The evidence
5 A large body of material has been placed before the court. In considering the present application, I have had regard to the evidence that was tendered in support of the application for an interim supervision order, which consisted of two affidavits of Carmela Tassone, affirmed on 7 April 2009 and 20 April 2009 respectively, together with two folders of supporting documents. There was also an affidavit of Patrick Sheehan, affirmed on 9 April 2009 annexed to which there was a folder of documents. Mr Sheehan is the Senior Specialist Psychologist attached to the Serious Sex Offenders Group within the Department of Corrective Services. He also prepared a risk assessment report in respect of the defendant. There was finally an affidavit from Gavin David Rowan, affirmed 17 April 2009. Mr Rowan is the group leader of the Community Compliance Group of the department, and as such, has responsibility for the defendant's supervision.
6 The additional material which is now before the court consists of the reports of Dr Samuels, dated 13 May 2009, and of Dr Greenberg, dated 26 May 2009, who examined the defendant in accordance with the orders which were made on 24 April 2009. Professor Greenberg also provided a supplementary report dated 22 June 2009. It is pertinent to observe that both psychiatrists had previously prepared reports in respect of the defendant in accordance with court orders made at earlier stages of these proceedings. The only material upon which the defendant relied was his own affidavit, sworn on 22 June 2009.
7 It is now convenient to refer to the additional material, commencing with the psychiatric material. Dr Samuels provide the following answers to the various questions which he was asked to address in his report:
1. Based on your examination of Mr Hayter and your review of the enclosed documentation, and with reference to the Act's definition of 'serious sex offence', whether Mr Hayter is likely to commit a further serious sex offence if released into the community and not kept under supervision
Mr Hayter has a very significant history of sexual offending dating back to at least 1984. Most of these offences have occurred with young males under the age of 16, a number of his victims being in the 7-12 age group. I can find no evidence that any of his offences have attracted sentences of greater than 7 years but they certainly have occurred in situations of aggravation and have involved young children. Even in custody Mr Hayter has continued to exhibit a pattern of sexual deviance while participating in a custody-based sex offenders program.
With reference to actuarial tools, structured risk assessment and clinical evaluation as well as taking into account the definition of 'serious sex offence' I think Mr Hayter is "likely to commit a further serious sex offence if released into the community and not kept under supervision".
2. Any comments additional to your earlier reports regarding the extent to which anti-libidinal medication might or might not reduce the risk of further offences of the kind committed by Mr Hayter
I think it is very positive that Mr Hayter is on anti-libidinal medication, particularly in depot form so we are fairly certain he is receiving the medication. It is difficult to evaluate Mr Hayter's self reports as he does have some antisocial personality features and is not always a reliable or consistent historian. He states that he has not had any sexual thoughts about children since August 2008 but I do have some concerns about the veracity of his self report. He also claimed that he no longer has erections on this medication, but then later told me that in fact in the months before his release he was involved in an adult homosexual relationship with another inmate and that he was the active partner. He was able to achieve penetrative anal intercourse although he acknowledged that at times he did "lose" his erection. He also went on to tell me that Dr Ellis had assured him that he would be able to have a "good sexual relationship with an appropriate partner".
There is evidence in the literature that anti-libidinal medication is likely to reduce deviant sexual thinking and the likelihood of committing further sexual offences. It is generally not given at the dose that sexual functioning is completely eliminated so the fact that Mr Hayter is able to achieve an erection with another adult male is not necessarily a cause for concern or suggestion that the dose is too low. What is concerning however is the fact that he is often unreliable and untruthful in his self disclosure and it is difficult to ascertain exactly what impact this medication is having upon him.
The fact that his hormone levels have dropped substantially is objective evidence that the medication is having an effect and it is likely that with his testosterone lowered to a third of normal his risk of offending is reduced.
It is worth noting that many sex offenders commit offences for motives other than sexual gratification and reducing the libido does not necessarily guarantee the offending behaviour will cease.
