The State of Western Australia v Ugle [No 6] - [2020] WASC 215

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL

CITATION:   THE STATE OF WESTERN AUSTRALIA -v- UGLE [No 6] [2020] WASC 215
CORAM:   FIANNACA J
HEARD:   1 MARCH, 7 & 10 MAY 2019
DELIVERED          :   12 JUNE 2020
PUBLISHED           :   12 JUNE 2020
FILE NO/S:   DSO 2 of 2014
BETWEEN:   THE STATE OF WESTERN AUSTRALIA
Applicant

AND

WARREN JOHN UGLE
Respondent

Catchwords:

Dangerous sexual offender - Review of continuing detention order - Whether respondent a serious danger to the community - Whether continuing detention order should be affirmed

Legislation:

Dangerous Sexual Offenders Act 2006 (WA)

Result:

Continuing detention order affirmed

Category: B

Representation:

Counsel:

Applicant	:	Mr B Meertens
Respondent	:	Ms M R Barone SC (1 March 2019) & Mr D Jones (7 & 10 May 2019)

Solicitors:

Applicant	:	The State of Western Australia
Respondent	:	Barone Criminal Lawyers

Case(s) referred to in decision(s):

Director of Public Prosecutions (WA) v Hart [2019] WASC 4
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 Ugle [No 5] [2017] WASC 280
Director of Public Prosecutions (WA) v Unwin [No 3] [2013] WASC 178
Director of Public Prosecutions (WA) v Williams [2007] WASCA 206; (2007) 35 WAR 297
The State of Western Australia v A [2018] WASC 250
The State of Western Australia v Corbett [No 5] [2017] WASC 115
The State of Western Australia v Latimer [2006] WASC 235
The State of Western Australia v Ugle [2016] WASC 252
The State of Western Australia v Ugle [2017] WASC 111
The State of Western Australia v Ugle [2017] WASC 280

FIANNACA J:

The application and outcome

This is a review of a continuing detention order (CDO) under the Dangerous Sexual Offenders Act 2006 (WA) (DSO Act) made by me in respect of the respondent on 4 October 2017. The review was heard on 1 March 2019 and 7 May 2019. At the end of the hearing on 7 May 2019 I reserved my decision. On 10 May 2019 I gave my decision affirming the CDO. I gave short reasons, substantially in terms of the summary which follows and the conclusions at the end of these reasons. I said I would publish detailed reasons in due course. These are my reasons for affirming the CDO.

Summary of findings

On 6 October 2014, at the conclusion of div 2 proceedings under the DSO Act, Simmonds J made a CDO in relation to the respondent.[1]
[1] Director of Public Prosecutions (WA) v Ugle [No 2] [2014] WASC 369 (Ugle [No 2]).
On 24 November 2015, upon a review of that CDO, I rescinded the order and made a supervision order in relation to the respondent.[2] The respondent was released on that order on 24 November 2015.
[2] Director of Public Prosecutions (WA) v Ugle [No 3] [2015] WASC 452 (Ugle [No 3]).
The respondent subsequently breached the order on at least two occasions by using prohibited drugs, namely cannabis and methylamphetamine. In the contravention proceedings that followed, I rescinded the supervision order and made the CDO on 4 October 2017.[3]
[3] Director of Public Prosecutions (WA) v Ugle [No 5] [2017] WASC 280 (Ugle [No 5]).
In my reasons for that decision, I expressed the opinion that, on the basis of the evidence in those proceedings, the respondent's prospects of release on a supervision order in the future would depend on him successfully achieving seven goals.[4] Those goals were not preconditions for future release. The only criteria that determine the appropriate order to be made in any particular case are those set out in the DSO Act. However, the goals related to factors that were relevant to the respondent's risk of committing a serious sexual offence and the capacity of a supervision order to adequately protect the community against that risk. They continue to be relevant factors.
[4] Ugle [No 5] [202].
On the evidence presented in this review, I am satisfied to a high degree of probability that the respondent continues to be a serious danger to the community, in that there is an unacceptable risk that if he is not subject to a CDO or a supervision order, he would commit a serious sexual offence.
On the evidence before me, I am not satisfied that the respondent's attitude has matured sufficiently for the court to find, on the balance of probabilities, that he will comply with the standard conditions of a supervision order, or have confidence that he would comply with the additional conditions of such an order, including abstinence from drug use. His strategies for avoiding drug use have not developed in any meaningful way since I made the detention order. There remains a concern that he boasts about his capacity to readily 'beat' any urinalysis test.
Even if I had come to a different conclusion in that regard, that would not be the end of the matter. I would still need to be satisfied that the conditions of a supervision order overall would provide adequate protection of the community. I am not satisfied they would. There is, at the very least, a doubt that such protection can be achieved by a supervision order.
Having decided to affirm the CDO, I will address at the conclusion of these reasons what I consider will be necessary to improve the respondent's prospects of release on a supervision order in the future.

Background

These reasons are to be read in conjunction with my reasons in Ugle [No 5]. In those reasons I summarised the history of the matter. The following summary is sufficient to outline the background and chronology of the matter for present purposes.
The respondent has a history of serious sexual offending dating back to 12 January 1992. He has served lengthy periods of imprisonment for offences committed on four separate occasions. The offending 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's use of drugs, especially methylamphetamine, was a significant contributing factor to his offending.
The respondent was sentenced on 7 April 2009 to imprisonment for 5 years. Before the completion of that sentence by the respondent, the applicant commenced proceedings under the Act for an order that the respondent be subject to a CDO or a supervision order on the basis that he was a serious danger to the community (as provided for in s 7(1) the DSO Act); that is, it was contended 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.
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 first CDO).[5] His Honour was not satisfied that the community could be adequately protected at that time against the respondent's risk of committing a serious sexual offence by the making of a supervision order.
[5] Ugle [No 2].
At the time the first CDO 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. Accordingly, on 24 November 2015 I made orders rescinding the first CDO and ordering that the respondent be released on a supervision order.[6]
[6] Ugle [No 3].
On 27 January 2016, the applicant brought an application which commenced contravention proceedings against the respondent. The respondent had contravened his supervision order on two occasions. He had done so by using a prohibited drug, namely cannabis, in contravention of condition 24 of the supervision order. The evidence of the breaches on each occasion was a positive urinalysis result for the relevant drug.
In relation to the first two breaches, the respondent was charged with offences, under s 40A of the DSO Act, of breaching a requirement of the supervision order ('the criminal proceedings'). The contravention proceedings were commenced after the applicant was charged under s 40A. They remained pending until the conclusion of the criminal proceedings. The trial in respect of the charges was conducted before me on 27 June and 1 July 2016. On 19 July 2016 I acquitted the respondent of the first charge, but convicted him of the second charge.[7] I adjourned sentencing of the respondent until after the contravention proceedings were concluded.
[7] The State of Western Australia v Ugle [2016] WASC 252.
Subsequently, before the hearing of the contravention proceedings, I was asked to determine on the balance of probabilities, as a preliminary question of fact, whether the respondent used cannabis between the date of his release on the supervision order and 1 December 2015. I explained the circumstances giving rise to that request in Ugle [No 5].[8]
[8] Ugle [No 5] [13] – [14].
On 5 August 2016 I heard argument and delivered my decision on the preliminary issue. I found that the respondent had used cannabis during the first month of his supervision order.[9]
[9] Director of Public Prosecutions (WA) v Ugle [No 4] [2016] WASC 259 (Ugle [No 4]).
The contravention proceedings were then conducted before me on 17 October 2016. At the conclusion of that hearing, I reserved my decision.
The respondent had been on bail in respect of the s 40A charges from the time he was charged, and he was again released on bail pending sentencing after he was convicted of one of the offences on 19 July 2016. He had also been allowed to remain at liberty in the contravention proceedings, subject to an undertaking that he would comply with the conditions of the supervision order. That continued to be the case after the hearing of 17 October 2016.
On 21 November 2016, the respondent was charged with an offence under s 40A of the DSO Act arising from his alleged use of methylamphetamine. The respondent was convicted of that charge by Corboy J on 13 April 2017.[10]
[10] The State of Western Australia v Ugle [2017] WASC 111.
The contravention proceedings were heard by me on 5 August 2016, 17 October 2016, and 25 August 2017. On the evidence adduced in the proceedings, I was satisfied that there was an unacceptable risk that the respondent would commit a serious sexual offence if a CDO was not made. Consequently, on 4 October 2017, I rescinded the supervision order made by me on 24 November 2015 and made the CDO in respect of the respondent.[11]

Reasons for making the CDO on 4 October 2017

[11] Ugle [No 5].

It is not necessary to canvass the evidence or findings in the contravention proceedings in 2016 and 2017, except by reference to my conclusions. In Ugle [No 5], at [139] ‑ [140], I first explained the conclusions I had reached from the proceedings up to 17 October 2016, and the need to review those conclusions, as follows:
The respondent's belief leading up to the hearing of 17 October 2016 that his contraventions would be regarded as relatively minor was misguided. It demonstrated a concerning persistent lack of insight that put him at risk of further relapse into drug use with a potential downward spiral into serious sexual offending. The revelations in the contravention proceedings of his dishonesty in reporting and his capacity for deception in the drug testing regime undermined the confidence the court could have in the efficacy of a supervision order. However, the evidence of the respondent's compliance with the supervision order in other respects, the absence of positive urinalysis results since 22 December 2015 and the apparent improvement in his attitude towards supervision and treatment since mid August 2016 suggested his situation was not irretrievable. Dr Galloghly had expressed the view that since the early contraventions the respondent had acted appropriately, despite being under considerable stress. Dr Hall had expressed the view that the respondent's risk remained high but 'still manageable'.
In all the circumstances, had the evidence rested there, I would not have been satisfied on the balance of probabilities that, as at 17 October 2016, the point had been reached where the community could no longer be adequately protected against the respondent's risk of serious sexual offending by the existing supervision order. However, it is now necessary to have regard to developments since then.
At [194] – [199] I gave the following reasons for rescinding the supervision order and making the CDO after the proceedings were concluded on 25 August 2017:
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 reoffending. 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.
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.
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.
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.
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.
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.
It will be seen from the above that the key factors in my decision were as follows:
(1)The respondent appeared to lack self-awareness in respect of stresses or factors in his life that put him at risk of committing a serious sexual offence. Such self-awareness was necessary if he was to avoid offending in the future.
(2)The respondent also appeared to lack adequate capacity for self‑management. Such capacity was also necessary if he was to avoid future offending.
(3)The respondent had demonstrated that he could not be relied upon to self‑report honestly when he had used drugs.
(4)If the respondent could not be relied upon to be honest in reporting 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 would be very difficult to supervise him safely within the community.
(5)While the respondent continued to believe that he could get away with using drugs, at least some of the time, by using techniques that thwarted any testing for his use of drugs, there remained a significant risk that the respondent would return to the use of methylamphetamine within the community. The use of that drug was associated with an elevated risk of the respondent committing a serious sexual offence.

