The State of Western Australia v Lyddieth - [2021] WASC 416

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL

CITATION:   THE STATE OF WESTERN AUSTRALIA -v- LYDDIETH [2021] WASC 416
CORAM:   QUINLAN CJ
HEARD:   25 NOVEMBER 2021
DELIVERED          :   25 NOVEMBER 2021
PUBLISHED           :   25 NOVEMBER 2021
FILE NO/S:   SO 1 of 2012
BETWEEN:   THE STATE OF WESTERN AUSTRALIA
Applicant
AND
DENNIS JOHN LYDDIETH
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 is desirable – Turns on own facts

Legislation:

High Risk Serious Offenders Act 2020 (WA)

Result:

Orders pursuant to s 46 made

Category: B

Representation:

Counsel:

Applicant	:	F M Allen
Respondent	:	T Hager

Solicitors:

Applicant	:	State Solicitor's Office
Respondent	:	Tony Hager

Cases referred to in decision:

Director of Public Prosecutions (WA) v Lyddieth [2012] WASC 246
Director of Public Prosecutions (WA) v Lyddieth [No 4] [2015] WASC 421
The State of Western Australia v PAS [2020] WASC 405
The State of Western Australia v Winder [2021] WASC 65

QUINLAN CJ:

(This judgment was delivered extemporaneously on 25 November 2021 and has been edited from the transcript.)

Introduction

Dennis John Lyddieth has been subject to a supervision order made under the former Dangerous Sexual Offenders Act 2006 (WA) since 6 November 2015.[1]
[1] Director of Public Prosecutions (WA) v Lyddieth [No 4] [2015] WASC 421.
The State of Western Australia now applies for a restriction order, namely a supervision order in respect of Mr Lyddieth under the High Risk Serious Offenders Act 2020 (WA) (the Act). While it is a fresh application, what the State in effect seeks is a continuation of the supervision order made on 6 November 2015.
On 5 October 2021, Derrick J continued the supervision order as an interim supervision order under the Act until the preliminary hearing of the application.
The preliminary hearing came before me today.
The main purpose of the preliminary hearing is for me to decide whether there are reasonable grounds for believing the Court might find that Mr Lyddieth is a high risk serious offender within the meaning of the Act. If I am so satisfied, the State seeks interim orders including an order that the supervision order currently in place continues to apply until the final determination of the application.
Mr Lyddieth accepted that I can be satisfied that the Court might find that he is a high risk serious offender. He also accepted that the supervision order to which he is currently subject should remain in place pending the final determination of the application.
Those are, nevertheless, matters in relation to which I must be satisfied under the Act. I am, however, so satisfied and I will briefly give my reasons for being so.

The law

As noted at the outset, pursuant to s 46 of the Act the main purpose of the preliminary hearing is to decide whether there are reasonable grounds for believing that the court might find that Mr Lyddieth is a high risk serious offender.
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 in relation to the person in order to ensure adequate protection of the community against an unacceptable risk that the person will commit a serious offence. A serious offence within the meaning of the Act relevantly includes sexual assault.
I have on previous occasions set out the nature of the test to be applied under s 46(1) of the Act.[2] I do not have to be satisfied that a restriction order will be made. It is sufficient if there are reasonable grounds for believing that an order might be made. To say that something might occur is to say that it is possible. 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 of facts that are sufficient to induce that state of mind in a reasonable person.
[2] The State of Western Australia v PAS [2020] WASC 405 [20] ‑ [21] (Allanson J); The State of Western Australia v Winder [2021] WASC 65 [16] (Quinlan CJ).

