R v Slater - [2017] SASC 70

Supreme Court of South Australia
(Criminal: Application)
R v SLATER
[2017] SASC 70
Ruling of The Honourable Chief Justice Kourakis (ex tempore)
21 April 2017
CRIMINAL LAW - SENTENCE - SENTENCING ORDERS - ORDERS AND DECLARATIONS RELATING TO SERIOUS OR VIOLENT OFFENDERS OR DANGEROUS SEXUAL OFFENDERS - DANGEROUS SEXUAL OFFENDER - GENERALLY
CRIMINAL LAW - SENTENCE - POST-CUSTODIAL ORDERS - OTHER TYPES OF POST-CUSTODIAL ORDERS
Application by the Attorney-General that the respondent be detained in custody until further order pursuant to s 23 of the Criminal Law (Sentencing) Act 1988 (SA) as the respondent is unwilling or unable to control his sexual instincts. Application in the alternative that the respondent be subject to an extended supervision order pursuant to s 7 of the Criminal Law (High Risk Offenders) Act 2015 (SA).
The respondent opposed the application pursuant to s 23, but consented to the terms of an order proposed by the applicant pursuant to s 7.
The respondent is serving a sentence of imprisonment of 10 years for rape and aggravated serious criminal trespass in a place of residence. His prior convictions show a pattern of offending against vulnerable women. During his term of imprisonment, the respondent undertook a program aimed at addressing his criminal sexual behaviours. That course was a slight success. It was discovered toward the end of the course that the respondent had a low level of intellectual functioning. Another lower level course was recommended for the respondent. He refused to take that course.
Current expert reports suggest that the respondent is a significant risk of reoffending. Other evidence shows the applicant was able and willing to control his sexual instincts when in a stable long term relationship. No such relationship is possible at this time.
Held, allowing the application:
1. On the basis of the respondent’s history of offending and the expert reports provided to the Court there is a significant risk that if the opportunity to offend arose, the respondent would be unable to exercise appropriate control over his sexual instincts.
2. The courses provided to the respondent did not sufficiently address his fantasies and thoughts which might manifest in further offending. In the context of the above and the respondent demonstrating little empathy, it is appropriate to detain the respondent.
3. The respondent is to be detained in custody until further order pursuant to s 23 of the Criminal Law (Sentencing) Act 1988 (SA).
4. Given that the respondent is to be detained, it is not appropriate to make an order pursuant to s 7 of the Criminal Law (High Risk Offenders) Act 2015 (SA).
Criminal Law (High Risk Offenders) Act 2015 (SA) s 7; Criminal Law (Sentencing) Act 1988 (SA) s 23, referred to.

R v SLATER
[2017] SASC 70

KOURAKIS CJ (ex tempore): This is an application by the Attorney-General for an order that the respondent, Mr Slater, is unable or unwilling to control his sexual instincts and so should be detained pursuant to s 23 of the Criminal Law (Sentencing) Act 1988 (SA) (CLSA). In the alternative the Attorney-General applies to have Mr Slater released subject to an extended supervision order on the terms provided to this Court pursuant to s 7 of the Criminal Law (High Risk Offenders) Act 2015 (SA).
Mr Slater was sentenced in the District Court on 29 April 2008 to a sentence of 10 years imprisonment with a non-parole period of eight years, backdated to commence on 23 April 2007 for offences of rape and aggravated serious criminal trespass. Mr Slater did not take the opportunity of parole. The head sentence will expire in two days’ time.
The offences for which he was sentenced occurred on 23 April 2007 when Mr Slater broke into the unit of a woman to whom I will refer, as did the sentencing judge, as 'K'. K was a neighbour of the home in which Mr Slater and his de facto partner, Ms Cary, lived for close to seven years until the relationship with Ms Cary broke down.
Mr Slater’s relationship with Ms Cary extended back over a period of about 17 years. They had a son, L, who at the time of the offending was about 22 years of age.
When Mr Slater broke into K's unit, K was sleeping upstairs. She was awoken by the noise made by Mr Slater and came downstairs. Mr Slater came out from hiding, armed with a knife, and pushed K over a coffee table and onto the floor. He threatened her, telling her, falsely, that he had been sent there by bikies to kill her.
In the course of his attack Mr Slater accidentally punctured K's left breast with the knife he was holding. During the attack, Mr Slater kicked K's barking dog before allowing K to let it go outside. There followed a violent and terrifying rape of K which ended with an attempt to choke her. Mr Slater released K before causing any permanent injury but then robbed her of some money. Then, quite bizarrely, he asked her to make a cup of coffee. He sat and spoke to K for some time before leaving. He was arrested soon thereafter.
