The State of Western Australia v McGarry
[2019] WASC 46
•22 FEBRUARY 2019
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
CITATION: THE STATE OF WESTERN AUSTRALIA -v- MCGARRY [2019] WASC 46
CORAM: HALL J
HEARD: 11 FEBRUARY 2019
DELIVERED : 11 FEBRUARY 2019
PUBLISHED : 22 FEBRUARY 2019
FILE NO/S: DSO 35 of 2008
BETWEEN: THE STATE OF WESTERN AUSTRALIA
Applicant
AND
MICHAEL ALEXANDER MCGARRY
Respondent
Catchwords:
Dangerous sexual offenders - Review of continuing detention order - Extent to which the risk of re-offending reduced by anti-libidinal medication - Detention order affirmed
Legislation:
Dangerous Sexual Offenders Act 2006 (WA), s 33
Result:
Detention order affirmed
Representation:
Counsel:
| Applicant | : | B Meertens |
| Respondent | : | D McKenzie |
Solicitors:
| Applicant | : | Director of Public Prosecutions (WA) |
| Respondent | : | David McKenzie |
Case(s) referred to in decision(s):
Corbett v The State of Western Australia [No 6] [2019] WASC 37
Director of Public Prosecutions (WA) v McGarry [No 2] [2009] WASC 287
Director of Public Prosecutions (WA) v McGarry [No 4] [2012] WASC 349
Director of Public Prosecutions (WA) v McGarry [No 6] [2013] WASC 459
Director of Public Prosecutions (WA) v McGarry [No 7] [2015] WASC 32
Director of Public Prosecutions (WA) v McGarry [No 8] [2016] WASC 82
Director of Public Prosecutions (WA) v McGarry [No 9] [2016] WASC 306
HALL J:
On 11 February 2019, the hearing of this review of the continuing detention order in respect of Mr McGarry was concluded. At the end of the hearing, I affirmed the continuing detention order and gave brief oral reasons. I said that more detailed written reasons would be published in due course.
Summary
This was a review of a continuing detention order made under the Dangerous Sexual Offenders Act 2006 (WA) ('DSO Act') by Jenkins J on 24 September 2009.[1] There have been four periodic reviews of that detention order.[2] The last review was a special review conducted on the application of Mr McGarry.[3] At the conclusion of that review, I declined to rescind the continuing detention order. The next periodic review was due on 12 September 2018.
[1] Director of Public Prosecutions (WA) v McGarry [No 2] [2009] WASC 287.
[2] Director of Public Prosecutions (WA) v McGarry [No 4] [2012] WASC 349; Director of Public Prosecutions (WA) v McGarry [No 6] [2013] WASC 459; Director of Public Prosecutions (WA) v McGarry [No 7] [2015] WASC 32; Director of Public Prosecutions (WA) v McGarry [No 8] [2016] WASC 82.
[3] Director of Public Prosecutions (WA) v McGarry [No 9] [2016] WASC 306.
On 12 July 2018, the State filed an application for a review, which was set down for hearing on 25 September 2018. In circumstances that will be explained later in these reasons, the hearing commenced on 25 September 2018 and was then adjourned and concluded on 11 February 2019.
On this review, Mr McGarry did not dispute that he remained a serious danger to the community if not detained or placed on a supervision order. The expert evidence supported that conclusion. The issue for determination was whether Mr McGarry could be released into the community on a supervision order with conditions that would adequately protect the community from the risk that he would commit further serious sexual offences.
It was submitted on behalf of Mr McGarry that the risk of reoffending had been ameliorated by treatment with anti‑libidinal drugs. However, evidence at the hearing showed that despite the drugs being effective in lowering Mr McGarry's level of testosterone, his sexual thinking was largely unaffected. There was also evidence that during the period he was being treated, he had engaged in sexually charged conversations with the young (though adult) daughter of a woman he claimed to be in a relationship with. These conversations included soliciting photographs from her, including photographs of her as a child. This, and other, evidence put into significant doubt whether the medication had been successful in reducing the risk of further offending to an acceptable level.
There was also evidence that suggested that Mr McGarry's ability to comply with the conditions of an order were constrained by his negative attitude to the need for supervision.
For the reasons that follow, I was not satisfied that Mr McGarry would comply with the standard conditions of a supervision order, or that any conditions would adequately protect the community from the risk that he would commit further serious sexual offences. Accordingly, I affirmed the detention order.
