ATTORNEY-GENERAL (SA) v TROY JAMES POWER [2024] SASC 16

Applicant: ATTORNEY-GENERAL (SA) Counsel: MS C NOLAN - Solicitor: CROWN SOLICITOR (SA) Respondent: TROY JAMES POWER Counsel: MR G TRUSCOTT - Solicitor: ABORIGINAL LEGAL RIGHTS MOVEMENT Hearing Date/s: 20/07/2022, 23/11/2022, 08/12/2022, 27/04/2023, 04/05/2023, 06/06/2023, 21/08/2023, 31/08/2023, 16/11/2023, 05/12/2023 File No/s: SCCRM-22-272, SCCRM-22-273 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 POWER [2024] SASC 16 Judgment of The Honourable Justice McDonald 6 February 2024 CRIMINAL LAW - SENTENCE - POST-CUSTODIAL ORDERS - OTHER TYPES OF POST-CUSTODIAL ORDERS CRIMINAL LAW - SENTENCE - SENTENCING ORDERS - ORDERS AND DECLARATIONS RELATING TO SERIOUS OR VIOLENT OFFENDERS OR DANGEROUS SEXUAL OFFENDERS The respondent was sentenced to a term of imprisonment of 14 years for the offences of aggravated serious criminal trespass in a place of residence and rape on 19 December 2008. Prior to his release in July 2022, the applicant filed an application for the respondent to be detained until further order under s 57 of the Sentencing Act 2017 (SA) and an application seeking that the respondent be placed on an extended supervision order pursuant to s 7 of the Criminal Law (High Risk Offenders) Act 2015 (SA). Medical reports were ordered in respect of both applications on 20 July 2022. Given the impending expiry of the respondent’s head sentence on 18 December 2022, on 8 December 2022 the Court made orders detaining the respondent in custody until the resolution of the s 57 application. The applicant contends that the respondent is incapable of or unwilling to control his sexual instincts within the meaning of s 57 of the Sentencing Act. Several expert reports were put before the court to this end, and the applicant and respondent both led expert oral evidence in support of their respective cases. Given the respondent’s limited progress in rehabilitation, an issue arose between the parties as to whether detention until further order was necessary, or whether the respondent’s risk could be ameliorated by release into the community on an extended supervision order with a condition compelling his continued use of anti-libidinal medication. Held: the protection of the community is adequately achieved by the making of an extended supervision order with a condition that the respondent consent to taking antilibidinal medication as prescribed by his doctor, as well as participating in all tests necessary to ensure that the correct dosage is prescribed. -- 1 of 38 -- Sentencing Act 2017 (SA) s 57; Criminal Law (High Risk Offenders) Act 2015 (SA) s 7, referred to. R v Hoare [2017] SASC 7, considered. -- 2 of 38 -- ATTORNEY-GENERAL (SA) v POWER [2024] SASC 16 Criminal: Application 1 McDONALD J: The Attorney-General has made an application pursuant to s 57 of the Sentencing Act 2017 (SA) that Mr Power be detained in custody until further order of the Court on the basis that he is either incapable of or unwilling to control his sexual instincts.1 2 In the alternative the Attorney-General seeks an order that Mr Power be the subject of an extended supervision order (‘ESO’) pursuant to s 7 of the Criminal Law (High Risk Offenders) Act 2015 (SA) (‘HRO Act’).2 3 Mr Power opposes the making of an indefinite detention order, however, does not oppose the imposition of an ESO albeit with some variation to the proposed conditions. The circumstances in which the applications have been made 4 On 19 December 2009, Mr Power was sentenced to 14 years imprisonment for the offences of aggravated serious criminal trespass in a place of residence and rape committed on 7 May 2007. At the time of the commission of these offences Mr Power was on parole resulting in him becoming liable to serve a further term of one year, one month and 12 days imprisonment, resulting in an overall sentence of 15 years, one month and 12 days. A non-parole period of 11 years was fixed. Mr Power was not granted parole and he served the entirety of his head sentence. 5 In July 2022, the Attorney-General filed the two applications. On 20 July 2022, I ordered that medical reports be prepared pursuant to s 57(6) of the Sentencing Act and s 7(3) of the HRO Act. 6 On Thursday 8 December 2022, the matter came back before the Court. On that occasion, the Attorney-General made an application for an interim supervision order pursuant to s 57(5) of the Sentencing Act on the basis that Mr Power’s head sentence was due to expire on 18 December 2022. I granted the application and made an order that Mr Power continue to be detained in custody until the resolution of the primary application. Personal circumstances 7 Mr Power is a 45-year-old indigenous man. He has been in custody for the last 16 years and over that time has never been released on parole. Mr Power’s previous response to parole was poor. 8 Mr Power had a childhood disrupted by martial dysfunction, intergenerational familial alcohol abuse and sexual abuse. His schooling was 1 Application dated 8 July 2022. 2 Application dated 8 July 2022. -- 3 of 38 -- [2024] SASC 16 McDonald J 2 interrupted, and he left school in year 10. At that time, he was heavily using cannabis and alcohol and associating with a negative anti-social peer group who were engaging in offending behaviour. Mr Power committed his first serious violent sexual offence at the age of 17. 9 Moving into his adult years, Mr Power has generally been unemployed and has only had one long term relationship that lasted for about 18 months. He has continued to offend throughout his adult life. He has been repeatedly imprisoned, has demonstrated poor compliance with supervision, has breached parole and has escaped from custody. Relevant criminal antecedents 1994 Offending 10 On 21 December 1994, Mr Power, then a juvenile aged 17 years committed the offence of attempted rape. He had attempted to have sexual intercourse on a school oval with an intoxicated 15-year-old without her consent. Mr Power was only prevented from doing so when police attended as the result of a tasking for an unrelated matter. For this offending Mr Power was sentenced to six months in youth detention. 1998 Offending 11 During the early hours of the morning of 7 December 1998, Mr Power broke into the home of the victim whilst she and her three young children were asleep. He made his way in by forcing a window open before confronting her with a knife. Mr Power pulled down his tracksuit pants and made indecent suggestions to the victim. It was only after one of the children screamed that he desisted and left. 12 As a consequence of this conduct, Mr Power was found guilty of the offences of burglary and assault with intent to commit indecent assault. He was sentenced for these offences along with one further count of burglary to a total head sentence of six years imprisonment. A non-parole period of four years was fixed. 2004 Offending 13 On 20 December 2004, Mr Power committed the offence of aggravated robbery. On this occasion, Mr Power had been lying in the middle of the road when his victim pulled up in her vehicle to render him some assistance. At Mr Power’s request she telephoned an ambulance and waited with him for it to arrive. Whilst waiting Mr Power pulled a syringe out of his pocket and held it towards her in a threatening manner. The victim attempted to run away however Mr Power pursued her. He grabbed the victim by the back of her shirt causing her to fall to the ground. Mr Power demanded the victim’s car keys and, once she handed them over, started to pull her in the direction of her car. He only released the victim once other members of the public started to run towards them to help. Mr Power then got into the victim’s car and drove off. Eventually, Mr Power was arrested after a dangerous police pursuit. -- 4 of 38 -- [2024] SASC 16 McDonald J 3 14 For this offending, Mr Power was sentenced to a head sentence of four years imprisonment with a non-parole period of 18 months. 15 It is of significance that although Mr Power was not convicted of any sexual offence arising out of this episode, his conduct involved him using a weapon to attempt to drag the victim towards the car. Given what is known about Mr Power and his history of violent impulsive sexual offending it is open to infer that he had a sexual purpose in dragging the victim towards the car. 2007 Offending 16 Mr Power committed a further sexual offence on 7 May 2007. At that time, he had only been released from prison for about 11 months and was on parole. On this occasion he first saw his victim standing at the front of her house. After making some aggressive and sexual comments to her Mr Power wrestled her, pushing her inside the house. He then threated her with a syringe and raped her. As a result of this conduct Mr Power was found guilty of aggravated serious criminal trespass in a place of residence and rape. For these offences he was sentenced to 14 years imprisonment which was cumulative on an unexpired parole period of one year, one month and 12 days. A non-parole period of 11 years was fixed. Overview of Mr Power’s history of offending 17 These offences sit against a background of other serious offences. Essentially, from a young age Mr Power became involved in juvenile misconduct that included substance abuse and offending behaviour that was dealt with through the Youth Court. He then graduated to adult offending, spending a considerable period of his life in custody. There has been an escalation of violence and sexual offending running parallel to his general offending. It is significant that Mr Power has rarely taken responsibility for his offending and has tended to deny the allegations. Substance abuse 18 Mr Power has a significant history of substance abuse, including alcohol cannabis and methamphetamines. Mr Power began to use alcohol around the age of 16 or 17. He would normally drink spirits and would drink on a daily basis if the opportunity presented itself. At its peak, Mr Power was consuming up to two bottles of Jim Beam a day. In an interview with Dr Raeside, Mr Power acknowledged his past alcohol related problems including violence, being easily upset, depression, general offending, and disturbed behaviour.3 19 Mr Power commenced using amphetamines when he was 19 years old. From that point in time, he was an ongoing user of amphetamines or methamphetamines whenever he was not incarcerated and in the community. 3 Dr Craig Raeside, Psychiatric Report (13 October 2022), 5-6 (‘Raeside Report’). -- 5 of 38 -- [2024] SASC 16 McDonald J 4 20 The circumstances of his prior offending suggest that many of his offences were committed when Mr Power was under the influence of drugs or engaged in drug-seeking behaviour. The 2020 SBC-Me Pre-Treatment Report notes that Mr Power:4 … acknowledged that he liked the stimulation accompanied with amphetamine use. His comments included that he had not only used it to improve sexual gratification, but that it was ‘more for taking the breath out of me, and not knowing what I was doing’. As well as providing a coping strategy for boredom and sexual dysfunction, drug use, in particular amphetamine use, was likely to have provided some permission to Mr Power to be out of control, a factor potentially condoned by some of his peers and facilitating his sexual offending. Traumatic brain injury 21 On 1 July 2013, whilst in custody at Port Augusta prison, Mr Power was seriously assaulted, resulting in an acquired brain injury. He suffered a subdural haematoma, affecting in particular his frontal lobes and right temporal lobe. Mr Power required several months of rehabilitation at the Hampstead Rehabilitation Centre. 22 Prior to the assault, Mr Power had been described as having low average intelligence. Following the assault, neuropsychological testing conducted in 2016 found him to be in the ‘extremely low range’ of functioning, consistent with a mild intellectual disability. 23 Of concern, the practical implication is that following this injury Mr Power will have increased difficulty in controlling his impulses (whether sexual or nonsexual violence) and therefore it effectively increases the risk of such behaviour in the future. This brain injury sits against a backdrop of Mr Power already demonstrating a clear propensity for impulsive violent sexual offending. Unfortunately an underlying brain injury is not modifiable by any particular treatment or therapy. Efforts towards rehabilitation whilst in custody 24 Throughout his time in custody, Mr Power has demonstrated considerable behavioural issues. On multiple occasions, he has been reported for fighting, engaging in violent threats and assaults against other prisoners, and behaving in an abusive and threatening manner towards staff. 