The State of Western Australia v Ugle [No 7]
[2021] WASC 213
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL
CITATION: THE STATE OF WESTERN AUSTRALIA -v- UGLE [No 7] [2021] WASC 213
CORAM: CORBOY J
HEARD: 31 MAY 2021
DELIVERED : 1 JULY 2021
FILE NO/S: DSO 2 of 2014
BETWEEN: THE STATE OF WESTERN AUSTRALIA
Applicant
AND
WARREN JOHN UGLE
Respondent
Catchwords:
High Risk Serious Offender - Review of continuing detention order - Turns on its own facts
Legislation:
High Risk Serious Offenders Act 2020 (WA), s 30, s 68
Result:
Continuing detention order affirmed
Category: B
Representation:
Counsel:
| Applicant | : | Ms C J Thatcher SC |
| Respondent | : | Mr D J McKenzie |
Solicitors:
| Applicant | : | State Solicitor's Office |
| Respondent | : | David McKenzie Legal |
Case(s) referred to in decision(s)
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 5] [2017] WASC 280
Director of Public Prosecutions (WA) v Yates [2014] WASC 136
The State of Western Australia v Ugle [2017] WASC 111
The State of Western Australia v Ugle [No 6] [2020] WASC 215
CORBOY J:
The review
The respondent, Warren John Ricky Ugle, was first made subject to a continuing detention order in October 2014.[1] Justice Fiannaca declined to affirm the order but released Mr Ugle to the community under a supervision order following the first review.[2] His Honour subsequently rescinded the order and made a further continuing detention order on 4 October 2017 (the CDO).[3]
[1] Director of Public Prosecutions (WA) v Ugle[No 2] [2014] WASC 369.
[2] Director of Public Prosecutions (WA) v Ugle[No 3] [2015] WASC 452.
[3] Director of Public Prosecutions (WA) v Ugle[No 5] [2017] WASC 280
A review hearing for the CDO was held on 31 May 2021. I have concluded from the review that Mr Ugle remains a high risk serious offender and that the CDO should be affirmed.
The history of the CDO
Mr Ugle's serious sexual offending
By February 2014, Mr Ugle had a long record of offending for anti-social and traffic offences and had committed several burglaries. He had also sexually assaulted female occupants of some of the houses in which he had committed the burglaries. In summary:
(1)In January 1992, Mr Ugle broke into a house while affected by alcohol and drugs. SEDB, a 17-year-old female, was in the house. Mr Ugle sexually assaulted SEDB by penetrating her vagina with his penis. He also threatened SEDB and stole money.
(2)Mr Ugle was arrested shortly after committing the offence and participated in a recorded interview with police in which he admitted his offending.[4] On 20 February 1992, he was sentenced in the Perth Children's Court to 2 years imprisonment.
(3)Mr Ugle was released on parole in January 1993. On 4 February 1993, he broke into a house. CJR, an adult female, was asleep in the house. She was affected by anaesthetic that had been administered for surgery and by alcohol. Mr Ugle sexually assaulted her.
(4)Mr Ugle claimed that CJR consented to sexual intercourse. However, he was convicted following a trial and on 15 May 1995, he was sentenced to 5 years imprisonment.[5] There was no evidence that Mr Ugle was affected by alcohol or other substances when he committed the offence; indeed, he claimed in his evidence that he told his victim he did not drink.[6]
(5)On 30 March 1993, Mr Ugle committed another aggravated burglary. An adult female was in the house at the time. Mr Ugle placed a pillow over her head and forced her to hand over her purse. On 1 December 1993, Mr Ugle pleaded guilty to aggravated burglary, stealing and assault.[7]
(6)On 1 April 1993, Mr Ugle broke into a house where an 11‑year‑old female, MLM, was asleep. Mr Ugle went to her bedroom, pulled the sheets back, removed her underpants and inserted his fingers into her vagina. He attempted to touch her vagina again but she struggled and called out for her mother. Mr Ugle then fled.
(7)Mr Ugle pleaded guilty to aggravated burglary and the sexual penetration of a child under the age of 13 years on 1 December 1993. He was sentenced to 7 years imprisonment for the offence against MLM.[8] It was submitted at the sentencing hearing that he was affected by a combination of heroin and amphetamines.[9]
(8)On 21 October 2007, Mr Ugle entered a house through a sliding door. ALJ, an adult female, was asleep in her bedroom. The house was occupied by a man with whom ALJ was in an intimate relationship. He was asleep in another room when Mr Ugle entered the house. Mr Ugle went to the bedroom in which ALJ was asleep. He digitally penetrated her vagina and then performed cunninglingus on her. She awoke and initially thought that it was her friend who was engaging in the sexual activity. She yelled out when she realised she was mistaken and Mr Ugle left the house.
(9)Mr Ugle was subsequently convicted of two counts of sexual penetration without consent following a trial. On 7 April 2009, he was sentenced to 5 years imprisonment. The offence was committed while Mr Ugle was on a community based order imposed for other offending.[10] His counsel informed the sentencing judge that Mr Ugle had relapsed into amphetamine use at the time of committing the offences.[11]
Mr Ugle's participation in treatment programmes
[4] See annexure 'L' to the affidavit of Katrin Robinson sworn 31 January 2014 (Ms Robinson's affidavit).
[5] The sentencing transcript is Annexure 'R' to Ms Robinson's affidavit.
[6] ts 27 April 1995, Ms Robinson's affidavit at 133.
[7] The transcript of proceedings held in the Supreme Court on 1 December 1993 is annexure 'W' to Ms Robinson's affidavit.
[8] Annexure 'X' to Ms Robinson's affidavit is a copy of the sentencing transcript.
[9] ts 1 December 1993, Ms Robinson's affidavit at 166.
[10] Annexure 'AE' to Ms Robinson's affidavit is a copy of the sentencing transcript.
[11] ts 7 April 2009, Ms Robinson's affidavit at 224.
