Director of Public Prosecutions (WA) v Lyddieth [No 2]
[2013] WASC 344
•10 SEPTEMBER 2013
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL
CITATION: DIRECTOR OF PUBLIC PROSECUTIONS (WA) -v- LYDDIETH [No 2] [2013] WASC 344
CORAM: EM HEENAN J
HEARD: 24 JULY & 12 AUGUST 2013
DELIVERED : 10 SEPTEMBER 2013
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) - Continuing detention order - First annual review of detention - Whether indefinite detention order or supervision order appropriate
Legislation:
Dangerous Sexual Offenders' Act 2006 (WA), s 7, s 17, s 29, s 31
Result:
Decline to rescind continuing detention order
Category: B
Representation:
Counsel:
Applicant: Mr A G Elliott
Respondent: Ms M R Barone
Solicitors:
Applicant: Director of Public Prosecutions (WA)
Respondent: Barone Criminal Lawyers
Case(s) referred to in judgment(s):
Director of Public Prosecutions (WA) v Comeagain [No 2] [2011] WASC 16
Director of Public Prosecutions (WA) v Decke [2009] WASC 312
Director of Public Prosecutions (WA) v Lyddieth [2012] WASC 246
The State of Western Australia v Lattimer [2006] WASC 235
The State of Western Australia v Narrier [2010] WASC 57
EM HEENAN J: After a hearing on 5 and 6 June 2012 Hall J ordered and declared that, having found Dennis John Lyddieth to be a serious danger to the community, he be detained in custody for an indefinite term for control, care or treatment. That order and declaration were made pursuant to s 7 and s 17 of the Dangerous Sexual Offenders' Act 2006 (WA).
By application dated 17 April 2013 the Director of Public Prosecutions for Western Australia (DPP) applied for an order that Mr Lyddieth's detention under the order made by Hall J be reviewed as soon as practicable after 5 July 2013 pursuant to s 29 and s 31 of the Act. That application was for the court to conduct the first annual review of the order for continuing detention that is necessary under the Act. On 23 April 2013 McKechnie J made a series of orders and directions in relation to the forthcoming review. McKechnie J listed the application for review for hearing on 24 July 2013 and directed that the CEO of the Department of Corrective Services should arrange for the examination and report of Lyddieth by an independent consultant psychiatrist, Dr Peter Wynn Owen, such report to be provided to the DPP on or before a date two weeks prior to the hearing of the review. The directions also required Dr Wynn Owen to liaise with the Department of Corrective Services as to a management plan (if appropriate) for Lyddieth and gave further directions permitting Dr Wynn Owen to be supplied with and to view any audio‑visual recordings or interviews with the respondent or transcripts of them in order to prepare his report.
The review came on for hearing before me as ordered on 24 July 2013. Evidence was then received both in documentary form and by oral testimony and witnesses were examined and cross‑examined. The hearing was not completed on that day. It also emerged that further information would be needed by the applicant to complete the hearing. It was thereupon adjourned for further evidence on 12 August 2013. The hearing resumed on that day, further evidence was taken and submissions made, at the end of which I reserved my decision.
Background
All the details of Lyddieth's previous convictions and the sentences imposed are set out in the reasons for decision of Hall J in Director of Public Prosecutions (WA) v Lyddieth [2012] WASC 246. However, a brief summary is desirable.
On 6 April 1992 Lyddieth pleaded guilty to a series of offences before White J, sitting in this Court. His Honour took time to consider the sentences to be imposed and later sentenced the offender on 1 May 1992 to a total effective sentence of 19 years and 1 month's imprisonment. That aggregate sentence related to 48 offences, comprising 12 counts of breaking and entering a dwelling‑house in the night‑time with intent to commit an offence therein; one count of breaking and entering a dwelling‑house with intent to commit an offence therein; 16 counts of aggravated sexual assault; six counts of sexual assault; nine counts of indecent assault; one count of robbery while armed with a dangerous weapon, namely a knife and using personal violence to the complainant; one count of assault with intent to commit a crime; one count of attempted sexual assault while armed with a dangerous weapon, namely a knife; and one count of theft. As White J said, between 13 November 1987 and 22 September 1991, a period of nearly four years, Lyddieth committed 48 serious offences against 13 young women, in each case breaking and entering their dwelling‑houses to do so. In the case of 12 of his victims, the offences were committed in the night‑time.
