State of NSW v Slater

[2017] NSWSC 1574

Supreme Court

New South Wales

• Amendment notes

Medium Neutral Citation:	State of NSW v Slater [2017] NSWSC 1574
Hearing dates:	10 November 2017
Date of orders:	10 November 2017
Decision date:	17 November 2017
Jurisdiction:	Common Law
Before:	WILSON J
Decision:	1. Pursuant to section 7(4)(a) of the Crimes (High Risk Offenders) Act 2006 (NSW) (“the Act”), the Court appoints Drs Richard Furst and Jonathon Adams, two qualified psychiatrists, to conduct separate psychiatric or psychological examinations. 2. The reports in Order 1 to be furnished to the Supreme Court by 15.2.18. 3. Pursuant to section 7(4)(b) of the Act, the defendant is directed to attend the examinations referred to in Order 1. 4. Pursuant to sections 10A and 10C(1) of the Act, the defendant is subject to an interim supervision order (“ISO”) commencing on 13 December 2017 for a period of 28 days. 5. Pursuant to section 11 of the Act, the defendant is to comply with the conditions set out in the Schedule of the Amended Summons filed on 10 November 2017 for the duration of the ISO, noting the amendment to condition 29 to add the word “knowingly” after the word “defendant”. 6. The matter is listed for further hearing on 8 January 2018 to determine the Plaintiff’s application to renew the interim supervision order. 7. The matter is listed for final hearing on a date to be fixed, with an estimate of 1 day. 8. The parties have liberty to apply to relist the matter on one working days’ notice. 9. Access to the Court's file by a non-party in respect of any document shall not be granted without the prior notification to the parties of the non-party's application for access and without leave of a Justice of the Court.
Catchwords:	CIVIL LAW – high risk sex offender – preliminary hearing
Legislation Cited:	Crimes (High Risk Offenders) Act 2006 (NSW) Crimes Act 1900 (NSW)
Cases Cited:	Lynn v State of New South Wales [2016] NSWCA 57
Category:	Procedural and other rulings
Parties:	State of NSW – Plaintiff Luke Daniel Slater – Defendant
Representation:	Counsel: Mr P. Coady – Plaintiff Mr D. O’Neil and Mr E. O’Neill – Defendant   Solicitors: Crown Solicitor’s Office (NSW) – Plaintiff Legal Aid Commission (NSW) – Defendant
File Number(s):	2017/272595
Publication restriction:	None

Judgment

1. HER HONOUR: Luke Slater is a convicted sex offender whom the State of New South Wales contends presents an unacceptable risk to the community such that he should be made the subject of an extended supervision order pursuant to the Crimes (High Risk Offenders) Act2006 (NSW) (“the Act”).

2. The matter came before me on 10 November 2017 at a preliminary stage of the proceedings for the determination of prayers 1, 3, and 4 of the Amended Summons filed by the State with leave on the date of hearing. The orders sought are:

1. An order pursuant to section 7(4) of the Crimes (High Risk Offenders) Act:

1. Appointing two qualified psychiatrists to conduct separate psychiatric examinations of the defendant and to furnish reports to the Supreme Court on the results of those examinations by a date to be fixed by the Court; and

2. Directing the defendant to attend those examination. 

(3) An order pursuant to sections 10A and 10C(1) of the Act that the defendant be subject to an interim supervision order from 13 December 2017 for a period of 28 days and, pursuant to s 11 of the Act, an order directing the defendant to comply with the conditions set out in the Schedule attached to this Amended Summons for the duration of the order.

(4)   An order permitting any reports prepared for the purposes of Order 1 to be provided to Corrective Services NSW, any agency involved in the defendant’s supervision, and the defendant’s treating clinician(s) or health care practitioner.

3. For the purposes of the preliminary proceedings, the defendant did not seek to dispute the fact that the threshold requirements relevant to orders under s 5C(1) and s 9(1)(a) of the Act can be established by the State. That is, there is no issue that the defendant is a “sex offender” within the meaning of s 5B(1) of the Act, being a person over the age of 18 years who has been convicted of a “serious sex offence” with respect to which he was sentenced to a term of imprisonment, a sentence which remains current.

