State of New South Wales v Sleeman

Supreme Court of NSW|2018-08-17|Before: Hulme J

Solicitors: Crown Solicitors Legal Aid NSW File Number(s): 2018/99813

Judgment

HIS HONOUR: This is an application by the State of New South Wales for an extended supervision order against Nathan Sleeman pursuant to the Crimes (High Risk Offenders) Act 2006 (NSW) ("the Act").
The relevant statutory provisions and information as to Mr Sleeman's background and history of offending may be found in my judgment of 1 May 2018 which led to the making of interim orders at the preliminary hearing of the matter: State of New South Wales v Sleeman (Preliminary) [2018] NSWSC 562 ("preliminary judgment"). That judgment should be read in conjunction with this because I intend to avoid repetition as far as possible.
Mr Sleeman had been released from gaol on 25 February 2018 and was subject to parole supervision until the total term of his sentence expired on 25 May 2018. From that time he was subject to the interim supervision order I made which has been extended a number of times but will expire on 24 August 2018.
Another order that was made on 1 May 2018 was to the effect that two experts were to examine Mr Sleeman and provide the Court with reports. As a result, there is a report by Ms Jenny Howell, forensic psychologist, dated 25 May 2018 and a report by Dr Andrew Ellis, forensic psychiatrist, dated 27 May 2018.

Submissions for the defendant

Mr Sleeman opposes the application and counsel has made the following submissions.
Using the statutory language, it was submitted that there is not a high degree of probability that Mr Sleeman poses an unacceptable risk of committing a serious sex offence if he is not kept under supervision under an extended supervision order.
It was contended that there has been a substantial passage of time since the only "serious sex offence" in Mr Sleeman's history was committed. This pointed to a lower risk of re-offending in a sexually violent manner. That offence was one of sexual intercourse with a child aged between 10 and 14, namely 13, and it occurred on 1 April 2003 when Mr Sleeman was aged 25. The details pertaining to that offence are summarised in the preliminary judgment at [28]-[34].
It was submitted that the evidence at its highest indicated that Mr Sleeman is most likely at risk of reoffending in a manner that did not meet the criteria for a "serious offence". (The type of "serious offence" with which this case is concerned would be a sexual offence against a child that is punishable by imprisonment for 7 years or more. Offences that Mr Sleeman has committed since the index offence in 2003 are not in that category.)
The subsequent offences comprised breaches by Mr Sleeman of a child protection prohibition order ("CPPO") pursuant to the Child Protection (Offenders Prohibition Orders) Act 2004 (NSW). That order is not due to expire until 20 August 2020. Counsel noted that the breaches were constituted by contact with younger people, not sexual offending. It was submitted: "This is significant. The purpose of a CPPO is to provide accountability of the offender and safeguard the public. Were the Court to decline to impose an ESO or ISO, the CPPO would still exist and afford some measure of protection. It is submitted that this CPPO does provide sufficient protection."
Counsel argued that evidence as to the following matters established that Mr Sleeman has shown a genuine desire to reform; he had taken steps to address his behavioural concerns himself; and he had not engaged in sexually violent behaviour in recent times: ● Overall, there has been only the one instance of a sexual assault (and two earlier indecent act offences). ● There have been no sexual offences since 2003. ● He has generally been of good behaviour in that he had an improved disciplinary record whilst in custody. ● He has maintained contact with his supervisors during a stringent period of supervision following his release earlier this year. He had complied with parole and ISO conditions and directions from his supervisors. ● There have been no further criminal charges.
Counsel emphasised the fact that the conditions of Mr Sleeman's parole and the interim supervision order had been onerous but he had been compliant. (I am not sure whether this is a matter favouring Mr Sleeman's opposition to the Court making the orders sought; it might indicate that making such orders can be effective in managing the risk of re-offending.)

Expert reports

Against the background of those submissions it is appropriate to turn to the expert evidence that is now available.

