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THE STATE OF WESTERN AUSTRALIA -v- SLATER [No 3] [2023] WASC 22 (8 February 2023)

Last Updated: 8 February 2023

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

IN CRIMINAL

CITATION : THE STATE OF WESTERN AUSTRALIA -v- SLATER [No 3] [2023] WASC 22

CORAM : FORRESTER J

HEARD : 12 DECEMBER 2022

DELIVERED : 8 FEBRUARY 2023

PUBLISHED : 8 FEBRUARY 2023

FILE NO/S : SO 7 of 2021

BETWEEN : THE STATE OF WESTERN AUSTRALIA

Applicant

AND

KEITH RONALD SLATER

Respondent

Criminal Law - High risk serious offender - Application for restriction order - Whether the respondent is a high risk serious offender - Whether unacceptable risk that respondent will commit a serious offence if not subject to restriction order - Whether necessary to make restriction order to ensure adequate protection of community - Whether community can be adequately protected by imposition of supervision order - Whether the respondent will substantially comply with standard conditions of a supervision order

Legislation:

High Risk Serious Offenders Act 2020 (WA)
Dangerous Sexual Offences Act 1995 (WA) (repealed)

Result:

Supervision order made

Category: B

Representation:

Counsel:

Applicant	:	D McDonnell
Respondent	:	A Fedele

Solicitors:

Applicant	:	State Solicitor's Office (WA)
Respondent	:	Legal Aid - Perth - Criminal Law Division

Cases referred to in decision:

Table of Contents

FORRESTER J:

Introduction

By an application dated 26 July 2021, the State of Western Australia has applied for a restriction order to be made in respect of the respondent, Keith Ronald Slater, pursuant to the High Risk Serious Offenders Act 2020 (WA) (HRSO Act).
A preliminary hearing pursuant to s 46 of the HRSO Act was held on 27 August 2021. Quinlan CJ was satisfied that there were reasonable grounds to believe that the court might find the respondent to be a high risk serious offender and made orders for reports to be provided for the purposes of the hearing of the application.[1] His Honour ordered that the respondent be made subject to an interim supervision order pursuant to s 58(5) of the HRSO Act pending the hearing.
On 8 December 2021, the State commenced contravention proceedings, seeking orders under s 55 of the HRSO Act. Those are to be heard at the same time as the restriction order hearing.
On the application for a restriction order, the matters I must decide are:

(1) whether the respondent is a high risk serious offender, within the meaning of s 7 of the HRSO Act; and, if so

(2) whether to make an order that the respondent be detained in custody for an indefinite term for control, care or treatment (a continuing detention order)[2] or that he be released into the community subject to conditions that the court considers appropriate (supervision order).[3]

The application

As at the date of the application, the respondent was serving a term of imprisonment of 8 years, imposed by Keen DCJ on 13 May 2014. The sentence was structured as follows:

(1) aggravated burglary and commit offence contrary to s 401(1)(a) of the Criminal Code ‑ 6 years' imprisonment (head sentence);

(2) aggravated indecent assault contrary to s 324 of the Criminal Code ‑ 2 years' imprisonment,[4] cumulative;

(3) aggravated assault with intent to rob contrary to s 393(d) of the Criminal Code ‑ no penalty.

The sentence was backdated to 10 October 2013 and thus expired on 9 October 2021.
The offences of aggravated indecent assault and assault with intent to rob are serious offences under the HRSO Act.[5] Accordingly, the respondent was, at the time the application was made, 'a serious offender under custodial sentence'[6] who was not a serious offender under restriction within the meaning of s 35 of the HRSO Act.

Materials

The State produced a Book of Materials comprised of five volumes,[7] containing the criminal history of the respondent and detailed evidence relating to it, including statements of material facts and transcripts, the respondent's custodial history, program completion reports relating to the various programs undertaken by the respondent while in custody, parole and other assessment reports, and reports prepared for this hearing, specifically:

(1) proposed HRSO Management Plan of Joanne Collyer, Senior Counselling Psychologist, dated 8 February 2022;

(2) report of Dr Tara Yewers, Counselling Psychologist, dated 20 January 2022;

(3) addendum report of Dr Yewers dated 23 February 2022;

(4) report of Dr Yewers dated 19 November 2022;

(5) report of Dr Gosia Wojnarowska, Forensic Consultant Psychiatrist, dated 4 February 2022;

(6) addendum report of Dr Wojnarowska dated 23 February 2022; and

(7) Community Supervision Assessments of Shae Hazzard, Senior Community Corrections Officer, dated 8 February 2022 and 2 December 2022.

Pursuant to s 84(5) of the HRSO Act, in this hearing the court may receive into evidence:
(a) any document relevant to the antecedents or criminal record of the offender; or
(b) anything relevant contained in the official transcript of any relevant proceeding against the offender; or
(c) any relevant material that was tendered to the court, or that informed the court, in a relevant proceeding against the offender; or
(d) any relevant material of the kind mentioned in section 7(3) relating to the offender.
There is a significant body of material contained in the Book of Materials to which I am required to have regard by reason of s 7(3) of the HRSO Act. However, there is also a very significant body of material contained in the Book of Materials which is of very limited, if any, probative value. While the court has discretion to receive the materials, as they fall within the very broad ambit of material described in s 84(5), much of the material could in no way be properly described as acceptable or cogent. In this judgment, I will only refer to the material which can be so described.
The State also called Dr Wojnarowska, Dr Yewers, Ms Collyer and Ms Hazzard to give evidence at the hearing.

Index offending IND 1267 of 2013

In the early hours of the morning on 14 September 2013, the respondent, armed with a small kitchen knife, approached a residence in Nollamara. The respondent smashed a glass panel next to the door to gain entry. This woke the victim, a 29‑year‑old female who was home alone. She turned her bedroom light on.
The respondent opened the bedroom door slightly. He held the small kitchen knife in one hand and used his free hand to reach in and turn the bedroom light off.
The respondent entered the bedroom, pointing the knife at the victim. He demanded money, at which point the victim moved towards her handbag. The respondent grabbed the victim's right arm and pulled her towards him. The victim told the respondent she was getting her handbag. She took a small purse out of her handbag and told the respondent she had no money. Out of fear, she told the respondent she had bank cards and would give him the PIN numbers for them. The respondent asked for gold, but declined when the victim offered him jewellery.
The respondent told the victim he needed something else before pushing her down onto the bed so she was lying on her back and getting on top of her. The victim unsuccessfully tried to get the respondent off her.
The victim pleaded with the respondent not to do what he was doing. However, the respondent pressed the knife against the victim's neck and proceeded to kiss the victim with an open mouth and touch her breast under her bra with his free hand. The victim begged the respondent to stop. The respondent said, 'I need something. I'm going to lick you out.' The victim pleaded the respondent not to. The respondent then got off the victim and said he was going to leave. The victim directed the respondent out and called the police.
The respondent's DNA was found on the victim's doona and pyjama top. He was arrested on 10 October 2013.
The respondent's explanation for the offending was that he had taken speed, 'went loopy' and thought he was being chased. He claimed he could not recall how he ended up in the house, and did not know if he had a knife. The respondent did remember kissing the victim and that she was crying.[8]

Statutory framework and legal principles

The objects of the HRSO Act are:
(a) to provide for the detention in custody or the supervision of high risk serious offenders to ensure adequate protection of the community and of victims of serious offences; and
(b) to provide for continuing control, care or treatment of high risk serious offenders.[9]
The powers conferred by the HRSO Act are not to be exercised for the purpose of imposing additional punishment on the offender, but rather for the ultimate purpose of protecting the community.[10]
The term 'high risk serious offender' is defined in s 7(1) of the HRSO Act as follows:

An offender is a high risk serious offender if the court dealing with an application under this Act finds that it 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 offender to ensure adequate protection of the community against an unacceptable risk that the offender will commit a serious offence.

A 'restriction order' means a continuing detention order or a supervision order.[11] A continuing detention order is an order that the offender be detained in custody for an indefinite term for control, care or treatment.[12] A supervision order is an order that the offender, when not in custody, is to be subject to stated conditions that the court considers to be appropriate in accordance with s 30 of the HRSO Act.[13]
The State has the onus of satisfying the court in accordance with s 7(1).[14]
When considering whether it is satisfied that a person is a high risk serious offender, the court must have regard to the matters set out in s 7(3). Further, the court must disregard the possibility that the respondent might temporarily be prevented from committing a serious offence by imprisonment, remand in custody, or the imposition of bail conditions.[15]
The jurisprudence established in respect of the Dangerous Sexual Offences Act 1995 (WA) (repealed) is relevant in construing and applying the HRSO Act, with necessary adaptation.[16]
The words 'high degree of probability' import more than a finding on the balance of probabilities but less than a finding of beyond reasonable doubt but are otherwise not capable of further definition.[17] The court is required to identify what it is that constitutes the risk and what makes it unacceptable, thereafter considering whether or not those factors have been proved to the requisite standard by acceptable and cogent evidence.[18]
In The State of Western Australia v Garlett,[19] Corboy J held that s 7(1) of the HRSO Act (in conjunction with s 48) requires the court to assess two separate matters. The first is whether a risk that an offender will commit a serious offence is unacceptable. The second is, if the risk is found to be unacceptable, whether it is necessary to make a restriction order to ensure adequate community protection against a risk that the offender will commit a serious offence.
In Garlett v The State of Western Australia,[20] the court said:

Whether or not a risk that an offender will commit a 'serious offence' is 'unacceptable' is a question which requires the court's judgment as to the nature and extent of the harm said to be in prospect. Further, whether a restriction order is 'necessary' to protect against that risk requires recognition of what would otherwise be the offender's entitlement to be at liberty, an entitlement not lightly to be denied.

The meaning of 'unacceptable risk' was considered by Wheeler JA in Director of Public Prosecutions (WA) v Williams:[21]

In my view, an 'unacceptable risk' in the context of s 7(1) is a risk which is unacceptable having regard to a variety of considerations which may include the likelihood of the person offending, the type of sexual offence which the person is likely to commit (if that can be predicted) and the consequences of making a finding that an unacceptable risk exists. That is, the judge is required to consider whether, having regard to the likelihood of the person offending and the offence likely to be committed, the risk of that offending is so unacceptable that, notwithstanding that the person has already been punished for whatever offence they may have actually committed, it is necessary in the interests of the community to ensure that the person is subject to further control or detention.

If the court hearing a restriction order application finds that the offender is a high risk serious offender, the court must make a continuing detention order or, except as provided in s 29, a supervision order.
In deciding whether to make a continuing detention order or a supervision order, the paramount consideration is the need to ensure adequate protection of the community.[22]
In The State of Western Australia v Garlett,[23] Corboy J stated:

... the court should choose, as between a continuing detention order and a supervision order, the order that is 'least invasive or destructive' of a person's right to be at liberty while ensuring an adequate degree of protection of the community. That constraint also applies in determining the non-standard conditions (if any) of a supervision order. Moreover, as Hall J pointed out in Director of Public Prosecutions v Decke,[24] '[i]t cannot simply be assumed that the most assured preventative is detention and therefore, the protection of the community will always favour such an order'.