4. Although the defendant made no concessions as to the ultimate disposition of the State’s application, the only issue argued before me was the nature of the conditions to which the defendant should be subject in the interim period.

5. At this preliminary stage an order can only be made if the Court is satisfied to a high degree of probability that the defendant poses an unacceptable risk of committing a serious sex offence if he is not kept under supervision.

6. What is meant by an “unacceptable risk” is dependent to a degree on the context in which the risk is to be measured, as was pointed out in Lynn v State of New South Wales [2016] NSWCA 57 at [50] (per Beazley P). The determination of whether a risk is unacceptable involves an evaluation, as Beazley P said at [55] of Lynn:

“This Act provides, as stated in its Long Title, for the extended supervision or continued detention of high risk offenders. The purpose of the legislation, as the primary object of the legislation states, is to ‘ensure the safety and protection of the community”. The evaluation of whether an offender is a “high risk violent offender’ has to be undertaken in that context. The further context in which that evaluation is undertaken is provided by s 5E(2) itself, namely, whether the offender poses an ‘unacceptable risk’ of committing a serious violence offence, when regard is had to the safety and protection of the community, unless the person is kept under supervision, either by way of making an extended supervision order or an extended detention order. As this Court pointed out in State of New South Wales v Donovan [2015] NSWCA 280 at [24], a finding that a person poses an “unacceptable risk” within the meaning of s 5E(2): ‘… is the gateway to the power to make an order under s 5F or s 5G … and applies to an assessment of likelihood (‘unacceptable risk’) in the absence of any supervision.’ (original emphasis)”

7. Having heard evidence, and submissions from the parties, I was satisfied to a high degree of probability that, if proved, the matters alleged in the documentation tendered by the State establish that the defendant poses an unacceptable risk of committing a serious sex offence if he is not kept under supervision. I therefore made the preliminary orders sought by the State, with some minor amendment to the conditions to attach to the interim supervision order (“ISO”). These are my reasons for making those orders.

The Defendant’s Criminal History

8. Other than the index offences the defendant has only one entry recorded against him, being for indecent assault, dealt with without conviction in the South Australian Children’s Court in April 1998. An 8 month good behaviour bond was imposed. The factual information is such that the single count may have been representative.

9. Although there is some material suggesting that criminal charges were brought against the defendant in April 2012, there is nothing to suggest convictions were recorded, and I have not considered that information further.

The Index Offence and Related Offences

10. The “serious sex offence” of which the defendant was convicted is an offence of aggravated sexual intercourse contrary to s 61J of the Crimes Act 1900 (NSW).

11. The defendant was convicted of that and a number of other serious sex and violence offences on 1 July 2004, by his Honour Judge Sides QC in the District Court at Campbelltown. The defendant had previously, on 26 September 2003, entered pleas of guilty to the following offences, including the index offence:

Count 1: Attempt to choke with intent to commit an indictable offence, namely, sexual intercourse without consent, contrary to s 37(2) of the Crimes Act;

Counts 2 and 3: Sexual intercourse without consent, contrary to s 61I of the Crimes Act;

Count 4: Aggravated sexual intercourse without consent, contrary to s 61J of the Crimes Act;

Count 5: Attempt to choke with intent to commit an indictable offence, namely, sexual intercourse without consent, contrary to s 37(2) of the Crimes Act; and

Count 6: Aggravated sexual intercourse without consent, contrary to s 61J of the Crimes Act. This last count is the index offence.

12. His Honour sentenced the defendant to an overall term of imprisonment of 15 years and 6 months with an effective non-parole period (“NPP”) of 11 years, which expired on 30 June 2013. The individual sentences were as follows:

Count 1, and taking into account two offences of indecent assault contrary to s 61L of the Crimes Act: imprisonment for 8 years and 6 months, with a NPP of 6 years;

Counts 2 and 3: concurrent terms of imprisonment for 8 years and 6 months, with a NPP of 3 years;

Count 4: imprisonment for 7 years and 6 months, with a NPP of 4 years and 6 months;

Count 5: imprisonment for 7 years, with a NPP of 3 years;

Count 6: imprisonment for 8 years, with a NPP of 5 years and 6 months.

13. The sentence for count 6 commenced on 14 December 2009 and expires on 13 December 2017. The NPP expired on 13 June 2013, but the defendant was not granted parole. He continues to serve this sentence.

