State of New South Wales v Sleeman (Preliminary)

Legislation Cited: Child Protection (Offenders Prohibition Orders) Act 2004 (NSW)
Crimes (Sentencing Procedure) Act 1999 (NSW) s 10A
Mental Health (Forensic Provisions) Act 1990 (NSW)
Child Protection (Offenders Registration) Act 2000 (NSW)
Crimes (High Risk Offenders) Act 2006 (NSW) ss 3, 5B, 7, 9, 10A, 11

Cases Cited: Lynn v State of New South Wales (2016) 91 NSWLR 636; [2016] NSWCCA 57
State of New South Wales v Ayoub [2023] NSWSC 963

Category: Principal judgment

Parties: State of New South Wales (Plaintiff)
Nathan Sleeman (Defendant)

Representation: Counsel:
A Mykkeltvedt (Plaintiff)
J Wilcox (Defendant)
Solicitors:
Crown Solicitor’s Office (Plaintiff)
Legal Aid (NSW) (Defendant)

File Number(s): 2025/00186728

JUDGMENT

1. The defendant, Nathan Sleeman, is currently the subject of a 4-year Extended Supervision Order (ESO) made on 23 August 2018. With periods when the Order was suspended because the defendant was serving sentences of imprisonment for breaches of the Order (totalling about 3 years), the ESO is due to expire on 27 August 2025.

2. By summons filed on 15 May 2025 the plaintiff, the State of New South Wales, seeks further orders under the Crimes (High Risk Offenders) Act 2006 (NSW) (“the Act”) in respect of the defendant.

3. The final relief sought is a further ESO for a period of 3 years. In this preliminary hearing an Interim Supervision Order (ISO) is sought, pursuant to s 10A of the Act, for 28 days. Further orders are sought, pursuant to s 7(4) of the Act, appointing qualified psychiatric and/or psychological experts to examine the defendant and provide reports to the court.

4. The defendant indicated, through his counsel, that he opposes further orders being made. Counsel, being responsible, addressed on appropriate conditions should an order be made.

Summary of the relevant statutory principles

5. Section 5B of the Act provides that the court may make an ESO if (a) the person is an offender who has served a sentence of imprisonment for a “serious offence” which includes a “serious sex offence”, (b) is under a current ESO (s 5I), and (d) if the “court is satisfied to a high degree of probability that the offender poses an unacceptable risk of committing another serious offence if not kept under supervision under the order”.

6. “Serious offence” includes a “serious sex offence” (s 4) which is defined in s 5(1) to include an offence against a child punishable by 7 years imprisonment or more, and by reference to specific offence provisions.

7. “Unacceptable risk” requires consideration of the nature and seriousness of the risk posed by an offender with respect to further serious offences, assessed “by reference to past conduct, the seriousness of the possible future conduct and the period over which the risk may come to fruition”: Lynn v State of New South Wales (2016) 91 NSWLR 636; [2016] NSWCCA 47 at [126] (“Lynn”) per Basten JA. In Lynn Beazley JA said assessing unacceptable risk is directed to making the community secure from harm as opposed to guaranteeing its safety; otherwise every risk would be unacceptable: [61].

8. In the preliminary hearing s 10A(a) of the Act provides that the court may make an ISO if it appears to the court that the defendant’s supervision will expire before the proceedings are determined and “that the matters alleged in the supporting documentation would, if proved, justify the making of an Extended Supervision Order.”

9. Section 7(4) of the Act provides that if following the preliminary hearing, the court is so satisfied, the court must make orders appointing qualified psychiatrists and/or registered psychologists to examine the offender and provide reports to the court on the results of those examinations, and direct the offender to attend those examinations. If, following the preliminary hearing, the court is not satisfied that the matters alleged in the supporting documentation would, if proved, justify the making of an ESO, the court must dismiss the application: s 7(5).

