Attorney General for New South Wales v RL (by his tutor Ramjan) (Final)

[2024] NSWSC 1580

Supreme Court

New South Wales

• Amendment notes

Medium Neutral Citation:

Attorney General for New South Wales v RL (by his tutor Ramjan) (Final) [2024] NSWSC 1580

Hearing dates:

07 November 2024

Date of orders:

11 December 2024

Decision date:

11 December 2024

Jurisdiction:

Common Law

Before:

Wright J

Decision:

(1) An order pursuant to ss 121, 127(1)(a) and 128 of the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW) that the defendant be subject to an order for the extension of his status as a forensic patient for a period of 3 years and 6 months from when his current interim extension order expires.

(2) The Registrar is directed to inform the Mental Health Review Tribunal of the making of the extension order referred to in order (1) and is to provide to the Tribunal a copy of these orders and the judgment in this matter.

Catchwords:

MENTAL HEALTH – forensic patient – interim extension order due to expire – application for an order extending status as forensic patient – extension order appropriate – duration of extension order – order that status as a forensic patient be extended for 3 years and 6 months.

Legislation Cited:

Crimes Act 1900 (NSW), ss 33(1)(a), 35(1)

Crimes (High Risk Offenders) Act 2006 (NSW), s 9(3)

Evidence Act 1995 (NSW), ss 69, 191

Guardianship Act 1987 (NSW), s 4

Mental Health Act 2007 (NSW), s 22

Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW), ss 19, 69, 72, 121, 122, 123, 124, 125, 126, 127, 128, 130, 131, 133, 134, 138

Mental Health (Forensic Provisions) Act 1990 (NSW), ss 32, 54A, Sch 1

Cases Cited:

Attorney General for New South Wales v Bragg (Final) [2024] NSWSC 316

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

Attorney General of New South Wales v McGuire [2013] NSWSC 1862

Attorney General for New South Wales v Peterson (bht Rodrigues) [2020] NSWSC 651

Attorney-General for New South Wales v Riley (Final) [2019] NSWSC 1782

Attorney General for New South Wales v RL (bhtRamjan) [2024] NSWSC 1042

Attorney General of NSW v Doolan by his tutor Jennifer Thompson (No. 2) [2016] NSWSC 107

Cornwall v Attorney General for NSW [2007] NSWCA 374

Lynn v State of New South Wales (2016) 91 NSWLR 636; [2016] NSWCA 57

Minister for Mental Health v Paciocco [2017] NSWSC 4

New South Wales Minister for Mental Health v Brauer [2015] NSWSC 863

State of New South Wales v Conway [2011] NSWSC 976

State of New South Wales v Hayter (Final) [2020] NSWSC 1581

State of New South Wales v Thomas [2010] NSWSC 677

State of New South Wales v TT (Final) [2018] NSWSC 358

State of NSW v Tiggelen (Final) [2020] NSWSC 578

Category:

Procedural rulings

Parties:

State of New South Wales (Plaintiff)
RL (Defendant)

Representation:

Counsel:
S Love (Plaintiff)
C Goodhand (Defendant)

Solicitors:
Crown Solicitor for New South Wales (Plaintiff)
Legal Aid Commission of New South Wales (Defendant)

File Number(s):

2024/00206671

Judgment

Introduction

1. By summons filed on 4 June 2024, the Attorney General for New South Wales, the plaintiff, sought various interlocutory, interim and ancillary orders as well as final relief by way of an order, pursuant to ss 121, 127(1)(a) and 128 of the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW) (the MHCIFP Act), that Mr RL, the defendant, be subject to an order for the extension of his status as a forensic patient for a period of four years from the date of the order (the Extension Order).

2. On 18 June 2024, Yehia J made an order that the defendant’s name be suppressed and that he be referred to by the pseudonym “RL”. At the hearing before me, the parties agreed that such an order was no longer required and, in those circumstances, I revoked that order for the reasons given orally at that time. Subsequently, it was drawn to my attention that some of the relevant offending occurred while the defendant was a child. Section 15A of the Children (Criminal Proceedings) Act 1987 (NSW) prohibits publication of the name of such an offender or any information that identifies that offender. In order not to undermine the effectiveness of, and to facilitate compliance by others with, s 15A, I have maintained the use of the pseudonym “RL” in this judgment when referring to the defendant.

3. On 20 August 2024, R A Hulme AJ made the interlocutory and interim orders sought and provided reasons: Attorney General for New South Wales v RL (bht Ramjan) [2024] NSWSC 1042. The orders made by his Honour were in the following terms:

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

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

(3) The defendant is subject to an interim order for the extension of his status as a forensic patient commencing from the expiry of the limiting term on 7 October 2024 for a period of three months.”

4. Furthermore, I was informed by the parties that the ancillary order sought in the summons had already been made so that access to the Supreme Court's file in this matter in respect of any document shall not be granted to a non-party without the leave of a judge of the Court. If any application for access is made by a non-party in respect of any document, the parties are to be notified by the Registrar so as to allow them an opportunity to be heard in relation to the application of access.

