ATTORNEY-GENERAL (SA v NICHOLAS MOLLOY [2024] SASC 6

Applicant: ATTORNEY-GENERAL (SA Counsel: MR S RANIERI - Solicitor: CROWN SOLICITOR (SA) Respondent: NICHOLAS MOLLOY Counsel: MR N REDMOND - Solicitor: NORTH EAST LAWYERS Hearing Date/s: 26/10/2023, 18/12/2023 File No/s: SCCRM-23-015871, SCCRM-23-015874 B SUPREME COURT OF SOUTH AUSTRALIA (Criminal: Application) DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment. The onus remains on any person using material in the judgment to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court in which it was generated. ATTORNEY-GENERAL (SA) v MOLLOY [2024] SASC 6 Judgment of the Honourable Justice McIntyre 19 January 2024 CRIMINAL LAW - SENTENCE - SENTENCING ORDERS - ORDERS AND DECLARATIONS RELATING TO SERIOUS OR VIOLENT OFFENDERS OR DANGEROUS SEXUAL OFFENDERS CRIMINAL LAW - SENTENCE - POST-CUSTODIAL ORDERS - OTHER TYPES OF POST-CUSTODIAL ORDERS The applicant seeks an indefinite detention order under s 57 of the Sentencing Act 2017 (SA), or in the alternative that an extended supervision order be made under s 7 of the Criminal Law (High Risk Offenders) Act 2015 (SA). The applicant submits that the respondent is unwilling or incapable of controlling his sexual instincts and that he poses a significant risk to the safety of the community. It is said that this risk will not be substantially ameliorated by an extended supervision order and that, accordingly, it is appropriate to make an order under s 57. The respondent contends that it is inappropriate to make an order under s 57 because he is voluntarily taking anti-libidinal medication, he is willing to consent to an extended supervision order with stringent terms and that this, combined with his National Disability Insurance Scheme (NDIS) plan, will reduce any risk to the community. Held: 1. The Respondent is a person to whom s 57 of the Sentencing Act 2017 (SA) applies. 2. The Respondent is unwilling or incapable of controlling his sexual instincts. 3. It is appropriate, in all the circumstances, to grant the application for an indefinite detention order under s 57 of the Sentencing Act 2017 (SA). 4. The alternative application for extended supervision order dismissed. Criminal Law (High Risk Offenders) Act 2015 (SA) ss 7, 9; Criminal Law Consolidation Act 1935 (SA) s 56; Sentencing Act 2017 (SA) s 57, referred to. -- 1 of 14 -- Hore v The Queen, Wichen v The Queen [2022] HCA Attorney General (SA) v Grosser [2016] SASC 49; Driver v Attorney-General [2022] SASCA 13; Thomas v Attorney General [2019] SASCFC 21, considered. -- 2 of 14 -- ATTORNEY-GENERAL (SA) v MOLLOY [2024] SASC 6 Criminal: Application 1 MCINTYRE J: This is an application by the Attorney-General that the respondent, Nicholas Molloy, be detained until further order under s 57 of the Sentencing Act 2017 (SA) (‘Sentencing Act’) on the grounds that he is incapable of controlling, or unwilling to control, his sexual instincts. 2 In the alternative to this application the Attorney-General has also made an application for an extended supervision order (‘ESO’) under section s 7 of the Criminal Law (High Risk Offenders) Act 2015 (SA) (‘HRO Act’). 3 The respondent does not oppose the making of an ESO but does contest the making of an order for detention under s 57 of the Sentencing Act. 4 For the reasons that follow I consider it appropriate to make an order detaining the respondent under s 57(7) of the Sentencing Act. In those circumstances I dismiss the applicant’s alternative application for an ESO. Background 5 The respondent is 28 years old. He had a traumatic upbringing involving physical, emotional, and sexual abuse from a young age.1 He has a number of disabilities and mental health issues and, when in the community, is unable to live independently. The respondent has been convicted and sentenced for offences of a sexual nature, specifically two occasions of assault with intent to commit rape and one occasion of indecent assault. 6 In June 2020, the respondent was residing at a disability support facility and the victim was one of four overnight shift workers. On the night of 20 June 2020, the respondent left his accommodation and made his way to the office area where the victim was working. She asked the respondent who his support worker was and what he was doing at the office. The respondent did not answer the victim’s questions. The victim left the office and went to the kitchen to retrieve her mobile telephone to call another support worker. The respondent followed her to the kitchen and eventually pushed himself against her and firmly placed his hand around her neck. The respondent then dragged her back toward the office, threw her onto the carer’s bed in the office and fell on top of her. The respondent loosened his grip enough for the victim to get out of his hold by which time another resident was standing at the door, the victim having earlier called for help. The victim was able to push the respondent out of the room and lock the doors. During police interview following this incident the respondent admitted that he felt sexually aroused that night and intended to rape the victim. 