The State of Western Australia v Dick
[2022] WASC 286
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
CITATION: THE STATE OF WESTERN AUSTRALIA -v- DICK [2022] WASC 286
CORAM: CURTHOYS J
HEARD: 1 AUGUST 2022
DELIVERED : 31 AUGUST 2022
FILE NO/S: SO 1 of 2009
BETWEEN: THE STATE OF WESTERN AUSTRALIA
Applicant
AND
JAMES FLAVELL DICK
Accused
Catchwords:
Criminal law - High risk serious offender - Contravention of supervision order - Application to rescind or amend supervision order
Legislation:
Dangerous Sexual Offenders Act 2006
High Risk Serious Offenders Act 2020
Category: B
Representation:
Counsel:
| Applicant | : | B Meertens |
| Accused | : | F Veltman |
Solicitors:
| Applicant | : | State Solicitor's Office |
| Accused | : | Frances Veltman |
Cases referred to in decision:
Director of Public Prosecutions for Western Australia v Hart [2019] WASC 4
Director of Public Prosecutions v Dick [No 5] [2013] WASC 357
The State of Western Australia v Atkinson [No 2] [2020] WASC 379
The State of Western Australia v Narrier [No 6] [2020] WASC 349
The State of Western Australia v Yates [2020] WASC 149
The State of Western Australia v ZSJ [2020] WASC 330
CURTHOYS J:
Introduction
The respondent, Mr Dick, is subject to a supervision order made on 1 October 2013 under the Dangerous Sexual Offenders Act (WA) (DSO Act). The DSO Act was repealed upon the commencement of the High Risk Serious Offenders Act 2020 (WA) (HRSO Act).
The State applies for an order pursuant to s 55 of the HRSO Act that the supervision order be rescinded and a continuing detention order be made, or alternatively, that the supervision order be amended.
The State alleges that Mr Dick has contravened the supervision order on four separate occasions. Mr Dick has pleaded guilty to the first two contravention charges under s 80(1) of the HRSO Act. The State relies on two further alleged contraventions which have not been the subject of formal charges under the HRSO Act.
Mr Dick has been in custody for eight months on an interim detention order pending the determination of this contravention application.
Background
On 18 September 2009, McKechnie J declared Mr Dick a dangerous sexual offender and made a continuing detention order (CDO) under s 17(1) of the DSO Act.
The facts of the offending that prompted the original application under the DSO Act were succinctly summarised by Hall J in Director of Public Prosecutions v Dick [No 5]:[1]
It suffices to say that between 1990 and 1993 the respondent committed serious sexual offences against two victims, a girl and a boy. He later re‑offended against the same victims in 1998. In respect of both victims the respondent was in a familial relationship. He served two periods of imprisonment in respect of these offences; from 9 February 1994 to 10 March 1995 and from 3 March 1999 to 18 February 2009. Allegations in relation to other alleged victims were dismissed, discontinued or overturned on appeal.
[1] Director of Public Prosecutions v Dick [No 5] [2013] WASC 357 [13].
Mr Dick underwent four annual reviews of the CDO. At the fourth review on 1 October 2013, Hall J ordered Mr Dick's release on a supervision order containing 44 conditions for a period of 10 years.
On 15 September 2016, on the application of the CEO of the Department of Corrective Services, Fiannaca J amended the supervision order by deleting three conditions and substituting three new conditions.
On 26 August 2020, the HRSO Act commenced and the DSO Act was thereby repealed.
Under s 125 of the HRSO Act, an order made under the DSO Act continues in effect and is taken to have been made under the corresponding provision of the HRSO Act. The supervision order made on 1 October 2013, as amended on 15 September 2016, continues in effect.
On 22 December 2021, Mr Dick was made subject to an interim detention order by Strk J.
Mr Dick has not been charged with any serious offences since his release under the supervision order in 2013.
The contraventions
The State particularises four contraventions of the supervision order in the book of materials tendered for the purposes of the contravention application.[2] The first and second contraventions have been the subject of formal charges under s 80(1) of the HRSO Act. The third and fourth contraventions were not the subject of formal charges under the Act.
[2] Exhibit A, 108 - 111.
In all four instances, Mr Dick is alleged to have contravened condition 4 of the supervision order which provides that he is to be under the supervision of his Community Corrections Officer (CCO) and to comply with the lawful orders and directions of the CCO.
The first contravention was alleged to have occurred on 24 June 2021. On 25 September 2018, Mr Dick was served with a written lawful instruction from his CCO instructing him not to delete any data from any computer or electronic storage advice without prior permission. Between 21 and 24 June 2021, Mr Dick engaged in a conversation via Facebook Messenger. There was no record of the Facebook Messenger conversation on his phone. The only reasonable inference was that Mr Dick had deleted the conversation in contravention of the instruction from his CCO.
The second contravention was alleged to have occurred between 22 and 26 June 2021. It relates to a separate conversation that Mr Dick had via Facebook Messenger with his daughter. There was no record on his phone. The only reasonable inference was that Mr Dick deleted 10 messages and ultrasound images of his unborn grandson.
On 19 July 2021, Mr Dick was arrested and charged with the first contravention offence.[3] He was charged with the second offence on 30 July 2021.[4] On 26 August 2021, Mr Dick appeared in the Perth Magistrates Court and pleaded guilty to the two charges. He was sentenced to a cumulative term of 6 months 14 days' imprisonment suspended for 8 months.