Relevant principles
On any review, the court must determine whether a person who is the subject of a continuing detention order remains a serious danger to the community.[4] 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 affirm 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.[5] I have recently set out the law and principles relevant to a review in Corbett v The State of Western Australia [No 6].[6]
[4] DSO Act s 33(1).
[5] DSO Act s 33(1)(b).
[6] Corbett v The State of Western Australia [No 6] [2019] WASC 37.
In making a decision as to whether a person who is a serious danger to the community should continue to be detained or released on a supervision order, the paramount consideration is the need to ensure adequate protection of the community.[7] The court cannot make a supervision order unless it is satisfied, on the balance of probabilities, that the person will substantially comply with the standard conditions of the order. The onus of proof in this regard is on the person. The standard conditions of a supervision order are those referred to in s 18(1) of the DSO Act.
[7] DSO Act s 33(3).
Evidence on this review
At the commencement of the hearing of this review on 25 September 2018, the State tendered a book of materials. There was no objection to the tender. The book included the following:
1.the Department of Corrective Services' charge history report for the period 23 September 2016 to 24 July 2018;
2.the Department of Corrective Services' incidents and occurrences report for the same period;
3.the Department of Corrective Services' substance use test results report for the same period;
4.an individual management plan prepared by the Department of Corrective Services and dated 15 May 2018;
5.health records for the period 11 January 2016 to 10 September 2018;
6.a psychiatric report by Dr Peter Wynn Owen dated 17 September 2018;
7.a treatment progress report by Dr Tara Yewers (a senior counselling psychologist with the Department of Corrective Services) dated 22 August 2018; and
8.a community supervision assessment report prepared by Mr Ian Farrall (a senior community corrections officer with the Department of Corrective Services) dated 29 August 2018.
Dr Wynn Owen, Dr Yewers and Mr Farrall gave oral evidence at the hearing and were cross‑examined. An application was then made on behalf of Mr McGarry for the hearing to be adjourned for him to undertake further therapy with anti‑libidinal medication. That application was granted and the hearing resumed on 11 February 2019.
At the resumed hearing, the State tendered a supplementary book of materials. There was no objection to the tender. The supplementary book contained additional information, including:
1.medical records for the period of 4 May 2018 to 30 January 2019;
2.a community business information system record dated 30 August 2018;
3.an addendum psychiatric report by Dr Wynn Owen dated 6 February 2019; and
4.an updated community supervision assessment by Mr Kyle Jarvie (a senior community corrections officer with the Department of Justice) dated 4 February 2019.
Dr Wynn Owen and Mr Jarvie gave oral evidence at the resumed hearing. Mr McGarry elected not to give or call any evidence.
I will not seek to summarise all of the evidence at the hearing. The most significant evidence came from Dr Wynn Owen, Dr Yewers, Mr Farrall and Mr Jarvie, and that will be summarised below.
Ian Farrall
Mr Farrall is a senior community corrections officer with the community offender monitoring unit of the Department of Justice. For the purposes of preparing his report, he interviewed Mr McGarry on 26 July 2018, 13 August 2018 and 16 August 2018.
At the last review, concerns had been raised regarding the effectiveness of the anti‑libidinal drug, Androcur. At that review, medical evidence indicated that a transfer to an alternative drug, Depo‑Provera, may reduce fluctuations in testosterone levels. Mr Farrall reported that Mr McGarry commenced Depo‑Ralovera[8] on 27 March 2017 at 150 mg once every three weeks. He was also prescribed an anti‑depressant medication on 29 December 2017. This latter medication was also recommended as having potential anti‑libidinal effect.
[8] Depo-Ralovera is the commercial name for another drug that is essentially the same as Depo-Provera.
Prior to the commencement of the Depo‑Ralovera, Mr McGarry recorded a testosterone level of 17.4 nanomoles per litre on 7 March 2017. As noted at the last review, the normal range for testosterone is between 10 and 35 nanomoles per litre.
