Director of Public Prosecutions (WA) v Lyddieth

[2012] WASC 246

DIRECTOR OF PUBLIC PROSECUTIONS (WA) -v- LYDDIETH [2012] WASC 246

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2012] WASC 246
Case No:	DSO:1/2012	Heard:	5 - 6 JUNE 2012
Coram:	HALL J	Delivered:	6/07/12
No of pages:	34	Judgment Part:	1 of 1
Result:	Indefinite detention order made
Category:	B
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Parties:	DIRECTOR OF PUBLIC PROSECUTIONS (WA) DENNIS JOHN LYDDIETH
Catchwords:	Criminal law Dangerous Sexual Offenders Act 2006 (WA) Application for indefinite detention Whether unacceptable risk of committing further serious sexual offences Whether serious danger to the community Whether indefinite detention order or supervision order appropriate
Legislation:	Dangerous Sexual Offenders Act 2006 (WA), s 7, s 17
Case References:	DPP (WA) v Decke [2009] WASC 312 DPP (WA) v GTR [2008] WASCA 187 DPP (WA) v Williams [2007] WASCA 206 The State of Western Australia v Latimer [2006] WASC 235

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

IN CRIMINAL

CITATION : DIRECTOR OF PUBLIC PROSECUTIONS (WA) -v- LYDDIETH [2012] WASC 246 CORAM : HALL J HEARD : 5 - 6 JUNE 2012 DELIVERED : 6 JULY 2012 FILE NO/S : DSO 1 of 2012 BETWEEN : DIRECTOR OF PUBLIC PROSECUTIONS (WA)

Applicant

AND

DENNIS JOHN LYDDIETH
Respondent

Catchwords:

Criminal law - Dangerous Sexual Offenders Act 2006 (WA) - Application for indefinite detention - Whether unacceptable risk of committing further serious sexual offences - Whether serious danger to the community - Whether indefinite detention order or supervision order appropriate

Legislation:

Dangerous Sexual Offenders Act 2006 (WA), s 7, s 17

Result:

Indefinite detention order made

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Category: B

Representation:

Counsel:

Applicant : Mr A L Troy
Respondent : Ms M R Barone

Solicitors:

Applicant : Director of Public Prosecutions (WA)
Respondent : Barone Criminal Lawyers

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

DPP (WA) v Decke [2009] WASC 312
DPP (WA) v GTR [2008] WASCA 187
DPP (WA) v Williams [2007] WASCA 206
The State of Western Australia v Latimer [2006] WASC 235


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HALL J:

Introduction

1 Between 13 November 1987 and 22 September 1991, Dennis John Lyddieth committed a series of offences, predominantly of a sexual nature. These offences involved targeting women who were alone in their homes at night, breaking into the premises and raping or indecently assaulting the women at knifepoint.

2 For these offences he was sentenced on 1 May 1992 to a total effective sentence of 19 years and 1 month's imprisonment. He was released on parole on 3 January 2002. However, he committed further offences in March and June 2002. In consequence, he was sentenced to an additional 12 months' imprisonment and his parole was cancelled.

3 Mr Lyddieth was due for release on 18 June 2012, but prior to that date the Director of Public Prosecutions (DPP) applied for an order that he be detained in custody for an indefinite term for control, care and treatment pursuant to s 17(1) Dangerous Sexual Offenders Act 2006 (WA) (the Act). Such an order can only be made if the court finds that Mr Lyddieth is a serious danger to the community. Where the court finds that an offender is a serious danger to the community it must either order that the offender be detained for an indefinite term or make a supervision order permitting the offender to be released into the community subject to specified conditions.

4 The issues for determination in this case are:

1. Is Mr Lyddieth a serious danger to the community? and

2. if so, is the appropriate order one of indefinite detention or release into the community on a supervision order.

5 Mr Lyddieth does not accept that he is a serious danger to the community or that orders under s 17 of the Act are open. However, on his behalf it is submitted that in the event that the court is of the view that he is a serious danger to the community, the appropriate outcome is a supervision order and not an indefinite detention order. It is submitted that given the passage of time and Mr Lyddieth's present age it is open to conclude that his risk of committing further serious sexual offences has declined. It is also submitted that the past offending formed an identifiable pattern and that this would make it easier to manage
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Mr Lyddieth in the community and reduce, to an acceptable level, any risk of him committing further serious sexual offences.

6 For the reasons that follow, I have come to the conclusion that Mr Lyddieth is a serious danger to the community. I have also concluded that there are no conditions that could be imposed that would adequately reduce the risk that he would commit further serious sexual offences if he were to be released into the community on a supervision order. In these circumstances, the need to ensure adequate community protection requires that an indefinite detention order be made.

The law

7 Section 17 of the Act provides:

Division 2 orders

(1) If the court hearing an application for a Division 2 order finds that the offender is a serious danger to the community, the court may -


(a) order that the offender be detained in custody for an indefinite term for control, care, or treatment; or

(b) order that at all times during the period stated in the order when the offender is not in custody the offender be subject to conditions that the court considers appropriate and states in the order.


(2) In deciding whether to make an order under subsection (1)(a) or (b), the paramount consideration is to be the need to ensure adequate protection of the community.

8 Section 7(1) of the Act states that before the court can find that a person is a serious danger to the community, it must be satisfied that there is an unacceptable risk that if the person were not subject to a continuing detention order or a supervision order then the person would commit a serious sexual offence. If the court is satisfied that there is an unacceptable risk of the kind described in s 7(1) of the Act it necessarily follows that the person concerned is a serious danger to the community: DPP (WA) v Williams [2007] WASCA 206 [66] (Wheeler JA) and DPP (WA) v GTR [2008] WASCA 187 [21] (Steytler P and Buss JA)

9 Section 7(2) provides that the DPP has the onus of satisfying the court that a person is a serious danger to the community. The court has to be satisfied by acceptable and cogent evidence and to a high degree of probability. This is a standard that is greater than a finding on the balance of probabilities but less than a finding of beyond reasonable doubt, but is

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otherwise incapable of further definition: DPP v GTR [28] (Steytler P and Buss JA). This does not necessarily mean that the risk must be at some high percentage of probability, a risk may be less than 50% yet still be unacceptable. However, the court must identify what it is that constitutes the risk and makes it unacceptable and then consider whether or not those factors have been proved to a high degree of probability by acceptable and cogent evidence: DPP v GTR [34] (Steytler P and Buss JA).

10 A serious sexual offence is defined in s 3 of the Act to have the meaning given to that term in s 106A of the Evidence Act 1906 (WA). That means an offence mentioned in pt B of sch 7 of the Evidence Act for which the maximum penalty is 7 years' imprisonment or more. In the past, including when on parole, Mr Lyddieth has committed some offences which are not categorised as serious sexual offences. This raises the question of what use the court make of such offending. It is important to note that the Act is concerned with the risk of committing serious sexual offences in the future. It would not be open to make an order if the only risk identified by the court was that the risk that the person concerned would commit offences that do not fall within the category of serious sexual offences. That does not mean that offences of other types committed in the past are not relevant in assessing the risk serious sexual offences being committed in the future. This is because other offences may be connected to behaviour which has the real potential to lead to serious sexual offending. They may also be relevant to whether there is any discernable pattern of offending behaviour.

11 The DPP may make an application under the Act where a person is under a sentence of imprisonment for a serious sexual offence. At the time this application was made Mr Lyddieth was serving the balance of the sentence of 19 years and 1 month imposed in 1992. That sentence was imposed in respect of 48 counts of which 30 were serious sexual offences.

12 What is meant by 'an unacceptable risk' was considered by Wheeler JA in DPP v Williams [63] - [65]. In that case her Honour said that a judge is required to consider the likelihood of the person offending and the type of offence likely to be committed in considering whether the risk is so unacceptable that the interests of the community required the person be subject to further detention even though they have already been punished for whatever offence they may have actually committed in the past. That does not exclude the possibility that an unacceptable risk may be effectively addressed and minimised by a supervision order.

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13 In DPP v GTR Steytler P and Buss JA said at [27] that the word 'unacceptable' connotes a balancing exercise that will take into account the nature of the risk (the commission of a serious sexual offence, with serious consequences for the victim), the likelihood of the risk being realised and the serious consequences for the offender if an order is made (either detention, without having committed an unpunished offence, or being required to undergo what might be an onerous supervision order).

