Attorney General for New South Wales v McGuire (Preliminary) - [2021] NSWSC 1222

Supreme Court

New South Wales

Medium Neutral Citation: Attorney General for New South Wales v McGuire (Preliminary) [2021] NSWSC 1222
Hearing dates: 4 August 2021
Date of orders: 12 August 2021
Decision date: 27 September 2021
Jurisdiction: Common Law
Before: Walton J
Decision:
The Court makes the following orders:
(1) An order pursuant to s 126(5) of the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW):
(a) Appointing two qualified psychiatrists, or two registered psychologists (or a combination of such persons) to conduct separate examinations of the defendant and to furnish reports to this Court on the results of those examinations by a date to be fixed by the Court; and
(b) Directing the defendant to attend those examinations.
(2) An order pursuant to ss 130 and 131 of the Act, that the defendant be subject to an interim order for the extension of his status as a forensic patient commencing from midnight on 13 August 2021 and expiring 12 November 2021.

Catchwords:
CIVIL – Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW) – application for interim extension order – general principles – forensic patient – limiting term due to expire – factors under s 127(2) – unacceptable risk – orders

Legislation Cited:
Crimes Act 1900 (NSW)
Crimes (High Risk Offenders) Act 2006 (NSW)
Criminal Procedure Act 1986 (NSW)
Mental Health Act 2007 (NSW)
Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW)
Mental Health (Forensic Provision) Act 1990 (NSW)
Terrorism (High Risk Offenders) Act 2017 (NSW)

Cases Cited:
Attorney General for New South Wales v Bragg (Preliminary) [2021] NSWSC 439
Attorney General for New South Wales v Huckstadt [2017] NSWSC 441
Attorney General for NSW v MZ [2017] NSWSC 1773
Attorney General of New South Wales v Blanks [2021] NSWSC 303
Attorney General of New South Wales v Kereopa (No 2) [2017] NSWSC 928
Attorney General of New South Wales v McGuire (No 2) [2014] NSWSC 288
Attorney General of New South Wales v Skerry (Preliminary) [2015] NSWSC 859
Attorney General of NSW v Doolan (No 2) [2016] NSWSC 107
Attorney General of NSW v HRM [2016] NSWSC 1189
Attorney General of NSW v McGuire [2017] NSWSC 1572
Attorney-General for the State of New South Wales v Boyce by his tutor Jennifer Thompson [2017] NSWSC 144
Cornwall v Attorney General of New South Wales [2007] NSWCA 374
McMillan v Pryce (1997) 115 NTR 19
Owen v Woolworths Properties Ltd (1956) 96 CLR 154
R v McGuire [2009] NSWDC 245
State of New South Wales v Alam [2020] NSWSC 295
State of New South Wales v Barez (Preliminary) [2019] NSWSC 1589
State of New South Wales v Chaplin [2019] NSWSC 471
State of New South Wales v DK (Preliminary) [2018] NSWSC 1947
State of New South Wales v Elomar (No 2) [2018] NSWSC 1034
State of New South Wales v Fayad (Preliminary) [2020] NSWSC 1681
State of New South Wales v Golding (Preliminary) [2018] NSWSC 1041
State of New South Wales v Loto [2018] NSWSC 1522
State of New South Wales v McGee (Preliminary) [2019] NSWSC 53
State of New South Wales v Osman [2020] NSWSC 1646
State of New South Wales v Sturgeon [2019] NSWSC 559

Category: Principal judgment
Parties: Attorney General for New South Wales (Plaintiff)
Herbert McGuire (Defendant)
Representation:
Counsel:
D New (Plaintiff)
J Lucy (Defendant)
Solicitors:
Crown Solicitor’s Office (Plaintiff)
Legal Aid NSW (Defendant)

File Number(s): 2021/172559

REASONS FOR DECISION

By summons filed on 15 June 2021, the Attorney General for New South Wales (“the plaintiff”) sought a 2 year extension order (“EO”) pursuant to ss 121, 127(1)(a) and 128 of the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW) (“the Act”) in relation to Mr Herbert McGuire (“the defendant”).
The matter was listed for preliminary hearing on 4 August 2021. The following material, filed in support of the application brought by the plaintiff, was before the Court:

Risk Assessment Report of Professor Susan Hayes, forensic psychologist, dated 16 April 2021 (“the RAR”);

Affidavit of Elizabeth Blomfield, solicitor for the plaintiff, sworn on 11 June 2021, together with exhibit EB-1;

Affidavit of Ms Blomfield, sworn 29 July 2021, together with exhibit EB-2;

Psychiatric Report of Dr Kerri Eagle, forensic psychiatrist, dated 21 January 2021;

Psychological Report of Ms Jenny Howell, psychologist, dated 21 January 2021;

determinations of the Mental Health Review Tribunal (“MHRT”) and NSW Civil and Administrative Tribunal (“NCAT”), dated between 17 September 2019 and 13 November 2020;

documents regarding the provision of support services to the defendant by the Community Safety Program (“CSP”) and New Horizons, dated between 7 January 2019 and 18 February 2021; and

documents received from the Department of Communities and Justice, dated between 25 September 2020 and 9 July 2021.

The defendant did not tender any material on the application, save for the provision of an aide memoire entitled “Comparative Table of Supports and Restrictions for Herbert McGuire”. That document was treated as forming part of the defendant’s written submissions.
On 12 August 2021, the Court made the following orders:

(1) An order pursuant to s 126(5) of the Mental Health and Cognitive Impairment Forensic Provisions Act 2020:
(a) Appointing two qualified psychiatrists, or two registered psychologists (or a combination of such persons) to conduct separate examinations of the defendant and to furnish reports to this Court on the results of those examinations by a date to be fixed by the Court; and
(b) Directing the defendant to attend those examinations.

(2) An order pursuant to ss 130 and 131 of the Act, that the defendant be subject to an interim order for the extension of his status as a forensic patient commencing from midnight on 13 August 2021.

The Court indicated that its reasons for decision would be published in short order. These are those reasons.

THE PRELIMINARY HEARING

Pursuant to s 126(4) of the Act, a preliminary hearing was required. The Court must be satisfied that the matters alleged in the supporting documentation would, if proved, justify the making of an EO (s 126(5) of the Act) (hereinafter that test shall be referred to as “the preliminary hearing test”).
If the Court is so satisfied, the Court must make the orders sought by the plaintiff in prayer 1(a) and (b) of the summons, namely, an order appointing a psychiatrist and/or psychologist to conduct separate examinations of the defendant and furnish their reports to the Court and an order directing the defendant to attend those examinations (required under s 126(5)(a) and (b) of the Act).
The plaintiff bears the onus of proof, including at the interim stage: Attorney General of New South Wales v Blanks [2021] NSWSC 303 (“Blanks”) at [75].
Counsel for the defendant, Dr J Lucy, developed two contentions as to the applicable principles governing a preliminary hearing.
First, it was contended the preliminary hearing test does not apply in the same way as a Magistrate would approach the prima facie test in committal proceedings. In support of that position the defendant submitted:

It may be accepted that this Court has, on numerous occasions, compared the tests at a preliminary hearing under the Crimes (High Risk Offenders) Act 2006 (NSW) (“the CHROA”), the Terrorism (High Risk Offenders) Act 2017 (NSW) (“the THROA”), or the former Mental Health (Forensic Provisions) Act 1990 (NSW) (“the former Act”) to the “prima facie case” test under the Criminal Procedure Act 1986 (NSW). However, this is only an analogy and, as has been judicially recognised, although there may be some similarities between the tests, there are also significant differences. Reference in that respect was made to the authorities of State of New South Wales v Loto [2018] NSWSC 1522 (“Loto”) at [20]-[21] (per Rothman J); State of New South Wales v Elomar (No 2) [2018] NSWSC 1034 (“Elomar (No 2)”) at [7] (per Rothman J); State of New South Wales v Golding (Preliminary) [2018] NSWSC 1041 at [18]-[19] (per R A Hulme J); State of New South Wales v DK (Preliminary) [2018] NSWSC 1947 at [11] (per Fullerton J); State of New South Wales v McGee (Preliminary) [2019] NSWSC 53 at [10] (per Fullerton J).

Significantly, it was contended, unlike with a prima facie case test, under the Act there is no different or lesser standard of proof in preliminary proceedings as compared to at a final hearing. The only difference is that the Court must accept certain of the plaintiff’s allegations as being proven. As Cavanagh J observed in Blanks at [79], “[i]n practical terms, the only difference between what must be established on a preliminary application rather than a final application is that for the purposes of interim orders, it is not necessary that the plaintiff prove the matters alleged in the supporting documentation”.

In this case, there is little dispute between the parties as to matters of fact. It is accepted that the defendant committed the index offences, that he has an intellectual disability, that he had problems with alcohol but now does not consume it, that he began living with his brother in Young in July 2020, and that he now lives mainly on a property he purchased nearby. In other words, in general, the factual matters which are alleged in the supporting documentation are not in dispute. It was contended that:

In these circumstances, the Court’s task at the interim hearing is not significantly different from what it would be if the matter was at the stage of a final hearing. The main issue is whether the Court can be satisfied to a high degree of probability on the facts that the defendant poses an unacceptable risk of causing serious harm to others if he ceases to be a forensic patient.

The plaintiff has the burden of persuading the Court that the defendant does pose such a risk and the plaintiff must do so to a standard of proof which is higher than the civil standard. A finding that the defendant poses such a risk is not one to be made lightly.

Secondly, emphasis was placed by the defendant upon the construction of “matters alleged in the supporting documentation” in s 126(5) of the Act and, in particular, why the Court would not accept the opinion of Professor Hayes as constituting a “matter alleged”. Turning first to construction, generally, the defendant advanced the following submissions in support of that proposition:

Only the “matters alleged in the supporting documentation” are directly the subject of the Court’s consideration, namely, matters of fact and “not the content of the plaintiff’s submissions”: Blanks at [81].

The term “supporting documentation” is not defined in the Act (whereas that term is defined in both the CHROA and the THROA). It should, therefore, be given its ordinary meaning. In Attorney General for New South Wales v Bragg (Preliminary) [2021] NSWSC 439 (“Bragg”) at [20], Wright J observed: the “supporting documentation” is “the documentation provided by the Attorney General in support of his application and does not include evidence provided by the defendant in opposition”.

The plaintiff is obliged to identify certain facts in the supporting documentation which, if proved, would lead to a conclusion that would justify the making of an EO: Elomar (No 2) at [9]; State of New South Wales v Barez (Preliminary) [2019] NSWSC 1589 at [34]. The reference to “matters alleged” is to “matters of fact, not mere allegations”; that is, to “matters of fact that, if proved, would be open to lead to a particular conclusion”: Loto at [20]; State of New South Wales v Chaplin [2019] NSWSC 471 (“Chaplin”) at [19]. That submission was supported by reference to applications made under the THROA:

An allegation that a person is a terrorist is not a “matter alleged” within s 27(b) of the THROA, as this is a conclusion; the “matters alleged” must be facts or based on facts that are capable of being proved: Elomar (No 2) at [8] and [10]; State of New South Wales v Fayad (Preliminary) [2020] NSWSC 1681 (“Fayad”) at [51].

Further, a “matter alleged” has “to have some proper foundation, and could not include matters of rumour, possibilities unfounded in fact, or wholly unsupported speculation”: State of New South Wales v Alam [2020] NSWSC 295 at [159]; State of New South Wales v Osman [2020] NSWSC 1646 at [103]; Fayad at [52].

