The State of Western Australia v Ugle [No 2]
[2023] WASC 54
•1 MARCH 2023
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL
CITATION: THE STATE OF WESTERN AUSTRALIA -v- UGLE [No 2] [2023] WASC 54
CORAM: TOTTLE J
HEARD: 22 NOVEMBER 2022
FURTHER
SUBMISSIONS : 15 FEBRUARY 2023
DELIVERED : 28 FEBRUARY 2023
PUBLISHED : 1 MARCH 2023
FILE NO/S: SO 20 of 2021
BETWEEN: THE STATE OF WESTERN AUSTRALIA
Applicant
AND
ROGER BRETT UGLE
Respondent
Catchwords:
Criminal law - High Risk Serious Offenders Act 2020 (WA) - Application for restriction order - Whether unacceptable risk that respondent will commit a serious offence if not subject to a restriction order - Whether necessary to make a restriction order to ensure the adequate protection of the community - Whether community can be adequately protected by supervision of the respondent
Legislation:
High Risk Serious Offenders Act 2020 (WA)
Result:
Supervision order made
Representation:
Counsel:
| Applicant | : | Mr B Meertens |
| Respondent | : | Mr T McCulloch |
Solicitors:
| Applicant | : | State Solicitor's Office |
| Respondent | : | Legal Aid (WA) |
Cases referred to in decision:
Director of Public Prosecutions (WA) v GTR [2008] WASCA 187; (2008) 38 WAR 307
Garlett v The State of Western Australia [2022] HCA 30; (2022) 96 ALJR 888
The State of Western Australia v Latimer [2006] WASC 235
The State of Western Australia v Patrick [No 5] [2022] WASC 61
The State of Western Australia v West [No 6] [2019] WASC 427
The State of Western Australia v ZSJ [2020] WASC 330
TOTTLE J:
Introduction
In 2019 the respondent was convicted of aggravated grievous bodily harm. The victim was his partner. The respondent served the full term of imprisonment (two years and six months) imposed in respect of the offence. Before that term expired the State applied for a restriction order under the High Risk Serious Offenders Act 2020 (WA) (the Act). On 8 March 2022 a judge of this court made an interim supervision order the effect of which was that from 14 March 2022 the respondent was released from custody pending the determination of the application. The interim supervision order required the respondent to observe 37 conditions that were imposed upon him for the protection of the community.
At the hearing of the restriction order application the respondent conceded that he satisfied the definition of a high risk serious offender.[1] It remains necessary, however, for me to consider the evidence and satisfy myself that a restriction order should be made.
[1] ts 26.
The hearing commenced on 22 November 2022 but was adjourned to enable the respondent to be assessed by an addiction medicine specialist and for a report on the assessment to be obtained.
For the reasons set out below I am satisfied that the respondent is a high risk serious offender and I am satisfied that a supervision order should be made.
The statutory framework and relevant principles
The central provisions of the Act and the principles that govern their application are as follows:
(a)The objects of the Act are twofold: first, to ensure the adequate protection of the community and of victims of serious offences and, secondly, to provide for the continuing control, care or treatment of high risk serious offenders.[2]
[2] High Risk Serious Offender Act 2020 (WA) (the Act) s 8. The term 'community' is defined to include any community and is not limited to the community of Western Australia or Australia, see the Act s 4.
(b)The powers conferred by the Act are not to be exercised for the purpose of imposing additional punishment on an offender. The scheme of the Act requires that the court do no more than is necessary to achieve an adequate degree of protection for the community.[3]
[3] The State of Western Australia v Latimer [2006] WASC 235 [25]; The State of Western Australia v Patrick [No 5] [2022] WASC 61 [56]; Garlett v The State of Western Australia [2022] HCA 30; (2022) 96 ALJR 888 [85], [229] - [230].
(c)The Act provides for the community to be protected by making restriction orders in respect of high risk serious offenders. There are two types of restriction order: a continuing detention order, the effect of which is to detain an offender in custody after he has served his sentence; and, a supervision order, the effect of which is to release the offender into the community subject to compliance with conditions designed to monitor and control an offender's behaviour. Thus, the community may be protected by the provision of care and treatment to the offender while in custody in the hope that the danger posed to the community or sections of it will be reduced or by control continuing to be exercised over the offender in the community.
(d)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 to ensure adequate protection of the community against an unacceptable risk that the person will commit a serious offence.[4]
[4] The Act s 7(1).
(e)An offence is a serious offence if, among other offences, it is specified in sch 1 div 1 of the Act or it is specified in sch 1 div 2 of the Act and is committed in the circumstances indicated in relation to that offence in div 2.[5]
[5] The Act s 5(1).
(f)For the purpose of considering whether the court is satisfied that an offender is a high risk serious offender the court must have regard to each of the matters specified in s 7(3) of the Act.
(g)The State carries the onus of satisfying the court that an offender is a high risk serious offender.[6]
[6] The Act s 7(2).
(h)The court must make a restriction order if it finds that the offender is a high risk serious offender.[7]
[7] The Act s 48(1).
(i)The expression 'high degree of probability' connotes a standard of proof that is higher than the civil standard but less than the criminal standard and is otherwise incapable of further definition.[8]
[8] Director of Public Prosecutions (WA) v GTR [2008] WASCA 187; (2008) 38 WAR 307 [28], [34]; The State of Western Australia v West [No 6] [2019] WASC 427 [6] ‑ [24]; The State of Western Australia v ZSJ [2020] WASC 330 [47].
(j)The court must assess the level of risk that the offender will commit a serious offence or serious offences of the nature identified in the evidentiary materials supporting the application.[9]
[9] Garlett v The State of Western Australia [220].
(k)The requirements that the risk be 'unacceptable' and that the restriction order be 'necessary' to ensure 'adequate' protection of the community direct attention to whether the identified risk to the community can be tolerated. That assessment must be made in light of the whole of the burden which would be placed upon the liberty of the offender by the making of a restriction order, including the imposition of any standard supervision order conditions. In this respect the Act does not envisage the possibility that a restriction order will be made to prevent the commission of a serious offence unless the risk of further re‑offending involves a real threat of harm to the community. The evaluative exercise the court must undertake involves balancing the level of the risk that the offender will commit a serious offence together with the magnitude of the harm associated with that risk against the burden that would be placed upon the liberty of the offender by a restriction order for an offence that they have not committed.[10]
(l)The court may assess the level of risk that an offender will commit a serious offence at less than 50% yet still find that to be an unacceptable risk.[11]
(m)In deciding whether to make a continuing detention order or a supervision order the paramount consideration is the need to ensure the adequate protection of the community.[12]
(n)Section 29 of the Act limits the power of the court to make a supervision order rather than a continuing detention order. The section provides the court cannot make a supervision order unless it is satisfied on the balance of probabilities that a respondent will substantially comply with the 'standard conditions' of a supervision order. There are seven standard conditions specified in s 30(2). They include a condition that the offender will not commit a serious offence during the period of the order. The other conditions concern reporting and notification obligations, requirements that the high risk serious offender comply with directions from Community Corrections Officers, that the offender does not leave the State and that he be subject to electronic monitoring.
[10] Garlett v The State of Western Australia [84], [226] - [227].
