Attorney General for New South Wales v JS (Preliminary)

[2024] NSWSC 1597

Supreme Court

New South Wales

• Amendment notes

Medium Neutral Citation:

Attorney General for New South Wales v JS (Preliminary) [2024] NSWSC 1597

Hearing dates:

11 December 2024

Date of orders:

11 December 2024

Decision date:

12 December 2024

Jurisdiction:

Common Law

Before:

Yehia J

Decision:

(1)   Two qualified psychiatrists, registered psychologists or medical practitioners (or a combination of such persons) are to be appointed to conduct separate examinations of the defendant and furnish reports to the Supreme Court on the results of those examinations by a date to be fixed by the Court.

(2)   The defendant is directed to attend those examinations.

(3)   The defendant is subject to an interim order for the extension of his status as a forensic patient commencing upon the expiry of his current limiting term on 11 December 2024, for a period of three months thereafter.

(4)   Access to the Supreme Court’s file in respect of any document shall not be granted to a non-party without the leave of a judge of the Court and, if any application for access is made by a non-party in respect of any document the parties are to be notified by the Registrar so as to allow them an opportunity to be heard in relation to the application for access.

(5) Pursuant to s 7 of the Court Suppression and Non-Publication Orders Act 2010 (NSW) upon the ground set out in s 8(1)(a) of the Act, the defendant’s name is to be suppressed in these proceedings and the defendant is to be referred to in connection with these proceedings, including in any published court list, by the pseudonym “JS”.

(6) Pursuant to s 11(2) of the Court Suppression and Non-Publication Orders Act 2010 (NSW), Order 5 applies throughout the Commonwealth of Australia.

(7) Pursuant to s 12 of the Court Suppression and Non-Publication Orders Act 2010 (NSW), Order 5 is to operate for a period of five years from the date of these orders.

Catchwords:

MENTAL HEALTH – preliminary hearing – forensic patient – extension of status as forensic patient – schizophrenia – whether unacceptable risk of causing serious harm to others – consideration of other adequate, less restrictive management regimes – extension of status as forensic patient granted

Legislation Cited:

Crimes Act 1900 (NSW), s 61 KC(a)

Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW), ss 72(1)(b), 126(5), 121, 122, 130, 131; Pt 6

Mental Health (Forensic Provisions) Act 1990 (NSW), ss 32, 33

Crimes (High Risk Offenders) Act 2006 (NSW)

Cases Cited:

Attorney General for the State of New South Wales v Boyce by his tutor Jennifer Thompson [2017] NSWSC 144

Attorney General for the State of New South Wales v Tillman [2007] NSWSC 605

Attorney General of New South Wales v Kereopa (No 2) [2017] NSWSC 928

Attorney General of New South Wales v Skerry (Preliminary) [2015] NSWSC 859

Cornwall v Attorney General for New South Wales [2007] NSWCA 374

Lynn v State of New South Wales [2016] NSWCA 57

State of New South Wales v Thomas (Preliminary) [2011] NSWSC 118

Category:

Principal judgment

Parties:

Attorney-General for New South Wales (Plaintiff)
JS (Defendant)

Representation:

Counsel:
A Wong (Plaintiff)
S Fraser (Defendant)

Solicitors:
Crown Solicitor’s Office (Plaintiff)
Caulfield Solicitors (Defendant)

File Number(s):

2024/00458507

Publication restriction:

Nil

Ex Tempore Judgment (revised)

1. By way of summons filed on 9 December 2024, the Attorney General for New South Wales (“the plaintiff)” seeks an extension order under Pt 6 of the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW) (“the MHCIFP Act”) in relation to JS (“the defendant”) extending his status as a forensic patient for a period of two years.

2. A tutor has been appointed and the Consent to Act as a Tutor has been filed.

3. This is the preliminary hearing. The plaintiff applies for the following interim relief:

1. An order pursuant to s 126(5) of the MHCIFP Act appointing two qualified psychiatrists, registered psychologists or medical practitioners (or a combination of such persons) to conduct separate examinations of the defendant and furnish reports to the Court on the results of those examinations by a date to be fixed; and directing the defendant to attend those examinations; and

2. An order pursuant to ss 130 and 131 of the MHCIFP Act, that the defendant be subject to an interim order for the extension of his status as a forensic patient commencing upon the expiry of his current limiting term on 11 December 2024, for a period of three months thereafter.