Building upon those contentions with respect to the construction of s 126(5) of the Act, the defendant turned to contentions specifically concerning the opinion of Professor Hayes; particularly, her opinion expressed in the RAR that the defendant poses a “moderate risk” of causing serious harm to others if he ceases to be a forensic patient (“the opinion of Professor Hayes”). It was contended:

There is a question as to whether an opinion of an expert, such as Professor Hayes, is a “matter alleged”. Some judges have expressed a view that “matters” may include “reports” and opinions (see, for example, State of New South Wales v Sturgeon [2019] NSWSC 559 at [11]; Attorney General of New South Wales v WB (Preliminary) [2019] NSWSC 1664 at [75]). The opinion of Professor Hayes, however, is not a “matter alleged”. Rather, it is a conclusion. Therefore, it is not a “matter of fact that, if proved, would be open to lead to a particular conclusion”: Loto at [20]; Chaplin at [19]. It is an expression of opinion about the very matter of which the Court must be satisfied before making an EO (see ss 122(1)(a) and 130(b) of the Act).

The Court should not accept the opinion of Professor Hayes as a “matter alleged” in the supporting documentation for the following reasons:

The ordinary meaning of the statutory provisions does not support this construction of a “matter alleged”. An opinion is not a “matter” which is capable of being the subject of an allegation. “Allege” means to assert without proof (Macquarie Dictionary). An opinion is not something which may be asserted without proof. Rather, an opinion may be expressed about factual matters which are the subject of allegations.

If the term “matters alleged” were interpreted to include an opinion as to a matter to be determined by the Court, the question of whether to make an interim order (or part of that question) would effectively be determined by a psychologist or a psychiatrist. If all that was needed for the making of an interim EO was for an expert to express an opinion as to the degree of risk posed by a defendant, the Court’s role would be usurped. That is plainly not the intention of the legislature.

Those contentions as to the limits of the use of the opinion of Professor Hayes (vis-à-vis risk) did not extend to the entirety of the expert’s opinion expressed throughout the RAR. In that light it was submitted:

The RAR may provide guidance to the Court.

It may be accepted that the Court may take into account the opinion of an expert such as Professor Hayes when assessing whether the factual matters alleged would, if proved, justify the making of the EO.

It may also be the case that certain of Professor Hayes’ opinions, such as that the defendant has substance use disorder, which is now in remission, are properly characterised as matters alleged in the supporting documentation (because they are, in substance, allegations of a factual nature).

However, the Court is not required or permitted, at a preliminary hearing, to adopt an expert’s opinion about risk on the basis that it is a matter alleged which it is to assume is “proved”. Rather, the Court must exercise its independent judgment in determining whether the facts alleged by the plaintiff would, if proved, justify the making of an EO. That includes forming an independent judgment as to the risk posed by the defendant, assuming all factual matters alleged by the plaintiff to be proved.

The preliminary hearing test does not require the Court to simply accept the opinion of Professor Hayes as its own “because it is not a matter alleged”. In oral submissions, counsel for the defendant supplemented that submission with the following:

LUCY: Well, your Honour, in my submission your Honour would have regard to it but not consider it to be a matter alleged that your Honour has to accept, but the reason you might not follow it or necessarily adopt it is because your Honour would have to be satisfied to a high degree of probability that the forensic patient poses an unacceptable risk of causing serious harm to others if the patient, that is, Mr McGuire, ceases to be a forensic patient, and it might be that when your Honour, and in my submission your Honour would form the view that when your Honour looks at all the factual matters that have been alleged, looks at all the facts, they don't reach that level. You wouldn't be satisfied to that high degree.

During oral submissions, it was also accepted that the opinion of Professor Hayes is properly before the Court and is “a matter that the court would have regard to in the assessment required under 122(1) and, in that respect, the consideration of whether the requisite degree of probability had been established”. However, turning to the test under s 130, it was contended that “the court's task is to look at all the factual matters alleged and see whether that would justify the making of an order” and the opinion of Professor Hayes is not a factual matter. As such, the Court cannot be bound by the opinion of Professor Hayes as to risk.

I now turn to my consideration of the defendant’s contentions.

The First Contention

The plaintiff relied upon the judgment of Davies J in Attorney-General for the State of New South Wales v Boyce by his tutor Jennifer Thompson [2017] NSWSC 144 (“Boyce”). His Honour stated (at [9]-[12]):

[9] In Attorney General of New South Wales v McGuire [2013] NSWSC 1862 I noted at [10] that those objects relevantly accorded with the two objects in the Crimes (High Risk Offenders) Act 2006 (NSW) (CHROA). I said at [12] that because the terms of the two legislative provisions are so closely aligned that I considered that the learning that has grown up in relation to the CHROA should be appropriately applied to Schedule 1 of the MHFPA. This view was followed by RA Hulme J in Attorney General of New South Wales v Skerry (Preliminary) [2015] NSWSC 859 at [7]-[8] and by Adamson J in New South Wales Minister for Mental Health v Brauer [2015] NSWSC 863 at [54].
[10] The task of the Court, therefore, at the preliminary stage for an interim order is not to predict the ultimate result. Rather, the test is said to be one similar to the prima facie test applied by Magistrates in committal proceedings: Attorney-General for the State of New South Wales v Tillman [2007] NSWCA 119; Attorney-General for the State of New South Wales v Haytar [2007] NSWCA 993 and State of New South Wales v Thomas (Preliminary) [2011] NSWSC 118 at [11].
[11] In McGuire I made reference to a number of early decisions including my own decision in State of New South Wales v Richardson (No. 2) [2011] NSWSC 276; (2011) 210 A Crim R 220 for the purpose of identifying the appropriate test to be applied for the first limb under Schedule 1 of the MHFPA. Since that time the Court of Appeal in Lynn v State of New South Wales [2016] NSWCA 57 said that the test I there proposed should not be followed insofar as that approach included having regard to:
The serious consequences for the Defendant either because he will be detained beyond the period of his sentence although he has not committed any further offence or he will be subject to an onerous supervision order.

[12] In that way the Court of Appeal held that 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” for the purposes of s 5E(2) of the CHROA. The correct approach to the first limb of cl 2 of Sch 1 is RA Hulme J’s formulation in State of New South Wales v Thomas (Final) [2011] NSWSC 307 at [58], namely, that the words “unacceptable risk” should be given their everyday meaning in the context of the provision in which they appear and having regard to the objects of the Act: Lynn at [58] (noting that the reference to [38] appears to be a transcription error).

It may be observed, his Honour did not propose that the test was identical to a prima facie test applied in committal proceedings but there are some common elements.
I propose to apply the principles in State of New South Wales v Love (Preliminary) [2019] NSWSC 1660 (“Love”) at [31]-[33], in this respect, which were accepted by counsel for the defendant. The relevant passages are extracted below:

[31] The task of the Court at the preliminary hearing stage is akin to a prima facie case test: State ofNew South Wales v Manners [2008] NSWSC 1242 at [8]-[9] (per Johnson J) and State of New South Wales v Reay [2014] NSWSC 1362 at [29] (per Button J).
[32] A preferable formulation is for the Court to proceed on the assumption that the asserted facts are proved and then to consider whether, on that assumed basis, it is satisfied as to unacceptable risk: State of NSW v McGee (Preliminary) [2019] NSWSC 53 at [10] (per Fullerton J).
[33] In State of NSW v Sancar [2016] NSWSC 867, Garling J said this about the nature of the task before the Court (at [74]):
[74] This Court is engaged in an evaluative task. This evaluative task requires the Court to take into account all of the material that has been placed before it, and to assume that the facts disclosed in that material will be proved at a final hearing. This includes the expert opinions of Mr Ardasinski. Having done so, the Court must then ask itself whether it is satisfied to a high degree of probability that Mr Sancar poses an unacceptable risk of committing a serious violence offence if he is not kept under supervision.

Whilst those principles were stated in the context of a preliminary hearing under the CHROA, there is no relevant distinction in the respective statutory schemes (between the Act and the CHROA) as would warrant the adoption of a different approach.
Reference might also be made to the further observation in Love at [34]:

[34] The Court is, however, not absolved of consideration of the evidence put before it in support of the application. Some analysis is required, particularly where there is conflict in the evidence. In State of New South Wales v Hampton [2018] NSWSC 360, Lonergan J said at [40]:
[40] Whilst it is not my task to predict decision-making at final hearing or to weigh in detail the evidence and make formal findings about that evidence, I consider it necessary to provide some analysis of what seems to be conclusions by Dr Parker that are contradicted or not supported by other material tendered in support of the application.

Dr Lucy was correct to emphasise that the legislature does not produce any different test as to unacceptable risk as between preliminary or final hearing, both apply the provision of s 122 of the Act.
However, that does not warrant a preliminary hearing being treated as if it were a final hearing. To do so would be productive of error, even if the comparison was largely theoretical. The statutory requirement is that, at the preliminary hearing stage, the Court considers whether the matters alleged would, if proved, satisfy the Court that the defendant poses an unacceptable risk of causing serious harm to others if he ceases to be a forensic patient and the risk cannot be adequately managed by other less restrictive means.
Nor does an acceptance of the operation of s 122 of the Act in the context of a preliminary hearing diminish the practical force of the observation of Hoeben CJ at CL with respect to cl 6(5)(a) of Sch 1 of the former Act in Attorney General for New South Wales v Rohan (Preliminary) [2020] NSWSC 1610 (“Rohan”).
At [49], Hoeben CJ at CL observed that cl 6(5)(a) of Sch 1 of the former Act is to be applied without considering what evidence might be called by the defendant at the final hearing, or any evidence called by the defendant at the interim hearing. His Honour also observed that one purpose of the preliminary hearing stage is to allow the Court to filter out unmeritorious applications at an early stage: Rohan at [47]. I adopt those principles with respect to s 126(5)(a).

The Second Contention

The defendant’s second contention, namely, that the Court was not required to adopt the expert opinion bearing upon the question of unacceptable risk because the Court would need to weigh that opinion in the light of all the material before the Court in the preliminary hearing and form its own independent judgment, needs to be approached with some care, consistent with the requirements of ss 126(5) and 130 of the Act
Section 126(5) does not require the Court to analyse the material in the supporting documentation in terms of assessing whether or not the Court accepts the opinions given by the authors' various reports. Instead, it requires a narrower inquiry as to whether what is alleged in that supporting documentation would, if proved, justify the making of an EO. A test for whether an EO may ultimately be made is that specified in s 122(1), namely, satisfaction to a high degree of probability that the forensic patient poses an unacceptable risk of causing serious harm to others if he ceases to be a forensic patient and the risk cannot be adequately managed by other less restrictive means. 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 EO, the Court must dismiss the application. (See also State of New South Wales v Lynn [2013] NSWSC 1346 at [17] (per Beech-Jones J); Love at [30]).
The defendant also contended that the opinion of Professor Hayes, namely, that the defendant posed a “moderate risk of causing serious harm to others if he ceased to be a forensic patient” in the RAR, did not constitute a matter “alleged in supporting documentation” for the purposes of ss 126(5) and 130(b) of the Act because, inter alia, it is a conclusion and not a matter of fact.
I do not accept that submission for the following reasons:

The words “in the supporting documentation” in the expression “the matters alleged in supporting documentation” is, in my view, a reference to the documentation referred to in s 125. Apart from the inclusion of the wording “supporting” and “supported” in the respective provisions (the former being situated in ss 126(5) and 130), the expression “the” in “the supporting documentation” in s 126(5) signifies a cohesive use, drawing a link with the counterpart expression where previously used (in this instance, s 125). There is a connection to that earlier referred to. Further, the rule of construction is that words are assumed to be used consistently in a statute is applicable here, particularly where the words are used in the same division of Pt 6 of the Act: McMillan v Pryce (1997) 115 NTR 19 at 23.

The provisions of s 125 specify the documentation which is required to support the application. Given the cohesive relationship between ss 125 and 126(5) (and s 130) as discussed above, “the matters” referred to in s 126(5) must include those expressly identified in s 125(a) and (b). It follows that the matters alleged in the supporting documentation include “the matters” referred to in s 127(2) (per s 125(a)) and the reports referred to in s 125(b), namely, a “report” prepared by a qualified psychologist, registered psychologist or registered medical practitioner (also corresponding to the provisions of s 127(2)(b) (and s 127(2)(c)). That is consistent with Professor Hayes’ report and the opinions therein constituted matters alleged in supporting documentation.

