The Attorney-General of the Northern Territory v GJM (No 2) - [2020] NTSC 77

CITATION:The Attorney-General of the Northern Territory v GJM (No 2) [2020] NTSC 77
PARTIES:THE ATTORNEY-GENERAL OF THE NORTHERN TERRITORY
v

GJM

TITLE OF COURT:  SUPREME COURT OF THE NORTHERN TERRITORY
JURISDICTION:  SUPREME COURT exercising Territory jurisdiction
FILE NO:28 of 2018 (21813525)
DELIVERED:  7 December 2020
HEARING DATE:  16 June 2020
JUDGMENT OF:  Kelly J

Serious Sex Offender Act 2013 (NT) s 31, s 65, s 70, s 71
The Attorney-General of the Northern Territory v GJM (No 1) [2020] NTSC 76, referred

REPRESENTATION:
Counsel:
Applicant:T Anderson
Respondent:  H Blundell
Solicitors:
Applicant:Solicitor for the Northern Territory
Respondent:
Judgment category classification:    C
Judgment ID Number:  Kel2013
Number of pages:  26

IN THE SUPREME COURT
OF THE NORTHERN TERRITORY
OF AUSTRALIA
AT DARWIN
The Attorney-General of the Northern Territory
v GJM (No 2) [2020] NTSC 77

No. 28 of 2018 (21813525)

BETWEEN:

In the matter of an Application for Review of a Final Continuing Detention Order under s 65(1)(a) of the Serious Sex Offenders Act 2013 (NT)

THE ATTORNEY-GENERAL OF THE NORTHERN TERRITORY

Applicant

AND:

GJM

Respondent

CORAM: KELLY J
REASONS FOR JUDGMENT
(Delivered 7 December 2020)
Application for review of final continuing detention order