25 On 11 January 2011, Mr Power was assessed as part of an SBC Pre-Treatment Report as being at a very high risk of sexual offending without treatment and found eligible to undertake the Sexual Behaviour Clinic (‘SBC’). However, prior to commencing treatment, Mr Power suffered the brain injury and as a result his participation in the SBC program was delayed. 4 Affidavit of Benjamin Boyd dated 8 July 2022, Exhibit BJB-10 at page 43. -- 6 of 38 -- [2024] SASC 16 McDonald J 5 26 In April 2020, Mr Power was again assessed for inclusion in a sexual behaviour clinic, this time the SBC-Me Program.5 As part of an SBC-Me pre- treatment assessment report, Mr Power’s risk of sexual reoffending was assessed to be within the ‘well-above average’ range. 27 Between April 2020 and March 2021, Mr Power was accepted for and participated in the SBC-Me program. Prior to commencing the SBC-Me program and as a consequence of Mr Power’s previous conduct in custody he was required to sign a behavioural agreement. After further incidents, Mr Power was asked to sign a second behavioural agreement. The incidents that led to the second agreement involved Mr Power making threatening gestures towards other prisoners including running his hand across his throat as if he was cutting his neck and entering an officer’s station trying to assault another prisoner. He also yelled abuse at a supervisor and barked at her like a dog. 28 During the time that Mr Power attended the program, he also made inappropriate comments about a female nurse with whom he had apparently become “infatuated”, including comments about her size and race. He made comments about wanting to form a relationship with her following his release from custody. His comments about her were considered to be sexually motivated. In the SBC-Me post-treatment report, it was reported that during the course Mr Power disclosed a preference for Japanese pornography and found Asian women attractive. It was noted that the nurse that he made comments about was of Asian descent. 29 As a result of his processing difficulties and verbally aggressive behaviour towards other prisoners and staff, Mr Power spent less time in group sessions and more time engaging in individual sessions. It was about a month prior to the conclusion of the program that he commenced antilibidinal medication. 30 Following his participation in the SBC-Me program, Mr Power’s risk of sexual reoffending was estimated to remain within the well-above average range although there was a reduction in his dynamic risk factors, with a prediction of sexual recidivism of 55.4% over five years. The authors of the post-treatment report noted that if Mr Power struggled to manage his emotions, lacked success in developing a healthy relationship, returned to using illicit substances, stopped taking prescription medication, or returned to a transient lifestyle, his risk in engaging in problematic behaviour would increase. 31 In summary, it would appear that Mr Power struggled to complete the SBC-Me program both in terms of his behavioural issues and his ability to understand, process and retain what he was taught. Dr Raeside gave evidence 5 The SBC-ME Program is a modified version of the SBC program designed for sexual offenders with a cognitive impairment. -- 7 of 38 -- [2024] SASC 16 McDonald J 6 about Mr Power’s ability to understand and gain from the benefits of the program. He said:6 Benefits from a program that you participate in for everybody will decrease over time. Some things, a person may then continually apply to their daily life, might be ongoing, but in terms of simple learning, we all tend to deteriorate in our learning over time if it’s not reinforced. But in his case being assessed now as having effectively a mild intellectual disability, his ability to retain is decreased and his ability to learn new material is also decreased … Antilibidinal medication 32 In February 2021, Mr Power voluntarily commenced taking antilibidinal medication to reduce his testosterone levels and sexual arousal. He was prescribed Depo-Provera 225 mg four weekly. The use of this medication has seen a significant reduction in Mr Power’s testosterone levels. The treatment aims of antilibidinal therapy are to reduce problematic sexual thoughts, sexual preoccupation and behaviour. In doing so, it is hoped this will reduce his risk of problematic sexual behaviour, including reoffending.7 Mr Power has continued to voluntarily take the medication and has reported that the medication in combination with psychological treatment has reduced his sexual drive. 33 I will come back to this topic when I come to deal with the issues arising from the Attorney-General’s applications. 34 By March 2021, Mr Power reported a vast reduction in sexualised thoughts and claimed to only be masturbating once a week. In June 2022, Mr Power reported a reduction in frequency of sexual thoughts and urges. He reported that the frequency of his masturbation was down from 10 times a week to twice a week. 35 In December 2022, Mr Power again reported masturbating twice per week to ejaculation, and once further stopping prior to ejaculation. He described the strength of his sexual urges as three out of seven, reported that he rarely thought of sex and claimed that it was easy to distract himself from his sexual thoughts when he had them. 36 In April 2023, Mr Power was reviewed by a mental health nurse and reported:8 The medication works for me … I can go without masturbating for a couple of weeks at a time … I don’t feel aroused when I see female staff or converse with them … I’m able to relax and watch TV. 37 He described being easily able to distract himself from his sexual thoughts. He said that he believed he would not need the antilibidinal medication in the long 6 T69.6–T69.14 (4 May 2023). 7 Dr Oliver Burgess, Psychiatric Report (19 May 2023), 5 (‘Burgess Report’). 8 Burgess Report 4. -- 8 of 38 -- [2024] SASC 16 McDonald J 7 term when outside of prison, however, would continue indefinitely if it was made a condition of release. The Attorney-General’s application pursuant to s 57 of the Sentencing Act 38 Section 57 of the Sentencing Act creates a regime under which orders can be made to detain a defendant in custody until further order of the Court, in a number of circumstances. Relevantly to this application, s 57(3) provides: (3) 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. 39 Section 57(7) of the Sentencing Act confers upon this Court the power to order that a person to whom the section applies be detained in custody indefinitely. It reads: (7) The Supreme Court may order that a person to whom this section applies be detained in custody until further order if satisfied that the order is appropriate. 40 The section applies to a person who has committed a relevant sexual offence. There is no dispute that Mr Power is a person to whom the section applies. 41 Before determining whether such an order is made, the Court is required to order relevant medical reports pursuant to s 57(6): (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. 42 It follows that, whilst not explicit, the power to make an order pursuant to s 57 requires as a threshold question, that the Court be satisfied that the person who is the subject of the application is either incapable of controlling or unwilling to control his or her sexual instincts. Even if so satisfied, the Court must then consider whether it is ‘appropriate’ to exercise the discretion to make an order pursuant to s 57(7). That will necessarily involve engaging in the exercise of balancing the interests of the need to protect the community against the significant deprivation of liberty that would result from an order for indefinite detention. Section 57(8), however, provides that the paramount consideration will always be the need to protect the safety of the community. 43 In R v Hoare,9 Hinton J undertook a thorough and detailed analysis of the statutory scheme and applicable legal principles for an application made pursuant to s 23 of the Criminal Law (Sentencing) Act 1988 (SA). This section was the predecessor of s 57 and was substantially the same. During the course of that 9 [2017] SASC 7 at [62]-[73]. -- 9 of 38 -- [2024] SASC 16 McDonald J 8 analysis, Hinton J made the following observations about the operation and purposes of such an order:10 Whilst the exercise of the power contained in s 23(4) is not expressly conditioned upon the Court finding that the offender subject of an application is incapable of controlling, or unwilling to control, his or her sexual instincts, the Full Court has stated that the question whether the subject is incapable or unwilling to control his or her sexual instincts is a threshold question that must be answered yes or no, otherwise, bearing in mind the scheme created by Part 2 Division 3 of the Sentencing Act, no proper foundation exists for the Court to consider the risk that the offender poses to the safety of the community. Having answered the threshold question, there remains vested in the Court a residual discretion – despite the Court finding that a person to whom the section applies is incapable or unwilling to control his or her sexual instincts, it may be inappropriate that an order for indeterminate detention be made. Here it is important to bear in mind, for example, that the application may be made well in advance of the completion of an offender’s determinate sentence, when there is much time remaining for the offender to take advantage of courses and programs offered by the Department for Correctional Services. While a conviction for a “relevant offence” is a precondition to the engagement of the scheme, the scheme’s purpose is not punitive. Rather, it is concerned with preventing recidivist sexual offending through incapacitation and rehabilitation. The scheme does not punish an offender twice for the same offences or increase the punishment for those offences. While it operates by reference to an offender’s status as a person convicted of a relevant offence, it sets up its own normative structure. The purpose of an order of indeterminate detention is to protect the community from sexual offenders where the risk posed by such a person is such that it is inappropriate that they be released, even when they have completed what would otherwise be their period of imprisonment for the offences that they have committed. Additionally it is to ensure that the person “receives appropriate treatment, review and supervision”. (Footnotes omitted). Is Mr Power incapable of or unwilling to control his sexual instincts? 44 There is a considerable body of material before the Court relevant to a determination of whether Mr Power is incapable of or unwilling to control his sexual instincts. Much of it is historical. 45 The most relevant reports are those recently prepared for the purposes of these applications. Each of the authors have supplemented their reports by giving evidence on at least one occasion. The materials central to the consideration of this issue are: • Report of Dr Craig Raeside dated 13 October 2022; • Report of Dr Narain Nambiar dated 14 November 2022; • Report of Dr Jack White dated 24 April 2023; • Report of Dr Oliver Burgess dated 19 May 2023; 10 Ibid at [62]-[64]. -- 10 of 38 -- [2024] SASC 16 McDonald J 9 • Evidence of Dr Narain Nambiar given on 27 April 2023; • Evidence of Dr Craig Raeside given on 27 April 2023; • Evidence of Dr Jack White given on 4 May 2023; and • Evidence of Dr Craig Raeside, Dr Narain Nambiar, and Dr Oliver Burgess given concurrently on 16 November 2023. Dr Craig Raeside Diagnosis 46 Dr Raeside provided a report and gave evidence on two occasions. In his report, Dr Raeside diagnosed Mr Power as having a borderline personality disorder, a substance abuse disorder, and an acquired brain injury with cognitive impairment with a pre-existing mild intellectual disability. 47 Dr Raeside described a borderline personality disorder as a longstanding maladaptive pattern of behaving and feeling with associated marked feelings of chronic depression alternating with rage, disturbance of self-image and identity disturbance in judgment, and difficulty establishing satisfying relationships with other people. 