Director of Public Prosecutions (WA) v Lyddieth [No 3]
[2014] WASC 391
•27 OCTOBER 2014
DIRECTOR OF PUBLIC PROSECUTIONS (WA) -v- LYDDIETH [No 3] [2014] WASC 391
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2014] WASC 391 | |
| Case No: | DSO:1/2012 | 18 & 22 SEPTEMBER 2014 | |
| Coram: | SIMMONDS J | 27/10/14 | |
| 42 | Judgment Part: | 1 of 1 | |
| Result: | Order made to expressly decline to rescind continuing detention order | ||
| B | |||
| PDF Version |
| Parties: | DIRECTOR OF PUBLIC PROSECUTIONS (WA) DENNIS JOHN LYDDIETH |
Catchwords: | Criminal law Dangerous sexual offender Second annual review of custody under Dangerous Sexual Offenders Act 2006 (WA) div 2 continuing detention order Whether offender remained serious danger to community Whether detention order or supervision order appropriate |
Legislation: | Dangerous Sexual Offenders Act 2006 (WA), s 3, s 7, s 17, s 27, s 29, s 31, s 32, s 33, s 37, s 42 Evidence Act 1906 (WA), S 106A |
Case References: | Attorney-General (QLD) v Francis [2006] QCA 324 Director of Public Prosecutions (WA) v Comeagain [2008] WASC 235 Director of Public Prosecutions (WA) v Comeagain [No 2] [2011] WASC 16 Director of Public Prosecutions (WA) v GTR [2008] WASCA 187; (2008) 38 WAR 307 Director of Public Prosecutions (WA) v Lyddieth [2012] WASC 246 Director of Public Prosecutions (WA) v Lyddieth [No 2] [2013] WASC 344 Director of Public Prosecutions (WA) v Misko [2012] WASC 259 Director of Public Prosecutions (WA) v Misko [No 2] [2013] WASC 300 Director of Public Prosecutions (WA) v Pindan [No 3] [2014] WASC 95 Director of Public Prosecutions (WA) v Williams [2007] WASCA 206; (2007) 35 WAR 297 Director of Public Prosecutions (WA) v Yates [2014] WASC 136 Director of Public Prosecutions for Western Australia v Decke [2009] WASC 312 Italiano v State of Western Australia [2009] WASCA 116 The State of Western Australia v Latimer [2006] WASC 235 The State of Western Australia v West [2013] WASC 14 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CRIMINAL
- Applicant
AND
DENNIS JOHN LYDDIETH
Respondent
Catchwords:
Criminal law - Dangerous sexual offender - Second annual review of custody under Dangerous Sexual Offenders Act 2006 (WA) div 2 continuing detention order - Whether offender remained serious danger to community - Whether detention order or supervision order appropriate
Legislation:
Dangerous Sexual Offenders Act 2006 (WA), s 3, s 7, s 17, s 27, s 29, s 31, s 32, s 33, s 37, s 42
Evidence Act 1906 (WA), S 106A
Result:
Order made to expressly decline to rescind continuing detention order
Category: B
Representation:
Counsel:
Applicant : Ms K Robinson
Respondent : Ms M R Barone
Solicitors:
Applicant : Director of Public Prosecutions (WA)
Respondent : Barone Criminal Lawyers
Case(s) referred to in judgment(s):
Attorney-General (QLD) v Francis [2006] QCA 324
Director of Public Prosecutions (WA) v Comeagain [2008] WASC 235
Director of Public Prosecutions (WA) v Comeagain [No 2] [2011] WASC 16
Director of Public Prosecutions (WA) v GTR [2008] WASCA 187; (2008) 38 WAR 307
Director of Public Prosecutions (WA) v Lyddieth [2012] WASC 246
Director of Public Prosecutions (WA) v Lyddieth [No 2] [2013] WASC 344
Director of Public Prosecutions (WA) v Misko [2012] WASC 259
Director of Public Prosecutions (WA) v Misko [No 2] [2013] WASC 300
Director of Public Prosecutions (WA) v Pindan [No 3] [2014] WASC 95
Director of Public Prosecutions (WA) v Williams [2007] WASCA 206; (2007) 35 WAR 297
Director of Public Prosecutions (WA) v Yates [2014] WASC 136
Director of Public Prosecutions for Western Australia v Decke [2009] WASC 312
Italiano v State of Western Australia [2009] WASCA 116
The State of Western Australia v Latimer [2006] WASC 235
The State of Western Australia v West [2013] WASC 14
- SIMMONDS J:
Introduction
1 Mr Lyddieth is a person subject to a continuing detention order (the continuing detention order) made under the Dangerous Sexual Offenders Act 2006 (WA) (DSO Act) and confirmed at the first annual review after it was made.
2 The Director of Public Prosecutions (DPP) has applied for his detention under the order to be reviewed (the application) by way of the second annual review of the continuing detention order under the DSO Act s 29(2)(b) (the present review).
3 The provision for the review of Mr Lyddieth's detention made in the DSO Act s 33 (the present review) is as follows:
(1) When the court, on an application made under section 29 or 30, reviews a person's detention under a continuing detention order, the court must rescind the order if it does not find that the person subject to the order remains a serious danger to the community.
(2) The court may, if it finds that the person subject to the order remains a serious danger to the community, either -
(a) expressly decline to rescind the order; or
(b) rescind the order and make an order that at all times during the period stated in the order when the person is not in custody the person be subject to conditions that the court considers appropriate and states in the order.
(3) In making a decision under subsection (2), the paramount consideration is to be the need to ensure adequate protection of the community.
4 Pursuant to directions for the hearing of the application and the carrying out of it under the DSO Act s 31 (the directions) that hearing was held over two days (the hearing). Evidence was given on the first day. Closing submissions were given on the second day.
5 These are my reasons for determination of the application.
6 I first provide the background to the application followed by the procedural context to the application.
7 I will then briefly describe those matters the DSO Act requires me to address in the present review.
8 I will then describe Mr Lyddieth's background and history of offending.
9 I will then describe the evidence at the hearing before me.
10 I will then address in detail the matters the DSO Act requires me to address. I begin with the first matter, of whether I find Mr Lyddieth 'remains a serious danger to the community' (see s 33(1)).
11 As I find that Mr Lyddieth remains a serious danger to the community, a matter on which there was no dispute between the parties, I then address the second matter the DSO Act requires me to address, namely, whether either to expressly decline to rescind the continuing detention order (see s 33(2)(a)) or to rescind the continuing detention order and make an order that Mr Lyddieth be released into the community on conditions that the court considers appropriate (see s 33(2)(b)).
12 In making the choice between the two, the paramount consideration is the need to ensure adequate protection of the community (see s 33(3)).
13 For the reasons that follow I consider the appropriate order to be that in the DSO Act s 33(2)(a), that is to say, I would make an order expressly declining to the continuing detention order.
Background to Mr Lyddieth's continuing detention
14 The continuing detention order was made by Hall J under the DSO Act s 17(1)(a). Hall J's reasons are Director of Public Prosecutions (WA) v Lyddieth [2012] WASC 246. The order was made on 6 July 2012.
15 The DPP must apply for annual reviews of a person's detention under a continuing detention order as provided for in the DSO Act s 29.
16 On the first annual review under the DSO Act s 29(2)(a) EM Heenan J concluded that the continuing detention order should not be rescinded. His reasons are Director of Public Prosecutions (WA) v Lyddieth [No 2] [2013] WASC 344. I took this to be his Honour's determination under the DSO Act s 33(2)(a) that he expressly declined to rescind the continuing detention order. I took that determination as having been made at the delivery of the decision in DPP v Lyddieth [No 2], on 10 September 2013.
Procedural context for the present review
17 The directions provided, among other things, for the examination of and report upon Mr Lyddieth by a named psychiatrist: see s 32.
18 The specifications for such a report are in the DSO Act s 37, including s 37(2) as follows:
(2) The report has to indicate -
(a) the psychiatrist's assessment of the level of 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; and
(b) the reasons for the psychiatrist's assessment.
The matters the DSO Act requires me to address
20 A useful summary for my purposes, one referring to Director of Public Prosecutions (WA) v Williams [2007] WASCA 206; (2007) 35 WAR 297 and to Attorney-General (QLD) v Francis [2006] QCA 324, is in Director of Public Prosecutions (WA) v Comeagain [No 2] [2011] WASC 16 [20], [21] (Blaxell J):
21 Section 33 of the DSO Act provides to the following effect:
(1) I must rescind the continuing detention order if I do not find that Mr Comeagain remains a serious danger to the community.
(2) If I do find that he remains a serious danger I can either expressly decline to rescind the order, or rescind the order. If I rescind the order I must make a supervision order for a specified period and on appropriate conditions.
(3) In making a decision under (2) above, 'the paramount consideration is to be the need to ensure adequate protection of the community'.
22 Consistent with the authority of DPP v Williams [79] in 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, I should assume that in the event that a supervision order is made, resources will be made available to provide adequate supervision (DPP v Williams [81]; Attorney-General (QLD) v Francis [36]).
23 See also the adoption of DPP v Comeagain [No 2] [20], [21] in DPP v Lyddieth [No 2] [20] - [22] (EM Heenan J); and the reference to DPP v Comeagain [No 2] [20], [21] in Director of Public Prosecutions (WA) v Pindan [No 3] [2014] WASC 95 [51] (Corboy J).
