DIRECTOR OF PUBLIC PROSECUTIONS (WA) -v- UGLE [No 2] [2014] WASC 369 (6 October 2014)

3 If the court makes a finding that the person in question is, within DSO Act s 7, a serious danger to the community, the choice of order under s 17 is between two. One order is for the detention in custody of the person for an indefinite period for control, care or treatment. This is called a div 2 continuing detention order (s 3(1)): s 17(1)(a) (detention order). The other order is that, at all times during the period stated in the order when the person is not in custody, that person be subject to conditions the court considers appropriate and states in the order. This is called a supervision order (s 3(1)). It is provided for in s 17(1)(b) (supervision order).

4 If a detention order is the order chosen, the DPP must apply annually for review of the person in question's detention: DSO Act s 29. There is also provision for the person to apply for leave for that person's detention to be reviewed: s 30.

5 By the present application the DPP asks the court to find Mr Ugle a serious danger to the community and to make a detention order in respect of him.

6 In these reasons I first elaborate on the legislative framework for the present hearing, including the law applicable to that framework.

7 Then I describe the evidence before me and the hearings before me, before describing Mr Ugle's background, including his history of offending, focusing on his serious sexual offences within the meaning of the DSO Act, and on the programmes he has undergone for his sexual offending.

8 Next, I will review the evidence of the two psychiatrists as to Mr Ugle's risk of reoffending, particularly serious sexual reoffending, and as to his management and treatment needs, as well as other evidence as to the options for his management and treatment.

9 I will then address all of the specific factors to which the DSO Act s 7 requires me to have regard in making my determination as to whether or not Mr Ugle is a serious danger to the community.

10 As I have concluded that Mr Ugle is a serious danger to the community, I will then address the choice I must make between the options in DSO Act s 17(1)(a) and s 17(1)(b).

11 Finally, I will set out my determinations and the orders I would make having regard to all of the matters my reasons will address.

The legislative framework and the applicable law

13 As I have indicated, the framework has two components. One relates to the making of a finding that an offender is a serious danger to the community, in DSO Act s 7. The other relates to the choice of order the court must make if it so finds, in s 17.

(1) Before the court dealing with an application under this Act may find that a person is a serious danger to the community, the court has to be satisfied that there is an unacceptable risk that, if the person were not subject to a continuing detention order or a supervision order, the person would commit a serious sexual offence.

(2) The DPP has the onus of satisfying the court as described in subsection (1) and the court has to be satisfied -

(a) by acceptable and cogent evidence; and

(b) to a high degree of probability.

(3) In deciding whether to find that a person is a serious danger to the community, the court must have regard to -

(a) any report that a psychiatrist prepares as required by section 37 for the hearing of the application and the extent to which the person cooperated when the psychiatrist examined the person;

(b) any other medical, psychiatric, psychological, or other assessment relating to the person;

(c) information indicating whether or not the person has a propensity to commit serious sexual offences in the future;

(d) whether or not there is any pattern of offending behaviour on the part of the person;

(e) any efforts by the person to address the cause or causes of the person's offending behaviour, including whether the person has participated in any rehabilitation program;

(f) whether or not the person's participation in any rehabilitation program has had a positive effect on the person;

(g) the person's antecedents and criminal record;

(h) the risk that, if the person were not subject to a continuing detention order or a supervision order, the person would commit a serious sexual offence;

(i) the need to protect members of the community from that risk; and

(j) any other relevant matter.

15 The term 'serious sexual offence' is by DSO Act s 3(1) given the meaning of that term in Evidence Act 1906 (WA) s 106A. That provision applies to sexual offences that are, broadly, ones for which the Criminal Code (WA) provides for a maximum penalty of imprisonment of 7 years or more.

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

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

(b) order that at all times during the period stated in the order when the offender is not in custody the offender be subject to conditions that the court considers appropriate and states in the order.

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

17 The relevant principles relating to the proper construction and effect of the DSO Act s 7 and s 17 were not in dispute before me. As noted in Director of Public Prosecutions (WA) v Yates [2014] WASC 136 [5] (Martin CJ) they are conveniently set out by Corboy J in The State of Western Australia v West [2013] WASC 14 [52]. There Corboy J refers to a number of authorities, including Director of Public Prosecutions (WA) v GTR [2008] WASCA 187; (2008) 38 WAR 307; Director of Public Prosecutions (WA) v Williams [2007] WASCA 206; (2007) 35 WAR 297; Italiano v The State of Western Australia [2009] WASCA 116; Director of Public Prosecutions (WA) v Decke [2009] WASC 312; and The State of Western Australia v Latimer [2006] WASC 235, as follows:

(a) Section 7(1) of the DSO Act provides that before the court may find that a person is a serious danger to the community, it must be satisfied that there is an unacceptable risk that, if the person was not subject to a continuing detention order or a supervision order, the person would commit a serious sexual offence. The expression 'serious sexual offence' has the meaning given to that term in s 106A of the Evidence Act 1906 (WA) (s 3 of the DSO Act).

(b) The DPP carries the onus of satisfying the court about that matter and the court must be satisfied by acceptable and cogent evidence and to a high degree of probability. The expression 'high degree of probability' is incapable of further definition. Clearly, it connotes a standard that is more than the civil standard but less than the criminal standard of proof: [DPP v GTR] [28] (Steytler P and Buss JA; and see at [34] for a further elaboration on what the expression means in its application).

(c) In deciding whether to find a person is a serious danger to the community the court must have regard to each of the matters specified in s 7(3) of the DSO Act.

(d) It will necessarily and automatically follow that a person is a serious danger to the community if the court is satisfied that there is an unacceptable risk that, if the person was not subject to a continuing detention order or a supervision order, the person would commit a serious sexual offence: DPP v GTR [21].

(e) The term 'unacceptable risk' is not defined in the DSO Act. However, a finding of fact that there is an unacceptable risk is an evaluative and predictive finding of fact involving a balancing exercise in which the court is required, on the one hand, to have regard to, among other things, the nature of the risk (the commission of a sexual offence with serious consequences for the victim) and the likelihood of the risk materialising and on the other hand, the serious consequences for the offender (either detention, without having committed an unpunished offence, or being required to undergo what might be an onerous supervision order) if an order is made: [Italiano v State of WA] [4] [Pullin JA] and [46] (Buss JA).

(f) In a passage that was expressly approved in DPP v GTR, Wheeler JA stated in [DPP v Williams] [63]:

'In my view, an 'unacceptable risk' in the context of s 7(1) is a risk which is unacceptable having regard to a variety of considerations which may include the likelihood of the person offending, the type of sexual offence which the person is likely to commit (if that can be predicted) and the consequences of making a finding that an unacceptable risk exists. That is, the judge is required to consider whether, having regard to the likelihood of the person offending and the offence to be committed, the risk of that offending is so unacceptable that, notwithstanding that the person has already been punished for whatever offence they may have actually committed, it is necessary in the interests of the community to ensure that the person is subject to further control or detention.'

(g) The powers conferred by the DSO Act are not to be exercised for the purpose of imposing additional punishment on an offender but rather, for the ultimate purpose of protecting the community. The community will be protected by control continuing to be exercised over the offender; it may also be protected by the provision of care and treatment to the offender while in custody in the hope that the danger posed to the community or sections of it will be reduced: DPP v GTR [97] (Murray AJA).

(h) The court must identify what, if anything, constitutes the risk and factor or factors makes that risk unacceptable and then consider whether or not that factor has, or those factors have, been proved to a high degree of probability by acceptable and cogent evidence: DPP v GTR [34].

(i) The court must make a continuing detention order or a supervision order once it is found that the respondent is a serious danger to the community: Woods v Director of Public Prosecutions for Western Australia [2008] WASCA 188; 38 WAR 217. The paramount consideration in deciding between the orders is the protection of the community. That does not mean that there is a pre-disposition to making a continuing detention order. As Hall J observed in [DPP v Decke], '[i]t cannot simply be assumed that the most assured preventative is detention and therefore, the protection of the community will always favour such an order' [14].

(j) The court should choose the order that is least invasive or destructive of the respondent's right to be at liberty while, at the same time, ensuring an adequate degree of protection of the community: [State of WA v Latimer] and Decke [52].

18 There are two further matters of the principles relating to the proper construction and effect of DSO Act s 17 described in DPP v Yates as follows:

Having regard to established principles of statutory construction, there are two anomalies evident in these principles. First, two different expressions in the Act ('an unacceptable risk that ... the person would commit a serious sexual offence' and 'serious danger to the community') have been given precisely the same meaning. Second, in s 17 the word 'may' has been construed as 'must', and consequently as conveying a duty to make an order, rather than a discretion. However, those aspects of the construction of the Act have been endorsed by decisions of the Court of Appeal of this State ([DPP v Williams]; [DPP v GTR]), and must be taken to represent the current state of the law. In any event, for the reasons which follow, the differing nuances of meaning which might be given to the relevant provisions of the Act would have no bearing upon the outcome of these proceedings.

In some previous cases, questions have arisen as to whether the Act imposes an obligation upon executive government with respect to the provision of resources relating to the management and treatment of offenders falling within the purview of the Act, and as to the extent to which the court should proceed on the basis of an assumption that those resources will be provided (see for example, Director of Public Prosecutions (WA) v Pindan [No 3] [2014] WASC 95; Attorney-General (Qld) v Francis [2006] QCA 324; [2007] 1 Qd R 396; Attorney-General (Qld) v Lawrence [2008] QSC 230; Winters v Attorney-General (NSW) [2008] NSWCA 33; Director of Public Prosecutions (WA) v Pindan [No 2] [2012] WASC 234; Director of Public Prosecutions (WA) v Alvisse [No 6] [2013] WASC 154; Attorney-General (Qld) v Sybenga [2009] QCA 382). There may come a point in time at which the resolution of those issues may be relevant to Mr Yates. However, for the reasons which follow, that point has not yet been reached [6] [7].

19 I also note the following matter of principle, from DPP v Williams (Wheeler JA, Le Miere AJA agreeing):

Of course, if, as was not the case here, his Honour had been satisfied that he had before him all relevant evidence concerning possible conditions which might be imposed on a supervision order, but was simply left in doubt as to whether such an order would adequately protect the community, then, having regard to s 17(2), it would have been necessary for him to have made a continuing detention order [86].

20 For reasons which will become apparent, I do not consider either matter of principle has a significant role to play in this case.

21 DSO Act s 42(2) (4) provides for evidence in an application of the present kind. Those subsections do so as follows:

(2) Before the court makes a decision or order on the hearing of an application it must, if the evidence is admissible -

(a) hear evidence called by the DPP; and

(b) hear evidence given or called by the offender or person subject to the order, if that person elects to give or call evidence.

(3) Except as modified by subsection (4), ordinary rules of evidence apply to evidence given or called under subsection (2).

(4) In making its decision, the court may receive in evidence

(a) any document relevant to a person's antecedents or criminal record;

(b) anything relevant contained in the official transcript of any proceeding against a person for a serious sexual offence, or contained in any medical, psychiatric, psychological or other report tendered in a proceeding of that kind.

23 One form was a one volume book of materials for the hearing, tendered into evidence by the DPP by consent as exhibit 1. There was no objection to any of its contents.

24 In addition, the two psychiatrists named in McKechnie J's orders testified, Dr Tanney by videolink from Canada, and there was a report from each in exhibit 1.

25 One psychiatrist was Dr Mark Hall. His report was dated 14 April 2014 (exhibit 1.62). The other psychiatrist was Dr Bryan Tanney. His report was dated 15 April 2014 (exhibit 1.63).

26 Both psychiatrists were consultant psychiatrists with training and experience in forensic psychiatry and had both had previously provided psychiatric reports for the purposes of the DSO Act. No objection to their qualifications was taken at the present hearing.

27 Evidence was also given in the form of testimony and a report by a forensic psychologist, Ms Chantelle Place, who was employed by the Department of Corrective Services (the Department) in its Dangerous Sex Offender (DSO) Psychology team. Her report was dated 2 April 2014 (exhibit 1.60).