[11] The State of Western Australia v West [No 6] [24]; The State of Western Australia v ZSJ [47].
[12] The Act s 48(2).
The evidence
The evidence comprised a book of materials containing relevant information on the respondent's prior offending, his conduct in prison, previous reports, sentencing remarks, and reports prepared for the present application by the following:
(a)Dr Gosia Wojnarowska, a consultant forensic psychiatrist;
(b)Dr Dylan Galloghly, a forensic psychologist;
(c)Ms Tara Stagg, a high risk serious offender planning manager; and
(d)Ms Tanya Elliott and Ms Kay-Marie Gibbens, team leader and manager respectively at Northam Adult Community Corrections Centre (ACC).
Each of the report writers listed above gave evidence and was cross‑examined at the hearing on 22 November 2022.
A statement of Police Sergeant Adrian Bailey dated 18 November 2022 was included in the book of materials and was accepted into evidence without the need for his attendance to give oral evidence. Sgt Bailey is the officer in charge of the Police Station in the town in which the respondent lives.
In addition to the initial reports to which I have referred a report from Dr Wendy Lawrance, the addiction medicine specialist, who assessed the respondent, was received into evidence. Dr Lawrance was not required to attend for cross-examination. The parties were given leave to file and serve written submissions in relation to her report.
The respondent is a high risk serious offender
I will begin by addressing the considerations to which regard must be had - the s 7(3) considerations. It is helpful to begin with the respondent's antecedents and offending history.
Antecedents and offending history - s 7(3)(g)
Personal antecedents
The respondent was born in Narrogin, Western Australia on 8 July 1971 and is currently 51 years old. The respondent is an Aboriginal man and resides in the central Wheatbelt area. He is the second of five siblings in a blended family. The respondent did not know his father because he died during the respondent's infancy. After his father's death, the respondent's mother was in a de facto relationship and three sons were born to that union. The respondent's formative years were marred with physical abuse, alcoholism and neglect, mainly perpetrated by his step‑father.
The respondent's mother died when the respondent was 13 years old and thereafter, he was placed in foster care. Often the respondent fled from the foster homes to his maternal grandmother's home. When the respondent was 14 years of age he was sexually abused.
The respondent has an extensive history of substance abuse commencing with cannabis use as an adolescent that escalated to daily alcohol and methamphetamine use. The respondent told Dr Lawrance that he started injecting methamphetamine when he was 16 years of age. A pre‑sentence report dated 7 July 2006, recorded that the respondent's daily substance abuse had escalated to 30 ‑ 40 cones of cannabis and sharing two cartons of beer.
The respondent was expelled from high school in Year 10 for fighting. Since leaving school, the respondent has participated in occasional employment of a labouring nature. The respondent reported that following his release from custody in March 2022 he was employed on a sessional basis as a lamb docker for a local shearing contractor. The respondent told Dr Lawrance that currently he works as a fencer. These reports have not been verified by Community Corrections Officers,[13] though Sgt Bailey's evidence provides confirmation that the respondent was working at a 'brushcutting' business.
[13] ts 83.
The respondent has been in a relationship with his current partner for 29 years. They have seven children and seven grandchildren. The respondent lives in a small country town in the Wheatbelt with his niece, her partner and their family. Although the respondent does not live with his partner they spend time together.
Offending history
The respondent has an extensive criminal history commencing as a juvenile. In the table below I set out details of the index offence, prior serious offences and other relevant offences not falling within the definition of 'serious offences' under the Act:
| Index Offence | ||||
| Offence Date | Offence | Description | Outcome Date | Outcome |
| 2 December 2017 | 1 x Aggravated grievous bodily harm | The victim (the respondent's de facto partner) was waiting for the respondent to return home and went to a nearby roundabout to wait. The respondent returned and started verbally abusing the victim. The respondent punched the victim numerous times in the face. The respondent grabbed a shovel and threatened to kill the victim. The victim suffered a broken jaw and required surgery on her nose. | 14 November 2019 | Two years and six months imprisonment |
| Prior Serious Offences | ||||
| 19 March 1989 | 1 x Attempted aggravated sexual assault 1 x Attempted sexual penetration | The respondent (17 years old) was drinking with a group of people. The victim was invited for a drink. The group left leaving just the victim and the respondent present. The victim tried to leave but the respondent took hold of her and threw her down. The respondent unzipped his pants and removed the victim's underwear. The respondent threatened to kill the victim if she did not comply. The respondent attempted to penetrate the victim but was unable to do so because the victim struggled violently. | 31 October 1989 | 18 months imprisonment |
| 30 December 2001 | 1 x Aggravated indecent assault 3 x Aggravated sexual penetration without consent | At 4.20 am, the respondent knocked on the victim's house. The victim opened the door and after a brief conversation the respondent forced entry into the house. The respondent forced the victim into the master bedroom, removed his penis and demanded she masturbate him. The respondent threatened her with a clothes iron. The respondent told the victim he wanted to have sex with her and threatened her with a crochet needle. The respondent performed cunnilingus and inserted his penis into the victims' vagina. The respondent had non-consensual sex with the victim for 20 minutes while choking her and putting her hands above her head. The respondent forced the victim to have a shower and digitally penetrate herself and threatened the victim if she did not comply. The respondent penetrated the victim with his penis for a second occasion for a considerable period. The respondent forced the victim to shower and digitally penetrate herself again. The respondent was also charged with one count of aggravated burglary and commit offence in dwelling. | 8 September 2006 | Total effective sentence: 11 years and one month (reduced from 17 years and one month on appeal) |
| Other relevant offending | ||||
| 28 November 1990 | 1 x Common assault | The respondent approached the victim and punched him in the ribs and the cheek. | 17 January 1991 | $500 fine |
| 4 October 1991 | 1 x Assault occasioning bodily harm | The respondent struck the victim on the head with a wheel rim, causing a 5 cm cut which required stitches. | 15 November 1991 | One month imprisonment |
| 22 September 1992 | 1 x Assaulting a public officer | When arrested on a warrant for another matter, the respondent resisted violently. The respondent's hand was bleeding from a prior injury and he flicked the blood from his hand in the face of the police officer. | 23 September 1992 | Three months imprisonment |
| 15 May 1993 | 1 x Unlawful wounding 1 x Attempted unlawful wounding | The respondent attempted to stab his de facto partner with a pair of scissors while she was holding their 20-month-old son. The respondent missed his de facto partner and instead stabbed his son's forehead. The wound required stitches. | 21 October 1993 | Two years probation 240 hours community supervision order |
| 24 November 2001 | 1 x Common assault | The respondent became aggressive and threatened the victim at his house. The respondent punched the victim from behind in the jaw. The respondent punched the victim while he retreated and the victim fell over, hitting his back on the porch railing. The respondent punched the victim twice in the body while on the ground. | 6 October 2006 | Six months imprisonment |
| 30 December 2001 | 1 x Aggravated burglary and commit offence in dwelling | After the serious offences which took place on 30 December 2001, the respondent demanded money and threatened to stab the victim. The victim said she had no money. The respondent used the victim's iron to hit her arms, head and stomach and wrapped an electrical cord around her neck, choking her. The respondent said he would kill her and her family if she called the police. The respondent took some electrical equipment, tv, stereo and mobile phone and fled the scene. | 8 September 2006 | Total effective sentence: 11 years and one month (reduced from 17 years and one month on appeal) |
Prison behaviour
While serving the sentence of imprisonment imposed for the index offence the respondent was involved in nine disciplinary incidents. The most serious of these was that he tested positive for methylamphetamine use on 4 March 2021. There were two other instances of misconduct for which the respondent received a sanction or a warning. Six incidents resulted in no further action.