The HRSO Act does not require that there be no risk of reoffending. The question is whether the risk is reduced to a reasonably acceptable level that ensures adequate protection of the community.[25]
The court cannot make a supervision order in relation to an offender unless satisfied on the balance of probabilities that the offender will substantially comply with the standard conditions of the order, the onus of establishing which is on the offender.[26]
The standard conditions of a supervision order are set out in s 30 of the HRSO Act and include the requirement that the offender not commit a serious offence during the period of the order.[27]
In determining whether an offender 'will substantially comply with the standard conditions of the order':

[t]he court must be satisfied that the respondent will comply with the standard conditions in a manner and to an extent that is consistent with and will enable the attainment of the general object of the supervision order and the legislation, namely the adequate protection of the community by management and mitigation of the risk that the respondent will commit a serious ... offence.[28]

Matters to be considered pursuant to s 7(3) HRSO Act Antecedents and criminal history - s 7(3)(g)

Family background and relationships

The respondent is a 57‑year‑old man of Aboriginal descent. He was born in Quairading as the second youngest of nine children.[29]
At the age of seven, the respondent and his family relocated to Perth for his father's work.[30] The respondent described having a close relationship with his mother during his childhood.[31]
The respondent witnessed alcohol abuse and domestic violence perpetrated by his father against his mother at a young age.[32] The respondent would himself become subject to violence when he intervened to protect his mother.[33] The respondent also saw an older brother engage in this behaviour.[34] This exposure ultimately led the respondent to view these as acceptable behaviours.[35]
The respondent was taken into State care at the age of 14, although he could not remember why. He described further exposure to domestic violence, including serious violence being inflicted upon him by a relative of his caregivers. Following this incident, the respondent's continued alcohol misuse and behavioural issues led to him being removed from this family and being sent to Longmore Detention Centre and Hillston Anglican Farm School on numerous occasions.[36]
In 1995, the respondent's father passed away,[37] which affected him greatly.[38] The respondent also lost a brother in 2012 and a sister in 2018. His mother is currently in palliative care. The respondent told Dr Yewers that his family are close and supportive.[39]
Some of the respondent's family members are involved in drug dealing.[40]
The respondent has had two significant prior relationships. The first of those resulted in a daughter who is currently 31 years of age, whom he only met once, when she was 7 years old.[41]
The respondent has another six children, aged between 22 and 29 years, from his second significant relationship, which lasted 12 years. This relationship was marred by entrenched substance use and domestic violence perpetrated by himself against his former partner, resulting in the children being taken into State care.[42] At times, the respondent's partner was hospitalised for injuries she sustained at his hands,[43] including broken bones and stab wounds.[44]
Departmental records also contain allegations that the respondent physically assaulted two of his children when they were infants. His 16-month-old son sustained a blood nose, and his two-month-old daughter sustained a fractured skull and internal haemorrhaging, requiring hospitalisation.[45] The respondent has no contact with this former partner, and he has not seen any of his children for a significant period of time.[46] They have now been returned to the care of their mother.[47] The respondent hopes to be able to have contact with them and his 10 grandchildren in the future.[48]
When the respondent spoke with Ms Martin, a forensic and clinical psychologist, he sought to minimise the extent of the physical harm he inflicted upon his partner, stating:

I was hitting the drugs bad and drinking. I was belting her too, but it was not really serious. I hit her about the face a bit. That's all. There were no hospitalisations.[49]

Since this relationship, the respondent has only engaged in casual and short‑term relationships. He is currently single and has expressed mixed views about wanting to be involved in a committed relationship.[50]
In terms of peer relationships, the respondent has only ever really associated himself with antisocial peers who are involved in crime and consume illicit drugs.[51] He told Dr Yewers that he does feel lonely and isolated, but that he intends to continue to stick to himself.[52]

Education and employment

The respondent completed high school to year 7 and has no literacy issues. He stopped going to school, due to increasing involvement with antisocial peers and crime, and thereafter spent his time consuming alcohol and illicit substances.[53]
The respondent has a limited employment history, having occasionally engaged in farm work. The respondent's use of illicit substances and periods of imprisonment have greatly hindered his ability to maintain any sort of employment.[54]
During his time in custody, the respondent has worked in the laundry and is noted to have a good work ethic and hard‑working attitude.[55] At the time of Dr Yewers' first report on 20 January 2022, the respondent was hoping to gain employment in the community.[56]
The respondent has previously been in receipt of Centrelink benefits.[57] He has never held a drivers' licence.[58]

Substance abuse

The respondent first used alcohol at the age of 13. He has disclosed that he would drink to excess, often on a daily basis, by age 16.[59]
The respondent first began smoking marijuana at the age of 15 or 16 and smoked it every day when possible. He has inconsistently reported the age at which he started using amphetamines, but it appears he began injecting them when he was 18 years old.[60] In 2013, said he had used them every day for 30 years.[61] His use of other substances, including opioids, benzodiazepines and hallucinogens has also been problematic, including while he has been in custody.[62]
The respondent has stated he is aware that he becomes violent when intoxicated. His awareness extends to knowing that his violence is worse when under the influence of amphetamine and methylamphetamine, as opposed to alcohol.[63] The respondent is also aware that he experiences paranoid thinking and visual hallucinations when under the influence of methylamphetamine and amphetamine.[64]
The respondent links his abuse of substances to his low mood associated with having no contact with his children.[65] He acknowledged that it is tempting to turn to drug use when he is sad or depressed.[66]
In the pre-sentence report prepared by Ms Swan for the sentencing of the index offences, the respondent reported continued use of Subutex and cannabis during his time on remand. Until recently, the respondent does not appear to have maintained any meaningful period of abstinence from illicit substances, either in the community or while he has been incarcerated.[67] He has expressed a willingness to engage in residential rehabilitation and acknowledges that he will require ongoing support to remain abstinent from illicit substance use.[68]

Medical and psychiatric history

Apart from requiring daily medication to control his high blood pressure and cholesterol, the respondent reports being in generally good physical health.[69] The respondent is also prescribed Lyrica for the pain he experiences from burns he suffered after setting his cell on fire while in custody. Departmental records indicate the respondent also suffers from Hepatitis C, sleep apnoea, asthma and hyperlipidaemia.[70]
In terms of the respondent's mental health, he has previously engaged in self‑harming behaviours,[71] and has suffered from long term depression. He has previously been on anti‑depressant medication.[72] Although he is no longer on medication, he is willing to consider pharmacological and psychological treatment.[73]
Dr Yewers reported that the respondent scored in the 'extremely severe' range for depression and anxiety, and in the 'severe' range for stress on the Depression, Anxiety and Stress Scales (DASS-21).[74]
The respondent has been experiencing disturbed sleep due to his worrying. He denied any recent self‑harming, suicide attempts or experiences of paranoia or delusional thinking. He has reported some suicidal ideation, but claims he is not intending to act on this due to the impact it would have on his family.[75]
A number of the reports indicate that the respondent has deeply felt the absence of his children in his life.[76] The respondent told Ms Martin, who authored the psychological report for the sentencing of the respondent for the index offending, that the breakdown of his family has destroyed him.[77] During the Pathways Program, he frequently referred to his family breakdown as being the root of his depression.[78]

Criminal history

The respondent has an extensive criminal history, with contact with the criminal justice system commencing when he was just 10 years old. None of his juvenile convictions were for serious offences. He committed his first violent offence at the age of 17. As an adult, he has accumulated numerous convictions including for traffic and public order offences, unlawful damage and resist arrest, burglary and stealing, assault occasioning bodily harm, assault public officer, common assault, breach violence restraining orders, and breach of bail. The most significant offending is summarised below.

IND 415 of 1984

On 25 February 1984, the respondent was drinking at a friend's house but was asked to leave after an argument. He later broke into the unit in the early hours of the morning and went into the bedroom, pulling the blankets off the victim's feet and legs and put his hands up her legs. The victim screamed and the respondent fled.[79] For the break and enter of a dwelling at night time with intent and the indecent assault, he was sentenced to 2 years' probation with 100 hours community service.[80]
In 1985, the respondent was convicted of two offences of aggravated assault - female. The information available suggests that the respondent entered the room of a house he was visiting and touched the two young girls (aged about 11 and 14 years) who were sleeping in the room.[81] As a result of this offence, and a number of breaches of probation, the respondent was sentenced to five months' imprisonment.[82]

IND 453 of 1988

On 12 December 1987, the respondent committed the offence of assault public officer. In the course of being processed for other matters, the respondent punched an officer, breaking his nose.[83] He was sentenced to 6 months' imprisonment.[84]

IND 671 of 1988

The respondent entered the 16‑year‑old victim's bedroom (which she shared with other girls) at a hostel, lay down next to her and rubbed his hand over her breasts and legs. She woke got up and told him to get out or she would scream. He tried to get up but fell and the victim ran and got help to get him out.[85] He was sentenced to 12 months' imprisonment for indecent assault.[86]

IND 665 of 1990

The respondent was charged with break and enter dwelling at night‑time with intent after an incident on 26 January 1990, when he entered the victim's house, went into her bedroom where she was sleeping with her 3‑year‑old, and woke her.[87] The victim recognised the respondent as someone who sometimes stayed nearby. He apologised and said he was in the wrong flat. The victim told him to get out and, after the victim's brother came into the room, the respondent left.[88] The respondent was sentenced to 9 months' imprisonment.[89]
On 24 February 1990, a 70‑year‑old woman was waiting for transport near her home when the respondent ran into her, grabbed her shoulder and tried to take her handbag. When she resisted, he pulled more forcefully, despite her screams. Eventually the bag broke and he was able to run away with it. The victim sustained a large bruise on her arm and aches and pains.[90] The respondent was sentenced to 2 years' imprisonment (cumulative) for robbery.[91]

IND 431 of 2003

On 25 October 2002, the victim was asleep in her bedroom with her partner. Her 3‑year‑old daughter was asleep on the floor of the room. The respondent broke into the house and woke the victim by touching the inside of her thighs. When she woke, the respondent desisted, but pointed a tomahawk axe he was holding in an intimidating manner towards the child.[92] He then fled through the bathroom window. He was sentenced to 2 years' imprisonment for aggravated burglary.[93]

Charge PPE 59170/05

On 19 July 2005, the male victim was waiting to be seen at Centrelink. The respondent entered Centrelink and approached the victim, saying 'what are you looking at me?' He then punched the victim in the mouth, causing lacerations and bleeding.[94] He was sentenced to 9 months' imprisonment for assault occasioning bodily harm.[95]

PPE 59172-59173/05

At about 5.00 am on 23 September 2005, the respondent approached the victim, who was looking for something on the roadside. The respondent offered to help her and then asked her for a lift, which she gave him. When they arrived, he refused to get out and told her he wanted to perform cunnilingus on her. He grabbed and squeezed her breast and genital region outside her clothing. The victim refused and he asked her to drive him back to where they had met, again touching her breast and genital region and again requesting to perform cunnilingus on her. She was able to drive away.[96] On each of the two charges of indecent assault, the respondent was sentenced to 2 months' imprisonment.[97]

NO 2397-2398/09

On 29 October 2009, the respondent entered the backyard of an 81‑year‑old woman's property. When she discovered him, he tried to kiss her mouth and told her he was going to rape her. There was a scuffle during which the victim suffered a scratch on her cheek and a split lip. The respondent was dragging the victim into the property when a neighbour intervened.[98] For aggravated assault occasioning bodily harm and trespass, the respondent was sentenced to 30 months' imprisonment.[99]

PBU 1504/11

On 12 January 2011, the respondent assaulted a 54‑year‑old female prison officer at Bunbury Prison by touching her on the vaginal area on the outside of her clothing. He was sentenced to 6 months' imprisonment for indecent assault.[100]

Other violent offending

The respondent also has a considerable criminal record for violent offending against police, intimate partners, acquaintances and strangers which, while very serious in nature, does not constitute 'serious' offending within the meaning of the HRSO Act.

