Chief Executive Officer of Department of Corrective Services v Dick [No 6]
[2016] WASC 323
•15 SEPTEMBER 2016
CHIEF EXECUTIVE OFFICER OF DEPARTMENT OF CORRECTIVE SERVICES -v- DICK [No 6] [2016] WASC 323
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2016] WASC 323 | |
| Case No: | MCS:1/2009 | 15 SEPTEMBER 2016 | |
| Coram: | FIANNACA J | 15/09/16 | |
| 19 | Judgment Part: | 1 of 1 | |
| Result: | Application granted | ||
| B | |||
| PDF Version |
| Parties: | CHIEF EXECUTIVE OFFICER OF DEPARTMENT OF CORRECTIVE SERVICES JAMES FLAVELL DICK |
Catchwords: | Criminal Law and procedure Dangerous sexual offender Application to amend supervision order Anti-libidinal treatment No provision to cease or reduce medication Serious health risks of medication Adequate protection of community |
Legislation: | Dangerous Sexual Offenders Act 2006 (WA), s 19, s 20(1), s 20(2) |
Case References: | Dick v Director of Public Prosecutions (WA) [No 4] [2012] WASC 333 Director of Public Prosecutions (WA) v Dick [No 2] [2010] WASC 288 Director of Public Prosecutions (WA) v Dick [No 3] [2011] WASC 323 Director of Public Prosecutions (WA) v Dick [No 5] [2013] WASC 357 The State of Western Australia v Dick [2009] WASC 275 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CRIMINAL
- Applicant
AND
JAMES FLAVELL DICK
Respondent
Catchwords:
Criminal Law and procedure - Dangerous sexual offender - Application to amend supervision order - Anti-libidinal treatment - No provision to cease or reduce medication - Serious health risks of medication - Adequate protection of community
Legislation:
Dangerous Sexual Offenders Act 2006 (WA), s 19, s 20(1), s 20(2)
Result:
Application granted
Category: B
Representation:
Counsel:
Applicant : Ms R Young
Respondent : Ms F R Veltman
Solicitors:
Applicant : State Solicitor for Western Australia
Respondent : Fisher Legal
Cases referred to in judgment:
Dick v Director of Public Prosecutions (WA) [No 4] [2012] WASC 333
Director of Public Prosecutions (WA) v Dick [No 2] [2010] WASC 288
Director of Public Prosecutions (WA) v Dick [No 3] [2011] WASC 323
Director of Public Prosecutions (WA) v Dick [No 5] [2013] WASC 357
The State of Western Australia v Dick [2009] WASC 275
- FIANNACA J:
(This judgment was delivered extemporaneously on 15 September 2016 and has been edited from the transcript.)
Introduction
1 On 18 September 2009, the respondent was found to be a serious danger to the community under the Dangerous Sexual Offenders Act 2006 (WA) (the Act) and was ordered by McKechnie J to be detained in custody for an indefinite period for control care or treatment ('the continuing detention order').
2 On 1 October 2013, after the fourth annual review of the continuing detention order, Hall J rescinded the order and made a supervision order in relation to the respondent under s 33(1)(b) of the Act. The respondent was released on that order, which contained 44 conditions. They included three conditions relating to a requirement that the respondent undergo anti-libidinal treatment.
3 This is an application made by the Chief Executive Officer of the Department of Corrective Services (DCS) under s 19 of the Act to amend the respondent's supervision order, by amendment of those three conditions. Since the application was made, the Act has been amended by the Dangerous Sexual Offenders Legislation Amendment Act 2006 (WA), Pt 2, No 17 of 2016,which came into effect on 10 September 2016. However, none of the amending provisions affect this application.
4 The application is made with the consent of the Director of Public Prosecutions of Western Australia, as is required by s 19(1)(b) of the Act.
5 The application is made on the basis that the amendment is necessary or desirable for a reason other than an inability on the part of the respondent to comply with the conditions because of a change of his circumstances.1 In essence, the reason for the application is that the respondent suffers from heart disease, and, in February 2016, had a heart attack. There is medical evidence that the current anti-libidinal treatment he is required to undergo under the conditions of his supervision order may put his health at risk, given his heart disease. The wording of the conditions at present does not provide for the exercise of discretion by those supervising and treating the respondent to cease the treatment if necessary to avoid serious risk to his health. The application is for an amendment of the conditions so as to provide such discretion, but at the same time ensure that DCS is informed immediately if the respondent ceases the anti-libidinal treatment or other relevant medical treatment, or is not complying with the advice of his medical practitioner or practitioners.