[3] Exhibit A, 112 (Prosecution notice lodged 19 July 2021, charge number PE 30526/2021).
[4] Exhibit A, 114 (Prosecution notice lodged 30 July 2021, charge number PE 31982/2021).
The third contravention was alleged to have occurred on 19 September 2020. On 23 July 2019, Mr Dick was served with a written lawful instruction by his CCO which included an instruction that he is only to have contact with his daughter on certain terms and conditions as outlined in the instruction. Mr Dick contravened this instruction by engaging in a Facetime call with his daughter that was contrary to the terms and conditions of contact.
The fourth contravention was alleged to have occurred on 17 February 2021. On 5 February 2021, Mr Dick was served with a written lawful direction which included an instruction that he was not to have possession of images of his grandson without obtaining prior approval from his CCO. Mr Dick contravened the instruction receiving and being in possession of an image of his grandson without prior approval from his CCO.
Mr Dick does not admit the third and fourth contraventions.[5]
[5] ts 56, 63 - 64 (1/8/2022).
The application
The State filed its contravention application on 21 December 2021. The particulars of the application were as follows:[6]
(1)Upon the Court being satisfied that the respondent has contravened a condition of the supervision order made on 1 October 2013, an order that the supervision order be rescinded, and a continuing detention order be made in relation to the respondent;
(2)In the alternative to (1), upon the Court being satisfied that the respondent is likely to contravene a condition of the supervision order made on 1 October 2013, an order that the supervision order be rescinded, and a continuing detention order be made in relation to the respondent;
(3)In the alternative to (1) and (2), upon the Court being satisfied that the respondent has contravened a condition of the supervision order made on 1 October 2013, an order that the supervision order be rescinded, and a continuing detention order be made in relation to the respondent;
(4)In the alternative to (1), (2) and (3), upon the Court being satisfied that the respondent is likely to contravene a condition of the supervision order made on 1 October 2013, an order that the supervision order be amended in such terms as the Court thinks fit;
[6] Exhibit A, 3.
The State therefore applied for the court to rescind the supervision order made in respect of Mr Dick and for a continuing detention order pursuant to s 55(1)(a) of the HRSO Act or, alternatively, to amend the supervision order under s 55(1)(b) of the HRSO Act.
In the event the court decides to amend the supervision order, the State seeks the proposed amended conditions set out in the performance report of Shae Hazzard dated 26 July 2022. The report sets out 55 conditions as proposed by the Community Offender Monitoring Unit (COMU).[7]
[7] Exhibit B, 647 - 651 (Performance report of Shae Hazzard dated 26 July 2022, 28 - 32 (Hazzard Report)).
The amendments are largely directed at modernising the supervision order and to assist in monitoring and addressing Mr Dick's ongoing risk factors. They also relevantly include the addition of a condition permitting and regulating Mr Dick's contact with his daughter.[8]
[8] Condition 29 of the proposed conditions: exhibit B, 649 (Hazzard Report, 30).
Statutory framework and principles
Section 80(1) of the HRSO Act provides that an offender subject to a supervision order must not, without reasonable excuse, contravene a requirement of the order.
Section 53 of the HRSO Act specifies the circumstances in which the State may apply for an order under s 55. It is not in dispute in this case that the circumstances for the making of an application for an order under s 55 exist.
Section 55 of the HRSO Act provides:
55.Court to make orders in certain cases
(1)If, on the hearing of an application under section 53, the Court is satisfied on the balance of probabilities that the offender to whom the application relates has contravened or is contravening a condition of a supervision order, the Court must -
(a)rescind the supervision order and make a continuing detention order in relation to the offender; or
(b)except as provided in section 29, make an order amending the conditions of the supervision order, or extending the period for which the offender is to be subject to the supervision order, or both; or
(c)except as provided in section 29, make an order affirming the supervision order without amendment or extension.
(2)If, on the hearing of an application under section 53, the Court is satisfied on the balance of probabilities that the offender to whom the application relates is likely to contravene a condition of a supervision order, the Court must -
(a)rescind the supervision order and make a continuing detention order in relation to the offender; or
(b)except as provided in section 29, make an order -
(i)amending the conditions of the supervision order; or
(ii)amending the conditions of, and extending the period for which the offender is to be subject to, the supervision order.
(3)In deciding which order to make under subsection (1) or (2), the paramount consideration is to be the need to ensure adequate protection of the community.
A 'continuing detention order' is 'an order that the offender be detained in custody for an indefinite term for control, care, or treatment'.[9] A 'supervision order' is 'an order that the offender, when not in custody, is to be subject to stated conditions that the court considers appropriate, in accordance with s 30'.[10]
[9] HRSO Act s 3, s 26(1).
[10] HRSO Act s 3, s 27(1).
Section 29 of the HRSO Act states:
29.Limitation on power to make or amend supervision order
(1)A Court cannot make, affirm or amend a supervision order in relation to an offender unless it is satisfied, on the balance of probabilities, that the offender will substantially comply with the standard conditions of the order as made, affirmed or amended.
(2)The onus of proof as to the matter described in subsection (1) is on the offender.
(3)This section does not apply to the making of an interim supervision order.
The 'standard conditions' of a supervision order are those set out in s 30(2) of the HRSO Act and include conditions as to reporting, notification of changes of circumstances, supervision by a CCO, not leaving the State of Western Australia without permission, not committing a serious offence and being subject to electronic monitoring.