24 I now elaborate briefly on the two parts of DPP v Comeagain [No 2] [20], [21], namely, (1) whether the offender remains a serious danger to the community; and (2) and (3) if he is so found, the choice between the two options in the DSO Act s 33(2)(a) and (b).
25 The DSO Act s 7 read with s 3(1) gives the meaning of 'serious danger to the community' as follows:
(1) Before the court dealing with an application under this Act may find that a person is a serious danger to the community, the court has to be satisfied that there is an unacceptable 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.
(2) The DPP has the onus of satisfying the court as described in subsection (1) and the court has to be satisfied -
(a) by acceptable and cogent evidence; and
(b) to a high degree of probability.
(3) In deciding whether to find that a person is a serious danger to the community, the court must have regard to -
(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; and
(b) any other medical, psychiatric, psychological, or other assessment relating to the person; and
(c) information indicating whether or not the person has a propensity to commit serious sexual offences in the future; and
(d) whether or not there is any pattern of offending behaviour on the part of the person; and
(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; and
(f) whether or not the person's participation in any rehabilitation program has had a positive effect on the person; and
(g) the person's antecedents and criminal record; and
(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; and
(i) the need to protect members of the community from that risk; and
(j) any other relevant matter.
27 I consider that the relevant principles established by prior decisions as to the proper construction and effect of the DSO Act s 7 are, as indicated in Director of Public Prosecutions (WA) v Yates [2014] WASC 136 [5] (Martin CJ), to be conveniently found in The State of Western Australia v West [2013] WASC 14 [52] (Corboy J) as follows:
(a) Section 7(1) of the DSO Act provides that before the court may 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 was not subject to a continuing detention order or a supervision order, the person would commit a serious sexual offence. The expression 'serious sexual offence' has the meaning given to that term in s 106A of the Evidence Act 1906 (WA) (s 3 of the DSO Act).
(b) The DPP carries the onus of satisfying the court about that matter and the court must be satisfied by acceptable and cogent evidence and to a high degree of probability. The expression 'high degree of probability' is incapable of further definition. Clearly, it connotes a standard that is more than the civil standard but less than the criminal standard of proof: Director of Public Prosecutions for Western Australia v GTR [2008] WASCA 187; 38 WAR 307 [28] (Steytler P and Buss JA; and see at [34] for a further elaboration on what the expression means in its application).
(c) In deciding whether to find a person is a serious danger to the community the court must have regard to each of the matters specified in s 7(3) of the DSO Act.
(d) It will necessarily and automatically follow that a person is a serious danger to the community if the court is satisfied that there is an unacceptable risk that, if the person was not subject to a continuing detention order or a supervision order, the person would commit a serious sexual offence: DPP v GTR [21].
(e) The term 'unacceptable risk' is not defined in the DSO Act. However, a finding of fact that there is an unacceptable risk is an evaluative and predictive finding of fact involving a balancing exercise in which the court is required, on the one hand, to have regard to, among other things, the nature of the risk (the commission of a sexual offence with serious consequences for the victim) and the likelihood of the risk materialising and on the other hand, the serious consequences for the offender (either detention, without having committed an unpunished offence, or being required to undergo what might be an onerous supervision order) if an order is made: Italiano v The State of Western Australia [2009] WASCA 116 [4] and [46] (Buss JA).
(f) In a passage that [was] expressly approved in DPP v GTR, Wheeler JA stated in Director of Public Prosecutions for Western Australia v Williams [2007] WASCA 206; 35 WAR 297 [63]:
'In my view, an 'unacceptable risk' in the context of s 7(1) is a risk which is unacceptable having regard to a variety of considerations which may include the likelihood of the person offending, the type of sexual offence which the person is likely to commit (if that can be predicted) and the consequences of making a finding that an unacceptable risk exists. That is, the judge is required to consider whether, having regard to the likelihood of the person offending and the offence to be committed, the risk of that offending is so unacceptable that, notwithstanding that the person has already been punished for whatever offence they may have actually committed, it is necessary in the interests of the community to ensure that the person is subject to further control or detention.'
(g) The powers conferred by the DSO Act are not to be exercised for the purpose of imposing additional punishment on an offender but rather, for the ultimate purpose of protecting the community. The community will be protected by control continuing to be exercised over the offender; it may also be protected by the provision of care and treatment to the offender while in custody in the hope that the danger posed to the community or sections of it will be reduced: DPP v GTR [97] (Murray AJA).
(h) The court must identify what, if anything, constitutes the risk and factor or factors makes that risk unacceptable and then consider whether or not that factor has, or those factors have, been proved to a high degree of probability by acceptable and cogent evidence: DPP v GTR [34].
28 As to the matter of the choice between the options in the DSO Act s 33(2), I note from The State of Western Australia v West [52] the following, which completes the lettered list appearing there:
(i) The court must make a continuing detention order or a supervision order once it is found that the respondent is a serious danger to the community: Woods v Director of Public Prosecutions for Western Australia [2008] WASCA 188; 38 WAR 217. The paramount consideration in deciding between the orders is the protection of the community. That does not mean that there is a pre-disposition to making a continuing detention order. As Hall J observed in Director of Public Prosecutions for Western Australia v Decke [2009] WASC 312, '[i]t cannot simply be assumed that the most assured preventative is detention and therefore, the protection of the community will always favour such an order' [14].
(j) The court should choose the order that is least invasive or destructive of the respondent's right to be at liberty while, at the same time, ensuring an adequate degree of protection of the community: The State of Western Australia v Latimer [2006] WASC 235 and Decke.
29 The State of Western Australia v West in that respect concerned the relevant principles for the choice between the options in the DSO Act s 17(2), which are expressed in similar to terms but not identically to those in s 33(2). However, notwithstanding the differences, I consider that the similarities are such as to make the just quoted passage applicable here. See also DPP v Pindan [No 3] [49].
30 There is a further matter of law that I should note. It concerns the option to be chosen from the DSO Act s 33(2) in the event that a court is in the position described in DPP v Williams [86] (Wheeler JA, Le Miere AJA agreeing), referring to s 17(2) (see s 33(3)), as follows:
Of course, if, as was not the case here, his Honour had been satisfied that he had before him all relevant evidence concerning possible conditions which might be imposed on a supervision order, but was simply left in doubt as to whether such an order would adequately protect the community, then, having regard to s 17(2), it would have been necessary for him to have made a continuing detention order.
31 There are two matters of difficulty in the statements of the relevant principles that I have quoted thus far. The first matter was put to me as potentially having a particular role to play in the present review.
32 That matter concerns the extent to which the court should proceed on the assumption that the executive government will provide the resources for the management and treatment of offenders falling under the DSO Act. See DPP v Yates [7].
33 The other matter concerns the breadth of the tasks of the court in making the finding provided for in the DSO Act s 33; and in making the choice between the options also provided for there.
34 The matter is addressed in DPP v Pindan [No 3] [52] - [55] as follows:
Simmonds J observed in Director of Public Prosecutions (WA) v Misko [No 2] [2013] WASC 300 [12] that:
'I should note that I consider my task under DSO Act, s 33, is to determine the matters referred to in that section, by reference principally to the evidence of material facts or circumstances, if any, arising since the making of the continuing detention order, that is, while the relevant offender was on detention under the order. I also believe that I should pay particular attention to any matter that, while not so arising, has become known since then.'
Broadly, that approach is supported by the wording of the section: 'if [the court] does not find that the person … remains a serious danger to the community' (emphasis added) (s 33(1)) and 'if [the court] finds that the person … remains a serious danger to the community' (emphasis added) (s 33(2)). Accordingly, the point of departure for a review is a previous finding that a person was a serious danger to the community. That is reflected in the observations made by Hall J in Director of Public Prosecutions (WA) v Unwin [No 3] [2013] WASC 178 [14] - [18] about the object of the requirement for an annual review:
'The clear intention of the annual review process is to allow for the possibility of a change of circumstances. Detention under the DSO Act is not a punishment for past offending; it is a protective mechanism designed to prevent the risk of future serious sexual offending from being realised. If circumstances change such that the risk of reoffending reduces or can be adequately managed in the community then the continuing need for detention must be considered.
It is a significant thing to deprive a person of their liberty, not for something they have done but for something they might do in the future. In order to justify detention on these grounds the evidence must be acceptable and cogent and establish the existence of a serious danger to the community to a high degree of probability: s 7(2) DSO Act. Such a finding requires satisfaction that there is an unacceptable risk that the person would commit a serious sexual offence if not placed under a supervision order or detained.
The risk of reoffending may change over time. It may be affected by age, health and the successful completion of treatment. The availability of new technology or resources in the community may also affect whether the risk of reoffending can be managed on a supervision order.
The justification for making a continuing detention order is the existence of an unacceptable risk of serious sexual offending that cannot be adequately controlled by conditional release. However, detention also serves the purpose of allowing treatment and care in a secure environment: s 17 DSO Act. This confirms an obligation on the part of prison authorities to facilitate change by offering programmes and access to counselling.
If the risk changes or resources improve to enable more efficacious conditions then the need for detention may dissipate. In these circumstances, continuing detention may be unjust.'
There may, however, be an issue about whether the effect of s 33 of the DSO Act is that the court reviewing a continuing detention order is bound by the findings of the court that first determined that the offender was a serious danger to the community or of a court conducting an earlier review. Is the review court required to undertake its own, independent assessment of the risk of serious sexual offending and the unacceptability of that risk according to the matters specified in s 7(3) of the DSO Act by reference to all of the available evidence, including the material that was considered by the court that made the continuing detention order? That approach would leave open the possibility that the review court could reach a different conclusion to a court that had previously made a continuing detention order about matters such as the risk of re-offending, the unacceptability of that risk or the protection likely to be afforded to the community by a supervision order even though there had been no material change in the matters specified in s 7(3).
