State of New South Wales v Sleeman

State of New South Wales v Sleeman - [2018] NSWSC 562 - NSWSC 2018 case summary — Zoe

[4]

Some principles derived from case law

The test in s 5B(d) requires the exercise of a discretionary judgment: Lynn v State of New South Wales (2016) 91 NSWLR 636; [2016] NSWCA 57 ("Lynn") at [82] (Basten JA). The objects of the Act should be held in mind when undertaking this evaluative task: Lynn at [55] (Beazley P). Those objects are: "3 Objects of Act (1) The primary object of this Act is to provide for the extended supervision and continuing detention of high risk sex offenders and high risk violent offenders so as to ensure the safety and protection of the community. (2) Another object of this Act is to encourage high risk sex offenders and high risk violent offenders to undertake rehabilitation."
The Court must be satisfied that the likelihood of the defendant committing a further serious offence is higher than the civil standard of proof; it is "beyond more probably than not" but it is not a requirement that the finding be made to the criminal standard of beyond reasonable doubt: Cornwall v Attorney General for New South Wales [2007] NSWCA 374 at [21].
The right of an offender to his or her personal liberty after serving a term of imprisonment is not a consideration in this evaluative task: Lynn at [44] and [55]-[58] (Beazley P), [128] (Basten JA), [148] (Gleeson JA).
I agree with what Harrison J said in State of New South Wales v Kamm (Final) [2016] NSWSC 1 at [43] about the provision in s 5D (formerly in s 5B(3)): "… [I]t is important to recall, having regard to s 5B(3), that the Supreme Court may legitimately find in some situations that a person poses an unacceptable risk for the purposes of the statutory test even if the likelihood of them committing a further serious sex offence is determined to be low."
An issue arises in this case as to whether regard may be had to alleged criminal conduct of the defendant that did not result in conviction for any offence. Such material may be relevant, subject to the weight to be afforded to it, as evidence falling under the category of material described in s 9(3)(i) of the Act ("any other information that is available as to the likelihood that the offender will commit a further serious offence"). This was the approach taken by Adamson J in Attorney General for the State of New South Wales v Steadman [2016] NSWSC 174 at [27], [124]. It may also be relevant to "the safety of the community" (s 9(2) of the Act) which was the approach taken by Walton J in State of New South Wales v French (Final) [2017] NSWSC 1475 at [46] in relation to the former similar provision in s 9(3)(a).
A final matter to note from the case law concerns the task being performed at the preliminary hearing stage. It is not for the Court to weigh up the documentation, or to predict the ultimate result, or to consider what evidence the defendant might call at the final hearing: Attorney General for New South Wales V Tillman [2007] NSWCA 119 at [98]. It is a task that has been described as being akin to applying a prima facie case test, taking the plaintiff's case at its highest: see, for example, State of NSW v Manners [2008] NSWSC 1242 at [8]; State of New South Wales v Brookes [2008] NSWSC 150 at [13].

[7]

2002 - Aggravated indecent assault on a boy under 16 and incite boy over 16 to commit act of indecency

On 22 October 2002 the defendant was sentenced to further good behaviour bonds for offences of aggravated indecent assault upon a person under 16 (two counts - s 61M(1) of the Crimes Act) and inciting a person aged 16 years or over to commit an act of indecency (s 61N(2) of the Crimes Act). The description of the latter offence is taken from the criminal history but the police facts clearly indicate that it was an offence concerning a person under the age of 16.
The offences against s 61M(1) are within the definition of "serious sex offence" in s 5(1)(a)(i) of the Act.
The police facts describe a process of the defendant grooming a 10 year old boy between 12 and 22 April 2002 (a matter of only a few weeks after he was placed on the good behaviour bonds referred to above). The victim attended a school in the western suburbs of Sydney. The defendant would go to the playground of this school and play handball with the children. On 12 April 2002 while the victim was walking home from school with his siblings the defendant approached and told him that he (the defendant) was carrying PlayStation games. He loaned two of these games to the victim who told the defendant where he lived. On 14 April the defendant went to the victim's home on the pretext of retrieving his games. In the following week he went to the victim's home a number of times bringing more PlayStation games.
The victim would speak to the defendant outside his home on the front verandah (the victim would not allow him into the house because his mother was not home). On five occasions on separate days the defendant reached out with his right hand and forced it against the victim's "private parts". The victim said that he could feel the defendant's fingers wriggling around feeling his "private parts". On each occasion the victim said, "Stop it" and the defendant replied, "What, what did I do?" On one occasion the defendant showed the victim some writing on a page in a book he retrieved from his bag. The writing read something like, "If you let me suck you on the dick, I'll give you a PlayStation II, two controllers and two games". When the victim read this, he replied, "No".
When the defendant was arrested on 27 April 2002 he made admissions to having shown the victim the page with the writing as the victim had alleged, but he denied the touching that the victim claimed. He admitted going to the school playground and also that he provided PlayStation games to the victim.