The defendant contended that the Court exercising “its independent judgment in determining whether the facts alleged by the plaintiff would, if proved, justify the making of an extension order” (emphasis added). However, the provisions of ss 126(5) and 130(b) refer to the Court’s determination being made with respect to “the matters alleged in supporting documentation”. When those considerations are brought to bear upon the issue raised with respect to Professor Hayes’ report, the assessment as to whether to make an interim extension order (or to make orders appointing relevant practitioners to undertake an examination) will be made “having regard to” the views expressed in the RAR.

Thus, ss 126(5) and 130 direct attention to the matters referred to in s 127(2). A report of a qualified psychologist is a matter the Court “must have regard to” under s 127(2)(c). The phrase “have regard to” is not, on its natural meaning, exclusive or exhaustive. When used in collocation with a list of matters to be taken into account, as appears in s 127(2), the phrase has been construed as an expression which is mandatory but not exhaustive: see Owen v Woolworths Properties Ltd (1956) 96 CLR 154 at 160 (per Dixon CJ, Williams, Fullagar, Kitto and Taylor JJ). This is consistent with the natural meaning of the phrase, namely, “to consider”.

The adoption of this approach, and thus the rejection the approach contended for by the defendant, does not “usurp” the Court’s role which is governed by the statute and requires a consideration of all of the material produced in support of the application, in the manner earlier discussed, on the preliminary hearing.

INDEX OFFENCES

On 17 August 2006, the defendant was charged with three offences contrary to s 61I of the Crimes Act 1900 (NSW), namely, that he had sexual intercourse with a person without consent knowing that the person did not consent (“the index offences), and with one offence of aggravated break and enter and commit serious indictable offence, contrary to s 112 of the Crimes Act.
On 3 September 2009, following a special hearing, Murrell SC DCJ found that, on the limited evidence available, the defendant committed the index offences: R v McGuire [2009] NSWDC 245 at [42]. Her Honour described the index offending at [21]-[25]:

[21] At about midday on 4 April 2006 the accused went to premises adjacent to the complainant's residence. In the period until about 4.30 or 5p.m. he drank with two acquaintances, consuming least eight stubbies [of] beer and probably more. In the course of the afternoon, the accused observed the complainant in the next-door premises and said words to the effect of 'she would be all right for a girlfriend'. He became somewhat intoxicated and at one stage was 'nodding off'. When he left the premises he was 'a little bit intoxicated' but was 'not overly drunk' and was capable of walking. He saw a cat and was told that it belonged to the complainant. He picked up the cat and walked in the direction of the complainant's residence.
[22] It was the complainant's evidence that a man (who must have been the accused) appeared on her front porch and asked to come in for a drink. According to the complainant's police statement 'he spoke of wanting to be with (the complainant) and wanting to be (her) friend'. The complainant refused the request to come into her house. The man was drinking a stubbie of beer. Later, the police seized an empty stubbie from the complainant's front porch. It was found to contain the accused's DNA.
[23] The accused went to the side of the house and then to the backyard, where he played with the complainant's young daughter. The complainant removed washing from the line and took it into the house. The complainant's daughter came into the house, followed by the accused. The complainant asked the accused to leave the house but he refused to do so. The complainant walked to the front of the house, successfully enticing the accused out of the house. The complainant went back inside, securing the latch on the front screen door. She went to the kitchen to locate a key so that she could lock the front screen door.
[24] When the complainant was standing in her living room, the accused grabbed her by the arms and told her to be quiet. He put a hand over her mouth. The complainant bit the accused on the hand. The complainant found herself lying on her back on the floor. The accused pulled his pants down to his knees and pulled her pants down, possibly to her knees, and proceeded to have penile/vaginal intercourse, causing the complainant to feel some pain. The complainant estimate that the intercourse continued for between five and fifteen minutes. The complainant was struggling. She managed to get onto her hands and knees and reached for the telephone, intending to dial for assistance. However, she discovered that the lead had become disconnected. She hit the accused over the head with the telephone. He was undeterred. She began to search for her mobile telephone. As she was doing so, the accused commenced penile/anal intercourse, which continued for five to ten minutes. The complainant believes that the accused did not ejaculate.
[25] The complainant found herself with her back to the floor. The accused 'tried it again'. It was the complainant's evidence that the accused put his penis back into her vagina 'quite a few times'. 'Almost immediately' that the accused 'tried it again' the complainant succeeded in yanking his penis. It was soft After words were exchanged, the accused left, saying that he would 'come back next week to finish the job

Murrell SC DCJ imposed a limiting term of 5 years, which commenced on 1 January 2009 and expired on 31 December 2013.
Since 31 December 2013, the defendant has been the subject of five EOs, ordered by this Court (each of them 1 year in length, save for the EO immediately preceding the order made by the Court as presently constituted, which had a duration of 2.5 years).

LEGISLATIVE REQUIREMENTS

An application for an EO can only be filed if, inter alia, the defendant is on an existing EO (s 124(1)(b)). Any such application must be filed within the last 6 months of the expiry of the existing EO (s 126(2)(b)). These requirements were met. As at the time of the preliminary hearing, the defendant was on a 2.5 year EO ordered by Wright J on 13 February 2019. It expired on 13 August 2021.
The application also meets the requirements in s 125(a) and (b) as it is supported by documentation that addresses the factors in 127(2) (as set out at the outset of this judgment), which documentation included the RAR prepared by Professor Hayes.
There are further requirements of s 122(1)(a) and (b), which will be discussed below.

RELEVANT PRINCIPLES

I now turn to a summary of the principles governing preliminary hearings of this kind, which, notwithstanding the relatively new legislation, are well settled. At the outset, it may be noted that the relevant provisions of the Act substantially repeat the wording of the former Act. As such, the principles governing the application of the provisions of the former Act remain relevant and applicable in the context of the new Act.
Comparatively, there is no difference between Sch 1 (cll 1 to 22) of the former Act and Pt 6 (ss 121 to 144) of the Act. Accordingly, the settled law that considered the former Act applies: Bragg; Attorney General for New South Wales v Mulipola (Preliminary) [2021] NSWSC 790.

Unacceptable Risk

An EO may only be granted if the Court is satisfied to a high degree of probability that the defendant poses an unacceptable risk of causing serious harm to others if he or she ceases being a forensic patient and the risk cannot be adequately managed by other less restrictive means: s 122(1)(a) and (b) of the Act (cl 2(1) of the former Act being the equivalent provision).
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 serious harm to others.
Note—
Less restrictive means of managing a risk includes, but is not limited to, a patient being involuntarily detained or treated under the Mental Health Act 2007.

The Court is not required to determine that the risk of the person causing serious harm to others is more likely than not in order to determine that the person poses an unacceptable risk of causing serious harm: s 122(2). The risk is to be assessed on the assumption that the defendant is not a forensic patient or an involuntary patient: Rohan at [26] (considering cl 2(1)(a) of the former Act).
Assessing whether a forensic patient would pose an unacceptable risk of causing serious harm to others is an evaluative exercise, and involves considering both the likelihood of the risk of harm eventuating as well as the gravity of the risk that may eventuate: Attorney General for NSW v MZ [2017] NSWSC 1773 (“MZ”) at [11] (per Fullerton J). The assessment is to be made in the context of the objects of the forensic patient scheme – which includes protecting the safety of members of the public, ensuring the appropriate care of forensic patients, and protecting the victims of forensic patients – but acknowledging that the Court’s obligation is to secure the community from harm to a reasonable or adequate degree as opposed to guaranteeing its safety and protection: MZ at [11]; see also Attorney-General of NSW v McGuire (No 2) [2014] NSWSC 288 at [59] (per Garling J).
Under the Act, the relevant objects of Pt 5 appear at s 69 (with slight alteration to the objects that appeared at s 40 of the former Act). Section 69 is extracted below:

69 Objects
The objects of this Part are as follows--
(a) to protect the safety of members of the public,
(b) to provide for the care, treatment and control of persons subject to criminal proceedings who have a mental health impairment or cognitive impairment,
(c) to facilitate the care, treatment and control of any of those persons in correctional centres or detention centres through community treatment orders,
(d) to facilitate the provision of hospital care or care in the community through community treatment orders for any of those persons who require involuntary treatment,
(e) to give an opportunity for those persons to have access to appropriate care,
(f) to protect the safety of victims of forensic patients and acknowledge the harm done to victims.

The following principles, with respect to “serious harm” referred to in cl 2(1)(a) of the former Act, apply to “serious harm” as referred to in s 122(1)(a) of the Act:

The “unacceptable risk” is that of “causing serious harm to others”.

The “serious harm” referred to in cl 2(1)(a) encompasses a broader range of conduct than the concept of “serious sex offences” or “serious violence offences” under the CHROA: Rohan at [35].

The “serious harm” which must be considered is not limited to physical harm and it may include psychological harm: Attorney General of New South Wales v Kereopa (No 2) [2017] NSWSC 928 (“Kereopa No 2”) at [16] (per R A Hulme J).

“Serious harm” need not be “grievous bodily harm” but involves “something more than would satisfy the minimum threshold for ‘actual bodily harm’ under the criminal law… [and] psychological harm must be something more than emotions such as fear or panic”: Kereopa No 2 at [16], cited approvingly in Rohan at [36]. See also Bragg at [26].

The expression “high degree of probability” indicates something “beyond more probably than not”, so that the existence of the risk does have to be proved to a higher degree than the normal civil standard of proof, but not to the criminal standard of beyond reasonable doubt: Rohan at [22], citing Cornwall v Attorney General of New South Wales [2007] NSWCA 374 at [21] (in the context of the CHROA); Attorney General for New South Wales v Huckstadt [2017] NSWSC 441.

The right of a forensic patient to his or her personal liberty at the expiry of the limiting term is not a relevant consideration in the determination of whether they pose an unacceptable risk for the purposes of s 122(1)(a): Rohan at [33] (per Hoeben CJ at CL, citing Boyce and Lynn v State of New South Wales [2016] NSWCA 57, with respect to cl 2(1)(a) of the former Act).
In considering whether or not to make an extension order, the Court must have regard to the matters in s 127 of the Act.
Section 127 provides:

127 Determination of application for extension orders
(1) The Supreme Court may determine an application under this Division for an extension order--
(a) by making the order, or
(b) by dismissing the application.

(2) In determining whether or not to make an extension order, the Supreme Court must have regard to the following matters in addition to any other matter it considers relevant--
(a) the safety of the community,
(b) the reports received from the persons appointed under section 126(5) to conduct examinations of the forensic patient,
(c) the report of the qualified psychiatrist, registered psychologist or registered medical practitioner provided under section 125(b),
(d) any other report of a qualified psychiatrist, registered psychologist or registered medical practitioner provided in support of the application or by the forensic patient,
(e) any order or decision made by the Tribunal with respect to the forensic patient that is relevant to the application,
(f) any report of the Secretary of the Ministry of Health, the Commissioner of Corrective Services, the Secretary of the Department of Communities and Justice or any other government Department or agency responsible for the detention, care or treatment of the forensic patient,
(g) the level of the forensic patient's compliance with any obligations to which the patient is or has been subject while a forensic patient (including while released from custody subject to conditions and while on leave of absence granted under this Act),
(h) the views of the court that imposed the limiting term or existing extension order on the forensic patient at the time the limiting term or extension order was imposed,
(i) any other information that is available as to the risk that the forensic patient will in future cause serious harm to others.

(3) If the Supreme Court makes an extension order in respect of a forensic patient, the Court is to notify the Tribunal of the making of the order.

