The State of Western Australia v Sach
[2024] WASC 227
•24 JUNE 2024
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL
CITATION: THE STATE OF WESTERN AUSTRALIA -v- SACH [2024] WASC 227
CORAM: QUINLAN CJ
HEARD: 21 JUNE 2024
DELIVERED : 21 JUNE 2024
PUBLISHED : 24 JUNE 2024
FILE NO: SO 5 of 2024
BETWEEN: THE STATE OF WESTERN AUSTRALIA
Applicant
AND
JAMES SACH
Respondent
Catchwords:
Criminal law – High Risk Serious Offenders Act 2020 (WA) – Preliminary hearing – Whether reasonable grounds for the belief that restriction order might be made – Turns on own facts
Legislation:
High Risk Serious Offenders Act 2020 (WA)
Result:
Orders pursuant to s 46(2) made
Category: B
Representation:
Counsel:
| Applicant | : | F M Allen |
| Respondent | : | A Fedele |
Solicitors:
| Applicant | : | State Solicitor's Office |
| Respondent | : | Legal Aid WA |
Cases referred to in decision:
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 and has been edited from the transcript.)
On 28 May 2024, the State of Western Australia applied for a restriction order in respect of James Sach under the High Risk Serious Offenders Act 2020 (WA) (the Act). The preliminary hearing of the application came before me today.
The main purpose of the preliminary hearing is for me to decide whether there are reasonable grounds to believe that the Court might find that Mr Sach is a high risk serious offender within the meaning of the Act. The law in relation to that issue is well settled.[1]
[1] 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).
Mr Sach's counsel, while accepting it was a matter for the Court, conceded that the requirements of the Act in that respect were met. I accept that concession and am satisfied that the requirements of s 46 of the Act are met.
I am not currently satisfied that it is necessary and desirable for the protection of the community that an interim detention order or an interim supervision order be imposed pending the determination of the restriction order application. I will make orders for that matter to be more fully considered on another date.
The evidence
In support of the application, the State relied upon an affidavit of Tanya-Maree Holloway affirmed on 28 May 2024, and an affidavit of Heather Applin affirmed on 18 June 2024. Ms Hollaway's affidavit contains Mr Sach's criminal history, as well as several reports and assessments in relation to him. These include psychological and psychiatric reports, pre-sentence reports, program completion reports, and parole assessment reports.
I have considered all of the evidence and need not set it out in detail. Relevant features of it include the following.
Mr Sach is now 47 years old. He has an extensive criminal record. His offending ranges from common assault and unlawful damage, disorderly behaviour in public, criminal damage and destruction of property, breach of violence restraining orders, and trespass.
Of particular relevance to this application are Mr Sach's conviction for a series of sexual offences that are 'serious offences' within the meaning of the Act. They include two counts of using electronic communication to expose a child under 16 years to indecent matter; eight counts of exposing a child under 13 years to indecent matter; a single count of involving a child in child exploitation; and one count of indecent dealing with a child under 13 years.
Mr Sach is presently serving a 2‑year term of imprisonment for the last of these offences, which expires on 4 August 2024.
Mr Sach's offending includes the following.
Using electronic communication to procure, or expose to indecent matter, a child under 16: Criminal Code, s 204B(2)
The first of his serious offences occurred in November 2018. Mr Sach, who was aged 42 at the time, communicated online with a police officer who was acting in a covert capacity, assuming the identity of a 15‑year‑old girl.
Having acknowledged the age of the person with whom he believed he was communicating, Mr Sach proceeded to make numerous sexual comments, before sending the person explicit comments, photos and videos. On 4 December 2018 Mr Sach attended a prearranged location in the Perth CBD in order to meet the person that he thought was the child, and was arrested upon arrival.
Using electronic communication to procure, or expose to indecent matter, a child under 16: Criminal Code, s 204B(3)
Also during November 2018, Mr Sach communicated with an 11‑year‑old girl over social media using two fake profiles: one purporting to be a 42 year old man, the other claiming to be a 14‑year‑old girl, the daughter of the other fake profile.
The victim in this case was not a police officer acting in a covert capacity but was, in fact, an 11‑year‑old girl.
Having been made aware of the victim's age, Mr Sach sent numerous lewd, sexual, and explicit messages to the girl. He then coerced the victim, through a series of threats, into sending him explicit, naked, intimate photographs of herself.
For all of the offending in November through to December 2018, Mr Sach was sentenced to a term of 3 years and 4 months imprisonment.
Indecent dealing with a child under 13 years: Criminal Code, s 320(4)
Mr Sach's most recent offending, and that for which he is currently imprisoned, relates to an incident that occurred on 4 August 2022 after he was released from the previous term of imprisonment. The victim, an 11‑year‑old girl unknown to Mr Sach, was walking through a park accompanied by her younger brother and his friend.
Mr Sach approached the victim and spoke to her briefly, before rubbing and squeezing her chest. The children ran away from Mr Sach. The incident was captured on CCTV. When interviewed by police, Mr Sach denied touching the girl, but made a number of disturbing disclosures in relation to his sexual interest in children.
At the time of this offence, Mr Sach was living in the community on a post‑sentence supervision order imposed following the completion of his previous term of imprisonment. For this offence, Mr Sach was sentenced to a term of 2 years imprisonment.
