The State of Western Australia v Sloane [No 3]
[2022] WASC 47
•14 FEBRUARY 2022
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL
CITATION: THE STATE OF WESTERN AUSTRALIA -v- SLOANE [No 3] [2022] WASC 47
CORAM: QUINLAN CJ
HEARD: 28 JANUARY 2022
DELIVERED : 28 JANUARY 2022
PUBLISHED : 14 FEBRUARY 2022
FILE NO/S: SO 4 of 2015
BETWEEN: THE STATE OF WESTERN AUSTRALIA
Applicant
AND
ROBERT JOHN SLOANE
Respondent
Catchwords:
Criminal law – High Risk Serious Offenders Act 2020 (WA) – Preliminary hearing – Whether reasonable grounds for belief that restriction order might be made – Whether interim supervision order is desirable – Turns on own facts
Legislation:
High Risk Serious Offenders Act 2020 (WA)
Result:
Orders pursuant to s 46 made
Interim supervision order made
Representation:
Counsel:
| Applicant | : | F M Allen |
| Respondent | : | D J McKenzie |
Solicitors:
| Applicant | : | State Solicitor's Office (WA) |
| Respondent | : | David McKenzie Legal Pty Ltd |
Cases referred to in decision:
Director of Public Prosecutions (WA) v Sloane [2015] WASC 381
The State of Western Australia v PAS [2020] WASC 405
The State of Western Australia v Sloane [No 2] [2016] WASC 416
The State of Western Australia v Sloane [No 2] [2016] WASC 416
The State of Western Australia v Winder [2021] WASC 65
QUINLAN CJ:
Introduction
Robert John Sloane has been subject to a supervision order made under the former Dangerous Sexual Offenders Act 2006 (WA) (the DSO Act) since 9 January 2017. The supervision order was made by Hall J on 19 December 2016.[1]
[1] The State of Western Australia v Sloane [No 2] [2016] WASC 416 (Sloane [No 2]).
The supervision order was due to expire on 9 January 2022.
By all accounts, the supervision order has been a complete success in protecting the community from any risk that Mr Sloane might commit a serious offence. Save for a single offence of contravening the supervision order (in 2017), Mr Sloane has remained offence free since his release from custody on 9 January 2017.
On 17 November 2021, the State of Western Australia applied for a restriction order, namely a supervision order, in respect of Mr Sloane under the High Risk Serious Offenders Act 2020 (WA) (the Act). While it is a fresh application, what the State in effect seeks is a continuation of the supervision order made on 19 December 2016.
On 7 December 2021, Hall J continued the supervision order as an interim supervision order under the Act until the preliminary hearing of the application.
The preliminary hearing came before me on 28 January 2022.
The purpose of the preliminary hearing was for me to decide whether there are reasonable grounds for believing the Court might find that Mr Sloane is a high risk serious offender within the meaning of the Act. While there is good reason to be optimistic that Mr Sloane no longer presents an unacceptable risk of committing a serious offence, at the conclusion of the hearing I was nevertheless satisfied that there were reasonable grounds for believing that a court might find that he is a high risk serious offender. I also ordered that Mr Sloane remain on an interim supervision order in the meantime.
I said to Mr Sloan at the time:[2]
Mr Sloane, this is a difficult one because you've done a long time without having offended. The decision I have made today is that I'm going to order that there be another hearing and that you get seen by the psychiatrists and – so you will still be on the order until that's determined. So you will at least be in the State for the next little while, and I will tell you why.
What I have to decide today is whether you might be made subject to another order. I don't have to decide whether you will be or whether there's a good chance that you will be, but whether you might be. It might be – and there might even be a good chance – that once you've been seen by the psychiatrist and the psychologist, they will say that you're no longer a risk and the whole thing can finish. But that's not the question before me today. What I have to decide today is: are there reasonable grounds for thinking that there might be an order?
And you've performed really well under the supervision order, so there's a good reason to think that the court might find that you're no longer a risk. But it's not that long ago, five or six years ago, that there were psychiatric reports that identified real risk factors, and even though they were a long time ago, the offences for which you were convicted were so bad that it really is the kind of case where in order for the court to reach that final conclusion, there needs to be the other reports … I'm going to make orders that we keep things as they are at the moment and that you have those reports so that a judge can make the final decision with the fully up to date information.
