Director of Public Prosecutions (WA) v Ugle [No 5]

[2017] WASC 280

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

IN CRIMINAL

CITATION:   DIRECTOR OF PUBLIC PROSECUTIONS (WA) -v- UGLE [No 5] [2017] WASC 280

CORAM:   FIANNACA J

HEARD:   5 AUGUST & 17 OCTOBER 2016 & 25 AUGUST 2017

DELIVERED          :   4 OCTOBER 2017

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

Legislation:

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

Result:

Supervision order rescinded
Continuing detention order made

Category:    B

Representation:

Counsel:

Applicant:     Ms K Robinson (5 August 2016) & Ms S Markham (17 October 2016)

Respondent:     Ms M R Barone (5 August & 17 October 2016) & Ms K Gooding (25 August 2017)

Solicitors:

Applicant:     Director of Public Prosecutions (WA)

Respondent:     Barone Criminal Lawyers

Cases referred to in judgment:

Director of Public Prosecutions (WA) v Pindan [No 3] [2017] WASC 107

Director of Public Prosecutions (WA) v Ugle [No 2] [2014] WASC 369

Director of Public Prosecutions (WA) v Ugle [No 3] [2015] WASC 452

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

Director of Public Prosecutions (WA) v Williams [2007] WASCA 206; (2007) 35 WAR 297

The State of Western Australia v Ugle [2016] WASC 252

Table of Contents

The application
History of the proceedings
Law applicable in contravention proceedings
Previous findings

History of sexual offending
Division 2 proceedings
First annual review

The contravention proceedings

(1)    Cannabis use while on the supervision order
(2)    Hearing ‑ 17 October 2016

(i)      Assessment of the respondent's risk of serious sexual offending
(ii)     Performance while subject to the supervision order
(iii)    Engagement in therapy
(iv)    The use of prohibited substances as a risk factor
(v)     Respondent's attitude to the contravention proceedings
(vi)    Whether legal consequences of positive results acted as a deterrent
(vii)     Manageability on a supervision order
(viii)     Conclusions from hearing of 17 October 2016

(3)    Methylamphetamine use while on the supervision order
(4)    Hearing ‑ 25 August 2017

(i)      Cannabis use while in custody
(ii)     Further treatment while in custody
(iii)    Psychiatric assessment
(iv)    'General' compliance with the supervision order
(v)     No suitable accommodation available
(vi)    Victim's submission
(vii)     Submission from the respondent
(viii)     Conclusions from the hearing of 25 August 2017

Conclusion

Orders

FIANNACA J: 

The application

1. These are proceedings brought against Warren John Ricky Ugle (the respondent) by the Director of Public Prosecutions for Western Australia (DPP) (the applicant) under the Dangerous Sexual Offenders Act 2006 (WA) (the Act) on the basis that he has contravened conditions of a supervision order to which he was subject under the Act. By an application dated 27 January 2016, the applicant sought an order, under s 23 of the Act, that the respondent be detained in custody for an indefinite term (ie a continuing detention order), alternatively that the supervision order be amended as the court thinks fit to ensure the adequate protection of the community. The final submission of the applicant was that a continuing detention order is the appropriate order, having regard to the evidence in the proceedings, as there is no amendment of the supervision order that could now ensure the adequate protection of the community if the respondent were released on such an order.

2. The respondent contravened the condition of the supervision order that prohibited him from using prohibited drugs.  He did so on at least three occasions.  The key issue in these proceedings is whether, in light of his contraventions and the evidence now available concerning his conduct and attitudes, there is an unacceptable risk that, if a continuing detention order were not made, the respondent would commit a serious sexual offence.  In essence, the question is whether, in light of those matters, the level of the respondent's risk has risen to the point where the community can no longer be adequately protected by any existing or amended conditions of a supervision order. 

3. The proceedings have had a prolonged and somewhat complicated history.  It is necessary to outline the background for context. 

History of the proceedings

1. The respondent has a history of serious sexual offending dating back to 12 January 1992.  He has served lengthy periods of imprisonment for four separate occasions of such offending, which consisted of sexually penetrating women without their consent, except for one occasion, when he sexually penetrated an 11‑year‑old girl.  On each occasion, the respondent broke into the home of the victim.  At least on three occasions, the offence occurred at night when the victim was in bed.  The last incident occurred on 21 October 2007 and involved two counts of sexual penetration without consent committed on a woman who had been asleep in her bed.  The respondent was sentenced on 7 April 2009 to imprisonment for 5 years.  Before the completion of that sentence, the applicant commenced proceedings under the Act for an order that the respondent be subject to a continuing detention order or a supervision order on the basis that he was a serious danger to the community (as provided for in s 7(1) the Act); that is, that there was an unacceptable risk, if such an order was not made, that the respondent would commit a serious sexual offence in the community. 

2. On 6 October 2014, Simmonds J found that the respondent was a serious danger to the community and made an order that he be detained indefinitely (the continuing detention order) (Ugle [No 2]).[1]  His Honour was not satisfied that the community could be adequately protected against the respondent's risk of committing a serious sexual offence by the making of a supervision order.  That was, in part, due to the assessment that the respondent could not be relied on to manage his risk appropriately.  His Honour considered that, at that stage, there were no conditions that could be tailored suitably to manage the respondent's risk. 

   [1] Director of Public Prosecutions (WA) v Ugle [No 2][2014] WASC 369.

3. At the time the continuing detention order was made, the Act provided that the detention had to be reviewed annually. The first annual review was conducted on 7 October 2015 and 9 November 2015 by me. I found that the respondent continued to be a serious danger to the community, but I was satisfied that there had been a change in the respondent's circumstances, such that the community could be adequately protected against the risk that he would commit a serious sexual offence if released into the community by the making of a supervision order with strict conditions that would constrain his behaviour and would enable close monitoring of that behaviour and his level of risk. Accordingly, on 24 November 2015, I made orders under s 33(2)(b)[2] of the Act rescinding the continuing detention order and ordering that for a period of 10 years, while not in custody, the respondent be subject to conditions under a supervision order (Ugle [No 3]).[3]  The respondent was released on that date on a supervision order containing 41 conditions. 

   [2] Section 33 was amended by the Dangerous Sexual Offenders Legislation Amendment Act 2016 (No 17 of 2016) from 11 July 2016.  As in force at the time of my decision on 24 November 2015, s 33(2)  read:

   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] Director of Public Prosecutions (WA) v Ugle [No 3][2015] WASC 452.

4. I will say more below about the findings I made at the first annual review concerning the respondent's risk factors.  It is sufficient at this stage to note that alcohol intoxication and methylamphetamine use had been identified as significant factors contributing to the respondent's sexual offending and, therefore, to the risk that he would commit a serious sexual offence if released into the community.  Cannabis use had also been identified as a risk factor, in that, while not directly linked to the offending, it had the potential to be associated with alcohol use or to lead to the use of methylamphetamine.  At the time of the annual review, I considered that the potential for the respondent to resort to drug use remained a vexing issue.  While he had demonstrated improved self‑awareness in respect of his risk factors, including drug use, there were concerns about his attitude to the use of cannabis.  However, the supervision order contained conditions prohibiting the respondent from possessing, consuming or using prohibited drugs (including, but not limited to, cannabis) and alcohol, and requiring him to submit to urinalysis testing.[4]  Those conditions were a protective measure against drug use as a risk factor.  I concluded that the combination of conditions, against the background that the respondent had made some gains in therapy, would provide adequate protection of the community. 

   [4] Conditions 24, 31 and 32 of the Supervision Order made 24 November 2015.

5. In my reasons on the annual review, I said:[5]

   Should circumstances that are likely to lead to sexual offending, and indeed offending of the kind in which [the respondent] 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. 

   [5] Director of Public Prosecutions (WA) v Ugle [No 3][2015] WASC 452 [111].

6. Since his release on 24 November 2015, the respondent has contravened the supervision order on three occasions by using prohibited drugs (in breach of condition 24).  On the first two occasions, he used cannabis.  On the third occasion, he used methylamphetamine.  The evidence of his use on each occasion has been a positive urinalysis result for the particular drug. 

7. In relation to the first two occasions of illicit drug use, the respondent was charged with two offences, under s 40A of the Act, of contravening a supervision order by using cannabis. He pleaded not guilty. In the meantime, the applicant brought the application dated 27 January 2016 commencing the contravention proceedings. As there were then contravention proceedings on foot, the criminal charges proceeded to a trial in this court.[6] 

   [6] See Dangerous Sexual Offenders Act 2006 (WA) s 40B(4).

8. In essence, the first charge alleged that the respondent used cannabis between 24 November 2015, when he was released on the supervision order, and 1 December 2016, when he returned a positive urinalysis result for cannabis.  The second charge alleged 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.  Those 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.[7] 

   [7] The State of Western Australia v Ugle [2016] WASC 252.

9. The factual findings made by me in the proceedings on the criminal charges may be used in the present proceedings.[8] 

   [8] Dangerous Sexual Offenders Act 2006 (WA) s 40B(4)(d).

10. The contravention proceedings had remained pending until the outcome of the criminal proceedings. In light of my decision in the criminal proceedings, the applicant decided to proceed with the application under s 23 of the Act. The hearing of the application was listed for 17 October 2016. On 19 July 2016, I ordered reports for that hearing, including a psychiatric report from a psychiatrist who had previously assessed the respondent for the purposes of earlier proceedings under the Act, Dr Mark Hall. The parties agreed that there was a factual issue I should determine before Dr Hall examined the respondent, as it was to be expected that Dr Hall would rely on my findings in making his assessment of the respondent's risk of committing a serious sexual offence, and my finding on that factual issue could be relevant to that assessment. The context may be briefly stated.

11. In the criminal proceedings, I was not satisfied beyond reasonable doubt that the respondent had used cannabis between his release on the supervision order on 24 November 2015 and the date of the first positive reading for cannabis, 1 December 2015, as I could not exclude as a reasonable hypothesis that the positive result on that date was due to a residual amount of cannabis in the accused's body from his last use of that drug in prison, in light of the evidence in the criminal trial.  That was the basis for the acquittal in respect of that charge.  However, I considered it to be unlikely that the positive result on that date was due to such a residual amount; I said that the reading probably was the result of use after he was released.  The preliminary question of fact I was asked to determine for the present proceedings was whether I was satisfied on the balance of probabilities that the respondent used cannabis between his release on the supervision order and 1 December 2015. 

12. On 5 August 2016, I delivered my decision on the preliminary issue (Ugle [No 4]).[9]  These reasons should be read in conjunction with my reasons in that decision, which I incorporate as part of my final determination in this matter.  In short, I have found on the balance of probabilities that the respondent used cannabis before 1 December 2015 after he was released on the supervision order.  I will return later to the specific findings I have made about the respondent's use of cannabis and his attitude to drug use during the first month he was within the community on a supervision order. 

