Slater v Director of Public Prosecutions (SA)
[2025] SASC 11
•12 February 2025
SUPREME COURT OF SOUTH AUSTRALIA
(Criminal: Application)
SLATER v DIRECTOR OF PUBLIC PROSECUTIONS (SA)
[2025] SASC 11
Judgment of the Honourable Justice McDonald
12 February 2025
CRIMINAL LAW - SENTENCE - SENTENCING ORDERS - ORDERS AND DECLARATIONS RELATING TO SERIOUS OR VIOLENT OFFENDERS OR DANGEROUS SEXUAL OFFENDERS - DANGEROUS SEXUAL OFFENDER
CRIMINAL LAW - SENTENCE - POST-CUSTODIAL ORDERS - OTHER TYPES OF POST-CUSTODIAL ORDERS - RELEASE ON LICENCE
On 21 April 2017, Chief Justice Kourakis ordered that the applicant be detained until further order pursuant to s 23 of the Criminal Law (Sentencing) Act 1988 (SA) on that basis that he was unwilling to control his sexual instincts. At the commencement of these proceedings, the applicant had been serving a sentence of 10 years imprisonment for the offences of aggravated serious criminal trespass and rape. Prior to these offences, the applicant had an extensive history of similar offences.
On 5 April 2022, the applicant filed an application for release on licence pursuant to s 59(1) of the Sentencing Act 2017 (SA) (‘the Act’). The applicant brings this application on the basis that he is now capable of controlling, and willing to control his sexual instincts and no longer presents an appreciable risk to the safety of the community pursuant to s 59(1a)(b) of the Act. The respondent opposes the applicant’s release on licence.
In accordance with s 59(2) of the Act, the Court ordered that two legally qualified medical practitioners assess the applicant and provide a report regarding the applicant’s mental condition and whether he was capable of, or willing to control, his sexual instincts. A report from Dr Craig Raeside was received on 3 November 2022 followed by a report from Dr Narain Nambiar dated 5 December 2022. The two experts provided concurrent evidence on 22 November 2023.
Held; granting the application:
1.The Court is satisfied that the applicant is both capable of controlling and willing to control his sexual instincts.
2.The applicant is to be released on licence pursuant to s 59(1) of the Act, subject to the conditions suggested by the Parole Board.
Sentencing Act 2017 (SA) s 59(1), s 59(1a)(a) s 59(3), s 59(4a); Criminal Law (Sentencing) Act 1988 (SA) s 23(1), referred to.
Hore v The Queen; Wichen v The Queen (2022) 273 CLR 153; R v Slater [2017] SASC 70, applied.
SLATER v DIRECTOR OF PUBLIC PROSECUTIONS (SA)
[2025] SASC 11Criminal: Application
MCDONALD J
On 21 April 2017, Kourakis CJ found Mr Slater to be unwilling to control his sexual instincts, as that term was defined for the purpose of s 23(1) of the Criminal Law (Sentencing) Act 1988 (SA).[1] On that basis, his Honour ordered that at the expiration of the term of imprisonment that Mr Slater was serving, he be detained in custody until further order of the Court.
[1] Section 23 of the Criminal Law (Sentencing) Act 1988 (SA) has since been replaced by s 57 of the Sentencing Act 2017 (SA), which is in substantially the same terms.
On 5 April 2022, Mr Slater filed an originating application for release on licence pursuant to s 59(1) of the Sentencing Act 2017 (SA) (‘the Act’) on the basis that he is now both capable of and willing to control his sexual instincts. It was submitted that Mr Slater no longer presents an appreciable risk to the safety of the community and in those circumstances, he should be released from custody.
The Director of Public Prosecutions opposes Mr Slater’s release on licence.
For the reasons that follow, I allow the application.
Legislative regime
By operation of the transitional provisions of Schedule 1 of the Act[2] Mr Slater’s application for release on licence is governed by s 59 of the Act. That section relevantly provides:
[2] Schedule 1 of Sentencing Act 2017 (SA) – Repeal of Criminal Law (Sentencing) Act 1988 (SA).
59—Release on licence
(1)The Supreme Court may, on application by the DPP or the person, authorise the release on licence of a person detained in custody under this Division.
(1a)A person detained in custody under this Division cannot be released on licence unless the person satisfies the Supreme Court that—
(a) the person is both capable of controlling and willing to control the person’s sexual instincts; or
…
(2)The Supreme Court must, before determining an application under this section for the release on licence of a person detained in custody under this Division, direct that at least 2 legally qualified medical practitioners (to be nominated by a prescribed authority for the purpose) inquire into the mental condition of the person and report to the Court on whether the person is incapable of controlling, or unwilling to control, the person’s sexual instincts.
(3)The paramount consideration of the Supreme Court when determining an application under this section for the release on licence of a person detained in custody under this Division must be to protect the safety of the community (whether as individuals or in general).
(4)The Supreme Court must also take the following matters into consideration when determining an application under this section for the release on licence of a person detained in custody under this Division:
(a) the reports of the medical practitioners (as directed and nominated under subsection (2)) provided to the Court;
(b) any relevant evidence or representations that the person may desire to put to the Court;
(c) a report provided to the Court by the appropriate board in accordance with the direction of the Court for the purposes of assisting the Court to determine the application, including—
(i)any opinion of the appropriate board on the effect that the release on licence of the person would have on the safety of the community; and
(ii)a report as to the probable circumstances of the person if the person is released on licence; and
(iii)the recommendation of the appropriate board as to whether the person should be released on licence;
(d) evidence tendered to the Court of the estimated costs directly related to the release of the person on licence;
(e) the reports resulting from the periodic reviews under section 57(15) on the progress and circumstances of the person tendered to the Court;
(f) any other report required by the Court under section 61;
(g) any other matter that the Court thinks relevant.
(4a)The Supreme Court, when determining an application under this section, must not have regard to the length of time that the person has spent in custody or may spend in custody if the person is not released on licence.
…
(6)On the Supreme Court authorising the release of a person under subsection (1), the appropriate board must order the release of the person on licence on the day specified by the Court.
…
(8)Without limiting subsection (7), the release of a person on licence under this section will be subject to such conditions as the appropriate board thinks fit and specifies in the licence (including a condition that the person be monitored by use of an electronic device approved under section 4 of the Correctional Services Act 1982).