Conduct while in custody

During his most recent sentence, the respondent was found guilty of 20 prison offences, including for insubordination or misconduct, disobeying rules, swearing/indecent language, insulting/threatening language or manner, and drug related offending. Other incidents were also recorded, including for abusive behaviour, being out of bounds, smoking and secretion.
On 13 July 2014, a religious visitor alleged that the respondent had approached her from behind and forced his hand between her legs. She turned and hit him in the face and he walked away.[101] The respondent claimed the contact was accidental.[102] The matter was referred to police but was ultimately handled by the prison internally.
In 2018, the respondent deliberately set fire to the mattress in his cell which caused a significant fire. The respondent confirmed this was a suicide attempt and said he was under a lot of pressure at the time regarding moving to a different unit in the prison and not having any contact with his children.[103]
On 31 May 2019, a female prison officer alleged that, as she was unlocking doors after muster, the respondent followed her through two units. As the officer went to a third unit, the respondent sat down and said, 'Hey sexy' towards the officer in what was described as a 'slow, deep, chilling, husky voice'. When challenged, he denied it.[104] He was convicted of insubordination or misconduct.[105]
On 4 September 2019, the respondent was denied parole, in part as a result of his poor prison conduct suggesting an unwillingness or inability to comply with directions.[106]
Somewhat contrarily, an Individual Management Plan dated 27 February 2021 stated that:

Officers have reported that he abides by the rules and regulations of the prison and is polite and respectful towards staff. Mr Slater responds well to authority and follows instructions without issue ... Mr Slater does not come to the attention of staff in a negative way ... Staff have reported that Mr Keith (sic) is polite and well-spoken and carries out instructions well. He is observed to mix well with other prisoners and generally follows instructions without issue.[107]

During his time in custody, he refused to provide urine samples on three occasions in December 2021 and January 2022 and failed to provide a sample in the allocated time on 1 March 2022. Two tests produced results consistent with prescribed medication. Since March 2022, he has provided valid samples and tested negative.[108]
Between 24 November 2021 and 25 August 2022, eight incidents were recorded in relation to the respondent, for refusing to provide a urinalysis sample, refusing to wear personal protective equipment and misconduct, (verbal abuse and disobeying an order).[109]
The respondent recently described getting along well with officers and fellow prisoners, said he had no issues or behavioural problems, and had recently commenced working as a cleaner, which he was enjoying.[110]
On 4 August 2022, the respondent was denied early release from his present sentence.[111]

Previous Response to Supervision

The respondent has a mixed record of compliance during previous periods of supervision.
The respondent completed a Community Service Order in 1984 and parole orders in 1992 and 1996.[112] However, during the Community Service Order he committed the two offences of aggravated assault female, and records indicate that during the 1992 parole order he was unreliable in attending supervision.[113]
In 1998, the respondent was sentenced to short terms of immediate imprisonment for breaching a community based order and an intensive supervision order.[114]
In September 2007, the respondent was sentenced to a suspended imprisonment order for two years. However, in October 2009 he committed the violent assault of the 81‑year‑old woman at her property, and, as a result, he was ordered to serve the suspended term.[115]
The respondent was subject to a parole order in 2005. Initially, his compliance was positive, but he was eventually evicted from his accommodation due to property damage and not paying rent. He then committed a number of offences, including assault occasioning bodily harm and indecent assault.[116] The parole order was suspended on 28 September 2005 and cancelled on 23 February 2006.[117]

Performance whilst on the Interim Supervision Order

Since being released on the interim supervision order on 9 October 2021, the respondent has been convicted of 24 charges of contravening that order. Early charges related to illicit substance use and entering the residences of females without the permission of his CCO. He spent 4 weeks in custody as a result of a number of offences, which were all committed on the one day. On that day, he had visited his mother, who was then in palliative care in Corrigin. The visit had upset him greatly, and he attended locations without authorisation, at which women were present, which was a breach of his conditions. He also used methylamphetamine with his nephew.[118]
On 21 October 2021, the respondent informed a nurse on his reception into custody that he had been using heroin and Subutex daily and had been drinking heavily since his release on the interim supervision order.[119]
The respondent's counsel indicated that the respondent was having difficulty understanding some of his conditions. The conditions were explained to him in detail. However, he then committed further contraventions by breaching his curfew by 16 minutes and visiting a friend, where that friendship had not been disclosed.[120]
Following the commencement of the contravention proceedings by the State on 8 December 2021, the respondent was again remanded in custody. On intake he is said to have indicated daily heroin and methylamphetamine use,[121] but later claimed that he lied about this in order to get Valium.[122]
On 16 December 2021, Quinlan CJ declined to order the continuing detention of the respondent and adjourned the proceedings to be heard with the restriction order proceedings.[123]
On 18 and 25 December 2021, the respondent had issues with his electronic monitoring equipment, with the unit being moved or taken off charge. He was charged with two contravention offences. He also failed to provide a urine sample as directed, and in a later test was found to have used methylamphetamine.[124] As a result, he was remanded in custody on 30 December 2021. He was released on bail on 14 January 2022, but taken back into custody between 26 January 2022 and 23 February 2022 after he again tested positive to methylamphetamine.
Following his release, the respondent committed a string of contravention offences on 27 February 2022, including removing his electronic monitoring device. That offence attracts a mandatory minimum penalty of 12 months' imprisonment, which the respondent is presently serving.
Apart from incidents which attracted a contravention charge, Ms Hazzard noted a number of other non‑compliance concerns, regarding alerts on his electronic monitoring device and issues with urinalysis testing.[125]
Urinalysis testing was conducted in relation to the respondent on 14 occasions while in the community and he tested positive to methylamphetamine three times, failed to provide a sample once, and provided two void samples.[126]
The respondent told Dr Yewers he found the order onerous, particularly the conditions limiting his associations, as these limit him reconnecting with his family. He expressed the view that it was too hard and he wanted to be returned to prison.[127] He expressed a similar view to Dr Wojnarowska.[128]
In discussions with Ms Hazzard in January 2022, the respondent became highly emotional at times. He told her that the interim supervision order and its conditions made him feel disconnected from his family and impacted his ability to rebuild his relationships with them. He claimed that his offending was not 'that bad' as he had never raped or killed anyone, and he said he did not understand the purpose of the conditions preventing him being in the company of females. His previous contraventions have now made it difficult to see his mother, which he found particularly difficult.[129]
In January 2022, the respondent told Ms Hazzard that, if he was placed on an order any longer than 6 to 12 months, he would not comply, and would remove his GPS anklet and abscond.[130]

Reports prepared under s 74 for hearing of the application and the extent to which the respondent cooperated in the examination - s 7(3)(a) HRSO Act

Report of Dr Gosia Wojnarowska, dated 4 February 2022

Dr Wojnarowska indicated that the respondent was under the influence of methylamphetamine during her first interview with him, and, having regard to his similar presentation in their second interview, there was a high possibility that he was also drug affected at that time.[131]
When discussing the index offending, the respondent claimed he was looking for money, and denied planning or intention to rape the victim, and did not know why he had the knife or used it the way he did. He expressed remorse and said that he was sick of committing crimes, and that he wanted to get off drugs, which make him violent.[132]
The respondent told Dr Wojnarowska that he feels depressed in the community and experiences problems sleeping due to ongoing court and his mother's illness. He was unable to recall happy periods in his life and said that nothing makes him happy. He has attempted suicide in the past and has been treated for depression.[133]
Regarding his future plans, the respondent expressed a desire to get his driver's licence. He considered himself too old to work. When asked how he would structure his time in the community he said he would like to visit people and go for walks without having to seek permission from his CCO. He claimed he would not reoffend because he has respect for others, and that 'drugs and alcohol trigger me and I won't be doing any of that.' He claimed abstaining from substance use would not be a problem for him.[134]
Dr Wojnarowska stated that the respondent fulfils the criteria for severe Antisocial Personality Disorder and Substance Use Disorder.[135]
The risk assessment instruments utilised in the case of the respondent were the Hare Psychopathy Checklist - Revised (PCL-R), HCR‑20v3 and RSVP.

PCL-R

The PCL-R assesses the extent to which an individual's personality structure conforms to the clinical construct of psychopathy. The respondent's total score placed him in the mid-range of the scale with elevations in lifestyle and antisocial facets.[136]

HCR-20v3

This is a broad-band violence risk assessment tool with historical, clinical and risk management factors taken into account. Many of the historical risk factors were present or partially so. He has some insight into the impact of his substance use but lacks insight into the other factors with a causal relationship to his offending. He continues to be emotionally unstable and lacks coping skills. He has limited professional supports in place and his reliance on personal supports to remain drug‑free appears to be partially unrealistic. He is not concerned about returning to prison.[137]

RSVP

The RSVP is intended for use with adults who have a known or suspected history of sexual violence. It considers stable dynamic risk factors and acute risk factors.[138]
The respondent's victims ranged widely in age. They were all female and most were strangers to the respondent. The offending appeared to be chronic and opportunistic, with elements of coercion, and escalation during the index offences. The respondent appeared to engage in some minimisation of his conduct. He has some self‑awareness but his maladaptive coping strategies (substance misuse) persist. He has been abused in the past. There is no evidence of sexual deviance or major mental illness. The respondent does have a history of self harm. He lacks prosocial supports in the community apart from his sisters and he lacks planning and structure.[139]
In Dr Wojnarowska's opinion, the respondent is at high risk of reoffending in a violent and/or sexual manner, unless subject to restriction under the HRSO Act.[140]
Likely risk scenarios would involve the respondent being intoxicated and engaging in thrill‑seeking and antisocial behaviours, and seeking means to support his drug use. His behaviour would be likely to escalate and become more uncontrollable when intoxicated, and he may use a weapon to instil fear and achieve compliance. Violence would be instrumental or may occur in the context of emotional dysregulation.[141]
Dr Wojnarowska also was of the view that if the respondent, while intoxicated, had an encounter with a female (whether they be a child or elderly) he would likely attempt to engage them in sexual activities. If they resisted, he would likely make threats. Indecent assault is the most likely offence, although penetration is a possibility. If the respondent uses a weapon, the physical harm will potentially be severe. Psychological harm would be inevitable.[142]
Dr Wojnarowska expressed the view that the likelihood of compliance with any order would be determined by the respondent's ability to remain abstinent from substances, which he should first demonstrate in prison, or at a residential rehabilitation program entered immediately on his release from custody. She recommended the respondent engage in the methadone program.[143]
Recommendations for treatment included that the respondent should complete the Intensive Sex Offender Treatment Program and the Violent Offender Treatment Program, and engage in long term and intense psychological counselling to address his criminogenic needs, as well as medication for his depressive symptoms.[144]
Dr Wojnarowska recommended a term of at least 5 years' duration for any supervision order.[145]
At the hearing, Dr Wojnarowska gave evidence that she conducted a further interview with the respondent on 12 October 2022. Her opinion from February 2022 about the respondent's risk did not alter as a result. She did observe that, at that time, the respondent was quite depressed and hopeless regarding his future and his ability to adhere to the conditions of the order, particularly in relation to his drug use.[146] She too was of the view that his prospects of adhering to it are poor.[147] However, he recently appeared to have more insight into his ability to abstain from drug use without treatment.[148]
Dr Wojnarowska agreed that a supervision order would provide the respondent with the support and structure he requires to function in the community and that, in the absence of an available residential rehabilitation program, a supervision order could provide the constant supervision such a program would otherwise provide.[149]
Having read Ms Hazzard's report, Dr Wojnarowska was of the view that the accommodation at which the respondent proposed to reside was unsuitable, having regard to the people who stay there and their association with drug use.[150]