The goals set for the respondent to achieve

After determining that a CDO was to be made, I identified a number of goals that the respondent would need to achieve in order to improve his prospects of being released again on a supervision order in the future.
In summary, those goals were that the respondent:[12]
(1) remain abstinent from illicit substance use and demonstrate a commitment to remaining abstinent;
(2)work in counselling to gain greater self-awareness, especially in relation to stress. Associated with that goal, I noted that the respondent must demonstrate that he is prepared to talk about such matters and show that he is open to assistance;
(3)shed his misplaced self-confidence in his ability to deal with any problems that may confront him in the community;
(4)be open to assistance and not see it as a weakness;
(5)accept the need for an effective relapse-prevention plan, and work with his psychologist to develop such a plan;
(6)be honest with his psychologist; and
(7)endeavour, through counselling, to address the deficiencies in his insight into the causes of his offending.
[12] The State of Western Australia v Ugle [2017] WASC 280 [202].
While those goals do not constitute conditions that must be met before the respondent can be released on a supervision order, if he continues to be a serious danger to the community, they provide guidance as to the issues to be considered in determining whether, on the evidence presented in these proceedings, the respondent's circumstances have changed sufficiently to enable his risk of committing a serious sexual offence to be managed adequately in the community under a supervision order. Before turning to the evidence in these proceedings, I will set out the statutory framework and legal principles that govern the consideration of that evidence and the issues I must determine.

Statutory provisions and legal principles applicable in these proceedings

When a person is in custody pursuant to a CDO, the detention must be reviewed by the court, on application by the DPP, in accordance with pt 3 of the Act. The first review must occur as soon as practicable after the end of a period of one year commencing on the first day on which the person is in custody solely on the basis of the CDO.
The purpose of a review is to determine whether the person continues to be a serious danger to the community and, if so, whether the appropriate order is continuing detention or release of the respondent subject to a supervision order (i.e. an order that he be subject to stated conditions that the court considers appropriate, which must include a number of standard conditions).[13] If the person is no longer a serious danger to the community, the detention order must be rescinded.[14] If the person continues to be a serious danger to the community, the court must either affirm the CDO or rescind that order and make a supervision order.[15] In making that decision, the paramount consideration is the need to ensure adequate protection of the community.[16]
[13] DSO Act s 33, read with ss 3 (definitions), 17 and 18.
[14] DSO Act s 33(1)(a).
[15] DSO Act s 33(1)(b).
[16] DSO Act s 33(3).
The legal principles applicable on a periodic review and the appropriate approach to the decision to be made between continuing detention and a supervision order have been identified and discussed in a number of authorities and were canvassed by me in some detail in Director of Public Prosecutions (WA) v Pindan [No 3](Pindan [No 3]).[17] Subject to the requirement now in s 33(4) (see below), which was not in operation at the time of Pindan [No 3], the principles and approach discussed in the earlier authorities continue to apply. In particular, I respectfully adopt Hall J's analysis of the annual review process in Director of Public Prosecutions (WA) v Unwin [No 3][18] (Unwin [No 3]), which his Honour reiterated, with some elaboration, in The State of Western Australia v Corbett[No 5].[19] The key principles may be summarised as follows.
[17] Director of Public Prosecutions (WA) v Pindan [No 3] [2017] WASC 107 [22] - [32].
[18] Director of Public Prosecutions (WA) v Unwin [No 3] [2013] WASC 178 [14] - [18].
[19] The State of Western Australia v Corbett[No 5] [2017] WASC 115.
Detention under the DSO Act is not punishment for past offending; it is a protective mechanism designed to prevent the risk of future serious sexual offending from being realised. As Hall J noted in Unwin [No 3], it is a significant thing to deprive a person of his liberty, not for something he has done but for something that he might do in the future.[20] The review process is intended to allow for the possibility of a change of circumstances. If circumstances change such that the risk of reoffending reduces, it may be that the risk is no longer unacceptable if the person is not subject to a detention order or supervision, or it may be that the adequate protection of the community against the risk can be achieved by the making of a supervision order; in other words, the risk can be reduced to an acceptable level by the making of a supervision order.
[20] Unwin [No 3] [15].
Although, in practice, there is usually little prospect that expert evidence on a review will call into question the previous finding that the respondent was a serious danger to the community,[21] the first question the court must consider, nevertheless, is whether it is satisfied to a high degree of probability, on acceptable and cogent evidence, that there remains an unacceptable risk that the respondent will commit a serious sexual offence if not subject to a CDO or supervision.[22] If the court is so satisfied, then, in deciding whether to affirm the detention order or release the respondent on a supervision order, the court should choose the order that is least invasive of the person's right to be at liberty, whilst ensuring an adequate degree of protection of the community.[23]
[21] Pindan [No 3] [51].
[22] DSO Act s 33(1)(a), read with s 7.
[23] The State of Western Australia v Latimer [2006] WASC 235; Director of Public Prosecutions (WA) v Williams [2007] WASCA 206; (2007) 35 WAR 297 [79] (Williams).
When considering whether a supervision order would adequately protect the community, it is necessary to take into account any conditions which can be placed on such an order to ensure that protection. The use of the word 'adequate' indicates that a qualitative assessment is required. It cannot simply be assumed that the protection of the community will always favour detention, as the most assured form of prevention.[24] However, because of the paramount consideration, if, having regard to the evidence concerning possible conditions which might be imposed in a supervision order under s 33(2), the court is left in doubt as to whether such an order would adequately protect the community, it must affirm the CDO.[25]
[24] Williams [58].
[25] Williams [86]; Pindan [No 3] [29] - [32].
Moreover, upon a review of a CDO, s 33(4) of the DSO Act provides that a court cannot make a supervision order unless it is satisfied, on the balance of probabilities, that the offender will substantially comply with the standard conditions of the order. Pursuant to s 33(5), the onus of proof that he will substantially comply is on the respondent. Those provisions were introduced as a result of an amendment that commenced on 29 March 2018.[26]
[26] Dangerous Sexual Offenders Legislation Amendment Act 2017 (WA), s 16.
The term 'standard conditions' in relation to a supervision order is defined in s 3 of the DSO Act to mean a condition under s 18(1) that must be included in the order. Section 18(1) of the DSO Act specifies seven conditions that must be included in a supervision order. They consist of requirements that the person report to and receive visits from a community corrections officer (CCO) (pars (a) and (b)), give notification of any change of his name, place of residence or place of employment (par (c)), be under the supervision of a CCO and comply with any reasonable direction of the CCO (par (d)), not leave or stay out of Western Australia without permission of a CCO (par (e)), not commit a sexual offence as defined in s 36A of the Evidence Act 1906 (WA) during the period of the order (par (f)), and be subject to electronic monitoring under s 19A of the DSO Act (par (g)).
Therefore, the effect of s 33(4) and s 33(5) is that the respondent must satisfy the court that he will substantially comply with those standard conditions before the court can make a supervision order. I have expressed my views as to what is meant by 'substantially comply with' in Director of Public Prosecutions (WA) v Hart.[27] In essence, I consider that the court must be satisfied that the respondent will comply with the standard conditions in a manner and to an extent that is consistent with and will enable the attainment of the general object of the supervision order and the legislation, namely the adequate protection of the community by management and mitigation of the risk that the respondent will commit a serious sexual offence.[28]
[27] Director of Public Prosecutions (WA) v Hart [2019] WASC 4 (Hart).
[28] Hart [52].
The requirement in s 33(4) is one consideration (albeit a determinative consideration if the court is not satisfied it has been met) in determining whether the offender's risk can be managed adequately in the community, so as to provide adequate protection of the community. There may be other considerations that will affect the determination, such as the availability of suitable accommodation. Further, one of the standard conditions in s 18 is that the person will not commit a sexual offence as defined in s 36A of the Evidence Act 1906 (WA) during the period of the order. That definition substantially overlaps, but is wider than, the definition of 'serious sexual offence' under the DSO Act and includes all of the sexual offences in Chapter XXXI of the Criminal Code.[29] It would be expected that the court's capacity to be satisfied that the respondent will comply with that condition (i.e. that he will not commit a sexual offence during the period of the order) would ordinarily be affected by its consideration of whether the respondent is likely to comply with other conditions (both standard and non-standard conditions) in the supervision order designed to manage and mitigate risk.
[29] 'Serious sexual offence' is defined in s 3 to mean, inter alia, a serious sexual offence as defined in s 106A of the Evidence Act 1906, which refers to offences listed in pt B of Sch 7 of that Act for which the maximum penalty is 7 years or more than 7 years. The offences listed include the whole of Chapter XXXI of the Criminal Code. The definition in s. 36A of the Evidence Act 1906 includes all of the offences in Chapter XXXI of the Criminal Code without any limitation in respect of the maximum penalty.
I am inclined to agree with the views expressed by Corboy J in The State of Western Australia v A[30] that, even before the amendment, the provisions of the DSO Act concerning the choice between a CDO and a supervision order required consideration of the likelihood of an offender complying with the standard conditions (and any other conditions) to be imposed if a supervision order was made, and if there was real doubt about whether the offender would comply with a supervision order, the court could not be satisfied that the community could be adequately protected by such an order.
[30] The State of Western Australia v A [2018] WASC 250.
The level of risk posed by the respondent, and whether the community can be protected adequately against the risk under a supervision order, must be assessed by having regard not only to factors personal to the respondent, such as personality, attitudes, propensities and his capacity to control or manage his own behaviour, but also to external constraints and obligations that can be put in place under a supervision order to mitigate the risk. Gains made by the respondent in treatment and his behaviour while in custody will inform the assessment of the personal factors. The availability of new technology or resources in the community will be relevant to the assessment of external factors.
As Hall J remarked in Unwin [No 3], if the risk changes or resources improve to enable more efficacious conditions, then the need for detention may dissipate and continuing detention may become unjust.[31] The review process is intended to ensure that detention only continues where necessary.
[31] Unwin [No 3] [18].

