Director of Public Prosecutions (WA) v Dick [No 3]

[2011] WASC 323

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

IN CRIMINAL

CITATION:   DIRECTOR OF PUBLIC PROSECUTIONS (WA) -v- DICK [No 3] [2011] WASC 323

CORAM:   EM HEENAN J

HEARD:   24 OCTOBER 2011

DELIVERED          :   29 NOVEMBER 2011

FILE NO/S:   MCS 1 of 2009

BETWEEN:   DIRECTOR OF PUBLIC PROSECUTIONS (WA)

Applicant

AND

JAMES FLAVELL DICK
Respondent

Catchwords:

Dangerous sexual offender - Second annual review - Whether still a serious danger to the community - Whether supervision order appropriate

Legislation:

Dangerous Sexual Offenders Act 2006 (WA)

Result:

Detention order not rescinded

Category:    B

Representation:

Counsel:

Applicant:     Mr R G Wilson

Respondent:     Mr B Hanbury

Solicitors:

Applicant:     Director of Public Prosecutions (WA)

Respondent:     Beau Hanbury

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

Director of Public Prosecutions (WA) v Dick [No 2] [2010] WASC 288

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

1. EM HEENAN J:  By application dated 15 July 2011 the Director of Public Prosecutions for Western Australia (the DPP) sought an order that the detention of James Flavell Dick under the continuing detention order made by McKechnie J on 18 September 2009, which was not rescinded at the first annual review hearing on 22 October 2010, be reviewed as soon as practicable after 22 October 2011 pursuant to s 29 and s 31 of the Dangerous Sexual Offenders Act 2006 (WA).

2. The history of the respondent's offending and the circumstances leading to him being declared a dangerous sexual offender are recounted in the decision of McKechnie J of 18 September 2009:  TheState of Western Australia v Dick [2009] WASC 275. In that decision McKechnie J described the respondent's criminal history in relation to sexual offences as follows:

   On 9 February 1994, following trial, the respondent was sentenced in the Supreme Court for one count of aggravated sexual assault and five counts of indecent dealing. He was sentenced to a total sentence of 4 years' imprisonment. The offences were in respect of a young girl, R. On 6 December 2001, the respondent was sentenced in the District Court for five counts of sexual penetration of a child and three counts of indecent dealing with a child. On 20 December 2001 in the District Court, the respondent was also sentenced for two counts of sexual penetration of a child under 16 and one count of indecently dealing with a child under 16. The total of all the sentences came to a term of 12 years' imprisonment. Some of the offences involved R. They occurred after his release from the first term of imprisonment [16].

3. Pending the hearing of the original application by the DPP on behalf of the State of Western Australia to have the respondent declared a dangerous sexual offender, the respondent was released upon an undertaking approved by Blaxell J on 13 February 2009.  That undertaking included a number of conditions, three of which are material.  The first was that he undertook not to possess, consume or use any illicit drugs or substances including but not limited to cannabis.  The second was that he was not to associate with any person known by him to have committed a sexual offence.  A urinalysis result on 6 August 2009 indicated that he had recently used cannabis shortly after his release from prison.  During the period of supervision he breached the second material term of the undertaking by associating with a person he knew to have committed a sexual offence.  The third material term of the undertaking was that the respondent should have no contact with any child under the age of 17 years.  It emerged that he had been in breach of this undertaking and had had regular contact with the daughter of a lady with whom he had an established sexual relationship and with her daughter's young children who were living in her house.

4. These breaches were regarded as significant by the two investigating psychiatrists appointed to review the respondent's condition in 2009.  They also provided 'powerful evidence of the respondent's attitude to supervision and lack of insight about risk laden situations':  Dick [15] (McKechnie J).

5. In his original decision McKechnie J described how the respondent had undertaken the Sex Offending Deniers' Programme, a pilot programme, but despite this had moved fairly quickly after his release into a high risk domestic relationship with young children present and with no effective supervision [33]. His Honour observed that the respondent had consciously withheld information about it from his community corrections officer. His Honour concluded that the respondent was a serious danger to the community and that his risk of further offending within the community was so great that an order for his continuing detention was appropriate. McKechnie J also took the view that because of the respondent's breaches of the undertaking there was nothing to mitigate his risk of reoffending to a level where supervision in the community would be an acceptable risk.

6. The respondent's continuing detention was reviewed by McKechnie J on 20 September 2010 and by a decision of 22 October 2010 it was concluded that the respondent was still a serious danger to the community and that his detention order should not be rescinded:  Director of Public Prosecutions (WA) v Dick [No 2] [2010] WASC 288.