…
It is for the applicant to establish that he should be released on licence. In order to do so the onus is on him to satisfy the Court that he is both capable of and willing to control his sexual instincts.
For the purpose of s 59(1a)(a), a person is “willing” to control his or her sexual instincts where there is not a significant risk that the person would, given an opportunity to commit a relevant offence, fail to exercise appropriate control of his or her sexual instincts.[3]
[3] Hore v The Queen; Wichen v The Queen (2022) 273 CLR 153.
The question of “willingness” must be determined having regard to conditions that may be imposed that will assist a defendant in exercising appropriate control. Section 59(1a)(a) is concerned with a defendant’s capacity and willingness to exercise an appropriate level of self-control when an occasion for the exercise of self-control arises. As the High Court explained in Hore v The Queen; Wichen v The Queen:[4]
… the satisfaction required by s 59(1a) is not required to be established by an exercise separate from, and carried out without regard to, the likely behaviour of the person in the circumstances in which the extent of the risk of a failure to exercise appropriate self-control is to be assessed by the Court. The likely effect of the conditions of release on licence upon the strength of the person’s commitment to exercising appropriate self-control may have a bearing on the assessment required by the Court. The power conferred by s 59(1) is concerned with whether the Supreme Court should “authorise the release on licence of a person detained in custody under [Div 5].” Integral to the exercise of that power is consideration of the conditions referred to in s 59(7) and (8).
[4] Ibid at [56].
In making this assessment the “paramount consideration” is to protect the safety of the community.
Mr Slater’s background and criminal record
In order to put this application into context, it is necessary to set out some of the more pertinent aspects of Mr Slater’s background and criminal record.
Personal circumstances
Mr Slater is now 61 years old. He has a lifelong history of disturbed behaviour associated with physical abuse in his childhood, early onset offending, alcohol related violence, and institutionalisation in custodial settings.
As one of 13 children, Mr Slater’s anti‑social behaviour commenced at school resulting in him spending periods of time in juvenile detention.
He has worked for very limited periods of time, with his longest term of employment being three years in 1999. He has spent most of his adult life in custody.
Psychiatric History
Mr Slater has been assessed by many forensic psychiatrists over the years. He satisfies the criteria for an Antisocial Personality Disorder with significant psychopathic features.
Substance Abuse
Mr Slater has a significant history of substance abuse. He has a past history of drug and alcohol abuse including cannabis, amphetamines, heroin, other opiates and tranquilisers.
Mr Slater commenced abusing alcohol at the age of 14. By the 1990’s, he was a regular heroin user. Over time, he moved on to use methamphetamines.
Criminal Record
Mr Slater first appeared in the Adelaide Childrens Court in 1975 for offences of larceny. Since that time his offending has continued unabated with the exception of a period from about 1998 until about 2007. It would appear that during this period Mr Slater managed to sustain a relationship. However, when that relationship ended, he increased his use of illicit drugs and alcohol and recommenced offending.
June 1980 offending
Mr Slater’s incursion into more serious offending occurred in 1980 when he committed three counts of rape. On that occasion he was involved with five others in the gang rape of a young female hitchhiker. Mr Slater was the first to assault and rape the victim and was described by the sentencing Judge as the ‘ring leader’.
For that offending Mr Slater was sentenced to three years and six months imprisonment with a non‑parole period of six months. By current standards that was a very merciful sentence.
November 1983 offending
Mr Slater was released from custody on 7 April 1983. In October 1983 he committed a further offence of rape. On this occasion Mr Slater had been drinking with his 16-year-old victim. He pushed her to the ground and slapped her face before raping her. At the time, Mr Slater was on parole for the 1980 rape.
For this offence Mr Slater was sentenced to two years and six months imprisonment, which was to be served cumulatively on a sentence of two years and six months for housebreaking offences. A non-parole period of three years and six months was fixed. That sentence was increased on an appeal by the prosecution. Mr Slater was resentenced in 1984 to five years imprisonment, which was cumulative on the housebreaking offences. That amounted to a total head sentence of seven years and six months. A non‑parole period of six years was fixed.
Mr Slater was released on parole in 1988.
October 1990 offending
Between 24 June 1990 and 29 October 1990 Mr Slater committed a large number of offences, the most serious of which were an armed robbery and a robbery in company. Both involved attacks on women alone at night.
The victim of the armed robbery was a nurse walking from the Women’s and Children’s Hospital to her car at about 11.00pm. Realising that she was being followed by Mr Slater, she locked herself in her vehicle. Mr Slater approached the vehicle, demanded she open the door and smashed the driver’s side window. He then lent into the vehicle, pulled the victim’s hair, and threatened her with a screwdriver. Mr Slater then climbed into the vehicle, reached across the victim and stole her purse.
On the same evening, about half an hour later, Mr Slater rammed the rear of a vehicle that another female was driving. The victim got out of her vehicle and Mr Slater grabbed her by the arm and shoved her up against the car, punching her to the ear. He threatened to cut her throat if she did not shut up and give him her purse.[5]
[5] Originally a co-offender was jointly charged with the offence of robbery in company. The prosecution accepted a plea from the co-offender to being an accessory after the fact.
For these offences, plus a number of other matters, on 7 November 1991 Mr Slater was sentenced to 14 years, one month and 16 days imprisonment. A non‑parole period of nine years was fixed.
Mr Slater was released on parole on 15 June 1997.
April 2007 offending
On 23 April 2007 Mr Slater committed the offences of aggravated serious criminal trespass and rape. At about 1.00am on this date Mr Slater broke into the premises of a neighbour through an open kitchen window, armed with a knife. He pushed the victim to the ground and threatened to kill her. Mr Slater then pulled her to her feet by her hair, held the knife against her throat and forced her into the bedroom. He compelled her to change into lingerie, threatening to stab her if she did not comply. Mr Slater proceeded to sexually assault the victim in a number of ways.
For these offences Mr Slater was sentenced to 10 years imprisonment with a non‑parole period of eight years. That sentence commenced on 23 April 2007.