In addition to these serious offences, Mr Sach has also been convicted of a number of offences of breaching violence restraining orders. While not serious offences within the meaning of the Act, those offences suggest both a disregard for court orders and also, given the number of breaches of the violence restraining order relating to a previous female acquaintance of Mr Sach, a capacity for obsessive behaviour.
Risk assessment and treatment
Mr Sach has undergone a number of psychological and psychiatric assessments over the years and completed the Sex Offender Treatment Program between November 2020 and September 2021 while at Bunbury Regional Prison.
During that program, Mr Sachs made limited treatment gains. The program facilitators identified a number of treatment needs in the course of that program, namely:
·Relationship difficulties, specifically intimacy deficits, general social rejection, isolation/avoidance, emotional identification with children, and hostility towards women.
·Self-regulation difficulties, namely negative emotionality, maladaptive coping, lack of goal-setting and problem solving, and lack of support and difficulties in meeting his basic needs for survival.
·Sexual issues around consent, sex as a coping mechanism, sexual preoccupation, and sexual deviance.
This program was, of course, completed prior to Mr Sach's most recent offending in August 2022.
Also prior to that offending is the most recent psychological report available, which was prepared by Ms Cinzia Zuin, dated 21 March 2019.
That report records that Mr Sach demonstrated a marked lack of insight and self‑awareness and a preoccupation with matters of a sexual nature from a young age, indicating a level of deviancy that is longstanding and transgresses boundaries of socially acceptable behaviour.
Ms Zuin employed the Millon Multiaxial Inventory; the Static‑99R; and the Risk of Sexual Violence Protocol (RSVP) to evaluate Mr Sach's psychological disposition, risk assessment, and to make recommendations for treatment and management. Ms Zuin concluded that Mr Sach 'has deficits in social and emotional functioning and is hypersensitive to rejection or criticism'.
Scores approximating Mr Sach's indicate a tendency to exploit others, accompanied by an unjust sense of entitlement, and with little regard to one's impact on others and the adoption of a victim mentality. This tendency is arguably evident in Mr Sach's externalisation of blame onto the 11‑year‑old victim of his offending, who he described as a 'naughty girl' who was 'into it'.
The Static‑99R and RSVP instruments used by Ms Zuin also indicated that Mr Sach presented as an 'above average' risk of future sexual offending, and that his 'sexually inappropriate behaviour towards women has been a longstanding issue'.
Ms Zuin therefore concluded her report by stating:
Mr Sach presents with intensive treatment needs in regards to his sexual offending with evidence of deviant sexual interests that are fuelled by fantasy, drug use, and complete lack of insight and self-awareness. However, Mr Sach's mental illness and associated interpersonal difficulties will pose significant challenges to treatment.
I also have before me a psychiatric report prepared by Dr Mark Hall on 9 April 2019. It is clear that Mr Sach has significant mental health issues. Dr Hall diagnosed Mr Sach with paranoid schizophrenia, which presents as auditory hallucinations and delusions of grandeur. Dr Hall also set out Mr Sach's history of methamphetamine and alcohol abuse. Dr Hall concluded that Mr Sach presented a high risk of reoffending without intervention.
My assessment
The evidence satisfies me that there are reasonable grounds to believe that the Court might find Mr Sach to be a high risk serious offender. Despite intervention, he has a demonstrated history of sexual offending, including while in the community on a post sentence supervision order.
On the basis of his offending history, his deviant sexual interests and mental health challenges, I am satisfied that there are reasonable grounds to believe that the Court might find that he is a real risk of committing further sexual offences if released and, in particular, if released unsupervised.
I will therefore make orders for the hearing of the restriction order application.
Interim detention order
In the interim, the State submits that I should make an interim detention order pursuant to s 46(2)(c)(i) of the Act, until the conclusion of the hearing of an application for a restriction order.
To make a detention order, I must be positively satisfied that such an order is appropriate. In the present case, the evidence reveals that Mr Sach is entitled to support through the National Disability Insurance Scheme (NDIS) and will be provided supervision for eight hours a day, seven days per week.
The availability of such supervision not only indicates the significant treatment and assistance needs that Mr Sach has, but is also a matter that will be relevant to the capacity for him to be supervised in the community in such a manner as to provide adequate protection to the community
In that respect, however, there is not a great deal of detail before me in relation to the proposed NDIS program.
Moreover, such evidence as there is in relation to proposed accommodation for Mr Sach is limited. The evidence refers to three possible locations at which Mr Sach might reside. Those locations have not, in my view, been sufficiently investigated to determine whether or not the location and type of accommodation are sufficient to provide adequate protection of the community.
In that regard, both the persons with whom Mr Sach would be residing and the proximity and nature of the locality, will be relevant to the extent to which Mr Sach's risk can be managed in the community.
In all of the circumstances, in my view it is appropriate to adjourn the application of the preliminary hearing as to whether or not an interim detention order or an interim supervision order should be made in order to obtain further evidence in that regard.
To that end, I will order the State file further affidavit evidence from Adult Community Corrections in relation to the issues surrounding Mr Sach's supervision in the community, including in relation to accommodation and his NDIS support program.
I will adjourn the preliminary hearing for that purpose until 26 July 2024, which is a date prior to Mr Sach's release date on his current term.
I certify that the preceding paragraphs comprise the reasons for decision of the Supreme Court of Western Australia.
MJM
Research Associate to the Hon Chief Justice Quinlan
24 JUNE 2024
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