The State of Western Australia v Slater - [2021] WASC 298

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL

CITATION:   THE STATE OF WESTERN AUSTRALIA -v- SLATER [2021] WASC 298
CORAM:   QUINLAN CJ
HEARD:   27 AUGUST 2021
DELIVERED          :   27 AUGUST 2021
PUBLISHED           :   30 AUGUST 2021
FILE NO/S:   SO 7 of 2021
BETWEEN:   THE STATE OF WESTERN AUSTRALIA
Applicant

AND

KEITH RONALD SLATER
Respondent

Catchwords:

Criminal law – High Risk Serious Offenders Act 2020 (WA) – Preliminary hearing – Whether reasonable grounds for belief that restriction order might be made – Whether interim detention order is desirable – Turns on own facts

Legislation:

High Risk Serious Offenders Act 2020 (WA)

Result:

Orders pursuant to s 46(2) made
Interim supervision order granted

Category: B

Representation:

Counsel:

Applicant	:	Mr B D Meertens
Respondent	:	Ms A Fedele

Solicitors:

Applicant	:	State Solicitor's Office
Respondent	:	Legal Aid WA

Cases referred to in decision:

The State of Western Australia v PAS [2020] WASC 405
The State of Western Australia v Winder [2021] WASC 65

QUINLAN CJ:

(This judgment was delivered extemporaneously on 27 August 2021 and has been edited from the transcript.)

Introduction

On 29 July 2021, the State of Western Australia applied for a restriction order in respect of Keith Ronald Slater under the High Risk Serious Offenders Act 2020 (WA) (the Act).
The preliminary hearing of the application came before me today.
The main purpose of the preliminary hearing is for me to decide whether there are reasonable grounds for believing that the Court might find that Mr Slater is a high risk serious offender within the meaning of that Act.[1]
[1] See s 46(1) of the Act.
If I am so satisfied the State seeks interim orders pursuant to s 46(2) of the Act, including orders that:
(a)Mr Slater undergo examination by a psychiatrist and a qualified psychologist for the purpose of preparing reports to be used in the hearing of the restriction order application; and
(b)Mr Slater be detained in custody, or alternatively the subject of an interim supervision order, until the final determination of the application.
Mr Slater's counsel conceded that the requirements of s 46 are met, and for the reasons that I will give, I accept that concession.
Mr Slater submitted that he should not be subject of an interim detention order or an interim supervision order as it is likely that, upon his release, he will be subject to a Post Sentence Supervision Order imposed by the Prisoners Review Board imposed under the Sentence Administration Act 2003 (WA).
In summary, for the reasons that I now give, I am satisfied that it is necessary for Mr Slater to be the subject of significant restriction and supervision in the community, and for that reason, I am of the view that it is desirable to make an order under s 58 of the Act that he be subject to an interim supervision order pending the final determination of the application.
In the circumstances, I am satisfied that the imposition of an interim supervision order, having regard to the fact that Mr Slater has not yet been determined to be a person to whom the Act applies, will provide sufficient protection to the community such that it is not necessary at this time that there be an interim detention order. In the event that Mr Slater breaches the interim supervision order, the Act provides for a warrant to be issued and that he be returned to custody. In the circumstances, I am satisfied that the interim supervision order will provide adequate protection of the community.
My reasons for those conclusions are as follows.

The law

As noted above, pursuant to s 46(1) of the Act, the main purpose of the preliminary hearing is to decide whether the Court is satisfied that there are reasonable grounds for believing that the Court might find that Mr Slater is a high risk serious offender.
A 'high risk serious offender' is a person in relation to whom the Court is satisfied by acceptable and cogent evidence and to a high degree of probability, that it is necessary to make a restriction order in relation to the person to ensure adequate protection from the community against an unacceptable risk that the person will commit a serious offence.
A 'serious offence' within the meaning of the Act, relevantly, includes aggravated indecent assault and armed robbery.
While the definition of 'high risk serious offender' sets a relatively high bar for the imposition of a restriction order (in the sense of requiring proof to a high degree of probability), s 46(1) of the Act sets a low threshold for the purposes of a preliminary hearing. I do not have to be satisfied that a restriction order will be made. It is sufficient if there are reasonable grounds for believing that an order might be made. To say that something might occur, is to say that it is possible. Belief is an inclination of mind towards assenting to, rather than rejecting, a proposition. For there to be reasonable grounds for belief requires the existence of facts which are sufficient to induce that state of mind in a reasonable person.[2]
[2] The State of Western Australia v PAS [2020] WASC 405 [20] ‑ [21] (Allanson J); The State of Western Australia v Winder [2021] WASC 65 [16] (Quinlan CJ).

