Director of Public Prosecutions (WA) v AMT [No 2]

[2011] WASC 296

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

IN CRIMINAL

CITATION:   DIRECTOR OF PUBLIC PROSECUTIONS (WA) -v- AMT [No 2] [2011] WASC 296

CORAM:   EM HEENAN J

HEARD:   28 JULY & 19 AUGUST 2011

DELIVERED          :   26 OCTOBER 2011

FILE NO/S:   MCS 85 of 2009

BETWEEN:   DIRECTOR OF PUBLIC PROSECUTIONS (WA)

Applicant

AND

AMT
Respondent

Catchwords:

Criminal law - Dangerous sexual offender - First annual review - Recent change resulting in diagnosis of psychological disorder - Possibility of amenability to treatment - Nature and duration of treatment - Prospects for rehabilitation - Remains an unacceptable risk of serious danger to the community - Continuation of detention order

Legislation:

Dangerous Sexual Offenders Act 2006 (WA)

Result:

Application allowed
Continuing detention order not rescinded

Category:    B

Representation:

Counsel:

Applicant:     Ms L E Christian

Respondent:     Ms M R Barone

Solicitors:

Applicant:     Director of Public Prosecutions (WA)

Respondent:     Aboriginal Legal Service (WA)

Case(s) referred to in judgment(s):

[2010] WASC 58

EM HEENAN J: 

1. The offender is currently incarcerated in a detention centre with no facilities for protecting inmates convicted for sexual offences, and there is a reasonable and well‑founded fear that the offender may be subject to unlawful treatment by other inmates if the details of his offending were to be made public.  For this reason, a suppression order was made at the hearing of his application prohibiting publication of the details of these proceedings without further order.

2. After a hearing on 30 November and 1 December 2009 and concluding on 9 February 2010 McKechnie J found the respondent to be a serious danger to the community and, accordingly, ordered that he be detained in custody in a prison for an indefinite term for control, care and treatment under s 17 of the Dangerous Sexual Offenders Act 2006 (WA) (the Act). By that order McKechnie J also directed that the Director of Public Prosecutions should assess and bring an application for review after the respondent completed his sex offender treatment programme. In addition, his Honour directed that the order should be backdated to take effect from 1 December 2009.

3. His Honour's reasons for decision leading to those orders are in [2010] WASC 58. In the course of those reasons McKechnie J observed at [19] and [23] that the respondent had, through no fault of his own, not addressed the cause of his offending because he had not been able to participate in a Sexual Offenders Treatment Programme (SOTP). His Honour went on to observe that, on the basis of the evidence which was presented to the court on that application, the most appropriate treatment course for the respondent would be the Intensive Sexual Offenders Treatment Programme (ISOTP) which is available only in custody and that for various reasons, the fault of which could not be generally attributed to the respondent, he was then considered unsuitable for an ISOTP. That being the case he was not suitable for immediate release under any form of supervision order. No doubt it was these considerations which led his Honour to include in the order the direction, already quoted, that the respondent should be further assessed and that the DPP bring an application for review after the respondent completed an SOTP.

4. Under s 29 of the Act the DPP was obliged to apply to this court for the respondent's detention under the order made on 9 February 2010 to be reviewed as soon as practicable after 1 December 2010.

5. By application dated 12 October 2010 the DPP sought an order that the respondent's detention under the continuing detention order of 9 February 2010 be reviewed as soon as practicable after 8 February 2011 pursuant to s 29 and s 31 of the Act.  As will be seen, the progress of that application has been delayed and extended because of views expressed that the respondent had declined to participate in a SOTP as offered to him.  It turns out that the SOTP being offered at the prison where he was located was unexpectedly cancelled because of problems experienced when another offender attacked a SOTP treatment co‑ordinator.  Later, the only SOTP proposed was not available to the respondent because of his location at the regional prison where he remains. 

