The State of Western Australia v Dick - [2024] WASC 88

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL

CITATION:   THE STATE OF WESTERN AUSTRALIA -v- DICK [2024] WASC 88
CORAM:   QUINLAN CJ
HEARD:   22 MARCH 2024
DELIVERED          :   22 MARCH 2024
PUBLISHED           :   22 MARCH 2024
FILE NO:   SO 1 of 2009
BETWEEN:   THE STATE OF WESTERN AUSTRALIA
Applicant

AND

JAMES FLAVELL DICK
Respondent

Catchwords:

Criminal law – High Risk Serious Offenders Act 2020 (WA) – Preliminary hearing – Whether reasonable grounds for belief that restriction order might be made – Whether interim supervision order may be made – Turns on own facts

Legislation:

Dangerous Sexual Offenders Act
High Risk Serious Offenders Act 2020

Result:

Orders pursuant to s 46(2) made

Category: B

Representation:

Counsel:

Applicant	:	T Holloway
Respondent	:	F Veltman

Solicitors:

Applicant	:	State Solicitor's Office
Respondent	:	Frances Veltman

Cases referred to in decision:

The State of Western Australia v CA [2020] WASC 164

QUINLAN CJ:

(This judgment was delivered extemporaneously and has been edited from the transcript.)

On 18 September 2009, the respondent, James Flavell Dick, was declared a dangerous sexual offender under the now repealed Dangerous Sexual Offenders Act 2006 (WA) (DSO Act). Mr Dick was made subject to a continuing detention order under the DSO Act.
Mr Dick underwent four annual reviews of that continuing detention order in 2010, 2011, 2012 and 2013. On 1 October 2013, Hall J ordered that Mr Dick be released on a supervision order under the DSO Act. The supervision order was made for a period of 10 years. As a result of further applications to the court, the supervision order was amended by Fiannaca J on 15 September 2016 and further amended by Curthoys J on 31 August 2022.
The orders made by Curthoys J on 31 August 2022 extended the duration of the supervision order by 7 months. As a consequence, the supervision order made under the DSO Act, and continued as a supervision order under the High Risk Serious Offenders Act 2020 (WA) (HRSO Act) (pursuant to s 125 of that Act), will expire on 30 April 2024.
By application dated 12 January 2024, the State has applied for a further restriction order under the HRSO Act, being a supervision order. The State's application seeks a supervision order in largely the same terms, at least on an interim basis, as the supervision order to which Mr Dick is currently subject.
The State is able to make the application under s 36 of the HRSO Act which provides that the State may apply to the court for a restriction order in relation to an offender who is subject to a supervision order that is to expire within 1 year.
The preliminary hearing for the application came before me today. The main purpose of the preliminary hearing is for me to decide whether there are reasonable grounds for believing that the court might find, pursuant to s 7 of the HRSO Act, that Mr Dick remains a high risk serious offender within the meaning of that Act.
A 'high risk serious offender' is a person in relation to whom the court is satisfied by acceptable and cogent evidence and to a high degree of probability, that it is necessary to make a restriction order to ensure adequate protection of the community against an unacceptable risk that the person will commit a serious offence.
Mr Dick does not concede that he is such a person. Nevertheless, Mr Dick's counsel did not seek to make any submissions in opposition to a finding that there are reasonable grounds for believing that the court might find that Mr Dick remains a high risk serious offender.
For the reasons which I will now give, I am satisfied that there are reasonable grounds for believing that the court might find that Mr Dick remains a high risk serious offender. For that reason, I will make orders for the hearing of the restriction order application.
In support of the application, the State relies upon an affidavit of Daniel Sean McDonnell affirmed on 12 January 2024. The State also tendered prosecution notices and statements of material facts in relation to six outstanding charges of contravening the current supervision order. Those charges remain undetermined.
Mr McDonnell's affidavit sets out Mr Dick's criminal history, including sentencing transcripts in relation to a number of 'serious offences' within the meaning of the HRSO Act. The affidavit also annexes a number of expert reports in relation to Mr Dick's treatment and his risk of committing further offences, including serious offences within the meaning of the HRSO Act.
I need not set out all of that material in detail. The following particular matters, however, may be noted.
Mr Dick is now 63 years of age. His sexual offending dates back to the 1990s.
