Director of Public Prosecutions (WA) v Lyddieth [No 4] - [2015] WASC 421

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL

CITATION: DIRECTOR OF PUBLIC PROSECUTIONS (WA) -v- LYDDIETH [No 4] [2015] WASC 421

CORAM: SIMMONDS J

HEARD: 28 OCTOBER 2015

DELIVERED : 6 NOVEMBER 2015

FILE NO/S: DSO 1 of 2012

BETWEEN: DIRECTOR OF PUBLIC PROSECUTIONS (WA)
Applicant
AND
DENNIS JOHN LYDDIETH
Respondent

Catchwords:

Criminal law - Dangerous sexual offender - Third annual review of custody under Dangerous Sexual Offenders Act 2006 (WA) s 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 20, s 27, s 29, s 31, s 32, s 33, s 37, s 42
Evidence Act 1906 (WA), s 106A

Result:

Continuing detention order to be rescinded and supervision order to be made

Category: B

Representation:

Counsel:

Applicant: Ms S Markham
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 for Queensland v Francis [2006] QCA 324
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 Lyddieth [No 3] [2014] WASC 391
Director of Public Prosecutions (WA) v Misko [2012] WASC 259
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 The 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

The respondent is a person subject to a continuing detention order (the continuing detention order) made under the Dangerous Sexual Offenders Act 2006 (WA) and confirmed at the first and second annual reviews after it was made.
The DPP has applied for the respondent's detention under the order to be reviewed (the application), by way of the third annual review of the continuing detention order under DSO Act s 29(2)(b) (the present review).
The provision for the review of the respondent's detention made in DSO Act s 33 (the present review) is as follows:
33. The review
(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.
An order of the kind in DSO Act s 33(2)(b) is defined in s 3(1) as one of the two kinds of 'supervision order'.
Pursuant to directions for the hearing of the application and the carrying out of it under DSO Act s 31 made administratively by consent (the directions) that hearing was held over one day (the present hearing). Evidence and submissions were given on that day.
These are my reasons for determination of the application.
I first provide the background to the application followed by the procedural context to the application.
I will then describe those matters the DSO Act requires me to address in the present review.
I will then describe the respondent's background and history of offending.
I will then describe the evidence at the hearing before me.
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 the respondent 'remains a serious danger to the community' (see s 33(1)).
As I find that the respondent 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 that order and make a supervision order (see s 33(2)(b)).
In making the choice between the two, the paramount consideration is the need to ensure adequate protection of the community (see s 33(3)).
For the reasons that follow I consider the appropriate order to be that in DSO Act s 33(2)(b), that is to say, I would make an order rescinding the continuing detention order and make a supervision order.

Background to the application

The continuing detention order was made by Hall J under 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.
The DPP must apply for annual reviews of a person's detention under a continuing detention order as provided for in DSO Act s 29.
On the first annual review under 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 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.
On the second annual review under the DSO Act s 29(2)(a) (the second annual review) I concluded that the continuing detention order should not be rescinded. My reasons are Director of Public Prosecutions (WA) v Lyddieth [No 3] [2014] WASC 391. The order was made on 27 October 2014.
I call the proceedings that resulted in those decisions 'prior proceedings'. I called those decisions 'prior decisions'.

Procedural context for the present review

The directions provided, among other things, for the examination of and report upon Mr Lyddieth by a named psychiatrist: see s 32.
The specifications for such a report are in 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.
At the hearing I admitted into evidence as Exhibit 1, by consent, a book of materials tendered by the DPP for the purpose of the review and entitled 'Book of Materials for the Purpose of the Third Annual Review of Detention'. Included in Exhibit 1 was the report entitled 'Psychiatrist's Annual Review 2014 [sic 2015]' dated 17 October 2015 by the psychiatrist named in the directions, Dr Peter Wynn Owen, Consultant Forensic Psychiatrist (pp 36 ‑ 43) (Dr Wynn Owen's 2015 report). I will refer to other relevant contents of Exhibit 1 in due course.