Mr Ugle commenced a sex offender treatment programme in late 1998. However, he elected to leave the program in February 1999. The treatment termination report dated 15 March 1999 stated:
Commencing from the pre-treatment interview, Mr Ugle adopted a somewhat arrogant attitude to treatment, claiming to have made substantial gains through his own reflection during the current term of imprisonment.
…
Mr Ugle's resistant and defensive attitude created some difficulties in him gaining from treatment although there were glimpses of insight and moving forward at times. For instance, he would challenge others assertively and recognised that his generalist offending and attitude to females were high risks for him in terms of his sex offending behaviour.
…
During the 'exit' interview with the facilitators, Mr Ugle articulated his reasons for leaving as 'you can't change me', 'I've learned how to handle things in jail' and 'I always wake up positive and have the same feelings'. He maintained his defensive attitude but was able to acknowledge that he was experiencing difficulties in sharing negative life events with the group, or anyone for that matter. He acknowledged never having experienced a genuinely intimate relationship. Whilst experiencing some difficulties with the disclosure, he also referred to some sexual abuse inflicted on him by female at some stage in his life.[12]
[12] Annexure 'Y', Ms Robinson's affidavit.
In late 2009/early 2010, Mr Ugle participated in the 'Pathways' programme. The programme is a cognitive-behavioural, skills based programme directed to addressing offending behaviour and substance abuse. Mr Ugle completed the programme but it was noted his participation had been variable with generally poor engagement and performance. He was assessed as strongly resistant to committing to change despite having a good understanding of the connection between his offending and drug use.[13]
[13] Treatment programme report, dated 12 February 2010; Annexure 'AF', Ms Robinson's affidavit.
In 2012, Mr Ugle was interviewed to determine his willingness to participate in the intensive sex offender treatment programme. He declined to be considered for the programme.
The first CDO
In February 2014, the Director of Public Prosecutions (WA) applied for an order under s 14(1) of the Dangerous Sexual Offenders Act 2006 (WA) (DSO Act). Mr Ugle was 39 at the time of the application. Justice McKechnie allowed the Director's application.
Justice Simmonds presided over the div 2 hearing. His Honour concluded that Mr Ugle was a serious danger to the community and that it was necessary to make the CDO to ensure the community was adequately protected. There are two aspects of his Honour's findings that are immediately relevant to this review.
Two psychiatrists, Dr Hall and Dr Tanney, gave evidence at the hearing. Justice Simmonds accepted their evidence and found that Mr Ugle had a propensity to commit serious sexual offences in the future 'being serious sexual offences of the kind described by the re‑offending scenario both psychiatrists identified'. Dr Hall described the possible offending scenario as 'opportunistic penetration or attempted penetration of an adult female unknown to [Mr Ugle], and in her own residence, during the commission of another crime such as burglary'.[14] Justice Simmonds also considered that Mr Ugle had not made significant efforts to address the causes of his offending. He had only participated in the Pathways programme and the effect of his participation had been 'limited'.[15]
[14] Director of Public Prosecutions (WA) v Ugle[No 2] [205].
[15] Director of Public Prosecutions (WA) v Ugle [No 2] [207].
The first review of the CDO was conducted by Fiannaca J in late 2015. His Honour concluded that Mr Ugle should be released on a supervision order notwithstanding that it was accepted that he remained a serious danger to the community (the Supervision Order).
His Honour noted there were three 'entrenched' problems that created obstacles to Mr Ugle's conditional release at the time of the div 2 hearing:
(1)Mr Ugle's resistance to therapy and supervision;
(2)His lack of self-awareness in respect of risk factors, especially substance abuse; and
(3)His lack of coping strategies. His Honour considered that the evidence in the review established that Mr Ugle had made gains in each of those areas. In particular, Mr Ugle had engaged in psychological counselling and, in the opinion of Dr Hall, had made gains in 'problems with self-awareness, in particular concerning factors and processes that place him at risk of sexual violence'; and in his desire to live a pro-social life.[16] Dr Hall recognised there were ongoing problems associated with the management of Mr Ugle's risk of re-offending but considered those problems could be adequately managed in the community. Moreover, accommodation for Mr Ugle had been identified through Outcare.
The Supervision Order and the Contravention Proceedings
[16] Director of Public Prosecutions (WA) v Ugle [No 3] [86] and [89].
Mr Ugle was released to the community pursuant to the Supervision Order on 24 November 2015. On 3 December 2015, Mr Ugle was charged with contravening the order, the alleged breach being that he tested positive for cannabis in a sample provided on 1 December 2015. On 8, 10 and 14 December 2015, Mr Ugle returned samples for urinalysis with a result for creatinine that was below the Australian Standard. Mr Ugle advised that the result of those samples was explained by cannabis use in custody prior to his release under the Supervision Order and attempts by him to rid his system of cannabis consumed prior to release. However, on 24 December 2015, Mr Ugle was again charged with contravening the Supervision Order by testing positive for cannabis in a sample provided on 22 December 2015. On 22 January 2016, Mr Ugle again provided a sample for urinalysis in which the creatinine reading was below the Australian Standard.[17]
[17] Affidavit of Nadine Christina Minnock sworn 27 January 2016.
In addition to the contravention charges, the Director of Public Prosecutions commenced proceedings under pt 2, div 4 of the DSO Act (the Contravention Proceedings). The Director sought an order in those proceedings rescinding the Supervision Order.
The contravention charges were heard by Fiannaca J in July 2016. His Honour acquitted Mr Ugle of the charge that he had contravened the Supervision Order by using cannabis in the period 24 November to 1 December 2015. However, his Honour convicted Mr Ugle of the charge that he breached the Supervision Order by returning a positive sample for cannabis on 22 December 2015. Mr Ugle was released on bail pending a sentencing hearing. A psychiatric report was ordered for the purpose of sentencing and the Contravention Proceedings. The conditions on which Mr Ugle was released on bail included that he continued to comply with the requirements of the Supervision Order.
