The State of Western Australia v Garrett - [2009] WASC 315

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL

CITATION: THE STATE OF WESTERN AUSTRALIA -v- GARRETT [2009] WASC 315

CORAM: JENKINS J

HEARD: 19 OCTOBER 2009

DELIVERED : 3 NOVEMBER 2009

FILE NO/S: MCS 39 of 2009

BETWEEN: THE STATE OF WESTERN AUSTRALIA
Applicant
AND
BRUCE JASON GARRETT
Respondent

Catchwords:

Criminal law and procedure - Dangerous Sexual Offenders Act 2006 (WA) - Application for continuing detention order - Whether respondent is a serious danger to the community - Unacceptable risk of the commission of a serious sexual offence

Legislation:

Dangerous Sexual Offenders Act 2006 (WA), s 17

Result:

The respondent is a serious danger to the community
Continuing detention order made

Category: B

Representation:

Counsel:

Applicant: Ms L Petrusa
Respondent: Mr D J McKenzie

Solicitors:

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

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

Director of Public Prosecutions for Western Australia v McGarry [2009] WASC 226

JENKINS J: Bruce Jason Garrett is serving a sentence of 11 years' imprisonment imposed on 2 October 2002 for various offences including the kidnapping of, and the commission of serious sexual offences against, an 8‑year‑old victim. He is due to be released from prison on 4 November 2009. The Director of Public Prosecutions for Western Australia says that Mr Garrett is a serious danger to the community and that he ought to be detained in custody for an indefinite period for control, care or treatment, pursuant to the Dangerous Sexual Offenders Act 2006 (WA) (the Act).
Mr Garrett does not agree that he is a serious danger to the community and says that even if he is, the risk of him committing a serious sexual offence in the future can be managed under a supervision order.
Before I can make either a continuing detention order or a supervision order I must be satisfied that Mr Garrett is a serious danger to the community. If I so find, then I must make either a continuing detention order or a supervision order. In deciding whether to make one of these orders, the paramount consideration is the need to ensure adequate protection of the community: The Act s 17(2).

The law

I have recently summarised the law relevant to this application in Director of Public Prosecutions for Western Australia v McGarry [2009] WASC 226. I will not repeat that summary but I apply the principles there stated to the facts of this case.

The respondent's background.