The learned sentencing Judge said that his summary of the offences set out in his reasons for decision was necessarily somewhat sparse, adding:
It does not disclose the fear and the suffering that you caused to so many perfectly innocent persons. It is an appalling catalogue of extremely serious offences. These offences were carefully and cunningly planned. You selected your victims with care and kept them under surveillance while you planned to break into their dwelling‑houses and sexually assault them. 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. Altogether your conduct was such as to demonstrate that you were, until caught, a truly dreadful menace to the young women of our community.
After reviewing the applicable sentencing principles and taking into account the totality principle, White J concluded that he should take the period of 24 years' imprisonment as being an appropriate starting figure for the assessment of the sentences to be imposed upon him and then to take into account Lyddith's pleas of guilty, his co‑operation with the police, and his admission of offences not previously reported to the police.
Because of those facts and because of what his Honour considered to be a genuine sense of remorse, the starting aggregate sentence was reduced by a period of 4 years. There was a further reduction to take into account the period of approximately 11 months which Lyddieth had been in custody before being sentenced. By this means, his Honour arrived at a total period of imprisonment of 19 years and 1 month which, effectively, was a sentence of 20 years' imprisonment, although that represented the aggregate resulting from the addition of particular shorter sentences imposed for the various offences, some of which were ordered to be served cumulatively and others concurrently. It will be noted that the total period of imprisonment, if Lyddieth was never paroled, would have meant that he would not be released from prison until 1 June 2011.
However, Lyddieth was released on parole on 3 January 2002 – that is a little over 9 years and 6 months after his sentence – effectively after 10 years taking into account his pre-sentence custody. During this parole he committed further offences in March and June of 2002, leading to his arrest. For these new offences, he was sentenced to an additional 12 month's imprisonment and his parole was cancelled. Subsequent reviews of his eligibility for further parole all resulted in further parole being declined.
Lyddieth completed the service of his original sentences and the additional period of 12 months' imprisonment which had been imposed in June 2002 on 18 June 2012 – that is, after nearly 20 years of imprisonment, a period of continuous confinement except for a period of a little less than 6 months on parole in 2002. However, before the date when he was due for release, the DPP applied for an order that he be detained in custody under this Act and that led to the declarations and orders made by Hall J on 6 July 2012 already mentioned.
When making that order Hall J considered whether, in all the circumstances, continuing detention was then required or whether a supervision order for Lyddieth would be adequate for the protection of the community (see [105] – [114]). His Honour declined to order release on a supervision order because the psychiatric evidence revealed that Lyddieth's thinking had not been modified in any significant way. His Honour observed that whilst cognitive behavioural therapy was then suggested, its likelihood of success was unknown. He also mentioned that a psychiatrist who had given evidence on the original application had suggested that Lyddieth would require intensive individual monitoring and his Honour was not satisfied that that would then be sufficient, even with the possibility of electronic monitoring. Nevertheless, his Honour observed:
[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.
In the end, his Honour concluded that there were no conditions which he could then impose that would either be effective or adequate to manage the risk that Mr Lyddieth presented or reduce it to an acceptable level.
Since then Lyddieth has undertaken further programmes within the prison and, as the evidence received on this application demonstrated, has made progress and has developed a rapport with his attending psychologist. This calls for these views to be re‑examined in the light of events over the past 12 to 14 months.
Evidence on review
At this review hearing all the materials which were in evidence before Hall J on the original application were again tendered and accepted.
In addition, a book of materials was prepared by the DPP containing various reports and other data, all of which were tendered by consent. This included a Department of Corrective Services charge history and a separate incidents history covering the 12‑month period from 3 May 2012 to 3 May 2013 and a DCS prison incident description report of an incident occurring on 12 July 2012 and of another incident occurring on 19 September 2012. These were described as non‑critical incidents and related to occasions when, as a prisoner, Lyddieth refused for some time to obey an order to move cells. The refusal was overcome, Lyddieth showed remorse, and it was noticed that his employment record was said to be very good. Only minor penalties were imposed. There was another earlier incident in November 2012 when he was found guilty of using cannabis and given 21 days' confinement in a punishment cell, but there was nothing to suggest that he was a threat to himself, to prison officers or other inmates. He was classified as remaining in medium security. Under his management plan of March 2013 he was to remain at Casuarina Prison for ongoing counselling by the dangerous sex offender psychology team.