5. Accordingly, when the matter came on for hearing before me on 7 November 2024, only the claim for final relief by way of the Extension Order was required to be determined.

Objections to evidence

6. At the outset it is necessary to deal with the objections which the defendant took to three types of evidence which the plaintiff sought to adduce:

1. evidence relating to “existing, unresolved, unproven charges” including charges which are the subject of proceedings in the District Court, being two charges of aggravated sexual assault of a victim with a cognitive impairment which have now been listed for a special hearing as a result of the defendant being found not fit to be tried and unlikely to become fit within 12 months, as well as other previous charges that were dismissed after hearing or withdrawn;

2. evidence relating to past mental health dismissals of charges against the defendant under provisions such as s 32 of the Mental Health (Forensic Provisions) Act 1990 (NSW) (MHFP Act) or s 19 of the MHCIFP Act; and

3. evidence of statements made to hospital staff by the defendant recorded in the hospital records.

7. In respect of the first two categories, the types of evidence objected to included documents such as pages of the criminal history that relate to unresolved charges or charges dealt with under relevant mental health provisions without a conviction, pages of the facts sheets and similar documents concerning such charges. In addition to that documentation, the defendant also objected to passages from the facts agreed between the parties (subject to these objections), and the passages from the reports of Dr Gerald Chew, forensic psychiatrist, and Dr Carollyne Youssef, forensic psychologist, which were based on that documentation.

8. The primary basis of objection was said to be that the material lacked relevance, although it was conceded that the material could be relevant under the mandatory considerations in s 127(2)(a) or (2)(i) of the MHCIFP Act. The contention was that in order to make the material relevant, and thus admissible, there needed to be some “external material” to support the otherwise unsubstantiated allegations on which the charges and statements were based. The defendant relied on the judgement of Davies J in State of New South Wales v Conway [2011] NSWSC 976 (Conway) at [27]-[28] and [37]-[39].

9. Conway relevantly concerned whether the words “criminal history” in s 9(3)(h) of the Crimes (High Risk Offenders) Act 2006 (NSW) (CHRO Act) included matters that had not resulted in a determination by a Court of, at least, a finding of guilt. It was held, at [37], that the words “criminal history” did not include matters not resulting in a finding of guilt. Davies J went on, however, to state, at [39]:

“In one sense this is an arid enquiry because the other offending behaviour admitted by the Defendant and found to be supported by external evidence (for the reasons I have given) would be required to be considered under s 9(3)(a) and (i) (as Simpson J suggested) because they all go to the likelihood of the offender in future committing offences of a sexual nature.”

10. It can be noted that s 9(3) of the CHRO Act serves a similar function and has a similar form to s 127(2) of the MHCIFP Act. Section 127(2) does not, however, contain a provision which refers to an offender’s “criminal history” but it does contain provisions similar to s 9(3)(a) (before its repeal) and (i), namely s 127(2)(a) and (i).

11. Whether a person has been charged with a relevant criminal offence, even if there is no finding of guilt, may be relevant to an assessment of the risk of further similar offending. As the parties accepted in State of NSW v Thomas [2010] NSWSC 677 (Thomas), charges which have not resulted in a conviction may be relevant to the risk assessment issues raised by, for example, the Static 99 risk assessment tool: Thomas at [39]. Moreover, Johnson J in State of New South Wales v TT (Final) [2018] NSWSC 358 held in relation to the relevance of evidence of charged but unproved offences in proceedings under the CHRO Act, at [108]-[109]:

“108. I accept the Plaintiff’s submission that a charged crime which is withdrawn (or even where the accused is acquitted) may still be admissible in proceedings under the HRO Act so far as statistical risk assessment issues are concerned: State of New South Wales v Thomas [2010] NSWSC 677 at [39]; State of New South Wales v Conway [2011] NSWSC 976 at [27]-[39].

109. As Davies J observed in State of New South Wales v Conway, although these matters would not fall for consideration under the criminal history provision in s.9(3)(h), they may be relevant under factors now contained in ss.9(2) and 9(3)(i), being the safety of the community and other available information as to the likelihood that the Defendant will commit further offences of a sexual nature. Relying on these authorities, the Plaintiff submits (and I accept) that charged but unproved allegations of sexual misconduct for which the Defendant has not been tried (and which are not admitted) could similarly be taken into account at least as a relevant consideration as to risk assessment under ss.9(2), 9(3)(d), and 9(3)(i), but could not be relied on as part of the Defendant’s criminal history under s.9(3)(h) HRO Act.”