Between 1990 and 1993 Mr Dick committed serious sexual offences against two victims, one of whom was a boy and one of whom was a girl. In each case Mr Dick was in a familial relationship with the victim.
Mr Dick was first sentenced to offences (relating to the girl) on 9 February 1994. He was sentenced to a term of 4 years imprisonment. Those offences included one count of aggravated sexual assault and five counts of indecent dealing.
Mr Dick was released from prison on completion of that sentence and, in 1998, he reoffended against the same victims; that is the girl and the boy referred to earlier. Mr Dick was convicted of two counts of sexual penetration of a child under 16, one count of indecent dealing with a child under 16, one count of attempted sexual penetration without consent, three counts of indecent dealing of a de facto child and five counts of sexual penetration of a de facto child.
Some of the offences against the male victim were committed between 1990 and 1993; that is, the offences were committed before, but convictions were entered after, Mr Dick's first term of imprisonment.
In 2001, at separate sentencing hearings, Mr Dick was sentenced to further terms of imprisonment. Those terms of imprisonment were completed in 2009, following which the application was made under the DSO Act, which ultimately led to his current supervision order.
The affidavit evidence reveals that Mr Dick has undergone a number of psychiatric examinations and interventions over the years, including by Dr Peter Wynn Owen who provided a psychiatric report for the purposes of the original application in 2009 and also provided the most recent psychiatric report in relation to Mr Dick in 2022. The latter report was made for the purposes of the proceedings before Curthoys J, which were contravention proceedings in relation to breaches of the supervision order.
The reports compiled at the time of those contravention proceedings are the most recent reports that are before me, which also include a report a Treatment Report of a psychologist and a Performance Report by Mr Dick's community corrections officer. Prior to that time, the last report by a treating psychologist was a report dated 21 February 2019.
The following pertinent matters appear from those reports.
The treatment report dated 21 February 2019 records that Mr Dick attended counselling over a prolonged period, although the efficacy of the intervention was compromised by Mr Dick's sustained denial of the greater part of his offending.
The report stated that, notwithstanding the treatment responsivity factors, Mr Dick had ultimately achieved sustained stability in the community including becoming married and maintaining a group of friends and acquaintances. I note, in this regard, that Mr Dick has not committed any sexual offences since he has been on the supervision order. To that extent it can be said that the supervision order has met its primary purpose, notwithstanding that there have been a number of contraventions of the order over the years.
The report dated 21 February 2019 continued:
Overall, intervention is considered to have had relatively limited impact with specific reference to specific criminogenic factors such as sexual deviance, which in turn prevented any substantial analysis/acceptance of likely precursors to his offending aimed at managing future risk.
That report concluded that:
It is deemed unlikely that further intervention would have any discernible impact on [Mr Dick's] level of risk and the most appropriate future management in this regard should be based on supervision and monitoring.
This appears to be a theme that is reflected in the reports that were provided as part of the contravention proceedings in 2022; namely that there is limited prospect of improvement, by way of treatment gains for Mr Dick's risk factors, and that his risk is best managed by external restraint, including by way of orders such as a supervision order.
Dr Wynn Owen's report of 18 July 2022 for example, confirmed psychiatric diagnoses that Mr Dick had a Paedophilic Disorder, non-exclusive type, and Cluster B Personality Disorder, with Narcissistic and Antisocial traits.
Dr Wynn Owen's 2022 report concluded:
On the basis of this assessment, considering Static 99R score, the ongoing presence of an array of dynamic risk factors identified by the RSVP, the presence of sexual deviance and high levels of psychopathy being the risks most strongly associated with the risk of future sexual offending, I am of the opinion that Mr Dick presents a high risk of future serious offending if not subject to a Restriction Order.
Mr Dick has not committed a new sexual offence since release to a Supervision Order. He has, however, continued to display anti-authoritarian attitudes and to resist and challenge supervision in a manner suggesting that whatever he says in supervision or court about the order he believes it to be unnecessary and restrictive. This attitude in tandem with his denial and minimisation, at times dismissal, of past offending is likely to continue to place him in high risk situations.