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

13. Pending the determination of the charges under s 40A, the respondent was on bail in respect of those charges and on an undertaking to appear in respect of the contravention proceedings under s 23. After he was convicted of the second count under s 40A on 19 July 2016, sentencing was adjourned until after the conclusion of the contravention proceedings, as is authorised by s 40B(e) of the Act. He was again released on bail in the sentencing proceedings and on the undertaking in the contravention proceedings. The supervision order continued in force and the conditions of the respondent's bail and his undertaking included a condition that he comply with the conditions of the order. As I have said, the supervision order included a condition that he was not to possess, consume or use any prohibited drugs or substances,[10] which was the condition he had breached. 

    [10] Condition 24 of the Supervision Order made on 24 November 2015.

14. The application under s 23 proceeded to a hearing on 17 October 2016. The applicant relied on reports from Dr Hall, Dr Dylan Galloghly, who is a clinical and forensic psychologist with the Department of Corrective Services (as it was at that time) (DCS), and Ms Nadine Minnock, who is a Senior Community Corrections Officer (Senior CCO) with DCS, all of whom also gave oral evidence at the hearing. At the end of the hearing, I reserved my decision and adjourned until 18 November 2016.

15. On 16 November 2016, the respondent was brought before the court on an application by the State to revoke his bail in the sentencing proceedings on the basis that he had allegedly breached a condition of his undertaking by using methylamphetamine.  He had been arrested after a urinalysis result on 11 November 2016 that was positive for that drug.  After hearing submissions, I was satisfied on the basis of the analyst's certificate produced by the State that the respondent had been or was likely to be in breach of a condition of his bail undertaking, and that it was appropriate to revoke bail, because the use of methylamphetamine had been identified as a major risk factor that was directly connected to the respondent's previous sexual offending.  Accordingly, I revoked the respondent's bail and remanded him in custody until 18 November 2016, the date to which the contravention proceedings had been adjourned for decision. 

16. On 18 November 2016, the applicant sought leave to re‑open her case in the contravention proceedings on the basis that evidence in relation to the alleged use of methylamphetamine would be relevant to the question of whether there was now an unacceptable risk that the respondent would commit a serious sexual offence if he is not subject to a continuing detention order; in other words, it was relevant to whether a supervision order would no longer provide adequate protection of the community.  Leave was granted and the proceedings were adjourned to 19 December 2016 for mention.  The sentencing proceedings were also adjourned to that date. 

17. Until the alleged breach of 11 November 2016, the applicant had consented to the applicant being released in the contravention proceedings on the undertaking I have previously mentioned.  Upon adjourning the proceedings on 18 November 2016, I was required, under s 24A(2) of the Act, either to order that the respondent be detained in custody or to release him.  However, s 24A(3) provides that the court must not release the person, the subject of the contravention proceedings, unless the court is satisfied, on the balance of probabilities, that releasing the person is justified by exceptional circumstances or the DPP consents to the release.  On 18 November 2016, the applicant no longer consented to the release of the applicant.  It was submitted on behalf of the respondent that the fact he would lose the accommodation that was then available to him, and the likely delay in the matter being concluded, particularly in light of the expected criminal proceedings concerning the alleged use of methylamphetamine, constituted exceptional circumstances justifying his release.  I was not satisfied, on the balance of probabilities, that they did.  Consequently, I made an order that the respondent be detained in custody.  I also refused an application for bail in the sentencing proceedings.  The respondent has been detained in custody since then. 

18. On 21 November 2016, the respondent was charged in the Magistrates Court with an offence under s 40A of the Act arising from his alleged use of methylamphetamine, relying on the positive urinalysis result of 11 November 2016 ('the methylamphetamine charge'). On 2 December 2016, the methylamphetamine charge was committed to the Supreme Court. On 19 December 2016, the respondent pleaded not guilty to the charge. The proceedings in respect of that matter, together with the contravention proceedings and the sentencing proceedings were adjourned to 6 February 2017 for mention.

19. The respondent was subsequently convicted of the methylamphetamine charge by Corboy J on 13 April 2017, after a trial conducted on 3 March 2017 ('the methylamphetamine criminal proceedings').[11]  Sentencing in respect of that offence has been adjourned pending the conclusion of the contravention proceedings.  All matters were adjourned to 28 April 2017 for mention, with a view to a date being set for the continuation of the contravention proceedings.  The hearing eventually proceeded on 25 August 2017.  The delay is regrettable, but was necessary to accommodate the availability of the parties and the need to obtain a further psychiatric report and an updated report from a Senior CCO in respect of the respondent's conduct in custody since 18 November 2016. 

    [11] The State of Western Australia v Ugle [2017] WASC 111.

1. At the hearing on 25 August 2017, the applicant relied on reports from Dr Peter Wynn Owen, a consultant forensic psychiatrist, Ms Catherine Korda, a Senior Forensic Psychologist with the Forensic Psychological Services section of the Department of Justice, and Ms Minnock, the Senior CCO who had given evidence in the proceedings on 17 October 2016.  Each of them also gave evidence. 

2. Before dealing with the evidence in the proceedings, I will outline the legal framework within which the issues need to be considered.  I will then outline the findings in the div 2 proceedings and the first annual review, which provide the background against which the contraventions need to be considered. 

Law applicable in contravention proceedings

1. The provisions concerning contravention of a supervision order are in div 4 of the Act. 

2. Section 21 provides for the issue of a summons or a warrant for the arrest of the person who is the subject of a supervision order upon the application of a member of the police force or a community corrections officer who reasonably suspects the person is likely to contravene, is contravening, or has contravened a condition of the supervision order. A summons or warrant issued under s 21 requires the person to appear or be brought before the Supreme Court for it to consider the suspected or anticipated contravention.

3. If a person appears or is brought before the Supreme Court pursuant to s 21, the DPP may apply to the court for an order under s 23.[12] Section 23 is in the following terms:

   [12] Dangerous Sexual Offenders Act 2006 (WA) s 22(1).

   23.Court may make order

   (1)If the court is satisfied, on the balance of probabilities, that the person who is subject to the supervision order is likely to contravene, is contravening, or has contravened, a condition of the supervision order, the court may ‑

   (a)make an order amending the conditions of the supervision order, or extending the period for which the offender is to be subject to the conditions of the supervision order, or both; or

   (b)if the court is also satisfied that there is an unacceptable risk that, if an order under this paragraph were not made, the person would commit a serious sexual offence, make a continuing detention order in relation to the person; or

   (c)make no order.

   (2A)In considering whether it is satisfied as required in subsection (1)(b), the court must disregard the possibility that the person might temporarily be prevented from committing a serious sexual offence by imprisonment, by remand in custody or by the imposition of bail conditions.

   (2)In deciding whether to make an order under subsection (1), the paramount consideration is to be the need to ensure adequate protection of the community.

4. Once the court is satisfied that the person has contravened the supervision order, the approach mandated by s 23 for choosing the appropriate order to be made, if any, is different to the approach under s 17 on an application for a div 2 order under the Act and under s 33 on an annual review of a continuing detention order. In effect, those sections provide that, if the court is satisfied the person is (or remains) a serious danger to the community, it must choose either to make (or affirm) a continuing detention order or to make a supervision order. The paramount consideration in deciding on the appropriate order is the adequate protection of the community. There is no requirement under s 17 or s 33 for the court to be satisfied as provided in s 23(1)(b) before a continuing detention order can be made or affirmed. Indeed, in the context of s 17 and s 33, I have previously concluded that if the court is not satisfied a supervision order is capable of providing adequate protection of the community (having regard to the possible conditions which might be imposed, as identified in the evidence), it must make a continuing detention order under s 17 or decline to rescind the detention order on an annual review under s 33.[13]  That conclusion follows from Director of Public Prosecutions (WA) v Williams, in which Wheeler JA said:[14]

   Of course, if, as was not the case here, his Honour had been satisfied that he had before him all relevant evidence concerning possible conditions which might be imposed on a supervision order, but was simply left in doubt as to whether such an order would adequately protect the community, then, having regard to s 17(2), it would have been necessary for him to have made a continuing detention order.

   [13] Director of Public Prosecutions (WA) v Pindan [No 3] [2017] WASC 107 [29] ‑ [32].

   [14] Director of Public Prosecutions (WA) v Williams [2007] WASCA 206; (2007) 35 WAR 297 [86] (Wheeler JA, Le Miere AJA agreeing). See also the reasons of Martin CJ in that case at [47], where his Honour framed the question in terms of 'whether a supervision order could be made which would provide adequate protection to the community'.

5. The need to ensure the adequate protection of the community is also incorporated in s 23, but it is specified to be the paramount consideration not in deciding between the orders in s 23(1)(a) or (b), but in 'deciding whether to make an order under subsection (1)', in the context in which there is an option in s 23(1)(c) to make no order. Applying the approach in Williams, if the court is not satisfied that the community would be adequately protected by making no order, it must make an order under s 23(1)(a) or (b).

6. However, in accordance with the requirements of s 23(1)(b), before the court makes a continuing detention order, it must be satisfied that there is an unacceptable risk that, if such an order were not made, the person would commit a serious sexual offence. The standard of satisfaction required under that paragraph is not specified, but the use of the words 'also satisfied' in the context in which satisfaction on the balance of probabilities is specified earlier in the section as the standard of satisfaction in determining whether there has been a contravention, suggests that the same standard was intended to be applied under s 23(1)(b). The only other standards of persuasion referred to in the Act are in s 7 (a high degree of probability in the context of the court being satisfied that the person is a serious danger to the community) and, by implication, in s 40B (which, in effect, incorporates the criminal standard of proof in proceedings for an offence of contravening a requirement of a supervision order). Those provisions do not apply to an application under s 22. The scheme of the provisions under div 4 of the Act appears to assume that the person who is the subject of a supervision order continues to be a serious danger to the community. The question that arises under s 23(1)(b) is whether the level of the person's risk has risen to a point where the community can no longer be adequately protected by any existing or amended conditions of a supervision order.

7. There is a question as to what is meant by 'continuing detention order' under s 23(1)(b). The phrase is defined generally for the purposes of the Act, unless the contrary intention appears, in s 3. There is no separate definition in s 23 or in pt 2 div 4 of the Act, in which s 23 appears. The phrase is defined in s 3 to mean 'an order made under s 17(1)(a)'.

8. Section 17(1)(a) provides as follows:

   (1)If the court hearing an application for a Division 2 order finds that the offender is a serious danger to the community, the court must ‑

   (a)order that the offender be detained in custody for an indefinite term for control, care, or treatment; or …

9. On the face of it, the provision appears to be concerned with an order made on a div 2 application (being the first kind of application that brings a person under the Act), which the present application is not.  However, it is clear from the overall scheme of the Act, that there is one scheme of continuing detention and supervision orders that may be made as a result of different kinds of proceedings, commencing with a div 2 application.  The other occasions on which such orders may be made include an annual review of a detention order[15] and a contravention proceeding,[16] as in this case. The provisions concerning these last two forms of application refer to 'a continuing detention order' and 'a supervision order' without explication. On the other hand, s 17 does not use those phrases, but provides the explication of what each of those orders is. There is nothing in s 23 that evinces a contrary intention to the definition of 'continuing detention order' provided in s 3. Substituting the words of the definition into s 23, the court is required to make 'an order made under s 17(1)(a)'. An order made under s 17(1)(a) is 'an order that the offender be detained in custody for an indefinite term for control, care, or treatment'.

