Director of Public Prosecutions (WA) v Byron [No 4]

[2011] WASC 199

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

IN CRIMINAL

CITATION:   DIRECTOR OF PUBLIC PROSECUTIONS (WA) -v- BYRON [No 4] [2011] WASC 199

CORAM:   McKECHNIE J

HEARD:   30 JUNE 2011

DELIVERED          :   16 AUGUST 2011

FILE NO/S:   MCS 5 of 2007

BETWEEN:   DIRECTOR OF PUBLIC PROSECUTIONS (WA)

Applicant

AND

NEVIL BADEN BYRON
Respondent

Catchwords:

Dangerous sexual offenders - Supervision order subject to condition for anti­libidinal treatment - Offender willing to take medication

Legislation:

Dangerous Sexual Offenders Act 2006 (WA)

Result:

Supervision order activated

Category:    B

Representation:

Counsel:

Applicant:     Mr R Wilson

Respondent:     Ms R M Parks

Solicitors:

Applicant:     Director of Public Prosecutions (WA)

Respondent:     Edward John Myers

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

Director of Public Prosecutions (WA) v Byron [No 3] [2010] WASC 156

Sparks v Bellotti [1981] WAR 65

The State of Western Australia v Narrier [2010] WASC 57

McKECHNIE J: 

The story so far

1. Mr Byron is a dangerous sexual offender.  He was so declared by Blaxell J on 31 July 2007 and a continuing detention order was made.

2. On 8 August 2008, at the first annual review, I made a supervision order if Mr Byron commenced anti‑libidinal treatment.  I said:

   I have no power to order any person to undertake treatment. Certainly I have no power to order the respondent to take anti-libidinal treatment. That is a choice for him as an adult to make; it is his body, and he may make the choice. Nor do I regard an order like this as putting undue pressure on him. No doubt it is a factor for him to consider, along with other factors, including his own personal health [11].

3. Mr Byron did not agree to take anti‑libidinal treatment.  The next review did not finally conclude until 25 June 2010, Director of Public Prosecutions (WA) v Byron [No 3] [2010] WASC 156:

   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 [22] ‑ [23].

4. On 26 October 2010, Mr Byron had a long discussion with a senior Corrective Services doctor, Dr Fitzclarence, during which she outlined the drug Androcur and explained some of the side effects.  Androcur or Cyproterone acetate is not licensed in Australia for use directly as an anti‑libidinal medication.

5. In February 2011, Mr Byron commenced a course of Androcur.  He said that he did not wish to take the medication but the court had directed that he had to have it if he was ever to be considered for release.  He was informed that he was not receiving the medication for a medical reason but in order to promote chemical castration.  He was made aware of various side effects. 

6. On 6 May, Mr Byron was diagnosed with diabetes.  His other medical conditions - including chronic obstructive airways disease, high blood pressure, obesity and high cholesterol - are problems which Androcur will or may exacerbate.  Dr Fitzclarence also noted Mr Byron's reports of increased irritability, impatience, fatigue and increased emotional lability, which are consistent with reported side effects of Androcur.

7. Against her better judgment, Dr Fitzclarence agreed to allow Mr Byron to continue Androcur on a low dose.  She would not be prepared to increase the dose. 

8. The course of Androcur so far has reduced Mr Byron's testosterone levels significantly from 8.9 to 1.2.  They are unlikely to go lower on the present dose.

The DPP's application

1. The DPP applies for:

   An order that the respondent's detention, under the continuing detention order made by His Honour Justice Blaxell on 31 July 2007, and as not rescinded by His Honour Justice McKechnie on 8 August 2008, nor on 25 June 2010, (in each case due to the condition precedent for a supervision order having not been met) be reviewed on a date to be fixed on or after 27 June 2010, pursuant to s.29 and s.31 Dangerous Sexual Offenders Act 2006, or on an earlier date upon the application of the Respondent pursuant to s.30 Dangerous Sexual Offenders Act 2006, or such other appropriate order as the Court thinks fit.

2. In written submissions the DPP submitted:

   6.The applicant submits that given the respondent is likely undertaking anti‑libidinal treatment involuntarily, and that this anti‑libidinal treatment is, potentially, a significant risk to the respondent's health, that there are now new circumstances which make it appropriate that the orders made on 8 August 2008 and on 25 June 2010 concerning the possible release of the respondent on anti‑libidinal treatment be recalled.

   7.Accordingly, the applicant applies for an order that the orders made on 8 August 2008 and on 25 June 2010 concerning possible release on anti‑libidinal treatment be recalled.

3. Mr Byron's precise legal status since the orders of 8 August 2008 and 25 July 2010 is susceptible of different views.  The interpretation I favour is that my orders rescinded the detention order and replaced it with a supervision order once the pre‑conditions were met.  The essential pre‑condition was that Mr Byron commence a course of anti‑libidinal medication before release.  Until he did so, the supervision order remained unperfected.  He has now met the essential pre‑condition.  Other conditions such as accommodation have also been fulfilled.