6. It was not until some time had passed that it eventually emerged that the reason for the respondent not undergoing a SOTP was because of supervening factors for which he was not responsible.  Therefore, the initial views which had been expressed that he did not need further psychiatric assessment or evaluation before this annual review because he had declined to participate in any SOTP could not be maintained.  This led to a series of adjournments and extensions of the conduct of the review to enable two further independent psychiatric reviews to be performed for the purposes of the review.  It is necessary briefly to state the chronology of what occurred.

7. The application for review was first listed for hearing on 22 October 2010.  On that day McKechnie J ordered that the annual review should be heard on 22 February 2011 but having regard to the reported respondent's circumstances with respect to sex offender treatment (now accepted to be mistaken) no psychiatric examination report was to be prepared for that review.  His Honour further ordered that the DPP should file and serve a report by an appropriate officer from the Department of Corrective Services detailing any matters of relevance with respect to the respondent's care and control or treatment which had arisen since 9 February 2010, such report to be filed and served on or before a date two weeks prior to the date set for the annual review hearing.  His Honour also directed that there be liberty to apply reserved to the parties on 24 hours notice.

8. Another of the factors bearing on the respondent's non‑participation in an ISOTP planned by the Department of Corrective Services for late February 2011 was his declared intention to appeal to the High Court of Australia against the decision of 9 February 2010 declaring him to be a dangerous sexual offender and, in particular, against the validity of the legislation under which that order was made.  It turns out that no appeal against the decision of McKechnie J of 9 February 2010 nor any application for leave to appeal against that decision was ever instituted either before the Court of Appeal or the High Court of Australia but the respondent seems to have held the view that such an appeal was imminent or would be brought by him after further legal advice.  Consequently, in January 2011 he stated to officers of the Department of Corrective Services that he would not do the ISOTP for which he was being programmed for late February 2011 and, ultimately, he signed a programme waiver stating that he did not wish to do that programme because he was appealing against the DSO legislation.  In his programme participation waiver document signed on 15 February 2011 AMT declined to participate in the ISOTP which had been offered to him and gave his reasons as being his intention to go to court 'to argue the DSO Act.  Love to do course but not at this time until all legal acts are finished'. 

9. It is now obvious that the respondent's refusal to participate in that ISOTP was based on a number of misconceptions and that, having had further legal advice, he now has no intention of challenging the validity of the Act or to seek leave to appeal against the decision of McKechnie J of 9 February 2010. 

10. As will emerge it is now accepted by the Department of Corrective Services that for reasons associated with the respondent's most recent psychiatric diagnoses, he is not suitable for participation in the ISOTP programme or in other similar group therapy sessions.  This, and the results of his most recent psychiatric examinations and diagnoses have a bearing on his prospects for further rehabilitation and treatment and have only comparatively recently been appreciated.

11. The annual review then came on for hearing before Jenkins J on 22 February 2011.  On that occasion a number of written materials and reports (which eventually became exhibit 4 at this hearing) were put before the court.  These included the programme participation waiver signed by AMT and reports from the forensic psychologist Dr T Caple of 7 May 2010 and 7 February 2011 together with a letter from the Director of Offenders Services of 7 October 2010 and the Department of Corrective Services individual management plan of 30 August 2010. 

12. As a result of those materials and submissions made on that occasion Jenkins J ordered, on 22 February 2011, that this annual review of detention should be adjourned to a later date to be set; that the order of McKechnie J of 22 October 2010 for the annual review to be determined on the papers without the preparation of a psychiatric report be revoked; that the DPP file a minute of agreed programming orders for the review; and, meanwhile, the continuing detention order be confirmed.  That was followed by orders made by consent by Jenkins J on 28 March 2011 as follows:

    1.The annual review of detention pursuant to s 29 and s 31 of the Act be heard on 30 May 2011.

    2.The CEO arrange for examination and report upon the respondent by Dr Sam Febbo and Dr Mark Hall; such reports to be provided to the applicant on or before 13 May 2011.  In addition to the mandatory requirements contained in s 37(2) of the Act, the psychiatrists are requested to address in their reports any viable treatment or risk management alternatives to the ISOTP in the event that the respondent continues to decline to undertake the ISOTP.