The evidence

In support of its application, the State relied upon the affidavit of James Francis Bennett sworn on 28 July 2021 which contains Mr Slater's criminal history and several previous reports in relation to him (including pre‑sentence, psychological and program completion reports). The State also relied upon the affidavit of Nadine Christina Minnock affirmed 25 August 2021 which annexes a Post Sentence Supervision Order Report dated 4 August 2021 and file notes from Community Corrections. The State also provided a Pathways Program Completion Report dated 23 February 2018, an Alcohol and Drug Awareness Program Report dated 30 April 2004 and a prosecution notice for charge BU 1504/2011.
The evidence reveals that Mr Slater has a long history of offending. That offending includes violent offending and offences of a sexual nature. His offending includes aggravated indecent assault, aggravated burglary, aggravated assault with intent to rob, assault of a public officer, stealing and various motor vehicle offences.
Relevantly, in 1985, Mr Slater was convicted of two counts of aggravated assault. This offending involved Mr Slater entering a bedroom and assaulting two females (age unknown) while they were in their beds.
In 1988, Mr Slater was convicted of one count of indecent assault. A psychological report from Ms Mary‑Anne Martin dated 26 February 2014 reported that this offending occurred when Mr Slater entered the room of a woman (age unknown) at a hostel at 1.00 am.
In 2005, Mr Slater was convicted of two counts of indecent assault. Again, Ms Martin reported that this offence occurred at around 5.00 am. Mr Slater approached a woman on the side of the road and asked her to give him a lift. She agreed to give him a lift and while in the car Mr Slater assaulted her.
In 2011, Mr Slater indecently assaulted a female prison officer while in custody at Bunbury Regional Prison. He was convicted of unlawful and indecent assault and sentenced to 6 months imprisonment.
Mr Slater's most recent offending was on 14 September 2013. At 2.30 am on that date, Mr Slater broke into a house in which a 29‑year‑old woman was sleeping. He demanded money from her while holding a knife to her throat and at the same time indecently assaulted her by kissing her and touching her breast. For this offending, Mr Slater was convicted of one count of aggravated burglary, one count of attempted aggravated robbery and one count of aggravated indecent assault.
Mr Slater was sentenced for those offences on 13 May 2014 to a total effective sentence of 8 years imprisonment. He is still serving that sentence, which ends on 9 October 2021.
There are a number of reports annexed to Mr Bennett's affidavit. The only psychological report available is Ms Martin's report dated 26 February 2014 which was prepared prior to Mr Slater's most recent sentence. The most recent report from that affidavit is a Parole Assessment Report dated 21 August 2019. Ms Minnock's affidavit contains a Post Sentence Supervision Order Report dated 4 August 2021. There are no psychiatric reports available.
The material reveals that Mr Slater is 55 years of age. He is one of nine siblings. The pre‑sentence report dated 2 December 2013 stated that he witnessed domestic violence and alcohol abuse within the family environment during his formative years, and that he reported being 'in and out of boys homes' due to 'mixing with the wrong crowd' and excessive alcohol consumption.
I note that in the course of the hearing today, Mr Slater's counsel advised that Mr Slater had recently reported to her that he had suffered sexual and other abuse during his youth at Longmore and Hillston. She indicated that that was the first disclosure that Mr Slater had ever made in relation to those matters.
Mr Slater has seven children, six of whom are from a relationship which lasted 12 years. The pre‑sentence report stated that Mr Slater acknowledged entrenched substance abuse and domestic violence during the term of that relationship and stated that his children were taken into care in around 1996 and 1997. At the time of the pre‑sentence report, Mr Slater reported that he had no contact with his former partner and had not seen his children years. This is borne out in the other reports that are before me.
At the time of the pre‑sentence report in 2013, Mr Slater disclosed that he often felt depressed and had previously engaged in self‑harming behaviours. In her psychological report, Ms Martin reported that Mr Slater described feeling severely depressed at the absence of his children in his life for 13 years. She applied the Millon Clinical Multiaxial Inventory ‑ III (MCMI‑III) to Mr Slater which revealed 'depressive and anxiety symptomology including chronic feelings of sadness, emptiness, pessimism, hopelessness, despair, loss of interest and pleasure, fatigue, sleep problems, worry and rumination, mood swings and dependence on others'. There does not appear to be anything in the materials to suggest that there has been treatment provided in relation to long term depression in the form of psychological or psychiatric counselling, although Ms Martin's report refers to Mr Slater being medicated with antidepressant medication.
Mr Slater does have a history of alcohol abuse and use of cannabis, amphetamines and heroin amongst other substances. At the time of the pre‑sentence report in 2013, Mr Slater reported he had continued using cannabis and Subutex whilst serving a term of imprisonment for his most recent prior offending at that time. When he was released from prison on 30 July 2013 he initially resided with his mother in a dry community for a short period where he did not use illicit substances. Regrettably, however, he relocated from his mother's residence shortly thereafter to live with a cousin and was supplied with amphetamines. It was soon after this that Mr Slater committed the offences for which he has, for the past eight years, been serving a sentence.