This was not the first violent offence committed by Mr Slater against women. On 24 May 1981 he was sentenced in the Supreme Court after pleading guilty to three counts of rape committed when he was 17. The rapes were committed in the company of other young men on a single victim. The victim was a young female hitchhiker who was taken to a secluded area and raped by all of the men, including Mr Slater. Mr Slater was sentenced to imprisonment for a period of three years and six months.
Only a month after he was released on parole, he committed offences of attempting building break and possession of housebreaking implements. On 5 May 1984 Mr Slater was sentenced to imprisonment for two years and six months for those offences.
On 1 November 1983, whilst still on parole, Mr Slater raped again. His victim was a young woman with whom he had been drinking. Mr Slater persuaded the young woman to go for a walk with him. He took her to some bushes in a secluded area. He slapped her across the face before raping her. He was carrying a sharpened piece of wood inside his jacket at the time but he did not threaten her with it. Mr Slater pleaded guilty to that offence and was sentenced to imprisonment for two and a half years to be served cumulatively on the sentence he was then already serving. The Court of Criminal Appeal ultimately held that the sentence was manifestly inadequate and increased the sentence for the rape to give five years again cumulatively on the earlier sentence imposed in the District Court. The total non-parole period fixed was six years.
The defendant was released on parole in 1988. His parole was to expire on 16 September 1992. On 29 October 1990 Mr Slater committed offences of armed robbery and robbery in company. These offences were committed at night on two women. The first was a nurse who was attacked as she was leaving the Adelaide Children's Hospital at the end of her shift. Mr Slater kicked in the driver's side window of the nurse's car, reached into the car and grabbed her by the hair. He then threatened her with a screwdriver before stealing her money.
Just a short while later, Mr Slater pulled over another motorist at an intersection following intentionally colliding with her vehicle. When the driver had finished inspecting her car, Mr Slater attacked her and punched her to the head. Again, the purpose of the attack was to commit a theft. He stole her handbag.
For those offences together with many other offences of dishonesty, Mr Slater was sentenced in the Supreme Court on 7 November 1991. He was sentenced to a total of 14 years and 16 days imprisonment with a non-parole period of nine years.
Before he was sentenced for those offences, Mr Slater had commenced the relationship with Ms Cary and their son had been born. The sentencing Judge, noted that Mr Slater had taken responsibility for the care of his son and had also taken good care of Ms Cary who had contracted cancer. Ms Cary passed away in 2013 while Mr Slater was serving his current sentence of imprisonment.
The sentencing Judge rightly observed that it was to Mr Slater's credit that he had taken responsibility for his family. As it turned out, Ms Cary continued to visit Mr Slater in prison and they resumed their relationship when Mr Slater was released in June 1997.
There followed what one might describe as an unusual period of 10 years of stability in Mr Slater’s life until 2007 when the subject offending occurred. Mr Slater reports that there was some stress in the relationship because of Ms Cary's drug taking. Nonetheless, as I said earlier, it was a relatively stable period of his life.
However, the relationship broke down not long before the commission of the subject offences.
There is one incident relating to Mr Slater’s relationship with Ms Cary I should mention. Previously, Ms Cary obtained a domestic violence restraining order against Mr Slater on 23 February 1998. The order was imposed after Mr Slater was charged for driving without a licence and driving an unregistered vehicle. Mr Slater became unhinged and anxious that he might return to prison. This made Mr Slater’s behaviour more erratic and Ms Cary fearful for her, and her son’s, safety.
Nonetheless, I accept that within the structure of that relationship Mr Slater was able to and quite willing to control his sexual instincts, such that he engaged only in a consensual sexual relationship with Ms Cary.
If Mr Slater were again to have the support of a similar relationship, I accept that despite his worrying history, there would be no significant risk of Mr Slater offending in the same way or at least such a small risk that Mr Slater could be appropriately released, consistent with the need to protect the community. That is all the more likely given the passing of years. However, that is no longer possible. Ms Cary sadly passed away whilst Mr Slater has been in custody.
Whilst in custody, Mr Slater, after some initial refusal, commenced a course designed to address his criminal sexual behaviours whilst within prison. The course is referred to as the Sexual Behaviour Clinic (SBC).