Evidence in these proceedings

The evidence adduced by the applicant in this review consists of a Book of Materials (BOM) tendered by the applicant and the oral evidence of Dr Benjamin Bannister, a forensic psychologist, Dr Dylan Galloghly, a senior clinical and forensic psychologist, and Mr Kyle Jarvie, a senior community corrections officer (SCCO) with the Community Offender Monitoring Unit (COMU) in Corrective Services, Department of Justice (the Department). Dr Bannister and Dr Galloghly interviewed the respondent for the purposes of the review. Dr Bannister conducted the risk assessment. Dr Galloghly reported upon the respondent's response to psychological intervention in the period since the CDO was made.
The BOM includes:
(1)the Department's records concerning the respondent's conduct in prison during the period between the making of the CDO and 12 February 2019;
(2)the Department's records concerning the respondent's substance use test results between the making of the CDO and 12 February 2019;
(3)the Department's Individual Management Plan with respect to the respondent;
(4)medical progress notes concerning the respondent from 9 October 2017 to 30 June 2018;
(5)the respondent's medical results for 7 May 2018 and 30 June 2018;
(6)Dr Bannister's psychological report, dated 11 February 2019;
(7)Dr Galloghly's Dangerous Sex Offender Treatment Progress report, dated 4 February 2019; and
(8)Mr Kyle Jarvie's Community Supervision Assessment report, dated 19 February 2019.
In addition to the BOM, the applicant tendered a Psychological Intervention - Assessment Report of Dr Sarah George dated 4 February 2019 (exhibit 2). It was part of the material relied upon by Dr Bannister in his report and oral evidence. As is usual in proceedings of this kind, Dr George was not called to give oral evidence, as to do so potentially would compromise her therapeutic role with the respondent.
The respondent gave oral evidence at the conclusion of the applicant's case.

Developments since the CDO was made

Prison behaviour

Mr Jarvie reported that the respondent is housed within the protection unit at Casuarina Prison. He moved to that prison on 10 October 2017. Mr Jarvie said the respondent is considered to be generally polite, respectful and compliant with unit staff. He was said to socialise with other prisoners within the unit, but keeps a 'low profile'.[32] In the period between 4 October 2017 and the present review, the respondent had not come to the attention of staff at Casuarina Prison through adverse behaviour or attitude except on three occasion, although only the first was the subject of an adverse incident report. That incident was recorded on 23 March 2018, when the respondent disobeyed a direction from a prison officer to return to his cell, and continued to make a phone call. As a result, he was subject to a loss of privileges for a period of seven days. Otherwise there were two occasions, in July and November 2018, when the respondent failed to attend for visits, and at least on the first occasion he later admitted he did so on purpose because he had been kept waiting for a visit on a prior occasion. Overall, however, the respondent appears to have posed no difficulty in respect of his management during the review period.
[32] BOM p 113.
The respondent had been subject to urinalysis testing on 51 occasions in prison since being remanded in custody on 16 November 2016 until 25 February 2019. He returned positive results for cannabis on 15 May 2017 and 1 June 2017, both of which were before the CDO was made on 4 October 2017. All other results were negative.[33]
[33] BOM p 133; ts 797 - 798 (Mr Jarvie).
The respondent told Dr Bannister and Dr Galloghly, and confirmed in his oral evidence at the hearing, that he used cannabis only once in early 2017.[34] He said in evidence that the second positive reading was a residual result. He told Dr Bannister he was angry with his general circumstances at that time.[35] He told Dr Galloghly he was 'dirty about going back to prison' and 'dirty about the system'.[36] He said he had been thinking of suicide.[37] In evidence the respondent said that he used the drug because of a combination of having lost a member of his family and being 'dirty on the world' because he was back in prison. I note, however, that the respondent had been in prison since 16 November 2016. I took him to mean that his incarceration played on his mind particularly at the time of his use of cannabis in May 2017, because he was not able to be in the community at a time of family bereavement.
[34] BOM p 92 [39]; p 106 [18]; ts 817.
[35] BOM p 92 [39].
[36] BOM p 106 [18].
[37] BOM p 106 [18].
The prison medical records do not reveal any notable medical history that is relevant to my consideration of the issues in these proceedings.

No participation in group therapy

The respondent has not participated in an Intensive Sex Offender Treatment Program since he was detained under the CDO on 4 October 2017. He has not been offered a group programme. However, he told Dr Bannister that he would not have engaged in such a programme, as he did not anticipate any benefit beyond the information he had already gained through self-reflection.[38]

Individual counselling

[38] BOM p 91 [35].

Dr Galloghly reported on the respondent's participation in psychological counselling since the CDO was made. Dr Bannister also discussed that matter. Both had spoken with Ms Vanessa Rankin, who was the respondent's treating psychologist until 8 May 2017,[39] and Dr George, who commenced counselling with the respondent on 30 October 2018.[40] Dr Bannister had also read six progress reports prepared by Ms Rankin from 19 February 2015 to 7 September 2016 and Dr George's report of 4 February 2019.
[39] BOM p 105 [12] (Dr Galloghly's report).
[40] BOM p 105 [12].
The respondent did not continue individual treatment with Ms Rankin after he became subject to the CDO on 4 October 2017. Ms Rankin told Dr Bannister that there were two reasons for discontinuing her individual treatment with the respondent.[41] First, the respondent's level of engagement was minimal and he had not made any apparent gains for some time. Secondly, her work responsibilities increased and the limited available resources prevented her from resuming contact.
[41] BOM p 91 [35].
In order to put in context the respondent's subsequent counselling with Dr George, it is instructive to consider Ms Rankin's views about the counselling in her progress reports, as summarised by Dr Bannister in his report:[42]
Treatment progress reports highlight that due to limited progress made in addressing treatment goals in prison, the focus of the intervention changed to risk management, community adjustment, support and challenging Mr Ugle's entrenched anti-social beliefs. Collateral information also revealed that Ms Rankin noted the persistence of Mr Ugle's ongoing criminal attitudes that facilitated antisocial behaviour and rule violation, which she challenged in session as appropriate. Due to Mr Ugle's stance of denial, no treatment was able to be provided by Ms Rankin in relation to his methylamphetamine use. In contrast, Mr Ugle admitted to Ms Rankin that he had used cannabis not only prior to release on the Supervision Order, but also during their counselling sessions, and that he was pleased to have avoided detection. Ms Rankin observed that towards the end of her period of treatment of Mr Ugle, he increasingly denied any significant risk related concerns and there became increasingly little scope for meaningful therapeutic intervention. As such, Mr Ugle and Ms Rankin mutually agreed to cease contact until the contravention hearing outcome had been decided.
[42] BOM p 91 [33].
Dr Galloghly explained in his report that the break in counselling had been by agreement with the respondent. He expressed the following view about the significance of the break:[43]
Mr Ugle has had limited treatment since he was last reviewed by the court. He recommenced counselling with a new psychologist at the end of October 2018 following an agreed moratorium in May 2017. While having such a break in counselling may be viewed as being suboptimal, and can be partially attributed to systemic and resource issues, it should also be considered in light of the following factors: Mr Ugle's ongoing denial of guilt in regard to his most recent substance use charges; his dismissal of currently having a substance use problem; his denial of experiencing stress and problems in general; his overall lack of motivation to engage in counselling beyond order compliance and pursuing release from prison, and his limited capacity to benefit from psychological interventions. These factors mitigate the likely effectiveness of counselling-based intervention and subsequently have a bearing on prioritisation of treatment resources.
[43] BOM p 107 [22].
By the time of the review hearing, the respondent had attended six counselling sessions with Dr George, from 30 October 2018 to 23 January 2019. Dr George said that those sessions had focussed on 'attempting to establish a rapport, exploring gains made from prior counselling, attempting to elicit a focus for the current intervention, and exploring reasons for re-incarceration'.[44]
[44] Exhibit 2 [7].

Dr George described the respondent as consistently polite and talkative, although at times he appeared guarded and there were some inconsistencies in his views about the usefulness of counselling and the impact of the DSO Act on him.[45] The respondent described the usefulness of treatment to him as an opportunity to vent his frustrations and to 'tick a box'.[46] He was not able to identify any specific gains he had made in counselling with Ms Rankin.[47]
[45] Exhibit 2 [5].
[46] Exhibit 2 [8]; BOM pp 91 - 92 [37] (Dr Bannister's report).
[47] Exhibit 2 [8].
When the respondent was interviewed by Dr Bannister, he said in respect of the counselling with Ms Rankin that, although he found some merit in having an opportunity to vent his frustration, he saw no need to address any perceived criminogenic needs, because the 'past is the past'. As such, the respondent considered that individual treatment would not have made any difference to future outcomes.[48]
[48] BOM p 91 [34].
Just as the respondent was unable to identify gains from his sessions with Ms Rankin, he was unable to identify a focus for his intervention with Dr George. He requested information about what the Department wanted him to work on. He disagreed with the view that he would benefit from developing self-awareness, and expressed the opinion that his substance use was unrelated to stress, saying that he had been under stress a number of times without resorting to drug use. He maintained the position that he had not used drugs in the community and that the positive methylamphetamine result was incorrect.[49]
[49] Exhibit 2 [8].
The respondent told Dr George that he had been able to avoid using drugs during periods when he was working, which gave him a sense of belonging and accomplishment, and engaging in meaningful hobbies.[50]
[50] Exhibit 2 [9].
The respondent was not able to identify risk factors that could lead to sexual offending, other than drug use. According to Dr George, he appeared to have difficulty identifying scenarios in which he would be more likely to use drugs, although he expressed the view that he was able to 'self-soothe' and to avoid high risk situations.[51] Further, while he was able to identify a number of behavioural stress management strategies, he had difficulty identifying signs of stress and acknowledged a difficulty identifying and stating mental states, emotions in particular. The respondent expressed ongoing discomfort talking about his feelings, preferring to work through difficulties on his own.[52]
[51] Exhibit 2 [10].
[52] Exhibit 2 [10].
The respondent acknowledged to Dr George that, 'given his history, it would always be 'tempting' to slip back into his 'criminal identity' which he noted he needed to avoid by reminding himself of the severity of consequences of any illegal behaviour, given that he is a DSO'.[53] The respondent indicated to Dr George that the thought of dying in prison will deter him from reoffending.[54]
[53] Exhibit 2 [11].
[54] Exhibit 2 [11].
In a similar vein concerning deterrence, the respondent told Dr Bannister that, if released to the community, the restrictions placed on him pursuant to the DSO Act would be a sufficient external motivator to prevent him from returning to previous anti-social behaviours.[55] It is for this reason that the respondent has referred to the DSO Act as a 'blessing in disguise'. Dr Bannister noted that the respondent had used that description during assessments in 2015, prior to his release to the community, and in 2017, yet the consequences under the legislation were not sufficient to prevent him from breaching the conditions of his supervision order.[56] Dr George noted that the respondent's use of the description was inconsistent with a later view expressed by him that he was 'trapped in a "catch and release system" that was setting him up for failure'.[57]
[55] BOM p 91 [34].
[56] BOM p 91 [34], [97].
[57] Exhibit 2 [5].
Dr George reported that the respondent 'disagreed with suggested treatment targets'. This appears to have been a reference to the goals I had identified, as Dr George used those goals, insofar as they related to therapeutic intervention, as the starting point for counselling.[58] Dr George said:[59]
Motivational interviewing was employed with the aim of eliciting motivation to engage in intervention, however to date this does not appear to have been successful. It is estimated that it will be difficult to achieve meaningful treatment gains should Mr Ugle maintain his stance that he would not benefit from intervention.
[58] Exhibit 2 [6].
[59] Exhibit 2 [13].
The respondent told Dr Galloghly that his relationship with Dr George is fine and he is agreeable to working with her. He has continued to suggest that the purpose for the sessions is for him to vent, although he also said counselling would serve the purpose of discussing issues relating to his stress in relation to being released and generally.[60]
[60] Ts 777.
The lack of meaningful gains by the respondent in treatment since the CDO was made on 4 October 2017 is evident from the interviews with Dr Galloghly and Dr Bannister.