Alternatively, is the task of the review court more confined; does it merely look to see if there has been a change in the factors identified by the court that found that the offender was a serious danger to the community (and note in this context the observations of Steytler P and Buss JA in GTR at [21] to which reference was earlier made) and evaluate the impact of any change on the risk of re-offending and the acceptability of that risk? That approach would be consistent with the observations of Simmonds J in Misko and Hall J in Unwin [No 3].
35 Corboy J did not find it to be necessary to make a determination as between the two kinds of task in DPP v Pindan [No 3]: see [56] - [58].
36 It might be suggested that, while the more confined task might be appropriate for the purposes of determining whether the court 'finds the person subject to the order remains a serious danger to the community' (s 33(2), opening words), by virtue of the use of the word 'remains' (see DPP v Pindan [No 3] [53]), it was not appropriate for the purpose of the choice between the two options s 33(2)(a) and (b). The less confined task described in DPP v Pindan [No 3] [54] was that which the court was required to undertake for the latter purpose.
37 That less confined task means a judicial officer in my position ought to take account of any evidence, whether in exhibit or testimonial form, in previous proceedings, at least to the extent it had been drawn to that officer's attention in evidence in the present proceedings or in submissions.
38 I consider that the difference between the two tasks is reduced considerably when account is taken of the need to understand the evidence in prior proceedings in order to properly evaluate evidence of facts or circumstances that have arisen or become known since the last annual review. It will be seen that counsel for the respondent drew my attention to evidence of prior proceedings in these proceedings in that regard.
39 I consider that it is not necessary to resolve the matter. I did not understand that it had been suggested to me that I might be in a position of having to consider whether, notwithstanding that there had been no material change of circumstances, I should arrive at a different conclusion as to the protection of the community by a supervision order. Rather, the submissions for the respondent were that on consideration of the prior decisions, including the evidence in them to which counsel for the respondent had drawn to my attention, there had been a material change of circumstances.
40 I turn now to provide a brief account of Mr Lyddieth's background and history of offending.
Background and offending history of Mr Lyddieth
41 I draw the following from DPP v Lyddieth and DPP v Lyddieth [No 2].
42 Mr Lyddieth was born on 30 August 1951, and thus is now 63 years old. Before me there was some significant attention directed to his age.
43 Mr Lyddieth's family history, early sexual experiences and relationship history are described in DPP v Lyddieth [23] - [28]. These include abuse by a carer at a children's home after his parents separated when he was 2 years old ([23], [25]); an experience at the age of 5 or 6; and marriage, separation and divorce, where prior to the divorce he had engaged in voyeuristic activities on women and couples in their homes and where there was a series of offences, including serious sexual ones, that had commenced in 1987, at about the time the divorce was being finalised ([27] - [28]).
44 Mr Lyddieth's history of offending, not limited to serious sexual offending, is described in DPP v Lyddieth [28] - [46]. It appears that the bulk of this offending, and all of his serious sexual offending, occurred between 13 November 1987 and 22 September 1991.
45 Shortly after the last of that offending he was apprehended by police. He was dealt with for that offending in this court. On 1 May 1992 White J sentenced Mr Lyddieth to a total effective sentence of imprisonment of 19 years and 1 month for the 48 offences described in DPP v Lyddieth [No 2] [5] as follows:
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.
46 There is a more detailed description of the circumstances of that offending in the DPP v Lyddieth [32] - [46]. I note the conclusion drawn as to the sexual offending at [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 which included, in some cases, watching the intended victim for some time prior to the offence.
47 Mr Lyddieth's offending subsequent to that between 1987 and 1991 is described in DPP v Lyddieth [49] - [50] as follows:
In December 2000 - 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.
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.
48 The 'pattern of behaviour' referred to above was also a matter that was addressed in evidence before me. I return to it below.
Evidence before me
49 The DSO Act s 42(2) - s 42(4) provides for evidence in an application for an annual review under s 29. Those subsections do so as follows:
(2) Before the court makes a decision or order on the hearing of an application it must, if the evidence is admissible -
(a) hear evidence called by the DPP; and
(b) hear evidence given or called by the offender or person subject to the order, if that person elects to give or call evidence.
(3) Except as modified by subsection (4), ordinary rules of evidence apply to evidence given or called under subsection (2).
(4) In making its decision, the court may receive in evidence -
(a) any document relevant to a person's antecedents or criminal record;
(b) anything relevant contained in the official transcript of any proceeding against a person for a serious sexual offence, or contained in any medical, psychiatric, psychological or other report tendered in a proceeding of that kind.
51 Exhibit 1, which is relatively short, includes the following:
• Exhibit 1.8 - Dr Wynn Owen's 2014 report;
• Exhibit 1.9 - Department of Corrective Services Dangerous Sex Offender Treatment Report dated 1 September 2014 by Mr David Summerton (Mr Summerton's 2014 report): Mr Summerton's 2014 report shows him as a psychologist and a member of the Forensic Psychological Service, previously known as the Dangerous Sex Offender Psychology Team; and
• Exhibit 1.10 - Department of Corrective Services Community Supervision Assessment dated 2 September 2014 by Ms Erin Hutchings (Ms Hutchings's report): Ms Hutchings's report shows her as a Senior Community Corrections Officer in the Public Protection Unit in the Department.
52 Dr Wynn Owen, Mr Summerton and Ms Hutchings testified at the hearing on 17 September 2014.
53 The DPP did not call any other evidence.
54 At the hearings before me reference was also made to portions of the transcript of the hearings before Hall J and before EM Heenan J.
55 Mr Lyddieth did not give or adduce any evidence.
56 I turn now to the matters the DSO Act requires me to address.
Whether Mr Lyddieth remains a 'serious danger to the community'
57 I believe I must address this in some detail, notwithstanding that it is not in dispute before me. I so believe, both because I must make that determination (see the DSO Act s 27(1) and s 27(2)), and because a number of matters I must address in that regard also go in my view to the choice I must make between the options in the DSO Act s 33(2)(a) and s 33(2)(b).
58 I adopt the structure used by McKechnie J in Director of Public Prosecutions (WA) v Misko [2012] WASC 259. That structure follows the DSO Act s 7(3).
(a) The psychiatric report, including cooperation in the examination
59 In this section of my reasons I review Dr Wynn Owen's 2014 report and his testimony in the respects with the greatest bearing on the present question. In the section of these reasons concerned with the choice to be made under the DSO Act s 33(2) I review Dr Wynn Owen's report and his testimony with the greatest bearing on that question, as well as refer to certain parts of his evidence considered here.
60 In the course of the review in this section of my reasons, I will also have occasion to refer to a number of aspects of Mr Summerton's 2014 report and his testimony.
61 Dr Wynn Owen's 2014 report indicates that he is a consultant forensic psychiatrist who has worked in a broad range of mental health settings as a medical practitioner and subsequently as a consultant psychiatrist in the United Kingdom, New Zealand and Australia. It further indicates that he has completed specific training in the comprehensive assessment of sexual offenders with particular reference to the Western Australian dangerous sexual offender legislation. No objection was taken to Dr Wynn Owen's qualifications as an expert to express, in his report and in his testimony, the opinions I will describe. I consider Dr Wynn Owen to be so qualified.
62 Dr Wynn Owen interviewed Mr Lyddieth on one occasion and drew on other sources or material, being telephone discussions with Ms Hutchings and Mr Summerton, and a number of documents. One was the set of documents comprising the Book of Material for the purposes of the First Annual Review of Detention dated 18 July 2013. The others were documents provided to the court in Exhibit 1, comprising:
(a) Department of Corrective Services Individual Management Plan dated 26 May 2014;
(b) Pre-Release Management Plan prepared by Ms Chantelle Place - Ms Place is described in that Plan as a forensic psychologist with the Dangerous Sex Offender Psychology Team in the Department;
(c) a letter from Dr Cherelle Fitzclarence dated 31 July 2014 - Dr Fitzclarence is described in that letter as Deputy Director of Prison Health in the Department;
(d) a further letter from Dr Fitzclarence dated 21 August 2014; and
(e) Department Charge History and Incident History 3 May 2013 - 21 July 2014.
63 I further note that Dr Wynn Owen was one of the two psychiatrists who provided reports for and testified before Hall J: see DPP v Lyddieth [71] - [85]. Dr Wynn Owen was also the psychiatrist who provided a report for and testified before EM Heenan J: see DPP v Lyddieth [No 2] [35] - [39].
64 I take it from Dr Wynn Owen's 2014 report and his testimony that Mr Lyddieth cooperated with the interview process. I note that no issue was taken by the parties with the extent of that cooperation.
65 In his 2014 report (Exhibit 1.8, page 22) Dr Wynn Owen describes as his overall opinion that:
Mr Lyddieth remains a high risk of future serious sexual offending if released unsupervised. The Static 99R estimated reoffending likelihood of 3 in 10 over 5 years is will be [sic] increased by stress and substance use. Mr Lyddieth's physical health problems have not changed his physical capacity to offend in the last 12 months; his acknowledgement of current sexual thinking and libido suggest that any reduction of libido through ageing and the presence of chronic illness has not been material in the period since his last review.
