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

[2012] WASC 349

DIRECTOR OF PUBLIC PROSECUTIONS (WA) -v- McGARRY [No 4] [2012] WASC 349

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2012] WASC 349
Case No:	MCS:35/2008	Heard:	20 AUGUST 2012
Coram:	HALL J	Delivered:	20/09/12
No of pages:	23	Judgment Part:	1 of 1
Result:	Continuing detention order expressly not rescinded
Category:	B
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Parties:	DIRECTOR OF PUBLIC PROSECUTIONS (WA) MICHAEL ALEXANDER McGARRY
Catchwords:	Dangerous sexual offender Annual review Assessment of risk Whether conditions can be imposed to protect community Whether supervised release appropriate
Legislation:	Dangerous Sexual Offenders Act 2006 (WA)
Case References:	DPP v McGarry (No 2) [2009] WASC 287 DPP v McGarry (No 3) [2011] WASC 134 DPP v McGarry [2009] WASC 226

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

IN CRIMINAL

CITATION : DIRECTOR OF PUBLIC PROSECUTIONS (WA) -v- McGARRY [No 4] [2012] WASC 349 CORAM : HALL J HEARD : 20 AUGUST 2012 DELIVERED : 20 SEPTEMBER 2012 FILE NO/S : MCS 35 of 2008 MATTER : Sections 8, 14, and 17(1) of the Dangerous Sexual Offenders Act 2006 BETWEEN : DIRECTOR OF PUBLIC PROSECUTIONS (WA)

Applicant

AND

MICHAEL ALEXANDER McGARRY
Respondent

Catchwords:

Dangerous sexual offender - Annual review - Assessment of risk - Whether conditions can be imposed to protect community - Whether supervised release appropriate

Legislation:

Dangerous Sexual Offenders Act 2006 (WA)

Result:

Continuing detention order expressly not rescinded

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Category: B

Representation:

Counsel:

Applicant : Mr B Fiannaca SC
Respondent : Mr D J McKenzie

Solicitors:

Applicant : Director of Public Prosecutions (WA)
Respondent : David McKenzie Legal

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

DPP v McGarry (No 2) [2009] WASC 287
DPP v McGarry (No 3) [2011] WASC 134
DPP v McGarry [2009] WASC 226


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HALL J:

Introduction

1 This is the first annual review of a continuing detention order made under the Dangerous Sexual Offenders Act 2006 (WA) (DSO Act) by Jenkins J on 24 September 2009: DPP v McGarry (No 2) [2009] WASC 287.

2 At the time the continuing detention order was made Mr McGarry had completed a sentence of imprisonment for sexual offences and had been remanded in custody awaiting sentence for other offences. On 5 February 2010 he was sentenced to 18 months' imprisonment without parole eligibility in respect of those other offences. That sentence of imprisonment expired on 4 August 2011. It was only after that date that Mr McGarry ceased being a sentenced prisoner and was detained on the continuing detention order.

3 As a consequence of s 29(2)(a) of the DSO Act the first annual review was due 12 months after Mr McGarry commenced being detained on the continuing detention order. In DPP v McGarry (No 3) [2011] WASC 134 McKechnie J ruled that the first annual review was due after 5 August 2012.

4 On an annual review the court must determine whether a person who is the subject of a continuing detention order remains a serious danger to the community: s 33(1) DSO Act. If the person is no longer a serious danger to the community the court must rescind the continuing detention order. However, if the court finds that the person remains a serious danger to the community it must either expressly decline to rescind the detention order or rescind the order and make an order that the person be released into the community on conditions that the court considers appropriate: s 33(2) DSO Act.

5 In making a decision as to whether a person who is a serious danger to the community should continue to be detained or be released on a supervision order the paramount consideration is the need to ensure adequate protection of the community: s 33(3) DSO Act.

6 On this review Mr McGarry does not dispute that he remains a serious danger to the community. All of the expert evidence supports that conclusion. The matter in issue here is whether Mr McGarry can be released into the community on a supervision order with conditions that could adequately protect the community from the risk he poses.

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7 For the reasons that follow I am not satisfied that the protection of the community can be adequately ensured by releasing Mr McGarry on a supervision order. Accordingly, I must expressly decline to rescind the continuing detention order.

Background

8 Mr McGarry's personal history and his history of offending was detailed extensively by Jenkins J in DPP v McGarry [2009] WASC 226 [14] - [41]. His history of sexual offending commenced in 1985. It started with offences of wilful exposure but over time he moved on to more serious offending which involved the commission of indecent acts upon children with whom he was in a familial relationship.

9 On 19 April 1991 Mr McGarry was sentenced to a total of 7 years and 8 months' imprisonment for 21 counts of indecent assault on a person under the age of 16 years, four counts of sexual penetration on a person under the age of 16 years and seven counts of wilful exposure. He was released on parole in February 1994.

10 In April 1994 Mr McGarry commenced offending against his daughter, then aged 12, by touching her indecently and masturbating in front of her. On 9 August 1994 he was convicted of two counts of indecently dealing with his daughter and sentenced to a total of 2 years' imprisonment to be served cumulatively on the balance of the earlier sentence he was yet to serve. On this occasion he was not made eligible for parole. He was released from prison on 26 February 1996.