The materials received include a letter from Dr Fitzclarence, Deputy Director of Prison Health, of 13 May 2013, which described Lyddieth as having a number of medical problems, including diabetes, ischaemic heart disease with procedural cardiac intervention, hypertension, hyperlipidaemia and chronic laryngitis. He was noted to be overweight and had changed some of his medications after a medical examination in July 2012. He had an ear complaint which received treatment throughout the latter part of 2012. In March of 2013 he had blood tests indicating a need for further intervention for his diabetes and his cholesterol for which future treatment was then being arranged.
Longer and very thorough reports which will be examined in more detail later were also provided by:
•Mr David Summerton, psychologist, of 4 July 2013
•Dr Peter Wynn Owen, consultant forensic psychiatrist, of 9 July 2013
•Community supervision assessment report by Jane Dabala, Senior Community Corrections Officer, Public Protection Unit, Department of Corrective Services, of 15 July 2013
Evidence was also tendered on behalf of Mr Lyddieth comprising:
•An article by R Karl Hanson, 'AgeaAnd Sexual Recidivism: A Comparison Of Rapists And Child Molesters' (2001 – 201?)
•A series of statements of academic record for courses completed in prison by Lyddieth, provided by TAFE WA and showing the completion of a cognitive skills reasoning and rehabilitation programme administered by the Department of Justice and other specialist training courses.
The evidence for the respondent included a communication from Mr John Daniel, team leader of Outreach Services, of Uniting Care West, detailing assistance which that organisation was in a position to provide for Lyddieth if he were released or placed on a supervision order.
Applicable principles
Counsel for the respondent submitted that the provisions of the Act and relevant principles applicable to this review application had been summarised by Blaxell J in Director of Public Prosecutions (WA) v Comeagain [No 2] [2011] WASC 16 [20] – [21]. I accept that submission. Blaxell J referred to s 33 of the Act which provides that the Court must rescind the continuing detention order if it does not find that the offender remains a serious danger to the community but that, if it is found that he does remain a serious danger, the Court can either expressly decline to rescind the order or rescind the order. If the order is rescinded, the Court is obliged to make a supervision order for a specified period and upon appropriate conditions, in which case the paramount consideration is the need to ensure adequate protection of the community.
At [21] Blaxell J observed:
Consistent with the authority of Director of Public Prosecutions v Williams [2007] WASCA 206 [79] if making a decision under s 33(2) I should adopt the least restrictive alternative compatible with the protection of the public. In that regard, and in the absence of evidence to the contrary, [the Court] should assume that in the event that a supervision order is made, resources will be made available to provide adequate supervision (Williams [81]; Attorney-General for Queensland v Francis [2006] QCA 324 [36]).
While protection of the community is of paramount consideration, it is not the exclusive consideration nor, as Hall J explained in Director of Public Prosecutions (WA) v Decke [2009] WASC 312 [14] does it necessarily favour the continuation of an indefinite detention order. His Honour there observed that 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. In The State of Western Australia v Lattimer [2006] WASC 235 and Director of Public Prosecutions v Decke [2009] WASC 312 there is support for the proposition advanced by counsel for the respondent that the Act requires the Court to do what is necessary for the continuing control, care or treatment of the respondent to achieve an adequate degree of protection for the community but not more.
In the course of examination of the witnesses for the applicant and in her final submissions, counsel for Mr Lyddieth conceded that he remains a serious danger to the community. The evidence supported and required that concession and I am satisfied that it was correctly made. Nevertheless, it is submitted for Lyddieth that the Court should rescind the indefinite detention order and replace it with a supervision order.
The basis for these submissions by the respondent is the contention that the current legislation is adequate to protect the community in the event of a breach of any actual condition of a supervision order, especially in view of the need for extensive and precise conditions to be included, which would address any areas of risk for reoffending by Lyddieth or signal a decline into behaviour with an unacceptable attendant risk of consequent offending. It was pointed out that even if the respondent, while on a supervision order, did not commit any offence, an allegation that he breached a term or condition of a supervision order would be sufficient for him to be arrested and returned to custody by this Court pending determination of any contravention proceedings ‑ The State of Western Australia v Narrier [2010] WASC 57 [13] – [24] (Murray J).