After commencing Depo‑Ralovera, Mr McGarry had regular blood tests and recorded testosterone levels as follows:
1.27 April 2017: 6.4 nanomoles per litre;
2.26 May 2017: 14.9 nanomoles per litre;
3.28 June 2017: 8.3 nanomoles per litre;
4.28 July 2017: 6.6 nanomoles per litre;
5.25 August 2017: 7.9 nanomoles per litre;
6.13 September 2017: 8.3 nanomoles per litre;
7.6 October 2017: 7.3 nanomoles per litre;
8.27 October 2017: 9.4 nanomoles per litre;
9.17 November 2017: 8.4 nanomoles per litre;
10.8 December 2017: 8.9 nanomoles per litre;
11.29 December 2017: 5.5 nanomoles per litre;
12.19 January 2018: 6.4 nanomoles per litre;
13.16 February 2018: 8.6 nanomoles per litre;
14.2 March 2018: 9.5 nanomoles per litre;
15.23 March 2018: 9.1 nanomoles per litre;
16.13 April 2018: 7.1 nanomoles per litre;
17.4 May 2018: 10.9 nanomoles per litre;
18.25 May 2018: 8.0 nanomoles per litre;
19.20 June 2018: 8.5 nanomoles per litre; and
20.30 July 2018: 8.4 nanomoles per litre.
When interviewed on 6 August 2018, Mr McGarry provided Mr Farrall with a four‑page summary of his perspective of the impact of the medication. In that summary, he stated that at a level of 8.1, he had no spontaneous or morning erections, was not responding to triggers or sexually arousing stimuli and that he was masturbating infrequently. He stated that when masturbating, his thinking always included DM, a woman with whom he had commenced a relationship whilst he was in prison. More will be said about this relationship shortly.
Mr McGarry was transferred to a different prison on 9 December 2016 and is currently employed in a prison workshop. Performance reports indicate that he is punctual, works to a high standard and communicates well with other workers and officers. Since his last review in 2016, Mr McGarry has not incurred any incident reports or losses of privileges. He has only been subjected to one urinalysis test in that period, which returned a negative reading to alcohol and illicit substances.
In regards to accommodation, Mr Farrall reported that Mr McGarry had engaged with Uniting Care West and had been assessed as suitable to participate in the Dangerous Sexual Offenders Supported Accommodation Program. Potential accommodation had been identified and assessed by the Western Australian Police. The accommodation was in the Perth metropolitan area and, as was to be expected, within 2 km, there were a number of shopping precincts, recreational areas, churches, schools, childcare centres, restaurants and bus stops. It was considered that such locations could be managed by being subject to global positioning system exclusion zones.
In regard to employment, Mr McGarry has written letters to a variety of organisations with limited responses. He has acknowledged that his history may restrict his employment opportunities. However, he has expressed a willingness to engage in any type of approved employment, with a preference for truck driving contract work, landscaping or traffic management. His long‑term goal is to secure fly‑in/fly‑out employment. If he is unable to obtain employment, he would consider establishing a small business utilising some of the skills that he has learned in prison.
In regard to community supports, if released, Mr McGarry will have some support from Uniting Care West. He also has some family members with whom he has maintained contact. He has also established a relationship with a mature woman who resides in the Philippines, who will be referred to as DM, and her 21‑year‑old daughter, JM. He commenced writing to DM on 27 January 2015 and commenced Skype sessions on 30 January 2017. He has also been in regular telephone contact with DM. Prison records indicate that Mr McGarry commenced writing letters to JM on 27 November 2015 and has also been in regular telephone contact with her. He regularly forwards money to DM and, in particular, provides money for JM's education. He told Mr Farrall that DM was seeking approval from immigration authorities to travel to Australia to visit him and that this could occur in October 2018.
Mr Farrall spoke to DM on 16 August 2018. She said that she thought Mr McGarry had made mistakes in the past, but that he was committed to leading a changed life. She said that she was aware of his history, but was 'shocked' by his offences, though she did not provide any detailed information as to her understanding of the nature of those offences. She did not appear to have knowledge of the proposed conditions of any supervision order, including electronic monitoring. She said that it was her intention to travel to Australia to further develop the relationship, including if Mr McGarry remains in custody. As will become apparent later in these reasons, the visit in October 2018 did not transpire.
In his report, Mr Farrall said that attempts to contact one of Mr McGarry's victims, a daughter, had been unsuccessful. However, in oral evidence, he said that, after writing the report, he received contact from the victim through the mediation unit. The victim had requested that the conditions on any supervision order include requirements that any face‑to‑face contact only occur at her initiation and that any letters from Mr McGarry to her children were to be sent to her.