Mr Slater first joined that course in November 2014. The course was completed on 30 June 2015. I have received into evidence the post-treatment report. I have also received assessments made before and after the program by forensic psychologists assessing the risk of Mr Slater’s recidivism. Finally, I received the electronic notes made by the providers of the SBC program during its course. I heard evidence from Ms Pfitzner, one of the psychologists who delivered the program to Mr Slater, and Mr Sim who is the Manager of the Rehabilitation Programs Branch.
I am satisfied that Mr Slater genuinely and enthusiastically participated in the SBC program. I find that he found it challenging because of his poor level of education and intellectual functioning. He found it difficult to grasp and understand both written and oral material, which was necessarily somewhat abstract. Mr Slater also found it challenging to expose his level of written and oral comprehension and expression to other prisoners participating in the SBC program.
The material I have received reveals two particularly concerning matters about Mr Slater which should be expressly dealt with. The first is that the Post Treatment SBC Report refers to Mr Slater having some hostility to women. I am satisfied that those references relate only to his criminal offending. There is nothing in his reported participation in the program, or his dealings with the prison authorities, which suggests any continuing hostility to women while serving his current sentence. The identification of hostility to women is, of course, soundly based on his prior offending but there is no evidence of any manifestation of that hostility during the period of his imprisonment.
The second matter is the observation that Mr Slater appears to lack empathy. I am satisfied that Mr Slater’s capacity for empathy, or at least the empathy that he has shown for his victims, even after the event, is very limited. It is difficult for me to know whether there is some psychosocial condition which deprives Mr Slater of a capacity to feel empathy or whether there is some psychological obstacle to him feeling or expressing empathy generally for the particular victims of his offending. I observe, however, that in the course of the program Mr Slater had difficulty correctly identifying the emotions of fear and hurt displayed on the faces that he was shown. I cannot be sure, in the absence of careful investigation of that with the assistance of expert evidence, how significant that is. Nonetheless, it does cause me some concern and suggests a need to proceed with some caution.
On the material in the reports and notes, I find that it must have been obvious to the program providers, and Ms Pfitzner in particular, by mid-January 2015 that Mr Slater's educational and cognitive standards were such that he was going to struggle with the course. Indeed, a note made on 14 January 2015 by Ms Pfitzner says as much. It is difficult for me to understand why an intellectual functioning test was not administered to Mr Slater soon after that note was made in January 2015. An intelligence test known as the WAIS-IV test was not administered until 26 May when the program had just a month to run. I am not satisfied by any of the testimonial explanation given by Ms Pfitzner for not administering that test earlier. A later note made by Ms Pfitzner suggested that Mr Slater may have an auditory processing problem of unknown aetiology but that seems to me to be a very tenuous, and much less likely, reason for Mr Slater’s difficulties.
Nonetheless, because of the late-discovered level of intellectual functioning, Ms Pfitzner and her supervisor, Mr Sim, have recommended that Mr Slater undertake the SBC-Me course. The SBC-Me course is specifically designed for prisoners with intellectual disabilities. On Ms Pfitzner’s and Mr Sims’s description of the course it seems to me it is designed for prisoners with a gross intellectual disability. I can understand Mr Slater's reluctance to participate in it. Even though Mr Slater explained to the psychologists that he would not participate in the SBC-Me course because he had already completed the SBC course, I suspect that his real objection was to undertaking the SBC-Me course with others, at least some of whom, would have appeared to him to have gross intellectual disabilities.
The evidence shows that Mr Slater was very sensitive to accusations that he was not bright and very sensitive to his reputation amongst other prisoners. He was worried that he would be seen, to use his own words, as a ‘dumb arse’ for not being able to grasp all the material in the SBC course.
In any event Mr Slater did make substantial progress in the SBC course, even though he found it challenging. I cannot understand the recommendation that he complete the SBC-Me course. There was no attempt before questioning by me to identify just what aspect of the SBC course Mr Slater was expected to improve on by undertaking the SBC-Me course. The answers to my questions were far from convincing. If the only reason to detain Mr Slater were the desire that he complete the SBC-Me course, I would unhesitatingly have found that it would be wrong to do so.
It is necessary to explain a little more about the risk assessments conducted before and after the SBC-Me course. The series of questions asked for that assessment seem to me broadly appropriate to the task. However much of the marking is necessarily subjective, despite the measures which are taken standardise the results. Surprisingly, over the long time that the Department for Correctional Services has administered those assessments, they have not tested for the extent of subjective variation between assessors. It must be possible to do so, for example, by having assessors examine the same person and comparing the results. That is a surprising omission.
Although I am told that there has been some testing of the SBC-Me program overseas, which confirms its utility and validity, there has been no properly-controlled testing of it in South Australia. That too is surprising. The SBC programs and other similar programs are expensive to provide. So much so that sentencing courts are often informed that there are not enough places for all prisoners who may benefit from them.