14. As the sentences imposed upon the defendant suggest, these were very serious offences.

15. Counts 1 to 4 all relate to offences committed against a 24 year old woman in April 2001. After a night out with friends in Sydney, the victim boarded a train at Central Station to travel to Ingleburn. The defendant approached her during the journey, and spoke to her for a time. She then fell asleep.

16. Shortly after the train left Macquarie Fields, the defendant woke the victim. They both got off the train when it drew into the platform at Ingleburn Station. Telling the victim he had to go back, the defendant stopped on the platform. The victim thanked him and continued walking. Closed circuit television footage recorded at the station showed that, after a short pause, the defendant followed the victim as she left the station and walked along Oxford Street.

17. The victim detoured briefly into a park, and then returned to the roadway. As she did the defendant took hold of her with an arm around her neck and dragged her back, away from the road. She was dragged into a public toilet block, where the defendant pushed her against a wall, holding her tightly by the throat. The victim tried to pull the defendant’s arm away but was unable to do so. When he asked her if she was going to fight, she was unable to answer due to the pressure on her throat.

18. Taking the victim by the hair, the defendant forced her down to her knees and then, exposing his penis, told her “Put it in your mouth”. This offence was the first of the two counts of indecent assault taken into account against count 1.

19. Instead of complying the victim punched the defendant in the groin. He then let go of her hair and again grabbed her by the throat, lifting her to her feet and holding her against the wall. He told her not to bother screaming as no-one would hear, and threatened her “I could snap your fucking neck”. The defendant again asked the victim if she was going to fight, but his hold on her throat was such that she could neither speak nor breathe. This act was charged as count 1.

20. The victim was faint and, when the defendant released his hold on her throat, she collapsed to her hands and knees on the ground. The defendant, who was masturbating, demanded that the victim “suck it”, and put his penis into her mouth. This act was reflected by count 2.

21. The defendant next pushed the victim over and removed her jeans and underpants. Directing her to get on her knees he had penile-vaginal intercourse with her from behind. This was count 3.

22. Removing his penis from the victim’s vagina the defendant pushed it against her anus (this being the second incident of indecent assault taken into account on sentence against count 1). The victim immediately rolled away from the defendant, telling him no. He pushed her down and again inserted his penis into her vagina (count 4). He held the victim by the throat during this assault, although not as tightly as previously.

23. The defendant withdrew his penis and dressed. The victim begged for her life, and the defendant left the toilet block. When he had gone the victim ran to a nearby Fire Station and sought help from firefighters stationed there. She was sobbing and distressed.

24. Having just returned from attending a fire incident, the firemen recalled having seen a man sprinting towards Ingleburn Railway Station. They went to the Station to look for the man but, being unable to see him, made inquiries of taxi drivers at a rank near the Station. A taxi driver was located who had taken a man, whom the driver had seen running from Oxford Street, in the direction of the Holsworthy Army Barracks. The man had asked to be dropped off near Holsworthy Railway Station.

25. The victim was taken to hospital where a doctor examined her. She was found to have several areas of bruising to her neck, with an area of broken skin and petechial bruising to the right side of her throat. There was bruising, swelling, and reddening all around the right side of the throat and thorax. Further areas of reddening were observed on the victim’s buttocks. The lower left side of her hymen had been transected. Forensic swabs were taken on which semen was later detected. DNA was extracted from the semen, but no DNA match was found at that time.

26. Counts 5 and 6 relate to the defendant’s assault upon another young woman on 17 November 2001. The victim, who was 18 years old, went out with friends on the evening of 16 November 2001, arriving at a nightclub in Sutherland in the early hours of the following morning. The defendant was also at the nightclub.

27. He struck up a conversation with the young woman, telling her that he was a soldier stationed at Holsworthy, and that he had served in East Timor. They shared drinks and the victim introduced the defendant to some of the friends she had attended the club with. The defendant and victim kissed a number of times. The defendant pushed his hand under the victim’s skirt and inserted his fingers into her vagina, but she pushed his hand away. He asked her to come back to Holsworthy with him, but she refused.