Future risk management will continue to rely on external constraint.
The same theme appears in a report of a Senior Forensic and Clinical Psychologist dated 18 July 2022. That report concluded that Mr Dick has not derived any observable or sustained behaviour or attitudinal change and that the utility of psychological intervention appeared limited.
The final conclusion in the report dated 18 July 2022 was:
Mr Dick has a range of enduring outstanding treatment needs, the likes of which have been unresponsive to psychological intervention. As such, supervision and monitoring should be prioritised over individual psychological intervention which should only form part of any restriction order should Mr Dick experience a significant decline in mental health.
The community corrections report given at the same time also raised concerns in relation to aspects of compliance.
On the basis of all of the material, I am satisfied that there are reasonable grounds for believing that the court might find that Mr Dick is a high risk serious offender. In that regard I do not have to be satisfied that a restriction will be made. It is sufficient if there are reasonable grounds for believing that an order might be made. To say something might occur is to say that it is possible, and a belief is an inclination of mind towards assenting to rather than rejecting a proposition. For there to be reasonable grounds for belief requires the existence facts which is sufficient to induce that state of mind in a reasonable person.
The most recent reports in relation to Mr Dick provide a reasonable basis for concluding that the risk factors of him reoffending are now relatively stable, in the sense that the individual criminogenic risk factors faced by Mr Dick are unlikely to respond to further treatment. The two most recent reports have, for that reason, focused on supervision as the best means of reducing the risk that they identify.
The reports are, of course, now 18 months old. Nevertheless, the nature of the opinions expressed therein provide a reasonable basis to conclude that, unless some significant change has occurred, the court might accept that the factors identified in those reports are still present.
For those reasons I will make orders for the hearing of the restriction order application.
In the meantime, the State seeks an order that Mr Dick be the subject of an interim supervision order in the same terms as the order to which he is currently subject.
Section 58 of the HRSO Act provides that the power to make an interim supervision order in pending proceedings under the Act only applies if 'the offender to whom the pending proceedings relate is not in custody' (s 58(2)(b)). In The State ofWestern Australia v CA,[1] Fiannaca J interpreted the equivalent provision in the DSO Act, to apply to the situation in which the offender will not be in custody on a specified future date before the application for the div 2 order is finally determined. That approach has been followed in relation to the HRSO Act on many occasions.
[1] The State of Western Australia v CA [2020] WASC 164 (The State of Western Australia v CA)
Mr Dick is currently in custody as he is on remand on six charges of contravening his supervision order. Mr Dick is due to appear before the Magistrates Court later today in relation to those charges and his counsel has indicated that, either today or in the very near future, an application for bail will be made in relation to those charges.
There is therefore some real prospect that Mr Dick will not be in custody in the foreseeable future. Nevertheless, to construe s 58(2)(b) as applying in circumstances in which the offender is in custody and might be released on an unspecified date, being the date of a successful bail application would go beyond the interpretation given to the provision in The State of Western Australia v CA and the cases that have followed it. Accordingly, I do not consider that there is jurisdiction to make an interim supervision order at this time.
For that reason, I will not determine the application for an interim supervision order at this time. As agreed by the parties, I will list that application for hearing on 29 April 2024 (that is, on the day prior to the expiration of the existing supervision order) on the basis that by that time Mr Dick may be on bail for the outstanding charges.
For the purposes of that application, I direct, pursuant to s 85 of the HRSO Act, that Mr Dick attend before the court on 29 April 2024.

I certify that the preceding paragraphs comprise the reasons for decision of the Supreme Court of Western Australia.
KT
Principal Associate to the Hon Chief Justice Quinlan
22 MARCH 2024