4. The alternative view, that the detention order is not rescinded until I make this supervision order, also has much to commend it.

5. In the end though, the result is the same.

Is there power to recall a supervision order?

1. At the commencement of the hearing, Ms Parks challenged the power to recall the orders.  In response, Mr Wilson submitted that there was an inherent power arguing by analogy the inherent power exercised by Murray J in The State of Western Australia v Narrier [2010] WASC 57. In Narrier the question was whether there was power to issue a summons compelling the respondent to attend court to answer an allegation of a breach or contravention of a supervision order.  Murray J held that there was no express statutory power that the court had inherent power to make the procedural orders.  He held that there was such a power because of the power to adjourn proceedings.  After considering a number of authorities he concluded:

   I consider that the power to summons the respondent, which I have exercised in this case, and the alternative power to commit the respondent to custody, to be held pending the resumption of the proceedings, are not powers assumed as inherent powers to enlarge the statutory jurisdiction to deal with alleged breaches of the supervision order, but are powers necessarily implicit in the conferral of the statutory jurisdiction so that it may be effectively exercised [24].

2. The power exercised by the court under the Dangerous Sexual Offenders Act 2006 (WA) is entirely statutory. A grant of power carries with it power to do all things reasonably necessary to do or enforce the order: Interpretation Act 1984 (WA) s 50(1).  See also Sparks v Bellotti [1981] WAR 65.

3. Any incidental power must be seen in context.  A supervision order may be amended (s 20) or altered to a detention order (s 23).  Faced with an express power to be exercised only after the court is satisfied as to the matters under s 20(1) or s 23(1), it is hard to see any reason for an incidental power capable of replacing a supervision order with a detention order.  However, it is unnecessary to determine this issue.  In the present case, the supervision order has not been perfected because one of the conditions has not been met, namely condition 13:  to undertake continual biological treatment for paraphilias.  Until that condition is perfected, the warrant of commitment issued in 2007 pursuant to Blaxell J's order remains the source of power for Mr Byron's continuing detention.

4. Because the order has not been perfected, I hold that there is power to reconsider the making of the order.  This is not the occasion to list exhaustively the factors that might lead to a reconsideration, but one such factor might be a change of circumstances between the time that the order was expressed and the time that the conditions were to be satisfied.  This is the basis upon which the DPP ultimately asserts that the court has power to recall its earlier order.

Is there a change of circumstances?

1. Without objection, I received into evidence a book of written exhibits, and also took evidence from Dr Fitzclarence who provided a report dated 9 May 2011 (exhibit 1).  Her evidence amplified that report and she was cross‑examined briefly.  I found her evidence very helpful. 

2. I do not consider that there is any adverse change to the circumstances.  There has certainly been a change.  Mr Byron is now continuously undertaking a course of Androcur.  The DPP asserts that the change is that he is doing so involuntarily.  This is not a submission made by Mr Byron.  He is certainly participating unwillingly in the treatment.  But he is participating, having weighed the medical risks against the possibility of becoming an acceptable risk to be considered suitable for supervision within the community.

3. The State's submissions, with great respect, are odd.  Mr Byron was to be released on a supervision order if he took the medication.  He is now taking the medication with considerable affect to his testosterone levels.  He is aware of the potential risks to his health.  'Aah!' says the State, 'but although he is taking Androcur, he really does not want to and his health may suffer.  Better cancel the supervision order and let him stay locked up.  Possibly one day in the future he may be sufficiently changed to justify release'.  This is not a submission that appeals to me.  Dr Fitzclarence said that with the present dose of 50 mg Cyproterone, the potential risk is moderate and it can be monitored.

4. There does not appear to have been an adverse change in circumstances over the last two years.  Mr Byron has made limited change from various sex offender's courses, properly described as incremental.  But as Dr Yewers has noted in her report (exhibit 3):

   Mr Byron was however able to progress through his issues around pharmalogical treatment and ultimately made the decision to take the anti‑libidinal medication.

5. The matters raised by the State do not amount to a change of circumstances sufficient to recall the order.  On the contrary, the circumstances have changed in the sense that he is now on anti‑libidinal medication and his testosterone level has suffered a significant drop.

6. Dr Fitzclarence advises that his continuation on the medication under a supervision order is possible as hormone levels can be monitored and if they rise, action can be taken. 

7. For these reasons, I dismiss the application made by the DPP on 18 May 2011.

8. Subject to satisfactory resolution of the issue of a medical practitioner to prescribe and monitor the treatment, I am prepared to release Mr Byron on strict supervision for a period of seven years.  As nearly two years have passed since the original supervision order, I will give the parties the opportunity to make submissions as to proposed terms.