The State of Western Australia v Ugle

[2022] WASC 91

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

IN CRIMINAL

CITATION:   THE STATE OF WESTERN AUSTRALIA -v- UGLE [2022] WASC 91

CORAM:   HALL J

HEARD:   8 MARCH 2022

DELIVERED          :   8 MARCH 2022

PUBLISHED           :   15 MARCH 2022

FILE NO/S:   SO 20 of 2021

BETWEEN:   THE STATE OF WESTERN AUSTRALIA

Applicant

AND

ROGER BRETT UGLE

Accused

Catchwords:

High Risk Serious Offenders Act 2020 - Restriction order application - Preliminary hearing - Whether there are reasonable grounds for believing that the court might find that the respondent is a high risk serious offender - Whether an interim supervision order should be made pending determination of the application

Legislation:

High Risk Serious Offenders Act 2020 (WA)

Result:

Orders made pursuant to s 46(2)

Interim supervision order made

Category:    B

Representation:

Counsel:

Applicant	:	Mr D S McDonnell
Accused	:	Ms A Fedele

Solicitors:

Applicant	:	State Solicitor's Office
Accused	:	Legal Aid (WA)

HALL J:

(This judgment was delivered extemporaneously on 8 March 2022 and has been edited from the transcript.)

Introduction

1. On 26 November 2021, the State of Western Australia applied for a restriction order in respect of the respondent, Roger Brett Ugle, under the High Risk Serious Offenders Act 2020 (the Act).  The preliminary hearing of the application came before me originally on 18 February 2022 and was adjourned to, and resumed, today.

2. The main purpose of the preliminary hearing is for me to decide whether there are reasonable grounds for believing that the court might find that the respondent is a high risk serious offender within the meaning of the Act: see s 46(1). 

3. The State seeks orders pursuant to s 46(2) of the Act, including orders that:

   (a)a restriction order be imposed under s 48 of the Act;

   (b)the respondent undergo an examination by a psychiatrist and by a psychologist for the purpose of preparing reports and;

   (c)that he be the subject of either an interim detention order or an interim supervision order until the final determination of the application.

4. Mr Ugle's counsel accepted that the requirements for s 46 were met and I accept that that concession was properly made.  I am also satisfied that an interim supervision order is appropriate, pending determination of a final determination of the application. 

The law

1. The main purpose of the preliminary hearing is to decide whether the court is satisfied that there are reasonable grounds for believing that the court might find that the respondent is a high risk serious offender.

2. A ‘high risk serious offender’ is a person in relation to whom the court is satisfied by acceptable and cogent evidence and to a high degree of probability that it is necessary to make a restriction order in relation to, in order to ensure adequate protection of the community against an unacceptable risk that the person will commit a serious offence. 

3. A ‘serious offence’ within the meaning of the Act relevantly includes armed robbery and grievous bodily harm.

4. I do not have to be satisfied that a restriction order will be made.  It is sufficient if there are reasonable grounds for believing that an order might be made.  To say that something might occur is to say that it is possible.  Belief is an inclination of mind towards assenting to rather than rejecting a proposition.  That there be reasonable grounds for belief requires the existence of facts which are sufficient to induce that state of mind in a reasonable person.

The evidence

1. The evidence in support of the application by the State consists of an affidavit by Daniel Sean McDonnell, affirmed on 25 November 2021, which contains Mr Ugle's criminal history and several previous reports in relation to him.[1]  

   [1] Affidavit of Daniel Sean McDonnell affirmed on 25 November 2021.

2. The State also relied on an affidavit of Heather Applin, affirmed on 17 January 2022. This affidavit related to the two possible residences proposed by the respondent, one with his partner in Kewdale and the other with his niece in Dowerin. His partner was the victim of the respondent's most recent violent offending.  Both the partner and the niece have expressed willingness to accommodate the respondent.  However, the police originally expressed some concerns due to the proximity to another victim in the case of the Kewdale address and the suitability of the Dowerin address, given that the occupants were said to have had issues with violence and anti-social behaviour.[2]

   [2] Affidavit of Heather Applin affirmed on 17 January 2022.

3. More recently I have received a further affidavit of Nadine Minnock, which was affirmed on 4 March 2022. That affidavit confirmed that the respondent has resided at the address in Dowerin previously and he may be able to secure employment with the assistance of his niece's partner. WA Police have also advised that the resident at the Dowerin address in relation to whom they had concerns was no longer living there, and they did not maintain that they had concerns in regard to the respondent residing at that address.  There has also been testing of the global positioning system, which confirms that it operates satisfactorily in the Dowerin area.[3]

   [3] Affidavit of Nadine Minnock affirmed on 4 March 2022.