[2] Hearing ts 216 ‑ 217 (this portion of the transcript has been edited to remove exchanges between the Court and Mr Sloane).
I said that I would publish my reasons later. These are my reasons.
The law
As noted at the outset, pursuant to s 46 of the Act, the main purpose of the preliminary hearing is to decide whether there are reasonable grounds for believing that the Court might find that Mr Sloane is a high risk serious offender.
A high risk serious offender is a person in relation to whom the Court is satisfied by acceptable and cogent evidence and to a high degree of probability that it is necessary to make a restriction order in relation to the person, in order to ensure adequate protection of the community against an unacceptable risk that the person will commit a serious offence. A serious offence within the meaning of the Act relevantly includes sexual penetration without consent.
I have on previous occasions set out the nature of the test to be applied under s 46(1) of the Act.[3] I do not have to be satisfied that a restriction order will be made. It is sufficient if there are reasonable grounds for believing that an order might be made. To say that something might occur is to say that it is possible. Belief is an inclination of mind towards assenting to, rather than rejecting, a proposition. For there to be reasonable grounds for belief requires the existence of facts that are sufficient to induce that state of mind in a reasonable person.
[3] The State of Western Australia v PAS [2020] WASC 405 [20] ‑ [21] (Allanson J); The State of Western Australia v Winder [2021] WASC 65 [16] (Quinlan CJ).
The evidence
In support of its application, the State relied upon an affidavit of Kathryn Emma Ellson, affirmed on 17 November 2021, which sets out Mr Sloane's criminal history and a number of previous reports in relation to him, including psychiatric reports.
The State also tendered a High Risk Serious Offender Review Committee Summary report (Exhibit 1) and a Treatment completion report prepared by Dr Dylan Galloghly (Exhibit 2).
Mr Sloane's background
Mr Sloane is now 51 years of age. He was born in New South Wales, but has lived in Western Australia for over 20 years. It was made clear to me that he wishes to return to New South Wales, where his family is.
Mr Sloane's personal history and his history of offending have been set out in previous decisions of this Court, in particular by Simmonds J in DPP v Sloane.[4] It is not necessary to repeat that history in detail. It suffices to summarise the following.
[4] Director of Public Prosecutions (WA) v Sloane [2015] WASC 381 (DPP v Sloane).
First, as is regrettably so often the case with persons the subject of applications under the Act, Mr Sloane had a deprived and abusive upbringing. He was a ward of the State from a very young age and experienced physical, sexual and emotional abuse. From a young age, Mr Sloane's life was characterised by drug use, violence and crime.
Mr Sloane has convictions in New South Wales for offences of stealing, malicious injury, break, enter and steal, assault, malicious wounding, assault and rob, and firearms offences.
In this State, Mr Sloane has convictions for offences of sexual penetration without consent, unlawful detention, assault occasioning bodily harm, deprivation of liberty, threats to kill, stealing, breach of bail, resisting arrest, possession of a weapon, threatening words or behaviour, and possessing prohibited drugs.
Of principal relevance to his identification as a dangerous sexual offender are Mr Sloane's convictions for a series of offences committed against separate women in December 2002 and on 25 March 2003. The offences committed on 25 March 2003, in particular, involved multiple counts of sexual penetration without consent.
Mr Sloane pleaded not guilty to all of the offences alleged to have been committed on these dates. While he was acquitted of one charge for the December 2002 offences, he was convicted of all of the charges with respect to the 23 March 2003 offences.
The charges in relation to the 25 March 2003 offences were tried first. It is convenient to deal with them in that order.
In August 2004 Mr Sloane was convicted of 12 offences against a single victim: one count of unlawful detention, one count of threat to kill, one count of stealing, two counts of unlawful assault occasioning bodily harm and six counts of sexual penetration without consent.