Mr Garrett is 51 years of age and single. He was born in Newcastle, New South Wales. He had four brothers and one sister. The details of his childhood are not clear. Mr Garrett recalls that he spent his childhood sometimes with both his parents, sometimes with his mother alone, sometimes in children's homes or in foster care.
He has recounted to a number of health and other professionals that he was sexually abused as a child by a foster carer, a friend of a foster carer and by persons unknown in a children's home. He has also reported instances of physical assault by his father and he has told a psychiatrist that he has a 'vague memory' of his father sexually abusing him.
In 1975, whilst he was living with his mother and father, Mr Garrett and his mother shot and killed his father. It is not known who fired the fatal shot. The murder was committed in order to stop his father's alcohol fuelled physical abuse of Mr Garrett's mother.
On 15 March 1976 Mr Garrett and his mother were convicted, after trial, of the murder. Mr Garrett was sentenced to 15 years' imprisonment with a non‑parole period of 6 years. His mother was sentenced to life imprisonment.
Mr Garrett has recounted being sexually abused whilst in prison. He was released from custody, on parole, in 1980.
Mr Garrett's childhood and early adult life were also marked by the death of other family members. His grandmother died when he was still a child and his grandfather, whom he had lived with happily for a period, died in about 1975. A brother died in 1975 from leukaemia. His mother died in 1984 as a result of an accident with a kerosene heater. Another brother also died around the same time as a result of injuries which he received in a traffic accident. I can do no better than to quote Dr Wynn Owen, a psychiatrist who has prepared a report for these proceedings, in summarising Mr Garrett's childhood in the following terms:
Overall there is an early history of significant intrafamilial dysfunction, violence, tragedy and loss with little nurturing, show of care and emotion or modelling of appropriate interpersonal interaction. This may have led to periods of disassociation when under stress and certainly laid the foundations for pathological coping such as alcohol abuse and ongoing interpersonal difficulties.
After his release from prison, Mr Garrett remained in New South Wales but had little contact with the remaining members of his family. It seems that he had some short term unskilled employment. He has never made friends easily and there is little to indicate that he developed significant personal relationships in this period.
His prior criminal record indicates that on his release from prison he was convicted of a number of traffic offences. In 1983 he was charged with alcohol related offences and assaulting and resisting police. Interpreting his prior criminal record as best I can it seems that he failed to appear in court on those charges and a warrant was issued for him. This appears to coincide with him moving to Western Australia for a time. He says that he came to Western Australia to see his mother's family. He recorded a number of traffic convictions in Western Australia between 1983 and 1985. Sometime after that he moved to South Australia.
Mr Garrett says that his first significant relationship with a woman was in 1986 and it lasted for between one year and 18 months. He said that it ended because his partner wanted children but that he was drinking excessively and did not want children.
On 11 August 1987 Mr Garrett was convicted in the Port Lincoln Magistrates Court of one count of gross indecency. He was sentenced to imprisonment for 4 weeks. The facts of that charge were that Mr Garrett was camping with two boys aged 14 years. He masturbated in front of the boys to the point of ejaculation.
On his release from prison Mr Garrett returned to Western Australia. In 1988 he was convicted in Western Australia of 12 offences. Most of these were traffic offences but it is notable that his offending appears to have escalated with convictions in late 1988 for burglary and stealing. There is then a break in his Western Australian criminal history, coinciding with a recommencement of the recording of convictions in South Australia. In 1990 Mr Garrett was convicted in Port Lincoln of burglary and larceny. In early 1992 he returned to New South Wales. In the middle of 1992 his parole for murder was revoked and he was returned to custody for a time. In the same year he was convicted in New South Wales of burglary offences. In 1993 he was convicted of a number of stealing and traffic offences.
This offending behaviour is consistent with the history that Mr Garrett has recounted to others of his excessive alcohol consumption over this period of time. He has recounted to Dr Wynn Owen that his drinking started around 1984 and rapidly became a problem for him. He has said that he would get drunk daily by drinking flagons of port and casks of wine.
On 18 February 1994 Mr Garrett was convicted in South Australia of a 1993 offence of attempting to procure an act of gross indecency. He was sentenced to 4 months' imprisonment suspended on him entering into a bond to be of good behaviour for 2 years.
The facts of the offence were that Mr Garrett approached a 13‑year‑old boy and asked him to have sex with an 11‑year‑old girl whilst Mr Garrett filmed the act. Mr Garrett told the boy he would pay him and then sell the movie in Perth. He also tried to entice the boy to go to a private area with him.
Dr Elaine Skinner, psychiatrist, prepared a report about Mr Garrett for the sentencing proceedings in 1994. Dr Skinner stated that Mr Garrett's account and symptoms were consistent with a post‑trauma distress order following sexual and physical abuse during his childhood and adolescence. She noted that Mr Garrett had made efforts to have some counselling and treatment in Perth. Dr Skinner was of the opinion that Mr Garrett was 'genuinely remorseful' and appeared to be 'serious in his plans to rebuild his life'. Mr Garrett had reported to Dr Skinner that he intended to avoid teenage boys in the future. Dr Skinner was of the view that he appeared to be aware of his 'vulnerability in this regard'. Dr Skinner was further of the view that given his degree of insight and his efforts to date, Mr Garrett had potential to improve.
It appears that Mr Garrett then returned to Western Australia where he was convicted on 24 October 1994 of burglary.
Whilst in Western Australia Mr Garrett started his second significant relationship with an adult woman. He has said that the relationship lasted six to eight months and came to an end because his partner put her children first.
In 1997 Mr Garrett was convicted in the Townsville Magistrates Court of stealing and receiving. He also has convictions in North Queensland in 1999, indicating that from 1997 ‑ 1999 he was living in Queensland. There is a corresponding break in his offending history in Western Australia.
On 2 October 2002 in the District Court of Western Australia at Perth, Mr Garrett pleaded guilty to and was convicted of 22 offences. These offences consisted of:
1.one count of kidnapping;
2.one count of showing offensive material to a child under the age of 16;
3.three counts of sexual penetration of a child under the age of 13;
4.two counts of indecent dealing of a child under the age of 13 years;
5.one count of procuring a child under the age of 13 to do an indecent act;
6.five counts of indecently recording a child under the age of 13;
7.one count of stealing a bicycle; and
8.eight counts of indecently recording a child between the age of 13 and 16 years.
In early July 2002 Mr Garrett was living at a unit in Shoalwater. He also had a bush camp nearby where he spent a portion of his time. On 5 July 2002 the 8‑year‑old boy complainant had an argument with his mother and left home. He subsequently met Mr Garrett and went to his bush camp. From there he went to Mr Garrett's unit. In the bedroom of the unit, Mr Garrett made the boy watch an adult pornographic video and he then performed fellatio on the boy. He also licked the victim's anus and inserted his tongue inside the victim's anus. The victim requested Mr Garrett to stop but he ignored the request and told him to be quiet. During the course of the night Mr Garrett masturbated the victim and also made the victim masturbate him until he ejaculated on top of the victim's naked stomach. This behaviour was repeated on several occasions throughout the night. At another stage Mr Garrett digitally penetrated the victim's anus. The following morning Mr Garrett again masturbated the victim and made the victim masturbate him until he ejaculated.