Dr Peter Wynn Owen (25 September 2018)
Dr Wynn Owen is a consultant forensic psychiatrist who has assessed Mr McGarry for the purpose of reviews of the detention order on previous occasions. For the purposes of this review, he interviewed Mr McGarry on 5 September 2018. He also spoke with Mr Farrall and with Mr McGarry's treating psychologist, Mr David Summerton.
At interview, Mr McGarry reported that he currently has a low libido, almost no sexual thinking and that he only engages in sexual fantasy when masturbating, but that the urge to do so was very infrequent. He said that when masturbating, his only thoughts were of DM and that he would look at a picture of her. He admitted to a sexual attraction to girls aged 12 to 14 years, but stated that he did not currently think about girls, only about DM. He reported that he did become aroused frequently during contact by telephone and Skype with DM. He also disclosed that, on one occasion, he had asked where DM's daughter was and when told that she was in the shower he wondered about how she looked naked.
Dr Wynn Owen asked Mr McGarry about a six‑month period when he was not taking any androgen suppressing medication. He said that during this time, he noticed an increase in his libido and sexual thinking. However, he said that he did not become fixated on particular individuals and believed that this was because he was in a relationship with DM. Dr Wynn Owen challenged him in this regard by noting that Mr McGarry had been in relationships when he had committed some of the past offences. In response, he said that his previous attitude had been that 'the grass is always greener', which he explained meant that he would always think that sexual contact with a new object of his desire would be better than the person he was currently in a relationship with. He said that he was now aware of this tendency and this awareness had enabled him to address his own thinking.
Mr McGarry reported that he was currently receiving a hormonal injection every three weeks and a serotonin‑specific reuptake inhibitor (SSRI) anti‑depressant. He reported being sensitive to the effects of the hormonal injection and said that he felt different to when his testosterone levels were close to the normal range.
Dr Wynn Owen noted that since recommencing anti‑androgen medication in 2017, Mr McGarry's testosterone levels had indicated a degree of suppression, with a range of between 5.5 to 10.9 nanomoles per litre over the previous 12 months. He said that effective suppression, that is, testosterone levels equivalent to males who have undergone orchidectomy (surgical castration), is currently regarded by experts as being 2 nanomoles per litre or less. This figure has been revised in more recent years from a previously agreed level of 5 nanomoles per litre or less.
Mr McGarry reported some side effects, including osteoporosis and enlarged breasts. He was, however, prepared to continue taking the medication, including the SSRI and was prepared to increase the dose rate if that was recommended. The competing risks and benefits were discussed with him.
Dr Wynn Owen made a risk assessment utilising the Static‑99R Test, the PCL‑R (Psychopathy Checklist) and the RSVP (Risk for Sexual Violence Protocol) Guide. The nature and content of these tools have been referred to in previous judgments. It is only necessary here to refer to the results of the current testing.
Mr McGarry's total score on the Static‑99R Test placed him into risk level IVb or the 'well above‑average risk' of being charged or convicted of another serious sexual offence. This score indicates a likelihood of sexual reoffending of 27.2%, meaning that of 100 offenders with the same score, 27 would commit another sexual offence within five years of release. A repeat assessment of the PCL‑R Test was not undertaken, but the previous assessment of 27 is slightly lower than the cut‑off defining psychopathy. However, this score does indicate a high level of psychopathy, noting that scores of 25 and above are considered to indicate psychopathy in some European jurisdictions. In relation to the RSVP, Dr Wynn Owen considered a number of static and dynamic risk factors including psychological adjustment, mental disorder, social adjustment and manageability. His conclusion in that regard was that Mr McGarry's risk of future serious sexual offending is higher than average. This finding was based on acknowledged sexual deviancy, the Static‑99R score, the presence of anti‑social personality disorder and the high level of psychopathy indicated by the PCL‑R.
In the summary of his report, Dr Wynn Owen stated that Mr McGarry's self‑report is that his sexual thinking has been reduced, but not completely suppressed by the medication, suggesting some reduction of risk. He also noted that there had been some progress in therapy and that Mr McGarry was more open in disclosing his sexual preferences and current sexual thinking. He expressed some concern that Mr McGarry had not fully disclosed his offending to DM and that he continued to have an attitude of resentment to the application of the DSO Act to his case.
