//
[2013] WASC 459
General information, not legal advice.
Supreme Court of WA
2013-12-19
Jenkins J, Simmonds J
Original judgment source is linked above.
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
CITATION : DIRECTOR OF PUBLIC PROSECUTIONS (WA) -v- McGARRY [No 6] [2013] WASC 459
Criminal law and procedure - Dangerous Sexual Offenders Act 2006 (WA) - Annual review - Whether offender remains a serious danger to the community - Whether conditions can be imposed to protect community - Whether supervision order appropriate
The respondent remains a serious danger to the community
Court expressly declines to rescind continuing detention order
1 The Director of Public Prosecutions (the DPP) has applied to the court for the second annual review (the present review) of detention under a continuing detention order.
2 That continuing detention order was made by Jenkins J under the Dangerous Sexual Offenders Act 2006 (WA) (the DSO Act). The order was made on 24 September 2009 (the continuing detention order) under s 23(1)(b) following the making by her Honour on 17 August 2009 of an order (the supervision order) under s 17(1)(b) in respect of the respondent.
3 A brief review at this point of the significant litigation history involving the respondent under the DSO Act is appropriate. As will be apparent shortly, I am in a position to rely heavily on the decisions to which I will refer.
(1) If the court hearing an application for a Division 2 order finds that the offender is a serious danger to the community, the court may -
(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.
5 Jenkins J's reasons for making the supervision order under DSO Act s 17(1)(b) were published as Director of Public Prosecutions (WA) v McGarry [2009] WASC 226 (McGarry WASC 2009).
(1) 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 -
(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.
7 Jenkins J's reasons for making the continuing detention order under DSO Act s 23(1)(b) were published as Director of Public Prosecutions (WA) v McGarry [No 2] [2009] WASC 287 (McGarry [No 2] WASC 2009).
(1) While a person is subject to a continuing detention order, the DPP must apply to the Supreme Court for the person's detention under the order to be reviewed as specified in subsection (2).
(2) Reviews have to be carried out -
(a) as soon as practicable after the end of a period of 1 year commencing when the person is first in custody on a day on which the person would not have been in custody had the order not been made; and
(b) as soon as practicable after the end of the period of 1 year commencing when the detention was most recently reviewed under this section or section 30.
(1) When the court, on an application made under section 29 or 30, reviews a person's detention under a continuing detention order, the court must rescind the order if it does not find that the person subject to the order remains a serious danger to the community.
(2) The court may, if it finds that the person subject to the order remains a serious danger to the community, either -
(b) rescind the order and make an order that at all times during the period stated in the order when the person is not in custody the person be subject to conditions that the court considers appropriate and states in the order.
(3) In making a decision under subsection (2), the paramount consideration is to be the need to ensure adequate protection of the community.
9 On 19 May 2011 McKechnie J delivered his reasons for his determination that the first annual review of the respondent's detention under the continuing detention order (see DSO Act s 29) had to be on a date as soon as practicable after 4 August 2012. See Director of Public Prosecutions (WA) v McGarry [No 3] [2011] WASC 134 (McGarry [No 3] WASC 2011).
10 On 20 September 2012 Hall J delivered his reasons for, under DSO Act s 33(2)(a) on the first annual review of the respondent's continued detention under the continuing detention order (the first annual review), expressly declining to rescind the continuing detention order. See Director of Public Prosecutions (WA) v McGarry [No 4] [2012] WASC 349 (McGarry [No 4] WASC 2012).
(1) A person who is subject to a continuing detention order may, with the leave of the court, apply to the Supreme Court for the person's detention under the order to be reviewed.
(2) Before granting leave the court must be satisfied that there are exceptional circumstances that relate to the person.
12 On 7 February 2013 Hall J delivered his reasons for refusing to grant the leave the respondent applied for under those provisions. See McGarry v Director of Public Prosecutions (WA) [No 5] [2013] WASC 41 (McGarry [No 5] WASC 2013).
13 The present review is the first review under DSO Act s 29(2)(b), and is, as I have indicated, the second annual review.
14 In the remainder of these reasons I will first briefly review the procedural context to the present review. I will then briefly describe those matters the DSO Act requires me to address in the present review.
15 I will then briefly describe the personal history and history of offending of the respondent.
16 I will then describe the evidence at the hearing before me, including exhibit 1.
17 I will then address in detail the matters the DSO Act requires me to address. I begin with whether I do not find the respondent to remain 'a serious danger to the community' (see s 33(1)).
18 As I find that the respondent remains a serious danger to the community, I then address in detail the second matter the DSO Act requires me to address, namely, with the paramount consideration being the need to ensure adequate protection of the community (see s 33(3)), whether either to expressly decline to rescind the continuing detention order (see s 33(2)(a)) or to rescind the continuing detention order and make an order that the person be released into the community on conditions that the court considers appropriate (see s 33(2)(b)).
19 For the reasons that follow I consider the appropriate order to be that in DSO Act s 33(2)(a), that is to say, I expressly decline to rescind the continuing detention order.
20 The DSO Act s 31 provides for the court to give directions for the hearing of the present review. Those directions may dispense with the requirement under s 32 for the respondent to be examined by two psychiatrists for the purposes of preparing reports required by s 37 that are to be used on the review.
21 The specifications for reports under DSO Act s 37 appear in s 37(2) as follows:
(a) the psychiatrist's assessment of the level of 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; and
22 On 10 July 2013 McKechnie J made orders for the application for the present review to be heard on 20 September 2013, and the CEO to arrange for examination and report upon the respondent by Dr Peter Wynn Owen, among other orders.
23 At the hearing of the application for the present review on 20 September 2013 Hall J admitted into evidence as exhibit 1 the State Book, being the Book of Material for the Purpose of the Second Review of Detention. Included in exhibit 1 was a psychiatric report by Dr P Wynn Owen dated 13 September 2013 (Dr Wynn Owen's Report of September 2013). I will refer to the complete contents of exhibit 1 in due course.
24 At the hearing on 20 September 2013 Hall J heard from counsel for the respondent, Mr McKenzie, that in his submission certain matters needed for the hearing were not available. Those he referred to were two.
25 One was that accommodation for the respondent was not currently available.
26 The other was that a needed medical consultation with the respondent had not then occurred and would not occur until 15 October 2013 at the earliest. That consultation would be by Dr Gerry Fegan from Fremantle Hospital. Dr Fegan would following that consultation be in a position to report on the respondent's suitability for continued treatment on anti-libidinal medication, either that he had previously been prescribed, Androcur, or an alternative medication (see ts 358 and 360). As will be seen the matter of that suitability has in the past assumed some significance.