6 Under s 20(2) of the Act, I must be satisfied that:2
(a) the conditions, as amended, would be sufficient to ensure adequate protection of the community; and
(b) it is reasonable to make the amendment in all the circumstances.
7 The application was filed on 26 August 2016, with a supporting affidavit of Erin Amelia Hutchings, sworn on 24 August 2016. Ms Hutchings is a Senior Community Corrections Officer (SCCO) who has been employed by DCS for over five years. Attached to her affidavit were medical reports concerning the respondent's heart disease and a report of Dr Adam Brett, Consultant Psychiatrist, who reviewed the respondent on 19 November 2015.
8 The respondent was served with the application and appeared at the hearing of the application, where he was represented by counsel. He does not oppose the application.
9 Ms Hutchings' affidavit and attachments were tendered in the proceedings by consent.
10 On the basis of the evidence presented in the application and the submissions made on behalf of the applicant, I am satisfied that the proposed amendment of the conditions of the supervision order (with some small modifications) is necessary to enable those responsible for the respondent's supervision and treatment to better manage that treatment so as to take into account the risks to his health. I am also satisfied that the conditions, as amended, would be sufficient to ensure adequate protection of the community, and that it is reasonable to make the amendment in all the circumstances.
11 These are my reasons for reaching those conclusions.
Background
12 The facts of the offending that underpinned the original application under the Act that resulted in the continuing detention order made by McKechnie J were summarised by his Honour in The State of Western Australia v Dick.3 In Director of Public Prosecutions (WA) v Dick [No 5], Hall J distilled the facts as follows:4
It suffices to say that between 1990 and 1993 the respondent committed serious sexual offences against two victims, a girl and a boy. He later re-offended against the same victims in 1998. In respect of both victims the respondent was in a familial relationship. He served two periods of imprisonment in respect of these offences; from 9 February 1994 to 10 March 1995 and from 3 March 1999 to 18 February 2009.
13 Pending the hearing of the original application, the applicant was released on an undertaking. He breached three of the conditions of that undertaking. At the hearing of the original application, those breaches were regarded by McKechnie J as significant factors in his assessment of the respondent's risk to the community of further serious sexual offending, and his Honour considered there was nothing that would mitigate that risk that would render supervision in the community an acceptable risk.5
14 After McKechnie J made the continuing detention order on 18 September 2009, and during the period that the respondent was subject to the continuing detention order, the Director of Public Prosecutions was required to apply to the court for an annual review.
15 The first annual review was conducted, again by McKechnie J, on 20 September 2010. On 22 October 2010, his Honour determined that the respondent remained a serious danger to the community and expressly declined to rescind the continuing detention order.6
16 The second annual review was conducted on 24 October 2011 by EM Heenan J. Prior to that hearing, the respondent had recently commenced a trial of anti-libidinal therapy. It seems he commenced in September 2011. EM Heenan J found that the respondent remained a serious danger to the community and declined to rescind the continuing detention order.7 His Honour was of the view that the trial of medication had not yet had sufficient time to establish an effective therapeutic dosage or that it was having any desired effect. His Honour indicated that if the anti-libidinal treatment proved to be successful, and it could be demonstrated that the risk to the community could be reduced thereby to a tolerable level, that would presumably provide grounds for the respondent to apply to the court for an early review, under s 30 of the Act.
17 Such an application was made and was eventually heard on 17 August 2012 by Hall J. On 14 September 2012, his Honour concluded that the respondent remained a serious danger to the community, and declined to rescind the continuing detention.8 In the course of his reasons, his Honour said:9
The most significant change since the last annual review is that the applicant has now been on anti-libidinal medication for approximately 12 months. It is clear from the evidence that this has resulted in a significant reduction in his testosterone levels. The expectation is that such a reduction will also lead to a reduction of sexual desire and functioning. The applicant has self-reported such a reduction. However, he has not given evidence in these proceedings and his reliability has been doubted by Dr Tanney.
18 His Honour was not satisfied that the anti-libidinal medication had been effective in reducing the respondent's sexual desire and functioning, but, in any event, that was only one factor in the assessment of his risk of re-offending. There were other factors that militated against a supervision order at that time, including a lack of development in the respondent's understanding of his own past behaviour and that he needed to address it.