[10]

2003 - Aggravated sexual assault (victim under 16)

While the defendant was serving his non-parole period under the sentence mentioned above he was charged on 27 November 2003 with an offence of having sexual intercourse with a child aged between 10 and 14, namely 13. This offence was committed on 1 April 2003 when the defendant was aged 25 and while he was the subject of good behaviour bonds imposed on 23 August 2002.
This offence is contrary to s 66C(1) of the Crimes Act and is within the definition of a "serious sex offence" in s 5(1)(a)(i) of the Act.
The agreed facts indicate that a few days before 1 April 2003 the defendant saw a 13 year old boy at the Electronics Boutique shop in the Westfield Shopping Centre at Burwood. He asked another boy, who he already knew, to introduce him. A day or so after that meeting the victim, the other boy and that boy's brother met the defendant again at the same store. On 1 April 2003, the defendant took the three boys after school to a garage near his home where he had a PlayStation and a television set up. They all played electronic games for some time until the two boys left, leaving the defendant alone with the victim.
The defendant handed his mobile phone to the victim on which he had typed messages offering to give the victim a hand-held games device in exchange for the victim permitting him to touch and do something with the victim's private parts. The victim agreed. The defendant turned off the lights and told the victim to remove his shorts and underwear. He then performed oral sex upon the victim.
The following day the defendant went to the victim's school and handed a teacher some money, asking that it be given to the victim. Later that day the victim left school and met the defendant at a nearby bus stop. They went to an electronics store where the defendant bought the victim a game.
The defendant was interviewed and charged by police on 27 November 2003. He told police that the victim performed oral sex on him and pressured the defendant to reciprocate.
The defendant was sentenced to imprisonment for 2 years and 4 months with a non-parole period of 16 months commencing at the conclusion of the previously imposed non-parole period, 28 April 2004. The defendant was released on parole on 27 August 2005.

[11]

2006 - Revocation of parole

On 16 March 2006 the State Parole Authority revoked the defendant's parole and he was required to serve the balance of his sentence from 17 March 2006 until 28 August 2006.
Revocation of parole was recommended in a report by the defendant's Probation and Parole Officer dated 14 March 2006. The report set out the extensive measures that had been taken in supervising the defendant. He had complied with a requirement to report on a weekly basis. He satisfactorily completed a 10 week "Sexuality and Social Development Program for young adults with Asperger's". He had been attending treatment sessions on a fortnightly basis with two psychologists, Harry Mayr and Jenny Howell. Forensic Psychological Services had assisted with the formulation of case management and intervention strategies. Monitoring of the defendant's internet access had been carried out by NSW Police. The defendant's domestic situation and environment had been monitored and supervised by a Home Detention Probation and Parole Officer with an average of one home contact visit per week since the beginning of 2006. The defendant had been referred to an accredited financial counsellor for assessment and money management education. The NSW Child Protection Watch Team had included the defendant's activities in their caseload notwithstanding he was out of their normal geographical operation boundaries. An application had been made to the NSW Guardianship Board to have the Protective Commissioner appointed to manage the defendant's financial affairs.
It was said in the report that "despite the additional resources allocated to address the Parolee's offending issues it would appear that little or no significant change has been effected in his attitude and behaviours". It was claimed that the defendant had stated to a number of persons involved in his supervision that he was, "just waiting for August to come and his parole to finish so that he can do what he wants to".
On 14 March 2006 Ms Jenny Howell, one of the defendant's psychologists, told the author of the report that the defendant had discussed his contact with a family living across the road from him. The family included two children, a 14 year old girl and a 10 year old boy. It seemed that the defendant had been making frequent visits to the family's residence and the psychologist was of the opinion that the defendant's motivation was to cultivate a relationship with the young boy. At no time had the defendant mentioned his contact with this child with either his supervising officer or the Probation and Parole Home Detention Officer during her regular attendances at his residence. The psychologist was of the view that "there was a significant risk of re-offending associated with Mr Sleeman's current behaviour".
During an interview on 9 March 2006 the defendant acknowledged that he had not changed any behaviour or attitudes during the course of his supervision on parole.
The report includes: "The Parolee appears to be at risk of imminent return to offending behaviours, if only in the preliminary grooming stage, and would appear to present an unacceptable risk to community safety if an opportunity presented for exploitation by Mr Sleeman. He has had the benefit of highly intensive intervention and surveillance and in the view of this officer has actively resisted all attempts to modify his behaviour. It would appear that Mr Sleeman has been less than candid with supervising and treatment authorities, as well as parents of potential victims, and appears to be waiting for the expiration of his Parole period to rid himself of his current restrictions."
The defendant was returned to custody and was released at the expiration of the sentence on 28 August 2006.