10. In determining an application for an ESO, the safety of the community must be the paramount consideration of the court: s 9(2). In deciding whether the court is satisfied that an order should be made, the court must have regard to the objects of the A**ct. The primary object of the Act is to provide for the extended supervision of high risk sex offenders so as to ensure the safety and protection of the community: s 3(1). Another object of the Act is to encourage high risk sex offenders to undertake rehabilitation: s 3(2).

11. Section 11 of the Act provides that the court may make conditions the court considers appropriate to be included in an ESO or ISO.

Supporting documentation

12. The parties provided the supporting documentation in three folders and I am grateful to the legal representatives for each party for their preparation of the documents, including the joint statement of agreed facts and issues and the chronology.

Background

13. The defendant is 46 years old. He lives with his parents. He has been assessed as having Autism Spectrum Disorder, Attention Deficit Hyperactivity Disorder, Depression and Post-Traumatic Stress Disorder. He has received a disability support pension since 2000. He finds it difficult to maintain employment because of his conditions. He is prone to self harming. He receives NDIS support. It has not been suggested that abuse of alcohol or illegal drugs has been a factor in his offending.

The defendant’s criminal history

14. The defendant’s criminal history, in chronological order, is as follows.

15. In March 2002 the defendant was placed on two good behaviour bonds of 12 months duration, for two offences, of assault and having a knife in a public place, both of which occurred on 14 October 2001. The facts were that the defendant went to a games room in a shopping centre and approached four boys aged between 10 and 12 years old, who were playing a games machine. He followed the boys around the games room, then walked up behind the victim, put his arm around the boy’s neck and said “You’re coming with me kid.” The victim was able to wiggle out of the defendant’s hold. The defendant pulled at the child’s jumper as he walked away. The child’s mother approached security officers, who stayed with the defendant until police arrived. A witness had seen the defendant holding a small silver knife, which was found on him when police searched him, although the facts about the defendant putting his arm around the child’s neck do not mention the knife at that point.

16. In October 2002 the defendant was placed on two further good behaviour bonds for offences of inciting a person under 16 years to commit an act of indecency and indecent assault on a person under 16 years, both committed in April 2002. The facts were touching the genitals of a 10 year old boy, having positioned himself where the victim child would walk past, and writing a note to the child offering him a PlayStation, two controllers and two games if the child would let him suck his penis.

17. On 15 May 2003 the defendant was discharged under s 32 of the Mental Health (Forensic Provisions) Act 1990 (NSW) for two offences of being a convicted child sexual offender, loitering near a public place frequented by children, committed on 7 December 2002 and 2 January 2003. In the latter offence the defendant was in the same gaming centre in the same shopping centre as his 2001 offences, talking to a 13 year old boy as they both waited to use an air hockey table. When interviewed, the defendant admitted to associating with children on 7 December 2002. The defendant was at the time on the Child Protection Register.

18. In April 2004 the defendant was sentenced to 12 months imprisonment, with an 8 month non-parole period, for an offence of being a convicted child sexual offender, loitering near a public place frequented by children, committed on 28 August 2003. The sentence was confirmed on appeal. The facts involved the applicant attending a park in Campsie, associating with five boys aged between 11 and 14 and inviting them to his home to play computer games. He lent one of the boys a mobile phone so they could communicate and organise to meet again in the park. Some of the boys disclosed to their parents that they were to meet the defendant in the park. The next day police attended the park and saw the defendant waiting. He was arrested and admitted to knowing he was not meant to loiter with children under the age of 16.

19. On 28 July 2005 the applicant was sentenced to 2 years and 4 months imprisonment, with a non-parole period of 16 months, for an offence of sexual intercourse with a child aged between 10 and 14 years, committed on 1 April 2003. The agreed facts for sentence were that the defendant had met the child in an electronic games shop on two occasions and invited the child to meet him at his home to inspect his games. On 1 April 2003, after school, the child met the defendant in an unlocked garage behind the defendant’s home where the child and his friends played computer games. The child’s two friends left and the complainant child remained, playing computer games with the defendant. The defendant typed messages on his mobile phone and showed them to the complainant, who typed messages in reply. In the messages the defendant asked the complainant if he would let him touch his private part and do something to his private part in return for a Game Boy Advance. The child agreed and the defendant performed oral sex on the child, who after a while, asked the defendant to stop, which he did. The next day the defendant attended the complainant’s school and gave some money to a teacher and asked the teacher to give the money to the child. Later that day the complainant left school and met the defendant at a bus stop and accompanied him to the electronic games shop, where the defendant bought the complainant a computer game.