3. Any comments you are able to make regarding the suitability of the present dosage of depot Provera for Mr Hayter
It seems clear that Mr Hayter is in fact achieving an erection and is capable of engaging in anal penetrative intercourse with another male. He does report some sexual dysfunction at times. It certainly is not the purpose of treatment with anti-androgens to completely eliminate sexual functioning. The major purpose is in fact to eliminate deviant arousal and to replace it with a more appropriate pattern of sexual arousal. As already indicated in the paragraph above, I have some concerns however about Mr Hayter's reliability and particularly the self reports he gives in relation to the effects of this medication. It really is difficult to know exactly what dose of medication he should be on. The general guideline is to aim to reduce the testosterone levels to about a third of what they were but in some case it may become necessary to increase the dose of medication to the point that erections are completely eliminated, hormone levels re-evaluated and then for the dose to be increased to a level where some sexual functioning is possible. Any such dose manipulations would of course need to be monitored by the use of hormone assays and obviously medical side effects or complications would need to be taken into account as well.
4. The likely period of time for which Mr Hayter would need to continue taking the anti-libidinal medication to assist him in managing his risk of sexual recidivism
It is difficult to give a definitive answer in this regard. Certainly the longterm consequences of taking these medications are not well known. There is some evidence that even after cessation of anti-androgen medication the effects of this medication can persist for a prolonged period, particularly in the case of medroxprogesterone acetate (depot Provera). I would regard Mr Hayter as being at high risk of further sexual offending and it may be necessary for him to remain on anti- anderogen medication for a prolonged period which may include the full length of the extended supervision order.
There will however need to be a judgment made by his treating clinicians in response to any medical complications or side effects he is experiencing. It may be possible to cease the medication after a year or so and to monitor whether or not a return to deviant arousal is occurring. The difficulty is that Mr Hayter's self reporting is not entirely reliable and if he stated after the cessation of anti-androgen medication that he was no longer having deviant thoughts, it would be difficult to know if this was in fact true.
5. Your view as to any conditions that would be appropriate, including any necessary and desirable components of any management plan that should be put in place in respect of Mr Hayter, if the Court were to make an extended supervision order
I would see the elements of the order made in the interim summons as being entirely appropriate .
The only additional monitoring approach that I would suggest that consideration be given to would be the use of urine drug screening. I have no particular concerns that Mr Hayter is at risk of using illicit substances, however given his history there certainly is a possibility that he might use medications to aid erectile functioning and whilst I am not entirely sure whether urine drug screens have the capacity to detect the presence of substances like sildenafil (Viagra), vardenafil (Levitra) and tadalafil (Cialis) this certainly would be an issue worth exploring.
It is worth noting that there are other preparations on the market that could aid erectile dysfunction, including papaverine hydrochloride injection. It would be important for Mr Hayter to be restricted to a single general practitioner and conditions of these orders should very explicitly state that he is not to attempt to access any medications that could override the effects of his anti-androgen medication.
6. Your view as to the suitability of the length of the proposed extended supervision order (namely, five years). In this respect, please note that the maximum duration permitted by the Act for an extended supervision order is five years (although the order can be renewed for up to a further five years before the expiry of the order).
There are strong suggestions from Mr Hayter's history and his period in custody that he remains a high risk sex offender. I would see his risk as continuing for a prolonged period and I would have concerns that without very close supervision and monitoring he would be at risk of committing further sexual offences. In my view, it would be appropriate for consideration to be given to retaining him under supervision for the maximal possible period . (emphasis added)
8 Professor Greenberg provided the following opinion in relation to the issues raised by those questions:
1. Based on my examination of Mr Hayter and my review of the documentation provided to me and with reference to the definition of a serious sex offence in the Crimes (Serious Sex Offences) Act 2006, I am of the view that Mr Hayter is likely to commit a further serious sex offence if released into the community and not kept under supervision.
I based this opinion on diagnosis of Mr Hayter having a severe Pedophilic and Hebephilic Disorder associated with his significant personality difficulties. These paraphilic disorders are chronic and life-long and there is no known cure fur these disorders. At this present time without ongoing psychological and psychiatric treatment and management I am of the view that it is highly likely that Mr Hayter will again relapse and potentially sexually re-offend. His response to various therapeutic supervision and monitoring interventions will need to be reviewed over time. Obviously by definition, the longer his period of non-offending behaviour and maintenance of adaptive behaviours, the better the prognosis with his paraphilic disorders.