1 Exhibit A6 at [8.1]. -- 3 of 14 -- [2024] SASC 6 McIntyre J 2 7 On 9 December 2019 another victim was walking along a road in Murray Bridge. The respondent approached her from behind and slapped her on the buttock. The victim challenged him, and the respondent returned home. The respondent did not know the victim. This is the indecent assault. 8 In July 2014, the respondent committed a similar offence to that of his 20 June 2020 offending. He was living at Disability SA Housing accommodation. He assaulted a female residential care worker with the intention of raping her. 9 In 2015 the respondent was convicted of several offences including offences of violence and two aggravated indecent assaults. In each case, the circumstance of aggravation was that the victim was a care worker. Another offence involved threats to kill a care worker. 10 Prior to the respondent’s imprisonment for the June 2020 offending, he engaged in sexually deviant behaviour that was not the subject of criminal charges. This included episodes of sexual aggression, masturbating in public places viewing adult pornography of a violent nature hiding in bushes near female staff cars and threatening to sexually assault them, leering at females, and talking about sexual themes in a perverse and loud manner. 11 The respondent was sentenced to a period of imprisonment in the District Court for the 20 June 2020 offending. That sentence has expired. An interim detention order under s 57(5) of the Sentencing Act, and an interim supervision order (‘ISO’) under s 9 of the HRO Act were made on 14 July 2023. The respondent has remained in custody pending the determination of these proceedings. Conduct whilst in prison 12 Whilst in custody the respondent has continued to display aberrant and lewd behaviour. He has voluntarily agreed to take anti-libidinal medication. This medication is intended to reduce his sex drive by reducing testosterone levels, however it does not result in a complete removal of any deviant sexual desires. The medication is only effective while it is being consistently administered. There is an approximately one month lag time from cessation of consumption to the effects of the medication ceasing. This medication appears to have had some effect in reducing the respondent's deviant behaviour, with both the frequency and intensity of the deviant behaviour being reduced. However, his behaviour continues to be of concern. 13 Despite being on anti-libidinal medication, the respondent has continued to engage in aberrant behaviour including: • Repeated phone calls to services such as ALRM, Quitline and Child Support Agency making abusive and sexually inappropriate remarks to women; -- 4 of 14 -- [2024] SASC 6 McIntyre J 3 • calling female family members of other inmates and making sexually explicit comments on multiple occasions; • obtaining a business card of a female personal trainer, retaining the business card and then calling her to make sexually explicit comments; • engaging in exhibitionism and masturbation in front of others; • using the Department of Correctional Services Kiosk Express (‘KEX’) system to distribute sexually explicit messages within the prison; • using the intercom to make sexually explicit comments to a female correctional officer; • graffitiing sexually explicit messages in his cell; and • using other media to write sexually explicit messages. 14 Accordingly, his dosage has been increased in increments from an initial dose of 50mg dose to the current dose of 200mg. The maximum dose is 300mg. The Legislation 15 Section 57(7) of the Sentencing Act permits the Supreme Court to order that “a person to whom this section applies be detained in custody until further order, if satisfied that the order is appropriate”. There are three criteria which must be met in order for the Court to make such an order. First, the respondent must be a person to whom s 57 applies; second, the Court must be satisfied that the respondent is unwilling or incapable of controlling his sexual instincts and, third, the Court must consider the order appropriate. "A person to whom this section applies" 16 Section 57(1) defines a “person to whom this section applies” in the following way: (1) In this section— … person to whom this section applies means— (a) a person convicted by the Supreme Court of a relevant offence; or (b) a person remanded by the District Court or the