11 In December 1997 Mr McGarry saw a photograph of an 11-year-old girl in a local newspaper. He used a telephone directory to discover her home telephone number and address. He then went to the girl's home and entered the rear yard. He observed the girl and her 14-year-old sister through windows of the house and obtained their attention by tapping on the window. As the 11-year-old girl approached the window he exposed himself and masturbated. He then left the premises but made several telephone calls to the girls' home in the following days. On each occasion he impersonated a police officer and discussed the offence that had been committed. As he did so he masturbated. On 30 October 1998 he pleaded guilty to indecently dealing with a child under the age of 13 years and two summary offences of impersonating a police officer. He was initially sentenced on 16 December 1998 to 5 years' imprisonment but this was reduced to 3 years' imprisonment on appeal.

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12 Following his release from prison Mr McGarry again became pre-occupied with offending behaviour. On 16 April 2002 he hid in some bushland and waited for a young girl to walk to school along a nearby path. As a 14-year-old girl walked past he came out of the bushes and grabbed her. He dragged her into the bushland and forced her onto the ground. He initially threw a jumper over her face so that she could not see him. He indecently assaulted her, then knelt next to her and masturbated until he ejaculated. He then rummaged through the girl's backpack apparently looking for money and after saying he would return in a short while, he fled the scene.

13 On 12 March 2003 Mr McGarry approached an 8-year-old girl who was playing in a park near her home. He called her over to him and asked her how old she was. After she told him her age he offered her money in return for her showing him her pants. He told her that he was a counsellor and that this activity was part of his job. The girl screamed and ran from him. The matter was reported to the police. A short time later police located Mr McGarry walking through the grounds of a local primary school towards his vehicle. He was observed to be buttoning up the front of his pants. His vehicle was searched and a number of pornographic magazines were located. He was then charged with both this offence and also that which had occurred on 16 April 2002. Following an appeal he was sentenced to a total of 5 years and 24 days' imprisonment.

14 Mr McGarry's sentence was due to expire on 2 January 2009. Before that day, on 7 November 2008, the State filed an application under the DSO Act. On the hearing of the application the DPP sought that a supervision order be made. Jenkins J considered the available evidence and was satisfied that the community could be adequately protected by a supervision order provided that conditions, which she described as extremely onerous, were imposed: DPP v McGarry [2009] WASC 226 [123].

15 Mr McGarry signed the supervision order on 17 August 2009 and was released from custody shortly thereafter. On the same day an officer from the West Australian Police Services Sex Offenders Management Squad interviewed Mr McGarry and explained the conditions of the supervision order to him. Those conditions included a prohibition on Mr McGarry having face-to-face contact with his daughter unless the contact was pre-arranged via telephone. A further condition prohibited him from being at a shopping centre without a reasonable excuse at any time on weekends, except for specified purposes.

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16 Within a short time after his release, Mr McGarry breached the terms of his supervision order. Those breaches involved having face-to-face contact with his daughter by attending at a hospital at a time when he knew she would be there. He also learned that the daughter of one of his former partners was working at a shop in a shopping centre. He then went to that shop on two occasions that did not breach the order, but went there a third time on the weekend in breach of the order. There was evidence that on the occasions he attended he had acted in a way that his former step-daughter, who was present on these occasions, found to be intimidating.

17 The DPP brought proceedings for contravention of the supervision order pursuant to s 23 of the DSO Act. Jenkins J found the contraventions proved: DPP v McGarry (No 2). In doing so her Honour rejected explanations advanced by Mr McGarry for the contraventions. In regard to the meeting with his daughter at the hospital, he said that he had forgotten that he had been told that she would be attending the hospital that day. In this regard, her Honour said:

I find that at the very least Mr McGarry went to the hospital knowing that it was a possibility that he would see his daughter, without prior arrangement via the telephone. Given the number of phone calls and attempts made by Mr McGarry to meet with his daughter in the period after his release, I find that Mr McGarry was interested in meeting with his daughter. Probably, Mr McGarry thought that an apparently chance meeting with her at the hospital would be desirable. When she did make contact with him, he breached his order by maintaining and extending the meeting by giving her a lift [17].

18 As regards attendance at the shopping centre, Mr McGarry said that he thought the prohibition only related to a shopping mall and because he was able to enter the shop by an external door he did not believe that the condition applied. He also said that he had a reasonable excuse for attending the shop because he needed to buy a doona and quilt cover because he was cold. Her Honour rejected both of these explanations and concluded that:

It was only when Mr McGarry found out that the complainant worked at the shop that he started to shop there. This contact and the lack of reasonable excuse for it given the age difference between the complainant and Mr McGarry, their lack of recent familial or social relationship and the indifferent attitude displaced by the complainant to Mr McGarry on these occasions points strongly to the inference that Mr McGarry was using the visits to the store, at least in part, as an excuse to make contact, which he would not otherwise have had, with the complainant [31].

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19 There was also evidence that Mr McGarry had purchased and eaten food at a fast food outlet. At the time he did so he was sitting within 50 metres of a children's playground situated within the outlet. He sat in a position overlooking the playground. When asked about this incident he told police that he had not thought about the condition which required him to not be within 50 metres of a children's playground when he sat where he did.