Mr Ugle was again arrested on 16 November 2016 for an alleged breach of his bail conditions. Bail was revoked and he was charged with a further contravention of the Supervision Order - that on a date unknown between 7 and 11 November 2016 he contravened a requirement of the order by consuming or using methamphetamine. Mr Ugle was subsequently found guilty of that charge.[18]
[18] The State of Western Australia v Ugle [2017] WASC 111.
The Contravention Proceedings were heard by Fiannaca J. On 4 October 2017, his Honour rescinded the Supervision Order and made a continuing detention order.
The CDO
Justice Fiannaca comprehensively reviewed the evidence concerning the risk of Mr Ugle committing a serious sexual offence in the future and the prospects of managing that risk in the community in the reasons given for rescinding the Supervision Order.[19] I will not summarise his Honour's detailed exposition of the evidence. However, I note, in particular, his Honour's findings that:
(a)At the time of the Contravention Proceedings, Mr Ugle did not have sufficient self‑awareness or capacity for self‑management.
(b)Mr Ugle could not be relied on to honestly report when he had used drugs. He continued to use cannabis and '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'.[20]
(c)There was a significant risk that Mr Ugle would return to using methamphetamine in the community. The use of methamphetamine was associated with an elevated risk of Mr Ugle committing a serious sexual offence.
(d)The prospects of Mr Ugle being released again on a supervision order depended on a number of goals being successfully achieved – to remain abstinent from any illicit substances; to demonstrate a commitment to remaining abstinent; to work with counselling to gain greater self‑awareness, especially in relation to stress; to develop a more effective plan to avoid risky situations, including exposure to illicit substances; and to complete further counselling to address personal and attitudinal problems and to gain a greater insight into the causes of his offending.
[19] Director of Public Prosecutions (WA) v Ugle[No 5] [2017] WASC 280.
[20] Director of Public Prosecutions (WA) v Ugle[No 5] [196].
The CDO was again reviewed by Fiannaca J in March and May 2019. His Honour affirmed the order. His Honour considered that the fundamental question in the review was:
… 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.
… 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].[21]
[21] The State of Western Australia v Ugle[No 6] [2020] WASC 215 [252].
Justice Fiannaca concluded that:
(a)Mr Ugle had remained abstinent from illicit substance use. However, that was the only goal about which his Honour was confident that Mr Ugle had achieved since the Contravention Proceedings. Moreover, Mr Ugle continued to deny that he had used illicit substances while subject to the Supervision Order.
(b)Mr Ugle had not formulated appropriate plans to prevent a relapse into methamphetamine use. That was especially significant given:
The respondent's belief that he would be at risk of re-offending only if he was 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 would put him at risk of sexual reoffending, he is less likely to resist.[22]
(c)The likely risk scenario for reoffending involved 'a sex offence likely to be opportunistic against a women unknown to [Mr Ugle], likely in the course of committing a generalist offence to finance drug use'.[23]
(d)There was doubt about whether Mr Ugle would comply with the conditions of a supervision order. An essential aspect of managing Mr Ugle's risk in the community was engagement with counselling. Mr Ugle had not meaningfully engaged with counselling despite having participated in some counselling sessions while in custody.
(e)Mr Ugle had not sufficiently matured to enable the Court to confidently conclude that he would comply with the standard or additional conditions of a supervision order.
[22] State of Western Australia v Ugle [No 6] [233].
[23] State of Western Australia v Ugle [No 6] [102].
The evidence in the review
Dr Wynn Owen
Dr Wynn Owen previously assessed Mr Ugle for the purpose of the 2019 review of the CDO. In his report dated 22 May 2021, Dr Wynn Owen stated:
(a)Mr Ugle was vague about the frequency of counselling since the 2019 review. Further:
Overall, Mr Ugle indicated that he had learned enough about himself during his time in prison to successfully self‑manage, and counselling or programmes engaged in to date had made little or no contribution to this improved self‑knowledge and ability now to self‑manage risk such that he would never offend in the future. Mr Ugle at one point in the interview summed up his views on the role of future counselling by saying: 'If it's not broken why try fix it?’.[24]
(b)The risk assessment tools, Static-99R and RSVP, were not developed specifically for use for Indigenous Australian offenders. Consequently, the results from those tests should be critically assessed. However, Mr Ugle's score on the Static-99R test placed him in the 'well above average risk end' group for the likelihood of committing a future sexual offence. Further, a number of risk factors were present - chronicity of sexual violence; diversity of sexual violence; physical coercion in sexual violence; extreme minimisation or denial of sexual violence; problems with self‑awareness; problems with stress or coping; problems with substance use; non-sexual criminality; problems with planning; problems with treatment; and problems with supervision.
(c)It was to be noted in relation to those risk factors that Mr Ugle denied sexually assaulting the 11 year old female victim in April 1993 (MLM). He stated he had participated in related non‑sexual criminal activity with co‑offenders but had pleaded guilty to protect a co‑offender, advising Dr Wynn Owen 'I just took ownership, I wasn't going to tell on my brother'. He also maintained that CJR had consented to intercourse and denied the offences committed in October 2007. He told Dr Wynn Owen that he was in the process of appealing from his convictions for the 2007 offences.
(d)Mr Ugle did not apparently understand what factors might put him at risk of future serious sexual offending apart from substance abuse. Further, he was unable to explain why, or in what context, he might choose to use drugs in the future. He claimed that he could self‑manage in the community so as to avoid stress.
(e)Mr Ugle acknowledged to Dr Wynn Owen that substance use was a risk for future offending. He said, 'If I do drugs for a long period of time I will become a horrible person'. He clarified that statement by saying he would be at risk of future criminal behaviour, including the possibility of sexual offending, if he regularly used methamphetamine over a long period. He denied that he had used drugs during the time he was in the community on the Supervision Order and claimed his results for methamphetamine testing had been deliberately falsified. He was confident he would decline offers of drugs and alcohol in the community, noting that he had returned negative results for urinalysis testing while in prison despite drugs being available.
