Director of Public Prosecutions (WA) v Ugle [No 4] - [2016] WASC 259

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL

CITATION: DIRECTOR OF PUBLIC PROSECUTIONS (WA) -v- UGLE [No 4] [2016] WASC 259

CORAM: FIANNACA J

HEARD: 5 AUGUST 2016

DELIVERED : 5 AUGUST 2016

FILE NO/S: DSO 2 of 2014

BETWEEN: DIRECTOR OF PUBLIC PROSECUTIONS (WA)
Applicant
AND
WARREN JOHN RICKY UGLE
Respondent

Catchwords:

Criminal Law and procedure - Contravention of DSO supervision order - Positive urinalysis - Findings of facts for the purpose of obtaining psychiatric reports

Legislation:

Dangerous Sexual Offenders Act 2006 (WA), s 21, s 22, s 23, s 33, s 40A, s 40B

Result:

Examination of the respondent by a psychiatrist and preparation of reports ordered

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 referred to in judgment:

TJD v The State of Western Australia [2014] WASCA 10
FIANNACA J:
(This judgment was delivered extemporaneously on 5 August 2016 and has been edited from the transcript.)

This is a decision to provide preliminary findings of fact on an application by the Director of Public Prosecutions for an order under s 23 of the Dangerous Sexual Offenders Act 2006 (WA) (the Act), the respondent having been brought before the court pursuant to contravention proceedings under s 21 and s 22 of the Act. The decision does not determine the application.
The preliminary findings are provided for the benefit of the psychiatrist who has been asked to examine the respondent and provide a report for the contravention proceedings. It is necessary for me to provide a brief outline of the background.
The respondent was placed on a detention order under the Act in October 2014. Upon the first annual review of that detention order, he was released on a supervision order pursuant to s 33(2)(b) of the Act for a period of 10 years. It is alleged that the respondent breached a condition of the supervision order by using cannabis after his release on that order. The use of illicit drugs, including cannabis, had been determined to be a significant factor contributing to the unacceptable risk that the respondent would commit a serious sexual offence if he is not subject to a continuing detention order or a supervision order.
The respondent was charged with two criminal offences under s 40A of the Act arising from the alleged contravention. In essence, the charges alleged that the respondent used cannabis between his release on the supervision order on 24 November 2015 and 1 December 2016, when he returned a positive urinalysis result for cannabis (charge PE 59371 of 2015), and that he again used cannabis at a time between that first use and 22 December 2015, when he again returned a positive urinalysis result for cannabis (charge PE 62861 of 2015).
The contravention proceedings, in which an order is sought under s 23 of the Act, have been pending while the criminal charges were dealt with. The criminal charges were heard by me on 27 June 2016 and 1 July 2016, and were determined by me on 19 July 2016. I acquitted the respondent of the first charge, but convicted him of the second charge. Counsel for the DPP informed the court at that time that the DPP intended to pursue the contravention proceedings.
The hearing of the contravention proceedings has been listed for 17 October 2016. On 19 July 2016, I ordered reports for the hearing of the contravention proceedings, including a psychiatric report from a psychiatrist (Dr Hall) who has previously assessed the respondent for the purposes of earlier proceedings under the Act. The parties agreed that there was a factual issue I should determine before the psychiatrist examines the respondent, as it may have a bearing on the assessment he makes.
The context in which this arises is that, pursuant to s 40B(4)(d) of the Act, the court may use in the contravention proceedings any findings of fact made in the criminal proceedings. In my decision in the criminal proceedings, I said that, having considered the evidence of the toxicologist, Dr Grasko, I could not exclude the reasonable possibility that the reading obtained from the urinalysis test conducted on 1 December 2015 was due to a residual amount of cannabis in the accused's (respondent's) body from the last time he used cannabis while in custody, before he was released on the supervision order.
The question of when it was that he had last used cannabis in prison was determined by me by reference to the first interview he gave to police after the positive urinalysis result on 1 December 2015. That was an interview conducted on 3 December 2015. In that interview, he indicated that the last time he had used cannabis was on 13 or 14 November 2015, and he said that he had used 10 to 12 cones of cannabis on that occasion.
In my reasons on the determination of the criminal charges,[1] I said that I considered it to be unlikely that the positive reading on 1 December 2015 was due to a residual amount of cannabis in the accused's body from his last use in prison, and that the reading probably was the result of use after he was released. However, I said that I was not satisfied that was the only reasonable hypothesis. That being the case, and having regard to the criminal standard of proof that I had to apply in the criminal proceedings, I was not satisfied that the charge had been proved beyond reasonable doubt. Accordingly, I acquitted the respondent of the first charge.
[1] The reasons have not yet been published, although the transcript has been made available to the parties.
The issue that needs to be determined is whether I am satisfied on the balance of probabilities that the respondent used cannabis after his release on the supervision order, but before 1 December 2016. That reflects the standard of proof that applies in the contravention proceedings, namely the balance of probabilities.[2] That follows from the wording of s 23 of the Act. The standard of proof referred to in s 7(2) of the Act, which is relevant to the initial determination of whether an offender is a serious danger to the community, is not applicable to contravention proceedings.