28 Ms Place gave evidence concerning Mr Ugle's participation in programmes offered by the Department in the past and on the programmes that might be offered to Mr Ugle, in custody or outside it, in the future, by or through the Department.

29 Further, evidence was also given in the form of testimony and a report by Ms Judith Dabala, a Senior Community Corrections Officer employed by the Department. Her report was dated 14 April 2014 (exhibit 1.61) and included a set of Proposed Supervision Conditions.

30 Ms Dabala gave evidence concerning Mr Ugle's compliance with orders for supervision in the community for past offending, including offending other than serious sexual offending; his charge history for urinalysis results while in custody; and the results of her enquiries as to what arrangements might be made for his supervision if not in custody.

31 Ms Dabala gave evidence on two occasions, the second after she had prepared a further report, dated 30 May 2014. That report (exhibit 3) addressed issues of accommodation and family support for Mr Ugle under a supervision order.

32 No other witnesses than the four named were called by the DPP. No witness was called for Mr Ugle who did not himself give evidence.

33 In addition to the evidence I have referred to, counsel for Mr Ugle tendered into evidence with the consent of counsel for the DPP extracts from an article from the journal Psychiatry, Psychology and Law, volume 18, number 4, November 2011, pages 540, 545 and 546 (exhibit 2).

34 There were hearings before me at which evidence was taken over four days (on 28 April 2014, 29 April 2014, 2 May 2014 and 4 June 2014). Those hearings were of varying lengths. There was also a directions hearing (on 5 June 2014), after which written closing submissions were provided for the DPP (by email of 10 June 2014) and Mr Ugle (under cover of an email of 24 June 2014).

35 I turn now to background for Mr Ugle, including his offending behaviour.

36 Mr Ugle was born on 12 April 1974, in Pingelly. He has a sister and a number of halfsiblings.

37 He was placed in foster care in a very early age, initially in one home for five years. Both his biological parents and his initial foster parents are now deceased. After initial foster care at a number of homes he lived with an aunt and uncle in Collie and became close to a cousin, whom he regarded as a foster brother and who has since died. When Mr Ugle was 13, his uncle and aunt moved to Perth and he moved with them, continuing his schooling there.

38 There is some evidence of sexual abuse and exposure to alcohol fuelled conflict and violence in his upbringing.

39 Mr Ugle was educated to year 9 or 10. There is evidence of discipline issues during his schooling.

40 After leaving Clontarf Aboriginal College Mr Ugle worked for a short time in a packaging job, and subsequently was largely unemployed, save for sporadic work under the CEDEP. In 2002 he undertook a sixmonth indigenous traineeship in ringing and scaffolding in the northwest of this State. There is also evidence that he worked full-time in 2003 - 2004 in a fly in fly out position.

41 There is also evidence that the issue of him, as an aboriginal man, going through the law had been raised by family members.

42 Mr Ugle has had a number of relationships from which he has had at least two children. His most recent relationship is one of 10 years. However, there is evidence, from him, of difficulties he has had with that relationship because of what he describes as his partner's drug use.

43 Mr Ugle indicated to Ms Dabala he will have the support in the community of three of his sisters (in one case to be provided through a daughter of that sister) and of his aunt and uncle.

44 Mr Ugle has a significant history of substance use. While he has no significant history of alcohol use, he has used cannabis since his early teenage years, including while in custody at present.

45 He has also been a significant user of amphetamines, including since the 1990s, including daily use when those drugs were available.

46 Mr Ugle has a significant and serious criminal history, both as a juvenile and as an adult, that includes both serious sexual offences and other offending. I deal with his serious sexual offences below. Here I focus on his other offending.

47 He first appeared before the courts at age 13 and as a juvenile incurred in the order of 174 convictions for offences including break and enter, stealing and assault.

48 As an adult he incurred 57 convictions for offences including break and enter, aggravated burglary, assault public officer, traffic offences, damage and drug offences.

49 As a juvenile, he received a number of custodial sentences. As an adult he has also received a number of such sentences. In all he has spent 22 of his 40 years in custody, including for serious sexual offences, with the longest time as an adult out of custody of 2 years and 5 months, between his release on completion of the sentence for a number of offences on 16 September 2005 and his return to custody on charges of a number of offences on 19 February 2008.

50 His convictions for serious sexual offending comprises convictions for offences committed respectively on 12 January 1992, 4 February 1993, 1 April 1993 and 21 October 2007. The first was committed while he was under a conditional release order; the second and third were committed while on parole for previous offending, including the first serious sexual offence; and the fourth set of offences, of which there were two counts, were committed while he was subject to a communitybased order.

51 Each of the serious sexual offences was committed on a female victim in her home which Mr Ugle had entered in the course of a burglary or like offence.

52 I now describe those four serious sexual offences in more detail. I describe with them an incident occurring in in the course of an offence of burglary to which my attention was drawn in this connection.

53 The first serious sexual offence, that of 12 January 1992, was committed on a 17yearold female, SEDB. Mr Ugle was at the time of the offence affected by alcohol and drugs. He had been evicted from a bus, and had gone on to break into a house where he found SEDB, demanded money from her, penetrated her vagina with his penis without her consent and took cash.

54 On 20 February 1992 in the Perth Children's Court Mr Ugle was sentenced to 2 years' imprisonment for the first serious sexual offence, that of 12 January 1992, and was also sentenced for other related offending.

55 The second serious sexual offence, that of 4 February 1993, was committed on CJR, an adult female. CJR had undergone surgery the day before and retired to bed in the early evening, having taken medication to ease the pain and having consumed a quantity of alcohol. Mr Ugle was on parole at the time of the offending.

56 On 15 May 1995 in the Perth District Court Mr Ugle was sentenced to 5 years' imprisonment for sexual penetration without consent and 3 years' imprisonment for burglary in respect of the circumstances of the offending of 4 February 1993 on CJR including the second serious sexual offence of that date.

57 The third serious sexual offence, that of 1 April 1993, was committed on MLM, an 11yearold girl. Mr Ugle and two accomplices broke into a family's home at night. Mr Ugle walked into the bedroom of MLM, pulled the blanket and sheets of her, pulled her underpants off and digitally penetrated MLM's vagina. He exposed his penis and demanded that MLM touch it, which she refused to do. He fled when MLM called out to her mother. Mr Ugle was on parole at the time of the offences involved.

58 On 14 January 1994 in the Supreme Court Mr Ugle was sentenced to 7 years' imprisonment for the offence of sexual penetration of a child under 13, the third serious sexual offence. He was also sentenced then for other related offending.

59 The fourth set of serious sexual offences, committed on 21 October 2007, comprised two counts of the offence of sexual penetration without consent, involving digital vaginal penetration and cunnilingus. The offences occurred in the house of the victim ALJ's partner, in the early hours of the morning. ALJ was asleep and initially thought it was her partner performing sexual acts on her. When she realised her error she became alarmed and Mr Ugle fled.

60 On 7 April 2009 in the District Court Mr Ugle was sentenced to 5 years' imprisonment on each count of the fourth serious sexual offences, to be served concurrently.

61 There was a further incident to which Dr Hall referred in his report and in his testimony which was not itself a serious sexual offence or indeed a sexual offence. It involved Mr Ugle on 30 March 1993 entering the home of Ms N and placing a pillow over her face before demanding her purse. He said to Dr Hall that he had used a pillow to prevent her from screaming and adamantly denied that he was trying to suffocate or that his actions had a sexual motive. On 14 January 1994, in the same sentencing proceedings as those in respect of the third serious sexual offence, Mr Ugle was sentenced to 4 years' imprisonment for the offence of burglary and 9 months' imprisonment for stealing with violence for matters in relation to that entry to the home of Ms N.

62 However, Dr Hall as to this incident testified as follows (28 April 2014, examinationinchief, ts 13);

What relevance did you see of it, Dr Hall? The relevance I saw of that was that it was part of what could be seen as a spree of offending shortly after having been released with the offending behaviour immediately within a few days prior and post having been sexual offences and with a questionable MO. So with respect to whether it formed a serious sexual offence, no, I don't contend that it did but I consider that it was relevant in terms of his overall behaviour as I need to consider it to calculate his risk of reoffending, as is my task with this report.

63 Dr Tanney in his testimony also indicated, as I understood him, that that behaviour needed to be considered in view of the similarity to his serious sexual offending, involving as it did physical contact with a female in the course of a burglary (see 29 April 2014, crossexamination, ts 211 212).

64 I turn now to the rehabilitation programmes Mr Ugle has undergone for his sexual offending.

65 I here describe the history for Mr Ugle in outline. I return to this matter below as it was the subject of a significant body of evidence before me.

66 Following his conviction on 20 February 1992 for the first serious sexual offence, that committed on 12 January 1992, Mr Ugle did not receive any sex offender treatment programme while in prison. This was because he denied committing any sexual offences. This was notwithstanding that he had been convicted of the first serious sexual offence on his plea of guilty.

67 Following his convictions on 14 January 1994 for the third serious sexual offence and on 15 January 1995 for the second serious sexual offence Mr Ugle commenced, on 9 December 1998, the Intensive Sexual Offender Treatment Program (ISOTP) in Bunbury Prison. However, on his election, he left that ISOTP on 3 March 1999.

68 Later in 1999 Mr Ugle was interviewed to determine his willingness to participate in the ISOTP in Casuarina Prison that was to commence in July/August 1999. He indicated he was not interested in participating.

69 Following his conviction on 7 April 2009 for the fourth serious sexual offence, Mr Ugle was assessed for treatment, during which he denied committing the sexual offences and denied having a sexual interest in children. However, he stated he was willing to engage in the Sex Offender Deniers Program (SODP). As a result he was enrolled in the SODP to begin in 2010. However, subsequently, on his election, the booking was cancelled.

70 At the same time, on 3 February 2010 Mr Ugle completed the Pathways programme in Bunbury Prison.

71 In 2012 Mr Ugle was interviewed to determine his willingness to participate in an ISOTP. He indicated his refusal to participate.

72 There is no evidence Mr Ugle sought out, was offered or participated in any treatment programmes while in the community.

73 It was not in contest that both Dr Hall or Dr Tanney have substantial experience as consultant psychiatrists, and that both of them have expertise in the assessment of offenders for the purposes of proceedings such as these.

74 It will be seen that there are differences in the opinions of the two psychiatrists. However, as I will indicate, those differences are of greater significance to me in relation to the question of what choice should be made between a continuing detention order and a supervision order than in relation to the question whether Mr Ugle is a serious danger to the community.

75 I deal with the evidence of each psychiatrist in turn. I first describe the sources of information about Mr Ugle each relied upon, before describing their overall assessment of the risk of sexual reoffending and the basis for that assessment. I also describe the assessment of each psychiatrist of the possibilities for management of that risk and the basis in each case for that assessment.

76 The sources of information about Mr Ugle on which Dr Hall based his report were interviews with Mr Ugle at Casuarina Prison on 28 March 2014 and 4 April 2014, for a total of six hours; material provided to Dr Hall for the purposes of the DSO Act s 38(1) comprising, it would seem, the bulk of the material in what became exhibit 1, as well as the report of Ms Place that became exhibit 1.60; and a telephone discussion with Ms Dabala.

77 Dr Hall's overall assessment of the risk of Mr Ugle reoffending sexually was that that risk was high without intervention in the form of a continuing detention order or a supervision order. In his testimony Dr Hall explained that risk was not of imminent serious sexual reoffending.

78 In Dr Hall's opinion, were Mr Ugle to re-offend sexually, the kind of sexual violence he would be most likely to commit would be opportunistic penetration or attempted penetration of an adult female unknown to him, in her own residence, during the course of the commission of another crime, such as burglary. The likely motivation for that sexual reoffending would be impulsive gratification of a sexual impulse. However, Dr Hall opined, 'the assertion of dominance and exercise of power in its own right' could 'not be excluded' as a motive, given Mr Ugle's own history of abuse and maternal abandonment (exhibit 1.62 [73]). Dr Hall in his testimony indicated that that phrasing in his report was because 'we don't know enough about Mr Ugle to say with certainty what really would motivate him in the event of a reoffence' (28 April 2014, examinationinchief, ts 63).