In oral evidence, Dr Wynn Owen was asked whether Mr McGarry could still go on having sexual fantasies even if his physical arousal had been suppressed by anti‑libidinal medication. He said that physical arousal and underlying sexuality, that is, sex drive and sexual thinking, are not completely the same thing. Dr Wynn Owen was concerned that Mr McGarry's account of his sexual thinking during the interview did not appear to suggest that suppression of the libido had been effective notwithstanding the medication. He agreed that this may mean that Mr McGarry is continuing to have an active sexual fantasy life.[9]
[9] ts 962.
Whilst anti‑libidinal medication is not the only component of the treatment, in Dr Wynn Owen's view, it is one of the cornerstones of risk management. The Depo‑Ralovera injections at 150 mg in three‑weekly periods had not been effective in reducing the testosterone levels down to 5 nanomoles per litre or less. On 31 September 2018 the dose rate was increased to 150 mg per fortnight. The greatest level of testosterone suppression was achieved in November 2018, one test result being 2.9 nanomoles per litre or less. However, Dr Wynn Owen stated the two results in January 2019, 5.0 and 5.1 nanomoles per litre, indicate a lesser degree of testosterone suppression. In his view, it was appropriate to consider increasing the dose rate in an effort to achieve lower testosterone levels. He believed that it would take nine weeks for the levels to reach a steady state. One of the reasons for this is that, initially, the body responds to an increased dose rate by increasing the production of the hormone. Over time, this metabolic effect levels out.
Dr Tara Yewers
Dr Yewers is a senior counselling psychologist with the Department of Justice. She prepared a report for the purposes of the review on Mr McGarry's treatment history and progress.
Since the last review, Mr McGarry has continued attending individual counselling sessions with his treating psychologist, Mr David Summerton. Mr Summerton has described Mr McGarry as actively participating in therapy and demonstrating an openness to feedback and to challenging his assumptions. Initially, there had been focus on Mr McGarry's view that the process under the DSO Act was unfair because there were things that were outside of his control. He was fixated on his anti‑libidinal medication and the resultant testosterone levels. He was adamant on achieving a level which he believed would be acceptable to the judge presiding over the case.
Counselling also addressed Mr McGarry's attitude to community supervision and his propensity to view some of the conditions that are proposed as unreasonable. According to Mr Summerton, Mr McGarry has only recently developed an appreciation that such an outlook is likely to undermine and be distracting from compliance with an order. He has apparently recognised this tendency to justify his behaviour and has identified a need for transparency and genuineness on his part. He has also identified the importance of him seeking ongoing clarification about the conditions in order to ensure that everyone is clear as to what is expected. He had expressed his intention to comply with supervision requirements, but Mr Summerton was of the view that he was still likely to experience challenges in this area.
Mr Summerton has also discussed Mr McGarry's relationship with DM and his plans for the future. Overall, Mr Summerton considered that Mr McGarry has a sound awareness of the factors relating to his offending and has relevant self‑management strategies in place. However, despite the gains, Mr Summerton was of the opinion that Mr McGarry continues to have areas that he is prone to overlooking and this reflects a lack of foresight. One example given was the lack of thought given to the possibility of him developing a sexual interest in DM's daughter. Mr McGarry initially dismissed this possibility, but ultimately accepted that there was potential for him to become attracted to DM's daughter, to retreat into fantasy and secretive thoughts and possibly engage in covert sexual activity, thereby undermining his relationship with DM.
Dr Yewers stated that Mr McGarry has continued to have a sound working relationship with Mr Summerton. This has included a willingness to discuss and address issues relevant to his risk and his offending. He has demonstrated an openness to being challenged on his thinking and behaviour and to considering alternate viewpoints. Dr Yewers said that it was apparent that Mr McGarry continued to have areas that will benefit from continuing therapeutic attention. There is a need for vigilance and ongoing examination, particularly around issues that Mr McGarry seems to consider to be inconsequential. This was evident in comments that he made, for example, about DM's daughter.
Dr Yewers stated that Mr McGarry's level of sexual preoccupation is difficult to assess and largely reliant on his self‑report. He has reported a decreased level of sexual activity, libido and preoccupation as a result of his current medication regime. However, there remain indications of some sexual preoccupation as evidenced by his thoughts about DM's daughter. Monitoring of his sexual interest and preoccupation will be important if he is released.
Dr Yewers was of the opinion that psychological treatment will be a crucial component of Mr McGarry's management should he be granted a supervision order. This will provide an avenue for his risk management to be monitored and adjusted as circumstances arise. His lack of foresight and lack of appreciation of the potential for certain thoughts and actions to impact on his risk, are problematic.