12. Taking into account these authorities and the task which the Court is to perform in determining whether an extension order should be made under Pt 6 of the MHCIFP Act, it appears to me that the fact that a person was charged with an offence, notwithstanding that the person was not or has not been convicted, may be relevant to the assessment of the risk posed by the person but the weight to be given to that matter will depend to a significant extent on the external evidentiary support for the allegations underlying the charge that is before the Court. Accordingly, in my view, I would not reject such evidence of a defendant being charged with an offence on the basis that it is irrelevant. Rather, it should be dealt with on the basis that, without supporting external evidence, the evidence might be given little weight and provide little, if any, basis for further inferences. Similar considerations lead to the same conclusions in respect of evidence of past mental health dismissals of charges against a defendant under provisions such as s 32 of the MHFP Act or s 19 of the MHCIFP Act.

13. Essentially the same conclusions, in relation to the first two categories objected to, also follow from ss 134 and 138 of the MHCIFP Act. Under s 134, proceedings for an extension order are to be conducted in accordance with the law, including the rules of evidence, relating to civil proceedings, to the extent to which Pt 6 does not provide for their conduct. In so far as the rules of evidence are concerned, Pt 6 contains s 138(4) which renders certain documents admissible in proceedings under the MHCIFP Act, despite any Act or law to the contrary. Section 138 relevantly provides:

“138 Minister may require provision of certain information

(1) A Minister administering this Act may, by order in writing served on any person, require the person to provide to the Minister any document, report or other information in that person’s possession, or under that person’s control, relating to the behaviour, or physical or mental condition, of any forensic patient who is subject to a limiting term, extension order or interim extension order.

…

(3) A Minister administering this Act may request a court or the Tribunal to provide to the Minister any document, report or other information held by the court or Tribunal relating to the behaviour, or physical or mental condition, of any forensic patient who is subject to a limiting term, extension order or interim extension order.

(4) Despite any Act or law to the contrary, a document or report of a kind referred to in subsection (1) or (3), or a copy of a document or report of that kind, is admissible in proceedings under this Act (whether admission is sought by the Minister to whom the document or report was provided or by another Minister administering this Act).”

14. The material relied upon in relation to the charges for which the defendant was not, or has not been, found guilty was material required to be provided under s 138(1) or (3). Accordingly, despite any Act or law in relation to evidence to the contrary, that material “is admissible in proceedings under [the MHCIFP Act]”. The real issue then becomes what weight, if any, should be given to that evidence and this will be likely to turn on the extent to which there is external evidence supporting the allegations on which the charges are based.

15. For these reasons, I do not accept the defendant’s objections to the admission of the first two categories of material.

16. As to the third category of material objected to, evidence of statements made to hospital staff by the defendant recorded in the hospital records, such records were also provided under s 138(1) or (3) of the MHCIFP Act and are, accordingly, admissible under s 138(4), despite any Act or law in relation to evidence to the contrary. Further and in any event, such material might well also be admissible under s 69 of the Evidence Act 1995 (NSW) to the extent that it amounted to business records of the hospitals and under s 81 in so far as the material amounted to admissions. However, it is not necessary to consider those alternatives further, in light of the operation of s 138(4). For these reasons, the objection to the third category of material should also be rejected.

17. Since the defendant’s objections have not been upheld, the Statement of Agreed Facts, signed by the parties’ legal representatives on 4 November 2024, provided in compliance with cl 26(i) of the Supreme Court Practice Note SC CL 12 and expressly stated to be agreed for the purposes of s 191 of the Evidence Act, operates as a statement of agreed facts in its entirety. By virtue of s 191(2)(a), other evidence is not required to prove those facts agreed between the parties. Thus, the Statement of Agreed Facts provides a useful and generally adequate summary of some of the relevant facts and circumstances in this matter.

Factual circumstances

18. I have accepted what was set out in that Statement of Agreed Facts, and the relevant circumstances include what is in the following paragraphs.

19. The defendant is a 29-year-old man who has been diagnosed with schizophrenia and cannabis use disorder. He was born in Peru and migrated to Australia with his mother after his parents separated when he was young.

20. The defendant has an extensive history of involvement with the criminal justice and mental health systems dating from 2011 when he was about 16 years old.

21. On 25 August 2011, the defendant was convicted and sentenced for robbery in company.

22. On the night of 19 July 2013, the defendant together with at least four other persons in Hyde Park became involved in a verbal altercation with the victim who was subsequently kicked, punched and stabbed. The victim received three stab wounds and traumatic facial injuries and had teeth knocked out. The incident was captured on CCTV. This eventually led to the defendant being charged with wounding with intent to cause grievous bodily harm, contrary to s 33(1)(a) of the Crimes Act 1900 (NSW), and reckless grievous bodily harm in company, contrary to s 35(1) of the Crimes Act. This is the index offending.

23. On 5 March 2015, the defendant was convicted and sentenced for driving whilst disqualified and driving with special range prescribed concentration of alcohol or PCA.

24. On 27 June 2016, the defendant was convicted and sentenced for common assault.

25. On 3 March 2017, the defendant was convicted and sentenced for driving whilst his licence was cancelled.

26. On 15 March 2017, the defendant was discharged under s 32(3)(a) of the Mental Health (Forensic Provisions) Act 1990 (NSW) (MHFP Act) in respect of a charge of assault occasioning actual bodily harm, four charges of common assault in a domestic context, one charge of destroying or damaging property, one charge of resisting arrest and one charge of assaulting a police officer.