20. That offence was a serious sex offence as defined. The defendant was released to parole but his parole was revoked in March 2006 and he served a 5 month balance of parole.

21. On 10 October 2006 a Child Protection Prohibition Order (CPPO) was made under the Child Protection (Offenders Prohibition Orders) Act 2004 (NSW), which included conditions about being in the company of persons under the age of 18. On 8 February 2007 the defendant was charged with 13 breaches of the Order, for one of which he was sentenced to a 3-year good behaviour bond, and for the balance he was sentenced to 20 months imprisonment, with a non-parole period of 15 months. These offences involved the defendant’s relationship with a 14 year old boy, whom he visited at home, including when there were no adults present, and gave the boy presents. The boy’s mother reported the matter to the police after becoming concerned about the defendant’s behaviour towards her son. On appeal, the non-parole period was reduced to 10 months, but the defendant was not released to parole when his non-parole period expired, only when his sentence expired.

22. In January 2015 the defendant was fined $500 for an offence of shoplifting which occurred on 29 May 2014. He was placed on an 8-month good behaviour bond for an offence of assault which occurred on the same day. In October 2015 the defendant was placed on a bond of 2 years duration for an offence of being armed with intent to commit an indictable offence, which involved him threatening a neighbour with a baseball bat. In April 2016 the defendant was called up for a breach of the good behaviour bond and ordered to perform 50 hours of community service. In April 2016 the defendant was fined for driving while his licence was suspended in November 2015. There were a number of other driving offences and a further offence of shoplifting during 2016. There is a suggestion the driving offences occurred when the defendant was working at a car yard.

23. In October 2015 the defendant was placed on a 2-year good behaviour bond for breaching the Prohibition Order. The breach was sending an electronic message to the mother of a prior victim whom he was prohibited from contacting. In April 2016 the defendant was called up for breaching the good behaviour bond and sentenced to 50 hours community service.

24. In April 2017 the defendant was sentenced to 7 months imprisonment, with a non-parole period of 4 months, for a breach of the Prohibition Order in which he approached three children in a shopping mall and engaged them in conversation.

25. In June 2017 the defendant was sentenced to 12 months imprisonment, with a non-parole period of 9 months, for two offences of breaching the Prohibition Order, which occurred in May 2017 when he approached children on the street and spoke to them. He told arresting police he believed the Order had expired.

26. Since the previous ISO was made on 1 May 2018 and the ESO made on 23 August 2018 the defendant has been convicted and sentenced for a number of failures to comply with conditions of the Order.

27. In January 2019 the defendant was sentenced to 12 months imprisonment, with a non-parole period of 5 months, for three offences of failing to comply with an ESO/ISO, committed on 6 July 2018. The breaches were that the defendant signed a lease for a laptop computer and did not disclose it to his supervising officer and he deleted text messages, his call logs and his internet browser history, contrary to a condition prohibiting him from doing so.

28. In 2019 the defendant was sentenced to 16 months imprisonment for two offences of failing to comply with the ESO. On appeal each sentence was reduced to 9 months imprisonment. These breaches involved the defendant having applications on his phone without permission and having joined a dating site on which he had made contact with two adult men, one of whom had planned to visit the defendant at his home, possibly for sexual activity. The defendant told police that he had joined the dating site to meet someone who was “age appropriate”.

29. In January 2021 the defendant was sentenced to 12 months imprisonment, with a non-parole period of 9 months, for failing to comply with his ESO on 22 September 2020. On that day the defendant went to a Telstra store in the company of his parents and pre-ordered an Xbox.