The effect of s 29 is that the offender must satisfy the court on the balance of probabilities that they will substantially comply with the standard conditions of a supervision order set out in s 30(2) before the court can amend, extend or affirm a supervision order.
The phrase 'substantially comply with' in s 29(1) is to be given its ordinary meaning, consistent with the purposes of the HRSO Act and the general conditions of a supervision order, as well as the overall object of the HRSO Act which is to achieve the adequate protection of the community by appropriate management and mitigation of the unacceptable risk that the offender will commit a serious offence.[11]
[11] Director of Public Prosecutions for Western Australia v Hart [2019] WASC 4 [52(1)].
The question of what substantial compliance looks like is a matter of judgment that depends on the circumstances of the particular case. In Director of Public Prosecutions for Western Australia v Hart,[12] Fiannaca J distilled certain factors that are relevant in assessing whether the offender will substantially comply with the standard conditions under the now repealed DSO Act.
[12] Director of Public Prosecutions for Western Australia v Hart [2019] WASC 4 [50], [52(7)].
It is well established that the principles established by the authorities in relation to the DSO Act may be applied to the HRSO Act.[13] The factors set out in Hartmay be adapted to the HRSO Act as follows:
[13] The State of Western Australia v ZSJ [2020] WASC 330 [30] - [31]; The State of Western Australia v Narrier [No 6] [2020] WASC 349 [29] - [30]; The State of Western Australia v Atkinson [No 2] [2020] WASC 379 [10] - [11].
(1)the offender's history of compliance or non-compliance;
(2)the offender's attitude to the conditions of the supervision order;
(3)the offender's capacity to comply with the conditions;
(4)what measures there are in place to ensure that the offender would substantially comply;
(5)the relative importance of any breach that might occur, in terms of the impact it would have on the practical effect of the supervision order in achieving the objects of the HRSO Act;
(6)the offender's motivation to remain offence free and in the community;
(7)any willing participation in a relevant treatment programme;
(8)abstinence from drugs;
(9)conduct while in prison; and
(10)demonstrated gains in treatment, self‑management and life skills.
Even if a court is satisfied on the balance of probabilities that the offender will substantially comply with the standard conditions set out in s 30(2), a supervision order will not necessarily be rescinded, amended or affirmed. That is because, by reason of s 55(3), the paramount consideration in deciding whether or not to make an order under s 55(1) is 'the need to ensure adequate protection of the community'. There may be extenuating circumstances outside of the offender's control such that, notwithstanding a finding that the offender will substantially comply with the standard conditions, the offender cannot be released into the community.[14]
[14] The State of Western Australia v Yates [2020] WASC 149 [33].
Evidence
At the hearing of the application, the State tendered two volumes of the book of materials each dated 1 August 2022.[15] Volume 1 contains various material including the State's present application, previous judgments, supervision orders, prosecution notices, statements of material facts, court transcripts, judgments and treatment reports prepared for prior proceedings.
[15] Volume 1 was tendered as exhibit A and volume 2 as exhibit B.
Volume 2 contains further materials provided by the Department of Justice and the following reports prepared for the contravention application:
(1)Psychiatric report of Dr Peter Wynn Owen dated 18 July 2022;
(2)Treatment progress report of Dr Kathryn Riordan dated 18 July 2022; and
(3)Performance report of Shae Hazzard dated 26 July 2022.
Dr Peter Wynn Owen, Dr Kathryn Riordan and Shae Hazzard gave oral evidence and were cross‑examined.
Mr Dick did not adduce any evidence at the hearing of the application.
Dr Peter Wynn Owen
For the purpose of the contravention proceedings, Dr Wynn Owen interviewed Mr Dick at Hakea Prison on 14 July 2022 and prepared a report.[16]
[16] Exhibit B, 596 (Psychiatric report of Dr Peter Wynn Owen dated 18 July 2022 [4] (Wynn Owen Report)).
Consistent with previous assessments, Dr Wynn Owen diagnosed Mr Dick with paedophilic disorder (non‑exclusive type) and a Cluster B personality disorder with narcissistic and antisocial traits.[17]
[17] Exhibit B, 604 (Wynn Owen Report [69]).
Dr Wynn Owen undertook an assessment of the Mr Dick's risk of serious offending utilising the three risk assessment tools: the Static‑99R, the Hare Psychopathy Checklist Revised (PCL‑R) and the Risk for Sexual Violence Protocol (RSVP).
Dr Wynn Owen is of the opinion that Mr Dick presents a high risk of reoffending if not subject to a restriction order.[18]
[18] Exhibit B, 608 (Wynn Owen Report [103]).
His opinion is based on his assessment of Mr Dick, his 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.
The most likely risk scenario was said to be a repeat of Mr Dick's past offending whereby access to a child victim is enabled through grooming of an adult who has care of the victim and subsequent grooming of the child. The victim could be a male or female child.[19]
[19] Exhibit B, 608 (Wynn Owen Report [97]).
Dr Wynn Owen observed that although Mr Dick has not committed any sexual offences since his release on the supervision order, he has continued to display 'anti-authoritarian attitudes' and to resist supervision in a manner suggesting he believes the order to be unnecessary and restrictive.[20]
[20] Exhibit B, 608 (Wynn Owen Report [104]).