66 I describe those matters in more detail, from Dr Wynn Owen's 2014 report and his testimony, as follows.
67 Dr Wynn Owen's 2014 report describes the Static 99R as a checklist of historical unchanging risk factors. This test produces a score putting the offender in a category, offenders in which have been shown to have a particular incidence of sexual re-offending. The Static 99R allows for the significant decline of re-offending risk with age and, in particular, for the significant decline seen in offenders over 60 years old (Dr Wynn Owen's 2014 report, Exhibit 1.8, pages 19 - 20).
68 However, as Dr Wynn Owen's 2014 report appears to indicate, and he confirmed in his testimony (see 18 September 2014, examination-in-chief, ts 357), he used a combination of tools to arrive at his risk assessment. Apart from the Static 99R, he used tools providing a framework for structured clinical judgment, being the 'Risk for Sexual Violence Protocol' (Hart, Kropp and Laws, 2003) (RSVP) and the 'Hare Psychopathy Checklist - Revised' (PCL-R).
69 Using those tools for structured clinical judgment, Dr Wynn Owen's 2014 report indicates that he found the following risk factors.
70 In the area of sexual violence history, there was chronicity (early-onset, persistent and frequent offending); diversity (multiple types of offending); escalation (in Mr Lyddieth's case, escalation from non-contact to contact offending, including escalation of types of non-contact behaviour, as in 2002); and physical coercion (Exhibit 1.8, page 20).
71 In the area of psychological adjustment, Dr Wynn Owen's 2014 report describes a lack of full appreciation by Mr Lyddieth of factors and processes that place him at risk of re-offending. That lack is notwithstanding participation in intensive sex offender programs and extensive one-to-one counselling (Exhibit 1.8, page 20). I will describe that participation below when I consider the DSO Act s 7(3)(e).
72 Dr Wynn Owen's 2014 report particularly highlights in respect of that lack of full appreciation Mr Lyddieth's disclosure in his interview with Dr Wynn Owen of recently having been offered cannabis in prison and of handling and smelling it, before putting it down and deciding not to use it, being pleased with himself he could make that decision (Exhibit 1.8, pages 17 - 18). Dr Wynn Owen in his testimony explained that his concern was with two matters arising out of the incident (18 September 2014, examination-in-chief, ts 361). One was Mr Lyddieth's apparent lack of understanding of allowing himself to be close to sources of cannabis, where cannabis use was an indicator of stress which was associated with offending. The other was a lack of indication of strategies to manage that risk.
73 By contrast, Mr Summerton's 2014 report states his view that 'Mr Lyddieth impressed as having a fairly good understanding of the precursors to his offending', which included 'problems with stress including the potential for drug and alcohol use' (Exhibit 1.9, page 28 at pars 15 and 16, respectively the sources of the quotations). As to the cannabis incident referred to by Dr Wynn Owen, Mr Summerton testified its treatment might have been 'overplayed' (18 September 2014, cross-examination ts 447).
74 However, in my view the apparent difference between Dr Wynn Owen and Mr Summerton in the present respect is much reduced when account is taken of Mr Summerton's further testimony. Further, to the extent of the remaining difference I do not consider that Dr Wynn Owen overplayed the incident.
75 That further testimony by Mr Summerton was that, while Mr Lyddieth was 'able to verbalise what the factors that link to his offending' were, the 'question has been raised whether or not they translate into behavioural change' (18 September 2014, cross-examination ts 438). Mr Summerton added that 'while stress has been - he has been able to identify stress as a factor managing that stress hasn't always - he hasn't always demonstrated the capacity to manage that stress differently' (ts 438).
76 Dr Wynn Owen's 2014 report for its part describes in the present context of psychological adjustment Mr Lyddieth's acknowledgement of his difficulty with coping with stress, and that at times of stress he resorted to sexual fantasy, pornography, use of cannabis and alcohol use as coping mechanisms (Exhibit 1.8, page 20).
77 Dr Wynn Owen testified that, in his opinion, since 2002 Mr Lyddieth had not 'necessarily' gained skills to deal with the management of the stressors in daily life because he had not been required to use such skills (18 September 2014, cross-examination ts 402). Dr Wynn Owen further testified as to the relationship between those stressors and the risk of reoffending as follows (18 September 2014, examination-in-chief, ts 362):
Those stress factors such as managing finance and perhaps boredom and isolation, they are, of course, general stress factors. In relation to stress factors specifically in relation to re-offending?---Yes.
[D]o they - are they the same factors or are there any additional factors that you think are particularly pertinent in relation to his risk of re-offending, and, if so, was he able to identify those? There are - they are background factors, and I think that they present both single and potentially cumulative risks if they're not managed; however, the level of distress is more about what are the next steps. It appears that he's less able to - he has less self-awareness and is less able to self-manage when he is distressed, and that is when things like increased likelihood of use of intoxicating substances and the increased potential for not being able to manage his thinking, so the potential for the re-emergence of sexually deviant thinking, but also the potential to using pornography, whether that's in a story form or in image form, all of which, then, are more direct risks in relation to re-offending.
78 In my view this body of evidence, including the cannabis incident, describes a problem with Mr Lyddieth's ability to translate his intellectual understanding of precursors to offending such as stress into recognition of their importance to management of his risk re-offending, such as avoiding allowing himself to be exposed to substances such as cannabis. This problem is one of an apparent deficit in awareness of matters in himself in terms of their importance to his risk of re-offending. That is, the cannabis incident describes a problem in self-awareness. Further, that body of evidence also describes a problem for Mr Lyddieth in management of stress.
79 Dr Wynn Owen in his testimony acknowledged that the fact Mr Lyddieth had disclosed the cannabis incident was a positive, as was his having ceased cannabis use in custody (18 September 2014, examination-in-chief, ts 361; cross-examination ts 394).
80 I do not consider that Dr Wynn Owen's analysis of the incident is overplayed in view of the importance of self-awareness and the management of stress to Mr Lyddieth's risk of re-offending, as I will indicate.
81 Under the heading of psychological adjustment, Dr Wynn Owen's 2014 report refers to neglect by carers or sexual abuse as a child, as Mr Lyddieth had suffered, as a general risk factor for offending (Exhibit 1.8, page 21).
82 Under the heading of social adjustment, Dr Wynn Owen's 2014 report refers to Mr Lyddieth having problems with social and intimate relationships, problems of both types being risks associated with future sexual offending (Exhibit 1.8, page 21).
83 Under the heading of mental disorder, Dr Wynn Owen's 2014 report describes Mr Lyddieth's acknowledgement of deviant sexual fantasies. That report also indicates that there is a strong link between sexual deviancy in sexual violence. Further, the presence of violent fantasy, previously acted upon, is a risk factor for future violence (Exhibit 1.8, page 21).
84 Dr Wynn Owen acknowledged in his testimony that Mr Lyddieth did not report deviant sexual fantasy currently; however, he also testified it was unusual for deviancy to go away when libido still existed (18 September 2014, cross-examination ts 381).
85 As to Mr Lyddieth's libido, Dr Wynn Owen's 2014 report indicates that Mr Lyddieth had acknowledged to him ongoing libido and sexual thinking (Exhibit 1.8, page 17). Dr Wynn Owen in his testimony accepted that there was a phenomenon for men involving a rapid decline in testosterone ('andropause'), a phenomenon about which he had been questioned in the division 2 proceedings before Hall J and in the first annual review proceedings before EM Heenan J (18 September 2014, cross-examination ts 378). Mr Lyddieth's testosterone has not been tested. However, Dr Wynn Owen testified that Mr Lyddieth's report of sexual thinking (and I would understand libido) showed it was unlikely he had gone through andropause (18 September 2014, cross-examination ts 379).
86 I have previously quoted in the overall summary in Dr Wynn Owen's 2014 report that author's opinion that 'any reduction of libido through ageing and presence of chronic illness' had 'not been material in the period since last review'. Dr Wynn Owen in his testimony acknowledged that reduction through ageing was likely to be most tightly correlated with the 'rapist' category of sexual offender, a category into which Mr Lyddieth falls out of the three broad categories of rapist, child sex offender and incest sex offender (18 September 2014, cross-examination ts 376). However, I do not consider that the quoted opinion in respect of ageing expressed in Dr Wynn Owen's 2014 report was significantly disturbed.
87 As to Mr Lyddieth's physical condition, I note the range of conditions described in Dr Wynn Owen's 2014 report (Exhibit 1.8, page 17). However, that report indicates that the update from Dr Fitzclarence indicated Mr Lyddieth's 'physical health status is relatively unchanged since last reviewed' (Exhibit 1.8, page 17). Dr Wynn Owen was cross-examined on any reduction in physical capacity of Mr Lyddieth since the age of 40, particularly in respect of violent sexual offending. Dr Wynn Owen accepted there had been such reduction. However, I understood his testimony to be, as he had testified before EM Heenan J in the first annual review, that Mr Lyddieth was physically capable of sexual offending, including serious sexual offending, even if there had probably been a reduction in the risk of his offending in a manner involving physical exertion by reason of his physical condition (18 September 2014, cross-examination ts 373, 376). I do not consider that the quoted opinion in respect of physical condition in Dr Wynn Owen's 2014 report was significantly disturbed.