48 An antisocial personality disorder was described by Dr Raeside as a longstanding maladaptive pattern of behaving and feeling relating to conduct disorder in childhood, antisocial and antiauthoritarian attitudes and recurrent conflict with the law. 49 Dr Raeside expressed the view that Mr Power’s personality disorder, combined with the disinhibiting effects of substances (and the increased sexual arousal due to methamphetamines) has resulted in his previous sexual offending, leading to a protracted period of imprisonment.11 Traumatic brain injury 50 Dr Raeside explained that Mr Power’s traumatic brain injury affecting the frontal lobes as well as the temporal lobes would not only impact on concentration and memory, but also impulse control. The practical implication is that following this injury, Mr Power will have increased difficulty in controlling his impulses and therefore be at increased risk of offending in the future.12 In his evidence, Dr Raeside summarised the situation:13 From my perspective, in the current matters, the other issue is that it affected the frontal lobes and temporal lobes of his brain, which are the areas of impulse control. So, people who have damage to those areas of the brain tend to be impulsive and can be aggressive as well, even without Mr Power’s background history where he had those problems 11 Raeside Report 12. 12 Raeside Report 4. 13 T68.18–T68.27 (4 May 2023). -- 11 of 38 -- [2024] SASC 16 McDonald J 10 beforehand, so that’s worsened his ability to control those behaviours, not just sexually, but aggression as well. 51 He explained that an underlying brain injury is not going to get better, nor is it modifiable by any particular treatment or therapy.14 SBC-Me program 52 Dr Raeside was guarded in his responses about the benefits resulting from Mr Power having undertaken and completed the SBC-Me program. Dr Raeside observed that Mr Power’s involvement with the program was generally positive in terms of his engagement and that his risk assessment had consequently reduced from very high to a high risk of reoffending. 53 Dr Raeside, however, raised some concerns about Mr Power’s conduct in custody over the time that he was undertaking the course, in that he engaged in inappropriate, offensive, sexualised behaviours. 54 In his report, Dr Raeside placed particular reliance on two matters. These both related to female staff in the prison. The first was Mr Power’s infatuation with the female nurse that appeared to be sexually motivated. The second event that Dr Raeside described as ‘even more concerning’ was an occasion when Mr Power verbally abused and threatened a female prison officer over an intercom. Mr Power told the officer that her “attitude will get her raped” and told her to “look at my charges”. Dr Raeside said that it was of particular concern that Mr Power engaged in conduct of this nature at the very time that he was undertaking the SBC-Me program. 55 In cross-examination it was put to Dr Raeside that Mr Power had been subjected to serious assaults whilst in custody and that may be what motivated him to engage in this behaviour as opposed to some form of sexual intent. 56 Dr Raeside responded:15 I don’t know, it depends on the context. I can put it in terms of he is a prisoner who has been convicted of a serious sexual offence and had previous sexual offences, so making derogatory or offensive sexual comments obviously has more relevance than if he had not been a sexual offender. 57 Dr Raeside also raised concerns about a continued lack of victim empathy after Mr Power had completed the program. He noted that in the SBC-Me post- treatment report, the author advised that when reflecting on his offending, Mr Power acknowledged that if he had not been convicted of the index offence, he would have continued to sexually offend. The author also observed that Mr Power did not mention the harm that he had caused to his victim, instead his focus was on not getting caught. Further that during treatment, he demonstrated attempts to minimise his offending and he use the term “alleged” preceding some 14 Raeside Report 4; T68 (4 May 2023) 15 T96.31–T96.36 (4 May 2023). -- 12 of 38 -- [2024] SASC 16 McDonald J 11 conversations about his offending which suggested that he still waivered about accepting responsibility. 58 In his report, Dr Raeside sets out the detail of the conversation that he had with Mr Power about the circumstances of the 2008 offending. He noted that in that conversation, Mr Power made no comment about the impact on the victim.16 59 In his evidence, Dr Raeside elaborated on why he thought that this was important. He explained:17 He, as someone who’s been in gaol a long time, has recently undertaken the sexual behaviour course, which has a strong component of victim empathy. He, I think appropriately, made the comments that you just referred to before about - which I’ve written there - about being remorseful and regretful about what happened, ‘terrible situation, didn’t intend to hurt anyone’, but that’s all focused on him and then what happened and the trouble that occurred, he didn’t specifically say anything about the victim. If I’d asked him, said ‘Surely the victim was impacted’ I think he would have made some comments, but what I’m suggesting is that he didn’t spontaneously make any comment about the impact on the victim. And a similar thing elsewhere when talking about other offences. Which I’d say is consistent with the antisocial personality disorder that’s been diagnosed as well, which one of the features is lack of empathy for others. 60 Dr Raeside gave evidence that this was significant in an assessment of the risk posed by Mr Power and he explained why:18 Because empathy is one of the main barriers to offending or acting in a way that others would find offensive. So, someone might want to do something, but they would think ‘how will this impact someone else’ and then they stop. The typical thing a parent would say to young children, ‘How do you think that made so and so feel’, to try and do that. So, a lack of empathy is a particular risk factor for further offending. You remove that barrier, so what you’re left with is risk of getting caught, and then the person makes a judgment on whether they’re going to take their chance anyway. Antilibidinal medication 61 Prior to Dr Raeside giving evidence, Mr Truscott advised the Court that he challenged Dr Raeside’s qualifications to give evidence about the prescription and the impact of antilibidinal medication. As a consequence, Ms Nolan took Dr Raeside through his qualifications in some detail. The following is a summary of the evidence provided by Dr Raeside on this topic: • As part of his medical training, Dr Raeside had undertaken training in pharmacology. That included gaining an understanding of dosage, different types of medication, monitoring for physical or psychological side effects, and an appreciation of factors that may preclude the prescription of certain antilibidinals. 16 Raeside Report 7. 17 T71.15–T.71.33 (4 May 2023). 18 T71.36–T72.8 (4 May 2023). -- 13 of 38 -- [2024] SASC 16 McDonald J 12 • From about the mid-1990s, for 10 years Dr Raeside was employed fulltime at James Nash House which included an outpatient service for forensic patients in the community. He prescribed antilibidinal medication to a number of those patients as well as a number of inpatients for whom he was responsible. • Since then, Dr Raeside has been primarily providing expert forensic reports although he continued to undertake some work at James Nash House until about 2010. In 2019, Dr Raeside recommenced working at James Nash House whilst also continuing to write expert reports. Over this time, he has been involved in providing psychiatric clinics at the Adelaide Remand Centre. The only evidence that was led about Dr Raeside’s involvement with antilibidinals over this period was that in the last five years he had not provided any specific treatment to anyone on antilibidinal medication. • Whilst Dr Raeside conceded that he was not up to date in his knowledge of the most recent antilibidinal medications that have been developed over the last two or three years, he was certainly familiar with Depo-Provera and other antilibidinals that has been around for a number of years.19 62 I am satisfied that Dr Raeside has the requisite expertise to provide the opinions that he has given in his report and in his evidence on the use and effect of antilibidinal medication. 63 Dr Raeside explained that the aim of antilibidinals is to reduce an individual’s sex drive by reducing the active level of testosterone to prepubertal levels, the equivalent of that of an eight- or nine-year-old boy. He went on to elaborate:20 The antilibidinals effect on individuals sexual drive, and to some degree their sexual arousal, and the satisfaction or lack of satisfaction or sexual satisfaction they might ordinarily derive. So, in other words, you would expect that they would be unable to achieve and maintain an erection, and certainly would be unable to achieve orgasm or ejaculation, which would occur after puberty or during puberty. So, in turn that would then have a psychological impact. The person’s sexual attraction or the source of their sexual arousal would not change, so they would still be, if you like, attracted to the same sexual triggers as previously, but given that lack of sexual feedback, lack of sexual satisfaction, they would soon lose interest. They might for example see someone and think that they were attractive, but the associated sexual desire that would normally go with that isn’t there. And trying to stimulate themselves would be unsatisfactory, and so they would soon lose interest and soon lose arousal. The aim of course then is that they would be less likely to sexually offend as they had done in the past. 19 T56-57 (4 May 2023). 20 T58.25–T59.7 (4 May 2023). -- 14 of 38 -- [2024] SASC 16 McDonald J 13 64 Dr Raeside described both physiological and psychological components to the impact of antilibidinals. He said:21 Yes, so primarily act, as I said, to decrease testosterone and thereby decease sexual arousal and drive, but secondarily they will then attract – they will change the psychological feature, as I said, the person may then not be interested, as well as not having the physical drive, they are no longer notice or as attracted to things that they were before … 65 The end goal with an antilibidinal is to “effectively extinguish” an individual’s “sex drive” or “libido”. Dr Raeside explained:22 … the key word is ‘effectively extinguished’, so if you look at ‘extinguished’ you might think the testosterone level needs to be zero, but I think what ‘effectively’ means is that back to that prepubertal level, which current testing would be say below eight, or below five, and normal levels are sort of around 10 to 25. So, there would still be some testosterone around, you may not be able to reduce it to zero on a blood test, but by reducing it significantly you effectively have stopped the sex drive. 66 Dr Raeside was asked about whether Mr Power’s reported reduction in masturbating from 10 times a week to twice weekly suggested that the antilibidinal medication was currently meeting its treatment aims. He commenced his response by issuing a word of caution about relying on self-reporting. He said:23 … I would always use caution in a self-report when asking someone about their sexual activity, it’s much the same as asking someone about how much alcohol they drink, people typically underestimate it, either intentionally or unintentionally, but I think you also get, if you like, comments such as ‘A couple of times a week’ may not mean twice a week, but I think from that account that Mr Power’s provided is consistent with a reduction due to his medication, how much a reduction, not sure … 67 Dr Raeside went on to say that a reduction to this level is not the reduction that you would ideally hope for, the desired outcome would be that Mr Power ceased all masturbation. The aim is that the medication would extinguish that behaviour altogether because he would not be able to masturbate or would derive no satisfaction from it. Dr Raeside reiterated that in circumstances in which Mr Power has demonstrated an unwillingness to control his sexual instincts, to reduce risk, that desire or libido needs to be effectively extinguished.24 Risk posed by Mr Power 68 Dr Raeside expressed the view that despite Mr Power commencing on antilibidinal medication, his risk of sexual reoffending remained high. That was not only because of his underlying deviant sexual desires, but also because of the likelihood of him experiencing significant stress upon being released into the community, given the combination of an extended period in custody (with 21 T60.11–T.60.17 (4 May 2023). 22 T60.25–T.60.35 (4 May 2023). 23 T61.34T.62.5 (4 May 2023). 24 T62.35–T62.36 (4 May 2023). -- 15 of 38 -- [2024] SASC 16 McDonald J 14 associated institutionalisation) and a lack of adequate social skills. He would be at risk of further substance abuse with a concurrent increased risk of reoffending. 