[18]

The defendant's general background

A Risk Assessment Report by Dr Richard Parker dated 17 November 2017 sets out in considerable detail the general circumstances of the defendant's background. He is the only child from his parent's relationship and they are now elderly. He has lived with them for his entire life except when he has been in custody.
The defendant was educated to School Certificate level and subsequently has completed a number of other courses at TAFE. He has received the Disability Support Pension since 2000 due to his development disability, Asperger's syndrome. He has held numerous jobs but they have all been of relatively short duration. While it appears that he had a good work ethic, his Asperger's syndrome interfered with his ability to maintain employment.
The defendant has not had any significant relationships with a woman. It is said to be unclear whether he has a sexual attraction to young boys or whether he is drawn to them because adult relationships are too threatening.
There is no evidence the defendant has abused alcohol or illicit substances.
The defendant displayed unusual and challenging behaviours from a young age and was diagnosed with Attention Deficit Hyperactivity Disorder in Year 2. However, by the time he was aged 17 his treating psychiatrist was convinced that the underlying disorder driving his behaviour was actually Asperger's syndrome. This diagnosis was agreed with by Dr Bruce Westmore in a report of 14 July 2005. Dr Parker stated that nothing he had read, nor the interview he conducted with the defendant, caused him to query that diagnosis.
Dr Parker also noted that the defendant has very poor financial skills. He had been declared bankrupt twice, most recently being discharged in February 2017. Dr Parker said, "Of concern, it appears he was spending some of the money to bribe children into performing sexual activities". (This appears to be speculative; Dr Parker did not explain the basis of it).
Dr Parker reviewed the defendant's sexual and general criminal history in considerable detail. He summarised the pertinent aspect of the history as follows: "Mr Sleeman has a long standing, and persistent pattern of grooming boys for the purpose of sex. Restrictions to prevent this, such as the imposition of CPPOs have merely resulted in him being detected for the precursor grooming behaviours, rather than sexual assault - although in some cases this was more a matter of luck, as there was a substantial period of time between his actions and detection."
In terms of treatment, Dr Parker said that the defendant's Asperger's diagnosis and his general presentation had rendered him unsuitable for any of the traditional group-based programs run by Corrective Services NSW and for group programs generally. Consequently, a referral to Sex Offender Programs was rejected.
Dr Parker noted that the defendant had seen psychiatrists since he was aged 17 in 1996. A Dr Whan saw him regularly until about 2005 and was quite pessimistic about the chances of him staying out of trouble. In a report of 6 December 2001 Dr Whan said that he was concerned about the defendant's failure to learn from experience.

[19]