Sometime during the evening, Mr Garrett took five Polaroid photographs of the naked victim in various sexually explicit positions. Mr Garrett gave the victim a bicycle he had previously stolen and a helmet. The victim managed to escape from Mr Garrett's unit on the bike.
The following day at about 3 pm the victim was located riding the bicycle on the streets of Shoalwater. He was wearing Mr Garrett's black jacket and a striped t‑shirt. He was naked from the waist down.
When the police searched Mr Garrett's unit they located the photographs of the victim underneath a portable compact disc player on top of a chest of drawers in the bedroom. They also found a further nine Polaroid photographs of naked boys estimated to be aged between 13 and 16 years. These photographs were of the boys in sexually explicit poses on top of a bed. Mr Garrett admitted to the police that he had taken the Polaroid photographs of the boys, other than the victim, for his own sexual gratification. He claimed that the boys had willingly posed for the photographs in return for cash. He declined to identify any of the boys.
The police also located a large number of photographs of young children which had been apparently cut out of catalogues and the like by Mr Garrett. From the notations on the photos, the way in which they were located and the admissions made by Mr Garrett to the police the clear inference is that these photographs were kept by Mr Garrett because he found them sexually stimulating.
I have watched the video of the search of Mr Garrett's unit. In it there were a number of other pictures of young children, children's toys, an identification card for a youth group volunteer, a 'children crossing' sign and a sign on the bathroom saying 'boys only'. The police also located a chain attached to Mr Garrett's bed, which it is believed he used to detain the victim.
When interviewed by the police about the offences that were committed on 6 and 7 July, Mr Garrett claimed not to be able to remember the relevant period of time but acknowledged that he 'must have done it'. He claimed to have been in an alcohol induced 'blackout'.
Mr Garrett now claims that he was not provided with the victim's statement prior to him entering his plea. He says that he could not have committed the offences relating to penetration of the victim as it would be a physical impossibility for him to place his hand in the victim's anus without him receiving substantial injuries.
Prior to sentencing, Mr Garrett sent a letter to the sentencing judge. He said that he associated with young people because he wanted to live the childhood he never had. He acknowledged that he did not seem to have matured properly and that he had rejected the idea of being an adult. He claimed only to have engaged in sexual practices with young men in order to be accepted by them. Mr Garrett told the sentencing judge that whilst in custody on remand he had been diagnosed as being HIV positive. This diagnosis is confirmed by other evidence.
A psychological report prepared by Mahsa Anderson for the purposes of sentencing concluded that Mr Garrett was deemed to be at high risk of re‑offending in a comparable manner. The author said that given Mr Garrett's post‑traumatic stress symptomotology he was unlikely to gain much from attending a group programme until his personal issues were dealt with on an individual basis. It was noted that Mr Garrett was motivated to address his offending issues. The psychologist was of the view that there was a need for therapeutic intervention to address the issues of responsibility, victim empathy, sexual boundaries and the concept of consent versus compliance.
The sentencing judge said that he regarded Mr Garrett as being a significant danger to the community. His Honour said that it would be only after he had successfully addressed both personal issues relating to his early life and issues relating to his sexual attitudes that such risk would be diminished.
After sentencing, a custodial sex offender report was completed. Mr Garrett acknowledged to the author of the report that he had engaged in what he regarded as consensual sexual activity with the males whose photographs were found in his unit. The author noted that Mr Garrett appeared to have some confusion about his sexual orientation in that whilst he identified himself as heterosexual he was strongly drawn to adolescent males in his reported effort to regain the illusion of being a child. The author of the report recommended that Mr Garrett be included in an intensive sex offender treatment programme (ISOTP) and that prior to him commencing the programme, he should complete a cognitive skills programme. The author also stated that individual counselling may be required to assist Mr Garrett in dealing with issues arising from his own sexual abuse.
On 3 August 2005 Mr Garrett was deemed to be unsuitable for inclusion in an ISOTP because he was then denying that he had committed 'any sexual offences', stating that it was 'medically impossible' to have done what he was accused and convicted of. Consistent with this attitude, Mr Garrett tried to appeal out of time from his 2002 convictions and sentence. These attempts were unsuccessful. The Court of Appeal acknowledged that there might have been some element of exaggeration on behalf of the victim but not such as to invalidate the pleas of guilty, convictions and sentence.
Mr Garrett participated in a legal and social awareness programme from May 2006 ‑ July 2006. The treatment completion report said that Mr Garrett presented in a very negative fashion and displayed flat effect throughout the course. He appeared disinterested and stated that he was in the group due to being bored in prison. It was noted that Mr Garrett did make some worthwhile contributions to group discussion and that his demeanour improved when he was given positive reinforcement about the value of his contributions. It was noted that for the most part he used the course to speak about what he believed were his unjust convictions and sentence. Mr Garrett appeared to deliberately remain disconnected from other members of the group. He claimed that he had been held in prison without charge and the author was of the view that he was rigid in his thinking around that issue. The author said that Mr Garrett took up a victim stance and was resentful and angry that he was imprisoned when those who had hurt him had not been punished.
When there was discussion concerning his future, Mr Garrett stated that he had no future and that he would be in prison for the rest of his life. He was unwilling to engage in any activity which was oriented towards his future, such as exploring accommodation issues. The author was of the view that he appeared unwilling to consider that it might be in his best interests not to consume alcohol.
In delivering judgment on his second attempt to appeal, McLure JA noted that Mr Garrett's history had 'the consequence that [Mr Garrett] is a danger to young boys because of what the psychologist described as [Mr Garrett] having an extensive normalisation of inappropriate sexual activities with young boys'. Her Honour noted that this danger was 'amplified because of the disinhibition and blackouts associated with [Mr Garrett's] excessive alcohol consumption'.
In March 2009 an individual management plan was prepared for Mr Garrett. It was noted in the plan that Mr Garrett was generally seen as a quiet individual who was not a management problem within the prison. It was also noted that he had received three social visits from friends during his sentence, he made infrequent phone calls and he sent occasional mail.
On 27 May 2009 Mr Garrett saw the immunology registrar at Royal Perth Hospital. The registrar noted that he had skin cancers on his face, neck and back. The registrar thought that Mr Garrett was very grumpy and obnoxious during the consultation. However, he was not showing any Aids defining illness. Mr Garrett agreed to start anti‑retroviral therapy because he wanted to 'live to take his revenge'.
From March ‑ May 2009 Mr Garrett completed a moving on from dependency programme. The authors of a report completed at the end of the programme said that Mr Garrett was initially reluctant to engage in the programme but that he became more involved across its course. However, he remained resistant to participating in future focus tasks and was not able to provide viable strategies for managing high risk situations or to prevent substance abuse relapse. It was recommended that participation in offence specific treatment and further counselling be provided to him.