Reports prepared as required by s 74 of the HRSO Act - s 7(3)(a)
Dr Wojnarowska interviewed and assessed the respondent on two occasions. The first interview took place on 9 September 2022 but ended early at the respondent's request because he was distressed by a recent death in his family. The second interview took place on 5 October 2022. During the second interview, the respondent was more relaxed and open. Dr Wojnarowska noted that the respondent became agitated on one occasion when the conditions of a possible supervision order under the Act were discussed. The respondent regained control quickly and apologised for his behaviour.
Dr Galloghly interviewed and assessed the respondent on 19 July 2022 and 4 October 2022. Dr Galloghly described the respondent's demeanour as 'mainly warm and co-operative'.[14] He noted the respondent, 'communicated feeling frustration and a sense of injustice at being considered with the HRSO Act'.[15]
Psychiatric Diagnosis
[14] Exhibit 1, p 573.
[15] Exhibit 1, p 573.
Both Dr Wojnarowska and Dr Galloghly diagnosed the respondent with Substance Use Disorder. Dr Wojnarowska noted that the former condition is in partial remission since the respondent's most recent period of imprisonment. While the respondent does not have a cognitive impairment, Dr Galloghly observed the respondent to be slow in processing certain problems, which could be attributed to not understanding non-simple instructions or cannabis use.
Dr Wojnarowska diagnosed the respondent with Antisocial Personality Disorder, while Dr Galloghly diagnosed the respondent as having Antisocial Personality Disorder traits. Dr Galloghly was unable to make a full diagnosis of Antisocial Personality Disorder because there was insufficient evidence that the respondent had conduct disorder prior to the age of 15.[16]
Risk of sexual reoffending
[16] ts 50.
Dr Wojnarowska and Dr Galloghly assessed the respondent's risk of sexual reoffending using a combination of actuarial measures and structured professional judgment instruments. Each of Dr Wojnarowska's and Dr Galloghly's assessments used the Static‑99R actuarial assessment for sexual recidivism in adult male sexual offenders, the Risk for Sexual Violence Protocol (RSVP), and the Psychopathy Checklist - Revised (PCL‑R), an instrument used to assess psychopathy.
Dr Galloghly referred to the reasons why the results of the Static‑99R assessment should be regarded with caution when used in relation to Aboriginal offenders.
Dr Wojnarowska also used the '3-Predictor model', an approach based on a retrospective analysis of the file date of 1,838 adult male WA Indigenous offenders who have been identified as requiring violent or sexual offender programs. The result of this analysis indicated that the three factors that best predicted sexual reoffending are unrealistic long‑term goals, unfeasible release plans and poor coping skills prior to release.
Dr Wojnarowska reported the respondent's Static‑99R score was seven, placing him at risk level IVb (Well Above Average Risk) for being charged or convicted of another sexual offence. The sexual recidivism rate at the five‑year mark for a score of seven is between 18 ‑ 25%. Similarly, Dr Galloghly placed the respondent at a risk level of IVb (Well Above Average Risk) with a Static‑99R score of six. The sexual recidivism rate at the five‑year mark for a score of six is between 15.8 ‑ 19.6%. The average sexual recidivism rate in the routine sample over the same period is between 5 and 15%.
I have recorded the results of the assessments undertaken by the experts using the Static‑99R instrument but I do not attach significant weight to the results of the assessments viewed in isolation. I attach much greater weight to the opinions expressed by the experts in their concluding analyses based on the results of the entirety of their clinical assessments.
Neither clinician assessed the respondent as reaching the threshold for psychopathy using the PCL‑R.
The RSVP framework involves looking at 22 individual risk factors over five domains, the domains being: sexual violence history, psychological adjustment, mental disorder, social adjustment and manageability.
Dr Galloghly assessed the respondent as presenting with 11 out of the 22 risk factors on the RSVP, those being: physical coercion in sexual violence, problems with stress and coping, problems with self‑awareness, problems resulting from child abuse, substance use problems, problems with intimate relationships, problems with non‑intimate relationships, problems with treatment and problems with supervision.[17] Dr Wojnarowska assessed the respondent presenting with the risk factors identified by Dr Galloghly and the following additional risk factors: escalation of sexual violence, extreme minimisation/denial of sexual violence and problems with planning.
[17] Exhibit 1, p 588. I note that Dr Galloghly's report only lists nine risk factors in his assessment.
Dr Galloghly observed that the respondent's risk of sexual reoffending based on static/historic factors alone is well above average but his risk of sexual recidivism based on the RSVP incorporating dynamic risk factors was assessed as being moderate. Overall, Dr Galloghly considered that the respondent's risk of sexual reoffending could be viewed as being 'Above Average'.[18] That view was tempered by Dr Galloghly's evidence that the respondent presented with no indications of sexual deviancy and he did not have a chronic history of sexual offending. In his oral evidence Dr Galloghly said that the respondent was not at a high risk of imminent sexual offending.[19]
Risk of violent reoffending
[18] Exhibit 1, p 589.
[19] ts 59, 62.
Dr Wojnarowska and Dr Galloghly used the Spousal Assault Risk Assessment Guide Version 3 (SARA‑V3), a set of structured professional judgment guidelines for the assessment and management of the risk of 'Intimate Partner Violence'. The SARA‑V3 consists of 23 risk factors that are divided into three domains. The first domain comprises factors relating to the nature of past Intimate Partner Violence. The second domain comprises 'Perpetrator Risk Factors' and the third domain comprises 'Victim Vulnerability Factors' which reflect the psychosocial adjustment and background of the victim or potential victim.
Dr Wojnarowska identified the presence of a greater number of risk factors than Dr Galloghly. This is explicable by Dr Galloghly's focus on the presence of risk factors in the 12 months preceding the assessment (though he noted there were documented claims of long term intimate violence behaviours) and by the difficulty in assessing 'Victim Vulnerability' risk factors because of a lack of information from the respondent's partner and the denial by her of a history of chronic domestic violence.
Dr Galloghly evaluated the respondent's risk of engaging in intimate partner violence as being 'moderate'.[20] Dr Galloghly expressed the opinion that the respondent's risk of engaging in intimate partner violence is primarily associated with substance use, emotional dysregulation, relational issues and antisocial traits. Dr Wojnarowska did not categorise the respondent's risk of intimate partner violence by reference to terms such as 'moderate' but I infer from her discussion of the application of the SARA‑V3 guidelines that she assessed the risk of intimate partner violence as being at least as high as Dr Galloghly's assessment.
[20] Exhibit 1, p 589 - 590.
Dr Galloghly recorded that he considered the respondent's imminent risk of sexual and intimate partner violence as low given the respondent's motivation towards rehabilitation and prosocial orientation taken in conjunction with current monitoring and supervision measures. Dr Galloghly stated that emotional dysregulation through significant substance abuse, particularly alcohol and methamphetamine could be viewed as the primary pathway for increased risk and reoffending.
