Director of Public Prosecutions (WA) v Ugle [No 3]
[2015] WASC 452
•24 NOVEMBER 2015
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL
CITATION: DIRECTOR OF PUBLIC PROSECUTIONS (WA) -v- UGLE [No 3] [2015] WASC 452
CORAM: FIANNACA J
HEARD: 7 OCTOBER & 9 NOVEMBER 2015
DELIVERED : 24 NOVEMBER 2015
FILE NO/S: DSO 2 of 2014
BETWEEN: DIRECTOR OF PUBLIC PROSECUTIONS (WA)
Applicant
AND
WARREN JOHN UGLE
Respondent
Catchwords:
Criminal law - Dangerous sexual offender - First annual review - Risk assessment to the community - Whether detention order should be rescinded - Suitable accommodation for supervision order
Legislation:
Dangerous Sexual Offender Act 2006 (WA), div 2, pt 3, s 7, s 7(1), s 7(3)(e), s 7(3)(f), s 17(1)(a), s 17(2), s 18(2)(a), s 29(1), s 33, s 33(1), s 33(2)
Result:
Release on supervision subject to conditions
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):
Director of Public Prosecution (WA) v Yates [No 2] [2015] WASC 201
Director of Public Prosecutions (WA) v Comeagain [No 5] [2014] WASC 214
Director of Public Prosecutions (WA) v Decke [2009] WASC 312
Director of Public Prosecutions (WA) v Griffiths [2015] WASC 393
Director of Public Prosecutions (WA) v Pindan [No 3] [2014] WASC 95
Director of Public Prosecutions (WA) v Ugle [No 2] [2014] WASC 369
Director of Public Prosecutions (WA) v Unwin [No 3] [2013] WASC 178
The State of Western Australia v Latimer [2006] WASC 235
FIANNACA J:
Summary
This is the first annual review of a continuing detention order made by Simmonds J in respect of the respondent, Warren John Ugle, on 6 October 2014, pursuant to s 17(1)(a) of the Dangerous Sexual Offenders Act 2006 (WA) (the Act) after his Honour found that the respondent was a serious danger to the community in accordance with s 7(1) of the Act: Director of Public Prosecutions (WA) v Ugle [No 2][2014] WASC 369. For reasons to follow, having conducted the review in accordance with s 33 of the Act, I find that there remains an unacceptable risk that if the respondent were not subject to a continuing detention order or a supervision order, he would commit a serious sexual offence. Bearing in mind that the paramount consideration is the need to ensure adequate protection of the community, I am satisfied on the evidence that has been presented, and taking into account the submissions made on behalf of both the respondent and the Director of Public Prosecutions (DPP), that such protection can be achieved by a supervision order with strict conditions. Accordingly, I rescind the continuing detention order and make an order that for a period of 10 years commencing today, at all times when the respondent is not in custody, he is to be subject to the conditions set out in the supervision order attached to these reasons.
Outline of the annual review hearing
The detention order made by Simmonds J on 6 October 2014 was in a hearing under div 2 of the Act.
The annual review of that order was conducted on 7 October 2015 and 9 November 2015. At the commencement of proceedings on 7 October 2015 I was informed that the hearing could not be concluded on that day because enquiries were incomplete in respect of the availability of suitable accommodation in the event that the court were to find that the respondent could otherwise be released on a supervision order. The parties were agreed that all of the evidence other than in respect of the availability of suitable accommodation should be heard on that day, and that the hearing should then be adjourned part heard until an accommodation assessment report was available. It was expected that accommodation would be available through Outcare. The course proposed by the parties was on the basis that, while each of these matters was a matter for determination by the court:
1.the respondent did not dispute that the evidence established that he was a serious danger to the community;
2.the DPP would concede that on the evidence to be presented on the review, it would be open to the court to find that the community could be adequately protected by a supervision order with strict conditions in terms of a draft supervision order prepared by the DPP; and
3.in those circumstances the prospect of the respondent being released on a supervision order should not be defeated by the unavailability of suitable accommodation as at the date of the hearing when there was a possibility that suitable accommodation could be available within approximately four weeks.
I agreed with the proposed course. Accordingly, at the hearing on 7 October 2015, counsel for the DPP tendered the book of materials from the div 2 hearing (exhibit 1, with the 63 items contained therein being numbered 1.1 ‑ 1.63) and a book of materials prepared for the annual review (exhibit 2, with the 12 items contained therein being numbered 2.1 ‑ 2.12). The DPP then called two witnesses, Dr Mark Hall, a forensic psychiatrist who reviewed the respondent for the purposes of the annual review, and Dr Dylan Galloghly, a clinical and forensic psychologist who prepared the Dangerous Sex Offender Treatment Progress Report for the review. I will deal with their evidence later in these reasons.
On 9 November 2015, the DPP tendered an updated community supervision assessment report prepared by Ms Julie Dabala, a Senior Community Corrections Officer with the Department of Corrective Services (the Department). Ms Dabala was also called to give evidence about the proposed conditions of a supervision order and the availability of suitable accommodation.
At the conclusion of the hearing on 9 November 2015, I reserved my decision.
Before outlining the approach I have taken to the annual review, I will set out the relevant legislative framework and legal principles.
Legislative framework and relevant principles
The annual review of a continual detention order is governed by pt 3 of the Act and the court's powers are set out in s 33 in the following terms:
33.Review of detention under continuing detention order
(1)When the court, on an application made under section 29 or 30, reviews a person's detention under a continuing detention order, the court must rescind the order if it does not find that the person subject to the order remains a serious danger to the community.
(2)The court may, if it finds that the person subject to the order remains a serious danger to the community, either -
(a)expressly decline to rescind the order; or
(b)rescind the order and make an order that at all times during the period stated in the order when the person is not in custody the person be subject to conditions that the court considers appropriate and states in the order.
(3)In making a decision under subsection (2), the paramount consideration is to be the need to ensure adequate protection of the community.
In Director of Public Prosecutions (WA) v Pindan [No 3] [2014] WASC 95 [54] ‑ [55], Corboy J identified a potential issue concerning the proper construction of s 33 that goes fundamentally to the approach to be taken by a judge on an annual review, in particular the status to be accorded the decision on the div 2 hearing which resulted in the detention order under review. Corboy did not consider it necessary to resolve the issue in the circumstances of that case, given the manner in which the proceedings had been conducted by the parties.
In Director of Public Prosecution (WA) v Yates [No 2] [2015] WASC 201, Martin CJ referred to the issue, but also considered it unnecessary to resolve in in the context of the case he was dealing with. His Honour said:
In Director of Public Prosecutions (WA) v Pindan [No 3], Corboy J raised an issue with respect to the proper construction of this section of the Act which he did not consider it necessary to resolve in that case. The issue concerns the extent to which the court conducting the review is bound by factual findings made by the court which made the continuing detention order with respect to such matters as the risk of reoffending, the unacceptability of that risk or the protection likely to be afforded to the community by a supervision order. If the court conducting the review is not so bound, is it obliged to make its own independent and fresh assessment of those factual issues? Or is the task of the court conducting a review limited merely to ascertaining whether there has been a change in the offender's circumstances since the order was made and if so, assessing the effect which the change or changes in circumstances have had upon the question of whether the offender remains a serious danger to the community or, if the offender does remain a serious danger to the community, upon the character of the order which must be made to provide adequate protection to the community?
As in Pindan [No 3], the parties to this review did not address these questions of construction in their submissions. Rather, they were content to proceed on the implicit assumption that the function of the court conducting a review was of the more confined character to which I have just referred. That may well be because, in this case, there may be little practical difference between the different approaches identified by Corboy J in Pindan [No 3], given that the review is to be conducted by the same judge who made the continuing detention order. In the circumstances of this case, I do not consider it necessary to resolve the issue of construction identified by Corboy J in Pindan [No 3], and will proceed upon the basis implicit in the approach taken by the parties, which is to the effect that the focus of the court's attention is upon the identification of any changes in circumstances since the continuing detention order was made, and if so, the consequences of those changes in terms of risk to the community [4] ‑ [5]. (footnotes omitted)
As in Pindan [No 3] and Yates [No 2], the parties to this review were content to proceed on the implicit assumption that the function of the court conducting a review was of the more confined character referred to by Martin CJ. As in those cases, it is not necessary for me to resolve the issue raised by Corboy J in Pindan [No 3] for the purposes of this review. I am inclined to agree, however, with the analysis of the annual review process by Hall J in Director of Public Prosecutions (WA) v Unwin [No 3] [2013] WASC 178:
The clear intention of the annual review process is to allow for the possibility of a change of circumstances. Detention under the DSO Act is not a punishment for past offending; it is a protective mechanism designed to prevent the risk of future serious sexual offending from being realised. If circumstances change such that the risk of reoffending reduces or can be adequately managed in the community then the continuing need for detention must be considered.
It is a significant thing to deprive a person of their liberty, not for something they have done but for something they might do in the future. In order to justify detention on these grounds the evidence must be acceptable and cogent and establish the existence of a serious danger to the community to a high degree of probability: s 7(2) DSO Act. Such a finding requires satisfaction that there is an unacceptable risk that the person would commit a serious sexual offence if not placed under a supervision order or detained.
The risk of reoffending may change over time. It may be affected by age, health and the successful completion of treatment. The availability of new technology or resources in the community may also affect whether the risk of reoffending can be managed on a supervision order.
The justification for making a continuing detention order is the existence of an unacceptable risk of serious sexual offending that cannot be adequately controlled by conditional release. However, detention also serves the purpose of allowing treatment and care in a secure environment: s 17 DSO Act. This confirms an obligation on the part of prison authorities to facilitate change by offering programmes and access to counselling.
If the risk changes or resources improve to enable more efficacious conditions then the need for detention may dissipate. In these circumstances, continuing detention may be unjust [14] ‑ [18].