19 The respondent came back before Hall J for the next annual review, which was conducted on 16 September 2013 and 1 October 2013. On that occasion, his Honour made the following findings:10
In the last 12 months the respondent has made significant treatment gains. He has responded positively to individual psychological counselling. This has resulted in increased self-awareness and self-management skills. His risk of re-offending is considered to have reduced significantly and the ability for him to be effectively managed in the community has improved. There have been no adverse incidents in prison in the last 12 months. The respondent has also continued to take anti-libidinal medication and his testosterone levels remain low. There have been no incidents suggesting continuing sexual desire or functioning. Importantly, suitable accommodation is now available in the community.
The changes to the respondent's circumstances have persuaded me that the appropriate outcome is to rescind the continuing detention order and make an order that he be released on conditions. The conditions must necessarily be detailed and strict, however I am satisfied that the respondent has the willingness and ability to comply with them. Appropriate enforcement of those conditions will minimise any risk of re-offending. My reasons for coming to this conclusion are set out more fully below.
20 Accordingly, his Honour made a supervision order, to remain in effect for 10 years, and the respondent was released on that order on 1 October 2013. The order will expire on 30 September 2023. The order imposes 44 conditions on the respondent. Conditions 10 to 12 require that the respondent:11
10. Continue to undergo pharmaceutical anti-libidinal treatment;
11. Comply fully with that treatment, in consultation with a medical practitioner;
12. Provide a written direction to that medical practitioner to advise the CCO immediately if they become aware or suspect that the Respondent has or intends to cease undergoing pharmaceutical anti-libidinal medication, or has apparently ceased to consult with that medical practitioner ...
Anti-Libidinal treatment
21 Ms Hutching's affidavit and the attached medical and psychiatric reports establish the following facts.
22 Since the respondent's release to the community in October 2013, he has been taking Androcur, an anti-libidinal medication. This has been verified through regular and random blood testing of the respondent's testosterone levels and is monitored by DCS Health Services. There was an occasion in May 2015 when an increase was noted in the respondent's testosterone levels and concerns were raised by DCS Health Services that he was not taking his anti-libidinal medication as directed. He was issued a written warning in relation to the suspected non-compliance. After that, the respondent's testosterone levels were considered to be at a level consistent with what would be expected in a person who has been taking anti-libidinal medication.
23 Dr Barr, a General Practitioner, provides the respondent with his Androcur prescriptions, but is not involved in monitoring his compliance with the medication. The respondent attends another General Practitioner, Dr Cornelius Rijks, for monitoring of his general health and wellbeing.
24 Dr Rijks referred the respondent to a sleep study after the respondent reported symptoms consistent with sleep apnoea. On 18 June 2015, the respondent completed a sleep study at Fiona Stanley Hospital under the supervision of Dr Justin Ng. Dr Ng diagnosed the respondent with excessive daytime sleepiness and hypersomnia as well as mild obstructive sleep apnoea, although he did not consider the latter accounted for the respondent's symptoms of excessive sleepiness and hypersomnia. He provided a report, dated 28 August 2015, to Dr Rijks. A copy of the report was provided by the respondent to DCS. The report raises the possibility that the respondent's sleep-related symptoms may have been caused by Androcur.
25 After receiving Dr Ng's report, Ms Amy Sykes, Coordinator Dangerous Sexual Offender Services, Community Offender Monitoring Unit, referred the respondent to consultant psychiatrist Dr Adam Brett for an assessment, in particular, to review the respondent's use of antilibidinal medication and any impact this could have on his risk of re-offending. The assessment was completed on 19 November 2015 and Dr Brett provided a report dated 3 December 2015.
26 The respondent told Dr Brett that he had had the sleep problem for five years, and that he remained awake for only five hours each day. Dr Brett noted that the GPS monitoring of the respondent confirmed that he was spending most of his time at home and had limited movement. The respondent claimed that before he was commenced on Androcur, he had a normal sleep pattern. He said that he was not consenting to the medication, but was taking it only because it was court ordered.
27 Dr Brett noted that the respondent's testosterone was being measured on a regular basis (monthly), and that the results were consistently in the low normal, or below normal levels, which suggested compliance with the medication. Dr Brett recommended that testosterone levels should be maintained at low-normal levels as this reduced the risk of osteoporosis and minimised the chance of side effects.