[2] TJD v The State of Western Australia [2014] WASCA 10.
There is a broader question I need to consider, namely what facts I am prepared to find about the respondent's use of cannabis more generally before his positive result on 22 December 2015, irrespective of what finding I make as to whether he used cannabis before 1 December 2015 while he was subject to the supervision order.
In making the findings that I did in the criminal proceedings, I was of the view that the account the respondent gave in his interview on 3 December 2015 was likely to be the closest account to the truth about his cannabis use while he was in prison. He there said that he used 'maybe once a week' when he could afford it.[3] However, when it came to considering the effect of Dr Grasko's opinion about the plausibility of the positive reading on 1 December 2015 being due to a residual amount of cannabis in the respondent's body from the last occasion he used cannabis while in prison, I took the view that I should regard the respondent's use in prison before that last occasion as being close to what Dr Grasko had referred to as 'intermittent use', or the usage that one would expect from an 'intermittent user'. That involved use of cannabis some three to four times a week, and perhaps one or two cigarettes or cones on each occasion.
[3] EROI ts 10 (3 December 2015).
The point of regarding the respondent's use as being 'close to' the 'intermittent use' referred to by Dr Grasko, was to distinguish his situation from that of someone who was a first time user. However, my finding that the respondent's account on 3 December 2015 was the closest account to the truth, was consistent with the respondent having used, as he put it, maybe once a week when he could afford it. That obviously was a lesser amount than the amount that Dr Grasko had in mind when discussing intermittent users.
Dr Grasko was asked the following question in examination-in-chief and gave the answer that follows:[4]
If, prior to his release, he had been using cannabis intermittently, perhaps once a week, in prison ‑ say a moderate amount, a couple of bongs or joints ‑ would that be a plausible explanation for the positive result?‑‑‑Not if the last dose was on the 13th or 14th. So if it was close to the time of release, on the 24th, that might account for the positive results on the 1st of the 12th.
[4] Trial ts 55.
That was all that was said as far as the plausibility of the reading on 1 December 2015 was concerned, on the basis of the limited use described, if the last use in prison was on 13 or 14 November 2015. That was in the context of the respondent having used 10 to 12 cones on the last occasion that he used cannabis whilst in prison. So, what Dr Grasko appeared to be saying was that, if the respondent used 10 to 12 cones on on 13 or 14 November 2015, being the last occasion on which he used cannabis in prison, and, prior to that, he had been using perhaps once a week, a couple of bongs or joints on each occasion, then it would not be plausible that the result of 1 December 2015 was due to residual cannabis in the respondent's body from his last use in prison.
In giving my reasons in the criminal proceedings, I was of the view that Dr Grasko's evidence on that issue changed in cross-examination. In one sense, it did, because the reference to using cannabis 'intermittently' in the question that I just referred to, asked in examination‑in-chief, might be thought to correlate with the questions that were then asked of Dr Grasko in cross-examination. He was asked these questions and gave the answers that follow:[5]
So a person is an intermittent user as per your definition?‑‑‑Yes.
And on 13 or 14 November smokes 10 to 12 cones and I'm firstly comparing through to 1 December 2015 which is 17, 18 days. Can you exclude that an intermittent user who uses 10 to 12 cones 17 to 18 days could still have a result on 1 December?‑‑‑No.
Right. You can't exclude that?‑‑‑No.
So that's possible?‑‑‑Yes.
[5] Trial ts 88 ‑ 89.
As I said in the criminal proceedings, there was a degree of confusion when references were made to 'intermittent use' because of the way in which that description might be regarded in lay terms compared to the rather more specific and technical way in which Dr Grasko was using it. As I said earlier, Dr Grasko adopted the description from a study in which 'intermittent use' was a reference to three to four times a week, one to two cones, bongs or cigarettes at a time. As will be apparent from the wording of the question in cross-examination that I have just referred to, counsel very specifically was using 'intermittent user' in the way that Dr Grasko had used it. The question referred to 'an intermittent user as per your definition' (my emphasis).
It follows that the evidence that was given by Dr Grasko in examination‑in‑chief concerning the scenario in which the respondent was using only about once a week was not contradicted by the evidence he gave later concerning an 'intermittent user' according to his definition.
Therefore, while having regard to all of the circumstances, I was left with a reasonable doubt in the criminal proceedings as to whether the positive result for 1 December 2015 was due to a residual amount of cannabis in the accused's body from his last use in prison, for the purposes of the contravention proceedings I am satisfied on the balance of probabilities that it was not. I consider that the opinion expressed by Dr Grasko in his evidence-in-chief supports the conclusion that it is not a plausible explanation (i.e. it is unlikely or not probable) that the positive result of 1 December 2015 was a residual amount of cannabis in the accused's body from his last use in prison, having regard to my other findings.
In coming to the conclusion, on the balance of probabilities, that the result for 1 December 2015 was not due to residual cannabis from use by the respondent while he was in prison, I have also had regard to other evidence.
