The State of Western Australia v Slater [No 2] - [2021] WASC 465

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL

CITATION:   THE STATE OF WESTERN AUSTRALIA -v- SLATER [No 2] [2021] WASC 465
CORAM:   QUINLAN CJ
HEARD:   16 DECEMBER 2021
DELIVERED          :   16 DECEMBER 2021
PUBLISHED           :   20 DECEMBER 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) – Contravention proceedings – Interim supervision order – Whether detention order should be made pending determination of contravention proceedings

Legislation:

High Risk Serious Offenders Act 2020 (WA), s 53, s 55, s 56

Result:

Contravention proceedings listed for hearing
Application for further order for detention under s 53 refused

Category: B

Representation:

Counsel:

Applicant	:	B D Meertens
Respondent	:	A Fedele

Solicitors:

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

Case referred to in decision:

The State of Western Australia v PAS [No 2] [2021] WASC 59

QUINLAN CJ:

(This judgment was delivered extemporaneously on 16 December 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).
On 27 August 2021, I concluded that there were reasonable grounds to believe that the Court might find Mr Slater to be a high risk serious offender within the meaning of the Act. I made orders that the restriction order application be listed for hearing on 3 March 2022 and that Mr Slater be examined by a psychiatrist and a psychologist for the purpose of preparing reports to be used at the hearing. The restriction order application is therefore yet to be determined and Mr Slater has not been found to be a high risk serious offender within the meaning of s 7 of the Act.
On 27 August 2021, I also concluded that it was desirable, in order to ensure adequate protection of the community, that Mr Slater be subject to an interim supervision order under the Act (the interim supervision order). Mr Slater has been subject to the interim supervision order since his release from prison.
On 8 December 2021, the State commenced proceedings under s 53 of the Act, seeking orders under s 55 in relation to a number of alleged contraventions of the interim supervision order (the contravention proceedings). While Mr Slater has already pleaded guilty in the Magistrates Court to a number of charges of contravening the interim supervision order (contrary to s 80 of the Act), some of the alleged contraventions remain in dispute. For that reason it was not open to finally determine the contravention proceedings today. Whether, and if so, what orders should be made under s 55 of the Act has therefore yet to be determined.
The State seeks an order that the contravention proceedings be heard on 3 March 2022, at the same time as the restriction order application. Mr Slater does not oppose such an order.
The State also seeks an order pursuant to s 53(2)(b) of the Act. Section 53(2) of the Act provides:
In relation to the offender, the State may apply for –
(a)an order under section 55; and
(b)an order for the offender to be detained in custody while proceedings on the application for an order under section 55 are pending.
The State seeks an order that Mr Slater be detained in custody while the contravention proceedings are pending. That is, it seeks an order that Mr Slater be detained until 3 March 2022.
On 9 December 2021, while the State's application for such an order was pending, McGrath J made an order that Mr Slater be detained under s 53(2)(b) until 17 December 2021 (i.e. tomorrow). The detention ordered by McGrath J will therefore end on 17 December 2021. In the absence of a further order under s 53(2)(b), Mr Slater will be entitled to be released tomorrow and will continue to be subject to the interim supervision order. As discussed below, no order of the Court is required in order for Mr Slater to be released tomorrow. That will happen automatically. On the contrary, it would be necessary for the Court to make a fresh order under s 53(2)(b) in order for Mr Slater to remain in detention after 17 December 2021.
Before turning to the alleged contraventions, it is necessary to say something in relation to the statutory context in which this case arises.