(f)Mr Ugle had engaged in some counselling since the Supervision Order had been revoked. However, he had made it clear he did not believe it was of assistance to him as, in his opinion, he had learned about himself and would not reoffend in the future.
(g)The risk factor of a psychopathic personality disorder was not present. However, Mr Ugle met the diagnostic criteria for an Antisocial Personality Disorder. The disorder was associated with an increased likelihood of future criminality and, in the presence of a past history of sexual offending, was associated with an elevated risk of sexual offending when compared to an individual who did not suffer from the disorder.
[24] Book of materials (Exhibit 1), vol 2, 217.
Dr Wynn Owen considered that Mr Ugle continued to present a high risk of serious sexual offending if not subject to a restriction order. Dr Wynn Owen stated that:[25]
This assessment of current level risk is based in particular on:
·Mr Ugle's past history of serious sexual offending between 1992 and 2007
·Antisocial Personality Disorder
·A criminal record that comprises diverse generalist and violent offending in addition to serious sexual offending
·Limited treatment engagement, denial of any ongoing need for treatment
·Limited self‑awareness indicated most recently by substance use while subject to a DSO Supervision Order; noting that Mr Ugle has not tested positive to drugs or alcohol in the period under review which is a change from previous periods of imprisonment and indicates the motivation and capacity to remain abstinent in prison
·Limited awareness of emotional state including recognition of experiencing of stress. Mr Ugle continues to state that he does not experience stress and that management of stress is unrelated to risk of offending or risk of future substance use
[25] Book of materials (Exhibit 1), vol 2, 228 - 229.
Dr Wynn Owen considered that Mr Ugle presented with ongoing treatment needs in relation to sexual offending; emotional recognition and emotional self‑management; self‑awareness; and substance use. However, Mr Ugle had not engaged consistently in treatment - he believed that there were no outstanding treatment needs and that he would not gain from therapy. Further, Mr Ugle's denial of substance use while subject to the Supervision Order suggested that the reliability of his self‑reporting remained an issue. And:
[Mr Ugle's] assertion that the positive for methamphetamine urine test results were fabricated, coupled with his implication that he was framed by police for the 2007 serious sexual offences, indicate the likelihood of ongoing suspiciousness as to the motives of staff involved in administering a supervision order which may adversely impact his adherence and openness if subject to a supervision order in future.[26]
[26] Book of materials (Exhibit 1), vol 2, 230.
In his oral evidence, Dr Wynn Owen stated that:
(a) Mr Ugle's denial of some of his sexual offending was a concern as it could lead him to believe that there was no need for criminogenic intervention to address risk factors. Mr Ugle's belief that the offences had not occurred had the flow-on effect by reducing the likelihood of engagement with, and a positive response to, treatment.
(b)Mr Ugle's lack of self-awareness and his denial that he suffered from stress were also concerns. Mr Ugle could place himself in a high risk situation through his lack of awareness; his refusal to acknowledge that he suffered from stress could inhibit the development of appropriate coping and management skills.
(c)Mr Ugle's denial of some of his previous sexual offending did not necessarily preclude safe management in the community. However, self-reporting was a critical component and could significantly improve risk mitigation. Consequently, there may be a significant problem if the denial reflects an unwillingness to reliably self‑report.
(d)Similarly, an offender's willingness to engage with the requirements of a supervision regime may provide protection for the community even if the offender denies past offending. However:
… if somebody lacks insight into the pattern of their offending, they're unable to recognise high risk situations, essentially. This is a huge potential problem in that entering a high risk situation always potentially commences an offence cycle, whether that high risk situation could be for substance use rather than for offending. It could be for poor stress management rather than offending. It's just about recognising those situations. Not being able to recognise them puts one at an increased risk of future offending.[27]
[27] ts 906.
(e)The fact that Mr Ugle had abstained from taking drugs while in custody was a positive change as it indicated a degree of self‑management, at least in a highly structured environment. That also demonstrated an increased motivation to be released to the community and that Mr Ugle was managing stress in other ways. However:
Mr Ugle has had quite a lot of opportunity to change. He's participated in a number programs, albeit not all of them completed, and he's had a fair amount of individual psychological intervention as well, however, his thinking does not appear to have shifted significantly in the last ten years, however, the only really marked change has been that ability to self-manage in relation to substance use in prison. His other opinions and attitudes towards his offending, towards his future, towards risk have not changed significantly either between when I assessed him in – in 2017 and – and now or looking at reports that are – that are held in the materials from quite a long time previously.[28]
(f)While it was likely that Mr Ugle's ability to manage a drug use in prison indicated an enhanced ability to self-manage in the community, it was not clear how far that could be extrapolated from a prison environment to community settings.
(g)While it could not be concluded that Mr Ugle was necessarily antagonistic to supervision in the community, he expressed a sense of irritability and frustration about supervision. Further, he held the belief that he had been 'set up' in relation to the positive drug tests when he was subject to the Supervision Order.
(h)Mr Ugle had insight into the connection between substance use and the risk of re-offending. He had offered to engage with an independent drug testing agency. However, that offer apparently reflected his lack of trust in drug testing by Community Corrections rather than the desire to implement a management strategy to reduce the risk of re-offending.
(i)There were two issues relating to accommodation for Mr Ugle. The accommodation should be stable with Mr Ugle being provided with his own space free from excessive noise and activity by others. Further, assistance should be provided to facilitate Mr Ugle's transition to living in the community.
Dr Poli
[28] ts 909 - 910.