28. When the club closed at 5am the victim and defendant left together. They went into the grounds of a nearby public building where they had consensual oral and vaginal sexual intercourse. When the defendant tried to push his fingers into the victim’s anus, she pushed his hand away and told him “No, don’t do this”. When he next tried to push his penis into her anus the victim pushed his penis away and said “no”. The defendant then took hold of the victim by the throat with both his hands and began to choke her, telling her “I want you to die slowly”. He continued to squeeze her throat for more than a minute. She could not breathe. This act is reflected by count 5.

29. The defendant released his hold on the victim’s throat, leaving her gasping for air and crying. He forced her onto her hands and knees and pushed his penis into her anus (count 6). When she said “it hurts”, the defendant responded “No it doesn’t, you like it”. He then grasped her again by her throat and began to choke her, telling her “I just want you to pass out, just for a little bit”.

30. With his penis still in the victim’s anus, the defendant released his hold on her throat and took hold of her hair, pushing her head into a wall. He told her she was a “dirty little slut” and, when she did not agree with that, became even more aggressive. He then pushed her head repeatedly into the ground.

31. When the defendant finally withdrew his penis from her anus the victim asked him why he “was doing this”. The defendant answered, “You don’t know me, you don’t know who I am”. He told her she “like[d] being strangled” and, taking her clothing, walked away.

32. The victim rang her brother and told him she had been raped; she asked him to come and get her. She was crying. Police were contacted.

33. The victim was found crouched in a corner of a verandah dressed only in underwear. She was distressed and crying. She was able to tell the police that the defendant was to board a plane for Victoria that morning.

34. The victim was taken to hospital. On examination she was found to have bruising to her head, neck, an arm and knee. Both sides of her vulva were swollen and she had a “v” shaped fissure to the bottom of the anal margin, and deep purple bruising to the whole area. Forensic swabs were taken, and semen was recovered from a vaginal swab.

35. The defendant was arrested for the November 2001 offences in January 2002. He denied the crimes, claiming to have no memory of the nightclub or the victim. A buccal swab was obtained from him, and DNA extracted. That DNA was consistent with that recovered from the semen samples obtained from both the April 2001 offences, and the November 2001 offences.

36. The victim identified the defendant from a photographic lineup later in January 2002, and he was arrested on 8 February 2002.

37. On 14 June 2002 the defendant was arrested in relation to the offences of April 2001. When interviewed by police, the defendant denied having been responsible for the crimes, stating that he had been on overseas military service between April and November 2001. He could not explain the presence of DNA in semen recovered from the victim. The victim later identified the defendant from a photographic lineup.

38. In sentencing the defendant, Sides QC DCJ observed that each of the offences was serious.

39. In relation to the April 2001 crimes there was a degree of premeditation involved, as the defendant had followed the victim from Ingleburn Railway Station. In that the defendant should have alighted from the train three stops before Ingleburn to get home, his Honour considered that the defendant may have contemplated the offences when still on the train, although he could not be satisfied of that beyond reasonable doubt.

40. Of the first of the choking offences, the sentencing judge concluded that it was near the top of the range of seriousness for offences of that nature, and was done deliberately to maximise the victim’s suffering and to exercise “maximum power over her”. His Honour was satisfied that this act was intended to overcome the victim’s resistance to sexual assault, and it left her believing that she would not leave the toilet block alive.

41. The facts were such that his Honour also concluded that the sexual offences were towards the top of the range of seriousness for offences of that nature.

42. Similar assessments were made of the seriousness of the November 2001 offences. Although these offences were regarded by the sentencing judge as spontaneous, his Honour concluded that they originated in the defendant’s desire to exercise power over his victim and to humiliate her. The index offence was referred to as being “very close” to the worst category of such offences, with the sentencing judge recording the fear of the victim that she would be killed during her ordeal. As with the earlier crimes, his Honour found that the defendant choked and hit the victim into the floor and wall to maximise her pain and suffering, and his own pleasure. He observed that count 6 “was a sadistic crime”.

43. Even without victim impact statements in evidence, it was clear to the sentencing judge that the two victims had been terrified during the respective attacks, and that each would suffer long term emotional and psychological damage.

44. The defendant entered pleas of guilty to the offences after he had been committed to stand his trial. The sentences that were imposed were reduced by 20% to recognise the pleas. He did not give evidence to the sentencing judge but relied upon reports from two psychiatrists.