27 Following submissions from both counsel Hall J made orders for the adjournment of the hearing to 28 October 2013 and for the report of Dr Fegan to be provided to the DPP by counsel for the respondent by 24 October 2013.
28 In the event, this latter deadline was not met and indeed no such report has been produced.
29 Further, it has emerged there are difficulties with finding suitable accommodation for the respondent.
The matters the DSO Act requires me to address, in brief
31 A useful summary which I adopt is in McGarry [No 4] WASC 2012:
On an annual review the court must determine whether a person who is the subject of a continuing detention order remains a serious danger to the community: s 33(1) DSO Act. If the person is no longer a serious danger to the community the court must rescind the continuing detention order. However, if the court finds that the person remains a serious danger to the community it must either expressly decline to rescind the detention order or rescind the order and make an order that the person be released into the community on conditions that the court considers appropriate: s 33(2) DSO Act.
In making a decision as to whether a person who is a serious danger to the community should continue to be detained or be released on a supervision order the paramount consideration is the need to ensure adequate protection of the community: s 33(3) DSO Act.
On this review Mr McGarry does not dispute that he remains a serious danger to the community. All of the expert evidence supports that conclusion. The matter in issue here is whether Mr McGarry can be released into the community on a supervision order with conditions that could adequately protect the community from the risk he poses [4] [6].
32 I note that the issue of serious danger to the community is to be resolved in the present review as it was in the first annual review, as I will indicate.
33 Thus, the matter in issue in the present review is, as in the first annual review, whether 'Mr McGarry can be released into the community on a supervision order with conditions that could adequately protect the community from the risk he poses' (McGarry [No 4] WASC 2012 [6]).
34 The DSO Act s 7 read with s 3(1) gives the meaning of 'serious danger to the community' as follows:
(1) Before the court dealing with an application under this Act may find that a person is a serious danger to the community, the court has to be satisfied that there is an unacceptable 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.
(2) The DPP has the onus of satisfying the court as described in subsection (1) and the court has to be satisfied -
(3) In deciding whether to find that a person is a serious danger to the community, the court must have regard to -
(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;
(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
35 I should note that I consider my task under DSO Act s 33 is to determine the matters referred to by reference principally to the evidence of material facts or circumstances, if any, arising since the making of the continuing detention order, or which, although not so arising, have become known since then.
36 However, I should indicate that it has not been suggested to me that there are any facts or circumstances which, although not so arising, have become known since then.
The respondent's personal history and offending
37 In McGarry [No 4] WASC 2012 Hall J reviewed these in terms which I adopt and reproduce here for convenience:
Mr McGarry's personal history and his history of offending was detailed extensively by Jenkins J in [McGarry WASC 2009] [14] [41]. His history of sexual offending commenced in 1985. It started with offences of wilful exposure but over time he moved on to more serious offending which involved the commission of indecent acts upon children with whom he was in a familial relationship.
On 19 April 1991 Mr McGarry was sentenced to a total of 7 years and 8 months' imprisonment for 21 counts of indecent assault on a person under the age of 16 years, four counts of sexual penetration on a person under the age of 16 years and seven counts of wilful exposure. He was released on parole in February 1994.
In April 1994 Mr McGarry commenced offending against his daughter, then aged 12, by touching her indecently and masturbating in front of her. On 9 August 1994 he was convicted of two counts of indecently dealing with his daughter and sentenced to a total of 2 years' imprisonment to be served cumulatively on the balance of the earlier sentence he was yet to serve. On this occasion he was not made eligible for parole. He was released from prison on 26 February 1996.
In December 1997 Mr McGarry saw a photograph of an 11yearold girl in a local newspaper. He used a telephone directory to discover her home telephone number and address. He then went to the girl's home and entered the rear yard. He observed the girl and her 14yearold sister through windows of the house and obtained their attention by tapping on the window. As the 11-year-old girl approached the window he exposed himself and masturbated. He then left the premises but made several telephone calls to the girls' 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. On 30 October 1998 he pleaded guilty to indecently dealing with a child under the age of 13 years and two summary offences of impersonating a police officer. He was initially sentenced on 16 December 1998 to 5 years' imprisonment but this was reduced to 3 years' imprisonment on appeal.
Following his release from prison Mr McGarry again became pre-occupied with offending behaviour. On 16 April 2002 he hid in some bushland and waited for a young girl to walk to school along a nearby path. As a 14yearold girl walked past he came out of the bushes and grabbed her. He dragged her into the bushland and forced her onto the ground. He initially threw a jumper over her face so that she could not see him. He indecently assaulted her, then knelt next to her and masturbated until he ejaculated. He then rummaged through the girl's backpack apparently looking for money and after saying he would return in a short while, he fled the scene.
On 12 March 2003 Mr McGarry approached an 8yearold girl who was playing in a park near her home. He called her over to him and asked her how old she was. After she told him her age he offered her money in return for her showing him her pants. He told her that he was a counsellor and that this activity was part of his job. The girl screamed and ran from him. The matter was reported to the police. A short time later police located Mr McGarry 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. He was then charged with both this offence and also that which had occurred on 16 April 2002. Following an appeal he was sentenced to a total of 5 years and 24 days' imprisonment.
Mr McGarry's sentence was due to expire on 2 January 2009. Before that day, on 7 November 2008, the State filed an application under the DSO Act. On the hearing of the application the DPP sought that a supervision order be made. Jenkins J considered the available evidence and was satisfied that the community could be adequately protected by a supervision order provided that conditions, which she described as extremely onerous, were imposed: [McGarry WASC 2009] [123].
Mr McGarry signed the supervision order on 17 August 2009 and was released from custody shortly thereafter. On the same day an officer from the West Australian Police Services Sex Offenders Management Squad interviewed Mr McGarry and explained the conditions of the supervision order to him. Those conditions included a prohibition on Mr McGarry having face-to-face contact with his daughter unless the contact was pre-arranged via telephone. A further condition prohibited him from being at a shopping centre without a reasonable excuse at any time on weekends, except for specified purposes.
Within a short time after his release, Mr McGarry breached the terms of his supervision order. Those breaches involved having face-to-face contact with his daughter by attending at a hospital at a time when he knew she would be there. He also learned that the daughter of one of his former partners was working at a shop in a shopping centre. He then went to that shop on two occasions that did not breach the order, but went there a third time on the weekend in breach of the order. There was evidence that on the occasions he attended he had acted in a way that his former stepdaughter, who was present on these occasions, found to be intimidating.