Management of Risk

Evaluating whether the defendant’s risk can be adequately managed by other less restrictive means involves more than considering the defendant’s proposed treatment regime and care: Attorney General of NSW v Doolan (No 2) [2016] NSWSC 107 at [96] (per Adamson J).
In Attorney General of New South Wales v Skerry (Preliminary) [2015] NSWSC 859, R A Hulme J stated (at [54]): “the focus should be more on the question of adequately managing the risk, rather than identifying whether one regime is more or less restrictive than the other”.
In Attorney General of New South Wales v McGuire (No 2) at [63], Garling J said that the phrase “adequately managed” means that:

[63] … the unacceptable risk is mitigated by the proposed management regime so that the community's interest in being kept safe is outweighed by the community's interest in not having mentally ill or mentally disordered individuals or forensic defendants being confined in some form of institutional care rather than taking their place in the community.

In Attorney General for New South Wales v McGuire by his tutor Thompson [2019] NSWSC 76 (“the 2019 EO decision”), Wright J stated that the process for assessing whether the risk can be adequately managed by other less restrictive means involves the following (at [28]-[29] and [33]):

[28] …
(1) whether the means proposed are less restrictive; and
(2) whether the less restrictive means adequately manage the risk.

[29] As to the first of those matters, whether means are more or less restrictive is to be judged by the legal power of others to control the defendant's actions, locations, treatment and other matters, as well as the practical operation of how that power might be exercised in a particular instance: Attorney General of NSW v Doolan by his tutor Jennifer Thompson (No 2) [2016] NSWSC 107 (Doolan (No 2)) at [96].
...
[33] Adamson J in Doolan (No 2) at [100] identified a number of areas of difference in respect of the legal regimes that should be considered when assessing “less restrictive” and “adequacy of management”. Although her Honour was dealing with a different alternative regime from that proposed in the present case, the areas she identified give useful guidance, provided allowance is made for the different circumstances of the defendant in the present case. The areas of difference identified by Adamson J were:
“(1) The objects of the legislation;
(2) The composition of the Tribunal;
(3) Review by the Tribunal;
(4) The basis for detention;
(5) Release from detention;
(6) Imposition of conditions while patient is living in the community;
(7) Consequences of breach of conditions.”

“Adequate management of risk” is more holistic than treatment and may involve considerations such as managing how the defendant may be reviewed, who can discharge him, monitoring risk, the ability to quickly respond to elevations of risk or deterioration of mental health, what is considered before the defendant is released and how he may be reintegrated in the community.
As the defendant is not mentally ill he cannot be managed under the Mental Health Act 2007 (“the MHA”). The Guardianship Order is limited and cannot provide the oversight of monitoring for drug and alcohol use.
I now turn to the factors under s 127(2).

APPLICABLE SECTION 127(2) FACTORS

The Defendant

The defendant is a 48-year-old man and the youngest of nine siblings. Born and initially raised in Ballarat, Victoria, the family moved to Katoomba and then to Department of Housing accommodation in Mt Druitt. The defendant did not finish high school (being expelled in Year 8). When the defendant was 17, he lived with his sister and held a job as a painter’s labourer. Later in life, the defendant lived with his parents who had since moved to Young. He was in a romantic relationship from 1993 to 2014, and he had a daughter with this partner. He then moved to Richmond and lived with one of his brothers. Prior to the index offence, the defendant was homeless and heavily drinking alcohol.
The defendant has mild to borderline intellectual disability which affects his verbal intellect, executive functioning and behaviour. He requires assistance with life skills, problem solving and emotional regulation. The defendant has also been diagnosed with substance use disorder (in remission) and has anti-social traits.
In 2013 (after the limiting term expired), the defendant re-commenced contact with his daughter who had given birth to a baby boy. In 2015, that contact ceased. The RAR suggested that, presently, the defendant may be having occasional contact with his daughter (enough to suggest they are not estranged).
The defendant is on a limited Guardianship Order dated 13 November 2020 for a period of 1 year. The Public Guardian can make decisions about provisions of and access to services to be provided to the defendant. The defendant is receiving Disability Support Pension (“DSP”) and the National Disability Insurance Scheme (“NDIS”) funds supports services for him. The defendant’s finances are managed by the NSW Trustee and Guardian.
In 2020 and 2021, the defendant lived with one of his brothers in Young, helping that brother with the scrap metal business.
In 2020, the defendant had received a driver’s licence but in 2021, due to a number of speeding infringements, his licence had been suspended. The defendant’s driver’s license was reinstated in April 2021.
The defendant has been subjected to mandatory drug and alcohol testing whilst on the EO and his results are consistently negative.

Criminal History

A review of the defendant’s criminal history shows that he has caused serious harm, including the index offences, violence arising from dangerous driving and violence occasioning grievous bodily harm to a police officer. A repeat of any these offences is “unacceptable” noting the potentially damaging consequences (emotionally or physically) to a potential victim.
The defendant’s criminal history commenced in 1996, when he was 24 years old. He has been sentenced to terms of imprisonment and/or fined for offences including, breaching an apprehended violence order, dangerous driving, stealing, assault, driving under the influence, destroying property, and driving recklessly. Prior to the index offences, his criminal history predominantly involved driving related offences.
Relevantly, on 26 October 2007, while on bail for the index offences, the defendant was charged with, inter alia, assaulting an officer in the execution of duty, resisting an officer in the execution of duty, assaulting a police officer in the execution of duty causing actual bodily harm and inflicting grievous bodily harm on a police officer executing duty. The defendant was taken into custody. On 19 June 2009, the defendant was convicted for those offences and sentenced to 2 years 6 months’ imprisonment, which commenced on 26 January 2008 (non-parole period of 1 year 6 months 18 days).

Mental Health Practitioner Reports: s 127(2)(c) and (d)

On this application the Court had before it the following reports:

the RAR;

Dr Eagle’s report, dated 21 January 2019; and

Ms Howell’s report, dated 21 January 2019.

The RAR was produced in relation to the application presently before the Court. The reports of Dr Eagle and Ms Howell were before Wright J in the 2019 EO decision. Both practitioners were previously appointed as independent experts pursuant to the orders of Button J: Attorney General of NSW v McGuire [2018] NSWSC 1795.

The RAR

Professor Hayes diagnosed the defendant with the following:

mild to borderline intellectual disability, noting the defendant functions well below his chronological age in all domains. She also opined that the defendant lacks executive functioning, an ability to control impulses and emotions, and a capacity to plan and foresee his consequences; and

substance use disorder (alcohol and cannabis), which was once chronic but now in remission. She noted, in that respect, the defendant was using alcohol at the time of the index offences but for at least 18 months he has not had any alcohol or illicit substances. Notwithstanding that fact, Professor Hayes commented that there is always a risk of relapse.

Professor Hayes opined that because of the defendant’s intellectual disability, he is:

[O]perating at the pre-conventional level of moral reasoning, typical of children under the age of 9 years. During the preconventional level, the sense of morality is externally controlled. The individual accepts and believes the rules of authority figures, such as police, Courts, parents and teachers, and they judge an action based on its consequences. They refrain from doing an action because they will be punished ([the defendant’s] potential punishment being estrangement from his daughter and grandchild), not because they understand societal order or abstract concepts of right and wrong. He is able to state that some actions are right and some are wrong, because he has been told that or learned it through his own activities over the years, but he is unable to give abstract reasons about why an action might be wrong, or to balance up competing interests (for example, is it okay to steal if you are starving?). His attitude towards his past offences is one of remorse, but more because he has faced consequences, rather than understanding the implications of his actions for the victim, or being genuinely regretful.

Professor Hayes opined that the defendant presents a moderate risk of causing harm to others if he ceases to be on an EO. Professor Hayes opined that:

the defendant’s intellectual disability may contribute to his risk of sexual reoffending (for example, because he lacks the capacity to foresee the consequences) but it is not necessarily a causal factor;

alcohol use elevates the defendant’s risk, and it was a direct causal factor to the defendant’s sexual offending. Professor Hayes advises that this factor must be monitored to reduce the defendant’s risk;

any deterioration in family relationship would elevate the defendant’s risk of reoffending;

the defendant has little insight into his risks and limited strategies for responding to stress; and

any decreases in support and supervision would increase the defendant’s likelihood of reoffending.

Professor Hayes noted that other psychiatrists have diagnosed the defendant with anti-social and paranoid personality traits and commented that anti-social traits elevates the defendant’s risk of reoffending and “[the defendant’s] psychiatric state needs to be monitored”.
During the interview, Professor Hayes found some of the defendant’s remarks about women noteworthy and of concern. She stated:

When asked about his attitude towards women, he made an indirect and somewhat incomprehensible remark about Ms Gorman being "a woman at the other end of the motel; ... if she'd wanted to", and then stopped abruptly before rambling onto another topic. His oblique remarks about Ms Gorman staying at the same motel as him on the night prior to the assessment are indicative of ongoing difficulties and limitations in perceptions of social boundaries and roles, which need to be addressed by a behaviour management plan.

Professor Hayes opined that “the externally imposed structures and conditions inherent in [the defendant’s] forensic patient status have been highly significant in controlling the anti-social behaviours which would otherwise contribute to the risk of causing serious harm to others”.
Professor Hayes commented that the treatment and management strategies provided to the defendant have contributed to the defendant’s alcohol abstinence, establishment of a daily routine, acceptance of some level of responsibility for the offences, some involvement of family members, and motivation to adhere to the conditions (because of concern about consequences).
Professor Hayes opined that the static variables reflect “the high probability of having been the victim of child sexual abuse, and a history of previous offences involving violence”. Professor Hayes invited consideration of psychological intervention for child sexual abuse and family violence and psychotherapy that may assist the defendant with emotional regulation and cognitive restructuring.

Assessment tools

KBIT-2

Professor Hayes administered the Kaufman Brief Intelligence Test Second edition (“KBIT- 2”). The results of that test were the same as that administered in 2014, suggesting that the defendant’s mental health impairment is not amenable to change but it also means that there has been no deterioration.
The scores on the KBIT-2 indicated to Professor Hayes that the defendant functions in the “range of borderline intellectual disability at a level lower than 95% of his age peers”:

the defendant’s verbal score was less than his non-verbal, indicating that the defendant has difficulties solving problems in the verbal arena and understanding verbal instruction; and

the defendant’s functional age is similar to the reasoning skills of a child in Year 4 at school.

Vineland Adaptive Behaviour Scales

Professor Hayes administered the Vineland Adaptive Behavior Scales Second edition (“the Scales”). This tool assesses adaptive behaviour in three major domain areas: communication, daily living skills and socialisation. The Scales assess the degree to which the patient is able to function and maintain himself independently and the degree to which he meets the culturally imposed demands of personal and social responsibility
The results placed the defendant in the range of mild intellectual disability at a level lower than 99% of his age peers. The table in the RAR indicates scores similar to children between 5 and13 years of age.

STATIC 99-R and STATIC 2002-R

The STATIC 99-R and STATIC 2002-R predict recidivism based on static risk factors. This is an actuarial assessment tool that assigns a score to historical risk factors to provide an assessment of risk. It has moderate predictive accuracy and best practice shows that considering actuarial and professional judgment tools (that consider dynamic risk factors) can provide a better overall assessment of risk, than any one tool alone.
The defendant’s earlier scores have categorised him in the Moderate-High risk, owing to convictions for prior non-sexual violence, an offence committed against an unrelated stranger victim and prior sentences. However, as the defendant has not reoffended since 2013, Professor Hayes rescored the defendant and categorised him in the “average” risk category.
Professor Hayes commented that the static risk assessment tools do not take into consideration the fact the defendant has had treatment and management since 2013, which have reduced his risk of reoffending and that there has been noticed change in the defendant’s life.

Assessment and Risk Manageability of Individuals with Developmental and Intellectual Limitations who Offend – Sexually

The Assessment and Risk Manageability of Individuals with Developmental and Intellectual Limitations who Offend – Sexually (“ARMIDILO-S”) is an assessment tool that considers dynamic risk factors relevant to the patient and the patient’s environment.
Applying the ARMIDILO-S, Professor Hayes categorised the defendant in the moderate risk category and made the following observations:

the defendant “does not exhibit a tendency towards sexual deviance or sexual preoccupation/sexual drive”;

stable client factors include engagement with relationships, lack of sex drive and compliance with conditions. However, Professor Hayes also commented on the “tenuous” nature of the defendant’s compliance (for example, when the defendant travelled to Queensland); and

whilst there are some stable environment factors (such as having good support workers who have a good knowledge of the defendant), Professor Hayes was concerned about the uncertainty with the defendant’s accommodation, the fact he will be getting a new behaviour management plan, and the possible reduction in support structures/services.