    3.The psychiatrists named in order 2 shall liaise with the Department of Corrective Services as to a management plan (if appropriate) for the respondent.

    4.The Department of Corrective Services is requested to provide a Community Supervision Assessment, and a Treatment Options Report by Dr Tarmala Caple, to the applicant by 18 May 2011.

    5.Pursuant to s 122 of the Criminal Investigations Act 2006 (WA), the psychiatrist may be supplied with and may view any audio visual recordings of interviews with the respondent, or transcripts of the same, for the purpose of preparing the report.

    6.There be liberty to apply, reserved to the parties on 24 hours notice.

13. Those orders were later extended and varied by further orders made by Jenkins J by consent on 20 May 2011 as follows:

    1.Order 1 of 28 March 2011 be varied by amending the date for the annual review of detention to 27 July 2011.

    2.Order 2 of 28 March 2011 be varied by substituting the name 'Dr Peter Wynn Owen' for the name 'Dr Sam Febbo', and the date for reports be amended to 11 July 2011.

    3.Order 4 of 28 March 2011 be varied by amending the date for the Departmental reports to 15 July 2011.

14. So it came about that the first annual review of the respondent's continuing detention order was heard before me on 28 July 2011.  It did not conclude on that day whereupon it was adjourned for further hearing on 19 August 2011.  Oral and documentary evidence was received at that hearing after which I reserved my decision.

15. At this hearing evidence was adduced from two independent psychiatrists who had recently examined or re‑examined AMT namely Dr M Hall and Dr P Wynn Owen.  Oral evidence was also given by Ms S McKenna, the community supervision assessment officer of the Department of Corrective Services, and from Dr T Caple, the forensic psychologist formerly of the Department of Corrective Services.  There was also evidence from Mr Mark Glasson, the Director of Offender Services, and an addendum report by Ms W Wager (exhibits 1(5) and 2).  This evidence included documentary reports or memoranda from each of those witnesses which became exhibits 1(1) to 1(5) together with the other reports in the supplementary book of materials.  The earlier book of materials prepared for the review when it was listed for hearing on 8 February 2011 became exhibit 4, as already noted.  In addition, it was accepted that all the materials in evidence before McKechnie J at the hearing culminating in the orders of 9 February 2010 should also be treated as evidence for consideration on this review.

Respondent's background and history

1. AMT was born on 22 May 1984.  He is now aged 27 years and was first made subject to this continuing detention order on 9 February 2010 but so as to operate from 1 December 2009.  That latter date was the last day of his sentence of imprisonment of 40 months with parole eligibility which had been imposed on 11 April 2007 (but directed to commence from 2 August 2006) following conviction for sexual penetration of a child under 13 years and for indecent dealing with a child under 13 years. 

2. It follows that under those sentences and the continuing detention order AMT has been in custody from 2 August 2006 ‑ a period now exceeding five years.  This also means that he has been in prison continuously since he was 22 years of age. 

3. His criminal record began with two convictions for indecent dealing with a child under the age of 13 years and two convictions for sexual penetration of a child under the age of 13 years in the Carnarvon Children's Court on 6 December 1999 when he was aged 15 years. For those offences he was sentenced to a 12 months intensive youth supervision order. He was again convicted in the Carnarvon Children's Court in May 2000 for stealing but no punishment was imposed in view of s 67 of the Young Offenders Act 1994 (WA). In August 2000 he was convicted of aggravated burglary with intent, again in the Carnarvon Children's Court, and placed on a five months intensive youth supervision order with 20 hours of community work. Then, on 24 July 2001 in the Perth Children's Court he was convicted of one charge of stealing and one charge of indecent dealing with a child under the age of 13 years and for each offence was placed on a 12 month community release order. At the time of that conviction for indecent dealing he was aged 17 years.