79 In the event of such sexual reoffending, Dr Hall opined, the psychological harm to the victim would be severe, with posttraumatic phenomena that would typically include anxiety, flashbacks, depression and suicidal thoughts. The physical harm that might result would most likely be limited to infections or minor soft tissue trauma.

80 The risk was low that the sexual violence would escalate to serious or lifethreatening violence. Mr Ugle was more likely to flee than to inflict serious nonsexual violence in the heat of the moment.

81 The imminence of reoffending would depend on Mr Ugle's ability to manage his substance use, peer relationships and potential generalist offending.

82 The warning signs that the risk of sexual offending might be increasing or imminent included relapse to substance use, a return to a socially deviant lifestyle populated by antisocial peers and financial hardship.

83 The basis for Dr Hall's assessment was his use of actuarial instruments and structured clinical guides.

84 Actuarial instruments are ones using mainly static risk factors, with scores obtained on the use of such instruments able to be related to massed statistical reference data. The actuarial instruments Dr Hall used were the Static99R (Hansen & Thornton 1999) and the Hare Psychopathy Checklist - Revised (PCLR) (Hare, 1991 and 2002).

85 Mr Ugle's score on the Static99R as administered by Dr Hall placed Mr Ugle in the high risk category. He had a score of 6, placing him into the 91.9% 96.2% percentile. From the massed statistical reference data referred to the recidivism rate of sexual offenders with the same score as Mr Ugle would be expected to be approximately four times higher than that of a typical sex offender. Individuals in that high risk category on the Static99R had a 31% chance of recidivism within five years.

86 Dr Hall acknowledged that there were a number of limitations on the use of the Static99R as a means for assessing risk of reoffending, of which the 'main limitation' (28 April 2014, crossexamination, ts 76) was that stated in the professional literature quoted to Dr Hall, a statement with which he agreed, as follows (crossexamination, ts 78, quoting from what became exhibit 2):

'Therefore, an individual score in the actuarial tool fails to be a reliable guide to the individual specific risk to sexually reoffend for the simple reason that actuarial methods are not designed to assign levels of risk to individuals, but to groups.'

87 Further, Dr Hall acknowledged that, while the Static99R had been validated across different populations - with there being Canadian, Swedish, USA and UK samples - and across a broad range of sex offences, it had not been validated for use in Australia, and not validated on indigenous sex offenders, let alone subsets of such offenders, such as ones from remote and non-remote communities (see exhibit 1.62 [79]; and 28 April 2014, crossexamination, ts 79 81).

88 Dr Hall was also asked questions in crossexamination about a 2012 report prepared by the Department of Corrective Services examining the use of the Static99R, and its predecessor, the Static99, on indigenous Western Australian populations. He accepted the following propositions put to him as to the 'key summary findings' of the report (28 April 2014, crossexamination, ts 86):

Neither the Static-99 nor the Static-99R was able to significantly predict sexual recidivism in Indigenous WA sex offenders?Yes.

That was the findings of that study?Yes.

Now, in fairness, they go on to say that it might be the case that, in fact, these tools are under-predicting risk?Yes.

But the upshot of what they say is that at the moment in WA you shouldn't be using these tools?Yes.

You accept that that's what that Department of Corrective Services paper effectively says?Yes.

And that there needs to be more work done into understanding the results of this test ? Yes.

- - - which seems to say that at the moment we're not sure how Static99 and Static-99R actually relates to Indigenous offenders ?Yes.

such that we actually caution against using the tool at all?The department does, yes.

89 In addition Dr Hall acknowledged the Static99R used a definition of sexual offending that was 'dissimilar' to that of 'serious sexual offending' in the DSO Act (28 April 2014, crossexamination, ts 82). The definition for the purposes of the Static99R was 'more or less talking about a reoffence of a kind that is similar to that which has been committed already' (28 April 2014, crossexamination, ts 83). In addition, the Static99R used as its definition of an offence that which formed the subject of a charge, whether or not the offender was acquitted of that charge (see 28 April 2014, crossexamination, ts 83 84).

90 However, I understood Dr Hall's evidence to be that, while the Static99R should only be applied to indigenous people, such as Mr Ugle, with 'extreme caution' (exhibit 1.62 [79]), he would not 'throw the baby out with the bathwater' (28 April 2014, crossexamination, ts 86). I understood this last opinion in terms of his response to the question in his examinationinchief whether or not that consideration of the 'extreme caution' kind made him 'less confident' about his conclusions, as follows (28 April 2014, examinationinchief, ts 71; see also crossexamination, ts 86):

No. It doesn't make me significantly less confident. Just - but it does make me mindful that we can't assume to know everything. But I think that the - the actuarial tools, when supplemented with the structured professional judgment tool, like the RSVP, which allows for a high level of individual focus, and consideration of the factors specific to that individual, I think that does diminish the concerns and - and give an acceptable degree of robustness to - to the assessment of risk.

91 Mr Ugle's score on the PCLR as administered by Dr Hall was in the moderate range.

92 The PCLR assessed the extent to which an individual's personality structure conformed to the clinical constructed psychopathy. A score obtained on the PCLR was an important component of other risk assessment tools, including structured clinical guides.

93 In his crossexamination, Dr Hall acknowledged that the PCLR had been found to be a good predictor of violent reoffending, and indeed that was one of the reasons Dr Hall had used it. At the same time, there was no 'good evidence' that it was a good predictor of sexual reoffending (see 28 April 2014, crossexamination, ts 89 91, quotation is from ts 90).

94 At the same time, I did not understand Dr Hall to be using the PCLR on its own as a predictor of sexual offending, but rather as a component of other risk assessment tools, as I have indicated.

95 The score of moderate on the PCLR indicated, Dr Hall said, Mr Ugle had many of the features of psychopathy as defined by the PCLR. Mr Ugle had a low to moderate score on the interpersonal and affective facets of the PCLR; however, he scored in the moderate to high range on the lifestyle and anti-social facets of the instrument. Individuals with a score in the moderate to high range on the lifestyle and antisocial facets of the instrument tended to be impulsive, sensation seeking or otherwise unstable and have a very persistent anti-social lifestyle with frequent and serious violations of social and legal expectations from an early age. While this profile was not indicative of a diagnosable psychopathy, it was consistent with Dr Hall's diagnosis for Mr Ugle of an antisocial personality disorder.

96 That diagnosis of antisocial personality disorder was derived from Dr Hall's assessment of Mr Ugle's upbringing as characterised by social, emotional and economic deprivation and an assessment of Mr Ugle's adult personality as having enduring traits of impulsivity and recklessness. This is coupled with recidivist offending in which he demonstrated a preparedness to violate the rights of others and an associated lack of empathy.

97 Structured clinical guides, by contrast with actuarial instruments, use both static and dynamic factors. The structured clinical guide Dr Hall used was the Risk for Sexual Violence Protocol (RSVP) (Hart, Kropp, Laws, Klaver, Logan and Watt, 2003). The RSVP was a 22item guide for assessing risk of sexual violence, covering a range of risk factors of sexual offending with emphasis given to manageability of the risk of future sexual violence.

98 Dr Hall indicated that structured clinical guides such as the RSVP by their nature assisted persons in his position to make a reasonable attempt to assess risk notwithstanding appropriate concerns regarding the use of actuarial instruments such as the Static99R with Australian indigenous people.

99 Dr Hall in his report identified a number of factors as of significance from his use of the RSVP under the following heads or domains.

100 In the domain of sexual violence history, Dr Hall reported that Mr Ugle possessed a risk factor of chronicity of sexual violence in that he had engaged in persistent and frequent offending taking into account his time at risk (spent in the community).

101 In his crossexamination, Dr Hall accepted that only the first serious sexual offence was one with a level of violence above that which might be seen to be the violence inherent in every sexual offence without consent (see 28 April 2014, crossexamination, ts 104). He further accepted that the use of actual violence above and beyond the commission of the offence itself was a low risk (see ts 104).

102 In his testimony, Dr Hall further said that, while that sexual offending history did not on its own 'add up' to a 'propensity for continuing sexual offending', it was 'one of a number of factors' that would 'feed into that assessment' (28 April 2014, examinationinchief, ts 13).

103 In the domain of psychological adjustment, Dr Hall reported that Mr Ugle possessed the risk factor of extreme minimisation or denial of sexual violence in that he denied the offending, or the nonconsensual nature of his actions, or the seriousness of the offence, for all but his first serious sexual offence. In his report and his testimony Dr Hall referred to his exchange with Mr Ugle in relation to the fourth sexual offences as showing a tendency of Mr Ugle to blame his use of amphetamines for that offending. In his testimony Dr Hall said that his report's reference to Mr Ugle telling him his confession to the third sexual offence, involving the 11yearold child, had been 'coaxed' from him was an indication of denial and lack of self-awareness, with the latter 'possibly' becoming 'more entrenched' over time (28 April 2014, examinationinchief, ts 39). At the same time, as he acknowledged in his crossexamination, in relation to the fourth serious sexual offences he was of the opinion that Mr Ugle had progressed from his position at the 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 (see 28 April 2014, crossexamination, ts 109).

104 Dr Hall saw Mr Ugle also possessed of attitudes supporting or condoning sexual violence in that, although he did not espouse the view that sexual violence was acceptable, and was not overly misogynistic, his pattern of behaviour was indicative of the objectification of women and preparedness to violate the right of others to be safe in bed in their own homes.

105 Further, he exhibited problems with self-awareness in that he lacked an appreciation of the factors and processes that placed him at risk of sexual violence; as well he lacked an awareness of his own mental processes or emotional states more generally.

106 In his testimony Dr Hall indicated that Mr Ugle referring to not thinking too much about his emotions came up repeatedly in his interview. Dr Hall also testified that Mr Ugle said that stress was not a problem for him, adding (28 April 2014, examinationinchief, ts 32):

I believe that stress is a problem for Mr Ugle and it's his acknowledgment of that which is also - it's his failure to acknowledge that which is also a problem for Mr Ugle.

107 Dr Hall reported that Mr Ugle also possessed the risk factor of problems resulting from child abuse in that he had never dealt with his own childhood sexual victimisation, which appeared to play some part in his current psychological functioning and vulnerability to sexual offending.

108 In the domain of mental disorder, Dr Hall reported that Mr Ugle possessed a risk factor of problems with substance abuse, in that his use of methamphetamine and cannabis over many years had impaired his psychosocial functioning and had been a major contributor to his offending. In addition, he had continued to use cannabis in prison up to as recently as 2013.

109 I note in passing in that last respect the references in Ms Dabala's report (exhibit 1.61) to Mr Ugle returning prison urinalysis test results positive to cannabis on four occasions: 3 July 2008; 4 November 2009; 16 September 2013; and 28 October 2013 (see exhibit 1.61, page 335).

110 In his crossexamination, Dr Hall testified that, while the use of methamphetamine was possibly relevant to sex drive, there was no consistency in the psychological or other scientific literature concerning a link between cannabis and sexual reoffending. Rather, the use of both substances might require offending to fund that use, and cannabis might itself contribute to his being part of a social milieu that would incline to the loss of his ability to make a reasonable judgement as to the use of methamphetamine (see 28 April 2014, crossexamination, ts 111 112).

111 In his testimony Dr Hall said that in view of some of the inconsistencies in the material he had for Mr Ugle he had to assume that Mr Ugle was in fact minimising his past substance use (see 28 April 2014, examinationinchief, ts 16). In respect of these inconsistencies, I note Dr Hall testified that at one point Mr Ugle had said to him that he would at times go out of his way to get cannabis and that it caused him to feel calm, and that he would have everyone in prison on cannabis if it were up to him; but he had also said he did not use cannabis to regulate his emotions (see ts 19).