Statutory context

This case highlights a number of the difficulties in the application of contravention proceedings under pt 4, div 5 of the Act to interim supervision orders. I discussed some of those difficulties in The State of Western Australia v PAS [No 2].[1]
[1] The State of Western Australia v PAS [No 2] [2021] WASC 59 (PAS [No 2]).
In PAS [No 2] I concluded that, notwithstanding ambiguities in the text of the Act, an interim supervision order is a 'supervision order' for the purposes of pt 4, div 5 of the Act, and so could be the subject of contravention proceedings. As I recognised at the time, this conclusion nevertheless meant that certain difficulties remained with the provisions of the Act as they related to interim supervision orders and contravention proceedings.
For example, I said:[2]
[2] PAS [No 2] [64] - [65] (footnotes omitted).
[64]This is not to say that there do not remain significant difficulties with the Act. The construction that I have reached does not resolve all of those problems. One of those problems, which I have already identified, is the fact that under s 55 the only options available to the Court in a contravention proceeding are:
(a)to rescind the supervision order and make a continuing detention order;
(b)to amend the conditions of the supervision order or extend it; or
(c)to affirm the supervision order without amendment or extension.
[65]Section 55 might best be described as proceeding upon the assumption that, in most cases, it will be concerned with a supervision order that has been made following the completion of a restriction order application within the meaning of the Act. Certainly the options available make a good deal more sense in that context. Those options, as I have said, are not as easily applied in relation to an interim supervision order. In particular, for the reasons that I have given, the notion that a continuing detention order might be made on the basis of a contravention of an interim supervision order alone (where there has been no finding by the court that the person is a high risk serious offender) would appear inconsistent with the intention of the Act to ensure that the court will only make such an order following 'deeply serious consideration upon specified criteria and to a high degree of satisfaction'.
In that context, I had earlier said that:[3]
[47]If, as the State contends, an 'interim supervision order' is a 'supervision order', and therefore may be the subject of contravention proceedings under pt 4 div 5 of the Act, that would suggest that it would be open to the court, under s 55, to make a continuing detention order on the basis of a contravention of an interim supervision order alone.
[48]That would be an extraordinary result. It would mean that the Act would authorise a continuing detention order (i.e. indefinite detention) of a person who has not been found to be a 'high risk serious offender' within the meaning of s 7 of the Act. It would suggest the possibility (at least) of the continuing detention of a person not on the basis that they are a high risk serious offender but that they might be a high risk serious offender.
[3] PAS [No 2] [47] - [48].
Having regard to the constitutional principles supporting the validity of the Act, I concluded that:[4]
[E]ven if the state's submissions on the statutory constructions can be accepted [which I concluded they should be] it would be necessary, at least when applying s 55 to an interim supervision order, that it be construed so as to not authorise a continuing detention order contrary to these constitutional principles.
[4] PAS [No 2] [53].
The present application also points up another issue, which is the possible application of ss 56(2) and (3) of the Act to this case, and relationship of those provisions to s 53(2)(b).
Sections 56(2) and (3) provide:
(2)The court may at any time in the pending proceedings –
(a)if the offender is detained in custody, order the offender to be released, subject to subsection (3); or
(b)if the offender is not detained in custody, order the offender to be detained in custody.
(3)The court cannot order the offender to be released unless it is satisfied on the balance of probabilities that –
(a)releasing the offender is justified by exceptional circumstances; and
(b)the offender will substantially comply with the standard conditions of the supervision order, including any amendments to the standard conditions made under subsection (7)(b).
An issue which arises in this case is whether the requirement for exceptional circumstances in s 56(3) is engaged in relation to the State's application. That, in turn, depends upon whether s 56(2)(a) is engaged.
In that regard, the first question is whether Mr Slater is 'detained in custody' within the meaning of s 56(2)(a).