The matters the DSO Act requires me to address

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 for Queensland v Francis [2006] QCA 324, is in Director of Public Prosecutions (WA) v Comeagain [No 2] [2011] WASC 16 [20], [21] (Blaxell J):
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'.
Consistent with the authority of … Williams … [79] if making a decision under s 33(2) I should adopt the least restrictive alternative compatible with the protection of the public. In that regard, and in the absence of evidence to the contrary, I should assume that in the event that a supervision order is made, resources will be made available to provide adequate supervision (Williams [81]; … Francis … [36]).
See also the adoption of DPP v Comeagain [No 2] [20], [21] in DPP v Liddieth [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).
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 DSO Act s 33(2)(a) and (b)).
DSO Act s 7 read with s 3(1) gives the meaning of 'serious danger to the community' as follows:
7.Serious danger to the community
(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;
(b)any other medical, psychiatric, psychological, or other assessment relating to the person;
(c)information indicating whether or not the person has a propensity to commit serious sexual offences in the future;
(d)whether or not there is any pattern of offending behaviour on the part of the person;
(e)any efforts by the person to address the cause or causes of the person's offending behaviour, including whether the person has participated in any rehabilitation program;
(f)whether or not the person's participation in any rehabilitation program has had a positive effect on the person;
(g)the person's antecedents and criminal record;
(h)the risk that, if the person were not subject to a continuing detention order or a supervision order, the person would commit a serious sexual offence;
(i)the need to protect members of the community from that risk; and
(j)any other relevant matter.
The term 'serious sexual offence' is by DSO Act s 3(1) given the meaning of that term in Evidence Act 1906 (WA) s 106A. That provision applies to sexual offences that are, broadly, ones for which the Criminal Code (WA) provides for a maximum penalty of imprisonment of 7 years or more.
I consider that the relevant principles established by prior decisions as to the proper construction and effect of 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 TheState of Western Australia v West [2013] WASC 14 [52] (part) (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].
As to the matter of the choice between the options in DSO Act s 33(2), I note from TheState 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 [52].
The State of Western Australia v West in that respect concerned the relevant principles for the choice between the options in DSO Act s 17(2), which are expressed in similar terms to, 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].
There is a further matter of law that I should note. It concerns the option to be chosen from 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.
There are two matters of difficulty in the statements of the relevant principles that I have quoted thus far.
The first 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].
The other matter concerns the breadth of the tasks of the court in making the finding provided for in DSO Act s 33; and in making the choice between the options also there provided for: see DPP v Pindan [No 3] [52] ‑ [55].
I do not consider I need to address either matter further. Neither counsel suggested otherwise. As will be seen, neither appears to call for such further address.

Background and offending history of the respondent

I consider that a sufficient statement for my purposes is in my decision DPP v Lyddieth [No 3] [41] ‑ [47]. For convenience I reproduce those paragraphs.
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.
Mr Lyddieth's family history, early sexual experiences and relationship history are described in DPP v Lyddieth [23] ‑ [28]. These included abuse by a carer at a children's home after his parents separated when he was two 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 peeping tom 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]).
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.
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.'
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.'
Mr Lyddieth's offending subsequent to that between 1987 and 1991 is described in DPP v Lyddieth [49] ‑ [50] as follows:
'In December 2000 to September 2001, Mr Lyddieth undertook an intensive sex offender treatment programme whilst in prison. On 3 January 2002 he was released on parole. He participated in a community based sex offender maintenance programme on his release and also had individual counselling. He was subjected to electronically monitored curfew requirements. Notwithstanding these limitations, Mr Lyddieth committed a series of indecent acts between March and 25 June 2002. These offences involved masturbating in the presence of women who were unknown to him. The first three such offences occurred in March 2002 at Cottesloe Beach. A further three such offences occurred in June 2002, two of them being at Hillarys dog beach. A further offence was committed at Cottesloe on 25 June 2002. He was arrested near the scene of the last offence but denied the offence in an interview. He subsequently admitted all of the offending. This resulted in a breach of his parole which was suspended on 19 July 2002. On 2 September 2002 he pleaded guilty to seven charges of committing an indecent act in public and was sentenced to a total effective sentence of 12 months' imprisonment cumulative on the balance of his parole term.
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.'