28 Dr Brett regarded the respondent as quite an evasive historian and considered there were some inconsistencies in his history. As I will refer to later, the respondent's claims about when his sleep-related symptoms commenced are doubtful.
29 Dr Brett was of the view that it was also clear the respondent wanted to paint a good picture of himself and wanted Dr Brett to recommend that his medication be stopped. Dr Brett summarised the position concerning the respondent's complaint about symptoms as follows:12
He is complaining of a number of side effects from this medication, which may or may not be related to the medication. His chief complaints are hypersomnia, weight loss and gastro problems. The only way of telling whether these side effects are secondary to the Androcur are either by reducing it or stopping it.
30 He went on to say:13
I believe that there is significant secondary gain for Mr Dick to complain of side effects. It is likely that they will stop with the cessation of Androcur. This does not mean, necessarily, that Androcur caused the problems.
31 Dr Brett said that he usually uses a selective serotonin reuptake inhibitor (SSRI), such as fluoxetine (Prozac) as the first-line treatment. He said that this could be used if Androcur is stopped and there is concern about the respondent's sexual drive.
32 Dr Brett noted that the respondent still has sexual drive, despite being on anti-libidinal medication. Although the respondent said that his sexual drive was low, he described a number of sexual activities which confirmed the existence of a sexual drive. Dr Brett commented that it is difficult to quantify the respondent's sex drive, because he has not been open with the people who are monitoring him, and this was a concern.
33 The respondent has previously been diagnosed with paedophilia. That diagnosis remains, and Dr Brett considers the risk of the respondent re-offending is as previously assessed.
34 Nevertheless, Dr Brett concluded as follows:14
I believe that his risk for sexual reoffending can be adequately managed with the monitoring in place and with the reduction or cessation of his anti-libidinal medication. I would have more confidence in this decision if a psychiatrist was also involved in his care and part of the Public Protection Unit.
35 He said that if he were the respondent's treating psychiatrist, he would reduce the dosage of Androcur to 25 mg and monitor the respondent's response to that.
36 On 27 January 2016, Dr Brett's report and findings were discussed by the members of the Community Offender Monitoring Unit, Risk Management Group (including a Senior Community Corrections Officer, a member from the DCS Forensic Psychological Services and officers from the WA Police Sex Offender Management Squad). Based on Dr Brett's recommendations, the Risk Management Group agreed that there should be a trial of a reduction of the respondent's dose of Androcur from 50 mg to 25 mg per day. The respondent was advised of that plan on 5 February 2016. His treating doctors, Dr Rijks and Dr Barr, were also advised of that decision.
37 On 27 February 2016, the respondent suffered a heart attack, arising from thrombosis of a ruptured atheromatous plaque. He was taken for emergency surgery, including a coronary angiogram and the insertion of stents, at Sir Charles Gairdner Hospital. He was discharged from hospital on 29 February 2016. On 12 April 2016, he had follow-up surgery involving coronary artery angioplasty.
38 During the period from February through to April 2016, the respondent reported to his SCCO during supervision that, after reducing the Androcur medication from 50 mg to 25 mg, he experienced a decrease in nausea, increased appetite and improved sleep.
39 On 26 May 2016, Dr Rijks made contact with DCS to express concerns for the respondent's wellbeing. He explained that the anti-libidinal medication Androcur is contraindicated where the patient suffers from heart disease.
40 Dr Rijks explained his concerns in a letter dated 3 June 2016 which attached the discharge summaries from Sir Charles Gairdner Hospital and a current MIMS Full Prescribing Information sheet about Androcur. That document lists precautions for the use of Androcur, including precautions for persons with previous or existing thromboembolic processes.
41 After receiving Dr Rijks' letter, members of the Risk Management Group approved a further reduction of Androcur medication from 25 mg to 12.5 mg per day. The respondent was informed of that decision on 24 June 2016.
42 Dr Barr was advised of this development on 30 June 2016. He informed the respondent's SCCO that he would be guided by DCS if and when the respondent is approved to discontinue the medication altogether. Until then, he would continue to prescribe the drug, in accordance with the conditions outlined in the respondent's supervision order.
43 Since then, DCS has continued to monitor the respondent's testosterone levels on a regular and random basis. DCS will also continue to monitor his risk of sexual re-offending through his monthly psychological counselling sessions with the DCS Forensic Psychological Services. At this time, his psychologist has not advised of any imminent concerns related to sexual offending.