That analysis assumes the correctness of the previous finding that the offender was a serious danger to the community and the previous choice of a detention order as the appropriate means to provide adequate protection of the community at the time the order was made, but importantly it identifies the need for careful consideration of the circumstances at the time of the annual review to determine whether the justification for the making of a detention order remains, namely the existence (at that time) of an unacceptable risk of serious sexual offending that cannot be adequately controlled by conditional release.
This is consistent with the principle that, in proceedings under the Act, in which it is necessary to determine whether a detention order or supervision order should be imposed to protect against an unacceptable risk that a person will commit a serious sexual offence, the court should choose the option that is least invasive or destructive of the offender's right to be at liberty, while ensuring adequate protection of the community: The State of Western Australia v Latimer [2006] WASC 235; Director of Public Prosecutions (WA) v Decke[2009] WASC 312.
As was noted by Simmonds J in Director of Public Prosecutions (WA) v Comeagain [No 5] [2014] WASC 214 [29], notwithstanding the terms used in s 17(2) and s 33(2) of the Act are not identical, the similarities between the provisions are such that the principles established in the context of cases concerned with s 17(2) are also applicable to cases concerned with s 33(2).
When considering whether a supervision order would adequately protect the community it is necessary to take into account any conditions which can be placed on a supervision order to ensure that protection: s 18(2)(a). The use of the word 'adequate' indicates that a qualitative assessment is required. It cannot simply be assumed that the protection of the community will always favour detention, as the most assured form of prevention: Director of Public Prosecutions v Decke [14].
Further, as was noted by Hall J in Director of Public Prosecutions (WA) v Griffiths [2015] WASC 393:
The Act does not require that there be no risk of re-offending. Such a requirement could never be met and the effect would be that no person to whom the Act applies would ever be released. The requirement is that any risk be reduced to a reasonably acceptable level. This will always require a careful weighing of the nature and degree of risk in the context of methods for the management and reduction of that risk [107].
Approach to the annual review in this case
Applying that legal framework to this case, there being no dispute that the respondent remains a serious danger to the community (a conclusion that is amply supported by the evidence), I am of the view that the decision to be made under s 33 of the Act between the continuation of the detention order and release on a supervision order depends on whether there has been development in the respondent's attitudes, understanding and behaviour since the div 2 hearing of such a nature and extent as to ameliorate his risk of serious sexual offending sufficiently that, although it remains an 'unacceptable risk', it can be adequately controlled by conditional release on a supervision order, so that the community remains adequately protected. That requires a comparison of the respondent's circumstances as they were at the time of the div 2 hearing with his circumstances since then and, in particular, as they are now.
Before turning to that comparison, I will refer to the facts of the serious sexual offending.
Background: serious sexual offending
The respondent's serious sexual offending was summarised by Simmonds J in Ugle [No 2] [50] ‑ [64]. The seriousness of the offending has a bearing on the decision I come to ultimately about the duration of the supervision order that I impose in respect of the respondent. To reflect that seriousness more fully, it is necessary for me to elaborate on the outline provided by Simmonds J. It is convenient to repeat his Honour's outline, with which I agree (having read the relevant materials in exhibit 1), and to refer to additional matters at the appropriate places.
His Honour summarised the convictions and the nature of the offending in the following terms:
His convictions for serious sexual offending comprises convictions for offences committed respectively on 12 January 1992, 4 February 1993, 1 April 1993 and 21 October 2007. The first was committed while he was under a conditional release order; the second and third were committed while on parole for previous offending, including the first serious sexual offence; and the fourth set of offences, of which there were two counts, were committed while he was subject to a community-based order.
Each of the serious sexual offences was committed on a female victim in her home which Mr Ugle had entered in the course of a burglary or like offence [50] ‑ [51].
His Honour then summarised the first serious sexual offence and the sentencing for that offence as follows:
The first serious sexual offence, that of 12 January 1992, was committed on a 17-year-old female, SEDB. Mr Ugle was at the time of the offence affected by alcohol and drugs. He had been evicted from a bus, and had gone on to break into a house where he found SEDB, demanded money from her, penetrated her vagina with his penis without her consent and took cash.
On 20 February 1992 in the Perth Children's Court Mr Ugle was sentenced to 2 years' imprisonment for the first serious sexual offence, that of 12 January 1992, and was also sentenced for other related offending [53] ‑ [54].
His Honour then summarised the second serious sexual offence as follows:
The second serious sexual offence, that of 4 February 1993, was committed on CJR, an adult female. CJR had undergone surgery the day before and retired to bed in the early evening, having taken medication to ease the pain and having consumed a quantity of alcohol. Mr Ugle was on parole at the time of the offending [55].
In respect of that offence, CJR gave evidence that she had had surgery on her lips that had also required the removal of tissue from her left shoulder. As a consequence of the surgery, at the time of the offence, she has swollen lips and her left arm was in a sling (exhibit 1.28, page 139, transcript of proceedings in the District Court on 27 April 1995). CJR gave evidence that she went to bed wearing a nighty, with the sling still on her arm. She woke up with something over her face, and the next thing she noticed was an Aboriginal male in her room and the lights were on. The next thing that happened was that the Aboriginal male was having sexual intercourse with her and her nighty was across the other side of the room on the floor, the clear inference being that the offender had removed it. CJR gave evidence that she said 'no' several times to the offender. She said that the offender then had a shower, after which he identified himself to her by the name Warren Ugle. She said that he then gave her something to drink, after which she sort of 'phased out a bit', and the last thing she remembered was something pushed over her face again, which felt like a pillow. The next thing she could remember was waking up the next morning and she could feel physically that she had had sexual intercourse with someone (exhibit 1.28, pages 143 ‑ 146). In relation to this offence, the respondent gave evidence at his trial and claimed that the complainant had invited him into the house and had consented to sexual intercourse. Obviously the jury rejected his account.
Simmonds J referred to the sentencing for this offence as follows:
On 15 May 1995 in the Perth District Court Mr Ugle was sentenced to 5 years' imprisonment for sexual penetration without consent and 3 years' imprisonment for burglary in respect of the circumstances of the offending of 4 February 1993 on CJR including the second serious sexual offence of that date [56].
In respect of the third serious sexual offence, Simmonds J outline the facts and the sentencing for the offence as follows:
The third serious sexual offence, that of 1 April 1993, was committed on MLM, an 11-year-old girl. Mr Ugle and two accomplices broke into a family's home at night. Mr Ugle walked into the bedroom of MLM, pulled the blanket and sheets of her, pulled her underpants off and digitally penetrated MLM's vagina. He exposed his penis and demanded that MLM touch it, which she refused to do. He fled when MLM called out to her mother. Mr Ugle was on parole at the time of the offences involved.
On 14 January 1994 in the Supreme Court Mr Ugle was sentenced to 7 years' imprisonment for the offence of sexual penetration of a child under 13, the third serious sexual offence. He was also sentenced then for other related offending [57] ‑ [58].
I note that the sentencing judge referred to the fact that the child, MLM, was panic stricken and struggling. When she refused to hold the respondent's penis, he took hold of her legs again and tried to touch her vagina. She kicked and struggled to free herself, and it was at that stage that she called out for her mother. The sentencing judge found that the child, apart from the terror and emotional trauma occasioned to her, suffered considerable pain in her genital region (exhibit 1.38, page 217, transcript of sentencing proceedings in the Supreme Court on 14 January 1994).
Before referring to the fourth set of serious sexual offences, I note that Simmonds J discussed a further incident to which Dr Hall referred in his report and his testimony before his Honour which was not a serious sexual offence, or indeed a sexual offence. It involved the respondent, on 30 March 1993, entering the home of Ms N and placing a pillow over her face before demanding her purse. I note that, although there was no sexual offence committed on that occasion, the placing of the pillow over the victim's face was similar conduct to that described by CJR as part of the circumstances of the second serious sexual offence. Simmonds J noted that the respondent said to Dr Hall that he had used the pillow to prevent the complainant from screaming; he adamantly denied that he was trying to suffocate her or that his actions had a sexual motive. As his Honour pointed out, the respondent was sentenced for the burglary offence arising out of that incident on 14 January 1994, in the same sentencing proceedings as those for the third serious sexual offence. The respondent was sentenced to 4 years' imprisonment for the offence of burglary and 9 months' imprisonment for stealing with violence in relation to that incident.
Finally, Simmonds J outlined the facts and the sentencing for the fourth set of serious sexual offences in the following terms:
The fourth set of serious sexual offences, committed on 21 October 2007, comprised two counts of the offence of sexual penetration without consent, involving digital vaginal penetration and cunnilingus. The offences occurred in the house of the victim ALJ's partner, in the early hours of the morning. ALJ was asleep and initially thought it was her partner performing sexual acts on her. When she realised her error she became alarmed and Mr Ugle fled.
On 7 April 2009 in the District Court Mr Ugle was sentenced to 5 years' imprisonment on each count of the fourth serious sexual offences, to be served concurrently [59] ‑ [60].
In respect of those offences, I note that the sentencing judge said the following (exhibit 1.45, page 283, transcript of sentencing proceedings in the District Court on 7 April 2009):
The serious features in this case include that the complainant was a woman who was a complete stranger to you. It was the middle of the night.
Your conduct was audacious and blatant, involving, as it did, stealing into a house that you knew people were in, walking past the complainant's friend asleep on the couch, and past the room where the children were, and then going into the bedroom, assuming, it would seem, that the complainant was asleep and would not realise that it was not her friend until you had achieved what you were aiming to achieve.
There is no doubt that the respondent's history of sexual offending was of a most serious kind, potentially causing immeasurable psychological harm to his victims, and physical harm to at least the child victim, and involving the sort of violation of the sanctity of the victims' homes that engenders fear in the community.