Magistrates Court under subsection (2) to be dealt with by the Supreme Court under this section; or (c) a person who is the subject of an application by the Attorney-General under subsection (3) -- 5 of 14 -- [2024] SASC 6 McIntyre J 4 17 This matter comes before the Court under an application by the Attorney- General under s 57(3) which states that: If a person has been convicted of a relevant offence, the Attorney-General may, while the person remains in prison serving a sentence of imprisonment, apply to the Supreme Court to have the person dealt with under this section. “Unwilling to or incapable of controlling their sexual instincts” 18 The ordinary meaning of the word “unwilling” in the sense of not being disposed, ready, prepared or eager to do something is modified by the statutory definition which is set out in s 57(1) as follows: unwilling—a person to whom this section applies will be regarded as unwilling to control sexual instincts if there is a significant risk that the person would, given an opportunity to commit a relevant offence, fail to exercise appropriate control of the person's sexual instincts. 19 In Hore v The Queen, Wichen v The Queen2 (‘Hore’) the High Court held that: a person’s willingness to control his or her sexual instincts may fall somewhere on a spectrum of states of volition, at some point on which the community is at “significant risk” of harm for reasons other than a want or capability on behalf of the person to control his or her sexual instincts. 20 The concept of “significant risk” serves to establish the level of risk by reference to which the regime is engaged in s 57.3 In context, the word “significant” has the meaning of “substantial” given that the Court must be satisfied that there is a substantial chance the risk will eventuate. The mere possibility of a failure to exercise appropriate control of sexual instincts will not be sufficient. In determining risk, the Court is not limited to a consideration of the offending that enlivens the discretion to make the order. The Court is required to consider other factors relevant to the risk that the respondent poses.4 21 Further, an evaluation of “willingness” is not to be resolved by uncritical acceptance of the person’s expressed inclination to control their sexual instincts. Whether a person is “willing” in the relevant sense does not depend on assertions by the person that may reflect subjective and wishful thinking. The Court’s assessment of a person’s state of mind is concerned with whether the person is likely to have a reliable commitment to control their sexual instincts at the time when an occasion for the exercise of that control arises.5 2 Hore v The Queen, Wichen v The Queen [2022] HCA 22 at [49] (‘Hore’). 3 Ibid. 4 Driver v Attorney-General [2022] SASCA 13. 5 Hore at [50]. -- 6 of 14 -- [2024] SASC 6 McIntyre J 5 Is an order appropriate? 22 Even if the Court is satisfied that a person is unwilling to control or incapable of controlling their sexual instincts the Court retains a discretion to refuse to impose an order for indefinite detention under s 57. The Court’s paramount consideration in determining whether or not to make an order that a person be detained in custody must be to protect the safety of the community, whether it be as individuals or generally.6 There is no requirement that the risk to the community must be reduced to zero or to a specific level. The Court has a broad discretion to balance the paramount consideration of the safety of the community as against the rights of a respondent.7 23 Section 57(6) requires the Court to obtain evidence form two legally qualified medical practitioners before determining whether to make an order under s 57(7) as follows: (6) The Supreme Court must, before determining whether to make an order that a person to whom this section applies be detained in custody until further order, direct that at least 2 legally qualified medical practitioners (to be nominated by a prescribed authority for the purpose) inquire into the mental condition of a person to whom this section applies and report to the Court on whether the person is incapable of controlling, or unwilling to control, the person's sexual instincts. 24 Section 57(9) lists the matters that the Court must take into consideration including the reports of the medical practitioners provided to the Court under s 57(6), any relevant evidence or representations that the respondent wishes to put before the Court and any other matter that the Court considers relevant. Material Considered 25 The material that I have considered in reaching my decision is as follows: • A series of affidavits tendered by the applicant by consent annexing various documents;8 • two forensic psychiatrists, Drs Burgess and Raeside, provided written reports,9 and gave oral evidence in relation to this matter; • a report of Mr Luke Williams, psychologist, dated 24 September 2023, prepared for the purpose of the ESO10; and • written and oral submissions of both parties. 