Less restrictive means

Professor Hayes opined that “classification as an involuntary patient under the [MHA] would not be feasible because the defendant does not meet the conditions and there are less restrictive alternatives available”.
The RAR noted that the NDIS plan review in February 2021 suggested the defendant may receive increased support services. However, as at the time the RAR was written, the support services were not being provided.
Professor Hayes opined:

[The defendant] needs structured activities in order to increase his adaptive behaviour skills, especially interpersonal and literacy skills, and to reduce boredom and loneliness. Very little has been implemented or changed in relation to support services and therapeutic interventions for [the defendant], despite strong recommendations from many professionals over the years. The opportunity to implement some of the proposed strategies may have become more difficult as a result of his move to a small country town. His current support worker appears to be providing casework in a professional, responsible and appropriate manner, but may not be receiving the specialised mentoring which is needed; furthermore, she cannot provide the range of interventions described above. There needs to be a team of service providers to cover all of the therapeutic interventions required by [the defendant].

Duration

Whilst not a final hearing, as to duration it may be noted that Professor Hayes opined a period of 2 years would provide time for a clear response plan. She commented on the many uncertainties in the defendant’s present situation and observes the “slow progress” in relation to the support and interventions he has received. This includes lack of clarity as to actual support hours he received, uncertainty regarding his accommodation, uncertainty regarding his future support workers and behaviour management plan and uncertainty regarding the level of support the NDIS will provide.

Dr Eagle Report

Dr Eagle conducted a face-to-face psychiatric assessment of the defendant on 12 December 2018. The assessment was conducted over a period of about 45 minutes. She had conducted psychiatric assessments of the defendant on at least two prior occasions for the purpose of expert psychiatrist reports as a Court appointed expert.
As to previous assessments, Dr Eagle reported:

48. During previous interviews, he has said “my missus might come back to me one day.” He said “I’ve already missed her.” He recalled memories of times with his ex-partner. He recalled driving a car owned by her father and nearly having an accident, for instance. He said he was not planning to contact her. He reflected that she had not been interested all these years. He volunteered that he had previously had “inappropriate” thoughts such as “she’s having it off with her father.” He said that she had made him jealous.
49. Mr McGuire has previously said that having a license would help him have a relationship with someone else. He said that a relationship involved having a person to spend time with. He said he would like to access his own money. He said he would like to get to know other people. During a previous assessment, Mr McGuire said “of course” when asked if he had sexual feelings. He said they were not specific to people. He said that he sometimes had “offensive thoughts.” He gave an example of seeing his nephew’s girlfriend “bent over in tights that were see through.” He then reflected how she did not pull her weight in the relationship in his view. He said he did not say anything to her. He said he thought she needed a “good bloke.” He was unable to articulate what he meant. He said “I don’t want to crack onto her.”
50. Mr McGuire was previously asked how he would meet his sexual needs in future and said that there were no girls available unless he went to Young. He was asked if he would go on a date. He said he would but that he had never been on a date previously. He said he had met his previous partner during a TAFE course. He said it was a gradual process.
51. Mr McGuire was asked if there were any situation that could arise that would result in a girl having sexual contact forced onto her. He said “no.” He said he did not think about sex every day or every week. He then recounted a situation that occurred as they were travelling to the interview during which “a young sheila purposefully went up the stairs because I’m going up the stairs and kept going along with us.” He suggested that the girl was interested in him and this was why she was walking beside them. He said ”I am not trying to push myself to go looking for a girlfriend.” He then referred to his sister’s best friend and having a crush on her. He suggested she was wealthy, “a posh person” and in a relationship. He said he had never tried to proposition her.

Under the heading “Mental State Examination as at 12 December 2018”, Dr Eagle opined:

63.Mr McGuire displayed some insight into his previous sexual offending and reported never wanting to engage in such behaviour again. He continued to maintain that he would not consume alcohol again. He displayed better control of his emotional responses and frustration and did not engage in any outbursts during the interview, as he had done previously.
[Emphasis added.]

Dr Eagle noted an incident report produced by CJP, dated 12 November 2017. She stated:

69. … Mr McGuire was reported to have been assaulted when in the company of his nephews and a fight broke out. His brother was reported to have been inside a drinking establishment using poker machines. Mr McGuire reported attempting to break up the fight. He was reported to have sustained a number of potential injuries including a possible broken nose but refused to wait for assessment and treatment in hospital. Mr McGuire was not reported to have retaliated or engaged in aggression during the fight. He reported being sober.

Dr Eagle diagnosed the defendant with the following:

mild to borderline intellectual disability; and

alcohol use disorder, in remission.

She also opined that the defendant displayed “adult antisocial personality traits”, but noted there was insufficient information of conduct disorder before the age of 15 to form a diagnosis of antisocial personality disorder.
Turning to risk assessment, Dr Eagle opined:

84. There are inherent limitations in any process of risk assessment, although the best evidence supports a structured professional judgment approach. Risk assessment is most effectively used to develop a risk formulation utilising evidence based risk factors for the purpose of informing ongoing management and rehabilitation (rather than for prediction of reoffending).
85. The risk assessment process in this case is further limited by Mr McGuire’s cognitive deficits and his lack of engagement with clinicians. As a result of this it is difficult to clearly ascertain his cognitions particularly regarding matters relevant to offending behaviours. This limits assessment of his dynamic risk factors.

Dr Eagle made the following observations with respect to the defendant’s risk of violent reoffending:

The defendant’s historical risk factors for violent reoffending have not changed and he has had problems with violent offending, antisocial behaviours, substance use, relationships, employment, major mental disorder and treatment or supervision response. He manifests a moderate to high loading of historical risk factors and these correlate with an increased risk of violence in the longer term. She opined “[t]hese risk factors will not decrease in number and reflect an elevated baseline level of risk”.

The defendant has continued to exhibit clinical risk factors for violence including problems with insight; affective and cognitive instability; and treatment or supervision response (reported non-compliance with androcur). He has a moderately high loading of clinical factors and these place him at an increased risk of general violent reoffending in the short to medium term. It should be noted that his emotional stability and voluntary engagement with services appears to have improved despite a reduction in the level of mandatory support to be provided.

The defendant’s historical and clinical risk factors for violence continue to be adequately managed under the current forensic order and with the benefit of the psychosocial supports in place in combination with prescription of a lower dose of androcur. The defendant had remained stable with no emergence of violent or problematic sexual behaviours despite the lessening of formal support from the CJP and a reduction in his dose of androcur. (It may be noted, following this assessment by Dr Eagle two incidents occurred, which will be returned to in the context of the 2019 EO decision, below).

As to sexual reoffending, Dr Eagle opined:

The defendant’s score on the Static 99R is 4 placing him in the above average risk. He scored:

-1 for his age; 1 for Index non-sexual violence;

1 for prior non-sexual violence;

1 for four or more sentencing dates;

1 for unrelated victim; and

1 for stranger victim (if he had not known of the victim 24 hours prior to the Index Offence).

Similar to the score on the Static 2002-R, this score placed the defendant in a group of offenders at an above average risk of sexual reoffending when compared to other offenders.

On the basis of the Stable 2007, the defendant demonstrated:

problems with significant social influences (specifically exposure to alcohol consumption, gambling and fighting through his nephews and brother) (2);

capacity for relationship stability (no current relationship) (1);

general social rejection (1) and negative emotionality (1);

persistent problems with impulsivity (2);

poor problem solving (2); and

he also displayed recent non-compliance with medication and an expressed desire to disengage with clinicians although overall compliance with mandated supervision (1).

The defendant’s score on the ARMIDILO-S has scored low to moderate on the most recent risk assessment (at the time of Dr Eagle’s report) in the context of the current support service model (and, as mentioned, moderate by Professor Hayes in the RAR).

Dr Eagle also answered specific questions put to her, an extract appears below:

100.5 Please provide your view as to the need for ongoing management of Mr McGuire as a forensic patient (that is, subject to the support of the MHRT and “conditional release” orders).
100.5.1. It is possible that a regime of equivalent support might be developed to manage Mr McGuire’s ongoing risk of reoffending involving New Horizons (under NDIS) offering 20 hours per week transportation support and additional support (so that Mr McGuire could continue his scrap metal activity and receive assistance with difficult living challenges as they arise); suitable accommodation in a stable urban area; continuation of a financial management order; and regular attendance at a GP supported by medical decision making under a guardianship order.
100.5.2. Mr McGuire’s risk of non-compliance or disengagement, relapse into alcohol use (in the absence of alcohol monitoring) and an increase in problematic sexual behaviours (in the absence of androcur) remain risk factors in those circumstances. If disengagement with services, alcohol use or problematic sexual behaviours occurred, Mr McGuire risk of reoffending would substantially increase and in the absence of a forensic order there would be no mandatory regime that would be capable of addressing those factors.
100.6. If Mr McGuire requires ongoing management as a forensic patient, how would such management address the risk he poses?
100.6.1. The primary value that a forensic order provides in the management of Mr McGuire is in the regular review of his progress by the MHRT; the ability to enforce treatment and compliance through conditions (which Mr McGuire appears willing to adhere to); and the recall to hospital (or a correctional facility) if Mr McGuire displayed any deterioration in mental state (for instance, emotional dysregulation) or the emergence of any warning signs (for instance, increased problematic sexualized behaviours or increased aggression). It should be noted that return to a correctional facility would never be recommended as a rehabilitation or treatment strategy for a person with Mr McGuire’s vulnerabilities but as a last resort it can provide incapacitation in terms of risk.
100.7. Please provide your view as to whether any risk posed by Mr McGuire can be managed by other, less restrictive, means. This would include through the civil mental health scheme, the making of a guardianship order (please see the assumptions below) or supervision by CJP (which would be based on voluntary participation by Mr McGuire in the absence of a forensic order).
100.7.1. This is largely addressed in paragraph 100.5 and 100.6 above. Mr McGuire would not, in this assessment, come within the civil mental health scheme given that he does not have a mental illness and is not a mentally ill person within the definition of the Mental Health Act 2007. Guardianship orders are essentially a substituted decision making regime and cannot provide supervision, monitoring or, in my view, adequately or effectively respond to situations of increased risk. The guardianship regime does not have a mechanism to enforce treatment or compliance.

Ms Howell Report

Ms Howell assessed the defendant in a semi-structured clinical interview for 2.5 hours on 15 January 2019. She described his appearance as “untidy and wearing somewhat dirty clothing and did not appear to have showered”.
Ms Howell conducted psychological risk assessments using the Static 99-R and the Risk for Sexual Violence Protocol (“RSVP”). She opined:

Using the Sexual Violence Scale, the defendant does not score on chronicity, diversity or escalation of sexual offending behaviour. There appears to be no psychological coercion involved in the index offence, however the index offence involved physical violence.

Using the Psychological Adjustment Scale, the defendant does not accept responsibility for the index offence. Problems with self-awareness reflect a lack of appreciation for the factors and processes that placed him at risk of sexual violence.

Using the Mental Disorder Scale, there is no evidence that the defendant has a stable pattern of deviant sexual arousal nor a psychopathic personality disorder. He is diagnosed with an intellectual disability with associated impairment of cognition, affect and behaviour. She also noted the defendant has had a history of alcohol problems.

Using the Social Adjustment Scale, the following was noted about the defendant:

He was experiencing difficulties within his place of residence due to a belief that one or possibly two women work as sex workers from units underneath his and to one side. He was aware of men, who live in the unit complex, visiting which is causing him distress and he stated he cannot ignore what he hears and believes is occurring.