Report by Ms Jenny Howell, forensic psychologist

Ms Howell was provided with volumes of relevant documentary material in relation to the case and she held a "semi-structured interview" with Mr Sleeman for 2.5 hours on 14 May 2018. She described him as being cooperative but said he had an inconsistent ability to provide a detailed or responsive history.
Ms Howell's report includes a detailed summary of Mr Sleeman's background and his offending history. At the end of her review of his sexual offending history she said: "Mr Sleeman appears to have a long-standing and persistent pattern of grooming boys for the purposes of both social connectedness and sex. Restrictions to prevent this, such as the imposition of CPPO's, have resulted in him being breached. In discussion with Mr Sleeman he stated he has not 'intentionally' breached the CCPO's and was not seeking to have 'sexual' interactions with the boys although wished to form 'friendships' with them around a shared interest in video games. He argues he understands the 'difference' between sexual relationships and friendship relationships adding he is aware it is illegal to engage in sexual behaviour with children under the age of 18."
Ms Howell applied a number of methods of assessing Mr Sleeman's risk of committing a further sexual offence. Using the Static-99R tool, he was found to be at the "Well Above Average Risk Level (2016 Version) for being charged with, or convicted of, a further sexual offence". However, Ms Howell added, "Static-99R does not measure all relevant risk factors and Mr Sleeman's recidivism rate may be higher or lower than that indicated by the Static-99R based on factors not included in the risk instrument".
The Stable-2007 instrument was described as assisting in the identification of stable dynamic risk factors. Ms Howell explained: "Several dynamic risk factors have been found to be consistently related to sexual recidivism. These risk factors are relatively stable over time, although amenable to change through treatment intervention. These factors include intimacy deficits, social influences, distorted attitudes, general self-regulation and sexual self-regulation."
Mr Sleeman's score on Stable-2007 placed him in the "High Risk category relative to other sexual offenders".
The Risk of Sexual Violence Protocol (RSVP) was described as a psychological risk assessment using structured professional judgments which are centred on individuals rather than groups. Individuals are assessed against a list of 22 dynamic risk factors relating to 5 domains. Ms Howell discussed the results in detail, but briefly: "Sexual violence history": sexual violence was categorised as "chronic and persistent". "Psychological adjustment scale": problems with extreme minimisation, self-awareness, stress and coping. "Mental disorder scale": Mr Sleeman's scoring identified "sexual deviance". "Social adjustment scale": problems with intimate and non-intimate relationships and non-sexual criminality. "Manageability": problems with planning and treatment.
In relation to the identification of "sexual deviance" on the mental disorder scale, Ms Howell explained that Mr Sleeman scored on that scale because of his conviction for sexual offences involving children. She said that the link between sexual deviance and sexual violence "is strong, although indirect". She added, "It is clear, however, that sexual offending behaviour is due, at least in part, to sexual deviation and therefore increases the risk of reoffending".
In conclusion, Ms Howell said: "It is my view, based on my interview with Mr Sleeman together with his static and dynamic risk factors, that he has a Well Above Average Risk of engaging in sexual recidivism."
She described the likely scenario if there was to be further sexual offending. The likely victim would be a male under the age of 16 which was consistent with Mr Sleeman's history of psychological coercion or "grooming" behaviour. Victim selection it would primarily include children he met opportunistically in the community. Ms Howell added that if Mr Sleeman engaged in this type of behaviour, it was likely that any attempt on his part to conceal it would be basic and therefore easily detectable. Her report lists various warning signs and recommendations to assist in managing Mr Sleeman's risk of sexual offending within the community.