2016 Application for a continuing detention order
On 19 December 2016, as Mr Slater’s sentence drew to an end, the Attorney-General filed an originating application for him to be made the subject of a s 23 continuing detention order. The following day, an originating application was filed by the Attorney-General for an extended supervision order (‘ESO’). This was the alternative position, in the event that the primary application was unsuccessful.
Various expert reports were obtained in support of the applications.
On 21 April 2017, Kourakis CJ made the s 23 order for continued detention. His Honour did so on the basis that whilst Mr Slater had made some efforts to rehabilitate in custody by attending the SBC program, that progress was not to the extent that would address the objective risk arising from Mr Slater’s history of offending.
The Chief Justice also had available to him expert reports from Dr Nambiar and Dr Jennings who, on their evaluation of Mr Slater’s antecedents, had come to the conclusion that there was a significant risk that Mr Slater would re-offend on the basis that he was unwilling to control his sexual instincts.
Relying on Mr Slater’s history and the opinions of the experts, the Chief Justice found: [6]
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 [sic] sexual instincts.
[6] R v Slater [2017] SASC 70 at [35].
The Chief Justice considered whether, because of the powers available to the Court to impose an ESO, there was a less restrictive alternative. Put another way, the Chief Justice considered whether the proposed supervision under an ESO rendered it appropriate to decline to make a s 23 order.
In determining the issue, the Chief Justice was influenced by what he described as a “critical factor”. This was that during the SBC course Mr Slater had admitted that he continued to have sexual fantasies about non‑consensual sex with his victims. For that reason, the Chief Justice 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”.[7]
Participation in programs whilst in custody
[7] Ibid at [39].
SBC-me Program
Mr Slater participated in the SBC-me program over 12 months in 2020‑2022. The SBC-me program is a modified version of the SBC program designed for those with a reduced or diminished cognitive function. Mr Slater’s SBC-me post treatment report was generally very positive. It was noted by the program facilitators that Mr Slater had acknowledged previous sexual fantasies including fantasies about non-consensual acts. However, during the program there was no evidence of any pre-occupation with deviant sexual interests, and Mr Slater continued to deny any ongoing engagement in such. Mr Slater also recognised that one of his criminogenic rick factors was substance abuse and he understood that he needed to continue to be “straight and sober” so as not to risk future disinhibition, which would in turn put him at risk of further sexual violence.
Prior to the SBC-me program, Mr Slater’s risk of sexual re-offending was estimated to be within the well-above average range and to have a predicted sexual recidivism rate of 41.1 per cent over five years, in comparison to the normative sample. In 2021 however, Mr Slater’s risk of sexual re-offending was estimated to have reduced but remained within the above average range with a predicted sexual recidivism rate of 27.9 per cent over five years.
It was the view of the facilitators that following treatment Mr Slater appeared to have positively addressed the majority of his dynamic risk factors. Some of the changes noted were however recent when compared with the frequency, intensity, duration, and onset of Mr Slater’s problem behaviours and thinking. They were also not yet consistent over time or in relevant high risk situations in the community, particularly in relation to interpersonal aggression and emotional control. However, with community supervision and support, it was hoped that in the future these treatment gains could be sustained over time. It was noted that it would be important for these gains to be carefully monitored if and when Mr Slater was released into the community.
The program facilitators placed an important caveat over their otherwise cautious optimism. They said:[8]
It was noted that should Mr Slater return to substance abuse coupled with emotional dyregulation [sic] (particularly if as a result of relationship breakdown or isolation), endorse attitudes of self-entitlement while seeking sexual gratification, his risk of engaging in problematic behaviours will increase as he was likely to ignore the importance of consent, potential harm to others and consequences for himself.
[8] Rehabilitation Programs Branch, Sexual Behaviour Clinic – me, Post-Treatment Report dated 11 May 2021 at 9.
The facilitators concluded their report with the following:[9]
He consistently denied engaging in deviant sexual thought paired with masturbation and orgasm which suggested willingness to control his sexual behaviour. Mr Slater had limited prosocial supports and, within his current restricted environment, limited opportunity to generalise some of his key risk management skills presented. As such, the recommendations provided in this report focus on potential community release under a Section 59 licence order via high level case management support and conditions, in addition to having NDIS support in place upon release so that daily support workers can prompt, assist and remind Mr Slater to utilise the skills learnt in the program, such as good problem-solving and making considered decisions, to assist him manage his own risk factors.
[9] Ibid at 12.
Relapse Prevention Program
In 2023 Mr Slater completed the Life without Barriers, Relapse Prevention Program which relates to drug and alcohol abuse and identifying potential situations that may arise and affect individuals if released into the community. The counsellor who facilitated the course reported:[10]
Mr Slater attended all 12 of the appointments provided to him. Mr Slater is always engaging, supportive and encouraging to other participants. Mr Slater is continually exploring ways that he can implement the topics/strategies that we have covered in the program into his daily routine upon release.
[10] Pre-Sentence Report dated 2 June 2023 at 3.
Further programs recommended
There is no recommendation that Mr Slater engage in any further programs whilst in custody.
Behaviour in custody
Mr Slater tested positive for cannabis in a drug test in 2022. There have been no other notable concerns relating to Mr Slater’s behaviour in custody within the last 24 months.
2022 Parole Board Report
The Parole Board have provided a report dated 4 August 2022 setting out Mr Slater’s history and his response to treatment whilst in custody.
In noting Mr Slater’s participation in the SBC-me program, the Presiding Member suggested that:[11]
Notwithstanding that Mr Slater has made some minimal gain in that latter program, those gains have not been sufficient to reduce his risk to the level where he could be safely managed in the community.
[11] Parole Board Report dated 4 August 2022 at 3.
The Presiding Member raised Mr Slater’s substance abuse is a potential additional risk for re-offending and suggested that Mr Slater is still likely to engage impulsively and associate with anti-social peers.
It is the view of the of the Parole Board that the release of Mr Slater on licence would pose a risk to the safety of the community. It was stated:[12]
Previous paroles have not prevented Mr Slater from re-offending and his lack of compliance indicates that he is not a good candidate for supervision. He still minimises his offending, and does not accept that his offending would have had any harmful effect on his victims.
He has been considered suitable for the Domestic Violence Intervention Program but has not undertaken that program.