Report of Dr Tara Yewers, Counselling Psychologist, dated 20 January 2022

Dr Yewers interviewed the respondent on three occasions for the purposes of her first report.
During their first and third interviews, the respondent presented as polite and cooperative, but also dejected and pessimistic. In the second interview, the respondent cycled between irritability, verbal hostility, contrition (for his outburst) and dejection.
The respondent told Ms Hazzard on the day of the second interview that he was behaving in this manner because he had taken additional prescribed medications. Dr Yewers observed that two days after the date of the second interview, the respondent's urinalysis test was positive for amphetamine and methylamphetamine.[151]
The respondent explained his break and enter and stealing offences as being motivated to obtain money, alcohol or cigarettes. He said he was usually in the company of friends or cousins and usually under the influence of substances.[152] While he acknowledged previously carrying and using weapons, he denied any intention to hurt and said he only wanted people to comply.[153]
In relation to specific offences, the respondent claimed to have little or no memory. As to many of the sexual offences committed outside custody, he said he was intoxicated and he committed them on the spur of the moment.[154]
In order to remain abstinent from drug use, the respondent said he kept busy with housework, avoided family members who can make drugs available to him, screened visitors to the house for drugs and requested visitors to leave if they had drugs on them.[155]
The respondent has generally dealt with his anger by suppressing it, although there are times when he reacts aggressively without thinking. He indicated that he turns to drug use to cope with negative emotions such as distress and sadness and has a history of self‑harming when they arise.[156] He told Dr Yewers that violence and aggression have long featured in his life and he noted that in his case, they were exacerbated by drug and alcohol use.[157]
The respondent expressed his willingness to undertake programmatic intervention and stated a preference to do this in a community setting. He accepted he needed assistance to address his drug use.[158] In November 2021, he self‑referred to Next Step Drug and Alcohol Counselling, although he had failed to attend some sessions. He had sought methadone treatment, but this was refused.[159]
The respondent described his mood as depressed and said that he had been depressed for most of his life, commencing with witnessing the frequent violence inflicted on his mother. As earlier stated, the respondent scored in the 'extremely severe' range for depression and anxiety, and in the 'severe' range for stress on the DASS‑21.[160]
If permitted to remain in the community, the respondent plans to initially reside with his sister and then source his own accommodation. He also spoke about obtaining employment, such as gardening or picking up rubbish, with the support of the Ebenezer Aboriginal Corporation. In the interim, he is accessing Centrelink payments.[161]
The respondent reported a sound working relationship with his Senior Community Corrections Officer (SCCO) but expressed a wariness of the system in general.[162]

Psychopathy Checklist - Revised (PCL-R)

Psychopathy is a significant risk factor for offending, recidivism and violence. The respondent's PCL‑R score did not meet the diagnostic cut-off for psychopathy.[163]

Static-99R

This tool is an actuarial scale which assesses recidivism risk in adult male sexual offenders who had committed a sexually motivated offence. It is intended to position offenders in terms of their relative degree of risk for sexual recidivism and has been found to have moderate accuracy in doing so.[164]
The respondent's Static‑99R score placed him in the well above average risk category for being charged and convicted of another sexual offence. As a result of his VRS‑SO score (set out below) the norms for the high risk/high need samples were used to enable estimation of recidivism rates. On this basis, the respondent's Static‑99R score equates to a five year sexual recidivism rate of 25.7%.[165]

Violence Risk Scale - Sexual Offender Version (VRS-SO)

The VRS-SO uses static and dynamic risk factors to evaluate the future risk of sexual recidivism, to inform the delivery of sexual offender treatment and to assess changes in risk following treatment over time. It has been demonstrated to be predictive of sexual recidivism.[166]
In relation to dynamic risk variables, the respondent rated highly in relation to the areas of cognitive distortions, interpersonal aggression, insight, substance abuse, released to high-risk situations, sexual offending cycle, impulsivity, compliance with community supervision, treatment compliance and intimacy deficits. Still significant, but slightly less so, were his ratings in the areas of sexual compulsivity and community support. Lower risk areas were sexually deviant lifestyle, offence planning, criminal personality, emotional control and deviant sexual preference.
The respondent's score placed him in the well above average risk category of sexual recidivism, with 96% of the normative group scoring at or below the respondent's score. His percentile ranks on the criminality and treatment responsivity factors were also extremely high.[167]
When combined with his Static‑99R score, overall the respondent is assessed as having a well above average risk of sexual recidivism. Such offenders have poor release prospects, multiple criminogenic needs, and require prolonged high-intensity services to bring their risk down to a manageable level.[168]

Violence Risk Scale (VRS)

The respondent's risk of violent recidivism was assessed using the VRS. Like the VRS‑SO, it uses static and dynamic risk predictors to evaluate future risk of violence, identify targets for treatment and to assess changes in risk following treatment and/or over time. It is important to recognise that the category of acts which constitute 'violence' under the VRS is much broader than the definition of 'serious offence' under the HRSO Act.[169]
Dynamic factors which attracted a high rating in the case of the respondent were: violent lifestyle, criminal attitudes, work ethic, criminal peers, interpersonal aggression, emotional control, violence during institutionalisation, weapon use, insight into violence, substance abuse, stability of relationships with significant others, released back to high risk situations, violence cycle, impulsivity, cognitive distortions and compliance with community supervision. His score placed him in the high risk level for violent recidivism. Among offenders in the normative sample for the VRS, 54.5% of those people in this range reoffended violently within 5 years.[170]
Dr Yewers considers the most likely scenario for the respondent committing a violent offence is in the context of drug use, in that he may reoffend by breaking into a home at night to obtain money or goods to fund his drug use. It is unlikely that his offending will involve significant planning but he may well have a weapon, to assist in gaining entry and/or in the event of confrontation. He will likely be intoxicated, impairing his decision making and disinhibiting his behaviour. The victims may be strangers or known to him. He may inflict physical harm, which may be exacerbated by the use of a weapon and psychological harm may also result.[171]
The most likely scenario for a sexual offence is also in the context of the respondent being intoxicated with amphetamine and experiencing increased sexual drive and sex seeking behaviours. His conduct is likely to be impulsive and reckless, and neglect the wellbeing of others. The sexual offence may be opportunistic or target a person the respondent has met but does not know well. His behaviour is most likely to involve kissing, touching genitalia and breasts and seeking further sexual interaction. There is a prospect of injury by rough handling and psychological harm arising out of such an assault. His conduct may escalate to penetration or unintended injury as a result of the use of a weapon.[172]
Dr Yewers was of the opinion that the respondent is at significant risk of both violent and sexual reoffence. While the majority of his previous offending is not 'serious' within the meaning of the HRSO Act, his conduct in 2011 and 2013 marked an escalation due to its flagrance and brazenness.[173] Further, the respondent continues to present as impulsive, dysregulated and volatile, including during his assessment. For that reason, she assessed the likelihood of the respondent committing a serious offence in the future as 'foreseeable,'[174] which she later clarified to mean a moderate risk - 'possible, but not preordained,' saying:

He is most likely to commit an offence that is below the threshold of a 'serious' offence, however the recent escalation in his offending, combined with the continued presence of longstanding risk factors, particularly drug use and weapon use, indicate that a 'serious' offence is a potential future outcome for Mr Slater.[175]

The respondent has made limited treatment gains and has not undertaken treatment in key criminogenic areas. He has historically performed poorly when supervised in the community and his risk management plan is inadequate. In Dr Yewers' view, the respondent will be challenging to manage in the community and will have difficulty complying with the conditions. However, if a supervision order were to be imposed, she recommended it be for a term of 5 years.[176]

Report of Dr Tara Yewers, Counselling Psychologist, dated 19 November 2022

The appellant's numerous contraventions resulted in a lengthy delay in the listing of the restriction hearing. As a result, Dr Yewers provided an updated report.
The respondent reported to Dr Yewers that the offending on 27 February 2022 was committed while he was under the influence of methylamphetamine which he believed was mixed with something else, which resulted in him suffering persecutory delusions.[177]
Dr Yewers reported that the respondent claimed to have abstained from drugs during his time in custody, which seems to be borne out by his urinalysis results. His strategy, he said, was that he just does not think about it and he has remained 'strong' and refused offers in custody.[178] Dr Yewers acknowledged that the respondent had completed a three week drug and alcohol course in custody, which was positive, but said he needs more intensive treatment for his substance abuse issues.[179]
Impulsivity and lack of consequential thinking are two issues that have made it difficult for the respondent to comply with the terms of the interim supervision order. Importantly, the respondent acknowledged that these are areas he needs help with.[180] He also expressed a willingness to undertake psychological treatment and residential drug rehabilitation.[181]
The respondent told Dr Yewers he intends to find employment should he be released into the community and keep busy with household chores. He nominated four of his siblings as prosocial supports in the community and noted that the interim supervision order conditions limiting his contact with family was difficult for him.[182]
The fact that the respondent has continued to engage with his CCO and appears receptive to working with her was regarded by Dr Yewers to be positive, as is the fact that he has engaged with services which offer reintegration and accommodation support.[183] However, her assessment of his risk remained unaltered from her initial report.[184]
Dr Yewers gave evidence which was consistent with her reports. She considered that the respondent appreciates that he needs support and assistance, but he may also be ambivalent about this. She regarded his proposed accommodation as unsuitable due to the ready availability of drugs at that place,[185] and reiterated that, in her view, the respondent will be very challenging to manage in the community.[186]
As to the restrictions on the respondent's contact with females and being in cars and residences where women are present, Dr Yewers expressed a lack of support, given the impact those restrictions have on the respondent and the limited relevance to his risk.[187] She also did not support conditions which compelled the taking of medication for depression, given its lack of connection to the respondent's risk.[188]

Any other medical, psychiatric, psychological or other assessment relating to the respondent - s 7(3)(b) HRSO Act

Community Supervision Assessment, reports of Shae Hazzard dated 8 February 2022 and 2 December 2022

Ms Hazzard referred to the respondent's reported difficulties understanding the conditions of his order, as a result of which they were explained in detail on a number of occasions. The respondent's conduct in relation to his associations in the community and locations he was attending raised concerns following his release on the interim supervision order. Of particular concern was his interaction with adult females in the community, contrary to the conditions of his order. While the respondent claimed the women to have all been family members or friends of his nephews, with whom he resided, this was not able to be confirmed. As at the date of the respondent's return to custody, attempts were being made to enable the respondent to have contact with identified female family members.[189]
The respondent did not have a mobile phone during the time he was in the community. He claimed he had never had one, did not know how to use one and felt that it would increase his risk of engaging with antisocial peers. However, this caused issues with contacting him and him being able to contact his supervisors freely.[190]
During his time on the interim supervision order, the respondent has participated in no programmatic intervention and his engagement with the Forensic Psychological Service was interrupted.[191] The respondent did self refer to the Next Step Drug and Alcohol Service in November 2021, but did not follow through with appointments.[192] He has since expressed a desire to re-engage. Initial discussions regarding the respondent participating in a residential rehabilitation program have been mixed, although the most recent indication is that the respondent is willing to do so.[193] Steps are being taken to facilitate his reception into a program straight from custody, although it is difficult to obtain any realistic assessment of how long that process will take.[194] In the interim, he has completed the three week alcohol and drug course in custody.
The respondent's accommodation prospects have fluctuated over time. At present, his sister is willing to accommodate the respondent on the basis that he seek his own accommodation. However, that residence is not regarded as suitable due to the other residents.[195]
Uniting WA have accepted the respondent into their program, but they do not have any accommodation available at this time, and the respondent is not high on the waiting list.[196] Further, and in any event, it is a condition of leasing premises the Uniting WA program that the tenant not have visitors, to keep the address confidential. As such, accommodation under this program is unlikely to be suitable for the respondent.[197] Other options under the National Rental Affordability Scheme and the Department of Communities are extremely limited.[198]
There is a possibility that the respondent may be able to source accommodation through Outcare, as part of the Aboriginal Throughcare Program. This provides support and services to manage transition from custody. The respondent has engaged with a case manager and, closer to the respondent's release date, accommodation availability will be reviewed.[199]
The respondent has reported that he would like to engage with an employment service on his release to participate in training courses.[200]
Ms Hazzard has set out proposed conditions if a Supervision Order were to be imposed. Neither expert regards a diary condition as practical for the respondent, but they do agree that requirements that he report his associations and make his devices available for inspection would be required in this regard.[201]