He has experienced problems with his non-intimate relationships involving a failure to establish or maintain positive social supports. He has a history of non-sexual criminal behaviour.

Using the Manageability Scale, the defendant requires support with planning and assistance in meeting appointments at the current time.

As to whether the defendant needs ongoing management, Ms Howell opined:

It is my view that Mr McGuire requires ongoing management as a forensic patient to minimise his risk of reoffending. Mr McGuire is an intellectually disabled man with cognitive and adaptive impairments. Assessment using the Static-99R and the RSVP indicate Mr McGuire’s risk of sexually reoffending is in the Above Average risk level. Mr McGuire has previous criminal history that included violence and alcohol. During the assessment Mr McGuire demonstrated problems with emotional regulation becoming agitated and angry when issues in relation to sex offender treatment were raised with him. The RSVP highlighted problems with self-awareness, problem solving skills, stress and coping and non-intimate relationships and planning. Currently, Mr McGuire resides in supported accommodation with 12 hours a week case worker support through New Horizons to attend medical and other appointments and shopping.
Mr McGuire’s untreated risk factors and support and supervision needs suggest he would benefit from management as a forensic patient subject to the support of the Mental Health Review Tribunal and conditional release orders.

Ms Howell further opined:

Mr McGuire has problems with self-awareness, limited problem solving skills and a lack of appropriate coping strategies. He lives alone and spoke of feelings of loneliness. He became agitated when talking about a belief other men residing in the block of units are visiting several sex workers he believes are working out of a units on the floor beneath him. Talking about this situation caused Mr McGuire to become agitated and he asked how he could be expected to ignore what he hears, however, he did not respond to questions regarding what he hears.
Mr McGuire’s comments and emotional agitation regarding the possibility of sex workers working from units near him may be related to mental health concerns and/or may be an elevated risk factor in relation sexual behaviour problems.
It is my view Mr McGuire is a lonely man who has a number of psychological needs in addition to his intellectual and adaptive functioning needs and risk of sexual reoffending. Management as a forensic patient would address the risk he poses in the community through regular contact with caseworkers and support to engage in treatment and with the community.

In considering whether the defendant could, at that time, be managed by less restrictive means, Ms Howell said:

Mr McGuire has ongoing clinical needs in relation to his intellectual disability, alcohol abuse disorder currently in remission, assessed risk factors for further offending in the Above Average risk range and is resistant to engaging in treatment. It is my view Mr McGuire’s clinical needs and risk factors for further offending could not be adequately managed through a civil mental health scheme, or the making of a guardianship order or supervision by CJP and New Horizons on a voluntary basis.

At this juncture, I interpose to note the conclusions reached by Dr Eagle and Ms Howell that were accepted by Wright J in the 2019 EO decision.
Wright J accepted the evidence and conclusions of Dr Eagle, save for “those opinions of Dr Eagle based on an assumption that there has been no problematic sexualized or other conduct after the reduction in the dose of Androcur”: at [63]. As to the factors supportive of a conclusion that the defendant posed a risk of causing serious harm to others if he ceased to be a forensic patient, without adequate monitoring and support in place, Wright J found that Dr Eagle identified the following (at [64]):

(a) His baseline risk of moderate (above average) is and will remain unchanged. His dynamic risk has remained moderate and may fluctuate. This risk is being adequately managed under the conditions imposed by the MHRT;
(b) The defendant’s risk factors are primarily related to his underlying intellectual disability and are unlikely to change over the longer term. Dr Eagle explained that: “[t]hey are able to be managed with increased support and supervision”;
(c) Overall, if the conditions of the forensic order were removed, the defendant would be considered at a moderate risk of sexual recidivism (or above average) based on his dynamic and static risk factors. The length of time since the Index Offences does not correlate with a reduction in his risk level given that during the period in question he has been subject to a forensic order with strict conditions, and he has had the benefit of substantial monitoring and support and received mandated prescription of Androcur;
(d) He also has a number of historical and clinical risk factors for violent reoffending that would place him at an increased risk of future violence in the event that the monitoring and supervision associated with a forensic order ceased;
(e) The defendant’s unwillingness to discuss his sexual offending at any length is an ongoing barrier to his effective risk management, particularly in the absence of external constraints, and prevents him from self-monitoring his behaviour;
(f) The defendant has clearly indicated that he would not continue Androcur if it were not mandated.

His Honour also stated (at [66]):

[66] Dr Eagle noted, and I accept, that the process of obtaining yearly extensions of his status as a forensic patient has been challenging for the defendant and he has expressed frustration at the repeated appointments. A longer extension would also afford an opportunity to demonstrate a sustained period without reoffending, with limited or no supervision and support, and following cessation of anti-libidinal medication. If the Court determined to extend his status as a forensic patient, a longer period than one year would be appropriate.

Based upon the evidence of Ms Howell, Wright J was satisfied as to, inter alia, the following (at [70(8)]-[70(10)]):

On the Static 99-R scale, the defendant was placed in the Above Average Risk level for being charged with, or convicted of, a further sexual offence.

Applying the Risk of Sexual Violence Protocol, consideration of the dynamic risk factors indicated they are in the Moderate range. The dynamic factors associated with the defendant’s risk of sexually reoffending fall across five scales: the Sexual Violence Scale (use of physical coercion); Psychological Adjustment Scale (problems with minimisation, problems with self-awareness and stress and coping); Mental Disorder Scale (intellectual disability, and history of substance abuse and alcohol problems); Social Adjustment Scale (problems with intimate and non-intimate relationships); Manageability Scale (problems with treatment, planning and supervision).

59. Whilst the remark the defendant made to Ms Gorman is inappropriate, it is significant that the defendant qualified his implied proposal with the words “if she’d wanted to.” It is very unclear from the defendant’s reported words whilst “rambling,” whether he was contemplating sexual intercourse with Ms Gorman, or something else. The remark was, as Professor Hayes commented, “incomprehensible.” The words “if she’d wanted to” make it clear, however, that whatever he was contemplating was contingent upon Ms Gorman’s consent.
60. The plaintiff may also be referring to the “incident of concern” which occurred in June 2018, when the defendant tried to invite a female support worker into his home. Wright J quoted from an incident report made by the female support worker involved in his judgment in 2019. Her report is as follows:
Lastly, just before I dropped [the defendant] off at home [the defendant] told me he thought he had a chance being with me. Straightaway I cut him off and told him definitely not. He laughed it off. As I pulled up outside of his apartment, [the defendant] said to me or not going to help me with my shopping. I told him I would help him carry it to the front step of his apartment but I was not coming into his house. He then said to me no that is fine he will take his shopping himself. As he hopped out of the car he told me no one ever comes up into his apartment to keep him company (sort of like an invite to go up]. I told him I was not coming inside. He told me that’s okay I will see you next time. I [the defendants] apartment as soon as he got everything out of the car.

61. This incident shows that the defendant made remarks which were inappropriate in the context that they were made to his case worker. However, it also shows that his behaviour has changed since the index offences. He told the case worker that it was “fine” when she said she did not want to come into his house, and, when she repeated this, said “that’s okay.” That is, the defendant accepted it when the case worker rejected his advances and did not do anything to force himself on her or to try to persuade her to change her mind.
62. Neither incident demonstrates that the defendant poses a risk to women of serious harm. What is most significant is that, whilst the defendant may occasionally make inappropriate comments, he has not committed any act of sexual violence since he committed the index offences. The comments he made may simply reflect his own feelings and hopes for intimacy and female company.
[Footnotes omitted.]

At the preliminary hearing, further submissions were advanced with respect to third contention:

As to the incident with Ms Gorman, it was submitted that whilst the incident report reveals that Ms Gorman was concerned about the comments, it is also evident that she did not feel that she was at such risk that she could not work with him in the future. The defendant has also since apologised to Ms Gorman.

Further, whilst the records reveal the defendant has been making sexualised commence since at least 2015, “there has been no incidents where he has attempted to force a woman into any kind of sexual relationship or force himself on any woman”. Thus, “although he is struggling with understanding boundaries, he certainly appears to be clear on the fact that he needs consent before engaging in any sexual activity with women or with anyone”. It was submitted that his difficulty distinguishing between a professional and personal relationship is no doubt a function of his intellectual limitations. However, in light of the lengthy period of time that has passed since his last sexual offence, “it doesn't follow from that that there is an increased risk that he would reoffend”.

Additionally, whilst acknowledging the sexualised comments made, counsel for the defendant placed significant reliance upon the following:

The plethora of protective factors, including improving his relationship with his family and establishing a business in buying and selling scrap metal, operating at the present time. Further, the defendant has set and achieved goals. He has secured accommodation closer to family, had his license re-instated and has abstained from alcohol and drugs.

The description by Ms Gorman of the defendant being “fiercely independent”.

As to the defendant’s ability to exhibit control, reference was made to a fight that occurred in a pub in 2013. It was submitted: “his role in that was not to drink even though he was in a presumably a pub, an establishment where his brother was drinking, and he broke up the fight rather than getting involved in it and he didn't retaliate or get into any aggression even though he might have broken his nose. He was certainly injured. So that shows a significant amount of control which would suggest at least he is unlikely to behave violently”.

Elements of the NDIS Plan, which may operate independent of an EO, were highlighted. In particular the report by Ms Cari. This is significant, it was submitted, because through the NDIS, “there are service providers who are working on those inappropriate comments and inappropriate behaviour towards women with the defendant and finding strategies to help him understand they are inappropriate and to behave differently”. This is evident in the Behaviour Support Services material and Behaviour Support Plan (extracted earlier in this judgment).

Returning to the 2016 and 2017 EO decisions, it was submitted:

I would suggest is that, looking at those three judgments, that there has been recognition, probably more so by Campbell and Bellew JJ, that the defendant has been progressing towards a lower risk category and that part of the need in the past for an extension order has been so as to ensure that he takes his medication or that when he was in the trial period of not having the medication, that he was supervised. But we are now in a position, of course, where he's not been on the medication for I think three years; over three years in the case of alcohol and over two years in the case of the anti libidinal medication and there has been no offending in that time.
So the Court would be, in my submission, more confident now that any risk that he might have posed whilst that medication was being reduced or taken away altogether is now minimal.

Reliance was also placed upon the positive observations made by Ms Roy and Mr Wu in the CSP Reports to the MHRT (which have been earlier extracted in this judgment) with respect to the defendant’s use of effective risk management strategies without prompting and the several protective factors identified.

The Court can have regard to the fact a referral may be made to the CSP for the defendant to continue as a client in the event his forensic patient status expires.

As to the fourth contention, reference was made to the fact that the defendant’s last violent offence occurred about 14 years ago and the index offences occurred over 15 years ago. Since the defendant committed those offences, he has given up alcohol. He has also recognised that drinking alcohol detracts from the independence he wants. Further, he has many support structures in place which are not dependent upon his status as a forensic patient.

Turning to the fifth contention, the Court should not accept the plaintiff’s submission concerning the deterioration in family relationships and its potential to elevate the defendant’s risk, which submission was advanced “without any evidentiary basis”. Reference was made the following:

He lived with his sister when he was seventeen years old.

He also spent significant amount of his sister’s house in 2014 and in 2017 it was also reported that he generally visited her on the weekends.

In 2020, he spent his time moving between his brother’s and sister’s homes.

He has longstanding relationships with both of these siblings, and has spent considerable time visiting or living with both of them.

Further, in that respect, it was submitted, deterioration in his relationships with them is unlikely to occur in the next two years. The plaintiff has not established that the supporting documentation provides a sound evidentiary basis for concluding that a deterioration in the relationship with the defendant’s siblings is likely to occur. Even if the defendant’s relationship with one of his siblings deteriorated, that would not necessarily mean that the relationship with the other would also do so. Further, a decline in the quality of those relationships would not necessarily lead to reoffending.