Accordingly, Dr Wynn Owen concludes that future risk management would be reliant on the external restraint provided by a supervision order.[21]
[21] Exhibit B, 608 (Wynn Owen Report [105]).
Dr Wynn Owen made the following recommendations:[22]
(i)It is my opinion that there is nothing to be gained from further attempts at insight oriented psychological approaches to addressing Mr Dick's risk of offending. There is, however, potential benefit from assisting him to engage more collaboratively with the supervision team. If rapport can be established with a male psychologist this may be of benefit to risk management.
(ii)Supervision conditions should enable monitoring of sexually deviant interest and specifically address Mr Dick's high risk situations. This should include preventing access to children and monitoring the use (viewing and storage) of all electronic devices and having the authority to communicate with any contacts.
[22] Exhibit B, 609 (Wynn Owen Report, 15).
Dr Wynn Owen was asked in examination in chief if he had any view on whether or not Mr Dick's risk could be adequately managed if he was re-released on a supervision order, for example, with the amended conditions proposed by Ms Hazzard in the performance report. He responded:[23]
I think the supervision order has performed its purpose … as the breaches were identified. The breaches related to certain potentially high‑risk situations, however, the result was that they were identified and contravention proceedings were commenced. I think that it is appropriate that Mr Dick be given the opportunity to have contact with his daughter, but that needs to be undertaken in a controlled manner and then increased if that is working well under observation, over supervision. I think that would be most appropriate.
[23] ts 42 (1/8/2022).
Given the concerns raised about Mr Dick grooming his daughter as a means of gaining access to his grandson, Dr Wynn Owen was asked whether the supervision order should be amended to prohibit contact between Mr Dick and his daughter. Dr Wynn Owen's response was in effect that social networks and family supports are prosocial elements that are very significant in protecting against future risk of offending. Therefore, he did not support an order prohibiting contact between Mr Dick and his daughter.[24]
Dr Kathryn Riordan
[24] ts 43 - 44 (1/8/2022).
Dr Riordan is a senior forensic psychologist. She prepared a treatment progress report in relation to Mr Dick. The report was based on her interview with Mr Dick at Hakea Prison on 29 June 2022 and her discussions with Mr Dick's counselling psychologist, Mr David Summerton, and Mr Dick's CCO, Ms Hazzard.[25]
[25] Exhibit B, 611 (Treatment progress report of Dr Kathryn Riordan dated 18 July 2022 [4] (Riordan Report)).
Dr Riordan summarised Mr Dick's treatment progress. She said with respect to his engagement with treatment:[26]
Mr Dick has not participated in any treatment since the termination of his intervention with Mr Summerton in 2017 and the two sessions he participated in during 2018. He has participated in an extensive amount of individual treatment and has been afforded the opportunity for sustained stability of treatment provider across contexts and over time. While he appears to have drawn upon the support offered by Mr Summerton to some degree to assist in his adjustment to the community setting and to manage the order requirements, any criminogenic focus has been undermined by Mr Dick's sustained staunch denial of his sexual offending and denial of any sexual interest in children. Therefore, as highlighted by Mr Summerton, psychological intervention has been ineffective in meaningfully contributing to risk mitigation or risk management.
[26] Exhibit B, 617 - 618 (Riordan Report [29]).
In summary, Dr Riordan is of the view that despite the extensive individualised psychological intervention across six years, Mr Dick has not derived any observable or sustained behavioural or attitudinal change.[27] Indeed, she states that Mr Dick continues to present with a range of outstanding treatment needs notwithstanding extensive psychological intervention.[28]
[27] Exhibit B, 618 (Riordan Report [33]).
[28] Exhibit B, 618 (Riordan Report [32]).
Dr Riordan observed that the long period of stability that Mr Dick has demonstrated for almost a decade in the community appears to have been achieved by way of the support provided by his wife and stepdaughter upon whom he is 'wholly dependent' to derive a sense of purpose, social connection and financial stability.[29] He is said to be reliant on these external constraints to moderate his behaviour.[30]
[29] Exhibit B, 618 (Riordan Report [30]).
[30] Exhibit B, 618 (Riordan Report [32]).
Dr Riordan concludes that the limited utility of psychological intervention in managing Mr Dick's risk means that the most appropriate course would be to manage his risk through supervision and monitoring.[31]
Shae Hazzard
[31] Exhibit B, 619 (Riordan Report [35]).
Ms Hazzard is Mr Dick's CCO. She prepared a performance report which discusses Mr Dick's performance while subject to the supervision order including programmatic intervention, community functioning and supports, and contraventions.
Ms Hazzard states that Mr Dick has stable accommodation which is where he resided prior to his arrest in relation to these proceedings.[32]
[32] Exhibit B, 633 - 634 (Hazzard Report, 14 - 15).
The report lists Mr Dick's numerous non-compliances and his poor attitude to supervision generally.
Mr Dick has a significant history of non-compliance with the conditions of the supervision order and written lawful instructions issued to him by his CCO.
These include contraventions resulting in conviction such as being in possession of images of children, not being with his handheld GPS device, not complying with reporting obligations under the Community Protection (Offender Reporting) Act 2004 (WA) and the two contravention charges under s 80(1) of the HRSO Act the subject of these proceedings.[33]
[33] Exhibit B, 631 (Hazzard Report, 12).