   [15] Dangerous Sexual Offenders Act 2006 (WA) s 33.

   [16] Dangerous Sexual Offenders Act 2006 (WA) s 23.

Previous findings

1. In the 2015 annual review, I proceeded on the basis that the decision whether the respondent should continue to be detained or be released on a supervision order depended on whether there had 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 remained an 'unacceptable risk', it could be adequately controlled by conditional release on a supervision order, so that the community remained adequately protected.[17]  That required consideration of the respondent's history of sexual offending and the findings made at the div 2 hearing. 

History of sexual offending

[17] Director of Public Prosecutions (WA) v Ugle [No 3][2015] WASC 452 [17].

1. The respondent's history of sexual offending is set out at [19] to [29] of Ugle [No 3]. It is summarised at [4] above. For present purposes, it is sufficient to add the following conclusion from Ugle [No 3] concerning the impact of the respondent's offending:[18]

   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. 

Division 2 proceedings

[18] Director of Public Prosecutions (WA) v Ugle [No 3] [2015] WASC 452 [30].

1. The evidence and findings at the div 2 hearing were summarised in some detail at [32] to [47] of Ugle [No 3].  For present purposes, it is only necessary to identify the following matters that are of particular relevance to the issues in this application:

   1.Dr Hall, who was one of the two consultant psychiatrists who assessed the respondent in 2014, was of the view that without intervention in the form of a continuing detention order or a supervision order, the respondent posed a high risk of re-offending sexually. 

   2.Although the other consultant psychiatrist who assessed the respondent at the time, Dr Tanney, did not use a grading system, Simmonds J was of the view that essentially his opinion was commensurate with that of Dr Hall. 

   3.The effect of the evidence of both psychiatrists was that the level of the respondent's level of risk of serious sexual offending was not likely to change, so that the real issue was whether his risk could be managed in the community.  That would depend on his preparedness to engage in therapy and address his risk factors. 

   4.Both psychiatrists identified the respondent's substance abuse as a significant factor in his offending and his future manageability in the community. 

   5.Dr Tanney considered that the respondent's 'significant substance abuse involving amphetamines' was a resistant condition that had adverse implications for the respondent's manageability.  He considered it a 'major impediment to him functioning effectively in the community'.[19] 

   6.Dr Hall was of the opinion that the respondent's risk was not of imminent serious sexual re-offending. 

   7.However, Dr Hall was also of the opinion that the imminence of re‑offending would depend on the respondent's ability to manage his substance use, peer relationships and potential generalist offending.  Dr Hall said that 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 anti-social peers and financial hardship.[20] 

   8.Both Dr Hall and Dr Tanney identified the respondent's resistance to treatment as the other significant impediment to his manageability within the community. 

   [19] Director of Public Prosecutions (WA) v Ugle [No 3] [2015] WASC 452 [41].

   [20] Director of Public Prosecutions (WA) v Ugle [No 3] [2015] WASC 452 [33], point 6.

2. Simmonds J found that the respondent had not made significant efforts to address the causes of his offending behaviour. 

First annual review

1. As I said in [6] and [7] above, by the time of the first annual review, there had been a change in the respondent's circumstances.  It is necessary to have regard to [49] to [113] of my reasons in Ugle [No 3] to obtain a full understanding of the context for the determination of the issues in this application.  What follows is a brief outline of the aspects of the evidence and my findings at the annual review that bear most directly on those issues. 

2. At the time of the first annual review in 2015, Dr Hall considered that the respondent remained a high risk of re-offending sexually if not subject to a detention order or a supervision order.  However, there had been improvements in the respondent's circumstances.  He had engaged well in therapy and, in Dr Halls' opinion, had gained insight into factors that put him at risk of sexual offending and a realistic outlook on what life would be like in the community, such that the risk factors of 'problems with planning, problems with treatment and problems with supervision' were ameliorated to some extent.[21]  In general terms, Dr Hall noted the respondent's expressed desire to lead a prosocial life and to continue to engage in counselling, which he considered to be genuine.  He regarded it as a significant shift from the attitudes that had led to an 'entrenched' lifestyle of 'entrenched drug use and anti-social behaviour'. 

   [21] Director of Public Prosecutions (WA) v Ugle [No 3] [2015] WASC 452 [86].

3. Although the respondent had continued to deny most of his sexual offending, Dr Hall did not consider that to detract in any significant way from the ability to manage the respondent's risk in the community.  He did consider the respondent's use of cannabis in prison and his attitude towards that drug, to which I will return below, to be matters of concern.  However, having regard to the gains the respondent had made, Dr Hall considered that, at that stage, the respondent's risk could be managed in the community under the strict conditions of a supervision order. 

4. Although the respondent had made positive gains in a number of areas, including recognising amphetamine use as a 'primary issue' in his sexual offending,[22] his attitude to cannabis use continued to be problematic.[23]  On the one hand, he was prepared to openly discuss his substance use, which was regarded as a positive factor conducive to effective monitoring of the risk that he may return to using drugs in the community.  On the other hand, he had continued to use cannabis from time to time while in prison, both as a prisoner and while detained under the Act, which suggested that his capacity to avoid illicit substance use in the community was questionable, despite his assertions that he was confident he would not do so. 

   [22] Director of Public Prosecutions (WA) v Ugle [No 3] [2015] WASC 452 [58].

   [23] Director of Public Prosecutions (WA) v Ugle [No 3] [2015] WASC 452 [81].

5. The respondent had returned a positive urinalysis result for cannabis on 17 July 2015.  He told Dr Galloghly, who provided the treatment progress report for the annual review, that he had succumbed to constant peer pressure while experiencing stress related to the upcoming court proceedings (viz the annual review).[24]  He gave a different explanation to Dr Hall, saying that he had been 'stressed out' after a member of his extended family had passed away, and his cellmate had been smoking cannabis.[25]  Significantly, as I pointed out in my reasons, Dr Hall concluded that the respondent 'continued to hold a positive view of cannabis and minimised the incident'.[26]  He considered the respondent's attitude 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 'anti-social peer associations and other anti-social behaviour'.[27]  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.[28]  Dr Galloghly, on the other hand, put the prospect of such disclosure no higher than a hope, saying one could never be definite about such things.[29] 

   [24] Director of Public Prosecutions (WA) v Ugle [No 3] [2015] WASC 452 [59].

   [25] Director of Public Prosecutions (WA) v Ugle [No 3] [2015] WASC 452 [81].

   [26] Director of Public Prosecutions (WA) v Ugle [No 3] [2015] WASC 452 [81].

   [27] Director of Public Prosecutions (WA) v Ugle [No 3] [2015] WASC 452 [92].

   [28] Director of Public Prosecutions (WA) v Ugle [No 3] [2015] WASC 452 [92].

   [29] Director of Public Prosecutions (WA) v Ugle [No 3] [2015] WASC 452 [76].

6. In light of the circumstances in which the respondent came to breach the supervision order, it is noteworthy that in his interview with Dr Galloghly for the annual review, the respondent identified that 'high risk scenarios pertained to associating with friends and family that he knows use illicit substances' and he acknowledged the likely difficulties in socialising with such family members.[30]  He told Dr Galloghly that he would remove himself from situations where drug use was apparent.  That was considered an inadequate risk management strategy.  According to Dr Galloghly, the respondent's cannabis use in prison in July 2015, which resulted in a prison charge, offered a good demonstration of the difficulties the respondent was likely to face in resisting peer pressure to use cannabis in the community, and of his need to develop alternative methods of stress management.[31]  Dr Galloghly also noted that the respondent continued to display a rather simplistic understanding of his amphetamine use.[32] 

   [30] Director of Public Prosecutions (WA) v Ugle [No 3] [2015] WASC 452 [60].

   [31] Director of Public Prosecutions (WA) v Ugle [No 3] [2015] WASC 452 [65].

   [32] Director of Public Prosecutions (WA) v Ugle [No 3] [2015] WASC 452 [66].

7. Therefore, it was recognised at the first annual review that there would be challenges to the respondent's capacity to remain drug‑free under a supervision order.  As I said at [59] of my reasons, in relation to the respondent's explanation to Dr Galloghly that he had succumbed to peer pressure while experiencing stress:

   [T]his 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. 

8. Nevertheless, I was satisfied that the weight of the evidence, in particular the opinions of Dr Hall, who had personally observed a change in the respondent since the div 2 hearing, supported the conclusion that the respondent had made important gains in three areas in which he previously had entrenched problems, and that his risk of sexual offending could be adequately managed in the community.  The three areas were:  his resistance to therapy and supervision; his lack of self‑awareness in respect of risk factors, especially substance use; and his lack of coping skills.  As I said at the time:[33]

   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 re‑offending, 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. 

   [33] Director of Public Prosecutions (WA) v Ugle [No 3] [2015] WASC 452 [110].

1. Although concerns remained in respect of the respondent's attitude to cannabis and the potential for him to relapse into illicit substance use, I considered that the conditions of the supervision order provided sufficient protection against any such relapse putting the community at risk of the respondent committing a serious sexual offence.  The most obvious protection was by way of monitoring, which would enable prompt intervention by the authorities if a relapse occurred.  As I said earlier, I stipulated that the circumstances that would warrant intervention would include any indication that the respondent had been using drugs or alcohol, or that he was associating with others who were using drugs.[34]  In that context, I said that anything less than strict compliance with the conditions was likely to result in the respondent being returned to custody and the imposition of a continuing detention order. 

   [34] Director of Public Prosecutions (WA) v Ugle [No 3] [2015] WASC 452 [111].

2. Before leaving the outcome of the first annual review, it is important to note that the evidence of the respondent's drug use in detention did not suggest he had been a heavy user.  In fact, the impression obtained from what the respondent had told his therapist and the accounts he gave to Dr Hall and Dr Galloghly was that his use of cannabis in prison had been episodic, on occasions when he had been pressured or under stress.  There had only been the one positive urinalysis result in 2015 before the annual review. 

The contravention proceedings

1. I will deal with the evidence in the contravention proceedings in the following order:

   1.The findings I have made in relation to the respondent's use of cannabis after he was released on a supervision order, up to the positive urinalysis result on 22 December 2015;

   2.The reports prepared for the hearing of 17 October 2016, and the oral evidence given at that hearing;

   3.The findings made by Corboy J in respect of the respondent's contravention by using methylamphetamine; and

   4.The reports prepared for the hearing on 25 August 2017, and the oral evidence given at that hearing. 