112 In respect of methamphetamine use, the drug of greatest concern to Dr Hall, in crossexamination he acknowledged that Mr Ugle had expressed to him a desire and a motivation to be free of that drug, and not expressed the positive attitude towards that drug that he had described for cannabis (see 28 April 2014, crossexamination, ts 116).

113 In the domain of social adjustment, Dr Hall reported that Mr Ugle possessed the risk factor of problems with intimate relationships, in that he had had a number of shortterm relationships earlier in his life which had not endured despite children resulting from them; and his most recent relationship had been marred by mutual substance use and posed an obstacle to Mr Ugle's successful abstinence.

114 Dr Hall reported that Mr Ugle also had problems with nonintimate relationships in that he had a minimal positive social support network that was overshadowed by well-established negative peer associations.

115 Dr Hall reported that Mr Ugle had problems with employment in that he had failed to establish or maintain any stable employment, as indicated by longterm unemployment outside prison.

116 Dr Hall also reported that Mr Ugle clearly possessed a risk factor of nonsexual criminality with a history of persistent and frequent criminal activity reflective of his antisocial attitudes, lifestyle and peer associations.

117 In the domain of manageability, Dr Hall reported that Mr Ugle possessed the risk factor of problems with planning. He was impulsive and had failed to formulate realistic long-term goals or plans with respect to residence, employment or relationships. Further, his plans for avoiding relapse into substance use were shallow and naive.

118 There were also problems with treatment in that Mr Ugle had demonstrated poor engagement with therapeutic endeavours to the date of Dr Hall's report. He had failed to benefit from the Pathways programme and withdrawn from a previous sexual offender treatment programme. Dr Hall also noted that Mr Ugle did not ever receive the individual therapy which was recommended for him during a previous term of imprisonment, which to Dr Hall seemed relevant in light of Mr Ugle's ongoing refusal to consider group-based programmes.

119 Dr Hall testified that Mr Ugle had not shown any significant progress over the time he had spent in prison and the time he had been committing offences, and that his attitude to treatment had not changed. He described that attitude as follows (28 April 2014, examinationinchief, ts 26):

If that's the way he was?Yes, because that was my observation as well, so between 1999 and 2014 I found that his - his attitude to treatment in respect of dismissing the benefit that a treatment program could have relative to believing that he himself was the solution to his problems, and could - could address that himself without any intervention, that had remained unchanged.

Yes. So he's the same when you're reviewing now in 2014 as he was reported to be back in '99?Yes. I felt that there had been no shift in that attitude over 15 years.

120 In his testimony, Dr Hall said this as to the importance for Mr Ugle of him surmounting his aversion to group therapy (28 April 2014, examinationinchief, ts 43):

But until he gets over that and goes through that group assessment - sorry - this group treatment therapy, he remains at a high level of risk of further sexual offending. Is that right?Yes. And there's - and there's nothing to say that he wouldn't remain a high level of risk after that therapy, but without undertaking the therapy he - he wouldn't gain the benefit of potentially ameliorating any risk that he poses now through an understanding or through how someone assessing him would interpret that participation.

So there is this secondary issue that the assessment of him would remain at higher level if he doesn't do it than otherwise ?Yes.

even if he ultimately got no benefit from it as a matter of objective fact?Yes.

121 Dr Hall reported that Mr Ugle also possessed the risk factor of problems with supervision in that he had committed serious sexual offences while on parole supervision in the past, and remained difficult to engage.

122 In his crossexamination Dr Hall acknowledged that empirical studies had yielded conclusions that a large number of factors of the kinds I have listed had been found not to be strongly correlated with the risk of reoffending. Those factors were minimising culpability; denial of offending; low treatment motivation; lack of victim empathy; prior history of violent offending; being a victim of sexual abuse; and an adverse childhood environment (see 28 April 2014, crossexamination, ts 91 92, 94; and see ts 93 98 (referring to exhibit 2)).

123 However, Dr Hall went on to explain why, notwithstanding that lack of empirical support in some cases, he drew on the factors as he did (28 April 2014, crossexamination, ts 92 93):

Yes. So in of themselves as individual factors as far as - and within the limitations of what a statistical analysis can tell us and - and - and the power of a statistical analysis to isolate, free from other influences, a particular factor and how that corresponds to an outcome, in and of themselves the correlation is - is weak and, indeed, the correlation is weak for all but very few risk factors associated with sexual reoffence and so it stands to reason that in the presence of one or two weakly correlated risk factors, the risk would not be assessed to be particularly great, or one would be foolish to say that the risk is - is particularly great. However, in the presence of every weakly correlated risk factor and taking into account the context of the individual, so again it's about focusing on the individual person and their - their specific circumstance, then a judgment needs to be made. So in and of themselves each - each risk factor is - is not - all but a couple are relatively weakly associated with - as - as in the case with lung and cancer, it doesn't mean that we don't try to get people to stop smoking to reduce the rates of lung cancer.

SIMMONDS J: Then why do we call them 'risk factors'?Because there - there is a correlation. It's not a negative correlation and it's not a zero correlation. It is a weak correlation, but a correlation nonetheless which - which in and of itself, as an isolated factor, may not mean much, but in totality.

Yes. Thank you. Yes.

BARONE, MS: And is it fair to say, Doctor, that - I want to go back to that very first question that I posed to you: that there's a difference between level/quantum of risk and manageability of risk?Yes.

And it's those factors that might be - well, we've just talked about not being strongly correlated to the risk of reoffence; that whilst they might not inform strongly your answer on quantum, they might very well still be relevant to the issue of manageability?Yes.

Is that correct?Yes.

Is that perhaps a broader broader answer to what his Honour is saying, is 'Why am I hearing about them if they're not strongly correlated'?That's - yes, yes.

124 Dr Hall as I understood his testimony accepted that those were examples of factors which did not, at least in and of themselves, inform assessment of risk but rather went to the manageability or treatment of risk, being factors particularly relevant to Mr Ugle, which were minimisation of culpability; lack of treatment motivation; and lack of, or limited, victim empathy (see 28 April 2014, crossexamination, ts 95 97).

125 Further, Dr Hall accepted that neither of the two factors the literature to which exhibit 2 referred indicated as strongly correlated with the risk of reoffence was present for Mr Ugle. That correlation was particularly strong when they were found together. One factor was deviance, which notwithstanding the third serious sexual offence, against the 11yearold child, Dr Hall was not able to find was present for Mr Ugle, in that respect accepting his conclusion was different from that of the psychologist, Ms Place, in her report, a matter to which I will return; the other was psychopathy, which he was also unable to find for Mr Ugle (see 28 April 2014, crossexamination, ts 98 103).

126 However, I understood Dr Hall's evidence to be that risk prediction was not (at present at least) a science, but based on informed professional judgement. His assessment of Mr Ugle's risk was one he considered he was able to arrive at on that latter basis. This testimony included that, accepting the limitations of the tools he used, the fact they could be seen to 'align' provided 'some comfort' to his 'overall assessment' (29 April 2014, reexamination ts 269 270).

127 Viewing his assessment in that light, I do not consider that Dr Hall's assessment was significantly qualified in any respect material to me in the course of his testimony.

128 I further consider that Dr Hall's assessment was supported by the material on which he relied.

129 As to the possibilities for management of Mr Ugle's risk of serious sexual offending, in custody and in the community, Dr Hall's overall assessment was as follows (exhibit 1.62 [82]):

Mr Ugle's risk may be manageable in the community in the event that he engages well with a psychologist from the DSO Psychology Team, abstains from the use of illicit substances, avoids antisocial peers, and is able to structure his day. The above would provide a basis for progress with respect to the development of insight into his sexual offending and his emotions, addressing past sexual abuse and grief issues, and ongoing work around preventing relapse of substance use. Despite his defensive exterior, there is a sense that Mr Ugle may be effectively engaged in individual therapy over time, either as a stand-alone intervention or, ideally, as a precursor to participation in a group program in due course. In the event of engagement, and in the absence of earlier relapse to substance use and offending, Mr Ugle might then be expected to make reasonable gains in terms of the above areas within a few years. The above interventions could be provided in either the community or the prison setting, although the latter would provide some opportunity to engage with a therapist prior to entering the community. In either case, stable and suitable accommodation would be required from the moment of his release in order for the above measures to have a good prospect of success.

130 I note the qualified character of the assessment of manageability in the community, including the qualification for engagement with a psychologist from the DSO Psychology Team. In his testimony Dr Hall said, as to that qualification (28 April 2014, examinationinchief, ts 73):

[I]n my clinical experience Mr Ugle presented to me as someone with whom a clinician could develop an effective therapeutic relationship in time, as opposed to someone who quite clearly has almost no prospect of developing an effective therapeutic relationship with a clinician.

And until, or unless and until that relationship is established, the high risk remains. Is that right?Yes.

131 In respect of the remaining qualifications, I understood Dr Hall's evidence to be that there was a realistic prospect of Mr Ugle addressing those matters, at least in conjunction with the engagement with a psychologist described (see in particular 28 April 2014, examinationinchief, ts 73).

132 Dr Hall in his testimony accepted that there was a distinction between reducing a risk of re-offending and managing that risk, as by monitoring and supervision. He further accepted that monitoring and supervision might be provided through conditions for engagement with treatment and other conditions in a supervision order.

133 Thus, as to the distinction referred to I note the following exchange with Dr Hall (28 April 2014, crossexamination, ts 74):

Doctor, there's a big difference between identifying the level of risk and then talking or speaking about the manageability of risk; is that right?Yes.

And, in fact, your role, or as you see your role, is to comment on both?Yes.

When we speak about level of risk, we talk about the nomenclature of low, moderate, high, whichever one happens to be chosen by that psychiatrist; is that right?Yes.

Of which I think you've given evidence and your reports says is high?Yes.

When we talk about risk, management of risk, that's where you start talking about things such as employment, relationships, treatment?Yes.

Right. In fact, one could have a level of risk which is not manageable; is that correct?Yes.

And one could have a high level of risk that is manageable?Yes.

So the mere fact that you have a finding of high isn't or doesn't equate to saying that that risk is unmanageable; is that correct?That's right. That's correct.

And it certainly doesn't mean that the risk is unmanageable in the community, does it, simply because you've come to the quantum of high?That's correct. That's correct.

134 Thus, as to methods for management of risk, I note the following exchange with Dr Hall concerning Mr Ugle's participation in one to one, as opposed to group, counselling (29 April 2014, crossexamination, ts 137 139):

And if I understand correctly, one-to-one treatment is going to ameliorate risk. Is that right?Yes.

Hopefully?Yes.

Theoretically and hopefully?Yes.

That's quite separate from the concept of managing his risk, isn't it?Yes.

Yes. I think the very first question I asked you is you could have a high level of risk that is actually manageable in the community. Is that correct?Yes.

So the mere fact that he might need time to engage on a one to one basis on a therapeutic basis might speak to how long it will take to ameliorate risk from high. Is that correct?Yes.

But it doesn't necessarily speak to whether or not he is capable of being managed in the community or his risk is capable of being managed in the community today, does it?That's correct.

So when you gave that evidence about, well, it's going to take a bit of time to develop this relationship and to see those ameliorations, you're not saying that that needs to occur prior to release, are you?Not necessarily.

No. And there is one key thing the court can or you can do to guard against risk whilst that amelioration is occurring and that's prohibitions, isn't it?Yes.

Such as prohibitions on alcohol?Yes.

Yes. And, most importantly, on drugs?Yes.

Are they the two key prohibitions that you would see?Yes.

And potentially combined with a curfew ?Yes.

to prevent his movement in terms of sheer access to doing a burglary?Yes.

Yes. So are they the things that you would say would be critical to risk management whilst the one to one counselling got underway?Yes.

And that in answer to perhaps my learned friend's concerns might be, 'Well, you have (indistinct) the prohibitions in the commencement of any form of supervision in the community'?Sorry. Can you rephrase?

As in concerns about what risk there might be whilst you wait for amelioration to kick in?Yes.