4. His first conviction in an adult court was on 14 November 2002 when he was aged 18.  In November 2002 in the District Court of Western Australia in Perth he was convicted of two charges of sexual penetration of a child under the age of 13 years.  On one of these charges he was sentenced to 8 months' immediate imprisonment and on the other to 16 months' immediate imprisonment cumulative, making an aggregate sentence of 2 years.  Then in April 2007 when he was aged 22 years he was convicted of one charge of sexual penetration of a child under the age of 13 years and one charge of indecent dealing with a child under the age of 13 years.  On the former charge he was sentenced to a term of immediate imprisonment of 40 months and on the latter to a term of imprisonment of 16 months concurrent, resulting in an aggregate sentence of 40 months' imprisonment.  It was these sentences which the respondent was serving when the initial application was made by the applicant for a continuing detention order and which resulted in the order made by McKechnie J on 9 February 2010. 

5. This history shows that the respondent has been convicted of two charges of indecent dealing with a child under the age of 13 years and two charges of sexual penetration of a child under the age of 13 years in December 1999; a further count of indecent dealing with a child under the age of 13 years in July 2001; two counts of sexual penetration of a child under the age of 13 years in November 2002; and one charge of indecent dealing with a child under the age of 13 years and one charge of sexual penetration of a child under the age of 13 years in April 2007 ‑ nine such convictions in all.  These have resulted in two periods of imprisonment, the first for two years from 28 August 2002 and the second for 40 months from 2 August 2006.

Psychiatric examinations

1. There is a substantial congruence of opinion between the two psychiatrists, Dr Mark Hall and Dr Peter Wynn Owen, who examined AMT and reported on him afresh for this review hearing.  Significantly, they are now both agreed that there should be a diagnosis of Asperger's Syndrome or Pervasive Development Disorder (PDD) of longstanding duration which had not previously been recognised, or fully recognised, in his many earlier psychiatric and psychological assessments. 

2. This conclusion has implications for his participation in any SOTP by demonstrating that he would not be suitable for participation in any such group programme, such as generally is conducted by the Department of Corrections, and that his presence in any such programme would likely be counterproductive because of his amnesia when it comes to the details of his offending episodes, and his compulsive tendency of denial.  The diagnosis does, however, indicate that different forms of psychotherapy may prove to be effective and the respondent's recent series of psychotherapeutic sessions with Dr Caple have been encouraging in this regard.  They are generally thought, both by the psychiatrists and by Dr Caple, to hold out realistic promise for rehabilitation and improvement to such a degree that, under proper conditions, the respondent may be suitable for conditional release into the community. 

3. However, despite valiant efforts by the respondent's counsel to elicit support from these two psychiatrists and from Dr Caple for the proposition that AMT would be expected to have a better response to psychotherapy in the community, and to be better assessed for rehabilitation if living under conditional release and supervision, I am satisfied that each of the two psychiatrists was of the opinion that that time had not yet come.  Dr Caple was also of the opinion that more psychotherapy and a greater demonstration of improvement would be needed before AMT could realistically be considered for supervised release.  However, it is clear from her evidence, taken as a whole, that she is of the view that, with continued psychotherapy and other treatment within the prison, taking into account the now established diagnosis of Asperger's Syndrome or PDD, the prospects for such rehabilitation and improvement are real and should constantly be kept in mind. 

4. Nevertheless, because the two psychiatrists each considered that AMT presented as a substantial risk to the community and that conditional supervised release was not yet appropriate, I am satisfied that the present continuing indefinite detention order should stand but that at any further review the respondent's suitability for continuing conditional release into the community under a supervision order should be carefully reconsidered. 