Background: evidence and findings at the div 2 hearing before Simmonds J in 2014
In order to determine whether there has been a change in the respondent's circumstances, it is necessary to consider the findings made by Simmonds J at the div 2 hearing and the evidence on which they were based.
Two psychiatrists prepared reports and were called to give evidence at the div 2 hearing. They were Dr Hall and Dr Bryan Tanney. Dr Hall's report in those proceedings was tendered again as part of exhibit 1 in the present proceedings (exhibit 1.62). The report of Dr Tanney in the div 2 hearing was also tendered in the present proceedings as part of exhibit 1 (exhibit 1.63).
The evidence of Dr Hall at the div 2 hearing, both as to facts and opinion, is set out in detail in Ugle [No 2] [77] ‑ [136]. I note the following key aspects of his evidence:
1.Dr Hall's overall assessment was that, without intervention in the form of a continuing detention order or a supervision order, the respondent posed a high risk of reoffending sexually;
2.However, the risk was not of imminent serious sexual reoffending;
3.The kind of sexual violence that the respondent would be most likely to commit would be opportunistic penetration or attempted penetration of an adult female unknown to him, in her own residence, during the course of the commission of another crime, such as burglary;
4.The likely motivation for that sexual reoffending would be impulsive gratification of a sexual impulse, although 'the assertion of dominance and exercise of power in its own right' could not be excluded as a motive. Dr Hall was of the view that not enough was known about the respondent to say with certainty what really would motivate him in the event of reoffending;
5.The risk was low that the sexual offence would escalate to serious or life threatening violence, as the respondent was more likely to flee than to inflict such violence in the heat of the moment;
6.The imminence of reoffending would depend on the respondent's ability to manage his substance use, peer relationships and potential generalist offending. The warning signs that the risk of sexual offending might be increasing or imminent included relapse to substance use, a return to a socially deviant lifestyle populated by antisocial peers and financial hardship;
7.Dr Hall's assessment was based on actuarial instruments and structured clinical guides. The actuarial instruments were the Static‑99R (Hansen & Thornton 1999) and the Hare Psychopathy Checklist - Revised (PCL‑R) (Hare, 1991 and 2002);
8.While the Static‑99R should only be applied to Indigenous people, such as the respondent, with 'extreme caution', there was an 'acceptable degree of robustness to the assessment of risk', when the actuarial tools are supplemented with the structured professional judgment tool, like the Risk for Sexual Violence Protocol (RSVP) (Hart, Kropp, Laws, Klaver, Logan and Watt, 2003);
9.The respondent's score on the PCL‑R indicated that he had many of the features of psychopathy as defined by the PCL‑R;
10.Dr Hall arrived at a diagnosis of antisocial personality disorder, derived from his assessment of the respondent's upbringing as characterised by social, emotional and economic deprivation and an assessment of the respondent's personality as having enduring traits of impulsivity and recklessness;
11.Applying the RSVP guide, in the domain of psychological adjustment, the respondent possessed the risk factor of extreme minimisation or denial of sexual violence in that he denied the offending, or the non‑consensual nature of his actions, or the seriousness of the offence, for all but his first serious sexual offence;
12.In relation to the third sexual offence, involving the 11‑year‑old child, the respondent told Dr Hall that his confession to the offence had been 'coaxed' from him. Dr Hall considered this to be an indication of denial and lack of awareness, with the latter 'possibly' becoming more entrenched over time. However, Dr Hall acknowledged in cross‑examination that, in relation to the fourth set of serious sexual offences, he was of the opinion that the respondent had progressed from his position at the trial that he was not present at the scene to acceptance that he had been there and had desisted immediately when the victim indicated he was not who she thought he was;
13.The respondent possessed attitudes supporting or condoning sexual violence in that, although he did not espouse the view that sexual violence was acceptable, and was not overly misogynistic, his pattern of behaviour was indicative of the objectification of women and preparedness to violate the right of others to be safe in bed in their own homes;
14.The respondent further exhibited problems with self‑awareness in that he lacked an appreciation of the factors and processes that placed him at risk of sexual violence. He also lacked an awareness of his own mental processes or emotional states more generally;
15.In the domain of mental disorder on the RSVP, the respondent possessed a risk factor of problems with substance abuse, in that his use of methylamphetamine and cannabis over many years had impaired his psychosocial functioning and had been a major contributor to his offending. In cross‑examination, Dr Hall testified that, while the use of methylamphetamine was possibly relevant to sex drive, there was no consistency in the psychological or other scientific literature concerning the link between cannabis and sexual reoffending. Rather, the use of both substances might require offending to fund that use, and cannabis might itself contribute to his being part of a social milieu that would incline to the loss of his ability to make a reasonable judgment as to the use of methylamphetamine;
16.The respondent had not shown any significant progress over the time that he had spent in prison and the time he had been committing offences, and his attitude to treatment had not changed. At that point in time, the respondent believed that he himself was the solution to his problems and could address them himself without any intervention;
17.Although there was nothing to say that the respondent would not remain at a high level of risk after therapy, it was necessary for him to surmount his aversion to therapy because, without undertaking therapy, he would not gain the benefit of potentially ameliorating any risk that he poses;
18.The respondent also possessed a risk factor of problems with supervision in that he had committed serious sexual offences while on parole and under supervision in the past, and remained difficult to engage; and
19.Dr Hall acknowledged that empirical studies had yielded conclusions that a large number of factors of the kinds referred to above had been found not to be strongly correlated with the risk of reoffending. Those factors were minimising culpability, denial of offending, low treatment motivation, lack of victim empathy, prior history of violent offending, being the victim of sexual abuse, and an adverse childhood environment. However, he considered that it was still appropriate to draw on those factors because, while each factor may be weakly correlated with risk, and may not mean much in isolation, in totality it was appropriate to have regard to those factors, particularly when considering manageability or treatment of risk.
Simmonds J expressed his understanding of Dr Hall's evidence in that regard as follows:
Dr Hall as I understood his testimony accepted that those were examples of factors which did not, at least in and of themselves, inform assessment of risk but rather went to the manageability or treatment of risk, being factors particularly relevant to Mr Ugle, which were minimisation of culpability; lack of treatment motivation; and lack of, or limited, victim empathy (see 28 April 2014, cross‑examination, ts 95 ‑ 97) [124].
His Honour said he understood Dr Hall's evidence to be that 'risk prediction was not (at present at least) a science, but based on informed professional judgement' [126]. That was the basis upon which Dr Hall had arrived at his assessment of the respondent's risk.
Simmonds J noted that Dr Hall accepted that there was a distinction between reducing the risk of reoffending and managing that risk, as by monitoring and supervision [132].
As to the possibility of managing the respondent's risk of serious sexual offending in the community, his Honour referred to Dr Hall's overall assessment in his report (exhibit 1.62 [82]), where Dr Hall said, inter alia:
Mr Ugle's risk may be manageable in the community in the event that he engages well with a psychologist from the DSO Psychology Team, abstains from the use of illicit substances, avoids antisocial peers, and is able to structure his day. ... In either case, stable and suitable accommodation would be required from the moment of his release in order for the above measures to have a good prospect of success.
Dr Hall also gave evidence that the respondent presented to him 'as someone with whom a clinician could develop an effective therapeutic relationship in time, as opposed to someone who quite clearly [had] almost no prospect of developing an effective therapeutic relationship with a clinician' [130].
Dr Tanney's overall assessment of the respondent's risk of reoffending sexually did not adhere to the usual gradation of 'low, medium (moderate) or high'. Instead he gave the opinion at the div 2 hearing that the respondent was 'at "some and meaningful risk" of "serious sexual reoffending against women at some indeterminate future date in line with a specific risk scenario" (exhibit 1.63 [97])' [140]. It is not necessary for me to repeat here Dr Tanney's explanation for that assessment (at [140]) because Simmonds J came to the view that, when Dr Tanney's testimony was closely examined, his assessment of risk was overall of a comparable order to that of Dr Hall, notwithstanding the fact that it was differently expressed [144].
As to the possibilities for management of the respondent's risk of serious sexual offending, Simmonds J set out Dr Tanney's opinion by reference to his report as follows:
As to the possibilities for management of Mr Ugle's risk of serious sexual offending, in custody and in the community, Dr Tanney's overall assessment was as follows (exhibit 1.63 [86] - [87], [91] - [94]; footnote omitted):
'Should he be designated under this legislation, management requires both ongoing monitoring of risk and activities to protect against or minimise risk conditions or elements, the latter usually categorised as supervision and treatment. He is not motivated and may be unable to address the elements of criminal conduct and substance abuse that dominate the risk scenario. His resistance to engaging in any treatment or according with supervision is long‑standing and entrenched. This suggests that the risk will be ongoing and not amenable to alteration by therapeutic means. Designation under the legislation will require management of risk utilising only monitoring and supervision and this would require to be ongoing for an indeterminate length of time.
Risk would be ongoing in continuing custody/attention, but can be managed. His current level of functioning would likely be maintained but also remain effectively managed in such a highly structured authority-driven environment. Ongoing detention without risk minimising activities could remain as a primary risk management tool for an indeterminate future. No change in his level of risk of reoffending on eventual re-entry to the community would be expected, except that afforded by the passage of time and aging.
…
Would it be appropriate to discharge Mr Ugle to the community at this time with community supervision or directed management?
He is currently able to function independently in the general community, albeit in an antisocial environment. He has no community and very scant family support is available to him.
There are clear and modifiable issues in need of management, but he has no history of and has stated active resistance to the need for such care arrangements. There is some grudging acknowledgement but I regard this as solely to further his release and without commitment.
At present, I believe that a risk management program could NOT be developed that would address sufficient of these issues to allow successful management of his risk of reoffending in the general community. (original emphasis)' [181].