7. On that occasion there was psychiatric evidence diagnosing the respondent as having 'paedophilia undifferentiated type' which was explained as the respondent not having any specific preference for pubescent or pre‑pubescent partners and as having offended against males and females.  The psychiatrist, Dr Wojnarowska, concluded that the respondent had a personality disorder which was of an anti‑social personality with strong narcissistic traits.  As to future risk she said:

   [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.

8. Those reasons alone were sufficient to lead to his Honour's conclusion that the continuing detention order should not be rescinded at that review but, in addition, his Honour concluded that the environmental scan of the proposed accommodation being suggested for supervised released into the community indicated that it was unsuitable.

9. For the purposes of the respondent's second annual review in 2011 orders and directions were made by McKechnie J on 3 August 2011.  These included a direction that the respondent should be examined by Dr Bryan Tanney and for his report to be provided before 10 October 2011.  Dr Tanney was also directed to liaise with the Department of Corrective Services as to a management plan (if appropriate) for the respondent, and directions were given ensuring that Dr Tanney had access to any audiovisual recordings of interviews with the respondent or transcripts of them for the purpose of preparing his report.

10. At this hearing evidence was adduced on the review in the form of a booklet of materials prepared for that purpose.  This included the following:

    1.Department of Corrective Services 'Individual Management Plan - Recommended', 7 September 2011.

    2.Department of Corrective Services prison visits history of the respondent from 28 July 2010 ‑ 8 September 2011.

    3.Psychiatric report by Dr B Tanney of 10 October 2011.

    4.Community Supervision Assessment Report by J Dabala, Acting Team Leader, Rockingham Adult Community Corrections Centre.

    5.Dangerous Sex Offender Report by T A Marley, clinical psychologist, Department of Corrective Services dated 13 October 2011.

    6.Community Supervision Assessment Addendum Report by J Dabala, Acting Team Leader, Rockingham Adult Community Corrections Centre.

    It was also agreed by the parties that the evidence and materials which had been adduced and presented to the court on the two previous occasions ‑ the original application and for the first annual review ‑ was to be treated as being evidence on this second review. 

11. In addition to these written materials Ms T A Marley, the Acting Director of Offender Services and a principal psychologist with the Department of Corrective Services attended, gave oral evidence and was cross‑examined on behalf of the respondent.  The psychiatrist Dr Tanney also attended, gave oral evidence and was cross‑examined.  His evidence, as is to be expected, elaborated upon and explained features of his detailed written report.  No further evidence was adduced by or on behalf of the respondent.

12. In his report Dr Tanney concluded that there continues to be a clear, definite likelihood of serious sexual reoffending against young persons with whom the respondent has established a relationship of family or close acquaintance.  His psychological issues, lack of social roles and support and manageability were all dynamic, in the sense of being issues subject to modification, which could reduce the likelihood of reoffending.  At this time, however, Dr Tanney was of the opinion that concerns remained in each area, although some small progress had been made since the 2010 annual review.  Dr Tanney reported that a treatment programme of intensive individual counselling, which had been extensively supported in previous assessments, had been implemented in late 2009 as part of the respondent's treatment in continuing detention.  According to Dr Tanney the outcome and progress of this counselling treatment to date had been differently assessed by the respondent and by the treating professional.  Dr Tanney shared the opinion of the treating counsellor that no meaningful progress in modifying the respondent's personality disorder or its impact on his likelihood of sexual reoffending had taken place.  Dr Tanney also considered that no further psychological treatments to address the origins of the respondent's sexual offending behaviours are currently available.

13. A good deal of attention in the cross‑examination of Dr Tanney was devoted to the potential effects of anti‑libidinal medication recently prescribed for the respondent.  Dr Tanney reported that a trial of anti‑libidinal medication had recently been initiated and that, although this trial was controversial in many respects, it ought to be fully completed.  In Dr Tanney's opinion continuing detention met the needs for care, control and supported treatment for the respondent and also allowed for the completion of the anti‑libidinal medication trial.  Dr Tanney did not recommend release to community supervision at this date and highlighted problems with control conditions if this were to be attempted.  In his opinion the respondent's personality disorder, the previous failure of a community based sexual offenders treatment programme to prevent reoffending and his failure to comply with the undertaking given in 2009 presented difficulties in assuring adequate supervision.  Dr Tanney's final conclusion was that except for the possible impact of the anti‑libidinal medication trial, which still needed some time and evaluation before completion, no active treatment likely to modify the assessed likelihood of sexual reoffending by the respondent is currently available. 

