Director of Public Prosecutions (WA) v Byron [No 3]
[2010] WASC 156
•25 JUNE 2010
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL
CITATION: DIRECTOR OF PUBLIC PROSECUTIONS (WA) -v- BYRON [No 3] [2010] WASC 156
CORAM: McKECHNIE J
HEARD: 6 OCTOBER 2009, 19 MARCH 2010 & 12 MAY 2010
DELIVERED : 25 JUNE 2010
FILE NO/S: MCS 5 of 2007
BETWEEN: DIRECTOR OF PUBLIC PROSECUTIONS (WA)
Applicant
AND
NEVIL BADEN BYRON
Respondent
Catchwords:
Criminal law and procedure - Dangerous sexual offender - Whether supervision order appropriate - Whether a condition for anti-libidinal medication necessary
Legislation:
Dangerous Sexual Offenders Act 2006 (WA), s 33
Result:
Supervision order with conditions
Category: B
Representation:
Counsel:
Applicant: Mr D Dempster
Respondent: Ms R M Parks
Solicitors:
Applicant: Director of Public Prosecutions (WA)
Respondent: Edward John Myers
Case(s) referred to in judgment(s):
State of Western Australia v Byron [2007] WASC 171
The State of Western Australia v Byron (No 2) [2008] WASC 175
McKECHNIE J: The hearing of the second annual review under the Dangerous Sexual Offenders Act 2006 (WA) was due in August 2009 but unavoidably delayed until May 2010 because Dr Wojnarowska, the psychiatrist appointed by the court to conduct a review, identified the need for a neuropsychological assessment report. That report was not completed until February 2010.
Thereafter the respondent indicated that Dr Pascu would be approached to give a report. In the event it was not until 12 May 2010 that all parties were ready for a hearing. As an unfortunate consequence, the next annual review will take place hard on the heels of this review.
The position so far
On 31 July 2007 Blaxell J declared that the respondent was a serious danger to the community and made a continuing detention order: State of Western Australia v Byron [2007] WASC 171. The respondent's offending history is set out in that decision. Dr Wojnarowska and Dr Wynn‑Owen provided reports that confirmed the respondent was at high risk of reoffending and recommended that he remain in detention at least until he had completed an Intensive Sex Offenders Treatment Programme (ISOTP).
The first annual review was on 8 August 2008: The State of Western Australia v Byron (No 2) [2008] WASC 175. At that review I noted that there had been changes. The respondent had completed the ISOTP and Dr Wojnarowska noted a shift in his attitude which I described as incremental rather than dramatic.
On that occasion I accepted Dr Wojnarowska's evidence that the respondent remains at high risk due to his inadequate personality structure, limited ability to reflect and on the presence of sexual deviance and that his level of risk is not likely to shift significantly with further treatment.
The State proposed that the respondent could be considered for a supervision order if he complied with the conditions of a supervision order including Item 13:
Undertake continual biological treatment for paraphilias (sexual deviancy).
I did not then and do not now think I have power to order any person to undertake anti‑libidinal treatment, that being a matter for the respondent. As the respondent was unwilling to accept that treatment he has remained in custody.
The evidence related to this review
Dr Wojnarowska was appointed to review the respondent and has submitted two reports dated 9 September 2009 and 7 March 2010. In her September report Dr Wojnarowska noted concerns with the respondent's cognitive functioning which signified an increase in his risk of offending. The reasons for this apparent deterioration required further explanation specifically as to any organic cause. The respondent was assessed by a clinical neuropsychologist who provided a report on 8 February 2010. The summary of Ms Vidivich's report is:
Inspection of his neuropsychological profile reveals performances generally of a low average to average quality, with somewhat stronger, and indeed, some of his best results upon memory measures. The only area of identified weakness was upon tasks requiring higher‑level attentional skills (eg working memory, selective attention). Aside from this area of inefficiency, his profile appears commensurate with expectation in the context of his educational and occupational background.
…
[A]t this stage there is no indication of any dementia process and in the context of his intact performances he would also not meet criteria for mild cognitive impairment.
With that information Dr Wojnarowska produced her second, March 2010, report. In the absence of pharmacological intervention Dr Wojnarowska concluded:
Given however that no treatment gains have been achieved since the last review Mr Byron's risk of re‑offending continues to be unacceptably high for him to be released to the community.
Dr Wojnarowska's opinion was that anger is one of the factors in the respondent's offending, however, his sexual preference and sexual fantasies play a significant if not the most important role. She perceived the most important matter in terms of risk assessment is the respondent's continual denial of any sexual connotation in his offending. In cross‑examination she amplified her view about risk (ts 106):
I don't see Mr Byron as different today in terms of his risk like he was a year or two years ago.
That opinion was based in part on a report by a forensic psychologist, Ms Hobbs of 16 April 2009 following the completion of the ISOTP. The respondent had also engaged with the Dangerous Sexual Offender psychologist between May and July 2009. Ms Hobbs concluded that in order to adequately manage his risk, the respondent needs to gain insight into his offending behaviour, develop a self‑management plan to manage high risk situations and to establish a support network (personal and professional); that he has expressed a willingness to engage in further treatment and that this treatment is likely to be best addressed through specialised individual counselling with an experienced psychologist addressing his discrete needs.