Risk assessment

Dr Parker applied a number of actuarial tools that are designed in various ways to assess a person's risk of reoffending. There are a number of shortcomings and limitations in relation to these tools which Dr Parker acknowledged in his report. Bearing that in mind, it is noted that under the Level of Service Inventory-Revised (LSI-R) the defendant was scored in the "moderate" category. That assessment was completed on 27 April 2017. According to Corrective Services NSW data, 54 per cent of offenders assessed in the moderate category reoffended and were returned to custody within two years.
Under the Static-99R instrument, the defendant returned a score which placed him in the highest available category in terms of prediction of sexual recidivism. The score was in the 97th percentile compared to other adult male sex offenders. The recidivism rate of individuals convicted/charged with sexual offences with the same score as the defendant is expected to be five times that of the "typical" sexual offender.
Under the STABLE-2007 tool which is designed to assist in the identification of stable dynamic risk factors for sexual reoffending, the defendant returned a score which placed him in the High category.
Dr Parker combined the scores for the defendant under the STABLE-2007 and the STATIC-99R scores with the result that he was in a "very high" overall risk level.
Dr Parker then discussed the defendant's "criminogenic needs" which were said to be the "dynamic risk factors" that may be targeted for change. He considered the defendant's criminogenic needs that may be relevant in his treatment and supervision under the categories of: sexual attitudes ("a significant concern for Mr Sleeman"); self-regulation; intimacy deficits ("remains a substantial risk factor"); and sexual preference ("has continued to try and gain access to [young boys], despite the imposition of supervision and CPPOs").
Dr Parker discussed the relationship between the defendant's Asperger's symptoms and his offending. He noted that it was beyond his own expertise to diagnose Asperger's syndrome and said that there was some circumspection by some professionals about the diagnosis. He continued: "Regardless, some of the evident features appear to have a direct relationship with his offending and his lack of response to the various interventions. Most notably, his social impairment and communication difficulties restrict his opportunities for consensual sexual activity. These same issues lead him to feel comfortable around young boys, whom he has sexually abused in the past."
In his "Case Formulation", Dr Parker summarised that throughout the defendant's life he had demonstrated a propensity for sexual interaction with boys aged from about 10 to 14 years of age. He continued: "It is unknown whether this drive is a result of a sexual attraction to this age group, or is more an outcome of peer rejection because of his Asperger's syndrome. Either way, the drive has been very persistent and has been resistant to both formal treatment efforts and criminal justice interventions, over many years. Containment efforts, such as the CPPO, have resulted in recent attempts to offend being detected in the grooming stages, with the associated legal charge being a breach, rather than a hands-on sexual offence. However, in some instances, the gap between the behaviour and detection has been substantial, raising the possibility that the behaviour could proceed to sexual activity with a child, before the breach is detected. Additionally, Mr Sleeman's other offending represents a failure to adapt to normal societal functioning. While this may be partly due to his Asperger's symptoms, it also suggests he has developed a range of antisocial attitudes that further separate him from societal rules. It is particularly notable that his driving offences and breaches of CPPOs represent a conscious determination to disregard the rules of society. His violent offences, on the other hand, appear to be more reactive, and are probably driven by the need for routine, and inability to cope with novel situations, that is common among Asperger's sufferers (Attwood, 2015). Mr Sleeman is assessed as being at high risk of committing further sexual offences and precursor behaviours, such as non-sexual contact with boys. It is likely that his parents have acted in ways to restrict his opportunities to offend. As they become more elderly, their ability to perform this task will likely decline."
Dr Parker then referred to the possible scenarios in which the defendant might be at risk of reoffending. He said: "The most likely scenarios of further serious offending will all involve attempts to be alone with boys. This would involve him finding ways to first approach them, followed by attempts to be alone with them, and then find ways to convince them to engage in sexual activity. The most likely starting scenarios are through physically loitering in places where young boys frequent, such as schools, parks, video arcades and shopping centres. However, he may also seek to initiate contact through virtual methods. While his target group may not be very active on social media, it is noted that many video games include chat features, where gamers can communicate with each other, while playing the game. Once he has made contact with a child, the next phase would involve some form of grooming to set the scene for an offence. In the past this has mainly involved relatively expensive bribes, such as video games and gaming machines. Given his limited financial means, this may result in shoplifting, if other methods of gaining the money are restricted."
The report of Dr Parker concludes with a discussion as to the potential usefulness of an Extended Supervision Order as follows: "In the event that Mr Sleeman is subject to an Extended Supervision Order, he would receive intensive supervision and case management by CSNSW. This may include electronic monitoring, the obligation to provide weekly schedules of movement; unannounced visits by supervising staff; assistance finding suitable accommodation; scrutiny of social contacts, employment and leisure activities; and participation in CSNSW risk management programs located at Forensic Psychology Services (FPS). Mr Sleeman would need to reside in the Sydney Metropolitan area, if he were required to participate in FPS. If the Court finds that an Extended Supervision Order would represent an unacceptable risk to the community, it could impose a Continuing Detention Order. However, while such an order would provide a containment function, it would be unlikely to reduce the risk of offending below the current levels. In the event that no further order is imposed, Mr Sleeman's sentence will expire on 25 May 2018. If Mr Sleeman is not subject to any intervention under this Act, it is likely he would continue to attempt to make contact with boys. While a CPPO provides a penalty for this behaviour, it is possible the behaviour could progress to sexual offending before it is detected, as that mechanism is largely passive, and relies mostly upon information from the public. Whether the potential risk of Mr Sleeman being left unsupervised in the community would be considered "unacceptable" is a matter to be determined by the court."