88 Under the heading of mental disorder, I note the indication in Dr Wynn Owen's 2014 report that Mr Lyddieth has antisocial personality disorder (Exhibit 1.8, page 21). That finding was based, Dr Wynn Owen testified, on his PCL-R assessment of Mr Lyddieth (18 September 2014, cross-examination ts 422). Antisocial personality disorder is a risk factor for future offending (Exhibit 1.8, page 21). Dr Wynn Owen acknowledged in his testimony that on the literature the risk was for future violent offending, not particularly sexual offending (18 September 2014, cross-examination ts 422). Further, the finding was less significant for an 'intimacy-driven' rapist rather than for a 'power' rapist. Mr Lyddieth was in the former, not the latter, category. Dr Wynn Owen acknowledged before me having testified before EM Heenan J in the annual review proceeding that one of the matters supporting the finding, the issue of victim empathy, had changed at the time of that hearing in that he had an increased capacity to take the perspective of others (18 September 2014, cross-examination ts 423). Dr Wynn Owen's testimony before me was that while Mr Lyddieth had retained that capacity since the last review, he had not gone any further in victim empathy (ts 424).
89 Under the heading of manageability, Dr Wynn Owen's 2014 report refers to problems with release planning that Mr Lyddieth had had in the past. There is a focus on the failure of planning that had occurred in 2002, of a kind which would lead to stress, followed by a failure to cope, possibly associated with a return to substance misuse and leading to an increased likelihood of re-offending (Exhibit 1.8, page 21).
90 However, Dr Wynn Owen's 2014 report also notes that Mr Summerton had indicated to him that a good rapport had been established between Ms Place and Mr Lyddieth (Exhibit 1.8, page 18).
91 Mr Summerton's 2014 report describes the counselling relationship between Mr Lyddieth and Ms Place as one which had commenced when Ms Place had assumed responsibility as Mr Lyddieth's psychologist in January 2014. She took over from the previous departmental psychologist. Counselling sessions were conducted weekly for the initial 6 month period and fortnightly thereafter. The greater focus of counselling had been deviant sexual fantasies, including the role of pornography. There had also been attention paid to assisting Mr Lyddieth to appropriately address his sexual needs and developing appropriate coping skills to manage isolation and loneliness (Exhibit 1.9, page 25, par 9.
92 Dr Wynn Owen in his testimony acknowledged that the relationship with Ms Place contrasts with that with an earlier treating psychologist when Mr Lyddieth was released in 2002, a relationship in which Mr Lyddieth had been resentful and unwilling to disclose (18 September 2014, cross-examination ts 400 - 401). In Dr Wynn Owen's 2014 report he indicates the value of the rapport Mr Lyddieth appears to have with Ms Place, which includes that Mr Lyddieth is more likely to disclose when at risk than when he had been previously released (Exhibit 1.9, page 22). However, he testified that the relationship with Ms Place is not a long-term one, being only nearly 10 months, and 'that's not necessarily something we can say is massively protective yet' (18 September 2014, cross-examination ts 399).
93 Further, Dr Wynn Owen's 2014 report indicates that the success of monitoring, by Ms Place or by others, will be affected by both 'developed self-awareness' and 'honest self-disclosure' (Exhibit 1.8, page 22).
94 In respect of monitoring, I note Dr Wynn Owen's testimony with respect to containment by external factors of Mr Lyddieth's risk of re-offending referred to in DPP v Lyddieth [107]. I return to the issue of containment under the question of choice between expressly declining to rescind the continuing detention order (the DSO Act s 33(2)(a)) and rescinding the order and making a supervision order (the DSO Act s 33(2)(b)). For now, I note Dr Wynn Owen's testimony in the following exchange with counsel for the DPP concerning DPP v Lyddieth [107] (18 September 2014, cross-examination ts 367 - 368):
What do you consider that to mean? I believe that he means that rather than relying on Mr Lyddieth himself to be self-aware and to self-manage, this puts a number of controls around Mr Lyddieth, being both officers from justice and police types of accommodation and restrictions to avoid risk rather than, as I say, to rely on self-management, self-awareness and self-report.
Based on your assessment of Mr Lyddieth this time around, do you think that that has changed? It has changed to the extent that there being a positive relationship with Ms Plaice [sic Ms Place] and Ms Plaice [sic] having apparently found that Mr Lyddieth's likelihood to disclose has increased a little, that there is probably a skew towards more self-awareness and thus self-management, but the containment element is still very strong.
95 In respect of developed self-awareness and honest self-disclosure, Dr Wynn Owen's 2014 report indicates Mr Lyddieth had failed at previous interviews to disclose to him having deviant or other sexual fantasies. Mr Lyddieth's explanation for this failure was that he had not understood what 'sexual fantasy' meant (Exhibit 1.8, page 17). Dr Wynn Owen testified that he was a 'little surprised' Mr Lyddieth had not understood what sexual fantasy was as Dr Wynn Owen had gone into the matter with him on the occasion of the interviews for the division 2 review before Hall J and the first annual review before EM Heenan J (18 September 2014, examination-in-chief, ts 359). Dr Wynn Owen's 2014 report indicates that Mr Lyddieth's explanation suggested ongoing problems with self-awareness, and the pattern in his disclosure to Dr Wynn Owen indicated Mr Lyddieth's concern for answering in a way that would 'be best received favourably', what was called in the hearing before me 'impression management' (Exhibit 1.8, page 17). It was put to me there was a necessary inconsistency between those two accounts. I do not agree. Further, I understood Dr Wynn Owen's evidence to be that the element of surprise made the implications of disclosure for manageability of risk difficult for him to assess.
96 I note Dr Wynn Owen's opinion that, given Mr Lyddieth's understanding of what sexual fantasy is, or what thinking might be interpreted as indicating sexual arousal or interest, it is not likely that Mr Lyddieth would have the self-awareness to carry out his plan to avoid objectifying women, which he had also described at the time of the first annual review. That plan is, when he finds himself to be thinking of women in those terms, to see them in a human and family context (Exhibit 1.8, page 18).
97 In respect of disclosure, Mr Summerton's 2014 report indicates that Ms Place had noted a tendency to impression management in Mr Lyddieth, and that the extent of Mr Lyddieth's current reported sexual interest and arousal is 'unclear due to variability in his self-report' (Exhibit 1.9, page 26, par 7). Mr Summerton in his testimony indicated that he has observed impression management by Mr Lyddieth (18 September 2014, examination-in-chief, ts 432). He further noted, both in his report (Exhibit 1.9, page 27, par 12) and in his testimony (18 September 2014, cross-examination ts 441 - 442), that Mr Lyddieth has lied about his continued sexual interests and masturbation practices. Mr Lyddieth had explained to Mr Summerton that this lying was due to his shame and embarrassment. Mr Summerton testified at the same time that what Mr Lyddieth had said to him in this respect was 'positive' as 'some acknowledgement he still is sexually active' (18 September 2014, cross-examination ts 442).
98 In respect of disclosure, I also note Dr Wynn Owen's testimony that it is 'important' that 'the therapist believes they have an access into [Mr Lyddieth's] internal world' and 'that then the next test is disclosure under stress' (18 September 2014, cross-examination ts 387).
99 I turn now to the risk of serious sexual reoffending scenarios Dr Wynn Owen identified for Mr Lyddieth.
100 Dr Wynn Owen's 2014 report (Exhibit 1.8, page 22) describes the risk scenarios for Mr Lyddieth as follows:
Nature
1. Repeat: A series of exhibitionist offences will occur in which there [sic] increasing victim proximity is culminating in a return to violent rape offending.
2. Escalates: The level of violence used during rape increases such that there is a serious injury to the victim and/or the victim is detained for a much greater length of time and repeatedly offended against.
3. Escalates and changes: Violent rape leading to fatal injury or selection of particularly vulnerable victims such as female children.
101 In his testimony Dr Wynn Owen elaborated on these scenarios in terms of the pattern of offending I have previously described more briefly. His testimony was as follows (18 September 2014, cross-examination ts 405 - 407, 408):
So I think you've consistently given evidence that there is a pattern of offending for Mr Lyddieth?---Yes.
That the pattern starts with thoughts first?---Yes.
So fantasy actually meaning thoughts?---Yes.
Internal thoughts? So I've given evidence around the series of offences that occurred in the late 1990s.
Yep?- - - 1980s. Sorry. The dates - the period of offending of approximately four years following the breakdown of his marriage.
That's correct? And during that period there was a pattern of offending.
Yes?---That is correct. That there were a series of layered stressors that led to Mr Lyddieth then wandering through certain environments at night, identifying individuals.
Yes. But the concept was is that there was a pattern of offending in that - I think consistently you've given evidence that Mr Lyddieth is not a spontaneous rapist?---Doesn't appear to be an opportunist rapist.
Opportunist rapist?---Yes.
And that he is unlikely to transform into an opportunistic rapist now? He's more likely to go back to the rape offences of that type.
Of that type?---Yes.
Which started with thoughts?---Yes.
Part 1 of his pattern. Accessing materials that support those thoughts?---Yes.
Such as pornography?---Yes.
Although you said it might not necessarily be pornography, it could be images such as beach scenes or - - -?---That's right.
Drawing to his 2002 going to the beach consistently?---That's correct.
So thoughts first, reinforcing those thoughts through materials?---Yes.
Then moving onto voyeurism?---Yes.
Which is the following the women, travelling his routes?---Yes.
Or the voyeuristic going to the beach in 2002?---Yes.
Watching people at the beach, those types of things?---Yes.
So - but you've got to get through the first two to get to the voyeurism first?---That was the pattern that seemed to be emerging.
Yep. Then the watching?---Yes.