In his evidence, Dr Tanney referred to entrenched long‑term issues which had implications for the manageability of the respondent's risk, which he was of the opinion had led to two of the most resistant conditions in terms of mental disorders, namely 'psychopathy narcissism' and significant substance abuse involving amphetamines [183]. Simmonds J referred to Dr Tanney's evidence in cross‑examination as to the implications of resistance for manageability, in particular the following answer:
[M]y major concern is that the nature of the risk - the significant risk factors that we know about, the substance abuse and his resistance, are the major impediments to him functioning effectively in the community [184].
Simmonds J concluded that the difference between the two psychiatrists on the question of manageability was 'a difference of opinion resting on clinical judgment' [191].
Findings of Simmonds J
Simmonds J concluded that the respondent was a serious danger to the community in the terms of s 7 of the Act, having regard to the following matters:
1.There was evidence from the two psychiatrists of a propensity on the part of the respondent to commit serious sexual offences in the future, described in different terms but to a similar effect, being serious sexual offences involving 'opportunistic penetration or attempted penetration of an adult female unknown to him, and in her own residence, during the commission of another crime such as burglary' [205];
2.There was a pattern of serious sexual offending in terms of the scenario described in the previous paragraph;
3.The respondent had not made significant efforts to address the cause or causes of his offending behaviour, and in particular had not participated in any rehabilitation programme other than Pathways. The effect of that latter participation was limited. Although the respondent had indicated to the two psychiatrists that he was interested in and prepared to participate in one‑to‑one counselling with a therapist, nothing of that sort had yet been tried with him [207] ‑ [208];
4.On the evidence of the two psychiatrists, the respondent posed a significant risk of committing a serious sexual offence;
5.The level of risk was such that there was a strong need to protect the community from that risk [212].
His Honour noted the difference of opinion between Dr Tanney and Dr Hall as to whether a supervision order would ensure adequate protection of the community. In that respect, he considered that the evidence of Ms Chantelle Place, the forensic psychologist employed with the Dangerous Sex Offender Psychology team, who provided a report and gave evidence about the respondent's participation in programmes offered by the Department, to be more consistent with Dr Tanney's opinion [227].
His Honour had regard to the evidence of Ms Julie Dabala, Senior Community Corrections Officer with the Department of Corrective Services (the Department), concerning her interviews with the respondent, in which he had demonstrated arrogance and unwillingness to engage in the processes necessary to assess properly the suitability of his release into the community [229]. In particular the respondent had been unwilling to permit Ms Dabala to contact his community support network to substantiate their support, or his relationship status, or to seriously discuss a strategy for abstaining from illicit substances in the community. Ms Dabala thought that his attitude may have been due to the fact that he was of the opinion that he would be found not to be a dangerous sexual offender. The respondent had also been unwilling to engage with Outcare in relation to potential accommodation and had shown an overall disinterest in planning for his release. The respondent's attitude had changed in two respects by the time that Ms Dabala interviewed him a second time [230] ‑ [235]. He was no longer unwilling to permit her to speak with family members, and he was no longer unwilling to engage with Outcare. Ms Dabala also confirmed in evidence at the div 2 hearing that the respondent was less arrogant during the second interview and that the person from Outcare who was dealing with the respondent had noticed that his attitude to the process had changed [233] ‑ [234].
However, his Honour expressed the following view about the indicated change of attitude:
I consider that those indications must be viewed against a background of the long term and strong resistance noted by Dr Tanney and by Ms Dabala. So viewed, I consider that they are not indications from which, at present, a great deal can be drawn for the purposes of making the choice I must make [237].
His Honour came to the conclusion that a detention order was the only means by which the adequate protection of the community could be ensured. His Honour expressed his conclusions as follows:
On my view of this evidence, considered with the other evidence as to the attitude of Mr Ugle to risks of these kinds and to supervision, I consider that the matter of the risk from the accommodation condition depends for its proper management - so as to provide adequate protection for the community - upon not only the presence of other suitably tailored conditions but also the approach to be expected from the offender to those risks and to those other conditions.
In my view of all of the evidence to which I have referred in the present section of these reasons, the approach at present to be expected from Mr Ugle to the risk of his committing a further serious sexual offence and to suitably tailored conditions in a supervision order is such that the paramount consideration for this purpose, the adequate protection of the community, may only be achieved by my choosing a continuing detention order.
It follows that further experience with Mr Ugle may lead to a revision of that expectation such that a different choice might be made. The accumulation and evaluation of any further experience with Mr Ugle is for another time [245] ‑ [247].
That time, of course, is now.
The annual review
The application for the annual review was made by the DPP on 5 May 2015 in accordance with s 29(1) of the Act. On 28 May 2015 Justice Jenkins made orders by consent in respect of the proceedings, in particular that the Chief Executive Officer of the Department was to arrange for examination and report upon the respondent by Dr Hall.
In accordance with that order, Dr Hall interviewed the respondent for an hour and a half on 11 September 2015. Having examined other materials, including reports tendered in the div 2 hearing and reports prepared since then in respect of the respondent's progress over the last year, Dr Hall prepared a report dated 16 September 2015.
Evidence received at the hearing of the annual review
Apart from the report of Dr Hall, the book of materials received as exhibit 2 at the hearing included:
1.an incident description report from the Department concerning a urinalysis test conducted on the respondent on 17 July 2015, which returned a positive result for cannabis;
2.individual management plans dated 23 March 2015 and 10 April 2015;
3.a 'Dangerous Sexual Offender Treatment Progress Report' by Dr Dylan Galloghly, clinical and forensic psychologists wit the Department, dated 25 August 2015;
4.a 'Community Supervision Assessment' report by Ms Julie Dabala, Senior Community Corrections Officer with the Department, dated 1 October 2015.
Although the assessment of the respondent's risk of serious sexual offending is within the expertise of Dr Hall, rather than Dr Galloghly, I will commence with Dr Galloghly's evidence, which provides the foundations for an assessment of whether the respondent's circumstances have changed.
Report of Dr Galloghly
Dr Galloghly's report outlines the respondent's engagement in individual counselling since the finding by Simmonds J that he was a dangerous sex offender and the imposition of the continuing detention order.
Dr Galloghly relied on a number of sources, including the psychiatric reports, the Sex Offender Treatment Options Report and the Treatment Completion Report: Pathways Program that were tendered at the div 2 hearing. In respect of information since then, Dr Galloghly conducted an interview with the respondent on 10 August 2015 for approximately one and a half hours. He also consulted Ms Vanessa Rankin, Senior Clinical Psychologist with the Forensic Psychological Service Team in the Department, and the Public Protection Unit, who has been providing counselling to the respondent over the last 12 months. He also perused the respondent's 'Offender in Custody file', Supreme Court records and the Total Offender Management Solution (TOMS).
The respondent has engaged in individual counselling since 13 October 2014 with Ms Rankin. Sessions have generally occurred on a weekly basis. At the time of Dr Galloghly's report (dated 25 August 2015), the respondent had attended 34 counselling sessions. The initial treatment goals were:
1.exploring substance misuse issues and developing a relapse prevention plan;
2.exploring the respondent's capacity for empathy and increased ability to view other people's perspectives;
3.exploration of emotions and development of increased insight into emotions and their impact on behaviour; and
4.analysis of sexual offending behaviour, including triggers and risk factors for future offending.
Ms Rankin confirmed that progress was initially slow, given the respondent's distrust of psychologists, his defensive and resistant stance in therapy, and his difficulty in seeing himself as a (dangerous) sex offender (exhibit 2.9 [7], page 17). Ms Rankin stated that her working relationship with the respondent, and the subsequent quality of therapy, increased after having a 'clearing the air session' that highlighted the therapeutic hindrances (exhibit 2.9 [8], page 17). Subsequently, the respondent's treatment plan was reviewed and amended in May 2015 with a renewed focus on:
1.offence related emotions and cognitions;
2.criminal associates (and attitudes);
3.self‑management;
4.emotional management and regulation (including distress tolerance); and
5.substance use.
(exhibit 2.9 [8], page 17)
When interviewed by Dr Galloghly, the respondent told him that one of his main treatment gains related to developing insight into the cycle that he goes through when released from prison. He labelled the cycle 'a repetitious merry‑go‑round', where he would be living on benefit payments, have no money, become bored and then end up committing crime and using illicit substances. He said that 'stealing to live' had become normalised for him and that he could now see how he could choose different paths (exhibit 2.9 [14], page 18).
In his report, Dr Galloghly said that in relation to his history of sexual offending, the respondent contended that the primary issue was amphetamine use. The respondent said that he tried not to think about the sex offences because 'the more you think about it, the more it gets to you', and he was unable to articulate any factors associated with his history of sexual offending apart from substance use and his own history of abuse (exhibit 2.9 [16], page 19). Dr Galloghly reported that the respondent openly discussed his substance use issues. He claimed that he was confident that he would not use illicit substances in the community should he be released. However, as mentioned earlier, the respondent underwent a urinalysis test on 17 July 2015 which tested positive for cannabis. He had previously returned positive urinalysis tests for cannabis on four occasions: 3 July 2008; 4 November 2009; 16 September 2013; and 28 October 2013 (exhibit 1.61, page 335).
In relation to his recent prison charge for cannabis use, the respondent stated that he succumbed to constant peer pressure while experiencing stress related to his upcoming DSO annual review (exhibit 2.9 [18], page 19). I interpolate that this does not inspire confidence in the respondent's prospects of complying with conditions prohibiting his use of drugs, given that the onerous conditions of the proposed supervision order are likely to cause the respondent a degree of stress.
The respondent informed Dr Galloghly that his relapse prevention plan focused on keeping busy and not becoming bored. He said that he intends to have employment, to engage with Holyoake for supportive counselling in addition to continuing therapy with Ms Rankin, and that he will have numerous reporting obligations associated with a community supervision order. He told Dr Galloghly that high risk scenarios pertained to associating with friends and family that he knows use illicit substances. He acknowledged the likely difficulties in socialising with such family members. He stated that he would remove himself from situations where drug use was apparent (exhibit 2.9 [19], page 19).