Risk scenarios
Dr Galloghly identified two risk scenarios in which the respondent might reoffend. The first scenario concerned the possibility of the respondent committing serious intimate partner violence within his relationship. Any such violence would likely be preceded by warning signs of intimidation, threats or general disharmony. In Dr Galloghly's assessment, however, there is no evidence that this scenario is currently likely and he considered that possible warning signs could be monitored within the supervision procedures in place under the interim supervision order.
The second scenario might see the respondent sexually reoffend, which would only be likely if he is intoxicated. Using amphetamines or methamphetamines increases the likelihood of this kind of offending given its effects on the respondent's sexual drive and overall disinhibition. Dr Galloghly stated there is no evidence that this scenario is currently likely and would typically be preceded by the respondent returning to an antisocial lifestyle and a pattern of regular substance abuse.
Dr Wojnarowska emphasised the danger that the respondent might respond to life stressors by using methamphetamine and that once he had engaged in drug use he would find it difficult to stop. She considered that the respondent might commit non‑sexual violence against his partner. If the respondent were to re-offend in a sexual manner it is likely that the offending would occur when the respondent was disinhibited and overtly sexualised under the influence of alcohol and illicit substances. The potential victim is likely to be an adult female who is a stranger to him. The violence may escalate to the use of a weapon resulting in serious physical harm to the victim and any person who attempts to intervene. Dr Wojnarowska emphasised that the respondent's risk is likely to escalate with amphetamine and alcohol use but is less likely with cannabis.
Experts' conclusions
In Dr Wojnarowska's concluding analysis of the respondent's offending she expressed these views:[21]
OPINION
128. Mr Ugle has a dense history of offending and breaching community orders. Currently his long term goals are realistic however he has not developed a feasible plan to remain offence free as he continues to use methamphetamine. His current motivation to change and insight which were present during programmatic interventions are therefore questionable.
129. His proclaimed readiness to engage in psychological counselling, employment and the support of prosocial peers may not outweigh the quoted risk factors outlined above as demonstrated by Mr Ugle's behaviour currently and in the past. In my opinion if Mr Ugle is not made subject to the relevant order under the HRSO Act, he is at high risk of reoffending in a serious violent and/ or sexual manner as defined by the Act.
130. Irrespective of the type of the order that Mr Ugle receives if subject to HRSO Act, the treatment should focus on his dependence on illicit substances and his emotional and behavioural dysregulation.
131. I formulated this opinion based on Mr Ugle's clinical presentation and using the actuarial tools as outlined in my report.
[21] Exhibit 1, p 614 - 615.
RECOMMENDATION
132. If Mr Ugle is made subject to a community order under the HRSO legislation the following will assist him to remain offence free in the community.
133. Drug and Alcohol Program: Mr Ugle should continue to engage in drug and alcohol counselling. Given his recent relapse into methamphetamine use, residential drug rehabilitation program is recommended.
134. Psychological Treatments: The therapeutic intervention should focus on outstanding needs relating to anger, violence, childhood trauma, entitlements and antisocial personality variables as well as assisting with more robust emotional management and coping skills and exploration of factors that contributed to intimate partner violence.
135. Stable employment and accommodation cannot be understated in the benefits in Mr Ugle remaining offense free. Mr Ugle should be encouraged and assisted to maintain his current employment.
136. If Mr Ugle were to provide a positive urinalysis sample for methamphetamine in the community, this should be dealt with immediately as it would be an indication of increased risk of reoffending
137. If Mr Ugle remains in the community subject to a [supervision order], the duration of the order should be of a minimum 5 years, during which time Mr Ugle will have an opportunity to undergo treatment of his drug dependence and demonstrate his ability to adhere to conditions and commitment to remain substance and alcohol free.
In oral evidence Dr Wojnarowska confirmed her conclusion that the respondent is at a high risk of reoffending in a sexual manner and in a non-sexual violent manner should he not be placed on an order under the Act.[22] Dr Wojnarowska explained that her primary reason for viewing the respondent as a high risk was due to his methamphetamine use:[23]
Doctor, after utilising the risk assessment tools and the structured clinical guides which are stated in your report, what was your overall assessment of Mr Ugle's risk of serious reoffending?---In my view, it was high.
Okay. Is that in that – does that apply to both sexual offending and non-sexual violent offending?---In my view, it relates to both. The reason is that, in Mr Ugle's case, any type of offending is causally related to methamphetamine use. He does not possess any other risk factors, for example, for sexual offending, such as sexual deviance. So his risk of violent offending is at the times when he is intoxicated with methamphetamines.
[22] ts 32.
[23] ts 32.
In examination-in-chief, Dr Wojnarowska held that '[a]nything that would lead to intoxication, be it with cannabis, alcohol or any other substance, prescribed or illicit, would be a risk factor in his offending because that would impair his judgment'.[24] In absence of intoxication, cannabis would not be a particular relevant risk and Dr Wojnarowska concluded that there has been no evidence to indicate intoxication by cannabis.[25]
[24] ts 34.
[25] ts 39 - 40.
Dr Wojnarowska was concerned that if there were any clusters of methamphetamine use within a short period of time that the respondent's risk would be significantly elevated. At the time of the hearing, Dr Wojnarowska concluded that there was no elevated risk.[26]
[26] ts 39.
In Dr Galloghly's concluding analysis he stated:[27]
[27] Exhibit 1, p 592.
SUMMARY AND RECOMMENDATIONS
99. Based on the current assessment of risk, Mr Ugle presents as a moderate to above average risk of serious intimate partner and sexual violent offending if not subject to restrictions associated with the HRSO Act (2020). Substance abuse remains his most prominent risk factor. He has yet to adequately address this problem. He also continues to have significant problems with emotional regulation and antisocial peer associations.
100. Mr Ugle's behaviour on an interim supervision order suggests that he is trying to transition towards a prosocial lifestyle. However, he continues to breach his order by using drugs and he struggles to fully extricate himself from antisocial peer influence. These issues would likely be more extensive if he was not subject to restrictions, monitoring and supervision.
101. Mr Ugle's enduring substance use problems indicate that psychological treatment alone is insufficient. He would benefit from engaging in adjunct treatment options including medical/pharmacotherapy options. Further offending-focused treatment programs are not recommended. Particular recommendations are as follows:
Treatment
ØPrioritisation of additional substance abuse treatment as well as continuing his counselling with Holyoake.
ØContinuing individual counselling provided by the FPIT.
ØConsideration to be given for relationship counselling.
Monitoring
ØRegular urinalysis testing and monitoring of substance use within Mr Ugle's relationships and social interactions.
ØRestrictions on areas where alcohol and substance use are prevalent (i.e., entertainment precincts and parks known for antisocial and substance use).
ØMonitoring of stress and conflict within his relationship with [the respondent's partner].
Supervision
ØSupervision would benefit from being collaborative and using simple instructions as Mr Ugle may struggle with more complex directions.