The issue of anti‑libidinal medication
This seems to be the real issue. The respondent refuses to contemplate anti‑libidinal medication for reasons which are sufficient to him. So the question is whether he can be released into the community without anti‑libidinal medication? The paramount consideration is the need to ensure adequate protection of the community.
I have set out the substance of Dr Wojnarowska's opinion which I accept.
Dr Pascu, another very experienced psychiatrist, examined the respondent in 2009, produced a more recent report dated 23 March 2010 and also gave evidence. Her clinical diagnosis is of anti‑social or dis‑social personality disorder and paedophilia, mental and behaviour disorder due to alcohol abuse ‑ abstinent in custody. In her view the respondent's refusal to give consent for biological intervention should not stop psychological aspects of treatment. The lack of any features from the neuropsychological assessment suggesting a dementia process or cognitive impairment suggests that the respondent can participate in psychological intervention. In Dr Pascu's view the respondent could be offered a comprehensive package to manage and further reduce his risk in the community, pointing out that studies highlight the benefits of offenders receiving comprehensive treatment in the community rather than in custody with those in the community showing more genuine willingness to participate in treatment programmes.
In relation to anti‑libidinal medication, Dr Pascu considers these should not be considered as the main treatment because his offending appears to be driven by his personality style, substance use and anger. So she is not convinced that anti‑libidinal treatment would be the first and best approach to his treatment. Dr Pascu considered that the respondent has made a little shift in terms of insight illustrated by his willingness to comply with the conditions and various psychological interventions. As far as the dynamic factors were concerned Dr Pascu considers that the little shift means, in her opinion, the respondent's risk would be considered moderate. Anti‑libidinal medications are very good but need to be considered as an adjunct to psychological treatment. Although a combination of anti‑libidinal treatment and psychological treatment would be her first choice, if a person does not give consent for the combination she would be happy if they were committed to a comprehensive psychological treatment which may at a later date change their mind in accepting the anti‑libidinal treatment. Dr Pascu noted that anti‑libidinal treatment does not necessarily change sexual drive in every person. She, like Dr Wojnarowska, noted with concern the fact that the respondent does not acknowledge the sexual nature of his offending. Dr Pascu considered that the respondent's refusal to take anti‑libidinal treatment is not totally unreasonable but the respondent continues to have some exaggerated feeling that somehow the medication would kill him.
Conclusions
Both Dr Wojnarowska and Dr Pascu are experienced psychiatrists who have given evidence in relation to a number of dangerous sexual offenders. I accept their qualifications and their evidence. It seems to me that such differences as there are between their evidence are more a matter of emphasis. Dr Wojnarowska regards the offender's risk as unacceptably high and the only way it can be reduced at this stage is a combination of very intensive counselling together with anti‑libidinal medication.
Dr Pascu agrees that the ideal would be that combination, but as the respondent will not undergo anti‑libidinal therapy, his condition can be sufficiently managed with intensive counselling. She regards his risk as moderate in view of the small shifts that he has made and other dynamic factors such as his age. Both psychiatrists agree that the continuing denial of a sexual element in his offending is a concern.
I think Dr Pascu's view is a very practical one in light of the respondent's continuing refusal to take anti‑libidinal medication.
On behalf of the respondent Ms Parks submitted that he had come a long way in terms of his insight. I accept that he has made changes over the years and they are continuing. It was those changes, in part, that caused me to make a supervision order on the last occasion. Ms Parks' submission is that it is enough of a change that, with all the other conditions, the community can be protected. She submitted that he should be given the chance to prove himself.
My response to that submission then and still is that if that were the question I would unhesitatingly answer 'yes'. However, the Dangerous Sexual Offenders Act s 33(3) provides that the paramount consideration is the need to ensure adequate protection of the community.
I am prepared to accept as a general statement that intensive counselling within the community may be more effective than within prison, at least for some people. I have no way of telling whether this is so for the respondent. I also acknowledge that there are many stringent conditions in the supervision order.
However, although there have been shifts, the respondent has not shifted sufficiently in his insight as to his offending behaviour. Therefore release without the probable extra protection of antiandrogen medication, in addition to psychological counselling, cannot be justified. The respondent is changing, albeit very slowly, but his continuing denial of the sexual aspect of his offending is a major hurdle to any confidence that the community may be sufficiently protected if Condition 13 was removed from the supervision order.
I find that the respondent remains a serious danger to the community. As the respondent declines to take anti‑libidinal medication there is no point in continuing the supervision order. However, reimposing a continuing detention order does not appear to be possible under the Dangerous Sexual Offenders Act s 33. The supervision order made at the first annual review therefore will continue. The decision whether to take it up remains that of the respondent. I order that the respondent may be released on conditions for supervision in the same terms as I pronounced at the last review.
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