[20]

Consideration

Counsel for the plaintiff submitted that the defendant's criminal history shows a persistence and determination by him to associate with young boys and groom them for sexual activities. It was also submitted that it demonstrated the defendant's unwillingness to address his offending pathways and/or his lack of insight to his offending. I am satisfied that these are conclusions that are open to be drawn from the defendant's criminal history.
As to the degree of probability of the risk of the defendant committing a further serious sex offence, Dr Parker opined that throughout the defendant's life he has demonstrated a propensity for sexual interaction with boys aged from about 10 to 14 years of age. This propensity has been very persistent and has been resistant to both formal treatment efforts and criminal justice intervention over many years. Earlier in his report, Dr Parker said that the defendant "has a longstanding, persistent pattern of grooming boys for the purposes of sex". I am satisfied that these are conclusions that are also well open to be drawn in the light of the history which has been summarised above.
The actuarial tools applied by Dr Parker in his risk assessment do not, in my view, provide a basis on their own for making a definitive determination as to the defendant's risk of reoffending. However, they are capable of being regarded as providing substantial support for the assessment made on other bases by Dr Parker.
If an Extended Supervision Order is not made, there is no reason to think that the defendant would be likely to desist in his repeated attempts to make contact with young boys. A CPPO provides something of a disincentive to the defendant from doing so but his Asperger's condition renders him significantly less likely to respond to such a deterrent influence. It is a concern, as Dr Parker observed, that while a CPPO provides a penalty for such behaviour, there remains the possibility that the defendant's behaviour could progress to sexual offending before it is detected. The mechanism of a CPPO is largely passive and relies mostly upon information from the public for the authorities to be able to act to prevent the progression of the defendant's behaviour.
Various reports by psychologists and psychiatrists over the years have included discussion of how his Asperger's syndrome relates to his risk of reoffending. For example in a report of 8 August 1997, which was written at a time when the defendant was facing the two charges of aggravated indecent assault upon a person under the age of 16, Dr Whan wrote: "In moral terms, he would have a very limited understanding as to why such sexual activity is considered wrong. His disorder results in a very limited capacity for empathy, i.e. understanding the feelings of others, and he would have a limited concern for the welfare of others."
The various psychological and psychiatric reports also indicate that therapeutic interventions over the years have concentrated more on the defendant's ADHD and then Asperger's syndrome which, by the manner in which they manifest in the defendant, have rendered him largely incapable of engaging in psychosexual therapeutic programs. This presents something of a conundrum in that it has been observed that without appropriate treatment and management the defendant represents a high risk of committing serious sexual offences in the future: report of Ms Narci Sutton, clinical psychologist, Forensic Psychology Services, 27 July 2005. Ms Sutton identified at that point the following dynamic risk factors in relation to the defendant: ● His inability to form appropriate intimate relationships ● His poor understanding of issues of legal consent ● His egocentric orientation and related difficulties in appreciating other people's feelings and recognising their needs ● Feelings of social rejection and alienation, related to his difficulties in establishing friendly relationships with peers ● His stated preference for the company of young adolescents ● His poor compliance with supervision, as highlighted by his breach of conditions and his re-offending ● His lack of insight into his problems
These risk factors are substantially similar to those that were identified in the report of Dr Parker of 17 November 2017.
For the defendant, it was submitted that the lack of serious sexual offending for a substantial period of time indicates that he presents a lower risk of reoffending in terms of serious sex offences if he is not kept under supervision. It was contended that the evidence at its highest supports a conclusion that he is primarily and most likely at risk of reoffending in a manner that does not meet the criteria of a "serious offence".
It was also submitted that the evidence demonstrates that the defendant has shown a genuine desire to reform which is indicated by things such as his generally good behaviour whilst in custody; his maintenance of contact with supervisors during a period of stringent supervision upon his release; no sexual offences occurring since 2003; only one instance of sexual assault; and no offending whilst on parole.
This must largely be accepted. However, it remains a concern that the defendant has indicated even in recent years persistent attempts to interact with young children, particularly boys. The fact that he has been the subject of a CPPO does not seem to have been sufficiently deterrent in that respect. It seems that on each occasion upon which there has been such interaction, it has ceased because of the actions of others and not by the actions of the defendant. It is hard to consider these various incidents without bringing to mind the likely risk scenario described by Dr Parker (see above at [75]).
Counsel for the defendant contended that it was significant that he has not breached the onerous conditions of his current parole. However, as counsel for the plaintiff observed, this is a "two-edged sword". It may be, on the one hand, that this indicates a reduced level of risk of reoffending but on the other hand it could also be a reflection of the fact that the defendant has been subject to such onerous conditions. A significant matter to bear in mind is that the assessment must be as to whether there is a high degree of probability that the defendant poses an unacceptable risk of committing another serious offence "if not kept under supervision under the order": s 5B(d) of the Act.
I am satisfied that, taken at their highest, the matters alleged in the documentation relied upon by the plaintiff would, if proved, justify the making of an extended supervision order.

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