102. Should Mr Ugle be made subject to further HRSO Act (2020) restrictions, it would be beneficial to continue support of his prosocial endeavours that are protective. His rehabilitation would also profit from him viewing treatment, monitoring and supervision as an impermanent strategy geared towards him finally addressing his substance use problems.
Any other medical, psychiatric, psychological or other assessment relating to the person - s 7(3)(b)
Dr Lawrance's report
The purpose of obtaining a report from Dr Lawrance was to explore the possibility, raised by Dr Galloghly's evidence,[28] that there may be pharmacological therapies that could assist in the treatment of the respondent's addiction to methamphetamine.
[28] ts 64.
Dr Lawrance was asked to express opinions on a number of matters. On the central question of whether the respondent was suitable for pharmacological treatment Dr Lawrance said:[29]
There are no medications approved by the Therapeutic Goods Administration (TGA) for the treatment of amphetamine or cannabis use disorders. Many existing medications have been investigated, mostly as relapse prevention agents, and some as substitution therapy. Several systematic reviews in the last 5 years have found that there are no medications with sufficient evidence to recommend their use in routine practice. There are some for amphetamine use disorder which show limited and variable efficacy in studies which could be considered for Mr Ugle, both being relapse prevention agents. They are naltrexone, either as a tablet taken orally or as a subcutaneous long‑acting implant (not TGA registered, used under the TGA Special Access Scheme), or bupropion, also a tablet. There is early evidence that a combination of naltrexone and bupropion may be more effective than either alone.
[29] Exhibit 2, p 2 - 3.
Dr Lawrance discussed how pharmacological treatment could be administered, the health effects, cost and other related issues. She summarised her recommendations as follows:[30]
[30] Exhibit 2, p 4.
•I do not recommend mandatory pharmacological treatment due to lack of treatments with adequate evidence base of sufficient efficacy, and due to the importance of self-determination and internal motivation in addressing [Substance Use Disorder]
•I strongly recommend that Mr Ugle continue with drug and alcohol counselling which he is already accessing through Holyoake, Northam
•Mr Ugle has expressed a desire to reconnect with his indigenous culture. I have suggested he make enquiries at the Aboriginal Medical Service in Northam to see if they are aware of any relevant local services. Other services which will be more available in Perth are
oReSet , Wungening Aboriginal Corporation, or
oAboriginal Family Support Program, Cyrenian House
•Clinical psychology may be helpful to address past trauma and its current impacts
•Given that Mr Ugle's reported craving is very intermittent and related to specific situations, counselling is likely to be the most effective way to address that. If he is finding craving difficult to manage, he could consider trying some of the pharmacotherapy options discussed above.
Treatment Options Report
Ms Stagg provided a Treatment Options Report dated 9 November 2022 which summarised the respondent's participation in rehabilitation programs and the reports of Dr Wojnarowska and Dr Galloghly.
Ms Stagg stated that should the respondent be placed on a restriction order and remain in the community, individual psychological counselling with the Forensic Psychological Intervention Team would remain available. Additionally, substance use counselling with Holyoake would be accessible.[31]
[31] Holyoake is a non-government organisation that provides substance abuse counselling and treatment.
Should the respondent be subject to a continued detention order, Ms Stagg stated that psychological intervention would be needed. Ms Stagg explained that because neither Dr Wojnarowska nor Dr Galloghly identified any group-based programs as suitable for the respondent's treatment needs, the possibility of engaging in group‑based programs has not been explored.
Community Supervision Assessment Report
Ms Elliott and Ms Gibbens endorsed a Community Supervision Assessment dated 3 November 2022 which provided a helpful summary of the respondent's history and the issues to be addressed in the event that the court should make a supervision order.
Substance use
During his interim supervision order, the report stated that the respondent demonstrated a good level of commitment to his reporting requirements, keeping in regular contact with his supervising officer and Northam Adult Community Corrections (ACC) by telephone and in person. As outlined below the respondent has, however, experienced difficulty in abstaining from substance use.
Since the imposition of the interim supervision order in March 2022, the respondent has tested positive in 19 out of 37 drug tests for illicit substances. Further, on four occasions, the respondent provided a void urine sample and on one occasion, the respondent failed to attend a test.
The history of the respondent's urinalysis testing as set out in the report is as follows:[32]
[32] Exhibit 1, p 628.
Date of Test
Location of Test Result 28.03.2022 Northam Pathwest Positive - Cannabis 08.04.2022 Northam Pathwest Creatinine level below the cut-off/void 12.04.2022 Northam Pathwest Negative 14.04.2022 Northam Pathwest Negative 22.04.2022 Northam Pathwest Negative 28.04.2022 Northam Pathwest Negative 04.05.2022 Western Diagnostics Pathology - Midland Failed to attend 06.05.2022 Northam Pathwest Creatinine level below the cut-off/void 12.05.2022 Northam Pathwest Creatinine level below the cut-off/void 20.05.2022 Northam Pathwest Positive - Cannabis 24.05.2022 Northam Pathwest Negative 03.06.2022 Northam Pathwest Positive - Cannabis 13.06.2022 Northam Pathwest Positive - Cannabis 20.06.2022 Northam Pathwest Positive - Cannabis, Methylamphetamine and Amphetamine 27.06.2022 Northam Pathwest Positive - Cannabis 04.07.2022 Northam Pathwest Positive - Cannabis 11.07.2022 Northam Pathwest Positive - Cannabis 18.07.2022 Northam Pathwest Negative 25.07.2022 Northam Pathwest Negative 01.08.2022 Northam Pathwest Negative 04.08.2022 Northam Pathwest Negative 08.08.2022 Northam Pathwest Negative 12.08.2022 Northam Pathwest Negative 15.08.2022 Northam Pathwest Rescheduled - no transport 16.08.2022 Northam Pathwest Rescheduled by ACC 22.08.2022 Northam Pathwest Creatinine level below the cut-off/void 26.08.2022 Northam Pathwest Positive - Cannabis 01.09.2022 Northam Pathwest Positive - Cannabis 06.09.2022 Northam Pathwest Positive - Cannabis 12.09.2022 Northam Pathwest Positive - Cannabis 19.09.2022 Northam Pathwest Positive - Cannabis 27.09.2022 Northam Pathwest Positive - Cannabis and Methylamphetamines 11.10.2022 Northam Pathwest Positive - Methylamphetamines and Cannabis and low creatinine 14.10.2022 Northam Pathwest Positive - Cannabis, Methamphetamine and Amphetamine and low creatinine 19.10.2022 Northam Pathwest Positive - Cannabis 26.10.2022 Northam Pathwest Positive - Cannabis 31.10.2022 Northam Pathwest Positive - Cannabis and low creatinine
The respondent has been prosecuted in respect of the contraventions of the interim supervision order constituted by his substance use and has received fines totalling $4,945.50.
After the respondent admitted to cannabis use and the subsequent confirmation of that use by urinalysis he was referred to drug and alcohol counselling with Holyoake in Northam. Between 20 June and 10 October 2022 the respondent attended six counselling sessions.
Before attending counselling with Holyoake, the respondent attended eight psychological counselling sessions organised through the Departmental Psychological Service. The psychological counselling sessions were suspended while the respondent attended drug and alcohol counselling with Holyoake. The respondent has also engaged with ACC by telephone on 66 occasions between 8 March and 20 October 2022.