His only family and support in the community is his son Luke. To what extent that may be a protective factor is difficult to ascertain.
He was first admitted to detention when he was 11 years old. In the last 44 years he has spent about 34 years in prison. He is therefore highly institutionalised and that in itself is a challenge and a risk in terms of release on licence.
[12] Ibid.
Systems and supports to be put in place in the event that Mr Slater is released into the community
Given the nature of the test that I am required to apply in determining whether Mr Slater is willing to control his sexual instincts, it was necessary for me to receive some information about what supports and systems could be put in place for Mr Slater in the event that he is released from custody. For this purpose, I ordered and received a special aspects pre-sentence report from Michael Giordano, a Community Corrections Officer which was supplemented by evidence from Ryan Harber, the Executive Director for Community Corrections and Specialist Prisons. The combined effect of the evidence was:
·There are no options for Mr Slater to participate in any form of “step down” process in the custodial system. Ordinarily prisoners would transition to low security facilities and/or the Adelaide Pre-Release Centre as a means of preparing them for their release into the community. As a consequence of Mr Slater’s history of sexual offending, this option is not available to him. For interrelated reasons he is also ineligible for day release or offsite reintegration programs.
·In the event that the Court determines to release Mr Slater, a period of approximately 12 weeks is required to put arrangements and supports in place to transition Mr Slater into the community. The Department would form a multi-agency, multi-disciplinary panel to plan for, amongst other things, the accommodation, supports, reporting arrangements, daily structure, and systems for monitoring domestic violence and any new relationships that Mr Slater may enter into. When asked what would be covered in these meetings, Mr Harber explained:[13]
Every aspect of the individual’s release, from accommodation to how the individual is going to be supervised; what trigger planning is required if the individual may breach; what are the signs to look for if, you know, the individual is getting a little, for lack of a better word, wobbly in the community; how we up the ante with supports or decrease; what structured day may be required, as in prosocial supports, engagement in community service, for example. It’s a very holistic approach to manage and monitor - not monitor but manage and plan for the individual’s release and whatever risks that individual may present to the community.
·In terms of appropriate accommodation, at the time Mr Harber gave evidence, Mr Slater was classified as a category 3 on the wait list for SA Housing Authority accommodation. In the event that a release date is set, DCS will enter into discussions with the Housing Trust to ensure that Mr Slater would become a category 1 applicant for accommodation (i.e. the highest priority).
·During that same time, DCS would enter into discussions with the NDIS and would put together a ‘Change in Situation report’ to attempt to obtain an increased level of funding. Consideration would also be given to a suitable form of mental health support for Mr Slater.
·In the event of Mr Slater’s release DCS would continue to convene regular case conferences involving all relevant external service providers involved in his case to monitor his progress in the community. Those conferences would assess both Mr Slater’s risks and his needs and, if necessary, may result in requests to the Parole Board to vary conditions.
·Amongst those that would be involved in supporting Mr Slater in the community will be the Service to Youth Council (‘the SYC’). The SYC is a non-government organisation that partners with the Mount Gambier Prison to provide a “walk-alongside service” to assist individuals transition into the community. The SYC would be involved in the pre-planning in the 12 weeks period leading up to Mr Slater’s release. The length of time that they remain involved is determined on a case by case basis. Generally, the SYC remain involved with an individual for 12 weeks, however they have been known to extend that out for up to six months.
·Assuming that home detention with electronic monitoring is a condition of Mr Slater’s release on licence (which is usually the case for someone who has been released pursuant to s 59 of the Act), he will be monitored “24/7, 365 days of the year” and could only leave his accommodation with pre-approved pass outs. The Intensive Compliance Unit would be involved in monitoring Mr Slater. This unit is split into two teams; one team are involved in 24/7 monitoring at desks, watching live the movements of individuals, and the second team, the compliance officers, are out on the road, attending at the homes of those who are being electronically monitored.
·During the 12 week preparation period, DCS would also make a decision about whether to refer Mr Slater to the Offender Management Plan. The Offender Management Plan is a multi-agency plan led by SAPOL, with key contributors including DCS, Health, and Drug and Alcohol Services, housing and mental health services. The Offender Management Plan provides a proactive policing model for high risk prolific offenders who are in the community. If accepted onto the plan, Mr Slater would have a police officer allocated to him in a mentoring/case management role, with whom he would be required to work closely.
[13] 10 October 2023 T12.
At the time that Mr Harber gave evidence, Mr Slater had a NDIS plan with total funding in the sum of $20,783.45.
Psychiatric Reports
As required by s 59(2) of the Act, I ordered that reports be provided from two legally qualified medical practitioners addressing whether Mr Slater is incapable of controlling, or unwilling to control, his sexual instincts.
I have received reports from Dr Craig Raeside[14] and Dr Narain Nambiar.[15]
[14] 3 November 2022.
[15] 5 December 2022.
Report of Dr Raeside
In his report, Dr Raeside indicated that at the time of writing the report, he would not support the s 59 application for Mr Slater’s release on licence.
Dr Raeside expressed the view that there had probably only been very minor gains regarding Mr Slater’s risk after his participation in the SBC-me program. Although acknowledged as a positive, Dr Raeside considered:[16]
that any improvement is fairly recent, potentially only related to the program itself, and yet to be tested in a less secure environment where there is opportunity for Mr Slater to be faced with stress, uncertainty, and the various other factors that he would likely find very difficult upon being released into the community.
[16] Report of Dr Craig Raeside dated 3 November 2022 at 13.
Dr Raeside opined that, if the Court determined to grant the application there remained:[17]
at least moderate to high risk of further sexual reoffending in the community, with likely escalation of that risk upon being released into the community with associated stress, given his underlying institutionalisation and limited protective factors.
[17] Ibid at 14.
If however, despite these concerns, the decision was made to release Mr Slater, Dr Raeside suggested that in order for him to successfully reintegrate into the community without further increasing his risk, he would need considerable support, including the assistance of daily workers through NDIS to provide practical and social support. He would require close monitoring and regular testing for any resumption of substance abuse, close supervision, and be afforded very little tolerance for any antisocial behaviour.
