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

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL

CITATION: THE STATE OF WESTERN AUSTRALIA -v- DICK [2009] WASC 275

CORAM: McKECHNIE J

HEARD: 14 SEPTEMBER 2009

DELIVERED : 18 SEPTEMBER 2009

FILE NO/S: MCS 1 of 2009

BETWEEN: THE STATE OF WESTERN AUSTRALIA
Applicant
AND
JAMES FLAVELL DICK
Respondent

Catchwords:

Dangerous sexual offender - Whether serious danger - Whether detention or supervision - No new principles

Legislation:

Dangerous Sexual Offenders Act 2006 (WA)

Result:

Finding that the respondent is a serious danger to the community
Detention order for control, care, or treatment

Category: B

Representation:

Counsel:

Applicant: Mr P D Yovich
Respondent: Mr D J McKenzie

Solicitors:

Applicant: Director of Public Prosecutions (WA)
Respondent: David McKenzie

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

Nil

McKECHNIE J: The Director of Public Prosecutions (WA) (DPP) applies for an order that the respondent is a serious danger to the community and that he be detained in custody for an indefinite term for control, care, or treatment. The DPP has the onus of satisfying the court that the respondent is a serious danger to the community by acceptable and cogent evidence to a high degree of probability. The DPP tendered three volumes of agreed material and certain other documents to which I will shortly make reference. Counsel for the DPP called five witnesses: Dr Peter Wynn Owen, Dr Bryan Tanney, Detective Senior Constable Steven Hemmingway, Ms Sarah Ballantyne and Ms Catherine Clymo. The respondent did not give evidence.
In deciding whether to find that a person is a serious danger to the community, the court must have regard to matters set out in the Dangerous Sexual Offenders Act 2006 (WA) s 7(3) including any other relevant matter.
Before turning to those matters in more detail I should deal with evidence led before me in relation to breach of an undertaking.