45. The defendant was 19 years old when he committed the first set of offences, and 20 by the time he committed the second. To the psychiatrists he saw prior to sentence (Dr Olav Nielssen and Dr Jennifer Thompson) he claimed to have been so intoxicated as to have no recollection of his crimes. The sentencing judge rejected that claim as inconsistent with the facts of the offences.

13. The sentencing judge had regard to the defendant’s pleas of guilty, his relative youth, his former good character, and his military service and its consequences. The defendant’s history as set out by the sentencing judge was largely dependent upon self-report to the two psychiatrists consulted before sentence.

14. The defendant grew up in Victoria. His parents separated when he was aged 4 or 5 years and his mother subsequently remarried. He is one of seven children, although some of his siblings are half-siblings. The defendant told Dr Nielssen that he had been physically abused by his step-father, and raped by an unidentified male at an early age. He did not mention the allegation of sexual assault to Dr Thompson.

15. The defendant had difficulties at school, receiving counselling due to his frequent conflicts with other children. He was expelled in Year 11 for fighting.

16. The defendant reported limited family involvement. Although he tried to maintain contact with his mother, he had no contact with his father or step-father, and dismissed his sisters as “little sluts”.

17. The defendant joined the Army in January 2000 when he was 18 years old. After the April 2001 offences and prior to the November 2001 offences, he spent about 6 months on active service in East Timor as part of the United Nations forces. He was discharged from the Army in November 2003.

18. A partial pension was subsequently awarded to him as a consequence of hearing loss, an allergy, and illicit drug abuse, all conditions attributed to or exacerbated by his foreign service.

19. The psychiatrists who examined the defendant were both of the view that he suffered from Post Traumatic Stress Disorder (“PTSD”) arising from his experiences in East Timor (that is, after the commission of counts 1 to 4). The sentencing judge was not persuaded that this condition had any causal link to his crimes.

20. His Honour referred to the defendant’s asserted willingness to engage in treatment programmes in custody, noting that he would benefit from anger management, violence prevention, and sex offender treatment programmes, as well as treatment for drug and alcohol abuse. He thought that, if the defendant undertook such treatment, his prospects of rehabilitation were “reasonable to perhaps good”.

Consideration for Release to Parole

54. Although eligible for parole in June 2013 the defendant has been consistently refused parole by the Parole Board. Parole and pre-release reports in evidence indicate that the defendant had no support in the community and was unable to identify accommodation at which he could reside. He was consistently assessed as posing some level of risk of reoffending. Of most concern was his refusal to accept a placement on the Custody Based Intensive Therapy Moderate – High Sex Offender Programme (“CUBIT”); this was identified as problematic, as was his failure to undertake appropriate anger management intervention.

55. An early report, of 27 March 2013, noted that,

“[…] the inmate has not developed any formal strategies to identify and successfully manage any potential risk situations prior to release. It would appear that the inmate’s response in the past has led to alcohol misuse and whilst there have not been any recent issues with substance use in custody, his resolve would be un-tested until his release to the community.”

56. A further such report of April 2014 again referred to the defendant’s refusal to undertake CUBIT, and the moderate - high risk he posed of the commission of further offences.

57. The 31 March 2015 parole report referred similarly to the defendant’s lack of community support, noting that his last visit had been from family members in 2007. The defendant’s continuing refusal to participate in CUBIT was still regarded as an obstacle to parole; as at the date of the report the defendant had been offered a place on the programme on seven occasions, declining each time. He continued to be assessed as a moderate - high risk of reoffending. More positively, the defendant was noted to be a good worker in a print shop and to pose no management problems. His completion of a Traineeship in Printing and Graphic Arts was noted.

58. The defendant maintained his refusal to undertake CUBIT as at the date of his 2016 parole assessment. It was observed,

“Mr Slater’s continued resistance to addressing his offending behaviour is well documented and ongoing”.

59. The most recent consideration of release to parole, in April 2017, referred to the same concerns: that the defendant had consistently failed to address his sexual offending; and that he lacked any community support. However, he had at that time commenced the CUBIT programme, in March 2017, and it was anticipated that the defendant would complete it in November 2017. His risk of reoffending was unchanged. Parole was again refused.