The DPP brought proceedings for contravention of the supervision order pursuant to s 23 of the DSO Act. Jenkins J found the contraventions proved: [McGarry [No 2] WASC 2009]. In doing so her Honour rejected explanations advanced by Mr McGarry for the contraventions. In regard to the meeting with his daughter at the hospital, he said that he had forgotten that he had been told that she would be attending the hospital that day. In this regard, her Honour said:
'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 [17].'
As regards attendance at the shopping centre, Mr McGarry said that he thought the prohibition only related to a shopping mall and because he was able to enter the shop by an external door he did not believe that the condition applied. He also said that he had a reasonable excuse for attending the shop because he needed to buy a doona and quilt cover because he was cold. Her Honour rejected both of these explanations and concluded that:
'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 reasonable excuse for it given the age difference between the complainant and Mr McGarry, their lack of recent familial or social relationship and the indifferent attitude displaced 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 [31].'
There was also evidence that Mr McGarry had purchased and eaten food at a fast food outlet. At the time he did so he was sitting within 50 metres of a children's playground situated within the outlet. He sat in a position overlooking the playground. When asked about this incident he told police that he had not thought about the condition which required him to not be within 50 metres of a children's playground when he sat where he did.
Her Honour noted that at the time Mr McGarry came before her he had commenced anti-libidinal medication and remained on it for some months. Tests at that time indicated that his testosterone levels were very low as compared with the average levels for men his age. It was hoped that this would reduce his risk of re-offending. It was, however, noted that without very close supervision it was unlikely that Mr McGarry could be relied upon to take his medication or to report the presence of a feeling of sexual arousal. Her Honour then said:
'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 the requirement of Mr McGarry to take his medication there was a need for a 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.
I do not accept Mr McGarry's contention that the fact that he is taking anti-libidinal and anti-depressant medication means that he will not commit a serious sexual offence [67] - [68].'
Her Honour then referred to the circumstances in which she made the supervision order and said:
'The conditions of a 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 and constraining Mr McGarry's movements so that he would not put himself into high risk situations which may tempt him to reoffend.
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.
The fact that his proven contraventions and likely contraventions of a 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 offence.
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 [74] - [77].'
One of the matters that was of concern to Jenkins J in regard to whether Mr McGarry would comply with conditions in the future was his general conduct after his release on the supervision order. Her Honour found that the contraventions indicated that Mr McGarry was not prepared to, or not able to, live a cautious enough life to ensure compliance with a supervision order. She noted that he had not taken steps to comply with conditions in circumstances where his obligations were obvious.
...
There was also evidence relating to Mr McGarry's conviction and sentencing for two offences of indecent dealing. These were the offences for which he had not yet been dealt with at the time of the proceedings before Jenkins J. The offences occurred in 1994 and 2003 but did not come to light until 2009 when the complainant, Mr McGarry's daughter, felt able to report them to the police. These were the offences for which he was sentenced to 18 months' imprisonment on 5 February 2010.
Whilst the offences dealt with on 5 February 2010 are historical matters, they nevertheless form part of Mr McGarry's antecedents. They are relevant in assessing his past conduct and the nature and likelihood of any re-offending.
The 1994 offence occurred when the complainant was about 7 years old. At that time Mr McGarry and the complainant were living in the same house with her mother, sister and brother. One morning before school he called the complainant to come to his bedroom. He was lying in bed naked. He told the complainant to get into bed with him. He then told her to get on top of him. At that point the complainant's mother called out to her and she left the room. This incident had occurred close in time to an indecent act committed on the complainant's sister, for which Mr McGarry had already been dealt with.
The 2003 offence occurred at a time when Mr McGarry was living in Perth with another female adult partner. The complainant, who by this time was 17 years old, came to stay. Whilst the complainant was watching television Mr McGarry entered the room, unzipped his trousers and masturbated in her presence. When interviewed in 2009 he admitted both offences. The commission of these offences is consistent with his past pattern of behaviour [8] [22], [24] [27].
39 The DSO Act s 42(2) (4) provides for evidence in an application for an annual review under s 30. Those subsections do so as follows:
(2) Before the court makes a decision or order on the hearing of an application it must, if the evidence is admissible -
(b) hear evidence given or called by the offender or person subject to the order, if that person elects to give or call evidence.
(3) Except as modified by subsection (4), ordinary rules of evidence apply to evidence given or called under subsection (2).
(4) In making its decision, the court may receive in evidence -
(a) any document relevant to a person's antecedents or criminal record;
(b) anything relevant contained in the official transcript of any proceeding against a person for a serious sexual offence, or contained in any medical, psychiatric, psychological or other report tendered in a proceeding of that kind.
40 I have previously referred to exhibit 1, which I read prior to the hearing. No part of it was objected to as inadmissible.
41 Exhibit 1, which is relatively short, contains matter concerning the respondent that has arisen since the making of the continuing detention order.
43 I note in respect of Dr Wynn Owen that he also provided a report forming part of the evidence referred to in McGarry WASC 2009: see [72] [85].
44 Prior to the hearing I was notified that Dr Wynn Owen, Ms Dabala and Mr Summerton had been summonsed and would, subject to any discussions between counsel, be called at the hearing.
45 In the event, those three persons were called and testified.
46 The DPP did not seek to call any other evidence.
47 The respondent appeared at the hearing before me, as was his entitlement: see DSO Act s 44(2). He was represented by counsel. He was also called and testified.
48 The respondent did not seek to call any other evidence.
49 Thus, the evidence before me was that in exhibit 1, as supplemented by the testimony of the four persons named.
50 I turn now to the matters the DSO Act requires me to address.
Whether I do not find the respondent to remain 'a serious danger to the community'
51 I believe I must address these matters in some detail notwithstanding that the matter of 'serious danger to the community' is not in dispute before me. I so believe both because I must make that determination, and because the nature and degree of that danger, or risk, go in my view also to whether or not the respondent can be released into the community on a supervision order with conditions that could adequately protect the community from the risk he poses.
52 I adopt the structure used by McKechnie J in Director of Public Prosecutions (WA) v Misko [2012] WASC 259. That structure follows DSO Act s 7(3).
(a) the psychiatric report, including cooperation in the examination
53 Dr Wynn Owen's Report of September 2013 states that he is a consultant psychiatrist and a Fellow of the Royal Australian and New Zealand College of Psychiatrists and describes his experience in forensic psychiatry, as well as a course of specific training he completed in the comprehensive assessment of sexual offenders with particular reference to the DSO Act.
54 No objection was taken to his qualifications as an expert to express the opinions I now describe. I consider he is so qualified.
55 Dr Wynn Owen's Report of September 2013 states that he considered the respondent to remain at high risk of reoffending sexually and sets out the reasons for that opinion.