By definition his STATIC risk factors are unchangeable and he remains in the high risk category score for sexual re-offending relative to other adult male sexual offenders. Although there have been some treatment gains over the past twelve months or more, there is still considerable concern with regard to his previous engrained personality patterns of maladaptive behaviour. I was somewhat concerned that Mr Hayter expressed the view that he would like to discontinue his anti-libidinal medication in the near future in order that he could rest his internal psychological controls using the various psychological tools he has learnt during his attendance at the CUBIT Program. In my view, Mr Hayter has poor insight into the ingrained chronicity of his Pedophilic and Hebephilic disorder. I was concerned that he is of the view that there is no potential for sexual re-offending which would contradict the view of all the professionals who have seen him over the past two years .
2. I am of the view that at this time Mr Hayter's anti-libidinal medication provides the key cornerstone to any successful treatment outcome for Mr Hayter. In view of the chronicity of his lifelong pattern of maladaptive behaviours with regard to his sexual offending and offending behaviours, at this point in time his ability to apply his own internal controls to his sexual deviancy and without medication remains in question. Anti libidinal medication dampens his sexual fantasies, sexual urges and sexual activity in general. It dampens both sexual deviant and non-sexual deviant (adult male) arousal. Previously I expressed concerns with regard to his sub therapeutic dose of Androcur in my previous psychiatric report. I submitted several of my published articles on the topic of anti-libidinal medication for sex offenders. I note Mr Hayter is currently taking 150mg of Depo Provera (Medroxyprogesterone) per week. This again is a relatively low dose of medication for this severity of disorder. The usual dose reported in the literature is usually between 300 to 600mg of Depo Provera intramuscularly per week. This relatively low dose would explain how Mr Hayter is still able to attain erections and have sexual activity with an adult male partner. Mr Hayter is therefore currently not completely sexually suppressed using these relatively low doses of Depo Provera.
Should Mr Hayter increase the Depo Provera dose to 600mg per week, he would likely not be able to obtain erections or be able to engage in sexual intercourse with an adult male partner. However the higher dose may also increased his risk of having adverse effects from this medication. On the other hand, at a relatively low dose, it is still likely in my view that he has a degree of Pedophilic and Hebephilic fantasies, urges and possibly arousal although at a much lower level than without the medication. Using relatively low doses of Depo Provera would dampen his sexually deviant arousal but not completely eliminate it.
On questioning Mr Hayter adamantly maintains that he has no sexual fantasies or sexual urges or sexual activity such as masturbating to Pedophilic or Hebephilic fantasies or pictures whilst on this low dose of Medoxy-progesterone (Depo Provera). Based on my clinical experience, it is likely that he still likely has a degree, although a somewhat smaller one, of having these sexual fantasies or sexual urges towards children. The titration of the actual dose needed by the patient will need to be determined by his ability to control his Pedophilia and hebephilia using adjunct methods of control such as psychological methods which he has learnt during his attendance at the CUBIT Program. However, there may be times where he will need to have this dose increased in order to prevent relapse of his Pedophilic and Hebenphilic symptoms. The difficulty is that this would require Mr Hayter to be completely truthful about his Pedophilic symptoms. As noted in my previous psychiatric reports, there has been a previous history of deceptive maladaptive behaviours involving Pedophilic or Hebephilic symptoms.
In summary therefore I am of the view that the anti-libidinal medication would reduce his risk for further sexual re-offences, however with relatively low doses of Depo Provera there is still a risk of sexually re-offending. Therapeutic doses of 300 to 600mg intramuscular by injection per day would provide a reduced risk but there would still be a risk of potential recidivism. Given that he is taking a sub-therapeutic dose of the anti-libidinal medication, his risk is slightly increased but this is not a contra-indication to prescribing such relatively low doses provided he continues to receive adequate monitoring, supervision and ongoing treatment and care provided by both the Forensic Psychological Services and the Justice Health Forensic Community Service.