14. In the community supervision assessment report undertaken in preparation for this review, the author remarked that the respondent continues to justify and minimise his reasons for breaching the 2009 undertaking despite confirming his understanding of the conditions to which he was subject.  It was also noted that he continues to maintain a stance of denial for his 2001 convictions.  The author noted that the respondent fails to accept that he continues to pose a risk to the community.  Mr Dick indicated to the author that he had agreed to undergo anti‑libidinal therapy but no arrangements were then in train for him to attend a general medical practitioner in the community willing to administer this therapy and to monitor his compliance with it.  In an addendum to that report dated 18 October 2011, however, it was noted that the respondent had identified a general practitioner in the community whom he intended to approach and whom he confidently expected would prescribe the anti‑libidinal medication, but again no definite proposals in that respect had been established.

15. The clinical psychologist who prepared the dangerous sexual offender report of 13 October 2011 concluded that because of the respondent's personality structure, his denial of many aspects of sexual offending and the fact that the only intervention likely to be productive is preparation for possible community supervision, Mr Dick was not assessed to be suitable for any ongoing psychological or programmatic intervention in the prison environment.  He would not be offered any further interventions if a continuing detention order remained in effect.

16. In these circumstances the submission on behalf of the applicant was that, subject to any positive effect of the current anti‑libidinal medication trial, the respondent had reached his potential in relation to the degree of change possible given his psychiatric/psychological condition and the treatments currently available. The applicant submitted that the respondent remains a serious danger to the community in that there continues to be an unacceptable risk that if he were not subject to a continuing detention order he would commit a serious sexual offence. Consequently the applicant submitted that this court should expressly decline to rescind the continuing detention order as contemplated by s 33(1) of the Dangerous Sexual Offenders Act.  The applicant's final submission was that, given the need to ensure the adequate protection of the community, the alternative of releasing the respondent on a supervision order would be inconsistent with his psychiatric/psychological condition and his consequent propensity to commit sexual offences against children.  The submission was, and the evidence is to the effect, that the cause of his offending remains undiminished.  The respondent maintains his denial of these tendencies and some significant aspects of his past behaviours.

17. Counsel for the respondent accepted that on the evidence adduced on this review the respondent remained, in the words of the section, a serious danger to the community.  For that reason the respondent's counsel did not submit that the continuing detention order should be wholly rescinded, but rather submitted that there should be an order for his release into the community subject to conditions.  A set of proposed conditions in the usual elaborate form was proposed.

18. I have no doubt that the respondent continues at present to be a serious danger to the community.  All the evidence is to that effect.  There is very little to support the submission that the respondent should, nevertheless, be released into the community upon a conditional supervision order.  The evidence is, and I accept the position at present to be, that there is very little in the way of therapeutic measures available which may reduce the danger which the respondent poses to the community except, possibly, for the efficacy of the anti‑libidinal medication which at the moment is at a very early stage of trial.

19. The evidence established that such anti‑libidinal trials begin with a minimal dosage of the medication, that the performance of the respondent on such a dosage is monitored over time, and that, usually as shown to be necessary, the dosage is gradually increased until the point is reached where the assessing medical practitioner concludes that it is proving to be effective.  This process is undertaken by a series of regular blood tests which monitor the patient's hormone levels.  The point has not been reached where the trial has had sufficient time to establish that an effective therapeutic dosage has been identified or that it is having any desired effect. 

20. I have no doubt that the course best designed to protect the community and, if possible, to achieve a therapeutic reduction in the respondent's tendencies, is to let the anti‑libidinal medication trial run its course and if the results are encouraging to review them when they come to hand. This could certainly be done at the next annual review in 12 months but if the anti‑libidinal medication were to prove clearly successful and the risk to the community represented by the respondent could thereby be reduced to a tolerable level, that would, presumably, provide grounds for the respondent to apply to this court for a review on his own initiative before the expiration of another 12 months: see s 30 of the Dangerous Sexual Offenders Act.  If that result were to be achieved it would then possibly be appropriate to consider a trial of conditional release in the community but part of the design for such a programme would need to take into account some form of continuing supervision of the anti‑libidinal medication, if thought appropriate, and the setting of conditions tailored to the circumstances of the respondent at that future point. 

21. At this stage, however, I am satisfied that the respondent remains a continuing serious danger to the community and that the existing compulsory detention order should not be rescinded.  Neither should a conditional release order be made.  The result is that his detention will continue unless and until altered at some future review.