1. Cannabis use while on the supervision order

1. My findings in relation to the respondent's use of cannabis while on the supervision order are set out in The State of Western Australia v Ugle ('the cannabis criminal proceedings'),[35] in particular at [120] to [124] (although not confined to those paragraphs), and in Ugle [No 4].  Those findings include my assessment of the respondent's evidence in the cannabis criminal proceedings.[36]  It is necessary to say something about that evidence, as it bears upon the trust that can be placed in the respondent's reporting of his drug use.  As I have said, the expectation that the respondent would be honest in counselling with Ms Rankin about his drug use was a relevant consideration in the assessment made at the first annual review that his risk could be managed under a supervision order.  The evidence in the cannabis criminal proceedings and in these proceedings demonstrates that any confidence in the respondent's honesty in respect of this issue was misplaced. 

   [35] The State of Western Australia v Ugle [2016] WASC 252.

   [36] The State of Western Australia v Ugle [2016] WASC 252 [105] - [119].

2. Before dealing with the respondent's evidence, I note that the evidence at the trial about urinalysis testing was that the respondent gave dilute samples on three of the five occasions he was tested between 1 December 2015 and 22 December 2015.[37]  The evidence in the cannabis criminal proceedings was that a dilute sample increases the probability of achieving a 'not detected' result, and it is recommended that a repeat sample be taken.  Dilution can result from the person drinking a lot of water before producing the sample.  The effect of the evidence was that, where a sample is dilute, a 'not detected' result during the screening test cannot be regarded as a reliable indicator that the drug the subject of the screening is not present.[38] 

   [37] A 'dilute sample' is one in which the level of creatinine (a 'marker' found in urine, which indicates that the sample is, in fact, a urine sample) is below a threshold level.  See The State of Western Australia v Ugle [2016] WASC 252 [31].

   [38] The State of Western Australia v Ugle [2016] WASC 252 [31].

3. It is only necessary to provide a brief outline of the respondent's evidence.  In essence, he sought to explain the positive readings for cannabis on 1 December 2015 and 22 December 2015 on the basis that he had been a heavy user of cannabis in prison for a substantial part of, if not the whole of, the period of his imprisonment before he was detained under the Act, and that he continued to be a heavy user during his period of detention under the Act.  Of course, that would suggest a complete inability to control his substance abuse problem and was entirely inconsistent with the impression he had sought to make in the lead up to the first annual review, as I have described above.  The respondent also claimed in his evidence that he had used techniques to avoid detection of his drug use in prison, including drinking copious amounts of water in order to flush the drug from his system or cause dilute samples in order to defeat the urinalysis testing.  Obviously, even if true to a lesser extent than he was claiming, the evidence demonstrated he had the inclination and ability to thwart urinalysis testing, which again does not inspire confidence in the manageability of his illicit substance use in the community. 

4. The respondent gave evidence that he had used cannabis heavily in the week leading up to his release on the supervision order, so that any cannabis metabolites in his system at the time of the testing were residual from the heavy use pre‑release.  Although there were inconsistencies in his evidence, the tenor of his evidence was that, sometime in the week before he was released, he obtained a 'ball' of cannabis and smoked it every day continuously, day and night, until the day before his release.  He claimed that after the positive result of 1 December 2015, he drank a lot of water to flush any residual cannabis from his system, which would explain the dilute samples.  His defence, which I rejected, was that the positive reading of 22 December 2015 was either a 'spike' in the residual cannabis level, despite his efforts at flushing, or the result of passive smoking. 

5. I will deal with the issue of passive smoking again below, in the context of the respondent's use of cannabis since he was returned to custody.  It is sufficient to say at this point that, while the respondent's evidence in the cannabis criminal proceedings did not provide any support for the proposition that the positive reading of 22 December 2015 was the result of passive smoking, that evidence did raise concerns that he was associating with people who were smoking cannabis and that the risk that he would relapse into illicit substance use was therefore elevated, despite his claims that he would just leave when his associates started smoking cannabis or if he walked into a home where that was already happening. 

6. The respondent was interviewed by police on 3 December 2015, after his first positive result while subject to the supervision order.  The account he gave to them was very different to his evidence in the cannabis criminal proceedings in respect of his drug use while in prison.  He said that his last use of cannabis before being released on the supervision order was on 13 or 14 November 2015, when he claimed to have used 10 to 12 cones of cannabis.  He also said that, while in prison he would use 'maybe once a week', when he could afford it. 

7. In my findings in the cannabis criminal proceedings, I rejected the respondent's evidence, having formed the view that the account he 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.  In terms of his general use, I said:[39]

   I accept that the accused consumed cannabis on occasions when he was in prison.  Clearly, the positive result in July 2015 supports that.  He may well have used tricks to avoid detection.  I have no doubt that he did, on occasions, drink substantial amounts of water to dilute his samples in order to defeat urine tests for drugs, as he claimed in his cross-examination to explain why he would not be detected and why he would not fear being detected. 

   [39] The State of Western Australia v Ugle [2016] WASC 252 [108].

8. However:[40]

   … I do not believe the accused's evidence that he was using cannabis heavily for most, if not all, of his time in prison over a period of eight years. 

   [40] The State of Western Australia v Ugle [2016] WASC 252 [111].

9. I went on to say that what the respondent said in his interview of 3 December 2015 about previous use in prison was likely to be closer to the truth than anything he had said since.[41]  In other words, he would have smoked 'maybe once a week' if he could afford it. 

   [41] The State of Western Australia v Ugle [2016] WASC 252 [121].

10. As for the respondent's use in the week before he was released, I said:[42]

    Nor do I believe his evidence that he used on a daily basis, whether it be 10 cones a day or 30 cones a day, or anything in between, in the last week before he was released on the supervision order.[43] 

    …

    I am satisfied that the accused's evidence in court can be rejected as untrue … I consider that his account on 3 December 2015 is likely to be true insofar as he identified his last use of cannabis in prison as having occurred around 13 or 14 November 2015… I have doubts about his claim that he smoked 10 to 12 cones on the last occasion, being 13 or 14 November, but I cannot reject it as a reasonable possibility.  His explanation was that he was feeling stressed about coming up to court for the DSO hearing.  That is a more plausible explanation than the one he has given since, that he was stressed about being released. 

    [42] The State of Western Australia v Ugle [2016] WASC 252 [121].

    [43] The State of Western Australia v Ugle [2016] WASC 252 [111].

11. As I said in outlining the history of the proceedings, the outcome of the cannabis criminal proceedings was that I was satisfied beyond reasonable doubt that the respondent used cannabis between 1 December 2015 and 22 December 2015, but was left with a reasonable doubt that he had used while on the supervision order before 1 December 2015.  However, I considered it unlikely that the result of 1 December 2015 reflected residual cannabis from before his release on the supervision order.  On 5 August 2016, I made findings on the balance of probabilities for the purposes of these proceedings in respect of the respondent's cannabis use while he was subject to the supervision order in December 2015.  It is convenient to set out the salient parts of those findings:[44]

    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. 

    [44] Director of Public Prosecutions (WA) v Ugle [No 4][2016] WASC 259 [27] ‑ [29].

12. The evidence at the hearing of 17 October 2016 was received against that background. 

1. Hearing ‑ 17 October 2016

1. The evidence consisted of a Book of Materials in two volumes, which included the materials from the annual review and materials relating to the contravention, as well as reports from Dr Hall (dated 5 October 2016), Dr Galloghly (dated 14 September 2016) and Ms Minnock (dated 10 October 2016).  Ms Minnock was the Senior CCO who was responsible for supervision of the respondent for most of the period before the hearing on 17 October 2016, although she was not the first supervising officer, and there had been four other supervising officers at various times over the period of supervision. 

2. Dr Hall, Dr Galloghly and Ms Minnock also gave evidence at the hearing on 17 October 2016. 

1. Assessment of the respondent's risk of serious sexual offending

1. Dr Hall was of the opinion that the respondent remains at high risk of committing a serious sexual offence if not subject to a continuing detention order or a supervision order.  That, of course, is not surprising, given the previous assessments made of the respondent's risk, applying actuarial and clinical assessment tools.  The duration of the supervision order took into account the expected perseverance of his risk into the foreseeable future. 

2. As Dr Hall explained, the aim of his report was to assess whether, given what had occurred (ie the respondent's use of cannabis and his attempts to conceal the use in December 2015), there was any deterioration in the ability to manage the respondent's risk on a supervision order at the time of assessment, compared to when he was released on the supervision order.  That encapsulates the factual starting point for the assessment of whether a supervision order could now adequately protect the community.  It requires a consideration of the respondent's performance under the supervision order, including his response to supervision, his engagement with therapy, his exposure to drug use, and his strategies for dealing with risk scenarios.  It also requires a consideration of the respondent's attitude to his breaches and the contravention proceedings. 

1. Performance while subject to the supervision order

Response to supervision

1. As I mentioned earlier, during the period in which the respondent was subject to a supervision order, there were five Senior CCOs responsible for his supervision at different times.  Ms Minnock was the Senior CCO who had responsibility for his supervision for most of the period, taking over from the Senior CCO who supervised the respondent when he was released.  Ms Minnock gave her evidence in respect of the respondent's performance on the supervision order on the basis of her own dealings with him and by consulting DCS records. 

2. The conditions of the supervision order were explained to the respondent when he was released from custody on 24 November 2015.  He indicated he understood the requirements.  He then met with his supervising Senior CCO on a weekly basis.  For the first eight months after his release, although the respondent attended regularly for supervision, his engagement in meaningful discussion was limited and he often presented as 'oppositional to the supervision process'.  By way of example, Ms Minnock referred to the fact that the respondent required continual prompting to disclose information, regularly responded with one word answers and was not actively engaging in discussions.  He also continually expressed his frustrations with the conditions of the supervision order, particularly in relation to the contact he could have with family members and their children. 

3. Ms Minnock said that the respondent's engagement in discussions during supervision improved after mid‑August 2016.  The respondent had demonstrated improved motivation to achieve his goals and had actively disclosed information without continual prompting.  The respondent had identified a shift in his attitude towards the supervision process, claiming that he wished to avail himself of the support offered to him by his supervision team.  He had explained that his change in attitude was motivated by 'the value he places on his freedom, indicating that the current court process has highlighted the potential consequences of non‑compliance'.  He also told Ms Minnock that he no longer saw the order as 'purely punitive'. 

4. Ms Minnock agreed with counsel for the respondent that it is not unusual for persons who are released subject to supervision under the Act to go through a period of adjusting to the rigours of supervision, and presenting as oppositional in the early stages.  It seems to me, however, having regard to the evidence of Dr Hall and Dr Galloghly, that the respondent's 'oppositional' attitude for a significant period of time after his release on 24 November 2015 was a function of his anti-social personality and an anti‑authority stance, rather than as a consequence of adjustment to the rigours of supervision.  It is noteworthy that the respondent exhibited the same attitude at the commencement of his interview with Dr Hall for these proceedings, on 21 September 2016.  Dr Hall described the respondent as being very defensive, 'almost sort of reflexively oppositional, disagreeing with pretty much everything [Dr Hall] said'.  However, when challenged part way through the interview on the unhelpfulness of that approach, the respondent became more relaxed and amenable to working on his issues.[45] 

Attitude to the supervision order

[45] ts 512 - 513.

