings with pictures of children. Mr Allen did not have approval from his CCO or ANCOR police to collect these images. He again admitted using them to obtain sexual arousal and to masturbate.

13 On 1 April 2009, ANCOR police conducted a further unannounced visit at Mr Allen's home. He was found in possession of eight DVDs with images of children which he had hired from a video store on 30 March 2009. One of the DVDs was R-rated, and Mr Allen did not have the necessary approval to collect any of the images. Mr Allen admitted using the DVDs to obtain sexual arousal and to masturbate.

14 Between 22 March and 20 April 2009, Mr Allen had approval from his CCO to access the Internet on a computer owned by a friend, provided that he was supervised by the friend while doing so. However, Mr Allen was left unsupervised at the computer on two separate occasions. On the first occasion, he accessed a paedophilic Internet site known as 'Boy Lover.com'. On the second occasion, he accessed an indecent site known as 'Boys in Speedos'. When questioned by ANCOR officers on 20 April 2009, Mr Allen readily admitted accessing these sites.

15 As a result of these incidents, the CCO issued Mr Allen with a formal notice of breach on 11 May 2009. Mr Allen was also informed that he could no longer access the internet under the supervision of his friend.

16 On 18 June 2009, Mr Allen accessed pornographic images (which he later described as 'normal adult porn') on a computer belonging to another friend. When interviewed by ANCOR officers on 26 June 2009, Mr Allen readily admitted accessing the Internet with a person whom he knew was not approved by his CCO or the police.

17 Between 16 February and 1 June 2009, Mr Allen missed appointments for medical testing of his testosterone levels. When questioned about these missed appointments, Mr Allen admitted that he had not taken his anti-libidinal medications regularly and that had not taken any at all for 'over a month' (up until 16 March 2009).

18 Between 2 and 9 June 2009, Mr Allen accessed the Internet on the same computer as referred to in count 4 above. However, the sites he accessed did not contain pornography or images of children but concerned the innocuous subjects of floristry, wedding planning, and bushcraft survival skills. (It was his access to the internet without permission that constituted the breach).

19 On at least one occasion between 31 May and 8 June 2009, Mr Allen accessed the Internet on a computer at his place of employment. He had not obtained prior approval for this access.

20 On 18 June 2009, Mr Allen failed to attend a counselling session with his treating psychologist, Dr Tarmala Caple.

21 On 1 July 2009, officers from the ANCOR squad visited Mr Allen at his home address. They found a number of publications containing images of young children. One publication was a 'family cookbook', and the others were advertising leaflets, such as a 'Big W Toy Spectacular'. Although Mr Allen denied using the publications for sexual purposes, he had obtained them without approval.

22 On 7 August 2009, officers from the ANCOR squad accompanied Mr Allen to his home. Inside, they found a large number of videos and DVDs containing images of children. (The images were not of a pornographic or indecent nature.)

23 While at Mr Allen's home on 7 August 2009, the police also found a number of books, newspaper cut-outs, magazines and other printed material with images of young male children. One book entitled 'Child Care' contained images of naked male infants. Mr Allen did not have approval to collect these images.

24 Between 27 July and 8 August 2009, officers from the ANCOR squad visited Mr Allen in his home on six occasions. On each occasion, Mr Allen gave an untruthful answer when asked if he had collected or retained any images of children.

25 On 7 August 2009, when police officers found the videos and DVDs referred to in count 11, Mr Allen untruthfully told the police that he had no other such images in his home.

26 A number of reports have been admitted by consent, including two reports from the consultant psychologist, Dr Adam Brett, a report from Mr Allen's treating psychologist, Dr Tarmala Caple, and an assessment (dated 30 October 2009) by a senior officer of the Department of Corrective Services proposing amendments to Mr Allen's community supervision plan. In addition, I have heard oral evidence from Drs Brett and Caple.

27 Dr Brett's first psychiatric assessment was in 2006, and at that time he identified the importance of a relationship that Mr Allen was developing with a 58-year-old male partner. This offered the prospect of legitimate sexual activity which would assist Mr Allen to cease fantasising about male children. It also provided Mr Allen with stability and support while in the community.

28 Unfortunately, that relationship came to an end soon after the supervision order was made on 12 March 2007. This had the effect of reducing the expected level of support for Mr Allen in the community. In Dr Brett's opinion, it also increased the level of Mr Allen's anxiety and contributed to the resumption of his old behaviour of collecting images of children.