4. The application is urgent, given that the limiting term expires on 11 December 2024. The delay in filing the summons is explained in the affidavit of Aleksandra Jez, sworn on 9 December 2024. The delay in bringing the application arose from the backdating of the defendants limiting term. On 13 June 2023, the defendant was charged with intentional sexual touching without consent contrary to s 61KC(a) of the Crimes Act 1900 (NSW), committed on 12 June 2023 (“the index offence”).

5. On 30 August 2024, at Moree District Court, Marien SC ADCJ found the defendant unfit to be tried for the index offence and determined that the defendant will not become fit to be tried within 12 months. On 21 November 2024, following a special hearing at Moree District Court, Sutherland SC DCJ found the defendant, on the limited evidence available, guilty of the index offence. His Honour nominated a limiting term of 18 months. The limiting term was backdated to commence on 12 June 2023, expiring 11 December 2024. The defendant is a “forensic patient” because he is a person for whom a limiting term has been nominated after a special hearing: s 72(1)(b) of the MHCIFP Act.

6. As a result, the preliminary hearing has been expedited and it is necessary to determine the application promptly. I am grateful to the legal representatives for the plaintiff and the defendant for their assistance. Each counsel has provided helpful written submissions that allow me to determine the application before the limiting term expires.

7. Due to the limited notice that has been provided to the defendant, his legal representatives have been unable to properly advise and take instructions from the defendant. The defendant is not, therefore in a position to consent to the orders proposed. However, the defendant and those who represent him have assisted the Court with comprehensive submissions. It is accepted that the material relied upon by the plaintiff is capable of supporting the plaintiff’s contention such that it would be open to the Court to make orders of the type sought by way of interim relief.

8. In taking that position, the defendant makes no concession as to the appropriateness or otherwise of final orders and reserves his right to oppose orders as sought in prayer three of the plaintiff’s summons, at any subsequent final hearing.

Index Offence

9. The index offence which gave rise to the defendant’s forensic patient status is an offence of sexual touching without consent. The offence occurred on 12 June 2023, in the context of police observing the defendant being unsteady on his feet, making abnormal hand gestures and not engaging with his surrounds. He admitted to having injected “ice”. An ambulance was called, and he was admitted to Moree Hospital. The victim, a treating nurse, attended to assist the defendant. As she started to record his blood pressure he began to rub his groin area. The victim told the defendant to keep still. He continued rubbing his groin. He got up from the bed and pulled his pants down, exposing his penis. The defendant then grabbed the back of the victim’s neck, pulled her head down and said, “Hey miss why don’t you suck it”.

10. The victim screamed, pushed the defendant away and left the room, making an immediate complaint. The defendant was arrested on 13 June 2023 and has been in custody since that time. The special hearing took place on 21 November 2024. As indicated above, the defendant received a limiting term of 18 months to date from his arrest on 12 June 2023, expiring on 11 December 2024.

Background of the Defendant

11. The defendant is a 30 year old Kamilaroi man from Moree. The defendant was born premature to an alcohol dependent mother. There are reports of likely Foetal Alcohol Spectrum Disorder (“FASD”) although there has been no definitive diagnosis. His biological father has schizophrenia, drug addiction and repeated involvement in the criminal justice system. The defendant has three brothers and three sisters. He was taken into the care of his extended family at the age of seven months as his parents were unable to care for him. He was raised by foster parents, a maternal aunt and her partner. He was raised in a stable environment with his foster parents, having limited contact with his biological parents.

12. The defendant experienced serious behavioural problems in childhood, with criminal charges commencing at the age of 14 and his first psychiatric admission at the age of 15. It is unclear if the defendant has ever experienced stable and independent living. He has moved between extended family members in Grafton, Ballina, Lismore, and Tamworth. He spent periods in juvenile detention and, as an adult, in prisons. He has also been homeless at times.

13. The defendant was diagnosed with Attention Deficit Hyperactivity Disorder (“ADHD”) during primary school and was prescribed stimulant medications at that time. He attended Ballina High School until Year 9. The cessation of his schooling followed periods of suspension for fighting and the onset of cannabis use.