Breach of undertaking

On 13 February 2009 Blaxell J set a date for the final hearing and released the respondent upon his entering into an undertaking. On 16 February 2009 the respondent signed the undertaking acknowledging that he had received a copy of it, 'I have had explained to me and understand the effect of this undertaking and what may happen if I breach it'.
Condition 22 was an undertaking not to possess, consume or use any illicit drugs or substances including, but not limited, to cannabis. On 4 August 2009 the respondent had told Ms Clymo, his community corrections officer, he had not breached any condition. A urinalysis result on 6 August 2009 indicated the presence of cannabis.
Condition 30 was an undertaking not to associate with any person known by the respondent to have committed a sexual offence, unless such association is authorised in advance by the CCO. This condition was breached soon after the respondent was released from prison and continued to be breached throughout the period of supervision. The community corrections officer became aware of the breach following an inter‑agency meeting on 14 August 2009 and questioned the respondent. He claimed that he was of the impression that the condition related specifically to child sex offenders.
These breaches are significant as they indicate a dismissive attitude to the responsibilities in the undertaking and a preparedness to lie or dissemble. Of themselves they are not so serious as to justify detention.
Under the heading 'Prevention of High Risk Situations' in the undertaking:
24)Have no contact with any child under the age of 17 years, whether such contact is in person, in writing, by telephone or by electronic means, unless 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;
25)Where any contact with a child under the age of 17 years, prohibited by the previous condition, is initiated by the child, the Respondent must withdraw immediately from the presence of the child;
29)Not form any domestic relationship with a person who has children under the age of 17 years in their care either full time or part time;
As a result of information received, on 4 September 2009 Detective Senior Constable Hemmingway interviewed the respondent. The interview was recorded.
Police took a statement from a 60 year old lady who indicated that she had visited the respondent in prison and that he had a (non‑sexual) relationship with her. I will refer to her as M1. The respondent visited her house. Living in her house was her daughter (M2) and her daughter's two young children. Following the interview with the respondent, during which he asserted that M1 and he had a sexual relationship, M1 was re‑interviewed and provided a second statement. In that statement M1 admitted that the relationship was sexual and that the respondent would visit most evenings during the week but not every night. He would have stayed over perhaps half a dozen times and at most of those times the children would have been in the house.
In the course of his interview the respondent was asked questions about his contact with the children and with the two adults in the house and was asked: 'How do you explain the order that you're not to have contact with the children and the fact that you are having regular contact with [M2's] children'. The respondent answered:
Well to me, the order, well I think the order is ridiculous. I'm no threat to the children no matter who I come across and my contact with [M1] and the order, you know everythings been above board and you know, I don't find that there's anything to worry about as far as the order went because you know I just feel I'm not going to hurt any child never have, never will and, what people have said about me and say about me, I know it's not true. I just wanted to get on and have a bit of a life.
He conceded he had never told the community corrections officer or the police about the arrangement. It is clear he understood the conditions that he was to have no contact with children. In answer to an invitation to comment he said:
What can I say, you know I hid it from yous coz I wanted to protect them. I wanted some sort of life, I knew that everyone would take it the wrong way and look as though I'm doing something you know, I just wanted to have a bit of a life. I love [M1] very much and I go around there to see her. I don't go around there to do anything else OK. I talk to [M2], yes I say hello to the kids, I give them a kiss and cuddle good night and that's it.
He admitted to having verbal conversation and physical contact with the children, not sexual, by playing games, hugging and kissing good night. He said:
I've coloured in with them they sort of I know this sounds strange but they fill a void in my heart because I miss my children very much and they're like my children and I treat them like my children. There was nothing I knew what I've done you know I didn't do it to harm anybody. I did just so I could fill the hole in my heart. They're two beautiful children and makes me sick to think that people think that I go and I'm trying to con my way in so I can abuse children which is the furtherest thing from my mind. I know the laws there and you got to follow the law, I know I'm going to cop everything that's coming my way but you got to understand that I love [M1] very much and having her grand children have sort of filled a void in my heart which is my children also I miss very much those, no one will ever understand how I feel. Coz its just me I'm not a danger to no one ok I've made a few mistakes in my life and I've paid for these mistakes and when this agreement was put down you know that I had to accept it coz I wanted to get out of prison. You know how much I believed it was just a load of rubbish. I had to agree to it, you know you got.
Q. All right, at the end of the day, James, you did agree to the conditions in the Undertaking.
A. And I've breached, and I've breached, and I've breached and I've breached and I've breached and I've done a lot of things at this point yes I am not going to deny it why should I deny it.
The two children have been separately interviewed by officers from the Department of Community Services and have made no disclosure of any sexual misconduct by the respondent.
The substantial breaches of the undertaking in relation to contact with children caused Dr Tanney to revise his opinion because of the extra information which became available. It caused Dr Wynn Owen to confirm his opinion. It is also powerful evidence of the respondent's attitude to supervision and lack of insight about risk laden situations. Although the behaviour disclosed by M1 and the respondent is suggestive of grooming on the respondent's part, I am not satisfied to a high degree of probability and so do not make this finding.

The respondent's criminal history in relation to sexual offences

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.

The Dangerous Sexual Offenders Act: Relevant matters

Against this background, I now turn to the matters in s 7 of the Dangerous Sexual Offenders Act to which the court must have regard.

Section 7(3)(a)

any report that a psychiatrist prepares as required by section 37 for the hearing of the application and the extent to which the person cooperated when the psychiatrist examined the person;