Furthermore, submissions for the respondent stress that he is presently 61 years of age, having been born on 30 August 1951, and has spent all but about six months of the last 21 years in prison. Counsel stresses, and relies on the Canadian article tendered for the proposition that the risk of reoffending declines with age and particularly after the age of 60 years, and that the decline in reoffending is more marked for rapists than for other categories of sexual offenders. It was also submitted that Lyddieth's various chronic medical conditions would suggest a reduction in his risk of returning to his former style of offending. In particular, counsel stresses the respondent's awareness of the consequences of reoffending and of his motivation to remain out of prison. It is not suggested that his behaviour is influenced by any psychiatric disorder or psychological abnormality or that he does not have a proper appreciation of the consequences of further offending or of breach of any conditions.
The investigations and examinations of Lyddieth conducted by psychiatrists in the past and by his present treating psychologist reveal that he has a clearly identifiable cycle leading to offending involving the development of various sexual fantasies resulting from the use of pornography, stalking of victims and then eventual conduct. His behaviours in the past have been planned and intended involving the targeting of victims. The submissions by his counsel are that his pattern of behaviour in preparation for offences in the past is clearly recognisable and is accompanied by a progression or escalation over time before the commission of offences which should be recognisable if it were to be repeated. It is also stressed that this cycle of fantasising and arousal leading to offences may take an extensive time before an offence is committed. Consequently, submissions were advanced that mandatory GPS monitoring and the use of a diary to be submitted to a supervising officer would enable close monitoring of all his movements so that:
The existence of a fixed offending cycle with markers of increased alcohol use and the travelling of 'routes' increased the likelihood of being able to identify the respondent's behaviours that are pre‑cursors to serious sexual offending.
Furthermore, it is submitted that the respondent's present circumstances are very materially different from those which prevailed when he was released on parole in 2002, following which he committed further offences, although no indecent assaults or attempts at such assaults then occurred. In this regard, it was submitted that in 2002 Lyddieth was released into the open community without any preliminary transitional steps, with little financial assistance or preparation for employment, and with very little in the way of support for life skills or resources after 10 years in prison had left him isolated and friendless.
By contrast, it is submitted that if he were now released subject to a supervision order, he would have social and emotional support from Outreach involving regular home visits and practical supports, including assistance with financing and shopping. The evidence of Mr Summerton indicated that current supports available in the community are better than those which existed for Lyddieth in 2002 and that he is better prepared for release now than then. In particular, he has now established a satisfactory therapeutic relationship with Mr Bell, a psychologist of the Dangerous Sexual Offenders Unit, and that his risk could be managed in the community at this time.
Ms Debala, a community corrections officer, is also of the opinion that Lyddieth is capable of being satisfactorily supervised in the community at the present time and, although being more cautious, Dr Wynn Owen is of the opinion that supervised community risk management should be considered. The ultimate submission for the respondent was that community supports are likely to reduce Lyddieth's risk of reoffending generally but, more importantly, are likely to reduce the risk of the offence cycle recommencing.
Issues for determination
On this present application it is necessary for the Court to determine whether (a) Mr Lyddieth is a serious danger to the community; and (b) if he is, whether the appropriate order of the Court should be not to rescind the present indefinite detention order or, instead, release him into the community on a supervision order.
In making these determinations, the Court is obliged to have regard to the matters specified in s 7(3), namely:
(a)any report that a psychiatrist prepares as required by s 37 for the hearing of the application and the extent to which the person co‑operated 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 programme;
(f)whether or not the person's participation in any rehabilitation programme 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.
In view of the concession that Lyddieth remains a serious danger to the community, these criteria indicate that while all these factors are relevant, some are of greater relevance. Obviously, the psychiatric and psychological assessments undertaken are important, together with any information indicating whether or not Lyddieth has a propensity to commit serious sexual offences in the future and this involves a consideration of the pattern of offending behaviour demonstrated by his previous offences. I am satisfied that he has co‑operated with the psychiatrist, Dr Wynn Owen, when examined and has also co‑operated with the psychologists who have been involved in his assessment. Of obvious significant importance is the need to protect members of the community from any risk of reoffending by an adequate measure.
Evidence of psychologist David Summerton
In his report of 4 July 2013, Mr Summerton referred to observations about the offender's prior poor response to treatment during his three intensive sex offender treatment programmes (ISOTP) which led Dr Wynn Owen and Dr Tanney, when reporting before the 2012 hearing, to conclude that he had demonstrated limited learning and behavioural change as a result of his involvement in the treatment and that there were reports suggesting that further ISOTP programmes should be conducted together with an assessment of drug and alcohol use.