1. The respondent told Dr Hall that he was not aggrieved or annoyed by the restrictive nature of the conditions of the supervision order and the need for urinalysis testing.  He used the phrase, 'You play your little game.'  Dr Hall considered this to be an example of the respondent adopting, by default, an anti‑authority, anti‑establishment position.  He said this was not inconsistent with the respondent's background and the time he had spent in prison.  It was indicative of the respondent's distrust of people.  Dr Hall considered that the respondent felt that he was being trapped or tricked somehow.[46] 

   [46] ts 514.

2. Dr Hall had the impression that the respondent was not taking the supervision order as seriously as some would, but he was taking the order 'as seriously as he is capable of taking it, given his make‑up and background'.[47]  Dr Hall explained that, to some extent, the respondent has become institutionalised and has a very limited ability to engage positively with people or to trust that they are engaging positively with him, particularly in an environment that is somewhat alien to him, relative to prison.[48] 

   [47] ts 515.

   [48] ts 534.

3. Ms Minnock thought that the respondent's statements to Dr Hall to the effect that he did not find the supervision order to be particularly onerous were inconsistent with the frustrations he had expressed during supervision sessions.  However, the statements to Dr Hall came after the respondent had apparently evinced a more positive approach in sessions from mid‑August, so I do not consider one could conclude there is an inconsistency in that regard.  What is of greater significance is the respondent's indication to Dr Hall that his lack of concern stemmed from his perception that the process was a game.  That brings into question his claims to his supervision team to the effect that he regarded the supervision order as beneficial for him. 

1. It is difficult to come to any definite conclusion about whether there was a real change in the respondent's attitude to supervision from mid‑August 2016.  A catalyst for such change would have been my factual findings for the purposes of these proceedings that the respondent had used cannabis more than once in December 2015, and had tried to conceal his use.  It should have been obvious to the respondent that the factual findings could have serious implications for his freedom on a supervision order.  His comment to his supervising Senior CCO that his change in attitude was motivated by the value he placed on his freedom would tend to suggest it was obvious to him.  Yet, his presentation to Dr Hall and his reference to the supervision order as a 'game' tend to erode the impression that he had turned a corner.  His comments may have come from a perspective of distrust, as Dr Hall suggested, but it seems to me that they also demonstrated a persistent lack of insight in respect of the need for the conditions of the order to protect the community. 

Compliance with other conditions of the Supervision Order

1. Despite those reservations, I am satisfied that, as at 17 October 2016, the respondent had demonstrated, by his actions, that he was prepared to comply generally with the conditions of the order, albeit at times in a less than optimal manner.  Ms Minnock gave evidence, for instance, that the respondent complied with the requirements of Global Positioning System (GPS) monitoring and directions in respect of restricted zones, and with his reporting obligations to the Sex Offender Management Squad (SOMS). 

2. The respondent was required to maintain a diary of his daily activities.  In July 2016, it was identified that his record of activities was not to an acceptable standard and did not correlate with movements recorded by the GPS monitoring.  The respondent was issued with a written lawful instruction to improve his entries.  Ms Minnock said that, while there had been improvement over time, the respondent still required ongoing encouragement to maintain an appropriate standard of recording his activities. 

3. There was a tendency for the respondent's counsel to speak of his compliance with conditions generally as 'achievements'.  It may be accepted that for someone who could properly be regarded as institutionalised to some extent, and who has an anti-social personality disorder, compliance with some of the strict requirements of the order would be challenging.  However, when the respondent was released subject to the supervision order, it was on the basis that he had made progress in treatment to the stage where he could be expected to comply, and compliance was expected.  In that sense, as Dr Hall pointed out, it is somewhat misleading to regard a 'non‑failure' as an achievement that somehow mitigates his risk.  The mitigation is achieved by the constraints and monitoring provided by the order. 

4. Nevertheless, the point is properly made on behalf of the respondent that there is a need to weigh any contravention of the supervision order against the larger body of compliant behaviour in determining whether the risk of the accused committing a serious sexual offence if he remains in the community has become unacceptable.  Of course, the relative weight to be given to the contraventions will be informed by the importance attached to the relevant risk factor when the decision was made to release the respondent.  It will be obvious from my earlier remarks that great importance was placed on the risk posed by the respondent's drug use, and that anything short of strict compliance with the conditions prohibiting drug use was regarded as a potential basis for contravention proceedings and the imposition of a continuing detention order. 

5. However, the question remained, as at 17 October 2016, whether, in light of his subsequent conduct, the respondent's contraventions by the use of cannabis early in the period of the supervision order signalled an elevation of risk to the point where it was unacceptable if a continuing detention order were not made.  The subsequent conduct included his apparent abstention from drug use during the period since 22 December 2015. 

Urinalysis testing

1. Between 22 December 2015 and 4 October 2016, the respondent had provided 65 samples for urinalysis.  He was tested randomly, one to three times a week.  Two samples in January and one in February 2016 were considered void due to low creatinine levels, which the respondent attributed to his consumption of water because of the hot weather.  There had been no further void samples after that. As at the time of the hearing on 17 October 2016, the respondent's samples had not returned a relevant positive result since 22 December 2015. 

2. In cross-examination, Ms Minnock agreed that the urinalysis testing had involved a very assertive management approach.  She confirmed that the department intended to continue with such an assertive approach to manage the urinalysis requirements. 

Adjustment in the community

1. There were other indications that the respondent was taking steps to adjust to a prosocial life since the cannabis use in December 2015.  Although he was unemployed while subject to the supervision order, he was registered with a job seeking network and had been actively seeking employment.  He had also been proactive in seeking private accommodation, the expectation being that he would move to such accommodation as soon as a suitable place was found. 

Support in the community

1. While on the supervision order, the respondent had maintained his relationship with his partner.  Dr Hall agreed that it appeared to be a supportive relationship and was significant in providing the respondent with a 'non‑criminal outlet for sexual activity'.  He agreed that such a supportive relationship was conducive to management of the respondent's risk of committing a sexual offence.  However, it had not prevented the respondent's relapse into cannabis use, and it did not prevent his relapse into the use of methylamphetamine subsequently, in November 2016.  The respondent maintained that his partner was not using drugs.  Of course, the view that the relationship was a supportive one must assume that his partner was not aware of his drug use.  While the relationship would be a protective factor, it has limitations, given the risk presented by the respondent's use of methylamphetamine. 

2. It is unfortunate that, probably because of his attitude that he is able to cope generally and does not need assistance, that the respondent engaged only sporadically with Outcare, the agency which had made his accommodation available and which had the capacity to provide support to him within the community. 

1. Engagement in therapy

The respondent's engagement in therapy

1. Dr Galloghly obtained information about the respondent's psychological treatment from Ms Rankin and from her counselling notes.  He interviewed the respondent on 24 August 2016. 

2. At the time of the hearing in October 2016, the respondent had attended approximately 25 counselling sessions with Ms Rankin from the time that he was released from custody. 

3. The original treatment goals had included the development of insight by the respondent into his sexual offending, by gaining a greater understanding of relevant factors that lead to his offending and ensuring that those circumstances did not arise again.  That would include challenging any attitudes that facilitated offending behaviour.  The goals also included assisting the respondent to develop strategies to manage associations with negative peers and to engage with a network of persons who are pro-social.  He was to be assisted to develop a self‑management plan for dealing with high risk situations in the community.  In particular, one of the respondent's goals was to develop a 'substance misuse relapse prevention plan' to reduce his risk of exposure to drugs. 

4. Until June 2016, the sessions generally had been on a weekly basis, but, in that month, the arrangement changed to a fortnightly basis.  This was at the respondent's request, but Ms Rankin agreed, because the issues being raised by the respondent were not sufficient to warrant weekly sessions and she had arrived at the view that it was unrealistic for counselling to focus on the treatment goals that had been identified initially.  Instead, it would focus on 'maintenance', that is, assisting the respondent with adapting to living in the community and being on a supervision order. 

5. Dr Galloghly was of the opinion that the respondent appeared to be ambivalent about counselling.  That had affected his engagement in therapy and the issues and goals that could be realistically addressed.  Dr Galloghly noted, however, that counselling which has a focus on managing risk is consistent with the general psychological management of persons subject to a supervision order under the Act.  He agreed that, notwithstanding the shift in focus, the original goals would still inform Ms Rankin's approach to issues with the respondent, and counselling continued to address issues such as dealing with risk factors and pro‑social ways of living; in other words, it continued to deal with maintaining a non-offending lifestyle, including identifying risk scenarios and appropriate responses.[49] 

   [49] ts 567, 576, 577, 579.

6. Dr Hall also agreed that, generally, when a detainee under the Act is released on a supervision order, the emphasis tends to be on management of his behaviour and stresses within the community, and that work on the underlying causes of offending would usually occur after issues concerning daily living within the community have been dealt with.[50]  This may be, at least in part, the result of diminishing motivation on the part of the offender to focus on factors underlying his offending once he moves into the community, 'because he is already out, having achieved his release'.  It is not unusual in that situation for the focus of therapy to move naturally into 'just managing, in a more practical sense, aspects of risks as per the order and compliance with the order'.[51] 

   [50] ts 529.

   [51] ts 516.

7. Dr Hall agreed that, in order for the respondent to be manageable within the community while under supervision, it was not necessary that he make the 'long-term therapeutic gains'. 

8. After the respondent was charged with the contravention offences in December 2015, counselling also dealt with his response to being charged and the stress related to media coverage.  It also addressed personal issues that gave rise to stress, such as the death of the respondent's sister and the way he was managing social interactions with family members who, according to him, were often using alcohol or prohibited drugs. 

9. Consistently with what Ms Minnock described of the supervision sessions, the counselling sessions revealed that the respondent was experiencing frustrations living in the community under strict conditions, and that was a main focus of therapy.  However, his engagement in therapy lessened as time progressed, as he had less to talk about, was seemingly stable in his mood and had adequate 'outlets' for dealing with issues, namely his partner and other supports.  In cross-examination, Dr Galloghly agreed that the lessening need for therapy was not unusual for offenders on supervision orders, and that 'you would hope that over time their dependency on therapy would lessen as they become more independent and stable'.[52] 

   [52] ts 586.

10. Dr Galloghly said that the respondent has been challenged by Ms Rankin about his lack of honesty with her about cannabis use in prison.  The respondent downplayed the issue by saying it was only cannabis.  He also explained his lack of candour on the basis that if he had disclosed his cannabis use in prison, he would have had less chance of being released from custody. 