27. On 14 August 2017, the defendant was convicted and sentenced for shoplifting and possession of a prohibited drug.

28. In August 2017, the defendant was apprehended and taken to a declared mental health facility under s 22 of the Mental Health Act 2007 (NSW) (MHA).

29. On 22 November 2017, the defendant was convicted and sentenced for aggravated breaking and entering a dwelling in company and stealing.

30. On 27 June 2018, the defendant was discharged under s 32(3)(a) of the MHFP Act in respect of a charge of staking or intimidating in a domestic context.

31. On 7 August 2018, the defendant was convicted and sentenced for goods in personal custody.

32. On 2 February 2019, the defendant was arrested and charged in relation to the index offending. He denied any involvement in the matter.

33. On 8 August 2019, the defendant was committed to the District Court for trial in relation to the index offending.

34. On 19 November 2019, the defendant was found unfit to be tried in respect of the index offending and was referred to the Mental Health Review Tribunal (MHRT). He was granted bail.

35. On 6 December 2019, the defendant was discharged under s 32(3)(b) of the MHFP Act in respect of a charge of driving while his licence was cancelled.

36. On 11 March 2020, a community treatment order (CTO) was imposed on the defendant.

37. Between 2 April 2020 and 17 November 2020, the defendant was reviewed by the MHRT and he was eventually found to be unfit to be tried in respect of the index offending and unlikely to become fit within 12 months.

38. On 8 October 2020, the defendant was convicted and sentenced for shoplifting and possession of a prohibited drug.

39. On 5 March 2021, the defendant was convicted and sentenced for taking and driving a conveyance without consent and driving whilst his licence was cancelled.

40. On 15 July 2021, the defendant was convicted and sentenced for possession of a prohibited drug.

41. On 15 December 2021, after a special hearing before King SC DCJ, the defendant was found, on the limited evidence available, to have committed the index offences of wounding with intent to cause grievous bodily harm and causing reckless grievous bodily harm in company.

42. On 22 February 2022, the defendant was discharged into the care of a responsible person under s 19(c) of the MHCIFP Act in respect of four charges of intimidating a police officer.

18. On 7 April 2022, the defendant was taken by police to Concord Centre for Mental Health following homicide threats made to his community psychiatrist. He was found to be acutely psychotic and admitted. His treating team sought an order that he remain at Concord hospital to stabilise his mental health prior to transfer to Bloomfield hospital.

19. On 8 April 2022, King SC DCJ imposed limiting terms in respect of the index offending totalling 2 years and 6 months, expiring on 7 October 2024, and ordered that the defendant be detained in a medium secure unit. In doing so, his Honour assessed that the first count fell in the lower midrange of offending and the second count fell within the midrange of objective seriousness.

20. On 11 April 2022, the Medium Secure Unit assessment panel declined to assess the defendant.

21. On 29 April 2022, the defendant’s treating team asked the MHRT to make an involuntary patient order for 6 weeks under the MHA.

22. On 11 May 2022, the MHRT ordered that the defendant be transferred to Bloomfield hospital, when a bed became available, with escorted day leave.

23. On 2 September 2022, the defendant was charged with two charges of sexual intercourse without consent, and two charges of aggravated sexual assault of a victim with cognitive impairment, allegedly committed on 28 April and 14 May 2022. It can be noted here that the two charges of sexual intercourse without consent were subsequently withdrawn.

24. On 10 August 2023, the defendant was transferred to the Clovelly Ward of the Forensic Hospital. He continued to show restricted affect and limited insight into his illness and the need for treatment at that time.

25. On 14 August 2023, on mental state examination there was no evidence of overt delusions detected and no voiced thoughts of self-harm.

26. On 7 September 2023, the MHRT concluded that the defendant should remain detained at the Forensic Hospital. He was found to have schizophrenia with some cognitive impairment detected on recent testing and there was no evidence that he had become fit to be tried.

27. Since 19 October 2023, the defendant has participated in weekly psychotherapy sessions and has been reported to display limited insight into his mental health and to deny a current diagnosis of schizophrenia or a long term need for medication.

28. On 27 January 2024 the defendant was verbally aggressive towards staff but otherwise had not displayed any incidence of aggression towards other persons over the preceding six months.

29. On 8 April 2024, after a hearing on 14 March 2024, the MHRT determined that the defendant had a mental health impairment, namely schizophrenia, and that he should be detained at the Forensic Hospital and remained unfit to be tried. The Tribunal received a report from Consultant Psychiatrist Dr Kirsty MacDonald and Psychiatry Registrar Dr Rosanna Forde who noted:

1. on 28 September 2023 the defendant’s cognitive assessment report confirmed a borderline level of intellectual function;

2. during a multidisciplinary meeting in October 2023 the defendant exhibited a stable mental state but concerns were raised regarding childlike and inappropriate touching with a fellow patient but this behaviour ceased once the defendant was redirected by staff;

3. with the evidence available, the safety of the public was likely to be seriously endangered by the defendant’s release; and

4. there was no less restrictive placement option currently available to the defendant that was consistent with safe and effective care.