Kyle Jarvie
At the conclusion of the hearing on 25 September 2018, an adjournment was sought on behalf of Mr McGarry so that he could seek an adjustment in his dose rate of the anti‑libidinal medication, as recommended by Dr Wynn Owen. Proceedings were initially adjourned to 15 October 2018 so that Mr McGarry could consult with a doctor and to determine whether a doctor was willing to prescribe an increased dose. That occurred, and the dose rate of Depo‑Ralovera was increased to 150 mg injections at a fortnightly frequency. The SSRI medication was also increased as from 28 November 2018 to 100 mg.
Mr Jarvie is a senior community corrections officer with the Department of Justice. He prepared an updated community supervision assessment report providing additional information regarding the medication regime, community supports and strategies for managing the risk of future offending.
Mr Jarvie reported that seven further blood tests had been completed since the last court appearance. Those tests and the results were as follows:
1.24 October 2018: 4.7 nanomoles per litre;
2.7 November 2018: 4.2 nanomoles per litre;
3.21 November 2018: 2.9 nanomoles per litre;
4.5 December 2018: 3.2 nanomoles per litre;
5.2 January 2019: 5.1 nanomoles per litre;
6.16 January 2019: 5.0 nanomoles per litre; and
7.30 January 2019: 4.7 nanomoles per litre.
When interviewed by Mr Jarvie on 31 January 2019, Mr McGarry expressed some disappointment at the levels and suggested that they may not be sufficient to satisfy the court. He was asked about any noticeable impacts of the anti‑libidinal medication and stated that he had been unable to perceive any changes since the increase in frequency of the treatment. He said that he had been unable to notice a difference in his behaviour and thoughts. He continued to fixate on achieving a number for his testosterone levels rather than a change in his fantasies, libido or behaviour.
Mr Jarvie reported that Mr McGarry continued to be in contact with DM by telephone on a daily basis and by Skype video on a weekly basis. She remains living in the Philippines. Mr McGarry said that a planned visit by DM in the later part of 2018 did not eventuate due to immigration issues. He expressed confidence that, if he is released, he will be able to secure her travel to Australia. He said that he would seek residency in Australia for DM through a partner or spousal visa, which he would assist her in obtaining once he is released.
Departmental records also confirmed contact between Mr McGarry and DM's daughter, JM. The details of these conversations will be referred to in the summary of the further evidence given at the resumed hearing by Dr Wynn Owen. Mr Jarvie noted that JM has not accepted telephone calls from Mr McGarry since early January 2019. Mr McGarry maintained that there was nothing inappropriate about his relationship with JM and said that she has frequently sent photos to him of outfits that she was wearing.
Mr Jarvie also reported that Mr McGarry had recently written letters to the sister of another prisoner. Mr McGarry claimed that the purpose was to assist the woman to increase her literacy skills. He said that he had identified himself as a child sex offender from the commencement of the relationship and noted that he was unable to have any contact with children. When asked about the content of the correspondence, Mr McGarry admitted that the letters were sexually explicit in nature, but had become less sexual recently due to him discovering that the woman had a partner. He said that he had been initially misinformed about this. He said he was also aware that the woman had children in her care, but insisted that he had no intention of continuing the relationship in the community if released. Investigation revealed that the woman is the mother of two female children aged approximately five and eight years old. Mr McGarry said that he believed the woman could assist in him obtaining employment and that he was open to meeting her for a cup of coffee if released. However, information from Department records indicates that he had intentions of pursuing an intimate relationship with her in the community.
Mr Jarvie discussed possible supervision order conditions with Mr McGarry. Overall, Mr McGarry said that he had no issue with the conditions, but he maintained a negative opinion of the Dangerous Sexual Offender legislation. He questioned the interpretation of certain conditions, such as what would classify as a shopping complex, what would be considered a friendship and whether he would need to disclose the use of sex workers or having 'one‑night stands'. Mr Jarvie advised that it was not appropriate for him to deal with hypotheticals and that, if in doubt, he should engage with his case manager.
Dr Peter Wynn Owen (11 February 2019)
Dr Wynn Owen prepared a supplementary report for the purpose of the resumed hearing. For the purposes of that report, he reviewed the blood test results and also interviewed Mr McGarry on 1 February 2019.