11. Although the respondent had continued to deny cannabis use in the community, Ms Rankin had nevertheless dealt with the issue in terms of the impact it had had on the respondent, by reference to the contravention proceedings and the risk that he may be returned to prison, and the stress it had caused him and his partner. 

Attitude to therapy

1. I have already mentioned that Dr Galloghly was of the opinion that the respondent appeared to be ambivalent about counselling.  More specifically, he said that the respondent's engagement in counselling appeared to have been somewhat superficial, and that he was likely only attending therapy because it was part of his conditions.  In Dr Galloghly's opinion, the respondent viewed himself as a man who did not need much assistance.  That was evidenced by his lack of meaningful engagement with Outcare and Holyoake (to which I will return below).  However, it appeared that the respondent relied on professional support when he thought it necessary.  For instance, he acknowledged that counselling allowed him a place to 'vent' about stress.  He had faced significant stress over the past year (although he tended to downplay the degree of stress during his interview) as a result of matters that included media attention, the legal commitments associated with his contravention of the order, and the death of his sister. 

2. Although there were external indications that the respondent's engagement in therapy was superficial, he told Dr Galloghly that he considered he had a positive therapeutic relationship with Ms Rankin, which he attributed to the rapport that had developed between them.  He expressed a similar view to Dr Hall, saying they got on very well and he appreciated being able to talk to Ms Rankin about various matters. 

3. Dr Hall noted that, at the annual review in 2015, he considered it to be significant that the respondent had been prepared to engage with a psychologist regularly and to have 'broken through some barriers' in terms of his willingness to talk about various matters about which he had been reticent previously.  He had regarded that as a major step forward for the respondent.[53] 

   [53] ts 516.

4. While I accepted at the annual review that the respondent's engagement in treatment was a major step forward, it must now be acknowledged that he has taken backward steps while he has been in the community.  Of particular significance is that he has not been entirely honest with Ms Rankin, failing to disclose the circumstances that led to his relapse into the use of cannabis, and subsequently falsely denying that he had used the drug.  Further, it appears he has not shifted in any significant way from the stance that he can cope on his own and that he does not need a relapse‑prevention plan beyond keeping busy and saying 'no' or simply walking away if offered drugs or in the presence of others who are using drugs. 

5. There remains a need for the respondent to embrace more sincerely the benefits of psychological counselling and the process of developing relapse‑prevention strategies. 

Future therapy

1. Dr Galloghly said it was hard to say whether counselling addressing the respondent's insight into his offending would be a part of future therapy.  He considered it unlikely because of the respondent's personality characteristics.  Dr Hall thought that therapeutic gains should remain a goal, but he agreed with the proposition from the respondent's counsel that the respondent's attainment of insight and a capacity to lead a pro-social life under the supervision order and beyond would be a very slow process, hence the need for the lengthy term of the supervision order.[54]  Further, he was of the opinion that there will be limits to the level of insight that the respondent can develop into his offending, although such limitations are not unusual for persons who are subject to the Act.[55] 

Conclusions re engagement in counselling as at 17 October 2016

[54] ts 533.

[55] ts 518.

1. The picture that emerged in respect of the respondent's psychological treatment as at 17 October 2016 was that, ostensibly, he engaged in counselling as required on a regular ongoing basis and he was able to derive a benefit from it when he needed to.  He had a good rapport with Ms Rankin and was open about some circumstances that involved risk scenarios, such as the use of drugs by family members and friends and his exposure to such use from time to time.  However, his engagement tended to be superficial, he continued to lack insight, and it is obvious that he was dishonest in his sessions when questioned about his drug use.  Nevertheless, counselling remained, potentially, a protective measure against the respondent's risk of committing a serious sexual offence. 

1. The use of prohibited substances as a risk factor

Steps to deal with drug use

1. Before the respondent was released on the supervision order, he had engaged in detention with the Drug and Alcohol Through‑Care Services provided by Holyoake, a provider of substance abuse counselling.  After his release, he attended three sessions for substance abuse counselling with a counsellor at Holyoake in the community between November 2015 and May 2016.  As it appeared that similar content was being discussed in the respondent's sessions with his senior clinical psychologist, Ms Rankin, it was decided that his engagement with Holyoake would cease, but that he could refer himself again to that service in the future if required. 

2. While the respondent's preparedness to engage with Holyoake was commendable, his contraventions of the supervision order by drug use, and his more recent use of drugs after returning to custody (to which I shall return), indicate that any benefits from the counselling have not been enduring. 

Exposure to drug use

1. The respondent told both Dr Hall and Dr Galloghly that he was often in the company of friends and family who were using illicit substances.  He said that substance use in his social circle was unavoidable, but claimed that it did not bother him, as freedom was now his 'drug'.  He said his partner had been abstinent from substance use since he had been in the community.  He was of the view that he did not need a relapse‑prevention plan because, supposedly, he found it 'easy to resist using illicit substances'. 

2. In cross-examination, Dr Galloghly agreed that the respondent had articulated a relapse‑prevention plan that included keeping busy, securing employment and counselling, but it lacked detail.  It was suggested on behalf of the respondent that avoiding a return to prison was a 'main driver' for the respondent and was part of his relapse‑prevention plan.  With respect, it is difficult to see how the motivation for a plan could sensibly be regarded as part of the plan.  The same motivation was no doubt behind his attempts to conceal his drug use (by providing dilute samples) and his denial of drug use when the positive results were returned. 

3. Dr Galloghly agreed with the proposition that, since January 2016, the prevention plan, although sub‑optimal, appeared to be working, because the respondent had not returned positive urinalysis results.  Of course, that is no longer the case, in light of the positive result for methylamphetamine in November 2016. 

Strategies for dealing with substance use

1. Given that the respondent continued to deny having used cannabis while subject to the supervision order, little weight can be placed on what he has said about the way in which he deals with circumstances in which he is confronted with drug use.  He told both Dr Hall and Dr Galloghly that he had a basic strategy of removing himself from what he saw as dangerous situations.  However, Dr Galloghly considered that it was difficult to ascertain where the respondent 'drew the line' in relation to high‑risk situations.  On the one hand, he claimed to be comfortable being in the presence of people who are using illicit substances; on the other hand, he said that he would frequently remove himself in situations where drug use was occurring.  As Dr Galloghly put it, such ambiguity would typically be viewed as a sub-optimal relapse-prevention strategy. 

1. Hearing ‑ 25 August 2017

   [78] Dangerous Sexual Offenders Act 2006 (WA) s 40B(4)(d).

1. The hearing on 25 August 2017 resulted from the applicant being given leave to reopen her case in the contravention proceedings.  The evidence consisted of a Supplementary Book of Materials (exhibit F), which included a report dated 4 August 2017 from Ms Catherine Korda, Senior Forensic Psychologist with DCS, a report dated 16 August 2017 from Dr Peter Wynn  Owen, Consultant Forensic Psychiatrist, and a report dated 17 August 2017 from Ms Minnock, to whom I have referred earlier.  Each of those witnesses gave oral evidence at the hearing. 

2. The applicant also tendered two PathWest Laboratory reports (exhibits G and H) for tests done in respect of urine samples provided by the respondent on 15 May 2017 and 1 June 2017 respectively, while he was in custody on the interim detention order.  Incident reports and a table of test results in respect of all urinalysis testing conducted with the respondent from 9 December 2016 until 15 June 2016 were also included in exhibit F at pages 55 to 62.  The tests were described as 'targeted' substance use tests. 

3. I will deal first with the results of testing that showed the respondent has used cannabis while he has been in custody on the interim detention order. 

1. Cannabis use while in custody

1. The respondent was tested for substances on four occasions while in custody from 9 December 2016 to 27 December 2016, but was not tested again until 15 May 2017.  After that, he was tested on a further three occasions, being 1, 13 and 15 June 2017.  The samples from 15 May 2017 and 1 June 2017 returned positive results for cannabis metabolites, and negative results for the other drugs for which testing was done.  The results were delivered on 26 May 2017 and 13 June 2017 respectively.  At the hearing, the respondent did not challenge the integrity or accuracy of the results.  The issue is whether there is any reasonable explanation other than that the respondent used cannabis. 

2. When interviewed by Ms Korda on 26 July 2017, the respondent claimed that the positive result for 15 May 2017 was the result of passive smoking.  He said that during the evening lock down his cell mate had smoked cannabis.  He said he did not expect that his exposure to cannabis smoke in that manner would result in a positive test result.  As will appear below, the respondent had good reason to believe that such exposure would not result in a positive reading in urinalysis testing, and his explanation that the positive result was a consequence of passive smoking is not plausible. 

3. When interviewed by Ms Korda, the respondent denied there had been a further test on 1 June 2017 that gave a positive result for cannabis.  It is not clear whether he was denying that the test took place or only that the result was positive.  In either case, the evidence of that test and result was not disputed at the hearing. 

4. When interviewed by Dr Wynn Owen on 2 August 2017, the respondent appears not to have denied the test and result for 1 June 2017.  Again, he claimed the positive readings were the result of passive smoking, as his cell mate was smoking a lot of cannabis.  He said the result was low, and suggested that was proof that it was from passive smoking.  He asserted that it would be very foolish of him to use cannabis and jeopardise the opportunity to be released.  Unfortunately, this is a refrain used by the respondent on each occasion he has returned positive results for drugs since he was released on the supervision order in 2015, albeit previously in the context of urinalysis testing in the community.  On the latter occasions, the mantra was that he would not risk the freedom he had.  On each occasion the findings of the court have revealed the hollow nature of the mantra. 

5. The applicant asked the court to rely on the evidence of Dr Grasko in the cannabis criminal proceedings in 2016 in respect of the issue of passive smoking, as the respondent had relied on that explanation for his positive result on 22 December 2015, an explanation which I rejected. Although there was no objection to my taking into account Dr Grasko's evidence, I consider that I should confine my consideration to those aspects of his evidence on which I relied in making factual findings in the cannabis criminal proceedings. It seems to me that such an approach is apposite, having regard to s 40B(4)(d) of the Act.

6. Dr Grasko's evidence was to the effect that passive smoking could result in the absorption by a person of enough THC (the active ingredient in cannabis) to bring the level of THC in their body over the cut‑off level for a positive result, but only if that person is a heavy user and already has residual THC in their system.[79]  Furthermore, the study that gave the results that support that opinion involved the subject being exposed to cannabis smoke in an enclosed environment for a period of three hours, and the amount of smoke that was evident and, therefore, was being passively smoked was such as to cause the person who was the subject of the study to put on glasses, because of the effect of the smoke on their eyes.[80] 

   [79] The State of Western Australia v Ugle [2016] WASC 252 [66].

   [80] The State of Western Australia v Ugle [2016] WASC 252 [93].