44 It is in these circumstances that the application is made to amend conditions 10 - 12 of the supervision order. Those conditions, in effect, require that the respondent continue to undergo pharmaceutical biological antilibidinal treatment. I agree with the applicant's submission that the wording of the conditions does not appear to allow for the exercise of any discretion by those supervising and treating the respondent to cease the anti-libidinal treatment, even on advice of his doctors.
45 The issue is whether the court should exercise its discretion to amend the supervision order to enable the respondent to cease anti-libidinal treatment, if so advised by his SCCO, in consultation with his medical practitioner or practitioners. As I noted at the outset, this requires me to consider, first of all, whether the amendment is necessary or desirable for any reason; secondly, whether the adequate protection of the community can be maintained if the amendments are made; and, finally, that it is reasonable, in the circumstances, to make the amendment.
Whether the amendment is necessary or desirable
46 As I noted earlier, the respondent commenced to take antilibidinal medication in September 2011, while he was still in detention. When he made the supervision order on 1 October 2013, Hall J noted that:15
The respondent has now been on anti-libidinal medication for two years. The blood test results show that this medication has been effective in lowering testosterone levels. The respondent has self-reported that his libido and sexual functioning are effectively non-existent. There have been no incidents in the last 12 months to cast any doubt on these reports and they are consistent with the blood test results. Whilst concerns have been expressed about possible adverse side-effects, no such side-effects have been reported in the respondent's case. There is good reason to think that conditions requiring continued use of anti-libidinal drugs would be both viable into the future and effective in reducing the risk of re-offending.
47 The facts I have outlined show that since October 2013, apart perhaps for a period when he was under suspicion of not complying in May 2015, the respondent has been taking Androcur in compliance with condition 10 of the supervision order.
48 It may be noted that the respondent has admitted continuing to have a sexual drive. It might be thought that the expectation of Hall J, when he placed the respondent on a supervision order, was that the anti-libidinal medication would continue to result in a lack of libido and sexual functioning, as the respondent had reported at that point in time. However, it seems to me that it is not a necessary condition of the viability of the supervision order that the anti-libidinal treatment should result in a complete removal of any sexual drive in the respondent. Certainly, as I have already indicated, Dr Brett appears to consider that, notwithstanding the existing sexual drive, the respondent's risk of re-offending can be managed on the very strict conditions that are contained in the supervision order. Those conditions have, to date, included a requirement, which I accept has been somewhat inflexible, that the respondent continue on the anti-libidinal treatment.
49 The dose of Androcur was reduced from 50 mg to 25 mg after Dr Ng had provided a report raising the possibility that the medication was causing the side effects affecting the respondent's sleep pattern. Coincidentally, the respondent's heart attack occurred soon after his dose was reduced from 50 mg to 25 mg, but it is simply a coincidence.
50 The causal connection between the Androcur and the respondent's symptoms in respect of his sleep pattern remains unresolved. The applicant points out that, although the respondent reported to Dr Ng that he had been experiencing excessive daytime sleepiness and symptoms of hypersomnia since taking Androcur, Hall J found in October 2013 in Director of Public Prosecutions (WA) v Dick [No 5] that, some two years into the respondent's use of Androcur, 'no such side-effects [of Androcur] have been reported in the respondent's case'.16 On the other hand, the MIMS prescribing information does indicate that tiredness is a common adverse effect of Androcur.
51 However, whether or not the respondent has truthfully reported the effect of hypersomnia and the length of time over which he has had that side-effect, the evidence is that he suffered a heart attack in late February 2016. The potential impact of the drug on the respondent's health because of his heart disease is the more significant issue. According to the MIMS information, thromboembolic process is a contraindication for the use of Androcur, and thromboembolism is a condition that requires precaution in its use. The information states that a common adverse reaction of thrombotic phenomena is reported at the approximate frequencies of greater than or equal to 1 in100 and less than 1 in 10.
52 The applicant submits that, while the use of Androcur has likely reduced the respondent's testosterone levels, with a very common effect of diminished libido, although not completely removed, it is desirable that there be an option to properly balance the benefits in that regard against a potentially serious risk to the respondent's health, given his heart condition. Further, the applicant submits that the determination of how these concerns are to be balanced is best made by the respondent's medical team. I agree.