69 In his report, Dr Raeside supported the s 57 application for indefinite detention, however, placed some important caveats over this. He said:25 In my opinion, had Mr Power not commenced the Depo-Provera a year ago I would have expressed the view that he would be unwilling to control his sexual urges upon his release into the community for all of the reasons expressed above. His brain injury and cognitive impairments decrease his capacity to control his sexual urges, but I would not say he is unable to control them. Essentially, I would support the s.57 application based on Mr Power’s past sexual offending history and his behaviour in custody. My only reservation is what positive impact the antilibidinal medication is having and this cannot be adequately tested until he is in the community. Of course, if he resumes drug and alcohol use his willingness and capacity to control his sexual urges will reduce significantly. (Emphasis in original) 70 In cross-examination, Dr Raeside agreed that if the antilibidinal medication was optimal then he would have greater confidence that Mr Power would control his sexual instincts. 71 He said, “if the medication is at its optimum level and exerting its maximum effect, then I would be more inclined to support that he have a trial in the community.”26 72 He was unable to comment further than he already had about whether the medication was operating at that level because he did not have access to Mr Power’s prison medical records. At that time, he was entirely reliant on Mr Power’s self-reporting. 73 Although Dr Raeside agreed that a continuation of the antilibidinal medication in combination with regular testing for alcohol and drugs, electronic monitoring, a curfew, regular counselling, medication and supervision would reduce the substantial risk posed by Mr Power, it would not eliminate it. Dr Raeside did not accept the proposition that in those circumstances, Mr Power would be “willing” to control his sexual instincts and that he would not offend because he still remains at high risk of sexual reoffending.27 He observed that “the big question is then whether the ongoing risk to the community is acceptable to the court, which is not a decision for me”.28 74 Dr Raeside made the observation that one of the difficulties in assessing the risk that Mr Power presented is that the concept of ‘risk’ is multifaceted. He 25 Raeside Report 13. 26 T94.34-37 (4 May 2023). 27 T95.12–T95.16 (4 May 2023). 28 T91.6–T.91.9 (4 May 2023). -- 16 of 38 -- [2024] SASC 16 McDonald J 15 explained that risk is not only the likelihood of someone doing something but also the magnitude, that is if they are going to do something, how severe is it going to be, how imminent is it going to be and how frequently will it occur. Dr Raeside explained that these matters had to be considered in combination:29 So, putting those four things together the concern with Mr Power is that if he was to reoffend it is likely to be high magnitude, given his past pattern of offending behaviour. So, in other words someone might be very likely to swear at someone, but that’s not a high magnitude offence, and so you might be prepared to put up with that risk, but if there is a much less likelihood of committing a more serious matter, then that risk might not be willing to be put up with. So, answering the question about him, I think the pattern of behaviour in the past suggests that if he was to reoffend sexually it is going to be a high magnitude offence, that is he will get despondent, upset, angry and say ‘I can’t be bothered with all this’, and just act impulsively, as he has done in the past when stressed, particularly if he is using substances. When asked whether Mr Power’s conduct was likely to involve a degree of violence, Dr Raeside responded:30 Well, based on his past behaviour, yes, either verbal threats or utilising something as a weapon to coerce someone. That’s based on his behaviour, obviously predicting his future behaviour is difficult, but the best we’ve got to go on is a pattern in the past and it’s not a single incident. 75 Dr Raeside appropriately conceded that given Mr Power’s history there was little he could do to alter the assessment that he is at high risk of reoffending. Dr Raeside explained:31 Perhaps to put that high risk in perspective, as indicated before, there’s probably nothing he can do now to reduce that risk further. So, if we’re looking at real risk, say if he was released in a month, what his real risk would be, again it would be if all things are going well, his risk is probably manageable. So the key bits are to focus on those areas that we talked about: so supervision would facilitate ongoing involvement with drug and alcohol programs; probably a community-based violence prevention program, although he may not qualify because his past offences might put him at too high a risk, and they only tend to go for moderate risk in the community; and the individual psychological therapy, as we talked about; and the initial constraint of his movements and associations. That’s how I would - and under the supervision of his community corrections officer putting that in place; and while he’s still on antilibidinal medications, psychiatric follow-up as well. That would also help to identify if he was becoming depressed, which is a risk factor; or if he was noncompliant or becoming upset and angry about his conditions, so that would assist in the monitoring as well. When asked whether there was anything further that could be addressed to a greater extent whilst Mr Power is still in custody to reduce that risk before a release into the community, Dr Raeside raised a query about the dosage of the antilibidinal medication. He said:32 29 T75.14–T.75.30 (4 May 2023). 30 T75.33T75.38 (4 May 2023). 31 T88.34–T89.18 (4 May 2023). 32 T90.10–T.90.16 (27 April 2023). -- 17 of 38 -- [2024] SASC 16 McDonald J 16 I think whilst he remains in custody, at this stage the only further thing that could occur was getting the appropriate dose of medication. He may be on the appropriate dose. As I said, I’m not aware of what the blood level is. But just making sure that that medication is optimised is probably the only other thing left whilst he’s in custody. Dr Narain Nambiar Diagnosis 76 Dr Nambiar agreed with Dr Raeside that Mr Power has a borderline personality disorder, an antisocial personality disorder, and a substance abuse disorder. In evidence, Dr Nambiar was asked what those disorders mean in terms of the assessment of risk that Mr Power posed. Dr Nambiar explained:33 So, if a person has a personality pathology, it means that there are certain patterns of behaviour that occur that, obviously, cause dysfunction in their lifestyle. People who are antisocial, by definition, commit offences; they violate other’s rights; they have disregard for law; and they’ll act on whatever it is that they want at any given time irrespective of the consequences. They don’t think through their consequences. And, as a result, they generally offend, and that’s the case for Mr Power. And we know that that started at a very early age, so there is an enduring pattern of being antisocial. Being borderline is really instability of emotions, instability of interpersonal relationships, instability of self-image, and, often, associated with that are certain behaviours, and those behaviours can include being impulsive. Traumatic brain injury 77 In his report and in evidence, Dr Nambiar discussed in some detail the impact of Mr Power’s acquired brain injury. He explained that when a person sustains a head injury that affects their frontal lobes, it causes a disinhibiting effect which will result in poor impulse control.34 Dr Nambiar raised a concern that the entirety of Mr Power’s offending predates the brain injury and, as a consequence, Mr Power now has an additional risk factor that he did not have when he committed the previous serious sexual offences. 78 In his report, Dr Nambiar raised a further effect of the brain injury. He said that the brain injury would also make Mr Power’s brain more susceptible to the influence of substances.35 In his evidence, he explained that this would mean that illicit substances will now have a more significant effect on the extent to which they reduce Mr Power’s inhibitions. Dr Nambiar explained the mechanism by which that would occur:36 So in order for a substance to affect your brain, it has to cross the blood/brain barrier, and the brain obviously protects you from that to some degree, but if that blood/brain barrier has been disrupted by injury, as an example, then it’s more susceptible to illicit substances. 33 T24.12T24.27 (27 April 2023). 34 T16.16–T16.25 (27 April 2023). 35 Dr Narain Nambiar, Psychiatric Report (14 November 2023), 13 (‘Nambiar Report’). 36 T17.10–T17.15 (27 April 2023). -- 18 of 38 -- [2024] SASC 16 McDonald J 17 SBC-Me program 79 Dr Nambiar also expressed some reservations about how much had been achieved and what had been learnt by Mr Power as a result of him undertaking the SBC-Me program. In his report, he observed:37 Despite undergoing the Sexual Behaviour Clinic ME course, Mr Power has a very vague recollection of the topics discussed although I refer to the Post Treatment Report that outlines the issues raised regarding his participation and gains made as a result of that treatment. Despite completing that course, Mr Power continues to have an extreme minimisation and denial of sexual violence. 80 Dr Nambiar noted that despite completing the program, Mr Power’s risk profile had not significantly reduced and the limited reduction could only be attributed to factors that can be controlled whilst Mr Power is incarcerated, factors that cannot be so readily controlled if Mr Power is released. Further, even when self-reporting although Mr Power said that his behaviour has improved since undertaking the program, he could not describe other than in vague terms how his behaviour has changed, except to say that he might only “touch himself in the shower” and he does not now “get an erection so easy [sic]”.38 81 Dr Nambiar shared Dr Raeside’s concerns about Mr Power’s behaviour in custody. He said that the evidence of Mr Power’s maladaptive behaviour in custody allows for an assessment of how he is currently functioning. That is highly relevant because:39 … if a person is unable to control themselves in a controlled environment that is a warning sign, because then if he was in an uncontrolled environment then the risk is even greater. So, it gives you a fair idea, if he is not coping in custody then the likelihood of not coping in the community is going to be high. Dr Nambiar went on to elaborate:40 It’s relevant that even in a controlled environment where a lot of those factors we just talked about have been removed, we’re still looking at how he conducts himself in terms of his personality, how he reacts to an environment, interpersonal interactions, and certainly in the group itself how committed he was to actually participate if he then had to sign an agreement about not misbehaving, it shows that his willingness to participate wasn’t entirely there. 82 Dr Nambiar also took into account Mr Power’s conduct during the SBC-Me program. He noted that Mr Power was disruptive within the groups and was verbally aggressive towards his peers and staff such that he was assigned to more individual appointments and fewer group sessions. Dr Nambiar acknowledged that part of the problem was the fact that Mr Power’s processing speed had been 37 Nambiar Report 13. 38 Ibid 11–12. 39 T26.36–T27.4 (27 April 2023). 40 T27.11–T27.19 (27 April 2023). -- 19 of 38 -- [2024] SASC 16 McDonald J 18 reduced as a result of his acquired brain injury.41 This cognitive impairment resulted in Mr Power having difficulty in processing information and learning new information, which would make it more difficult for him to retain the benefits of the therapy.42 83 Dr Nambiar expressed the view that it may be beneficial for Mr Power to undertake the SBC-Me program again and better still to have an individualised program tailored for him. He explained why he held that view:43 He’s had one attempt at the SBC-me program, and it was only partially successful, there was at least engagement to some degree, but he hasn’t demonstrated any major learnings from that. So he would probably need to repeat a similar program, if not the same program, once again focusing on his specific issues. Antilibidinal medication 84 In large part, Dr Nambiar’s evidence about antilibidinal medication was in accordance with that given by Dr Raeside. He explained that the aim of the antilibidinal medication is to reduce sexual urges by suppressing testosterone levels to prepubertal levels resulting in suppressing erections and extinguishing libido. Dr Nambiar expanded upon that:44 Because in terms of the response if a person has sexual fantasies that gives rise to arousal, the arousal gives rise to the physiological result which is an erection in a male, and in order to reduce their fantasies you want to try and stop the confirmation of their fantasies by the sexual release. So if a person has sexual fantasies they can’t have an erection. They then can’t masturbate to orgasm, in which case that extinguishes the propensity to fantasise in that way. … Again, it’s that way of removing the fantasies by reducing the outcome. So obviously, again, the biological arousal will give rise to erections in which case the fantasies are then continued because of that response. If there’s no response from a biological point of view then the fantasies become less relevant and easier to extinguish. 