5. I shall set out below the main portions of the evidence of the three witnesses which lead me to these conclusions but, before doing so, I shall mention, without detailing, the extensive other evidence about the nature and existence of accommodation in metropolitan or regional areas which might be considered suitable for the respondent if he were to be made subject to a conditional supervised release order.  Details of potential addresses at which he might be located are contained in the reports but are not disclosed here and were not publicly disclosed at the hearing for the usual reasons.  It is enough to say that while several locations were identified as being possibly suitable for the accommodation of AMT there were obvious problems in that this accommodation was only available on a relatively short term basis and, in each case, was in a locality in which one could expect that there would inevitably be frequent encounters with young children.  This problem was exacerbated by AMT's lack of any significant vocational training or qualification or any significant employment history.  Nor was there reason for hope for family assistance or guidance or for any network of friendships or support because, sadly, the respondent has for a long time been isolated and bereft of family or community support.  These are not insurmountable obstacles to a satisfactory placement in the community under a conditional supervised release programme but they are factors which mean that it is likely to be difficult for AMT to make the transition into a satisfactory living regime in the community at least until his rehabilitation has further progressed and a greater degree of confidence can be entertained about his ability to control his past deviant behaviour.

1. The respondent's background which emerges from the various accounts of his family and upbringing is a sad one.  He was born in Victoria in 1984 of an Aboriginal mother and a Caucasian father.  He is one of four children of his parents and the elder of two boys, with two older half‑sisters.  His parents separated when he was young and he then lived with his father in Victoria as a small boy.  However, that did not last and he has not had any contact with his father since he was aged 10.  Otherwise he lived with his mother as a child but this was difficult in view of his mother's psychological problems, her relationship with abusive men who also abused him and because of his own disruptive behaviour.

2. When a young child the respondent was diagnosed with Attention Deficit Hyperactivity Disorder and was placed on medication for this but with mixed results.  He was also assessed to have mild intellectual disability and was placed in special educational classes.  Subsequent psychological testing has led to the conclusion that the diagnosis of mild intellectual disability was unjustified and that the respondent is of average intelligence with strengths in some areas but weakness in others especially with regard to memory and recall.  At the age of 12 years in 1996 the respondent was made a ward of the State.  He was placed in long‑term foster placement which, for a while, resulted in stability for his lifestyle and education.  This ended in 1999 as a result of him committing offences against a young relative of the foster carers (the 1999 offences).  After that he returned to live with his mother in the Carnarvon area and remained living with her until his imprisonment in 2002. 

3. As previously noted the first of the respondent's convictions for sexual offences occurred in 1999.  They were convictions for digital sexual penetration of a child under the age of 13 and two counts of indecent dealing with a child under the age of 13.  The victim was a young girl, aged 7 years, who was related to the respondent's foster carers.  The second indecent dealing was committed against a baby about 3 months old and involved touching the young child when interrupted by other adults.  These offences resulted in the 12 month intensive supervision order already mentioned.

4. The convictions in 2001 involved indecent dealing with a child under the age of 13.  This was a 5‑year‑old girl unknown to the respondent.  He approached her in a park and, whilst unobserved, befriended her.  He put his hands under her clothing and touched on the lower abdominal area.  He stopped this when other children approached.  For this offence he was placed on the 12 month youth conditional release order.

5. The convictions in the District Court in November 2002 involved one count of attempted digital penetration of a child under the age of 13 years and one of digital penetration of a child under the age of 13.  The two victims were unrelated.  The victim of the attempted offence was the respondent's young niece.  The other victim was a 5‑year‑old girl visiting AMT's friends' home where he was at the time.  For these offences he received an aggregate of 2 years' imprisonment with eligibility for parole and he was granted parole on 3 November 2003.

6. The last offences were committed in 2006 some 2 1/2 to 3 years after his release on parole.  At that time the respondent had been living in Wanneroo with his mother, brother, sister, niece and nephew for a few months.  The offences consisted of the respondent touching his 5‑year‑old nephew's penis and putting his finger in his bottom.  The respondent readily admitted the offences when confronted by the child's mother but later in the course of a police interview claimed to have no recollection of either the offending or his previous admission.

7. His prior psychiatric history is described by Dr Hall as follows:

   [AMT] was diagnosed with attention deficit hyperactivity disorder at the age of 6 by a paediatrician, and was prescribed dexamphetamine.  The medication, however, caused hyperactivity and insomnia and was stopped when [AMT] was aged 16.