14. The defendant has no history of paid employment. He has been on the disability support pension since the age of 18, secondary to his mental illness diagnosis. The defendant has been diagnosed with schizophrenia, intellectual disability (mild), polysubstance use disorder and antisocial personality disorder. These diagnoses are significant disadvantages that have undermined the defendant’s functioning and adjustment severely throughout his life.

15. The defendant has an extensive history of substance abuse. He began smoking cannabis at age 12, experimenting with methylamphetamine at age 15 and subsequently commenced intravenous use of that drug.

16. His criminal history commenced in the Children’s Court in 2008 when he was 14 years old. It includes a range of convictions for property offences and possession of prohibited drugs. The defendant has multiple convictions for personal violence offences including common assault, assault occasioning actual bodily harm, assault police, contravening an Apprehended Domestic Violence Order (“ADVO”) and carrying a knife in a public place.

17. Several offences have been dealt with pursuant to ss 32 and 33 of the now repealed Mental Health (Forensic Provisions) Act 1990 (NSW).

Mental Illness and Mental Health Conditions

18. The defendant has a complex psychiatric history, with diagnoses across domains of neurodevelopmental, major mental illness, substance use disorder and personality disorder. His overall dysfunction is explained by the consolidation of diagnostic conditions set out in the report of Mr Patrick Sheehan, Forensic Psychologist, dated 4 December 2024.

19. The defendant has been diagnosed with an Intellectual Developmental Disorder or Intellectual Disability (mild). This is a neurodevelopmental disorder onset during the developmental years and includes both intellectual and adaptive functioning deficits. The defendant is noted as having concrete and simplistic thinking since his earlier psychiatric admissions in 2013. Although there is some speculation that the defendant has an intellectual disability secondary to FASD (Dr Chengzhang Li, 4 March 2024), there does not appear to be a clinical diagnosis of FASD. Whilst his impaired intellectual functioning is developmental in origin, it is likely that there has been further cognitive decline associated with the defendant’s psychiatric illness.

20. Mr Sheehan notes that due to the defendant’s disability, he is eligible for National Disability Insurance Scheme (“NDIS”) support, potentially opening a range of supports including risk case management, psychological support, community engagement and supported accommodation.

21. The defendant has a diagnosis of schizophrenia with his first psychiatric admission in 2010. Since that time, he has had over 12 admissions to mental health facilities and multiple admissions whilst in custody. His symptoms include delusions, hallucinations, disorganised speech, grossly disorganised and catatonic behaviour, diminished emotional expression and avolition.

22. The defendant’s mental health in the months leading up to the index offence is well documented. The progress notes from Ipswich Hospital for the period between 31 May 2023 and 7 June 2023, described the defendant as being guarded and showing “extremely bizarre movements, having multiple unexplained wounds and injuring himself, setting his room on fire, fatuous affect, masturbating in public spaces in the hospital and during psychologist reviews”.

23. It would seem that the defendant was clearly unwell at the time of the index offence. He was discharged to the care of his foster parents on 8 June 2023, only to be arrested for the index offence four days later. The defendant continued to be unwell on his admission to custody. He continued to display sexually disinhibited behaviour, masturbating in the presence of a female psychiatrist.

24. Justice Health notes suggest improved stability since May 2024 although the defendant has remained guarded and lacking in insight. Episodes of aggression towards himself and others have however reduced. There have been occasions when he has refused to take his medication but is currently treated with the atypical antipsychotic medication, olanzapine; the SSRI antidepressant, sertraline; and benztropine.

25. The defendant meets the criteria for cannabis use disorder (mild-moderate and in extended remission in a controlled environment) and stimulant use disorder – amphetamine-type substance (mild-moderate, in sustained remission in a controlled environment).

26. The defendant also meets the diagnostic criteria for antisocial personality disorder, defined as a pervasive pattern of disregard for and violation of the rights of others.