Finally, as to the plaintiff’s reliance on Professor Hayes’ opinion that “if the defendant ceases to be a forensic patient then he poses a risk of serious harm to others”. The defendant advanced the following submissions:

The inherent limitations in relation to all risk assessment approaches.

The Court’s view as to the risk posed by the defendant need not be informed by Professor Hayes, as her opinion was based upon the basis of the defendant’s “lapses in engagement in treatment, lack of provision of some categories of programs (such as education, living skills or vocational preparation), and uncertainty of the nature and frequency of formal and informal counselling/interventions provided by case workers” – all matters which the Court is in a position to assess.

The defendant has an intellectual disability, not a mental illness, and it is not susceptible of “treatment.” As Professor Hayes acknowledged, the defendant “appears to have coped with changes with supervision/treatment, including less supervision” and this is a protective factor.

Additionally, as to Professor Hayes’ opinion concerning the relevance of “recent breaches of conditions” being a factor heightening risk, the defendant submitted:

66. …This may be a reference to the defendant travelling to Queensland to see his daughter from 9-12 January 2020. Support staff engaged with the defendant on his return “and nil issues was observed.” He was reminded of his conditions on 21 January 2020 and agreed that he would inform his case manager in future and seek the Tribunal’s consent before travelling to Queensland. Following this, there was nothing to suggest that he was non-compliant with the conditions of his order. In February 2021, Communities and Justice reported that “there has been no information to suggest that Mr McGuire has been non-compliant with the conditions of his order.”
67. As Communities and Justice observed, the defendant’s non-compliant “behaviour needs to be considered with his intellectual disability, which can influence his understanding of his conditions, insight into this behaviour and planning and consequential thinking.” The plaintiff acknowledges that the defendant’s breaches of his conditions of release “suggest a desire for independence but could also be attributed to his intellectual disability and failing to understand how to respond to changes in circumstances” (PS [90]).
68. The breach of conditions by travelling interstate to see his daughter for a period of four days has no direct relationship with any risk that he will commit a sexual or violent offence. The defendant has been clear when asked on numerous occasions that he is determined not to offend again.

The defendant submitted the plaintiff has the onus of persuading the Court that the defendant poses an unacceptable risk of causing serious harm to others if the Court declined to make a further EO. The defendant contended that the plaintiff has not discharged that onus, in the following circumstances:

The index offences occurred over fifteen years ago, when the defendant was thirty-three. He is now forty-eight.

The defendant has not committed any violent offences since 2007 (about fourteen years ago).

The defendant has not caused any harm since his conditional release in 2013, despite a lack of supervision.

The index offences occurred whilst the defendant was intoxicated. As Campbell J found, “dis-inhibition brought about by intoxication was a significant factor in what occurred”. A behaviour support plan in June 2019 described alcohol and cannabis as “a major contributor” to the defendant’s past “aggressive and sexual offence behaviour”. In other words, alcohol was a significant causal factor in the offending.

The defendant no longer consumes alcohol and has not been required to take medication for alcohol addiction since March 2018. His drug and alcohol testing has consistently been negative (that is, it has shown he has not consumed drugs or alcohol). The defendant told Ms Howell that he did not have any cravings for alcohol. In August 2019, he told the MHRT that he drinks Coca-Cola when the rest of his family consumed alcohol and did not find that difficult. The defendant has insight into the risks of alcohol consumption, stating that he tends to make irrational decisions when under the influence of drugs and alcohol and that his stops him from being more independent. Dr Eagle recognised that he had improved in his awareness of some of his risk factors, such as alcohol use. As a report of Communities and Justice stated, the defendant’s self-management of risk in respect of alcohol is a protective factor.

The defendant has denied any desire to offend again and has expressed remorse for the offences. He stated, in relation to the index offences, “I don’t think I’m mental enough to do that again” and “I never want to do something like that again”. Dr Eagle commented in 2019 that the defendant “displayed some insight into his previous sexual offending and reported never wanting to engage in such behaviour again”. He has also said that he regrets hurting others and would like to move forward with his life. The defendant told Professor Hayes that he is a “changed person” and “couldn’t do that”. Those statements should be accepted. The Court would be wary of taking a paternalistic approach to the defendant’s statements and disbelieving them, on the basis that the defendant has an intellectual disability.

The defendant has not been required to take anti-libidinal medication since March 2019 and he has not committed any sexual offences in that time, despite a lack of supervision. In August 2019, a Communities and Justice report stated that the defendant “has been reported to not demonstrate deviant sexual interest” and that there is “no evidence to suggests that Mr McGuire presents with a preoccupation in sexual thoughts and behaviours”. A report in early 2020 stated that support staff had continued to report that the defendant had not been observed to exhibit any behaviour or presentation suggestive of sexual deviancy. It was noted that this “has been a consistent finding in past CJ&ISP risk assessments and reports”. Professor Hayes is also of the view that the defendant “does not exhibit a tendency towards sexual deviance, or sexual preoccupation/sexual drive”.

The defendant is occupied with scrap metal collecting, which also provides him with a source of income. It is “a very important hobby for [the defendant] and gives him purpose”. This is a protective factor.

The defendant has significant family support. He resided with his brother in Young for some time and now lives near his brother and visits him and his family on the weekends. He also visits his father who lives nearby. Another brother also lives in the area and “his brothers and their friends are his major source of social interaction”. He also provides money to his daughter and grandchildren when he is able to do so. His goals include to live close to family and he has identified that maintaining positive contact with his family is something important to him. He identifies the most important people in his life as being his daughter, his brother and sister.

The defendant identifies his strengths as including his family, living independently and not breaching the MHRT conditions.

The defendant’s goals are inconsistent with reoffending. They include to have autonomy and control over his life, which he understands to mean to be able to make decisions without others having control. He also wants to have an intimate, romantic relationship and to maintain good health and wellbeing. To achieve this, he recognises he needs to be away from people who are on drugs and alcohol. Reference made to the CSP Report to the MHRT dated 17 January 2020, which reported that the defendant “has actioned his goals in relation to independence, increased family connection, which can be perceived as protective”.

The defendant has significant support through the NDIS including an NDIS Plan approved in June 2020 and increased funding in February 2021. This support is not dependent upon the existence of an EO.

According to a Communities and Justice report in August 2019, the defendant “has been reported by staff to demonstrate use of effective risk strategies (e.g., avoids anti-social peers, abstinent from AOD, occupied with scrap metal work) in situation where he might be at risk without prompting by staff”.

Even in circumstances where there have been reductions in the defendant’s contact with support staff, the defendant “does not appear to have gravitated towards situations that may place him at risk”.

In further opposition to the application before the Court, the defendant relied upon the following submissions:

8. The defendant has now been subject to five extension orders.
9. The restrictions on the defendant’s liberty cannot simply be extended for many decades, perhaps until his death, based upon one incident that occurred over fifteen years ago.
10. The defendant has lived independently, with varying levels of support, since being conditionally released by the Mental Health Review Tribunal (MHRT) in 2013 (eight years ago). Irrespective of whether he has been receiving support, or engaging with services, he has avoided alcohol and drugs and has not committed any further offences. The MHRT trials of reducing the dosage of his anti-libidinal medication, then removing the requirement that he take it at all, and of removing the requirement that he take medication for alcohol addiction, have been successful. The defendant has demonstrated that he does not engage in behaviour of risk whilst in the community, including when coercive means of supervising his behaviour are not in place and when, to use Professor Hayes’ words, “the level of supervision has been less intensive.”
11. In these circumstances, the Court would not be satisfied, to a high degree of probability, that the defendant poses an unacceptable risk of causing serious harm to others.
[Footnotes omitted.]

Finally, with respect to the Court’s consideration of the degree of probability that the defendant poses an unacceptable risk of causing serious harm, the defendant submitted:

69. The plaintiff identifies some other factors in support of the orders he seeks, being that:
a. The nature of the defendant’s intellectual disability means he responds to treatment when directed to adhere to conditions and knows there are consequences for breaching them (PS [96]);
b. The defendant lacks the capability to reason right from wrong and lacks insight into consequences of his behaviour (PS [97]);
c. “The defendant’s antisocial traits elevates [sic] the risk of reoffending as he may react aggressively and emotionally to external stressors” (PS [97]);
d. The defendant is somewhat nomadic at the moment although living with his brother, and he was homeless when he committed the index offence (PS [98]);
e. Absent an extension order, “there is a significant concern of relapse to alcohol and an inability to live in the community without assistance” (PS [99]).

70. These are broad assertions which do not support a finding, to a high degree of probability, that the defendant poses an unacceptable risk of causing serious harm to others. It is paternalistic to assert that the defendant’s “risks are managed by rules” (PS [96]) without having regard to his own self-regulation, and to assert that he has no ability to reason right from wrong. The claim that the defendant’s risks are managed by rules is not supported by the evidence, given that his supervision has been inconsistent and the risk assessments identify protective factors which reduce risks. The defendant has shown insight into the consequences of his behaviour … His emotional regulation has improved and he is receiving support in this regard. The suggestion that being “somewhat nomadic” is a basis upon which the Court could conclude that he poses a risk of causing serious harm has no reasonable basis. The evidence indicates that he does not wish to consume alcohol any more and this is not dependent upon being subject to an extension order.

As to the consideration of less restrictive means, the defendant advanced the following submissions:

81. If the Court finds, contrary to the defendant’s submissions, that it can be satisfied to a high degree of probability that he poses an unacceptable risk, the Court must then consider whether that risk can be adequately managed by other less restrictive means.
82. It is acknowledged that the defendant cannot be managed under the Mental Health Act 2007 (NSW) and that the scope of the Guardianship Order is limited (cf PS [34]). However, guardianship orders are subject to regular reviews, and a guardianship order may specify that the guardian is empowered to take such measures or actions as are specified in the order so as to ensure that the person under guardianship complies with any decision of the guardian in the exercise of the guardian’s functions.
83. The NDIS provides the defendant with the supports he needs to assist him with matters such as emotional regulation, which help to address any risk he may pose.
84. The general criminal law also provides a “less restrictive means” of managing the defendant’s risk than the imposition of a further extension order. The defendant has suffered significant consequences as a result of his convictions, including being detained in both prison and hospital and having his liberty restricted for a very long period of time. He has abided by the rules imposed by the criminal law consistently over the course of his detention and conditional release (even when his compliance with the MHRT orders has been, at times, inconsistent). It may be inferred that the deterrent effect of the criminal law is particularly high for the defendant, as he knows the gravity of the consequences, should he reoffend against that law.
85. The NDIS support services, the guardianship orders and the general criminal law provide less restrictive means for adequately managing any risk which the defendant may pose.

At the preliminary hearing, the defendant also tendered a comparative table of supports and restrictions for the defendant, which illustrated the supports would continue and/or cease in the event the defendant’s forensic status was continued or brought to an end. It is extracted below (together with references provided by the defendant):

Forensic Status Continues	Forensic Status Ends
MHRT reviews defendant at six monthly intervals and makes orders as to conditions of liberty. Defendant may be apprehended then detained in hospital or other place (i.e. prison) if it appears to the President of the Tribunal that he has suffered a deterioration of mental condition and is at risk of causing serious harm (See the Act, ss 78, 85,109)	MHRT has no jurisdiction.
CSP case manager appointed by MHRT under s 85(1)(a) of the Act to case manage the defendant. This involves: ● having regular contact with defendant, either face-to-face or over the phone; ● liaising with NDIS support providers and clinicians involved in defendant’s care; ● liaising with the MHRT in the context of the defendant’s circumstances and behaviour insofar as they are relevant to compliance with MHRT orders.	CSP no longer provides case management but may still accept referrals to provide advice, assessment, and other assistance to NDIS support providers, including in assessing and managing risk. Ref: Report to the Tribunal, Sue Roy; 13 August 2020 (EB-1, Tab 25, p 310 at point 3)
NDIS-funded services provide support according to the needs identified in functional, risk, and other assessments, as well as behaviour support. This involves provision of numbers of hours of practical day-to-day support spent in the company of the defendant as well as help with general life management (eg. dealing with government services, the Trustee and Guardian, Housing etc)	NDIS-funded services continue to provide support according to the needs identified in functional, risk, and other assessments. NDIA continues to review required funding and supports. Ref: For a summary of funded supports, see: Report to the Tribunal, Sue Roy, 9 July 2021 (EB-2, Tab 2, p 4, under “Service Provision and Accommodation”)

In light of those submissions, it was contended, the plaintiff has not discharged his onus of establishing, to a high degree of probability, that the defendant poses an unacceptable risk of causing serious harm to others if he ceases to be a forensic patient, or that any risk he does pose cannot be adequately managed by other less restrictive means.