The respondent informed Dr Galloghly that securing employment was his priority. He acknowledged that he will have to budget and use supportive services should he be released into the community. He claimed that he now feels positive about working with other people and asking for help when needed.
Significantly, the respondent said he was motivated to continue his counselling with Ms Rankin with whom he feels he has a positive working relationship.
In Dr Galloghly's opinion, the respondent has engaged well in individual counselling over the past year, and his acceptance of the need for treatment and his subsequent positive therapeutic engagement with Ms Rankin can be viewed as significant progress, given his history of resistance to treatment (exhibit 2.9 [22], page 20). According to Dr Galloghly, the respondent appears to have greater insight into features of his personality that have historically encumbered his rehabilitation prospects.
Dr Galloghly was also of the view that the respondent seems to have a good understanding of his general criminal offending cycles. He noted:
In particular, he can articulate insight into how he held unhelpful antisocial beliefs that supported crime and how prison was no deterrent. He appears cognisant of how the issues of not being active, boredom, wanting money and drug use underpinned the cycles of committing burglary that generally set the scene for committing sexual offences (exhibit 2.9 [23], page 20).
However, the respondent displayed less treatment progress relating to his substance abuse issues. According to Dr Galloghly, the respondent's 'recent custodial charge offers a good demonstration of the difficulties he is likely to face in resisting peer pressure to use, and of his need to develop alternative methods of stress management' (exhibit 2.9 [24], page 21). On the other hand, Dr Galloghly noted that relapse is a normative component in the treatment of addictions that can be used to augment one's understanding of the factors that caused the relapse, while also exploring better methods of relapse prevention. In his view, the relapse in July 2015 has allowed the respondent and Ms Rankin an opportunity to work through such issues.
Dr Galloghly noted that the respondent continues to display a rather simplistic understanding of his amphetamine use.
Dr Galloghly expressed the following opinion in respect of the respondent's attitude to his history of sexual offending:
Mr Ugle continues to display resistance and minimisations. He maintains a naïve attitude in that he predominantly attributes the commission of his sexual offences to being under the influence of amphetamines. Mr Ugle's resistance in working through this behaviour is likely a component of his personality and difficulty with incorporating such behaviour within how he perceives himself. As such, progress in this domain will likely be slow. However, Mr Ugle was able to articulate rudimentary insight into how his own issues (ie, being the victim of sexual abuse) may have influenced his sexualised crime. This understanding may be the basis for future therapeutic exploration of this domain (exhibit 2.9 [26], page 21).
Dr Galloghly noted that the respondent appears to have made progress in developing a release plan. He has connected meaningfully with support agencies and he seems to appreciate the need to utilise all the support he can get.
In terms of future intervention issues and a release plan, Dr Galloghly commented that, while the respondent has made significant progress in individual counselling, he is likely to require significant support should he be released into the community. The primary issue would appear to be his need to remain abstinent from illicit substances that seem to act as the catalyst for offending (exhibit 2.9 [28], page 21).
Dr Galloghly further commented that, while the respondent has made good progress in his understanding of his personality and past unhelpful ways of thinking and behaving, personality and cognitive factors such as over confidence and minimisation will likely continue to require therapeutic challenging. Further:
In addition, it must be noted that Mr Ugle has a quality of verbal intelligence that allows him to say the right things when needed. The challenge for him is to match his proclaimed insight and self‑confidence with his behaviour. The positive therapeutic relationship with his FPS psychologist should allow such challenging to occur (exhibit 2.9 [29], page 22).
The expectation is that the respondent will receive ongoing individual counselling with Ms Rankin.
As I indicated earlier, the determination of the issues on this annual review will depend on whether there have changes in the respondent's attitude and circumstances that effect his level of risk of serious sexual offending so that the adequate protection of the community may be achieved by the management of that risk within the community under a supervision order. Dr Galloghly summarised the changes, as he observed them, as follows:
Prior to being made subject to the DSO legislation [Mr Ugle] had a poor history of treatment engagement and outcome, largely attributable to personality factors. His treatment progress since being made a DSO has been characterised by significant initial resistance that slowly lessened as he became more accustomed to his first experience of individual counselling. Overall, he appears to have made a solid therapeutic connection with his therapist and has adapted to the therapeutic process.
The primary treatment gains that Mr Ugle has made pertain to being more cognisant and accepting of professional help, developing insight into his personality features and thinking styles that have underpinned much of his criminal lifestyle, understanding of his offending cycles, and developing a release plan (exhibit 2.9 [31] ‑ [32], page 22).
On the other hand, Dr Galloghly identified remaining areas of concern, which he summarised as follows:
While Mr Ugle has made some progress in addressing his history of chronic substance abuse, progress in this area has been restricted by ambivalence and having a simplistic attitude with regard to abstinence. The challenge of remaining abstinent from illicit substances is exacerbated by the high prevalence of drug use in Mr Ugle's likely community environment. Working through the particulars of his sexual offending has also been constrained by resistance and minimisation that is likely attributable to difficulties in reconciling such behaviour with his persona. Progress in both these domains is likely to be facilitated by a continuation of Mr Ugle's overall positive experience of counselling (exhibit 2.9 [32], page 22).
Oral testimony of Dr Galloghly
Dr Galloghly gave evidence on 7 October 2015.
In relation to the issue of the respondent addressing the factors associated with his sexual offending, Dr Galloghly said:
What I can say is that he has been able to address many of the factors associated with his overall offending, but he hasn't been able to address the particulars of the acute, in the moment aspects of the offending per say, due to his denial of some of the offending (ts 410).
In terms of the expectation, in light of the counselling relationship the respondent has developed with Ms Rankin, that he would disclose to her any temptation he may feel to use illicit substances, or any circumstances he may encounter in which such a temptation may arise, Dr Galloghly said:
I would hope so. One can't be sure but you can never be definite about these things. But one can say that the conditions of the therapeutic relationship he has, and his history in counselling to date with Ms Rankin certainly sets the scene that would allow that to happen. It's the best conditions for it. Sure, there's always been a chance that he may not reveal everything to Ms Rankin but the conditions are probably the best there going to be for that to happen (ts 411).
In relation to the respondent's preparedness to comply with rules, which has a bearing on his preparedness to comply with any conditions of a supervision order, Dr Galloghly said that the respondent's understanding that he needs to accept rules being in place and to work with other people especially, would be one of his main gains (ts 411). He said that the respondent is now able to articulate a coherent understanding that he needs to play within the rules of the legislation, the order, accepting help from agencies, his therapists and so forth (ts 411).
Report of Dr Hall
Dr Hall is of the opinion that the respondent remains a high risk of reoffending if not subject to a continuing detention order or a supervision order, and tat the essence of his risk lies in his:
1.Long history of recidivist sexual offending;
2.History of entrenched substance abuse with high risk of relapse; and
3.Antisocial personality disorder with extensive non-sexual criminality (exhibit 2.10 [39], page 32).
In respect of developments since the respondent has been the subject of the continuing detention order, Dr Hall reported that the respondent told him that over the past year he had developed a good working relationship with his psychologist, Ms Rankin. The respondent claimed, however, that his sexual offending, 'in and of itself' was not something that he and Ms Rankin needed to work on 'because, in his opinion, he had only offended sexually when his use of amphetamines had resulted in prolonged insomnia' (exhibit 2.10 [18], page 28). The respondent told Dr Hall that 'working with Ms Rankin had also consolidated his view that "if you can see what led to something then you can prevent it"' (exhibit 2.10 [18], page 28).
In relation to substance abuse, the respondent told Dr Hall that he had been working with Ms Rankin on 'thought changing', whereby he said he had learned that 'if you think about drugs, then I have to be proactive and do something different and distract myself' (exhibit 2.10 [20], page 28). The respondent also told Dr Hall that if he was feeling bored to the point of being tempted to use substances, there were people whom he could call, such as Ms Rankin, his contact at Outcare, or his counsellor from Holyoake. He said these avenues had not been available to him previously (exhibit 2.10 [20], page 28).
When Dr Hall questioned the respondent about the fact that he tested positive for cannabis in July 2015, the respondent gave a different account to the one he gave Dr Galloghly. He said that he had been 'stressed out' after a member of his extended family had passed away, 'and also because his cellmate was smoking it' (exhibit 2.10 [22], page 29). Significantly, the respondent 'continued to hold a positive view of cannabis and minimised the incident' (exhibit 2.10 [22], page 29).
Although the respondent went on to say he would be prepared to abstain from cannabis use, and that a supervision order that included conditions of urine screening and a curfew would help prevent him from engaging in the sort of behaviour that could contribute to his risk of sexual offending (exhibit 2.10 [24], page 29), the inconsistency in his explanation for the cannabis use while in prison and his ongoing attitude to the drug are, in my opinion, matters of concern, as they tend to detract from the conclusion that he has changed in his attitudes and behaviours sufficiently to suggest the manageability of his risk in the community has also changed.
Further, while Dr Hall was of the view that the respondent had a realistic view of what his life might look like under a supervision order, he also considered that respondent had an 'under‑appreciation of the challenges he may face, and what it would take for him to face those challenges' (exhibit 2.10 [26], page 29). However, he considered the respondent to be 'rather more realistic in regard to other matters' such as not wishing to live close to his family members due to their history of drug use (exhibit 2.10 [27], page 30). He also expressed his desire to obtain employment.
In respect of current management issues, Dr Hall said in his report:
Mr Ugle has made reasonably good progress under s continuing detention order thus far, He impresses as having a desire to do well and lead a prosocial lifestyle, and appears to have developed realistic expectations in relation to living in the community. He views a supervision order as something that could deter him from returning to an antisocial lifestyle and use of amphetamines (exhibit 2.10 [30], page 31).