Prima facie, in my view, 'detained in custody', within the meaning of s 56, means detained pursuant to the provisions of the Act. Section 56(2)(a) cannot be construed as providing this Court with a general dispensing power to release persons who are otherwise in custody, either as sentenced prisoners or on remand for other offences. In the context of pt 4 div 5 of the Act, in my view, the expression 'detained in custody' would ordinarily apply to a person who is in custody as a consequence of having been arrested pursuant to a warrant issued under s 51 of the Act in relation to a suspected or anticipated contravention of a supervision order. An order of the Court would be necessary to 'release' such a person from custody, and so s 56(2)(a) would apply – including the requirements of s 56(3).
Similarly, a person detained pursuant to an order of the Court made under s 53(2)(b) of the Act would be 'detained in custody' within the meaning of s 56(2)(a).
As a consequence of McGrath J's orders made on 9 December 2021, therefore, Mr Slater is, while that order remains in effect, 'detained in custody' within the meaning of s 56(2)(a). For that reason, if it was proposed that there be an order for Mr Slater to be released now (i.e. prior to 17 December 2021), it would be necessary for me to be satisfied that the requirements of s 56(3) are met, including that there exist exceptional circumstances and that he would substantially comply with the standard conditions of the interim supervision order.
However, once McGrath J's order for interim detention expires tomorrow, Mr Slater will be entitled to be released. No order is required for Mr Slater to be released at that point. In that case, there would not need to be, nor would there be an 'order [for] the offender to be released' within the meaning of s 56(2)(a) and that subsection would have no application. For that reason, the requirement in s 56(3) that there be exceptional circumstances would not apply either. Again, that is because there is no need for any order that Mr Slater be released for him to be released on 17 December 2021; the current order (of McGrath J) will simply have run its course.
This is why the State seeks an order under s 53(2)(b) of the Act. For Mr Slater to be further detained after 17 December 2021 it would be necessary for me to make a positive order to that effect under s 53(2)(b). That power to order further detention is not one affected by s 56(2)(a).
Accordingly, I propose to consider the State's application on the basis that it is an application that I make a positive order under s 53(2)(b). For that reason, no issue of exceptional circumstances arises.
Rather, the real issue is that which applies generally to an interim detention order (under s 46(2)(c)) or an interim supervision order under (s 58(2)(c)); namely, whether the Court is satisfied that, to ensure adequate protection of the community, it is desirable to make either an interim detention order or an interim supervision order. That is, in effect, the test that applies to the making of an interim supervision order generally.
This points up an important aspect of any consideration of alleged contraventions of an interim supervision order. Compliance with an interim supervision order (and, indeed, any supervision order) is an important matter, and the importance of such compliance should not be understated. Nevertheless, it must be recognised, having regard to the text and structure of the Act as a whole, that an interim supervision order is not an end in, and of, itself. An interim supervision order is a means to an end: the end being the protection of the community against the risk of serious offences.
In that sense, a supervision order or an interim supervision order will have served its purpose if it protects the community from serious offences, even if compliance with the conditions of the order, in the particular case, has not been perfect. The Court must always keep in mind that the object of the Act to be achieved is the adequate protection of the community from the commission of serious offences.
In the present case, counsel for the State submitted that the interim supervision order 'has failed in its objective to try and keep Mr Slater on the right side of the law'.[5]
[5] Ts 89.
In my view, that is simply not correct, inasmuch as Mr Slater has not committed any serious offence. That is, as Mr Slater has not committed a serious offence, it cannot be said that the interim supervision order has 'failed'. Moreover, on the basis of the material before me,[6] in my view it cannot be said that Mr Slater has, while on the interim supervision order, come remotely close to committing a serious offence.
[6] See affidavit of Brent Douglas Meertens affirmed 8 December 2021 and affidavit of Shae Hazzard affirmed 15 December 2021.
In that regard, I turn to the alleged contraventions in this case.