The court appointed Dr Wynn Owen and Dr Tanney to provide reports. Each is suitably qualified to give reports in this area and I accept their evidence entirely. It is noted that the respondent did not disclose his relationship with M1 or the children and lied, particularly to Dr Tanney, about important information.
Dr Wynn Owen based his report on two interviews with the respondent totalling approximately five and a quarter hours. Meetings and discussions and documents are outlined in his report. Dr Wynn Owen made a psychiatric diagnosis based on DSM‑IV‑TR - Axis 1 Clinical Disorders – Paedophilia; Axis II Personality Disorders ‑ Cluster B Personality Disorder, predominantly Narcissistic with Antisocial traits.
Dr Wynn Owen concluded:
Mr Dick currently presents a significant risk of serious sexual offending, as documented above this is most likely to occur in a situation in which Mr Dick has access to children and is in a position of trust and respect with them. Preventing this contact with children from occurring will in part mitigate his reoffending risk. Mr Dick's high libido and apparent pattern of deviant (paedophilic) sexual arousal suggest that hormonal anti‑libidinal therapy would also lower his reoffending risk.
Dr Wynn Owen qualified somewhat in oral evidence the efficacy of anti‑libidinal medication pointing out that it might lower libido but would not necessarily affect a deviant inclination. However, it may nevertheless reduce the risk.
Dr Wynn Owen highly recommended one‑to‑one counselling to address resocialisation, emotional self‑regulation and risk management.
Dr Tanney reviewed Mr Dick for over eight hours and had access to the same material as Dr Wynn Owen. In his original report he concluded:
Without effective, ongoing management (including monitoring and possible treatment) and the implementing of certain risk diminishing measures, this man is at meaningful risk of further serious sexual offending, as estimated by available procedures and measures.
Dr Tanney differed from Dr Wynn Owen in his diagnosis. He concluded:
There is no evidence for a major mental disorder that would be associated with a lifelong history of excessive sexual interest or drive. He exhibits disorder along a number of personality dimensions and is noted at formal testing [1994, 2001] to diminish or mask his level of personality pathology.
Neither Dr Wynn Owen nor Dr Tanney were prepared to make a diagnosis of psychopathy but both indicated an elevated tendency toward psychopathy. Dr Tanney also strongly recommended one‑on‑one therapeutic counselling. In his later report, Dr Tanney did not change his assessment of risk. He stated:
Mr Dick is at 'Moderate-High', likelihood of serious sexual re‑offending against familiar/non‑stranger young persons, without accompanying violence, within the next five years or sooner should no further intervention have taken place.
Dr Tanney noted that the respondent:
[H]as demonstrated major difficulties in the RSVP Cluster E Manageability of Risk. He wilfully breached the supervisory undertakings he made and that were intended to protect the community while his treatment rehabilitation efforts were underway.
With his breach of the undertakings and the awareness that he was not fully truthful at interviews, he exhibits some clear features of the psychological core features of Psychopathic Personality Disorder although still not sufficient on the PCL‑R to qualify the label.
Notwithstanding their different diagnoses, the opinions of each psychiatrist satisfies me that the respondent is a high risk of re‑offending in the next five years if not treated.

Section 7(3)(b)

any other medical, psychiatric, psychological or other assessment relating to the person;

There have been a series of psychological assessments over the years, principally for sentencing purposes. They are broadly congruent with the findings and opinions of Drs Wynn Owen and Tanney and all emphasise the risk which the respondent poses to the community.

Section 7(3)(c)

information indicating whether or not the person has a propensity to commit serious sexual offences in the future;

I do not consider there is sufficient evidence to conclude that the respondent has a propensity to commit offences. He is clearly at risk of committing further offences, but I am not satisfied to a high degree of probability that he has a propensity to commit offences.

Section 7(3)(d)

whether or not there is any pattern of offending behaviour on the part of the person;

There is a clear pattern of behaviour. The respondent engages in behaviour within a familial or familial‑type setting before committing offences against young people within that setting.

Section 7(3)(e)

any efforts by the person to address the cause or causes of the person's offending behaviour, including whether the person has participated in any rehabilitation program;

The respondent has participated in a sex offenders' treatment program and in a Sex Offending Deniers' Program. He participated appropriately and within the limits of his psychological ability appeared to contribute to the group programs. It is now concluded that a group program is unlikely to give much further assistance.

Section 7(3)(f)

whether or not the person's participation in any rehabilitation program has had a positive effect on the person;

Ms Ballantyne is a counselling psychologist with the DSO psychology team. Although she has not interviewed the respondent, she has reviewed information available on his offender services file and provided a report noting:
Mr Dick is not deemed suitable for ongoing group based sex offender treatment in a community setting on the basis of his stance of denial of his index offences; Community Based Sex Offender Treatment Programs are currently only suited for offenders who at least partially acknowledge some culpability for their index convictions.
The respondent had undertaken the Sex Offending Deniers' Program which is a pilot program. Amongst other things, the program aims to give participants strategies to deal with high risk situations to prevent false accusations being made against them. Although completing this course shortly before release, the respondent moved fairly quickly into a high risk domestic relationship with young children present and no effective supervision. Moreover, he consciously withheld information about it from his community corrections officer. I agree with Ms Ballantyne's assessment that putting him into another such course would be a waste of time. She pointed out, while accepting there may be treatment erosion, in this case its onset was very rapid. Dr Wynn Owen is of the view that the Sex Offending Deniers' Program has not reduced the respondent's risk of re‑offending. The report on the respondent's participation in the Sex Offending Deniers' Program suggested that his position around managing his risk was the same as the position he had been previously in, in that there seemed to be a sense that he was unable to influence the factors around him that increased his risk although he was aware of them (ts 46). I am satisfied that participation in the rehabilitation program has had no positive effect on the respondent.