After 1 December 2015, the respondent had a meeting with his Community Corrections Officer, which is reported in a Community Business Information System report dated 8 December 2015. In that report, the officer says that the respondent mentioned the positive urinalysis result from the previous week, and that he claimed the positive result was from drug use in custody. He said to the officer that all future urinalysis results would be clean. The report notes that the urinalysis 'at the end of last week' was clean. It seems to me that it was known to the respondent, after that particular meeting, that there had been a negative result in the previous week. That was the result on 3 December 2015.
After 3 December 2015, there were three urinalysis results which could not be relied upon because the creatinine levels were below the threshold level necessary for a negative result to be considered reliable. The reason that the creatinine levels were low appears to be that the respondent deliberately drank excessive amounts of water in order to water down or dilute the samples that he was providing. He admitted as much when he was interviewed after the positive result on 22 December 2015. That interview took place on 24 December 2015. I have referred to the details of that in my decision in the criminal proceedings.
The deliberate diluting of samples also appears to have been confirmed by the respondent in his discussions with the Community Corrections Officer at a subsequent meeting reported on the Community Business Information System on 15 December 2015. On that occasion, the officer reported that the respondent claimed he had no plans to use illicit substances. He claimed that he had been compliant. When he was advised that there were two urinalysis results the previous week that had a low creatinine level and he was warned not to drink as much water prior to giving a sample, he advised that, since returning the positive result on 1 December 2015, he had been drinking lots of water to flush the drug from his system. He maintained that he had not used drugs in the community, and that the positive cannabis result was from use in custody before his release.
In my decision in the criminal proceedings, I rejected the evidence given by the respondent that he had sought to dilute his samples between 3 December 2015 and 22 December 2015 in order to avoid the possibility of there being a spike in residual cannabis that might have been in his system. I was of the view that his evidence in that regard was contrived on the basis of the expert evidence that was given in the proceedings, of which he was aware. I did not accept that there was any reason why the respondent would consider he would need to flush any further cannabis out of his system, having been told on 8 December 2015 that the previous week there had been a negative result, referred to as a 'clean result'.
The respondent gave evidence in the criminal proceedings in which he indicated clearly that, whilst in custody, he had sought to dilute samples deliberately when he was required to provide urine for urinalysis tests, and he did so in order to conceal his use of cannabis. As I indicated in the criminal proceedings, I consider that to be the reason he gave dilute samples between 3 December 2015 and 22 December 2015.
On 15 December 2015 he was warned that he was not to give further dilute samples. That would explain why on 21 and 22 December 2015 the samples he gave had creatinine levels that were above the threshold, and the results could be relied upon. I do not need to go into any detail about those results, because I have found the respondent to be guilty of having used cannabis in contravention of the supervision order at a point in time before 22 December 2015, and that was the reason the result on 22 December 2015 was positive for cannabis.
The outcome of my analysis of Dr Grasko's evidence and the evidence that the respondent gave dilute samples after 3 December 2015 is that I am satisfied, on the balance of probabilities, that the respondent used cannabis before 1 December 2015 after he was released on the supervision order.
Even if I am wrong about that, I am satisfied that he was using cannabis after 3 December 2015, when he gave the negative result, and that his giving of dilute samples was intended to conceal that use. Ultimately, the positive result on 22 December 2015 revealed that he had, in fact, been using. That is not to suggest that I would find that he was using at any significant level. It is simply not possible to say at what level he was using. All that can be said is that, during that period, his conduct was consistent with having used cannabis and seeking to conceal it.
In my opinion, the evidence supports the conclusion that, notwithstanding what he was saying to his Community Corrections Officer about his attitude to the use of cannabis and his desire to avoid breaching the conditions of his supervision order because he wanted to remain free, the respondent was simply not able to resist the temptation to resort to the use of cannabis. I note that he did indicate to the Community Corrections Officer that cannabis had been offered to him. He claimed that he had been able to resist such offers while he had been on the supervision order but, as I have found in relation to 22 December 2015, clearly that was not the case. I am satisfied, on the balance of probabilities, that the respondent was using cannabis before then while on the supervision order, and that he evinced an attitude that, if he could get away with it, he would use it. I repeat, however, that it is simply not possible to say how much he was using.
Insofar as it may be relevant to the examination and assessment by Dr Hall of the respondent, for the purposes of preparing a report, those are the findings that I would make about the respondent's use of cannabis in contravention of the supervision order.