The victim on that occasion was a young woman who had been receiving treatment for her drug problem at premises where she met Mr Sloane and from which she went with him into the city. Mr Sloane lured the victim into an abandoned building in the city where he kept her against her will for 18 hours, threatening to kill her.
During that period Mr Sloane assaulted the victim by putting his hands around her throat and choking her, punching her to the body and kicking her. The sexual assaults consisted of Mr Sloane penetrating the victim's mouth and vagina with his penis on a number of occasions and performing cunnilingus.
For all of the offences committed against the victim on 25 March 2003 Mr Sloane was sentenced to a total effective sentence of 10 years imprisonment.
The December 2002 convictions were for the offences of unlawful detention, assault occasioning bodily harm, indecent assault and threat to kill. The victim was a 23‑year‑old woman. Mr Sloane met the victim on 8 December 2002 and, following drinking with her and other persons, he invited her to a unit. When the victim later attempted to leave, Mr Sloane knocked her to the ground, dragged her back to the unit and forced her to stay overnight at the unit. The victim then spent the following two days with Mr Sloane as she was too scared to leave him. On the evening of 11 December 2002, the victim managed to leave the unit. Mr Sloane was enraged and forced her to a nearby beach. He then indecently assaulted the victim (by touching her breasts) and savagely assaulted her causing bruising to her face, neck and body.
Mr Sloane was sentenced to a total term of 2 years and 8 months imprisonment, cumulative on the sentences for the 25 March 2003 offences.
It is apparent from the record of the proceedings in relation to all of these offences that Mr Sloane did not accept, and has never accepted, that he was guilty. He has always maintained his innocence.
Proceedings under the DSO Act
On 9 October 2015, Simmonds J declared that Mr Sloane was a dangerous sexual offender under the DSO Act and imposed a continuing detention order.
The psychiatric evidence before Simmonds J was given by Dr Mark Hall and Dr Adam Brett.
Consistent with Mr Sloane's position at the time of conviction and sentencing, Dr Hall and Dr Brett observed that Mr Sloane exhibited extreme minimisation or denial of sexual violence, in addition to attitudes that supported or condoned sexual violence, problems with self‑awareness, problems with stress or coping, and problems resulting from child abuse.[5]
[5] DPP v Sloane [87] (Simmonds J).
Both Dr Hall and Dr Brett assessed Mr Sloane as being in the high risk category for sexual reoffending. In that context, both psychiatrists assessed Mr Sloane as scoring highly in assessments for psychopathy, indicating that he possessed many of the features of psychopathy.
On 16 December 2016, at the first review of the continuing detention order, Hall J rescinded that order and imposed a supervision order.[6] The psychiatric report prepared for that hearing is the most recent of the psychiatric reports that I have before me in relation to Mr Sloane.
[6] The State of Western Australia v Sloane [No 2] [2016] WASC 416 (Sloane [No 2]).
At the hearing before Hall J the further psychiatric evidence was given by Dr Goisa Wojnarowska. As I have indicated above, Dr Wojnarowska's report of 26 September 2016 is the most recent report available to me in relation to Mr Sloane's risk of reoffending.
In that report, Dr Wojnarowska said, in relation to Mr Sloane's psychiatric diagnosis:
I concur with the previous psychiatrists' assessments that primary diagnosis is Antisocial Personality Disorder as evidenced by the history of a gross and persistent attitude of irresponsibility and disregard for societal norms, rules and obligations present from adolescence. There is also a comorbid history of alcohol and polysubstance abuse- currently in remission (in custody).
In relation to Mr Sloane's risk of reoffending and psychopathy, Dr Wojnarowska reported:
STATIC-99R
17.5.Mr Sloane achieved a score of 8, which places him in high risk category. The recidivism rate of sexual offenders with the same score would be expected to be 7 times higher than that of a typical sexual offender. This tool addresses historical risk factors and does not examine dynamic factors, the overall score is expected to match the previous assessments.
PCL-R
17.6Psychopathy traits are mostly stable over the lifespan. Mr Sloane achieved the highest (100 percentile range) score on the antisocial behaviour facet: persons in this range tend to be short tempered and aggressive; they led persistent antisocial life style with frequent and serious violations of social and legal expectations .In his case the elevation on this facet is consistent with Antisocial Personality diagnosis.