56 In summary form that assessment and those reasons are as follows (exhibit 1, page 42):
Mr McGarry's risk of future serious sexual offending remains high; I base this opinion on his score on the Static-99R, the presence of Anti-Social Personality Disorder (and high levels of psychopathy indicated by the PCLR) and the ongoing presence of high libido (as indicated by behaviours seeking female sexual partners, sexual interpretation of day to day events, recurrence of morning erections) with high likelihood, as it has been a lifelong preoccupation, that this is associated with deviant sexual fantasy. As the anti-libidinal medication Androcur has now been ceased, and this was certainly the most significant potential risk mitigating intervention, I also opine that his risk of reoffending if released now is higher than when reviewed while being treated with Androcur at the last Annual Review.
57 No challenge was made to that assessment or those reasons in the hearing before me, in the crossexamination of Dr Wynn Owen or otherwise.
58 I should indicate to what matters those reasons referred, as they are relevant not only in the present context, under DSO Act s 7(3), but also in the context of the choice between s 33(2)(a) and (b).
59 Dr Wynn Owen indicates the Static99R score, which is described as one on a checklist of historical unchanging risk factors, places the respondent in the high risk category. Sexual offenders in that category have an approximately four in 10 (39%) likelihood of reoffending sexually over five years.
60 As to the presence of antisocial personality disorder, this appears to refer to the diagnosis Dr Wynn Owen arrived at using the psychiatric diagnostic tool of the Diagnostic and Statistical Manual of Mental Disorders (4th ed), Text revision (DSMIVTR). This diagnosis is referred to as one 'with some prominent Narcissistic traits' (exhibit 1, page 41).
61 As to high levels of psychopathy the respondent indicated by the PCLR, this is a reference to the following (exhibit 1, page 41):
As I have previously reported [the respondent] scored 27 on the PCL-R in 2009 and this rating is unchanged on the basis of updated assessment. [The respondent's] PCL-R score of 27 reflects moderate to high levels of psychopathy, a score of 25 or greater indicates that he is at a higher risk of reoffending than non-psychopathic sex offenders.
62 As to the ongoing presence of high libido indicated by the behaviours Dr Wynn Owen describes, this appears to refer to the following:
63 Dr Wynn Owen notes the respondent's statement to him that the respondent had almost no libido. However, he indicates this statement is at odds with the matters referred to.
64 As to the high likelihood, as it has been a lifelong preoccupation, that that high libido is associated with deviant sexual fantasy, this appears to be a reference to the respondent's acknowledgement to Dr Wynn Owen that, while the respondent had limited sexual fantasy and no thoughts at all of adolescent or younger women, he also acknowledged that until 2004 this was a constant preoccupation and in fact his deviant thinking had been present his whole life. The respondent had gone on to say that if he thought he might lean towards that kind of deviant thinking he would go to his 'happy place', that place being memories (of a nonsexual nature) of a relationship with a 16yearold female when he was 16.
65 In his examinationinchief, Dr Wynn Owen elaborated on this by referring to his reflections on those acknowledgements, that, without wishing to overstate the matter, the respondent would have had to be having deviant sexual thoughts if he were going to his 'happy place'; while the choice of memories of a 16yearold female might be an element of a preference for young women still.
66 As to the antilibidinal medication Androcur as the most significant potential risk mitigating intervention having ceased, this appears to be a reference to what Dr Wynn Owen describes as 'an extensive history of psychological and psychotherapeutic input' from which the respondent 'appears to have gained little in terms of demonstrable behavioural or attitudinal change' (exhibit 1, page 42), to be read in conjunction with the respondent's report of the return of morning erections after the cessation of Androcur in March 2013 already referred to, coupled with one of his risk management recommendations, for specialist clinical assessment to enable consideration of future treatment with similar medication.
67 As to the history of psychological and psychotherapeutic input, Dr Wynn Owen's Report of September 2013 particularly notes the results after a series of sessions structured around risk scenario planning as preparation for release, recommended by Hall J in McGarry [No 4] WASC 2012 [76] [78], ceased for a period of four months. The therapist noted that the respondent appeared not to have reflected on or learned from the work undertaken prior to that cessation, suggesting the limited utility of any learning from that type of approach.
68 As to the effectiveness of Androcur and the possibility of future treatment with similar medication with comparable results, Dr Wynn Owen in his examinationinchief noted that he shared the view expressed by a psychiatrist as part of the evidence at the first annual review that Androcur would definitely reduce the risk of reoffending; that if Androcur had been effective in the case of the respondent there was a high likelihood of similar success with the similar medication referred to of GnRH; however, that was an assessment in statistical terms 'taken from a cohort of people, rather than the individual' (28 October 2013, ts 403).
69 I further note the following from Dr Wynn Owen's Report of September 2013 (exhibit 1, page 42) with respect to anti-libidinal medication:
Mr McGarry ceased Androcur in March 2013 in an attempt to limit risks arising from side effects. Consideration should be given to alternative medications targeting GnRH however this will require appropriate clinical assessment and advice from a specialist endocrinologist as well as Mr McGarry's informed consent. I am of the opinion that reduction of sexual drive through chemotherapy is the only therapeutic intervention likely to reduce reoffending risk in Mr McGarry, I am concerned, however, that planning must consider the possibility that he is deemed unsuitable for any further chemotherapy due to the risks to his physical health.
70 No challenge was made to those views in the cross-examination of Dr Wynn Owen or otherwise. They should also be considered with Dr Carbon's document, below.
71 I consider Dr Wynn Owen's Report of September 2013 to be thorough, factually correct and credible.
72 I consider it gives considerable support for a conclusion that the respondent remains a serious danger to the community.
(b) any other medical, psychiatric, psychological or other assessments
73 There are two such in exhibit 1. One is Mr Summerton's report. The other is Dr Carbon's document.
74 Mr Summerton is described in Mr Summerton's report as a psychologist, Dangerous Sex Offender Psychology Team in the Department of Corrective Services.
75 There is no objection taken to Mr Summerton's qualification as an expert to express the opinions in Mr Summerton's report. I find Mr Summerton so qualified.
76 Dr Carbon in Dr Carbon's document is described as Director Health Services, Offender Services Division in the Department of Corrective Services.
77 There is no objection taken to Dr Carbon's qualification as an expert to express the opinions in Dr Carbon's document. I find Dr Carbon so qualified.