The evidence

In support of its application, the State relied upon an affidavit of Meagan Elizabeth Hemsley, affirmed on 22 September 2021, which sets out Mr Lyddieth's criminal history and a number of previous reports in relation to him, including psychiatric and psychological reports.
Mr Lyddieth is now 70 years of age.
He had a turbulent upbringing, which involved periods of institutional care, together with serious physical and sexual abuse. Unsurprisingly, for a person with his background, Mr Lyddieth began drinking alcohol from a very young age, and has a history of polysubstance abuse.
Until 1987 Mr Lyddieth had a relatively minor criminal record. It provided little indication of the sustained course of violent sexual offending committed by him from 1987 to 1991.
The nature of that offending has been previously set out in decisions of this Court, and it is not necessary for me to repeat it.[3] I adopt the following summary of the nature of the offending:[4]
It is evident from this history that at least at the time he was apprehended, Mr Lyddieth had a very dangerous propensity for committing serious sexual offences. Those offences involved targeting women who were alone in their homes at night. They involved the use of violence or threatened violence to obtain compliance. Efforts were made to conceal his identity, including using a face covering, requiring the victims to look away and making threats. The offences do not appear to have been opportunistic, rather they involved some measure of planning which included, in some cases, watching the intended victim for some time prior to the offence.
[3] See Director of Public Prosecutions (WA) v Lyddieth [2012] WASC 246 (Lyddieth) [31] ‑ [46] (Hall J).
[4] Lyddieth [47].
In relation to this offending (from 1987 to 1991) Mr Lyddieth was convicted of the following offences: one armed robbery; 16 aggravated sexual assaults; one attempted aggravated sexual assault; six sexual assaults; seven aggravated indecent assaults; and two indecent assaults.
On 1 May 1992, for all of these offences, Mr Lyddieth was sentenced to a total of 19 years and 1 month imprisonment.
Mr Lyddieth was paroled on those sentences on 3 January 2002.
Between March and June 2002, while on parole, Mr Lyddieth committed seven indecent act offences, each of which consisted of visiting beaches in Perth and masturbating in the presence of women who were unknown to him. As a consequence, on 19 July 2002, Mr Lyddieth's parole was cancelled.
On 6 July 2012, Mr Lyddieth was declared a dangerous sexual offender by Hall J. In so finding, his Honour had regard to psychiatric reports from Dr Peter Wynn Owen and Dr Brian Tanney.
In relation to Dr Tanney, Hall J observed:[5]
Dr Tanney stated that, in his opinion, Mr Lyddieth is a high risk of further serious sexual offending without effective, ongoing management and the implementing of specific risk diminishing measures. There was a likelihood of the recurrence of sexual offending because this behaviour is established, functional and strongly reinforced. Dr Tanney said that there are virtually no social protectors against re-offending.
[5] Lyddieth [57].
Dr Wynn Owen's evidence in relation to Mr Lyddieth was to similar effect. In that regard Hall J said:[6]
Dr Wynn Owen reported that by applying the STATIC-99R test, Mr Lyddieth was shown to be at moderate to high risk of re-offending over a five year period. This assessment incorporated a factor which took into account his age. If not for his present age the risk category would have been high.
[6] Lyddieth [77].
Hall J made a continuing detention order.
As I said at the commencement of these reasons, on 6 November 2015, after a third review hearing, Simmonds J rescinded the continuing detention order and placed Mr Lyddieth on a supervision order. Mr Lyddieth has been on that supervision order ever since.
During that time, he has contravened the supervision order requirements in relatively minor ways on three occasions. On 14 July 2016, Mr Lyddieth failed to attend a scheduled psychological appointment without reasonable excuse. On 5 May 2018, Mr Lyddieth was, for a period of time, not in possession of his personal carry unit receiver which was used to monitor his location. On 1 January 2021, Mr Lyddieth returned two urinalysis results that were positive for cannabis.
The only psychological or psychiatric report since Mr Lyddieth has been subject to the supervision order, in the material before me, is a forensic psychological service high risk serious offender update report, dated 23 November 2020, prepared by Ms Catherine Korda, forensic psychologist.
Accepting that Ms Korda's report is now a year old, it nevertheless does provide a helpful description of Mr Lyddieth's intervention history since having been subject to the Dangerous Sexual Offenders Act 2006 (WA), including since he has been subject to the supervision order. The report comprehensively sets out Mr Lyddieth's sessions with counselling psychologists during that time.
Ms Korda stated in the report that:[7]
Mr Lyddieth has resided in the community for five years and appears to live a relatively stable and routine bound lifestyle. Despite some intermittent issues regarding his behaviour and engagement, there is little indication he has consistently placed himself in risky situations, committed significant rule violations, or expressed a defiant and oppositional attitude towards authority figures during his time on his HRSOSO. He has been characterised as generally cooperative with staff involved in his supervision, treatment and management, and has taken steps to integrate into the community through acquiring stable, independent accommodation and slowly increasing his social outlets. Mr Lyddieth appears to be able to adequately manage day‑to‑day problems within the structure, predictability, support, and stringent confines of a HRSOSO. However, his capacity to self‑manage and avoid reoffence in the community setting remains largely untested due to the stringent constraints to which he has been subject under this Order.
[7] Psychologist report of Ms Catherine Korda dated 23 November 2020 [37].
She continued:[8]