You could respond with management by having tighter prohibitions?Yes.

Or tighter controls?Yes.

Whilst you wait for that amelioration to kick in?Yes.

Yes. And it might be that the amelioration is quick and it might be that it's slow?Yes.

Yes. So flexible prohibitions are needed. Is that right?Yes.

So an ability for a Community Corrections officer to think about and respond to management and risk signs and those sorts of things?Yes.

One-to-one counselling isn't just about the amelioration of risk though, is it?No.

It's also about monitoring risk?Yes.

Yes. And it can be a very useful tool for getting feedback about where a person is at, even if we're not making any treatment gains at all?Yes.

So a one-to-one session might give you an insight into what a person has been doing?Yes.

Yes. And I think you spoke about having a structured day?Yes.

So dealing with lack of engagement, employment and boredom, essentially?Yes.

Which would prevent Mr Ugle from getting into that negative peer group?Yes.

Or prevent him from - sorry. That was a yes for the - just for the ?Yes.

Yes. Or prevent him from re-engaging in burglaries or having the opportunity to re-engage in burglaries, essentially?Yes.

So one-to-one counselling might be able to just get simple feedback information, which can tell us the key warning signs to things going off the rails for Mr Ugle?Yes.

Which would be that he is starting to have negative peer associations and looking at property offending again?Yes.

The key warning sign would be drug use, right?Yes.

Yes. So that's where urinalysis ?Yes.

assertive ?Yes.

and constant monitoring ?Yes.

to ensure that he is compliant with not using substances?Yes.

If he's not using substances and not committing burglaries, is he likely to reoffend sexually?He is much less likely to do so.

135 It will be noted that Dr Hall in that testimony addresses the qualifications in exhibit 1.63 [82] above of his assessment of Mr Ugle's manageability in the community.

136 Dr Hall expands on the significance of those qualifications and the realistic prospect of Mr Ugle addressing the matters they refer to in the following exchange (29 April 2014, crossexamination, ts 141 142):

So it's not - do you have to have every single one of those parts for him to be manageable?In my opinion, yes. I think that you would need to have all of those as a package to be reasonably confident that he was going to be manageable.

And they're all things, in your assessment of Mr Ugle, at this stage, appear capable of management in the community?Yes.

Because he seems, from your assessment and from historical information, that he would be in a position to engage well with a psychologist?Yes.

That he would be able to at least make attempts to abstain from illicit substance use?Yes.

That he's going to need guidance and assistance and support in that regard?Yes.

Combined with monitoring and feedback ?Yes.

in terms of being dealt with if there's a breach?Yes.

And avoiding social peers and being able to structure his day?Yes.

Because it is the case that he has worked in the past, hasn't he?Briefly.

Did he not report to you that he had a six-month job on Roebourne, a traineeship?Yes.

And he doesn't come across as someone who is illiterate ?That's correct.

or uneducated?That's correct.

From the point of view that he's quite a commanding speaker ?Yes.

and can present himself fairly well?Yes.

So he has perhaps got fewer of the hurdles in terms of employment than others might have that you often see in this scenario?That's right, that's right.

That's not to say he's going to be falling over with job opportunities immediately, but he's in a better position perhaps than others?Yes.

Now, I think you say, well, it's not for you to tell his Honour whether or not he should or shouldn't be released from custody?Yes.

But you are of - and don't get me wrong - you say that the factors which go towards his management of risk ?Yes.

are certainly capable of management in the community at the moment?Yes.

And that there's nothing essential that needs to be done in custody prior to his release?Nothing essential, no.

137 I consider Dr Hall's assessment of manageability is supported by the materials on which he relied.

139 The sources of information about Mr Ugle in which Dr Tanney based his report were interviews with Mr Ugle at Casuarina Prison on 11 April 2014 for a total of 3.3 hours over two occasions; material provided to Dr Tanney comprising, it would seem, the bulk of the material in what became exhibit 1, as well as certain (not further specified) 'audiovisual materials'; and conferral with 'the community Corrections officer' concerning community supervision options and recommendations.

140 Dr Tanney's overall assessment of the risk of Mr Ugle reoffending sexually was he was at 'some and meaningful risk' of 'serious sexual reoffending against women at some indeterminate future date in line with a specific risk scenario' (exhibit 1.63 [97]). He explained what he meant by 'some and meaningful risk' at some length as follows (29 April 2014, examinationin chief, ts 153 154):

Meaningful means not inconsequential, or not reaching a threshold that we would have to give serious consideration to. The difficulty that I had in putting forward the high, medium and low - however one measures it - is that leaving aside the fact that those are not terribly useful statistically, the problem that I have with Mr Ugle in particular is that if his risk is a consequence of the likelihood of him reoffending, which I think is high, but indeterminate in terms of the date - the time at which it might occur in the future. And the other issue for me was that if risk is a consequence of not only probability, likelihood, but also the nature of the offending that were to occur, I found myself having to say that it's difficult with Mr Ugle to stick with an assessment of risk that is high. That's what the instruments in terms of likelihood say, but when one puts them together with the meaning of the offending that we have measured in the past, and look forward to the fact that the offending likelihood is indeterminate in the future - as I'm sure we will come back and discuss - that's why I found myself falling into a, 'Yes, there is risk. Yes, it's meaningful risk,' but it's difficult in this situation - at least it was difficult for me - to clarify it as a simple 1 to 10 scale, or high, medium and low.

Well, are you saying that you can treat him as likely to reoffend, but you don't know when; is that all it is, or is more than that?I think we could say - well, I think I would have to turn back to the pages of my report here, to talk about likelihood. Because the difficulty here with likelihood is that we come to that likelihood through actuarial analyses to provide these numbers. And the numbers that we're talking about are probably in the realm of a 30 per cent likelihood; about, let's say, somewhere between 25 and 33, 34 per cent likelihood of him reoffending over the next five years.

Yes?Now, I'm not the one to say that that's a high likelihood or a low likelihood. I can report to the court that that is the likelihood that we know about statistically. The difficulty with Mr Ugle is that it's the indeterminate nature of it, because the conditions under which he offends are quite specific.

Yes, but are still just talking then about timing, or are we talking ?Well, that's - yes, that's one aspect of it is - yes, is timing.

And another aspect is if he gets himself into the situation which is common to his past offending; is that what you're saying?Yes, yes.

Yes. All right. Well, how do we put together, if we can put it together, 'some' and 'meaningful' risk with this 30-odd per cent likelihood that you're talking about? How do they fit together?Well, as I said, some people would say that a 30 per cent risk is high, exceptionally high. Now, that's just a - that's a meaning that different people would give to it, which is why in this situation I thought it was best to avoid it. I think it's appropriate, as I've phrased it, to say we can't tell when it's going to happen. We can define the conditions under which it's most likely to happen, but we don't know when. But we know that if he puts himself in those situations often enough, it's likely that this will happen again.

Yes?And the full likelihood of that, as far as we know, is for - what we have in the actuarial models, is about a 30 per cent likelihood.

So 'some' and 'meaningful' risk, you're prepared to equate, are you, with 31 per cent likelihood, but not high, medium or low; is that right, or ?Yes, I - yes, it's a likelihood, but that likelihood is different from risk.

Yes?So the likelihood, yes, I would agree, in terms of the information we have available, would be - let's say 30 per cent. Okay? Some people would provide a number of 23; some would go as high as into the mid 30s.

141 He further testified as to that risk and its possible connection with other offending as follows (29 April 2014, examinationinchief, ts 164 165):

Yes. So you're dealing with him one on one, and you're saying he's reluctant to talk to you about some of these issues?He wouldn't talk to me at all about the sexual issues in terms of his offending, and his unwillingness related each time to, 'I don't really remember. My memory isn't clear.' But his memory was clear for all of the events up to that moment and after that moment.

Yes. I mean, accepting that you had the other material all available to you, that reluctance to speak to you, does that mean that it's very difficult to try and identify, or impossible to try and identify, the triggers for the serious sexual offending; that you can't get to it?Well, this was one of the puzzles for me, that we know that Mr Ugle commits offences of property on an ongoing basis, and that he has been incarcerated for those and convicted for those. I think, as we know, it's likely that there have been other offences for which he wasn't caught and convicted. But leaving that aside, we're left with evidence of some offending, of burglaries, in which he does not sexually offend, and a number in which he does, and the one similar fact crime that people have referred to, and a couple of others in which there's an implication that maybe there might have been something in those as well. But what we can't get is what it is that happens at the moment, or what I couldn't get is what happens at the moment in the course of a burglary that leads him to sexually offend. And this is something I simply was not able to establish; whether it was an internal trigger, whether it was simply the fact that in every time - it may be true that every time there was a burglary and he came upon a woman who was alone and in her bedroom that he took the opportunity to offend against them; we simply don't know. I simply don't know.

And given that you don't know, is it the case that that very much leaves your assessment of risk up in the air?Not at all. We can speak clearly to the likelihood of reoffending. We can speak to the risk scenario in which it's likely to occur. What we can't do is define the specifics of when he's going to offend when he's in the situation where the opportunity is available to him. And that's why in my conclusion I was left with saying, 'It's likely that he will offend at some indeterminate point in the future,' that I could not define because I was unable to establish what the other triggers might have been. And I'm talking about proximal imminent triggers, because I'm assuming that there other instances of burglaries where the opportunity afforded itself to him to sexually offend, and he did not. And I base that on a comment he made to me about the similar fact crime in 1993 that was a burglary.

And I specifically said to him, 'Well, was there going to be sexual offending in that instance?' And he said, 'Not in that instance.'

And that seems to accord with other material we have that suggests there were burglaries where there were females or a female in the house where there was no sexual component to what happened. So it seems to be ?Yes.

it doesn't happen every time where we might see a full blown opportunity. So ?That's true. And so what we're left with - at least what I was left - I can't say 'what we.' What I was left with was an inability to - I could speak to the likelihood that he would be in that situation again because I think he will be in that situation again, but I could not speak to the imminent triggers or the proximal triggers that would lead him in some circumstances to offend, in others not to.

142 Dr Tanney's evidence was also that there was no 'imminent danger' of reoffending, which I understood as offending either of a general or serious sexual kind (see exhibit 1.63 [84]). Imminence in this sense meant 'not ... immediately' (29 April 2014, crossexamination, ts 240).

143 Dr Tanney's assessment of risk is differently expressed to Dr Hall's. He was particularly concerned to indicate that Mr Ugle's risk of reoffending was not as high, or clearly as high, as many other offenders who were not child sex offenders (see 29 April 2014, reexamination, ts 259). There is no similar indication from Dr Hall.

144 However, in my view when Dr Tanney's testimony is closely examined, his assessment is overall of a comparable order of risk particularly when account is taken of the percentage likelihood of reoffending he describes - which I take to be sexual reoffending - to that contained in Dr Hall's report on the percentage of the rate of reoffending for the 'high risk/need group' from the Static99R.

145 In arriving at that view I have taken account of Dr Tanney's testimony as follows (29 April 2014, crossexamination, ts 201):

Now, is this the first time you've used those words, 'some' and 'meaningful risk'?Yes.

This is the first time, isn't it, that you've actually questioned whether or not an offender you have assessed actually meets the threshold that you feel the legislation is asking you to consider? I know that's your job on every assessment, but I'm asking about the conclusion?And I'm just trying to run through them all as quickly as I can in my head. You just - yes, it is. There might have been one where I thought about it and introduced it, but this is the first time that I've brought it forward in the framework of what I call an active issue.

Yes. So in many respects, Mr Ugle is quite different in that regard to the other offenders I think you've come to look at from a DSO perspective?Though in many ways he's not any different, but he's different in the context of whether he reaches that - you know, the threshold.

Yes?In the sense of the likelihood and the risk.

Thank you. I was talking about the issue in terms of likelihood of risk, and the threshold test?Yes.