Report of Dr Andrew Ellis, forensic psychiatrist

Dr Ellis was also provided with relevant documentary material in relation to the case. On 15 May 2018 he held a clinical interview with Mr Sleeman for two hours and an interview with his mother for half an hour. As with Ms Howell's report, his report includes a summary of Ms Sleeman's background and history of offending.
Dr Ellis made the diagnoses of "paedophilia, attracted to males", "autism spectrum disorder" (Asperger's Syndrome) and "trichotillomania, or hair pulling disorder".
The diagnosis of paedophilia was explained: " …This may be an exclusive sexual interest, as he has only one relationship with a 17 year old male, and this was an atypical connection. This diagnosis is made on the basis of his self report of having erectile response to masturbating a six year old boy when he was a young teenager, the documented offences where he displays sexual behaviour with young boys and typical cognitions associated with paedophilic interest such as that children initiate sexual activity and a salient interest in children, unrelated to normative social activity adults have with children. He also displays typical "grooming" behaviours to gain cooperation of victims. His report of early hyper sexuality is consistent with the condition. Paraphilias are chronic relapsing conditions."
The relevance of Mr Sleeman's autism is discussed in the preliminary judgment (using the term Asperger's Syndrome). The condition of trichotillomania was described as a disorder that often accompanies neurodevelopmental conditions such as autism spectrum conditions. It does not appear to be of any added significance.
Dr Ellis used the Static-99R instrument and (unsurprisingly) arrived at the same result as Ms Howell: a score of Well Above Average Risk category. His discussion of Mr Sleeman's risk of committing a further serious sexual offence continued: "Clinical considerations in regard to risk of reoffending include deviant sexual arousal or paraphilia, developmental disorder and treatment setting. These can be applied to a structured professional judgment instrument to determine areas of propensity for future sexual aggression such as the RSVP. I have made reference to this tool in my evaluation. It does not place persons into risk categories, but identifies factors contributing to risk. Deviant sexual arousal is consistently identified as the most prominent risk factor for sexual reoffence. Mr Sleeman's offence history clearly indicates this pattern of arousal. His offences are typical of paedophilia. Offences, and other behaviour not charged began in his teenage years and has persisted in a chronic fashion. His victims are stereotyped to pre-pubescent or pubescent boys. Psychological coercion or grooming has been employed. He continues to minimise and deny offending, which is relevant as it has led to poor or partial cooperation in treatment and rehabilitation attempts. He shows poor self-awareness, and difficulties with stress and coping. He has impoverished relationships with others and is unemployed. He shows poor planning and previously has not cooperated with treatment and supervision. His attitudes to supervision remain poor. Anti-libidinal medication is the best treatment to address deviant arousal of any paraphilic pattern. Behavioural techniques may reduce deviant arousal. Antisocial personality orientation is another factor consistently identified with sexual reoffence. He is not diagnosed with antisocial personality disorder but does show poor interpersonal function related to autism spectrum disorder that has led to limited cooperation with rehabilitation. … A consideration of the type of possible sexual offence should be considered in an estimation of risk. In the case of Mr. Sleeman, given the pattern of sexual arousal, victims would likely be male children. Given the historical child sex offences the grooming of young vulnerable persons with offers of money or technology in order to secure sexual acts would be the likely activity. The psychological harm in terms of trust and identity to victims from this type of activity is foreseeable."
Dr Ellis concluded (p 14): "In considering actuarial, structured professional and clinical parameters in the absence of any treatment or supervision, Mr. Sleeman would fall into a group of persons with a risk for sexual offending that is statistically high in frequency, and greater than a theoretical average offender. Specific treatment and supervision would likely reduce the risk."

Evidence at the final hearing

The final hearing of the matter was held on 17 August 2018. Ms New of counsel continued to appear for the plaintiff. While Ms Hawkins of counsel had appeared for Mr Sleeman at the preliminary hearing and had prepared the written submissions for the final hearing, Mr O'Neill appeared in her place at the final hearing. I did not perceive any disadvantage accrued to Mr Sleeman from this change in counsel. I note also that Mr O'Neill is very experienced in these types of cases.
Ms Howell and Dr Ellis gave evidence concurrently. Also required for cross-examination was Ms Janelle Farroway, who is employed by Corrective Services New South Wales as a "High Risk Offender Applications and Operational Governance Officer of the Extended Supervision Order Team".