14 Section 7(3) of the Act sets out a number of matters that the court must have regard to in considering whether a person is a serious danger to the community. Those matters are:

(a) any report that a psychiatrist prepares as required by section 37 for the hearing of the application and the extent to which the person cooperated when the psychiatrist examined the person;

(b) any other medical, psychiatric, psychological, or other assessment relating to the person;

(c) information indicating whether or not the person has a propensity to commit serious sexual offences in the future;

(d) whether or not there is any pattern of offending behaviour on the part of the person;

(e) any efforts by the person to address the cause or causes of the person’s offending behaviour, including whether the person has participated in any rehabilitation program;

(f) whether or not the person’s participation in any rehabilitation program has had a positive effect on the person;

(g) the person’s antecedents and criminal record;

(h) the risk that, if the person were not subject to a continuing detention order or a supervision order, the person would commit a serious sexual offence;

(i) the need to protect members of the community from that risk; and

(j) any other relevant matter.

15 As s 7(3)(j) implies, the list of matters to be considered by the court is not a closed one.

16 While s 7(3)(g) provides that the court must have regard to the criminal record in deciding whether a person is a serious danger to the community, the mere fact that a person has committed previous offences

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does not necessarily mean that there is an unacceptable risk that the person would commit a serious sexual offence in the future. The relevance of a prior record will depend on the nature of the offences committed, the number of them and the period of time over which they occurred. However, past behaviour is often a good indicator of future conduct.

17 Once a court has concluded that an offender is a serious danger to the community it must make either an indefinite detention order or a supervision order: DPP v Williams [68] (Wheeler JA) and DPP v GTR [51]. In deciding between those two possibilities the paramount consideration is the need to ensure the adequate protection of the community: s 17(2). That does not exclude other considerations. The use of the word 'adequate' indicates that a qualitative assessment is required. It cannot simply be assumed that the most assured preventative is detention and, therefore, the protection of the community will always favour such an order: DPP (WA) v Decke [2009] WASC 312.

18 Once a finding is made that the person is a serious danger to the community, the court may adjourn the proceedings for further evidence to be obtained to assist in deciding between a supervision order or continuing detention: DPP v Williams [45], [47] (Martin CJ) and [85] (Wheeler JA).

19 The court should choose the option which is least invasive or destructive of the respondent's right to be at liberty. At the same time it must ensure an adequate degree of protection of the community: The State of Western Australia v Latimer [2006] WASC 235 and DPP v Decke.

20 The court should not be concerned with funding concerns when setting the terms of a supervision order. The court can assume that, if an order is made, the Executive will perform its function of protecting the community by the provision of appropriate assessment and resources: DPP v Williams [81] (Wheeler JA).

History of offending and antecedents - s 7(3)(g)

21 In deciding whether a person is a serious danger to the community the court must have regard to the person's antecedents and criminal record: s 7(3)(g). This means all prior offences, whether they be serious sexual offences or not, to the extent that such offences are relevant to the question of whether the person is a serious danger to the community. It

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also requires consideration of the person's personal history, including the context in which past offences were committed.

22 The criminal record and antecedents are relevant in themselves, but also relevant to whether the person has a propensity to commit serious sexual offences in the future: s 7(3)(c). They are also relevant to whether there is any pattern of offending behaviour: s 7(3)(d).

23 Mr Lyddieth was born on 30 August 1951. His parents separated when he was two years of age and he and one of his brothers lived with his father until he was five or six. He was then placed in a children's home.

24 Mr Lyddieth had his first sexual experience when he was around five or six years of age (report of Mr S Jobson dated 22 July 1998, exhibit 2, page 349). He said this occurred after he saw a male friend in bed with a young girl. As a result, he did the same with a different girl, putting his face into her vagina whilst in bed with her in an attempt at what he believes to have been cunnilingus. He said that he was discovered and punished and was 'made to feel a disgusting, disgraceful human person' (exhibit 2, page 349). However, he also described his feelings of doing something forbidden, and said that 'it was romantic'.

25 Mr Lyddieth has described sexual abuse by a carer whilst at the children's home (exhibit 2, page 350). He said that around the age of nine or ten he returned to the care of his father and a new step-mother. His new step-mother had two daughters aged approximately eight and nine years old. He said that he engaged in different forms of sexual activity with his step-sisters. Following this he commenced masturbating with sexual fantasies of girls his age.

26 Mr Lyddieth referred to incidents of exposing himself to school girls whilst he was aged ten or eleven. He said that around the same age he developed an obsession with specific items of female underwear. The veracity of these accounts was doubted by the psychologist to whom they were reported. That psychologist, Mr Jobson, said that Mr Lyddieth took great delight in relating these incidents but that there was an obvious and significant level of fabrication and distortion and that he appeared to gain a great deal of pleasure from his sexual obsessions and fantasies.

27 Mr Lyddieth married at around 20 years of age and separated from his wife in 1986. There were three children of the marriage. After the separation he entered into a number of casual and de facto relationships with women. He reported to Mr Jobson that he had great difficulty

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experiencing love. He described a need for sex but doubted that he had ever experienced true love.

28 Mr Lyddieth and his wife divorced in 1988. He commenced a series of offences in 1987 at around the time the divorce was being finalised. Mr Jobson suggested that the failure of the marriage may have been a trigger for the offending behaviour, though Mr Lyddieth admitted offending through voyeurism on women and couples in their homes prior to this. He admitted 'dozens' of peeping-tom offences in Geraldton, Subiaco and Fremantle and said it was by this means that he later found most of his victims.

29 Mr Lyddieth told Mr Jobson that while watching women undress in their homes or watching a couple have sex he would masturbate with strong sexual thoughts of wanting to be with the woman or be part of the sexual activity. He said that watching women undress was arousing and it was 'like watching a nice movie or eating your favourite food'. He continued by saying that once he had found a victim he would rarely break into the house immediately but needed time to 'think and build up courage' although on one occasion he did assault the woman within a few hours (exhibit 2, page 351).

30 Mr Lyddieth said that breaking into a woman's home and being close to her provided him with a sense of excitement, closeness and intimacy. He said he had a sense of feeling something for his victims and wanted to be friends with them. He thought that he would find one who would like him and say 'Don't leave me'. Mr Jobson noted that Mr Lyddieth viewed himself as gentle and as never hurting his victims. He minimised his offending behaviour by taking the view that he performed cunnilingus on most of the women he attacked and that he did so because he believed that the women liked getting pleasure that way.

31 On 9 June 1987, Mr Lyddieth committed an offence of being unlawfully on premises. The circumstances were that he was looking through a window in the early hours of the morning in Fremantle. He was apprehended and fined for this offence. This was not a serious sexual offence, but is relevant in the context of the offences that follow, in assessing the risk of more serious offences being committed and in considering whether there is a pattern of offending behaviour.

32 Mr Lyddieth's next offending conduct was of a significantly more serious type. On 13 November 1987 he entered a residential unit in Claremont in the early hours of the morning. The occupant, a woman of

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32 years of age, was asleep in her bedroom. He placed his hand over her mouth and said, 'Don't scream, I've got a knife'. He repeated this and then brought the knife he was holding to the woman's face so that she could see it. She estimated that the knife was about 12 inches long and silver in colour. She screamed and he again showed her the knife and told her to stop. He then told her that he wished to put his tongue between her legs. He moved his head down between her legs and began to lick her genitals. As he did this he was still holding the knife beside the woman on the bed. He then told her he was wearing a condom and took her hand and placed it on his erect penis. He then placed his hand on her vagina and penetrated it with his finger. The woman pulled back and he then raised the knife again and told her not to scream. She then screamed loudly and he leapt off the bed and ran from the room. In respect of these events he was later charged with four offences. One of breaking and entering a dwelling with intent to commit an offence contrary to s 401 of the Criminal Code (WA), one of sexually penetrating the woman by engaging in cunnilingus without her consent and whilst armed with a dangerous weapon contrary to s 324E of the Code, one of indecently assaulting the woman whilst armed, contrary to s 324C of the Code and one of sexually penetrating the woman by penetrating her vagina with his finger without her consent and whilst armed, contrary to s 324E of the Code.