On 7 February 2019, I made an order that the respondent be subject to a final continuing detention order pursuant to s 31(1) of the Serious Sex Offender Act 2013 (NT) (‘the Act’), and fixed a review period of 12 months. (The respondent’s history of serious sexual offending is set out in The Attorney-General of the Northern Territory v GJM (No 1) [2020] NTSC 76 and is not repeated here.)
On 6 January 2020, the Attorney-General brought an application pursuant to s 65(1)(a) of the Act for the review of the respondent’s final continuing detention order.
The application came before the Court on 19 February 2020. On that occasion, I ordered a medical assessment of the respondent pursuant to s 70 of the Act to report on the respondent’s likelihood of committing another serious sex offence if he was not detained in custody or subject to a supervision order.
On 16 June 2020, the periodic review took place. On that occasion, the following documents were tendered:
othree reports by Dr Das dated 10 March 2020, 14 April 2020 and 9 June 2020;
othree reports by Dr O’Dea dated 11 March 2020, 15 April 2020 and 5 June 2020;
otwo reports by the Commissioner of NT Correctional Services dated 17 March 2020 and 15 June 2020;
oTransition Plan by Darwin Correctional Centre dated 15 June 2020.
The treating psychiatrist, Dr Das, had initially overcome the problems associated with obtaining the respondent’s informed consent to the administration of the anti-libidinal medication treatment, Triptorelin, (‘the medication’) and the respondent had been taking the medication for three months. However, further complications arose. On 6 April 2020, Dr Das was forwarded a letter written by the respondent, which raised concerns about side effects experienced from the medication. In this letter, the respondent listed side effects including intense sweating, bone and joint aches, infection, and a weakened heart with slow blood flow. The respondent also noted that he was seeking compensation as he believed the medication was too dangerous to be administered to someone his age.
From the information contained in this letter, Dr Das formed the view that the respondent was no longer providing valid informed consent to the medication and it was stopped immediately.
On 14 April 2020, Dr Das attempted to interview the respondent to clarify his views about the medication but was unsuccessful due to the absence of the scheduled interpreter. Dr Das successfully interviewed the respondent in person on 24 April 2020, assisted by a phone interpreter. On this occasion, the respondent reported that he had written the letter on 6 April 2020 after having been influenced by a fellow prisoner who had urged him not to take the medication as it could cause side effects including death. The respondent also reported being influenced to stop the medication after information he had received from his lawyer, Ms Blundell. Dr Das reported that although he attempted to identify the precise information the respondent had received from Ms Blundell, the respondent’s poor communication prevented him from understanding what the respondent was trying to convey.
Dr Das also noted that while the respondent advised that he had changed his mind since writing his letter of 6 April 2020 and sought to go back onto the medication immediately, this course of action presented several concerns. First, the respondent was unable to elaborate on the facts that initially led him to stop the medication. Further, the respondent was dismissive of questions relating to whether he was still concerned about the side effects of the medication, including potential death. Additionally, the respondent was unwilling to relay his understanding of the effects and side effects of the medication. Moreover, despite efforts to engage the respondent through the interpreter to gauge his understanding of the medication and clarify his current consent status, the interpreter advised that it was impossible to have a rational discussion with the respondent, and she was not able to understand what he was trying to say.
Dr Das concluded that the respondent appeared preoccupied with going back on the medication without discussing his understanding of its effects and side effects. Consequently, he advised the respondent that he would not agree to prescribe any further administration of the medication given the respondent’s apparent fluctuating consent. He noted he was not satisfied that the respondent was capable of understanding the effects of the medication, retaining this information, reasoning with the information and arriving at an informed decision to accept treatment. Dr Das observed that additional prescriptions of the medication would likely place the prescriber at risk of future complaints by the respondent, and subsequently advised the respondent that he would no longer prescribe the medication to him.
Dr O’Dea had also noted the respondent’s limited cognitive capacity in his report dated 11 March 2020. Referring to the conclusions from Dr James Huntley’s psychological report of 29 July 2018, Dr O’Dea noted the respondent’s cognitive abilities assessed at the borderline of low to average level of intellectual ability. Dr O’Dea also highlighted the respondent’s psychological assessment dated 14 June 2002 by psychologist Kim Groves, which concluded that although the respondent had a general reduced cognitive ability, especially in the areas of abstract reasoning and recall of verbal information, these factors were not relevant to the respondent’s culpability and would not affect his ability to fully appreciate the deterrent aspects of sentencing.