4. The respondent is now 50 years old.  He has a long history of offending, including violent offending, and has spent a large part of his adult life in prison.  He also has a long history of substance abuse.  The reports reveal that he commenced drinking alcohol and smoking cannabis at a young age.  His history of offending includes convictions for a number of serious offences within the meaning of the Act, including convictions for doing aggravated grievous bodily harm and aggravated indecent assault and aggravated sexual penetration without consent.[4] In addition, he has been convicted for aggravated burglary, common assault, unlawful wounding, assaulting a public office and assault occasioning bodily harm, amongst other things. The respondent's most recent serious offending reveals a pattern of offending committed in the context of his use of drugs and alcohol.[5] 

   [4] Affidavit of Daniel Sean McDonnell affirmed on 25 November 2021, Annexure A (WA Criminal History) and Annexure C (Chronology).

   [5] Affidavit of Daniel Sean McDonnell affirmed on 25 November 2021, Annexure A (WA Criminal History) and Annexure C (Chronology).

5. The most recent offence occurred on 2 December 2017 at Kewdale where the respondent did grievous bodily harm to his partner.  The respondent and his partner had been together at home when the respondent left to deliver some alcohol to friends.  The partner was sitting outside their home waiting for him as he was taking longer than usual, and as he returned, she moved to the nearby roundabout.  The respondent was triggered by this.  He called out to her and began to verbally abuse her.  He then stopped the vehicle in the driveway and ran towards the partner yelling threats to kill her.[6]

   [6] Affidavit of Daniel Sean McDonnell affirmed on 25 November 2021, Annexure E (Transcript of sentencing proceedings before Davis DCJ in the District Court on 14 November 2019).

6. The partner backed away, asking the respondent not to hit her.  He punched her to the right side of the face using his left clenched fist, causing her to bleed.  He hit her a further two times, causing her to fall to the ground.  He then grabbed her by the hair, punched her again to the face and dragged her 15 metres on to a traffic island off the roundabout.  The respondent let go of the partner and told her to go inside the home.  She started to do so, being fearful of him. He reached their house ahead of the partner and then picked up a shovel, held it in both hands in front of his chest and yelled, 'I'll kill you, I'll bury you and I'll smash this shovel into your head'. [7]  

   [7] Affidavit of Daniel Sean McDonnell affirmed on 25 November 2021, Annexure E (Transcript of sentencing proceedings before Davis DCJ in the District Court on 14 November 2019)

7. The assault resulted in a broken jaw and nose, requiring surgery.  The injuries were considered to be of such a nature as to cause or be likely to cause permanent injury to health.  For the offence of aggravated grievous bodily harm, the respondent was sentenced to 2 years and 6 months imprisonment.[8]

   [8] Affidavit of Daniel Sean McDonnell affirmed on 25 November 2021, Annexure E (Transcript of sentencing proceedings before Davis DCJ in the District Court on 14 November 2019)

8. The respondent has a history of violent offending against female victims.  On 30 December 2001, he committed a number of offences, including aggravated indecent assault, three counts of aggravated sexual penetration without consent and aggravated burglary committed in a dwelling.  All the offences arose out of a single series of events involving the respondent and a female victim.  He approached the victim's house and knocked on a bedroom window. The victim answered the front door believing he was a regular visitor.  He inquired whether the victim wanted to smoke cannabis with him and she declined.  He then asked to use the toilet. Before the victim could answer he forced entry into the house.[9]   

   [9] Affidavit of Daniel Sean McDonnell affirmed on 25 November 2021, Annexure G (Transcript of sentencing proceedings before Yeats DCJ in the District Court on 6 October 2006).

9. The respondent forced the victim into the master bedroom and sat on the bed with her. He then removed his penis and demanded she masturbate him.  When the victim stated she did not want to, he threatened her with a clothes iron.[10]

   [10] Affidavit of Daniel Sean McDonnell affirmed on 25 November 2021, Annexure G (Transcript of sentencing proceedings before Yeats DCJ in the District Court on 6 October 2006).

10. The respondent then told the victim he wanted to have sex with her and threatened her with a crochet needle, saying he would put it inside her.  The victim indicated she did not want to have sex with him.  He then forced the victim on to the bed and held her legs open, performing cunnilingus on her.  He then raped the victim for around 20 minutes.  During this time, he put his hands around the victim's neck and choked her to stop her from struggling.[11]

    [11] Affidavit of Daniel Sean McDonnell affirmed on 25 November 2021, Annexure G (Transcript of sentencing proceedings before Yeats DCJ in the District Court on 6 October 2006).

11. The respondent then forced the victim to have a shower and threatened her with a needle or knife.  He directed the victim to digitally penetrate herself and instructed her to wash herself.  He threatened to shoot the victim if she attempted escape.  At the victim's request, they returned to the bedroom where the respondent forced her to her knees and penetrated her from behind.  He then again forced the victim into the shower and forced her to digitally penetrate herself.[12]

    [12] Affidavit of Daniel Sean McDonnell affirmed on 25 November 2021, Annexure G (Transcript of sentencing proceedings before Yeats DCJ in the District Court on 6 October 2006).