33 The next offences occurred on 24 October 1988. At this time Mr Lyddieth was working in Mount Magnet. That evening he was drinking at the Mount Magnet Hotel with two females. They were staying at the hotel and later in the evening returned to their room. One of the females, a girl of 16, was sleeping on a mattress on the floor. Mr Lyddieth opened the closed door and knelt beside the girl on the mattress. He positioned himself between her legs and partially removed her underwear to expose her genitals. He then raised her bra to expose her left breast. He then lay on top of the girl for a short time and then stood up and began to masturbate. The other occupant of the room then became aware of his presence, turned on the light and shouted at him to leave. He ran from the room and out of the hotel. He was later apprehended by police and interviewed but denied the offence. He was charged with one count of unlawful and indecent assault contrary to s 324B of the Code. Such an offence was punishable with a maximum penalty of less than 7 years' imprisonment and thus falls outside the definition of a serious sexual offence. Nonetheless, it is clearly relevant in the assessment of the risk of more serious offending. The earlier offences of 13 November 1987 did not come to light at this stage. Mr Lyddieth was dealt with for the Mount Magnet offence on 31 May 1989 in the District Court and
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sentenced to 3 years' probation with 100 hours of community service work. Prior to that sentence being imposed he committed a series of further offences which were not attributed to him until much later.

34 In November 1988, Mr Lyddieth broke into the flat of a 23-year-old woman living in Nedlands. Some time after midnight the woman was awoken by something that touched her leg whilst she was lying in bed. At first she thought it was her cat but then realised that there was a person in the bedroom. She slid up to the head of the bed and Mr Lyddieth then sat on the side of the bed and held a knife across her throat. He said, 'I've got a knife. I don't want to hurt you. I just want to touch you'. He then placed his hand under the doona and touched her genitals placing two fingers into her vagina. Whilst this was occurring he held the knife to her throat. He then knelt on the bed and undid his jeans. At this stage the woman started to cry. He struggled with her to get her legs apart. He then knelt between her legs and put his penis into her vagina for a short time. She estimated that this would have been for a minute or more and that he then got off the bed, did his jeans up and walked out into the kitchen. After a short while the woman got up, picked up a hockey stick and saw the man running past her window. This incident resulted in three charges later being preferred. They were breaking and entering a dwelling with intent, sexually penetrating the woman by penetrating her vagina with his finger without her consent and whilst armed with a dangerous weapon and sexually penetrating the woman by penetrating her vagina with his penis without her consent and whilst armed.

35 On 16 March 1989, Mr Lyddieth broke into the unit of a woman living in Nedlands. Again, this happened at night and whilst the woman was asleep. She was awoken by a noise inside her flat and then noticed that someone had turned the light off in her room. She tried to sit up and felt someone push her on the side of the head forcing her back onto the pillow. Mr Lyddieth then told her to 'shut up' or something to that effect. She started to scream and he placed his hand over her mouth and shouted at her to 'shut up'. She did not stop screaming so he placed a piece of cloth into her mouth and struggled with her. He then tied her hands behind her back and as he was doing this kept telling her to 'shut up'. He also tied her legs so that she could not move them. He showed her a long thin knife and said that if she did not shut up he would kill her. She said that he stole her bag before leaving. The woman did not, at that time, complain of any sexual assault. However, when Mr Lyddieth was later apprehended he admitted that he had sexually assaulted the woman. Many years later she confirmed this to the police but said that she had not complained of a sexual assault at the time for cultural reasons and because

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she was engaged to be married and did not want her family or her future husband to know that she had been raped. This confirms that the admissions made by Mr Lyddieth to the police in regard to this sexual assault were true. However, because no complaint of it was made at the time he was charged only with breaking and entering a dwelling with intent and with stealing a sum of money with violence whilst armed with a dangerous weapon, contrary to s 391 of the Code.

36 Sometime on the evening of 1 April 1989, or the early morning of 2 April 1989, Mr Lyddieth broke into the residences of two different women. The order in which these offences occurred is unknown. One of these women was a 32-year-old computer programmer who lived in a unit in Shenton Park. She was alone at home and went to bed at about midnight. Sometime later she woke and realised there was someone standing over her bed. She asked who was there and Mr Lyddieth said, 'A man with a knife'. She reached out and ran her hand over the knife. She then started to cry out and he put his hand over her mouth. He then told her to take off her pants. She refused and told him that she could not. She said she was so scared she started shaking and convulsing. She attempted to use her fear as a reason why she could not comply with his demands. He told the woman she was stupid and said that if she did not shut up she would 'not make 30'. At one stage he told the woman, 'Surely you must know what's happening here' and 'Hasn't anyone fondled you before?'. The woman said that she was feeling very sick and moved towards the door. She was then able to open the door and escape by running off down the street. This incident later resulted in two charges being preferred. They were breaking and entering a dwelling with intent to commit an offence and assault with intent to commit a crime, namely sexual penetration without consent, contrary to s 318 of the Code.

37 The second incident on the night of 1 to 2 April 1989 occurred in Subiaco. A 27-year-old woman who was alone and asleep in her house was awoken when she realised there was someone on her bed. She began to scream and Mr Lyddieth then told her to, 'Be quiet'. He took hold of a knife and pointed it at her. He then told her to take her pants off which she did. He told her to lie down and then performed cunnilingus upon her. Whilst he did this he held the knife in his right hand. At this point other occupants of the house came home. The woman, frightened as to what he would do, grabbed hold of the knife with her left hand, cutting her fingers. He then got up and moved away quickly, attempting to escape through the bedroom window. He was unable to do so and then ran through the front door. This incident later resulted in two charges,

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being breaking and entering with intent and sexual penetration by engaging in cunnilingus without consent and whilst armed.

38 On the early morning of 17 April 1989, Mr Lyddieth broke into the house of a 42-year-old woman in Nedlands. She was at home alone. She woke to find him leaning over her. She felt a knife blade near her chin. He was wearing a stocking over his head which he later removed. He told her to lie back and that she would not get hurt. When she asked why he had chosen her, he referred to her occupation and said that he had been watching the woman and had been at her house about a month earlier. She engaged him in conversation for some time before saying that she needed a cigarette. She then said she could not find her cigarettes and that they were in the car and she was going to look. She picked up her car keys, walked to the front door, got in the car and drove away. The woman said that she thought he had allowed her to leave as she had led him to believe that her daughter was sleeping in the house. This incident later resulted in a charge of breaking and entering with intent.

39 A few days later, on 20 April 1989, Mr Lyddieth broke into the house of a 23-year-old woman in Nedlands. She arrived home in the early hours of the morning after being at a nightclub and fell asleep soon after. She was woken at about 4.15 am by feeling something penetrating her vagina. She then realised she had been pulled down to the end of the bed with her legs hanging off the end and turned onto her stomach. Mr Lyddieth was standing at the end of the bed using the fingers of his left hand to penetrate her vagina. He licked his fingers to lubricate them. While he still had his fingers inside her he then used his other hand to turn her onto her back. He then penetrated her with his penis. At this stage the woman pulled herself away and told him to go. He pulled up his pants and walked out of the house to the back garden. After he had left the woman realised that the bodysuit and underpants which she had been wearing had been cut between the legs. This incident later resulted in three further charges. They were breaking and entering with intent, sexual penetration by penetrating her vagina with his fingers without her consent and sexual penetration by penetrating her vagina with his penis without her consent.

40 On the night of 23 April 1989, Mr Lyddieth broke into a unit in Nedlands. At that time a 23-year-old woman was staying at the house and was asleep on a mattress in the lounge room. The woman woke up at about 1.35 am to go to the toilet. As she did so she saw a man standing in the archway of the house a short distance from her. He said, 'I've got a knife, don't do anything stupid. Just do what I say and we'll get this done

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as quickly as possible'. He was wearing a stocking over his head and carrying a knife in his hand. He knelt down on the mattress and then cut both sides of her knickers, ripped them off and threw them away. When she asked him why he was doing this, he told her to shut up and be sensible and 'We will get this done as quickly as possible'. He then penetrated her vagina with two fingers. He told her to spread her legs wider and then forced them apart. He then moved down between her legs and performed cunnilingus. Kneeling beside the woman, he unzipped his trousers and told her to put both hands on his penis. She masturbated him for a short time at his direction. He then put his fingers in her vagina again. He then told her to masturbate him again. This continued until he ejaculated. Whilst this was occurring the woman was crying heavily and burying her face into the mattress so that she could not see him. This incident later resulted in five further charges. They were two charges of sexually penetrating her vagina with his fingers without her consent and whilst armed, a charge of sexually penetrating the woman by engaging in cunnilingus without her consent and whilst armed, a charge of indecent assault whilst armed and a charge of breaking and entering with intent.