Dr O’Dea also reported on the respondent’s re-offending risk. He highlighted the Department of Correctional Services report dated 5 July 2017 prepared by Jessica Thornton, in which the respondent was assessed at a high risk of re-offending. He also referred to the report prepared by Marguerite Fawcett from the Darwin Correctional Centre on 10 May 2009, in which the respondent had scored in the high category of risk for sexual re-offending on the STATIC-99 assessment in both pre and post engagement in the Sexual Offender Treatment Program (‘SOTP’). He also referred to the report prepared by psychologist Rosemary O’Reilly-Martinez from the Darwin Correctional Centre dated 4 June 2012, which concluded that while the respondent had demonstrated some understanding of his triggers to re-offending including alcohol misuse, and acknowledged that his offending behaviour was not consensual, he did not have the capacity to empathise with his victims, or acknowledge the likely short and long term harmful effects on them. Dr O’Dea also noted that the respondent had completed the SOTP between August 2009 and March 2010 and attended three SOTP sessions in March 2012. However, the exit report from this program stated the respondent had gained minimal understanding, progress or insight into the dynamic risk factors associated with his sexual offending and he did not understand the concepts covered in the program even when explained in basic terms. Dr O’Dea further observed that when he asked the respondent about the sex offender treatment program and what he had learned from it, he said, “Like victim…violence…and all that…[?anything else]…no…only that…”.
Dr O’Dea concluded that despite the respondent’s participation in the SOTP, the respondent had ongoing attitudinal problems related to his offending behaviour including limited remorse, contrition, empathy, insight and a realistic commitment to change.
Dr O’Dea also reported on the respondent’s engagement with the medication. He noted that based on his discussions with Dr Das on 27 February 2020 and Dr Das’ report of 10 March 2020, he understood that the respondent had been prescribed anti-libidinal medication via monthly, then three monthly intramuscular injections of the GnRH Agonist medication, Triptorelin Embonate.
Dr O’Dea also reported that the respondent had stated that he had been prescribed the medication so that he wouldn’t get erections, that he couldn’t have sexual intercourse with women and girls, that he didn’t think about girls anymore, that his leg had been infected as a result of the medication injection and that he used to think about girls and masturbate every night but that today he was ok. The respondent also advised Dr O’Dea that he planned to live in Darwin in the future so he would be able to access the medication, see his treating psychiatrist Dr Das, and his solicitors. The respondent also advised Dr O’Dea that he planned to receive a pension, abstain from drinking alcohol and stay away from his previous friends so as to avoid getting into trouble.
Dr O’Dea noted that the respondent declined to discuss his current predicament, including his offending behaviours, repeating that this information was in his paperwork. Dr O’Dea also noted that the respondent did not convey a realistic, structured commitment to address his risk management within the community, and repeatedly stated that he would continue the prescribed medication.
Dr O’Dea concluded that while the respondent was not suffering from a major psychiatric illness, his extensive alcohol abuse and dependence associated with his repeated history of offending would satisfy the diagnostic criteria for an Alcohol Use Disorder. He also noted that based on the respondent’s disorganised and disadvantaged childhood, his relatively itinerant lifestyle since adolescence, his ongoing behavioural issues and offending behaviours, the respondent would meet the psychiatric diagnostic criteria for a Personality Disorder with significant antisocial traits and likely psychopathic traits.
Dr O’Dea concluded that the respondent’s total abstinence from alcohol and illicit substances in the community, supported by ongoing specialised, structured and supervised alcohol and other drug counselling and rehabilitation would be a necessary factor in minimising the respondent’s future offending behaviour. He also noted that based on the respondent’s historical engagement with psychological sex offender treatment programs, they would be unlikely to have a significant impact on reducing the respondent’s future risk of serious sex offending.
Dr O’Dea further advised that the respondent would require a long-term prescription of the medication to manage his sex drive. He noted that patients commenced on Triptorelin could be observed with a significant reduction in sex drive after three months of commencement of the medication. However, based on the respondent’s history of sex offending, alcohol abuse in the community and his personality, the respondent’s risk of committing a further serious sex offence would be significant for at least five years duration. Additionally, he noted that if a structured and supervised risk management program could be successfully put in place where the respondent would comply with medication regime and abstain from alcohol longer term, the respondent’s risk of committing a further serious sex offence may be able to be adequately managed.
In response to concerns raised by the Court that the respondent had been assessed on 27 February 2020 without an interpreter present, a supplementary report was filed by Dr O’Dea on 15 April 2020. In that report he noted that on 1 April 2020 a telephone interview had been conducted with the respondent with the aid of an interpreter. However, on that occasion the respondent had told him that he did not understand the interpreter and wanted to speak in English. A subsequent effort on 14 April 2020 to interview the respondent with a different telephone interpreter was also unsuccessful and the interview was completed without an interpreter.
On 5 June 2020 Dr O’Dea provided a further supplementary report summarising an interview conducted with the respondent and an interpreter via telephone on 19 May 2020. In his report Dr O’Dea noted that while the interpreter was able to offer the respondent a greater opportunity to be asked questions and give answers in his main language, difficulties remained in the respondent’s ability to express himself and his opinions clearly and concisely. Consequently, Dr O’Dea noted that the ongoing communication problems may be attributable to the respondent’s level of intellectual functioning rather than cultural and language barriers.