The evidence before me

DSO Act s 42(2) ‑ (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;
(banything 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.
I have previously referred to Exhibit 1. No part of it was objected to as inadmissible.
Exhibit 1 includes the following:
•Exhibit 1.7 (Exhibit 1, pp 36 ‑ 43) ‑ Dr Wynn Owen's 2015 report;
•Exhibit 1.6 (Exhibit 1, pp 28 ‑ 35) ‑ 'Department of Corrective Services Dangerous Sex Offender Treatment Report' dated 23 September 2015 by Mr David Summerton (Mr Summerton's 2015 report): Mr Summerton's 2015 report shows him as a psychologist and a member of the Dangerous Sex Offender Psychology Team in the Department, although it also indicates that that Team is now the Forensic Psychological Service (FPS); and
•Exhibit 1.8 (Exhibit 1, pp 44 ‑ 54) ‑ 'Department of Corrective Services Community Supervision Assessment' dated 20 October 2015 by Ms Judith Dabala (Ms Dabala's report). Ms Dabala's report shows her as a Senior Community Corrections Officer in the Public Protection Unit in the Department.
There was an Addendum Report to Exhibit 1.8 dated 21 October 2015, by Ms Dabala. The Addendum Report was admitted into evidence by consent as Exhibit 2.
Dr Wynn Owen, Mr Summerton and Ms Dabala testified at the present hearing.
The DPP did not seek to call any other evidence.
The respondent did not seek to give or adduce any evidence.
I turn now to the matters the DSO Act requires me to address.

Whether I do not find the respondent to remain a 'serious danger to the community'

I believe I must address this in some detail, notwithstanding that it is not in dispute before me. I believe this because I must make that determination (see DSO Act s 27(1) and (2)), and because, in my view, a number of matters I must address in that regard also go to the choice I must make between the options in DSO Act s 33(2)(a) and (b).
I adopt the structure used by McKechnie J in Director of Public Prosecutions (WA) v Misko [2012] WASC 259. That structure follows DSO Act s 7(3).