85 In his report, Dr Nambiar noted that the reason that Mr Power was prescribed antilibidinals was hypersexuality. Mr Power had reported that he used masturbation as a coping mechanism for when he was bored, stressed or sad. His ‘need’ to masturbate appears to have dominated his mind and was a factor in contributing to his heightened levels of arousal whenever he offended against women. Dr Nambiar raised a concern that part of the basis for the initiation of the antilibidinal injections was the fact that Mr Power reported that he fantasised using images of previous victims.45 41 Nambiar Report 11–12.. 42 T18.33–T18.36; T49.1–T49.9 (27 April 2023). 43 T36.6T.36.11 (27 April 2023). 44 T9.16T9.24; T10.15–T10.21 (27 April 2023). 45 Nambiar Report 11. -- 20 of 38 -- [2024] SASC 16 McDonald J 19 86 Dr Nambiar gave evidence about the method of determining the appropriate dosage of antilibidinal medication. He described it as “pretty straightforward”, that it is a matter of measuring testosterone levels and that there is a range that the laboratory can report as either prepubertal or post-pubertal.46 87 Dr Nambiar was asked whether having regard to the evidence and materials that he had viewed, he was of the opinion that the antilibidinals had achieved the aim of extinguishing Mr Power’s ability to obtain and sustain an erection. Dr Nambiar responded that whilst Mr Power had suggested that his ability to have erections and masturbate had reduced, the antilibidinals had not achieved the desired result of entirely stopping erections. He explained that whilst there had been a degree of improvement “the goal is to stop erections because otherwise there is a reinforcement every time he has a fantasy, he masturbates, receives pleasure, it reinforces that response”.47 He said it was only once the ability to obtain and sustain an erection is completely eliminated that the positive effect of antilibidinals may come into play.48 88 When asked what would need to happen for Mr Power to get to the point where a finding could be made that he is not unwilling to control his sexual instincts, Dr Nambiar responded:49 I think the biological treatment needs to be increased such that we’re supressing his testosterone sufficiently, and then he would have to have further sexual behaviour therapy, which would either be individualised or in a group setting depending on what resources are available in custody for him. Risk posed by Mr Power 89 In his report, Dr Nambiar expressed the view that Mr Power continues to have a “multitude of risk factors for further sex offending”.50 These include offending in a variety of domains, not just specific to sex offending. He identified the use of weapons, physical coercion and psychological coercion in the context of sexual violence as additional risk factors for violent sexual offending. 90 Dr Nambiar concluded his report with the following:51 In my opinion given the opportunistic nature of Mr Power’s past sex offending and the fact that he still remains pre-occupied with sexual desires, that it is my view that there is a significant risk that Mr Power would, given an opportunity to commit a relevant offence, fail to exercise appropriate control of his sexual instincts. 91 In evidence, Dr Nambiar set out various risk factors that underpinned an assessment of the risk of Mr Power reoffending. Dr Nambiar commenced with the fact that Mr Power committed his first serious sexual offence when he was 17 years 46 T.12.16–T.12.23. 47 T12.36–T.13.1 (27 April 2023). 48 T.13.3–T.13.6 (27 April 2023). 49 T40.5–T.40.10 (27 April 2023). 50 Nambiar Report 13. 51 Ibid 14. -- 21 of 38 -- [2024] SASC 16 McDonald J 20 old. Dr Nambiar told the Court that studies have shown that the younger the age of the onset of sexual offending, the higher the propensity to continue to offend in that way in the future.52 92 Dr Nambiar identified that further significant risk factors for Mr Power are his continued denials and minimisation of his offending. He continues to make claims that the victim “came onto me” or that a victim had made up allegations because her family were strict. Dr Nambiar said that Mr Power’s comments to him accord with the post-treatment report from the SBC-Me program. One of the factors or issues identified in that report was Mr Power’s inability to understand when a person was consenting to sexual relations and when they were not. 93 Another matter of significance to Dr Nambiar was that in relation to the December 1998 offending, Mr Power denied that he had used a knife. When asked why he placed weight on that denial, Dr Nambiar responded:53 It’s significant because he obviously used a weapon which is a threatening stance, coercive, he used force, and that’s quite significant in terms of the nature of that offence, in that it was quite violent. He held a person basically as a hostage with a knife, coercing her to do things at knifepoint. 94 A further risk factor identified by Dr Nambiar was the impulsive nature of the offending. He said it “really demonstrates how random it can be and that you can’t really say in any particular situation that he may not suddenly have an impulse, when there’s opportunity, to offend in that way”.54 The impulsive nature of Mr Power’s behaviour poses an additional challenge in terms of addressing the risk by way of supervision. 95 Like Dr Raeside, Dr Nambiar also gave evidence about the multifaceted nature of risk, in particular about the magnitude of the risk if Mr Power were to reoffend in the future. He expressed the following opinion:55 I think that Mr Power has a history of offending and so, as an antisocial person, it’s highly likely that he may offend again in the future, for whatever reason. Whether it’s because he’s under stress or because he doesn’t have money or because he’s gone back to using drugs, there is a risk that he will offend again. What we also know that, parallel to that general offending, Mr Power has committed a number of very serious aggressive-type sexual offences, so that risk also remains because we, really, haven’t seen a major change in Mr Power, apart from what’s happened in prison and, as I’ve said in the past, that’s an artificial environment, it’s very difficult to test and, even then, when a person is in custody they still have to work on how they relate to other people, and that’s a part of the assessment. And Mr Power has demonstrated that, throughout his custody, there have been issues in how he’s related to other people, whether it be other prisoners or whether it be officers in prison and even in the group in therapy there were comments made about how he conducted himself. That wasn’t that long ago. So it’s unlikely that that situation has changed significantly. It may temporarily if Mr Power wants to be at his best behaviour in 52 T20 (27 April 2023). 53 T21.10T21.15 (27 April 2023). 54 T23.29–T.29.32 (27 April 2023). 55 T25.12–T.25.38 (27 April 2023). -- 22 of 38 -- [2024] SASC 16 McDonald J 21 order to be released, which I understand. However, in the community where there may be less restrictions, he may then revert back to his enduring personality. 96 When asked about the ultimate issue of whether Mr Power is “willing to control his sexual instincts”, Dr Nambiar gave the following response:56 In terms of a general definition of willingness, he’s willing to attempt to try; however, in terms of the legal definition, I think that if he was given an opportunity, there’s still a significant risk. Dr Oliver Burgess 97 As the result of a number of issues that arose during the evidence of Dr Raeside and Dr Nambiar about the use and effect of antilibidinal medication, I ordered a further report addressing Mr Power’s current dosage of antilibidinal medication and the effectiveness of that medication in achieving treatment aims. 98 Dr Burgess provided that report. In preparing his report, Dr Burgess had access to all of the prison health records relating to Mr Power. He also conducted a further interview with Mr Power. In the interview, Dr Burgess asked Mr Power about the effect of the antilibidinal medication. Mr Power told him that prior to taking the antilibidinal medication, he masturbated once or twice a day, equating to 10 times a week. Mr Power reported currently masturbating to the point of ejaculation twice a month. He said that he observed that it now takes longer to ejaculate. Mr Power reported that his sexual urges are low, he spent very little time thinking about sex and when he did, he found it easy to distract himself from his sexual thoughts. 99 In his report, Dr Burgess discussed the goals and purposes of the antilibidinal medication. He said:57 The treatment aims of his antilibidinal therapy are to reduce problematic sexual thoughts, sexual preoccupation and behaviour. In doing so it is hoped this will reduce his risk of problematic sexual behaviour, including reoffending. The ideal treatment outcome would be an absence of libido, evidenced by no sexual interest or thoughts and no sexual behaviours (such as masturbation). However, this is generally unachievable in practice, and is not always seen even in cases of surgical castration. Mr Power provided a history suggesting a significant, albeit not complete, reduction in his level of sexual drive, preoccupation and behaviour. This would appear consistent with his laboratory results which show a significant reduction in his free testosterone (the amount of testosterone, male sex hormone, circulating in blood available to have an effect). 100 Having reviewed the blood results, Dr Burgess concluded: “Overall, I would consider his current antilibidinal dosing to be sufficient for this aspect of his overall treatment”58. 56 T38.1–T.38.4 (27 April 2023). 57 Burgess Report 5–6. 58 Burgess Report, 6. -- 23 of 38 -- [2024] SASC 16 McDonald J 22 101 Dr Burgess, however, went on to make the point already made by Dr Raeside and Dr Nambiar that the medication was only one aspect of the necessary treatment and that:59 … the management of someone thought at significant risk of sexual recidivism does not rest solely on antilibidinal measures, but these should be used alongside psychological therapy (such as the Sexual Behaviours Clinic, or Owenia House) and close legal supervision. This remains true for Mr Power. His presentation suggests that in the community he would benefit not only from ongoing medication, but even at an adequate antilibidinal dosage has a number of other risk factors which will need to be addressed and managed through non-pharmacological means. Dr Jack White 102 The final expert to provide a report and give evidence in this matter was a psychologist, Dr Jack White. He was called by Mr Truscott for Mr Power. 103 In my view, Dr White’s report and evidence was not of any real assistance in resolving the issues in the matter. In some respects, Dr White’s evidence was consistent with that of Dr Raeside and Dr Nambiar. At times it was inconsistent. On the occasions on which it was consistent, Dr White’s evidence did not advance the matter any further than it was taken by Dr Raeside and Dr Nambiar. Where it was inconsistent with the evidence of the other doctors, I preferred the evidence of Dr Nambiar and Dr Raeside over Dr White. The reason for that is threefold. First, Dr Nambiar and Dr Raeside have greater relevant experience than Dr White. The second is that there were some issues raised about some of the methodology used by Dr White. By way of example, one of the tools Dr White used to measure Mr Power’s personality was the revised NEO Personality Inventory (Form S). Dr Nambiar explained that while he was not familiar with this specific test, he does not generally use these types of personality assessments as they are reliant on self- reporting. Dr Nambiar went on to explain:60 [W]e are trained as clinicians to assess someone on clinical grounds, and so that includes taking a history, but also in terms of our assessing risk, looking at all the documentation, which includes historical evidence around how a person functions. So, if you are assessing personality, as an example, then it is usually done by doing what is called a longitudinal interview, looking at enduring patterns, which are based on objective information, not so much subjective self-report, because self-report is unreliable. 