Dr Hall noted that accommodation is an important issue, and that the respondent requires placement in a location that provides him with a sense of geographical separation from his family and associated substance use (exhibit 2.10 [31], page 31). Dr Hall also noted that the respondent's relationship with his partner is a significant management issue because of the prospect that she will use illicit substances and the fact that the respondent appears to possess a sense of responsibility for his partner's behaviour (exhibit 2.10 [32], page 31). He later explained in oral evidence that this could be a source of frustration and resentment for the respondent, which could be precursors to illicit substance use, which in turn would elevate his risk of serious sexual offending (ts 378). However, Dr Hall considered that this matter and his management of non‑intimate or peer relationships were matters in respect of which the respondent could receive support in the ongoing treatment and supervision he would receive in the community.
In relation to psychological adjustment, Dr Hall reported that the respondent had made gains with respect to 'problems with self‑awareness', in particular concerning factors and processes that place him at risk of sexual violence (exhibit 2.10 [36], pages 31 ‑ 32). The respondent had also made gains in the domain of 'manageability', 'whereby his improved insights and realistic outlook have ameliorated to some extent the risk factors of problems with planning, problems with treatment and problems with supervision' (exhibit 2.10 [37], page 32).
Dr Hall summarised the developments since the div 2 hearing as follows:
Since Mr Ugle last appeared before the Court, he has engaged very well in psychological counselling, and has made significant gains in areas that were previously considered significant risk factors:
•Unaddressed treatment needs;
•Lack of realistic plans;
•Lack of self-awareness (exhibit 2.10 [40], page 32).
In written submissions filed before the hearing on 7 October 2015, and at the commencement of that hearing, counsel for the DPP intimated that Dr Hall's opinion was that the respondent's risk could be managed in the community on a supervision order with suitable conditions. That was not apparent from his report, as I indicated in discussion with counsel before evidence was called. However, Dr Hall had made that view known before the hearing and it was a view he confirmed in evidence.
Oral testimony of Dr Hall
Dr Hall's opinion was summarised at the start of his evidence‑in‑chief:
All right. You state, at paragraph 40, that Mr Ugle has made some significant gains since being declared a dangerous sex offender?‑‑‑Yes.
I will come back to that later but can you just briefly outline what you consider the main gains to be?‑‑‑The main gains are his desire to - the - his desire to lead a prosocial life and his desire to engage in counselling and other steps necessary to allow that to develop. And through that counselling he has then gone on to develop some better understanding of the sorts of things that led him to offend and a better understanding of what his life would need to look like in the community in order to prevent going down a similar path that he had in the past.
Do you take the view that Mr Ugle has made sufficient gains in the last year that his risk is now such that he could be managed on a supervision order?‑‑‑Yes.
And that is of course subject to being - suitable accommodation being available?‑‑‑Yes (ts 374).
Dr Hall went on to explain that the respondent's desire to lead a prosocial life was a significant gain because:
[I]t reflects a significant attitudinal shift which, to those of us who haven't lived a - a life of recidivist offending, may not seem like such a big gain. But for someone in Mr Ugle's position, who has spent 23-odd years in total in - in custody and has a - has had a lifestyle that has been entrenched - that has had entrenched drug use and antisocial behaviour, to develop a - a desire and a willingness to surrender the excitement, if you like, of - of that sort of lifestyle, is - it's a significant step forward. And I don't believe that it has arisen purely because Mr Ugle wants to be released. I think that there were opportunities in the past for Mr Ugle to pay lip service to that sort of concept, in terms of participation in programs or parole eligibility and indeed the Division 2 hearing last year. But that wasn't the case with Mr Ugle. I think that that's a genuine shift that has arisen though the therapeutic intervention that he has had over the past year. And, as I said, for someone coming from Mr Ugle's background, that's not all that common and the - the enthusiasm that Mr Ugle displays for that process I believe is sincere (ts 374 ‑ 375).
The ability now to manage risk factors that were previously not considered manageable in the respondent's case meant, in Dr Hall's opinion, that the gap that remains in our knowledge about the respondent's motivation for offending, although a concern, is not a 'deal breaker per se' in terms of reaching the view that the respondent's risk could be managed in the community under a supervision order (ts 376). To the extent that the respondent's sexual offending may have been driven by anger, and perhaps displaced anger towards his mother, this was something that Dr Hall considered could be addressed in further therapy (ts 376).
Dr Hall considered the respondent's attitude to cannabis use to be a concern, as it placed him at greater risk of resuming cannabis use, and that could be a gateway to other drugs and to 'antisocial peer associations and other antisocial behaviour' (ts 377). However, Dr Hall considered that the respondent's rapport with Ms Rankin was such that he would feel he could disclose to her any difficulties he might experience in relation to relapse into drug use (ts 377).
In his report, Dr Hall had referred to potential resentment that the respondent might develop to authority figures, which would need to be worked through in counselling (exhibit 2.10 [33], page 31). He explained this in evidence:
I think that it's not the contact with authority figures in and of itself that would be the source of frustration for him. I think it would be a difference of opinion between Mr Ugle and those supervising him that may lead him to feel anger, resentment and temptation to rebellion. However, I think that it's also the case that frequent contact with authoritative figures would be protective in that regard, so - which may seem counter intuitive. But I think that the longer he goes between sessions, and having those themes of prosocial living, and taking responsibility, and being reminded of the conditions of the order and so forth, I think that having those reinforced to him on a more frequent basis is protective, so I think he ought [not] to go a long period of time between those episodes for reinforcement. That's where things may go astray. And my understanding is that the kind of contact that he can be expected to have on a supervision order would be of a sufficient frequency to be protective, as I said (ts 379).
An aspect of the respondent's previous history that is of concern, in my opinion, is his continuing denial of most of the sexual offending. I raised this issue with Dr Hall to explore the impact he considered it would have on the respondent's risk of offending and his manageability:
Do you agree that one of the real concerns at the Division 2 - at the time of the Division 2 hearing, was Mr Ugle's refusal to accept responsibility for his criminal behaviour in the past ‑ ‑ ‑?‑‑‑Yes.
‑ ‑ ‑ that is for the sexual offending?‑‑‑Yes.
There seemed to be a suggestion, for instance, that he believed that the victims were consenting. That was one of the concerns I think that was raised ‑ ‑ ‑?‑‑‑That's right.
‑ ‑ ‑ at that time. Have you seen anything in his therapeutic treatment until now to suggest that that has changed?‑‑‑No.
Is that a matter of concern?‑‑‑It remains a concern. The short answer is, yes, it remains a concern, and it's an outstanding issue. As I mentioned earlier, I would add, however, that there have been other gains made through that therapeutic contact that do go to ameliorating his risk at this point, that were outstanding at the Division 2 hearing and are no longer considered really outstanding needs. So it is a concern, but at the time of the Division 2 hearing, it was one of a number of concerns and a number of those other concerns have been addressed. Whether or not - I don't believe from a - the point of view of being able to manage Mr Ugle, to manage the risk factors, the placement risk in the community, that it is prohibitive; that that outstanding issue precludes our - precludes him being manageable in relation to the sorts of risk factors that place him at risk. Whether or not it's an - whether or not that as an outstanding factor means that it's an - whatever risk he carries going forward is unacceptable, obviously is a matter for your Honour, but I don't believe that that needs to be specifically addressed. I don't believe that Mr Ugle needs to accept responsibility for the offending to be able to be safely managed in the community in terms of the things that place him at risk.
All right. Well, what I'm trying to understand in that regard is one of the things that would place him at risk, for instance, is an inability to recognise circumstances that may be a precursor to offending behaviour; something that actually puts him at risk. If he does not accept that what he did previously amounted to sexual offending, then how does that affect his ability - how would that affect his ability to be able to recognise the precursor circumstances, if you like, that would put him at risk? That's the matter that I'm trying to understand. If on the one hand it is being said that he has made gains in his ability to manage his own behaviour, it's obviously subject to constraints to avoid risk scenarios, and yet he does not accept that in the past he was the subject of risk scenarios that lead to his offending. Do you understand ‑ ‑ ‑?‑‑‑Yes.
‑ ‑ ‑ the point I'm making?‑‑‑Yes. Perhaps a useful way to conceptualise that is that he does have an awareness of the sorts of things that were precursors to him being accused of offending, and that's not an uncommon line that those working with offenders in denial need to take. So he doesn't deny that the incidents occurred or that the circumstances arose. He denies that he was guilty of an act of offending, but he doesn't deny that those events took place and he was present at those times and in the wrong place and doing the wrong thing. So he has developed, relative to - you know, in comparison to the Division 2 hearing - prior Division 2 hearing, he has a better understanding of the sorts of precursors to finding himself in a situation where he would be accused of offending or, indeed, just reckless and out of control.
Right. Now, from what you have seen, in your opinion, is he ever likely to overcome his denial? In other words, is he ever likely to accept that his behaviour amounted to sexual offending?‑‑‑It's difficult to say. It's not impossible that over time, particularly if his - particularly if he is engaged in therapy for a long period of time. It's not unheard of and it's not inconceivable that he would eventually acknowledge his involvement and acknowledge his actions as offending. I wouldn't say at this point it's likely, but it's certainly not impossible.
All right. I think you said not - it's not - at this point you would not consider it likely?‑‑‑Yes (ts 381 ‑ 382).