At the conclusion of his report, Dr Raeside acknowledged the dilemma posed by Mr Slater’s situation. He said:[18]
… it is difficult to see the circumstances that would reduce Mr Slater’s risk sufficiently that he could be released into the community. Ultimately, it would only be in the community that an accurate assessment could be undertaken as to how much benefit he has had through the programs he has received in custody, as well as advancing age and the passage of time. Nevertheless, this might represent an unacceptable risk to the community.
[18] Ibid at 14.
Report of Dr Nambiar
A central focus of Dr Nambiar’s report was the impact of Mr Slater having completed the SBC and SBC-me programs, on his risk of recidivism. He said that whilst it was apparent that Mr Slater was able to participate in the programs in a positive manner, “it was still difficult to ascertain what he actually derived from his participation in terms of future learnings”.[19] Whilst Mr Slater appeared to understand the fairly simple concepts of high risk factors, his ability to articulate them was limited given his intellectual functioning and concrete thinking. Dr Nambiar made the observation that given “Mr Slater’s cognitive limitations, he may never reach a point where he is able to articulate his learnings and the assessment of whether Mr Slater is able to exercise appropriate control of his sexual instincts, can only be determined through his behaviour”.[20] The question remains whether Mr Slater is willing to control his sexual instincts.
[19] Report of Dr Narain Nambiar dated 5 December 2022 at 11.
[20] Ibid at 13.
Dr Nambiar identified that the main risk factors for Mr Slater remain “how he regulates his emotions, how he controls his aggressive thoughts, use of alcohol and substances in excessive amounts, a pre-occupation with sexual urges and his concept of empathy for a potential victim.[21]
[21] Ibid at 12.
Dr Nambiar explained that, although Mr Slater had participated in the programs and these issues have been addressed with him, it remains difficult to assess how he would modify his behaviour if faced with similar circumstances in the community.
On a positive note, Dr Nambiar said “given the progress Mr Slater has made since I last interviewed him, I remain optimistic about his willingness, in a colloquial sense, to control his sexual instincts”.[22]
[22] Ibid at 13.
Dr Nambiar explained that “the real test will be how his learnings translate into the general community. The safest approach to do this would be by a step-down from prison to accommodation where he could be highly supervised, with restrictions placed on him in order to mitigate the risk”.[23]
[23] Ibid at 13.
The evidence of Dr Nambiar and Dr Raeside
On 22 November 2023, Dr Nambiar and Dr Raeside gave evidence concurrently. For that reason, it is convenient to deal with their evidence compositely.
Risk factors
Dr Nambiar identified a number of static and dynamic risk factors relevant to Mr Slater’s risk of re-offending and willingness to control his sexual instincts. The static factors relate to his extensive history of violent sexual offending. The dynamic risk factors currently operating include his “enduring personality style, that being antisocial with psychopathic traits”.[24] Also significant is his reliance on alcohol and substances in order to regulate his emotions.[25]
[24] 22 November 2023 T4.
[25] T4.
Dr Nambiar agreed that Mr Slater’s dynamic risk factors had reduced after completing the SBC-me program, however, Mr Slater’s risk of re-offending was at a very high bar before completing the course.[26]
[26] T44.
Dr Nambiar explained that although Mr Slater is able to identify some of his risk factors and articulate simplistic strategies to mitigate risk, it is unclear whether he will apply these strategies when exposed to these situations in the community.[27] Dr Nambiar emphasised that his engagement with treatment and acknowledgement of his risk factors, although positive, is superficial, and merely the first steps towards controlling his urges.[28] To determine whether Mr Slater has understood the treatment, he must be observed in a non-artificial environment.[29]
[27] T58.
[28] T41, 58, 61, 67, 70.
[29] T42.
Finally, on the topic of risk factors, Dr Nambiar raised concerns about Mr Slater’s previous poor compliance with parole conditions. Dr Nambiar assumed that in the past Mr Slater had indicated a willingness to comply with parole conditions however had not done so.[30]
[30] T74.
Dr Raeside shared Dr Nambiar’s concerns about Mr Slater’s previous poor compliance with parole conditions and reoffending whilst under supervision.
Dr Raeside also generally agreed with Dr Nambiar about Mr Slater’s risk factors. It was Dr Raeside’s evidence that whilst Mr Slater’s identification of his risk factors, and the development of simple strategies to mitigate those risks was positive and reasonable, it was only the initial steps, and at a superficial level.[31]
[31] T60-63, 65.
Dr Raeside agreed with Dr Nambiar and observed that Mr Slater’s recent willingness to participate in the SBC-me program was a significant, positive difference from his earlier indication that he did not want to participate.[32] However, whilst he agreed that the program addressed a number of Mr Slater’s risk factors, he could not conclude whether those risk factors had changed. Dr Raeside observed that although there had been a reduction in his overall risk of re‑offending, that risk was still considered to be high.[33] He said that risk would increase if there was substance abuse or Mr Slater was experiencing frustration and anger.[34] It was Dr Raeside’s view that Mr Slater requires further work and support to reduce his dynamic risk factors in order to be successful in the community, however the skills he has learnt would be best tested in the community environment.
[32] T69.
[33] T44.
[34] T44.
A common theme throughout the course of the evidence of Dr Nambiar and Dr Raeside was that Mr Slater is at the outset of his rehabilitative journey but still has a distance to travel. It was suggested that Mr Slater still needs to do more work to try and reduce his risk further, however much of that can potentially occur in the community.
Dr Raeside also described observing a degree of “mellowing” in Mr Slater, which was likely to be attributed to his age. He explained:[35]
The main difference is obviously related to his age. We’re talking about 15 years that have past, all of which have been spent in custody. So there was a greater degree of institutionalisation, even though he’d had that before to some extent. The other differences are that he’d recently completed the SBC-me program, having previously either refused or not been able to engage in any programs. So that had been recent, but it was an important factor that had occurred. I think the third one, which I was only aware of after reading the SBC-me report, where I talked about that potential mellowing before leading up to the prior offending, appears that there’d been an ongoing pattern of behaviour, and what I’d been led to believe was not correct at that point. They were the main differences.
[35] T39.