Treatment progress - Dr Galloghly

Dr Galloghly interviewed the respondent in prison for about an hour on 3 December 2018.[61] He had met and assessed the respondent before, two years ago.[62]
[61] Ts 776.
[62] Ts 783.
In Dr Galloghly's assessment, the respondent engaged appropriately and appeared to be genuine in his responses during the interview of 3 December 2018.[63] Dr Galloghly was able to elicit information from the respondent, despite the fact that the respondent was stern or irate at times, and the fact that there was not a long history of confidence between them.[64] He said in cross-examination that he did not believe the respondent was being disingenuous or trying to paint a good picture of himself that was not believable.[65] However, the respondent denied he had committed the contraventions of which he was convicted, and he alleged there had been a conspiracy in respect of that matter, although he did not explain exactly what that was.[66]
[63] Ts 783 - 784, 789.
[64] Ts 783 - 784.
[65] Ts 789, 792.
[66] Ts 791.
In my opinion, it is difficult to place any significant weight on an impression that the respondent was being genuine, in light of his denial and the specious allegation of a conspiracy. To the extent that the respondent relies on his cooperation during the interviews as evidence of his capacity to be supervised, it says little about the reliability of information he would provide during supervision sessions, in particular whether he could be relied upon to disclose drug use or other circumstances in his life that might be putting him at risk of reoffending. As I outlined in Ugle [No 5], the respondent has a history of lying during counselling sessions, some of which he has admitted.
Dr Galloghly said that the respondent acknowledged that there is a link between his illicit drug use and his sexual offending.[67] However, the respondent maintained his denial of having used amphetamines or cannabis in the community while subject to the supervision order. Further, the respondent said he did not need a relapse plan, because he was able to assertively refuse offers of drugs when in the community, thereby staying abstinent.[68]
[67] Ts 779.
[68] Ts 777 - 778.
The respondent discussed with Mr Galloghly his plan to have a form of control urinalysis testing done independently on any occasion he may be required to do urinalysis testing by the Department while on a future supervision order, so that he could have confirmation of results. To that end he intends to request Derbarl Yerrigan Health Service to carry out such control testing.[69]
[69] Ts 778.
In relation to stress management, the respondent told Dr Galloghly that he did not have any particular problem with stress, and had managed quite well.[70] However, he also said that his stress levels were particularly high when he was subject to the supervision order.[71] Dr Galloghly considered that, while there appears to be an inconsistency, the respondent seemed to be suggesting that notwithstanding the significant stress he felt under the order, he was able to cope.[72]
[70] Ts 778.
[71] Ts 788.
[72] Ts 788 - 789.
In terms of the respondent's understanding of his pathway to offending, Dr Galloghly said that the respondent has general insight into the fact that his sexual offending was associated with serious drug use and committing crimes, such as breaking and entering to obtain money to feed the habit.[73] Those circumstances have long been identified as the prominent factors leading to the respondent's sexual offending.
[73] Ts 780.
However, Dr Galloghly noted that the respondent had demonstrated a somewhat dismissive attitude to the idea of having developed insight into his sexual offending, saying it 'doesn't really matter, because substance abuse or use is the major factor'.[74]
[74] Ts 790.
Further, the respondent appears to have a distorted view of what it would take for him to commence on that pathway. When Dr Galloghly discussed with the respondent what it would take for him to be a 'bad person', the respondent said that, to return to sexual offending or serious crime, it would be necessary for him to engage in chronic drug use and the commission of crime to feed that drug use. [75] The respondent said, 'For me to be a bad person I have to be on drugs all day and every day.'[76]
[75] Ts 779.
[76] Ts 779.
In terms of strategies to address his risk factors, the respondent told Dr Galloghly he would rely on his motivation to avoid going back to prison, having a steady partner, and prosocial activities such as walking the dog and going to the park.[77] As to his strategy for avoiding a relapse into drug use, the respondent resorted to a refrain adopted by him during the contravention proceedings and in counselling since then. He told Dr Galloghly that he had been offered drugs frequently in the community, and would expect that to be the case again.[78] His said his strategy to deal with that situation would be to say, 'Thank you, but no thank you.'[79] As Dr Galloghly noted, it is not a particularly sophisticated strategy.[80]
[77] Ts 780.
[78] Ts 785.
[79] Ts 785.
[80] Ts 785.
Much of the cross-examination of Dr Galloghly was directed at demonstrating that the respondent was prepared to talk about a number of topics, including matters that would be relevant to be discussed in supervision sessions, such as the respondent's motivations, his family and the restrictions he might expect if he were to be released on a supervision order.[81] Dr Galloghly confirmed that within his 60 minute interview, he was able to cover a number of topics relevant to the respondent's treatment, make an assessment of the respondent's future treatment needs, and identify issues to be dealt with in any future psychological intervention.[82] He noted, however, that in arriving at those conclusions, he also relied on information beyond the interview with the respondent.[83]
[81] Ts 786 - 787.
[82] Ts 793 - 794.
[83] Ts 794.
Dr Galloghly noted in his report that the respondent's psychological treatment will continue to be managed by the Department's Forensic Psychological Service, and that Dr George would continue to be his psychologist.[84] Dr Galloghly was of the view that, if the respondent remains in prison, he and Dr George would have to come to an arrangement concerning future counselling (which might involve taking a break from counselling).
[84] BOM p 108 [27]; ts 780.
If the respondent is released into the community, initially he will be seen weekly, and then there would be an assessment made as to the frequency of future sessions.[85] Dr Galloghly explained that, in the community, initially the counselling would include a supportive role to assist the respondent adjust in the community and to 'mediate' between the respondent and those who are supervising and monitoring him, but could also involve the implementation of positive strategies.[86] The nature and extent of counselling beyond that would depend on the respondent's motivation and what he considered his needs were. If he feels he does not need it and is not getting much benefit from it, then counselling would become less effective.[87] Dr Galloghly was of the view that the respondent 'has always held the same position with counselling', namely that he 'doesn't particularly need it, but can get some benefit out of it perhaps'.[88]
[85] Ts 780 - 781.
[86] Ts 781 - 783.
[87] Ts 782.
[88] Ts 781.

Psychological assessment - Dr Bannister

Overview

Dr Bannister provided a summary of the respondent's treatment and an assessment of his risk of committing a serious sexual offence.
At the time of the assessment, the respondent was 44 years old. Dr Bannister noted that had spent 22 years of his life in prison. As an adult, the longest period the respondent has spent in the community is two years and five months, during which time he continued to commit offences.[89]
[89] BOM p 90 [25].
Dr Bannister confirmed that, after Ms Rankin had ceased to provide counselling to the respondent, there was a period of some nine months before Dr George started to treat him. The respondent did not receive treatment during that period.[90] Dr Bannister also confirmed that Dr George had seen the respondent for six sessions, over the period of 'the last couple of months' before his assessment of the respondent.[91]

Risk assessment

[90] Ts 761.

[91] Ts 761 - 762.