Dr O’Dea noted that when the respondent was questioned about where he would like to live, he provided a range of responses including, “I don’t know where to go”, “Darwin” and “Man Camp…run by the Thmarurr Development Corporation”. When asked about what he would like to do once released from custody he said, “May not work” and would “…probably get a disability pension”. When asked whether he would drink alcohol if released from custody the respondent said he didn’t want to drink and didn’t like drinking, would leave alcohol alone, would make sure no-one came around to his house, that he wanted to stay by himself but family members could visit him and that he might smoke cigarettes.
When the respondent was asked whether he would want to get married or have a girlfriend whilst in custody he said, “No no no no…trouble…I’d rather stay by meself”. When asked about whether he would want to have sex with others he responded that he could not do it and said, “How I’m s’posed to fuck a woman when my penis too soft”. He then went on to describe effects from the needle including chest pain, a “spoiled” body, sweating, shaking and, “…like a really strong fit…like a heart attack” when breathing slowly.
When asked whether he did not want to continue taking the injections the respondent stated that he had attended the Correctional Centre clinic, but they said not to give him the needle any more. He also said that, “I’m still waiting for the injection”, “I will take it”, “Just gonna keep an eye on me body…sometime my body swollen”. When Dr O’Dea inquired why the respondent would accept more injections he said, “It’s OK…but I know it’s very bad…but I still take it”. Additionally, when he was asked why he thought Dr Das and others wanted him to take the injections he stated, “So I can get out…release”.
Based on the respondent’s responses, Dr O’Dea was not convinced that the respondent was providing informed consent to the dispensing of the medication. He advised that in order to receive informed consent, a formal face to face interview with the respondent would be required with the assistance of a suitable interpreter.
The Commissioner of NT Correctional Services provided a supervision report dated 17 March 2020. The Commissioner noted that the respondent was currently classified as a medium security rated prisoner and although the respondent’s behavioural case reports indicated he had demonstrated disruptive behaviour, including officer shopping and ‘humbugging’ fellow prisoners, the respondent’s capacity for progress within the community remained untested. The Commissioner noted that any potential release to supervision in the community would require a transition plan to see the respondent progressively exposed to elements in the community to assist his internal capacity for regulation.
The Commissioner provided information on prospective accommodations for the respondent under a supervision order. He noted that the respondent’s nominated accommodation, Kubuyirr Outstation, had been assessed by Community Corrections and had been found unsuitable. Among the issues raised by Community Corrections included the outstation’s lack of electricity, mobile telephone service, landline telephone service and the lack of Homelands funding for service provision and maintenance of the premises. Additionally, when the respondent was asked how he would meet his basic needs, reporting requirements and medical needs if residing at Kubuyirr, he stated that he might get a loan to purchase a car and was unable to provide alternative measures. The Commissioner noted that within the Kubuyirr Community, the ability of Community Corrections and Police to detect breaches and re-offending would be extremely limited, heavily reliant on community members in reporting contraventions and that any necessary arrest without warrant may not be immediately available.
The Commissioner also concluded that the proposed familial accommodation options in the Wadeye Community were unsuitable. In interviews with Community Corrections, the respondent’s uncle advised that he was not aware of the reasons for the respondent’s incarceration, and he would be unable to assist the respondent with accommodation and support should he be released into the Wadeye Community. The respondent’s sister reported she did not want to see the respondent and was scared at the prospect of his return to Wadeye. Other individuals identified as members of the respondent’s family were incarcerated and unable to be assessed for his support.
The Commissioner also noted that Community Corrections had been unable to determine the suitability of the respondent to reside in NT Housing accommodation for the purpose of the supervision report as any potential residence was dependent on accommodation that was available when the respondent was released from custody. The Commissioner noted that Community Corrections had initially identified the Multi-Purpose Cottages within the Darwin Correctional Precinct as a suitable supervised accommodation option. However, in his supplementary report dated 15 June 2020, the Commissioner noted that due to the cessation of the respondent’s anti-libidinal treatment, he no longer believed the respondent would be able to employ the significant self-regulation strategies and abstinence from impulsive behaviours required for him to reside at the Cottages.
The Commissioner noted that the respondent articulated a willingness to engage with Community Corrections in regards to the supervision and reporting requirements involved in a Final Supervision Order. He also noted that the respondent indicated an understanding of the consequences should he fail to adhere to any condition imposed by the Court. The Commissioner also observed that the respondent had completed relevant programs to address his offending behaviour including the SOTP between 3 August 2009 and 30 March 2010, an individual treatment program in March 2012, Alcohol and Other Drugs Program between 3 July 2017 and 7 July 2017 and the Life Skills, Adjustment and Support Program in 2017.
Based on the completion reports for these programs and the more recent psychiatric and psychological reports, the Commissioner concluded that the respondent had failed to demonstrate the learnings in practice and he was unsatisfied that the medication alone provided adequate reassurance of lowered risk in a community setting. Further, he noted that the respondent appeared to have acquiesced with Community Corrections throughout his interview regarding his willingness to comply with Court conditions to achieve his goal of release from prison without any mechanisms to effectively achieve such an end.