78 Mr Summerton's report, unlike Dr Wynn Owen's Report of September 2013, contains no express opinion as to the respondent's risk of reoffending sexually. However, I note the following from Mr Summerton's report, referring initially to the psychologist's report of Mr N Cameron prepared for the first annual review of the continued detention of Mr McGarry which is referred to also in McGarry [No 4] WASC 2012 [52] [60]:
In his report for the 2012 annual review Mr Cameron argued that extreme caution should be exercised in assuming any treatment efficacy given Mr McGarry's history of recurrent poor outcomes from counselling based programs. He particularly questioned reliance on his selfreport as evidence of substantive change. Mr Cameron suggested that for counselling to be of value it should be used as an adjunct to other approaches. He envisioned that such approaches would entail containment of libido; supervision and supportive regimes that identify his risk scenarios and give direct instructions about subsequent life choices; and a carefully structured and stringent release plan that covered all major domains including residency and workplaces. Psychological intervention would then largely comprise a risk related focus as he adjusts to community and potentially encounters various situations that have historically been linked to his risk of sexual offending. Mr Cameron ultimately recommended a series of 'booster psychological sessions' prior to his release to the community with a specific focus on release plans and selfmanagement strategies.
...
[These were the sessions referred to in Dr Wynn Owen's Report of September 2013 as I have indicated above.
After Mr Summerton's report had referred to those, as a series of 11 individual counselling sessions with a Departmental psychologist, Mr Ryan Bell, since August 2012, suspended by agreement on 28 February 2013, Mr Summerton's report described the resumption of counselling as follows:]
Counselling resumed after a four month break and Mr Bell remarked that, while Mr McGarry remained highly motivated for release, he had not given any attention to previous discussions regarding release preparation over the intervening period. However, Mr McGarry was evidently able to respond appropriately to scenarios posed by Mr Bell indicating retention of what had been previously addressed. During current counselling sessions Mr McGarry has remained somewhat concerned about future conditions of a supervision order if he is released. Mr Bell also noted that Mr McGarry would be cautious about disclosing inadvertent breaches because he feared being 'locked up for being Michael McGarry'. During recent sessions attention has been given to Mr McGarry's sexual functioning in view of anti-libidinal medication having been ceased for a period. Mr McGarry reportedly described increased physical sexual arousal, while denying commensurate sexual interest. He later disclosed sexual interest in age appropriate females and claimed to no longer have any sexual interest in female children. Such a position appears unlikely and was addressed as such by Mr Bell with a view to normalising with Mr McGarry that such interest is likely to surface at least intermittently given his documented entrenched sexual interest in female children of varying ages. Mr Bell has identified that potential reluctance to disclose will be addressed directly and routinely in counselling should Mr McGarry be released.
...
[Mr Summerton's report then turns to describe his interview with the respondent and includes the following:]
While the specific focus of the current assessment relates to recent progress, attention was also given to his overall understanding of his offending behaviour. Early in the first interview the focus had spontaneously turned to [the respondent's] coping style in response to comments made by him. He had identified feeling uncomfortable and accordingly expressed a preference for having a positive outlook in life and a parallel proclivity to avoid negative thoughts and feelings. He was consequently asked to consider the implications that such a way of coping might have for him in adjusting to community life and effectively managing his risk. After thinking for some time he was able to identify that the described coping style might mean that he is 'not dealing with reality'; he appeared unsettled by this realisation and immediately changed the subject. The above suggests that he has some capacity for insight, but that his coping style is essentially one of avoidance. There is considerable corroborating evidence with respect to avoidant coping. The relevance of addressing his method of coping is that tension, stress and general emotional regulation have been identified as having some link to his offending. Specifically, as detailed by Mr Cameron (2012) his constricted emotional range contributes to boredom with general routine and mundaneness of everyday life and relationships. His experience of boredom is linked to an excessive tendency to seek excitement and stimulation through antisocial behaviour including sex offending.
...
When asked about the nature of his contact with Mr Bell, [the respondent] initially stated 'oh, just chitchat ... I like bouncing things off him'. However, when pressed he was able to run through a number of risk related scenarios that might occur and offered adequate responses to the situations in question. Despite, taking the position that he had been unfairly dealt with in response to his previous breaches, he claimed that he would take care to closely consult with his community corrections officer (CCO) in order to avoid breaching his conditions in the future. He also identified that he would variously approach Mr Bell, his SCCO or a prospective partner in the event that he encountered coping difficulties. He was asked if he would disclose the presence of inappropriate sexual thoughts or fantasies should they arise and he responded that he would be very wary of doing so because of an expectation that he would be breached or imprisoned. He claimed to no longer have sexual thoughts in relation to children and attributed this to his 'brain being rewired' as a result of his medication regime. Obviously it is not possible to comment definitively on his current sexual interest in children given the reliance on selfreport, but it appears implausible that his long term sexual interest in children would not surface at some time during his release. Having fathomed the direction of questioning, [the respondent] ultimately concluded that he would disclose any inappropriate sexual thoughts to Mr Bell.
...
[Under the heading 'Conclusions' at the end of Mr Summerton's report, the following appears:]
Mr McGarry has engaged in separate periods of counselling over the period since his 2012 annual review. The intervention followed the path outlined by Clinical Psychologist Mr Nigel Cameron in a report for that annual review. While Mr McGarry is considered to have a range of outstanding treatment needs, he is considered to have responded adequately in addressing the identified treatment targets during counselling with Mr Bell. The focus on risk management and addressing actual risk scenarios will continue in weekly counselling if he is released to the community.
(Mr Summerton's report, exhibit 1, pages 15, 16 17, 20 and 21, footnotes omitted, original emphasis.)
79 In his examinationinchief Mr Summerton explained that the 'identified treatment targets' referred to were those of scenario planning, which he described as having 'limited' parameters.
80 Dr Carbon's document says this of significance to me (exhibit 1, page 22):
Mr McGarry was ceased anti-libidinal medication in March 2013.
He had developed progressive gynaecomastia (breast development) for which he underwent ultrasound examination. While this did not display any cystic formation or evidence of neoplasia (cancer) he indicated that he was very unhappy with this complication of his treatment.
Further, a bone scan (June 2012) indicated he had markedly reduced bone density of both his spine and hip, this being a complication of treatment. He has a significantly higher risk of osteoporotic fracture in the future as a result. He has been commenced on medication to attempt to halt his bone loss.
Mr McGarry also developed dyslipidaemia (altered blood fats including cholesterol), which is a known complication of anti-libidinal therapy, and increases health risks including cardiac disease.
Mr McGarry will not be recommenced on anti-libidinal medication on prescription from the DCS Health Services.
I consider the complications of his treatment preclude future anti-libidinal therapy.
...
If the court considers it necessary, he can be referred to the hospital endocrinology unit where he has been previously been assessed for complications, for a further opinion as to the appropriateness of recommencement, and risks of anti-libidinal therapy.