In particular, the author said that Mr Garrett was not prepared to develop a relapse prevention plan because he was unable to foresee a future in which he would be released from custody. He thought that if released he would live off the land and dwell under a tree or in a cave. Throughout the programme Mr Garrett maintained strong anti‑offending views about property and sexual offences, despite these being predominate in his offending history. He acknowledged that heavy alcohol use was an entrenched part of his life. He impressed the authors as possessing few sound coping skills.
On 29 May 2009 Mr Garrett was interviewed by police officers at Casuarina Prison. He told the police that he did not believe that he had raped the victim of the 2002 offences. Later in the interview Mr Garrett acknowledged that the victim of the 2002 offences had told the truth but he appeared to have doubts about the allegation that he had sexually penetrated the victim. He acknowledged that he had taken the photographs of him. He told the police that he did not think that he was a sex offender. He said that if released in the future he would probably go and live in the bush and avoid having any contact with children so that no child could make such allegations against him in the future. He acknowledged that he had memory blackouts after drinking in the past.
He acknowledged that he was an alcoholic and once released he intended to impose bans on himself going to licensed premises. In respect of the possibility of him drinking after his release, Mr Garrett made the point that since he had been in custody he had not had any alcohol despite the opportunity for him to have had some 'home brew'.
Mr Garrett admitted during the interview that when the police searched his premises after the offence he committed in 1993, they found a book containing photographs of children which he had cut out of magazines. He said that at the time he was 'sick' and that he had used the photographs for sexual gratification. The book was similar to the one found in his unit in 2002.
Mr Garrett denied that he was homosexual. He also, in effect, denied being attracted to underage males. He said that he associated with them because he wanted to relive the childhood he had never had. He said that the sexual behaviour that he engaged in with them was because that was what teenage boys did.
During the course of the interview a recording was played to him of a telephone call which was made to police communications when the victim in the 2002 offences was with Mr Garrett. The caller speaks of having the boy and intending to take him to Sydney. Mr Garrett acknowledged that the voice of the caller sounded like his but he said that he had no memory of making the call. He denied intending to take the victim to Sydney. He denied that he had any intention to hurt the victim. He acknowledged that he could assume, that despite having no memory of the events, that he was planning to keep the victim if he had not escaped. He said it made sense to him that because he had lost his own son and he may have wanted to replace him with the victim. The reference to the loss of his son was to one of his girlfriends claiming that she was pregnant with his child and later being told that the child was not his.
Mr Garrett expressed remorse for his offending and a desire to structure his life in the future so as to avoid the possibility of him offending in a similar manner.
In September 2009 Mr Garrett had an MRI of his brain and a neuropsychological assessment was conducted by Professor Jonathon Foster. The MRI showed some characteristics of the brain which were more pronounced than expected for a man of Mr Garrett's age but there was no abnormal lesion in the brain. The medical evidence is that there is nothing on the MRI which indicates that Mr Garrett has brain pathology that would account for his offending or his psychiatric diagnoses.
Professor Foster concluded that Mr Garrett's neuropsychological presentation is generally unremarkable, relative to his anticipated pre‑morbid capacity. However, Mr Garrett has signs of relative difficulty with elements of executive functioning and some aspects of speed of processing and visuospatial functioning which may deserve further investigation. Such investigation has not been carried out. Professor Foster also said that Mr Garrett appears to be experiencing difficulties with elements of stress and anxiety related symptomotology. Professor Foster recommended that Mr Garrett receive support from a counsellor or a chaplain.
It is relevant to note that when Mr Garrett saw Professor Foster he was generally unkempt and appeared generally unhealthy. Contrary to what he told the police four months earlier, he told Professor Foster that he was innocent of the charges that had been brought against him and that there had been a conspiracy against him.
Mr Garrett became eligible for parole on his current sentences on 4 November 2007. Parole was denied to him. With statutory remissions he must be released from prison under his current sentence on 4 November 2009.