30. On 28 April 2022 the applicant was sentenced to an 18-month Community Correction Order (CCO) for an offence of failing to comply with his ESO, with another similar offence taken into account on a Form 1. Those breaches occurred between 1 September and 2 November 2021. Those breaches entailed the defendant having accessed JB Hi-Fi, DVD Land and Target websites and purchasing DVDs and PlayStation/Xbox games on three separate occasions. He had also deleted emails and his internet search history around five purchases, including the three the subject of the other offence. He was called up for a breach of the CCO and a supervision component was added on 18 August 2022.

31. Also on 18 August 2022 the defendant was sentenced to an 18-month CCO for an offence of failing to comply with his ESO and convicted but no penalty imposed, pursuant to s 10A the Crimes (Sentencing Procedure) Act 1999 (NSW), for another such offence. These breaches involved the defendant purchasing a virtual reality gaming set without permission and breaking his mobile phone. On 7 May 2024 the defendant was called up for breaching that CCO. For that breach and for eight other breaches of his ESO the defendant was sentenced to an aggregate sentence of 24 months imprisonment, with a non-parole period of 17 months imprisonment. That sentence was reduced on appeal to the District Court to an aggregate sentence of 12 months imprisonment, with a non-parole period of 8 months imprisonment. The applicant was released to parole on 23 December 2024.

32. These breaches involved the defendant allowing a man he had met on a dating site to come to his home without prior approval from his supervising officer, buying a PlayStation portal without prior approval, deleting phone messages without approval, changing his Apple account password without approval and not supplying his new password, using additional email addresses, downloading PlayStation games, installing cleaning software on his laptop and changing his computer passwords.

33. Since the ISO and ESO were made in 2018 the defendant has spent a total of 3 years in custody for breaches of conditions of the orders, but none of the breaches involved contact with children or offences against children. His custodial record reflects that he has not had any misbehaviour in custody since 2022. He has not offended in any way since he was released to parole in December 2024.

Risk Assessment Report

34. A Risk Assessment Report dated 7 January 2025 was prepared by Richard Parker, senior psychologist, Serious Offenders Assessment Unit, with approval from Holly Cieplucha, the Acting Chief Psychologist, Risk Management Programs. For the report Dr Parker interviewed the defendant for about one hour on 16 December 2024. Dr Parker had previously interviewed the defendant in 2017 for an earlier report.

35. In his report Dr Parker referred to the circumstances of the defendant’s breaches of his Order in the following terms:

[48] “While the circumstances of each breach vary, the basic theme underlying his breaches is an underlying pattern of deceit and dishonesty, where he purchases devices without permission, deletes content on his devices and institutes contact with other people (through apps downloaded without permission).”

36. Dr Parker said:

[50] “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 and the ESO 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.”

This does not appear to be an accurate statement of the defendant’s breaches of his ESO conditions. His last offence involving him approaching children on the street and talking to them was in 2017. His last offence involving grooming behaviours occurred in 2006. Computer games may be a means to communicate with boys, but acquiring them and accessing them is at best a possible precursor to precursor behaviour.

37. In his report Dr Parker provided some caution about the use of actuarial models. He stated “It is not scientifically possible to accurately predict whether or not an individual offender will or will not reoffend”: [64]. He noted that actuarial instruments can be insensitive to changes over time: [68]. He said “the best actuarial models still have modest predictive ability”: [71].

38. Using the Static-99R instrument, which Dr Parker said has “moderate predictive accuracy”, he noted that the defendant’s score assessed by himself in October 2017, was in the “high range” and said “This score remains valid, as he has not sexually reoffended since that time”: [76].

39. Using the Stable-2007 actuarial tool Dr Parker stated that the defendant’s score, which he assessed in October 2017, was classified as “high” and concluded his score was unchanged from his previous assessment.

40. Dr Parker said that the defendant’s score, when combining the Stable-2007 and the Static-99R, is a “very high” overall risk level: [82].

41. Using the Violence Risk Appraisal Guide – Revised (VRAG-R) Dr Parker said the defendant had a slightly lower score than his previous score due to his increased age. He said 58% of violent offenders with a similar score reoffended violently within five years, and 78% within 12 years: [84].