The Community Supervision Assessment Report noted that the respondent has engaged three separate counsellors with Holyoake and the service provided the following information on his engagement:[33]
[The respondent] understands the correlations between (Alcohol and Drug Use) AOD use and offending behaviour, and the impacts this has had, not only for himself but also his family. He is highly motivated in working towards positive changes. Currently the approach is working on triggers, such as stress and how this may influence AOD use, looking at strategies for relapse prevention. [The respondent] engages well in session and is keen to attend AOD education. Due to staffing and COVID not all appointments could be fulfilled by the service.
[33] Exhibit 1, p 626.
While the respondent's engagement has been encouraging, the respondent's relapse into methamphetamine has been a concern, with the report stating:[34]
To date [the respondent] has been engaging with his supervising officer as directed on a weekly basis. [The respondent] demonstrates a good level of commitment to his reporting requirements, keeping in regular contact with his supervising officer and Northam ACC, via telephone and in person. However, since his relapse into methylamphetamine use [the respondent] has been agitated, antagonistic and he has a tendency to blame ACC for his poor compliance and current circumstances. Moreover, [the respondent] is of the mindset his continued illicit drug use will not result in harm to others, only to himself.
Accommodation
[34] Exhibit 1, p 623.
As noted earlier the respondent resides in a central Wheatbelt town some distance from Northam with his niece, her partner and their children at their property.
The respondent has the support of his sister, niece, nephew, his aunt, his children, extended family and his partner. Many members of his family have been in contact with ACC in Northam to articulate their support for the respondent.
The respondent works with his niece's partner and they often share transport.
An alternative accommodation option proposed for the respondent is that he live with his daughter in a suburb of metropolitan Perth. The option was not investigated. In any event, both Dr Wojnarowska and Dr Galloghly consider it preferable for the respondent to live in the Wheatbelt area because the respondent's drug use appears to escalate when he frequents the metropolitan area.
Proposed supervision order
The report set out some 40 conditions the authors recommended be included in a supervision order if the court decided that a supervision order should be made.
Propensity to commit serious offences in the future - s 7(3)(c)
In this context propensity means that the offender has an inclination or tendency, or a disposition to commit serious offences either generally, in a particular way, or upon a particular type of victim.[35]
[35] Director of Public Prosecutions (WA) v GTR [178].
The evidence that the respondent has a propensity to commit serious sexual offences is limited. The serious sexual offending of which the respondent was convicted occurred in 1989 when the respondent was 17 years of age and in 2001 when he was 30 years of age. Very serious though those offences were, given the elapse of time between the offending and the absence of other serious sexual offending, I am not satisfied that they disclose a propensity to commit serious offences of a sexual nature.
The respondent has a more extensive history of violent offending unrelated to sexual offending and I am persuaded that he has a propensity to commit violent offences and that when angered his lack of self-restraint is such that there is a serious risk those will be serious offences.
Whether there is a pattern of offending behaviour - s 7(3)(d)
There is a pattern of offending behaviour. The respondent's offending is linked to his abuse of methamphetamine either alone or in combination with alcohol and cannabis. As recorded in the expert reports, the respondent offends when he is intoxicated and disinhibited. The offending behaviour follows a pattern of intoxication leading to disinhibition followed by offending.
Efforts to address offending behaviour - s 7(3)(e)
The respondent has participated in the following courses while in custody: Intensive Sex Offender Treatment Program in 2011, Think First Program (Sex Offender) in 2012, Violent Offender Treatment Program in 2013, Pathways Program in 2014 - 2015, Stopping Family Violence Program in 2020 and the Pathways Program in 2021. The reports of the respondent's participation in these programs were generally positive and spoke of gains made by the respondent but identified the need for further therapy to assist the respondent to understand the causes of his offending and develop strategies for reducing the risk of further offending.
In addition, since his release in accordance with the interim supervision order the respondent has participated in the counselling to which I have referred earlier.
Whether or not the participation in any rehabilitation program has had a positive effect - s 7(3)(f)
In my assessment the respondent's participation in the rehabilitation programs has had a positive effect. I have the impression that the respondent is motivated to rehabilitate himself and lead a pro‑social life. The work the respondent must do to consolidate the benefits he has derived from his participation in the programs is substantial. In particular, the respondent faces difficulty in overcoming his addiction to methamphetamine, and his reliance on cannabis as a method of relieving his stress, is not to be underestimated. The respondent cannot approach his substance use on the basis that he is only harming himself. He must accept the reality that his substance abuse does lead to offending which has caused serious harm to his victims.
There are, however, reasons for cautious optimism both in relation to the respondent's use of methylamphetamine and his behaviour generally. In relation to methylamphetamine use there was only one urinalysis result that tested positive for methylamphetamine use while the respondent was in custody between September 1999 and March 2022 and that was in March 2021. Four episodes of methylamphetamine use have been detected by urinalysis since the respondent's release on the interim supervision order, a period of approximately six months. It would be naïve to ignore the possibility that the respondent used methylamphetamine on other occasions but the rate of detected use coupled with the reports from his partner (referred to later) suggest that he has had some success in managing his addiction.
Further, in terms of the respondent's conduct generally both Dr Wojnarowska and Ms Elliottt gave evidence to the effect that the respondent's compliance with the conditions of his interim supervision order had been relatively good.[36]
The risk that a serious offence will be committed if a continuing detention or supervision order is not made - s 7(3)(h)
[36] ts 35, 85 - 86.
I am satisfied that there is a risk that the respondent will commit a serious offence if a restriction order is not made. The factor that bears most on the degree of risk is the respondent's substance misuse, in particular his misuse of methamphetamine. I have referred to this risk factor at some length already but its significance was emphasised by this evidence from Dr Wojnarowska:[37]
Okay. And, Doctor, do you have any view on – and if so, what is it, on whether Mr Ugle's risk of serious reoffending could be adequately managed in the community, if he's released on a supervision order containing, for example, the proposed conditions which are in the community supervision assessment report?---Well, if he does abstain from methamphetamines, yes. If he doesn't, then, in my view, his risk would be such that it wouldn't be manageable.
[37] ts 35.
Notwithstanding my expression of cautious optimism, given the difficulty faced by the respondent in overcoming his addiction to methamphetamine and the connection between methamphetamine use and the risk scenarios posited by Dr Wojnarowska and Dr Galloghly, the risk that he will commit a serious offence is a material risk.
The need to protect members of the community from that risk - s 7(3)(i)
The risk of serious reoffending by the respondent carries with it the risk of very serious harm being suffered by the victims of such reoffending. It may be remembered that having inflicted injuries on the victim of the index offence including a broken jaw and an injury to her nose that required surgery, the respondent threatened to kill her with a shovel. The need to protect members of the community, especially those close to the respondent from violence of this nature, is self-evident.
Any other relevant matters - s 7(3)(j)
I have referred earlier to the respondent's relationship with his partner. The respondent has a long relationship with his partner. As is demonstrated by the index offence it has been (to use his partner's expression) a turbulent relationship. That said, his partner is reported to have said of the relationship (in September 2022), 'things are fine at the moment, and [she] isn't worried about anything. [She] knows to call if things start to go downhill'.[38]
[38] Exhibit 1, p 634.