20 Her Honour noted that at the time Mr McGarry came before her he had commenced anti-libidinal medication and remained on it for some months. Tests at that time indicated that his testosterone levels were very low as compared with the average levels for men his age. It was hoped that this would reduce his risk of re-offending. It was, however, noted that without very close supervision it was unlikely that Mr McGarry could be relied upon to take his medication or to report the presence of a feeling of sexual arousal. Her Honour then said:

Thus, the fact that Mr McGarry is on medication and it is working to reduce his testosterone levels is but one strategy to reduce Mr McGarry's risk of reoffending. I am satisfied that the psychiatrists were of the view, as were and am I, that along with the requirement of Mr McGarry to take his medication there was a need for a very close supervision and control of Mr McGarry in the community. Dr Wynn-Owen in his report of 15 February 2009 said that risk management in the community, even under close supervision, will not reduce Mr McGarry's risk of reoffending unless major constraints are applied. The conditions on Mr McGarry's supervision order were designed to provide that constraint.

I do not accept Mr McGarry's contention that the fact that he is taking anti-libidinal and anti-depressant medication means that he will not commit a serious sexual offence [67] - -[68].

21 Her Honour then referred to the circumstances in which she made the supervision order and said:

The conditions of a supervision order were not just to try and reduce Mr McGarry's physical or psychological desire to offend. They were also for the purpose of making sure that the authorities could appropriately monitor Mr McGarry so as to reduce the risk of him reoffending. They were also for the purpose of controlling and constraining Mr McGarry's movements so that he would not put himself into high risk situations which may tempt him to reoffend.

I was of the opinion then and remain of the opinion that a multi pronged approach was necessary to reduce Mr McGarry's risk of offending to an acceptable level which would enable him to be released into the community under a supervision order.

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The fact that his proven contraventions and likely contraventions of a supervision order do not directly relate to serious sexual offending does not mean that they should be given little weight in my determination of this application. As I said in my original decision, it is only if all the conditions of the supervision order are complied with that I can be satisfied that the community will be adequately protected from the risk that Mr McGarry will commit a serious offence.

Now that I am satisfied that Mr McGarry has not complied with those constraints and is likely not to comply with them all in the future, I conclude that there is an unacceptable risk that, if I do not make a continuing detention order Mr McGarry will commit a serious sexual offence [74] - [77].

22 One of the matters that was of concern to Jenkins J in regard to whether Mr McGarry would comply with conditions in the future was his general conduct after his release on the supervision order. Her Honour found that the contraventions indicated that Mr McGarry was not prepared to, or not able to, live a cautious enough life to ensure compliance with a supervision order. She noted that he had not taken steps to comply with conditions in circumstances where his obligations were obvious.

Evidence on this annual review

23 At the hearing of this review the DPP tendered a book of materials. There was no objection to the tender. In addition to historical materials, the book contained the following: a psychiatric report by Dr Salvatore Febbo dated 5 August 2012; a psychiatric report by Dr Gosia Wojnarowska dated 5 August 2012; a psychological assessment by Mr N Cameron, Clinical and Forensic Psychologist, dated 1 August 2012 and a Community Supervision Assessment Report by Ms K Cassam, an Acting Senior Community Corrections Officer with the Department of Corrective Services dated 9 August 2012. The applicant called the witnesses who produced these reports to give oral evidence.

The 2010 convictions

24 There was also evidence relating to Mr McGarry's conviction and sentencing for two offences of indecent dealing. These were the offences for which he had not yet been dealt with at the time of the proceedings before Jenkins J. The offences occurred in 1994 and 2003 but did not come to light until 2009 when the complainant, Mr McGarry's daughter, felt able to report them to the police. These were the offences for which he was sentenced to 18 months' imprisonment on 5 February 2010.

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25 Whilst the offences dealt with on 5 February 2010 are historical matters, they nevertheless form part of Mr McGarry's antecedents. They are relevant in assessing his past conduct and the nature and likelihood of any re-offending.

26 The 1994 offence occurred when the complainant was about 7 years old. At that time Mr McGarry and the complainant were living in the same house with her mother, sister and brother. One morning before school he called the complainant to come to his bedroom. He was lying in bed naked. He told the complainant to get into bed with him. He then told her to get on top of him. At that point the complainant's mother called out to her and she left the room. This incident had occurred close in time to an indecent act committed on the complainant's sister, for which Mr McGarry had already been dealt with.

27 The 2003 offence occurred at a time when Mr McGarry was living in Perth with another female adult partner. The complainant, who by this time was 17 years old, came to stay. Whilst the complainant was watching television Mr McGarry entered the room, unzipped his trousers and masturbated in her presence. When interviewed in 2009 he admitted both offences. The commission of these offences is consistent with his past pattern of behaviour.

Anti-libidinal medication

28 The applicant also tendered evidence relating to testing of Mr McGarry's testosterone levels. Dr C A Fitzclarence, a doctor with the Department of Corrective Services, gave evidence in this regard.

29 At the time of this review Mr McGarry had been taking an anti-libidinal drug for in excess of three years. The drug in question was cyproterone acetate, also referred to as Androcur. His commencing dose in early February 2009 was 50 mg twice a day. He had regular blood tests from that time. His testosterone levels fell to 1.4 nmol per litre on this dose (the normal range is 10 to 35 nmol per litre).

30 The dose rate was reduced to 50 mg once a day on 13 October 2009. Some months earlier Mr McGarry had raised with a doctor that he was experiencing side effects of breast enlargement and tenderness. Breast enlargement, or gynaecomastia, is a recognised side effect of Androcur. This side effect was confirmed by an endocrinologist on 17 May 2012.

31 Another side effect is osteopaenia (meaning weaker than normal bones). This is a precursor to osteoporosis. A bone densitometry test was

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undertaken and this confirmed significant osteopaenia. On 18 June 2012 Mr McGarry requested a further decrease in the Androcur and the dose rate was reduced to 25 mg per day. No studies have been undertaken as to the efficacy of a dose rate below 50 mg per day.