Evidence of Ms Howell and Dr Ellis

Mr O'Neill pursued the point made in the written submissions about the time that has elapsed since Mr Sleeman's last serious sex offence in 2003 but the opinions of the experts were largely unchanged. They were each asked, for example, about the incident at the Eastgardens shopping centre in 2016 (preliminary judgment at [52]ff). They both agreed that Mr Sleeman's conduct did not amount to sexual offending. However, Ms Howell saw it as "grooming behaviour which is a precursor to sexual offending behaviour" and said there were risk factors in relation to sexual offending pertaining to this incident. She also said: "Yes but Mr Sleeman's sexual interest lies with boys and boys under 18 and that is unlikely to change across his life span, and so those risk factors will always be risk factors for him."
Dr Ellis said the incident was a "marker of interest in young boys" and "of ongoing sexual attraction to young boys". It related "to known risk factors for sexual offending".
Dr Ellis agreed that there were some indications of changes in Mr Sleeman's attitude to sex offences; he did not think that they had continued to develop much beyond an assessment in 2009 and 2010. However, he would not confidently say that sexual arousal to children is no longer a concern.
Dr Ellis agreed that in his assessment of risk he gave weight to the fact that there had been no sexual offending since 2003. However, this was tempered by the fact that for some of the intervening period Mr Sleeman had been in custody or under supervision. He thought it was "not an overwhelming protective factor in that regard that it would overwhelm the previous risk and the current dynamic concerns".
Mr O'Neill referred Ms Howell to the incident involving Mr Sleeman being assaulted whilst in prison and subsequently stating that it had given him an awareness and understanding of the harm sexual assaults cause victims. With reference to that and the lack of commission of any sexual offence since his release from prison, Mr O'Neill asked why Mr Sleeman could not be accepted when he said that he would not re-offend. Ms Howell responded by referring to Mr Sleeman's static risk factors which, because of their historical nature, would not change. Secondly, she referred to Mr Sleeman's autism spectrum disorder which had the effect that he had difficulty in transferring his interests and he had a heightened impulsivity. He is a gregarious but lonely person who seeks company but in 40 years he had not been able to form a primary adult friendship.
This exchange led to the most significant aspect to emerge in the oral evidence. Ms Howell expressed concern that Mr Sleeman had not had good support around his autism spectrum disorder. He had never received appropriate treatment such as being referred to Aspect (Autism Spectrum Australia), a service provider for, inter alia, adults on the autism spectrum.
What needed to occur, according to Ms Howell, was for Mr Sleeman to receive the attention of two counsellors; one with an understanding of the manifestation of autism spectrum disorder as it pertains to him and the other dealing one-on-one with sex offending counselling. Moreover, she said that they would each need to work quite closely with each other. (This was assuming that a person with the capacity to deal with both issues could not be found.) Dr Ellis agreed.
A significant passage of evidence concerning Mr Sleeman's risk of further serious sexual offending was the following: "NEW: … if these connections with children were given the space to develop, that's where - am I correct for both of you - that there is the opinion of the high risk of sexual reoffending and serious sexual reoffending because of either the misinterpretation of that communication or his own lack of self-regulation of his impulses? WITNESS HOWELL: Yes, I would think so. WITNESS ELLIS: Yes, I'd agree. And under either circumstance, under the circumstance that he's initiated the contact with the children with an express intent for sexual activity with them or whether he's initiated the contact with the children with an initial intent of wanting companionship or wanting to share interests, either situation could lead to more serious offending."

Ms Farroway's evidence

Ms Farroway gave evidence about Mr Sleeman's performance under the interim supervision order that came into effect on 26 May 2018. He had been given written directions about certain behaviours and two formal written warnings about incidents in which there were breaches, albeit minor, of conditions of the order.
The procedures for formulating Mr Sleeman's weekly schedule of movements would be revised because experience had shown that insufficient time was being allowed for him to travel to certain places. (I take this to be an illustration of how flexibility in supervision will be necessary in order to assist Mr Sleeman to comply with his obligations.)
Ms Farroway also said that having heard the experts' evidence at the hearing she had come to the view that there needed to be a more holistic review of Mr Sleeman's counselling needs in relation to sex offending and his autism spectrum disorder. She considered that there needed to be a case conference between his current psychologist at Forensic Psychology Services, other treating professionals, his departmental supervising officer and the ESO management team to reconsider the entire approach.

Submissions

Mr O'Neill largely relied upon the written submissions previously prepared by Ms Hawkins. There the assessments of the experts were acknowledged but it was submitted that "while the risk of recidivism was assessed as 'well above average', 'medium/high' and 'high', these alone would not place Mr Sleeman in the 'unacceptable' class when one looks more closely at the rates of recidivism and the criminogenic needs analysis. Further, the Court is given no guidance as to which test may be most reliable. Therefore, a moderate risk may be the best risk assessment."
It was contended in the written submissions that the cumulative effect of the following factors would lead to a rejection of the notion that the risk of Mr Sleeman reoffending in a serious way is unacceptably high: ● Whilst there may be a risk of reoffending in some way, the Court needs to be satisfied that the risk would be of a serious nature which was unacceptably high which is not made out. ● Mr Sleeman's serious offending is historical; it occurred 15 years ago. ● A closer inspection of the actuarial analysis places Mr Sleeman as a moderate risk of reoffending sexually within five years. ● The frequency and seriousness of sexually related offending has been de-escalating with the passing years to a significant degree. ● Mr Sleeman has some stability in his home life now and this will reduce the risk of recidivism. ● There exist protective measures in the CPPO that will continue to apply until 2020. ● Mr Sleeman has sought assistance in relation to his issues through approaches to psychologists, thereby displaying insight.
Mr O'Neill submitted that the incidents in 2015-2017 should be accepted to have not involved any pursuit by Mr Sleeman of a desire for sexual contact with children. He sought to characterise the incident in which Mr Sleeman was assaulted in prison as the beginning of him having a greater understanding of the impact of what he had done in the past and acceptance of the need for change. He made reference to various points in the evidence where there were indications of Mr Sleeman wanting to address his sexual offending risk but at times being distressed that he was not receiving appropriate treatment. This was indicative of insight, as he had expressed it. The lack of further sexual offending for so many years was submitted to be consistent with it.
Mr O'Neill referred to the opinions of Dr Richard Parker (see the discussion in the preliminary judgment). He suggested that a critical approach should be taken to the assessment of those opinions similar to that taken by Lonergan J in State of New South Wales v Hampton [2018] NSWSC 360 at [39]-[46].
Mr O'Neill concluded by submitting that it had not been established that there is the high degree of probability that Mr Sleeman poses the unacceptable risk the plaintiff is required to establish.