Legislative Framework

27. Section 121 of the MHCIFP Act empowers this Court to extend a person’s forensic patient status. Section 122 provides:

122 Forensic patients in respect of whom extension orders may be made

(1) A forensic patient can be made the subject of an extension order as provided for by this Part if and only if the Supreme Court is satisfied to a high degree of probability that:

(a) the forensic patient poses an unacceptable risk of causing serious harm to others if the patient ceases to be a forensic patient, and

(b) the risk cannot be adequately managed by other less restrictive means.

(2) The Supreme Court is not required to determine that the risk of a person causing serious harm to others is more likely than not in order to determine that the person poses an unacceptable risk of causing harm to others.

28. The test in s 122 requires satisfaction to a “high degree of probability” in respect of both questions, unacceptable risk of harm and whether such risk can be managed by less restrictive means. This constitutes a standard of proof which is higher than the civil standard, but lower than the criminal standard: State of New South Wales v Thomas (Preliminary) [2011] NSWSC 118 at [14]; Attorney General for the State of New South Wales v Tillman [2007] NSWSC 605 at [27]; Cornwall v Attorney General for New South Wales [2007] NSWCA 374 at [21].

29. In Lynn v State of New South Wales [2016] NSWCA 57 (“Lynn”), Beazley P held at [51] that the determination of the existence of an “unacceptable risk” in the Crimes (High Risk Offenders) Act 2006 (NSW), is an evaluative task and what the Court “must find to be unacceptable is the risk that the offender poses of committing a serious violence offence if… not kept under supervision”. The determination of “unacceptable risk” requires the exercise of the discretionary judgment.

30. In Attorney General for the State of New South Wales v Boyce by his tutor Jennifer Thompson [2017] NSWSC 144, Davies J, applying the approach taken in Lynn, concluded at [12] that the words “unacceptable risk” should be given their ordinary meaning and “the right of an offender to his or her personal liberty at the expiry of the sentence of imprisonment being served is not a relevant consideration in the determination of whether a person poses an ‘unacceptable risk’”. When considering whether “unacceptable risk” exists, the assessment is based on the risk the defendant poses if he ceased to be a forensic patient: Attorney General of New South Wales v Skerry (Preliminary) [2015] NSWSC 859 at [40].

31. In Attorney General of New South Wales v Kereopa (No 2) [2017] NSWSC 928, R A Hulme J noted at [16], that serious harm included physical and psychological harm. In terms of physical harm, it does not require to the level of “grievous bodily harm” but must be more than “actual bodily harm”. In terms of psychological harm, it must be something more than emotions such as fear or panic.

32. In addition to the first limb, I must be satisfied to a high degree of probability that the risk the defendant poses, “cannot be adequately managed by other less restrictive means”: s 122(1)(b) of the MHCIFP Act.

33. The MHCIFP, at s 127(2), provides a non-exhaustive list of matters which are to be considered when determining whether to make an extension order. The relevant matters will be addressed below.

The report of the qualified psychiatrist provided under s 125(b) of the MHCIFP Act

34. I have already summarised, in a general sense, the evidence in respect of the applicant’s mental illness and mental health conditions. I turn to the Risk Assessment Report of Mr Sheehan and, in particular, to a summary of the assessment of risk. Assessing the defendant against the Level of Service Inventory-Revised (LSI-R) criteria, Mr Sheehan regarded the defendant “to be in the high risk category for general offending, relative to other inmates.”

35. The primary pathways to causing serious harm to others related to the defendant’s physical aggression and disinhibited sexual behaviour. The defendant was also assessed utilising the Violence Risk Scale (“VRS”), a tool specifically developed to assess the risk of violence for forensic patients. The overall result of the VRS estimated the defendant’s risk of violence as within the high range.

36. Mr Sheehan noted that the defendant had poor emotional control and experienced episodes of interpersonal violence. Mr Sheehan regarded the defendant’s release in June 2023, days before the index offence, to have been a high-risk situation. He opines that release from custody at the expiration of the limiting term, without a Community Treatment Order (“CTO”), stable residence and other supports “would be a high-risk situation, carrying a risk of rapid deterioration through cumulative poor decisions”.

37. Mr Sheehan concluded that “the totality of information supports the view that [the defendant] presents a high risk of violence reoffending and there is no evidence to support the view that his circumstances have changed in any way that could be said to protect against his return to similar offending behaviour in the future”. In addition, Mr Sheehan stated “it is difficult to predict the outcomes from spontaneous expressive violence. Carrying a knife when agitated and psychotic is a clear risk factor towards serious harm”.