32 It was expected that in consequence of the dose reduction Mr McGarry's testosterone levels would increase. An increase in testosterone to 5.6 nmol per litre was recorded in a test undertaken on 16 August 2012. This was some two months after the dose reduction. The evidence of Dr Fitzclarence was that any residual effect of the higher dose rate should have expired by this time. It remained possible, however, that testosterone levels could still rise. Nonetheless the indications are that the current lower dose rate probably will maintain testosterone levels at or about the level measured on 16 August 2012.

33 Dr Fitzclarence said that the principal way in which Androcur operates is to block the effect of testosterone. It neutralises testosterone and results in a lowering of the effective testosterone in the body. The expectation is that lower testosterone will result in a lowering of sexual desire and functioning. Whether or not it has that effect in an individual cannot be determined other than by self-reporting.

34 In the present case Mr McGarry had reported a lowering of both desire and functioning. It should also be noted that Mr McGarry has also been prescribed with anti-depressant medication which has the effect of reducing libido. Mr McGarry reported to Dr Febbo that since being on the anti-depressant and anti-libidinal medications he had had a marked decrease in his sexual drive although he continued to experience sexual thoughts, however they were what he termed 'appropriate'. He also said that whilst he continued to have sexual fantasies they too were of an 'appropriate nature' and he used those fantasies as a masturbatory aid once every three months or so. He made similar statements to Dr Wojnarowska. In particular, he told her that his libido had significantly decreased from masturbating four times per day to once per month. He told her that he did not have problems with obtaining an erection but achieving ejaculation had been 'hard work'. He denied experiencing any deviant sexual fantasies and said that he had been consciously blocking them by going into what he described as 'a good space, a happy space'.

35 Mr McGarry's reports of lower sexual desire and functioning are consistent with the Androcur being effective. It should be noted however that in so far as Mr McGarry suggested that the nature of his sexual

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fantasies had changed this could not be a result of the Androcur. Dr Wojnarowska said that whilst Androcur could operate to decrease sexual fantasies it could not change a person's sexual preference.

36 There is obviously also an issue as to whether Mr McGarry's self-reports can be accepted as reliable. In this regard Dr Wojnarowska said that Mr McGarry was a person with strong narcissistic traits who was very much aware of how to present himself in the best possible light. She said that she did not consider him to be a reliable historian.

37 Dr Febbo said that Mr McGarry was of questionable reliability due to anti-social traits and issues related to psychopathy. He said that for this reason any history provided by Mr McGarry had to be treated with caution.

Psychiatric evidence - Dr Wojnarowska

38 In regard to a psychiatric diagnosis, Dr Wojnarowska concluded that Mr McGarry had the clinical disorders of paedophilia (non-exclusive type) and other paraphilias (voyeurism and exhibitionism). In regards to personality disorders she said that he had narcissistic personality disorder with anti-social traits. Dr Wojnarowska noted that it was important to be mindful of Mr McGarry's ability to use his knowledge gained during extensive group and individual treatments, as well as his cognitive and verbal skills, to his advantage in manipulating and deceiving others. She said that there had been no significant changes to his anti-social traits over time.

39 Dr Wojnarowska noted that Mr McGarry had received extensive individual counselling whilst in prison. This had commenced on 15 February 2010 initially on a weekly basis but from 22 April 2010 on a fortnightly basis. Unfortunately this counselling had ceased after ten months because the counsellor was due to take extended personal leave. A report from the psychologist who undertook the counselling was included in the book of materials. The report concluded that Mr McGarry had achieved some gains in reducing impulsivity and enhancing consequential thinking skills. There had also been an effort to decrease his risk of re-offending by developing interests and hobbies and avoiding boredom. The report also referred to improved understanding of what intimate relationships were about. Dr Wojnarowska said that she had had particular regard to this psychological report, but that the degree to which Mr McGarry was able to achieve appropriate intimate relationships could only be tested if he was released into the community. There had also been

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some more recent counselling but the content and effect of that was not the subject of any evidence.

40 Dr Wojnarowska was asked whether the continuing diagnosis of narcissistic personality disorder had significance in relation to Mr McGarry's willingness or ability to comply with strict conditions if he were released into the community. She said that anti-social personality traits would push a person to commit acts that are not in accordance with societal rules and norms. On the other hand, narcissistic people have a drive to achieve the best position in life and that could be seen as a protective factor in terms of Mr McGarry's strong motivation not to return to prison.

41 As regards the risk of re-offending, Dr Wojnarowska said that Mr McGarry's risk of re-offending had not significantly diminished since he was released in 2009. She noted that in 2009 he was assessed as being at very high risk of re-offending, but had been released on an appropriate management plan. She said his breach of the supervision order demonstrated a lack of commitment to adhering to such orders and this was consistent with his narcissistic and anti-social traits. However, she noted improvements in the last three years in two areas. Firstly, Mr McGarry had a strong motivation not to return to prison and is an intelligent man who has learned that he would not be able to contravene orders without consequences. Secondly, she expressed a view that treatment with anti-libidinal and anti-depressant medications had diminished Mr McGarry's sexual deviant interest thoughts and his preoccupation with sex.

42 Dr Wojnarowska noted, however, that long-term treatment with anti-libidinal medications has the potential to cause irreversible side effects such as osteoporosis. In his discussions with Dr Wojnarowska, Mr McGarry had been ambivalent about continuing the treatment and had alluded to a view that such treatment should not exceed three years and, accordingly, should cease in his case in the near future.