104 Dr Nambiar was also asked about a further test that was conducted by Dr White called a Personality Assessment Inventory. When asked whether he utilises this test, Dr Nambiar replied, “No, I deliberately don’t”61. When asked why he did not use this assessment tool, he said because it involved a tick box approach. When asked to elaborate, he explained:62 59 Ibid 6–7. 60 T30:2–T30.12 (27 April 2023) 61 T33:10 (27 April 2023) 62 T34.3–T.3413 (27 April 2023). -- 24 of 38 -- [2024] SASC 16 McDonald J 23 Yes. So, in terms of assessing personality, as I said before, you really need to take a full history and also look at corroborating evidence as to a person’s enduring pattern of behaving in certain situations, and personality disorder usually evolves during early adolescence and endures right throughout adulthood. So if you have personality features or characteristics, they stay with you for the rest of your life. The PAI, unfortunately, is more the tick-box approach, whereby it’s really a person’s own impression of themselves, which may not be entirely accurate. 105 Similarly, Dr Raeside was asked about some of Dr White’s methodology. He was also asked about the NEO Personality Assessment Inventory. When he was asked if he was familiar with that form and how widely it was used, Dr Raeside said:63 My understanding is that Dr White’s the main proponent of it and primarily the person who uses it. There have been some other psychologists who use it, refer to it but they’ve either been working with Dr White or recently having worked with him, so I think it’s a tool that he’s used for many years and is very familiar with it. 106 The final matter that causes me to prefer the evidence of Dr Raeside and Dr Nambiar over that of Dr White is that a number of aspects of Dr White’s opinions about Mr Power do not sit comfortably with the other evidence about him. On some occasions, Dr White’s opinions were at stark odds with other objective evidence. Again by way of example, in his report, Dr White described Mr Power’s personality profile as “emotionally stable and able to deal with most of life stresses. [Mr Power] perceived he had good control over his emotions”.64 This does not accord with any of the other material that I have before me about Mr Power’s behaviour and temperament, both in and out of custody. Dr Nambiar was asked about this passage in Dr White’s report and was asked whether he agreed with this assessment. He said:65 No, because by definition with a borderline personality order, and as I said earlier, the central problem is emotional dysregulation. 107 When Dr Raeside was asked about this aspect of Dr White’s report and whether it accords with his assessment, his response was similar. He said:66 No, first of all it doesn’t accord with my assessment but also even if I hadn’t assessed Mr Power and just read the material provided to me by the court, I don’t think you could come to that conclusion. When asked in what way it did not accord with his assessment, Dr Raeside explained:67 Well, each of the comments you just read, in terms of - I suppose I should qualify my response, it depends what those terms actually mean in terms of his personality assessment but agreeableness, conscientiousness and openness, certainly the reports from the problems 63 T86.24–T.86.30 (4 May 2023). 64 Dr Jack White, Psychological Report (24 April 2023), 19 (‘White Report’). 65 T32.16–T.3218 (27 April 2023). 66 T85.13–T.85.16 (4 May 2023). 67 T85.19–T.85.31 (4 May 2023). -- 25 of 38 -- [2024] SASC 16 McDonald J 24 in custody are not consistent with that, let alone previously. Also, the nature of his personality disorder, is that he’s not emotionally stable and will tend to maladaptively respond to stress whereas the comment that he’s emotionally stable and able to deal with most of life’s stresses simply does not accord with either the written material or the history obtained from Mr Power. 108 Elsewhere in his report, Dr White described that Mr Power’s personality profile indicated that he was not an aggressive person. Dr White elaborated:68 On the interpersonal scales (i.e. the way that a person relates to others) Mr Power was very low on the ‘Dominance’ scale and very high on the ‘Warmth’ scale. Mr Power’s interpersonal style was best characterised as conforming, needy and gullible. Mr Power was likely to have a strong fear of rejection by others, and was likely to find it very difficult to assert himself or to display anger. Again, this is completely at odds with all of the other material before me. When asked about these observations made by Dr White, Dr Nambiar said that they were at complete odds with his assessment. 109 There was an additional difficulty with Dr White’s evidence in that it was difficult to determine what view, if any he was expressing about the risk that Mr Power posed to the community and whether he had formed an opinion as to whether Mr Power was unwilling or unable to control his sexual instincts in the manner set out in s 57. To appreciate the point it is necessary to include a relatively lengthy portion of Dr White’s cross-examination.69 Q. Moving on to heading at 4.6 where you've indicated under the heading 'Is Mr Power willing to control his sexual instincts given that he will be under DCS supervision and an antilibidinal regime?', were you given any indication by Mr Truscott as to what the conditions of any supervision order would or would not be. A. No, I wasn't, I don't think. Q. Do you consider that information as to such conditions would have been relevant. A. I understand that it would be that he would continue to take the medication and be under the direction of the his parole officer. Q. And that was the extent of the conditions that you understood would be proposed. A. As far as I'm aware, yes. Q. What do you understand an assessment of willingness, for the purposes of s.57, to mean. A. To show a motivation to change. Q. If I suggest to you that s.57(1) provides that a person is deemed to be unwilling if there is a significant risk that the person would, given an opportunity to commit a 68 White Report 21. 69 T45.37–T48.27 (4 May 2023). -- 26 of 38 -- [2024] SASC 16 McDonald J 25 relevant offence, fail to exercise appropriate control of the person's sexual instincts, do you accept that that's quite a different test to looking at a motivation to change. A. I think it's quite a complex question, the latter. I think in the first instance motivation for change is fundamentally what we are looking at. The second question you ask is you have to make the assumption that the person does have that condition. And if, for example, the person may not have that condition, then it might be a nonsense to suggest the person engage in some sort of treatment to change it. Q. Do you accept, though, that the test, when looking at willingness for the purpose of s.57, relates to whether or not there is a significant risk that the person would commit a further serious sexual offence; do you accept that that is the test. A. That's the definition, yes. Q. And that's quite different, as I said, to a person might be motivated but still, nonetheless, present a significant risk of committing a further serious sexual offence. A. Well, I think it's the judgment of others that determine his risk. It's not that person who can determine his or her risk. Q. In preparing your report, did you understand that you were one of those people who were required to judge the assessment of that risk. A. Yes, I did. Q. Now, I can't see anywhere in your report where you have referred to what the risk of Mr Power committing a further serious sex offence is, did you include such an assessment. A. I think I was commenting on the nature of his offending behaviour. The question is whether or not it is a matter of reducing his hypersexual orientation. And clearly the evidence was that the drugs that he was prescribed reduced that based on the opinions provided by Dr Nambiar and Dr Raeside and that particular article. I didn't go to a specific of saying what percentage risk he might be, but I would say on the basis of that information and the fact that he has participated in a sex offender program and the basis that he has completed his prison sentence and the basis that he has got supportive, potentially supportive family in the community, all of those factors would be positive if he also doesn't continue to use drugs, if he doesn't engage with the people that he was involved with previously and if he can possibly resolve some of the conflicts he's had as far as his past traumas are concerned. So all of that, I hope, makes that question rather complicated. CONTINUED HER HONOUR Q. Are you aware that there is a particular legal definition for the term 'unwilling' in terms of the Sentencing Act. A. I am aware of that, yes. Q. Have you applied that definition at any point in your report. -- 27 of 38 -- [2024] SASC 16 McDonald J 26 A. Well, as I say, I think the evidence is that he has complied with all the medication, he's complied with the test - with the programs, he's basically been in prison for the length of term that he was given. All of those are positives. Q. That might be so but anywhere in the report have you addressed the question of whether he's unwilling to control his sexual instincts in accordance with the legal definition. A. Well I guess - Q. It would help me if you can identify where it. A. Yes. I said in the end 'Mr Power's risk of future offending is further reduced by his compliance with pharmacological treatment and his compliance with community- based treatment'. XXN Q. Yes, but do you accept though that that is not an assessment of his risk, is he a high risk, is he a low risk is he a moderate risk of sexual re-offending. A. I didn't address that. 110 With respect to Dr White I did not find this series of answers to be particularly helpful in determining the relevant issues that arise on this application. 111 As I have said, in so far as it is necessary for me to determine I prefer the evidence of Dr Nambiar and Dr Raeside over the evidence of Dr White. Concurrent evidence of Dr Raeside, Dr Nambiar and Dr Burgess 112 By the conclusion of the evidence and upon the receipt of Dr Burgess’ report, there were still some matters that required clarification, particularly in relation to the antilibidinal medication. On that basis, it was determined that rather than request further reports, it would be more efficient to call the three experts to give evidence concurrently in what has been referred to as a ‘hot tub’. That occurred on 16 November 2023. 113 The three doctors were asked questions about the prescription and appropriate dosage of antilibidinal medication. The questioning centred around the “2020 World Federation of Societies of Biological Psychiatry treatment guidelines for the pharmacological treatment of sex offenders.” This report summarises all of the studies conducted around the world that relate to the use and outcomes of the use of antilibidinal medication.70 The report sets out the principles to take into account in considering whether someone would potentially benefit from the medication and how to go about prescribing it. Dr Raeside explained:71 70 Exhibit A6. 