(a) the Psychiatric Report, including cooperation in the examination

In this section of my reasons I review Dr Wynn Owen's 2015 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 DSO Act s 33(2) I will refer to Dr Wynn Owen's evidence with the greatest bearing on that question.
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 evidence.
Dr Wynn Owen's 2015 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 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.
Dr Wynn Owen interviewed the respondent on one occasion and drew on other matter. That other matter was telephone discussions with Ms Dabala and a psychologist in the Department of Corrective Services, Ms Chantelle Place (I will return to Ms Place below); a meeting with Mr Summerton; and a number of documents, including a medical report 'Medical Encounters' from the Health Services, Department of Corrective Services, for the respondent.
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 at the first annual review: see DPP v Lyddieth [No 2] [35] ‑ [39]. Dr Wynn Owen was also the psychiatrist who provided a report (Dr Wynn Owen's 2014 report) for and testified at the second annual review before me: see DPP v Lyddieth [No 3] [51], [52] and [59] and following.
I note from Dr Wynn Owen's testimony at the present hearing that the respondent was very cooperative at his interview (examination‑in‑chief, ts 488).
In Dr Wynn Owen's 2015 report (Exhibit 1.7, p 42) Dr Wynn Owen summarises his opinion as follows:
In my opinion Mr Lyddieth remains a high risk of future serious sexual offending of released unsupervised. The Static 99R estimated reoffending likelihood of 3 in 10 over 5 years may potentially be increased by stress and will be significantly increased by substance use. However, Mr Lyddieth's physical health problems are now clearly impacting on his physical ability to offend as well as probably contributing to a reduced libido and these physical and physiological limitations will increase further with time.
This may be compared with the overall opinion expressed in Dr Wynn Owen's 2014 report quoted in DPP v Lyddieth [No 3] [65] as follows:
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 the 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.
I will now describe the evidence of Dr Wynn Owen before me for the purposes of the present review in some detail.
I note that the range of tools for risk assessment used by Dr Wynn Owen was the same as for his report for the second annual review. Those tools were the Static 99R as well as the RSVP tool (which included the PCL-R tool referred to in Dr Wynn Owen's 2014 report), described in DPP v Lyddieth [No 3] [67], [68]. His evidence (see in particular Exhibit 1.7, pp 41, 42) was that the assessments using those tools had not changed save in two respects.
One respect was the 'manageability' of the respondent's risk of serious sexual offending (Exhibit 1.7, p 42).
Dr Wynn Owen's 2015 report indicated that the respondent's manageability may have 'marginally' improved through improved engagement with the forensic psychologist Ms Place; however that matter had yet to be tested in the community (Exhibit 1.7, p 42). Ms Place was the treating psychologist for the respondent, from a time before the second annual review to the present.
Dr Wynn Owen's opinion appears to be based in large part on Ms Place's report to him that the respondent had engaged appropriately with therapy and a positive therapeutic relationship had been established with him, such that he appeared more able to report stress, frustration and poor coping while in prison (see Exhibit 1.7, p 40).
I have noted in this regard the opinion of Mr Summerton, in his report (Exhibit 1.6 [25]) that the respondent had made 'marginal progress' since the second annual review such that he was not necessarily better prepared for release than he was in 2014. Dr Wynn Owen notes that opinion in his report (Exhibit 1.7, p 40).
Mr Summerton appears to indicate what he means by 'marginal' in the following testimony (present hearing, examination‑in‑chief, ts 538):
Just lastly, having looked at all the materials that you have and spoken with Mr Lyddieth, what is your overall impression of his progress since the last review?---I think it has essentially been a holding pattern. He certainly hasn't gone backwards. He hasn't gained anything significantly.
When you say that do you see that as a barrier to his being on supervision or that that has some effect on his management, ability to be managed?‑‑‑No. The way he presents it currently is that, as I say, he talks readily and he engages readily. Whether or not he is saying things that are immediately appropriate to the issues that are being asked about is besides the point in some ways. He talks and he gives material for ‑ to be discussed and analysed and assessed and he seems to be quite compliant and wanting to do the right thing. That seems to be his demeanour within the prison, which is a factor in and of itself because he doesn't want to be seen to be making mistakes and that may hamper disclosure. But knowing that, that can be discussed.
Dr Wynn Owen for his part testified as to the appearance to Ms Place of the respondent's greater ability to report, the assessment of Mr Summerton just described and matter not having been tested in the community as follows (present hearing, cross-examination, ts 505):
The area is very significant for the manageability and supervision. There's no doubt about that. I don't want to overplay it, because I think it's very difficult to quantify these aspects. So the change is there, yes, I absolutely acknowledge that. The contribution of that change to what I think immediately about risk now, is a difficult thing to quantify. And I understand absolutely why Mr Summerton has written that those changes are marginal. I think it's more about that it's very difficult to quantify that, but it is a positive change.
So if I understood that correctly, it's a positive change in what was a significant issue in relation to risk management?---It is a significant issue in relation to risk management. Yes.
And in that significant issue was where we've seen the positive change?‑‑‑As long as we acknowledge what the change is, which is the ability to articulate something that wasn't previously articulated. It's not a change as in doing something different in a genuine circumstance.
This is all in vitro.
The other respect in which Dr Wynn Owen's opinion there was a change in the respondent's risk of serious sexual offending was the following (Exhibit 1.7, p 42):
The most significant change affecting risk is Mr Lyddieth's ongoing ageing and associated multiple health problems which now will undoubtedly affect his physical ability to commit serious sexual offences of the type for which he has been previously convicted. Elevated blood pressure, ischaemic heart disease and diabetes are all also associated with reduction in libido. Mr Lyddieth's limited exercise, smoking and excess weight all also present physical limitations to rape offending. It is my opinion that this will now materially reduces risk of serious sexual reoffending.
Dr Wynn Owen acknowledged in his testimony that the respondent had reported to a medical officer in July 2015 having engaged in physical activity to a greater extent than the respondent had described to Dr Wynn Owen (present hearing, re-examination, ts 528). That physical activity reported to the medical officer was working as a cleaner five hours a day and walking five laps around an oval daily. However, I understood Dr Wynn Owen's testimony to distinguish higher levels of exertion; and to refer to an element of 'bravado' in this account (ts 528). Overall, I do not consider Dr Wynn Owen's evidence in respect of physical or physiological changes to have been significantly shaken.
Dr Wynn Owen's 2015 report, unlike Dr Wynn Owen's 2014 report, does not describe the risk scenarios for the respondent, being the types of serious sexual offences he would most likely commit. However, Dr Wynn Owen's testimony in the present hearing (see especially cross‑examination, ts 513) appears to me to indicate no change in those scenarios as described in Dr Wynn Owen's 2014 report as follows (DPP v Lyddieth [No 3] [100]):
Dr Wynn Owen's 2014 report (Exhibit 1 page 22) describes the risk scenarios for Mr Lyddieth as follows:
Nature
1. Repeat: A series of exhibitionist offences will occur in which there 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.
I particularly note Dr Wynn Owen's testimony in the present hearing that the health changes in the past year that the respondent had undergone reinforced Dr Wynn Owen's opinion in 2014 that it was most unlikely there would be a change in the offending cycle to becoming a spontaneous offender: see cross‑examination, ts 513. Those health changes went to physical matters affecting the respondent's ability to offend including prepare for it and to escape after it; and physiological matters going to his sex drive including the strength of his sexual thoughts and their frequency: see examination‑in‑chief, ts 493 ‑ 494, cross‑examination, ts 496.
I turn now to DSO Act s 7(3)(b) matters.