Ms Martin reported that 'Mr Slater has limited education or employment skills and his life in the community appears to revolve around substance use'. The Parole Assessment Report dated 21 August 2019 stated that Mr Slater had been urinalysis tested on five occasions between 25 November 2015 and 3 July 2017. Mr Slater returned a negative result on four of these tests but refused to provide a sample when he was last directed on 3 July 2017.
Prior to his most recent term of imprisonment, Mr Slater had completed the Controlling Anger and Learning to Manage Program in 2005, the Cognitive Brief Intervention Program in 2010 and the Think First Cognitive Skills Program in 2010. The pre‑sentence report prepared in 2013 assessed he was suitable for inclusion in the Intensive Violent Offender Treatment Program and the Sexual Offender Treatment Program, but he has not as yet completed any such programs.
In relation to programs, Ms Martin stated in her psychological report:
Mr Slater will be assessed for Department of Corrective Services programs on completion of sentencing but he has a number of treatment needs including a sex offender program, drug and alcohol treatment, and psychological counselling for his depression and grief.
Mr Slater had very negative views towards prison programs and said he had never learned anything of value from them. He is very unlikely to willingly complete the programs he needs.
During his current term of imprisonment, Mr Slater completed the Think First Cognitive Skills Program in 2015 and the Pathways Program in 2017. The Parole Assessment Report dated 21 August 2019 stated that Mr Slater was assessed as suitable for the Intensive Sex Offender Program and the Intensive Violent Offender Program, provided he only participate with two male facilitators. However, Mr Slater did not complete those programs because they were not available prior to his earliest eligibility date, and on 31 August 2020 he declined to participate in the Intensive Sex Offender Program. His reason for doing so was because he did not want to transfer to a prison out of the metropolitan area because his mother was ill.
Mr Slater seemed to have made some gains in his participation in rehabilitative programs since Ms Martin's report. The Think First Cognitive Skills Program Completion Report dated 11 December 2015, for example, stated:
Mr Slater attended each session with enthusiasm and was always keen to be involved with role plays and group discussions. Mr Slater appeared to have a reasonable understanding of the course content, and seemed to have made gains in most dimensions.
In addition, the Pathways Program Completion Report dated 23 February 2018 stated that Mr Slater presented with some treatment gains in that he voiced greater empathy and understanding towards the victims of his offending. However, the report also stated that Mr Slater displayed poorly developed plans for addressing his emotional management and, as such remains with treatment needs in this area.
Less encouragingly, most recently the Post Sentence Supervision Order Report dated 4 August 2021 stated:
Regarding the Pathways program, Mr Slater reported that he learnt that alcohol and drug use 'puts you back in prison'. He claimed he did not develop a relapse prevention plan during this program, although identified his triggers as boredom. He then stated that he is going to return to illicit substance use upon his release from prison, stating 'I don't care, I love drugs. I'll be using drugs until the day I die. I don't give a fuck if I come back to prison.'
The Post Sentence Supervision Order Report also stated that Mr Slater advised that he does not intend to engage with any transitional support agencies or treatment providers when released from prison.
In that same report, however, it is later stated that
when Mr Slater was contacted via telephone on 03/08/2021 by a Team Leader from the Adult Community Corrections, Community Offender Monitoring Unit, regarding the HRSO application, Mr Slater advised he had been upset at the time of the writer's interview as a result of being deemed liable for a PSSO and HRSO and claimed he had told some 'lies'.
The report added that he stated that he does wish to have the assistance of an order in the community to assist him to remain abstinent from drug use. In submissions before me today, Mr Slater's counsel made that position clear in emphatic terms, and submitted that assistance with his outstanding needs was something that Mr Slater wanted.
In relation to formal assessments of Mr Slater's risk of reoffending, there is very little in the way of formal assessments. The only psychological assessment in that respect comes from Ms Martin's report prior to the imposition of the most recent sentence, which said:
Traditional measures of risk of sexual offending are not suitable for use with Aboriginal offenders. It is my opinion that Mr Slater presents at a high risk of similar future offending based on his history of other similar offences, antisocial lifestyle, substance use, and psychological issues which leave him vulnerable to maladaptive coping through substance use and this particular type of offending, and the fact that he was not deterred from offending sexually even within a prison setting.
There is no expressly updated report identifying Mr Slater's risk of reoffending since then. Nevertheless, the factors identified by Ms Martin would appear to be factors which will continue unless until they have been properly addressed, including in particular the need to address psychological issues and substance use.
In light of that summary of the evidence, I turn to an assessment.