Alleged contraventions

On 16 October 2021, Mr Slater travelled to Corrigin, a country town to the east of Perth.
Corrigin is a considerable distance from where Mr Slater lives with his sister. Mr Slater's mother is an inpatient at the Corrigin District Hospital. It was put to me, and it was not contentious, that Mr Slater's mother is undergoing palliative care, she is not lucid and she is in physical decline.
Mr Slater had the approval of his community corrections officer (CCO) to visit his mother. According to what Mr Slater later said to police, the visit was upsetting to him. It was submitted to me that he was 'most distressed' by seeing his mother. While he was in Corrigin, Mr Slater visited his brother, at a time when his brother's partner was also present. Mr Slater did not have the permission of his CCO to go anywhere other than the Corrigin District Hospital. As a result, by visiting his brother, Mr Slater was charged with contravening two conditions of the interim supervision order; namely, attending at his brother's house without permission and attending at a residence where a female was present.
Mr Slater also visited another sister of his while he was in Corrigin. That visit lead to two further charges of contravening the conditions of the interim supervision order; again, attending at the location without permission and attending a residence where a female (namely, his sister) was present.
Mr Slater was also charged with a fifth offence of failing to report to his CCO upon his arrival at Corrigin.
Mr Slater pleaded guilty to those offences on 19 October 2021, for which he was fined.[7]
[7] MC PE 43374/2021 ‑ MC PE 43378/2021. The offences are identified in Ms Hazzard's affidavit at page 4 and were further described by counsel for Mr Slater counsel in submissions.
Also while in he was in Corrigin on 16 October 2021, Mr Slater attended at the Corrigin Hotel with his sister. He was charged with contravening the conditions of the interim supervision order by going to licenced premises.[8] Mr Slater has pleaded not guilty to that offence. According to the Statement of Material Facts, however, it is not suggested that Mr Slater was drinking at the hotel or that he even went inside. The Statement of Material Facts states:
The accused was observed outside the hotel for approximately 10 minutes and at one stage is seen to open a door and lean into the premise where he either hands something or receives something from a patron inside.
…
Accused's explanation, 'I was with my sister to place a bet for my mother, and I didn't go inside myself'.
[8] MC MI 8181/2021.
Finally, on 16 October 2021, after returning home from Corrigin, Mr Slater used some methylamphetamine with his nephew. They used the methylamphetamine at the house, where they stayed together for approximately two hours, talking. According to the Statement of Material Facts later prepared in relation to the incident, Mr Slater's explanation was: 'I was upset about seeing my mother, and a nephew brought some Meth over'.
Obviously, Mr Slater should not have used the methylamphetamine, no matter how upset he was. It was a clear breach of the law and in contravention of his interim supervision order. Indeed, for the conduct of using the methylamphetamine in the presence of his nephew, Mr Slater was charged with a further four offences, including three charges of contravening a number of the conditions of the interim supervision order. [9] Mr Slater was ultimately convicted of those offences on his plea of guilty, and was sentenced to a global fine of $200 (although in relation to two of the charges no penalty was imposed by reason of s 11 of the Sentencing Act 1995 (WA)). Mr Slater spent approximately four weeks in custody on remand prior to being dealt with on those charges.
[9] MC PE 43713/2021 ‑ MC PE 43716/2021.
All in all, 16 October 2021 was a bleak day for Mr Slater. He visited his mother at Corrigin District Hospital in what would no doubt have been upsetting circumstances and was ultimately charged with a total of 10 offences, for which he has been fined and in relation to which he spent a month in custody.
Obviously, these alleged contraventions, to most of which Mr Slater has pleaded guilty, were in breach of his interim supervision order. He should not have behaved in this way. He should have observed, to the letter, the instructions of his CCO. Nevertheless, nothing in these events in my view suggests that Mr Slater was, by reason of these contraventions, at risk to the community of committing a serious offence (or that he was even approaching such a risk). While he did use methylamphetamine on one occasion (which is, in my view, was the most serious of the contraventions, given the risks associated with a return to substance abuse) Mr Slater was not violent, disorderly or otherwise antisocial. Indeed, insofar as he visited his brother and sister without permission, he was being too social.
In addition to the breaches on 16 October 2021, Mr Slater was charged with contravening the interim supervision order on 4 December 2021. On that day, Mr Slater breached his curfew (by 16 minutes) when he left his house at 5.44 am and visited a friend at another location. Mr Slater had not disclosed that friendship to his CCO. He should have done so, and he should not have breached his curfew. If Mr Slater had disclosed the friendship to his CCO earlier, she would have been able to identify more quickly, as she ultimately did, that the friend had been known to the criminal justice system and is a person that Mr Slater should avoid. Mr Slater was charged with a further four offences of contravening the interim supervision order for that conduct, for which he pleaded guilty.[10] He was again fined, having spent a further week in custody on remand.
[10] MC PE 50667/2021 ‑ MC PE 50670/2021.