Yep. So the surveilling and the watching of the women. And then that could be in a sexual or non-sexual situation, the watching?---Yes.
Yep. And then there is the non-contact offences?---Yes.
Such as the 2002 type offences which is the masturbating in public?---Yes.
Yep. The exposing himself in public?---Yes.
Those types of things. Yep. And then there's the serious sexual offending?---Yes.
Which if the contact offences - - - ?---That's right
Of varying iterations?---Yes.
That's been a consistent pattern for Mr Lyddieth?---Well, the pattern was evident in his rape offences and what appeared to occur in 2002 was that pattern was starting again.
Starting again?---And so I put those two together thinking that the likelihood then, were he to reoffend, the most likely way that he would be to go through those steps - go through his patterning again?. However, that doesn't mean it wouldn't---No? - - -change but it seemed more likely that he would go through that.
Because one of the common catchcries in matters like this is that past behaviour is the best predictor of future behaviour?---Yes.
Yep. Because what underpins that is the sort of learned response to certain behaviours?---It is.
The learned pattern of offending?---Yes. In the sense, in the end, that the past behaviour being the best predictor is more likely to be true in relation to the actual offence. So it's more likely that the rapist is to commit a rape in the future than necessarily the pattern.
Yep?---But you could still apply that but it's not quite as absolute as the - - -
So he's not going to turn into a child molester; is that what you're saying?---It's unlikely.
It's more likely - yep. If he's going to sexually - seriously sexually reoffend it's likely to be a rape?---In the same way it's unlikely that he would turn into an opportunistic offender.
But if one travels - one looks at Mr Lyddieth's history the 2002 reoffending, which was not a serious sexual offence?---Yes.
So he didn't commit any further serious sexual offences in 2002?---Yes.
Appeared, in your opinion, to be an embarking upon that commencement of the pattern?---Yes.
That initially led to his four year spate of offending?---It did.
Which were the serious sexual offences?---That's right.
And it's not just one of the victims in that four year spate, it was all of the victims that informed that pattern, wasn't it?---Yes.
They were women all of whom he had watched and followed and?---That's right.- - - And in several different suburbs.
Yes?---Yes.
Travelled routes on?---Yes.
…
Yeah. Now, today your evidence is that pattern is still something that you would expect to see?---My suggestion of the most likely re-offence would be with that pattern. That would - still not to take away that there is a chance that he may reoffend differently.
Yep?---And any - we can't predict the individual because it's still about what's most likely rather than (indistinct).
102 As I indicate below, when I consider the choice to be made under the DSO Act s 33(2), that pattern has implications for the manageability of Mr Lyddieth's risks.
103 I consider that Dr Wynn Owen's overall risk assessment and his account of Mr Lyddieth's risk scenarios are strongly supported by the factual matters I have reviewed.
104 I turn now to the DSO Act s 7(3)(b) matters.
(b) Any other medical, psychiatric, psychological or other assessments
105 There is one such. It is Mr Summerton's 2014 report and his testimony.
106 I have previously reviewed certain aspects of Mr Summerton's 2014 report and his testimony, particularly, but not limited to, aspects which might be seen to be at variance with Dr Wynn Owen's opinions.
107 In this section of my reasons I review Mr Summerton's 2014 report and his testimony in the respects with the greatest bearing on the present question. In the section of these reasons concerned with the choice to be made under the DSO Act s 33(2) I review Mr Summerton's report and his testimony with the greatest bearing on that question as well as refer to certain parts of his evidence considered here.
108 Mr Summerton's 2014 report indicates that he is a psychologist with a Master of Psychology degree who has been involved in treatment and assessment of offenders, and particularly sex offenders, for over 16 years. In his role in the Forensic Psychological Service he provides consultancy, assessment and intervention for those subject to the DSO legislation.
109 No objection was taken to Mr Summerton's qualifications as an expert to express, in his report and in his testimony, the opinions I will describe. I consider Mr Summerton to be so qualified.
110 Mr Summerton interviewed Mr Lyddieth on one occasion. He also had consultations with Ms Place, and perused file information, counselling case notes, the TOMS database and prior professional assessments.
111 I further note that Mr Summerton provided a report for, and testified in, the first annual review before EM Heenan J: see DPP v Lyddieth [No 2] [17], [33] - [34].
112 Mr Summerton's 2014 report states its overall conclusions as follows (Exhibit 1.9 page 30, pars 25 - 26):
Mr Lyddieth has engaged in substantial intervention over the course of his lengthy incarceration including three ISOTPs [intensive sex offender treatment programs] and consistent individual intervention since he became subject to the DSO legislation in 2012. A range of treatment targets have been actively addressed since his previous annual review with particular emphasis on deviant sexual interest. He has been assessed as having a good cognitive awareness of the role that such fantasy played in his offending, while he has consistently denied the presence of any deviant thoughts or fantasies over recent years. However, he has recently acknowledged that he remains sexually active and that he retains some interest in future consenting sexual relationships. This disclosure will allow for more realistic monitoring of his sexual functioning should he be released to the community.
Mr Lyddieth has generally good insight into his offending behaviours but his ability to effect behavioural change has been questioned. He has made only moderate gains in terms of his ability to effectively manage stress and his main coping response is to elicit assistance from others. There is nevertheless a framework in place for issues such as stress to be actively monitored and addressed in view of the relationships that he has developed with his FPS psychologist and support workers from UCW [UnitingCare West]. In light of the high level of intervention that he has received to date, that has yielded relatively moderate gains, it is unlikely the continued intervention within the custodial setting will prompt further change of significance.
113 I return to UCW below.
114 I here describe the other matters in the quotation in more detail by reference to evidence from Mr Summerton's 2014 report and his testimony as follows. I do this to the extent that I have not previously dealt with Mr Summerton's 2014 report and his testimony in the previous section of these reasons.
115 In respect of Mr Lyddieth's cognitive awareness of the role that deviant sexual fantasy played in his offending, his concessions as to his current sexual activeness and interest and future disclosure by him of it, I note the following from Mr Summerton's 2014 report (Exhibit 1.9, page 29, par 21):
During intervention with Ms Place there has been a shift in his willingness to acknowledge current sexual motivation/interest and this potentially allows for more meaningful management of his sexual behaviour when he is ultimately released to the community. The described concessions regarding his current sexual interests are likely to have been a function of sustained attention that Ms Place has brought to bear on his sexual behaviour as opposed to being freely offered by him. There is evidence to suggest that he will remain somewhat wary of making disclosures regarding his sexual functioning with specific reference to deviant focus should it come to the fore when he is released.
116 In respect of the matter in the last sentence, I note from Mr Summerton's 2014 report the following (Exhibit 1.9, page 27, par 14):
Mr Lyddieth was somewhat equivocal when asked if he would inform his FPS psychologist, or others responsible for his supervision, in the event that he did entertain inappropriate sexual thoughts. He stated, 'I believe I would tell [the psychologist]', but when pressed he relayed the experience of having disclosed sensitive information to his psychologist, Ms Rose Martin, when he was in the community in 2002. He was of the view that she had overreacted, thus intimating that that response might deter him from making relevant disclosures in the future. However, following the above discussion, he concluded that he would in fact disclose deviant thoughts should they arise. It is noted that during the period that he had been attending counselling with Ms Martin in 2002 he had reoffended without disclosing this to her. He had some difficulty identifying the need to disclose deviant thoughts but ultimately made the observation that this would allow him to intervene 'before it gets to behaviour'.
His central coping strategies involve talking to others. However, this is contingent on him acknowledging problems in the first instance and then making the decision to approach identified support people. It is evident that he in part remains reliant on others to elicit potential problems as opposed to him volunteering any difficulty. His comments to the effect that the presence of problems would be readily observable in his behaviour and demeanour illustrate his reliance on external sources to assist him cope. His future behaviour will thus be best managed, at least in the short term, by those who are intimately acquainted with his risk issues and who are able to routinely approach issues of potential relevance. Clearly, it is also pertinent to acknowledge that his life circumstances have changed and that the issues relevant to his offending over 20 years ago may be less relevant currently, particularly when taking into account his stage of life.
118 I consider the last reference, to Mr Lyddieth's 'stage of life', to be a reference to the physical and mental state he has reached relative to that in 2002 when he last committed offences. I do not consider that evidence to be inconsistent with the evidence of Dr Wynn Owen as to the comparison to be made between Mr Lyddieth's physical capabilities and sexual interest and drive at those two points or between the first annual review and the present review.
119 Mr Summerton in his testimony elaborated on aspects of these matters as follows (18 September 2014, cross-examination ts 443 - 444):
In terms of coping skills in the community, are there particular concerns that Ms [Place] has raised? Because they seem to have some significant concern for Dr Wynn Owen?---Well, there are other issues around him being reliant on external sources to be assisted as opposed to him volunteering problems and expecting problems gleaned from his demeanour.
And I think he said? So those were an issue. That remains an issue?---Yes.
And I - but I think your evidence was that it needs to be understood and worked with. So is it clear that it is understood by the Department?---Yes. That has been identified so it's understood---Yes.
And it's understood by Ms [Place]?---Correct.
That that's something to keep talking about. That's correct?---That's correct, yes.
And in fact the Department has the lesson learnt from that time in 2002 with Mr Lyddieth, doesn't it? I mean, in that there's some institutional memory that the Department knows that this was a - - -?---Well, it's something to refer back to, yes.