6 Sentencing Act s 57(8). 7 Thomas v Attorney General [2019] SASCFC 21 (‘Thomas’). 8 Exhibits A1, A2, A3, A4, A5, A13 and A14. 9 Exhibits A6, A8 (Dr Burgess) and A10, A11 & A12 (Dr Raeside). 10 Exhibit A9. -- 7 of 14 -- [2024] SASC 6 McIntyre J 6 Dr Burgess 26 Dr Burgess authored two reports, both dated 21 July 2023. One report for the s 57 application, and one in reference to the application for an ESO. Further Dr Burgess gave oral evidence at a hearing on 26 October 2023. 27 Dr Burgess says that the respondent has autism spectrum disorder, adjustment disorder with depressed mood and borderline intellectual functioning.11 He displays limited reflective thinking concerning the triggers of his problematic sexualised behaviours and tends to minimise or outright deny problematic sexualised behaviours. 28 Dr Burgess considered that the respondent has significant functional deficits in social and emotional domains. Accordingly, the respondent struggles with activities like socialising, trying to make friends and forming relationships in both intimate and non-intimate settings. He further struggles with identifying, regulating, and responding to his own emotions. These issues persist despite the respondent’s need and desire to seek relationships with people.12 29 Dr Burgess outlined the respondent’s history of sexual violence and disturbed sexual behaviours. He noted the diversity of these behaviours, including indecent assaults, attempted rapes, exhibitionistic displays and unwanted sexual phone calls and messages. The significant historic pornography use by the respondent was also a significant concern. This use focussed mainly on violent rape pornography and took place for up to eight hours per day. 30 Dr Burgess said that the respondent’s offences, whilst not necessarily sophisticated, still contain a degree of pre-meditation and planning. The respondent’s victims are women and include strangers, family members and professional support staff. Dr Burgess considers that the respondent’s sexual violence escalated over time, demonstrated by his deviant behaviour prior to his index offending, his index offending and subsequent behaviours whilst in custody. 31 Dr Burgess concluded that the respondent remains a high risk of further serious sexual reoffending and that he displays significant risk factors in most risk assessment categories.13 Dr Burgess notes in particular that, throughout his term of imprisonment, the respondent has continued to display significant sexual behaviour of a diverse variety with multiple instances of exhibitionism. This was noted as late as two months prior to Dr Burgess writing his report despite the respondent being aware that he would be at risk of continued detention and despite taking anti-libidinal medication.14 11 Exhibit A8 at [11.1]. 12 26 October 2023 Transcript at 17 [24]. 13 Exhibit A8 at [11.8]. 14 Exhibit A8 at [11.9]. -- 8 of 14 -- [2024] SASC 6 McIntyre J 7 32 Dr Burgess considers, on balance, that the respondent is capable of controlling his sexual instincts but is unwilling to do so. His opinion is encapsulated in the following evidence he gave:15 Mr Molloy is really at that quite extreme end of the spectrum in terms of his inability or unwillingness – likely unwillingness but it’s almost approaching inability – to contain himself, to contain his sexual instincts. Dr Raeside 33 Dr Raeside provided three reports dated 27 June 2023, 22 July 2023, and 3 August 2023 respectively. Dr Raeside also gave oral evidence at the hearing on Thursday, 26 October 2023. 34 Dr Raeside’s opinion is largely consistent with Dr Burgess both as to diagnosis and prognosis.16 Dr Raeside said that the respondent’s behaviour demonstrates a mixture of impulsivity and planning, but that there is ultimately a significant impairment in his ability to control himself:17 I didn’t come to the conclusion [in my reports] that [Mr Molloy] was unable to control, more focused on willingness. But I would have to say that he comes pretty close to what I would consider the definition of being [incapable of] control, given his ongoing repetitive behaviour. 