Assessment

I am satisfied that there are reasonable grounds to believe that a Court might find Mr Slater to be a high risk serious offender.
My reasons for that conclusion are as follows.
Mr Slater has a significant history of offending, including serious offences, and has most recently committed serious offences within the meaning of the Act in his 2013 offending.
While Mr Slater does occasionally express desire to remain abstinent from drug use and substance use, those indications have been, at best, inconsistent. I accept the submission put on his behalf that the most recent indication of unwillingness to engage in a substance‑free lifestyle was expressed in the context of frustration at being subject to the potential for further detention following the completion of his 8‑year‑sentence.
That is, I accept that the explanation he gave on 3 August 2021 for having said that, namely that he was upset at the time, was an explanation that was honestly given. The fact remains, however, that it will be necessary for him to maintain a positive attitude to treatment in the future if those treatment gains are to be realised.
In light of those matters, on the basis of Mr Slater's offending history and his unmet treatment needs, I am satisfied that there are reasonable grounds to believe that a Court might find that he is a high risk serious offender. I will therefore make orders for the hearing of the restriction order application and for Mr Slater to be examined by a psychiatrist and qualified psychologist for the purposes of preparing reports to be used at that hearing.

Interim detention order

In the meantime, as I have said, the State submits that I should make an interim detention order or an interim supervision order pending the determination of the restriction order application.
The State's primary position is that an interim detention order is necessary to adequately protect the community from Mr Slater's risk of offending. The State, of course, relies upon the entirety of the material going to his risk of offending, but refers particularly to the passage I have set out at [34] above.
I have earlier referred to that passage and the fact that it is demonstrative of Mr Slater's frustration at the time, but also his inconsistency in indication of his preparedness to engage with programs.
Nevertheless, as I have said, I accept that he has again showed a willingness to engage in programs. There are also a number of matters that provide some cause to conclude that Mr Slater has reached a point where he will engage meaningfully in those programs.
The first, as apparent from the reports and from the submissions made to me today, that Mr Slater has, in the person of his sister, a family support who is motivated to assist him in engaging in a prosocial lifestyle. The importance of a meaningful family support to engage now in those kinds of programs should not be understated.
The second matter is the acknowledgement of his need to be subject to supervision on his release.
The final matter is that the submissions made before me today support the conclusion that Mr Slater may be making some gains in identifying experiences in his youth that have contributed to his antisocial behaviour in the past.

Mr Slater has, of course, been in prison for a significant period of time. Ultimately the only way in which his capacity to live successfully in the community will be known is upon his release.
In the circumstances, given the risks that are apparent from the material, I am not satisfied that they could be sufficiently addressed by the imposition of a Post Sentence Supervision Order. For the reasons which follow, in my view, it is in Mr Slater's interests and in the interests of the protection of the community that upon his release, the supervision to which he is subject is as comprehensive as the State is able to provide.
In that respect, while the Post Sentence Supervision Order Report states that GPS monitoring is not considered necessary regarding risk management in relation to Mr Slater, in my view, it is appropriate that he be subject to the standard conditions of an interim supervision order which provide that he be subject to electronic monitoring under s 31 of the Act.
While it would remain a matter within the discretion of his Community Corrections Officer as to whether and the extent to which that electronic monitoring was provided, in my view, the pattern of Mr Slater's offending in the past is such that the protection of the community would be served by the imposition of a curfew that is monitored by electronic monitoring. It is important that any breach of either the curfew or the electronic monitoring could be swiftly and appropriately responded to.
Likewise, while they would be conditions that would apply in either a Post Sentence Supervision Order or an interim supervision order under the Act, it is important that Mr Slater is both the subject of substance abuse counselling and monitoring in relation to any future substance use.
The final matter which persuades me that an interim supervision order is desirable for the protection of the community is that the Act provides a statutory mechanism for ensuring that if there is a breach of the interim supervision order, that Mr Slater is able to be promptly brought before this Court to be dealt with and that any consequential orders can be made ensuring the protection of the community.
For these reasons, I order that Mr Slater be subject to an interim supervision order from 9 October 2021 until the completion of the proceedings.

I certify that the preceding paragraphs comprise the reasons for decision of the Supreme Court of Western Australia.
AK
Principal Associate to the Honourable Chief Justice Quinlan
30 AUGUST 2021