Dr Bannister applied the Violence Risk Scale: Sex Offender Version (VRS‑SO) risk assessment tool to assess the respondent's risk of sexual reoffending. It is a 'structured clinical judgment tool' which measures 23 factors (static and dynamic) linked to recidivism in sexual offending. Dynamic factors with higher scores identify issues that are linked to sexual offending which need to be targeted in treatment. All factors are equally weighted and the total of all scores gives the overall risk profile.[92]
[92] BOM p 93 [48].
Dr Bannister explained the benefits of the VRS-SO as an assessment tool as follows:[93]
Generally, all statistically reliable and valid risk assessment tools have all been found to have moderate levels of predictive validity. That suggests that none is necessarily more superior to another. Nevertheless, the VRS-SO has some particular benefits compared to other, similar tools. Firstly, the risk assessment incorporates a conservative measure of the offender's stage of change in relation to each dynamic risk factor, in order to quantify behavioural, attitudinal and affective changes as a result of effortful intervention. This can be useful to legal decision-makers in order to aid understanding of how an offender's risk may have ameliorated (or deteriorated) over time. Secondly, the VRS-SO has been factor analysed and three main domains emerged: sexual deviance, criminality, and treatment responsivity. Analysis of these factors as they relate to a particular offender can provide useful information about the nature of the future risk that they may pose. The Sexual Deviance factor relates specifically to the relevance that sexual deviancy has to a person's risk. The Criminality factor assesses attributes consistent with general criminality or an anti-social lifestyle. The Treatment Responsivity factor assesses poor insight, offence supportive attitudes and cognitions, and treatment non-compliance.
The statistical norms for the VRS-SO continue to be updated and the normative samples added to by researchers, in order to develop increasingly more robust capacity of risk estimation.
[93] BOM p 93 [49] - [50].
Dr Bannister went on to note that the VRS-SO provides information to guard against rating biases.[94] Although the VRS-SO has not been 'normed' on either a Western Australian or Australian Aboriginal population, Dr Bannister explained that the tool nevertheless is considered by the developers to have merit as applied to an Aboriginal offender.[95] It is not necessary to discuss the reasons, as no issue was taken with the application of the VRS-SO in the present case. I am satisfied from Dr Bannister's explanation and the details of his consideration of each of the relevant factors that the risk assessment was valid and provides a useful insight into the respondent's level of risk.
[94] BOM p 94 [51].
[95] BOM p 94 [52].
It is sufficient to provide a brief summary of Dr Bannister's consideration of the dynamic factors. However, I propose to elaborate on some key aspects of those factors that are relevant to the broader issues in this review, not just the risk assessment.
Dr Bannister noted that sexual deviancy and sexual compulsivity do not appear to be relevant factors in the respondent's case. He agreed in cross-examination that sexual deviancy, along with psychopathy, is 'robustly correlated with a risk of reoffending' and is, therefore, significant in predicting recidivism.[96] The absence of sexual deviancy in the respondent's case improves the accuracy of predicting risk scenarios, such that the external controls for managing his risk can be more targeted.[97]
[96] Ts 759.
[97] Ts 759.
As to sexual compulsivity, the respondent indicated to Dr Bannister that he does not often think about sex and he does not have a high libido.
Dr Bannister also noted that the respondent's offending did not involve planning, but was impulsive. Impulsivity is a separate factor that is relevant to recidivism. The respondent admitted that his lifestyle has previously been marked by a marked degree of impulsivity; Dr Bannister noted that is borne out by collateral information.[98] However, Dr Bannister did not regard it as an outstanding treatment need at the time of his assessment.
[98] BOM p 98 [95].
Under the heading criminal personality, Dr Bannister reported:[99]
In an assessment prepared for Mr Ugle's Division 2 hearing, he was scored as having comparatively fewer of the interpersonal and affective features of psychopathy than the lifestyle and anti-social facets. In contrast, for the current assessment, many of these affective features were present. For example, Mr Ugle demonstrated a degree of grandiosity in his statements and his engagement seemed somewhat superficial. He was also quite opinionated and often attributed unfortunate circumstances to external forces. He was able to verbalise remorse for one of the offences that he was willing to acknowledge he had committed, but his focus was comparatively greater on how the actions of others had affected him. Additionally, he displayed shallow affect.
[99] BOM p 96 [77].
The factor of cognitive distortions was also an area of significance. Dr Bannister explained that cognitive distortions are considered to be instrumental in the onset and maintenance of sexual offending, and some empirical support indicates that sexual offenders are more likely than other offenders to espouse attitudes and beliefs that legitimise their abusive behaviour. It has also been found that specific pro‑offence attitudes predict sexual recidivism, including low remorse or victim blaming and attitudes of sexual entitlement.[100] He said in respect of the respondent:[101]
Mr Ugle continues to deny responsibility for most of his sexual offending. For example, he was vehement in his assertion that his sexual offending in 1993 was in fact consensual contact. He also categorically denied that he offended against both his 11 year old victim and his index victim. As the Court has found Mr Ugle guilty of these actions, it is reasonable to assume that his denial therefore represents a cognitive distortion. Of the sexual offence he acknowledges occurred as described (for which he was sentenced in 1992), he explained he 'went to push (the victim) away' in the course of the Break and Enter offence. This appears to be at odds with the accepted facts, which suggest that Mr Ugle took a much less passive approach to the victim. Overall, Mr Ugle appears to be generally unwilling to consider information that contradicts his viewpoint. Additionally, he maintains that he did not engage in any drug use while in the community on a Supervision Order, despite subsequently being found to have taken methamphetamine.
[100] BOM p 96 [78].
[101] BOM p 96 [79].

In relation to the predictive factor of emotional control, Dr Bannister noted that there is evidence that respondent 'actively avoids or sublimates negative feelings and this may be because his acknowledgment of them may be at odds with a need for him to appear capable and resilient'. Dr Bannister said that this could be related to 'resentment leading to a subsequent lack of control of his emotions'.[102] However, Dr Bannister explained that, due to the respondent's insistence that he is innocent of the majority of his sexual offending, it is difficult to speculate on some of the underlying factors that precipitated it.
[102] BOM p 97 [83].
In cross-examination, Dr Bannister agreed that, in saying that the respondent 'actively avoids or sublimates negative feelings', he was describing the respondent's emotional functioning at that point in time. The reason that item and the next item of 'insight' are dynamic factors in the assessment tool is that 'through effortful intervention … they can be altered … improved', and the success or otherwise of management in a year's time would be assessed by re-administering the tool.[103]
[103] Ts 760.
In any event, overall, Dr Bannister considered that the factor of emotional control does not appear to be a current outstanding issue.[104]
[104] BOM p 97 [83].
However, the factor of insight was significant. As Dr Bannister explained:[105]
Mr Ugle has a clear lack of comprehensive insight into his offending. He denied responsibility for many of his sexual offences, blaming external forces or the actions of others. He nominates only amphetamine use and sleep deprivation as the precipitating factors to his offending; he does not appear to have either a comprehensive understanding of relevant antecedent factors, or an apparent wish to develop such an understanding. Despite extensive individual psychological intervention, there is no evidence that he has meaningfully attempted to address risk relevant factors in treatment.
[105] BOM p 97 [85].
The factor of substance use is clearly relevant, as discussed earlier, as is the factor of sexual offending cycle, because the respondent's sexual offending has been precipitated by generalist offending behaviour and drug use.[106]
[106] BOM p 98 [93].
Under the heading released to high risk situations, Dr Bannister noted a number of factors that were relevant during the contravention proceedings and were identified as requiring change:[107]
Mr Ugle does not demonstrate a comprehensive understanding of his risk scenarios. He appears to be underestimating the difficulties he may face in the community, in conjunction with overstating his inherent ability to deal with such difficulties. As a result of perhaps not fully appreciating the challenges of managing risk relevant scenarios, Mr Ugle has not developed robust strategies to do so. He stated that a desire not to return to prison is a key factor in his anticipated success, and that the restrictions placed on him through the DSO legislation is a sufficient external motivator for him. However, he was reported as having this view prior to his release on a previous Supervision Order (and subsequent contravention of that Order).
[107] BOM p 98 [91].
The respondent's relapse prevention plan appears not to have progressed beyond his belief that if released to the community, he would refuse drugs if offered them. To support his reliance on his previous relapse plan, the respondent referred to his past (purported) success, supportive family and friends and sufficient motivation to avoid returning to prison.[108]
[108] BOM p 92 - 93.
Dr Bannister considered the factor of compliance with community supervision to be important, in that the respondent has a poor history of response to supervision. Dr Bannister noted that the respondent has said during a number of assessments that the DSO legislation is a 'blessing in disguise' as it is a sufficient external motivator for him to remain offence free, yet it was apparently not sufficient enough in 2015 or 2016, as evidenced by his breaches of his supervision order at those times.[109]
[109] BOM p 99 [97].
Finally, Dr Bannister considered the factor of treatment compliance to be important. He said that '[s]ome empirical support suggests that sex offenders who fail in treatment or who demonstrate a lack of commitment or compliance to the treatment process, are at an increased risk for sexually reoffending when released'.[110] He made the following assessment of the respondent's situation:
Mr Ugle's engagement in group programs has previously been observed as poor. He has also declined one group treatment program and withdrawn from another, both of which related to addressing sexual offending. He has more recently attended a long period of individual counselling, and resumed this counselling after a break, but maintained that its usefulness to him was incidental. He could not identify any treatment goals, saw no need to address any criminogenic needs, and expressed the view that his psychological contact was primarily in order to be able to “tick a box”. Overall, while Mr Ugle is compliant with treatment, he appears to lack the motivation for personal improvement and change.
[110] BOM p 99 [98].
I will return to the issue of future treatment shortly.
The respondent's static risk score on the VRS-SO was more than 98.5% of the normative sample and his dynamic risk score was more than the score of 73.7% of the normative sample.[111] The respondent's combined score placed him in the 'High Risk' category of sexual reoffending.[112] The highest areas of risk revealed by the results indicate that the risk posed by the respondent predominantly relates to attributes consistent with general criminality, poor insight, offence supportive attitudes and cognitions and treatment responsivity.[113] Dr Bannister noted that, using the VRS-SO normative sample, 19.9% of sexual offenders in the normative sample with the respondent's score sexually reoffended within five years of release to the community. With a 95% confidence interval,[114] the respondent's chance of sexually reoffending (if not subject to an order) within five years of release to the community is 16 - 24%. The risk of sexual reoffending within ten years is 26.4 ‑ 34.7%.[115]

Risk scenario

[111] Ts 732 - 733.

[112] Ts 733.

[113] BOM p 100 [105].

[114] Dr Bannister explained that a confidence interval is 'a range of values so defined that there is a specified probability (in this case 95%) that the value of the parameter lies within that range': BOM p 100 [106] and footnote 4.

[115] This is with a 95% confidence interval: BOM p 100 [106], ts 733.

In Dr Bannister's opinion, the respondent's most likely risk scenario is that he will breach the conditions of his supervision order through drug use or engagement in generalist offending, leading to the most serious form of offending, being:[116]
… …a sex offence likely to be opportunistic against a woman unknown to him, likely in the course of committing a generalist offence to finance drug use.

Remaining targets for treatment

[116] Ts 737.

According to Dr Bannister, the areas that remained relevant as targets for treatment for the respondent when he assessed him included:[117]
(1) developing better risk management strategies through scenario planning;
(2) improving his metacognition (i.e. awareness and understanding of his own thought processes) and, thereby, his insight into his offending;
(3) decreasing pro-criminal attitudes and cognitive distortions;
(4)developing a comprehensive substance use relapse prevention plan; and
(5)stress management.
[117] BOM p 100 [107], ts 734.
However, in Dr Bannister's opinion, the respondent is not a good candidate for further treatment.[118] That is because of the respondent's lack of intrinsic motivation to engage in counselling,[119] his inability to identify any treatment goals, and his limited view of the utility of treatment (i.e. he regards it essentially as a way to vent his frustrations to someone who was obliged to listen to him).[120] During his interviews and counselling sessions, the respondent made frequent reference to 'the game you have to play', which reflects a failure to approach counselling and supervision as measures that will be of benefit to him personally.[121]
[118] BOM p 100 [107], ts 734.
[119] Ts 734.
[120] BOM p 100 [107], ts 734.
[121] BOM p 90 [27], 92 [44].
As Dr Bannister said in his report:[122]
While he has said he is open to engaging in future sessions, he could not verbalise any treatment goals, and held the view that treatment was a redundant exercise and an opportunity only to vent his various frustrations and for impression management. This suggests it would be unreasonable to expect Mr Ugle will engage meaningfully in treatment and make genuine risk relevant gains moving forward. As such, it is my opinion that the impact of treatment should largely be removed from considerations regarding his risk management.
[122] BOM p 100 [107].
Dr Bannister acknowledged that his opinion that 'the impact of treatment should largely be removed from considerations regarding [the respondent's] risk management' potentially meant there was a need to amend the goals I identified in Ugle [No 5].[123] He said the argument he was making was that 'the focus perhaps should be on external methods of risk management, rather than relying on [the respondent] in any way having some sort of internal motivation to self-manage'.[124]

The goals identified in Ugle [No 5]

[123] Ts 736.