43 Dr Wojnarowska said the duration of treatment necessary to achieve a complete disappearance of deviant sexual behaviour remains open. Efficacy has been maintained for years as long as anti-androgen treatment is maintained and the maximum follow up duration period that has been reported was seven years in the case of one drug and ten years in the case of another. In Dr Wojnarowska's opinion, Mr McGarry's risk of re-offending would increase to unacceptable levels should he discontinue treatment with anti-libidinal medications. However, she noted that from

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an ethical point of view he has a right to make a decision about his health and that needed to be weighed against his risk to the community. There was, however, the possibility of treating side effects and of using an alternative anti-libidinal drug with fewer side effects.

44 As regards the risk of re-offending, Dr Wojnarowska said that there were two factors that were most predictive in this regard. One is the presence of sexual deviance and the second is the presence of psychopathy. She said that psychopathic traits are not amenable to treatment, either psychological or pharmacological. However, deviant sexual interest can be managed by pharmacological treatment in the way that has been described in referring to anti-libidinal drugs.

45 Dr Wojnarowska was of the view that pharmacological treatment needed to continue for there to be any prospect that risk of re-offending could be properly managed. She said that Mr McGarry was also motivated to continue with psychological treatment, which he perceived had been helpful. He expressed regret that he had not been able to continue with the psychologist who had seen him in 2010.

46 Dr Wojnarowska was asked about an opinion expressed by Mr Cameron that a further period of psychological counselling was required in order to properly equip Mr McGarry for release into the community. I will refer later in these reasons to Mr Cameron's evidence. Dr Wojnarowska's view was that a further period of counselling was unlikely to assist. She felt that Mr McGarry had already undertaken so many treatment programmes, as well as a period of individual counselling, that she did not see any potential benefit from staying in prison to learn more about risk scenarios. She considered that he had already done this exercise over years with various facilitators and psychologists.

Psychiatric evidence - Dr Febbo

47 Dr Febbo's psychiatric diagnosis was the same as that of Dr Wojnarowska. He concluded that Mr McGarry was at high risk of serious sexual offending if he was not made subject to either a detention or supervision order. He noted that with treatment, being a combination of psychotherapeutic and pharmacological treatment, there had been some moderation in sexual deviance. However, its extent remained uncertain.

48 Dr Febbo expressed concern that it was unclear as to how long Mr McGarry would be able to continue on anti-libidinal medication given that he has developed significant negative side effects. Dr Febbo also

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considered it important that relatively intensive psychological input continue. He said the importance of psychotherapeutic input would become even more significant if it became necessary for health reasons to stop the anti-libidinal medication. Dr Febbo concluded that his view was that Mr McGarry's current level of risk was such that placement in the community on a strict supervision order was appropriate.

49 As regards Mr McGarry's ability to deal with risk situations, Dr Febbo said that Mr McGarry had made it clear to him that since his sexual deviant fantasies had diminished and that he did not have the sex drive that he had previously experienced he was thinking more rationally and was less impulsive and for those reasons he would be able to better deal with risks. When asked about his breach of the earlier supervision order, Mr McGarry had expressed a belief that the order was perhaps too flexible and he needed something a bit more rigid. He suggested that ambiguity was the problem with the previous supervision order. Dr Febbo accepted that this claim of ambiguity as a reason for failing to comply had been rejected by Jenkins J.

50 Dr Febbo considered the possibility of opportunistic or impulsive offending and said that such offending was difficult to predict. He said that this was because, for example, Mr McGarry may not inform anyone about escalating sexual fantasies and then may find himself in a situation where he can indulge those fantasies by opportunistically offending.

51 Dr Febbo also considered Mr Cameron's suggestion that there was a need for further treatment within a custodial setting. Dr Febbo said that it was difficult to see how an additional three months of treatment would make a change. He said that what Mr McGarry needed was a very clear understanding of what is expected of him in terms of being out in the community and that was probably best achieved in a community setting. Dr Febbo said that there had been changes in attitude since Mr McGarry was last released and that, together with the effect of the anti-libidinal medication, made his risk more manageable.

Psychologist's report - Mr Cameron

52 Mr Cameron's report noted that Mr McGarry had completed a number of programmes and counselling sessions in prison on previous occasions. He had re-offended after these programmes despite seemingly displaying sufficient evidence of change. He said that in these circumstances counselling had not (on its own) proven to be an effective intervention. For this reason Mr Cameron was of the view that counselling could only be considered to be a treatment adjunct to other

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interventions. He said that extreme caution needed to be taken in assuming any gains from counselling and in interpreting verbal shifts in outlook as evidence of real change.

53 Mr Cameron said that victim empathy remains a deficit for Mr McGarry. He said that some relatively glib responses were provided in that regard and that Mr McGarry quickly moved on to other issues with little show of emotion. At times he referred to notes in order to recall knowledge of victim impact issues, but emotional engagement was lacking. Mr Cameron said that lack of empathic ability is a character trait and part of Mr McGarry's personality makeup. He was of the view that future treatment was unlikely to produce any change in this regard. He said that empathic deficits mean that motivational factors for change in Mr McGarry's case needed to be primarily focused on the cost of offending to himself. His motivation for a different life path was evident but his emotional shallowness meant that his drive for a different social life was not as strong as might be expected.