7. As the respondent appears to be suggesting to those who spoke to him about the results in May and June 2017 that the positive results could not be from using cannabis, he could hardly suggest there was residual THC in his system as a heavy user.  Further, it is implausible that he would have been in a room filled with cannabis smoke for a lengthy period without a prison officer becoming aware of the smoke.  Therefore, having regard to Dr Grasko's evidence in the criminal proceedings, the claim that the positive results were from passive smoking is implausible.  That conclusion is reinforced by other evidence that the respondent has used cannabis during his most recent period of custody. 

8. The respondent has continued to have counselling sessions with Ms Rankin while he has been in custody since November 2016.  Ms Rankin told Ms Korda that the respondent admitted using cannabis on a number of occasions since his return to custody, but claimed that he had evaded detection through methods he had developed.[81]  In cross‑examination, Ms Korda confirmed that her understanding from Ms Rankin was that she was speaking about the period after the respondent was returned to custody 'post contravention'.[82]  Of course, it is the sort of conduct the respondent has previously admitted engaging in when he was subject to a continuing detention order, before he was released on the supervision order.  It is also consistent with what he told Dr Galloghly he would do if he were returned to prison. 

   [81] Exhibit F, Ms Korda's report, 66 [14].

   [82] ts 689.

9. The respondent did not give evidence in these proceedings.  I am satisfied on the basis of Ms Korda's evidence that the respondent has admitted using cannabis in his most recent period of custody. 

10. Taking into account both the positive urinalysis results for cannabis and the respondent's admissions, I find that the respondent has used cannabis since he returned to custody, on at least two occasions, being a short time before 15 May 2017 and a short time before 1 June 2017.  As I have already noted, the respondent had been tested on four occasions from 9 December 2016 until 27 December 2016.  That was early in the period after he was placed on the interim detention order on 18 November 2016.  All of those urinalysis results were negative for all the substances for which testing was done.  He was not tested again until 15 May 2017, when he returned the first positive result for cannabis metabolites.  It is reasonable to conclude that the respondent took the risk of using cannabis because of the lack of testing for a number of months.  In any event, it demonstrates that the respondent continues to have a desire to use cannabis and problems with self‑regulation to overcome that desire. 

1. Further treatment while in custody

1. Ms Korda gave evidence about the respondent's further progress in treatment on the basis of a discussion with Ms Rankin, perusal of the counselling notes and an interview with the respondent on 26 July 2017.  She said that the respondent had engaged in 11 counselling sessions with Ms Rankin from 20 September 2016 until May 2017.  Five of those were in the community, and six occurred after he was returned to detention.  As the sessions in custody continued, the respondent increasingly denied any significant concerns.  He also maintained his denial of the substance use that had resulted in his being returned to detention.  Because the respondent had taken that stand, Ms Rankin came to the view that there was little scope for therapeutic intervention.  Although the respondent had indicated his willingness to continue the sessions, because he believed 'it would look good' for the current proceedings, Ms Rankin decided to cease the sessions until after these proceedings have been concluded. 

2. The respondent continues to describe the counselling relationship in positive terms.  He did so to both Ms Korda and Dr Wynn Owen.  While his rapport with Ms Rankin may still be regarded generally as a positive factor, it has not ensured that the full benefits of counselling, both for the respondent and the community, would be realised.  It is obvious from the history of the respondent's drug use while subject to the supervision order that he was not forthcoming about that drug use or the circumstances in his life that led to the transgressions.  It is also troubling that the respondent appears to have found satisfaction in his ability to deceive his counsellor and others in respect of his drug use.  He admitted to Ms Rankin that he had been under the influence of cannabis during counselling sessions prior to his release on the supervision order, and he felt some satisfaction not only in having avoided detection, but also in having 'pulled the wool over people's eyes'.[83]  Ms Rankin conceded to Ms Korda that it was possible there were occasions when the respondent was under the influence of cannabis and she was not aware.[84] 

   [83] ts 683 (Ms Korda's evidence).

   [84] ts 691 (Ms Korda's evidence).

3. The respondent's admission to Ms Rankin that he had used cannabis after his return to custody, and had used techniques to avoid detection, may suggest that he has become more comfortable with disclosing such information to her.  However, his subsequent denials about such use to various people, in the face of positive urinalysis results, indicate that he continues to be unreliable.  I am not satisfied that he could be relied on to disclose in counselling within the community his use of drugs or circumstances that put him at imminent risk of using drugs. 

4. When asked how he had coped under the supervision order, the respondent told Ms Korda that it was 'a little bit daunting at first' in terms of meeting his reporting requirements, but that he coped and generally adapted well in his transition to the community.  As is evident from my outline of the evidence at the hearing of 17 October 2016, it is a familiar stance.  He did not acknowledge any difficulties in complying with the conditions of the order or any significant stresses.  Ms Korda was of the view that the respondent's account to her probably minimised the reality of his experience, because some of his counselling sessions with Ms Rankin had dealt with his frustrations with some of the conditions of the supervision order. 

5. In respect of his exposure to drug use, the respondent maintained his usual refrain of having been offered cannabis and amphetamines from friends, family or acquaintances, but having been able to refuse without any difficulty.  He denied using methylamphetamine in the community, and suggested there was a conspiracy against him. 

6. When asked about a relapse prevention plan for substance use, the respondent said he did not believe there would be any future high risk situations. He said that he had been in the high risk when he was in the community and had managed successfully.  Therefore, he did not view a relapse prevention plan is something that was necessary. 

7. Ms Korda noted that, as history indicates that the respondent did in fact use drugs while he was in the community, one has to question his motivation as well as his ability to use strategies to avoid drug use.  As the respondent had maintained his stance of denial, it will be difficult in counselling to address the factors that have contributed to his lapses while he was in the community. 

8. Ms Korda concluded that, 'despite [the respondent] consistently stating to assessors over time that he had tired of the custodial setting and would avoid drug use if mandated to do so due to the adverse consequences it would have, this is not yet translated into any enduring behavioural change'.[85] 

1. Psychiatric assessment

   [85] Exhibit F, Ms Korda's report of 4 August 2017, 69 [24].

1. Dr Wynn Owen provided a diagnosis of the respondent's mental disorders and an assessment of his risk of committing a serious sexual offence. 

2. The psychiatric diagnosis was the same as that made by Dr Hall.  The respondent does not have a major mental illness, but he has an anti‑social personality disorder and a substance abuse disorder.  Dr Wynn Owen explained that a personality disorder is 'a pattern of behavioural responses and reactions that are embedded through childhood and adolescent development and, basically then persist for the rest of one's life'.[86]  That is not to say that a person with such a disorder cannot learn to lead a pro‑social life,[87] or cannot be managed, but the disorder is not amenable to treatment as such, so that the respondent's behavioural patterns that are a feature of the disorder, and which I have outlined in the course of these reasons, are likely to be repeated throughout his life.[88] 

   [86] ts 671.

   [87] ts 681.

   [88] ts 680 (where Dr Wynn Owen described the features of a personality disorder).

3. Dr Wynn Owen applied the Risk for Sexual Violence Protocol (RSVP) risk assessment tool, which provides a 'structured clinical judgement framework' that takes into account a number of factors relevant to the individual.  The factors taken into account by Dr Wynn Owen were the respondent's history of sexual violence, his psychological adjustment, his mental disorder, his social adjustment and his manageability. 

4. Dr Wynn Owen's overall assessment was that the respondent continues to present a high risk of serious sexual offending if not subject to a continuing detention or supervision order.  He said there had not been a material change in the respondent's level of risk since Dr Hall's assessment.  As I said above, in relation to Dr Hall's assessment, the conclusion is not surprising, given my findings at the annual review.  The question is whether the risk can be managed within the community if the respondent were released again subject to a supervision order. 

5. Dr Wynn Owen said that his findings on the RSVP were consistent with those of Dr Hall, except for one area.  He said:[89]

   The change that Dr Hall noted in his report around an improved therapeutic relationship and so on, that, however, is the one area that I might bring into question in that if Mr Ugle has been using drugs whilst in the community and subsequently using in prison but not acknowledging that, then one would find it very difficult to rely on his self‑report, and self-report is such a crucial component of management. 

   [89] ts 671 - 672.

6. Of course, Dr Wynn Owen proceeded on the basis that the respondent did use drugs, as found by the court.  When interviewed by Dr Wynn Owen, the respondent had maintained his denial of drug use in the community, including the use of methylamphetamine. 

7. It was Dr Wynn Owen's impression that the respondent lacks the self‑awareness that is necessary for self‑management.  In particular, the respondent lacks awareness of the impact of stress upon him.  This, of course, was a problem identified at the earlier hearing. 

8. While there were times when the respondent appears to have raised matters in counselling that were of concern to him, and perhaps even sought assistance, the impression I have of his general attitude was summed up in Dr Galloghly's assessment that the respondent had personality characteristics of 'high self‑confidence and generally being dismissive of problems or needing support'. 

9. Dr Wynn Owen considers the respondent's lack of awareness in relation to stress as a 'big risk'.  He said:[90]

   [If] one is not aware that one is stressed and that stress may potentially lead to drug use, then one is not able to manage the circumstances in which that use might occur.  Self-awareness and self-management are absolutely crucial to avoiding future offending. 

   [90] ts 673.

10. Dr Wynn Owen explained that the significance of the respondent's breach by the use of methylamphetamine is that it demonstrates that the respondent cannot be relied upon to self‑report honestly.  In particular, he cannot be relied on to disclose in advance the factors that may lead to substance use, so as to look at ways of managing those factors.  As Dr Wynn Owen put it:[91]

    If somebody is not able to reliably report such things, it is very difficult to safely supervise them. 

    [91] ts 673.

11. Dr Wynn Owen considered it to be particularly significant in terms of the respondent's risk that he was prepared to use prohibited drugs in 'extremely constrained circumstances' under the supervision order. 

12. The breach in relation to methylamphetamine use was of greatest significance because of the elevation of risk of serious sexual offending.  Dr Wynn Owen was of the view that, in light of the contravention involving the use of methylamphetamine, Dr Hall may well reconsider his opinion that there had not been a serious or enduring degradation in the manageability of the respondent's risk. 

13. Dr Wynn Owen contemplated that there may still be a prospect of managing the respondent on a supervision order if more frequent drug testing could be done, such that the detection of any substance in his system would be 'more rapid'.  However, Dr Wynn Owen appeared to have reconsidered the efficacy of such an approach in the following exchange with me:[92]

    If [methylamphetamine] has been causally linked to offending, when would you expect the offending to occur relative to the actual use of the [methylamphetamine]? --- I would expect it to occur in the context of intoxication. 

    So it would be almost immediately after? --- Almost immediately afterwards. And the detective elements that I ‑ I considered there were that Mr Ugle was residing with family, and there was a structure there in the community around him. But, yes, you're quite right; intoxication is when that risk elevates. 

    And that just leads me to the question then: of course more frequent testing might be tighter in terms of the control, but it's always going to happen sometime after the use, isn't it? --- You're absolutely correct, yes.  Always. 

    [92] ts 677.