29 Throughout the period of the supervision order, Mr Allen has attended weekly or fortnightly counselling sessions with Dr Caple. In between those sessions he has been provided with telephone support on an 'as needs basis'. According to Dr Caple, Mr Allen has engaged well and is receptive to her 'feedback' about his behaviour and personality characteristics. However, he has had considerable difficulty in incorporating this feedback to make necessary changes, and tends to become confused and 'emotionally avoidant'. Dr Caple attributes these difficulties to his history of insecure attachments to people, and his long-established problems in coping with emotional issues. In her report dated 28 October 2009, Dr Caple states:

Based on a consideration of his behaviour and many discussions with him, it is my opinion that he is rather fearful of change and lacks many of the internal and external resources to support such change. Mr Allen appears to be caught between wanting to change his behaviour and feeling safe and secure with his old patterns and habits. This is a significant barrier to any meaningful change. Although his current behaviours (this includes collecting child images, sexual attractions and his interpersonal interactions) can have negative consequences, they are functional for him as they are long established patterns for meeting his psychological needs, albeit in inappropriate ways. New behaviours take time to learn and refine, and there is no certainty that his needs will be met like they are with his established behaviours.

30 It is also Dr Caple's opinion that Mr Allen has not made the usual developmental transition from adolescence to young adulthood. In particular, he has not developed a strong sense of self, and has not demonstrated self-reliance in independent living, healthy adult friendships, the capacity for intimacy with people of a similar age, establishing a work identity, and developing adult interests. Mr Allen will require significant and continuing support in these endeavours, which (apart from management of risk) should be the focus of future counselling and supervision.

31 Dr Caple considers that the collection of child images by Mr Allen serves two mixed functions for him. The first is a sexual function which reinforces his main sexual interest in children. The second is an 'emotional regulation function' which makes it difficult for him to relinquish the behaviour. Mr Allen has a strong desire to be like a child himself, and his collection of images reinforces this psychological need by enabling him to engage in child-orientated sexual and non-sexual fantasies.

32 Although Mr Allen has been relatively forthcoming about his collection of child-orientated images and movies, he has shown reluctance to cease this behaviour and dispose of the collections. According to Dr Caple, he has great difficulty in throwing away these collections because he sees them as part of himself. His resolve to actively manage this behaviour on a permanent basis is likely to be weak, and her report states:

Although Mr Allen acknowledges his paedophilia and expresses an awareness that he will have to manage this for the rest of his life, he appears to separate offending against children and objectifying them. He appears genuine in his expressed intention not to offend against children sexually but is still prepared to continue indulging his sexual interests in them via images. Mr Allen is currently being challenged to consider this dichotomy. ... He has been informed that there is no 'cure' for paedophilia, but he can manage it so it no longer defines his life and identity. The key to this is his motivation to refrain from sexual fantasies, thoughts, urges and behaviours involving children, and the development of a more positive sexual identity where his sexual needs are met in appropriate ways.

... His ability to be attracted to and aroused by an adult male, and to function sexually without the aid of child images or fantasies will be an important area that needs to be further progressed. At this point in time he reports that the two medications that he is prescribed significantly inhibit his sexual functioning. Whilst he is very frustrated by this, both medications do appear to have protective benefits in that they reduce the frequency of sexual fantasies, urges, and masturbation. ... Regular consultation with a medical specialist who is aware of the functions of these medications would also be helpful as Mr Allen often complains about the side effects of these medications. If he were to develop a sexual relationship, the impact of medications on his sexual functioning would also be something that should be discussed with this practitioner and myself so these issues can be appropriately managed and resolved.

33 Dr Caple also reports that Mr Allen has a tendency to 'test the boundaries of his conditions', and that he has not fully accepted the external controls that have been imposed because of his lack of self-control. In her opinion, his compulsive behaviours in collecting and fantasising using child images are critical factors to address as 'they maintain his offending behaviour and significantly interfere with his quality of life'.

34 Dr Caple's report concludes that although Mr Allen has made some treatment gains, he has not yet mastered skills for managing his emotions and coping with the urge to collect and view images of children. He is also still to resolve issues as to his identity as an adult and how to live independently. Furthermore, there are significant barriers affecting his capacity to integrate what he has learnt in counselling sessions and to modify his behaviour. Accordingly, he will need ongoing psychological management combined with intensive supervision and monitoring by Community Justice Services and the police.