In addition to the breaches on 16 October 2021 and 4 December 2021, Mr Slater is also alleged to have been in breach by being at home when a woman attended his residence in the presence of her partner. The woman was, Mr Slater's counsel submitted to me, Mr Slater's nephew's girlfriend.[11] That offence is yet to be dealt with.
[11] MC MI 8182/2021.
Issues relating to women attending at Mr Slater's home is a matter that Ms Hazzard (Mr Slater's CCO) has identified more generally as a concern in relation to the ability of Mr Slater to comply with the interim supervision order. Ms Hazzard said in her affidavit:
During the supervision session on 17 November 2021, Mr Slater admitted to me that there had been more than one occasion where females had attended the property and he has not advised me or sought approval for them to attend. Mr Slater did not provide any further information as to how often this had occurred or the length of time the females had spent at the property. Mr Slater advises that the females who have attended have been family members or friends of his nephews, who also reside at the property.
I conducted a home visit with Mr Slater and Ms … Slater, Mr Slater's sister on 23 November 2021 where I advised that the COMU team were not prepared to approve everyone on the list due to the large number of females and the unclear relationships to Mr Slater. However, I advised that COMU were prepared to look into approving the female family members on the list, however, I needed more information in order to do this, including the relationship to Mr Slater, the contact details, and whether they were aware of Mr Slater's offending history. Mr Slater and Ms Slater accepted this, and I advised them until such time as the list had been approved, there were still no females permitted to attend the property.
Also, at that supervision session Ms Hazzard reported that:
During the conversation with Mr Slater about his contraventions and his conditions, he admitted that one of his nephews who resides with him consumes cannabis on a regular basis. Mr Slater advised that when his nephew uses, he stays in his room. Mr Slater currently has conditions on his Supervision Order that prohibit him from being in the presence of anyone he knows, or ought to know to, be affected by prohibited drugs, unless the identity of such a person is approved in advanced by a Community Corrections Officer (CCO). Further, he is not to remain in any place where prohibited drugs are being consumed or at such place as his approved address withdraw from the residence in which any such consumption is taking place.
It is apparent from this disclosure that Mr Slater was not only revealing the use of drugs by his nephew, but describing a response on his part that would be compliant with his conditions.