71 T6.4–T.6.8 (16 November 2023). -- 28 of 38 -- [2024] SASC 16 McDonald J 27 I think its important that the guidelines aren’t simply about medications and dosages but where it might be considered appropriate or not appropriate, ethical considerations and the aims of the treatment as well. 114 Contained within the report is a table that sets out the treatment aims for sex offenders falling into different categories. The categories are ranked in order of the seriousness of the offending. At the lowest end of the scale, ranked level 1 are “lower level, hands off offenders, with a low risk of sexual violence” such as people who have engaged in acts of voyeurism, fetichism, and exhibitionism. At the other end of the spectrum are level 4 offenders who are classified as persons “moderately high to high-risk of sexual violence and severe paraphilic disorders” and level 5 the “most severe paraphilic disorders (catastrophic cases).”72 Based on these categories Dr Raeside placed Mr Power between 4 and 5, and Dr Nambiar and Dr Burgess placed him at level 4. However, Dr Nambiar made it plain that this ranking was based on an assessment of Mr Power’s risk if he remains compliant with treatment.73 115 The table sets out various treatment aims depending on the severity of the offending. At level 1 the treatment aim is to “control of paraphilic sexual fantasies, compulsions, and behaviours without impact on conventional sexual activity and on sexual desire.”74 Whereas for more serious offending the aims are achieved by greater levels of reduction in the testosterone. At level 4 the treatment aim is to “control of paraphilic sexual fantasies, compulsions, and behaviours, with almost complete suppression of sexual desire and activity” and for level 5 “control of paraphilic sexual fantasies, compulsions and behaviours with complete suppression of sexual desire and activity” is the goal.75 116 Dr Raeside explained why these were the treatment aims for level 4/5 sex offenders and consequently Mr Power:76 at that level, a person has displayed in the past behaviours and activities that suggest either decreased control, or unwillingness to control, their behaviour in the community, leading to them committing the offences. Therefore, they needed that added measure of control, if you like, through biological means, and psychological therapy, to assist them. So, it’s not simply there to assist them, or to give them an added little bit of help, but at that level 4 level, they need to have, you know, almost complete suppression, if not complete suppression, in order for other things to then be beneficial. 117 Dr Burgess added the observation that whilst increasing a dose in order to be more effective, the trade off is a higher level of side effects which may make it less tolerable for an offender to remain compliant.77 72 Exhibit A6, 62. 73 T7 (16 November 2023). 74 Exhibit A6, 62. 75 Exhibit A6, 62. 76 T9.29–T10.2 (16 November 2023). 77 T10.6–T.10.18 (16 November 2023). -- 29 of 38 -- [2024] SASC 16 McDonald J 28 118 All three doctors agreed that it is often impossible to completely extinguish sex drive through antilibidinal medication. Both physiological and psychological explanations were provided for that. Dr Nambiar explained both reasons. As to the physiological he said:78 Even if you completely remove the ability for a person’s testicles to produce testosterone, there is still some testosterone produced – very low levels – and possibly a person can still have an erection. 119 Dr Nambiar said that although sex drive is directly related to testosterone levels there is also a psychological component “in that a person can still have fantasises, and those fantasises are not necessarily related to the level of testosterone.”79 120 Dr Raeside was asked whether the psychological or the psychological component was more dominant. He responded: A. I don't think that's an easy question to answer, because it depends on the individual, and what drives the aberrant behaviour. So for example, if someone has highly deviant sexual arousal - that is, the things that they're attracted to, and that their sexual drive leads them to act on - then certainly psychological factors to try to change that deviance may not be successful, but would be as important, if not more, than the biological bit. So someone may still have sexual drive but then be able to channel it appropriately with psychological therapy. On the other hand, if the hypersexuality, and great difficulty controlling their sexual drive, then clearly adding a biological component can try to limit that as much as possible. I was thinking the other day in preparation that perhaps an imperfect analogy might be someone who continually is charged with speeding, or driving dangerously, on the roads, and many of them come back before the court again and again, repeating this type of behaviour. They might careless, recklessly, or simply don't care. So you could put speed limiters on the car, so that they simply can't drive over a certain limit, but they may still drive dangerously or recklessly within that speed limit. So in one sense you can put a biological control to limit the sexual drive, but that still doesn't change the carelessness, recklessness, or the other psychological drivers that might lead to them to offend even with that limit in place. 121 When asked how significant the psychological control is for Mr Power, Dr Raeside said:80 I think that it’s highly significant, because there’s a degree of aggression that goes with it as well. It’s not simply sexual behaviour, but it’s sexual aggression, or opportunistic aggressive sexual behaviour as well, in the past, and that has a strong biological component to it as well, not just the psychological aspects. 122 Dr Burgess gave evidence that he has been prescribing antilibidinal medication for Mr Power since June 2022 when he was transferred to Yatala prison. It had initially been prescribed to him by another doctor whilst he was accommodated at Mount Gambier prison. He told the Court that Mr Power is 78 T11.7–T11.14 (16 November 2023). 79 T11.7–T11.14 (16 November 2023). 80 T11.21–T12.11 (16 November 2023). -- 30 of 38 -- [2024] SASC 16 McDonald J 29 currently prescribed 225 mg of Depo-Provera four-weekly.81 Dr Burgess described this as being in the middle/upper range of maximum recommended dosages. The blood test results show that this has caused a reduction in Mr Power’s testosterone from a normal level to a very low prepubertal level. 123 Each of the doctors gave evidence that some offenders are diagnosed with hypersexuality and for those individuals that diagnosis brings with it an increased level of testosterone. The blood test results demonstrate that Mr Power does not fall into that category, if anything his original testosterone level falls on the lower side of the scales. Dr Burgess gave evidence that given this result it is likely that the psychological component is playing a greater role in Mr Power’s sex drive. 124 Dr Raeside further elaborated:82 A. Actually, I was just going to add that last comment, which is I think is too simplistic just to see Mr Power in terms of hypersexuality or whatever his sex drive is. This is a person who's had experiences throughout his life, exposure to - you know, presumably violent pornography, he's had all sorts of influences on his development, as well as some other problems. We also know about - which we haven't mentioned - his traumatic injury, which reduces his impulse control. So it's a multi-factorial issue. And, you know, we could talk about 'Can we get his free testosterone lower, closer to zero?'. I think at this level, well really, it's not going to make much difference. There's other factors at play. There's one aspect in trying to assist him to conform his behaviour appropriately. But, you know, the medication appears to be having an effective measure on reducing his testosterone. If it was increased, it might reduce it further. But it could be arguable about whether that would actually make much difference overall. And certainly in the legal setting, would that make a difference in consideration of his risk in the community? I don't think another few points dropping would make much difference in those decisions. Q. I'll come back to that in a bit more detail in a moment. But just while we're on this topic - and it's a question I forgot to clarify with Dr Burgess, but am I right in saying his current testosterone levels, as shown, are at a prepubertal level now. DR NAMBIAR A. My understanding - DR RAESIDE A. Sorry, who - you're asking - Q. Sorry, I was asking that to Dr Raeside, apologies. A. Sorry, yeah, I thought you said Dr Burgess, but that's all right. Yes, certainly. Prepubertal level is, you know, below that .2 of free testosterone and the 8 of the testosterone, and he's well below that. 81 T14.12–T14.14 (16 November 2023). 82 T18.18–T18.38 (16 November 2023). -- 31 of 38 -- [2024] SASC 16 McDonald J 30 125 Dr Nambiar added the following observation:83 A. Yeah. Look, what I would add is that you have to remember the reinforcing effect that having erections when a person is offending has on their drive. So obviously, irrespective of his testosterone levels, even though they were, sort of when last measured before he had treatment, they were at the low-normal, we have to remember that of course, every time he had an erection with the fantasies that were associated with that, it would reinforce those fantasies. So the aim is to actually reduce that as much as possible so that if he's having less erections, there's less reinforcement. But then you still need to do the work, the psychological work, to change those fantasies away from what, at the moment, is deviant behaviour. 126 All three doctors were asked about whether any benefit could be derived from increasing Mr Power’s current dosage. Dr Raeside expressed the view that the dose could be increased to try and achieve the optimal outcome, however he was far from firm on that view. Dr Nambiar agreed with Dr Raeside and explained:84 What we’re doing here is applying as many external controls as we can to reduce the risk. And so if there’s any way of reducing testosterone further, that may be another external control that’s of benefit to his treatment. But again, as both Dr Raeside and Dr Burgess have said, that doesn’t mean that he doesn’t require the psychological treatment as well. 127 Dr Nambiar concluded his evidence on this topic by saying that whilst potentially there may be a further reduction in testosterone with an increased dose, whether that translates to less frequent erections remains untested. 128 Of the three experts Dr Burgess was the most guarded about any further benefits that could be achieved by an increased dose. When he was asked his views on this topic Dr Burgess responded:85 It’s difficult to say. There’s potentially a further reduction you might see in his sexual pre- occupation or sex drive, but it’s at quite a low level already. He’s gone from masturbating, you know twice a day, perhaps more at times, to masturbating once a fortnight on average. His account of essentially holding his genitals was without any sex drive. It seemed more a habit, rather than anything else, so I didn’t consider that related to a sexual preoccupation; more kind of a learned habit that is probably going to take some time to break, and related to boredom rather than a sexual preoccupation. If we increase his antilibidinal dosage, he does run the risk of developing side effects that he doesn’t have now. If he develops side effects, obviously, he might be less inclined to continue with this medication. And then if he’s less inclined to continue, he might stop it and then his sex drive will return, raising his overall risk. 129 In cross-examination Dr Raeside was asked about whether he would support Mr Power’s release under certain conditions if Mr Power was taking medication at the appropriate level. 83 T18.23–T18.26 (16 November 2023). 84 T20.30–T20.38 (16 November 2023). 85 T22.43–T23.13 (16 November 2023). -- 32 of 38 -- [2024] SASC 16 McDonald J 31 130 Dr Raeside responded:86 I think with the support – well I’d preface it by saying it depends on obviously the court’s concerns about what the level of risk is, and we’re not talking about extinguishing his risk but reducing his risk. With ongoing medication, the support in the community, conditioning of strict abstinence form illicit drugs and alcohol and he was compliant with that, and various other factors to assist him, as well as the comments Dr Nambiar made about social support in terms of housing and other supports I would support a release under those conditions. (Emphasis added) 131 I then asked Dr Nambiar the same question. He said:87 Yes, look, I agree. I think that there is still significant risk, but what we try to do is put in place external factors to control those risks and mitigate the risk in the community and ensuring that those factors are in place, then we’re managing the risk, we’re not eliminating the risk. 132 The following exchange then occurred:88 Q So did I hear correctly that everyone is generally in agreement that they would support a release under supervised conditions obviously with supports and obviously subject to the court’s analysis of the risk, that everyone supports or would support in theory a condition where he’s released under medication with supports. (Emphasis Added) DR NAMBIAR A Providing those conditions are in place. DR RAESIDE A Yes. 133 In re-examination Ms Nolan explored the importance of Mr Power continuing to take the antilibidinal medication in the doctors arriving at that view. Q Assuming that such a condition wouldn’t be ordered, such that he can’t be compelled to take medication without his consent, and it remains up to him to voluntarily choose to do so, does that fact change your view or opinion in relation to his suitability for release? DR NAMBIAR A I think as I have said earlier, that all those conditions should be in place. Q So it would change your view? 86 T32.36–T33.8 (16 November 2023). 