81 I return to the matter raised in the last paragraph of Dr Carbon's document below.
82 I assume the legislature has used the word 'propensity' in its ordinary meaning, of an inclination or tendency to do something: see McGarry WASC 2009 [88].
83 On the evidence before me I consider that the respondent has a continuing propensity to commit serious sexual offences in the future. I so conclude because of his history of sexual offending over some years and notwithstanding previous sentences, including sentences of imprisonment; and Dr Wynn Owen's Report of September 2013.
84 On the evidence before me I consider that there is a pattern of offending behaviour on the part of the respondent of indecent dealings with very young girls, including ones with whom he was in familial relationship. I refer to the description of the respondent's offending behaviour, above.
(e) & (f) rehabilitation program and its effect
85 I have already referred to matter appearing in Dr Wynn Owen's Report of September 2013 and in Mr Summerton's report in respect of the rehabilitation program the respondent has followed since the first annual review, being that with Mr Bell.
86 I consider there have been changes, for the better, since the first annual review, in the respects Mr Summerton's report describes, in respect of scenario planning, but with the qualifications appearing in Dr Wynn Owen's Report of September 2013, and the different qualifications appearing in Mr Summerton's report, both as indicated above.
87 Those qualifications in the two reports go in my view of them to the respondent's motivation to undertake learning particularly through reflection; what learning of that sort he has achieved; and the understandings he has arrived at and changes he has made. I consider this is most comprehensively stated in Mr Summerton's report, exhibit 1, pages 19 20, which on my reading subsumes both rehabilitation programs before Mr Bell's and Mr Bell's:
It is relevant to offer some brief speculation as to Mr McGarry's limited treatment gains to date when weighed against the extensive intervention that he has undertaken over time. Obviously, motivation to change is a relevant target of investigation and in this respect he has clearly inferred that his motivation to change has been equivocal at various times that he has been involved in treatment. Assessors and treatment providers have similarly questioned his motivation on a regular basis. Further, regular reoffending might be regarded as obvious evidence of limited motivation for change. However, it remains unclear as to why he has failed to retain and integrate aspects of intervention in which he has been involved, particularly given that numerous practitioners have assessed him as being articulate and intelligent. His intelligence has potentially been overstated, notwithstanding his capacity to appear convincing in encounters with others. It is obviously in his best interest to demonstrate his learning and treatment gains and yet he has routinely failed to do so, which is noteworthy given frequently documented observations regarding his propensity for impression management.
In addition to motivation there are a number of other factors that may have bearing on his limited progress thus far. Such factors are necessarily interrelated and include personality structure, problems with attention/learning, coping style, sexual preoccupation and his described fixation with legal aspects of his situation. The latter has the effect of him adopting an adversarial stance toward 'the system', externalising problems and perceiving himself to be unfairly treated. Aspects of his personality including antisocial and narcissistic features combined with a constricted emotional range further undermine his capacity to engage in any meaningful process of selfreflection and change. His avoidant coping style, with emphasis on a desire to focus only on that which is positive, steers him away from material that might be unsettling or disturbing thus further curtailing self-reflection and reducing his capacity for effective emotional regulation. Sexual preoccupation has historically energised him and is related to his avoidant coping. It is likely that his described manner of coping has become more entrenched as a result of his prolonged periods of imprisonment. He has described experiencing much of his time in prison as 'dead time' and this includes extensive television watching during which time he is essentially oblivious to anything else. Treatment providers have speculated that he 'switches off' upon leaving treatment intervention sessions thereby making it less likely to retain information or to integrate into his day to day functioning.
88 I accept that the respondent's motivation to undertake change is now at least arguably greater than the historical picture just given would indicate. However, the limitations on what the respondent has achieved in the past are clear, not least in the respect just noted in Mr Summerton's report.
89 There have been no changes in respect of these since the first annual review.
91 The respondent has accepted that if he were not subjected to a continuing detention order or a supervision order there is a significant risk he would commit a serious sexual offence.
92 I am satisfied to the requisite standard that there is such a risk, based on the evidence before me. Again, I particularly note the respondent's history of sexual offending over some years and notwithstanding previous sentences, including sentences of imprisonment; and Dr Wynn Owen's Report of September 2013. From the latter, I particularly note the following (exhibit 1, page 41):
In particular [the respondent's] offending history has the characteristics of chronicity, diversity and escalation and the offences have been associated with both psychological and physical coercion. Chronicity (or frequency) and diversity of offending are the risk factors most reliably associated with risk of future sex offending.
Sexual deviance, if sexual offences have occurred in the past, is a risk factor for future sexual offending.
Psychopathy per se is not a risk factor for sexually violent offending however psychopathy in an individual who has a history of sexual offences is factor increasing the risk of future offending.
93 In the present respect I note again the pattern in the respondent's history of sexual offending over some years which I understand to be the kind of reoffending in which he would engage were he to reoffend. That reoffending would involve the targeting of vulnerable females. That vulnerability includes that arising from age.
94 There can be no doubt there is a strong community interest in, and responsibility in relation to, protecting its members with such vulnerability from such offending. Such offending has the potential for serious and long-term effects not only on its victims but also on their families and other loved ones. See McGarry WASC 2009 [100].
95 I have noted the period that, allowing for the interval in the community as a result of the decision in McGarry WASC 2009, is now significantly longer than the period of over five years to which Jenkins J referred as a 'significant period of time' [102].
Conclusion: whether I find the respondent remains a serious danger to the community
96 On the acceptable and cogent evidence that I have reviewed, I find, to a high degree of probability, that the respondent remains a serious danger to the community within DSO Act s 7.
97 Both counsel accepted that this was the only appropriate finding on the evidence before me.
The choice of order to make: the applicable law
98 I accept that the least restrictive option should be chosen if possible: see DPP v Misko [28].
99 However, the paramount consideration is the need to ensure the protection of the community (DSO Act s 33). This is the only statutory guidance the legislature has given the court.
100 In making the choice so guided the court should determine whether or not it is satisfied the risk of reoffending can be adequately managed if a person such as the respondent were released on a supervision order. In making that determination the court should consider whether there are any conditions that could be imposed as part of such an order that would reduce to an acceptable level the risk of reoffending. See McGarry [No 4] WASC 2012 [80].
101 I have noted the following from McGarry [No 4] WASC 2012 [68] [73] and [78] [79], which I consider to be the reasons why Hall J reached his conclusion described in [80]. I reproduce those paragraphs.