41 On 26 May 1990, Mr Lyddieth broke into the house of a 51-year-old woman in Wonthella, Geraldton. The woman was awake and lying in bed reading a book. She became aware that a man was in her house. He came into the bedroom with a knife in his teeth. She got out of bed and stood up. He grabbed her by the wrists and said, 'It's alright. I just want to feel you'. He then pushed her onto the bed. She tried to resist him but could not because she suffered from muscular dystrophy. She screamed and he put his hand over her mouth. He pushed the woman's top up under her armpits and then pulled his trousers down and off. He penetrated her by placing his fingers into her vagina. He then directed the woman to take hold of his penis in both of her hands. He made her masturbate him until he ejaculated. This incident later resulted in three further charges. They were breaking and entering with intent, sexually penetrating the woman's vagina with his fingers without her consent and whilst armed and unlawful and indecent assault whilst armed.

42 On 7 June 1991, Mr Lyddieth broke into the house of a 27-year-old woman in Leederville. She had arrived home after work at about 8.30 pm and was alone in the house. She went to bed at about 10.30 pm. Sometime after 1.00 am she woke to see the silhouette of a man standing by her bed. She reached out to turn on the bedside lamp. Mr Lyddieth then grabbed her arm. She screamed loudly and started kicking. He used his hand to cover her mouth and pushed her head into the pillow. He told her to shut up and then held a knife to her neck. He told her that if she

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was quiet he would not hurt her. He then undid his fly and directed the woman to masturbate him. He then lent over the woman and used his left hand to pull her track pants down, pulling them off completely. He put his face near her vagina, forced her legs apart and performed cunnilingus. As he did this he continued to hold the knife with his right hand on the woman's stomach. He lost his erection and directed the woman: 'Play with me'. She did not and he became annoyed and angry. He then took her hand, placed it on his penis, put his own hand over hers and masturbated himself. He then penetrated her with his penis and attempted to kiss her on the mouth. She moved her face away and he kissed her breasts and neck. As he was doing this he held her down on the bed by her hair. He said 'I'm not that bad am I?'. He then forced the woman to again touch his penis. She was scared, trying to stifle screams and crying. He then engaged in cunnilingus a second time before penetrating her again with his penis. As he did this he fondled her breast with his hand. He required her to place her hands behind him and tried to kiss her. After he ejaculated he got off the bed and told the woman not to move and to keep quiet. He then left through the front door. This incident resulted in a further eight charges. They were one of breaking and entering with intent, three of unlawful and indecent assault whilst armed, two of sexual penetration by cunnilingus without consent and whilst armed and two of sexual penetration by penetrating her vagina with his penis without consent and whilst armed.

43 On 4 July 1991, Mr Lyddieth broke into the home of a 37-year-old woman in Leederville. She was home alone in the evening watching television when she went to check that an external door was locked. She unlocked the glass sliding door to check that the flywire door was locked. As she did so she saw a male person standing on the other side of the flywire door. He was carrying a knife and slashed the flywire with it. The flywire door normally had a metal bar across the middle but this had gone missing mysteriously a few days earlier. He came through the flywire and grabbed the woman by her throat. He then turned her around and pushed her over the side arm of a couch in the lounge room. He lent over her, placed the knife to her throat and told her to be quiet. She was crying at the time. He then placed his hand inside her knickers and began touching the outside of her vagina. He then pulled her knickers down and took them off, pulling her night dress and dressing gown up to her waist to expose her buttocks. He then began to rub his penis against her. When she asked him why he was doing this he said, 'Because I think you are beautiful' and 'I have seen you'. He then attempted to penetrate her anus with his penis. She begged him not to and he stopped. He then performed
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cunnilingus on her. He then grabbed the woman by the neck from behind and pulled her onto her feet and forced her onto the couch. He then pushed her down onto the floor and got on top of her so that his groin was close to her face. He then ordered her to perform oral sex. She refused and he then directed her to masturbate him. When she again refused, he performed cunnilingus on her a second time, placed a condom on his penis, and directed the woman to masturbate him. When she refused he grabbed her right hand and tried to force her to do it. He then lay on top of her and penetrated her vagina with his penis. She had her eyes closed out of pain and fear. She started to cry and told him that he was hurting her. After a short time he withdrew and stood up. He said, 'Now that wasn't too bad was it?'. He told her not to do anything silly and not to move until he told her that she could. He then went behind her and fled out through a door. This incident later resulted in six further charges. They were one of breaking and entering with intent, one of indecent assault whilst armed, one of attempting to penetrate her anus with his penis without her consent whilst armed, two of sexual penetration by engaging in cunnilingus without consent whilst armed and one of sexual penetration by penetrating her vagina with his penis without her consent and whilst armed. He later returned on two other occasions to this same house, but was disturbed before being able to commit further offences. The second occasion resulted in him being apprehended and will be referred to later.

44 On 7 July 1991, Mr Lyddieth broke into a house in Leederville in the early hours of the morning. A 28-year-old woman was at home alone. Just before 2.30 am she woke up and heard the floor boards in the house creaking. She then saw the door to her room moving. She turned on her bedside lamp and got out of bed. As she approached the bedroom door it was opened and she saw a male figure with a thick black woollen covering over his head. He held one of her arms behind her back and told her that if she was quiet she would not get hurt. He then pushed her onto the bed face first and tied her hands together. He removed her underpants and placed a finger into her vagina. She attempted to resist, telling him that she could not move properly and was uncomfortable. He untied her arms and then retied them. He then rolled her over onto her back but told her that she was not allowed to look at him. He went to place a pillow over her face but she asked him not to as she would suffocate. She promised that she would not look. She then took a doona and pulled it over her face. He then slid down and pulled her legs apart and performed cunnilingus. He directed her to pull her top up so that he could have a look. He touched her left breast with his mouth and sucked it. He then
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penetrated her with his penis. After a short time he withdrew and pulled the woman's legs up so that her hips were higher. He then penetrated her again to ejaculation. He then directed her to masturbate him. After this he got up and told her to be quiet and not to do anything for half an hour. He told her that she should not 'try anything' because he would be watching her. He told her that he would still be around and not to use the telephone. The woman subsequently found that her purse had been stolen. This incident resulted in a further eight charges. They were one of breaking and entering with intent, one of sexually penetrating her vagina with his finger without consent, one of engaging in cunnilingus without consent, two of indecent assault, two of sexually penetrating her vagina with his penis without consent and one of stealing the woman's purse.

45 On 22 September 1991, Mr Lyddieth broke into the house of a 34-year-old woman in Leederville. She was at home with her boyfriend at about 9.00 pm when she heard noises in the kitchen. When she went to the kitchen to investigate she saw a person crouched down and going through her handbag. When she confronted him, he stood up and ran off with her bag. She called for her boyfriend and he took off in pursuit. The woman then contacted the police. This incident resulted in a charge of breaking and entering with intent.

46 About half an hour later on the same evening, Mr Lyddieth attempted to break into a house in the same street. This was the house which he had broken into on 4 July 1991. He turned the main power supply off and hid in the garden. He was disturbed by a police patrol and tried to run off but was later apprehended. As a consequence of being found at this location, he was questioned about the sexual assault that occurred there on 4 July 1991. He denied raping anyone but was held in custody for the offences of 22 September 1991. DNA testing subsequently confirmed his connection to some of the earlier offences. He was then re-interviewed on 1 November 1991 and made full admissions. He also took the police to various sites where the offences had occurred.

47 It is evident from this history that at least at the time he was apprehended, Mr Lyddieth had a very dangerous propensity for committing serious sexual offences. Those offences involved targeting women who were alone in their homes at night. They involved the use of violence or threatened violence to obtain compliance. Efforts were made to conceal his identity, including using a face covering, requiring the victims to look away and making threats. The offences do not appear to have been opportunistic, rather they involved some measure of planning

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which included, in some cases, watching the intended victim for some time prior to the offence.

48 There is no doubt that past behaviour can be a predictor of future conduct. However, it is now over 20 years since Mr Lyddieth last committed a serious sexual offence. Of course, he has had very little opportunity to do so since for almost all of that time he has been in custody. It is, nonetheless, relevant to consider whether the propensity displayed in the past has persisted over time.