   Records indicate that [AMT] attempted suicide in 2002 at the Joondalup Justice Complex.  However, during the current assessment he said that he had simply been trying to take off a polo short without having undone the buttons.  It was noted that [AMT's] account was identical to that documented in 2002.

   [AMT] had psychometric testing at the age of 12 that indicated that he was in the intellectually disabled range.  When retested in 1999, he fell into the borderline range.  However, he underwent further testing in the past year that indicated an IQ of 102, within the normal range.

   A psychiatrist assessed [AMT] for sentencing purposes in 2002.  During that assessment [AMT] had impressed as brash and impersonal and exhibited childlike, immature reasoning.  The psychiatrist suspected borderline intellectual functioning and diagnosed antisocial personality disorder and paedophilia.

8. In making his psychiatric diagnosis Dr Hall noted that the respondent had the clinical disorders of paedophilia (same and opposite sex, non‑exclusive type ‑ sexually attracted to both adults and children) and alcohol dependence, albeit in remission while in custody.  He also made a finding of a personality disorder, being Asperger's Syndrome, and noted the following psychological and environmental problems:

   •severe neglect, deprivation and abuse in childhood;

   •rejection and abandonment by both parents;

   •possible childhood sexual abuse;

   •wardship;

   •imprisonment;

   •estrangement from family;

   •no social supports.  

9. With regard to global assessment of functioning (GAF) Dr Hall put his score at 60 on a scale from 0 to 100 indicating moderate difficulty in functioning.  Dr Hall regarded the respondent's clinical presentation as being consistent with Asperger's Syndrome which is one of the pervasive development disorders related to autism.  The condition is lifelong and the cause is unknown.  The core characteristics are significant difficulty with social interaction along with a restricted repertoire or repeated pattern of interests, behaviours or activities.  The condition differs from autism in that language delay and significant cognitive impairment are generally absent, with the frequent exception of executive dysfunction.

10. In summary Dr Hall considered that the respondent was currently at a high risk of re‑offending sexually if not subject to a community supervision order or to a continuing detention order, the essence of his risk lying in:

    •his previous history of sexual offending;

    •paedophilia into which he has no insight as yet;

    •unaddressed sexual offending treatment needs;

    •alcoholism (although latent in the custodial setting) as a coping mechanism;

    •a lack of personal support;

    •the chronic, lifelong nature of Asperger's Syndrome and associated problems with empathy, socio‑emotional understanding and impulse control.

11. Dr Hall was of the opinion that if an order for continuing detention was made or continued the respondent should be reassessed for his suitability for either an ISOTP or SOTP for persons with disability in the context of his previously undiagnosed Asperger's Disorder and his deficits in executive functioning.

12. Dr Peter Wynn Owen reached a conclusion and a diagnosis remarkably similar to that of Dr Hall.  He offered a differential diagnosis of PDD and Asperger's Disorder based on qualitative impairment in social interaction, restricted and stereotyped patterns of behaviour, interests and activities and the disturbance causing clinically significant impairment in social, occupational or other important areas of functioning.  In light of Dr Hall's similar opinion, Dr Wynn Owen confirmed in his oral evidence that the diagnosis of PDD should now be regarded as established without the need for further review or confirmation.

13. Dr Wynn Owen was of the opinion that the respondent's re‑offending risk is unchanged following his recent period of detention and that it remains high if he has contact with children.  The risk is particularly high if he has contact with children with whom he is in a position of trust or with whom he has established a relationship, but still high with children who are strangers to him.  As this is the case, avoidance of contact with children is currently the best risk management strategy.