Matters referred to in the Act s 7(3)

I will now consider the matters specified in the Act s 7(3) which I must have regard to in deciding whether or not Mr Garrett is a serious danger to the community.

Psychiatric reports under the Act s 37

At a preliminary hearing of this application the court ordered Mr Garrett to undergo examination by two psychiatrists, Dr Wynn Owen and Dr Febbo. Their reports were tendered in evidence and both psychiatrists gave oral evidence at the hearing of the application.
Dr Wynn Owen interviewed Mr Garrett on two occasions for approximately five hours.
Dr Wynn Owen included in his report a lot of information about Mr Garrett's background. As I have related this earlier in my reasons I will not repeat it.
Dr Wynn Owen found Mr Garrett difficult to keep on track at interview and noted that he gave predominantly vague and nonspecific answers in relation to places and dates when asked about his offences, sexual orientation, fantasy and much of his personal history. Dr Wynn Owen said that he often digressed and in so doing gave overly detailed information which was at odds with his vague responses at other times.
In respect to Mr Garrett's alcohol use, Dr Wynn Owen said:
Mr Garrett's attitudes towards his alcohol use demonstrated at interview and in the prison programme, suggest an awareness of some of the negative effects alcohol has had on his life and the flow on impact on others but an unwillingness to plan and prepare for abstinence on release. Rapid reinstatement of his previous drinking pattern on release is the most likely outcome of this approach and will lead to an increased risk of both sexual and general reoffending.
In respect to Mr Garrett's sexual development, Dr Wynn Owen said that Mr Garrett had told him that he was not a homosexual and that he had an interest in teenagers of both sexes but that he has spent more time with boys as he has more in common with them. He denied homosexual fantasy or sexual fantasy about preadolescent children but at the same time acknowledged ownership of the albums of photographs which I have described earlier.
Dr Wynn Owen concluded that Mr Garrett's pattern of sexual behaviour and interest indicated by self report, convictions and materials found in his possession suggested that he had a predominantly, though not exclusively, homosexual orientation and a pervasive interest in adolescent and preadolescent children, again predominantly but not exclusively male.
Dr Wynn Owen is of the view that Mr Garrett's serious criminal behaviour, his ability to use victims to meet his own needs with no empathy and little regard to the personal consequences for the victim, his inability to maintain employment and his inability to sustain adult interpersonal relationships are, collectively, indicators of a predominately antisocial personality disorder.
Mr Garrett told Dr Wynn Owen that in relation to his sexual offending he had done some 'stupid things' but that he was not dangerous. Mr Garrett told Dr Wynn Owen that he had not committed the sexual and kidnapping offences for which he was convicted in 2002. He told him that he was suffering an alcoholic blackout for some of that period. He maintained that some of the offences of which he was convicted are a physical impossibility.
In Dr Wynn Owen's view, Mr Garrett minimised or denied his involvement in the offending and this demonstrated little or no remorse or understanding of the impact of his offending on his victim.
Mr Garrett told Dr Wynn Owen that he was 'angry, pissed off with the system' but not depressed. He has a poor appetite but a normal sleep pattern. He denied current thoughts of deliberate self harm and described no symptoms of anxiety disorder, panic, mania or psychosis.
Dr Wynn Owen concluded that Mr Garrett's plans for the future were superficial and that he appeared to have made limited, if any, efforts to decide where to live and how to source accommodation. He was unrealistic about finding work and appeared to prefer the option of going bush even though he had told Dr Wynn Owen that he would live in a town, maybe in Bunbury. Mr Garrett did not appear to have considered the possibility of a relapse into alcohol abuse and did not plan to seek help to abstain from alcohol through Alcoholics Anonymous, if released.
Dr Wynn Owen thinks that Mr Garrett's breach of some community supervision orders and compliance with others suggests an ambivalent attitude by Mr Garrett towards supervision and the possibility of poor compliance in the future with supervision.
Dr Wynn Owen's assessment of Mr Garrett's appearance was much the same as Professor Foster's assessment. He said that Mr Garrett was overtly angry for the first 20 minutes of the first interview but that he then became co‑operative.
Dr Wynn Owen diagnosed clinical disorders of alcohol abuse (in remission) and paedophilia. He noted that there were also some symptoms of a persistent mild depressive disorder. Dr Wynn Owen also made a diagnosis of an antisocial personality disorder. He noted that Mr Garrett was HIV positive and that he had squamous and basal cell carcinomas. Dr Wynn Owen also noted that Mr Garrett had social problems such as lack of a primary support group, conflictual interaction with the legal system and poor finances.
After considering the results of the MRI, Dr Wynn Owen concluded that Mr Garrett has an average IQ for an Australian male of his age, no obvious global cognitive deficit and no measurable memory problem. Mr Garrett's performance indicates that he is potentially able to benefit from programmes for offenders with normal intellectual capacity.
Dr Wynn Owen then carried out a risk assessment for Mr Garrett committing further serious sexual offences. He had regard to previous risk assessments disclosed in the evidence, Mr Garrett's Static‑99 score and the Risk for Sexual Violence Protocol (RSVP).
The previous risk assessments and the Static‑99 score put Mr Garrett in the high risk group of offenders, that is, there is a four in 10 chance based on fixed historical factors of his re‑offending within five years.
The RSVP does not seek to quantify an offender's risk of re‑offending. Rather it provides a number of criteria by which a person's risk may be assessed. Dr Wynn Owen considered the following criteria as being relevant to an assessment of Mr Garrett's risk of committing serious sexual offences in the future:
1.The chronicity and diversity of Mr Garrett's sexual violence and offending;
2.The escalation in Mr Garrett's offending behaviour between 1987 and 2002;
3.The use by Mr Garrett of physical and psychological coercion, indicating underlying paedophilia and the presence of attitudes which condone sexual violence;
4.Extreme minimisation or denial of offending indicating an increased likelihood of poor response to treatment participation and completion;
5. Problems with self awareness;
6. Problems with coping with stress; and
7. Problems resulting from his own childhood abuse.
Under the heading of 'Mental Disorder', Dr Wynn Owen noted that Mr Garrett's paedophilia and mild depressive symptoms presented an increased risk of re‑offence. However, Mr Garrett did not meet the criteria for a psychopathic personality. Dr Wynn Owen is of the opinion that Mr Garrett's problem with alcohol use and, probably, ongoing cannabis use, are dynamic risks leading to an increased likelihood of re‑offending if the behaviours are reinstated.