Overall, Mr Lyddieth impressed as having an adequate understanding of his motivation for, and the factors that contributed to, his sexual offending behaviour, although his insight into victim empathy issues remains somewhat basic and intellectualised. Despite his engagement in intensive group and individual treatment, his relapse prevention strategies continue to be somewhat limited and basic, and in particular neglect important risk factors relating to sexual preoccupation and sexual interest. Mr Lyddieth's presentation in this regard has changed little. Deficits in relapse prevention planning, as well as his comments regarding the inhibiting effect of the consequences of his sexual offending behaviour for himself and others, and his reduced sexual drive and interest have been consistently documented over time. Notwithstanding this, it is noted that his shame, the prospect of causing further harm to others, and the likelihood of indefinite imprisonment do appear to be current barriers to reoffending.
[8] Psychologist report of Ms Catherine Korda dated 23 November 2020 [38].
Later in the report Ms Korda stated:[9]
[I]t is important that [Mr Lyddieth's] sexual functioning continues to be monitored, given there have been past increases in his libido associated with medication cessation and change and he committed the index offences in middle age.
[9] Psychologist report of Ms Catherine Korda dated 23 November 2020 [39].
After setting out the results of a number of risk management tools, Ms Korda identified a number of areas of concern:[10]
[10] Psychologist report of Ms Catherine Korda dated 23 November 2020 [53] ‑ [54].
The following areas have been identified as a clinically significant concern for Mr Lyddieth:
•Deviant Sexual Interests: Mr Lyddieth has committed contact and non contact sexual offences against numerous female victims. He admitted to a historical sexual arousal to and interest in voyeurism, exhibitionism, and non consensual sexual intercourse, with these behaviours integrated into his offending behaviour.
Additional areas of concern for Mr Lyddieth are:
•Capacity for Relationship Stability: While Mr Lyddieth previously demonstrated some capacity for relationship stability through maintenance of a long term marriage, albeit somewhat problematic, he is not involved in an intimate relationship at present.
•General Social Rejection/Loneliness: While Mr Lyddieth appears to have two strong and supportive friendships, he feels rejected by, and is bothered by the lack of contact with, his family. He admitted to occasionally experiencing feelings of loneliness, which he is able to manage through basic strategies.
•Poor Cognitive Problem Solving: Mr Lyddieth appears to be able to adequately manage day to day problems within the structure, predictability, support, and stringent confines of a HRSOSO. However, while he demonstrated adequate insight into his internal and external high risk situations for sexual recidivism, it is of concern that his relapse prevention plans have developed little and continue to be somewhat vague and ill defined despite his engagement in extensive group and individual intervention.
•Negative Emotionality/Hostility: Mr Lyddieth has a well documented and long standing history of rumination on perceived slights, issues of concern and/or perceived injustices, which has at times impacted on his counselling, supervision, and management, but this tendency appears to have moderated over time.
•Cooperation with Supervision: Mr Lyddieth's compliance with community supervision prior to the imposition of his HRSOSO was poor. He generally abides by the conditions of his HRSOSO, although intermittent problematic behaviour relating to limited disclosure, anger, aggression, and non compliance have been documented.
Ms Korda continued:[11]
The STABLE‑2007 can be combined with the Static‑99R to provide a composite assessment of risk/needs and to produce estimates of sexual recidivism. Mr Lyddieth scored in the moderate density range of criminogenic needs on the STABLE‑2007 and was placed in Risk Level IVa on the Static‑99R. When these measures are combined, his composite assessment reinforced his placement in Level IVa for supervision and intervention using the standardized risk framework. Men in the normative sample with the same risk profile as Mr Lyddieth would be expected to reoffend sexually at a rate of between 7% and 20% over five years.
Individuals placed in Level IVa are considered Above Average Risk. They often have many criminogenic needs, most of which are chronic and severe. Access to prosocial resources and strengths is likely limited due to significant barriers. The rate of sexual reoffending for individuals in Level IVa is roughly equivalent to twice the average rate of reoffending for the overall population of individuals convicted of sexually motivated offences. The prognosis includes a significant reduction of reoffending with many individuals in Level IVa transitioning down to a Level III, Average Risk, within a year or two or after a sufficient dose of treatment or positive life changes. Most will transition to Level III after a sufficient dose of treatment, positive life changes or should they remain offence free in the community for 10 to 15 years.
[11] Psychologist report of Ms Catherine Korda dated 23 November 2020 [56] ‑ [57].
In her summary and recommendations, Ms Korda said that:[12]
Mr Lyddieth's composite score on the Static‑99R and STABLE‑2007 placed him in Level IVa (Above Average Risk) for supervision and intervention. The dynamic risk factors identified and amenable to further therapeutic and/or supervisory input include intimate relationships, social rejection/loneliness, poor problem solving, negative emotionally/hostility, deviant sexual interests, and compliance with supervision. Mr Lyddieth has received extensive group and individual psychological counselling to date and is unlikely to make any additional significant gains from further intervention. Rather, the emphasis should be on assisting him to consolidate his relapse prevention plan, maintain his existing skills, and transition to greater freedom within the community in preparation for the potential expiration of his Order.
[12] Psychologist report of Ms Catherine Korda dated 23 November 2020 [61].
Ms Korda concluded with some particular recommendations in relation to the lead up to what was expected to be the end of Mr Lyddieth's supervision order.