14. With regard to future therapeutic approaches and prospects Dr Caple wrote:

    With regards to the development of an alternative intervention plan for [AMT], the psychiatric diagnosis made by Dr Hall during his recent evaluation of [AMT] has a significant bearing on the type of intervention and likely prognosis.  Dr Hall's diagnosis of Asperger's Syndrome provides an opportunity for understanding the basis of [AMT's] low level of psychological mindedness and his low treatment readiness.  Asperger's Syndrome is a lifelong neurodevelopmental disorder that is characterised by significant impairments in reciprocal social interaction, subtle communication difficulties, and restricted interests.  Many of the behavioural difficulties that present due to these factors can easily be mistaken for stubbornness or wilfulness, which appears to be the case with.  A common feature of Asperger's Syndrome is Alaxithymia, which is a clinical condition characterised by difficulty describing feelings and distinguishing feelings from bodily sensations.  This results in problems experiencing and expressing emotions.  Characteristics of these conditions are also likely to be significant factors that directly and indirectly contribute to [AMT] engaging in sexual offending.

    The prognosis for any psychological intervention with [AMT] is that it will need to be intensive, multi‑facetted and long term.

15. Dr Caple went on to describe two phases or stages in psychotherapeutic intervention for AMT and acknowledged that the treatment which he had undergone so far could be regarded, generally speaking, as bringing him to the end of the first stage.  Next, as she said:

    From there, the second stage of intervention will be to develop [AMT's] capacity to understand his emotions and inner experiences.  This is important because [AMT] will need to learn to reflect on his inner processes so that he can gain a better understanding of the factors that contribute to his risk of re‑offending.  If an individual does not recognise and accept that certain feelings, thoughts and behaviours are functionally related to their offending behaviour, they are less likely to possess the required knowledge and motivation necessary to self‑manage risk factors.

16. Dr Caple described her conclusion as follows:

    [AMT] is a young man with considerable intervention needs who has not made observable gains with the psychological intervention provided to him over the past 12 months.  An individually tailored approach to intervention has been proposed due to the presence of Asperger's Syndrome which is a complex and enduring clinical condition.  This diagnosis is an important consideration that assists in clarifying [AMT's] limited treatment gains to date and his low level of treatment readiness.  At the same time this condition also highlight(s) the need for a long term, staged intervention plan that is designed to progressively address a range of factors that impact on [AMT's] risk of re‑offending.  The first and second stage of this intervention pathway, that being psycho‑education and emotional literacy skills, will be the priority over the next 12 months.  His progress to further stages of intervention will be dependent upon his capacity to develop the required skills in these two stages.

17. I accept the opinions of Dr Hall, Dr Wynn Owen and Dr Caple and I consider that their conclusions are well based.  Their evidence, particularly the acceptance of the diagnosis of Asperger's Syndrome and PDD, is significant in revealing that earlier assessments of the respondent and the choice of therapies and management programmes were, given the difficulty of diagnosis, misplaced.  It is now acknowledged that different approaches should be attempted and that although the SOTP would be beneficial, it would need to be tailored to his particular conditions and not conducted in a group setting.  Similarly, a different style of psychotherapeutic intervention will need to be devised and pursued.  It is likely to take something in the vicinity of 12 months to determine whether these new approaches are successful and beneficial although the period may be shorter or longer than that.  What seems to be realised now is that the magnitude of the respondent's personal difficulties had not been fully appreciated previously, but in the light of this new diagnosis there is greater hope for successful treatment and progress.  It remains the fact, however, that there has not been much progress over the last 12 months and that both psychiatrists continue to consider that AMT remains a serious danger to the community if not subject to a continuing detention order or to a supervision order in that he has a high risk of committing a serious sexual offence.

18. The three clinicians each acknowledge that there is reason to hope that with successful treatment and the passage of time a stage will be reached where the respondent could be released into the community subject to a continuing supervision order on suitably designed conditions but that further progress and response to a redesigned series of treatment regimes would be necessary before that stage could be reached.

19. Accordingly, while there is hope that, in the not too distant future, AMT may, if he perseveres with treatment, be suitable for release under a conditional release order, that time has not yet arrived.  It follows that his indefinite continuing detention order should stand and not be rescinded and that his progress can be re‑examined at a future review whether under s 29 or s 31 of the Act.