49 In December 2000 to September 2001, Mr Lyddieth undertook an intensive sex offender treatment programme whilst in prison. On 3 January 2002 he was released on parole. He participated in a community based sex offender maintenance programme on his release and also had individual counselling. He was subjected to electronically monitored curfew requirements. Notwithstanding these limitations, Mr Lyddieth committed a series of indecent acts between March and 25 June 2002. These offences involved masturbating in the presence of women who were unknown to him. The first three such offences occurred in March 2002 at Cottesloe Beach. A further three such offences occurred in June 2002, two of them being at Hillarys dog beach. A further offence was committed at Cottesloe on 25 June 2002. He was arrested near the scene of the last offence but denied the offence in an interview. He subsequently admitted all of the offending. This resulted in a breach of his parole which was suspended on 19 July 2002. On 2 September 2002 he pleaded guilty to seven charges of committing an indecent act in public and was sentenced to a total effective sentence of 12 months' imprisonment cumulative on the balance of his parole term.

50 The indecent act offences are different in a number of respects from the serious sexual offences committed earlier. The indecent acts all occurred in a public place, during daylight hours and involved no physical assault. These offences were not serious sexual offences within the meaning of that term at law. They are, however, relevant because they may have been the early indicators of a pattern of behaviour which had the potential to lead on to serious sexual offences. It is certainly the case that voyeurism and masturbation in that context was a precursor to the serious sexual offending between 1987 and 1991. This is a matter that has been considered by psychiatrists who prepared reports for these proceedings and to which I now turn.

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Psychiatric reports and the extent to which the respondent cooperated with psychiatric examinations - s 7(3)(a)

51 The court ordered Mr Lyddieth to undergo examination by two psychiatrists, Dr Bryan Tanney and Dr Peter Wynn Owen. Both psychiatrists met with Mr Lyddieth for the purpose of preparing reports. He fully cooperated with the psychiatric examinations. The reports were tendered and both doctors gave oral evidence at the hearing.

Dr Tanney's evidence

52 Dr Tanney reported (exhibit 2, page 546) that Mr Lyddieth had engaged in voyeurism from his mid teens. This activity increased after his separation and divorce from his wife. He 'had routes, and got to know where to look'. He selected woman who physically attracted him and planned his sexual assaults. Dr Tanney was of the view that Mr Lyddieth rationalised his behaviour with cognitive distortions that the victims deserved or wanted what he did to them. He used alcohol to dissolve any moral inhibitions. His behaviour was positively reinforced because as he said to Dr Tanney, he 'knew he could get away with it' and did for some time.

53 Mr Lyddieth told Dr Tanney that the offences occurred when he was between sexual partners or had 'no dollars for prostitutes'. He insisted that he had no intention of physically hurting his victims and that he wanted them to like him. He described himself as the 'nice rapist'. Dr Tanney was of the view that the combination of achieving power, demeaning his victims and boosting his self-confidence represented immense positive reinforcement for his unmet needs for affection, aggression and sexuality.

54 As regards the 2002 offences whilst Mr Lyddieth was on parole, he told Dr Tanney that these offences were planned and the activities made him 'feel good'. He regarded these offences as 'minor crime' because in his view no-one was hurt. He believed that if caught he would be liable to a significantly less punishment than for his previous sexual offending. Mr Lyddieth attributed the 2002 offending to a lack of community support. When asked whether it was likely that there would have been an escalation to more serious offending, Mr Lyddieth said, 'I don't know' but that he had 'No intentions of major crime'.

55 Dr Tanney reported that Mr Lyddieth was cooperative at interview and generally a reliable historian. It was felt that he was only directly evasive in one respect and that related to the progression or evolution of his offending behaviour. Dr Tanney noted the frequent use of psychiatric

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jargon and the repetition of words or phrases respecting an issue. This suggested that those words and phrases had been incorporated into set speech patterns rather than reflecting real change. Dr Tanney felt that Mr Lyddieth's understanding of his offending behaviour and his plans for relapse prevention were basic. His problem solving skills were poor and he had little ability to generate options or to establish relapse prevention strategies.

56 Dr Tanney utilised measurement tools for assessing re-offending risk. These included the STATIC-99R test and the Risk for Sexual Violence Protocol (2003) (RSVP test). In regard to the latter, he noted that there was a long established pattern of entrenched fixated deviant sexual behaviour. As regards manageability, Dr Tanney noted that the RSVP test indicated very guarded prospects for Mr Lyddieth being able to utilise available resources to deter further sexual offending. His response to treatment had been limited and community supervision in the past had not deterred re-offending. Dr Tanney reported that there did not appear to be much deterrent effect from external sanction or punishment respecting sexual offending.

57 Dr Tanney stated that, in his opinion, Mr Lyddieth is a high risk of further serious sexual offending without effective, ongoing management and the implementing of specific risk diminishing measures. There was a likelihood of the recurrence of sexual offending because this behaviour is established, functional and strongly reinforced. Dr Tanney said that there are virtually no social protectors against re-offending.

58 Dr Tanney expressed the view that a risk scenario can be clearly identified. Mr Lyddieth is strongly driven towards 'no strings attached' heterosexual behaviours to meet his needs for affection and care. Where sexual contact is criminal or forbidden, this also meets his repressed aggressive and anti-social needs. Mr Lyddieth fantasises about power and control using sex with demeaning and possibly sadistic undertones. Strangers are preferred as there is no emotional responsibility, but he fantasises about most females with whom he has contact. The offending behaviour has a compulsive and addictive element. Voyeurism affords opportunity to target victims and choose those that meet his criteria. Alcohol and pornography are used to disinhibit his behaviour.

59 As regards the possibility of managing the risk that Mr Lyddieth would present if released into the community, Dr Tanney reported:

Would it be appropriate to discharge Mr Lyddieth to the community at this time with a programme of directed management prescribed in a

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community supervision order? (He is at sufficiently high risk of sexual reoffending that unsupervised release would almost certain lead over time to further serious sexual offending). There are a large number of serious dynamic treatment issues that remain in need of management. There are no or minimal social or interpersonal community supports available to him. His long term goals are generally vague. He requires a level of re-entry support that is difficult to provide at sufficient intensity in this community and has failed previously (exhibit 2, pages 555 - 556).

60 Dr Tanney stated that the viability of community management largely hinged on two issues. One was whether the impact of age and prolonged punishment has exhausted Mr Lyddieth's maladaptive, life long use of sexual activity as a means of managing his emotional needs. The second was whether the number and variety of support resources needed for community risk management were available and acceptable.

61 The issue of age relates to capacity and desire. As to physical capacity, Mr Lyddieth has some health issues but none that are significantly disabling. The more significant issue is whether he has experienced andropause. This was dealt with in some detail in Dr Tanney's evidence. He said that at some stage in a man's life the levels of testosterone begin to drop off. This is a biological process that happens relatively swiftly over a period of time of between a few months to a year. In most men it would occur between the ages of 55 and 70. When this process occurs it typically decreases sexual desire and sexual interest. In terms of performance, the ability to get and maintain an erection decreases. However, Dr Tanney noted that sexual desire and sexual functioning are not entirely related to hormones and that the effect is different in different men.

62 As regards Mr Lyddieth, there are no available test results as to his hormone levels. However, Dr Tanney said that it appeared to him that Mr Lyddieth still had 'a certain amount of interest and desire in recollecting his sexual experience' (ts 26). Dr Tanney's view was that Mr Lyddieth continued to have a clear recollection of his sexual offending, that these recollections formed part of an active fantasy life, that he enjoyed that fantasy life and found it emotionally sustaining. Whether or not Mr Lyddieth had commenced andropause, this did not suggest a falling away of sexual desire.

63 Dr Tanney accepted in cross-examination that Mr Lyddieth had told him that there had been a lessening of the ability to maintain an erection and ejaculate. He said he had no reason not to accept this statement as genuine and that it may indicate that andropause has commenced.

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However, he said that that process takes some time and does not just happen overnight. Dr Tanney said it was significant that the sexual fantasies were persisting and that they were a significant driver to sexual offending. He was asked whether it was possible that Mr Lyddieth was maintaining his fantasies for emotional reasons but that they were no longer indicative of the likelihood of future offending. Dr Tanney said that that was only speculation and it had to be remembered that in light of Mr Lyddieth's history, any falling off of sexual desire would be starting from a high level. Dr Tanney did not accept the proposition that the continuing existence of sexual fantasies might no longer be indicative of risk.