55. On 4 June 2024, the Attorney General filed his summons instituting the present proceedings.

56. On 20 August 2024, R A Hulme AJ made an interim extension order and also ordered that the defendant be examined by two qualified psychiatrists, registered psychologists or medical practitioners (or a combination of such persons) and for reports on the results of those examinations to be provided to the Court. Examinations were subsequently conducted by Dr Gerald Chew, forensic psychiatrist, and Dr Carollyne Youssef, forensic psychologist.

57. On 12 September 2024, the MHRT received a report from Psychiatry Registrar Dr Andrew Brooks on behalf of Consultant Forensic Psychiatrist Dr Shelley Xia dated 21 August 2024 which noted, inter alia, that the defendant was amenable to trialling clozapine, and opined that:

1. with the evidence available, the safety of the public was likely to be seriously endangered by the defendant’s release;

2. there was no less restrictive placement option currently available to the defendant that was consistent with safe and effective care; and

3. the recommended treatment was continued detention, care and treatment in the Clovelly Unit of the Forensic Hospital until his transfer to the Dee Why Unit.

58. On 15 September 2024, Dr Gerald Chew provided his report which included his opinion that:

1. the least restrictive means of managing the defendant's risk was through continuation of his forensic patient status; and

2. an order of 4 years was appropriate, noting that the defendant's likely trajectory would be approximately a further 1 year at the Forensic Hospital, 1-2 years at a medium secure unit and 1 year in the community as a forensic patient prior to transitioning onto a community treatment order.

59. On 8 October 2024, the defendant was found not fit to be tried in respect of the two aggravated sexual assault charges and he would not become fit to be tried within the next 12 months.

60. On 13 October 2024, Dr Carollyne Youssef provided her report which included the following opinions:

1. the least restrictive means of managing the defendant’s risk was an extension of his forensic patient status and continuation of treatment and rehabilitation at the Forensic Hospital; and

2. it was recommended for the defendant’s status as a forensic patient to be extended for at least three years and up to four years to allow sufficient time to stabilise his mental health and for him to demonstrate an increase in some independent living skills, self-care, and autonomy within a medium secure unit.

61. The defendant is not subject to a guardianship or financial management order. He is not currently a participant of the National Disability Insurance Scheme (NDIS).

Relevant statutory provisions

62. Parts 5 and 6 of the MHCIFP Act provides for the care, treatment and control of forensic patients, with the objects of those Parts set out in s 69 in the following terms:

“69 Objects

(1) 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 are suffering from 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 to acknowledge the harm done to victims.

(2) The objects of this Part extend to the provisions of Part 6.”

63. The term “forensic patient” is defined in s 72 relevantly as follows

“72 Forensic patients

(1) The following persons are forensic patients for the purposes of this Act—

(a) a person who is found unfit to be tried for an offence and who is detained in a mental health facility, correctional centre, detention centre or other place,

(b) a person for whom a limiting term has been nominated after a special hearing (including a person who is subsequently subject to an extension order or an interim extension order) and who is detained in a mental health facility, correctional centre, detention centre or other place or who is released from custody subject to conditions under an order made by the Tribunal,

….

(2) To avoid doubt, a person is not a forensic patient if the person has been found unfit to be tried for an offence and has been released on bail.”

64. As a result of the limiting terms imposed on 8 April 2022 by King SC DCJ in respect of the index offending, the first limiting term expired in October 2023 and the second expired on 7 October 2024. Accordingly, at the time of commencement of the proceedings and up to 7 October 2024 the defendant was a forensic patient within s 72(1)(b).

65. By virtue of the interim extension order (3) made by R A Hulme AJ on 20 August 2024, the defendant’s status as a forensic patient was extended for 3 months from 7 October 2024 to 7 January 2025.

66. Section 121 of the MHCIFP Act empowers this Court to extend a person’s status as a forensic patient by making an extension order.

67. Under s 122(1), a forensic patient can be made the subject of an extension order if and only if the Supreme Court is satisfied to a high degree of probability that:

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

2. the risk cannot be adequately managed by other less restrictive means.

68. In determining whether it is satisfied of those matters, the 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: s 122(2) of the MHCIFP Act.

69. It was not in dispute in the present case that the preconditions and requirements in relation to an application for an extension order, specified in ss 123, 124 and 125 of the MHCIFP Act, were satisfied. Consequently, it is unnecessary to consider those provisions further in these reasons.

70. Under s 127(1), the Court may determine an application for an extension order either by making the order or dismissing the application. Subsection (2) of s 127 contains a non-exhaustive list of mandatory matters which the Court must consider in determining whether or not to make an extension order. Those mandatory considerations are:

“(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.”