(b) any other medical, psychiatric, psychological or other assessments

There is one such assessment. It is Mr Summerton's 2015 report and his testimony.
I have previously reviewed certain aspects of Mr Summerton's 2015 report and his testimony.
In this section of my reasons I review Mr Summerton's 2015 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 DSO Act s 33(2) I will refer to Mr Summerton's evidence with the greatest bearing on that question.
Mr Summerton's 2015 report indicates 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.
I note the following additional matters.
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.
Mr Summerton interviewed the respondent on one occasion. He also had consultations with Ms Place, and perused file information, counselling case notes, the Total Offender Management System (TOMS) database and prior professional assessments.
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]. He also provided a report (Mr Summerton's 2014 report) for and testified at the second annual review: see DPP v Lyddieth [No 3] [51], [52] and [105] and following.
Mr Summerton's 2015 report states its overall conclusions (Exhibit 1.6, p 34 [25]) in terms of the assessment of 'marginal progress' he explained in his testimony as I have indicated. I note further the following from his 2015 report appearing after that reference to 'marginal progress' (Exhibit 1.6, p 34 [25]):
He has maintained a good understanding of the precursors to his offending and is able to detail adequate plans to manage associated risk. His skills to effectively manage certain risk factors such as stress lack robustness and he will remain dependent on external sources for support and direction over the medium term. A combination of well identified risk factors and his apparent willingness to seek and accept help are considered central to his effective reintegration to the community should he be released.
In respect of the matter in that quotation I note the following from Mr Summerton's testimony (the present hearing, examination‑in‑chief, ts 536, I note the references to 'Ms Plaice' are to Ms Place):
And was he able to identify risk factors to you?---He was.
Yes.
Yes. And - - -?---He has – he has been consistently.
Yes. And, having identified those, what was his plan to do with that information? What did he say he would do if he identified risk factors?‑‑‑Well, his ‑ his overall coping strategy is to talk through the issues with identified parties. He has some capacity to think through issues for himself. He has ‑ he has ‑ he has said as much. But it's to engage the issues with either Ms Plaice or other support people.
All right. And is it also the case that, given what Ms Plaice now knows about Mr Lyddieth, that she will be observing and seeking information from him at their sessions?---Yes. That's correct. I suppose if I can say one thing about Mr Lyddieth is he talks with great ‑ well, he ‑ he talks a lot. So he ‑ he's not sure ‑ he's not ‑ he's very forthcoming in talking about issues, per se, and inherent in what he's saying, there are always things that we can ‑ be gleamed that might be relevant to his functioning ‑ to his coping. He ‑ even if he hasn't necessarily disclosed it for that express purpose.
Right. Because I note that he has been described a couple of times as being tangential and he tends to go off topic when you're trying to focus on issues?---He ‑ I think when he's talking he's relating one-to-one. He's quite anxious and he talks and he ‑ he says what he assumes people might want to know and he does take a bit of bringing back on focus. But I don't think that's done in any deliberate way. It's probably more a personality issue coupled with anxiety.
Mr Lyddieth has engaged in substantial intervention over the course of his lengthy incarceration including three ISOTPs 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 an interest in future consenting sexual relationships. This disclosure will allow for more realistic monitoring of a sexual functioning should he be released to the community.
Mr Lyddieth has generally good insight into his offending behaviour 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. 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.
I note that 'UCW' is Uniting Care West. I return to UCW briefly below.
I turn now to DSO Act s 7(3)(c).