Anti-libidinal medication
During the course of their evidence, Dr Raeside and Dr Nambiar expressed the view that of particular concern was the combination of Mr Slater’s previous attitude towards sexual violence, his lack of empathy, his pre-occupation with sex and his high sex drive. Dr Nambiar summarised the consequences of this collection of concerning behaviours:[36]
Mr Slater has had a preoccupation with sex as well for most of his life to the point where as we know not only did he offend generally but he also offended in a sexual manner and this was mainly due to his high sex drive and in doing so he himself had said that he would intimidate his victims and just give in to his urges without any thought about how it would affect them until afterwards.
[36] T6.
In this context, the potential impact of anti-libidinal medication was addressed during the course of the psychiatrist’s evidence. In response to a question about how to reduce aberrant sexual fantasies, Dr Raeside gave the following response:[37]
So there’s several ways we say can be addressed, most typically it’s done through cognitive behaviour therapy and trying to separate out the thoughts and the behaviours, but of course that’s very difficult when it’s a solitary type of activity and that he could engage in that on his own wherever. The other one is to try to reduce the sexual drive through medication, antilibidinal therapy, and that therefore he gets less pressure, less reinforcement from that. So he may still have the deviant fantasies, but they don’t, they simply don’t cause the same level of arousal that they did and hopefully if the sexual desire was extinguished, he then ceases to fantasize, actively fantasize about those as well.
[37] T23.
Dr Nambiar had raised the issue of anti-libidinal medication with Mr Slater when he interviewed him, however, at that time, Mr Slater expressed the view that he did not need it because he wanted to pursue a relationship. This answer of itself was of concern for Dr Nambiar.[38] Since then there had however been a development in that Mr Slater had made a request, of the doctors within the prison system, to assess his suitability for anti-libidinal medication.[39]
[38] T24.
[39] T28-29.
Both Dr Nambiar and Dr Raeside expressed the view that the use of anti-libidinal medication would be a major component in reducing Mr Slater’s real risk if he was to be released back into the community, although they considered that it would need to be complemented by psychological therapy.
Level of support necessary to safely release Mr Slater in the community
Dr Raeside and Dr Nambiar were in clear agreement that Mr Slater would require considerable support in order to protect the safety of the community if he was to be released from custody. The cost of that support would far exceed the amount of NDIS funding that was available to Mr Slater at that point in time.[40] Dr Raeside explained what that support would look like:[41]
I think at its basic we’d want to make it easier or easiest for him to integrate, to try to have as few barriers that are not necessary or could be done away with, and maximum support in the areas that he would need. So, initially - and if you look at the sort of hierarchy of needs, initially it starts with appropriate accommodation and daily support, being able to go shopping, get food, those type of things, and he would need support in that, let alone moving on in terms of activities during the day, keeping him occupied, he refers to the Men’s Shed, but there may other things that he could engage in, ultimately there might be some employment opportunities, although that is probably way down the track. So, he needs those daily practicable supports more so at the beginning and then see how he goes with that, and it’s difficult for them to be put in place because there is no date if and when he might be released. But the NDIS package or thing that was provided I dare say is basically irrelevant in a sense that it provides no support for what we’re talking about, and it provides some funding to look at providing some support for him or to engage him with some people. But in terms of other people in similar situations to Mr Slater the type of NDIS packages we’ve seen would be ten times or more that was required, right down to where accommodation would be needed, how many hours of support workers, and down to activities and things he could do or not do. This is just really a very beginning that he might be accepted by NDIS, but giving them credit, he doesn’t have the type of disability that they would normally work with, and there is no mental illness, cognitively he is probably not intellectually disabled, even though he is of low intellectual capacity, really his disabilities are his personality, his substance abuse and his institutionalisation, which is not what NDIS typically refer to, other than perhaps getting him into drug and alcohol programs. Sorry about the long answer, but he also needs follow-up from what he’s had in prison, he would need I think a community based sexual offender program, he might be eligible now to participate in Owenia House. The advantage there is that in the community reporting back and the therapy sessions can reflect on successes and failures and how he found things, and deal with it in real time, and the other of course is a substance use program, even though he has been in gaol a long time he continues to have substance abuse risk factors and needs treatment ... and he may well benefit from a community based violence prevention type program to help further with impulsivity and aggression and those tendencies. That all requires coordination and support and funding.
[40] $20,783.45 – as from 17 February 2022 – 17 February 2024.
[41] T14-15.
It was Dr Raeside’s evidence that in order for Mr Slater to be successful in the community and not re-offend he would need “a whole package of programs, including anti- libidinal treatment, community-based sexual behaviour therapy, and individual therapy to continue with the beginnings of what he’s learnt, close supervision, drug-testing, all those type of things …”.[42]
[42] T45.
The following exchange best summarises the evidence of Dr Raeside and Dr Nambiar regarding this topic:[43]
[43] T96-97.
Q. Having regard to those conditions, would you agree that with all of those conditions in place, with the intensive supervision from DCS and the other agencies, that that in turn would reduce Mr Slater’s risk, Dr Nambiar.
A. As long as all of those conditions are in place, it would mitigate the risk significantly, yes.
Q. Significantly.
A. Yes.
Q. Do you agree, Dr Raeside.
DR RAESIDE
A. I agree, except he would still be a risk. He would still be in my view at least a moderate to high risk, but in practical terms those various factors would be the best things that could occur, short of him staying in custody.
Q. Perhaps if I approach it this way: if he were released without any of these supports, any of these conditions, so imagine the person who finishes the head sentence, they walk out the door of the prison and then no restrictions, what would his level of risk be, Dr Nambiar.
DR NAMBIAR
A. High risk.
Q. Dr Raeside.
DR RAESIDE
A. High risk.
Q. But these conditions bring that down significantly, Dr Nambiar.
DR NAMBIAR
A. Significantly, but we are starting at a very high level.
DR RAESIDE
A. Yes, I agree.
Q. Thank you. I turn to the test that her Honour will have regard to. First of all would you consider Mr Slater capable of controlling his sexual instincts, Dr Nambiar.
DR NAMBIAR
A. Yes.
Q. Dr Raeside.
DR RAESIDE
A. Yes.
Q. Turning to the more difficult question of whether he is willing: in the absence of those conditions that we have here, and all the supports, would you consider Mr Slater to be willing.