So this is the first time you've actively put into a report and said to this court, well, I'm not sure we're at that threshold test, effectively?I'm not sure I'm saying I'm not sure, but at it. Let me clarify that. What I'm saying is I think this is an issue that needs to be addressed a lot more than in almost all the other DSO legislation assessments that I've done. That's why, in my discussion of risk, I went into some detail.

146 It was not put to me, and in any event I would not accept, that it is part of the role of a psychiatrist providing a report under DSO Act s 37 to provide a conclusion on the ultimate issue under s 7, of whether or not the offender is a 'serious danger to the community'. I did not understand Dr Tanney to be providing such a conclusion, but rather seeking to express his understanding of the likelihood of sexual reoffending and the likely nature of that re-offending in the way he did for the better assistance of the court. It is that understanding I have addressed in arriving at the view I have described.

147 In Dr Tanney's opinion, were Mr Ugle to re-offend sexually, there was a 'strongly developed risk scenario' (exhibit 1.63 [68]) that could be identified. It would involve Mr Ugle being engaged in criminal activity that took him into the homes of potential victims at night while substance intoxicated on a disinhibiting drug. However, Dr Tanney recognised that there had been no efforts to coerce or overcome victim resistance in the later and majority of offences and no compulsive aspect in the sexual behaviours in the offending, but also little remorse or empathy immediately after the event or in his descriptions at interview.

148 In my view this description of the likeliest sexual reoffending is very similar to that in Dr Hall's evidence.

149 The basis for Dr Tanney's assessment was his use of two of the three instruments that Dr Hall had used, the Static99R and the RSVP, as well as two other tools.

150 One was what he described as the 'Three Factor model', which he described as 'developed in Western Australia for Indigenous, mostly ruralremote sex offenders' and addressing 'similar issues' as those in two items from the RSVP, with a third factor, of 'long(er) term goals' (see exhibit 1.63 [50]).

151 The other tool was what he described as 'idiosyncratic analysis' being an 'assessment using general behavioural principles respecting recurrence of any behaviour' (exhibit 1.63, Appendix D, page 396).

152 In addition, Dr Tanney also used the PCLR tool to arrive at the conclusion that Mr Ugle should be diagnosed with 'psychopathy' and, it would seem, 'narcissism' (see exhibit 1.63 [75] and [98], the latter is the source of the quotations).

153 Dr Tanney arrived at the same score on the Static99R as Dr Hall, while recognising in his report the limitations on the use of such a score as a predictor of sexual reoffending which Dr Hall recognised in his testimony, namely, the lack of validation on Western Australian indigenous populations and that it did not represent a result applicable to an individual offender (see exhibit 1.63 [57] and Appendix A pages 391 392; 29 April 2014, crossexamination, ts 203 206). Dr Tanney reported that he used the RSVP and idiosyncratic analysis to counter both limitations (see Appendix A page 392; 29 April 2014, crossexamination, ts 208).

154 Dr Tanney in his report noted there were, with his use of the RSVP tool, 12 'definite' risk factors and two 'likely/possible' risk factors. The 14 risk factors (of 22 possible risk factors in all) largely but not in all respects aligned with those noted in Dr Hall's report.

155 Dr Tanney reported a 'Yes' for the factor 'chronicity (persistence and frequency) of sexual violence' (exhibit 1.63, Appendix C, page 392), aligning with Dr Hall's report.

156 Dr Tanney reported a 'Yes/?' for 'physical coercion in sexual violence', adding '[m]inimal and dated, but did occur and in similar fact offenses (1993)', apparently a reference to the second and third serious sexual offences. This apparent entry of a 'likely/possible' does not align with Dr Hall's report.

157 Dr Tanney reported a 'Yes' for the factor 'extreme minimisation/denial of sex offences' (exhibit 1.63, Appendix C, page 393), aligning with Dr Hall's report.

158 Dr Tanney reported a 'Yes' for the factor 'attitudes that support or condone sexual violence' (exhibit 1.63, Appendix C, page 393), aligning with Dr Hall's report.

159 Dr Tanney reported a 'Yes' for the factor 'serious problems with selfawareness' (exhibit 1.63, Appendix C, page 393), aligning with Dr Hall's report.

160 Dr Tanney reported a 'Yes' for the factor 'problems with stress and coping' (exhibit 1.63, Appendix C, page 393), aligning with Dr Hall's report.

161 Dr Tanney reported a 'Yes' for the factor 'problems resulting from child abuse' (exhibit 1.63, Appendix C, pages 393 394), aligning with Dr Hall's report.

162 Dr Tanney reported a 'Yes' for the factor 'psychopathic personality disorder' (exhibit 1.63, Appendix C, page 394). This entry does not entirely align with Dr Hall's report. Dr Tanney reported a PCLR score of 29 noting

[h]igh scores in all four facets qualify him as a clinical Psychopath. There are strong narcissistic components in the Affective/interpersonal factor.

163 It will be recalled Dr Hall's opinion was that, while Mr Ugle had many of the features of psychopathy as defined by the PCLR, he was not a diagnosable psychopath. However, Dr Hall diagnosed Mr Ugle as having an anti-social personality disorder, as did Dr Tanney. Dr Tanney arrived at his diagnosis by reference to elevations in the PCLR criteria for both the behavioural/lifestyle and the interpersonal/affective facets, for both of which Dr Hall, as has been seen, scored Mr Ugle in the moderate to high range.

164 Dr Tanney was asked about this difference of opinion with respect to psychopathy as follows (29 April 2014, examinationinchief, ts 156):

Yes. Have you had the opportunity of reading Dr Hall's report?No, I have not.

No, you haven't. He seems to reach a conclusion that there is not psychopathy. You differ from that conclusion if that's being fair to him stating his position. You will tell us if it's not. But you see it ?Excuse me, Mr O'Sullivan, may I just ask - just help me to come to some understanding of this. What was his score on the PCL-R that he reported?

BARONE, MS: 23.

O'SULLIVAN, MR: 23?Okay. You will notice in my scoring I did indicate that some of the items were difficult to score because of the - what we're trying to score is a trait of a person characterologically. And many of the things that it asks about are - in Mr Ugle's case, were contaminated by his amphetamine intoxication. So I think that might account for some of the difference in scoring.

All right. But would that score given from Dr Hall and the way you see things differ greatly or there's not much in it?I think for some people 24 would put them at the level of being a clinical psychopath. 30 I think everyone would agree he was very definitely a psychopath.

All right?So Dr Hall is a little bit at the lower side of him reaching the clinical diagnosis; I am at the high end of it. Is there much between it? I haven't seen the particular scoring that he gave to the items, so we would have to stop and look at those.

165 Dr Tanney reported a 'Yes' for the factor 'substance use problems' (exhibit 1.63, Appendix C, page 394), aligning with Dr Hall's report.

166 Dr Tanney reported a 'Possible/Likely Yes' for the factor 'problems with intimate (romantic) relationships' (exhibit 1.63, Appendix C, page 395), aligning with Dr Hall's report.

167 Dr Tanney reported a 'Yes' for the factor 'nonsexual criminality' (exhibit 1.63, Appendix C, page 395), aligning with Dr Hall's report.

168 Dr Tanney reported a 'Yes' for the factor 'problems with planning' (exhibit 1.63, Appendix C, page 395), aligning with Dr Hall's report.

169 Dr Tanney reported a 'Yes' for the factor 'problems with treatment' (exhibit 1.63, Appendix C, pages 395 396), aligning with Dr Hall's report.

170 Dr Tanney reported a 'Yes' for the factor 'problems with supervision' (exhibit 1.63, Appendix C, page 396), aligning with Dr Hall's report.

171 Dr Tanney reported a 'No' for all the other factors of the 22 in the RSVP.

172 By contrast, as has been seen, Dr Hall reported that Mr Ugle possessed the risk factor of problems with non-intimate relationships, for which Dr Tanney reported a 'No' (exhibit 1.63, Appendix C, page 395).

173 By further contrast, Dr Hall also reported that Mr Ugle possessed the risk factor of problems with employment, for which Dr Tanney reported 'No' (exhibit 1.63, Appendix C, page 395).

174 On the Three Factor model, Dr Tanney reported that Mr Ugle had 'clear difficulties' with the items corresponding with the RSVP factors of 'coping, problem-solving' and 'planning' as well as with the third factor of 'long(er) term goals' (see exhibit 1.63 [50]).

175 Finally, on the tool 'assessment using general behavioural principles respecting recurrence of any behaviour (idiosyncratic)' Dr Tanney reported on its 15 numbered items, some with subitems, as follows (exhibit 1.63, Appendix D, pages 396 397, punctuation and emphasis in the original):

1. learning/applying new strategies (help seeking)

176 Dr Tanney in his report summarised this analysis as follows (exhibit 1.63 [60]):

This analysis is not exhaustive, but indicative of the fundamental human behavioural issues that might influence reoffending. (Appendix D) Thirteen of the nineteen items support an increased likelihood of the recurrence of sexual offending. The undesired behaviour is recurring, functional and reinforced. He has virtually no internal social protectors against reoffending. Four of the five items suggesting less likely reoffending had been tested to their impact on his behaviour and did not prove open or amenable to application.

177 Further, as for Dr Hall, I note Dr Tanney's acknowledgement, as I understood his report, that risk prediction was not a science, and that the alignment of the tools Dr Tanney employed was a support for Dr Tanney's informed professional judgement. I arrived at this understanding of Dr Tanney's view in particular from the following paragraphs in his report (exhibit 1.63 [70] and [71]):

In summary, four, different, structured enquiries to measure the likelihood of reoffending risk are in strong agreement that the risk is HIGH. The offending was very much influenced by general criminality and by substance abuse. A treatment and personal deterrence/custody has shown minimal result to lessen risk of reoffending.

Without effective, ongoing management at (including monitoring and specific treatment) and the implementing of specific risk diminishing measures, Mr Ugle is at SOME risk of further serious sexual offending, as estimated by available procedures and measures. (original emphasis)

178 In view of the context, I take the reference to 'reoffending' in exhibit 1.63 [70] above to be general reoffending, not sexual reoffending.

179 Dr Tanney explained what he meant by 'SOME risk of further serious sexual offending' as follows (29 April 2014, examinationinchief, ts 187):

That's your conclusion, is it?Yes, it is.

Yes. So given that the four structured inquiries say there's a high likelihood, you translate that and the other work that you did into some risk of further serious sexual offending?And my conclusion that it's some, and 'some' in this context is meaningful. 'Some' isn't an inconsequential risk, it's a meaningful risk.

And is that where the 30 - the one third type situation comes in? Measure it or not?Well, again, the 30 per cent is a number. We can emphasise the 30 per cent likelihood or we can emphasise the 70 per cent likelihood that he isn't going to.

180 I consider that Dr Tanney's assessment of risk is supported by the material on which he relied.

181 As to the possibilities for management of Mr Ugle's risk of serious sexual offending, in custody and in the community, Dr Tanney's overall assessment was as follows (exhibit 1.63 [86] [87], [91] [94]; footnote omitted):

Should he be designated under this legislation, management requires both ongoing monitoring of risk and activities to protect against or minimise risk conditions or elements, the latter usually categorised as supervision and treatment. He is not motivated and may be unable to address the elements of criminal conduct and substance abuse that dominate the risk scenario. His resistance to engaging in any treatment or according with supervision is long-standing and entrenched. This suggests that the risk will be ongoing and not amenable to alteration by therapeutic means. Designation under the legislation will require management of risk utilising only monitoring and supervision and this would require to be ongoing for an indeterminate length of time.

Risk would be ongoing in continuing custody/attention, but can be managed. His current level of functioning would likely be maintained but also remain effectively managed in such a highly structured authority-driven environment. Ongoing detention without risk minimising activities could remain as a primary risk management tool for an indeterminate future. No change in his level of risk of reoffending on eventual re-entry to the community would be expected, except that afforded by the passage of time and aging.

...

Would it be appropriate to discharge Mr Ugle to the community at this time with community supervision or directed management?

He is currently able to function independently in the general community, albeit in an antisocial environment. He has no community and very scant family support is available to him.