53 It may be that the concerns are such that medical advice will eventually recommend the cessation of Androcur. It would be expected that, in those circumstances, consideration will be given to trialling a selective serotonin reuptake inhibitor, as suggested by Dr Brett. It would also be expected that DCS would do what it could to ensure that there was psychiatric oversight of the respondent in order to increase the confidence that a cessation of the use of Androcur would not result in an increase in the respondent's risk of re-offending, as identified by Dr Brett. In any event, what is clear is that, if there is to be better and more flexible management of the respondent's treatment in order to manage his sexual drive, the present conditions in the supervision order do not enable the respondent to cease taking the anti-libidinal medication without exposing himself to a breach of the order, or the possibility of a detention order. So, there does need to be an amendment to allow for the flexibility that the applicant has submitted is necessary.
54 The applicant submits that an amendment to enable the respondent to cease taking the medication without breaching the order would allow for changes to be made to the respondent's future treatment regime, depending upon his risk factors and circumstances, including, if required and appropriate, the use of anti-libidinal treatment and/or anti-depressants. The reference to anti-depressants arises because depression is considered to be another risk factor, as referred to by Dr Brett.
55 Notwithstanding the fact that there are clear and compelling medical reasons why the amendment to the conditions would be to the benefit of the respondent, it is necessary for me to be satisfied that the protection of the community can still be adequately achieved by the conditions of the supervision order, if amended.
Adequate protection of the community
56 The respondent's diagnosis of paedophilia remains. The applicant submits, however, that there are no imminent concerns related to his sexual offending, and his risk of sexual offending will continue to be monitored through psychological sessions held on a monthly basis. I am satisfied that that is the case.
57 The applicant also submits that, although, there have been previous concerns about the respondent's truthfulness, expressed prior to his release on the supervision order, particularly in relation to his sexual drive and functioning, over the last three years, whilst he has been subjected to that order, the respondent has complied with the order. There have been no particularly serious concerns about the respondent. While there have been two contraventions of the order, and some warnings were given, none of those events resulted in any contravention proceedings being brought in the Supreme Court. That is so, but those matters require some further consideration.
Non-compliance while on the supervision order
58 On 2 October 2015, the respondent appeared in the Perth Magistrates Court. He was convicted of one count of contravening his supervision order and fined $2,000. The Sex Offender Management Squad located several images of children on the respondent's mobile telephone and laptop computer. This contravened condition 42 of the supervision order, which requires that the respondent:17
Not conduct computer searches for, nor collect in either electronic or other form, images of children, whether indecent or not, with the exception of images of immediate family members that are not indecent images.
59 The fact that no contravention proceedings were taken, other than charging the respondent with the offence of breaching the condition of the supervision order, of itself suggests that the matter was not regarded as being of such seriousness as to jeopardise the viability of the supervision order. In these proceedings, I was informed by the respondent's counsel that the images were, in fact, sent to the respondent by a friend and they were images of children who were related to that friend. I was told that the respondent had, in effect, forgotten that the images were on his phone, but he made no attempt to conceal them, and when requested to hand over his telephone to the officers of the Sex Offender Management Squad, he did so, and it was in those circumstances that the images were found. I am satisfied that the contravention is not one that raises concerns for the appropriateness of making the amendments that have been sought.
60 The second contravention involved the respondent leaving his home without his hand-held GPS device. He appeared in the Magistrates Court on 28 October 2016 and was convicted of one count of contravening his supervision order. He was fined $800. The incident happened on 20 May 2016 in the afternoon, when the respondent left his home and could not be monitored for 12 minutes. This contravened condition 4 of the supervision order, which required that the respondent be under the supervision of a Community Corrections Officer and comply with the lawful orders and direction of that officer. It also contravened condition 21 of the supervision order, which required him to be subject to electronic monitoring under s 19A of the Act, the imposition of which monitoring is at the discretion of a CCO pursuant to that section.
61 The effect of s 19A(2)(a) of the Act and the conditions is that the offender is required to wear a device, being an 'electronic monitoring personal identification device' (the transmitter), and keep with him a hand-held GPS device, which is a unit that he carries personally.
62 Again, the fact that the matter was not the subject of contravention proceedings in the Supreme Court, and was dealt with by way of a fine of $800 in the Magistrates Court, would suggest that it was not considered to be of such seriousness as to place in jeopardy the viability of the supervision order. An explanation was provided by the respondent's counsel in these proceedings, namely that he had been asked by a friend to assist him on a matter (the details of which are not important), and that, in the rush at that point in time (when he had only recently been released from hospital), he forgot to take the GPS device with him. I do note that it was only for a very short period. The Department subsequently confirmed with the friend that, in fact, the respondent had been with that person, so, there was no suggestion of the respondent being dishonest about his whereabouts. Again, in the circumstances, I am satisfied that that contravention is not a matter that raises any particular concern.