3. I have already addressed the issue in the above paragraph with regard to his current dosage of Depo Provera.
4. As stated in my previous psychiatric report, I am of the view that Mr Hayter will need to take this anti-libidinal medication for many years, probably decades. As he ages the dosage of the medication may be reduced but this is a long-term goal and in my view he will need to take this medication at a reasonable dosage in order to remain offence free and live in the community in the medium term. I discussed this issue with Mr Hayter during my psychiatric interview, and he was agreeable to possibly increasing the dosage in conjunction with the advice from his treating psychiatrist Dr Ellis. Over the next five years or more he will need to be consistently monitored by a psychiatrist with expertise in treating sex offenders and the dosage titrated according to the severity of his Pedophilic and Hebophilic symptoms. I personally have treated pedophiles and hebephiles with this medication for periods of more than a decade in these patients they have had no significant complications.
5. I reviewed the various conditions as laid out in the Summons submitted by Carmilla Tassone for the Crown Solicitor of NSW to the Supreme Court on 8 April 2009. I have discussed all these conditions with Mr Hayter and he is of the view that although it does place some restrictions on his rights and freedoms, he is currently fully agreeable to these conditions. I am of the view that these conditions are reasonable and adequate at this time for the medium term in providing assistance to Mr Hayter and assisting him in avoiding relapse of his sexual re-offending behaviour. The writer therefore is of the view that these are suitable conditions for a man such as Mr Hayter with a severe pedophilic and hebephilic disorder and associated with significant personality difficulties .
6. With regard to the suitability of the length of the proposed extended Supervision Order, namely five years, I am of the opinion that a five-year period would not be unreasonable in this severe case. I base my opinion on Mr Hayter's severity of his sexually deviant disorder, his history of breaching previous Court conditions and his history of maladaptive personality difficulties. Although Mr Hayter has made some progress, it still remains in question as to his ability to control his sexually deviant fantasies, urges and activities in the long term. Without such conditions to assist him in his management and treatment of his sexually deviant disorder, I am of the view that he will likely relapse in the short term. I base this probability on his past twenty-year history of offending as well as his twenty to thirty year history of having a Pedophilic and Hebephilic symptoms . (emphasis added)
9 Professor Greenberg also recorded that the defendant acknowledged that there had been 30 victims of his sexual offending although he had only been prosecuted in respect of 17 victims. At an earlier time he had told Professor Greenberg that the only victims were the ones in respect of whom he had been prosecuted.
10 In his supplementary report Professor Greenberg expressed the following responses to the matters raised by Dr Samuels in his report:
1. Based on my examination of Mr Hayter and my review of the enclosed documentation, and with reference to the Act's definition of a serious sex offence, whether Mr Hayter is likely to commit a further serious sex offence if released to the Community and not kept under supervision.
The writer concurs with Dr Samuels that Mr Hayter is likely to commit a further serious sexual offence if released to the Community and not kept under supervision. Dr Samuels does not specifically mention the diagnoses of paedophilia or haebophilia in his report dated 13 th May 2009. I am of the view, however, that Dr Samuels would not disagree with the diagnosis or the severity of the diagnosis. Dr Samuel's report emphasises that Mr Hayter has a preference towards young male children and a lesser sexual preference towards adult males.
In addition the writer stressed that paedophilia tends to be chronic and lifelong and that, by definition, sexual fantasies and sexual urges associated with Paedophilia Disorder, are recurrent. There is no known cure for this sexual disorder.
In addition the writer also draws the reader's attention to Mr Hayter's significant personality difficulties on Axis II of DSM IV-TR classification. The writer stressed that, although there had been some treatment gains over the past 12 months or more, there is still considerable concern with regard to his previous ingrained personality patterns of maladaptive behaviour. I note in my report that Mr Hayter expressed the view that he would like to discontinue his antilibidinal medication in the near future in order that he could test his internal psychological controls, by using the various psychological tools he has learned during his attendance at the CUBIT Program. I therefore stated that Mr Hayter has poor insight into the ingrained chronicity of his paedophilic and haebophilic disorder and express some concern about Mr Hayter's view that he has no potential for sexual re-offending.
2. Any comments additional to your earlier reports regarding the extent to which antilibidinal medication might, or might not, reduce the risk for further offences of this kind committed by Mr Hayter.
