Director of Public Prosecutions (WA) v Ugle
[2014] WASC 58
•28 FEBRUARY 2014
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL
CITATION: DIRECTOR OF PUBLIC PROSECUTIONS (WA) -v- UGLE [2014] WASC 58
CORAM: McKECHNIE J
HEARD: 13 FEBRUARY 2014
DELIVERED : 28 FEBRUARY 2014
FILE NO/S: DSO 2 of 2014
BETWEEN: DIRECTOR OF PUBLIC PROSECUTIONS (WA)
Applicant
AND
WARREN JOHN UGLE
Respondent
Catchwords:
Dangerous sexual offender application - Whether grounds for concluding a dangerous sexual offender declaration might be made - Evidence substantially from criminal history - Turns on own facts
Legislation:
Dangerous Sexual Offenders Act 2006 (WA), s 7, s 14
Result:
Interim order made
Category: B
Representation:
Counsel:
Applicant: Ms K Robinson
Respondent: Ms M R Barone
Solicitors:
Applicant: Director of Public Prosecutions (WA)
Respondent: Barone Criminal Lawyers
Case(s) referred to in judgment(s):
Nil
McKECHNIE J: The Director of Public Prosecutions (WA) (DPP) applies for an order under the Dangerous Sexual Offenders Act 2006 (WA) s 14(1). The application is opposed by counsel for the respondent.
An order will be made if the court is satisfied there are reasonable grounds for believing that the court might, under s 7(1), find that the offender is a serious danger to the community.
Ms Barone for the respondent argues that the application is based entirely on the respondent's criminal history. She submits that no risk assessment has been made about the respondent
The respondent's criminal history
The respondent was born on 12 April 1974 and is now nearly 40.
The respondent has a long record of offending for anti‑social and traffic offences. He has committed many burglaries. When committing some burglaries he has also sexually assaulted the occupant of the house. These include a conviction in the Children's Court on 20 February 1992 for which he was sentenced to 2 years' imprisonment. After being released to parole in January 1993 he committed another burglary and again sexually assaulted the resident of the premises. On 15 May 1995 the respondent was sentenced to 5 years' imprisonment with parole eligibility.
Less than two months after those offences the respondent committed a further burglary and on this occasion sexually assaulted an 11‑year‑old girl.
He was sentenced to a term of 7 years' imprisonment on 14 January 1994.
The respondent was released on 11 February 2002 and committed various offences including burglaries, being re‑sentenced and released from custody on 16 September 2005.
On 21 October 2007 while subject to a CBO the respondent committed two acts of sexual assault in a bedroom of a house which he had entered through a sliding door in the night time.
On 7 April 2009 the respondent was sentenced to 5 years' imprisonment made cumulative from 5 March 2009 for two burglary offences, traffic and drug offences.
Treatment programmes
In December 1998 the respondent commenced the Intensive Sex Offender Treatment Programme but left after two months. It was noted that he made few gains and was considered to be at high risk of re‑offending.
In late 2010 the respondent declined to participate in the Sex Offenders Deniers Programme.
From 24 November 2009 to 3 February 2010 the respondent participated in Pathways Programme.
The Pathways Programme is a 100 hour structured programme which provides treatment to individuals who have a history of offending behaviour and substance abuse problems. The summary following his completion of the programme noted:
[D]espite having a good understanding of the connection between his offending and drug use and having displayed some perception and understanding of the Pathways course content, Mr Ugle probably remains at high risk of reoffending because of his apparent intransigent attitude, rigid thinking and inability to develop strategies for changing away from recidivist behaviours. In the event of his release it is essential that Mr Ugle receive significant formal support to assist him to prevent recurrence of previous substance use and criminal conduct.
On completion of the Pathways Programme the respondent's relapse and recidivism plan was described as:
[S]hallow and unrealistic. His poor engagement with the workbook and connection of his thinking and behaviours is evident in a sketchy, minimalist plan and similar recognition of inner skills and strategies. His recognition of high risk situations is limited and lacking in imagination and awareness of the consequences of these risks to him. The opportunity presented to him to consider his R&R prevention plan appears to have been poorly negotiated and largely wasted.
What may constitute reasonable grounds for belief
The Dangerous Sexual Offenders Act s 14 directs attention to s 7 and necessarily to s 7(3). It is conceivable that a person who may satisfy the criterion of only one of the enumerated matters in s 7(3) may be the subject of an order under s 7(1). While a current formal risk assessment may be useful the absence of an assessment is not determinative.
In my opinion, there are reasonable grounds for believing that a court might find that the respondent is a serious danger to the community. There is no report from a psychiatrist or other medical, psychiatric or psychological assessment. Against these absences the respondent's antecedents and criminal record, both general and in respect of sexual offending, is serious and shows repeated sexual offending following intrusions into strangers' houses. On the basis of his record alone there are reasonable grounds for concluding that a court might be persuaded that the respondent is a serious danger to the community. There are also reasonable grounds for concluding that a court might find a pattern in his offending behaviour. The respondent has made little effort to address the causes of his offending.
Conclusion
I am satisfied that there are reasonable grounds for believing that the court might find that the respondent is a serious danger to the community and therefore will make orders for a hearing on 28 and 29 April 2014 and appoint Dr Hall and Dr Tanney to prepare reports.
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