Dr Poli is a senior forensic psychologist with the forensic/specialist psychological service of the Department of Justice. She provided a written report dated 14 May 2021 in which she stated that:
(a)Between 2014 and 2017, Mr Ugle participated in 83 sessions of individual counselling with a psychologist. He was considered to have engaged well and made gains as a result of counselling at the time of the review conducted by Fiannaca J in 2015. However, at the time of the 2017 review, Mr Ugle's progress in counselling was considered to be superficial, limited and 'characterised by denial of and failure to disclose relevant issues'. Further, 'Mr Ugle's denial of the majority of problematic behaviours, his minimisation of issues experienced after release, and his attitude towards release prevention were identified as posing limitations to ongoing therapeutic intervention'.[29]
(b)Mr Ugle participated in six individual counselling sessions after August 2017. He was described as mostly dismissive of counselling but was able to demonstrate a basic understanding of his offending pathway, stress management strategies and mechanisms for managing substance use relapse. His engagement with counselling was minimal and he was regarded as being an unsuitable candidate for ongoing treatment given that he continued to deny the majority of his sexual offending and his use of substances while on the Supervision Order. He also reported seeing no benefit in treatment and believed treatment was 'a redundant exercise that only provided an opportunity to vent'.[30]
(c)Notwithstanding those conclusions, Mr Ugle participated in five further individual counselling sessions following the 2019 review. However, he was unable to identify treatment targets other than 'venting' and 'ticking a box' and admitted that he was engaging in counselling only to 'prove to the courts that he was no longer a risk'. Mr Ugle believed that he was coping well on his own. Consequently, his participation in individual counselling ceased. However, two further counselling sessions were held at the request of Mr Ugle. There was no apparent change in his views about treatment in those sessions.[31]
(d)Prison records indicated that Mr Ugle had not been convicted of any prison based offence since May 2017. He had not returned a positive test for an illicit substance since the 2019 review. However, prison staff had expressed concerns about Mr Ugle's behaviour and attitude during 2020 - 2021.
(e)Mr Ugle confirmed to Dr Poli that he did not consider treatment programmes were helpful as they did not provide him with any insight and he had 'sorted' himself out. He denied feeling stressed and refused to identify any high risk situations or triggers to using substances. He was confident that he would not relapse into substance use. He denied sexually assaulting MLM and ALJ. He maintained that he had consensual sex with CJR and could not explain why he had assaulted SEDB. He considered he was too old to offend sexually and that he was not a 'violent or aggressive person, and never had been'.[32]
(f)Mr Ugle continued to lack comprehensive insight into the antecedents to his sexual offending. He lacked awareness of high risk situations or triggers to sexual reoffending. His strategies to prevent sexual offending in the future were limited to maintaining abstinence from illicit substances. Mr Ugle's failure to successfully engage in counselling reflected, in part, personality factors – over confidence in his ability to self-manage and self-understand, a tendency to minimise problems and dismiss issues, a reluctance or refusal to expose vulnerability or weakness, negative attitudes regarding intervention and a belief that he had sufficiently addressed his treatment needs. He denied some of his past sexual offending and substance use while on the Supervision Order.
[29] Book of materials (Exhibit 1), vol 2, 206.
[30] Book of materials (Exhibit 1), vol 2, 207.
[31] Book of materials (Exhibit 1), vol 2, 207 - 208.
[32] Book of materials (Exhibit 1), vol 2, 210.
In her oral evidence, Dr Poli stated:
(a)Mr Ugle's denial of some of his past sexual offending prevented the antecedents to his offending being fully explored and appropriate management strategies being developed.
(b)She did not regard Mr Ugle as a reliable historian.[33]
(c)She agreed that the negative results for drug testing obtained since the 2019 review represented a positive change in Mr Ugle's behaviour and capacity to self-manage. However, there were differences between a prison environment and being in the community.
(d)Dr Poli's impression was that Mr Ugle had solely engaged in counselling to 'tick a box'; to prove to the courts that he was not going to re-offend. In her opinion Mr Ugle was 'engaging purely for what it looked like on the outside. But wasn't actually intrinsically motivated to be working and engaging'.[34]
Ms Cashmore
[33] ts 921 - 923.
[34] ts 926.
Ms Cashmore is a Senior Community Corrections Officer with the Community Offender Monitoring Unit, Corrective Services. She stated in her report dated 17 May 2021 that:
(a)Mr Ugle had attended a scheduled appointment with her while in custody. However, his level of engagement had been superficial and he had focussed solely on attempting to convince Ms Cashmore of his innocence. He was unable to identify any concrete and realistic strategies to assist him in avoiding high risk situations and in particular, relapse into illicit substance use. He maintained he had been wrongly convicted of offences while on the Supervision Order.
(b)Mr Ugle had engaged with Uniting WA in relation to the supported accommodation programme. There was no accommodation available for Mr Ugle with Uniting WA at the time of Ms Cashmore's report.
(c)Mr Ugle stated he had plenty of community support from family members and he proposed to reside with a niece if he was unable to obtain accommodation with Uniting WA. Ms Cashmore had attempted to contact Mr Ugle's niece on several occasions without success.
In her oral evidence, Ms Cashmore advised that:
(a)Mr Ugle was seventh on a waiting list with Uniting WA.[35]
(b)She had spoken to Mr Ugle's niece since writing her report. Mr Ugle's niece advised that she was not prepared to accommodate Mr Ugle.[36]
(c)It was difficult to estimate when accommodation with Uniting WA might become available for Mr Ugle given the limited number of accommodation units available and Mr Ugle's position on the waiting list.[37]
Mr Ugle's evidence
[35] ts 931.
[36] ts 931.
[37] ts 932.
Mr Ugle elected to give evidence. He emphasised that he had remained drug free since the 2019 review and had been motivated to do so by a desire to return to the community. He had abstained from drug use despite claiming that 'you can still get drugs every day of the week' in prison.[38]
[38] ts 940.
Mr Ugle also stated that:
(a)He had come into contact with people using drugs every day when he was in the community under the Supervision Order. He considered it would be inevitable that he would come into contact with people using drugs if he was again released to the community - 'most of my family are drug addicts … most of my friends are drug addicts'.[39]
[39] ts 943.
(b)He knew what he could and could not do in the community. He knew that he would be required to disassociate from people using drugs. He would not use drugs and he had not used drugs when he had previously been in the community under the Supervision Order. He had been returned to custody for something he had not done.