The respondent's attitude to compliance
63 That is not to say that the court should not be vigilant about any breaches by the respondent, nor that the Department should not be vigilant. As I noted earlier, from the very beginning there were concerns about the respondent's capacity to comply with strict conditions pending the hearing of the original application before McKechnie J. The applicant was released on an undertaking, which included a number of conditions.
64 Prior to the hearing of that application, he breached conditions that prohibited him from possessing or using illicit drugs, associating with persons known by him to have committed a sexual offence and having contact with any child under the age of 17 years. McKechnie J noted that these breaches provided 'powerful evidence of the respondent's attitude to supervision and lack of insight about risk-laden situations'.18 The applicant has now had over two years to demonstrate a positive attitude to compliance. I have outlined the contraventions. The other matters in respect of which the respondent has been issued warning letters occurred in October and December 2013. I am satisfied that sufficient time has elapsed to indicate that he has demonstrated a preparedness to comply with the conditions of his order.
The respondent's current circumstances
65 The information before me indicates that the respondent is currently in an intimate relationship with a Filipino lady who he met online. It is not necessary for me to go into the details of that relationship. She is a younger woman. The respondent's SCCO has met the lady and the Department will continue to monitor the respondent's relationship with her closely.
66 Although Dr Brett has raised concerns about the respondent's self-reporting, that does not dissuade him from recommending that the risk of re-offending by the respondent can be adequately managed with monitoring in place and with the reduction or cessation of his anti-libidinal medication. It is noteworthy that since late June 2016, the respondent has been on the reduced dose of 12.5 mg of Androcur per day and no concerns have been raised about his risk of offending at this stage.
Conditions sufficient for adequate protection of the community
67 I accept the applicant's submission that, even with the amendment of conditions 10 - 12, the other conditions of the supervision order, including reporting to Police and the prevention of high-risk situations, remain in place to sufficiently protect the community.
Reasonable in the circumstances
68 Finally, in respect of the question of whether it is reasonable in the circumstances to make the amendments, the applicant submits that, while the Act's paramount purpose is the adequate protection of the community, the court can balance concerns about the respondent's health against that purpose. The effect of the amendment is not to give the respondent unchecked freedom in respect of the use of medication. Rather, the amendment enables his medical team to make a full range of recommendations to his SCCO about the respondent's anti-libidinal treatment, in the light of potentially serious health concerns.
69 I am satisfied that those submissions are well made, that the court should take into account the health of the respondent, and that the amendments that are proposed would still allow for the adequate protection of the community. Ultimately, if the respondent can continue to comply with his conditions and demonstrate that he is not putting himself in circumstances where the risk of re-offending is elevated, then, in my opinion, the question of management of his sex drive is one that can properly be put in the discretion of the SCCO and the medical practitioners who are providing treatment to him.
70 The amendments that have been sought, with slight modification as I discussed with counsel, are as follows:
1. Condition 10 be amended to provide that the respondent undergo medical testing and treatment, including antidepressant medication, and anti-libidinal treatment as directed by an SCCO in consultation with a medical practitioner or medical practitioners;
2. In relation to condition 11, the respondent is to comply fully with any treatment prescribed pursuant to condition 10; and
3. In respect of condition 12, the respondent is to provide a written direction to the medical practitioner, or medical practitioners, conducting or responsible for the medical testing, or providing the treatment prescribed pursuant to condition 10, to advise the SCCO immediately if they become aware or suspect that the respondent has ceased or intends to cease undergoing pharmaceutical anti-libidinal treatment and/or taking antidepressant medication contrary to the advice of the medical practitioner or medical practitioners, or has apparently ceased to consult with that medical practitioner, or those medical practitioners.
71 I am satisfied that the wording of the amendment so formulated would provide the required degree of flexibility which the applicant has submitted is necessary to enable the Department and the respondent's treating medical practitioners to properly deal with his health issues, while at the same time enabling the protection of the community to be properly maintained.
Conclusion
72 In the circumstances, therefore, I grant the application and I make the following order:
The supervision order made in respect of the respondent by Hall J on 1 October 2013 is amended by deleting conditions 10, 11 and 12, and substituting, therefor, the following conditions: [The new conditions 10, 11 and 12, as I have articulated them.]