Section 7(3)(g)

the person's antecedents and criminal record;

The respondent has a criminal record but, apart from the sexual offences to which I have made reference, there is nothing in the record that would reflect adversely on him in this application.

Section 7(3)(h) and (i)

the risk that, if the person were not subject to a continuing detention order or a supervision order, the person would commit a serious sexual offence;
the need to protect members of the community from that risk;

As has been noted in other cases, there is a degree of circulatory in these two matters. However, I consider the risk of a serious sexual offence being committed by the respondent to be unacceptably high.

Section 7(3)(j)

any other relevant matter.

The respondent's behaviour in forming a domestic relationship and his answers to Detective Senior Constable Hemmingway indicate a high degree of risk. His flagrant breaches of his undertaking are relevant not only to the order that might be made but also to the assessment of his risk.

Conclusion as to whether the respondent is a serious danger to the community

I am completely satisfied that the respondent is a serious danger to the community. The psychiatrists, albeit for slightly different reasons, agree in their conclusions as to risk. Those conclusions are similar to that of psychologists who have conducted assessments over the years. The pattern of past offending, the lack of positive advance from courses within prison, all combine to support the conclusion of a serious danger.

Can the risk be managed in detention or under supervision in the community?

It is settled that the court should take the least restrictive option if possible. In this case, it is not possible. Dr Wynn Owen, as I have already noted, recommended one‑on‑one counselling. Dr Wynn Owen said:
On recent experience it's very difficult to see that there is a range of conditions that would provide us with immediate risk mitigation … in the next 6 ‑ 12 months.
He said that:
maybe the only intervention that I've mentioned that would be likely to change the risk in that period of time would be a positive response to hormonal anti‑libidinal therapy. (ts 44)
Dr Tanney notes:
It is, however, now unacceptable to undertake this helping activity in the community as Mr Dick has demonstrated major difficulties in the RSVP Cluster E, Manageability of Risk.
He wilfully breached the supervisory undertakings he made and that were intended to protect the community while these treatment and rehabilitation efforts were underway.
If a psychopathic personality disorder is confirmed, then … this hugely treatment-resistant psychological disorder would much increase his likelihood of sexual reoffending and much decrease the potential for psychological treatments of any kind to lessen that reoffending risk or to make it more manageable in the community. Release to Community Supervision is not recommended until this issue is more fully resolved. At least one year will be required to complete this personality assessment.

Dr Tanney said that the respondent needs to have the opportunity to do what the psychologist Ms Cull suggested and explore what it was that led him into these difficult and vulnerable and dangerous for him situations. Without such an exploration the respondent's likelihood of being able to refrain from re‑offending would be minimal (ts 73).
Ms Ballantyne is of a similar view. She noted that a comprehensive assessment would need to be undertaken before intensive counselling could be considered. The testing might take six months. What she said was:
The nature and purpose of his intervention needs and treatment planning will require further assessment by a member of the Dangerous Sexual Offender Psychology Team at the outcome of the court process. An individual treatment plan would be developed based around the intervention needs identified earlier in this report. Again, as stated above, this recommendation is made with some hesitation regarding the prognosis for long‑term, significant behavioural or personality change.
Ms Clymo gave evidence that supervision within the community would be similar to supervision during the period of the undertaking following release pursuant to the order of Blaxell J. It would depend in part, but in a substantial part, on the reliability of the respondent's self‑reporting. The respondent has now demonstrated his unreliability in that regard. This view is echoed by Dr Tanney.

Conclusion as to appropriate order

Although I accept that there are psychologists sufficiently skilled to deliver intensive therapeutic counselling both within and without the prison system, this would only have weight if the question of detention or supervision was otherwise fairly balanced. However, I conclude there is nothing presently in favour of supervision within the community. The risk to the community of further offending is so great that only an order for the respondent's detention in custody for control, care, or treatment is appropriate. In view of the respondent's breaches of his undertaking, there is nothing that I consider would mitigate his risk of re‑offending where supervision in the community would be an acceptable risk.

Finding and Order

I find that James Flavell Dick is a serious danger to the community.
I order that he be detained in custody for an indefinite term for control, care, or treatment.