(c)It would be necessary for him to be on drugs '24/7' for him to be a 'bad person'; that is, to reoffend again.[40]
(d)He would not use drugs even though he would associate with people he knew who were drug affected: 'If I can see someone's down and out on their luck, I know they're drug affected, but I'm not going to walk past them. It's just not the person I am'.[41]
(e)He denied that his self‑reporting was unreliable. He had maintained a diary while he was previously in the community under the Supervision Order. However:
Again, what they're doing is just taking snippets – snippets out of a book – let's say my life is a book. Let's just take this out of this. We'll take this out of this, and we'll take this out of this, and then we've got a better understanding of this individual as a person. No youse don't. Youse know nothing, because youse never read the book.[42]
(f)He had been on a HomesWest waitlist prior to his arrest in November 2016 and he had received correspondence indicating that he was still on the waitlist.[43]
(g)There were everyday stresses when he had been in the community. However, he had managed those stresses.
(h)He had complied with the conditions of the Supervision Order. The positive results for cannabis obtained after he had been released from custody were the result of smoking the drug while in prison. There was no evidence that he had consumed methamphetamine – he had not been arrested, there was no paperwork and there was no court finding (notwithstanding that he was found guilty following a trial in this court).[44]
[40] ts 944.
[41] ts 944.
[42] ts 943.
[43] No correspondence from HomesWest was presented in the review.
[44] ts 952.
Three further and interrelated aspects of Mr Ugle's evidence were relevant. First, Mr Ugle tended to respond to questions about managing the future risk of using illicit substances in the community by denying he had consumed drugs when he had been subject to the Supervision Order.
Second, he was generally dismissive of the need for counselling, supervision or management plans. His evidence reflected his confidence that he could self-manage risk situations; his 'plans' largely consisted of simply denying that he would relapse into substance use in the community. There was no evidence of a plan that involved identifying and avoiding risk situations. He considered that he had 'more than' complied with the conditions of the Supervision Order. Asked, in effect, if he would comply with the requirements of a fresh supervision order, Mr Ugle replied:
I'd carry on the way that I - I - I did it before. You know I mean? But this time I know I'm not going into it with my eye - with - blind. Because I've already had a bite of the apple. I know what's to come …
This is why, this time - that's why. This time now, I said no to drugs on the inside. I've asked for to get a baseline so this history can't repeat itself.[45]
[45] ts 945.
Third, there was a tension in Mr Ugle's evidence that was significant. He recognised at one point that it would be necessary for him to disassociate with others who had or were consuming drugs but the tenor of his evidence was that he would not do so because his family and friends were 'drug addicts' and because he was not that sort of person. That highlighted the lack of any real understanding of the antecedents of his offending. It also raised a substantial doubt about whether Mr Ugle would comply with some of the conditions of a supervision order that would inevitably be imposed – conditions that would require him to immediately remove himself from the presence of any person who was consuming an illicit substance or who was, to his knowledge, affected by a prohibited drug and to leave any place where prohibited drugs were being consumed.[46]
[46] See conditions 33 - 35 of the conditions proposed by the community offender monitoring unit; Book of materials (Exhibit 1), vol 2, 241. Conditions 33 and 34 of the Supervision Order were to that effect.
Review under the HRSO Act
Section 68 HRSO Act provides:
On a review under section 66 of an offender's detention –
(a)if the court does not find that the offender remains a high risk serious offender it must rescind the continuing detention order; or
(b)if the court finds that the offender remains a high risk serious offender it must -
(i)affirm the continuing detention order; or
(ii)subject to section 29, rescind the continuing detention order and make a supervision order.
Section 68(2) states that the paramount consideration in deciding whether to make an order under s 68(1)(b) is the need to ensure adequate protection of the community. Section 29 stipulates that a court cannot make, affirm or amend 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. The onus of proof to satisfy the court of that matter is on the offender. The standard conditions are specified by s 30(2) HRSO Act. Section 30(5) empowers the court to impose other conditions on a supervision order directed to achieving the objectives identified in the sub-section.
Section 7(1) of the Act states that:
An offender is a high risk serious offender if the court dealing with an application under this Act finds that it is satisfied, by acceptable and cogent evidence and to a high degree of probability, that it is necessary to make a restriction order in relation to the offender to ensure adequate protection of the community against an unacceptable risk that the offender will commit a serious offence.
Section 7(3) provides that the court must have regard to the matters specified in the sub-section in considering whether it is satisfied that it is necessary to make a restriction order to ensure the adequate protection of the community against an unacceptable risk that the offender will commit a serious offence.
There are a number of authorities that deal with the proper construction of the equivalent provisions of the repealed DSO Act.[47] It is not necessary to summarise the effect of those authorities having regard to the concessions and findings made in the review.
[47] See for example, Director of Public Prosecutions (WA) v Yates [2014] WASC 136.
Findings and conclusion
I accept the opinions expressed by Dr Wynn Owen and Dr Poli. There was no challenge to their qualifications and it was not suggested that their opinions were based on information that was unreliable or inaccurate or that there was some other basis for rejecting their conclusions. Cross-examination was directed to exploring or highlighting aspects of their reports - in particular, that Mr Ugle's abstinence from consuming illicit substances since the 2019 review was a positive development indicating a degree of self-management and that his denial of past offending did not necessarily mean that his risk of future offending could not be adequately managed in the community.[48]
[48] It should be noted in this context that Mr Ugle accepted that he remained a high risk serious offender.
Dr Poli's report contained numerous facts concerning Mr Ugle's treatment history and his interaction with counsellors and other treatment providers while in custody. I accept that the information contained in Dr Poli's report was accurate. Counsel for Mr Ugle did not suggest otherwise.
Developments since the 2019 review
In making the CDO, Fiannaca J noted that Mr Ugle's prospects of being released to the community depended on a number of goals being successfully achieved. His Honour concluded in the 2019 review that the only goal that it could be confidently said that Mr Ugle had achieved was abstinence from illicit substances.