Further to these formal contravention charges, Mr Dick has had ongoing compliance issues including again not being with his GPS device, failing to record or provide sufficient detail in his diary entries, entering exclusion zones or high-risk areas, engaging in prohibited communications and contact, being in possession of prohibited images and conducting a prohibited internet search.[34]
[34] Exhibit B, 631 - 632 (Hazzard Report, 12 -13).
Although Mr Dick has a long history of breaching his supervision order, most of these contraventions concern relatively brief periods where he was not with his GPS device. The longest period is 17 minutes. Most periods are one to eight minutes. Although any breach of a supervision order is of concern, in the scheme of things the relatively brief absences are at the lower end of such concerns.
Ms Hazzard's primary concern about Mr Dick's risk of reoffending arises out of his intention to have face-to-face contact with his daughter and her children.[35] Under condition 25 of the current supervision order, Mr Dick is to have no contact, directly or indirectly with several persons, including his daughter, unless it is on strict conditions including the prior approval of his CCO and the 'prohibited person'.
[35] Exhibit B, 634 - 639 (Hazzard Report, 15 - 20).
Ms Hazzard notes that this condition has been relaxed in recent years in that Mr Dick has been allowed telephone contact with his daughter but not her children.[36]
[36] Exhibit B, 635 - 636 (Hazzard Report, 16 - 17).
Ms Hazzard states that Mr Dick's contact with his daughter has raised significant concerns for all agencies involved with Mr Dick due to an alleged history of his abuse against her, her vulnerability to be easily groomed by him, and the access he is appearing to try again to her children.[37] It is against this background that Mr Dick's recent contraventions were said to be of concern.
[37] Exhibit B, 635 (Hazzard Report, 16).
Ms Hazzard states that a review of the Prisoner Telephone Service (PTS) calls shows that there are an extensive volume of calls between the Mr Dick and his daughter. In at least one of these calls, Mr Dick's daughter allowed her son to speak with Mr Dick over the phone.[38] Whilst Mr Dick is in custody, contact with his daughter does not amount to a contravention of the supervision order as the operation of the order is suspended during any time he is in custody.
[38] Exhibit B, 638 (Hazzard Report, 19).
In summary, the concern of the COMU is that Mr Dick may be grooming his daughter in order to gain access to her children which is the gist of the current contravention proceedings. This conduct is consistent with Mr Dick's most likely risk scenario formulated by Dr Wynn Owen.
Ms Hazzard's report concludes with the proposed amended supervision order conditions.[39]
[39] See exhibit B, 647 - 651 (Hazzard Report, 28 - 32).
The State's submissions
The State's principal position was that the court should not be satisfied that Mr Dick would substantially comply with the standard conditions of a supervision order and accordingly, the supervision order should be rescinded and a continuing detention order made.[40] The State submitted that Mr Dick has a high risk of reoffending that cannot be adequately managed in the community by reason of:
(1)the most likely risk scenario formulated by Dr Wynn Owen in his report;[41]
(2)Mr Dick's history of offending involving extensive grooming of adults to access children;
(3)Mr Dick's history of non-compliance with the conditions of the supervision order and the written lawful instructions issued to him;
(4)the nature of Mr Dick's most recent contraventions; and
(5)Mr Dick's persistence in seeking face-to-face contact with his daughter and the concerns raised by COMU that he may be grooming his daughter to gain access to her children.[42]
[40] ts 34 (1/8/2022).
[41] See [45].
[42] Applicant's outline of submissions filed 31 July 2022 [44] - [45], [57] - [58], [77].
If the court does not see fit to rescind the supervision order, the State's alternative position was that the current supervision order should be amended in accordance with Ms Hazzard's report.[43]
[43] ts 34 - 35 (1/8/2022).
Mr Dick's submissions
Mr Dick submits that a continuing detention order is unnecessary in the circumstances and that his risk can be adequately managed under the supervision order in its present form or as amended by the court.
In respect of the third and fourth contraventions of the supervision order, counsel for Mr Dick contended that there was insufficient 'direct evidence' in the documentary material contained in the book of materials for the court to be satisfied that those contraventions occurred.[44]
[44] ts 63 - 64 (1/8/2022).
In any event, counsel submitted that Dr Wynn Owen was of the opinion that Mr Dick's risk could be appropriately managed with supervision and that Mr Dick's relationship with his daughter was in fact a protective factor against reoffending.[45] It was further submitted that Mr Dick had not committed any further offences while subject to the supervision order and that his movements would be carefully monitored under the order.[46]
[45] ts 64 (1/8/2022).
[46] ts 65 (1/8/2022).
Analysis
Has Mr Dick contravened the supervision order?
Mr Dick has pleaded guilty to the first and second contravention offences. The book of materials contains certified copies of prosecution notices which confirm the penalties imposed for these offences as well as the relevant transcripts of proceedings.[47] For the purposes of s 55(1) of the HRSO Act, I am therefore satisfied on the balance of probabilities that Mr Dick has contravened the supervision order in respect of the first and second offences.
[47] Exhibit A, 112 - 138.
Given the admitted contraventions of the supervision order, there is no dispute that the court has jurisdiction under s 53 of the HRSO Act to make orders under s 55.
The third and fourth contraventions were not the subject of any charges. These contravention offences are evidenced in the statement of Ms Hazzard dated 27 July 2022 and the Department of Justice records annexed to her statement.[48]
[48] Exhibit B, 548 - 551.