Under the heading of 'Social Adjustment', Dr Wynn Owen said that Mr Garrett demonstrated problems with intimate and non‑intimate relationships. Both problems are associated with an increased likelihood of general and sexual re‑offending. His additional problems with employment and history of non‑sexual criminality are factors which also increase the risk of general and sexual recidivism.
Under the heading of 'Manageability' Dr Wynn Owen noted that Mr Garrett has problems with planning which puts him at an increased risk of general and sexual re‑offending on release. His failure to obtain treatment for his sexual offending whilst in prison is also associated with increased re‑offending risk. Dr Wynn Owen also referred to the problems with community supervision which had been disclosed by Mr Garrett's previous history.
Dr Wynn Owen is of the opinion that if released immediately, the likelihood of Mr Garrett rapidly reinstating alcohol abuse is very high and with that would go an increased risk of sexual re‑offending.
In summary, Dr Wynn Owen found that Mr Garrett currently presents a high risk of sexual re‑offending and this risk is relatively unchanged from the risk he presented when he last committed sexual offences in 2002.
Dr Wynn Owen is of the opinion that Mr Garrett's risk of sexual re‑offending will remain high until Mr Garrett successfully completes an ISOTP or a sex offender deniers treatment programme, develops an awareness of the risk of substance abuse and develops a capacity to implement strategies to avoid relapse risk situations.
Dr Wynn Owen is of the opinion that before Mr Garrett can successfully complete an ISOTP he must undergo one‑to‑one psychological counselling to enable him to engage in group work, to improve self awareness and emotional regulation, develop non‑pathological skills to cope with stress, emphasise pro‑social behaviours and acknowledge the need to prepare for the future. His view is that until appropriate gains are made under counselling, Mr Garrett should not complete an ISOTP or other group programme. Mr Garrett also requires alcohol and drug counselling, tailored to his problems. He also recommends assessment and treatment of Mr Garrett's depressive symptoms.
Dr Febbo saw Mr Garrett on four occasions for approximately seven hours.
Dr Febbo's assessment of Mr Garrett's appearance and demeanour was consistent with Dr Wynn Owen's assessment of the same issues. He also noted that Mr Garrett digressed from answers relevant to the questions he was asked but on the other hand was over inclusive when he was relating other matters.
Mr Garrett denied that he was a paedophile and said that he could not stand homosexuals. He claimed that the offences in 1987 only occurred because the teenage boys involved wanted it to. Yet, in respect to the 1993 offending he said that alarm bells should have gone off as he had an obvious attraction or affinity for 'probably boys'.
He acknowledged taking 'dirty photographs of teenagers' around the age of 35 or 36 and when he later came to Western Australia. He acknowledged also cutting pictures out of books and magazines. He acknowledged that this was because he was 'sick at the time'. He said that around twice a month he had had sexual fantasies of boys and girls that can be as young as 9 or younger. He would not give any further history in relation to these fantasies but said that they stopped in 2002. He denied any current sexual fantasies about children and said that if he did have sexual fantasies it was about an ex‑girlfriend.
Dr Febbo also formed the view that Mr Garrett is preoccupied by his perception that he was wrongly convicted of at least some of the 2002 offences. This is despite the fact that he claims not to be able to recall what he was doing during the relevant time.
A great deal of what is contained in Dr Febbo's report and oral evidence is consistent with Dr Wynn Owen's material. I will not repeat that material except where it relates to the diagnoses, opinions and recommendations of Dr Febbo.
Contrary to what he has told others, Mr Garrett told Dr Febbo that he has had in the region of four significant relationships with adult women. These included the two I have already described as well as two other relationships which lasted for a period of months.
Mr Garrett told Dr Febbo that when he was released from prison he planned to live in the bush, alone.
Dr Febbo diagnosed paedophilia, alcohol abuse/dependence and a history of significant depressive symptoms. He said that there was evidence for severe personality pathology with an antisocial personality disorder, in addition to paranoid, schizoid and avoidant personality traits. Dr Febbo also noted that Mr Garrett was HIV positive, had a past history of physical and sexual abuse, had a history of social isolation, a lack of social support and was stressed about his current legal situation. He assessed his global functioning as 60 with 'moderate symptoms'.
In order to conduct his risk assessment, Dr Febbo used the Static‑99, the Hare Psychopathy Check List - Revised (PCL‑R) and the RSVP. In addition, he employed the Historical, Clinical, Risk‑20 (HCR‑20).
Dr Febbo noted that Mr Garrett's total score on the Static‑99 placed him in the high risk category. Dr Wynn Owen made the same finding.
Dr Febbo gave Mr Garrett a prorated total score of 28.4 points out of a possible 40 points on the PCL‑R. According to the PCL‑R manual this score places Mr Garrett at the 76 percentile when his score is compared to those based on a pulled sample of 5,408 male offenders. Dr Febbo said that put another way only 24% of offenders are more psychopathic than he is. A score of 30 points or higher out of 40 is the traditional cut off used to diagnose psychopathy. Dr Febbo noted that Mr Garrett's score related to interpersonal and affective features of psychopathy was particularly high at 14 out of 16 placing him around the 95th percentile. In contrast, his score on the social deviance scale placed him at a percentile of around 51.
Using the HCR‑20 and using the traditional categories of low, moderate and high risk, Mr Garrett's final risk judgment using that tool is that Mr Garrett is a high risk of re‑offending
Using the RSVP, Dr Febbo identified many of the same risk factors that Dr Wynn Owen had identified. Dr Febbo remarked on Mr Garrett's degree of anger and resentment with respect to his current predicament, his past history and his treatment compared to other offenders who have offended in a similar manner. By this mechanism Mr Garrett is able to maintain a victim stance and directed much of the responsibility for his offending on to others. It also allows Mr Garrett to set himself apart from other sexual offenders, to absolve himself of responsibility and avoid confronting the seriousness of his deviancy and sexual offending. Coupled with these factors is Mr Garrett's extreme minimisation of his sexual offending.
In conclusion, Dr Febbo states that Mr Garrett is at a high risk of committing a serious sexual offence following release into the community. Dr Febbo identified treatment that would reduce the risk of re‑offending to a more manageable level. His view is that these treatments need to be employed prior to release into the community. Mr Garrett requires relatively intensive individual psychotherapy to begin addressing his sexual re‑offending. He then needs to be reassessed and reconsidered for the ISOTP or the sex offender deniers programme. Mr Garrett needs to be treated for his apparent depression and, given his long history of alcohol abuse and its contribution to his offending, his alcoholism needs to be addressed before his release.