It is extremely important that the validity of risk assessments be tested so that the community can be assured that public money is responsibly spent, that prisoners are not detained in custody any longer than they need to, and that if prisoners are released into the community it is only done when it is reasonably safe to do so. It is difficult to understand how the community can have confidence in any of those objectives without rigorous and objective testing of the assessment tool and the programs provided. Ideally, the testing would be nationally supervised and would compare the programs offered in various Australian jurisdictions. I can only hope that is done as soon as possible.
Simply applying judicial experience to the matter, given Mr Slater’s history which I have recounted, and in particular the account of violent offences for which Mr Slater is now in custody, on any objective analysis there must be a significant risk of reoffending unless there has been a significant and substantial change of his circumstances in custody. The history demonstrates that Mr Slater has a tendency to act violently in order to immediately gratify his desires irrespective of the effect on others and without much concern for the criminal sanctions which may follow.
As I have observed Mr Slater has made progress in the SBC Course. However, it is not of a scale that would, in itself, address the objective risks arising from the offending which I have described. Importantly, if Mr Slater is released, it would not be into a stable de facto relationship of the kind that he had with Ms Cary. That fact is important in assessing the risk.
The assessment just made is based on an understanding of human behaviour and the institution judicial experience of this Court. In addition, two experienced forensic psychiatrists, Dr Nambiar and Dr Jennings, on their evaluation of Mr Slater’s antecedents have also come to the conclusion that there is a significant risk that Mr Slater will re-offend because he is unwilling to control his sexual instincts.
On the basis of that history and those expert opinions, it is my finding that Mr Slater is unwilling to control his sexual instincts in the sense that there is a significant risk that he would, if released, and if given an opportunity, commit an offence of this kind, and fail to exercise appropriate control of his or her sexual instincts.
There still is a question as to whether, notwithstanding that finding, it is appropriate to make the order for indefinite detention. The order should not be made unless a person is found to be incapable or unwilling to control his or her sexual instincts. It is necessarily implicit in s 23 of the CLSA that a finding to that effect is a necessary pre-condition to making an order. However even if that finding is made, it may be appropriate to decline to make the order of indefinite detention if the Court were satisfied that the person, if released, would be supervised or supported in a way which so ameliorated the risk of reoffending that release is a more just and appropriate option than continued incarceration.
Rarely would a bare release without any supervision be sufficient. In most cases a finding that a person was unwilling to control or incapable of controlling their sexual instincts would lead to the order being made and then to a subsequent consideration of whether release on licence was appropriate. However, in this case, because of the powers available to the court under the Criminal Law (High Risk Offenders) Act 2015 (SA), there is an alternative to the making of the order. The Attorney-General has made an application for an extended supervision order. Mr Slater consents to the making of that order on the terms and conditions proposed by the Attorney-General. Those conditions include electronic monitoring and requirements that Mr Slater attend for such counselling as the department might direct. I am satisfied that psychological and psychiatric services are available in the community which would substantially manage the risk of further offending. Those services are available from private psychologists and from institutions like Owenia House.

The question arises therefore whether the proposed supervision under the Criminal Law (High Risk Offenders) Act 2015 (SA) renders it appropriate to decline to make the order pursuant to s 23(4) of the CLSA. There is a strong case that has been eloquently put by Mr Marcus for declining to make the order on that ground. However, I have decided, to make the order. There is one factor which critically affects what would otherwise be a finely balanced question. That critical factor is this. The subject offending was preceded by Mr Slater, on his own admissions made during the course of the SBC program, sexually fantasising about non-consensual sex with his victim. Mr Slater told the psychologists in the course of the SBC program that he continued to have that fantasy.
Unfortunately, despite that disclosure, no individual therapy directly addressing that fantasisation, and teaching techniques for re-orientating Mr Slater's sexual fantisisation have been provided. I find that very surprising. Of all the risk factors that were potentially capable of some change, that was the most promising one. I have concluded that before Mr Slater’s release could be considered appropriate and the protection of the community reasonably assured steps to address that sexual fantasisation should be taken and commenced whilst he remains in custody.
I therefore order on the Attorney-General’s application pursuant to s 23 of the CLSA that Mr Slater be detained in custody until further order.
In those circumstances it is not appropriate to make an order pursuant to the Criminal Law (High Risk Offenders) Act 2015, even though it is by consent. It would be anomalous for that order to operate whilst Mr Slater remains in custody.