(c) propensity

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]

On the evidence before me I consider that the respondent has a propensity to commit serious sexual offences in the future against female victims in the ways described in the risk scenarios I have previously identified. He has the particular propensity described in DPP v Lyddieth [47] quoted above.
In my view, allowing for the respondent's stage of life as I have indicated Dr Wynn Owen does, that propensity, including that particular propensity, describes a matter of grave concern.
I turn now to DSO Act s 7(3)(d).

(d) pattern

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

Mr Summerton's 2015 report addresses those matters in terms of the respondent's history up to the second annual review and his history since.
The history up to the second annual review is described in the following terms (Exhibit 1.6, p 28 [3]):
He has completed three Intensive Sex Offender Programs (ISOTPs) including one prior to his previous release to the community in 2002. At his Final Hearing in 2012 assessing psychiatrists deemed him to have made limited progress in programmatic intervention. The assessments identified a range of ongoing treatment needs including broad problems with self-management and release planning, the centrality of deviant fantasy to his offending and problems with drug and alcohol use. Subsequent to his Final Hearing Mr Lyddieth commenced individual counselling with department psychologist Mr Ryan Bell. The counselling with Mr Bell extended beyond his 2013 Annual Review until Mr Bell left the Department of Corrective Services in January 2014. Whereupon Ms Chantelle Place assumed the role of treating psychologist and has remained in that role to the current date.
Mr Summerton's 2015 report summarises the effects of efforts prior to the Second Annual Review to address the cause or causes of the respondent's behaviour in the following terms (Exhibit 1.6, p 29 [6]):
In summary, leading up to the 2014 Annual Review, Mr Lyddieth made some moderate progress including his willingness to seek support to manage stress and increased openness vis-a-vis his sexual functioning. Ms Place expressed reservation regarding Mr Lyddieth's capacity to effect further change of substance within a custodial setting.
Mr Summerton's 2015 report (Exhibit 1.6, pp 29 ‑ 30 [7] ‑ [9]) indicates that since the Second Annual Review the respondent had attended 10 sessions of individual counselling with Ms Place. In his testimony he indicated a further two sessions had taken place. She had indicated 'self‑awareness and frankness' had been introduced as issues at the Second Annual review as ones to be addressed: see in that regard DPP v Lyddieth [No 3] [175]. She reported that the respondent had difficulty appreciating the purpose of introducing self-awareness as a goal of counselling. However, while he had a tendency to gravitate to examination of self-awareness specific to his offending, which was essentially a reworking of familiar issues, Mr Summerton reported there had been some increase in his awareness of the connection between rumination and elevated stress.
Further, Mr Summerton's 2015 report states that Ms Place had indicated to him the following (Exhibit 1.6, p 30 [10]):
Further attention had been given to self-management and release planning, noting that Mr Lyddieth had initiated such focus during recent sessions. She reported that he was readily able to list relevant risk factors and appropriate coping responses. …
In that respect I note Mr Summerton's testimony (see the present hearing, examination‑in‑chief, ts 535) as to his understanding of the increased openness the respondent had shown in talking about his fantasies in relation to previous offending.

(g) antecedents and criminal record

I have previously described those matters.
There have been no changes in respect of these since the first annual review.

(h) risk of a serious sexual offence

As I have previously indicated, it is not in dispute before me that the respondent 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.
However, before undertaking the balancing exercise described in Italiano v The State of Western Australia [2009] WASCA 116 [4] and [46] (Buss JA), referred to in TheState of Western Australia v West [52] at (e), and as in my view the present item requires, I must address the likelihood that the respondent would commit a serious sexual offence if he were not subject to a continuing detention order or a supervision order.
I note the opinion Dr Wynn Owen in this respect to which I have referred.
On that evidence, which I consider not be inconsistent with Mr Summerton's evidence as I have reviewed it thus far, I find the likelihood of the respondent committing a serious sexual offence remains a very significant one, if less so as a result of the respondent's ongoing ageing and associated health problems most recently.

(i) need to protect the community from that risk

In the present respect I note again my findings as to propensity and pattern in relation to serious sexual offending by the respondent.
I consider that 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

There were no such matters put to me.

Conclusion: whether I find the respondent remains a serious danger to the community

It was not in contest before me that the respondent remains a serious danger to the community.
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.
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.
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 DSO Act s 7 says I must have regard.
I turn now to the choice I must make on that determination.