The Commissioner also noted that the respondent reported having no interest in engaging in paid employment should he be granted conditional liberty and intended to maintain his basic needs through receipt of the disability pension.
Based on all the documentation before the Court, the Commissioner concluded that the respondent demonstrated cognitive distortions and significant deficits in victim empathy. In interviews with Community Corrections the respondent reported no concerns as to potential retribution by victims or their families should he be released from custody stating, “Sorry is done now…family know I have done my time”. Further, when advised the Court may impose conditions prohibiting his contact with his victims the respondent repeated the above comments. The Commissioner noted that the two victims that were consulted for the supervision report expressed concerns about the respondent’s release into the community, and advised they did not wish for the respondent to return to the community under supervision.
The Commissioner concluded that notwithstanding the respondent’s stated willingness to comply with the conditions of the Court under a Final Supervision Order, he had failed to identify appropriate mechanisms to do so. Consequently, he concluded that it was not reasonably practicable to provide the level of direct supervision required to meet the paramount consideration set out in s 63(2)(a) of the Act. The Commissioner also advised that he was not satisfied the medication provided adequate reassurance of the respondent’s lowered risk in a community setting, noting NT Correctional Services would be unable to identify appropriate accommodation and support networks to meet the respondent’s risk and needs.
The Commissioner noted that although the respondent could not be adequately supervised within the community at present, this could be achieved through the implementation of a longer term Transition Plan.
The Transition Plan dated 15 June 2020 proposed a four stage transition to facilitate the respondent’s return to the community, while managing risk to the safety of the wider community, staff, other prisoners and the respondent. The primary aim of Stage One was to work with the respondent to identify a suite of activities to develop a culturally appropriate, structured day. Stage Two would see the respondent commence the activities identified in Stage One, including having an Electronic Monitoring Device fitted.
The Transition Plan noted that the respondent had been referred to programs to identify culturally appropriate activities of interest and had started the Quickstart program for Numeracy, Addition and Level Three Words. It also noted that the primary focus of Stage Three was to commence transitional, custodial-based activities preparing for the respondent’s release, while Stage Four would see the respondent commence transitional, community-based activities. At the date of the report, the respondent had not yet reached Stages Three and Four of the Transition Plan.
During the periodic review evidence was taken from Dr O’Dea, Dr Das and the Commissioner of Corrections, Mr Scott McNairn.
In examination, Dr O’Dea was asked whether his opinion in his first report (that the respondent could be placed under a community supervision order) had changed given the respondent had stopped the medication. To this, Dr O’Dea stated that based on the respondent’s history and presentation, the fact that the respondent was no longer being prescribed the medication would significantly impact on the effectiveness on any risk management program in the community. He noted that the respondent would potentially require a level of supervision and restriction that might be very difficult to provide in a community situation, such as a “constant one-on-one focus” and “someone who would need to be keeping an eye on [the respondent] around the clock”.
In cross-examination, Ms Blundell for the respondent questioned Dr O’Dea over statements made in his first report including claims that the respondent had provided limited co-operation during his interview with Dr O’Dea on 27 February 2020. Dr O’Dea conceded that the respondent had in fact been a very co-operative interviewee and only reluctant to discuss his offending behaviours and other things related to his offending including his personal history, psycho-sexual history and treatment programs to date. Dr O’Dea also agreed with Ms Blundell that there could be a range of potential factors to explain the respondent’s reluctance to discuss his prior offending including shame, language limitations, cognitive functioning including a difficulty in retaining information into memory. Dr O’Dea also considered it a possible, but not the most likely explanation that the respondent’s reference to ‘the documents in his cell’ when he was asked about his offending, was an effort to ensure he was providing Dr O’Dea with accurate information, rather than demonstrating a reticence to discuss the subject.
Dr O’Dea accepted Ms Blundell’s suggestion that the respondent had indicated to Correctional Services and the report writers that he was willing to comply with almost all conditions placed on him for a supervised sentence. However, Dr O’Dea disagreed with Ms Blundell’s suggestion that the respondent’s lengthy incarceration period and the limits on his cognitive functioning and intellect made it unrealistic for him to come up with appropriate risk management strategies on a supervised sentence. Dr O’Dea noted that while it may be reasonable for the respondent to fail to come up with the degree of strategies necessary to convey full confidence in those managing him, the ability to consider such strategies remained an important factor in the respondent’s overall risk profile and the ultimate assessment of the respondent’s risk management requirements should he be placed on a Supervision Order.