38. The defendant’s index offence was of a sexual nature and involved the sexual attack upon a treating nurse. The offence was preceded and followed by disinhibited sexual behaviour, including masturbating in public areas and engaging in similar behaviour in custody during the second half of 2023. Mr Sheehan opined that the personal, invasive and potentially traumatic sequelae of this type of sexual behaviour (masturbating in public or sexual touching) was “another pathway to serious harm for [the defendant]”.

34. The defendant’s risk of sexual reoffending, using the actuarial risk assessment, the STATIC-99R, is in the “well above average risk category” relative to other male sexual offenders. Mr Sheehan opines that the dynamic risk factors relating to the defendant’s sexual offending behaviour were heavily influenced by his mental illness, being in a psychotic and disorganised state where his judgment is badly compromised. Mr Sheehan’s conclusion is that an “examination of the defendant’s history and analysis of his case against empirically established risk factors all suggest that he presents a high risk of reoffending for both offence types and are both offence types are closely linked with acute phases of his psychotic illness”. Mr Sheehan was there referring to interpersonal violence and sexual offending.

35. Following on from the opinion that the defendant presented a high risk, Mr Sheehan stated that a “detailed” coordinated multidisciplinary release plan is critical. What is required is an integrated multidisciplinary approach to treat and monitor the defendant. Without such an integrated approach his prognosis remains poor.

36. As has been pointed out by the plaintiff, no detailed coordinated multidisciplinary release plan has been put forward by the defendant. This is unsurprising however, given the delay in bringing the application and the urgency with which the matter has been listed for hearing.

Any other report of a qualified psychiatrist registered psychologist or registered medical practitioner provided in support of the application or by the forensic patient

42. In addition to the report of Mr Sheehan, several psychiatrists and psychologists have prepared reports in relation to the defendant. The defendant has been the subject of multiple psychiatric admissions both in custody and in the community. Several of the psychiatric and psychological reports are contained in Exhibit AJ-1 and are summarised in the plaintiff’s Statement of Case in respect of the present application at [29]-[48]. It is accepted on behalf of the defendant that that summary is a fair summary of the material. In light of the limited time available, I will simply reproduce that summary in this judgment:

“Fitness Report of Dr Andrew Ellis dated 3 May 2024

29 Dr Andrew Ellis, forensic psychiatrist, prepared a fitness report on 3 May 2024. Prior to the index offence, the defendant was residing with family in Moree after his release from custody in Queensland. He was not taking any prescription medication and was not seeing any health professionals.

30 Since entering custody for the index offence, at the time of Dr Ellis' report, the defendant was not engaged in any work, education or therapy, was seeing Dr Martin Reading, was prescribed Olanzapine and the long-acting injectable antipsychotic medication Haloperidol. He also took Benztropine for side-effects.

31 The defendant reported that he began hearing voices in 2009 and they stopped 5 years ago due to the Olanzapine. The voices sounded like males and females he knew but he could not generally understand them. He did recall the voices telling him that hitmen were after him. The defendant communicated hallucinations including that people on the television were doing "funny faces" directed at him and felt that they were trying to communicate with him. He believed that he could send his thoughts out for other people to hear.

32 Dr Ellis reviewed Justice Health entries in the recent custody period. He noted the defendant was generally reported as compliant and settled. He did note an entry on 27 September 2023 where the defendant was shouting that wanted to kill himself, had punched a wall, jumped from his bed and was handcuffed to a door by officers as a result. He was assessed as acutely agitated and required sedation. On the same day he reported hearing voices. In late September and early October 2023, he was noted to masturbate inside his cell when female staff were walking past and made sexual comments to female staff.

33 Dr Ellis found that the defendant met the criteria for a diagnosis of schizophrenia. This diagnosis was supported by documented observations of hallucinations, delusions, thought disorder and grossly disorganised behaviour in custody and hospital settings. The disorder had been present for years. Dr Ellis also found the defendant met the criteria for a substance use disorder comprising the use of alcohol, cannabis and methamphetamine.