In cross‑examination, Dr Hall confirmed that denial of offending is not specifically correlated with risk of offending. Importantly, he agreed that protective strategies could still be put in place for a person who remains in denial to manage their risk of offending within the community (ts 384). Dr Hall agreed that attention in treatment to external stresses such as living, accommodation, management of funds and emotional stress could yield benefits in risk management, and that the respondent had demonstrated a significant improvement in his insight into those factors since the div 2 hearing (ts 385). He also agreed that the respondent had a much better understanding in respect of the issue of substance abuse (ts 385). However, he was of the opinion that the convergence of the three factors of external stresses, the role of poor coping and substance abuse in leading to his offending was something that the respondent was still working on, although he was further along the path than he was last time (ts 386).
Dr Hall agreed in cross‑examination that the respondent is motivated not to return to custody and that the prospect of indefinite detention 'holds significantly more sway than, say, a return to prison for a finite period' (ts 387).
Dr Hall considered that because the respondent's resistance to engagement in treatment was notable in the beginning, it indicated that 'the engagement that we're now seeing is genuine' (ts 388). Dr Hall considered that, although the respondent has not gone into the processes of obtaining employment and accommodation in any sophisticated way or in an 'overly insightful' way, the signs have been encouraging because he was giving thought to matters in respect of which he had previously not given any thought, and what he has come up with is realistic, at least in intent (ts 394).
In summary, Dr Hall agreed in cross‑examination that the respondent's achievements in engaging with treatment and overcoming his problem with supervision were of such significance that they had changed his view in relation to manageability in the community (ts 396). He considered 'they would carry a lot of weighting' (ts 396).
Accommodation - evidence of Ms Dabala
On 2 November 2015, Ms Dabala was informed by the Chief Executive Officer of Outcare that a residential property in the metropolitan area had become available for the respondent from 9 November 2015. The property is unit accommodation. Although it is within a short distance of an area with play equipment and a Primary School, those areas would be made exclusion zones.
At the hearing on 9 November 2015, Ms Dabala gave oral evidence in which she confirmed that the WA Police Sex Offenders Management Squad had undertaken a 'desktop accommodation analysis' of the property. There was a concern that the nearby park is used for antisocial type behaviour, such as illicit drug use and street drinking, which are matters related to the respondent's risk factors. The concern was that he might be exposed to such behaviour. However, the plan is to make the park and the nearby school exclusion zones. If released on a supervision order, the respondent's movements will be monitored by GPS tracking. If an alert was triggered because the respondent had gone into an exclusion zone, the Department's Public Protection Unit would respond initially and if the respondent did not leave the exclusion zone, police could be called (ts 438 ‑ 439).
The accommodation is supported accommodation, in that Outcare staff will provide support to the respondent, including assistance with setting up bank accounts, obtaining identification, Centrelink and getting to appointments (ts 444). The accommodation is expected to be a short‑term arrangement, for perhaps up to 18 months, until the respondent is able to find private accommodation, with which he will be assisted. Having heard the evidence of Ms Dabala, I am satisfied that the proposed accommodation will be suitable.
In respect of the respondent's engagement with Department staff, Ms Dabala acknowledged in cross‑examination that there had been improvement since last year, in particular that the respondent had made gains in counselling and had more of an understanding of what is expected of him now (ts 446).
The balance of Ms Dabala's evidence in cross‑examination was directed to the efficacy and practical operation of various conditions in the proposed supervision order, including the curfew condition, monitoring, restrictions on where the respondent could reside or attend, the giving of lawful directions to control his association with certain people, and so on. I am satisfied that the coercive aspects of the conditions would provide powerful tools for the management of the respondent. In conjunction with the treatment aspects, they can be expected to provide effective protection of the community from the respondent's risk of sexual offending.
Findings
For the purposes of s 33(1) of the Act, on the evidence presented in the hearing, I am satisfied that there remains an unacceptable risk that the respondent would commit a serious sexual offence if he were not subject to a continuing detention order or a supervision order. That conclusion is not in dispute, in any event. The question is whether I should expressly decline to rescind the continuing detention order, or rescind the order and make a supervision order: s 33(2). In making that decision, I must apply the legal principles I have outlined above.
At the div 2 hearing, Simmonds J found that there was a negative expectation in respect of the respondent's approach to managing his risk of committing a further serious sexual offence and to suitably tailored conditions in a supervision order, so that at that stage the adequate protection of the community could not be achieved by the respondent's conditional release.
The weight of the evidence on this annual review, as I have outlined it, supports the conclusion that the expectation should be revised, in light of the experience of those who have dealt with the respondent since the div 2 hearing.
Dr Hall has revised his opinion and considers that the respondent's risk can be managed in the community under the very strict regime that would be provided by the conditions of a supervision order in the proposed form. That, of course, is not determinative. I am required to make the assessment of whether the adequate protection of the community can be achieved by a supervision order, having regard to all the evidence, including the respondent's history. However, I should give significant weight to Dr Hall's opinion, particularly as he has observed personally a change in the respondent since the last hearing, having also assessed him on that occasion. I also have regard for the concession made by the DPP.
At the time of the div 2 hearing, there were three entrenched problems that created obstacles to the respondent's conditional release:
1.his resistance to therapy and supervision;
2.his lack of self‑awareness in respect of risk factors, especially substance abuse; and
3.his lack of coping strategies.
The evidence presented in the present hearing establishes that the respondent has made gains in each of these areas. There remain concerns, in my view, in respect of the respondent's continuing denial of most of his sexual offending, the gap in knowledge as to his motivation for sexual offending and his attitude to drug use. As set out in detail above, Dr Hall addressed the first two concerns. I am satisfied for the reasons he gave that they do not preclude the management of the respondent's risk in the community so as to provide adequate protection to the community. The issue with substance use is more vexing, especially given the positive urine test in July 2015 and the respondent's expressed attitude to cannabis. However, he has not had any further positive urinalysis tests, and the testing regime that the supervision order allows for, together with the ability of the Community Corrections Officer (CCO) to create exclusion zones around areas where the respondent might have access to alcohol or drugs, provide a protective measure against that risk factor.
Having weighed all of the above matters, I am satisfied that, because of the respondent's progress in his engagement with the therapeutic process and his understanding of at least some of the factors that are risk factors for reoffending, as described by Dr Galloghly and Dr Hall, when considered in conjunction with the very stringent constraints and coercive requirements that will be part of the conditions that will be imposed, the adequate protection of the community can be achieved by a supervision order in the terms of the supervision order annexed to these reasons. In my opinion, the 41 conditions imposed by that order are both necessary and adequate to protect the community. In broad terms they address the respondent's risk factors by providing for:
1.control of where the respondent will live;
2.control and monitoring of where he goes and when (the curfew condition);
3.control of who he associates with;
4.access to the respondent and his home by those who will have responsibility for monitoring and supervising him;
5.a prohibition on his use of alcohol and illicit drugs and testing for any breach;
6.a prohibition and control in respect of his contact with children; and
7.compulsory engagement by him in treatment.
It can be seen that the conditions of the supervision order will allow for a high level of monitoring and intensive engagement with the respondent. It would be expected that monitoring and engagement at those levels would continue for as long as it was considered necessary by the supervising CCO and other professionals to ensure that there was adequate protection of the community. The conditions will provide a significant degree of protection. Should circumstances that are likely to lead to sexual offending, and indeed offending of the kind in which he engaged in the past, such as breaking into homes, emerge, the conditions should enable prompt intervention by the authorities. Such circumstances would include any indication that the respondent had been using drugs or alcohol, or that he was associating with others who were using drugs. Anything less than strict compliance with the conditions is likely to result in the respondent being returned to custody and the imposition of a continuing detention order.
Apart from the coercive conditions, the order also provides for support to be given to the respondent, through counselling and other means, to engage in a pro‑social lifestyle, including finding and engaging in employment and ensuring he has financial security. These are measures which, as much as the coercive conditions, are intended to provide protection to the community, by reducing the respondent's risk of further serious sexual offending through personal development.
As counsel for the DPP said in closing submissions, there will always be a sense of unease in the community when a person who is assessed to pose an unacceptable risk of serious sexual offending is released into the community. However, the assessment of unacceptable risk is by reference to the absence of a detention order or a supervision order. The legislature has expressed its intention in the provisions of the Act that the adequate protection of the community can, in appropriate cases, be achieved by a supervision order. The legislature has also expressed its intention that one of the functions of indefinite detention is the treatment of an offender. The purpose of treatment is to reduce risk, with the goal, where it is achievable, that the risk may be able to be managed in the community on conditional release. The respondent's case is an example of treatment achieving that goal.
Duration of the supervision order
I accept the respondent's submission at the hearing that the principle that the court should choose the option which is least invasive or destructive of the respondent's right to be at liberty, while ensuring adequate protection of the community, extends to determining the duration of a supervision order. The period should not be longer than the court considers necessary to ensure the community is adequately protected.
During examination‑in‑chief, Dr Hall gave the following evidence relevant to the question of the period for which a supervision order should be made:
Now, in relation to the length of a supervision order, are you able to comment on what you would consider to be an appropriate length?‑‑‑Yes. I believe that Mr Ugle's background and experience is such that it's going to take him quite some time, despite concerted effort, to really consolidate and internalise the concepts and the attitudes required to - and the skills necessary to navigate his way through living in the open community, doing all the things that people who live a structured prosocial lifestyle have to do. In the past, Mr Ugle hasn't done any of that and hasn't had any - a lot of experience with that. He has had some, but it has been greatly overshadowed by the way in which his drug use has been entrenched, so it's going to be very different for Mr Ugle. I would not expect someone with Mr Ugle's background to really gain the sort of traction where he would be able to self‑manage without the sorts of supports provided by an order for in excess of five to seven years and possibly more (ts 380 ‑ 381).
The open‑ended timeframe provided by Dr Hall at that stage reflects the difficulty with predicting risk into the future. Setting the duration of the supervision order requires some prognostication about the length of time during which the unacceptable risk that the respondent will commit a serious sexual offence, if not subject to a detention order or a supervision order, will persist. The corollary is to predict the time over which the risk is likely to reduce to the level where it is no longer an unacceptable risk. Dr Hall addressed that issue in answer to questions I put to him at the conclusion of cross‑examination in the following exchange:
You have made it clear, I think, that it is without the supervision order that the risk would continue to be a high risk of reoffending?‑‑‑Yes.