The choice of order to make: the applicable law

As I previously indicated I drew from DPP v West as quoted in DPP v Yates, I 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: TheState of Western Australia v Latimer [2006] WASC 235 [49] (Murray J), where a continuing detention order was made.
I should add from Latimer 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 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. [24]
Of course, the paramount consideration is the need to ensure the protection of the community (DSO Act s 33(3)).
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

I have noted the bases upon which the choices like that I have to make were made in the previous decisions of the court concerning the respondent under the DSO Act: see DPP v Lyddieth [105] ‑ [114], DPP v Lyddieth [No 2] [40] ‑ [44] and DPP v Lyddieth [No 3] [148] ‑ [170].
Ms Dabala's report sets out Proposed Supervision Order Conditions (Exhibit 1.8, pp 50 ‑ 53). Exhibit 2 sets out two recommended further conditions. At the present hearing counsel for the DPP indicated an amendment of one of them was accepted.
Taking account of Exhibit 2 as amended, those Proposed Supervision Order Conditions (the Proposed Supervision Order) include the following:
(a)electronic monitoring of the respondent's movements through GPS technology;
(b)if requested, entry by police officers for monitoring purposes to the approved residence where the respondent will be;
(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: the possibility of his participating in a sex offenders maintenance programme was referred to in evidence before me;
(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;
(f)curfew arrangements;
(g)not to commit offences as described;
(h)not to possess, consume or use alcohol or any prohibited drugs or substances including but not limited to cannabis;
(i)not to remain in any place where prohibited drugs are being consumed;
(j)to submit to urinalysis;
(k)to maintain a daily diary if and as directed by a Community Corrections Officer;
(l)not to access or use any pornographic material in any format and not to search for pornographic images during access to any computer or any other device capable of Internet use;
(m)not to possess a USB wireless modem or mobile device with Internet access capability; and
(n)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.
Ms Dabala testified that supported accommodation was available for the respondent and that the respondent could be expected to avail himself of the supports (examination‑in‑chief, ts 557). Those supports were expected to include those from UCW. Her evidence in these respects is supported by that of Dr Wynn Owen (see in particular cross-examination, ts 524).
Ms Dabala's testimony was also that the respondent was generally open and receptive to the conditions in the Proposed Supervision Order, and he was a person she considered would be manageable as an offender in the sense he would be compliant with the conditions (cross‑examination, ts 567 ‑ 568). This is consistent with the testimony of Dr Wynn Owen already referred to as to the respondent's capability for management in the community. I also consider Ms Dalal's evidence to be consistent with the testimony of Mr Summerton as to the respondent's suitability for management in the community as follows (cross‑examination, ts 54 ‑ 542):
[Y]our opinion is, is that Mr Lyddieth is suitable for management in the community, is he not?---I suppose the way I would put it is that, he doesn't particularly stand out as being any different from other people that have been released on community based orders.
Continuing supervision orders, do you mean, or - ---?---Sorry.
- - community based orders?---Supervision orders, yes.
So when you look across the cohort of offenders and dangerous sexual offenders you mean?---There is a fairly comprehensive wraparound support and monitoring network that I don't necessarily see being problematic for him to comply with.
Just so I can unpick your previous answer though. You mean when one looks at the cohort of dangerous sexual offenders that have been declared, in your mind he is no different or no less prepared for release or less manageable than any of the other dangerous offenders - - -?---Well, obviously, there's - - -
- - on a supervision order?---Well, obviously, there's some variation. Well, I suppose, what I would be saying; I find it difficult to ‑ I would find it difficult to see what we would obtain by keeping him in custody.
Is he open to supervision?---I believe he is.
So he is not resistant to supervision?---That's not apparent at this stage.
You get no sense of manipulation of or resistance to the concept of supervision?---He ‑ there are personality factors that will come in to play in that regard. So he is not going to be as open as some other people on the basis of the way he is psychologically. His, as I have said, the way he interacts he expresses himself to a degree that he will always leave something to be hooked in to.
To?---To be hooked in to. So he will always give material that can be worked with even if he hadn't necessarily intended to disclose it for that purpose.
For the respondent, it was pressed on me that there was insufficient reason shown to include two conditions in the Proposed Supervision Order. One was entry by police officers in (b) above; the other was the prohibition on possession of USB wireless modem and mobile devices in (m) above. I disagree in both cases.