Proposed HRSO Management Plan, report of Joanne Collyer, Senior Counselling Psychologist, dated 8 February 2022

On the respondent's referral to the Forensic Psychological Intervention Team, it was observed that he had issues with substance use, dysfunctional relationships, willingness to use violence to get what he wants, lack of employment, unstable accommodation, and mental health issues.[202]
The Sex Offending Intensive Treatment Program and the Violence Prevention Program were considered most suitable for the respondent. These are, however, only available in custody.[203]
The respondent was initially suitable to participate in the Sex Offending Intensive Treatment Program and the Violent Offender Treatment Program in 2014. He was unwilling to participate in the former as it would have required him to move locations, and he did not wish to be away from his mother. He was unable to participate in the latter due to a recommendation he attend a program facilitated by two males, which arose from predatory behaviour exhibited by him.[204]
In evidence, Ms Collyer said that each of the programs are now available to the respondent in his present custodial setting. However, COVID‑19 outbreaks have significantly impacted and delayed them, so no guarantee could be given as to when the respondent would be able to participate.[205]

Previous Reports

Parole Assessment Report of Thomas Scannell, Community Corrections Officer, dated 21 August 2019

The respondent was not considered suitable for parole due to:
(a) being at an elevated risk of reoffending in a sexual manner;
(b) having no accommodation secured in the community; and
(c) having no other protective factors in place in the community.[206]
The History of Board Secretariat Decision Slips records that the respondent was denied parole due to his extensive criminal history including violence and sexual offending which suggests an elevated risk of reoffending, his poor prison conduct, inadequate release plan, lack of accommodation and unmet treatment needs.[207]

Pre-sentence report of Sindy Lea Clarke, Community Corrections Officer, dated 12 April 2006

The author noted that the respondent failed to show empathy towards the victim and attributed his behaviour to his use of illicit substances.[208]
The author was of the opinion that the respondent would continue to be at risk of reoffending if he did not engage in intensive and long‑term efforts to address his polysubstance use. It was his polysubstance use that was, according to the author, the central causal factor of not only his offending behaviour, but also of the violence he exhibited towards his family.[209]
The respondent was not assessed as being suitable for programmatic intervention in the community due to his poor history of compliance with previous community orders.[210]

Pre-sentence report of William Greble, Community Corrections Officer, dated 16 December 2003

The respondent claimed to have no recollection of the offence he committed, due to his level of intoxication on amphetamines.[211]
The author noted that while in prison, the respondent completed substance abuse programs in 1998 and 2000, and anger management programs in 1995 and 1998. The respondent told the author that due to the lapse of time between program completion and being released, he had forgotten what he learned by the time he was released into the community.[212]
The author was of the opinion that the respondent was a high risk of reoffending if he did not engage in a structured rehabilitation program. The respondent was not deemed suitable for community‑based supervision as he had outstanding treatment needs that were causative to his offending. The Parole Review Board also had welfare concerns for the respondent's ex‑partner and children should he be released.[213]

Report of Katie Swan, Senior Community Corrections Officer, dated 2 December 2013

This pre-sentence report was prepared for the purposes of the sentencing of the respondent for the index offences.
The respondent described relapsing to amphetamine use in the lead-up to the index offending as a result of ready access to the substance. He claimed his relapse was triggered by his low mood and lack of contact with his children.[214]
The respondent attributed his offending history to his abuse of substances. He acknowledged the victims would have been 'scared' by what he did.[215]
In expressing the opinion that the respondent presented an elevated risk of reoffending in a sexual manner, Ms Swan pointed to the following factors:
(a) the respondent's highly concerning pattern of sexual behaviours remained unaddressed;
(b) his sexual offending is not limited to opportunistic incidents and is influenced by his entrenched illicit substance use;
(c) the respondent sexually offended against a female prison officer whilst incarcerated;
(d) he reoffended in a similar way on 1 September 2013, shortly after completing a term of imprisonment; and
(e) he generally lacked motivation to address his issues.[216]
Ms Swan recommend the respondent engage in intensive individual treatment, including psychological counselling.[217]

Report of Mary-Anne Martin, Forensic & Clinical Psychologist, dated 26 February 2014

This report was also prepared for the purposes of the respondent's sentencing for the index offending.
The respondent presented as sad, helpless and unable to take responsibility for his own actions.[218]
As with Ms Swan, the respondent claimed he did not remember committing the offences. He attributed this to his illicit substance use.[219]
Ms Martin observed that the respondent does not have adaptive coping strategies to enable him to deal with his grief regarding his family breakdown, and he does not appear to have addressed this in previous programs.[220]
The respondent completed the Millon Clinical Multiaxial Inventory ‑ III (MCMI‑III). Ms Martin exercised caution in using the test in relation to members of the Aboriginal population, as it is not designed or normed for them, but regarded it as useful to provide qualitative information to support impressions.[221]
The respondent's test results were consistent with him suffering long term depression. His responses demonstrated he experienced, among other things, chronic sadness, emptiness, pessimism, hopelessness, despair, and loss of interest and pleasure.[222]
As Ms Martin discussed the respondent's previous sexual offending with him, the respondent claimed to not remember any of them.[223]
In relation to the index offences, the respondent appeared ashamed of what he had done and did express empathy for the victim.[224] However, the respondent did not demonstrate much insight into his offending overall.[225]
Ms Martin formed the view that the pattern of the respondent's offending fits with the compensatory rapist typology; such offenders commit sex offences to compensate for underlying feelings of inadequacy, where the aim of the assault is to control the woman, but the offender wants to be considered a good lover and will often kiss the victim and may perform cunnilingus on them. Offences are usually committed in the early hours of the morning when the victims are asleep in their homes. These offenders tend to use instrumental violence to gain compliance and overpower the victim, but are unlikely to intentionally hurt the victim.[226]
Ms Martin was of the opinion the respondent needed to engage in a sex offender program, drug and alcohol treatment, and psychological counselling. Ms Martin noted that the respondent had never sought help for himself.[227]
Ms Martin reported that the respondent complained the programs available in prison are too short and 'go in one ear and out the other'. Ms Martin suggested that it is instead that the respondent was not motivated to engage in the first place, given that he had failed to complete the Pathways Program, which is one of the longer programs.[228]

Propensity to commit serious offences in the future - s 7(3)(c) HRSO Act

I am required to consider whether the respondent has a propensity, being an inclination or tendency,[229] to commit serious offences in the future. In my view, the prior criminal history of the respondent, and the opinions of Dr Yewers and Dr Wojnarowska, establish to a high standard that the respondent does have a propensity to commit serious offences in the future. In particular, the propensity of the respondent is to commit a serious offence of a sexual nature. While he also has, in my view, a tendency to engage in violent offending, it is not as obvious that that tendency is to commit serious offending within the meaning of the HRSO Act.

Whether or not there is any pattern of offending behaviour by the offender - s 7(3)(d) HRSO Act

The respondent's sexual offending has been committed against victims between the ages of 11 and 81. However, his pattern of offending is relatively consistent, involving him entering the property, house or room of the victim, and taking advantage of their state of sleep or other vulnerability to sexually touch them. Resistance is met with coercion and physical force, and more recent offending has involved the respondent being armed.

Any efforts by the respondent to address the cause or causes of the offending behaviour, including whether the respondent has participated in any rehabilitation program - s 7(3)(e) HRSO Act

Although the respondent has demonstrated negative views towards prison programs,[230] the respondent has undertaken the following rehabilitation programs during his periods in custody:

Noongar Alcohol & Substance Abuse Service Alcohol and Drug Awareness Program

The completion report of Ms Nancy Hampton, dated 30 April 2004, confirms that the respondent attended all 12 sessions. He was respected by participants as the 'Elder' of the group and respected by the facilitator for his contribution.[231]

Controlling Anger and Learning to Manage it [CALM] Program

This 48-hour program aims to teach participants about anger and aggression and skills to enable them to manage these emotions.[232]
The respondent attended all 24 sessions, completing the program on 16 June 2005. He had a high level of motivation to participate. He was always polite to fellow group members and facilitators, and was enthusiastic, open and forthright in discussions.[233]
The author stated that the respondent:
(a) demonstrated improved understanding of the arousal curve and how it relates to behaviour;
(b) struggled to recognise the link between his learned behaviours and thinking patterns, although later in the program he seemed to show some understanding;
(c) showed a good understanding of interpersonal and communication skills, had the ability to identify how these skills could be effectively used and even applied them in the prison environment;
(d) understood how to apply anger reducing techniques to certain situations and stated he was using meditation and relaxation techniques outside of the program; and
(e) identified high-risk situations but highly simplified his relapse prevention plans, stating if he 'moved away from the situation it wouldn't exist.'[234]

Cognitive Brief Intervention Program

The respondent attended all eight sessions of this program. In the report dated 8 March 2010, the respondent was said to have been punctual, respectful and engaged throughout. He was able to provide examples of poor self-control, identify potential solutions and readily acknowledged the contribution of alcohol and drugs on his offending.[235]
On this occasion, the respondent was reported to have provided a well thought out relapse prevention plan.[236]

Think First Program

The respondent attended all 30 sessions of this program, with a completion date of 22 December 2010.[237] He was described as an attentive and active participant, who took on a mentoring and supportive role to a fellow group member.[238]
The respondent identified his main areas of concern as being unemployment, alcohol abuse, drug abuse and social relationships.[239]
At the conclusion of the program, the respondent was more aware of the link between his alcohol consumption and offending behaviour. The respondent said he learned to consider potential consequences before making a decision. He was assessed as having made gains in a number of problem solving and self‑management areas.[240]

Violent Offender Treatment Program

Despite being assessed as needing to engage with this program, the respondent signed a waiver on 26 September 2011, declining to participate. The respondent said his reasons for doing so were personal and he was not interested in getting parole.[241]

Pathways Program

The non-completion report dated 13 July 2012 notes that the respondent attended 17 sessions, or 34 out of 100 hours, before being removed due to using 'stand over tactics' towards another prisoner to obtain drugs and also because the respondent had been placed in close supervision after allegedly secreting medication.[242]
For the period of time the respondent did attend, he was regarded as being an active and contributing member. However, he was also distracted and agitated at times and distracted others.[243] Although the respondent openly discussed his issues with alcohol and his relationship with his former partner, he sometimes ruminated on it and appeared to blame his former partner for his prison sentence.[244]
The author considered that the respondent's outstanding treatment needs included alcohol and violence issues, and needing to accept responsibility for his actions without blaming the victim.[245]

Think First Program

The respondent completed this program again on 15 October 2015. He used his experiences to guide younger group members, often leading discussions and being the spokesperson for the group. Importantly, he appeared able to recognise problems within himself, acknowledging that his drug and alcohol abuse was the root cause of many his problems.[246]
The respondent scored himself highly in the problem areas of unemployment, alcohol, drug abuse and social relationships,[247] the same areas he had identified in December 2010.[248]
The respondent demonstrated an understanding of strategies to problem solve and resolve conflict, as well as skills to control anger. He acknowledged he tended to attribute blame to others for his behaviour.[249]
On completion, the respondent appeared to have made gains across most areas and identified that he had learned to listen more and to respect other people's opinions.[250]

Pathways Program

The respondent completed all 45 sessions of this program on 15 November 2017.[251]
Factors that maintain the respondent's offending behaviour include his lack of contact with prosocial family members, prolonged contact with antisocial family members and lengthy periods of incarceration.[252]
The authors remarked that the respondent appears to have few, if any, protective factors in place. There were concerns about the respondent's ability to resist illicit substance use in the community due to occasional comments he had made about his desire for alcohol and methylamphetamine.[253]
In the beginning, the respondent was an active and engaged participant, but over time he appeared to be disengaged and distracted. The respondent struggled to develop steps and strategies to overcome or moderate problems he had identified. He also struggled to challenge negative thoughts or develop strategies to abstain from illicit drugs.[254]
The author made the following remarks:

He reported that he grew up in a family who sold methylamphetamine and that he felt he had no chance to remove himself as 'family was all he had'. He added that the drug-using cycle was a way of life for him. Mr Slater named his most problematic thought as 'I need drugs to help me to do things and to forget about things'.