Any other medical, psychiatric, psychological or other assessment relating to the Mr Garrett

I have already referred to the most relevant medical and psychological assessments of Mr Garrett.

Information indicating whether or not Mr Garrett has a propensity to commit serious sexual offences in the future

I assume that the legislature has used the word 'propensity' in its ordinary meaning; that is, to have an inclination or tendency to do something.
On the one hand, Mr Garrett has only been convicted of three distinct episodes of sexual offending. Further, he expresses a desire not to re‑offend in a similar manner in the future and he believes that he can avoid doing so by staying away from alcohol and children. Despite this, there are several matters which cause me to find that Mr Garrett has a propensity to commit serious sexual offences in the future. These include the seriousness of his most recent sexual offending, his persistent sexual interest in adolescent and prepubescent children, his alcoholism which remains untreated, his lack of viable plans for his future, his psychiatric diagnoses and his lack of treatment to date for his psychiatric illnesses and social dysfunction.
It is also of concern to me that Mr Garrett has been, and is, inconsistent and, in the face of the objective evidence, irrational about issues such as whether or not he has a sexual attraction to children and the extent to which he has put that sexual attraction into effect. These characteristics indicate to me that he has no effective coping strategies should he have the opportunity to offend in the future.

Whether or not there is any pattern of offending behaviour on behalf of the respondent

Both Dr Wynn Owen and Dr Febbo addressed the issue of the nature of Mr Garrett's likely future offending based, in part, on the nature of his past offending.
Whilst there are marked differences in Mr Garrett's sexual offending to date, there are some common characteristics. First, Mr Garrett has always offended alone. Secondly, his offending has always been in the context of his abuse of alcohol. Thirdly, his offending has always been with adolescent or prepubescent males. Fourthly, his offending has usually included taking, or wanting to take, sexually explicit photographs of the victims, whilst they are naked. Fifthly, his offending has involved apparently befriending his victims and, by that means, persuading, or trying to persuade, them to go with him to a private place. Sixthly, the offending has not involved deliberate physical harm to the victims. Seventhly, the offending has involved more serious sexual offending such as masturbatory behaviour and penetration offences, if the opportunity has presented itself.

Any efforts by Mr Garrett to address the causes of his offending behaviour, including whether he has participated in any rehabilitation programme

I have referred to two programmes which Mr Garrett completed whilst in custody. It is clear that neither of these programmes were significantly successful in reducing his risk of re‑offending. This is partly because of the nature of his involvement in the programmes and partly because of the subject matter of them. There is evidence that Mr Garrett has attended Alcoholics Anonymous in the past but is not currently doing so and has no plans to do so in the future.
Mr Garrett claims to have made efforts to stay away from alcohol whilst in the prison system. He also has expressed his plans to stay away from alcohol, licensed premises and children on his release. However, he has done little, if anything, whilst he has been in custody, to rehabilitate himself or plan for an offence free life in the community, so as to increase the chances that he will be able to put these intentions into effect once released into the community.

Whether or not Mr Garrett's participation in any programme has had a positive effect on him

I have already dealt with the effect of Mr Garrett's participation in programmes under the previous heading. Whilst I hope that his participation in the programmes to which I have referred has had a positive effect on him, there is no evidence before me that they are likely to have significantly reduced his risk of re‑offending.

Mr Garrett's antecedents and criminal record

Mr Garrett's first convictions for non‑sexual offending were recorded prior to his conviction for the murder of his father. His offending behaviour has continued, unabated, since that time and has only disappeared during the periods in which he has been in custody. The offences in 2002 indicate to me that the seriousness of Mr Garrett's offending is escalating.
Further, Mr Garrett's social history, whilst tragic, has resulted in him being socially dysfunctional and without community support.