The respondent's partner has been described as a 'substance user' and Dr Wojnarowska has expressed concerns to the effect that this may increase the respondent's substance use and the risk of offending. Clearly, this is an issue of concern but on the other hand the respondent's relationship with his partner, and in conjunction with that relationship, his children and grandchildren, provide support for the respondent and motivate him to live a prosocial life, as does his position as an elder within his community. The fact that since being in the community the respondent has found employment is also a positive protective factor. Provided to use his partner's expression 'things don't go downhill' these are all matters that provide the respondent with some stability and may thus assist with his rehabilitation.
Reference must also be made to Sgt Bailey's evidence. In his statement Sgt Bailey described his interactions with the respondent since his release into the community. The impression gleaned from Sgt Bailey's evidence is generally a positive one. The Sergeant has been responsible for testing the respondent for alcohol use and reported that all of the tests have been negative. He described the respondent's domestic arrangements and confirmed that the respondent worked with his niece's partner. The Sergeant stated that he had observed the respondent interacting with his partner and that it appeared to him that they were spending significant time together. He stated that he had neither received nor heard of any reports of family violence involving the respondent.
Reasons for concluding the respondent is a high risk serious offender
The evidence adduced by the State is cogent and taken in its totality satisfies me to a high degree of probability that it is necessary to make a restriction order in respect of the respondent to ensure the adequate protection of the community against an unacceptable risk that he will commit a serious offence. The matters to which I attach particular importance are:
(a)the respondent's offending history, especially the extreme level of violence involved in the index offence;
(b)the aspects of the respondent's personal history and the psychological make-up canvassed by Dr Wojnarowska and Dr Galloghly in their reports; and
(c)the respondent's substance use disorder and the connection between the respondent's substance use and his offending.
Continuing detention order or supervision order
I turn now to my evaluation of the considerations bearing upon whether the respondent should be detained pursuant to a continuing detention order or whether he should continue to live in the community under the terms of a supervision order. My evaluation precedes on the premise that, subject to being satisfied that the respondent will substantially comply with the standard conditions, the order that should be made is the one which is the least invasive or destructive of the respondent's right to liberty, whilst ensuring an adequate degree of protection for the community.
I have referred extensively to the evidence of Dr Wojnarowska and Dr Galloghly. In summary the effect of their evidence is that the respondent could be managed in the community if he were the subject of a supervision order provided that his use of methylamphetamine could be managed.[39]
[39] ts 35, 52 - 53.
The respondent's breaches of the interim supervision order involving the use of methylamphetamine and cannabis give rise to a reservation as to whether he can be managed in the community. Dr Wojnarowska observed that the frequency with which the respondent contravened the condition prohibiting the use of illicit substances is 'quite rare'.[40]
[40] ts 36.
A number of observations may be made.
(a)Substance use disorder is a psychiatric condition and the respondent's entrenched history of drug abuse is such that his chronic dependency on cannabis as a mechanism for coping with life's stresses will take time to overcome and that relapses into methylamphetamine uses are not unexpected. Dr Wojnarowska confirmed that relapses into methylamphetamine use are likely to occur at times of great stress,[41] and Ms Elliott said it was her understanding that there had been a number of deaths in the respondent's family since his release in March 2022.[42]
(b)The respondent's dependency on cannabis is a concern because of the possibility that the respondent may be intoxicated and use methylamphetamine. The significance of the respondent's cannabis use must be assessed in the context of his compliance overall with the terms of the interim supervision order. Caution is required to avoid an overly reductionist approach which sees the respondent's inability to overcome his dependency on cannabis resulting in a continuing detention order and a consequent deprivation of his liberty.
(c)There was no evidence that the respondent's cannabis use had led to intoxication. In this respect Dr Wojnarowska's gave evidence to the effect that although the respondent is a heavy user of cannabis it is likely he has achieved a level of tolerance.[43]
(d)My impression is that while the respondent has the capacity to behave, and has behaved from time to time, antagonistically towards the Community Corrections Officers with responsibility for supervising him, he has generally behaved responsibly and is motivated both to overcome his substance use problems and to stay out of prison.
(e)If a supervision order is made the respondent will be subject to a degree of supervision, control and assistance in terms of ongoing therapeutic intervention that he had not experienced before committing the index offence. The regime established by the supervision order should enable Community Corrections Officers to detect any signs of increasing substance abuse, emotional dysregulation and other indications that the respondent's risk of offending is increasing.
(f)Related to (e), the respondent's family, especially his partner, are supportive of the respondent and provide stability. Given that the respondent's partner was the victim of the index offence, it is not unreasonable to expect that she will let Community Corrections Officers know, if, as she says, 'things start to go downhill'. Sgt Bailey's evidence provides support for the view that the respondent has made a relatively positive start to resuming his role within his family and his wider community. That the respondent has provided negative tests for alcohol use is encouraging.
[41] ts 36.
[42] ts 84.
[43] ts 44 - 45.
Having regard to the matters to which I have referred I am satisfied, on the balance of probabilities, that the respondent will substantially comply with the standard conditions of a supervision order and, that in the respondent's circumstances as described in these reasons, the totality of the conditions to be included in a supervision order will provide adequate protection of the community against the risk that the respondent would commit a serious offence.
At the hearing I discussed with Dr Wojnarowska and Dr Galloghly and the Community Corrections Officers whether the usual condition included in supervision orders to the effect that the offender must not possess or use prohibited drugs should exclude cannabis, that is, whether cannabis should be carved out from the restriction order. This discussion proceeded from the premise that, given the respondent's history, there was no expectation that he would abstain totally from cannabis use and there was little or no practical benefit from commencing regular contravention proceedings in respect of cannabis use.
Having reflected on the views expressed in the course of the evidence, with some hesitation, I consider that the condition concerning the possession and use of prohibited drugs should prohibit the use or possession of cannabis by the respondent.
I am concerned that varying the usual condition by carving out cannabis may be misunderstood by the respondent. The respondent's dependency on cannabis is relevant to his risk of reoffending for the reasons to which I have referred. It is important that the Community Corrections Officers should not only have, but they should be understood by the respondent to have, unrestrained discretion to test for and assess the respondent's use of cannabis. It is important also that the respondent understands the importance of engaging in substance abuse counselling to overcome his cannabis dependency (as well as his addiction to methylamphetamine) and that the Community Corrections Officers support and encourage him in his attempts to do so.
Repeatedly prosecuting the respondent for contravening the supervision order by using cannabis is unlikely to have any beneficial effect, or indeed any practical utility, but I think it is preferable to leave the discretion to whether to commence contravention proceedings in respect of cannabis use with those who have responsibility for supervising the respondent rather than to remove that discretion pre-emptively.
The conditions of the supervision order that I propose are set out in the appendix to these reasons. The address at which the respondent resides will be suppressed. I will hear from counsel as to the precise terms of the supervision order.