54 As with Dr Wojnarowska and Dr Febbo, Mr McGarry told Mr Cameron that his libido had greatly reduced. He said that his masturbation rate had declined to being very occasional; being approximately once in a three month period. He attributed this primarily to the anti-depressant medication. Mr McGarry's appraisal of his anti-libidinal medication was less positive because he had concerns about side effects. In particular, Mr McGarry referred to the development of breast tissue as an embarrassing side effect. Mr Cameron formed the opinion that Mr McGarry's willingness to comply with anti-libidinal medication without court direction was dubious. There was arguably evidence of a reduction in libido, but it was difficult to assert that this reduction would hold in coming years as anti-libidinal medication compliance was likely to become tenuous. Mr Cameron was of the view that medication would appear to provide the main intervening factor in sexual preoccupation. Whilst age could decrease libido, there was evidence of offending by Mr McGarry in his middle years. For this reason, Mr Cameron considered it to be unwise to predict that aging would lead to any reduction of libido in the near future. A further moderator of libido could be engagement in a life that was rich in activity, interest and stimulation; boredom being a pathway to sexual reflection.

55 Mr Cameron was concerned that there was little to convey confidence in Mr McGarry's ability to actually identify high risk situations and manage these accordingly. In his oral evidence, Mr Cameron said that Mr McGarry had a very limited sense of what his release plan would

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look like. His outline of that release plan did little to instil confidence that he was able to diligently dissect it for risk scenarios.

56 Mr Cameron said that it was very difficult to find evidence of sustained psychological change in Mr McGarry aside from relying on his self-report of a reduction in libido and sexual arousal. He said that in many ways this was not surprising as Mr McGarry's response to treatment programmes was poor, as evidenced by re-offending after such programmes. He did, however, suggest that past programmes had occurred in a group setting which was less well suited to Mr McGarry's particular needs. He also noted that counselling had concentrated more on the underlying causes of Mr McGarry's behaviour rather than equipping him for release.

57 In the conclusion of his report, Mr Cameron said:

Ideally if a decision is made to again trial release Mr McGarry a number of booster psychological sessions need to be delivered whilst he is still in prison, in an attempt to reiterate core treatment messages and influence his placement plans for the better. He would require a period of no less than three months to develop viable release plans.

58 Mr Cameron expanded upon this in his oral evidence. He said:

At the time I saw him he had some very vague release plans. They were not specific. In my experience, if I was going to try this treatment modality again of counselling I would want to do a number of things. Those things would take, to my quick eye, probably about three months, and that counselling would need to explore very closely with Mr McGarry very precisely what his release plans were. It would need him to articulate of his own initiative an insight what the high-risk scenarios of those plans were and then - so in answer to your question, counselling that would come at the last interval of a sentence would be very precise, directed coaching, shall we say, of trying to get him and facilitate his application material previously undertaken and having him apply that directly to the situation he is going to be released into. In that regard specifics are very important. He needs to know exactly where he is going to live, what paths he is going to take, what the time intervals in which he might be able to travel to A, B or C is, and I think that's also informed by the experience by the breach where there were some precise conditions but there hadn't been rehearsal of, 'If A, what then?' That last three months, the input, be it counselling, be it coaching, whatever you call it, would need to be very much helping Mr McGarry identify, 'If this happens, do this,' and rehearsing that pathway, et cetera.

Is there any reason why it could not be done in the community?---I would be apprehensive about it being done in the community. I was reflecting on this, talking about this recently, and I used the metaphor of football. I

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hope it doesn't seem disrespectful to the court or the victims involved, but in essence we have had a lot of training. Now we're about to have this playing step on the field. Well, in that case I think the training needs to be done well back and then some precise training, mindful of the nature of the oval, the nature of the opponents he will be playing. What I'm talking about, trying to bring that back to the relevance here, is that I would suggest we need a far more precise emphasis of the counselling interacting with the specifics of where he is going and that work is best done before he steps into that domain. Once he steps into that domain, I suggest things might move very quickly. There's also the opportunity of planning better at this time than when he gets out. For example, if boredom is a major driver, as it may well be, and a psychological domain that needs to be managed in order for us to reduce libido, we don't want a client to step out into the community with nothing to do. We would actually like to work very hard in those three months to plan that first week, to plan what a better life looks like, and to have the pathway enacted so he can step straight into that.

Given your perception - sorry, I will start again. Given your opinion that the plans with which he presented when you spoke with him were not adequate, in your view, to deal with risk scenarios, what is your opinion then about his capacity to comply with a community supervision order at this point in time?---I think his ability to comply with a supervision order will be greatly enhanced by the specifics of that order being presented to Mr McGarry with some time before to start testing it in his own mind, start thinking of risk scenarios. My reflection there comes from the observation that there was a very precise supervision order put in place, yet quite promptly there were situations of, as he relayed, ambiguity in his mind to which he responded in certain ways. I think that's where I come back to my suggestion that some work before he steps out is very important because he needs to have a close look at those conditions, he needs to start thinking of scenarios, risk scenarios, challenges, grey areas, and he would need to benefit from coaching and how to respond to those (ts 299 - 301).

59 Mr Cameron confirmed that his opinion was that there seemed to be a lot of work to be done to better define Mr McGarry's release plans. Mr Cameron felt that those plans were clearly deficient. He said that whilst psychological interventions frequently related to psychotherapy such interventions could operate at different levels and he considered that what was now needed was an effort to equip Mr McGarry with ways to cope in a practical way with the high risk situations that he may face in the real world. He believed that the best chance of success for Mr McGarry on release would be if practical skills had been well rehearsed in a prison environment prior to release.