64 It was suggested in cross-examination that because Mr Lyddieth's offending behaviour fell into a recognisable pattern it was more amenable to management. Dr Tanney agreed but said that this depended upon the availability of resources to provide maintenance and treatment as well as ensuring containment. As to the possibility that counselling and treatment in a community based programme would identify behaviour relating to the risk of offending before the offending occurred, Dr Tanney noted that this depended upon Mr Lyddieth being frank and honest. He noted that this had not been the case in 2002 when on parole.

65 The circumstances that Dr Tanney was referring to are as follows. After Mr Lyddieth's release on parole on 3 January 2002 he participated in a community based maintenance programme. He was referred to a psychologist in mid March 2002 for additional counselling because the facilitators of the programme felt that he was deteriorating in his attitude. There then followed a series of interviews with the psychologist commencing on 13 March 2002. It was apparent from these sessions that he was struggling to cope in the community. Whilst these sessions were continuing he committed the first three indecent act offences in March 2002. He met with the psychologist on 19 June 2002 and she noted that he seemed preoccupied with matters pertaining to his contact with women. When she enquired if he was engaging in high risk behaviours he vehemently denied this and was defensive when asked about his understanding of relapse prevention strategies. Mr Lyddieth indicated to the psychologist that this was not a concern for him and that his offending was 'in the past' (report of Ms R Martin 28 August 2002, exhibit 2, page 440).

66 Dr Tanney noted that there were also indications that the behaviour whilst on parole in 2002 was escalating in its seriousness. Mr Lyddieth had acknowledged that in relation to one of the later offences he had

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asked the victim if she would like him to perform cunnilingus on her (treatment completion report 29 December 2003, exhibit 2, page 461).

67 As regards future treatment options, Dr Tanney said that he did not support further intensive sexual offender treatment programmes. He said that some of the behaviours that Mr Lyddieth had manifested in group programmes reflected psychopathic traits. The indications are that persons with psychopathic traits are less likely to benefit from such programmes. Dr Tanney said there were also indications that Mr Lyddieth may have some cognitive deficits as a result of being illiterate in his childhood and early adult life.

68 Dr Tanney suggested that there may be better prospects if a cognitive behavioural approach was adopted. Such an approach would focus on addressing the sexual fantasies and would be delivered in a one-on-one basis. Mr Lyddieth had not previously engaged with such a form of therapy and it had not been available in a prison context until comparatively recently. Dr Tanney thought that sessions would need to be at a minimum of once a week and that this would then need to be assessed. He said that it was necessary to find a clinician with appropriate qualifications and experience who would be available over an extended period of time. A long time is required to ensure that any therapy has the impact that it is hoped to have. He said that cognitive behavioural therapy was not necessarily any more likely to succeed but that it is the appropriate treatment option given the lack of success with intensive sexual offender treatment programmes which had attempted to deal with the emotional issues and underlying causes of the offending.

69 Dr Tanney's view was that the risk of further serious sexual offending had not changed appreciably since 1992. One of the reasons for that was that despite completing three intensive sexual offender treatment programmes in prison there were reports of grooming behaviour with female staff members in the prison system. Dr Tanney said that Mr Lyddieth was not necessarily fully aware that he was engaging in such behaviour and this accounted for his denials of it. He said that it was inherent in the way Mr Lyddieth related to women and this included being interested in whether any woman he met might wish to have some sort of relationship with him. He said that such grooming behaviour, whilst not necessarily conscious, was purposeful in the sense that it was driven by a need for affection and to feed his fantasies. Mr Lyddieth had reluctantly admitted to Dr Tanney that he had masturbated to sexual fantasies about a number of female prison staff.

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70 Whilst not committing to whether release on a supervision order would be appropriate, Dr Tanney did state that in order to address the risk of re-offending a range of strict conditions would be required. These would include individual counselling, abstinence from alcohol and drugs monitored through random screening, programmes to address alcohol and substance abuse, a prohibition on access to pornography both in print and on the internet, 24 hour electronic monitoring, a curfew, regular monitoring and the availability of a single person to coordinate all of the conditions and provide regular intensive and assertive assistance. As regards a curfew, Dr Tanney noted that a curfew with electronic surveillance was imposed when Mr Lyddieth was released on parole in 2002 and that it did not prevent the commission of the offences that occurred at that time, albeit that they were not serious sexual offences.

Dr Wynn Owen's evidence

71 Dr Wynn Owen reported that Mr Lyddieth said he had engaged in voyeurism or 'peeping Tom' behaviour since his adolescence. He also reported that he now considers that he forced himself on and in fact raped two girls with whom he had sexual intercourse when he was 17 and 18 years old. He reported that he first broke into a woman's house primarily for voyeuristic reasons at 18 years old. He said that the voyeuristic behaviour continued into his adult life and throughout his marriage. However, it increased following the breakup of his marriage and the commencement of the serious sexual offences that occurred between 1987 and 1991.

72 Mr Lyddieth told Dr Wynn Owen that whilst on parole in 2002 he had two sexual experiences that he described as 'positive' (exhibit 2, page 570). These occurred whilst walking on a beach at Hillarys. On the first occasion he observed a young couple engaging in sexual acts in a beach tent. He said that he moved closer and started to masturbate and although he believed he was seen by the couple they did not react and he took this to mean that his behaviour was condoned and supported. On the second occasion he exposed himself to a woman who was walking with her children. He also masturbated on this occasion. The woman sent the children to the car and then turned to face Mr Lyddieth until he had finished. There was no communication and as the woman did not shout or tell him to leave or stop he took this as being a consensual sexual interaction. Dr Wynn Owen noted that there was no evidence that the third parties consented or condoned this conduct and that there were explanations for their failure to react in a way that Mr Lyddieth would see as demonstrating that they were not willing participants. Dr Wynn Owen

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said that this showed a degree of cognitive distortion that was of great concern.

73 Dr Wynn Owen said that Mr Lyddieth's personality as revealed in interview and a review of available documentation is characterised by a disregard for the law and a tendency to seek satisfaction from others without recognition of the impact of his behaviour. His inability to empathise was considered to have its origins in an emotionally barren childhood.

74 Mr Lyddieth was described as having a profoundly negative self-image and a belief system built on a likelihood of negative outcomes that were out of his control. The view held by him that he is the subject of an 'external locus of control' leads to an expectation that others are responsible for preventing him from engaging in negative behaviour as he himself, whilst acknowledging his offending, believes he is unable to manage it.

75 When questioned about the past serious sexual offences, Mr Lyddieth did acknowledge that it would have been terrifying for a victim to wake up to find a man with a knife in her room. However, he minimised this aspect of his offending and disputed that on at least two occasions he had caused physical harm to women and had used force to achieve his ends. He acknowledged that at the time of the offending he had no real interest in the wellbeing of the victims. He wanted to be in control and have his needs met and this made him feel powerful. He told Dr Wynn Owen that he recalled feeling that he had heightened senses whilst he was prowling residential areas - colours seemed brighter, his hearing was acute, he felt he could do anything. This recollection was clearly a very positive memory. Whilst Mr Lyddieth reported remorse for his actions, Dr Wynn Owen said that this seemed focused on the consequential long term imprisonment and not on any real understanding of the effects of his actions on the victims.

76 Dr Wynn Owen noted that treatment programmes completed in prison had not translated into any real change in behaviour. As regards the avoidance of risk factors, Mr Lyddieth did not indicate a real understanding of the significance of alcohol and expressed no detailed plan for avoiding it other than that he would try his very best. As regards pornography he said that he was not interested anymore, that he was now too old for that and that he had a limited sexual drive and no longer masturbated frequently.

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77 Dr Wynn Owen reported that by applying the STATIC-99R test, Mr Lyddieth was shown to be at moderate to high risk of re-offending over a five year period. This assessment incorporated a factor which took into account his age. If not for his present age the risk category would have been high.

78 Mr Lyddieth told Dr Wynn Owen that he has difficulty coping with stress. He admitted that in the past this had resulted in him resorting to fantasy, pornography, cannabis and alcohol as well as there being an increase in his voyeuristic behaviour. Dr Wynn Owen stated that he did not observe any significant improvement in Mr Lyddieth's ability to manage stress, and that Mr Lyddieth's own release planning did not take this into account.