But assuming that the risk continues to be high if you don't have those interventions, there is still the question whether you would expect the risk - and I appreciate you've already made a comment about prognostication, but whether you would expect that the risk would eventually reduce to a point where there would not be a need for the constraints. And you can understand the reason I ask that is because it may have a bearing on the duration of the order. You've already indicated that there may be a need for the order to be a very substantial period of duration?‑‑‑Yes. Yes.
So in terms of prediction, are you able to assist at all as to whether the risk is likely to reduce over time?‑‑‑The risk is likely to reduce over time, but over some considerable time. So in the order of possibly seven to 10 years. His risk - his risk, when complying with an order, could be expected to be reduced. To what extent? It's difficult to say. But there would be that proviso that he is complying with the order. If he were released - if an offender were released and then was proving more difficult to engage than was anticipated, or was flirting with substance use more so than is desirable, then simply being on an order wouldn't necessarily be reducing one's risk. So one would have to be complying with the order for it to have the intended effect. And then in answer to your question, in terms of off the order, yes, one would expect that with the sorts of interventions that Mr Ugle can expect, his raw risk, his unsupervised risk, would diminish over time albeit some considerable time (ts 405).
In my opinion, the factors that inform the question of whether there is an unacceptable risk of sexual offending, under s 7 of the Act, are equally relevant to considering the period for which that risk is likely to persist. The legislature has recognised that the efforts by an offender to address the causes of his offending behaviour (s 7(3)(e)) and whether or not the person's participation in any rehabilitation programme has had a positive effect on the person (s 7(3)(f)) are relevant considerations to the question of whether the offender poses an unacceptable risk of committing a serious sexual offence if not subject to a detention order or a supervision order. Indeed, they are factors that the court must have regard to.
The respondent's continuing denial of sexual offending in respect of most of his prior offences, and the lack of any indication of change in his attitudes condoning sexual violence, evident in a pattern of behaviour indicative of the objectification of women and preparedness to violate the rights of others to be safe in bed in their own homes, are matters that inform those considerations (s 7(3)(e) and s 7(3)(f)). The absence of statistical correlation between denial and a level of risk of reoffending does not detract from the need to have regard to the respondent's attitude to his offending conduct as a measure of the efforts he has made to address the causes of his offending behaviour, and as a measure of the extent to which his participation in rehabilitation programmes has had a positive effect on him, and consequently to the level of his risk.
In cross‑examination it was put to Dr Hall that, from a management perspective, there was little difference if an offender embarked upon learning strategies to avoid the convergence of scenarios that may lead to reoffending, even if the motivation was such that he did not want to be falsely accused in the future, as opposed to an offender having a complete understanding or an acceptance of their offending behaviour. The balance of the question and Dr Hall's answer were as follows:
[B]ecause the ultimate goal is to prevent the (sic) being in the place with the convergence of the risk factors; is that correct?‑‑‑I probably wouldn't agree with that statement in the sense - in comparison to someone who doesn't have denial, then there would be some - you would expect some difference in terms of their ability to address the sorts of things that converged at the time of that offending (ts 384).
Counsel for the respondent submitted that 10 years is a very long period for a supervision order, although she acknowledged that it would not be beyond the court's exercise of discretion. The paramount consideration to which I must have regard is the adequate protection of the community. I am satisfied that the adequate protection of the community requires that the supervision order be for a period consistent with the outer limit of Dr Hall's prediction of the period that would be required for the risk to reduce to an acceptable level without the constraints of detention or a supervision order, namely 10 years. In my opinion, I should give weight to Dr Hall's clinical experience and professional judgment in that regard. While this may seem a lengthy period for the respondent to be subject to the constraints on his liberty and the obligations contained in the supervision order, there is scope for relaxation of some of the constraints and obligations by decisions made by the CCO or the police over the duration of the supervision order should the respondent demonstrate that his risk has reduced to the level where such relaxation would be appropriate.
Orders
Accordingly:
1.I rescind the detention order made by Simmonds J on 6 October 2014.
2.I order that the respondent be the subject of a supervision order for a period of 10 years from the date of this order on the conditions contained in the annexure to these reasons.
Annexure
Supervision Order
The Court, having found pursuant to section 33(2) of the Dangerous Sexual Offenders Act 2006 that the Respondent remains a serious danger to the community, pursuant to section 33(2)(b) of the Dangerous Sexual Offenders Act 2006 rescinds the detention order made by the Hon Justice Simmonds on 6 October 2014 and orders that the Respondent be the subject of a supervision order for a period of 10 years from the date of this order, on the following conditions:
YOU (THE RESPONDENT) must:
Take up residence at [redacted], Western Australia. Any subsequent change of residential address must be approved in advance by a Community Corrections Officer (CCO);
Spend each night at your residential address, or at a different address only if such different address is approved in advance by a CCO;
Not leave or remain out of the State of Western Australia without the permission of a CCO and, if so permitted, abide by all conditions of such permission whilst absent from the state;
Reporting to the CCO and supervision by the CCO
Report to a CCO at Central West Metropolitan Adult Community Corrections Centre at Level 2, 30 Moore Street, East Perth, WA 6004 within normal business hours on the day of your release from custody under this order, and advise the CCO of your current name and address;
Be subject to electronic monitoring under section 19A of the Dangerous Sexual Offenders Act 2006;
Be under the supervision of a CCO, and comply with the lawful orders and directions of the CCO, including a direction for the purposes of sections 19A or 19B of the Dangerous Sexual Offenders Act 2006;
Report to, and receive visits from, a CCO at times and at places as directed by the CCO, such arrangements having regard to your employment commitments, if any;
Notify a CCO of any change of your name at least 2 working days before the change is due to happen;
Not commence or change voluntary or paid employment without the prior approval of a CCO;
Attendance at programs or treatment
Consult and engage with any psychiatrist, psychologist, mentor, support service and/or support person nominated by a CCO, as directed by the CCO;
Comply with the requirements of all programs designed to address your offending behaviour and/or risk of serious sexual re-offending, as directed by a CCO;
Reporting to WA Police
Report to the Officer-in-Charge of the Sex Offender Management Squad (SOMS), Suite 1, 297 Hay Street, East Perth, WA 6004 within 24 hours of your release, and thereafter report to and receive visits from Police at times and at locations as directed by the Officer-in-Charge of the Sex Offender Management Squad or his/her delegate;
If requested, permit Police Officers to enter and search your residence for the purpose of monitoring your compliance with your obligations under this order;
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 internet user names or identities used by you;
Disclosure/Exchange of Information
Agree to the exchange of information between persons and agencies involved in the implementation and supervision of this order, including confidential information;
Allow the CCO, WA Police, or other person or agencies approved by the CCO, to interview any of your associates or potential associates and, where appropriate, to disclose to them confidential information including your offence history;
Restrictions on contact with Victims
Have no contact, directly or indirectly, with any of the victims of your sexual offending unless such contact is conducted in accordance with agreements made through, or approved by, the Victim‑Offender Mediation Unit of the Department of Corrective Services;
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 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 victim at all times;
Not breach any provision of, or commit any offence under, the Restraining Orders Act 1997;
Criminal conduct
Not commit any sexual offence, as defined in the Evidence Act 1906 section 36A;
Not commit any other criminal offence the maximum penalty for which includes imprisonment, and which involves either violence, threats of violence, or the possession of weapons or offensive instruments;
Not commit an offence under s 202, s 203, s 204, s 204A, s 204B, s 217, s 218, s 219, s 220, s 401 or s 557K Criminal Code 1913 (WA);
Not commit any offence under the Classification (Publications, Films and Computer Games) Enforcement Act 1996;
Not possess, consume or use any prohibited drugs or substances including, but not limited to, cannabis;
Curfew
Be subject to a curfew pursuant to s19B of the Dangerous Sexual Offenders Act 2006, such that you are to remain at and not leave your 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 curtilage 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 of 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;
Medications/Mental Health
Attend any medical practitioner, psychologist, psychiatrist or counsellor as directed by a CCO;
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 or programs to the Department of Corrective Services;
Prevention of high-risk situations
Not associate with any person known by you to have committed a sexual offence, unless such association is authorised in advance by the CCO;
Not to possess, consume or use alcohol;
Attend for, and submit to, urinalysis or other testing for alcohol or prohibited drugs as directed by a CCO or a police officer, including accompanying such persons to an appropriate location for such testing to take place;
Not to remain in the presence of females who are affected by alcohol, unless the identity of such person is approved in advance by a CCO;
Not to remain in the presence of any person who you know or ought to know to be affected by a prohibited drug;
Not to remain in any place where prohibited drugs are being consumed, or, if such a place is your approved address, withdraw from that part of the residence in which any such consumption is taking place;
Have no contact with any child under the age of 16 years, whether such contact is in person, in writing, by telephone or by electronic means, unless:
a)the contact is authorised in advance by a CCO and such contact is supervised at all times by an adult approved in advance by the CCO; or
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 16 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 details of any contact with a child under the age of 16 years both to a CCO and to the Police on the next occasion you report to that person or agency;
Report immediately to a CCO the formation of any domestic, romantic, sexual or otherwise intimate relationship by you with a person who has children under the age of 16 years in their care either full time or part time;
Make full disclosure regarding your past offending and the current order to anyone with whom you commence a domestic, romantic, sexual or otherwise intimate relationship, which disclosure can be confirmed by a CCO or a Police Officer;
Have no contact with, membership of or affiliation with clubs, associations or groups where membership is primarily for children; and to cease/cancel such memberships if directed to do so by a CCO or Police Officer.
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