In the present case there have been self-reports of lowered libido and functioning by Mr McGarry. However, these reports must be treated with a degree of caution. That is for two reasons. First, Mr McGarry has proved to be deceptive and an unreliable historian. He clearly has an interest in reporting that his desire and functioning has diminished. Secondly, his self-reports to Dr Wojnarowska, Dr Febbo and Mr Cameron in regards to the frequency and circumstances in which he experiences an erection and engages in masturbation have not been consistent. This may not necessarily be due to untruthfulness but it is concerning nonetheless. There are other possible explanations, for example that there have been changes over time or that he is forgetful or uncertain. However, even taking the most beneficial view, Mr McGarry's self-reports of the frequency with which he experiences sexual desire are unreliable. I note, also, that those reports have come from others; Mr McGarry did not give evidence in these proceedings.
It is important not to treat anti-libidinal drugs as a panacea. As I have noted, Mr McGarry's risk of re-offending is the product of a combination of factors. The effective treatment of only one factor may not reduce risk to an acceptable level. In the present case other factors assume more importance due to Mr McGarry's unreliability in self-reporting his own level of sexual desire and functioning. Given that there is a distinct possibility that those reports are incorrect, the continued existence and amenability to management of other factors is of significance.
The importance of other factors is also enhanced by the fact that Mr McGarry has experienced significant side effects from the antilibidinal drug. It is possible that some side effects, such as osteopaenia may be capable of being minimised by using other medications. However, whether this is so and whether it would satisfy Mr McGarry's concerns is unknown at this stage. What is known is that whilst he has expressed a willingness to comply with court orders, he would prefer not to continue with the anti-libidinal drugs.
The occurrence of side effects to the Androcur must be a matter of concern. Some, at least, of those side effects present a real risk to health. In particular, the effect on bone density. It is evident that some of these side effects are of concern to Mr McGarry, and that is understandable. He is presented with the invidious decision of whether to continue taking a drug which is harmful to his health in order to reduce his risk of reoffending and increase his prospects of being released on supervision into the community. The adverse affects upon his health obviously provide him with a strong incentive not to comply with a requirement to continue taking anti-libidinal medication.
There is also potentially a dilemma for a medical professional. A doctor may have ethical objections to administering a medication which is adverse to a patient's health notwithstanding that the patient has submitted to a court-ordered regime that requires it to be taken. In this matter the court was advised that a doctor had been identified who was prepared to continue administering the Androcur. Of course whether this would continue to be the case may well depend upon whether the side effects become any worse over time.
It is important, however, to dispel the notion that a reduction in the antilibidinal drugs or a stopping of them on medical advice with the consequential increase in the risk of re-offending could in any sense make that increased risk more acceptable. Mr McGarry could not be forced to continue to take medication against his wishes, but if he discontinued compliance the effect would almost certainly be an increase in the risk of re-offending. This is likely to be a risk that would have no potential to be managed in a community setting.
...
I do note that Mr McGarry has more recently been undertaking counselling with another psychologist in prison. However, what the nature of that counselling is has not been the subject of evidence. I understand that to be because there is a desire to avoid conflict with the clinical relationship by not requiring the current counsellor to give evidence to the court in these proceedings. That may well be so, but it leaves me in a position where, on the evidence before me, it would appear that the matters that Mr Cameron has referred to remain a significant deficit for Mr McGarry.
I have considered possible conditions that could be imposed in a supervision order. The suggested conditions that have been submitted by the Department of Corrective Services are detailed and onerous. Mr McGarry has indicated through counsel a willingness to comply with such conditions, with some suggested minor amendments. However, whether the conditions could be effective in reducing the risk of reoffending to an acceptable level depends to some extent upon Mr McGarry's ability to comply, as well as his willingness to do so. Without the skills and training referred to by Mr Cameron I am of the view that the risk of non-compliance is significant. If the conditions are breached the real possibility is that this may lead to re-offending conduct.
For those reasons I am of the view that there are no conditions that could presently be effective in reducing the risk of re-offending to an acceptable level.
... I am also satisfied that his risk of re-offending cannot at present be adequately managed if he was released on a supervision order. In saying that, I am satisfied that there are no conditions that could be imposed that would reduce to an acceptable level the risk that Mr McGarry would reoffend. For those reasons I expressly decline to rescind the continuing detention order.
102 In the proceedings before me, unlike those before Hall J, the respondent, as I have indicated, gave evidence. I take account of that evidence in what follows.
103 I have particularly noted the matters in Dr Wynn Owen's Report of September 2013 which summarise conclusions drawn from Dr Wynn Owen's interview with the respondent in the context of other information available to him. The respondent in cross-examination did not dispute he had made the comments in the interview attributed to him, although he did not endorse the conclusions Dr Wynn Owen drew from them.
104 Those conclusions from Dr Wynn Owen's Report of September 2013 of particular relevance to my assessment of whether I am satisfied the respondent's risk of reoffending cannot at present be adequately managed if he was released on a supervision order are in my view the following, which I quote and then comment upon (exhibit 1, page 40):
[The respondent's] use of a telephone directory accessed in contravention of prison rules indicates ongoing preparedness to flaunt rules and authority, the primacy of his underlying sexual motivations and drives in overriding concerns about consequences and a failure to understand the gravity of his current situation thus poor self awareness, poor self management, poor judgement and poor planning.
105 I consider this concern to be supported by Mr Summerton's report in respect of its reference to the respondent's 'avoidant coping style'.
[The respondent] demonstrates a 'laissez faire' attitude to his accommodation placement when surely risk scenario planning includes understanding the relative risks of accommodation and places adjacent to and near to that accommodation, also planning for social activities, in particular to address risk of boredom and isolation, will in part be guided by site of accommodation.
106 This was a reference to the position the respondent had taken with respect to planning for accommodation for him if released from custody, that the matter was in the hands of others and he had no idea as to what would be arranged. In his crossexamination Dr Wynn Owen explained that risk planning would be assisted greatly by knowing exactly where the accommodation would be, and he would have hoped the respondent would be directly engaged in the process of thinking about the matter. This in my view tends to confirm the limited gains the respondent had made from the risk scenario work he had done.
107 The testimony of Ms Dabala before me confirmed the considerable difficulties for accommodation of the respondent. It appears he is ineligible, by reason of his asset position, for departmental assistance.
108 Counsel for the respondent put to me that I could make a supervision order with a condition precedent that suitable accommodation was found, presumably through the efforts of the respondent or others outside the Department on his behalf. However, I did not understand this approach to be pressed strongly on me. It is not apparent to me that I am in a position to make a supervision order with such a condition, in view of the wording of DSO Act s 33.
109 However it seems to me, on reflection, that a further delay in the determination of this matter might be allowed to enable such efforts to be made and results appraised, at least if a supervision order were considered to be appropriate otherwise. At same time, as I will indicate, I do not consider that a supervision order is so appropriate in this case.