I am required to reach my own conclusions on the questions to be determined in this review. However:
(a)The views expressed by Fiannaca J about the goals Mr Ugle needed to achieve for his release to the community were consistent with the findings made in the various proceedings under the DSO Act relating to Mr Ugle and the evidence presented in this review. I agree with his Honour's views on the goals that Mr Ugle needs to significantly progress to gain his release to the community.
(b)The evidence in this review again indicated that the only goal identified by Fiannaca J that Mr Ugle had achieved since the 2019 review was abstinence from illicit substance use.
(c)Accordingly, there has been no significant change in the respondent's risk of committing a serious offence since the 2019 review.
Further, there have been no improvements in the resources available to Mr Ugle in the community - there is no suitable accommodation available and no evidence of significant family or other sources of community support. Mr Ugle has not developed any meaningful plan for living in the community.
Mr Ugle has continued to return negative results on urinalysis. That is an important indication of his motivation to return to the community and of his capacity to self-manage. However, drugs will be less freely available to Mr Ugle in prison than in the community - that is especially given Mr Ugle's evidence about the prevalence of drug use among his family members and friends. Moreover, there is some cause for concern about the creatinine readings on urinalysis returned by Mr Ugle.
Mr Ugle's denials of past offending
The court is bound in a review under the HRSO Act to accept as proven facts that Mr Ugle committed the serious sexual offences and contraventions of the Supervision Order for which he has been convicted. However, that does not mean that Mr Ugle's denial of some of his offending precludes his release to the community under a supervision order. What must be assessed is whether Mr Ugle remains a high risk serious offender by reference to the matters specified in s 7(3) HRSO Act and if so, whether the CDO should be affirmed or a supervision order made having regard to paramount consideration of the need to ensure adequate protection of the community and other relevant considerations. The fact that Mr Ugle denies some of the offending for which he has been convicted is a relevant factor in determining those matters but it is not, in itself, a decisive factor.
However, Mr Ugle's denials of his past offending are a cause for concern for the reasons explained by Dr Wynn Owen and Dr Poli. The denials may reflect a refusal by Mr Ugle to acknowledge and confront his past conduct; they may also cast doubt on the reliability of his self-reporting. Those matters, in turn, may limit his capacity for developing self-awareness about the causes of his offending and the need for treatment and effective management strategies.
There are some matters concerning Mr Ugle's denials of his past offending that bear on this issue. First, Mr Ugle denied in his evidence that he had contravened the Supervision Order but he was not taken in his evidence-in-chief to his sexual offending. Evidence of his denials of some of his serious sexual offending was contained in the reports provided by Dr Wynn Owen and Dr Poli.
Second, Mr Ugle's denials were not limited to offences to which he had pleaded not guilty and for which he was convicted following a trial. He maintains that he did not sexually assault MLM despite having pleaded guilty to the charge of having sexually penetrating her. He told Dr Wynn Owen that he had pleaded guilty rather than inform on the offender; he gave a more elaborate explanation to Dr Poli.[49]
[49] Book of materials (Exhibit 1), vol 2, 210.
There has also been some equivocation about Mr Ugle's denial of the assaults committed on ALJ. Justice Simmonds noted evidence given by Dr Hall in the div 2 hearing for the first CDO:
At the same time, as [Dr Hall] acknowledged in his cross-examination, in relation to the fourth serious sexual offences he was of the opinion that Mr Ugle had progressed from his position at trial that he was not present at the scene to acceptance he had been there and had desisted immediately when the victim indicated he was not who she thought he was …[50]
[50] Director of Public Prosecutions v Ugle [No 2] [103].
Third, there was no evidence that Mr Ugle's positive result for methamphetamine while on the Supervision Order was fabricated. Mr Ugle's denial of his contraventions of the order casts doubt on the accuracy of his self-reporting, at least, in respect of the consumption of prohibited drugs. It was apparent from evidence in the review that Mr Ugle considered that those responsible for assessing the risk of future offending drew a connection between substance use and risk. I suspect that Mr Ugle was not willing to admit that he had used prohibited drugs while in the community as he recognised this would be an admission to a serious contravention of the Supervision Order and would jeopardise his prospects of returning to the community.
Fourth, as Dr Wynn Owen and Dr Poli stated, Mr Ugle's denials raised concerns about his self-awareness, ability to develop appropriate management strategies and to accept the need for counselling and supervision in the community. That was so even if the focus of those matters was on Mr Ugle recognising risk situations and developing appropriate management strategies rather than acknowledging past offending.
Having regard to the matters referred to above, and to all of the evidence presented in the review, I consider that (1), there is good reason to doubt the reliability of Mr Ugle's self-reporting and (2), the concerns and views expressed by Dr Wynn Owen and Dr Poli about the implications of Mr Ugle's denial of past offending were well founded.
Finally, on a related matter, Mr Ugle told Dr Wynn Owen that he was not a violent person. However, his examples of why he was not a violent person suggested that he lacked insight into the violent nature of sexual offending.
Is Mr Ugle a high risk serious offender?
Mr Ugle accepted at the review hearing that he was a high risk serious offender. Independently of that concession, I found that Mr Ugle was a high risk serious offender as defined by s 7(1) HRSO Act. I made that finding having regard to:
(a)The opinions expressed by Dr Wynn Owen in his report provided under s 67 and s 74 of the HRSO Act. I accepted the reasons and analysis advanced by Dr Wynn Owen for his conclusion that Mr Ugle remained a high risk of committing a serious offence if not subject to a restriction order. The risk factor review undertaken by Dr Wynn Owen was consistent with the evidence.
(b)The opinions and matters stated by Dr Poli in her report about Mr Ugle's engagement with treatment and counselling, the limited gains he had made and his outstanding treatment needs.
(c)The oral evidence given by Dr Wynn Owen and Dr Poli.
