Director of Public Prosecutions (WA) v Dick [No 2]

[2010] WASC 288

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

IN CRIMINAL

CITATION:   DIRECTOR OF PUBLIC PROSECUTIONS (WA) -v- DICK [No 2] [2010] WASC 288

CORAM:   McKECHNIE J

HEARD:   20 SEPTEMBER 2010

DELIVERED          :   22 OCTOBER 2010

FILE NO/S:   MCS 1 of 2009

BETWEEN:   DIRECTOR OF PUBLIC PROSECUTIONS (WA)

Applicant

AND

JAMES FLAVELL DICK
Respondent

Catchwords:

Dangerous sexual offender - First annual review - Whether still a serious danger - Whether supervision order appropriate

Legislation:

Dangerous Sexual Offenders Act 2006 (WA)

Result:

Detention order not rescinded

Category:    B

Representation:

Counsel:

Applicant:     Mr D Dempster

Respondent:     In person

Solicitors:

Applicant:     Director of Public Prosecutions (WA)

Respondent:     In person

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

The State of Western Australia v Dick [2009] WASC 275

1. McKECHNIE J:  This is the first annual review.  On 18 September 2009 the respondent was found to be a serious danger to the community and ordered to be detained in custody for an indefinite term for care, control or treatment:  The State of Western Australia v Dick [2009] WASC 275. On 22 July 2010, I ordered that a psychiatrist, Dr Wojnarowska, be appointed to examine the respondent and prepare a report. At that hearing the respondent indicated that he intended to represent himself.

2. The review took place on 20 September 2010 at which Dr Wojnarowska, Ms Wade, a Senior Community Corrections Officer; Ms Wager, a senior forensic consultant psychologist; and, Senior Constable Hemmingway of the Sex Offender Management Squad gave evidence for the applicant.  The respondent gave evidence on his own behalf.

3. The respondent remains a serious danger to the community and I decline to rescind the detention order.

A serious danger to the community

1. The respondent cross‑examined Dr Wojnarowska to the general effect that she was biased, disliked sex offenders and was partial.  Several matters which she included in her report as comments made to her by the respondent he asserted were not made by him and were obtained by her from other reports.  For reasons which follow I do not accept those allegations.

2. I find that Dr Wojnarowska properly and impartially interviewed the respondent and her opinion reflects her professional view that the respondent has a clinical disorder of paedophilia with pronounced psychopathic traits.  However, even if I accepted Mr Dick's submissions and completely rejected the evidence of Dr Wojnarowska it would make no difference.  The factors that led to the conclusion that the respondent was a serious danger to the community in 2009 are unchanged. 

The evidence of Dr Wojnarowska

1. Dr Wojnarowska was provided with a great deal of material and, in addition, interviewed the respondent over a period of hours.  Her diagnosis was that of 'Paedophilia undifferentiated type', which she explained meant that Mr Dick does not have any specific preference to pubescent or pre‑pubescent and has offended against male and female.  She strongly disagreed with Dr Tanney's assertion that 'Mr Dick adopted a Cluster C personality disorder'.  Her conclusion on personality disorder was anti‑social personality disorder with strong narcissistic traits.  Her opinion, both as to paedophilia and personality disorder aligns more with that of Dr Wynn‑Owen than Dr Tanney.  As to risk:

   [Mr] Dick constitutes a high risk of re‑offending if released to the community.  The treatment options in his case are very limited and have proved to be unsuccessful.  This is due to his personality style and psychopathic traits.  His high risk of re‑offending is directly related to his deviant sexual preferences compounded by his deceptiveness, ability to manipulate and pathological lying.

2. As set out in The State of Western Australia v Dick, the respondent was returned to prison after breaching his undertaking.  Relevantly, he also lied to Dr Tanney about important information.

3. In cross‑examination it was suggested that Dr Wojnarowska was swayed by the Director of Public Prosecutions (WA) (DPP) to give reports in its favour.  When it was suggested that she had not been told certain background information by the respondent she denied this but added 'my report would have been very similar even if I didn't have any background information'.  She was cross‑examined about a Static‑99 test which was one of the tools used by Dr Wojnarowska to assess risk.