Psychiatric, Psychological and Risk Assessment Evidence

60. Reference has already been made to the psychiatric reports of Drs Nielssen and Thompson that were before Sides QC DCJ in 2004, and which form part of the material tendered by the State. Each of those doctors diagnosed the defendant with PTSD.

61. Dr Scott Clark saw the defendant in August 2015 to conduct a psychiatric assessment for the information of the Parole Board. At that time the defendant was aged 34; he had been in custody since 2002. The defendant complained to Dr Clark that he had not received treatment for PTSD whilst in custody, as neither Corrective Services nor the Veterans Department were willing to provide it. He had been offered a place on CUBIT, but was reluctant to accept it as he feared both being “degraded” by the programme, and being unable to manage his anger when closely confronted by other inmates on the programme.

62. The defendant reported problems with angry feelings, and poor sleep disturbed by nightmares prompted by his military service and an experience of sexual assault by a neighbour as a child. He spoke of flashbacks and being unable to cope with loud noises. He said he had seen a psychiatrist with some regularity when housed at Goulburn Correctional Centre, and had found that helpful. He had been prescribed an anti-depressant, which he had taken for about 8 years, ceasing to take it in 2010.

63. Since entering custody the defendant said that he had completed a number of courses including Get Smart for drug and alcohol addiction, an anger management course known as CALM, and courses preparatory to undertaking CUBIT. He complained that the CALM course did not cater for anger that arose as a consequence of PTSD and was of no use to him.

64. The defendant gave Dr Clark an account of his personal and family background, an account which differed in some regards to the history given to Dr Nielssen.

65. Dr Clark set out the defendant’s treatment history in custody, derived from medical notes, which included treatment with an anti-depressant from time to time, and occasional access to psychological services. Symptoms consistent with both PTSD and Cluster B personality disorder were noted.

66. In March 2015 the defendant was seen by Dr Richard Furst who noted complaints of mood swings, anger and aggression. Dr Furst’s “diagnostic impression” was PTSD; he prescribed an anti-depressant. By July 2015 the defendant’s mental state was said to be stable.

67. In his examination Dr Clark saw no evidence of depression or psychosis. He diagnosed PTSD, polysubstance dependence in remission, and Cluster B personality traits. He did not consider him to be experiencing a depressive episode.

Risk Assessment

68. Preparatory to these proceedings Samuel Ardasinski, Senior Psychologist with the Serious Offenders Assessment Unit, saw the defendant and subsequently prepared a risk assessment report on 5 April 2017.

69. Mr Ardasinski interviewed the defendant on 29 March 2017. He had access to the voluminous Corrections and Parole documentary record (including the material before this Court that was extant at that date). Mr Ardasinski gave an initial caveat to his opinions, noting that nothing of the defendant’s personal or military history prior to entering custody was corroborated. (Noting the variations in the history given by the defendant over time of his history, the qualification is well made).

70. In discussion with Mr Ardasinski the defendant described himself as “a little depressed”. His presentation was, however, appropriate to the circumstances of the meeting, and Mr Ardasinski thought the defendant’s responses to questions were measured, serious, and polite. He thought the defendant may have been a little anxious. He did not exhibit any signs of a major mental illness or disorder of perception or thought.

71. The defendant continued to assert that he had no memory of the 2001 offences, and he has never engaged in discussing his offences or what prompted them, something which Mr Ardasinski considers could be a barrier to effective treatment. He raised the prospect, not considered on the defendant’s self-report by Drs Nielssen or Thompson at the time of sentence, that the defendant’s crimes were crimes of sexual sadism.

72. Mr Ardasinski noted that the earlier diagnoses of PTSD were all based upon the defendant’s self-report of his symptoms and his “183 days” of combat experience in Timor. A condition of that nature could also operate as a barrier to treatment of the defendant’s offending behaviour, limiting its effectiveness to the point where risk could not be adequately moderated.

73. The diagnosis referred to by Dr Clark of Cluster B personality symptoms were also noted as a potential obstacle to treatment. Mr Ardasinski said this

“would be a key issue for Mr Slater in moderating his risk and reintegrating into lawful society, especially if there is an underlying deviant sexual interest” (at p. 9).