(d)The opinions of Dr Wynn Owen and Dr Poli that Mr Ugle lacks insight into the causes of his offending and that there are doubts about the reliability of his self-reporting. Those opinions were consistent with the evidence presented in the review. I found that there was good reason to doubt the reliability of Mr Ugle's self-reporting and the concerns and opinions of Dr Wynn Owen and Dr Poli about the implications of Mr Ugle's denials of past offending were well founded.
(e)Mr Ugle's history of sexual offending, the circumstances in which he committed serious sexual offences and the pattern of his offending. Mr Ugle's history of offending discloses a pattern of opportunistic sexual assaults committed against vulnerable females encountered in the course of committing other offences. The risk scenario is as described by Dr Hall in the report he provided for the div 2 hearing for the first CDO. It should also be noted that Mr Ugle's offending was marked by impulsivity and in some instances, repetition across a relatively short time. His offending was also associated with illicit substance use.
(f)Mr Ugle's history of limited participation in treatment programs, his attitude towards such programs, his lack of meaningful engagement in individual counselling and consequently, his failure to make significant gains from treatment and counselling.
(g)Mr Ugle's criminal record and the connection between his generalist offending and the circumstances in which he committed serious offences (including, the risk scenario for serious offending).
(h)Mr Ugle's reluctance to disassociate himself from others who are likely to use prohibited drugs and the real prospect that he would often be exposed to drugs in the community as a consequence. Mr Ugle's history of serious offending indicates that there is a real risk that a relapse into illicit substance use could be a precursor to reoffending.
It is relevant to note that some of Mr Ugle's serious offences were committed while he was subject to a community based order or on parole and that he contravened the Supervision Order. Those matters are a further reflection of the difficulties Mr Ugle has with self-management and supervision in the community.
There is a further matter that I have taken into account in finding Mr Ugle is a high risk serious offender: the absence of any suitable stable and supervised accommodation. Mr Ugle has an extensive history of committing burglaries. His serious sexual offences were opportunistic and committed after breaking and entering into houses where a vulnerable female was present. At least some of his serious sexual offending was committed while he was affected by prohibited drugs. I consider that long-term access to stable, supervised accommodation is an important protective factor given that history and pattern of offending.
For the reasons given above, I am satisfied to a high degree of probability, by evidence that I consider to be acceptable and cogent, that it is necessary to make a restriction order to ensure adequate protection of the community against the risk of Mr Ugle committing a serious offence - a risk that I consider to be unacceptable.
What restrictive order should be made?
The paramount consideration in determining whether the CDO should be affirmed or rescinded, and a supervision order made, is the need to ensure adequate protection of the community. Further, I can only rescind the CDO and make a supervision order if I am satisfied, on the balance of probabilities, that Mr Ugle will comply with the standard conditions of a supervision order as specified by s 30(2) HRSO Act.
The findings I made in concluding that Mr Ugle remains a high risk serious offender are, of course, relevant to determining which restrictive order should be made. In particular, I found that:
(a)Mr Ugle has not made progress in achieving all but one of the goals identified by Fiannaca J when the CDO was made.
(b)Mr Ugle has not meaningfully engaged in treatment and counselling and consequently, has only made very limited gains.
(c)Mr Ugle lacks insight into the causes of his offending apart from substance abuse; that he has difficulty with self‑management; and that he does not have a developed plan for managing the risk of relapsing into illicit substance use in the community. The comments made by Fiannaca J reproduced earlier concerning Mr Ugle's lack of an appropriate plan to prevent a relapse into methamphetamine use remain apposite.
(d)There were good grounds for doubting the reliability of Mr Ugle's self-reporting; and
(e)Mr Ugle was reluctant to disassociate himself from others who were likely to use or be affected by prohibited drugs and it was likely that he would be regularly exposed to drugs in the community.
I also consider that Mr Ugle has a misplaced confidence in his ability to abstain from illicit use and to not reoffend. As I have indicated, that attitude has a number of consequences: he does not recognise the need for treatment and counselling and so he has not participated meaningfully in counselling over a long period; he also does not recognise the need for a coherent management plan that addresses risk situations and, more generally, living in the community; accordingly, he has not developed appropriate plans; and he has a cavalier approach to the risk of illicit substance use and committing a serious offence on being released to the community. As Dr Wynn Owen observed, Mr Ugle's thinking does not appear to have shifted significantly in the last ten years. That is most tellingly demonstrated by the extract from the treatment termination report dated 15 March 1999 reproduced earlier in these reasons. In my view, the observations made in that report still accurately capture Mr Ugle's beliefs, attitudes and need for personal counselling.
Those matters count against rescinding the CDO and making a supervision order. Further, the fact that there is no suitable accommodation for Mr Ugle should he be released to the community puts the matter beyond doubt. In my view, the provision of stable, supervised long-term accommodation for Mr Ugle is a necessary condition for his release if the community is to be adequately protected.
Finally, it is not necessary to make a finding about whether Mr Ugle would comply with the standard conditions of a supervision order. However, I do not consider that it is likely that Mr Ugle would comply with all of the conditions of a supervision order on the findings I have made - most obviously, conditions relating to not associating with persons who are using or affected by prohibited drugs.
Accordingly, I have concluded that the CDO should be affirmed.
Finally, I note that Dr Wynn Owen considered that Mr Ugle's attitude towards treatment and counselling programmes indicate that there was little to be gained from compelling him to further participate in such programmes. That view is consistent with the matters stated in Dr Poli's report. Obviously, it is in Mr Ugle's interests that he genuinely reconsiders his approach to treatment, counselling and risk management; it is also in the community's interests. Mr Ugle would benefit from counselling about personal issues of the kind identified in the 1999 treatment termination report as well as counselling directed to substance abuse and sexual offending. The only further suggestion I can make is that, in my view, Mr Ugle would benefit from participating in programmes that are directed to providing him with more effective skills for living in the community.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
IC
Associate to the Honourable Justice Corboy
30 JUNE 2021
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