4. The respondent has an understandable misunderstanding about Static‑99.  He undertook a lengthy questionnaire prior to participating in the sex offenders deniers course and this may have been the source of his confusion.  In fact a Static‑99 score is derived by application of specific coding rules which give a numerical value to certain fixed factors.  As an example, not relevant in the case of Mr Dick, a person under 25 years scores 1.  Dr Wojnarowska applied Static‑99 as one of a number of tools together with a guided clinical assessment to make a prediction of risk.

5. Dr Wojnarowska denied the proposition that she did not investigate anything but just used the documents that were supplied to her.  She said that the words and phrases attributed to the respondent in her report were what was said to her during the interviews.  She denied making the report look good for the DPP.  At page 10 of her report, Dr Wojnarowska noted that:

   He became quite irritable when questions in relation to the more serious offence of sexual penetration were asked and he used the phrase which would be repeated frequently throughout the interview 'I never did and I never will'.

6. The respondent gave fulsome evidence before me, was cross‑examined and he frequently used the same expression.  This supports a view that Dr Wojnarowska extensively interviewed the respondent.

7. The respondent's evidence maintains his denial of guilt in respect of the later convictions against R and P.  He has consistently denied these offences.  However, the denials have to be seen in the light of unanimous jury verdicts to the contrary and this affects his credibility generally.  Dr Wojnarowska's evidence is that she has prepared some 16 reports under the Dangerous Sexual Offenders Act 2006 (WA) and that she does so independently; that is, without trying to favour any party. Having reviewed the three volumes of material in the previous trial, there is nothing to sustain the submission that Dr Wojnarowska largely based her report on that material. Having regard to the adverse affect on his credibility of his continued denials, I am not prepared to accept his word over Dr Wojnarowska as to the content of their conversations. I am quite satisfied that she engaged with the respondent and formed a professional opinion as to her diagnosis and assessment of risk. I do not accept that her independence has been shown to be compromised in any way.

Conclusion on whether the respondent remains a serious danger

1. I accept Dr Wojnarowska's assessment of risk.  There is no evidence that the respondent's danger to the community has lessened.

Continued detention or supervision

1. The paramount consideration is the need to ensure the adequate protection of the community:  Dangerous Sexual Offenders Act s 33(3).

Previous breach

1. I imagine that the respondent regards his detention in custody and any continued custody as punishment for his breach of the undertaking.  This is understandable because punishment or community protection must look the same from his point of view.

2. However, the two matters are at law quite distinct.  The significance of the breach of undertaking is the attitude it displayed and the demonstrated lack of insight by the respondent as to minimisation of risk of further offending.  The respondent does not demonstrate any greater insight now than then.  I make that finding having heard the respondent cross‑examine witnesses, give evidence and be cross‑examined himself.

3. It is not for police or community justice to prevent him from offending.  It is for the respondent, firstly, to appreciate the risk he poses to children.  Next he must actively embrace risk minimisation strategies and a pro‑social lifestyle.  Only then might a judge have some confidence that his release into the community under supervision will pose an acceptable risk in all the circumstances.  The respondent is far away from that.

4. About the only bright spot is that the respondent is engaged in counselling sessions that may lead to a greater insight, notwithstanding the gloomy prognosis given by Dr Wojnarowska quoted earlier.

5. The respondent asks for a second chance to prove that he is not a risk.  However, the terms of the Dangerous Sexual Offenders Act are not about second chances but about adequate protection of the community.  Senior Constable Hemmingway's observations that trust has been effectively destroyed and that it will take a great deal of time and effort to restore it are on point.  Applying that criterion the only possible order is a continuing detention order.

6. Had I reached a different conclusion it would have been necessary to adjourn these proceedings for a time.  The environmental scan of the proposed accommodation indicated it was unsuitable.  The respondent agreed with part of the scan and withdrew his application for accommodation there.  However, as I have concluded that supervision is not sufficient to protect the community the accommodation issue falls away.