Appendix
_______________________________________________________________________
PROPOSED SUPERVISION ORDER MADE BY THE HON JUSTICE TOTTLE
ON 28 FEBRUARY 2023
_______________________________________________________________________
Pursuant to section 48(1)(b) of the High Risk Serious Offenders Act 2020 (WA), the Court, having found that the Respondent is a high risk serious offender within the meaning of section 7(1) of the High Risk Serious Offenders Act 2020 (WA), makes a supervision order in relation to the Respondent, for a period of five years from 1 March 2023, not being a date not earlier than 21 days from the date this Order is made, on the following conditions:
You, ROGER BRETT UGLE, must:
STANDARD CONDITIONS REQUIRED BY THE HRSO ACT
Report to a Community Corrections Officer at Midland Adult Community Corrections, Unit 1, 3 - 7 The Crescent Midland, within 48 hours of imposition of the Order and advice the officer of your current name and address.
Report to and receive visits from, a Community Corrections Officer as directed by the court.
Notify a Community Corrections Officer of every change of your name, place of residence, or place of employment at least 2 business days before the change happens.
Be under the supervision of a Community Corrections Officer, which includes, complying with any reasonable direction of the Officer (including a direction for the purposes of section 31 or 32).
Not leave, or stay out of, the State of Western Australia without the permission of a Community Corrections Officer.
Not commit a serious offence during the period of the Order.
Be subject to electronic monitoring under section 31.
ADDITIONAL CONDITIONS
Residence
Take up residence at [the respondent's residence], and spend each night at that address or at a different address only if such different address is approved in advance by a Community Corrections Officer (CCO) assigned to you.
Reporting to a CCO and supervision by a CCO
Report to, and receive visits from, a CCO at times and at places as directed by the CCO and comply with the lawful orders and directions of a CCO.
Disclose to the CCO the name and details of any paid or unpaid employment, education, training or volunteer work in which you intend to commence.
Attendance at programs or treatment
Consult and engage (attending all appointments) with any psychiatrist, medical practitioner, psychologist, counsellor, mentor and/or support service nominated by a CCO, as directed by a CCO, including any programs or intervention to completion, designed to address your offending behaviour.
Reporting to WA Police
Report to WA Police at times and at locations as directed by a CCO or WA Police.
If requested, permit Police Officers to enter and search your person, residence and/or vehicle for the purpose of monitoring your compliance with your obligations under this Order and allow the seizure of any such items that the Police Officer believes to contravene the conditions of the Order.
Remain at your premises and/or vehicle when Police Officers conduct a search under the High Risk Serious Offenders Act 2020.
Disclosure/Exchange of Information
Agree to the exchange of information between persons and agencies involved in the implementation and supervision of this order, including confidential information.
Allow the CCO, WA Police, or other person or agencies approved by the CCO, to interview any associates or potential associates (including peers and partners) and, where appropriate to disclose to them confidential information including your offending history.
Restrictions on contact with Victims
Not behave in an intimidatory, offensive, or emotionally abusive manner towards the victim of the index offence, [the respondent's partner].
Except for in relation to [the respondent's partner] have no contact, directly or indirectly, with the victims of your violent or sexual offending, unless such contact is conducted in accordance with agreements made through, or approved by, the Victim-offender Mediation Unit of the Department of Justice.
Unless contact with victims is permitted pursuant to the previous condition, you must immediately physically withdraw from any situation or location in which contact is made with any victim of your violent or sexual offending (including being in the immediate presence of any victim) without engaging in conversation with any victim whether by word or gesture, and must avert your gaze from such victim at all times.
Curfew
Be subject to a curfew, pursuant to section 32 of the High Risk Serious Offenders Act 2020, such that you are to remain at and not leave your approved address as directed by a CCO from time to time.
When subject to a curfew under this order, present yourself for inspection at the front door or front yard of your approved address, or speak on the telephone, to any CCO or Police Officer or their agent monitoring your compliance with the curfew.
When subject to a curfew under this order, you must ensure that all those people present in the residence, who may answer the telephone or door, are aware as to your obligations and request their assistance to comply with your obligations by alerting you to such attempts to contact you by persons monitoring your compliance with the curfew.
Prevention of high-risk situations
Not possess, consume or use alcohol without prior approval of a CCO.
Not to possess, consume or use any prohibited drugs, plants or substances to which the Misuse of Drugs Act 1981 applies, including, but not limited to, cannabis, unless the drug has been prescribed for you by a person duly authorised under the Medicines and Poisons Act 2014, and your use is in accordance with the instructions of the prescriber.
Attend for, and submit to, urinalysis or other testing for alcohol or prohibited drugs as directed by the CCO or by a Police Officer including accompanying such persons to an appropriate location for such testing to take place.
Provide a valid sample pursuant to Condition 25.
Not go or remain at any licensed premises unless permitted or required to do so for the following reasons:
a)For the purpose of averting or minimizing a serious risk of death or injury to yourself or another person;
b)For a purpose, and for a duration, approved in advance by a CCO;
c)On the order of a CCO or Police Officer.
Not to remain in the presence of any person who you know, or ought to know, to be affected by prohibited drug or under the influence of alcohol, unless the identity of such person is approved in advance by a CCO.
Not remain in any place where prohibited drugs are being consumed or, if such a place is your approved address, withdraw from that part of the residence in which any such consumption is taking place, or remove the persons consuming prohibited drugs from your residence.
Not to apply for, acquire or hold a licence to possess or be in possession of any firearm, any ammunition or any offensive or prohibited weapon, replica or dangerous article.
Not to be armed in any way that may cause fear when in public locations without a lawful reason/excuse.
As directed by your CCO, make full disclosure regarding your past offending and the current order to anyone with whom you commence a friendship, domestic, romantic, sexual or otherwise intimate relationship, which disclosure can be confirmed by a CCO or a Police Officer.
Not to enter any residential address in which a female resides or is known to reside with the exception of your daughter, granddaughters, biological siblings, nieces and partners of your son's and Aunties, unless authorised in advance by a CCO.
With the exception of your daughter, granddaughters, biological siblings, nieces, partners of your sons and aunties, not permit any female to enter any residential address in which you reside, unless the identity of such person is approved in advance by a CCO.
With the exception of public transport, not enter in or on any vehicle with any female or where a female is present (whether that vehicle is under your control or not), with the exception of your daughter, granddaughters, biological siblings, nieces, partners of your sons and aunties, unless the identity of such person is approved in advance by a CCO.
Upon request, permit a CCO or WA Police at any location nominated by them, to access any computer, telecommunication and/or device capable of storing digital data, for the purpose of ascertaining your computer, telecommunication and/or electronic device related activities, and provide to the CCO or WA Police upon request any passwords or any other means used to unlock or access the device.
Not delete or otherwise remove and/or disguise, or cause or allow to be removed and/or disguised, any data including but not limited to calls, Short Message Service (SMS), search histories or logs capable of identifying your activities on that computer, telecommunication and/or electronic device, whether or not the device is capable of connecting to the internet, without the approval in advance by a CCO or WA Police.
Maintain a daily diary of your movements, activities and associations if and as directed by the CCO and present such diary to the CCO and/or a Police Officer upon request.
To disclose and provide reasonable details of your activities, movements and the associations you come into contact within the community, when reasonably requested by your CCO.
You must not assault, threaten, insult or use abusive language to a member of the departmental staff or an agent providing a service on behalf of the Department of Justice.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
OK
Associate to the Honourable Justice Tottle
1 MARCH 2023
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