34 Dr Ellis said it was likely the defendant suffers from a premorbid intellectual disability.

35 Ultimately, Dr Ellis found that the defendant was unfit to be tried.

Fitness report of Lucienne Barban dated 28 June 2024

36 Lucienne Barhon, clinical neuropsychologist, also prepared a fitness report dated 28 June 2024 after assessing the defendant for a total of 4 hours and 15 minutes. The defendant expressed to Ms Barhon having remained abstinent from all non-prescribed substances during the current period of incarceration, though "he commented having no interest in reducing or ceasing his drug use, and intended to return to his former pattern of substance use on returning to the community".

37 The defendant denied any issues in relation to cognition, although acknowledged some memory difficulties which he attributed to his history of substance abuse. In contrast to the reviewed documentation, he denied any medication non-compliance.

38 In relation to mental health history, he reported using a spiked needle at age 15 that resulted in a drug induced psychosis. He recalled hearing "voices" and was treated in a hospital mental health unit. He was aware of further hospitalisations over subsequent years and had been treated with various medications and recalled being diagnosed with schizophrenia.

39 Leading up to the index offence, the defendant reported being off medication for one to two years. He described that at the time of the offence someone had been "controlling" him and that this continued intermittently for several months. He described other occasions in custody where he felt his body was being "controlled'' by an external force causing him to do things such as punch the walls of his cell and on one occasion inappropriately touch a female guard.

40 Ms Barhon referred to relevant Justice Health entries and identified multiple instances of medication non-compliance. On 25 September 2023 he was observed responding to unseen stimuli and had a restricted affect. Psychiatric review on 27 September 2023 was conducted after he become highly agitated (including striking the wall and jumping head-first from his bed and toilet) and stated wanting to kill himself "due to the voices". He was reluctant to engage in meaningful conversation and repeatedly stated wanting to kill himself and ultimately became verbally hostile. On 30 September 2023 and 2 October 2023, he was noted to be sexually disinhibited and display sexually inappropriate behaviour directed toward female staff.

41 Ms Barhon assessed the defendant's intelligence using the Weschler Adult Intelligence Scale - Fourth edition (WAIS-IV). Overall, his Full-Scale IQ was in the Extremely Low range at the 1st percentile, being in the range of a Mild Intellectual Disability. Ms Barhon found the defendant met the DSM-5 criteria for Mild Intellectual Disability.

42 Ms Barhon found the defendant was unfit to stand trial.

Report of Dr Kevin Bragge dated 20 September 2023

43 Dr Kevin Bragge, psychiatry registrar, prepared a report for the Tribunal dated 20 September 2023. The defendant was admitted to Long Bay on the 7 August 2023. He was assessed as being in an acute relapse of his schizophrenia characterised by auditory hallucinations and a serious disorder of thought form with prominent poverty of content. He was noted to be severely behaviourally disinhibited, frequently masturbating in the presence of female staff. He was repeatedly punching walls during his admission, causing lacerations to his hands.

44 Dr Bragge was of the view the defendant remained highly guarded, profoundly thought blocked, seriously thought disordered, and blunted in affect. He remained acutely mentally unwell with coercive treatment remaining the least restrictive safe option. He refused oral medications which in response depot was increased.

Report of Laura Mason dated 28 July 2023

45 Laura Mason, psychologist, noted that the defendant was, "observed to be deteriorating in self-care, guarded, appears to be experiencing auditory hallucinations. Has been injuring himself, scratching names into his skin, punched wall. Refusing medication for schizophrenia and refusing physical health care. Acute risk issues denied by patient, patient currently in single cell and monitored".

46 After interviewing the defendant for 5 minutes, he appeared to look towards the door to check if an officer was there, and when he couldn't see anybody, began masturbating. The officer told him to stop, however when the officer was again out of sight, he recommenced, and the interview was terminated.

47 Ms Masons impression of the defendant was that he was refusing medication, had no insight and presented as responding to unseen stimuli. He was guarded and unable to engage, increasing self-harming behaviours, as well as acting in a sexually inappropriate manner.”