CONCLUSION

Having considered the supporting material before the Court, in particular, the expert reports and the material prepared by the CSP, together with the respective submissions of the parties, the Court is satisfied that the plaintiff has met the statutory requirements for the making of the orders sought on the present application. In particular, I am satisfied that on the material before the Court that the defendant poses an unacceptable risk of causing serious harm to others having regard to the provisions of s 122 of the Act. I also note, in that respect, the submissions of the plaintiff that the risk may not be adequately managed by a less restrictive means.
In coming to that conclusion, the Court had particular regard to the following:

In the RAR, Professor Hayes assessed the defendant as posing a moderate risk of causing harm to others in the community, commenting that the structures provided in earlier EOs have successfully reduced his risk. Professor Hayes opined that the possible reduction in support structures may elevate the defendant’s risks. The RAR also stated that the EOs in the past have been “highly significant in controlling the anti-social behaviours which would otherwise contribute to the risk of causing serious harm to others”. It may be noted that both Dr Eagle and Ms Howell had earlier opined that decreases in support and supervision would elevate the defendant’s risk of causing serious harm to others.

The RAR, together with the reports and progress notes by the CSP, indicate that the defendant continues to demonstrate a limited capacity for moral reasoning and problem solving. His risk factors, in that respect, include reacting emotionally and aggressively to stressors.

Professor Hayes opined that there is no other less restrictive means of managing the defendant’s risk, other than an EO. That opinion is also supported by the earlier reports of Dr Eagle and Ms Howell. It may also be noted that both Professor Hayes and Dr Eagle opined that if the defendant ceases to be a forensic patient then he poses a risk of serious harm to others.

The experts unanimously opined that, absent the existing support structures, there is a significant concern of relapse to alcohol and an inability to live in the community without assistance which would have the consequence of elevating his risks. As to the management of risk, the material before the Court points strongly toward the success of the EO managing the defendant’s risk. It has enabled him to live in the community and address risk as well as motivate the defendant to remain abstinent from alcohol. Thus, whilst it is commendable that the defendant was able to refrain from consumption of alcohol (as well as aggressive conduct) in an incident involving a fight at a pub, that isolated incident does not diminish the recognised risk associated with relapse in the case of the defendant. It may also be noted, in that respect, that Dr Eagle recognised the positive aspects of the defendant’s conduct in that respect, but still found, after taking in to account all the matters before her, the defendant posed a risk of causing serious harm to others if he ceased to be a forensic patient; she formed an opinion based on the material before her that he was still a risk.

The defendant’s intellectual disability means he requires assistance with living in the community. When those support structures are absent, the lack of daily routine and instability in his life elevates his risk of relapse to alcohol and his risk of sexual or physical violence. Each of the experts identified the risks associated with relapse. This risk is also consistently addressed by the CSP. It may also be noted, in that respect, that as the defendant is not mentally ill he cannot be managed under the MHA and the Guardianship Order cannot provide the oversight of monitoring for drug and alcohol use.

The likelihood of the defendant’s risks eventuating without support structures is evidenced by the defendant’s criminal history. The defendant abused alcohol and committed serious sex offences and violent offences in such circumstances. Whilst it is true the defendant has not re-committed a serious offence since the index offending, as has been observed by this Court, there is a need for caution with respect to ceasing the defendant’s EO, particularly in the present circumstances where the defendant has shown increased sexualised comments and the experts, together with the CSP and his support workers, acknowledge this elevates the risk posed by the defendant. To remove such support could render the risk inadequately managed and endanger the community.

It is true that the CSP and the MHRT have recognised the numerous protective factors operating with respect to the defendant, in particular his improved relationship with his family. However, other than the defendant’s family, the defendant does not have relationships as a protective factor in his life. I accept the opinion of Professor Hayes that any deterioration in family relationships could readily elevate the defendant’s risks. I have also had regard to the recent comments of the MHRT, namely, that the defendant’s loading of dynamic risk factors had increased recently because of changes in service provision, absence of support staff, the change in living arrangements and observed “emotionally reactive” responses to these stressors and COVID-19 restrictions.

The defendant’s intellectual disability means he misreads cues from women and responds inappropriately. Further, his lack of perception, in this respect, is not confined to his understanding of his relationship with female support workers. The incident of the sexualised comments towards Ms Gorman was not an isolated incident. Mr Wu has also noted an incident in a public lunch area in which police intervention was required. Following both incidents, the CSP re-assessed the risk and implemented strategies in consultation with relevant stakeholders and support services. Counsel for the defendant also accepted that the defendant’s incidents with respect to sexualised comments have been documented since around 2015. The CSP, in conjunction with relevant stakeholders providing support of the defendant such as Dr O’Dea and the defendant’s Behaviour Support Practitioner, work together to manage this risk. Additionally, even though the defendant has made commendable progress with respect to achieving goals, which have been documented by the CSP, Mr Wu recorded “his insight into what constitutes a high risk situation is also an area that has yet to be thoroughly explored".

Following the incident with Ms Gorman on 30 March 2021, the CSP progress notes acknowledge an escalation of risk in the current climate as at April 2021. The CSP developed a plan to manage that risk. In a subsequent progress note, consideration of a referral to Dr O’Dea is noted. This is significant, as whilst subject to an EO the defendant “would be required to take that medication to manage his risks”.

As to the defendant’s concern that "the restriction of the defendant's liberty cannot simply be extended for many decades, perhaps until his death, based on one incident that occurred over 15 years ago", reference may be made to the remarks of Button J in Attorney General of NSW v McGuire [2018] NSWSC 1795 at [9], [29] and [30]. Notwithstanding the positive remarks of his Honour that conditions may “gradually” become less onerous and slowly reduced, his Honour had regard for a recent incidence of non-compliance that was a matter of concern (at [9]). Similarly, on the material before the Court, the defendant’s recent increase in making inappropriate sexualised comments is cause for concern. His Honour also had regard for the fact that “for the past five years, judges of this Court have been prepared to make an extension order, in my assessment of whether or not a judge could be prepared to do so again in the future" (at [29]). There is a need for caution with respect to ceasing the defendant’s conditional liberty, which, as Button J observed, “could lead rapidly to isolation, a return to alcohol abuse, an unwillingness or inability on the part of this intellectually disabled man to get help, and a real risk serious offending, not least in a sexual way, thereby endangering the community. And it is not unimportant, I think, that the reasonably recent period of deterioration showed hints of a return to sexual dysfunction” (at [30]).

Finally, whilst the support provided on the NDIS Plan is beneficial, it does not include the support of a forensic psychiatrist nor does it include the CSP. This is because NDIS is not a mental health service, it is a service that provides support for those with disabilities. The material before the Court from the experts, the CSP and the MHRT all acknowledge the benefit of the support provided by Dr O’Dea, in particular with respect to the risk associated with sexual offending. Whilst the increase in sexual comments has not resulted in a serious sexual offence, it has elevated the risk and required the implementation of strategies to manage it. Additionally, the CSP have worked with the defendant since 2010 and have documented his progress and setbacks. In the absence of an EO, the current CSP services would have expired on 13 August 2021.

In light of the significant role the CSP service provides in management of the defendant’s risk, it would have been inappropriate to allow the support to be cancelled at the expiration date on 13 August 2021 upon the basis of an option and/or possibility of a referral, in particular, when regard is had to the level of risk identified by Professor Hayes and the potential adverse impact upon the defendant’s progress and the endangerment of the community. There was no roadmap before the Court to enable any satisfaction as to that opaque course. It follows, in my view, the support provided by the NDIS Plan, together with a possible referral to the CSP, is insufficient to mitigate the risk. Thus, the risk cannot be adequately managed by less restrictive means.

The Court confirms its orders made 12 August 2021.

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Decision last updated: 27 September 2021

Medium Neutral Citation:	Attorney General for New South Wales v McGuire (Preliminary) [2021] NSWSC 1222
Hearing dates:	4 August 2021
Date of orders:	12 August 2021
Decision date:	27 September 2021
Jurisdiction:	Common Law
Before:	Walton J
Decision:	The Court makes the following orders: (1) An order pursuant to s 126(5) of the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW): (a) Appointing two qualified psychiatrists, or two registered psychologists (or a combination of such persons) to conduct separate examinations of the defendant and to furnish reports to this Court on the results of those examinations by a date to be fixed by the Court; and (b) Directing the defendant to attend those examinations. (2) An order pursuant to ss 130 and 131 of the Act, that the defendant be subject to an interim order for the extension of his status as a forensic patient commencing from midnight on 13 August 2021 and expiring 12 November 2021.
Catchwords:	CIVIL – Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW) – application for interim extension order – general principles – forensic patient – limiting term due to expire – factors under s 127(2) – unacceptable risk – orders
Legislation Cited:	Crimes Act 1900 (NSW) Crimes (High Risk Offenders) Act 2006 (NSW) Criminal Procedure Act 1986 (NSW) Mental Health Act 2007 (NSW) Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW) Mental Health (Forensic Provision) Act 1990 (NSW) Terrorism (High Risk Offenders) Act 2017 (NSW)
Cases Cited:	Attorney General for New South Wales v Bragg (Preliminary) [2021] NSWSC 439 Attorney General for New South Wales v Huckstadt [2017] NSWSC 441 Attorney General for NSW v MZ [2017] NSWSC 1773 Attorney General of New South Wales v Blanks [2021] NSWSC 303 Attorney General of New South Wales v Kereopa (No 2) [2017] NSWSC 928 Attorney General of New South Wales v McGuire (No 2) [2014] NSWSC 288 Attorney General of New South Wales v Skerry (Preliminary) [2015] NSWSC 859 Attorney General of NSW v Doolan (No 2) [2016] NSWSC 107 Attorney General of NSW v HRM [2016] NSWSC 1189 Attorney General of NSW v McGuire [2017] NSWSC 1572 Attorney-General for the State of New South Wales v Boyce by his tutor Jennifer Thompson [2017] NSWSC 144 Cornwall v Attorney General of New South Wales [2007] NSWCA 374 McMillan v Pryce (1997) 115 NTR 19 Owen v Woolworths Properties Ltd (1956) 96 CLR 154 R v McGuire [2009] NSWDC 245 State of New South Wales v Alam [2020] NSWSC 295 State of New South Wales v Barez (Preliminary) [2019] NSWSC 1589 State of New South Wales v Chaplin [2019] NSWSC 471 State of New South Wales v DK (Preliminary) [2018] NSWSC 1947 State of New South Wales v Elomar (No 2) [2018] NSWSC 1034 State of New South Wales v Fayad (Preliminary) [2020] NSWSC 1681 State of New South Wales v Golding (Preliminary) [2018] NSWSC 1041 State of New South Wales v Loto [2018] NSWSC 1522 State of New South Wales v McGee (Preliminary) [2019] NSWSC 53 State of New South Wales v Osman [2020] NSWSC 1646 State of New South Wales v Sturgeon [2019] NSWSC 559
Category:	Principal judgment
Parties:	Attorney General for New South Wales (Plaintiff) Herbert McGuire (Defendant)
Representation:	Counsel: D New (Plaintiff) J Lucy (Defendant) Solicitors: Crown Solicitor’s Office (Plaintiff) Legal Aid NSW (Defendant)
File Number(s):	2021/172559