At the interview Dr Wynn Owen was in possession of information received from the prison authorities regarding telephone and mail communications by Mr McGarry. Recordings of two telephone conversations between Mr McGarry and DM's daughter were obtained and tendered at the hearing. A further such conversation was not available in recorded form, but a summary was put to Mr McGarry by Dr Wynn Owen and he admitted that the summary was accurate.
In one of the telephone calls, Mr McGarry requested that JM dress in a top he had seen in a pop video and send him a picture of her wearing it. He also referred to other photographs that JM had sent to him, both recent and as a child. He then asked whether she had any photographs of her as a 12 to 14‑year‑old which she could send to him. When asked about this call, Mr McGarry dismissed it as trivial, stating that he often asked both DM and JM to dress up for him and then send pictures. He said that DM was aware that he talked to JM separately at times and she was not concerned about it. He said that he continues to talk separately to JM at least weekly, with the usual topics of conversation being progress with her schooling.
Mr McGarry accepted that, in another conversation with JM, he had asked about her love life and told her that her mother was jealous and that he had told her mother 'I wish I could have two wives and marry both of you'. He had asked her, 'Who is your favourite man?', and told her that he 'would get very jealous if she had a boyfriend because he loves his girl'. When asked about this conversation, Mr McGarry was dismissive, saying that he was just being friendly and that he was primarily interested in DM. He did report that, when DM is unhappy with him, she will say that she hates him and that he quite likes this. He said 'she does get jealous and I push her buttons, I know I shouldn't, I think it's quite fun'.
When further questioned about these conversations, in the context of the financial dependence that both DM and JM have on him, Mr McGarry acknowledged that his request and interactions, even if unwanted by JM, may be difficult for her to refuse. However, he did not accept that his behaviour could be regarded as inappropriate or an abuse of power, though he considered that others might see it that way.
Dr Wynn Owen also asked about the correspondence that Mr McGarry had had with another prisoner's sister. He said that he had ceased the correspondence when he found out the woman was in a current relationship because he considered that it was inappropriate to continue to write to her in the manner that he had been. He did not think anything of the fact that he himself was in a relationship with DM at the time. Information from the prison indicated that, contrary to what he said, he had continued to write to the women.
Dr Wynn Owen noted the increase in the anti‑libidinal medication and the greater level of testosterone suppression. This appeared now to have levelled out at approximately 5 nanomoles per litre. Dr Wynn Owen considered that this was less than desirable and he recommended increasing the frequency of injections to weekly in an effort to reduce the level further. However, he noted that the anti‑libidinal medications were being prescribed to reduce libido and, in particular, the frequency, intensity and intrusiveness of sexual thinking, in part to directly reduce the risk of sexual offending by removing one of the principal drives to his offending, but also, and more importantly, to enable Mr McGarry to engage in therapy. The importance of this is that hormonal anti‑libidinal medication is time‑limited by the serious side effects, some of which are potentially life‑threatening. Such therapy cannot be part of any long‑term risk management strategy.
Dr Wynn Owen concluded that it was clear that Mr McGarry's testosterone levels had been more effectively suppressed than in the past. Notwithstanding this, Mr McGarry's behaviour since he was last assessed appeared to indicate that there has been no suppression of libido. This was confirmed at the interview by Mr McGarry, who acknowledged that, while he has experienced a range of physical effects on his sexual functioning, his thinking had not changed. Dr Wynn Owen suggested that an effect may be achieved with a change to dose and/or frequency of the medication. However, the severity of side‑effects would be increased. He stated that it was possible that anti‑libidinal medication, at any dose, would have no effect on the psychological components of Mr McGarry's libido. Whether or not the medication is increased, Mr McGarry's reoffending risk will, sooner or later, have to be managed through means other than medication.
In oral evidence, I asked Dr Wynn Owen to what extent the risk of further serious sexual offending is mitigated by being on the anti‑libidinal drugs given what he now knew about Mr McGarry's recent sexual thinking. He said that the removal of physical sexual functioning does have an impact on overall sexual thinking and sexualisation. However, he said it was of concern that Mr McGarry has undergone a great deal of therapeutic input while continuing to be preoccupied by sexual thoughts. This means that only a small component of reduced risk is coming from the anti‑libidinal medication. Dr Wynn Owen said that it was particularly concerning that Mr McGarry had asked for pictures of JM as a child and lacked self‑awareness of the significance of this request.
Findings
There is no doubt that Mr McGarry remains a serious danger of committing further serious sexual offences if not the subject of detention or a supervision order. The evidence of Dr Wynn Owen regarding the nature and degree of that risk were not disputed.