There are clear and modifiable issues in need of management, but he has no history of and has stated active resistance to the need for such care arrangements. There is some grudging acknowledgement but I regard this as solely to further his release and without commitment.

At present, I believe that a risk management program could NOT be developed that would address sufficient of these issues to allow successful management of his risk of reoffending in the general community. (original emphasis)

182 As I will indicate in greater detail shortly, there was a significant difference between Dr Tanney's opinion and that of Dr Hall as to the manageability of Mr Ugle's risk of serious sexual offending,

183 In his testimony Dr Tanney addressed the pattern in Mr Ugle's offending of periods of not offending for significant periods and its implications for manageability of risk as follows (29 April 2014, examinationinchief, ts 193 194):

See, ordinarily I would be saying, 'I'm very pleased that I don't see an imminent risk,' because it allows us the opportunity to work with him in terms of managing the things that are going to put him in the risk circumstances where he's likely to reoffend, and ordinarily that would be a positive. But in this circumstance, because of his resistance, I don't - I'm not able to say that.

Because any work with him, if it was ever to be successful, will take time; is that the situation?Any work - well, yes, I don't want to repeat myself again. We're talking about entrenched long-term issues that have led to two of the most resistant conditions we know about in terms of mental disorders, what I believe is psychopathy narcissism, and which I'm sure Dr Hall agrees is significant substance abuse, with amphetamines, which makes it more likely to be attractive.

184 Dr Tanney also testified as to the matter of resistance and its implications for manageability as follows (29 April 2014, crossexamination, ts 252):

Do you say that his risk factors can be managed in the community, but with your concerns that he might be resistant to that?Yes.

Yes. And ?That's my - my major concern is that the nature of the risk - the significant risk factors that we know about, the substance abuse and his resistance, are the major impediments to him functioning effectively in the community.

185 He had previously testified as to the nature of the resistance he identified in the material on which he relied as follows (29 April 2014, crossexamination, ts 231 232):

What are we to make of that in terms of the fact that he may very well capitulate if he's on an order, risking indefinite detention; does that go to that issue?He may very well capitulate. You know, what he has done, he says - you know, we see that during the course of this custody, this lengthy one. He, by his own admission, was way different than he was back when he was in his twenties. He has changed. He has come to accept the fact that institutions have rules. But he also - really - you know, why did he refuse parole, because he didn't want to let them make the decision, he wanted to make - let the decision be his. So is it possible for someone to work with Mr Ugle on an individual basis to address this issue about control and his willingness to accept help. If that could be addressed effectively, I think that Mr Ugle could be helped in custody by some of the programs and he would then be willing to work in them. But that's a tough ask, to ask someone to deal with - and begin to trust people when his mistrust of people goes back to such a young age.

I mean, you draw quite a negative out of the fact that he asked not to be released on parole. In fairness to Mr Ugle though, the department supported his release on parole in 2005, which was the sentence prior to his last one, and the Parole Board said no?Yes. Yes.

So it may just be an indication that it doesn't matter what the department is going to say, it's going to be up to the Parole Board and who knows what they are going to do?Yes.

So it mightn't have been a negative that you draw. Do you accept that?Yes, it might not be.

Yes?It has several interpretations and I have offered one. There are others.

186 It will be seen that there is a significant difference in the respective assessments of Dr Tanney and of Dr Hall as to the possibilities for the management of Mr Ugle's risk of serious sexual offending in the community. The difference appears to lie in their respective assessments of whether there was a realistic prospect of Mr Ugle engaging well with treatment, monitoring and supervision programmes.

187 Both psychiatrists, as has been seen, acknowledged a poor history of both Mr Ugle's engagement with and his expressed attitudes to treatment, as well as his problems with planning and with supervision. There are no indications, it seems to me, of any major differences in the materials in those respects on which they respectively relied.

188 However, as has also been seen Dr Hall indicated that in his clinical experience Mr Ugle had presented as someone with whom a clinician could develop an effective therapeutic relationship in time so as to lower his risk of reoffending. In addition there was the realistic prospect of management of his risk of offending throughout that time, given Dr Hall's assessment of the prospects as realistic of Mr Ugle abstaining from the use of illicit substances, avoiding antisocial peers and being able to structure his day, all in conjunction with engaging well with a clinician.

189 Dr Tanney appeared to me not to have come to such conclusions in any of those respects.

190 Dr Hall in reexamination was asked whether or not he agreed with Dr Tanney's assessment as to manageability in exhibit 1.63 [94] above. There was the following exchange (29 April 2014, ts 272 273):

Well, if you have the passage at paragraph 94 on 388 of the book, perhaps you could just tell us what your view of that - whether you agree with it or whether you comment on it in some meaningful way?Yes. I would disagree with that.

Disagree with it?But I would accept that it - that is an example of something that is very much a matter of opinion.

191 I consider this exchange confirmed what appeared to me from the evidence of the two psychiatrists as to manageability, considered with the very similar matter on which their opinions rested, was a difference of opinion resting on clinical judgment.

192 I turn now to the first of the two components of the DSO Act I identified earlier.

Whether or not I find Mr Ugle to be a 'serious danger to the community': introduction

193 I address this question in the detail below. Unlike many cases under the DSO Act, the answer to the question is in significant dispute before me. I must make that determination having regard to the matters listed in DSO Act s 7(3).

194 It will also become apparent that a number of matters to which I must have regard also go in my view to the other component under the DSO Act that I identified, that of the choice between the options in DSO Act s 17(1)(a) and (b).

195 For the purposes of the present question, I adopt the structure used by McKechnie J in Director of Public Prosecutions (WA) v Misko [2012] WASC 259. That structure follows DSO Act s 7(3).

(a) the Psychiatric Reports, including cooperation in the examinations

196 I have previously reviewed the evidence of the two psychiatrists, Dr Hall and Dr Tanney and in so doing considered both their reports and their testimony.

197 I note there was no indication in either the reports or their testimony that Mr Ugle failed to cooperate sufficiently with them in their respective examinations of him.

(b) any other medical, psychiatric, psychological or other assessments

198 There was only one such assessment addressed in any detail in evidence and submission before me. It was that of Ms Place, whose report is exhibit 1.60.

199 Ms Place for her report drew on a review of files and reports only. She did not interview Mr Ugle for the purposes of that report.

200 Ms Place's conclusions are in exhibit 1.60 [11] and [12], which read:

Mr Ugle has an extensive history of violent and sexual offending which is significantly related to his use of illicit substances. Despite being given numerous opportunities to engage in a sex offender treatment programme Mr Ugle has refused to do so. Moreover, despite completing the Pathways program to address his substance use Mr Ugle's treatment gains remain limited and he expressed no intention of changing substance use in the future. Mr Ugle's progress on previous treatment programmes has been impeded by his resistant and defensive presentation, his tendency to minimise or deny problems, and his reluctance to self-disclose and meaningfully engage within the group environment. Mr Ugle's outstanding treatment needs include deviant sexual interests, substance use, and anger management.

Should Mr Ugle be made subject to an order under the provisions of the Dangerous Sexual Offenders Act (WA) 2006 he will be assessed with a view to determining interventions and psychological management strategies appropriate to his individual situation. Until Mr Ugle is interviewed, specific individual treatment recommendations cannot be made.

201 Save for the reference to deviant sexual interests, Ms Place's conclusions expressed there are in my view fully consistent with those of the two psychiatrists. In particular, I note as to Ms Place's use of anger management Dr Hall's testimony in cross-examination (28 April 2014, ts 106).

202 In the following exchange Ms Place explained her reference to 'deviant sexual interests' in light of what she understood to be Dr Hall's opinion as follows (29 April 2014, examinationinchief, ts 276):

There was a reference during Dr Hall's evidence indicating that Mr Ugle doesn't have any deviant interest. He came back to it just in some questioning from me a few moments ago. What do you say about that in terms of what you have reported here?Sexual deviants in the terms of risk assessment tools that were used, that Dr Tanney and Dr Hall use, is different to what we would use in our reports. So how the RSVP and tools like STABLE define sexual deviants is sexual arousal or interest in an individual 13 years older or younger, that's how they define sexual deviants. So within a risk assessment or when using those tools, that's how you would define it and that's how you would score it. In general speaking, sexual deviants is a much broader term and it covers sexual arousal or interest in situations, people, objects that are illegal or inappropriate. So that can - that can include interest in children or it can include an interest in non-consensual sex with adults.

So is that the way in which you have used the term here?That is the way that I've used the term, yes.

203 So understood, there is I consider no significant difference between her view and that of the two psychiatrists. I particularly note that one of the needs to which Dr Hall referred in his list of conditions in a supervision order for Mr Ugle was for a restriction on 'unsupervised access to children'. This was

given the nature of some of Mr Ugle's past sex offending and the dearth of information and understanding as to the psychological factors contributing to his sexual offending.

204 I take the view that the legislature has used the word 'propensity' in its ordinary meaning in the context of the criminal law, as described in DPP v GTR (Murray AJA), as follows:

In my view 'propensity' in this context means what it ordinarily means in the context of the criminal law. It means that the offender has an inclination or tendency, a disposition to commit serious sexual offences generally, in a particular way, or upon a particular type of victim. The word refers to some identifiable characteristic of the offender, something in his makeup or personality which may or may not be of the quality of a diagnosable mental illness or personality disorder [178].

205 On the evidence before me, I consider that there is evidence, from the two psychiatrists, of a propensity to commit serious sexual offences in the future, described in different terms but to a similar effect, being serious sexual offences of the kind described by the reoffending scenario both psychiatrists identified. That scenario as described by Dr Hall (exhibit 1.62 [73]), in terms very similar to those used by Dr Tanney (exhibit 1.63 [68]), was, it will be recalled, 'opportunistic penetration or attempted penetration of an adult female unknown to him, and in her own residence, during the commission of another crime such as burglary'.

206 On the history of Mr Ugle's sexual offending, and the evidence of the two psychiatrists I have reviewed, I consider there is a pattern of serious sexual offending in terms of the scenario just described.

(e) and (f) efforts to address the cause or causes of behaviour including participation in any rehabilitation programme and its effect

207 On the evidence of the two psychiatrists and of Ms Place, I consider Mr Ugle has not made significant efforts to make that address, and in particular has not participated in any rehabilitation programme other than, Pathways. The effect of that latter participation was limited.

208 I have taken account of his indications to the two psychiatrists of his interest in or preparedness in relation to participating in one to one counselling with a therapist (see report of Dr Hall exhibit 1.62 [49] and 29 April 2014, crossexamination, ts 141; and of Dr Tanney exhibit 1.63 [89]). However, nothing of that sort has yet been tried with him.

210 I consider that this 'risk', in DSO Act s 7(3)(h), refers to the likelihood of such an offence being committed rather than the nature of the particular serious sexual offence of concern. I note the distinction between those aspects of 'risk' in Italiano v State of WA [4], [46] (Buss JA), referred to in State of WA v West [52] at (e) above. See also DPP v GTR [27] (Steytler P & Buss JA).

211 I consider that risk to be a significant one, on the evidence of the two psychiatrists as I have analysed that evidence above.

(i) need to protect the community from that risk

212 In my view, having regard to the level of risk I have identified, and the reoffending scenario I have described, considered with the evidence of Dr Hall as to the psychological harm to victims from any such offending notwithstanding the lack of excessive violence associated with any such offending (see exhibit 1.62 [73], quoted above), there is a strong need to protect the community from that risk.

213 I do not consider any other relevant matter to have been pressed upon me that I have not taken account of in relation to the previous items.

214 Nor does any other relevant matter present itself to me.

Conclusion: whether I find Mr Ugle is a serious danger to the community

215 In accordance with DPP v GTR [34] (Steytler P & Buss JA), I must identify what it is that constitutes the risk and makes that risk unacceptable. Further, I must consider whether or not that factor has, or those factors have, been proved to a high degree of probability by acceptable and cogent evidence.

216 I have identified what constitutes the risk in this case, and I have noted in respect of the need to protect the community against that risk matters which, in my view, make that risk unacceptable.