...

While working on an exercise on how he would stay away from alcohol and illicit substance use, Mr Slater tried to envision a trip to the nearest town without meeting up with family members who sold illicit substances, and failed. He noted that he doubted his ability to abstain from illicit substance use and alcohol abuse and that he felt powerless to resist should a family member encourage him in antisocial behaviour.[255]

However, despite this, the respondent was able to envision himself engaging in work and enjoyable activities, such as making and maintaining a vegetable garden at the family farm. He also noted his Christian faith as source of support.[256]
During decision-making and planning exercises, the respondent struggled to apply the concepts learned to his own issues. However, in group exercises the respondent was observed to be an assertive leader. The facilitators considered he may have difficulty in planning in an abstract way but can manage practical tasks and responds to affirmation.[257]
The respondent was considered to have outstanding treatment needs in the following areas:
(a) insight into alcohol and drug use;
(b) forming strategies to resist drug and alcohol abuse and strengthening motivation to remain abstinent; and
(c) emotional management and the development of effective coping strategies that do not involve illicit substance use.[258]
The facilitators also observed that the respondent demonstrated greater victim empathy and expressed remorse for what he had done to his previous victims.[259]
It was recommended the respondent engage with a culturally appropriate drug and alcohol agency.[260]

Sex Offending Intensive Program

A treatment program participation waiver signed by the respondent on 31 August 2020 indicates the respondent declined to participate in this program because he wanted to stay at Acacia Prison in the Perth metropolitan area as his mother was very unwell.[261] In March 2021, the respondent confirmed this remained his position.[262]

Whether or not the offender's participation in any rehabilitation program has had a positive effect on the offender - s 7(3)(f) HRSO Act

In 2014, Ms Martin reported that the respondent had very negative views about prison programs and said he had never learned anything of value from them. She considered he would be very unlikely to willingly complete the programs he needs. She considers he needs treatment in the community but once in the community he quickly relapses into substance abuse which results in him being unmotivated and unlikely to attend programs. In the absence of the incentive of gaining parole, he lacked motivation to engage in programs.[263]
When the respondent spoke with Dr Yewers, he said that the programs he had participated in while in custody had not been overly helpful because they were not relevant. He did, however, comment that he had learned to control himself and walk away.[264]

The risk that, if the offender were not subject to a restriction order, the offender would commit a serious offence - s 7(3)(h) HRSO Act

As outlined above, Dr Wojnarowska was of the view that the respondent is at high risk of committing a serious offence, if not subject to a restriction order. Dr Yewers was of the view that the respondent presents with a high risk of both violent and sexual recidivism, and a moderate risk of committing a serious offence in the future. In my view, those opinions have been formed on the basis of cogent and acceptable evidence, and are themselves cogent and acceptable.
I have had regard to the risk scenarios set out by both experts. In my view, and as conceded by the applicant, the real risk is that the respondent will commit a serious offence of a sexual nature. In that regard, while previous offending has not often reached the level of 'serious' offending within the meaning of the HRSO Act, the respondent's use of weapons, the manner in which he confronts his victims, and the escalation in his conduct over time, evidenced by the index offending, makes the risk of the respondent committing a serious offence of a sexual nature, in my view, at least moderate if not subject to restriction.
While violent offending is also likely, it is most likely to be in a similar manner to his previous offending, which does not reach the threshold of being 'serious' offending under the HRSO Act.[265]

The need to protect members of the community from that risk - s 7(3)(i) HRSO Act

In this respect, I have regard to the victims of the respondent's sexual offences and the circumstances of the offending. The offender has, in the past, invaded the room or house in which his victim was sleeping and sexually touched them. He threatened the child of one with a tomahawk, and the victim of the index offence with a knife at her throat. He has offended against young girls, and an 81‑year‑old woman on her own property. He has engaged in brazen and opportunistic indecent assaults, even in custody.
In my view, there is a significant need to protect the community against the risk that the respondent will commit a serious offence in any of these circumstances, given the considerable capacity for serious physical and psychological harm were such an offence to be committed.

Is the respondent a high risk serious offender? Is the risk that the respondent will commit a serious offence unacceptable?

A risk that is not high may nonetheless be unacceptable. The question is whether, having regard to the likelihood of the respondent committing a serious offence, and the nature of the offence likely to be committed, the risk is so unacceptable that, notwithstanding the fact that the respondent has already been punished for his offending, it is necessary for the protection of the community that the respondent be subject to further control or detention.
In my view, the risk in this case is unacceptable. As set out above, the respondent is at least a moderate risk of committing a serious offence of a violent, sexual nature. As the victim of the index offending made clear in her victim impact statement,[266] the impact of such offending can be devastating and long lasting.
While the consequences on the respondent of such a finding are significant, they cannot, in this case, take precedence over the nature of the risk he poses to the community and the extent of that risk.

Is a restriction order necessary to protect the community against the unacceptable risk?

A restriction order is required to protect the community against the risk that I have identified. There is no other means by which the community can be so protected in this case.

Finding - the respondent is a high risk serious offender

As a result of those findings, I am satisfied, to a high degree of probability, on the basis of cogent and acceptable evidence, that the respondent is a high risk serious offender.

Continuing Detention Order or Supervision Order?

In deciding whether to make a Continuing Detention Order or a Supervision Order, the paramount consideration is the need to ensure adequate protection of the community.[267]
The experts both acknowledge that the respondent will have significant challenges in complying with a Supervision Order, and that the authorities will have significant challenges in managing him.
While the respondent has many criminogenic factors which require addressing, the most fundamental is his substance abuse. In the time he was subject to the Interim Supervision Order, the respondent failed to take any real steps towards dealing with his substance misuse issues, or, indeed, engage in any other programmatic intervention.
It is telling that despite this, during the time he was on the interim supervision order, the respondent did not commit any offence of a violent or sexual nature. While not minimising the seriousness of the offence for which he is presently imprisoned, the Interim Supervision Order achieved its object: the protection of the community from serious offending on the part of the respondent, and further, from any violent offending.
I acknowledge that the respondent was not in the community for a significant period of time, due to the number of contravention offences he committed. However, contrary to previous occasions, the respondent is now willing to undertake a residential rehabilitation course. Very importantly, he has abstained from drug use in custody since at least March 2022. That is the longest period the respondent appears ever to have been drug free. If the respondent can remain so, he has a much greater prospect of also remaining offence free.
Accordingly, in my view, a supervision order is capable of providing the appropriate level of protection of the community which is required.

Has the respondent established, on the balance of probabilities, that he will substantially comply with the standard conditions of a Supervision Order?

The finding that a supervision order is capable of adequately protecting the community is not sufficient; before an offender can be released on a supervision order, the court must be satisfied, on the balance of probabilities, that the offender will substantially comply with the standard conditions of the supervision order (as set out in s 30(2) of the HRSO Act).[268]
The respondent declined to give or adduce evidence at the hearing of this matter. Accordingly, I must look to the evidence adduced in the State's case to determine whether I am so satisfied.
The most wide-ranging of the standard conditions is the requirement that the offender comply with any reasonable direction of a CCO. It is that condition which the offender breached on six occasions during his interim supervision order, by disobeying written lawful instructions relating to his curfew (twice), his electronic monitoring equipment (twice), an exclusion zone (once) and failing to report after visiting his mother (once). His failures to comply with urinalysis requirements are also of significant concern in this regard. I also consider that the offence of removing an electronic monitoring device is, in effect, a breach of the standard condition to be subject to electronic monitoring.
The respondent continues to minimise the seriousness of his past conduct, and has a simplistic view of the causes of that conduct. Further, his proposed accommodation poses a very significant challenge to the prospects of the respondent abstaining from illicit substances, given the fact that people who use and supply such substances either reside at the property from time to time, or at least regularly visit.
However, the experts report that his most recent custodial term appears to have resulted in the respondent finally developing some insight not only into the fact that his substance misuse is a factor he needs to address to remain offence free, but that he needs significant assistance in order to address it including, if possible, residential rehabilitation. He has expressed a willingness to engage with agencies which will also address other treatment needs, has indicated a desire to seek out employment opportunities, and has hope of obtaining suitable accommodation in the near future.
While not overstating its significance, the fact that the respondent has remained drug free in custody since March 2022 is also an important and tangible indicator of his change in motivation.
None of those factors guarantee that the respondent will comply with the standard conditions of a supervision order. However, they do demonstrate a considerable alteration in his attitude both towards accepting his own risk, and his willingness to address the factors which give rise to it.
Additionally, amendment of some of the conditions of the supervision order, particularly those related to associations, is likely to prevent the respondent being as overwhelmed by the burden of the order as he seems to have been in the past, while maintaining an appropriate protection against the risk he poses.
On the basis of all of these matters, I am satisfied on the balance of probabilities that the respondent will substantially comply with the standard conditions of a supervision order; that is, he:

... will comply with the standard conditions in a manner and to an extent that is consistent with and will enable the attainment of the general object of the supervision order and the legislation, namely the adequate protection of the community by management and mitigation of the risk that the respondent will commit a serious ... offence.[269]

Contravention Proceedings

At the restriction order hearing, the State submitted that the contravention proceedings were maintained in circumstances in which the respondent might complete the sentence he is presently serving before judgment was delivered in the restriction order hearing and, if that occurred, the respondent would otherwise be automatically entitled to be released on the interim supervision order presently in place.
As judgment is being delivered prior to the respondent's release, the need to separately deal with the contravention proceedings falls away. However, the contraventions have been taken into account in determining whether a continuing detention order or supervision order is appropriate in this case, whether the respondent will substantially comply with the standard orders of a supervision order, and the conditions which should be imposed.

Conclusion

I am satisfied, to a high degree of probability, that it is necessary to make a restriction order in relation to the respondent to ensure adequate protection of the community against an unacceptable risk that he will commit a serious offence. Accordingly, I am satisfied that the respondent is a high risk serious offender within the meaning of the HRSO Act.
I am satisfied that a supervision order is sufficient to adequately protect the community against the risk identified, and that a detention order is not necessary to do so.
I am also satisfied that the respondent has established, on the balance of probabilities, that he will substantially comply with the standard conditions of a supervision order.
In my view, the appropriate conditions of the order are as set out in Schedule A. The term of the order is 5 years. Subject to hearing from the parties, that order will commence on 1 March 2023.