42. Dr Parker referred to “Mr Sleeman’s continued attempts to make contact with teenage boys, despite numerous court interventions, supervision and the imposition of a CPPO”: [86]. This does not appear consistent with the defendant’s criminal history, despite him being under close supervision by his Departmental Supervising Officers, as reflected in the OIMS notes, including frequent unannounced home visits and examination of the defendant’s electronic devices.

43. Dr Parker said that a substantial risk factor for the defendant is that he has “very few relationships with adults, let alone intimate ones”: [88]. I note that during the duration of his Order, on the occasions when the defendant attempted to conduct relationships with adult males, he was charged with breaching his Order and ended up back in custody.

44. Dr Parker said:

[95] “Mr Sleeman is 46 year old man who was diagnosed with Asperger’s syndrome in his late teens. Throughout his life he has demonstrated a propensity for sexual interaction with boys aged from about 10 to 14 years of age.”

45. That may be accurate in terms of the defendant’s behaviour during his 20s, but it is not an accurate statement that he has demonstrated this propensity “throughout his life”, on the material before me.

46. Dr Parker’s risk scenarios for the defendant were based on his prior behaviour. He predicted he would most likely attempt to be alone with boys, by loitering in places where boys would frequent, and he may also seek to initiate contact through virtual methods, such as game chat features. He predicted that the defendant would be involved in some form of grooming behaviour. He said:

[106] “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.”

I note that the defendant does have a matter on his record for shoplifting a video game, but this statement by Dr Parker seems to involve speculation.

47. Dr Parker said:

[111] “While he appears to have an intellectual understanding that sexual contact between adults and young people can be harmful, this has not been sufficient to dissuade him from contact with young boys – even when combined with substantial legal interventions. However, the current ESO has restricted his ability to initiate such contacts, although he has breached his order on six occasions.”

I do note that none of the breaches involved contact with young boys, let alone sexual contact.

48. In conclusion Dr Parker said:

[113] “If Mr Sleeman is not subject to any further intervention under the Act , it is possible he would 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.”

49. I note that “possible” is not the test under the Act. Counsel for the State submitted I must consider Dr Parker’s report as a whole, which I accept.

Risk Management Report

50. A Risk Management Report, dated 21 February 2025, was prepared by Mark Brush, Community Corrections Officer and endorsed by Elizabeth Tsitsos.

51. Mr Brush referred to Dr Parker’s assessment of Mr Sleeman having a very high overall risk level of sexual reoffending. He referred to the risk factors identified from that report as self-regulation, intimacy deficits and sexual preference.

52. Mr Brush noted that Mr Sleeman benefits from NDIS supports, including a support coordinator, support workers and a behaviour support clinician, since early 2022. He said Mr Sleeman has several friendships but the majority of his communication within these relationships is through technology. He noted Mr Sleeman receives support from NDIS workers to engage in supported activities, and has begun participating in NDIS approved relationship skills training to enhance his ability to develop intimate relationships. Mr Brush noted the defendant’s inability to maintain employment.

53. Mr Brush noted that:

“Mr Sleeman has demonstrated a willingness to undertake intervention in the community… he has shown an ability to maintain such appointments and… the service providers advise Mr Sleeman has a high level of engagement throughout the interviews.”

54. Mr Brush noted that Mr Sleeman had engaged with a private forensic psychologist (Carollynne Youssef) on a fortnightly basis and “has been addressing his sexual offending through focused intervention with a psychologist”.

55. Mr Brush said Mr Sleeman’s response to supervision whilst subject to an ESO has been largely unsatisfactory; he has received many formal warnings and multiple convictions for failing to comply with his Order. Mr Brush referred to the breaches of ESO conditions of which he was convicted, which have been dealt with above. Mr Brush said in addition to the matters of which he was convicted Mr Sleeman was also given formal written warnings for failing to comply with his ESO conditions as follows:

56. “On 22 July 2021 he received two written warnings for entering an electronics store and purchasing an Apple TV without prior approval.