Since July 2012 Lyddieth has been engaged in individual counselling by the DSO psychologist, Mr Bell, initially on a fortnightly basis and later on a weekly basis. These have indicated an improved response and attitude and a recognition of the role that his poor self‑esteem has played in responding to previous ISOTPs. While recognising these improvements, Mr Summerton considers that Lyddieth is likely to face considerable challenges if released into the community and could be expected to remain isolated. His conclusion is that Lyddieth has made steady progress in individual counselling since his final hearing in 2012 and that there is evidence suggesting that he continues to downplay a number of problematic issues. His denial of current sexual fantasies as described by Dr Wynn Owen is one illustration of this which became apparent during the course of the hearing. Mr Summerton concluded by observing that the respondent will probably attend a sex offender maintenance programme and be referred for specialist substance use intervention - cannabis and alcohol, as appropriate.
Evidence of Dr Wynn Owen
Dr Wynn Owen prepared a detailed report on 9 July 2013 of some eight pages and gave extensive oral evidence and was cross‑examined. He addressed specifically the respondent's sexual reoffending risk assessment conducted in 2012, which resulted in the risk being quantified as being at least a three in 10 risk of relapse in the five years following release, indicated by the Static‑99R methodology and increased by the presence of antisocial personality disorder. He said that this risk would be increased further in the presence of alcohol use, cannabis use and/or the use of pornography. In cross‑examination he emphasised that this was a static analysis based solely on Lyddieth's past record of offending. Dr Wynn Owen then turned to a treatment progress report of 2013 undertaken by the psychologist, Mr David Summerton, and the improvements which have been noted. Importantly, he wrote:
Notwithstanding this, Mr Lyddieth has continued to deny any sexual fantasy (deviant or non‑deviant) citing his age and health as reasons for a lack of sexual drive. It is noted with reference to self‑management and problem solving, two areas of identified weakness for Mr Lyddieth, that his responses to questions about self‑management and potential reoffending were 'adequate if not somewhat simplistic' and 'invariably involved seeking assistance'. His plans for management of substance abuse were noted to be 'somewhat undeveloped'.
Dr Wynn Owen also noted observations that Lyddieth is unlikely to experience any discernible improvement on his level of risk by further intervention in custody and that he remains inclined to downplay problematic issues and this may be a factor in his capacity to effectively manage identified problems with stress. The opinion which Dr Wynn Owen formed as a result of his review of Lyddieth's past 12 months in prison, and in particular his psychological therapy assessment, was that there has been some progress and a good rapport with the therapist but there had not been a recognition or admission of sexual fantasy or fantasy management and that this led to limited discussion regarding coping strategies. He also was concerned about inadequate plans for dealing with alcohol and substance use risk leading to his observation:
This seems little different to his position of 12 months ago. It is my opinion from a review of the psychological intervention over the last year that while change is in the right direction there remains a simplistic and superficial approach to self management and risk which tends to rely heavily on the support of others.
Dr Wynn Owen addressed recommendations for future risk management depending upon whether or not Lyddieth remained in detention or was released on a supervision order. If continuing detention resulted, Dr Wynn Owen recommended one‑to‑one psychological counselling to prepare for release with particular attention to self awareness, fantasy management and self management; understanding of risk situations and risk avoidance. He also recommended self care in a low security prison environment and participation in a programme or programmes to address alcohol and substance use. If release into the community was the result, Dr Wynn Owen recommended that Lyddieth should have ongoing individual therapy to address the self awareness issues already mentioned and to reinforce risk mitigation strategies; that he should abstain from alcohol and cannabis and other illicit drugs and that this should be monitored through random screening (urine and breathalyser) and that he should participate in programmes to address alcohol and substance use and be subject to GPS monitoring.
Dr Wynn Owen considered that Lyddieth's risk of reoffending would be increased by depression or anxiety and that the presence of his antisocial personality disorder is a risk for the development of anxiety and affective disorders, all of which could be encountered by the stresses of release and adjustment to life in the community.