[124] Ts 736 - 737.

As to the goals I had identified in Ugle [No 5], the question of whether and to what extent the respondent has met them is answered to a large extent in the evidence I have outlined so far. However, Dr Bannister addressed them specifically towards the end of his report and made the following observations:[125]
(1)Abstinence - The respondent had not returned any positive urinalysis tests in prison since the CDO was made, and he said he did not intend to use substances while in the community.
(2)Self-awareness through counselling and preparedness to talk about issues - The respondent had not worked in counselling to gain greater self-awareness, as he said he felt no need to do so.
(3)The need to shed self-confidence in his ability to deal with problems - The respondent remained very confident in his ability to manage any problems he may face in the future in the community.
(4)Be open to assistance - The respondent had acknowledged that he needs assistance in the community, but his focus appeared only to be on practical assistance rather than psychological assistance.
(5)Accept the need for a more effective relapse-prevention plan - The respondent remained insistent that his previous relapse prevention plan was adequate, as he had refused offers of drugs in the community on a frequent and regular basis. As Dr Bannister noted, that insistence was maintained despite the respondent's convictions for contravening the supervision order through substance use.
(6)Be honest with his psychologist - This is difficult to determine objectively, but it is relevant that the respondent had maintained in treatment sessions that he did not use drugs in the community and was innocent of the majority of his sexual offences, which suggests that potentially the respondent is not being honest with himself.[126]
(7)Insight into the causes of his offending - The respondent had not endeavoured to address his insight into the causes of his offending in depth, as he attributed his offending solely to substance use and sleep deprivation.
[125] BOM p 101 [111].
[126] Ts 740.
As to the issue of honesty, during his interview with Dr Bannister, the respondent continued to maintain that the positive cannabis result in the community was due to the residual presence of the drug in his system from his use in prison. Further, the respondent 'maintained vehemently' that he was innocent of his conviction for using methylamphetamine while on bail.[127]

Dr Bannister's conclusions in his report and evidence-in-chief

[127] BOM p 90 [27].

In conclusion, Dr Bannister was of the opinion that the respondent posed a high risk of sexual reoffending if not subject to either a CDO or a supervision order. He was of the opinion that the extent to which the respondent's risk could be managed in the community would depend on his capacity for self-management, his degree of insight and his motivation to report honestly for the sake of its inherent value to him.[128]
[128] BOM p 102 [112]; ts 742.
As I noted earlier, Dr Bannister's recommendation was that the focus of the respondent's risk management should be on external measures, rather than relying on the respondent's 'internal motivation to self‑manage'.[129] That is, the focus should be on having conditions in a supervision order that will enable SOMS and COMU to supervise and manage the respondent in a manner that will provide adequate protection of the community.[130]
[129] Ts 737, 747.
[130] Ts 737.
In the event that the court were prepared to place the respondent on a supervision order, Dr Bannister recommended that it be for a period of between 5 and 10 years. At a minimum the conditions should include:[131]
(1)prohibiting the respondent from possessing, consuming or using illicit drugs;
(2)requiring the respondent to undergo regular and frequent urinalysis testing;
(3)prohibiting the respondent from being in the presence of intoxicated women;
(4)prohibiting the respondent from associating with anti-social networks, or restricting such association where possible;
(5) GPS monitoring; and
(6)requiring that the respondent have access to suitable accommodation upon release.
[131] BOM p 102 [112] - [113]. I have re-numbered them for clarity of identification of each condition.
While Dr Bannister acknowledged that the fourth of those conditions was 'largely aspirational', the intention is to have means that would potentially enable the authorities to regulate the respondent's contact with antisocial peers.[132] Part of the difficulty with the aspiration is that members of the respondent's family are drug users, but his family may still be capable of providing appropriate support to the respondent in the community.[133] I will deal in the next section with what Dr Bannister meant by 'aspirational'.

Cross-examination of Dr Bannister

[132] Ts 742.

[133] Ts 742.

The cross-examination of Dr Bannister was largely directed at emphasising and elaborating upon the proposition that adequate management of the respondent's risk in the community need not depend on him engaging in further treatment or gaining insight into his offending or risk factors, but can be achieved by external measures reflected in the restrictive conditions and obligations contained in a supervision order and the ability of SOMS and COMU to monitor the respondent's activities and supervise him in a manner that would prevent the risk of the respondent committing a serious sexual offence becoming imminent.
As a corollary of that proposition, it was suggested that most of the goals that were identified in Ugle [No 5] must now be regarded as being no more than 'aspirational', and achievement of those goals should not be regarded as necessary before it could be said that the respondent's risk could be adequately managed in the community if he were subject again to a supervision order, so that there would be adequate protection of the community.
Finally, evidence was adduced from Dr Bannister directed at the issue of whether the respondent is likely to substantially comply with the standard conditions of a supervision order.

Abstinence from substance abuse

Dr Bannister said that abstinence by the respondent from substance abuse was a goal that he would continue to recommend for the proper management of the respondent's risk.[134]
[134] Ts 743.
Methamphetamine is of greater concern than cannabis, in terms of its likelihood to lead to opportunistic disinhibited offending.[135] It is more closely linked to the respondent's offending than cannabis. However, cannabis use is also of concern because it means the respondent is around others who are behaving in an antisocial manner and could increase the likelihood of the respondent engaging in generalised offending. Further, it could lead to disinhibition, which makes the use of methamphetamine more likely.[136] In addition, any drug use has the capacity to make his risk more unmanageable.[137]
[135] Ts 748.
[136] Ts 749.
[137] Ts 749.
The respondent told Dr Bannister that he was able to avoid drug use during periods when he was engaging in activities that he found meaningful.[138] In light of that indication, Dr Bannister agreed that strategies for keeping the respondent abstinent could include taking a 'firm hand' with him in relation to engaging in prosocial activities and employment.[139] However, the respondent's prospects of finding employment are at best uncertain, given that he has not had a great deal of employment in the past, bearing in mind that he has not had a great deal of opportunity to be employed, given he has spent 22 years of his adult life in custody.[140]
[138] Ts 762. This is similar to what the respondent had said to Dr George: see [59] above.
[139] Ts 762.
[140] Ts 774.
The respondent also said to Dr Bannister that one way of staying abstinent was to ask his family to stay abstinent around him. Dr Bannister pointed out that, while the respondent was able to 'verbalise' such a strategy, he had not yet adopted it, and the important step in ameliorating risk is a person's capacity to put such a strategy into action.[141]
[141] Ts 763 - 764.
Dr Bannister agreed that a person's drug use, or abstinence, whilst in prison, which would ordinarily be regarded as a stressful environment, may be correlated to 'how he might approach drug use in the community'.[142] He said that, if the respondent had used drugs whilst in prison, that would arguably be 'offence paralleling behaviour', which gives an indication of how someone might behave if they are in the community. Similarly, abstinence might be regarded as paralleling the way in which the respondent might behave in the community. I note, however, that Dr Bannister's evidence in this regard was concerned with general propositions. His evidence was given before the respondent gave evidence in the proceedings, and therefore did not take into account answers given by the respondent, to which I will refer below, that raise continuing concerns about his attitude to drug use, even after a sustained period of abstinence.

Counselling and self-awareness

[142] Ts 753.

Consistently with what he had said in his evidence-in-chief, Dr Bannister expressed the view that the goal of the respondent working in counselling to gain self-awareness is 'aspirational'. He said that ideally the respondent would be motivated to engage in treatment for its intrinsic value to him, and he would understand the purpose of the legislation, rather than characterising it as a 'blessing in disguise'. However, as matters stood at the time of the review, the respondent's behaviour and statements indicated that he does not see the point of counselling or developing insight; rather, he was 'very confident in his own abilities'. That took the typical purpose of treatment out of the equation for him.[143]
[143] Ts 743.
In re-examination, Dr Bannister was of the view that, if the respondent decides he wants to engage meaningfully in counselling, then the Forensic Psychological Services can continue to have a role in that regard. If he does not, then there is no point in continuing with counselling.[144]
[144] Ts 775.
In relation to self-awareness, Dr Bannister thought it would potentially be an error for the court to rely on the respondent's 'meaningful participation in treatment to ameliorate his risk'. Rather, it would more likely be external mechanisms that would ameliorate risk.[145] Dr Bannister said that if the court were to rely on seeing a significant improvement in the respondent's insight before being confident that his risk could be managed in the community, it would be reasonable to expect that he would stay in prison for some time.[146]

The respondent's limitations in formulating an adequate relapse‑prevention plan are all the more significant given his evidence concerning his attitude to drug use and his ability to resist using drugs.