Dr O’Dea agreed with Ms Blundell that one of the respondent’s risk issues for sexual re-offending, the respondent’s risk of alcohol abuse, could be managed in a non-custodial setting including as a slow-release treatment via an implant. Dr O’Dea also agreed with Ms Blundell that while medication was one limb of a range of strategies in managing the respondent’s risk of re-offending, the respondent’s placement in an environment with limitations on his ability to access alcohol was recommended.
Ms Blundell also questioned Dr O’Dea on his opinion contained in his first report that the respondent had made poor progression through a number of sex offender treatment programs and his further engagement in such programs would be unlikely to be useful in significantly reducing his risk of re-offending.
Dr O’Dea accepted Rosemary O’Reilly-Martinez’s report that the respondent had, during a one-on-one sex offender psychotherapy treatment, appeared to have demonstrated some understanding of his responsibility in his past offending. This included the respondent recognising the inappropriate nature of his offending behaviour and his triggers to re-offending including alcohol abuse. However, Dr O’Dea noted that during his own interviews with the respondent he was unable observe that viewpoint from the respondent. Moreover, Dr O’Dea noted that he understood the respondent had since engaged in concerning sexual behaviour which indicated the respondent had not been able to translate the progress made in his individual treatment with Ms O’Reilly-Martinez into long-term gains.
Dr O’Dea accepted Ms Blundell’s suggestion that the respondent’s limited progress in numerous sex offender treatment programs could be partially attributable to: the respondent’s cognitive defects, the programs being conducted in English and the programs being conducted within a group setting. Moreover, Dr O’Dea also noted that there were those with very good English who had similarly poor progress through such programs and there was no good evidence to demonstrate psychological sex offender treatment programs alone had significant impact on re-offending rates.
Dr O’Dea accepted Ms Blundell’s suggestion that since 2018 the process of having the respondent understand and consent to the medication had been fraught and inconsistent. Dr O’Dea noted that when he interviewed the respondent in February 2020, the respondent indicated he wished to continue taking the medication but subsequently gave a different view. Dr O’Dea also stated that in May 2020 the respondent indicated he wanted to continue with the medication again. However, Dr O’Dea said that as this indication was raised in the context of the respondent raising a number of concerns about the medication (including the fact he was going to seek medico-legal litigation), he could not be confident that the respondent had given fully-informed consent in taking the medication.
Dr O’Dea also agreed with Ms Blundell’s suggestion that given the respondent’s cognitive deficits identified by Dr Huntley, Dr Das and himself, a formal guardianship order ought to have been considered in assisting the respondent in his longer term risk management. Dr O’Dea also noted that such an order could provide the respondent’s prescribing doctors with reasonable security amidst the respondent’s fluctuating consent to the medication.
Ms Blundell posed to Dr O’Dea the possibility of the respondent being prescribed Selective Serotonin Reuptake Inhibitor (‘SSRI’) anti-depressant medication as an anti-libidinal treatment as originally suggested by Dr Das. Dr O’Dea noted that SSRI sexual side effects included reduced libido and could help to manage sex offending. However, he also stated that SSRI’s were ultimately less effective than anti-libidinal medication and that he was unsure whether SSRI’s would provide the level of control of the respondent’s sexuality that anti-libidinal medication would in being able to manage the respondent safely in the community.
Ms Blundell also inquired whether an ankle bracelet would address some of Dr O’Dea’s concerns about the respondent’s risk of re-offending if released into the community. Dr O’Dea noted that given the respondent’s offending behaviour in other highly structured environments including prison, electronic device monitoring alone would not alleviate the respondent’s risk. Other factors, including confidence in the respondent’s ability to remain abstinent from alcohol and the adequate management of his sexuality through the medication would be essential considerations in considering the respondent’s re-offending risk.
In cross-examination, Ms Blundell asked Dr Das whether he had considered Dr Huntley’s recommendation about a formal guardianship order for the respondent given Dr Huntley’s concerns about the respondent’s capacity to give informed consent of complex medical procedures. Dr Das noted that he had not and although he had come to the impression that the respondent’s understanding was basic and not sophisticated, he was satisfied that the respondent was consenting to anti-libidinal medication treatment when it commenced in January 2020.
Dr Das agreed with Ms Blundell’s suggestion that during his meeting with the respondent on 27 February 2020, the respondent had indicated he was willing to continue with the medication, notwithstanding the side effects he was experiencing. Dr Das also said that a general practitioner had reviewed the respondent and had determined the side effects he experienced from the medication were not due to another health concern, and there were no other concerns as to the respondent’s health.