35 Dr Raeside said that the respondent’s current functioning indicates that if he was released into the community on an ESO without a ‘plan of containment’ he would inevitably reoffend.18 36 Dr Raeside gave evidence – consistent with that of Dr Burgess – regarding the respondent’s anti-libidinal medication. Notably, Dr Raeside stated that the responses given by the respondent concerning the effect of his anti-libidinal medication were likely to be untrue given his account that he had no sexual arousal at all which was inconsistent with the collateral information about his behaviour. Further, Dr Raeside said that anti-libidinal medication makes no difference to a person’s sexual attraction and only influences a person’s desire to act upon that attraction. Dr Raeside noted that the respondent’s problematic behaviours did reduce somewhat when he started the anti-libidinal medication, however it would be hoped that they would cease entirely.19 The medication ought to enable to the respondent to increase his ability to control his behaviour. The more difficult question was whether he would choose not to act if there was the opportunity to do so. More effective medication may also mean that the respondent may be able to complete and derive benefit from rehabilitation programs such as the Sexual 15 26 October 2023 Transcript at 34 [9-13]. 16 Ibid at 62. 17 Ibid at 66. 18 Ibid at 85. 19 Ibid at 78. -- 9 of 14 -- [2024] SASC 6 McIntyre J 8 Behaviour Clinic program that he was previously unable to complete due to his behaviour. 37 Dr Raeside cautioned that anti-libidinal medication is not a ‘magic bullet’. Whilst an increased dose is likely to produce increased benefit in terms of ability to control behaviour and may result in less frequency of the concerning behaviours the respondent’s risk will never go to zero, it may not even reduce from his present high risk to a moderate risk.20 Mr Luke Williams 38 Mr Williams’ report was obtained in the context of the ESO application. His report is congruent with that of the forensic psychiatrists. Mr Williams considers that the respondent is at high risk of committing another serious sexual offence. He notes that the respondent has significant deficits in cognitive and adaptive functioning in addition to his autism spectrum disorder. This has contributed to his offending behaviour but has also caused a significant impediment to treatment. 39 Mr Williams expresses concern that the respondent has continued to demonstrate sexualised behaviour in a structured custodial setting and considers that: …the risk of this behaviour would increase should Mr Molloy be transitioned into a less secure setting, and that he would require significant high intensity treatment prior to such a move occurring… Should Mr Molloy be released into the community, he will require significant structure and monitoring to mitigate the risk he poses to others, particularly those involved in his care.21 NDIS Plan 40 The respondent was assessed on admission to prison and an individual development plan was prepared. As part of this he was referred to the Department for Correctional Services (‘DCS’) National Disability Insurance Scheme (‘NDIS’) team. The DCS NDIS team facilitated an application to the NDIS. The respondent was approved for a NDIS plan commencing on 7 July 2023 to be reviewed by 6 July 2024. The plan is based upon a comprehensive behaviour support plan prepared by a psychologist.22 41 Both Dr Burgess and Dr Raeside gave evidence concerning this NDIS plan. 42 Dr Burgess says that the proposed NDIS plan appears to focus on reducing the respondent’s access to females, particularly those in an unsupervised environment. Dr Burgess said that removing the temptation, would reduce the respondent’s risk. However, there are still risk factors, for example that the respondent has previously absconded from multiple similar environments. Whilst 20 Ibid at 79-81. 21 Exhibit A9 at 13. 22 Exhibits ECH18 & 19 of Exhibit A3. -- 10 of 14 -- [2024] SASC 6 McIntyre J 9 the protocols suggested may be effective in theory, Dr Burgess said that for plans to be effective they need to be well written and well explained to the workers and managers. It is also necessary to ensure that there is an understanding as to why these protocols have been put in place. There needs to be strict adherence to the protocols. He noted that this is hard to guarantee when managed by an external agency such as NDIS. 43 Dr Raeside expressed similar views to Dr Burgess. He said that with the proposed protocols in place the respondent’s risk of reoffending would be reduced; but the overall effectiveness of the plan would be dictated by the level of skill, training and experience of the carers. 