SCHEDULE A

IN THE SUPREME COURT OF WESTERN AUSTRALIA

SO 7 of 2021

IN THE MATTER of the High Risk Serious Offenders Act 2020

THE STATE OF WESTERN AUSTRALIA Applicant

-and-

KEITH RONALD SLATER Respondent

_________________________________________________________________________

SUPERVISION ORDER MADE BY THE HON JUSTICE FORRESTER
ON 8 FEBRUARY 2023

_________________________________________________________________________

Pursuant to section 48(1)(b) of the High Risk Serious Offenders Act 2020 (WA), the Court, having found that the Respondent is a high risk serious offender within the meaning of section 7(1) of the High Risk Serious Offenders Act 2020 (WA), makes a supervision order in relation to the Respondent, for a period of 5 years from 1 March 2023, not being a date not earlier than 21 days from the date this Order is made, on the following conditions:

You, KEITH RONALD SLATER, must:

STANDARD CONDITIONS REQUIRED BY THE HRSO ACT

Report to a Community Corrections Officer at the East Perth Adult Community Corrections Centre, 30 Moore Street East Perth Western Australia within 48 hours of the order being issued and advise the officer of your current name and address;

Report to and receive visits from, a Community Corrections Officer as directed by the court;

Notify a Community Corrections Officer of every change of your place of residence, or place of employment at least 2 business days before the change happens;
Be under the supervision of a Community Corrections Officer and comply with any reasonable direction of the officer (including a direction for the purposes of section 31 or 32);

Not leave, or stay out of, the State of Western Australia without the permission of a Community Corrections Officer;

Not commit a serious offence during the period of the Order;

Be subject to electronic monitoring under section 31;

ADDITIONAL CONDITIONS

Residence

Take up residence at [address redacted] and spend each night at that address or at a different address only if such different address is approved in advance by a Community Corrections Officer (CCO) assigned to you;

Reporting to a CCO and supervision by a CCO

Report to a CCO at your approved release address within normal business hours on the day of release from custody under this order;

Be under the supervision of a CCO and comply with the lawful orders and directions of a CCO;

Report to, and receive visits from, a CCO at times and at places as directed by the CCO, such arrangements having regard to any employment commitments of you;

Not commence or change paid or unpaid employment, education, training or volunteer work without the prior approval of the CCO;

Attendance at programs or treatment

Consult and engage with any medical practitioner, psychiatrist, psychologist, counsellor, mentor, support service and/or support person nominated by a CCO, as directed by a CCO;

Permit any medical practitioner, psychologist, psychiatrist, counsellor, mentor, support service and/or support person to disclose details of medical treatment and opinions relating to your level of risk of re-offending and compliance with treatment to the Department of Justice;

Undertake any medication regime only in accordance with a medical practitioner's or psychiatrist's supervision, and to comply with all testing to monitor your compliance with that treatment as directed by a CCO;

Comply with the requirements of all programs designed to address your offending behaviour and/or risk of serious re-offending, as directed by a CCO;

Reporting to WA Police

Report to the Officer-in-Charge of the Serious Offender Management Squad at Hatch Building 144 Stirling Street, Perth, WA, 6000 within 48 hours of your release from custody, and thereafter report to and receive visits from Police at times and at locations as directed by the Officer-in-Charge of the Serious Offender Management Squad or his/her delegate;

If requested, permit Police Officers to enter and search your residence and/or vehicle and search your person for the purpose of monitoring your compliance with your obligations under this Order and allow the seizure of any such items that the Police Officer believes to contravene the conditions of the Order;

Remain at your premises and/or vehicle when Police Officers conduct a search under the High Risk Serious Offenders Act 2020;

When requested, advise Police of the names of all of your internet service providers, all mobile or landline telephone services used by you and all internet user names or identities used by you;

Disclosure/Exchange of Information

Agree to the exchange of information between persons and agencies involved in the implementation and supervision of this order, including confidential information;

Allow the CCO, WA Police, or other person or agencies approved by the CCO, to interview any associates or potential associates and, where appropriate, to disclose to them confidential information including your offence history;

Restrictions on contact with Victims

Have no contact, directly or indirectly, with the victims of your current offending, unless such contact is conducted in accordance with agreements made through, or approved by, the Victim-Offender Mediation Unit of the Department of Justice;

Unless contact with victims is permitted pursuant to the previous condition, you must immediately physically withdraw from any situation or immediate location in which contact is made with any victim of your offending (including being in the immediate presence of any victim), without engaging in conversation with any victim whether by word or gesture, and must avert your gaze from such victim at all times;

Criminal conduct

Not commit any other criminal offence where the maximum penalty for which includes imprisonment, and which involves either sexual activity, being unlawfully in residential premises, violence, threats of violence, or the possession of weapons or offensive instruments;

Not possess, consume or use any prohibited drugs, plants or other substances to which the Misuse of Drugs Act 1981 applies, including, but not limited to, cannabis, unless the drug has been prescribed for you by a person duly authorised under the Medicines and Poisons Act 2014 and your use is in accordance with the instructions of the provider;

Curfew

Be subject to a curfew, pursuant to section 32 of the High Risk Serious Offenders Act 2020, such that you are to remain at and not leave your approved address as directed by a CCO from time to time;

When subject to a curfew under this order, present yourself for inspection at the front door or front yard of your approved address, or speak on the telephone, to any CCO or Police Officer or their agent monitoring your compliance with the curfew;

When subject to a curfew under this order, you must ensure that all those people present in the residence, who may answer the telephone or door, are aware as to your obligations and request their assistance to comply with your obligations by alerting you to such attempts to contact you by persons monitoring your compliance with the curfew;

Prevention of high-risk situations

Not be alone with any female at any residential address (with the exception of those residing at your own residential address) unless authorised in advance by a CCO;

With the exception of public transport, not to be alone in or on any vehicle with any female (whether that vehicle is under your control or not), unless the identity of such person is approved in advance by a CCO;

Not associate with any person known by you to have committed a sexual offence, unless such association is authorised in advance by the CCO;

Not to possess, or consume, or purchase, or use alcohol;

Attend for, and submit to, urinalysis or other testing for alcohol or prohibited drugs as directed by the CCO or by a Police Officer including accompanying such persons to an appropriate location for such testing to take place;

Provide a valid sample pursuant to condition 34;

Not go, or enter any part of your body into or remain at any licensed premises, with the exception of restaurants and cafes, unless permitted or required to do so for the following reasons:

a) For the purpose of averting or minimising a serious risk of death or injury to yourself or another person;

b) For a purpose, and for a duration, approved in advance by a CCO;

On the order of a CCO or Police Officer.

Not knowingly remain in any place where prohibited drugs are being consumed or, if such a place is your approved address, withdraw from that part of the residence in which any such consumption is taking place;

Report at your next contact with your CCO, the formation of any social association (being more than one contact with the intention for ongoing contact), domestic, romantic, sexual or otherwise intimate relationship by you with any person;

As directed by your CCO, make full disclosure regarding your past offending and the current order to anyone with whom you commence a social association (being more than three contacts with the intention for ongoing contact), domestic, romantic, sexual or otherwise intimate relationship, which disclosure can be confirmed by a CCO or a Police Officer;

Advise a CCO of every computer, telecommunication and/or electronic device capable of storing digital data or information, possessed or used by you, whether or not it is capable of being connected to the internet, and the location of that device;

Not allow any person other than a CCO or WA Police access to any computer, telecommunication and/or electronic device referred to in condition 40, without prior approval of the CCO;

Enable device locking or password access of your computer, telecommunication and/or electronic devices; not provide or disclose such passwords or other means used to access any computer, telecommunications and/or electronic device referred to in condition 40, or any online accounts, to any person other than a CCO or Police Officer;

Upon request, permit a CCO or WA Police at any location nominated by them, to access any computer, telecommunication and/or device capable of storing digital data, for the purpose of ascertaining your computer, telecommunication and/or electronic device related activities, and provide to the CCO or WA Police upon request any passwords or any other means used to unlock or access the device; Should any other entity be required to access a device for instances such as technical advice, approval must be sought in advance from a CCO; and

Not delete or otherwise remove and/or disguise, or cause or allow to be removed and/or disguised, any data including but not limited to calls, Short Message Service (SMS), search histories or logs capable of identifying your activities on that computer, telecommunication and/or electronic device, whether or not the

device is capable of connecting to the internet, without the approval in advance by a CCO or WA Police.

_______________________________

THE HON JUSTICE FORRESTER

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.

AS
Associate to the Honourable Justice Forrester

8 FEBRUARY 2023

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

[2] HRSO Act s 26.
[3] HRSO Act s 27.

[4] Reduced from 3 years' imprisonment for totality reasons: Book of Materials for the Restriction Order Hearing dated 1 December 2021 Volume 2, 463 (Book of Material Vol 2).

[5] HRSO Act s 5 and sch 1, sub div 3 items 20 and 35.
[6] HRSO Act s 3, s 5.
[7] Book of Materials for the Restriction Order Hearing Volume 1 - 5 (Book of Materials).

[8] Book of Materials Vol 2, 457.
[9] HRSO Act s 8.
[10] Garlett v The State of Western Australia [2022] HCA 30 [55] ‑ [56].