79 Dr Wynn Owen concluded that, notwithstanding Mr Lyddieth's age and physical health, re-offending seemed likely. Sexual deviant thinking had persisted throughout his adolescent and adult life and nothing in Dr Wynn Owen's assessment demonstrated any change in that thinking. Dr Wynn Owen reported:

The pleasure and reward he found in sexual preoccupation, voyeurism and exhibitionism and frequent sexual contact without intimacy or thought of his sexual partners was frequently reinforced and has become his only avenue for intimacy. This is deeply entrenched and has continued through his life. The use of violence to achieve his ends is possible through his lack of empathy, being the lack of ability to understand the impact he is having on his victim, immediate or longer term. This inability to understand the human consequences of his actions has enabled him to commit a series of violent sexual assaults over a long period of time, and remorse being further diluted and/or dismissed by alcohol and cannabis use.

Mr Lyddieth has not, in my opinion, learned anything from four sexual offender treatment programmes that he has been able to incorporate into actual behaviour change, a clear demonstration of this being his failure to plan for risks situations which he himself identifies as having been factors in his reoffending in 2002. A further indication of the ineffectiveness of programmes attended to date being his behaviour towards others during the programme. I am also concerned that he has presented two new offences (described above) at interview as evidence that his offending is neither seen by everyone as wrong nor is it harmful. It is my opinion that Mr Lyddieth's sexual deviant fantasy world is relatively unchanged and that he is aroused to sexual violence not just the thought of sexual contact but is unable to admit this as he cannot admit to himself that he is a violent sexual predator, merely a sexual predator.

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It is my opinion, based on STATIC-99 and structured clinical assessment including review utilising the Risk for Sexual Violence Protocol that Mr Lyddieth continues to present a high risk of sexually violent offending. Further I believe that the three in 10 chance of reoffence predicted by the STATIC-99R (aged modified risk) is increased by the presence of anti-social personality disorder and that risk will be increased further in the presence of alcohol use, cannabis use and the use of pornography (exhibit 2, page 580).

80 Dr Wynn Owen was asked in evidence whether there was significance in the fact that the 2002 offences were non-contact. He said that it appeared that Mr Lyddieth had made a conscious decision to only commit offences which he expected would not lead him back into prison. There was nothing to suggest that these offences would not have continued on to contact offences. He thought it was likely that if Mr Lyddieth had not been caught contact offences would have occurred. He said that in the event that Mr Lyddieth was now released the likely thing to occur would be voyeuristic or exhibitionist type offences, moving through towards rape offences if not stopped. Dr Wynn Owen considered that there would be a very high risk of returning to this offence cycle if that cycle was not stopped.

81 As to whether the risk of re-offending could be managed, Dr Wynn Owen said that this would involve a containment structure requiring significant resources. He also noted that Mr Lyddieth was not a man with significant coping skills or a supportive social network. The absence of these things and the absence of a plan to manage risks placed him at higher risk of reoffending. Dr Wynn Owen said that ideally Mr Lyddieth would require 24 hour supervised accommodation with some degree of mentoring to help him to negotiate a reintroduction to the community. Individual counselling incorporating cognitive behavioural therapy would also be necessary. Even if all of these suggestions were implemented, Mr Lyddieth would remain a risk to some extent. Because the pleasure Mr Lyddieth has derived from his behaviour in the past is such a powerful motivating factor, there is a risk that he would seek to accommodate himself to any conditions that might be imposed whilst still seeking to engage in such behaviour.

82 Dr Wynn Owen agreed that the fact that Mr Lyddieth's offending cycle formed a recognised pattern was important in considering management options. Though he had demonstrated an ability to adjust his pattern of behaviour in 2002, Dr Wynn Owen agreed that it is unlikely that he would suddenly become an impulsive offender. However, the ability to moderate or adjust his behaviour to conditions might make it

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difficult to pre-empt his offences. His lack of honesty with the psychologist in 2002 was also a factor in this regard.

83 Dr Wynn Owen was asked in cross-examination whether he had formed a view about whether Mr Lyddieth had progressed to andropause. He said that whilst Mr Lyddieth had reported masturbating less frequently and having less sexual interest, he had also not been an entirely reliable witness throughout his life. Dr Wynn Owen said that he did not necessarily accept Mr Lyddieth's own report without some testing reinforced by behavioural evidence. As to whether andropause would dramatically reduce his risk of re-offending, Dr Wynn Owen said that it would reduce the risk but he was not sure that it would dramatically do so. He said this would depend upon what stage of andropause Mr Lyddieth was in. He said that there was a difference between the ability to function sexually and a person's fantasy world. He said Mr Lyddieth had a very persistent fantasy world as opposed to simply having a high sex drive. He said that these two things were not necessarily as directly linked as might be supposed. He said that Mr Lyddieth's behaviour was not just about sex drive but also about meeting his day-to-day needs.

84 Dr Wynn Owen agreed with Dr Tanney that a cognitive behavioural therapy approach would now be appropriate. He said that some literature suggested that people with a personality disorder were more likely to benefit from this type of therapy than an emotionally based approach. Such therapy sessions should be at least once a week otherwise treatment gains would be lost between sessions.

85 Like Dr Tanney, Dr Wynn Owen did not necessarily suggest that a supervision order was appropriate but if such an order was made he did suggest some of the conditions that would be necessary to reduce the risk of re-offending. These included one-to-one counselling, engagement with a community based sexual offender treatment programme, abstinence from alcohol and cannabis monitored through random screening, attendance at a programme to address alcohol and substance abuse, abstinence from pornography including no access to the internet, 24 hour electronic monitoring and intensive assertive monitoring by a corrections officer.

Efforts to address offending behaviour - s 7(3)(e)

86 It is necessary to consider whether Mr Lyddieth has made any efforts to address the cause or causes of his offending behaviour including participation in any rehabilitation programmes: s 7(3)(e). As previously mentioned, he has completed three intensive sex offender treatment

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programmes whilst in prison. The first of these was completed in 2001. The treatment completion report states that Mr Lyddieth experienced difficulty with emotional regulation in the course of this programme and his behaviour was described as 'extremely manipulative and aggressive'. He was nevertheless considered to have been motivated to address his behaviour and attitudes.

87 Once released on parole in 2002 he attended a community based sex offender maintenance programme on a fortnightly basis. He did not complete this programme due to his re-offending. A later report described him as being unable to manage anxiety, lacking problem solving skills and 'having a tendency to catastrophise, holding a particularly negative outlook' (exhibit 2, page 449). As a consequence of these concerns he was referred to individual counselling with a psychologist. He re-offended soon after commencing the individual counselling.

88 Upon returning to prison, Mr Lyddieth completed two further intensive sex offender programmes in 2003 and 2007 respectively. The completion reports for both programmes indentified inappropriate behaviours during his participation. In respect of the 2007 programme, he was described as demonstrating 'a propensity to be verbally abusive and/or patronising towards other group members even after they informed him of the impact of his behaviour on them' (exhibit 2, page 533). The reports suggested that Mr Lyddieth had made some treatment gains though his capacity to translate those gains into substantial behavioural change and appropriate self-management was questioned. The reports described Mr Lyddieth's relapse or self-management plans as being either vague or under-developed and lacking the detail to address the behaviours specific to his offending. The need for further treatment to specifically address the management of sexual fantasies was identified.

89 Mr Lyddieth has also been involved in a number of individual counselling sessions in prison. However, these sessions did not result in any significant outcome due to his level of motivation to address the identified issues.

Other medical psychiatric, psychological or other assessments - s 7(3)(b)

90 Over Mr Lyddieth's long period of incarceration he has been the subject of a number of psychological and psychiatric assessments. Reports of these assessments were included in the books of materials tendered on this application. They are consistent with the more recent reports of Dr Tanney and Dr Wynn Owen, which have largely superseded the earlier reports. Nonetheless, it is relevant to note that the matters

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noted in the recent psychiatric reports have been previously commented upon and that Mr Lyddieth's risk factors remain very largely unchanged.

The propensity to commit serious sexual offences in the future - s 7(3)(c)

91 There can be no doubt that at the time of the offending between 1987 and 1991, Mr Lyddieth had a very significant propensity for committing serious sexual offences. At that time the sentencing judge said:

You knew full well that you were terrifying them but it seems you enjoyed doing so. You did not spare them when they begged you to do so. Although your conduct was such as to demonstrate that you were, until caught, a truly dreadful menace to the young women of our community (ts 345).

92 The question is whether that propensity continues or has diminished over time. The evidence of Dr Tanney and Dr Wynn Owen, which I accept, indicates that there has been no significant diminution of sexual fantasy and that the risk of re-offending remains significant.