23 44 At the conclusion of evidence, I requested some further material concerning the NDIS plan and, specifically, how it would interact with any ESO imposed by the Court. I was advised as follows: • The NDIS provider responsible for administering the respondent NDIS plan is “My Support My Way”. The provider owns the house that is currently being kept vacant for the respondent; • since the commencement of the proceedings, DCS has had regular case conferences with the NDIS provider to develop a positive working relationship; • there is an understanding between DCS and the NDIS provider that the respondent’s carers will notify DCS as soon as possible on a 24/7 basis if the respondent deviates from the NDIS protocol in any way; • the role of the NDIS provider, the respondent’s carers, is one of care and protection, not to “police” the respondent’s compliance with any ESO. DCS cannot direct that the NDIS carers do anything to enforce the ESO conditions. DCS can provide advice to the NDIS provider but no more; and • when the respondent is released from custody DCS will hold weekly case conferences for one month with the NDIS provider. Following the initial month, DCS will be reliant on the NDIS provider to advise DCS of any ESO or NDIS plan compliance issues. Discussion 45 The respondent was convicted of an offence under s 56 of the Criminal Law Consolidation Act 1935 (SA), a relevant offence as defined in s 57(1) of the Sentencing Act. Accordingly, he is a person to whom this section applies. I accept the evidence from both Dr Raeside and Dr Burgess that the respondent is able but 23 26 October 2023 Transcript at 86. -- 11 of 14 -- [2024] SASC 6 McIntyre J 10 unwilling to control his sexual instincts. The key issue is whether it is in all the circumstances, appropriate that an order be made. Respondent’s submissions 46 The respondent contends that it is inappropriate to make an order for indefinite detention under s 57. He is willing to consent to the making of an ESO in terms proposed by the applicant with certain additions which it is said will mitigate the likelihood of a “major breach” and reduce the risk to the community. These additions are:24 • Provide that the supervising officer at DCS has the power to delegate the power to give direction to anyone, including persons not employed by DCS, such as NDIS workers;25 • the respondent is to comply with the terms of his NDIS plan as approved by his supervising officer at DCS;26 • the respondent must attend medical appointments as directed; • to authorise the disclosure by any medical providers of the treatments or medication received by the respondent to the DCS and the Parole Board of South Australia; • that the respondent is not permitted to be alone in the company of any woman; and • if the respondent is in public or any other group setting, he must always be accompanied by at least one male care worker. 47 The respondent submits that the inclusion of these conditions would mean that the Parole Board, DCS and NDIS support workers would be aware of any issues with the respondent taking or receiving his medications and ensure that greater vigilance is applied to monitoring him should he stop. 48 The respondent contends that both psychiatrists gave evidence that the terms of the ESO combined with the NDIS plan would virtually eliminate the opportunity for the respondent to commit further offences and thus greatly reduce the risk of him re-offending. Applicant’s submissions 49 The applicant on the other hand says that this is a rare case where it is appropriate to make an indefinite detention order. It is contended that the safety of the community is dependent upon every part of the NDIS plan being 24 Respondent’s written submissions at [43]. 25 Respondent’s written submissions at [41]. 26 Respondent’s written submissions at [42]. -- 12 of 14 -- [2024] SASC 6 McIntyre J 11 implemented with precision, the respondent’s compliance with his plan and his voluntary compliance with anti-libidinal medication. 50 The applicant refers to the opinions of Dr Raeside and Dr Burgess that it is unusual to see consistent instances of inappropriate sexual behaviour in custody whilst there are ongoing court matters. The applicant submits that the Court does not need to speculate on respondent’s future behaviour if released on an ESO. The respondent has continued to demonstrate what his behaviours are likely to be in the community. 51 It is contended that the respondent’s risk is too high to be ameliorated on an ESO and that, whilst the protocols contained with the NDIS Plan proposed offer additional supports to the respondent, the safety of the community is almost wholly reliant on the flawless implementation of the protocols. It is said that wholesale reliance upon the NDIS plan and protocols is unrealistic therefore inappropriate. Conclusions 52 It is my view that, on the totality of the evidence, the community would not be adequately protected from the risk posed by the respondent if he were to be released into the community on the proposed terms of the ESO and the NDIS plan. In making that finding I note that on two occasions, including the index offending, the respondent was residing at a disability support facility