Ms Hazzard's evidence is hearsay. However, Mr Dick's CCO at the time of the alleged contraventions spoke to Mr Dick and prepared written memorandums of her conversations.[49] They were tendered as business records under s 79C of the Evidence Act 2004 (WA). I am satisfied that the written memorandums constitute business records for the purposes of the Evidence Act and are evidence of the facts referred to therein.
[49] Exhibit B, 586 - 587, 592 - 593.
I am therefore satisfied on the balance of probabilities that the third and fourth contraventions have been proved.
Which order to make under s 55(1)?
Once the court is satisfied that the offender has contravened a condition of a supervision order, it must make one of the orders set out in s 55(1). The question that remains is whether the supervision order should be rescinded and a continuing order made or whether Mr Dick should be permitted to remain on the supervision order with or without amendment or extension. The court cannot make an order affirming or amending a supervision order unless it is satisfied that the offender will substantially comply with the standard conditions.
Although the State has raised concerns about the management of Mr Dick in the community if he is re-released on a supervision order, Dr Wynn Owen's opinion is that Mr Dick's risk of reoffending could be adequately managed in the community if he were to be re-released. I accept Dr Wynn Owen's evidence, having regard to his extensive expertise and experience.
In addition to Dr Wynn Owen's opinion, I am satisfied that Mr Dick will substantially comply with the standard conditions of a supervision order for the following reasons:
(1)Mr Dick has been on a supervision order in the community for nearly nine years without any serious offences or any offending of a serious nature;
(2)although Mr Dick has an anti-authoritarian mindset, he has had that mindset throughout the period of his supervision order and nonetheless has not offended;
(3)although Mr Dick has breached his supervision order on a number of occasions, many of the breaches are in the scheme of things relatively minor; and
(4)the state authorities have managed Mr Dick in the community and have detected his breaches of the supervision order.
The evidence establishes that Mr Dick can be adequately managed in the community. COMU proposed the amended conditions of the supervision order to assist in monitoring and addressing Mr Dick's ongoing risk factors. Dr Wynn Owen supports the amendments.[50]
[50] ts 42 (1/8/2022).
I am satisfied that re-releasing Mr Dick on a supervision order amended as proposed in Ms Hazzard's report would adequately protect the community.
Accordingly, I affirm the supervision order and amend the order in terms of the amendments proposed in Ms Hazzard's report. The amended conditions of the supervision order are set out in the annexure to these reasons.
I also invoke the slip rule to amend the stated period of the supervision order to insert '10' in place of '[x]'.
ANNEXURE
IN THE SUPREME COURT OF WESTERN AUSTRALIA
SO 1 of 2009
IN THE MATTER of Section 55 of the High Risk Serious Offenders Act 2020
THE STATE OF WESTERN AUSTRALIA Applicant
-and-
JAMES FLAVELL DICK Respondent
__________________________________________________________________________
ORDERS OF THE HONOURABLE JUSTICE CURTHOYS
MADE ON 31 AUGUST 2022
__________________________________________________________________________
UPON THE APPLICATION of the Applicant dated 17 December 2021 and UPON HEARING Mr B Meertens of Counsel for the Applicant and Ms F Veltman of Counsel for the Respondent IT IS ORDERED THAT:
Pursuant to s 55(1)(b) of the High Risk Serious Offenders Act 2020 (WA) (Act), the conditions of the Supervision Order made by the Honourable Justice Hall on 1 October 2013 (Supervision Order) are further amended as marked on Annexure A to these orders.
Pursuant to s 55(1)(b) of the Act, the period for which the Respondent is to be subject to the Supervision Order is extended by a period of 7 months and is due to expire on 30 April 2024.
Until further order, the suppression order made on 1 October 2013 continues in effect.
BY THE COURT
THE HON JUSTICE CURTHOYS
ANNEXURE A
IN THE SUPREME COURT OF WESTERN AUSTRALIA
SO 1 of 2009
IN THE MATTER of the High Risk Serious Offenders Act 2020
THE STATE OF WESTERN AUSTRALIA Applicant
- and -
JAMES FLAVELL DICK Respondent
___________________________________________________________________________
SUPERVISION ORDER MADE BY THE HON JUSTICE HALL ON 1 OCTOBER 2013 AS AMENDED BY THE HON JUSTICE FIANNACA ON 15 SEPTEMBER 2016 AS RE-AMENDED BY THE HON JUSTICE CURTHOYS ON 31 AUGUST 2022
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The Court having found pursuant to section 33 and section 7 of the Dangerous Sexual Offenders Act 2006 that the Respondent remains a serious danger to the community, the Court rescinds the continuing detention order made on 18 September 2009 and orders that the Respondent be the subject of a supervision order pursuant to section 33(2)(b) of the Dangerous Sexual Offenders Act 2006, for a period of 10 years from the date of this order, on the following conditions:
YOU JAMES FLAVELL DICK, must:
STANDARD CONDITIONS REQUIRED BY THE ACT
Report to a Community Corrections Officer at the East Perth Adult Community Corrections Centre, 30 Moore Street East Perth WA 6000 within 48 hours of the order being issued and advise the officer of your current name and address.
Report to and receive visits from, a Community Corrections Officer as directed by the Court.
Notify a Community Corrections Officer of every change of your name, place of residence, or place of employment at least 2 business days before the change happens.
Be under the supervision of a Community Corrections Officer, which includes, comply with any reasonable direction of the officer (including direction for the purposes of section 31 or 32).