217 Finally, I consider that those factors have been proved to a high degree of probability by acceptable and cogent evidence.

218 It follows I have concluded that Mr Ugle is a serious danger to the community in the terms of DSO Act s 7.

The choice of order to make: the applicable law

219 As I previously indicated I drew from State of WA v West I should choose the order that is least invasive or destructive of Mr Ugle's right to be at liberty while, at the same time, ensuring an adequate degree of protection of the community: State of WA v Latimer [49] (Murray J), where a continuing detention order was made.

220 I should add from State of WA v Latimer the following, which was accepted in DPP v Decke [15] (Hall J), where a supervision order was made:

The [DSO] Act prescribes no overall limit of time after which the prisoner must be released, and so it can be seen that a continuing detention order, when made, has the potential to last indefinitely, for a period well beyond the term of any sentence of imprisonment which might be imposed as punishment upon the commission of a serious sexual offence by the offender. It is having regard to that such matters that I express the opinion that the scheme of the Act requires the Court to do no more than is necessary for the continuing control, care or treatment of the offender to achieve an adequate degree of protection for the community [24].

221 Of course, the paramount consideration is the need to ensure the protection of the community (DSO Act s 17(2)).

222 Thus, as I have previously indicated I drew from DPP v Williams [86] (Wheeler JA, Le Miere AJA agreeing), if I cannot be satisfied that the community is adequately protected by a supervision order then I must make a detention order. I note again, however, I consider I do not need to invoke this principle in this case.

223 In making the choice, I consider I should draw upon the evidence of the two psychiatrists as to the manageability of the risk I have identified while also considering the evidence of Ms Place and of Ms Dabala as to the possibilities for management of the risk in continuing detention and under a supervision order.

224 On the evidence of the two psychiatrists, I am of the view that a detention order would ensure adequate protection of the community during the term of the order (see for Dr Hall 28 April 2014, examinationinchief, ts 71 72; and for Dr Tanney 29 April 2014, examinationinchief, ts 194 195 and crossexamination, ts 251 252).

225 I note from the report of Ms Place her description of assessment for and the prison-based interventions available to prisoners subject to the DSO Act generally (see exhibit 1.60 [9] and Appendix A).

226 On the evidence of Dr Tanney, but not on that of Dr Hall, a supervision order would not ensure adequate protection of the community.

227 I further consider the evidence of Ms Place which I reproduced above is in this respect more consistent with that of Dr Tanney than with that of Dr Hall.

228 Ms Dabala conducted three interviews Mr Ugle. She also drew on the Department Corrective Services (DCS) file; Outcare Inc; the Total Offender Management Solutions (TOMS) database; Western Australian Police records; Western Australian Court records; the Department of Housing, Bunbury; the Sex Offender Management Squad (SMS); the reports of Dr Tanney and Dr Hall; and the Department for Child Protection Family Services.

229 As to the evidence of Ms Dabala, I note the following conclusion in her report (exhibit 1.61, pages 339 340):

During the interview Mr Ugle's responses were guarded and at times he was arrogant. He was unwilling to permit the writer to contact his community support network to substantiate their support, or his relationship status, or to seriously discuss a strategy to abstinence from illicit substances in the community. This may be due to the fact that Mr Ugle is of the opinion that he will be found not to be a Dangerous Sexual Offender. He has expressed to both the writer and Outcare that he will be vocal during the Court proceedings regarding the current legal process.

At this time Mr Ugle's identified support network would appear unsuitable. Mr Ugle's unwillingness to engage with Outcare and his overall disinterest in planning for his release based on the premise that he will not be deemed a DSO is also noted. Furthermore, Mr Ugle's overall attitude displayed throughout the contact with the writer and his previous response to supervision indicate that he is unlikely to sufficiently engage with a community supervision regime. The writer must further point out that at this time Mr Ugle has no confirmed accommodation should he be released to the community on a supervision order. The Department will endeavour to source accommodation for Mr Ugle prior to his appearance in the Supreme Court.

230 However, in Ms Dabala's subsequent report, Exhibit 3, she indicated that she had had the opportunity to confirm support for Mr Ugle from a niece of his, Ms SA; and Outcare (through a Mr Lenhard) had confirmed, both to her and to Mr Ugle, the availability of accommodation for him (see pages 2 and 3 respectively).

231 In the conclusion to exhibit 3 Ms Dabala said this (page 4):

The above report has been prepared as an addendum to the Community Supervision Assessment dated 14 April 2014. As noted in the previous report, Mr Ugle was not prepared to allow the writer to speak with family members to assess their level of community support. It was not until his most recent Court hearing that he authorised contact between the writer and the nominated family members. Whilst Ms [SA] has offered to accommodate and support Mr Ugle, it would appear that her capacity to do so may be limited due to her ongoing and serious health concerns. Additionally, Ms [SA's] residence may at times be used by other family members placing Mr Ugle at risk of coming into contact with potential victims. Of the two available accommodation options, the residence provided by Outcare appears to be the more stable option, especially as Mr Ugle is now prepared to accept community support from Outcare Incorporated.

232 It will be noted that there were changes that occurred between the respective dates of Ms Dabala's two reports in relation to three matters: (1) Mr Ugle's unwillingness to permit her to speak with family members; (2) Mr Ugle's unwillingness to engage with Outcare; and (3) the lack of confirmed accommodation for Mr Ugle were he to be released.

233 As to whether those changes or other considerations had led Ms Dabala to reconsider her conclusion that Mr Ugle was unlikely to be sufficiently engaged with a community supervision regime, I note the following exchange in cross-examination before the preparation of exhibit 3 (2 May 2014, ts 304 305):

I think you indicated to us that you had another meeting with Mr Ugle yesterday at prison?I did. Yes.

It, by the sounds of it, it seems that that meeting went better than your previous meetings?Yes.

He was more receptive to you?Yes.

More open?He was. We - we talked through a few things that had happened in court and explained things and he's got a greater understanding now of what's happening.

Yes. If we - was he less arrogant?Yes.

Less combative?Yes. He - yes, he was polite yesterday.

Which is a bit of a step forward?Yes.

From how you presented it in your report?Yes. He wasn't like that all the time. He - he just had periods of being arrogant. But he was polite yesterday.

And he presented a different attitude to allowing you to, in essence, do your job?He did. Yes.

234 I also note the following exchange in cross-examination after the completion of exhibit 3 (4 June 2014, ts 350 351):

The only other thing is, is that I think Mr Ugle's attitude to this process has changed, has it not?Yes.

Have you noticed a - a change yourself?It was Mr [Lenhard] from Outcare that noticed the change.

In that Mr Ugle was more responsive?Yeah. He's willing to engage. The first time I - I don't believe he was.

235 I consider that this represents evidence from Ms Dabala of her recognition of a change in attitude. I also note the evidence of Dr Tanney that Mr Ugle had admitted to him he was 'way different' to when he was in his twenties, having come to accept institutions have rules (29 April 2014, crossexamination, ts 231).

236 I also note again Mr Ugle's indications to the two psychiatrists of his interest in or preparedness in relation to participating in one to one counselling with a therapist (see for Dr Hall exhibit 1.62 [49] and 29 April 2014, crossexamination, ts 141; and for Dr Tanney exhibit 1.63 [89]).

237 However, I consider that those indications must be viewed against a background of the long term and strong resistance noted by Dr Tanney and by Ms Dabala. So viewed, I consider that they are not indications from which, at present, a great deal can be drawn for the purposes of making the choice I must make.

238 As to the arrangements for Mr Ugle under a supervision order, I note from Ms Place's report (exhibit 1.60 [10]) the following:

The model of service delivery utilised with those subject to Dangerous Sexual Offender Supervision Orders is one of collaborative multi-agency partnerships to augment supervision, intervention and ongoing risk assessment. Regular information sharing and consultation between relevant agencies and treatment providers involved with support and management of the offenders will occur. Individual psychological counselling and/or group programs may also be provided, dependent upon the offenders identified needs and capacity to benefit. The DSOPT [Dangerous Sexual Offender Psychology Team] psychologist can deliver a psychologist management service involving the regular review of the offenders self-management and relapse prevention plans and the monitoring of potential risk factors. Individual interventions to address specific treatment needs not adequately addressed in a programme or emergent during a period of supervision may also be provided.

239 Ms Dabala's report (exhibit 1.61) and her testimony addressed the Proposed Supervision Order Conditions. Her testimony was that that those were standard terms from which ones that might finally be applied to Mr Ugle would be chosen (see 2 May 2014, crossexamination, ts 311 314).

240 The Proposed Supervision Order Conditions include:

(1) reporting and monitoring conditions, including electronic monitoring and the possibility of visits for monitoring purposes to the residence where the offender would be that is prescribed in the order;

(2) compliance with directed psychological monitoring/management arrangements and with the requirements of programmes designed to address offending behaviour or risk of serious sexual offending as directed;

(3) exchange of information between persons or agencies involved in the implementation and supervision of the order, including confidential information;

(7) prevention of high risk situations, including not to possess, consume or use alcohol and subjection to urinalysis; and

(8) no contact with any child under the age of 16 years unless authorised or in compliance with certain restrictive conditions.

241 I note that most of the conditions recommended for a supervision order by Dr Hall (exhibit 1.62 [83]) have counterparts in the Proposed Supervision Order Conditions, although there are some without readily evident counterparts.

242 I further note the evidence in respect of at least one of those conditions, that prescribing the place of accommodation, that there will be risks for Mr Ugle arising out of that condition. In this case there were risks for Mr Ugle in respect of the accommodation identified by Outcare from the presence of nearby reportable sex offenders and the apparent proximate availability of illicit substances, including methylamphetamine (see exhibit 3, pages 3 4).

243 Ms Dabala testified as to that accommodation that it was 'probably as good as we're going to get' (4 June 2014, crossexamination, ts 347).

244 As to the matter of the proximity of drugs in particular, there was this exchange with Ms Dabala (4 June 2014, crossexamination, ts 348 349):

And in the end, it's all going to come down to Mr Ugle's desire to not use?And determination not to use, yes.

That's right. You've identified this risk. It's something that can be dealt with in supervision, isn't it?Yes.

Yes. Managed closely?We could - but there'll be regular random urinalysis.

Because one of the proposals in the order was to enable SOMS to have the right of entry into Mr Ugle's home, isn't it?That's correct, yes.

Right. Which they wouldn't otherwise have?No.

So the Reportable Offenders Act doesn't allow SOMS a power of entry into your home generally, does it?No.

But we've become accustomed to framing these orders to give that power to SOMS?That's correct, yes.

Which means that SOMS can come to monitor compliance with their legislation?Yes.

Yes. And enter his home at any time?That's correct.

That's one of the management strategies that could be put in place to deal with this issue about concerns of drug use at the block?It's - it's one, yes. That's correct.

245 On my view of this evidence, considered with the other evidence as to the attitude of Mr Ugle to risks of these kinds and to supervision, I consider that the matter of the risk from the accommodation condition depends for its proper management - so as to provide adequate protection for the community - upon not only the presence of other suitably tailored conditions but also the approach to be expected from the offender to those risks and to those other conditions.

246 In my view of all of the evidence to which I have referred in the present section of these reasons, the approach at present to be expected from Mr Ugle to the risk of his committing a further serious sexual offence and to suitably tailored conditions in a supervision order is such that the paramount consideration for this purpose, the adequate protection of the community, may only be achieved by my choosing a continuing detention order.

247 It follows that further experience with Mr Ugle may lead to a revision of that expectation such that a different choice might be made. The accumulation and evaluation of any further experience with Mr Ugle is for another time.

248 I am satisfied, to the standard required by s 7(2), that Mr Ugle is a serious danger to the community within the meaning of DSO Act s 7(1).

249 I am also satisfied that meeting the need to ensure the adequate protection of the community would only be possible if a detention order were the choice of order made under DSO Act s 17(1).

250 Accordingly, I would make a detention order for Mr Ugle.