12. The respondent then forced the victim into the living room and demanded money and threatened to stab her.  He used the victim's iron to hit her in the arms, head and stomach, and wrapped an electrical cord around her neck, choking her.  The victim sustained bruising to her upper arms, head and back.  He told her he would kill her or have his family kill her if she called the police. He then stole electrical equipment (a TV, a stereo and a mobile phone) belonging to the victim and fled the scene. For these offences, the respondent was sentenced to 11 years and one month's imprisonment.[13]  

    [13] Affidavit of Daniel Sean McDonnell affirmed on 25 November 2021, Annexure G (Transcript of sentencing proceedings before Yeats DCJ in the District Court on 6 October 2006).

13. Prior to his most recent sentence, the respondent had completed a number of prison programs, including an intensive sex offender program in 2011, a ThinkFirst program in 2012, a violent offender treatment program in 2013 and a Pathways program in 2015.  While the reports from those programs suggest significant treatment gains and an incremental shift in his attitude, it is apparent that gains made in programs prior to 2017 had limited preventative effect on his further offending.[14]

    [14] Affidavit of Daniel Sean McDonnell affirmed on 25 November 2021, Annexure X (Pre-Sentence Report of Sindy Clarke, dated 15 July 2019).

14. During his current term of imprisonment, the respondent has again participated in a number of programs, including another Pathways program in 2021 and a Stopping Family Violence program in 2020.  In regard to the Stopping Family Violence program, the completion report, dated 22 September 2020, records that the respondent had been assessed as requiring the program to address a range of treatment needs.[15]

    [15] Affidavit of Daniel Sean McDonnell affirmed on 25 November 2021, Annexure AC (Parole Assessment Report prepared by Tiana Caverley, dated 24 November 2020); Affidavit of Daniel Sean McDonnell affirmed on 25 November 2021, Annexure AA (Stopping Family Violence Program Completion Report prepared by Alexandria Mikhaiel and Hannah Jacklin, dated 22 September 2020).

15. The needs identified in the report were long-term emotional difficulties, such an anxious pre-disposition, hyperactivity, and evasive misattributions of mistrust and unfair treatment. These difficulties have contributed to chronic rumination patterns, an inclination to become destabilised and an inability to regulate himself effectively during conflict or when he perceives a threat to his immediate environment.  It was also reported that his immersion in criminal networks throughout his lifetime, in both community and prison environments, had further fortified criminal attitudes centring around entitlement and retaliation for perceived harms.[16]

    [16] Affidavit of Daniel Sean McDonnell affirmed on 25 November 2021, Annexure AA (Stopping Family Violence Program Completion Report prepared by Alexandria Mikhaiel and Hannah Jacklin, dated 22 September 2020).

16. During the program, the respondent made occasional comments regarding avoiding criminal peers. However, his disclosures predominantly indicated he will likely continue to engage with such peers, who hold beliefs and attitudes supportive of offending, and that he had not shared any robust plans to mitigate risks in relation to this.[17] 

    [17] Affidavit of Daniel Sean McDonnell affirmed on 25 November 2021, Annexure AA (Stopping Family Violence Program Completion Report prepared by Alexandria Mikhaiel and Hannah Jacklin, dated 22 September 2020).

Assessment

1. I am satisfied that there are reasonable grounds to believe that a court might find that the respondent is a high risk serious offender.

2. The respondent has a significant history of violent offending, often associated with an entrenched pattern of alcohol and drug use.  There are reasonable grounds to believe that if the respondent is unable to control his problems with drugs and alcohol, he will return to the kind of spontaneous violent offending that has seen him repeatedly imprisoned in the past.

3. While the respondent has engaged in numerous treatment programs, he has only made limited progress and the most recent reports suggest that he has continuing unmet needs and a high risk of reoffending.  Though this risk has not been formally assessed by a psychologist or a psychiatrist, there is good reason to think that the nature and degree of risk presents a significant danger to the safety of the community.  

4. Mr Ugle's ongoing problems with substance abuse and his pattern of violent offending while intoxicated, together with his continuing association with anti-social peers, satisfies me that there are reasonable grounds to believe that a court might find that he has is a high risk serious offender.  I will, therefore, make orders for the hearing of the application.  

Interim supervision order

1. The State has conceded, in the light of the more recent information, that an interim supervision order (rather than an interim detention order) would be appropriate.  I am satisfied that there is jurisdiction to make such an order and that it is the appropriate outcome in the circumstances of this case. The proposed residence is one that appears to be suitable and is not near the respondent’s most recent victim.

2. Given the factors which I have referred to in dealing with my assessment of the matter, there is a need for supervision.  I will therefore make an interim supervision order in terms of the proposed draft.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.

JS

Associate to the Honourable Justice Hall

15 MARCH 2022