The risk that if Mr Garrett were not subject to a continuing detention order or a supervision order that he would commit a serious sexual offence

I find that Dr Wynn Owen and Dr Febbo are credible and reliable witnesses. They have the necessary expertise to provide helpful risk assessments in respect of Mr Garrett. As Dr Febbo said in evidence, their opinion about Mr Garrett are consistent. Based on their evidence and my own assessment of Mr Garrett's risk factors, I am of the opinion that if Mr Garrett is not subject to a continuing detention order or a supervision order there is a significant risk that he will commit a serious sexual offence in the future.
In coming to this opinion I have taken into account that some of Mr Garrett's previous sexual offending would not qualify as serious sexual offending as defined in the Act. There is a greater risk that he will commit sexual offences of a broader kind than there is a risk that he will commit a serious sexual offence. Despite this, based on the risk factors which the psychiatrists and I have identified, I am of the opinion that there is a significant risk that he will commit serious sexual offences in the future.

The need to protect members of the community from that risk

Mr Garrett's likely victims are children. The victim of the 2002 offences was an 8‑year‑old child who was not only the subject of serious sexual assaults but was also kept away from his mother in an isolated place for a significant period of time. There is an obvious need to protect the respondent's likely victims from the risk that he will commit serious sexual offences in similar circumstances in the future.

The potential consequence for an order under the Act for Mr Garrett

Any order under the Act will have a significant impact on Mr Garrett. Mr Garrett has already been in custody for seven years and he is clearly straining under the constraints of his current sentence. He feels that he has been wrongly imprisoned and yearns to be released. He is also HIV positive and there is a risk that imprisonment will increase the chances of him developing further symptoms of his disease. Although there is nothing to indicate that his medical needs cannot be met in prison.
On the other hand, Mr Garrett does not have significant ties with people in the community, the further separation from whom would cause him particular stress.

The type of sexual offence which Mr Garrett is likely to commit

The pattern of offending which Mr Garrett has displayed in the past is likely to be repeated. There is a real risk that the escalation in the seriousness of offending that has been shown between the 1993 and 2002 offences will continue.

Conclusion as to whether there is an unacceptable risk that if Mr Garrett were not subject to a continuing detention order or a supervision order, he will commit a serious sexual offence

Mr Garrett's counsel submitted that whilst Mr Garrett did not concede that he was a serious danger to the community, I probably would not have much difficulty in making this finding based on the evidence and the psychiatric reports. Thus, no specific submissions were made to me as to why I should fail to find that the DPP had proved its case in this respect. Consequently, I have made a thorough assessment of the evidence and given full consideration to the opinions of Dr Wynn Owen and Dr Febbo before making my decision in respect to this issue.
After considering all the evidence and in particular the reports of Dr Wynn Owen and Dr Febbo, I conclude that the DPP has proven that there is an unacceptable risk that if Mr Garrett is not subject to a continuing detention order or a supervision order he will commit a serious sexual offence. The risk is unacceptable because of the likelihood of Mr Garrett committing a serious sexual offence and the likely age of his victim or victims. Thus, I find that Mr Garrett is a serious danger to the community.

Whether a continuing detention order or supervision order ought to be made

The evidence before me is to the effect that Mr Garrett may be amenable to appropriate treatment. Such treatment in respect to his alcohol abuse, paedophilia and antisocial personality disorder may reduce the risk of him re‑offending to an acceptable level to enable him to be released at a point in the future on a supervision order. However, such treatment has not been administered to date. The issue for me is whether such treatment can be undergone in the community at this point in time or whether Mr Garrett should remain in custody pending the completion of treatment, programmes and pending an assessment of whether they have been successful or not.
The evidence which I received from Ms Ballantyne, a psychologist with the dangerous sexual offender team in the Department of Corrective Services, is that one‑to‑one counselling can be provided to Mr Garrett both in custody and in the community. However, there is no ISOTP or sex offender deniers programme available in the community. They are only available in a custodial setting. The community sexual offender treatment programme is not regarded as being suitable for Mr Garrett because it is too short and is not a residential programme. It is more suitable for offenders who have undergone the ISOTP and are on a maintenance programme or offenders with a less serious offending history than Mr Garrett.
I also take into account that there is a correlation between Mr Garrett's alcohol abuse and his serious sexual offending. Thus, there needs to be an appropriately tailored programme to address his alcohol abuse in conjunction with an ISOTP or sex offender deniers programme. This needs to be completed before there is a further consideration of Mr Garrett being released into the community.
I also heard evidence from Jeffery Bell, a senior community corrections officer, in respect of Mr Garrett's plans should he be released into the community. It is clear from Mr Bell's evidence and report and the other evidence before me that Mr Garrett does not have any viable residential options in the community. Neither does he have any viable plans which will enable him to avoid offending in the future. Mr Garrett's plans to remove himself from the metropolitan area, whilst superficially attractive, will deprive him of any support and the ability of supervision authorities to appropriately monitor his conduct and alcohol use. It will also remove him from nearby medical treatment. Regrettably, in the short to medium term it is unlikely that he will be able to gain public housing in Albany or Bunbury, two regional centres where he said he would like to live.
In the absence of viable plans for his future, including his place of residence, and treatment to reduce his risk of serious sexual offending, I am of the view that the community will only be protected if I make a continuing detention order.