Not leave or stay out of the State of Western Australia without the permission of a Community Corrections Officer.
Not commit a serious offence during the period of the order.
Be subject to electronic monitoring under section 31.
ADDITIONAL CONDITIONS
Residence
Take up residence at [address redacted] and spend each night at that address or at a different address only if such different address is approved in advance by a CCO assigned to you.
Reporting to a CCO and supervision by a CCO
Report to a CCO at your approved release address within normal business hours on the day of release from custody under this order.
Be under the supervision of a CCO, and comply with the lawful orders and directions of a CCO.
Not commence or change paid or unpaid employment, volunteer work, education or training without the prior approval of the CCO.
Attendance at programs or treatment
Consult and engage with any medical practitioner, psychiatrist, psychologist, mentor, support service and/or support person nominated by a CCO, as directed by a CCO.
Comply with the requirements of all programs designed to address your offending behaviour and/or risk of serious re-offending, as directed by a CCO.
Attend all appointments and receive visits from any medical practitioner, psychiatrist, psychologist, counsellor, support service and/or support person nominated by a CCO, as directed by a CCO.
Medications/Mental Health
Attend any medical practitioner, psychologist, psychiatrist, or counsellor as directed by the supervising CCO or undergo medication treatment, including anti-depressant medication or anti-libidinal treatment, as directed by the CCO in consultation with a medication practitioner or medical practitioners.
You are not required to take Selective Serotonin Reuptake Inhibitor medication or other antilibidinal/anti-testosterone medication unless you consent to do so.
Permit any medical practitioner, psychologist, psychiatrist or counsellor to disclose details of medical treatment and opinions relating to your level of risk of re-offending and compliance with treatment to the Department of Justice.
Permit any medical practitioner or medical practitioners to advise the CCO immediately if they become aware or suspect that you have, or intend to cease undergoing pharmaceutical anti-libidinal and or anti‑depressant medication contrary to the advice of the medical practitioner or medical practitioners, or you have apparently ceased to consult with that medical practitioner or medical practitioners on such treatment.
Reporting to WA Police
Report to the Officer-in-Charge of the High Risk Serious Offender team at the Hatch Building, 144 Stirling Street, Perth WA 6000 within 48 hours of your release from custody, and thereafter report to and receive visits from Police at times and at locations as directed by the Officer-in-Charge of the High Risk Serious Offender team or his/her delegate.
Comply with all obligations imposed on you pursuant to the Community Protection (Offender Reporting) Act 2004.
If requested, permit Police Officers to enter and search your person, residence and/or vehicle for the purpose of monitoring your compliance with your obligations under this order and allow the seizure of any such items that the Police Officers believe to contravene the conditions of the order.
Remain at your premises and/or vehicle when Police Officers conduct a search of your residence and/or vehicle under the provisions of the High Risk Serious Offenders Act 2020.
When requested, advise Police of the names of all of your internet service providers, all mobile or landline telephone services used by you and all screen name(s), user name(s), and email addresses.
Disclosure/Exchange of information
Agree to the exchange of information between persons and agencies involved in the implementation and supervision of this order, inclusion confidential information.
Allow the CCO, WA Police, or other person or agencies approved by the CCO, to interview any associates or potential associates and, where appropriate to disclose to them confidential information including your offending history.
Restrictions on contact with victims
Have no contact, directly or indirectly, with the victims of your sexual offending unless such contact is conducted in accordance with agreement made through, or approved by, the Victim-Offender Mediation Unit of the Department of Justice.
Unless contact with victims is permitted pursuant to the previous condition, you must immediately physically withdraw from any situation or immediate location in which contact is made with any victim of your sexual or violent offending (including being in the immediate presence of any victim), without engaging in conversation, with any victim whether by word or gesture, and must avert your gaze from such victims at all times.
Report to the CCO and WA Police any direct or indirect contact with the victims of your offending sexual offending on the next working day you report to the CCO or Police.
In relation to contact with your daughter, Ms Lertia Lewis, you must adhere to the following conditions:
a)You are not permitted to have contact with Ms Lertia Lewis in the form of in‑person, text/written, video, email contact with, unless given a direction by a CCO to do otherwise.
b)You are to project your plans to have contact with Ms Lertia Lewis to your CCO at least 2 business days in advance for approval and for contact to be made with Ms Lertia Lewis to assess the contact plans.
c)You are to immediately withdraw from any means of contact with Ms Lertia Lewis should she advise of her unwillingness to continue contact or if given a direction by the Community Corrections Officer to terminate contact with Ms Lertia Lewis in any means.
d)To have no direct or indirect contact with Ms Lertia Lewis' biological children and/or any other children in her care under the age of 18 by any means, unless approved in advance by a CCO.
Criminal conduct
Not commit any other criminal offence where the maximum penalty for which includes imprisonment, and which involves either sexual offences, violence, threats of violence, or the possession of weapons or offensive instruments.
Not commit an offence under s202, s203, s204, s557 Criminal Code 1913 (WA) or s17(1) Criminal Law (Unlawful Consorting and Prohibited Insignia) Act 2021.
Not commit any offence under the Classification (Publications, Films and Computer Games) Enforcement Act 1996.
Curfew
Be subject to a curfew as directed by a CCO, pursuant to section 32 of the High Risk Serious Offenders Act 2020, such that you are to remain at and not leave you approved address as directed by a CCO from time to time.