71. If the Court makes an extension order, the MHRT is to be notified: s 127(3) of the MHCIFP Act.

72. In the present case, if an extension order is made, it will commence when the existing extension order expires on 7 January 2025: s 128(1)(a) of the MHCIFP Act. The maximum period for which an extension order may be made is 5 years: s 128(1)(b) of the MHCIFP Act.

73. The Court may, at any time, vary or revoke an extension order on the application of a Minister administering the Act or the forensic patient or on the recommendation of the MHRT: s 133 of the MHCIFP Act.

Relevant Principles

74. Given the similarity in structure and language of the statutory regime set out in Pt 6 the MHCIFP Act with that established by the CHRO Act, it is appropriate to look to authorities in relation to High Risk Offender legislation for assistance in understanding the relevant provisions of the MHCIFP Act: Attorney General of New South Wales v McGuire [2013] NSWSC 1862 at [12] (Davies J) and New South Wales Minister for Mental Health v Brauer [2015] NSWSC 863 (Adamson J).

75. It is to be noted, however, that the MHCIFP Act does not empower the Court to make specific orders about, or impose as part of an extension order conditions concerning, the care, treatment, supervision or control of a forensic patient.

76. Section 122(1) provides that the standard of proof, for the purposes of determining whether an extension order should be made, is satisfaction to “a high degree of probability”. This constitutes a standard of proof which is higher than a civil standard but lower than a criminal standard: State of New South Wales v Hayter (Final) [2020] NSWSC 1581 at [25] (Johnson J). In Cornwall v Attorney General for NSW [2007] NSWCA 374, the Court of Appeal (Mason P, Giles and Hodgson JJA) held at [21]:

“The expression “a high degree of probability” indicates something “beyond more probably than not”; so that the existence of the risk, that is the likelihood of the offender committing a further serious sex offence, does have to be proved to a higher degree than the normal civil standard of proof, though not to the criminal standard of beyond reasonable doubt.”

77. This standard of satisfaction “to a high degree of probability” applies to both central questions posed by s 122(1) namely:

1. does the defendant pose an unacceptable risk of causing serious harm to others if he ceases to be a forensic patient; and

2. can that risk be adequately managed by other less restrictive means,

Minister for Mental Health v Paciocco [2017] NSWSC 4 at [8] (Campbell J).

78. The “unacceptable risk” of causing serious harm to others if the forensic patient ceases to have that status is to be given its ordinary, everyday meaning in the context of the provision in which it appears and having regard to the objects of Pt 6 of the MHCIFP Act and involves considerations of both the likelihood of the risk eventuating, and the gravity of the risk that may eventuate: Lynn v State of New South Wales (2016) 91 NSWLR 636; [2016] NSWCA 57 (Lynn) at [58]; Attorney General for New South Wales v Bragg (Final) [2024] NSWSC 316 (Bragg) at [61] (Chen J).

79. The right of a person to be at personal liberty at the expiry of a limiting term is not a relevant consideration in the evaluative task of determining of whether a person poses such an “unacceptable risk”: Lynn at [44], [127] and [148]; State of NSW v Tiggelen (Final) [2020] NSWSC 578 at [25]; Attorney-General for New South Wales v Riley (Final) [2019] NSWSC 1782 at [26].

80. In assessing the nature of this risk, the following comments of Basten JA in Lynn at [126] are relevant:

“The nature of the risk he posed had to be assessed by reference to past conduct, the seriousness of the possible future conduct and the period over which the risk may come to fruition. The assessment must be based on an absence of protective measures.”

81. The Court is to assess whether the risk rises to the level of being unacceptable in the context of making the community secure from harm as opposed to guaranteeing its safety and protection: Lynn at [61]; Attorney General for New South Wales v Peterson (bht Rodrigues) [2020] NSWSC 651 at [92]. The assessment of unacceptability of risk is to be undertaken by reference to past conduct, the seriousness of the possible future conduct and the period over which the risk may come to fruition: Lynn at [126]. A forensic patient may pose an unacceptable risk, even where the likelihood of causing serious harm to others is low, if the likely consequences of such an offence are very grave: Bragg at [61]

82. The second aspect of s 122(1)(a) for consideration concerns “serious harm” which is not defined in the Act but has been held to include both physical and psychological harm. In examining the level of such harm and whether or not it rises to the point of being “serious”, R A Hulme J said in Attorney General of New South Wales v Kereopa (No 2) [2017] NSWSC 928 at [16]:

“… [serious harm] may concern physical or psychological harm. In terms of physical harm it does not require a concern about harm to the level of ‘grievous bodily harm’ (defined in the criminal law as really serious bodily harm). … it contemplates something more than would satisfy the minimum threshold for ‘actual bodily harm’ under the criminal law. I also accept the submission that psychological harm must be something more than emotions such as fear or panic. Such things are not ‘serious harm’.”

83. If the Court is satisfied to a high degree of probability that the defendant poses an unacceptable risk of serious harm to others if he ceases to be a forensic patient, the Court must then consider s 122(1)(b) and whether such an unacceptable risk can be managed by other less restrictive means.