60 He gave more details of this in cross-examination:

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If I was working with Mr McGarry and it was clear that we were moving to release, then I think we would be assuming you need one or two weeks to pinpoint the exact specifics of what his release plan looks like; that is, where is he going to live, what is he going to do for his recreation, who is he going to connect with socially, what is he going to do with his time, what is he going to do vocationally. Then we probably need to discuss that behind the scenes, a Community Corrections type of team, and the next task as I would give as a homework task to Mr McGarry would be to go through those situations, to have a look at the specifics of the order and think, okay, where are the challenges here, where are the curly bits, where are my risk scenarios. I wouldn't want him doing this overnight. I would want him spending some time on it. I would want him spending quite a lot of time looking at his plans, consolidating his plans, thinking about the domains, thinking about the curly factors that may come out of the blue. The next task would be about reviewing those with him, coaching him, seeing if his overview is a fair overview of where we see the risk scenarios. Then the next task is about returning to the theoretical models and developing his strategy for how he would respond. 'If (a) happens, how do I respond?' then what I would like to do ideally in a counselling setting, appreciating that this is ideal and we don't always get those ideals, is actually quite literally role play, rehearse those scenarios, because we want those responses in mind, at least well documented and the cognitive pathways a little bit rehearsed before we release into the chaos of the community. That's a pretty stressful, daunting process to be released back into the community. That's in an [ideal] setting, and I'm also aware that we don't typically do that for offenders (ts 306).

The Community Supervision Assessment Report

61 Ms Kara Cassam completed a Community Supervision Assessment Report on 9 August 2012. An addendum report dated 10 August 2012 was also prepared. The only accommodation available for Mr McGarry on release was considered in those reports. The Police Sex Offender Management Squad had not assessed the accommodation as either suitable or unsuitable. However, a number of concerns had been raised given the likelihood that there would be families with children in the nearby area. In particular, there was a concern that the location provided what was said to be an ideal opportunity for Mr McGarry to re-offend.

62 Attached to the report was a suggested list of conditions that could be incorporated into a supervision order. Ms Cassam also said that Mr McGarry did not have any confirmed employment but had expressed an interest in truck driving on his release. Dr Wojnarowska had expressed a concern as to the suitability of such employment given the opportunities it could present to come into contact with potential victims. There was also evidence from Ms Cassam that a doctor had been found who had

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agreed to see Mr McGarry as a patient for ongoing treatment in the community.

Findings

63 It is clear on the evidence that Mr McGarry remains a serious danger to the community. This was not disputed on the hearing. The issue is whether the risk of re-offending can be adequately managed in the community on a supervision order.

64 In this regard, it is important to consider the risk of Mr McGarry re-offending in the context of the multiple occasions on which he has re-offended in the past; that risk of re-offending arises from a combination of factors. One of those is a sustained deviant sexual interest and desire. Another is his narcissism and anti-social personality traits. Any assessment of future risk of re-offending needs to consider how all of these factors have been dealt with, and how they continue to play out.

65 Mr McGarry has now been on anti-libidinal drugs for in excess of three years. One of the intended effects of such drugs is to reduce sexual functioning and desire by reducing the effective amount of testosterone in the body. Regular blood tests are capable of determining the amount of effective testosterone. I accept that the medication has reduced testosterone to a level significantly below normal in Mr McGarry's case.

66 I do note, however, that comparatively recently Mr McGarry has reduced the dose rate of the Androcur to 25 mg per day, a level which has not previously been tested. It would appear that whilst his testosterone levels have increased slightly since that dose reduction, any residual effects of the higher dose rate should now have passed. In these circumstances it appears likely that the last measured testosterone level can be maintained on the lower dose rate. There is, however, no certainty in this regard and there is a possibility that his testosterone levels may yet rise. That must be a matter of concern.

67 It is also important to emphasise that lowering testosterone levels is not in itself the objective. It is believed that by lowering testosterone levels, sexual functioning and desire will be reduced. However, whether this expected result has been realised can never be tested. Whether the anti-libidinal drug is being effective can only be determined by relying on self-reports.

68 In the present case there have been self-reports of lowered libido and functioning by Mr McGarry. However, these reports must be treated with

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a degree of caution. That is for two reasons. First, Mr McGarry's has proved to be deceptive and an unreliable historian. He clearly has an interest in reporting that his desire and functioning has diminished. Secondly, his self-reports to Dr Wojnarowska, Dr Febbo and Mr Cameron in regards to the frequency and circumstances in which he experiences an erection and engages in masturbation have not been consistent. This may not necessarily be due to untruthfulness but it is concerning nonetheless. There are other possible explanations, for example that there have been changes over time or that he is forgetful or uncertain. However, even taking the most beneficial view, Mr McGarry's self-reports of the frequency with which he experiences sexual desire are unreliable. I note, also, that those reports have come from others; Mr McGarry did not give evidence in these proceedings.

69 It is important not to treat anti-libidinal drugs as a panacea. As I have noted, Mr McGarry's risk of re-offending is the product of a combination of factors. The effective treatment of only one factor may not reduce risk to an acceptable level. In the present case other factors assume more importance due to Mr McGarry's unreliability in self-reporting his own level of sexual desire and functioning. Given that there is a distinct possibility that those reports are incorrect, the continued existence and amenability to management of other factors is of significance.