[11] HRSO Act s 3.
[12] HRSO Act s 3, s 26(1).
[13] HRSO Act s 3, s 27(1).
[14] HRSO Act s 7(2).
[15] HRSO Act s 7(4).
[16] The State of Western Australia v ZSJ [2020] WASC 330 [30] ‑ [31].
[17] The Director of Public Prosecutions (WA) v GTR (2008) WASCA 187 [28] ‑ [34].
[18] The Director of Public Prosecutions (WA) v GTR (2008) WASCA 187 [34].
[19] The State of Western Australia v Garlett [2021] WASC 387 [135].
[20] Garlett v The State of Western Australia [2022] HCA 30 [73].
[21] Director of Public Prosecutions v Williams [2007] WASCA 206 [63].
[22] HRSO Act s 48.
[23] The State of Western Australia v Garlett [2021] WASC 387 [143].
[24] The Director of Public Prosecutions v Decke [2009] WASC 312 [14].
[25] The Director of Public Prosecutions (WA) v DAL [No 2] [2016] WASC 212 [33].
[26] HRSO Act s 29.
[27] HRSO Act s 30(2)(f).
[28] The State of Western Australia v Hart [2019] WASC 4 [52].
[29] Book of Materials Vol 2, 439, 544, 603.
[30] Book of Materials Vol 2, 439, 544, 603, 714.
[31] Book of Materials Vol 3, 768 [21].
[32] Book of Materials Vol 2, 439, 444, 714; Book of Material Vol 3, 767 [21].
[33] Book of Materials Vol 3, 767 - 768 [21].
[34] Book of Materials Vol 3, 767 [21].
[35] Book of Materials Vol 2, 714.
[36] Book of Materials Vol 3, 768 [22].
[37] Book of Materials Vol 2, 439, 544.
[38] Book of Materials Vol 2, 603.
[39] Book of Materials Vol 3, 768 [24].
[40] Book of Materials Vol 3, 768 [23], 771 [37].
[41] Book of Materials Vol 2, 439; Book of Materials Vol 3, 770 [31].
[42] Book of Materials Vol 2, 439; Book of Materials Vol 3, 769 [27].
[43] Book of Materials Vol 2, 544.
[44] Book of Materials Vol 2, 604; Book of Material Vol 3, 769 [28].
[45] Book of Materials Vol 2, 439, 544, 603, 769 - 770 [29].
[46] Book of Materials Vol 2, 439 - 440.
[47] Book of Materials Vol 3, 769 - 770 [29].
[48] Book of Materials Vol 3, 770 [30].
[49] Book of Materials Vol 2, 444.
[50] Book of Materials Vol 3, 770 [32].
[51] Book of Materials Vol 3, 768 [23].
[52] Book of Materials Vol 3, 792 [118].
[53] Book of Materials Vol 2, 440; Book of Material Vol 3, 768 - 769 [25] ‑ [26].
[54] Book of Materials Vol 2, 440, 544, 604; Book of Material Vol 3, 769 [26].
[55] Book of Materials Vol 3, 786 [99].
[56] Book of Materials Vol 3, 769 [26].
[57] Book of Materials Vol 2, 440, 544.
[58] Book of Materials Vol 3, 769 [26].
[59] Book of Materials Vol 2, 444, 545, 604; Book of Material Vol 3, 771 [36].
[60] Book of Materials Vol 2, 444.
[61] Book of Materials Vol 2, 437.
[62] Book of Materials Vol 2, 440, 445; Book of Material Vol 3, 771 [37] ‑ [39].
[63] Book of Materials Vol 2, 714; Book of Materials Vol 3, 771 [40], 772 ‑ 773 [45].
[64] Book of Materials Vol 3, 773 [50].
[65] Book of Materials Vol 2, 440.
[66] Book of Materials Vol 3, 772 [41].
[67] Book of Materials Vol 2, 440; Book of Materials Vol 3, 771 [37] ‑ [38].
[68] Book of Materials Vol 1, 440 ‑ 441.
[69] Book of Materials Vol 2, 440; Book of Materials Vol 3, 774 [52].
[70] Book of Materials Vol 1, 180.
[71] Book of Materials Vol 1, 181; Book of Materials Vol 2, 440, 544 - 545, 604, 770 [30], 773 [47] ‑ [48].
[72] Book of Materials Vol 2, 445.
[73] Book of Materials Vol 5, 1122 [23].
[74] Book of Materials Vol 3, 773 [46].
[75] Book of Materials Vol 3, 773 [49] - [50]; Book of Materials Vol 5, 1122 [22].
[76] Book of Materials Vol 2, 440, 544.
[77] Book of Materials Vol 2, 444.
[78] Book of Materials Vol 2, 714.
[79] Book of Materials Vol 2, 682 - 683.
[80] Book of Materials Vol 1, 19.
[81] Book of Materials Vol 2, 688.
[82] Book of Materials Vol 1, 19; Book of Materials Vol 2, 688.
[83] Book of Materials Vol 2, 676 - 678.
[84] Book of Materials Vol 1, 16.
[85] Book of Materials Vol 2, 670 - 672, 677 - 678.
[86] Book of Materials Vol 1, 16.
[87] The State chronology alleges that the respondent touched the victim's stomach, but that allegation was 'strenuously denied' and the prosecution did not pursue it at sentencing: Book of Materials Volume 2, 518.
[88] Book of Materials Vol 2, 471 - 472.
[89] Book of Materials Vol 1, 14.
[90] Book of Materials Vol 2, 466 - 468.
[91] Book of Materials Vol 2, 527.
[92] Book of Materials Vol 2, 611 - 612.
[93] Book of Materials Vol 2, 618.
[94] Book of Materials Vol 2, 539A.
[95] Book of Materials Vol 1, 3.
[96] Book of Materials Vol 2, 541A - 541C.
[97] Book of Materials Vol 2, 3.
[98] Book of Materials Vol 2, 532B.
[99] Book of Materials Vol 2, 534 - 535.
[100] Book of Materials Vol 2, 528B - 530.
[101] Book of Materials Vol 1, 55 - 56.
[102] Book of Materials Vol 3, 782 [82].
[103] Book of Materials Vol 3, 787.
[104] Book of Materials Vol 1, 144 - 147; Book of Material Vol 3, 787.
[105] Book of Materials Vol 1, 36.
[106] Book of Materials Vol 1, 165.
[107] Book of Materials Vol 1, 173.
[108] Book of Materials Vol 5, 1130.
[109] Book of Materials Vol 4, 900 - 901.
[110] Book of Materials Vol 5, 1122 [26].
[111] Book of Materials Vol 5, 1131.
[112] Book of Materials Vol 3, 846.
[113] Book of Materials Vol 3, 846.
[114] Book of Materials Vol 1, 9 - 10.
[115] Book of Materials Vol 1, 2 - 3.
[116] Book of Materials Vol 1, 3.
[117] Book of Materials Vol 1, 165 - 166.
[118] The State of Western Australia v Slater [No 2] [2021] WASC 465 [31] ‑ [46].
[119] Book of Materials Vol 1, 196.
[120] Book of Materials Vol 5, 1134 ‑ 1135.
[121] Affidavit of Shae Hazzard affirmed 15 December 2021, 3.
[122] Book of Materials Vol 3, 790 [111].
[123] The State of Western Australia v Slater [No 2] [2021] WASC 465 [47] ‑ [55].
[124] Book of Materials Vol 5, 1135 ‑ 1136.
[125] Book of Materials Vol 5, 1138 ‑ 1140.
[126] Book of Materials Vol 5, 1130 ‑ 1131.
[127] Book of Materials Vol 3, 791 [115].
[128] Book of Materials Vol 3, 827 [71].
[129] Book of Materials Vol 3, 859.
[130] Book of Materials Vol 3, 859.
[131] Book of Materials Vol 3, 823 [50].
[132] Book of Materials Vol 3, 824 [53].
[133] Book of Materials Vol 3, 825 [64] ‑ [65].
[134] Book of Materials Vol 3, 826 [68] ‑ [69].
[135] Book of Materials Vol 3, 827 [73] ‑ [74].
[136] Book of Materials Vol 3, 827 - 828 [76], [80].
[137] Book of Materials Vol 3, 827 - 832 [77], [81] - [103].
[138] Book of Materials Vol 3, 828 [78] ‑ [79].
[139] Book of Materials Vol 3, 832 ‑ 834.
[140] Book of Materials Vol 3, 835 [127] ‑ [128].
[141] Book of Materials Vol 3, 834 [121] ‑ [122].
[142] Book of Materials Vol 3, 835 [123] ‑ [124].
[143] Book of Materials Vol 3, [128], [131].
[144] Book of Materials Vol 3, 835 [128] ‑ [132].
[145] Book of Materials Vol 3, 836 [133].
[146] ts 145.
[147] ts 148.
[148] ts 146.
[149] ts 151 ‑ 152.
[150] ts 148.
[151] Book of Materials Vol 3, 767 [19].
[152] Book of Materials Vol 3, 781 [75].
[153] Book of Materials Vol 3, 781 [76].
[154] Book of Materials Vol 3, 782 ‑ 783 [78] ‑ [84].
[155] Book of Materials Vol 3, 772 [41].
[156] Book of Materials Vol 3, 772 [42] ‑ [44].
[157] Book of Materials Vol 3, 772 ‑ 773 [45].
[158] Book of Materials Vol 3, 786 [98].
[159] Book of Materials Vol 3, 793 [122].
[160] Book of Materials Vol 3, 773 [46].
[161] Book of Materials Vol 3, 792 [117].
[162] Book of Materials Vol 3, 792 [120].
[163] Book of Materials Vol 3, 796 [133].
[164] Book of Materials Vol 3, 796 [134].
[165] Book of Materials Vol 3, 797 [138].
[166] Book of Materials Vol 3, 798 [139].
[167] Book of Materials Vol 3, 799 ‑ 804.
[168] Book of Materials Vol 3, 8030 ‑ 804 [160].
[169] Book of Materials Vol 3, 804 [161] ‑ [162].
[170] Book of Materials Vol 3, 806 ‑ 810.
[171] Book of Materials Vol 3, 810 ‑ 811 [195].
[172] Book of Materials Vol 3, 811 [197] ‑ [198].
[173] The 2009 offending could be included in this category also.
[174] Book of Materials Vol 3, 812 [200].
[175] Book of Materials Vol 5, 1117 [3].
[176] Book of Materials Vol 3, 811 [201].
[177] Book of Materials Vol 5, 1121 [18].
[178] Book of Materials Vol 5, 1122 [21].
[179] ts 170 - 171, 182.
[180] Book of Materials Vol 5, 1123 [31].
[181] Book of Materials Vol 5, 1123 [32].
[182] Book of Materials Vol 5, 1123 [33].
[183] Book of Materials Vol 5, 1124 [38].
[184] Book of Materials Vol 5, 1124 [39] ‑ [41].
[185] ts 162.
[186] ts 161.
[187] ts 158 - 159; Book of Materials Vol 5, 1147 ‑ 1148.
[188] ts 159.
[189] Book of Materials Vol 3, 847 ‑ 849.
[190] Book of Materials Vol 3, 849.
[191] Book of Materials Vol 5, 1129.
[192] Book of Materials Vol 3, 850.
[193] Book of Materials Vol 5, 1129 ‑ 1130.
[194] ts 181, 185 ‑ 186.
[195] Book of Materials Vol 5, 1140 ‑ 1141.
[196] Book of Materials Vol 5, 1141 ‑ 1142.
[197] ts 183.
[198] Book of Materials Vol 5, 1145 ‑ 1146.
[199] ts 183 ‑ 184.
[200] Book of Materials Vol 5, 1145.
[201] Book of Materials Vol 5, 1146 ‑ 1147.
[202] Book of Materials Vol 3, 762 [13].
[203] Book of Materials Vol 3, 762 [14].
[204] Book of Materials Vol 3, 763 [16].
[205] ts 179 ‑ 180.
[206] Book of Materials Vol 2, 730, 732, 734.
[207] Book of Materials Vol 1, 165.
[208] Book of Materials Vol 2, 542.
[209] Book of Materials Vol 2, 545.
[210] Book of Materials Vol 2, 545.
[211] Book of Materials Vol 2, 602.
[212] Book of Materials Vol 2, 604.
[213] Book of Materials Vol 2, 604 ‑ 605.
[214] Book of Materials Vol 2, 437 ‑ 438.
[215] Book of Materials Vol 2, 438.
[216] Book of Materials Vol 2, 441.
[217] Book of Materials Vol 2, 441.
[218] Book of Materials Vol 2, 444.
[219] Book of Materials Vol 2, 444.
[220] Book of Materials Vol 2, 444.
[221] Book of Materials Vol 2, 445.
[222] Book of Materials Vol 2, 445.
[223] Book of Materials Vol 2, 446.
[224] Book of Materials Vol 2, 446.
[225] Book of Materials Vol 2, 447.
[226] Book of Materials Vol 2, 447.
[227] Book of Materials Vol 2, 447.
[228] Book of Materials Vol 2, 445.
[229] The State of Western Australia v Bellamy [2013] WASC 467 [70].
[230] Book of Materials Vol 2, 447.
[231] Book of Materials Vol 2, 692.
[232] Book of Materials Vol 2, 693.
[233] Book of Materials Vol 2, 694 ‑ 695.
[234] Book of Materials Vol 2, 694 - 695.
[235] Book of Materials Vol 2, 696 - 697.
[236] Book of Materials Vol 2, 697.
[237] Book of Materials Vol 2, 698.
[238] Book of Materials Vol 2, 699.
[239] Book of Materials Vol 2, 699.
[240] Book of Materials Vol 2, 699 ‑ 701.
[241] Book of Materials Vol 2, 702.
[242] Book of Materials Vol 2, 704; see also Book of Materials Vol 2, 440, 445.
[243] Book of Materials Vol 2, 445, 703 ‑ 704.
[244] Book of Materials Vol 2, 703.
[245] Book of Materials Vol 2, 704.
[246] Book of Materials Vol 2, 706 ‑ 707.
[247] Book of Materials Vol 2, 707.
[248] Book of Materials Vol 2, 699.
[249] Book of Materials Vol 2, 708 ‑ 709.
[250] Book of Materials Vol 2, 710.
[251] Book of Materials Vol 2, 713.
[252] Book of Materials Vol 2, 715.
[253] Book of Materials Vol 2, 715.
[254] Book of Materials Vol 2, 715 ‑ 716.
[255] Book of Materials Vol 2, 716.
[256] Book of Materials Vol 2, 716.
[257] Book of Materials Vol 2, 717.
[258] Book of Materials Vol 2, 716 ‑ 717.
[259] Book of Materials Vol 2, 718.
[260] Book of Materials Vol 2, 716, 718.
[261] Book of Materials Vol 2, 736.
[262] Book of Materials Vol 1, 174.
[263] Book of Materials Vol 1, 447.
[264] Book of Materials Vol 3, 785 [96].
[265] Book of Materials Vol 5, 1124 [40].
[266] Book of Materials Vol 2, 433 ‑ 434.
[267] HRSO Act s 48(2).
[268] HRSO Act s 29.
[269] The State of Western Australia v Hart [2019] WASC 4 [52].

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