93 The passage of time would provide some basis for a conclusion that propensity has diminished if there was evidence to support the existence of andropause. There is no evidence in this regard other than Mr Lyddieth's self-reports of declining sexual interest. However, this was not necessarily accepted by Dr Wynn Owen and is contradicted by evidence as to the continued existence of a significant sexual fantasy life. In these circumstances, it must be concluded that Mr Lyddieth continues to have a propensity to commit serious sexual offences in the future.

Whether or not there is any pattern of offending behaviour - s 7(3)(d)

94 There does appear to have been a pattern of offending behaviour, at least as regards the offending between 1987 and 1991. That pattern is that Mr Lyddieth would target and secretly observe a woman in whom he was sexually interested. He would then wait for a time when the woman was alone at home at night, often asleep. He would then break into the house and sexually assault the woman, obtaining compliance by threats of violence. On most occasions this involved the use of a knife and at least on some occasions he made efforts to conceal his identity.

95 It must be said that the offending in 2002 was not within the category of serious sexual offences. Significantly, however, it did involve elements of voyeurism which was a precursor to the earlier offending cycle. The psychiatrists were of the view that the 2002 conduct would likely have led to more serious offences if Mr Lyddieth had not been apprehended and

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charged. To this extent, it is relevant to note that the pattern of his behaviour changed in that the 2002 offences occurred during the day and in public places. For this reason it cannot be assumed that any future behaviour would necessarily be so fixed in its pattern as to enable assumptions to be made about the effective management of risk.

The risk that a serious sexual offence would be committed if a continuing detention order or supervision order was not made - s 7(3)(h)

96 On the basis of the psychiatric evidence, Mr Lyddieth continues to present as a moderate to high risk of committing further serious sexual offences. This assessment of risk takes into account his present age. Whilst Mr Lyddieth has undertaken a number of treatment programmes, it is clear that they have not resulted in any significant reduction in the risk of his offending. He has learnt to give what appear to be appropriate responses but his ability to change his behaviour is not apparent to those who have assessed him.

97 The occurrence of andropause would be a relevant factor to take into account. It was suggested on Mr Lyddieth's behalf that I could assume that andropause had occurred given his own account of declining sexual interest and his age. However, the evidence is that andropause can occur at any time between 55 and 70. Dr Wynn Owen was not necessarily willing to accept Mr Lyddieth's own account of his sexual interest and Mr Lyddieth did not give evidence in these proceedings. In those circumstances, I am unwilling to speculate on whether andropause has occurred. In any event, as the psychiatrists have indicated, the occurrence and effect of andropause differs from person to person. In any event, what the evidence does establish is that Mr Lyddieth maintains an active and entrenched sexual fantasy life and that in the past this has been a significant driver pushing him to the commission of offences.

98 Given the available evidence, I am of the view that there is a significant risk that if he was not subject to a continuing detention order or supervision order, Mr Lyddieth would commit a serious sexual offence.

The need to protect members of the community from that risk - s 7(3)(i)

99 Mr Lyddieth's previous sexual offending was of an extremely serious nature. It involved deliberately targeting women in vulnerable circumstances and using force and threats of violence to achieve compliance. As the sentencing judge said in 1991:

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[A mere summary of Mr Lyddieth's offending conduct] does not disclose the fear and the suffering that [he] caused to so many perfectly innocent persons.

100 Indeed, he was not deterred by, and indeed seems to have been oblivious to, the distress and harm that his actions caused. The risk that another offence of this nature might be committed must be negligible before it would be seen as acceptable. There is clearly a need to protect members of the community from the risk that Mr Lyddieth presents.

Any other relevant matter

101 During the course of the hearing there was reference to the fact that in 2008 the ineffectiveness of treatment programmes and the need for some different approach was identified. The psychiatrists agreed that at that stage the need for cognitive behavioural therapy should have been recognised and such therapy should have been supplied. The implication was that the authorities had failed in this regard. If it was a failure, it does not assist with the decision that now must be made.

Conclusion - serious danger to the community

102 Mr Lyddieth presents as a moderate to high risk of committing further serious sexual offences if he is not subject to a continuing detention order or a supervision order. That risk is heightened because of:

• his lack of an appropriate release plan;

• his failure to achieve significant behavioural change; and

• his proven failure to use support services when released in 2002 to address the commencement of an offending cycle.

103 I accept that that risk may have reduced to some extent due to age, at least to the extent that this is a factor used in the STATIC-99R test. I also accept that research indicates that recidivism in rape offenders falls away more markedly with age than with child sex offenders. However, the risk remains a significant one and the nature of the offences likely to be committed is also a relevant factor to take into account. The risk is not one that relates only to a single potential victim or a small class of potential victims. All women, particularly younger women, would be at risk.

104 In these circumstances, I am satisfied to a high degree of probability that there is an unacceptable risk that Mr Lyddieth would commit a

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serious sexual offence if he was not subject to a continuing detention order or a supervision order. Accordingly, I find that he is a serious danger to the community.

Continuing detention order or supervision order

105 In deciding whether to make a continuing detention order or a supervision order the paramount consideration is the need to ensure adequate protection of the community: s 17(1) and s 17(2).

106 When considering whether a supervision order would adequately protect the community it is necessary to take into account any conditions which can be placed on a supervision order so as to ensure adequate protection of the community, the rehabilitation of Mr Lyddieth and his care and treatment: s 18(2).

107 It is clear from the evidence of the psychiatrists that conditions could be imposed on a supervision order that would address, to some extent, the risk of re-offending. However, those conditions relate almost exclusively to containment and control of external factors. The fact remains that one of the most significant factors influencing Mr Lyddieth's behaviour is his sexual fantasies. Because these fantasies are an important motivator and sustain his sense of emotional wellbeing they do not appear to have diminished over time. Mr Lyddieth has, in the past, shown an ability to adjust his behaviour to accommodate the conditions under which he finds himself and this may well occur again. Because Mr Lyddieth's thinking has not been modified in any significant way any conditions could only serve to potentially contain the risk rather than reducing it. This means that a breach of the conditions would carry with it a real risk of re-offending. Furthermore, I doubt that any degree of containment would reduce the risk to an acceptable level.

108 It must be noted that no treatment has yet proven effective. Whilst cognitive behavioural therapy is now suggested its likelihood of success is unknown. To release Mr Lyddieth on conditions that included participation in such therapy on an assumption that this would reduce the risk of re-offending would be premature.

109 Furthermore, both psychiatrists suggested that Mr Lyddieth would require intensive individual monitoring. Effectively what was proposed was 24 hour supervised care. This is a reflection of the degree of risk involved. There was no evidence that this level of supervision was available or could reasonably be expected to be provided.

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110 The possibility of electronic monitoring was referred to, but this has limited usefulness. The type of monitoring presently availably only extends to enforcement of a curfew by ensuring that the person is within a set distance of the device, usually placed in the residence. Such monitoring was unsuccessful in preventing the commencement in 2002 of behaviour that had the potential to lead to serious sexual offending. Even if it was assumed that GPS monitoring would be soon available it would not necessarily be an adequate preventative. Whilst Mr Lyddieth's past conduct has followed a pattern it cannot be assumed that a pattern would necessarily be obvious to a person monitoring his movements. Following a set route or repeatedly going to a certain location may not necessarily indicate an offending cycle. In any event, the risk is so significant and the nature of the likely offence so serious that such monitoring would not provide an adequate degree of protection.

111 There are some positive indications that Mr Lyddieth has utilised his time in prison to acquire vocational skills. If he was able to obtain work in the community that may be relevant to risk in that it would better integrate him into the community and provide a positive outlet for his time and energy. However, Mr Lyddieth has not expressed an interest in obtaining employment. In any event it is not a factor that weighs significantly against others I have referred to.

112 There was some evidence that Mr Lyddieth had some support in the community. A social welfare organisation was willing to assist him with accommodation and in negotiating life in the community. I have taken that into account. However, it falls far short of the intensive, assertive supervision that the evidence shows is necessary.

113 In my view, there are no conditions that would either be effective or adequate to manage the risk that Mr Lyddieth presents, or reduce it to an acceptable level. I come to that conclusion recognising the very serious consequences to Mr Lyddieth of him being further detained. Having said that, there are options for his treatment whilst in custody that may have the effect of reducing the risk. In particular, there is some possibility that cognitive behavioural therapy may be effective. This can be delivered in the prison environment.

114 Pursuant to s 17(1) of the Act I order that Dennis John Lyddieth be detained in custody for an indefinite term for control, care and treatment.