70 The importance of other factors is also enhanced by the fact that Mr McGarry has experienced significant side effects from the anti-libidinal drug. It is possible that some side effects, such as osteopaenia may be capable of being minimised by using other medications. However, whether this is so and whether it would satisfy Mr McGarry's concerns is unknown at this stage. What is known is that whilst he has expressed a willingness to comply with court orders, he would prefer not to continue with the anti-libidinal drugs.

71 The occurrence of side effects to the Androcur must be a matter of concern. Some, at least, of those side effects present a real risk to health. In particular, the effect on bone density. It is evident that some of these side effects are of concern to Mr McGarry, and that is understandable. He is presented with the invidious decision of whether to continue taking a drug which is harmful to his health in order to reduce his risk of re-offending and increase his prospects of being released on supervision into the community. The adverse affects upon his health obviously provide him with a strong incentive not to comply with a requirement to continue taking anti-libidinal medication.

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72 There is also potentially a dilemma for a medical professional. A doctor may have ethical objections to administering a medication which is adverse to a patient's health notwithstanding that the patient has submitted to a court-ordered regime that requires it to be taken. In this matter the court was advised that a doctor had been identified who was prepared to continue administering the Androcur. Of course whether this would continue to be the case may well depend upon whether the side effects become any worse over time.

73 It is important, however, to dispel the notion that a reduction in the anti-libidinal drugs or a stopping of them on medical advice with the consequential increase in the risk of re-offending could in any sense make that increased risk more acceptable. Mr McGarry could not be forced to continue to take medication against his wishes, but if he discontinued compliance the effect would almost certainly be an increase in the risk of re-offending. This is likely to be a risk that would have no potential to be managed in a community setting.

74 As regards other factors, in particular the nature of Mr McGarry's sexual desire and his personality disorder, they have proven to be very largely unchanged over time. Whilst the anti-libidinal drug and the anti-depressant have the effect of reducing sexual desire, they do not change the nature of it. Mr McGarry's narcissism and anti-social personality have proven to be resistant to change. They have also contributed to making sex offender programmes ineffective. There are, however, some indications that the effect of these factors can be addressed. Dr Wojnarowska and Dr Febbo noted a change in Mr McGarry's attitude. In particular, a strong desire to be released and, for that reason, to be compliant with any orders that were imposed.

75 The fact that Mr McGarry continues to maintain that the reasons for his non-compliance with the supervision order were, at least in part, due to the ambiguity of the terms of the order on that occasion is troubling. Given that he raised such an argument unsuccessfully in the breach proceedings, his unwillingness to accept full responsibility for those breaches suggests that compliance in the future would be problematic. In these circumstances I consider that the evidence of Mr Cameron is of particular importance.

76 I accept Mr Cameron's evidence that Mr McGarry has a particular deficit in respect of release planning. In particular, he has yet to develop any real skill for anticipating and managing risk scenarios. His approach is to assume that the lowering of sexual functioning and desire

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consequential on the anti-libidinal drug means that risk related situations in the community will no longer be a problem for him. This is too simplistic an approach. Given the level of risk that Mr McGarry presents, a single level of protection does not provide adequate comfort that the risk is acceptable. There needs to be assurance that whether the anti-libidinal drug is effective or not, there are other protective mechanisms that will operate to minimise the risk of re-offending.

77 Whilst both Dr Wojnarowska and Dr Febbo expressed some doubt as to whether any further psychological counselling would be beneficial, those views were expressed on the assumption that counselling or programmes would be of the same type as were previously administered. But it was clear from Mr Cameron's evidence that he was proposing something of a different order. He was suggesting a programme which addressed risk scenarios in a practical way with a view to developing in Mr McGarry specific skills for managing those scenarios. These skills would be rehearsed in a prison environment such that they could be readily drawn upon in stressful situations if Mr McGarry was released into the community. Mr Cameron estimated that such a programme could be delivered within a three month period - whether or not that is so I cannot say.

78 I do note that Mr McGarry has more recently been undertaking counselling with another psychologist in prison. However, what the nature of that counselling is has not been the subject of evidence. I understand that to be because there is a desire to avoid conflict with the clinical relationship by not requiring the current counsellor to give evidence to the court in these proceedings. That may well be so, but it leaves me in a position where, on the evidence before me, it would appear that the matters that Mr Cameron has referred to remain a significant deficit for Mr McGarry.

79 I have considered possible conditions that could be imposed in a supervision order. The suggested conditions that have been submitted by the Department of Corrective Services are detailed and onerous. Mr McGarry has indicated through counsel a willingness to comply with such conditions, with some suggested minor amendments. However, whether the conditions could be effective in reducing the risk of re-offending to an acceptable level depends to some extent upon Mr McGarry's ability to comply, as well as his willingness to do so. Without the skills and training referred to by Mr Cameron I am of the view that the risk of non-compliance is significant. If the conditions are breached the real possibility is that this may lead to re-offending conduct.

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For those reasons I am of the view that there are no conditions that could presently be effective in reducing the risk of re-offending to an acceptable level.

Conclusion

80 For the above reasons I am satisfied that Mr McGarry remains a serious danger to the community. I am also satisfied that his risk of re-offending cannot at present be adequately managed if he was released on a supervision order. In saying that, I am satisfied that there are no conditions that could be imposed that would reduce to an acceptable level the risk that Mr McGarry would re-offend. For those reasons I expressly decline to rescind the continuing detention order.