I note that Dr Samuels expressed the view that the antilibidinal medication is likely to have a positive effect on Mr Hayter's risk for further sexual offending being reduced. However, he noted that Mr Hayter is not always a reliable or consistent historian, and there were concerns about the veracity of his self report. Dr Samuels stresses the contradiction in Mr Hayter's self report, in that he stated that he could not achieve any erections, but later reported that whilst in custody and on antilibidinal treatment, he engaged in an adult homosexual relationship with penetrative anal intercourse. Dr Samuels expressed the view that antilibidinal medication is likely to reduce his deviant sexual thinking and the likelihood of him committing further sexual offences. He was also of the view that, because Mr Hayter is unreliable and untruthful regarding self disclosure in the past, it is difficult to assert exactly what impact the medication is having upon him.
The writer concurs with these comments. I expressed a similar view, stating that antilibidinal medication provides the key cornerstone to any successful treatment outcome for Mr Hayter. Like Dr Samuels, the writer also noted that Mr Hayter disclosed that he could attain an erection, and although he had some delayed ejaculation, he could have penetrative anal sexual intercourse with an adult male. This would seem to suggest that the dosage of Depot Provera medication reduces his sexual urges and sexual performance, but has not completely eliminated his sexual capacity. I expressed the view that a dose of 150mg, intramuscularly, every fortnight is a relatively low dose. I based my opinion on the current international literature on the topic of effective dosage of Depot Provera. The antilibidinal medication works both on deviant and non-deviant sexual fantasies, sexual urges and sexual activity. From a theoretical perspective, the writer expressed the view that, although Mr Hayer denied having sexual fantasies, sexual urges or sexual activity, such as masturbation with paedophilic or haebophilic stimuli, it is likely that he possibly does have such symptoms, although at a much reduced level.
The writer expressed the opinion that in Mr Hayter taking these sub-therapeutic dose of antilibidinal medication would likely reduce his risk for sexual re-offending. Should he take a higher dose his risk for sexual offending would likely be further reduced because he would have less sexual fantasies, sexual urges and masturbation associated with both deviant and non-deviant stimuli. However with higher doses, he would be unlikely to engage to be (sic) capable of non-deviant consensual sexual activities with potential adult male partners. The writer expressed the view that, although he is taking a relatively low dose of antilibidinal medication, this would not be a contraindication of prescribing such a relatively low dose, providing the person continues to receive adequate monitoring, supervision and ongoing psychological treatment and there symptoms are contained with this approach.
Both the writer and Dr Samuels comment that the titration of his dosage of Depot Provera is difficult because it relies, to a large degree, on his self report. Given that he had a history of being an unreliable historian, the treating psychiatrist will need to provide more conservative advice to Mr Hayter with regard to medication dosage.
3. Any comments you are able to make regarding the suitability of present dosage of Depot Provera for Mr Hayter
I note that Dr Samuels notes that Mr Hayter has reported erections with an adult male consensual sexual partner and is able to perform adequately although he does have some sexual dysfunction at times (delayed ejaculation). Dr Samuels laments that it is difficult to know exactly what dose of medication he should be taking. He also expressed a view that a general guideline is to aim to reduce the Testosterone levels to about one third of what they were originally prior to treatment, but Dr Samuels further stated that in some cases it may be necessary to increase the dose of the medication to the point that erections are completely eliminated. I would concur with such comments; however suppression of testosterone levels is a good measure of compliance with medication. It is not a good measure of clinical effectiveness of treatment or reduced risk of recidivism. The writer has expressed similar views in my paragraph under number 2 of page 15 and 16 of my psychiatric report dated 26 May 2009. As stated in my previous paragraph, the writer is of the view that Mr Hayter is taking a relatively low dose of antilibidinal medication and is not completely sexually suppressed. He reported he has sexual fantasies, sexual urges and sexual activity with an adult male consensual partner. Theoretically it is therefore likely that he has a degree of similar sexual fantasies, sexual urges and sexual activity towards paedophilic and haebophilic stimuli as this is his stronger sexual preference. His dosage would therefore need to be increased only if he is unable to control his sexual fantasies, sexual urges and sexual activity towards under aged children. Provided he is able to utilise his internal psychological controls, which he has learned from the CUBIT Program, his current relatively low dose of Depot Provera medication may be of sufficient quantity. However, if he is unable to control his sexual urges, fantasies and masturbatory activity directed towards under aged children, the dosage should be increased. Given that Mr Hayter is an unreliable historian and has previously acted in an inappropriate sexual manner, while in a highly structured monitored CUBIT Program and even whilst taking antilibidinal medication, the writer tends to lean towards a more conservative therapeutic dosage level.