87 T33.13–T33.18 (16 November 2023). 88 T33.20–T33.30 (16 November 2023).. -- 33 of 38 -- [2024] SASC 16 McDonald J 32 A If Mr Power were to elect not to take the medication then it would change my view. Q Dr Raeside? DR RAESIDE A Yes, similar Q What’s your opinion in that regard? A I understand the complexity, but that’s a key part of reducing his risk level in the community to where it might be acceptable. Without the assurance that he would be taking the antilibidinal medication, I think that his risk would be unacceptable. Conclusion Unwillingness 134 It was the clear and unequivocal evidence of Dr Raeside and Dr Nambiar that without the use of antilibidinal medication Mr Power is at a high risk of very serious reoffending. Even when using the medication the risk is not removed, it is reduced. On balance they both expressed the view that Mr Power satisfies the legal test of being unwilling to control his sexual instincts in that there is a significant risk that Mr Power would given an opportunity to commit a relevant offence, fail to exercise appropriate control of his sexual instincts. 135 I accept the opinions of Dr Raeside and Dr Nambiar and I find that Mr Power is unwilling to control his sexual instincts. It follows that the discretion to make an order pursuant to s 57 is enlivened. Should an order be made pursuant to s 57(7)? 136 The question that then arises is whether it is appropriate to make an order that Mr Power be detained in custody until further order of the Court, pursuant to s 57(7) of the Sentencing Act. 137 An order for indeterminate detention should only be made if it is necessary to protect the community from the risk that an offender poses. In R v Schuster,89 the Full Court considered the significance of making public safety the paramount consideration on the application for the release on licence. In that context the Court said at [79]: What then is the legal significance of making public safety the paramount consideration? Obviously enough, even after the enactment of the Amendment Act, the Court retains a discretionary power to release on licence. The Amendment Act did not make the safety of the community a condition precedent to the favourable exercise of the discretion. The legislature did not require that the Court be satisfied that there is no, or no material, risk to the safety of the community before the discretion is enlivened. Nor did the legislature prescribe a “minimum” acceptable risk. It could not do so in any practicable way because 89 [2016] SASCFC 86. -- 34 of 38 -- [2024] SASC 16 McDonald J 33 the risk here in issue cannot be measured with mathematical precision. The use of qualifiers like low, medium or high would have been limited utility.90 138 These observations apply equally to s 57(7). The exercise to be undertaken is a balancing exercise between competing considerations with the greatest weight to be placed upon the need for public safety. The question that must be considered is whether there is some other mechanism falling short of ongoing incarceration that will afford the public adequate protection. Often an order for supervised release with restrictive conditions will be sufficient for that purpose. 139 The issue that has become the central contest on this application is the impact of antilibidinal medication on Mr Power. Two questions arise for consideration. The first is whether the use of the antilibidinal medication in combination with other appropriative conditions reduces the risk posed by Mr Power to a level that is acceptable for him to be released into the community. The second related question is whether there is a means by which there can be confidence that Mr Power will continue to take the medication that he is prescribed. 140 As to the effectiveness of antilibidinal medication Ms Nolan submitted that the state of the evidence is such that I could not be satisfied that the medication is producing the desired outcome. In those circumstances I could not be satisfied that the antilibidinal medication has reduced Mr Power’s risk profile to a level that is manageable in the community. 141 I have canvassed the evidence on this topic at [112]-[128]. Whilst it is true that Dr Raeside and Dr Nambiar leave open the suggestion that an increased dosage may improve the outcome they certainly were not wedded to the idea. I took their evidence to be no more than it is an option that could be explored but it is far from certain that it would have any substantial impact. Increased dosage also creates a heightened risk of non-compliance with the antilibidinal treatment. 142 All of the doctors were in agreement that even at the current dosage the antilibidinal medication has had a significant impact on Mr Power’s levels of testosterone and hence his sex drive. Whilst I accept that to some extent they are dependant on Mr Power’s self report, the blood test results are consistent with the decreasing sex drive that Mr Power has described. 143 As was made plain during the evidence of each of the doctors, the antilibidinal medication is not some form of panacea for Mr Power and his sexual offending. It works alongside and in conjunction with other conditions and supports in the community. It is however a critical aspect of the regime that will need to be put in place if Mr Power is to be released from custody. Based on the evidence that I have heard, absent the use of the medication, I would have no hesitancy in making the s 57 order sought by the Attorney-General. 90 R v Schuster [2016] SASCFC 86. -- 35 of 38 -- [2024] SASC 16 McDonald J 34 144 I am however satisfied that with the inclusion of the antilibidinal medication in the suite of protections that are to be put in place around Mr Power, his risk to the community is sufficiently ameliorated to release him from custody. The conditions that are proposed are the most extreme form of a deprivation of liberty outside of incarceration. Dr Nambiar summarised the situation in his evidence:91 It would really be a matter of trying to transfer an institution into the community so he would be very closely supervised. He’d be policed, basically. 145 The antilibidinal medication places a further protective layer on top of these arrangements. 146 It follows then that to ensure the protection of the safety of the community, I must be confident of Mr Power’s ongoing compliance with the medication regime. 147 Dr Nambiar gave evidence about the practicalities of how Mr Power would continue to receive the antilibidinal medication in the community. He described what the process involved: 92 So, he would be referred to a general practitioner who would then be in charge of prescribing the medication. That medication is in the form of an injection, so you would have that every month. The general practitioner would also order testosterone levels and review those levels regularly as well, to ensure that the dose is still causing the suppression of testosterone. He would also be referred to our forensic team, our community team, who would also see him to ensure that all of that is occurring through the general practitioner. 148 Dr Nambiar explained that the forensic community team is headed up by a psychiatrist and includes a psychologist, a social worker and a mental health nurse. The effect of that would be that the psychiatrist would have oversight of the prescribing of the antilibidinal. 149 It was the Attorney-General’s position that the Court does not have power to compel Mr Power to take the antilibidinal medication against his wishes. Whilst it was accepted that the primary purpose of the Act is to protect the community, and that the express power of the Court to impose conditions under the HRO Act are non-exhaustive and broad, it was submitted that these factors alone are insufficient to imply the power to make a condition requiring an offender to take medication against his wishes. The basis of that submission was that to make such an order would be to cut across or undermine the common law right to personal integrity and bodily security. Ms Nolan summarised the argument in the following terms:93 The text, context and purpose of the HRO Act do not compel the conclusion that it authorises the making of a condition of an Extended Supervision Order that would interfere with the fundamental right at issue in this case by allowing the imposition of a condition that invasive medical treatment such as anti-libidinal medication be administered 91 T37.20–T37.22 (27 April 2023). 92 T31.12–T31.22 (16 November 23). 93 Applicant’s Written Closing – Part 2. -- 36 of 38 -- [2024] SASC 16 McDonald J 35 irrespective of consent. Accordingly, the HRO Act does not authorise this kind of invasive medical treatment of a person without his or her consent. 150 Ms Nolan further contended that to attempt to frame a condition requiring an offender to take medication as prescribed would not be effective on the basis that medical professionals will not prescribe medication without informed consent. 151 In this matter it is not necessary for me to determine the question of whether the powers created by the HRO Act extend so far as to compel an offender to take antilibidinal medication without their informed consent. 152 Mr Power’s position has always been that he will consent to taking the medication. He made the decision to commence using the medication of his own volitation and under no compulsion whilst in custody. Whether that was motivated by a desire to be released from custody or to truly rehabilitate is not to the point. It was his choice. 153 Equally it remains Mr Power’s choice to consent or not to consent to continuing with the medication as he sees fit. He makes that choice in the knowledge that it may have an impact and even a potentially decisive impact on whether he remains in custody. 154 It may be Mr Power’s preference to not take the medication, he may be ambivalent about it, he may be positively enthused to take the medication. Regardless of what motivation sits behind this decision it is a decision that Mr Power has made. 155 Ms Nolan relies on comments that Mr Power has made to the psychiatrists about the potential of not requiring the medication once released into the community as indicating that he does wish to continue on it when released. Even if that was so, not wishing to undertake treatment or take medication is a very different concept to not consenting to it. I doubt any person would relish the prospect of invasive surgery – but they can nonetheless consent to the procedure. 156 In my view the community can be adequately protected by making an order that Mr Power be the subject of an extended supervision order with a condition that he consent to taking the antilibidinal medication, as prescribed by his doctor, and participate in all tests necessary in order to ensure that the correct dosage is prescribed. 157 To make such an order is not to compel Mr Power to take the medication against his wishes. Mr Power has a choice. It may well be that certain consequences follow from exercising the choice to cease taking the medication. However what those consequences will be, would be determined if and when that choice is made based on all of the surrounding circumstances at that time. 158 To approach this issue in any other way would be to deprive Mr Power of making a choice that will result in some of his liberties being restored. It would -- 37 of 38 -- [2024] SASC 16 McDonald J 36 mean that despite him being prepared to do all that was necessary to protect the community he would remain in custody. 159 I am satisfied that by ordering that Mr Power be the subject of an ESO with the condition that I have identified, the community will be sufficiently protected. 160 As I mentioned at the outset, whilst Mr Power does not oppose the imposition of an ESO he does take issue with a requirement for home detention conditions. It was submitted the conditions requiring electronic monitoring and a curfew are sufficient to minimise the risk that Mr Power poses. I do not accept that submission for reasons that I have already given. 161 The degree of risk that Mr Power poses warrants the strictest form of conditions available. 162 I propose to include a condition requiring home detention. 163 I foreshadow that in those circumstances I will decline to make an order pursuant to s 57(7) of the Sentencing Act. 164 I will make these orders when advised that the necessary supports and accommodation are in place for Mr Power’s transition back into the community. -- 38 of 38 --