17.7He also achieved a high score on the interpersonal facet as evidenced by his impaired, self serving and shallow pattern of relating to others. Hopefully the insight, which started to develop during his individual treatment, will serve as a buffer in his future interactions.
17.8Mr Sloane's scores on the interpersonal and lifestyle facets were in moderate range and reflect his tendency to be manipulative, superficial, and impulsive and sensation seeking.
Dr Wojnarowska concluded:
Mr Sloane's risk of sexual reoffending remains high and is associated with his high risk of generalist violent recidivism, the presence of antisocial personality, psychopathic traits and alcohol use disorder. His treatment goals are being addressed and consolidated in his individual therapy. His management in the community would be challenging due to his propensity to non-adherence to the Orders, and institutionalisation. In the last year some gains in treatment have been made and it is expected that with the same level of engagement and motivation, Mr Sloane will make a [sic] progress.
In light of his treatment gains, Hall J concluded that Mr Sloane's risk of reoffending could be adequately met in the community. His Honour's findings included the following:[7]
Mr Sloane remains at high risk of re-offending. The factors that contribute to that risk include antisocial personality traits, a propensity to aggression and past misuse of drugs and alcohol. Whilst maintaining the stance of denial Mr Sloane has addressed a number of the factors which are relevant to the risk of his re-offending. In particular, he has undertaken programmes which have given him insight into his propensity for violence. He has developed a number of techniques for deflecting anger and remaining calm. He appears to have made significant progress in this regard, particularly in the last 12 months.
Mr Sloane's treatment gains have been reinforced by individual counselling. Whilst he continues to have treatment needs in this regard, all the indications are that these needs can be met in the community. Supervised release into the community can provide him with the opportunity to test and reinforce his learnt management techniques. He does require significant support, particularly given his lack of friends or family in Western Australia. However, he now recognises the need for this support. Continued engagement with his psychologist on a weekly basis, intensive management by community corrections officers and support by Outcare workers should minimise the risk of frustration and anger.
Performance under supervision
[7] Sloane [No 2] [42] ‑ [43] (Hall J).
Mr Sloane has been subject to the supervision order under the DSO Act (and recently continued under the Act), since that time.
According to the High Risk Serious Offenders Review Committee Summary, over that period, Mr Sloane contravened the requirements of the supervision order seven times (in 2017 and 2018). He was, however, only formally charged with breaching the order on one occasion, resulting in a formal charge and fine in the Magistrates Court of $1,000.[8] That occasion related to 12 minutes in October 2017 during which Mr Sloane was away from his handheld monitoring device. The other alleged breaches resulted in verbal or written warnings. None of them involved any offending, including any sexual offending.
[8] High Risk Serious Offenders Review Committee Summary dated 11 March 2021.
The High Risk Serious Offenders Review Committee Summary report stated that Mr Sloane has been engaging well with the reporting requirements under the supervision order, has provided only negative urinalysis results to illicit substances and has actively engaged in more than 68 psychological counselling sessions.
Mr Sloane is now living in private rental accommodation with a new partner. His relationship with the partner is considered a 'significant stabilising factor in Mr Sloane's life.'[9] Mr Sloane undertakes voluntary work at a motorcycle shop and has been doing so since his release from prison in 2017. Since August 2018, he has not been subject to any curfew restrictions.
[9] High Risk Serious Offenders Review Committee Summary dated 11 March 2021, 4 ‑ 5.
Dr Galloghly was Mr Sloane's treating clinical psychologist. For that reason, his report of 14 April 2019 did not address the risk of recidivism.
In relation to the psychological counselling sessions Mr Sloane has engaged in, Dr Galloghly stated that:
Mr Sloane engaged well in counselling and has adapted well to the community. His time on CSO to date has been noted for his high energy and motivation levels to achieve personal goals such as gaining employment, getting his motorcycle license, and securing stable accommodation. Initially he was very social in his interaction with people he met in the street when walking around. Additionally, he espoused a gregarious / helping personality trait of assisting women in need. However, Mr Sloane came to appreciate the benefits of avoiding negative peer influences, and of not associating with females who were intoxicated, or could be a negative influence.