Any order or decision made by the MHRT with respect to the defendant which is relevant to the application: s 127(2)(e)

43. The defendant has at varying times been subject to review by the MHRT. Orders that the defendant be subject to a CTO or Forensic Community Treatment Order (“FCTO)” have been made with some regularity. When reviewing the defendant’s case in the past, the MHRT has determined that continued intervention was necessary to ensure the safety of the defendant and the community.

The level of the defendant’s compliance and information as to the risk that the defendant will in future cause serious harm to others: s 127(2)(g) and (i)

44. The material discloses that the defendant’s condition has fluctuated and has included periods of relative stability and also periods of psychosis. It is accepted on his behalf that a matter of concern relates to the defendant’s poor history of compliance with prescribed medication. The defendant has limited insight into his condition and appreciation of the need for continued treatment including medication.

45. The defendant has some history of non-compliance with court orders. In particular contraventions of ADVOs and breaches of bail and good behaviour bonds. It is accepted on his behalf that the stated history elevates the risk of occurrence of an act of violence.

The views of the Court that imposed the limiting term at the time that the limiting term was imposed: s 127(2)(h)

46. In his Remarks on Sentence, Sutherland DCJ, noted that the index offence was such that there was “no doubt” that if the matter had proceeded as a trial at law, a sentence of imprisonment would have been imposed. His Honour noted that the period of presentence custody, backdating the limiting term to take into account that period.

Disposition

47. I accept the submission made on behalf of the defendant that the index offence, while undoubtedly serious, is far from the most serious form of violence or sexual violence. However, the evidence before the Court includes a history of inappropriate sexualised behaviour which is associated with a deterioration in the defendant’s mental health. While the previous acts (masturbation) do not rise to the level of “serious harm”, their existence is a matter of informative risk.

48. I have had regard to the psychiatric history of the defendant and, in particular, the contents of the Risk Assessment Report prepared by Mr Sheehan. The defendant is assessed by Mr Sheehan as being in the high risk category for general offending relevant to other inmates. His overall risk for violence is within the high range. The defendant’s risk of sexual reoffending placed him in the “well above average risk” category.

49. Of some significance in this case is the defendant’s release into the community in June 2023, without a CTO, stable accommodation, and other supports. Days later, the defendant committed the index offence.

50. I am satisfied that the matters alleged in the supporting documentation, if proved, justify the making of an extension order. At this stage, in the absence of a proposed management regime, I am not satisfied to a high degree of probability that the defendant’s risk can be adequately managed by other less restrictive means. I agree with the plaintiff’s submission that at a bare minimum, what is required is a properly constructed release plan, aimed at addressing the unique risks the defendant poses and that ensures the defendant is properly supervised and his mental illness properly treated. In addition, there would have to be some evidence of the defendant’s willingness to seek out assistance in the community through a multifaceted plan involving a CTO and NDIS supports.

Orders

51. Accordingly, I make the following orders:

1. Two qualified psychiatrists, registered psychologists or medical practitioners (or a combination of such persons) are to be appointed to conduct separate examinations of the defendant and furnish reports to the Supreme Court on the results of those examinations by a date to be fixed by the Court.

2. The defendant is directed to attend those examinations.

3. The defendant is subject to an interim order for the extension of his status as a forensic patient commencing upon the expiry of his current limiting term on 11 December 2024, for a period of three months thereafter.

4. Access to the Supreme Court’s file in respect of any document shall not be granted to a non-party without the leave of a judge of the Court and, if any application for access is made by a non-party in respect of any document the parties are to be notified by the Registrar so as to allow them an opportunity to be heard in relation to the application for access.

5. Pursuant to s 7 of the Court Suppression and Non-Publication Orders Act 2010 (NSW) upon the ground set out in s 8(1)(a) of the Act, the defendant’s name is to be suppressed in these proceedings and the defendant is to be referred to in connection with these proceedings, including in any published court list, by the pseudonym “JS”.

6. Pursuant to s 11(2) of the Court Suppression and Non-Publication Orders Act 2010 (NSW), Order 5 applies throughout the Commonwealth of Australia.

7. Pursuant to s 12 of the Court Suppression and Non-Publication Orders Act 2010 (NSW), Order 5 is to operate for a period of five years from the date of these orders.

Amendments

12 December 2024 - Typographical correction to coversheet

Decision last updated: 12 December 2024