The respondent's views concerning his risk of relapsing into drug use

The respondent said that he does not think he has a problem with drugs.[270] He accepted that others think he has a problem with drugs, but said they have 'never been around (him) 24/7'.[271] However, he said that he understands why others have their beliefs, and he acknowledged that he has had problems with drugs in the past.[272]
[270] Ts 827.
[271] Ts 828.
[272] Ts 828.
The respondent's counsel sought to elicit from him an acknowledgement that he might be wrong in his belief that he would have no difficulty avoiding the use of drugs, and that others might be correct in their assessment that it is more complex than he thinks. The following exchange in the respondent's evidence-in-chief illustrates the respondent's equivocation and lack of clarity on the issue:[273]
Are you prepared to consider that you might be wrong? --- It depends on which side of the fence you're sitting.
About the drug use; about whether or not you've got it covered. Are you prepared to accept that you might be wrong? --- That's a hard question. Maybe.
Are you prepared to explore that with a Community Corrections Officer and a psychologist? --- It – it just depends on what you're getting at.
In terms of whether or not your approach to preventing yourself from using drugs, are you prepared to explore whether or not your approach might be wrong? --- My approach isn't wrong; it's either you want them or you don't.
Are you prepared to explore whether or not your approach is the total answer? --- Maybe it is, maybe it isn't, but then again you've got to sort of have a back-up plan as well. You – I can see where they're – where they're coming from, the psychs, and the people who are doing these assessments. They say it's not enough.
Right. And given that they say it's not enough, what are you going to do with that information? --- Have more of a relapse prevention plan.
And how do you propose to do that, to create more of a relapse‑prevention program? --- Communicate.
With whom? --- Just to get a – with anyone and everyone, really, at the end of the day, because it's my life and I've got to sort of emphasise that to everybody that I deal with.
[273] Ts 828 - 829.
Although the respondent appeared to express a willingness to explore the issue, perhaps with his CCO and a psychologist, his responses demonstrated a distinct lack of commitment, and the meaning of his last answer was not clear. On the one hand, it might be another way of saying that he needs to impress on anyone who might put him at risk of relapsing that he needs to avoid doing so because of the impact it will have on his life. On the other hand, his reference to emphasising what he has to say to 'everybody that I deal with' tends to suggest an ingrained attitude that he needs others to see his point of view, not just those who might put him in a risky situation.[274] That interpretation draws support from the exchange I quote in the next paragraph below. The answer echoes in some respects a sentiment the respondent expressed to Dr George, that he was coping well in prison and that he wished to be acknowledged for his strengths.[275]
[274] Ts 828.
[275] Exhibit 2 [10].
In cross-examination, the respondent restated his position that he does not share the concern of others that he will return to drug use without a more sophisticated management plan:[276]
And you don't see that there's any risk of you going back to drug use when you're going to be coming across people who are offering you drugs all the time if you're on – if you're out in the community; you don't see any problem there; any risk? --- No.
And you don't see that there's any risk of you - - - going back to drug use if you come across members of your family who are drug users? --- I see it – I see it as a problem in your eyes, because it's a grey area, because the conditions are stated not to be around alcohol-affected people, or any person affected by anything, you know what I mean? Me, I don't see it as a problem because I deal with it. "Hello, how are you going"; whatever else. But in your eyes – in your eyes, or the people who are judging me, they think it's – I see it as a grey area; you see it as strictly as black and white, because that's my conditions: "Well, you shouldn't be around them either way."
All right. Perhaps could I – could I summarise your attitude as like this: because you say that you didn't – that you did well on the supervision order last time, that's why you know you're not going to have any problems if you're re-released on a supervision order; is that --? --- Yes. That - - -
- - is that what – does that summarise your attitude? --- That summarises my attitude. I know I will be good on this order if there was to become a second chance, you know what I mean? That's why since I've been getting piss tested, this time in prison I've had one dirty; they say two. I can't recall two. Mate, the second one was residual, you know what I mean?
[276] Ts 841 - 842.
The respondent's reliance on perceived past success is misplaced, in light of his contravention of the supervision order by using drugs, which, of course, he does not accept to have been the case. He went on to say that he would be successful in complying with the conditions of a supervision order, because he would take the precautions of not hanging around with certain people, and he is 'going to see the black and white; it's not going to be a grey area'.[277] However, in the context of the whole of the respondent's evidence, which involved a great deal of vacillation on this issue, I was not satisfied that I could rely on his final position.
[277] Ts 842.
Finally, the respondent's relapse-prevention plan and his attitude to his risk of relapsing need to be considered in the context of his view more broadly of what it would take for him to reoffend sexually.

The respondent's views about his risk of sexual reoffending

I referred earlier in these reasons to Dr Galloghly's evidence that, when asked what it would take for him to be a bad person, the respondent said he would need to be on drugs all day every day.[278] He was questioned about that statement in cross-examination. To convey the full effect of his evidence, it is necessary to set the exchange out in full:[279]
[278] See [74] above.
[279] Ts 840 - 841.
Right. So you think it's – are you saying there that it's only if you are using drugs all day, every day, for a long time that you would be at risk of reoffending sexually; is that what you're saying? --- Yes. If I wasn't monitored, and everything – that's why I have highlighted in previous occasions about this whole DSO legislation being a blessing in disguise. Now, I want to get off this merry-go-around, you know what I mean? And to me this whole legislation, as I've just relayed on to you, is a blessing in disguise. Now, if I wasn't on this and I just get out free, it would – it would be inevitable for it to probably to happen further on down the line.
All right? --- But upon being, I mean, watched, overseen, tracked, it's a good thing, because I know that it will never happen.
Yes. Well, let's just look at the situation where you didn't use drugs all day, every day, just occasionally – just say once or twice a week. Do you see that as being perhaps a problem with maybe you lapsing back into offending? --- No.
No? So there is a level of drug use which would not be – where it wouldn't be a risk for you to lapse back into offending - - -? --- Yes.
- - is that right? So what level - - -? --- That's right.
- - would that – so what level would that be? Obviously not all day, every day, but - - -? --- It just depends on the quantity, the quality of the gear, how much sleep I have, and stuff like that there.
Yes. Okay. All right. And in reference to that statement for you to be a bad person, "I have to be on drugs all day, every day," is that – are you there talking about cannabis, methylamphetamine or some other drug? -‑‑ Mixed.
Mixed? Okay. So - - -? --- Yes.
- - going from one to the other perhaps during that time that you're using? --- Yes, just smoking dope all day; having a shot in the morning.
Yes? --- You know, wake up to the day, you know what I mean? It wasn't – it wasn't till after 7 o'clock that I really stole and did burglaries.
7 o'clock at night, or - - -? --- Yes.
Of particular significance is the respondent's acknowledgment that, if he were not subject to a supervision order, it would probably be inevitable that 'further on down the line' he would relapse into drug use. His candour in that regard is commendable, although it does not alleviate the concerns raised in respect of his honesty and openness more generally by his attitudes in other respects and by his denial of his drug use while on supervision. The respondent's acknowledgment of the probable inevitability of relapse suggests that there is an entrenched problem that requires change internally, as I identified in Ugle [No 5]. Until the respondent develops greater insight into his drug use and a commitment to remain abstinent that is not dependent almost entirely on the constraints of a supervision order, such an order could only ever be a temporary measure to protect the community against the risk that he would commit a serious sexual offence.
Moreover, the respondent's belief that he would be at risk of reoffending only if he were on drugs all day every day, and that use once or twice a week would not put him at risk, betrays a mindset that would make him more prone to relapse than his professed capacity for resistance would suggest. If he does not think that using once or twice a week will put him at risk of sexual reoffending, he is less likely to resist.

Conclusion – the respondent remains a serious danger to the community

On the evidence presented at the hearing, in particular the assessment made by Dr Bannister, I am satisfied to a high degree of probability that the respondent continues to be a serious danger to the community. Indeed, it is the only reasonable conclusion, and it was not disputed on behalf of the respondent. I would also add that the respondent appeared to acknowledge in his evidence that, in the absence of an order under the DSO Act, he would be a serious danger to the community.
The likely offence scenario is as described by Dr Bannister.[280] The potential harm, in particular the psychological trauma, for the victim would be significant and lasting. That serves to highlight the unacceptability of the risk in this case in the absence of protective measures of the most secure kind. While those protective measures may be found in external factors.
[280] See [102] above.

The appropriate order – consideration of the parties' submissions

Applicant's submissions

In essence, the applicant's submission was that there had been little or no change in the respondent's circumstances in the 15 months prior to the hearing to indicate that his risk of reoffending had changed. The applicant submitted that the respondent presented at the 2019 review as essentially the same person whose circumstances were considered by me in the 2016/2017 contravention hearing. It submitted that the fact that there had been little or no change was underscored by the fact that the respondent had failed to achieve most of the goals I had identified.
The applicant submitted that Dr Bannister's evidence concerning the manageability of the respondent's risk was that it was 'not impossible' if only external mechanisms were relied upon, but that it would be fairly challenging to the supervising parties if the respondent did not achieve improvements in his capacity for self-management, his degree of insight and his motivation to report honestly for the sake of its inherent value to him. The applicant submitted that this cast considerable doubt on whether a supervision order, containing reasonable conditions, could ensure the adequate protection of the community.
The applicant submitted that, irrespective of whether the seven goals identified by me in Ugle [No 5] can be appropriately described as aspirational, I should find that the respondent still needs to achieve those goals that are 'counselling/treatment related', because if he does not, his high level of risk will be difficult to manage. Achievement of the goals will mitigate his risk of sexual reoffending.
The applicant also submitted that, given the respondent's continued claims of being able to 'beat' urinalysis testing, the court might question the value of negative urinalysis test results since the CDO was made, as the respondent may have been using drugs but successfully 'beating' the tests. In my view that submission involves impermissible speculation, and cannot be given any weight in the absence of probative evidence that the results cannot be relied on.
The applicant's alternative argument was that, if the court accepts that the respondent has been abstinent whilst in custody since the CDO was made, that fact does not necessarily provide a reliable indication of whether the respondent would remain abstinent in the community. In my opinion, that submission has merit in light of the conclusions I have drawn at [229], [232] and [233] above concerning the respondent's attitude to his risk of relapse into drug use and his risk of sexual reoffending.