Conclusions

In all of the circumstances, I am not satisfied, on the basis of the alleged contraventions that I have outlined, that I should order that Mr Slater be detained pending the contravention proceedings.
First, recognising that the contravention proceedings are pending, in my view, the contraventions would not, if they were all established, be likely to result in a continuing detention order under s 55 of the Act. In that regard, it must be recalled that this is an interim supervision order and that Mr Slater has not been found to be a high risk serious offender. As I said in PAS [No 2] (see [12] to [14] above), the notion that a continuing detention order (which is the only kind of detention order available under s 55) might be made on the basis of a contravention of an interim supervision order alone where there has been no finding by the Court that the person is a high risk serious offender would be inconsistent with the intention of the Act to ensure the Court will only make such an order following deeply serious consideration upon specified criteria and to a high degree of satisfaction.
It is therefore highly unlikely that the final result of the contravention proceedings themselves could be an order for continuing detention (I say nothing, of course, in relation to the restriction order application, which raises different issues). For that reason, even if, contrary to my conclusion at [22] above, s 56(3) was applicable (and exceptional circumstances required) in my view, the fact that the contravention proceedings could not result in a continuing detention order, even if the contraventions were established, would amount to exceptional circumstances.
That is not to say that it could never be appropriate to order an interim detention order pursuant to s 53(2)(b) in the case of pending proceedings for the contravention of an interim supervision order. Indeed, it is clearly possible that a person might be the subject of an interim detention order under s 53(2)(b), if the Court could be satisfied that it was necessary or desirable to ensure adequate protection of the community (just as making an interim detention order pursuant to s 46(2)(c) may be appropriate for ensuring adequate protection of the community, notwithstanding the restriction order application has not been determined).
If, for example, the breaches of the conditions indicated that Mr Slater was moving towards a heightened risk that he may commit a serious offence, an interim detention order may well be required. However, I do not consider that such a risk is evident from the contraventions alleged in this case which, while they have been large in number, have been limited to a very small number of days and have not involved any aggression, disorderly conduct, or antisocial behaviour by Mr Slater.
Mr Slater has only recently completed a substantial term of imprisonment. It is, in my view, unrealistic to suppose that his progress while on supervision will follow a perfectly straight line. That is, indeed, why supervision is required.
In relation to drug use (which as I have said is, in my view, the most significant contravention) Mr Slater has returned one positive test result; namely, the test result for methylamphetamine for which he pleaded guilty. While the evidence before me alludes to the possibility of other use (such as a diluted sample and some belligerence on Mr Slater's part when he was returned to custody), in my view, the material does not support the conclusion that Mr Slater has lapsed back into regular substance use. It is, of course, well within the power of his CCO to increase the testing to which Mr Slater is subject, in the event that there arises any suspicion that such substance use is occurring.
In the end, the issue for me is whether it is necessary or desirable that Mr Slater be detained to protect against the risk of a serious offence being committed between now and 3 March 2022. I do not consider that the material before me reveals such a risk.
I will therefore not make a further order under s 53(2) and will simply adjourn the contravention proceedings to the restriction order application.

Final observation

It is important, however, that I conclude by noting one matter.
The requirement under the Act, for example in s 29(1), to the effect that the Court may only make a supervision order if it is satisfied that the offender will substantially comply with the standard conditions of a supervision order is not a requirement that generally applies to an interim supervision order (See s 29(3)).
As I said in PAS [No 2]:[12]
The effect of s 29(3) is clear. It means that, in determining whether to make an interim supervision order, it is not necessary for the court to be satisfied that the offender will substantially comply with the standard conditions. The legislative conditions for making an interim supervision order are therefore not as stringent as those that apply in relation to a supervision order made following a restriction order application. The underlying legislative rationale for that position is no doubt because a person the subject of an interim supervision order has not been found to be a 'high risk serious offender'; a person on an interim supervision order is merely a person in relation to whom there are reasonable grounds for believing a court might make such a finding.
[12] PAS [No 2] [41].
This has the practical effect that a person on an interim supervision order is able to be tested as to whether or not they can, or will, substantially comply with the conditions of a supervision order. It is in the interests of the protection of the community that the capacity to test that ability be able to occur.
If, however, the Court finds, on 3 March 2022, that Mr Slater is a high risk serious offender, it will not be able to make a supervision order unless it is satisfied on the balance of probabilities that Mr Slater will substantially comply with the standard conditions of a supervision order.
While I am not bound by that additional requirement, the Court hearing the restriction order application on 3 March 2022, if it reaches the conclusion that Mr Slater is a high risk serious offender, would be so bound. It is, therefore, imperative, as I have stressed to Mr Slater, that he comply, to the letter, with the supervision order in the meantime.

I certify that the preceding paragraphs comprise the reasons for decision of the Supreme Court of Western Australia.
LH
Research Associate to the Honourable Chief Justice Quinlan
20 DECEMBER 2021