Yes. That there was this sort of - you know - got locked out of his apartment, it was a stressor and there were things going wrong with his coping and so in the end that led to a journey of offending in 2002?---That may be over determined that it was being locked out that led to his offending but it clearly would have been a stressor at the time.
Right. So you're saying the little thing like being able to manage, I think, the electronic age and keeping his - like losing a key and those things. You will say they're small, aren't they? They're not necessarily going to lead to offending?---Well, an accumulation of stressors may unsettle him along a certain pathway but no, it's not going to take one issue to result in offending, obviously.
120 I consider that Mr Summerton's conclusions are strongly supported by the facts on which he relies. I consider that, of particular relevance to me, Mr Summerton's evidence concerning Mr Lyddieth's strategies for coping with stress is closely aligned with the evidence of Dr Wynn Owen. I have previously dealt with the apparent differences between Dr Wynn Owen's opinions and those of Mr Summerton as to Mr Lyddieth's self-awareness.
121 I further consider that Mr Summerton's conclusions, to the extent they describe Mr Lyddieth's risk of serious sexual offending, are consistent with those of Dr Wynn Owen.
122 I will return to consider further the views of Mr Summerton with respect to the manageability of Mr Lyddieth's risk when I consider the choice to be made between the options in the DSO Act s 33(2)(a) and s 33(2)(b).
123 I turn now to the DSO Act s 7(3)(c).
(c) Propensity
124 I take the view that the legislature has used the word 'propensity' in its ordinary meaning in the context of the criminal law, as described in Director of Public Prosecutions (WA) v Comeagain [2008] WASC 235 [36] (McKechnie J), quoting Director of Public Prosecutions (WA) v GTR [2008] WASCA 187; (2008) 38 WAR 307 (Murray AJA), as follows:
In GTR Murray AJA described 'propensity' as follows:
'In my view 'propensity' in this context means what it ordinarily means in the context of the criminal law. It means that the offender has an inclination or tendency, a disposition to commit serious sexual offences generally, in a particular way, or upon a particular type of victim. The word refers to some identifiable characteristic of the offender, something in his makeup or personality which may or may not be of the quality of a diagnosable mental illness or personality disorder. [178]'
126 In my view, allowing for Mr Lyddieth's stage of life as I have indicated Dr Wynn Owen does, that propensity, including that particular propensity, describes a matter of grave concern.
127 I turn now to the DSO Act s 7(3)(d).
(d) Pattern
128 I have previously described the pattern of offending behaviour identified by Dr Wynn Owen.
(e) and (f) Efforts to address the cause or causes of behaviour including participation in any rehabilitation program and its effect
129 I have previously described particular evidence of Mr Summerton in those respects.
(g) Antecedents and criminal record
130 I have previously described those matters.
131 There have been no changes in respect of these since the first annual review.
(h) Risk of a serious sexual offence
132 As I have previously indicated it is not in dispute before me that Mr Lyddieth is a serious danger to the community, in the sense that if he were not subjected to a continuing detention order or a supervision order there is an unacceptable risk he would commit a serious sexual offence.
133 However, before undertaking the balancing exercise described in Italiano v State of Western Australia [2009] WASCA 116 [4], [46] (Buss JA), referred to in The State of Western Australia v West [52(e)], and as in my view the present item requires, I must address the likelihood that Mr Lyddieth would commit a serious sexual offence if he were not subject to a continuing detention order or a supervision order.
134 I note the opinion Dr Wynn Owen in this respect to which I have referred.
135 On that evidence, I find the likelihood of Mr Lyddieth committing a serious sexual offence is a very significant one.
(i) The need to protect the community from that risk
136 In the present respect I note again my findings as to propensity and pattern in relation to serious sexual offending by Mr Lyddieth.
137 I consider there is a strong need to protect the community from the risk I have described in terms of that propensity and pattern.
(j) Any other relevant matter
138 There were no such matters put to me.
Conclusion: whether I find that Mr Lyddieth remains a serious danger to the community
139 Both counsel accepted that that the only appropriate finding on the evidence before me is that Mr Lyddieth does remain a serious danger to the community.
140 However, in accordance with DPP v GTR [34] (Steytler P and Buss JA), I must identify what it is that constitutes the risk and makes the risk unacceptable, and I must consider whether or not that factor has, or those factors have, been proved to a high degree of probability by acceptable and cogent evidence.
141 What constitutes the risk in this case and makes that risk unacceptable is the level of likelihood as assessed by Dr Wynn Owen, of serious sexual offending of the kind I have identified.
142 I consider that factor has been proved to a high degree of probability by acceptable and cogent evidence. I so consider by reference to my review of the matters to which the DSO Act s 7 says I must have regard.
143 I turn now to the choice I must make on that determination.
The choice of order to make: the applicable law
144 As I previously indicated that I draw from DPP v West as quoted in DPP v Yates, I should choose the order that is the least invasive or destructive of Mr Lyddieth's right to be at liberty while, at the same time, ensuring an adequate degree of protection of the community: The State of Western Australia v Latimer [2006] WASC 235 [49] (Murray J), where a continuing detention order was made.
145 I should add from Latimer [24] the following, which is accepted in Director of Public Prosecutions for Western Australia v Decke [2009] WASC 312 [15] (Hall J), where a supervision order was made:
The [DSO] Act prescribes no overall limit of time after which the prisoner must be released, and so it can be seen that a continuing detention order, when made, has the potential to last indefinitely, for a period well beyond the term of any sentence of imprisonment which might be imposed as punishment upon the commission of a serious sexual offence by the offender. It is having regard to that such matters that I express the opinion that the scheme of the [DSO] Act requires the Court to do no more than [is] necessary for the continuing control, care or treatment of the offender to achieve an adequate degree of protection for the community.
146 Of course, the paramount consideration is the need to ensure the protection of the community (the DSO Act s 33(3)).
147 Thus, as I take DPP v Williams [86] (Wheeler JA & Le Miere AJA agreeing) quoted above to indicate, if I cannot be satisfied that the community is adequately protected by a supervision order then I must make a detention order: see also DPP v Comeagain [92].
Making the choice
148 I have noted the bases upon which the choices like those I have to make were made in the previous decisions of the court concerning Mr Lyddieth under the DSO Act: see DPP v Lyddieth [105] - [114] and DPP v Lyddieth [No 2] [40] - [44].
149 Ms Hutchings's report describes a proposed Community Supervision Plan both in general terms (Exhibit 1.10, pages 34 - 37) and in more detailed terms outlining recommended Proposed Supervision Order Conditions for the court's consideration (Exhibit 1.10, pages 38 - 42).
150 Those Proposed Supervision Order Conditions include reporting and monitoring conditions, including:
(a) electronic monitoring and the possibility of visits for monitoring purposes to the place where Mr Lyddieth will reside;
(b) maintaining a daily diary if and as directed by a Community Corrections Officer;
(c) compliance with directed psychological monitoring/management arrangements and with the requirements of programs designed to address his offending behaviour or risk of serious sexual offending as directed;
(d) exchange of information between persons or agencies involved in the implementation or supervision of the order, including confidential information;
(e) restrictions on contact with victims; curfew arrangements;
(f) compliance with medication and mental health treatment directions; and
(g) prevention of high risk situations, including not to possess, consume or use alcohol or any prohibited drug, including cannabis, with subjection to urinalysis, as well as not to remain in any place where prohibited drugs are being consumed, not to possess any pornographic material in any format or search of pornographic images during access to any computer or other device and to make full disclosure regarding his past offending and the current order to anyone with whom he commenced a domestic, romantic, sexual or otherwise intimate relationship.
151 Ms Hutchings's testimony particularly went to accommodation for Mr Lyddieth; GPS monitoring arrangements currently available; the capability of the Department of Corrective Services to be flexible and active in dealings with Mr Lyddieth; and support for Mr Lyddieth from UCW. I particularly focus on the accommodation issues. I reach the others when I consider the evidence of Dr Wynn Owen and Mr Summerton.
152 Ms Hutchings's 2014 report (Exhibit 1.10, page 34) and her testimony (18 September 2014, examination-in-chief, ts 451 - 452; cross-examination ts 453 - 459) were that there was no accommodation currently available to Mr Lyddieth through arrangements under the Dangerous Sexual Offenders Supported Accommodation Program. This is a program, as I understood it, for provision of accommodation for dangerous sexual offenders by the Department of Housing. Further, it appears there was no accommodation currently available to Mr Lyddieth from the Department otherwise. Still further, Ms Hutchings had not been able to ascertain a timeframe within which accommodation could be expected to be available.
153 Ms Hutchings in her testimony also indicated that accommodation was not available from Mr Lyddieth's sister (18 September 2014, examination-in-chief ts 452), who, Ms Hutchings' report indicated, Mr Lyddieth had identified as his 'main family support' (Exhibit 1.10, page 34).
154 I turn now to consider the evidence of Dr Wynn Owen and Mr Summerton.
155 I have previously reviewed Dr Wynn Owen's and Mr Summerton's evidence as to the counselling relationship between Mr Lyddieth and Ms Place. I note the importance attached to a relationship like that one, as well as the relationship with support workers from UCW, in the conclusion in Mr Summerton's 2014 report previously quoted (Exhibit 1.9, page 30, par 26). That latter relationship is described as a 'long-established' one in Mr Summerton's 2004 report (Exhibit 1.9, page 28, par 16) and as one, 'particularly with his previous primary worker', that was 'very long-standing' and having 'some considerable merit' in Dr Wynn Owen's testimony (18 September 2014, cross-examination ts 399). Ms Hutchings's testimony was that the relationship with UCW was long-standing, and that they provided emotional and practical support to persons like Mr Lyddieth on a flexible basis, with communication between them and the Department of Corrective Services. UCW appears to be the body described as a 'social welfare organisation' in DPP v Lyddieth [112].