57. On 6 August 2021 he received written warnings for a schedule deviation, entering a park on two occasions and downloading two applications on his mobile phone without prior approval.

58. On 2 September 2021 he received written warnings for a schedule deviation, accessing an electronics store online and gambling without prior approval.

59. On 28 October 2021 he received written warnings for using the internet on his gaming console, playing online games on his gaming console and using an undisclosed alias on his gaming console.

60. On 9 January 2023 he received a written warning for a schedule deviation.

61. On 13 February 2023 he received two written warnings for deleting his phone search history and using four unapproved email addresses.

62. On 12 May 2023 he received three written warnings for contact with a non-association, using an unapproved social networking website and purchasing a new mobile phone without prior approval.

63. On 24 November 2023 he received three written warnings for two schedule deviations and contact with a non-association.”

64. Mr Brush said that a review of Mr Sleeman’s supervision indicates that his failure to comply with his ESO, repeated reoffending, and ongoing returns to custody had significantly impacted his supervision. He said Mr Sleeman’s attitude towards his DSO’s and Order was considered poor and confrontational in the months leading up to and since his most recent custodial sentence. He said Mr Sleeman still lacks insight into his offending behaviour and associated risk factors.

65. Mr Brush said Mr Sleeman participates in fortnightly sessions with his psychologist and behaviour support practitioner, remains compliant with attending his appointments and has developed a positive rapport with his treatment team.

66. Mr Brush said Mr Sleeman’s assessed level of risk of sexual reoffence is high and if further supervised he will have at least one instance of face-to-face contact per week with Community Corrections, most often in the form of announced and unannounced field and home visits. I note from the case notes of unannounced home visits to the defendant’s home, nothing was found to indicate contact with or sexual offending against children.

67. Mr Brush said Mr Sleeman currently resides with his parents and conditions relating to not allowing any person to enter or remain at his residence, without prior approval, should be imposed to ensure his domestic setting is being monitored. Requiring Mr Sleeman to obtain approval before staying overnight at any location other than his approved address or hosting visitors at his approved address would help mitigate similar risk situations.

68. He also recommended conditions prohibiting the use of social media, allowing remote access to his accounts and conditions relating to the use of internet and electronic communications.

69. I note there are positive and negative aspects of Dr Brush’s report, the positive being his continued attendance on and engagement with his psychologist and behaviour support practitioner.

70. I have also had regard to the reports of Dr Andrew Ellis, psychiatrist, and Jenny Howell, psychologist, prepared in 2018 for the previous ESO proceedings. Although historical, Dr Ellis expressed the opinion that the defendant would meet the criteria for Paedophilic Disorder, and Ms Howell noted that Mr Sleeman’s Autism Spectrum Disorder is characterised by markedly impaired social interaction and communication.

The plaintiff’s submissions

63. The plaintiff’s submissions relied on Dr Parker’s report. I accept that the test in this preliminary hearing is to consider the matters alleged in the supporting documentation, if they were proved. Therefore, despite my concerns expressed above about Dr Parker’s report seeming to be inconsistent with the evidence of the defendant’s behaviour in recent times, I have considered his report.

64. Counsel for the plaintiff relied on Dr Parker’s identification of dynamic risk factors related to sexual reoffending for the Stable-2007 assessment, being “intimacy deficits, social influences, distorted attitudes, general self-regulation and sexual self-regulation”: [80]. Counsel for the plaintiff also relied on the defendant’s criminogenic needs identified by Dr Parker, being “attitudes; self-regulation; intimacy deficits and sexual preference”: [85].