[The respondent's] superficial understanding of the risks for him associated with truck driving, a job allowing considerable time for reverie as well as isolation, mobility, absence of surveillance, is demonstrated by his continued expression of this work preference in the face of advice from numerous psychologists and risk assessors that it is unwise and places him at risk.
110 This was a reference which Dr Wynn Owen elaborated upon in his examinationinchief as an indicator of a failure to learn and avoid risk, and thus aligns with remarks in Mr Summerton's report in respect of such a failure and concerns about risk avoidance.
[The respondent], through his comments at interview, demonstrates a lack of insight into his daughter [I will call her A to protect her identity], her feelings towards him and the effects that his sexual abuse has had on [A]. He also demonstrates, through misinterpretation of interactions with [the step sister of another one of his children, whom I will call B, to protect her identity] when released in 2009, a failure to appraise verbal and non-verbal communication such that he understands how a person he is talking to feels, in particular their emotional state.
111 The reference to A was to his statements at interview that he regarded her as his main social report support once released and stated he would be in regular contact with her, where Ms Dabala had reported in the Community Supervision Assessment report and confirmed in her examinationinchief that A did not want any direct contact with the respondent and was particularly concerned at the thought of him having contact with her children. In his crossexamination, the respondent indicated it had been a 'shock' to him (28 October 2013, ts 465) to learn about these feelings attributed to A. Such a belated discovery in my view gives strong ground for that concern.
112 The reference to B was to his interactions with her at a shop while under his supervision order when he reported he had not recognised at any time she was in any way concerned about that interaction.
[The respondent's] statements about offences against his daughter [whom I will call C to protect her identity] for which he was sentenced in 2010 are dismissive and indicate ongoing minimisation of his behaviours and an ongoing failure to understand them in the context of a familial relationship.
113 This is a reference to the respondent stating of the offence involving C that it was not like that and that no offence actually happened, going on to say he was not going to worry about pleading not guilty because it was not worth arguing. This account in my view well justifies the description of it in Dr Wynn Owen's Report of September 2013.
[The respondent's] comments in relation to a breach of supervision conditions in 2009 by being within 50 m of a children's playground indicate that he still challenges those conditions and the premise on which he was breached but also minimises and/or is unprepared or unable to acknowledge the risk in the context of his past sexual offending.
114 As the respondent pointed out in his cross-examination before me, this was not a matter of actual breach of supervision conditions. However, it was a matter of likely breach upon which Jenkins J relied in McGarry [No 2] WASC 2009 (see [50] [52]); and I note that the respondent continued to dispute the basis for Jenkins J's finding in his crossexamination. I consider that that disputation gives further ground for the concern Dr Wynn Owen's Report of September 2013 here describes.
[The respondent's] apparent over confidence in his release preparation notwithstanding the above comments leads me to question the depth of his consideration and understanding of his risk situations, a failure to understand the stress that is inevitable in the transition from prison to community and a lack of understanding of the serious consequences for others, not just himself, of sexual reoffending.
115 I consider that comment amply justified by the preceding ones and the matters to which they relate.
116 I also note in respect of release preparation the testimony of the respondent that he had put forward, apparently to Ms Dabala among others, a sister of his, whom I will call D to protect her identity, as a potential support person. He was also aware from a conversation he had had with Ms Dabala that she was having difficulty communicating with D. However, so aware, he acknowledged that, when he spoke with D by telephone subsequently, he did not urge her to contact Ms Dabala.
117 To an extent this aligns with the comment concerning the laissez faire attitude of the respondent to planning for his accommodation. However, in my view, it goes further. The respondent failed to take action when he had been reminded of the importance of the contact being made.
118 For the respondent, it was pressed on me that GPS technology, that has only become available or at least only readily available since the decision in McGarry [No 4] WASC 2012, would, with the other conditions of a supervision order in this case which I will shortly reach, provide adequate protection of the community.
119 I disagree. The concerns I have described, particularly when read with Mr Summerton's report in the respects I have quoted, go to matters of shortfalls in motivation, including selfreporting, and understanding which, as counsel for the respondent appeared to concede, GPS technology does not reach, at least as far as the respondent's understandings of what he was doing at a particular time. Both of these would be highly relevant to the risk of reoffending. The other conditions in a supervision order my view would not remedy that lack of reach.
120 Counsel for the respondent also emphasised that he has not yet had an opportunity to be assessed by an expert, likely an endocrinologist, for his suitability for a course of antilibidinal medication to replace the Androcur he had ceased to be on in March 2013.
121 I accept that there are particular difficulties for the respondent in securing a referral while in the prison system, particularly having regard to Dr Carbon's document. At the same time, that document is strong evidence before me that the respondent will likely encounter difficulty, given the side effects he has already suffered, securing such medication. Further, as I have already indicated, there is the matter of the necessity for determining and evaluating the results for the respondent if medication other than Androcur is prescribed.
122 Counsel for the respondent put to me that, in respect of this matter, as for accommodation, I could make a supervision order with a condition precedent that an assessment is undertaken and a prescription results. However, as with the submission for accommodation, I did not understand this approach to be pressed strongly on me. It is not apparent to me that I am in a position to make a supervision order with such a condition, in view of the wording of DSO Act s 33. Nor would a further adjournment be appropriate, particularly in view of the necessity for determining and evaluating the results referred to.
123 My conclusion is that, after considering the concerns referred to from Dr Wynn Owen's Report of September 2013, in light of Hall J's remarks in McGarry [No 4] WASC 2012 [68] [73] and [78] [79], I am satisfied that the risk of reoffending cannot at present be adequately managed if the respondent is released on a supervision order.
124 In arriving at that conclusion I have noted the numerous and onerous conditions for a supervision order in this case, appearing as proposed supervision order conditions in the Community Supervision Assessment report (exhibit 1, pages 29 33).
125 Ms Dabala addressed at least some of these in her testimony. It became apparent that a number of the conditions, including the condition with respect to taking antilibidinal medication, and the condition concerning the reporting of the formation of any domestic, romantic, sexual or otherwise intimate relationship by the respondent with a person who had children under the age of 16 years in their care, needed modification or deletion.
126 However, those conditions, most notably the ones concerning prevention of high risk situations, clearly depend upon matters of motivation and understanding in respect of which I am not satisfied the conditions in the proposed supervision order conditions, or indeed any other conditions which I am able to imagine, would adequately protect the community, at least at present.
127 It follows from my conclusions in the preceding section of these reasons that only a continuing detention order would ensure adequate protection of the community.
128 On my conclusions above, I consider it appropriate to order that I expressly decline to rescind the continuing detention order.
129 I will hear from the parties as to the form of that order and as to any further orders I should make.