Assessment

Based on the material before me, I am satisfied that there are reasonable grounds to believe that a court might find Mr Lyddieth to be a high risk serious offender within the meaning of the Act.
I recognise that Mr Lyddieth has not committed a sexual assault or any other offence amounting to a serious offence under the Act for over 30 years. Other than the relatively minor contraventions of his supervision order I have referred to above, he has remained offence‑free since 2002.
That is a very long time ago, and together with his generally good performance while on supervision, it suggests that Mr Lyddieth's risk has been significantly reduced with the passing of time. It also speaks highly of the effect of supervision and of the efforts of those treating and supervising Mr Lyddieth.
Nevertheless the gravity and enormity of his significant sexual offending, disclosing as it did a propensity to commit violent sexual offences, cannot be ignored. Together with the indications in Ms Korda's report that there remain outstanding issues to be addressed in order for Mr Lyddieth to be able to consolidate his relapse prevention and maintain his existing skills and her description of his relapse prevention strategies continuing to be, at least a year ago, somewhat limited and basic, there is sufficient evidence, in my view, to conclude that there are reasonable grounds for believing that a court might find that he is a high risk serious offender.
I will therefore make the orders for the hearing of the restriction order application and for Mr Lyddieth to be examined by a psychiatrist and a psychologist for the purpose of that hearing.

Interim supervision order

In the meantime, the State applies for an order extending the present supervision order pending the determination of the restriction order application; that is, for me to make an interim supervision order under s 58(3) of the Act in the same terms as the order to which he is currently subject. Mr Lyddieth accepts that I should do so.
I am satisfied that it is appropriate for the protection of the community that Mr Lyddieth continue to be subject to an interim supervision order pending the determination of these proceedings. It is particularly important at this time, while Mr Lyddieth is being assessed under the Act, that he continue to have what Ms Korda describes as the 'structure, predictability, support, and stringent confines of a [supervision order]'. Maintaining stability for Mr Lyddieth at this time is an important part of ensuring the protection of the community.
For those reasons I will order that Mr Lyddieth be subject to an interim supervision order until the completion of the restriction order hearing.

I certify that the preceding paragraphs comprise the reasons for decision of the Supreme Court of Western Australia.
LH
Research Associate to the Honourable Chief Justice Quinlan
25 NOVEMBER 2021