As I noted on the last review, based on Mr McGarry's history of offending, the risk is that he will commit a serious sexual offence against a young female. The possible victim could be a child, but also extend to girls of 14 to 16 years old. There is no fixed pattern to his offending and this makes predicting specific risk scenarios a difficult task. The risk relates not only to children whom he may be in a familial or domestic relationship with, it extends to children who are strangers and who he has seen only briefly before becoming obsessed with them. His offending is not likely to be opportunistic, rather it could involve significant planning and preparation. The offending could involve the use of psychological coercion as well as physical violence.
The nature of the risk is a serious one and the class of potential victims is very wide. The variety of offending conduct engaged in means that Mr McGarry could be difficult to predict and also, consequentially, difficult to manage. These difficulties are significantly magnified by his proven resistance to management and willingness to breach the terms of supervision, as he has done in the past.
There has been some, but limited, success in the use of anti‑libidinal medication. Increases in the dosage of this medication appear to have resulted in reducing the testosterone levels to a stable of 5 nanomoles per litre. This still remains at a higher level than Dr Wynn Owen believes is desirable, being 2 nanomoles per litre. However, and in any event, the reduction in testosterone levels is not an end in itself. The objective of the medication is to suppress libido and sexual thinking. It is apparent that, notwithstanding the reduction in testosterone, Mr McGarry's sexual thinking has been largely unaffected. Whatever physiological effects there may have been, his sexual thinking has persisted and this is apparent, in particular, in the telephone conversations with JM.
There are two aspects of the telephone conversations with JM that are concerning. Firstly, they reveal that Mr McGarry continues to have sexual thoughts about young females. Whilst JM is aged 21, his sexual interest is evidenced by his request for photographs of her as a 12 to 14‑year‑old. Given his offending profile, the only reasonable inference that can be drawn from this request is that he wanted those photos for his sexual gratification. As Dr Wynn Owen noted, this request was made in a month when Mr McGarry's testosterone levels were at their lowest. Secondly, his lack of appreciation for the significance of these conversations. He dismissed them as being unimportant when asked by Mr Jarvie and Dr Wynn Owen. He appeared to be oblivious as to their significance in respect of his libido and sexual thinking. He failed to appreciate that to engage JM in sexually charged conversations whist he is purporting to have a relationship with her mother is morally transgressive, whether or not the daughter is an adult. He also failed to acknowledge the significance of the power imbalance in circumstances where he is paying for JM's education.
It was suggested in submissions on behalf of Mr McGarry that the fact that he was open and frank when asked about these conversations indicates that he would be capable of being managed in the community. It was suggested that he could be relied upon to be similarly open and frank with a psychologist if released on a supervision order. I do not accept these submissions. It is apparent from the evidence that Mr McGarry did not volunteer the information regarding the conversations, indeed, he failed to appreciate that they had any significance. He did not deny them when they were put to him, but this does not mean that he could be relied upon to reveal such behaviour if it occurred in the community.
It is also apparent that Mr McGarry's attitude to the DSO Act and to any conditions that were to be imposed on him is one, at best, of reluctant acceptance. He continues to have the attitude that the DSO Act is unfair and that he should not be the subject of any conditions. This tends to show that whatever greater insight he appears to have achieved in counselling, he does not accept that his risk of further serious sexual offending needs to be managed. His efforts to seek clarification of possible conditions with Mr Jarvie could be viewed as being motivated by a desire to ensure compliance. However, in light of his past history, there is a significant likelihood that he was seeking to determine the strict boundaries of the conditions. In my view, Mr McGarry is more concerned with the precise meaning of the conditions, rather than with their underlying purpose. That is an attitude that he had at the time of the last breaches and it has persisted.
If the court finds that a person remains a serious danger to the community, it must either affirm the continuing detention order or make a supervision order. In making that decision, the paramount consideration is the need to ensure the adequate protection of the community. In my view, the risk that is presented by Mr McGarry cannot be adequately reduced or guarded against by a supervision order. I am not satisfied, on the balance of probabilities, that he would substantially comply with the standard conditions of a supervision order.
Conclusion
For the reasons I have given, at the conclusion of the hearing on 11 February 2019, I affirmed the continuing detention order.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
KR
Associate to the Honorable Justice Hall22 FEBRUARY 2019
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