Mr Sloane had some difficulty accepting what he sees as punitive order directions such as his curfew and GPS tracker. When frustrated, he often defaulted to his maintained innocence of sexual offending. However, his reaction to challenges (which he views as 'roadblocks') was not considered abnormal. Overall, he engaged well in the supervision process and began to accept that his conditions would only be ameliorated with time. He was especially positive when his curfew and restrictions about going to beaches were lifted.
Mr Sloane likes to achieve his targets quickly, which is linked to his impulsive personality trait. He was able to work on resisting quick decision-making and having a long-term goals approach. He has also been able to refer back to what he learned in the VOTP in the way he deals with his emotions and frustration.
In regard to substance use, Mr Sloane has consistently reported confidence in remaining abstinent and reported no real desire to use alcohol or substances. At times he vented that he should be allowed to have a beer with work colleagues or his partner. However, this issue seems more related to his sense of having freedom and being treated as a man. His partner Pam appears to be a positive support in remaining abstinent as they are able to do many things together devoid of alcohol or drugs.
Mr Sloane's long-term relationship with his partner … who he met in October 2017 has been positive and supportive. While it is noted that [his partner] has a history of substance use, being itinerant, and socialising with antisocial peers in the street; she is seemingly at a stage in her life where she wants to eschew that sort of behaviour and move towards stability. It appears that Mr Sloane and [his partner] both feed off a desire to be more mature, have stable accommodation and money, and overall have a regular lifestyle. They have recently got engaged and bought a dog.
In regards to sexual issues, Mr Sloane has consistently and vehemently denied ever committing sexual offences. He acknowledged he has previously been violent towards women. He views being labelled as sex offender with shame and anger. Mr Sloane prides himself on being chivalrous and has a history of trying to help women in need. He acknowledged previously having a high sex drive, being promiscuous, and having a high number of sexual partners through his involvement in drug dealing and the sex industry in Kings Cross, Sydney. Since being released from prison on a CSO he has denied having a high sexual drive and seemingly did not seek brief sexual experiences. He now reports having a regular sexual libido for a man of his age, while his sex drive has likely been affected by his cardiovascular issues.
Dr Galloghly noted that Mr Sloane was at higher risk of violent reoffending than sexual reoffending, particularly if he were to relapse into substance use, amongst other risk factors.
Dr Galloghly stated that Mr Sloane had engaged well with counselling and had positive relationships with those involved in risk management. Indeed, Dr Galloghly reported that Mr Sloane frequently called monitoring officers and seemed to attach value from being part of an organisation or collective.
Ultimately, Dr Galloghly recognised that Mr Sloane had made significant progress while on the supervision order, stating:
Overall, Mr Sloane has made significant progress in the community and appears settled, orientated towards prosocial goals, and motivated to complete his order appropriately. He has engaged well in counselling and general supervision. His risk profile is loaded on typical violent risk factors associated with substance use, impulsivity, hostility, associating with antisocial peers, and rejection of supervision. Any increase in risk should allow for interjection. Mr Sloane responds well to a collaborative and supportive approach to management and supervision.
Assessment
It will be apparent from the evidence summarised above, that Mr Sloane has (despite some relatively minor failures) performed very well under supervision. He has remained essentially offence free for many years and has made significant progress in living a productive, pro-social lifestyle.
It is extremely unfortunate that, notwithstanding that the State determined that it would make a further application under the Act as early as April 2021 (when the High Risk Serious Offenders Committee referred the matter), no steps were taken to assess Mr Sloane's present risk of offending. That could readily have been done before the expiration of his original supervision order. As it was not done, the most recent risk assessment is that of Dr Wojnarowska from 2016. The most recent report from a psychiatric or psychological professional is that of Dr Galloghly dated 14 April 2019. Not only is that report almost three years old, it expressly states that it 'does not provide a full psychological assessment or address the risk of recidivism'.[10]
[10] Treatment completion report prepared by Dr Dylan Galloghly (Exhibit 2), 1.