156 In respect of Mr Lyddieth's preparedness for release, I note (in relation to Exhibit 1.8, page 18) Dr Wynn Owen's testimony as follows (18 September 2014, examination-in-chief ts 361 - 362):
Now, going onto his preparedness for release and future plans, again this is at page 18 of the book of materials, in what way did Mr Lyddieth comment on the plans that he had or he has for his release to the community? Does he have any specific in mind, or what was your impression in relation to that?---I got an impression that the plan that he had was more substantial than previous plans.
Yes?---He more quickly gave me a list of the sort of things which he felt were potential issues, some of which I indicated in my report, and he talked, without prompting, about what he might do to try and manage his time, recognising such things as isolation and boredom and stress, in a way that it gave me a sense that he understood that more than it had at previous interviews.
Yes?---So whereas previously I had had to prompt and ask specifically about what might happen, this time Mr Lyddieth was more descriptive and seemed to have a better understanding.
157 Dr Wynn Owen's overall assessment was that, compared with his previous concerns as to the extent of Mr Lyddieth's reliance on others, his present position was 'a little bit more about himself', which was 'a shift in the right direction' (18 September 2014, cross-examination ts 398, 399).
158 However, I further note Dr Wynn Owen's testimony that the change in terms of risk management for Mr Lyddieth since the first annual review before EM Heenan J was, while 'more positive', only 'slightly more positive' (18 September 2014, cross-examination ts 413).
159 True it is there are other possibilities for more effective monitoring of Mr Lyddieth in the community recognised in the passage from Mr Summerton's 2014 report (Exhibit 1.9, par 25) quoted above. Further, the possibilities for such monitoring, through disclosure by Mr Lyddieth, and other monitoring such as of his movements through GPS technology and indeed of his ingestion of substances such as through urinalysis, are enhanced by the length of the cycle represented by the pattern of offending described in the evidence of Dr Wynn Owen in that regard I reproduced above. In addition, Dr Wynn Owen appeared to recognise those possibilities in his testimony (18 September 2014 cross-examination ts 408), while adding 'should he stick to that pattern'.
160 However, I note again the problems of self-awareness and frankness for Mr Lyddieth I have noted in the evidence of both Dr Wynn Owen and Mr Summerton above.
161 In respect of monitoring by GPS technology, I note the testimony of Ms Hutchings as to its current form (18 September 2014 cross-examination ts 459 – 465). That testimony included the following (ts 461 - 462):
And if the Department were aware that Mr Lyddieth had a particular proclivity to forming routes such as the surveillance of people, that's something a community corrections officer could be monitoring for?---Yes.
By simply requesting the electronic monitoring officers to provide them with that information?---Yes.
And it might be something that the electronic monitoring officers could assist the community corrections officer to decipher, effectively. Is that right?---Yes, that's correct.
Yes. Because the other two electronic monitoring officers that are on shift all the time - I know you said that they're doing - they're in the field, is that right?---Yes, that's correct.
And setting up GPS, keeping a track of information - keeping abreast of the technology. Is that right?---Yes.
They're also the response unit, aren't they, the other two?---Yes, they can respond if there's an issue that needs responding to such as an offender's GPS bracelet needs to be tightened or there's an issue.
Because if an alert is raised, there is a predetermined schedule of responses, isn't there?---Yes.
162 That testimony of Ms Hutchings was that those possible responses included communicating with the offender, including through the GPS device itself if it was of the appropriate type, and the possibility of an immediate response involving calling out of police.
163 Before me, Dr Wynn Owen had been directed to his testimony at the first annual review before EM Heenan J that community supervision could be considered for Mr Lyddieth if two conditions were met. The first was that there was 'real-time GPS'; and the second was 'supervised management with good inter-agency co-operation that was assertive, not passive' and that 'included real-time GPS monitoring with immediate response' (18 September 2014, cross-examination ts 414; the quotations are from the hearing in the first annual review on 24 July 2013, examination-in-chief ts 259, 260). It may be noted that the two conditions are interdependent.
164 Before me Dr Wynn Owen, while acknowledging he was not '100%' informed as to the current form of GPS technology, also testified '[b]ut I am aware that it's not at the level that I had envisaged at the time that I spoke in court' (18 September 2014, cross-examination ts 415).
165 In any event, I am of the same view as that expressed by Hall J in DPP v Lyddieth [110], prior to the introduction of GPS technology in its current form, as follows, a view which it appears to me goes to certain inherent limitations of the technology:
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.
166 In respect of monitoring such as through urinalysis of the ingestion of substances, I note that on the evidence before me, and so far as I can tell from their decisions before Hall J (cf DPP v Lyddieth [58], [107]) and EM Heenan J (cf DPP v Lyddieth [42]), use of substances such as alcohol or cannabis is shown as an indicator of stress or a disinhibitor of behaviour leading to offending. In respect of alcohol on the evidence before me I accept that this is a matter that appears to have been addressed with some success by Ms Place (see 18 September 2014, cross-examination ts 436 - 437), while as I have indicated cannabis use appears to have ceased. However, the evidence before me and so far as I can tell from the evidence before Hall J and EM Heenan J does not indicate that substance use was an invariable or always to be expected precursor or accompaniment to offending.
167 In respect of other monitoring, I note Dr Wynn Owen's reference in his testimony before EM Heenan J to 'supervised management with good inter-agency co-operation that was assertive, not passive', which he explained in his testimony before me as 'reactive … real-time reactive management. So if something happens there's an immediate response' (18 September, 2014 cross-examination ts 415).
168 As to the capabilities for such management in the Department of Corrective Services I note Ms Hutchings's testimony as follows (18 September 2014, cross-examination ts 448 - 449):
Yes. Does the department have the capacity to respond to his risk factors?---Well, that's what we do.
Yes, but in terms of manageability, from a department's perspective, are you confident the department has identified them, he's working on them?---There would appear to be a reasonable risk structure around him that would - would enable us to manage his behaviour: seeing a CCO on a regular basis, seeing his psychologist on a regular basis. We would certainly be across the risk issues.
Your evidence said risk structure. Do you mean risk management structure?---Yes.
Sorry. I just need to make sure that that extra word was meant to be in there. Dr Wynn Owen spoke about the flexibility of the management. Is that something that the department is able to achieve?---I'm not entirely clear what he meant by flexibility. We would give more time and more focus on people who - I guess early on after their release or if we saw them to be at increased risk or having increased needs or higher needs than others, yes.
Well, there are interagency meetings held in relation to offenders on the dangerous sex offender orders, aren't there?---That's correct, yes.
So, for Mr Lyddieth, those interagency meetings would be with the department psychologist, Ms [Place], or whoever is filling that role; the Community Corrections officer, the support worker from UnitingCare West? No, they wouldn't be in those meetings. No.
But the Sex Offender Management Squad?---Correct, yes.
Is there anyone else I'm missing who would be in those meetings?---Other members of PPU and various psychologists from the forensic psychological service, as we're now called.
Thank you. So it's PPU, meaning Public Protection Unit? That's correct, yes.
So it's not the case that there's just simply a schedule of weekly meetings set at the beginning of Mr Lyddieth's release and that's the schedule that's worked to? We – no, no. So his – his case is – they have their own case management meetings as well in PPU, which they will be able to talk to. We have our risk management meetings. The regularity of that's determined on the basis of the individual in question.
169 I accept that there is a capability for management of the kind that Dr Wynn Owen refers to. However, the effectiveness of such management depends in my view at the least on information that those involved have. That information on the evidence I have reviewed as to the importance of disclosure by Mr Lyddieth must depend in significant part on him.
170 Overall, I consider that the level and nature of the risk of serious sexual offending by Mr Lyddieth that I have found are such that, for the adequate protection of the community, I should have confidence that the risk can be satisfactorily managed by a supervision order. I cannot so conclude, in view of the evidence of Dr Wynn Owen and Mr Summerton I have referred to in this section of my reasons. In my view that evidence indicates that there has not been a material change of circumstances for this purpose since the first annual review before EM Heenan J.
171 I conclude then that the choice I should make is expressly to decline to rescind the continuing detention order, that is, the option under the DSO Act s 33(2)(a).
172 I note that this conclusion makes it unnecessary for me to explore the position that the court would have been in had the only issue in respect of supervision in the community under a supervision order been the availability of suitable accommodation for Mr Lyddieth. I refer again to the question as to the extent to which the court should proceed on the assumption that the executive government will provide the resources for the management and treatment of offenders falling under the DSO Act referred to in DPP v Yates [7]. My conclusion means I do not have to go into that question.
Conclusion
173 For the reasons I have set out in the previous two sections of this decision I have concluded that Mr Lyddieth remains a serious danger to the community within the DSO Act s 33(2); and that under s 33(2)(a) I should decline to rescind the continuing detention order.
174 I should add the following.
175 It should be apparent from these reasons that I would expect the continuation of Mr Lyddieth's counselling relationship with Ms Place. I would expect in that relationship attention would be paid to the matters of self-awareness and frankness to which I have referred. The results from the continuation of that relationship might well affect the consideration of a supervision order at any future review of Mr Lyddieth's custody under the continuing supervision order of Hall J.
3
16
2