Dr Das confirmed that he had met with the respondent on 24 April 2020 as a result of the respondent’s second letter which reported negative side effects he was experiencing from taking the medication. Dr Das advised that during this meeting, the respondent said he had initially changed his mind about continuing the medication due to some information provided by a fellow prisoner and Ms Blundell. Dr Das noted that the respondent was unclear about what information had been provided to him by Ms Blundell, and despite efforts, he was unable to understand the respondent’s concerns. Dr Das also confirmed that during this meeting, the respondent sought to go back onto the medication. Dr Das noted that although he attempted to speak to the respondent to ascertain his understanding of the medication’s side effects, those efforts were unsuccessful due to poor phone lines and the difficulty in understanding the interpreter. Dr Das did note however, that he was able to convey to the respondent that he would not be initiating him on the medication again, and the medication was subsequently ceased.
Ms Blundell suggested to Dr Das that given his initial impression in 2018 that the respondent’s understanding of the medication was basic and unsophisticated and that Dr Huntley had recommended appointing a legal guardian, the option of anti-libidinal medication had not yet been exhausted. Dr Das disagreed with this suggestion. He acknowledged that the respondent’s consent was a complex issue which required taking into account the respondent’s cultural background and particular impairments. However, he advised that limited intelligence alone did not result in an individual being placed on a guardianship order.
Dr Das stated that the respondent was at a stage where he had not been able to accept that he needed the treatment. Dr Das also stated that he suspected the respondent was in a “very early” stage of motivation in accepting treatment, and the respondent’s fluctuating consent was a typical response of sex offenders and those with mental illnesses who were in this early stage. Dr Das agreed with Ms Blundell’s suggestion that the respondent, aided by an interpreter, may be in a position in future to gain the level of insight required to consistently seek and commit to taking the medication. However, he stated that at present, he believed adequate attempts had been made to initiate the respondent onto the medication and he would feel very uncomfortable prescribing the medication to the respondent and risk a complaint of professional negligence.
Ms Blundell also questioned Dr Das whether the appointment of a formal guardian would be of assistance in this matter. To this, Dr Das noted that the question of whether the administration of anti-libidinal treatment would constitute medical treatment was unclear in the respondent’s circumstances. However, he noted that in his experience, guardians were reluctant to authorise the administration of anti-libidinal medication. Indeed it is not at all clear that a guardian would have the power to consent to anti-libidinal medication on the respondent’s behalf as the medication is not administered to treat a medical condition and, in one sense, is administered for the benefit of the wider community rather than the respondent.
In cross-examination the Commissioner stated that he had revised his initial operational assessment in his report of March 2020, noting that he no longer considered the Multi-Purpose Cottages in the Holtz Correctional Centre suitable accommodation for the respondent if he was released on supervision. He noted that this conclusion was based on a number of factors, namely the respondent’s high level of risk under STATIC-99, the Commissioner’s extensive prison experience and understanding of criminogenic factors, and the two forensic psychiatric reports from Dr Das and Dr O’Dea which noted the respondent’s level of risk was significant and that there was a likelihood of re-offending if he was not placed on medication.
The Commissioner disagreed with Ms Blundell’s suggestion that the respondent’s unsuitability for the Multi-Purpose Cottages was due to the lack of sufficient resources to constantly supervise the respondent. He advised that from his own understanding of the respondent’s case and the view contained in the psychiatric reports, he believed that without the medication, the respondent would present a significant risk to visitors, staff and other prisoners of the Darwin Correctional Centre if housed in the Multi-Purpose Cottages.
The Commissioner agreed with Ms Blundell’s suggestion that the respondent should not be wholly responsible for providing realistic strategies to implement risk reduction behaviours if granted supervised release. To this end he stated that should the respondent receive NDIS funding, Community Corrections would support an application for adult guardianship to enable the respondent to access additional support services including the development of risk reduction strategies.
The applicant submitted that a further continuing detention order should be made on the ground that the respondent was highly likely to commit another serious sexual offence (or offences) if released and that adequate protection could not reasonably be provided by making a supervision order in relation to the respondent. The respondent, ultimately, did not submit otherwise.
Based on the materials before me, I was satisfied that the respondent was a serious danger to the community because he was highly likely to commit further serious sexual offences if released. I was further satisfied, from the Commissioner’s report, that the Commissioner did not have the resources to provide the level of supervision that would be required to adequately protect the public from the respondent’s high risk of further serious sexual offending if he were to be released into the community and placed on a supervision order.
Accordingly, on 16 June 2020 I ordered the continuation of the respondent’s continuing detention pursuant to s 71(1)(c) of the Act and fixed a review period of 12 months.
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