Consideration

I do not consider it necessary to resolve the controversy about the assessment of Dr Parker as to opinions about criminogenic needs. The question whether the statutory test (s 5B(d)) is satisfied may be comfortably resolved on the basis of the evidence of Ms Howell and Dr Ellis. They each maintained their opinions as to the level of risk of Mr Sleeman committing a further serious offence (as defined in the Act) despite being well aware of the various factors relied upon in both the written and oral submissions of counsel.
True it is that there has been an extended period of time since there was a serious sex offence but in the unusual circumstances of this case that is not determinative. For many other offenders it would be indicative of a significant amelioration of the risk of reoffending. In Mr Sleeman's case, however, his conduct in recent years in relation to his interactions with children, even though no physical offence was committed, together with the attributes of his autism spectrum disorder (impulsivity and the like), indicate that there still exists a risk of a sexual offence being committed.
The nature of the offending if it were to occur would clearly amount to a serious offence as defined in that it would involve the sexual assault of a child.
This is not to say that there will always be this risk, or a risk at the current level. One would hope that the revised approach to providing counselling as discussed in the evidence of Ms Farroway will bring positive change. But the only conclusion for the moment is that there is a high degree of probability that Mr Sleeman poses an unacceptable risk of committing another serious offence if he is not supervised under an ESO.

Conditions of an ESO

The conditions that the plaintiff argues should be part of an ESO are set out in a Schedule to the Summons, a copy of which was part of the materials with which the court-appointed experts were briefed. Ms Howell made the observation at one point in her report (p 16) that "Mr Sleeman will struggle to comply with conditions" and that "an order with a small number of conditions would be easier for him to remember and with which he could comply". A little later, however, she wrote, "I have read the conditions in the Schedule to the Summons filed 29 March 2018. They are comprehensive and appropriate and address all aspects of concern".
Dr Ellis regarded the conditions described in the risk management report of Ms Savage, Community Corrections Officer, dated 16 January 2018 (Annexure C to affidavit of Mr C Butler, 29 March 2018) as appropriate. (I understand the conditions in the Schedule to the Summons are based upon those discussed in Ms Savage's report.)
The written submissions by previous counsel raised objections to a number of the proposed conditions. Mr O'Neill, who as I have said is very experienced in these types of cases, declined to maintain those submissions. In the circumstances I think that was realistic. The order will be subject to the conditions proposed.

Duration of an ESO

In her report, Ms Howell supported the plaintiff's application that the order be for a period of five years. Dr Ellis agreed, stating: "From a psychiatric perspective if an ESO is applied a period of five years is considered reasonable in order to improve function in the community, and refine the appraisal of risk. Paraphilias are chronic, relapsing conditions and resistant to treatment and rehabilitative efforts. Autism spectrum disorders show little change over time, and he has shown a poor ability to adapt."
Mr O'Neill submitted that the length of time since there had been a sexual offence committed (that is, aside from the offences in 2015-2017 which were "of a sexual nature" under the Act) was relevant to the assessment of the duration of the order. I respectfully disagree; the issue is more the level of risk that Mr Sleeman currently presents. I do accept, however, Mr O'Neill's submission that the duration should be the least that is necessary in the context of risk to community safety without forgetting the second object of the Act of encouraging Mr Sleeman in his rehabilitation.
My conclusion is that the order be for a period of 4 years.

Conclusion

Because of the urgent need to resolve the matter by 24 August 2018 I made orders on 23 August 2018. The orders had the effect that Mr Sleeman became the subject of an extended supervision order for a period of 4 years with it being subject to the conditions proposed in the schedule annexed to the summons. The foregoing are my reasons for making those orders.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 03 September 2018

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