DR NAMBIAR
A. No.
Q. Dr Raeside.
DR RAESIDE
A. No.
Q. If we put all of these supports in place, noting the recent decision of the High Court that that question is assessed in the context in which someone’s released; so if we put all these conditions and all the supports in place, is he willing, Dr Nambiar.
DR NAMBIAR
A. I’d have to say the answer is yes.
Q. Dr Raeside.
DR RAESIDE
A. I would look at it in terms of with all of those things in place the test is still: if given the opportunity, or if the opportunity was presented, would he fail to exercise control; so that then becomes dependent on those being in place, but he still may fail to exercise control. So for current purposes I would say yes to your question, but he still may, if the opportunity presented, you know, some failure in supervision or whatever, which invariably will occur to some degree, then there’s a risk of him failing to exercise control.
Further developments
Report of Dr Owen Haeney
On 30 January 2024, when the matter next came before the Court, Mr Slater’s counsel advised that on 24 November 2023 Mr Slater had commenced taking anti-libidinal medication. On that basis, I ordered that a report be prepared by the psychiatrist prescribing the medication, Dr Owen Haeney, as to the dosage of the medication and the effect that it was having on Mr Slater.
Dr Haeney’s report confirmed that Mr Slater had commenced taking anti‑libidinal medication.[44] The intention of the medication is to suppress testosterone and reduce sexual drive (libido) and function. Mr Slater had initially been reluctant to take the medication and when he eventually commenced, was clear that his only motivation was to secure his release from custody. Mr Slater’s reluctance appeared to be on the basis that he believed that it was not necessary as he had noticed a natural reduction in his sexual drive as he became older.
[44] Report of Dr Owen Haeney dated 4 March 2024.
Mr Slater expressed a preference for long-acting injectable medication, administered every four weeks, rather than oral medication.
On review in March 2024, Mr Slater reported that since commencing anti-libidinal medication there has been a further reduction in his sexual function. Blood tests have confirmed that his testosterone is appropriately suppressed, at a level that would usually be associated with a reduction in sexual drive and function. Dr Haeney however observed that there is no guarantee that low testosterone will prevent further offending in any person.
Report of Dr Anne Bawden
In July 2024 I was provided with a new NDIS plan for Mr Slater which provided for significantly increased funds. That plan had total funded support amounting to $96,978.00.
I also received a report form Anne Bawden, a Specialist Support Co-ordinator for “The Growing Space”, a registered NDIS provider. In that report Ms Bawden set out how Mr Slater’s funds will be utilised in the event that he is released from custody.
Ms Bawden’s report addressed two topics that have been of particular concern. These were whether funding exists for ongoing treatment and counselling by a psychiatrist or psychologist if Mr Slater is in the community, and whether there was funding to put the supports in place that Dr Raeside and Dr Nambiar regarded as necessary before Mr Slater is released.
Ms Bawden explained that the funding of about $97,000 that was in place for 2023/2024 will also be available to Mr Slater in 2024/2025. Further, because Mr Slater has been in custody, he has only utilised about 15 per cent of the funds available to him. The remainer of that funding will roll over into the current year, further increasing the money available for supports and services to about $180,000 in the event that Mr Slater is released.
Ms Bawden’s report breaks down into some detail how it is proposed that Mr Slater’s NDIS funds will be spent. For current purposes it is not necessary to descent into those details, other than to observe that it goes a long way towards putting in place the level of support that the psychiatrists regard as necessary for Mr Slater’s safe release into the community. In particular, it allows for Mr Slater to meet with a forensic psychologist on a weekly basis. The funding provides for Mr Slater to receive 45 hours of specialist behaviour intervention support and 20 hours of behaviour management planning and training in behaviour management strategies.
2024 Parole Board Report
I have also received an additional Parole Board report dated 19 August 2024, addressing the question of what condition(s) the Parole Board may impose on Mr Slater’s licence to ensure that he continues to take the anti-libidinal medication. The Parole Board advised that given that Mr Slater has been prescribed anti-libidinal medication, and has indicated that he is prepared to consent to an order that he will continue to take it, they would, if Mr Slater is released in licence, impose such a condition. The conditions that are proposed will require him to take “anti-libidinal mediation as prescribed and requiring him to continue to consent to take anti-libidinal medication as prescribed”. In addition, there would be a condition that “he consent to and submit to any such testing (and including blood testing) as required to monitor whether or not he has taken anti-libidinal medication and the levels thereof”.[45] In the event that it is determined to release Mr Slater on licence with such conditions, the Parole Board will seek advice as to the appropriate method of monitoring whether or not Mr Slater is taking anti-libidinal medication and, if so, in accordance with the amount prescribed.
[45] Parole Board Report dated 19 August 2024 at 1.
Should Mr Slater be released on licence?
Before Mr Slater can be released on licence, it is necessary that I am satisfied that Mr Slater is both capable of and willing to control his sexual instincts. There has never been any suggestion that Mr Slater is incapable of controlling his sexual instincts. The question to be decided is whether he is willing to do so.
The statutory test requires that question to be answered in its proper context which includes the supervision, medication and therapeutic support to be provided to Mr Slater with the suite of conditions that will be in place under the terms of his licence, if he is released from custody.
Although the measures proposed go some way to meeting the concerns raised by Dr Raeside and Dr Nambiar, they do not completely negate them. The question on this application is not whether all risks have been eliminated. It is whether there is no significant risk that he will fail to exercise appropriate control. As Kourakis CJ observed in Wichen v The King, “[s]ection 59 of the Sentencing Act places the burden of answering that question, not on reporting medical practitioners, but on the judges of this Court”.[46] In making that determination, the paramount consideration must be to protect the safety of the community,[47] and I must not have regard to the length of time that Mr Slater has spent in custody or may spend in custody if he is not released on licence.[48] The length of time that Mr Slater has spent in custody may however be relevant to an assessment of his motivation to adhere to the conditions of his licence.
[46] [2022] SASC 158 at [37].
[47] Sentencing Act 2017 (SA) s 59(3).
[48] Ibid s 59(4a).
I am satisfied that with the supports and safeguards that are in place for Mr Slater, there is not a significant risk that he will fail to exercise appropriate control of his sexual instincts if he is released on licence and placed into appropriate accommodation, with conditions tailored by the Parole Board to meet his criminogenic risk factors.