74. He thought the defendant would need a lengthy period of intensive supervision in the community upon release.

75. Whilst Mr Ardasinski noted that the defendant commenced the CUBIT programme on 6 March 2017, at the time of writing his report only a few treatment tasks had been completed, and Mr Ardasinski was not able to say what progress the defendant may have made. He set out the history of the defendant’s refusal to enter CUBIT, and observed that his consent was only obtained after the prospect of a continuing detention order being made was raised with him.

76. Mr Ardasinski did not regard those programmes which the defendant had completed, such as CALM and Get Smart, as adequate to address the defendant’s long term substance abuse and anger issues.

77. The defendant has remained in protection (at his own request) throughout his imprisonment, and has incurred only 6 institutional conduct breaches, for drug use or possession of prohibited items.

78. Since 2010 he has been employed in a print shop, and is well regarded for his work ethic and good performance.

79. Various actuarial tools have been utilised in an attempt to assess the risk posed by the defendant of re-offending. His risk of sexual re-offending has been assessed by Mr Ardasinski as moderate to high on the STATIC-99R tool (with a scoring error corrected by a supplementary report of 19 July 2017).

80. The defendant was assessed (again, with a scoring error corrected) as at an above average level of overall risk after assessments based upon combining the results of both the STATIC-99R tool and a second actuarial measure, the STABLE-2007. Specific risk factors include:

1. The after-effects of trauma which can have an impact on the defendant’s coping ability;

2. Maladaptive coping mechanisms such as alcohol and drug use and avoidance, and an inability to cope with stress;

3. The disinhibiting effects of alcohol and illicit drugs;

4. Difficulties in engaging in stable intimate relationships;

5. Resentful and hostile attitudes towards women;

6. The defendant’s continuing refusal to acknowledge recall of his offences, which moderates the benefit of therapeutic intervention.

81. Other features, such as social disconnectedness, impulsivity, lack of empathy with others, and psychopathic personality features, were also noted as potential risk factors. Mr Ardasinski also referred to the possibility that the defendant is a sexual sadist as another feature that could be relevant to risk.

82. Protective factors were assessed to be limited, since the defendant has no family support and no friends in the community. One such feature, however, was observed to be the defendant’s diligence in undertaking vocational courses in custody, and his interest in pursuing future employment in the printing industry.

83. Overall, Mr Ardasinski concluded that the defendant falls within the high risk category for sexual violence. In the community, Mr Ardasinski thought intensive supervision would be of benefit. Without supervision, the defendant has said to Mr Ardasinski that he may return to Victoria to live, or perhaps join the French Foreign Legion. Mr Ardasinski opines that, absent supervision, the defendant could commit further serious sexual offences.

Risk Management

84. Ilona Koro, the Unit Leader of the Extended Supervision Team, considered the available means of managing the risk posed by the defendant and prepared a risk management report dated 17 April 2017. Ms Koro interviewed the defendant, and had access to relevant documentary material (including Mr Ardasinski’s first report, without the second supplementary report in which a scoring error in the first was corrected).

85. The report notes that the defendant, without any community support available to him, has applied for and been accepted to the Nunyara Community Offender Support Programme (“COSP”) for post release accommodation. It is anticipated that he will reside at the COSP in Campbelltown, with support from the Integrated Support Centre there.

86. Noting the risk factors raised by Mr Ardasinski, a risk management plan has been formulated. That plan includes a proposal for:

1. weekly supervisory interviews, both scheduled and unannounced, at the COSP or elsewhere;

2. monitoring the defendant in terms of his adaptation to the community, including any relationships he forms;

3. random and regular drug and alcohol testing;

4. monitoring of attendance upon counselling and other therapeutic services;

5. field visits to the defendant at his place of residence, employment, or other place he attends on a regular basis, monthly (at a minimum);

6. searches of any telephone or other devices if necessary;

7. third party interviews (such as with an employer or counsellor);

8. electronic monitoring;

9. weekly movement schedules including a curfew and non-association and place restrictions; and

10. referring the defendant to appropriate psychiatric and other therapeutic services including drug and alcohol treatment courses.

87. All of these strategies have limitations but, in the opinion of Ms Koro, provide a reasonable means of managing the risk posed by the defendant to the community.