In short, the impression I obtained from the evidence of Dr Wynn Owen, both written and oral, was that he considered that more positive progress was needed by Mr Lyddieth to demonstrate coping skills within the prison environment before his claimed readiness to deal with risk factors could be regarded as being reliable. It was quite evident that Dr Wynn Owen regarded Lyddieth's denial of current sexual fantasies as barely credible and as probably masking a reluctance to grapple with a need to develop special strategies outside of prison to deal with inclinations which could be expected to occur. It was also evident that Dr Wynn Owen perceived the lack of special strategies and the continuing need for participation in programmes dealing with alcohol and drug abuse as areas of concern. I acknowledge that Dr Wynn Owen regarded the development of the improved therapeutic relationship between the psychologist, Mr Bell, and the offender as beneficial and a good indication, but I was left with the distinct impression that more demonstrated progress needed to occur before those positive signs could be regarded as a sufficient response to any continuing risk of reoffending.
Community supervision report – Ms Julie Debala
This report by the senior Community Corrections Officer of the Public Protection Unit was expressly endorsed by the acting co‑ordinator of the Dangerous Sexual Offenders Services Public Protection Unit and the acting manager of that unit or on behalf of the chief executive officer of the Department of Corrective Services and is dated 15 July 2013. It contains a review of the community supports available in 2012 (limited form) and those which are now available, including support for accommodation from Outcare Services and the Department of Housing. The hearing proceeded on the basis that suitable community housing accommodation would be available by September 2013 if required.
The strategies suggested to manage Lyddieth's behaviour included subjection to global positioning system tracking (GPS), participation in approved leisure activities, assessment for anti‑anxiety medication and alcohol and drug counselling, together with random regular urinalysis testing to supervise conditions of alcohol and drug abstinence. The report was positive for the availability of suitable accommodation and support services. It contained a suggested set of standard conditions for a supervision order which, with some supplementation, was agreed by the parties to be adequate if a decision was made to allow Lyddieth's release on a supervision order. The supplementation proposed included the keeping of a diary, to be shown to the DSO officers at regular intervals; a regime to supervise any internet usage to ensure that there was no access to pornographic or similar sites; and some refinements of the provisions for GPS monitoring.
All these measures amount to substantial precautions and extensive monitoring of this offender if he were to be released into the community. However, counsel for the DPP stressed that no monitoring, even by GPS, could be regarded as completely effective and that there remained an ever present risk that Lyddieth could adapt his previous pattern of behaviour or offending, particularly if he was influenced by a number of the risk factors for which adequate counter-strategies do not yet appear to have been developed, and so present a risk to the community. It may, of course, be said that apprehensions of this kind can always be identified and that no method of supervision is ever going to be entirely adequate because there may be some scope for evasion which appears to a devious mind intent upon future offending. To put the matter this way, to my mind, would be to suggest that the concerns of the applicant and of Dr Wynn Owen are over‑scrupulous, but I do not consider that they should be treated in that way. First of all, there are clear indications that despite the progress which Lyddieth has made in prison and the optimism which may arise from his satisfactory psychological relationship with Mr Bell, there are still areas of concern associated with his inadequate awareness of the risks posed by alcohol, drug use and/or pornography. A certain degree of lack of frankness suspected to exist because of his denial of sexual fantasies creates unease because, as put by the applicant in his submission, he 'may be concealing that information because revealing it would disclose a greater level of risk than might otherwise be supposed'. As already observed, I consider that the evidence of Dr Wynn Owen distinctly suggested that he was of that view.
Nor must it be forgotten that Lyddieth's pattern of offending, which continued for over four years before he was apprehended, involved appalling behaviour to young women, especially those living alone, made worse by the deliberate targeted planning which preceded the various offences. The Court must, therefore, bear in mind that the consequences of Lyddieth reverting to his former pattern of offending would be extremely grave and absolutely devastating for any innocent victim unfortunate enough to be the target of his unsuspected attentions.
Conclusion
Lyddieth's progress has certainly improved and there is evidence which, on one view, might be regarded as justifying his release now on a supervision order subject to the stringent conditions proposed. However, I consider that the better view of the evidence is that while such an eventuality may, indeed, be in prospect, more needs to be established to deal with the reservations identified by Dr Wynn Owen and the supervising psychologist before the Court could be satisfied that there is adequate protection for the community by release under a supervision order. If the regime of further programmes and investigation recommended by Dr Wynn Owen is to be undertaken in prison over the next 12 months and the satisfactory psychological relationship with Mr Bell continues, it may be possible then to conclude that the scales have tilted sufficiently to justify release on a supervision order. At this point, I consider that on balance there would be an unacceptable risk to the community if Mr Lyddieth were to be released on a supervision order.
For this reason, I conclude on this review that the existing indefinite detention order should not be rescinded.
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