65. The plaintiff relied on Dr Parker’s report at paragraph [86] that sexual attitudes appear to be of significant concern for the defendant. Dr Parker said it is possible that the defendant still subscribes to the theory of children as sexual beings, even though he can verbally acknowledge it is harmful. He said the defendant’s continued attempts to make contact with teenage boys, despite numerous court interventions, supervision and the imposition of a CPPO, suggests his focus on his own desires overrules any potential concern for the welfare of others. Dr Parker said because of Mr Sleeman’s Asperger’s Syndrome he may have the idea that sexual interaction with a child will cause limited or no harm. Dr Parker said the defendant appears to have a generalised difficulty self-regulating his desires, not limited to sexual desires, but more broadly: [87]. Dr Parker said the defendant’s lack of adult relationships is a substantial risk factor: [89]. Dr Parker said it is not clear whether Mr Sleeman has a sexual preference for boys around puberty or whether they are a target of last resort as adults are deemed too threatening. He said, “It is clear that Mr Sleeman clearly has an emotional preference for associating with young boys, and an aversion to adult relationships.”

66. The plaintiff relied on Dr Parker’s report at paragraphs [97] and following, in which Dr Parker said that the CPPOs and ESO have resulted in attempts to offend being detected in the grooming stages, rather than a hands-on sexual offence, and has led to interruptions earlier in the chain, with the defendant’s breaches mainly relating to the misuse of technology that could be used to facilitate contact with children.

67. Counsel for the plaintiff submitted that electronic devices and games are of concern to the plaintiff because of the past use by the defendant to engage with children, groom children or persuade children to engage in sexual activity by reliance on such devices and games. Counsel submitted the ESO has achieved detection at the use or acquisition of technology stage.

68. Counsel for the plaintiff submitted that an order under the Child Protection (Offenders Prohibition Orders) Act 2004 (NSW) (CPPO) is insufficient to manage the defendant’s risks because it does not allow for proactive supervision, as an ESO does. The defendant is not currently the subject of a CPPO. Counsel submitted that neither is the defendant being registered under the Child Protection (Offenders Registration) Act 2000 (NSW) a sufficient means of managing his risk. Counsel relied on observations to that effect by Wilson J in State of New South Wales v Ayoub [2023] NSWSC 963. Counsel submitted that an ESO is preventative in a way which the other orders are not.

69. Counsel relied on paragraph [113] of Dr Parker’s report in which he said that a CPPO relies on information being provided from members of the public and because it is passive to that extent it could allow offending to occur before it was detected, contrary to the functioning of an ESO.

70. Counsel for the plaintiff submitted that the defendant’s NDIS support, while accepting that it may improve the defendant’s social skills and have incidental benefits, does not have the role or function of an ESO.

The defendant’s submissions

71. Counsel for the defendant, in opposing a further order being made, emphasised that the defendant is still seeing Dr Youssef, psychologist, fortnightly, he has committed no sexual offence since 2003, there has been no criminal behaviour of concern since 2016, when he spoke to a young boy at a shopping centre, and in 2008 - 2015 there were driving and dishonesty offences but no sexual offending. He submitted that there are available alternatives such as the power for a Magistrate to make an order under the Child Protection (Offenders Prohibition Orders*) Act* 2004 (NSW) if there is reasonable cause to believe the defendant poses a risk to the safety of children. Counsel submitted that previous CPPOs have been successful in bringing to light concerning behaviour of the defendant. He submitted also that the Child Protection Register, on which the defendant is registered, allows police to conduct yearly inspections of the defendant’s home and computers and check email addresses.

72. Counsel submitted that the defendant is engaging well with Ms Youssef, the psychologist, and Ms Jenkins, his NDIS supported behavioural support practitioner. Counsel relied on a case note of Mark Brush of an email communication with Ms Jenkins, in which Ms Jenkins said:

“As my role is funded by the NDIS, our focus is on capacity building rather than addressing [the defendant’s] risk factors related to sexual offending, that aspect falls under [Carol’s] scope. The NDIS primarily focuses on increasing independence, improving social skills, enhancing emotional regulation, and supporting community engagement.

That said, many of the areas we work on are relevant to reducing risk factors. Our sessions focus on:

Emotional Regulation and distress tolerance

Building and maintaining appropriate relationships and boundaries

Social skills and self-awareness

Communication and problem-solving

Community access and participation

Increasing independence in daily living

[The defendant] remains engaged, attends sessions regularly, and participates actively. However, his biggest challenge is his preoccupation with his ESO conditions. While he understands and acknowledges the strategies we implement, he struggles to apply them in real-time situations. This contributes to ongoing frustration and distress, particularly when he perceives restrictions as unfair.