88. As part of the defendant’s management, conditions could be imposed upon him as to conduct and movement. The conditions proposed by the State are annexed to the Amended Summons, and it was some of those conditions that were in contest at the hearing before me.

89. Oral evidence was called from Janelle Farraway, who has been employed by the Department of Corrective Services since 2003 and presently deals with the management and governance of high risk offenders.

90. Ms Farraway was specifically asked about conditions 7, 18, 20, 30, 40, 41, and 43 of the Schedule to the Amended Summons.

91. Condition 7 would require the defendant to advise his departmental supervising officer (“DSO”) of any change to his scheduled movements 24 hours in advance, unless a shorter period were to be approved. Ms Farraway deposed that the condition would not require the defendant to notify his DSO of travel to a pre-approved location, such as a place of employment.

92. Condition 20 would require the defendant to obtain the DSO’s approval before commencing employment, volunteer work, or any educational course. Ms Farraway explained that the condition was not designed to restrict access to appropriate work or training, but was directed to work or training in areas associated with specific risk factors. A course the defendant has expressed interest in undertaking in counter-terrorism training is one that would be most unlikely to be prohibited.

93. Conditions 24, 28 and 29 all relate to exposure to alcohol or drugs. Ms Farraway said that, whilst she understood that the defendant would not be permitted to use alcohol himself if made subject to an ISO, his DSO may approve him entering licensed premises, for example, to accompany a family member to licensed premises for a meal. Conditions 28 and 29 were intended to prevent him from knowingly associating with persons intoxicated by alcohol or drugs.

94. Conditions 18, 30, and 43 are all directed to managing risky sexual activity. Ms Farraway confirmed that the things regulated by these proposed conditions will not necessarily be prohibited; the conditions are designed to encourage discussion between the defendant and the DSO, after which appropriate activity would be approved. Access to restricted sexual material would be managed in liaison with police officers who work with the Extended Supervision Team.

95. Conditions 40 and 41 relate to search and seizure and, where necessary, would permit the seizure of the defendant’s computer or mobile telephone. Ms Farraway deposed that seizure of computer equipment was very rare in practice, and would only occur where there was a clear basis to believe that illicit material was on the device.

The Defence Case

96. The defendant read an affidavit of his instructing solicitor, Tracy Reynolds, of 7 November 2017. Ms Reynolds discussed with the defendant his intentions for himself upon release from custody. He told her he hoped to enrol in a Bachelor of Arts degree course at Murdoch University, studying Security, Terrorism and Counter-terrorism. The course is over three years full-time, or the part-time equivalent. Further, and having regard to his studies and employment experience in custody, the defendant hopped to secure work in the printing industry, an industry in which early morning hours were common.

Consideration

97. As earlier noted, there is no real dispute that, for the purposes of these preliminary proceedings, the Court would be satisfied to a high degree of probability that the defendant poses an unacceptable risk of committing a serious sex offence if not kept under supervision: s 5B of the Act.

98. Having reviewed the evidence tendered by the State, I am satisfied to that high degree of probability that the defendant poses a risk of the nature contemplated by s 5B. His history of very serious violent sexual offending in 2001, his consistent claim to have no memory of the offences, and his refusal until this year to undertake the CUBIT programme, is such that the test is readily met.

99. In my conclusion, supervision pursuant to an interim supervision order is essential to best ensure the protection of the community, until such time as the State’s application is determined. The conditions proposed by the State are necessary. As was clear from the evidence of Ms Farraway, the conditions operate with a degree of flexibility in that many activities can be readily undertaken, with the approval of the DSO. I was satisfied that none of the conditions would infringe upon the defendant’s hopes with respect to study and work, or other lawful and legitimate activities.

100. To determine the application for an extended supervision order it is necessary that the defendant be assessed by appropriately qualified psychiatrists, particularly having regard to the lapse of time since the last assessment was conducted by Dr Clark in 2015.

101. For all of those reasons, I was satisfied that the State’s application should be granted.

Schedule of Conditions 

Slater - Schedule of conditions (amended as per orders of 10 November 2017) (304 KB, pdf)

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Amendments

17 November 2017 - deletion 1 x schedule

17 November 2017 - cover sheet layout minor corrections (catchwords and reps)

17 November 2017 - Attached Schedule of Conditions

Decision last updated: 17 November 2017