35 Dr Brett has carried out a fresh risk assessment (utilising the Risk for Sexual Violence Protocol) which focuses on the dynamic factors that have changed since his previous assessment. The major risk factors in this regard are Mr Allen's poor compliance with the supervision order, his collecting of child images, and his poor compliance with medications. The instability in his relationship with his former partner is yet another increased risk factor. It is Dr Brett's opinion that Mr Allen continues to be at high risk of sexually reoffending. In that regard:

Mr Allen appears to have had problems with all of the major risk factors that I articulated in my report, namely instability in relationships, employment problems, exposure to high-risk situations and cessation of his medications. It is hoped that Mr Allen's contravention of his Supervision Order has not resulted in any offending. It is positive that the relevant authorities have picked up his contraventions. If Mr Allen is to remain in the community I believe that his community management needs to be tighter with increased reporting, the absolute need for compliance with medications, ongoing liaison with Community Forensic Mental Health Service and clear consequences of contraventions of orders.

36 According to Dr Brett, Mr Allen has engaged well with Dr Caple, and in the long term, her counselling should reduce the risk of him reoffending. However, there may be a deleterious effect on this therapeutic relationship if Mr Allen is returned to custody indefinitely.

37 Dr Caple is more strongly of the view that indefinite detention of Mr Allen would have a detrimental effect on her treatment programme. She is particularly concerned that if Mr Allen is detained indefinitely, he will be housed with other sexual offenders in the prison system's Protective Custody Unit. Dr Caple believes that Mr Allen would be very susceptible to negative influences within this environment.

38 In Dr Brett's opinion, the oral medications currently prescribed for Mr Allen (and taken daily) are appropriate. However, the same anti-libidinal effect could be achieved by injections of a longer lasting alternative drug (known as 'Depo-provera'). If Mr Allen was to be prescribed this alternative method of delivery, the risk of him reoffending would be reduced because of 'guaranteed compliance' with his medications. Nevertheless, Dr Brett considers that any decision by Mr Allen to change to injected medications should only be made on advice from his general practitioner after liaison with a psychiatrist experienced in the field.

39 In light of this evidence, I granted Mr Allen an adjournment of the hearing so that he could obtain advice from his general practitioner on whether he should accept injections of Depo-provera in lieu of his current daily oral medications. When the hearing resumed, I was informed that Mr Allen's general practitioner, and a psychiatrist to whom he had been referred, had significant concerns as to the use of Depo-provera. Accordingly, and even though Mr Allen was willing to find some means of 'guaranteeing' his compliance with medications, injections of Depo-provera were not a viable option.

40 There was then a further adjournment of the hearing to enable the Department of Corrective Services to develop a more effective means of monitoring Mr Allen's compliance with his oral medications. As a result, it is proposed that if Mr Allen is released on an amended supervision order, there will be more frequent blood tests to ensure that the medications are being taken. In addition, there will be a minimum of four random blood tests at irregular intervals throughout each year. To facilitate these arrangements, the general practitioner will provide Mr Allen's supervising officer with a bulk quantity of the blood test request forms so that the testing can be effected at short notice without warning.

41 The facts established by the evidence require that I exercise my discretion under s 23 of the Act to either amend the existing supervision order, or to order that Mr Allen be detained indefinitely. If I consider that an amended supervision order is sufficient to provide adequate protection of the community, then that will be the appropriate option. If, on the other hand, I am satisfied that without an order for Mr Allen's indefinite detention, there is an unacceptable risk that he will commit a serious sexual offence, then I am obliged to choose the latter option.

42 The evidence establishes that the significant risk factors that are likely to precipitate further offending are Mr Allen's habit of collecting child images and his propensity not to take the prescribed anti-libidinal medications. Accordingly, the first option under s 23 is only appropriate if there are amended conditions which adequately address those factors.

43 The DPP has taken a very balanced approach to these matters, and has submitted a draft of proposed amendments to the supervision order which it submits would adequately protect the community. In my view, the proposed amendments are likely to ensure that any continuing breach by Mr Allen of the condition that he take prescribed medications, will be quickly discovered. The proposed amendments also address Mr Allen's propensity to collect child images by regulating his access to video hire stores, libraries and other lending facilities where he has previously obtained these images.

44 Having carefully considered the proposed amendments, it is my view that they do provide a reasonable level of confidence that Mr Allen would be compliant with an amended supervision order, and that in the event of any significant breach, that breach would be quickly discovered. Furthermore, Mr Allen has now spent three months in custody, and is well aware that there would be severe consequences for any future breach of an amended supervision order.

45 A further consideration favouring an amended supervision order is that negative influences within the prison environment would tend to entrench Mr Allen's sexual interest in children. He is still a young man, and the best way of protecting the community in the long term is to allow his psychological treatment to take place in an environment where it will have maximum effect.

46 For these reasons, I have decided to amend the conditions of the supervision order in the terms as highlighted in the attached draft.