On the basis that it was necessary to allow for a 12 week period to enable appropriate arrangements to be made, on 4 November 2024 I intimated that I would in all likelihood grant the application and release Mr Slater on licence subject to appropriate arrangements and licence conditions. It was also necessary to defer making a final order until the Parole Board had indicated the conditions that it will impose on Mr Slater’s licence.
On 3 February 2025 I received further information from DCS about arrangements that have been put in place in preparation for Mr Slater’s release.
Subsequent to the last hearing date, DCS commenced case conferencing with a range of stakeholders for the purpose of arranging for Mr Slater’s possible release. Resulting from these discussions, a suitable release address has been sourced through the NDIS. This is shared accommodation for a maximum of two clients, in which Mr Slater will initially be residing independently. Consideration will be given to any other potential residents at the property and their suitability to reside with Mr Slater. DCS has undertaken the relevant checks of the property, including confirming the suitability for the use of electronic monitoring equipment, and the property had been deemed suitable.
In addition to receiving support through the NDIS, arrangements are in place for Mr Slater to also receive support from the SYC, who are able to offer practical assistance such as arranging an appointment with a general practitioner, getting Mr Slater to a bank and Centrelink and assisting with transportation needs. Mr Slater will also be supported to lodge an application for the Disability Support Pension and with attending appointments to obtain his depot medication.
It is proposed that Mr Slater will be supervised through the Edwardstown Community Corrections Centre upon his release.
I have also now received a report from the Parole Board with proposed licence conditions.[49]
[49] Annexure 1.
In my view these conditions are sufficient to ensure that any risk posed by Mr Slater is minimised and that he remains “willing” to control his sexual instincts in the community.
Annexure 1
a)That you do not commit any offence;
b)That you not possess any offensive weapon unless you have first obtained the permission of the Parole Board to do so and comply with the terms and conditions of that permission;
c)That you are under the supervision of a Community Corrections Officer and that you obey the reasonable directions of the Community Corrections Officer; and
d)Other conditions:
1.That you be of good behaviour, keep peace towards persons, and do not commit any breach of the law.
2.That you obey the directions of your Community Corrections Officer with regard to your employment and accommodation.
3.That immediately upon your release you report to your Community Corrections Officer.
4.That you carry out faithfully all instructions and requirements of the Community Corrections Officer under whose supervision you have, from time to time, been placed (in this order referred to as ‘your Community Corrections Officer’).
5.That you attend for interviews as and when required by your Community Corrections Officer of the Department for Correctional Services.
6.That you report as and when required by your Community Corrections Officer.
7.That you do not change your place of residence without the prior written permission of your Community Corrections Officer.
8.That you report weekly in person to, and meet with, your Community Corrections Officer under whose supervision you have from time to time been placed and this is not to be varied without the approval of the Parole Board.
9.That you do not depart or attempt to depart from the State of South Australia without the prior (written) permission of the Parole Board.
10.That you submit to any breath testing analysis as directed by your Community Corrections Officer.
11.That you abstain from alcohol.
12.That you do not, other than in strict accordance with the directions given to you by a legally qualified medical practitioner registered in the state of South Australia, use, possess or administer any narcotic or psychotropic drugs or any drug which cannot be legally obtained without the prescription from a legally qualified medical practitioner registered in the state of South Australia, unless you have a prescription from a legally qualified medical practitioner registered in the state of South Australia, for such a drug.
13.That you advise your Community Corrections Officer of any drug that has been prescribed to you by a legally qualified medical practitioner.
14.That you present yourself for drug and alcohol testing as and where directed by your Community Corrections Officer, or the Parole Board, and that you do all things and sign all such forms as may be necessary to enable this, the said drug and alcohol testing, to be conducted and analysed and the results of such analysis provided to your Community Corrections Officer and/or the Parole Board.
15.That you follow your Community Corrections Officer’s direction in relation to the people with whom you associate.
16.That you do not enter upon or remain upon the premises of any licensed hotel, licensed club or licensed entertainment venue.
17.That you shall not possess any firearm, any ammunition or any offensive or prohibited weapon, replica or dangerous article unless you have first obtained the written permission of the Parole Board to do so and comply with the terms and conditions of that permission.
18.That you will wear an electronic monitoring device and be subject to an intensive supervision regime of Home Detention, and that you comply with the rules of DCS in respect of intensive electronic monitoring and will not leave your residence at any time, except for the purpose of approved remunerated employment, urgent medical or dental treatment, to minimise the risk of serious injury or death to yourself or to any other person, or for any purpose as directed by and with the prior approval of your Community Corrections Officer.
19.That you undertake and complete a psychological assessment at the direction of your Community Corrections Officer and that you thereafter undertake and co-operate with such treatment as is recommended.
20.That you undertake 1:1 counselling or other intervention as directed by your Community Corrections Officer to address your sexual offending.
21.That you undertake 1:1 counselling or other intervention as directed by your Community Corrections Officer to address your violent offending.
22.That you undertake and satisfactorily complete counselling for Substance Abuse.
23.That you not use or be linked to any computer network or any equipment with access to the internet and that you not enter that part of any premises in which an internet facility is provided for use by the public without prior approval of your Community Corrections Officer.
24.That you submit your telephones, mobile phones, computers or other electronic devices for inspection to the South Australian Police and/or your Community Corrections Officer at the request of your Community Corrections Officer.
25.That you take such medication as your treating doctor shall prescribe.
26.That you take anti-libidinal medication as prescribed.
27.That you consent to and submit to any such testing (and including blood testing) as required to monitor whether or not you have taken anti-libidinal medication and the levels thereof.
28.That you consent to the continued provision of any antilibidinal medication.
29.That you obey your Community Corrections Officer’s directions in relation to any geographical exclusion zones.
30.That you not contact, attempt to contact or associate in any way, whether directly or indirectly, with the victim(s) of your offence(s).
31.That you not produce, access, possess or view any pornographic material.
32.That you allow the Department for Correctional Services or South Australian Police access to your premises, and be at the entrance to that address, in order for the Department of Correctional Services or South Australian Police to inspect the premises to see if there is any evidence to suggest that you may be in breach of any of your conditions.
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