Respondent's submissions

The respondent submitted that, on balance, the evidence supports the conclusion that the respondent's risk would be manageable in the community if he were released subject to a supervision order.
The respondent relied on Dr Bannister's evidence that a number of the goals identified in Ugle [No 5] ought now to be regarded as only aspirational, rather than achievable, and that not all of the goals need to be resolved in order for the respondent's risk to be manageable.
Further, the respondent pointed to Dr Bannister's evidence that it would be an error to rely on meaningful participation by the respondent in treatment to 'ameliorate' his risk. He submitted that the effect of Dr Bannister's evidence was that the risk could be reduced sufficiently by the use of external factors or mechanisms, and it was not unreasonable to suggest that such factors could be crafted to make the respondent's risk manageable at his current level of self-awareness.[281]
[281] Relying on Dr Bannister's evidence at ts 748.
The respondent submitted, relying on Dr Bannister's evidence, that the antecedent factors to a 'serious risk scenario' could be picked up well in advance by the monitoring mechanisms that would be in place. That is because his sexual offending was linked to generalist offending rather than sexual deviance, and the factors leading to the generalist offending would be more readily identified and detected. However, as I noted at [138] above in dealing with that evidence, Dr Bannister also said that the ability of his supervisor or psychologist to pick up such factors would depend, at least in part, on the respondent being open about experiencing stress or emotional instability. Further, as I noted at [143] above, relying on the capacity of supervisors or counsellors to detect emotional difficulties in the respondent's life by probing questioning techniques in the face of a lack of candour or openness on the respondent's part is a tenuous basis on which to argue that his risk can be adequately managed in the community.
The respondent also submitted that I should give weight to Dr Bannister's evidence that the respondent's abstinence from drug use in prison during the review period could be regarded as paralleling the way in which he might approach drug use in the community. However, that overlooks the evidence given by the respondent, which I outlined at [225] – [228] above. In my opinion, Dr Bannister's evidence, which was given before the respondent gave his evidence, was concerned with possibility. The actual significance of the respondent's abstinence depends on an assessment of the whole of the evidence. The conclusions I expressed at [229] are relevant in this respect.
The respondent also submitted, again relying on Dr Bannister's evidence, that the respondent is not devoid of strategies for managing stress, which is a significant factor in managing his risk. However, as I noted at [149] and [150] above, those strategies do not appear to be particularly advanced from those he had expressed before he was released on a supervision order, which he subsequently breached.
As to whether the respondent will substantially comply with the standard conditions and other conditions of the proposed supervision order, it was submitted on his behalf that the court can rely on the following matters to be satisfied that he will substantially comply:
(1)The respondent did not have any positive urinalysis results in the period between 1 June 2017 and the time of the hearing, and he gave evidence that he had not used illicit substances in that period.
(2)The respondent complied with supervision requirements when he was previously subject to a supervision order.
(3)The respondent gave evidence that he will comply with GPS conditions,[282] and he was compliant with GPS conditions when he was previously subject to a supervision order (there being no evidence of any failure to comply).
(4)The respondent complied with SOMS requirements, and followed directions regarding the provision of information to them, when he was previously subject to a supervision order.[283] The respondent submitted that compliance with SOMS obligations indicates a likelihood the respondent will comply with lawful directions.
(5)The respondent is aware that his relapse prevention strategies are viewed as being simplistic and insufficient, and he has expressed an intention to communicate more, and have a back-up plan, rather than place total reliance on a decision not to use drugs.
[282] Ts 822.
[283] Ts 825.
I accept that the respondent did not use illicit substances in the period from 1 June 2017 to the review hearing. I also accept that the respondent was previously compliant with SOMS requirements and in respect of GPS monitoring (i.e. lawful directions concerning exclusion zones).
However, while I accept that the respondent attended for supervision as required and for the most part engaged in an appropriate manner when he was previously on the supervision order,[284] I am not satisfied that he fully engaged meaningfully in supervision or treatment, given that he did not disclose his drug use or, by inference, the factors that had led to his drug use. Reliance on the respondent's past performance in this regard is not a sound basis for finding that he will substantially comply with any future supervision order.
[284] See Ugle [No 5] [139].
Finally, the respondent's expressed intention to improve his strategies must be considered in the light of his evidence referred to at [222] above, and my conclusions in respect of that evidence at [223].

The appropriate order - conclusion

Having regard to all of the evidence and the various conclusions I have expressed in the course of these reasons, together with the conclusions which follow, I am of the opinion that it is not appropriate to release the respondent on a supervision order at this time, and that the CDO must be affirmed.
The fundamental question is whether circumstances have changed, either by a change in the respondent's risk or the availability of resources to enable more efficacious conditions to be imposed, such that the need for detention to adequately protect the community from the unacceptable risk that the respondent will commit a serious sexual offence has dissipated, and the protection can be achieved by the making of a supervision order. I indicated earlier in these reasons that I do not consider the additional proposed conditions would increase the level of protection. The question is whether there has been a relevant change in the respondent's circumstances. The starting point in considering that question is whether the respondent has made any progress towards meeting the goals I identified in Ugle [No 5].

On a careful analysis of the evidence, while the respondent has taken some steps to address those goals, on balance the only goal that I can confidently find he has achieved is to remain abstinent from illicit substance use while he has been in detention. The other aspect of that goal was that he needed to demonstrate a commitment to remaining abstinent. In that regard, his attitude to his previous breaches is a relevant consideration in determining whether I can be confident that the respondent's professed commitment is genuine or will be sufficient to prevent him from relapsing into illicit substance use, which is a major risk factor in his case. The respondent continues to deny that he used illicit substances while he was subject to the supervision order. The denials undermine any confidence I can have in the sufficiency of his commitment to remain abstinent as a factor that would prevent his relapse into illicit substance use.
That is particularly so in light of the conclusions I have reached at [222] ‑ [224], [227], [229], [230], [232] and [233] above, arising from the respondent's evidence in relation to his relapse-prevention plan, his views about his risk of relapsing into drug use and his views about his risk of sexual reoffending.
Further, the respondent's denials of his illicit substance use while subject to the supervision order also have a bearing on whether he will be honest in counselling and open to assistance if he is again released on a supervision order. On the evidence in these proceedings, including the respondent's evidence, I am not satisfied that he would be.
As I have outlined in some detail, the evidence of Dr Bannister was that a number of the goals I had previously identified will be difficult for the respondent to achieve, if they can be achieved at all. He described them as aspirational. In other words, they should be regarded as goals to which the respondent should aspire, and in respect of which the court and those responsible for managing the respondent might continue to have aspirations that he will pursue them, but there can be no assumption that they are achievable, and they should not be preconditions for his release. As I have already noted, they were never intended to be preconditions, but they remain relevant, as Dr Bannister acknowledged.
The respondent relies on Dr Bannister's opinion that the respondent has the capacity to remain abstinent and comply with the conditions of a supervision order. However, the question is not whether he has the capacity, but whether I can be satisfied that he will comply with the standard conditions of a supervision order, and whether all of the conditions of such an order can provide adequate protection of the community. As Dr Bannister said, whether he will comply will depend on his motivation, and it is more difficult to say whether he will have that motivation.
Ultimately, I agree with the applicant's analysis of Dr Bannister's evidence that, in relation to the question of whether the respondent could be adequately managed under a supervision order, it amounted to no more than it was 'not impossible'. The double negative serves to emphasise the doubt that I have about whether the respondent would comply with the conditions of a supervision order.
Dr Bannister referred to the greater importance of external constraints and monitoring to manage the respondent within the community. There is no suggestion that such constraints and monitoring were inadequate when the respondent was previously on the supervision order. Yet they proved to be insufficient to prevent the respondent from relapsing into drug use. They did result in intervention to bring the respondent back before the court, but that, it seems to me, is not the means by which Dr Bannister envisaged that measures external to the respondent would reduce his risk of committing a serious sexual offence.
If the respondent were to be released on a supervision order, counselling, whether from a psychologist or during supervision sessions with his CCO would be an essential aspect of managing his risk. Although he had six sessions after the CDO was made, he has not engaged adequately with counselling. As I noted in Hart at [50], where engagement in counselling is to be a condition of the supervision order, the respondent's willingness to engage in a meaningful way, rather than just attend the counselling session, will be a relevant consideration, given the significance of counselling as a means of monitoring risk as well as assisting in the reduction of risk. That is so irrespective of whether the goals of improved insight and openness to assistance are achievable or only aspirational. The same may be said of the respondent's participation in supervision sessions, as those sessions are also important in monitoring risk.
The respondent has said that he will be motivated to comply because he wants to have a life in the community and does not want to return to prison if he is given another opportunity on a supervision order. However, his use of methylamphetamine on the last occasion was during a period when he knew he had been breached and was liable to be returned to detention if he was not on his best behaviour. That was not sufficient to prevent the further breach. I have discussed at some length above the question of whether the respondent's statements in these proceedings about his motivation evince a change in his circumstances. I have concluded they do not.
I am not satisfied on the evidence before me that the respondent's attitude has matured sufficiently for me to have confidence that he will comply with the standard conditions or the additional conditions of the proposed supervision order, including abstinence from drug use. His strategies for avoiding drug use have not developed in any meaningful way since I made the CDO. There remains the concern that he boasts about his capacity to readily 'beat' any urinalysis test. A further concern arises from his belief about the extent of drug use that would put him at risk of committing a serious sexual offence, which necessarily suggests a belief that some drug use would not put him at risk.
In all the circumstances, I am not satisfied on the balance of probabilities that the respondent would substantially comply with the standard conditions of a supervision order, in the manner I discussed in Hart. Even if I had come to a different conclusion in that regard, that would not be the end of the matter. I would still need to be satisfied that the conditions of a supervision order overall would provide adequate protection of the community. For the reasons I have given, I am not satisfied they would. There is, at the very least, a doubt that such protection can be achieved by a supervision order.

Recommendations for further management and treatment

It is regrettable that the respondent finds himself in his current position, after he was given the opportunity to be in the community on a supervision order in 2015, particularly as he now faces a period of detention of two years before the next review. In my opinion, it remains the case that he must aspire to successfully achieve the goals I identified on the last occasion.
As I have indicated, I do not consider Dr Bannister's opinion in respect of treatment to be that it should be discarded as a means of mitigating the respondent's risk. His view was that its impact should largely be removed from considerations regarding the respondent's risk management, not that it should be entirely removed. In my opinion, based on the whole of the respondent's history while subject to the DSO Act, while the usefulness of treatment may be limited, it continues to have a role in addressing the issues to which I have referred that have led me to the conclusion that a supervision order would not ensure adequate protection of the community at this stage.
The respondent has previously demonstrated an ability to engage in a meaningful way with treatment. It is necessary for him to give effect to his expressed willingness to talk more and accept assistance, and to try to divest himself of thinking that stands in the way of meaningful engagement, such as his focus on being institutionalised and the fact that he has not previously asked for help.
What is of particular importance is the need for the respondent to gain insight into his limited internal resources for managing his risks. He must come to an understanding and accept that any relapse into drug use will put him at risk of sexual reoffending. His distorted thinking about the level of drug use that would put him at risk of sexual reoffending is a matter that should be a particular focus of counselling. While I appreciate that such thinking is also related to what I have described as 'misplaced self-confidence', and that may be a feature of his personality, the respondent's evidence that he acknowledges the views of others that his relapse-prevention strategies are inadequate should serve as an opening to exploring change in his thinking.
Finally, I note that the respondent has expressed a desire to move to Bunbury Regional Prison. While it may be doubtful that future treatment will be effective, the respondent is still subject to detention for control, care and treatment. The concept of treatment in this context should be regarded as encompassing any measures that will assist in the rehabilitation of the respondent and may contribute to addressing the factors that have been identified as being relevant to his sexual offending. Provided it is consistent with his security rating, placing the respondent in a prison where he has better facilities and is able to develop improved skills for dealing with stress may give the respondent greater prospects of release on a supervision order in the future. Such a move should be facilitated, therefore, if possible.

CDO affirmed

The order I make is to affirm the CDO.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
YO
Research Orderly to the Hon Justice Fiannaca
12 JUNE 2020