I must therefore make the assessment required by s 46 of the Act by reference to limited (and outdated) information. This does not, of course, remove the obligation upon me to make that assessment but it does mean that any conclusions that I am able to make will necessarily involve a degree of conjecture and must be so understood. In that regard, of course, the test required by s 46 is one to be made having regard to grounds for believing that there is a possibility that the Court will make an order.
Given the consequences, even of a finding under s 46, for the liberty of a person the subject of an application under the Act, it would be preferable in a case such as this, particularly where a new order is sought following the apparent success of a previous order, that proper steps be taken to provide some up‑to‑date assessment of risk (however preliminary) prior to the application being brought.
That said, based on the material before me, I am satisfied that there are reasonable grounds to believe that the Court might find Mr Sloane to be a high risk serious offender within the meaning of the Act.
It will be apparent that, in so concluding, I recognise that Mr Sloane has not committed a sexual assault or any other offence amounting to a serious offence under the Act for many years. Other than the relatively minor contraventions of his supervision order I have referred to above, he has remained offence free since 2004. That is a long time ago, and together with his impressive performance while on supervision, suggests that Mr Sloane's risk has been significantly reduced with the passing of time. It also speaks highly of the effect of supervision and of the efforts of those treating and supervising Mr Sloane.
Mr Sloane's successful completion of the supervision order made by Hall J, in my view, provides good reason to think that Mr Sloane is no longer an unacceptable risk to the community. It therefore may be that, at the hearing of the restriction order application, the State will not meet its burden under s 7 of the Act. The making of a restriction order in this case is far from a foregone conclusion.
Nevertheless, that is not the test and, in my view there are four matters that give rise to reasonable grounds for believing that the Court might make a further order.
First, the depravity of Mr Sloane's significant sexual offending, and his past propensity for violence, cannot be ignored. The offences committed in 2002 and 2003 had a number of disturbing elements in common. While only the 2003 offences involved serious sexual offending, they each involved women being detained over substantial periods of time, being beaten and having their lives threatened. Such an apparent pattern in offending in my assessment provides reasonable grounds for a heightened concern that there is a risk of recurrence (even today).
Secondly, all of the available psychiatric reports identify personality traits or disorders in Mr Sloane (such as an anti-social personality and psychopathic traits). At least on the available evidence, while manageable, these personality traits appear unlikely to have gone away. Dr Wojnarowska, for example, reported that psychopathy traits are mostly stable over the lifespan and Dr Brett described Mr Sloane's risk as 'chronic'.
Thirdly, Mr Sloane has always denied, and continues to deny, his offending. This has long been identified as a risk factor and it has not gone away.
Finally, as Dr Galloghly noted, Mr Sloane 'still benefits from support in taking a step-back from decision-making and behaviour' and 'he frequently calls monitoring officers and seems to attach some form of value from being part of an organisation or collective.' In this way it can be seen that Mr Sloane himself has come to recognise that supervision is a matter that reduces his risk of offending. His performance without supervision is untested and, more importantly, there is no evidence as to the likely risk of removing the support that Mr Sloane derives from supervision.
I therefore made orders for the hearing of the restriction order application and for Mr Sloane to be examined by a psychiatrist and a psychologist for the purpose of that hearing.
Interim supervision order
In the meantime, the State applied for an order extending the present supervision order pending the determination of the restriction order application; that is, for me to make an interim supervision order under s 58(3) of the Act in the same terms as the order to which he is currently subject.
I am satisfied that it is appropriate for the protection of the community that Mr Sloane continue to be subject to an interim supervision order pending the determination of these proceedings. It is important at this time, while Mr Sloane is being assessed under the Act, not to interrupt the support he has received from the monitoring team and the effect of the order in ensuring that any risk to the community does not materialise.
For those reasons I ordered that Mr Sloane be subject to an interim supervision order until the completion of the restriction order hearing.
I certify that the preceding paragraphs comprise the reasons for decision of the Supreme Court of Western Australia.
LH
Principal Associate to the Honourable Chief Justice Quinlan
14 FEBRUARY 2022
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