Addendum
73 At the conclusion of the hearing of the application, after the order was made, I explained to the respondent the reasons for the continuation of conditions concerning anti-libidinal treatment and his obligations under the amended suspension order, in the following terms.
74 The respondent was told that nobody wants his health to deteriorate as a result of his taking anti-libidinal medication. However, he must understand also that the reasons why he is required to take the medication is because it was considered that the level of his sexual drive was such that it was a risk factor that might elevate the risk of his committing offences again. One of the things that was noted in the past was his inability to accept responsibility for some of the offences of which he was convicted. It seems that, from what Dr Brett has said, that remains the case. Whether or not it is the case, the respondent must still understand that those who are entrusted with supervising him and with providing him with treatment are required to ensure that he does not place himself in circumstances where the risk that existed in the past that resulted in the offences of which he was convicted might arise again.
75 The respondent was told that it is very important, therefore, that he is completely open and honest with those who are treating him, including his psychologist. The point of that exhortation is that, in circumstances where the court has been asked to amend the supervision order to allow greater flexibility in order to take into account the respondent's health issues, there is also an obligation on him to ensure that he complies strictly with the conditions of the supervision order so that the community is assured that he is being properly monitored, and he is not putting himself at risk of being returned to prison if the Department were to come to the view that he has contravened in a way that is, on that occasion, too serious.
ANNEXURE
- Upon hearing counsel for the applicant, Ms R Young, and counsel for the respondent, Ms F Veltman, on the application to amend conditions 10 to 12 of the supervision order, pursuant to s 20(1) of the Dangerous Sexual Offenders Act 2006 (WA),
IT IS HEREBY ORDERED THAT:
1. The supervision order made in respect of the respondent by the Hon Justice Hall on 1 October 2013 is amended by deleting conditions 10, 11 and 12 and substituting, therefor, the following conditions:
Condition 10:
Undergo medical testing and treatment, including anti-depressant medication and anti-libidinal treatment, as directed by a SCCO in consultation with a medical practitioner or medical practitioners.
Condition 11:
Comply fully with any treatment prescribed pursuant to condition 10.
Condition 12:
Provide a written direction to the medical practitioner or medical practitioners conducting or responsible for the medical testing or providing the treatment prescribed pursuant to Condition 10 to advise the SCCO immediately if they become aware or suspect that the respondent has or intends to cease undergoing pharmaceutical anti-libidinal treatment and/or taking anti-depressant medication contrary to the advice of the medical practitioner or medical practitioners, or has apparently ceased to consult with that medical practitioner or those medical practitioners.
1Dangerous Sexual Offenders Act 2006 (WA) s 20(1)(b).
2Dangerous Sexual Offenders Act 2006 (WA) s 20(2)(a) and (b).
3The State of Western Australia v Dick [2009] WASC 275[16].
4Director of Public Prosecutions (WA) v Dick [No 5] [2013] WASC 357[13] (Hall J).
5The State of Western Australia v Dick [2009] WASC 275 [15].
6 See Director of Public Prosecutions (WA) v Dick [No 2] [2010] WASC 288.
7Director of Public Prosecutions (WA) v Dick [No 3] [2011] WASC 323.
8Dick v Director of Public Prosecutions (WA) [No 4] [2012] WASC 333.
9Dick v Director of Public Prosecutions (WA) [No 4] [2012] WASC 333 [44] (Hall J).
10Director of Public Prosecutions (WA) v Dick [No 5] [2013] WASC 357 [3] - [4] (Hall J).
11 Conditions 10 - 12 in Annexure to Director of Public Prosecutions (WA) v Dick [No 5] [2013] WASC 357 (Hall J).
12 Dr Brett's opinion and recommendations dated 3 December 2015 [1].
13 Dr Brett's opinion and recommendations dated 3 December 2015 [6].
14 Dr Brett's opinion and recommendations dated 3 December 2015 [12].
15Director of Public Prosecutions (WA) v Dick [No 5] [2013] WASC 357 [48] (Hall J).
16Director of Public Prosecutions (WA) v Dick [No 5] [2013] WASC 357 [48] (Hall J).
17 Condition 42 in Annexure to Director of Public Prosecutions (WA) v Dick [No 5] [2013] WASC 357 (Hall J).
18The State of Western Australia v Dick [2009] WASC 275 [15].
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