As to the power of entry, I accept that such a power without warrant is a significant qualification on the position in general law. However, I note that the power is qualified by reference to the purpose for which it may be exercised. Ms Dabala testified that it was considered to be necessary for monitoring compliance where the concern was the possibility of a response to stress (through alcohol, cannabis or pornography) prior to the elevation of the risk of re-offending by a person who was untested in the community: see cross‑examination, ts 574 ‑ 575. I consider that evidence to be consistent with the evidence of Dr Wynn Owen as to this condition as follows (cross‑examination, ts 524):
Given the lack of immanence, do you see any need for the police to be able to enter his will ‑ his residence at will, without reasonable suspicion of the commission of a crime?---I think you would actually have to put that to the police and to the supervising authorities. In terms of risk, I imagine there will be a couple of situations where they may wish to, and may have to otherwise seek a whole range of permissions to gain entry. And I'm not‑‑‑‑
So that's not something that - - -?---I've not had a conversation with Corrective Services or the police about that particular condition. It's not a condition that concerns me greatly from the point of view of it disturbing Mr Lyddieth. I think it's more to facilitate the appropriate response should anything occur.
Could it be an additional stressor?---The ‑ the whole order will be stressful. One or two slight changes to it I don't think will make a difference to the overall fact that this is a very stressful situation to be in. So release after a long period of incarceration is stressful straight away.
Release under a range of onerous conditions will also be stressful.
As to the prohibition on possession of a USB wireless modem or mobile device with Internet capability, I accept that such prohibition would deny to the respondent a means of access to such things as maps, shopping and public transportation information which might assist him to self-manage in the community. Further, I accept that there are other means to address the potential of those devices to permit the respondent access to pornography, the matter of concern to which this condition appears largely to be addressed. Those other means would include a power to examine any such devices' records of how they had been used.
However, I note the testimony of Ms Dabala that supports this condition notwithstanding its tendency to deny the respondent that means of access to the other things than pornography, as follows:
Does that not have the risk of making him even more reliant on others?‑‑‑Which would be ‑ which risk would be higher, the risk of accessing pornographic material or risk of reliance on a support person. It would be preferable that it would be - - -
The risk of - - -?--- - - - the risk would be towards him asking for help rather than being able to access pornography.
I consider that the condition in (m) offers the advantage over the other means of addressing the potential referred to in terms of the particularly precautionary character of the control it represents. I accept that the cycle of offending I have previously referred to indicates the risk of offending is not that of imminent reoffending. That might be seen to make the other means with their delays more acceptable. However, I note again the testimony of both of Ms Dabala and of Dr Wynn Owen stressing that the respondent is untested in the community, with which Mr Summerton's testimony is consistent in my view. That stress of that matter in my view makes a precautionary condition of the kind in (m) appropriate.
Further, I note I do not have evidence that condition (m) would represent such a limitation on access to the other things than pornography that it would significantly affect the respondent's self-management capability in the community. I particularly note in that regard his other supports under the Proposed Supervision Order, particularly UCW, with which he has an established relationship and which is to be a means of practical support to him during his initial period in the community.
Finally, I note the breadth of the court's power to amend the conditions of a supervision order under DSO Act s 20.
Overall, I consider that the level and nature of the risk of serious sexual offending the respondent that I have found and the evidence I have reviewed in the previous sections of these reasons are such that I should have confidence that the risk can be satisfactorily managed by a supervision order by reference to the paramount consideration of the protection of the community in DSO Act s 33(3).
I conclude then that the choice I should make is that in DSO Act s 33(2) (b).
I have considered the period that should be set for the supervision order I would make. The testimony of Dr Wynn Owen was the only evidence in that regard presented to me. That evidence as I understood it was that a minimum period was five years, and that a period that would take the respondent to age 70 was 'from a scientific perspective' the 'best' (cross-examination, ts 526 ‑ 527).
Given that the respondent is presently aged 64, it seems to me that the appropriate period in all the circumstances of this case is 6 years.

Conclusion

For the reasons set out in the previous two sections of this decision I have concluded that the respondent remains a serious danger to the community within DSO Act s 33(2); and that under s 33(2)(b) I should rescind the continuing detention order and make a supervision order in the terms of the Proposed Supervision Order.
I will hear from the parties as to the detailed terms of the orders I should make.