To support his progress, I will be incorporating gradual exposure and behavioural activation within the community to help him generalize skills and build resilience in real-world settings. Additionally, reinforcing his capacity to self-regulate, particularly when facing limitations imposed by his ESO, will be a key focus moving forward.

[The defendant’s] NDIS goals include:

Increasing his social outings and participation in activities of his choice

Developing behaviour management strategies to access the community safely

Building relationships and social connections

Exploring employment opportunities and financial independence.”

73. Counsel submitted that the defendant has had a bleak experience under the ESO, with heavy supervision of his conditions not achieving the objects of the Act, and that his going in and out of custody for breaches impacts on his rehabilitation and community safety.

74. Counsel submitted that the defendant’s diagnosed disabilities affect his ability to understand conditions rather than his being devious.

Consideration

75. In terms of the matters in s 9(3) of the Act, to which I must have regard in deciding whether or not to make an ESO (or in this case, an ISO), I note the following. I have had regard to the statistical and other assessments by Dr Parker. I have had regard to Mr Brush’s report about the proposals to manage the defendant in the community if he is subject to another Order. I have noted that the defendant has engaged with a psychologist in terms of his rehabilitation. However I note that his rehabilitation has been interrupted by his being returned to custody for breaches of his Order which did not involve behaviour concerning children.

76. I note from the records that the defendant has expressed frustration with the previously imposed ESO and has not complied with some conditions, although those breaches have only been potentially linked to his risk of reoffending sexually against children, and not in any direct way.

77. I have had regard to the defendant’s criminal history, including his breaches of previous CPPOs. His last sexual offence against a child occurred in 2003, his last grooming offences occurred in 2006 - 2007, and two offences of approaching children and speaking to them were in 2016 and 2017.

78. The conditions of the current order, intensively policed, seem to go well beyond what is necessary to protect the community, especially children, from the risk he poses, have prevented him from being able to conduct a lawful adult life, and have seen him imprisoned for lengthy periods for conduct which would not be unlawful except that it was in breach of a condition of his Order. Lengthy sentences of imprisonment have interrupted rather than contributed to his rehabilitation, which is an object of the Act. The community has only been protected by the defendant’s incapacitation by incarceration.

79. In essence, the State’s position is that the ESO has been successful in its protective function by detecting concerning behaviours of the defendant at an early stage, and therefore a further ESO is warranted.

80. If Mr Sleeman were to commit a child sex offence it would cause harm to the child victim of such an offence. He has not done so for a very long time. His behaviours which gave rise to charges of failing to comply with his Order in respect of electronic devices were, on the worst view, at a very preliminary stage of giving him access to the means to communicate with children; they may have an alternative explanation in that the material before me suggests that Mr Sleeman has an attraction to technology and an interest in electronic games. Despite close supervision, he has not been detected in any overt behaviours such as viewing or possessing child abuse material, which is behaviour not infrequently observed by child sex offenders the subject of applications such as this and gives rise to concern about continuing risk.

81. He is seeing the psychologist, Ms Youssef, fortnightly. He is engaged in activities accompanied by his support workers. I accept the role of the NDIS workers is not to police the defendant’s risk of sexual reoffending.

82. Being aware of the consequences of child sex offending, I have given a great deal of consideration to the concept of an unacceptable risk of the defendant committing a further serious sex offence against a child if he was not kept under supervision by a further ESO. I have come to the conclusion that I am not satisfied that the matters alleged in the supporting documentation would, if proved, justify the making of an ESO, in that I am not satisfied to a high degree of probability that the defendant poses an unacceptable risk of committing another serious offence if not kept under supervision under an Order.

83. Therefore, pursuant to s 7(5) of the Act, I must dismiss the application.

Orders

84. Therefore, I make the following orders:

85. The plaintiff’s summons is dismissed.

86. If the defendant wishes to apply for an order for costs, I will set a timetable for notification of the application and written submissions by the parties.

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