84. An assessment of whether the unacceptable risk of causing serious harm to others can be adequately managed by other less restrictive means involves determining, in respect of relevant alternatives:

1. whether the risk can be adequately managed by each alternative proposed; and

2. whether each alternative is less restrictive than if an extension order were made.

85. The relative restrictiveness of an alternative is to be judged by reference to, inter alia, 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] (Adamson J). 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: Note to s 122 of the MHCIFP Act.

The positions of the parties

86. The plaintiff’s position was, in effect, that I should be satisfied to the requisite standard of the two matters in s 122(1) of the MHCIFP Act that:

1. the defendant poses an unacceptable risk of causing serious harm to others if the patient ceases to be a forensic patient, and

2. the risk cannot be adequately managed by other less restrictive means;

and, that:

3. the extension order should be made for a period of four years.

87. After the objections to evidence were dealt with, the defendant’s overall position was set out in his written submissions in the following terms:

“1. The defendant does not concede that he is an unacceptable risk of serious harm to others if an extension of forensic status is not made. However, the defendant does not intend to make further submissions in relation to the first limb except insofar as it is relevant to the length of any extension.

2. If the Court is satisfied to the requisite standard that an extension of the defendant’s forensic status is required, then the defendant submits that the period of any extension should only be for what represents the ‘least restrictive means of adequately managing the defendant’s risk of serious harm to others’.”

88. The defendant’s position on the question of the length of any extension order was that it should be three years or, if necessary, some period more than three years but less than four years.

89. Consequently, the area of real contest between the parties was effectively confined to the length of the term of the Extension Order. On that issue, Dr Chew was examined and cross examined. I shall deal with that evidence, after considering whether the requirements of s 122 for the making of an extension order have been met.

Should an extension order be made?

90. As noted above, in considering whether I am satisfied to a high degree of probability of the two matters in s 122(1) and whether an extension order should be made, I am required to have regard to the matters identified in s 127(2) of the MHCIFP Act.

The safety of the community – s 127(2)(a)

91. The most recent and relevant evidence relating to the defendant and the safety of the community in 2024 was consistent. The MHRT noted on 8 April 2024 that the report from Consultant Psychiatrist Dr Kirsty MacDonald and Psychiatry Registrar Dr Rosanna Forde included that on the evidence then available the safety of the public was likely to be seriously endangered if the defendant was released. Essentially the same conclusion was reached by Psychiatry Registrar Dr Andrew Brooks on behalf of Consultant Forensic Psychiatrist Dr Shelley Xia in a report dated 21 August 2024 which opinion was accepted by the MHRT on 15 September 2024. The opinions of Dr Chew and Dr Youssef, which will be considered in more detail in the next section, were consistent with these assessments.

92. From the more recent Justice Health notes for 4 to 19 October 2024, it appears there has been some improvement in the defendant’s condition since commencing treatment with clozapine but there was no evidence that this improvement was such that the defendant no longer posed an unacceptable risk of causing serious harm to others if he ceased to be a forensic patient.

93. In all the circumstances, the safety of the community weighs substantially in favour of an extension order being made.

Reports received from the persons appointed under s 126(5) – s 127(2)(b)

94. As noted above, the defendant was examined by a forensic psychiatrist, Dr Chew, and a registered forensic psychologist, Dr Youssef, who were appointed under s 126(5) and who provided reports. A very brief summary of their opinions was included in the agreed facts, referred to above. A more detailed consideration follows.

Dr Chew’s report of 15 September 2024

95. Dr Chew conducted a face to face assessment of the defendant on 7 September 2024. Dr Chew was of the opinion that the defendant has a mental health impairment, namely Schizophrenia, which is a chronic, permanent condition. He has presented with delusions, hallucinations and disorganisation of thought and behaviour. There has also been a decline and impairment in function. His condition requires intensive, close management to reduce the risk of re-offending. He also has substance use disorder, which is in remission in a controlled environment.

96. Dr Chew’s opinion was that the risk posed by the defendant of serious harm to others would be significantly reduced if he continued to be a forensic patient. The psychiatrist also explained:

“As a continued Forensic Patient [the defendant] will continue to receive treatment in the Forensic Hospital. He will likely progress through the usual forensic patient pathway which is likely a transfer to Dee Why and /or Eloura then a Medium Secure Unit such as Bunya or Macquarie.

Care and treatment under the Mental Health Act 2007 will likely impede his treatment and pathway. While he is likely to remain as an involuntary patient in the Forensic Hospital, there will likely be less opportunity for him to be transferred to a Medium Secure Unit as he improves as the MSU’s prioritise Forensic Patients.

A CTO will likely be appropriate in the future however it is currently premature in his rehabilitation pathway as he requires further inpatient treatment and transition to appropriate community accommodation which has not yet been identified. The usual pathway would be leave from the inpatient facility prior to full time transfer to a community address.