When subject to a curfew under this order, present yourself for inspection at the front door or front yard of your approved address, or speak on the telephone, to any CCO or Police Officer or their agent monitoring your compliance with the curfew.
When subject to a curfew under this order, you must ensure that all those people present in the residence, who may answer the telephone or door, are aware as to your obligations and request their assistance to comply with your obligations by alerting you to such attempts to contact you by persons monitoring your compliance with the curfew.
Prevention of high-risk situations
As directed by your CCO, report at your next contact with your CCO, the formation of any social association (of more than 1 contact by any means), domestic, romantic, sexual or otherwise intimate relationship by you with any person.
As directed by your CCO, make full disclosure regarding your past offending and the current order to anyone with whom you commence an ongoing social association (of more than 1 contact by any means), domestic, romantic, sexual or otherwise intimate relationship, which disclosure can be confirmed by a CCO or a Police Officer.
Not associate with any person known by you to have committed a sexual offence unless such association is authorised in advance by the CCO.
Attend for, and submit to, urinalysis or other testing for alcohol or prohibited drugs as directed by the CCO or by a Police Officer including accompanying such persons to an appropriate location for such testing to take place.
Provide a valid sample pursuant to Condition 39.
Not purchase or possess, or consume or use alcohol.
Have no contact with any child under the age of 18 years, whether such contact is in person, in writing, by telephone or by electronic means, unless:
a)The contact is authorised in advance by the CCO and such contact is supervised at all times by an adult approved in advance by the CCO.
b)The contact is necessary to complete a commercial transaction and limited to the minimum contact required to complete the transaction, and another adult is present.
('Contact' under this condition and the following two conditions means any form of interaction or communication whether by word, gesture, expression or touch and whether in person, in writing, by telephonic or electronic means, but does not include the bare minimum of interaction or communication necessary between an adult and child to promptly and civilly terminate any inadvertent or uninvited interaction or communication).
Where any unsupervised contact with a child under the age of 18 years is initiated by the child, unless the contact is permitted under the condition immediately above, you must withdraw immediately from the presence of the child.
Provide the name, address, location and any details known by you, of any contact with a child under the age of 18 years both to your CCO and to the Police on the next occasion you report to that person or agency.
Not to form any domestic relationship with a person who has children under the age of 18 years in their care either full time or part time, including former victims of your previous offending, without prior CCO approval.
Have no contact with, membership of or affiliation with, clubs, associations or groups where membership includes children, unless approved by a CCO; and to cease/cancel such memberships if directed to do so by a CCO or Police Officer;
Advise a CCO or Police Officer of every computer, telecommunication and/or electronic device capable of storing digital data or information, possessed, or used by you, whether or not it is capable of being connected to the internet, and the location of that device;
Not allow any person other than a CCO or WA Police access to any computer, telecommunication and/or electronic device referred to in condition 47, without prior approval.
Enable device locking or password access of your computer, telecommunication and/or electronic devices. Not provide or disclose such passwords or other means used to access any computer, telecommunications and/or electronic device referred to in condition 47, or any online accounts, to any person other than a CCO or Police Officer.
Upon request, permit a CCO or WA Police at any location nominated by them, to access any computer, telecommunication and/or device capable of storing digital data or information, for the purpose of ascertaining your computer, telecommunication and/or electronic device related activities, and provide to the CCO or WA Police upon request any passwords or any other means used to unlock or access the device; this includes providing all screen name(s), username(s), and email addresses. Should any other entity be required to access a device for instances such as technical advice, approval must be sought in advance from a CCO.
Not delete or otherwise remove and/or disguise, or cause or allow to be removed and/or disguised, any data or information including but not limited to calls, Short Message Service (SMS), search histories or logs capable of identifying your activities on that computer, telecommunication and/or electronic device, whether or not the device is capable of connecting to the internet, without the approval in advance by a CCO or WA Police.
Maintain a daily diary of your movements, activities and associations, if and as directed by the CCO, and present this diary to the CCO and Police upon request.
Not access the internet for, nor collect or be in possession of, in either electronic or permanent form, images of children, including drawings or sketches, whether indecent or not. Possession of such images depicting a child or children on items such as on household items or your immediate family, may be authorised by a CCO. Immediate family means pictures of yourself, your siblings, your parents and your spouse only.
Provide a verbal or written account of your projected daily movements to your CCO and obtain prior approval of your projected movements, as and when directed by your CCO.
Not obtain a passport or attend an international departure point without prior approval from a CCO.
______________________________THE HON JUSTICE CURTHOYS
I have received a copy of this order. I have had explained to me and understand the effect of this Order and what may happen if I breach it.
I authorise police officers from the Western Australia Police Force (WA Police Force) to access any cloud-based platforms or services associated with the devices I use, and examine the internet accounts at any time for the purposes of monitoring my online behaviour (absent any investigation for any offence).
I understand and acknowledge WA Police Force will use passwords or tokens located within my devices to access any cloud-based platforms and services and that a password may not be required.
By authorising this I understand and acknowledge a Police Officer from the WA Police Force may change the password(s) to these accounts so I will no longer have access.
Signed by the Respondent _____________________________
JAMES FLAVELL DICK
In the presence of: _____________________________
Name and address: _____________________________
_____________________________
Date: _____________________________
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
SB
Associate to the Honourable Justice Curthoys
31 AUGUST 2022
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