14. The risk is that the respondent may commit a serious sexual offence while affected by methylamphetamine, before there is any opportunity to test him for that drug.  That is why the imminence of the respondent committing such an offence is greater if he uses methylamphetamine.  Dr Wynn Owen noted that, as well as potentially increasing sexual desire, methylamphetamine would also increase impulsivity.  Further, the respondent's capacities to make good decisions and solve problems would also be lost. 

15. Dr Wynn Owen agreed in cross‑examination that the imminence of sexual re‑offending would depend on the respondent's ability to manage his substance use, in particular his use of methylamphetamine, amongst other factors.  However, it seems to me that, in the case of methylamphetamine in particular, it is not a matter of the respondent managing his drug use.  Rather, there is a need for complete abstinence if the community is to be adequately protected while he is subject to a supervision order.  In my view, Dr Wynn Owen was not suggesting otherwise.  Further, while the risk may be greatest when there is a confluence of methylamphetamine intoxication and other toxic factors in the respondent's life, it would be gambling with the safety of the community to release the respondent when there is a significant risk he will use methylamphetamine.  It would only take the one occasion of such a confluence occurring, for the respondent to commit a serious sexual offence with devastating consequences for his victim. 

1. The respondent's risk is exacerbated by his lack of a plan to avoid using drugs if he were released again in the community.  Consistently with previous opinions, Dr Wynn Owen did not regard the respondent's proposal, that he would walk away from persons who are using drugs or would ask them to use the drugs elsewhere, as an adequate prevention plan.  As Dr Wynn Owen put it, the respondent's plan quite simply is that he is 'absolutely not going to use'.  For obvious reasons, Dr Wynn Owen considers this to be 'at odds with reality' and superficial. 

1. 'General' compliance with the supervision order

1. Ms Minnock gave evidence that the respondent had continued to report as required in the month between her previous report (dated 10 October 2016) and the respondent being returned to custody on the interim detention order.  He had also attended for urinalysis testing in that period and had been compliant, generally, with the GPS tracking requirements. 

2. However, little, if any, weight can be given to that month of 'general' compliance as an indication that the supervision order could provide adequate protection of the community, given that the respondent contravened the order by using methylamphetamine at the end of that period, only 25 days after the hearing of 17 October 2016.  Obviously, the respondent's compliance with other conditions did not correlate with self‑awareness or self‑management, which Dr Wynn Owen regarded as crucial to avoiding future offending.  Nor did it correlate with reliable self-reporting, which would be necessary for safe supervision of the respondent. 

3. Ms Minnock did not consider that there were any additional conditions that could be imposed to improve the management of the respondent's risk.  I note that Dr Wynn Owen had not suggested any additional condition, but had contemplated the possibility of more frequent drug testing.  Ms Minnock said that the respondent had been tested a minimum of once a week, but more likely it was at least twice and up to four times a week.  In my opinion, the frequency of testing appears to have been appropriate, given the results that were returned for the most part during 2016.  It might be thought that increasing testing to beyond four times a week could become oppressive and counter‑productive in terms of creating stress for the respondent.  Further, the resources involved in such testing must be available for all cases in which it is required (whether under the Act or within the administration of criminal justice and offender management generally).  Ultimately, the effectiveness of any supervision order must rely on the respondent's capacity for self‑management as well as the external constraints and monitoring. 

1. No suitable accommodation available

1. Ms Minnock gave evidence that there was no suitable accommodation available for the respondent at the time of the hearing.  Outcare, the agency with which he was registered and which had provided accommodation previously,  did not have a property available, although he was 'second in line' for one place if it was not taken up by another person whose case was being dealt with under the Act.  The respondent has indicated that Outcare remains his preferred provider. 

2. The respondent had indicated that he may be able to reside with his niece.  However, attempts to contact her and to have her contact DCS were unsuccessful, so no assessment had been made of her property.

3. On 3 October 2017, the court was informed by the applicant that accommodation had become available for the respondent through Outcare.  No assessment has been made yet of the suitability of the property for release of the respondent on a supervision order.  As I explain below, there would now be no purpose in assessing the suitability of the property.

1. Victim's submission

1. A submission was received under s 17A of the Act from the victim of the respondent's last sexual offence.  Under that section, a victim may make a submission to the court in relation to the need to ensure adequate protection of the victim.  To protect her privacy, I will not refer to her by name. 

2. The submission expresses understandable concerns about the respondent's potential release from detention, because of the enduring terrible impact his offending has had upon her.  However, she is no longer within this jurisdiction and the conditions of any supervision order would prevent the respondent from having any form of contact with her.[93]  In any event, the concerns expressed by the victim will be addressed by the outcome of these proceedings, which is based on the evidence to which I have referred. 

1. Submission from the respondent

   [93] The victim describes an incident that occurred after the respondent was released on the supervision order.  It involved someone contacting her and it caused her distress.  She reported the incident.  There is no evidence to indicate the respondent was involved in the incident.  Therefore, I have not taken it into account. 

1. At the conclusion of the proceedings on 25 August 2017, I allowed the respondent to make a submission personally, at his request, his counsel having concluded her submissions.  Although in some respects it included matters of evidence, those matters had largely been referred to in reports. 

2. The respondent made the point that he was 'sort of institutionalised' and that his reticence in showing or talking about his feelings should be regarded in that context and against the background of his upbringing.  He submitted that the process of getting help from people under the supervision order was new to him.  He regarded it as a 'blessing in disguise'.  It enabled him to see things from a different perspective.  However, he went on to repeat the things he had said to those who had prepared reports, along the lines that he did not think he needed a relapse plan because he had been around 'these people' every day and had not done anything.  He indicated that his relapse prevention was the legal proceedings and gaol. 

3. The respondent's submission was made in a respectful way, and I accept it as a demonstration of his capacity to engage intelligently in a discourse about his issues.  There are indications, also glimpsed in the evidence, that he can see the benefits of supervision and counselling.  However, his submission that he '[had] not done anything' must be rejected, and he continues to be misguided in his view that he does not need a meaningful relapse‑prevention plan.  Further, his appreciation of the benefits of supervision and counselling has not translated into a full commitment to the process. 

(viii)  Conclusions from the hearing of 25 August 2017

1. The respondent's use of methylamphetamine around 11 November 2016, his subsequent use of cannabis in custody and his denial of those transgressions signal either a significant deterioration of his attitude and his circumstances from his status as it was perceived by the expert witnesses at the time of the hearing on 17 October 2016, or that the perception was wrong.  There were concerns then about his lack of insight into the stresses that put him at risk of using drugs and on a path to sexual re‑offending.  There were concerns about his commitment to counselling and the sincerity of his engagement.  However, on balance, the respondent's compliance with the supervision order generally after the contraventions in December 2016, the apparent improvement in his engagement in treatment and the absence of evidence to suggest he had used drugs after those early contraventions led Dr Hall to conclude that there had not been a serious or enduring degradation in the manageability of the respondent's risk.  As Dr Wynn Owen indicated, the respondent's contravention by the use of methylamphetamine would now suggest otherwise. 

2. I accept Dr Wynn Owen's evidence that self‑reporting is a crucial component of management, and that if the respondent is not able to reliably report his use of drugs, especially methylamphetamine, or the stresses or other factors in his life that put him at risk of committing a serious sexual offence, whether directly or indirectly, it will be very difficult to safely supervise him.  It appears he lacks self‑awareness in respect of such stresses and other factors, but as Dr Wynn Owen said, self‑awareness and self-management are absolutely crucial to avoiding future offending. 

3. On the evidence in these proceedings, I am satisfied that, at this time, the respondent does not have the requisite self‑awareness or capacity for self‑management.  I am also satisfied that he cannot be relied upon to honestly report when he has used drugs.  The evidence also establishes that the respondent continues to resort to using cannabis, and the situation is really as it was in December 2016, that he will use it if he thinks he can get away with it, and he seems to think he can get away with it, at least some of the time, by using techniques to thwart the tests.  While he continues on that path, there remains a significant risk that within the community he would return to the use of methylamphetamine, as he did less than a year after his release.  His use of that drug is associated with an elevated risk of committing a serious sexual offence. 

4. It was submitted on the respondent's behalf that the fact he did not commit a sexual offence while subject to the supervision order is a significant matter, from which it may be concluded that the supervision order is capable of providing adequate protection of the community.  However, as I explained above, the strict conditions of the supervision order were intended to enable early detection of a slide into risk-laden behaviour before a serious sexual offence was committed.  That has occurred.  It does not follow that the community would be adequately protected if the respondent were to be released again on the same supervision order or one in similar terms.  It is important to remember that he was arrested soon after his positive test for methylamphetamine.  The fact that he did not commit a serious sexual offence does not mean that the risk that he would commit a serious sexual offence had not become elevated.  I am satisfied on the expert evidence that it had. 

5. For those reasons, I am satisfied that the level of the respondent's risk has risen to a point where the community can no longer be adequately protected by the conditions of the existing supervision order, and there are no other conditions that could be reasonably imposed to sufficiently mitigate that risk.

6. That is so even if suitable accommodation is now available.  Consequently, there is no purpose to be served in requiring an assessment to be made of the property now available from Outcare.

Conclusion

1. On the evidence now before the court, I am satisfied on the balance of probabilities that there is an unacceptable risk that the respondent would commit a serious sexual offence if a continuing detention order were not made. 

2. The consequence of that finding is that I will rescind the supervision order made by me on 24 November 2015 and will make a continuing detention order in respect of the respondent.  Pursuant to s 29(2)(a) of the Act, the DPP will be required to apply for a review of the detention order so as to ensure that the review is carried out as soon as possible after the end of a period of one year from the commencement of the respondent's detention pursuant to the continuing detention order. 

3. In my opinion, the prospects of the respondent being released again on a supervision order in the future will depend on him successfully achieving a number of goals.  The first is to remain abstinent from illicit substance use and to demonstrate a commitment to remaining abstinent.  Secondly, he must work in counselling to gain greater self‑awareness, especially in relation to stress.  Associated with that, he must demonstrate that he is prepared to talk about such matters.  It is time for the respondent to shed the self‑confidence in his ability to deal with any problems that may confront him in the community.  He needs to be open to assistance, and not see it as a weakness.  The respondent needs to accept the need for a more effective relapse‑prevention plan than simply walking away or saying 'no', and he needs to work with his psychologist to develop such a plan.  The respondent must be honest with his psychologist.  That may not be easily monitored, but, as Dr Wynn Owen indicated, the safe supervision of someone in the respondent's circumstances depends on that person reliably reporting those things that are likely to put them at risk of sexual re-offending.  Finally, counselling should endeavour to address the respondent's insight into the causes of his offending.  While he continues to deny most of his offending, my understanding of the evidence is that there remains scope to explore issues in that space in a manner that may provide a further level of protection of the community in due course. 

Orders

1. For the reasons I have given, I rescind the supervision order made by me on 24 November 2015. 

2. I order that the respondent be detained in custody for an indefinite term for control, care, or treatment.