Overall the writer would therefore tend to favour a more conservative approach with regard to medication advice to Mr Hayter. During my interview, the writer advised Mr Hayter that he would probably function better with less symptoms of his paedophilia on a higher dosage of Depot Provera. Over a period of 12-24 months or more, his medication could then be readjusted when he is able to demonstrate that he can utilise his internal psychological controls over his deviant symptoms associated with his paedophiiic (sic) and haebophilic disorder.
4. The likely period of time for which Mr Hayter would need to continue taking antilibidinal medication to assist him in managing his risk for sexual recidivism .
I note that Dr Samuels expressed the view that he regarded Mr Hayter as being at high risk for further sexual re-offending and it may be necessary for him to remain on antiandrogen medication for a prolonged period, which may include the full length of the Extended Supervision Order. He then draws attention to Mr Hayter as an unreliable historian. Dr Samuels then stated, "It may be possible to cease medication after a year or so and to monitor whether or not a return of deviant arousal is occurring".
On this issue I am of the contrary opinion to Dr Samuels. Based on the chronicity and severity of Mr Hayter's paedophilic and haebophilic disorder, I am of the view that he should not cease medication within a 12-month period. I am of the view that Mr Hayter will require antilibidinal medication for many years, probably decades. As stated in my previous psychiatric report, his compliance with such medication would depend on whether he has any adverse effects, any health problems, and whether there has been improvement in his internal psychological controls, and overall stability in his lifestyle. It is essential that he give informed consent to the dosage and medication.
Mr Hayter is now 45 years old and his maladaptive behaviours have been lifelong during his adult years; he has spent considerable periods in custody; and has ingrained personality difficulties. It is well known in the literature that it is difficult for these individuals in the short term to change such patterns of behaviour. The writer therefore, is of the view that it is unlikely that within a 12-month period, Mr Hayter would have demonstrated significant improvement in his deviant sexual disorder. I am of the view that he is likely to require more long-term treatment with an antilibidinal medication, and although the dosage could be titrated over an extended period of time, the writer would not recommend ceasing this medication in the short term.
5. Your view as to any conditions, which would be appropriate, including any necessary and desirable components of any management plan, which should be put in place in respect of Mr Hayter, if the Court were to make an Extended Supervision Order.
On tis(sic) issue, I concur fully with Dr Samuels' comments on page 15 of his report, dated 13 th May 2009. Dr Samuels, however, asked for the additional condition of a urine drug screen in the event that it might be possible to detect levels of other medications such as Viagra, Levitra and Cialis. To the best of the writer's knowledge, these treatments for impotence are not routinely detected in the urine by commercially available pathology laboratories. Theoretically, it may be possible to override the effects of antilibidinal medication. However, this would be potentially medically dangerous and would be difficult to attain on higher doses of antilibidinal medication. These erectile dysfunction medications work on a completely different mechanism. They may assist an individual attain an erection but if he is taking therapeutic dosages of antilibidinal medication he would likely have a significantly reduced sex drive, reduced interest in sexual activity, reduced sexual fantasies and sexual urges to both deviant and non-deviant sexual targets or partners.
6. Your view as to the suitability of the length of the proposed Extended Supervision Order (namely 5 years). In this respect, please note that the maximum duration permitted by the Act for an Extended Supervision Order is 5 years (although he order can be renewed for up to a further 5 years before expiry of the order).
Again, the writer fully concurs with Dr Samuels' view, where he expressed an opinion that, it would be appropriate for consideration to be given to Mr Hayter being retained under supervision for the "maximum possible period ". The writer concurs with this view of Dr Samuels, as expressed in my psychiatric report dated 26 th May 2009. (emphasis added)