at the time of the offence. The victims in each case were support workers or carers. On the 2019 occasion the respondent had absconded from his residential facility and indecently assaulted a woman walking in the street. Since being imprisoned for the index offending the respondent has engaged in ongoing inappropriate and sexualised behaviour as outlined in the affidavit material. The inappropriate sexualised behaviour is ongoing and frequent although it may be decreasing in intensity and frequency following the respondent commencing anti-libidinal therapy just over 10 months ago. It is clear from the evidence of Dr Burgess and Dr Raeside that this continuation of sexualised behaviour whilst in custody is unusual and concerning. I accept the applicant’s submission that this behaviour demonstrates what the respondent’s behaviours are likely to be in the community. It is, as Dr Raeside said, inevitable that, given the opportunity, the respondent will engage in inappropriate sexual behaviour in the community whether amounting to a criminal offence or not. 53 The anti-libidinal medication has not reduced the respondent’s risk to an acceptable level for release into the community. It has had some effect on reducing his deviant behaviour, but the concerning behaviour continues. The evidence of the psychiatrists was that further increases in dose may be appropriate and necessary. 54 This Court does not have power to make an order compelling the respondent to take anti-libidinal medication. The respondent’s submissions are based upon his continuing consent to the medication. The additional conditions proposed may have the effect of early detection of any cessation of medication. There is, -- 13 of 14 -- [2024] SASC 6 McIntyre J 12 however, no order that the Court can make to guarantee regular and consistent compliance with the respondent’s medication regime. Accordingly, his present compliance with anti-libidinal medication is insufficient to ensure protection of the safety of the community should he be released from custody. Further, whilst the medication has ameliorated his behaviour to some extent it appears to have had little effect on his continued desire to behave inappropriately in a sexualised manner. It seems, from the evidence, that his behaviour in custody is very likely a direct manifestation of his underlying sexual deviancy and impairments in his ability to control his sexualised behaviour. 55 I accept that the protocol contained within the NDIS plan, if implemented, offers greater protection to the safety of the community than the mere imposition of an ESO. However, the effectiveness of the proposed plan and protocol is highly dependent upon the experience and quality of the NDIS care workers. This will include the NDIS provider only ever using highly experienced and highly trained male care workers who are fully conversant with the protocols as outlined above. Critically it will involve not allowing the respondent any contact with women. NDIS provider will have to voluntarily notify DCS in respect of every deviation or breach of the NDIS protocol and/or the ESO. DCS will have limited ability to monitor compliance. 56 Accordingly, the risk to the community is only reduced where every aspect of the containment plan is implemented consistently. It also requires the NDIS to approve the locked door policy in the protocol and to consistently implement that policy. The practical effect of the protocol is to establish a form of de facto imprisonment within the community. I note the ESO condition proposed by the respondent that DCS be authorised to delegate powers to people such as the NDIS carers; these carers are not trained in offender management nor correctional services. There is a fundamental disconnect between this and the role of the NDIS as outlined above. 57 In these circumstances I accept the applicant’s submission that it is appropriate to make an indefinite detention order. The evidence demonstrates that the respondent has shown some limited progress in containing his sexualised behaviour in custody following commencement of anti-libidinal medication. He has also demonstrated some limited insight into his problem behaviour. However, it is clear the respondent has further progress to make in order to reduce his risk to the safety of the community. An order detaining the respondent under s 57(7) of the Sentencing Act does not amount to “draconian” outcome in this case.27 If the respondent continues compliance with anti-libidinal medication and demonstrates further insight and progress in the treatment which remains available to him in custody, a later application may be made for discharge or release on license under ss 58 or 59 of the Sentencing Act. 27 Thomas at [73]. -- 14 of 14 --