A guardianship order may be appropriate to aid with management of finances, accommodation and general medical treatment however is inadequate for the management of his primary issue which is his Mental Health Impairment.

NDIS support and funding will likely be helpful for [the defendant] particularly as he comes closer to transition to the community however in and of itself does not provide enough to manage [his] issues and risks.

A combination of treatment using the Mental Health Act 2007, guardianship and NDIS is likely to be appropriate in the future to aid with transition from a Medium Secure Unit.”

97. Dr Chew’s opinion was that the “least restrictive immediate means of managing his risk” is continuation of his status as a forensic patient with a “likely trajectory” of:

“1 year at the Forensic Hospital, 1-2 years at a Medium Secure Unit, 4 years is appropriate as it also allows for follow up for 1 year in the community as a Forensic Patient prior to transition to a CTO.”

Dr Chew’s supplementary report of 9 October 2024

98. Dr Chew provided a supplementary report in which he expressed the opinion that using the HCR-20 risk assessment tool, the defendant posed “a moderate or elevated risk for future violence /case prioritisation”.

99. As to other possible means of managing the risk, Dr Chew said:

“While some less restrictive means such as a civil mental health order would help to manage some of the risks, it is not adequate as without a forensic patient order he is unlikely to be afforded the best rehabilitation pathway placing him at higher risk of relapse of his illness, relapse into drug use. This in turn increases his risk of harm. His insight remains poor and requires a longer term rehabilitation approach to management of his major mental illness which is more suited to a longer term forensic patient order with access to forensic facilities rather than a civil patient order.”

Dr Youssef’s report of 13 October 2024

100. Dr Youssef assessed the defendant by audio-visual link on 13 September 2024. She assessed the defendant’s risk of violent recidivism using an actuarial risk assessment, the VRAG-R, although its limitations were noted. She concluded that, using the VRAG-R:

“… his category of risk of violent recidivism places him in the ninth ‘risk bin’ or the highest of nine ‘risk bins’ categories. Among offenders in development and validation studies, 76 percent of those in [the defendant’s] category are expected to meet the criteria for violent recidivism within 5 years and 87 percent within 12 years.”

101. The defendant’s risk of interpersonal violence (IPV) recidivism was assessed using an actuarial risk assessment, the Ontario Domestic Assault Risk Assessment (ODARA), in which six per cent scored the same as the defendant, 94 per cent scored lower and none scored higher. Among those who were assigned to the defendant’s risk category, 74 per cent committed another assault against their partner (or, in some cases, a future partner) within five years. Dr Youssef noted that the use of an actuarial instrument such as the ODARA has limitations.

102. Dr Youssef summarised some of her findings as follows:

“The information collected during interview, file review and the risk assessments, suggest that [the defendant] has a high density of outstanding factors with respect to both general violence and IPV. Although his current dynamic risk factors are more stable due to his admission to the Forensic Hospital, it is expected that the actual intensity of his risk factors will become evident in his behaviour if the hospital’s external supports are removed. As such, his risk score placing him in the highest category for recidivism in the VRAG-R and the ODARA are accurate reflections of his risk of re-offending, though at present, the imminence of any violent behaviour appears to be lower.”

103. Dr Youssef was of the view that the defendant met the diagnostic criteria for schizophrenia, alcohol and cannabis use disorders and gambling disorder. As to the risk of harm to others, the psychologist’s opinion was:

“[The defendant] does pose a risk of harm to others, which has the potential to be serious, if he ceases to be a forensic patient, and is not subject to any other type of protective order. The assessment indicates that the likelihood of [him] committing a violence offence falls within the high-risk range, and similarly the likelihood of an IPV offence also falls within the high-risk range.”

104. As to his continuation as a forensic patient, Dr Youssef said:

“In my view, [the defendant’s] risk and needs are best addressed in the Forensic Hospital as a forensic patient. This setting offers a structured routine and a supportive, multidisciplinary approach that gradually reduces containment and restrictions. Over the course of a couple of years, this would facilitate his transition to a medium secure unit (MSU) for continued support. In that time, it will be imperative that [he] be supported to develop better insight into his mental health and risk factors and understand the need for what will be, long term support and assistance. This aim however needs to be considered within the limits of his capacity and his general responsivity.

The Forensic Hospital is a high-security facility that offers a wide range of rehabilitation opportunities; however, [the defendant] will need to be provided with increasing levels of autonomy and independence. Whilst he is currently in the Clovelly Unit, which is a subacute unit, I assume he will be considered for a less structured rehabilitation unit, such as the Dee Why, Elouera Ward or another suitable MSU when clinically indicated by the MDT. … The decision regarding when this transition can take place, will be contingent on the treating team and [his] stability. This sort of transition would be helpful for [the defendant], in preparation for his release to the community.”

105. Dr Youssef was of the view that classification as an involuntary patient or treatment under a CTO would not be sufficient to manage his risk. Similarly, it was said that “a guardianship order on its own does not have the sufficient authority to manage someone with [the defendant’s] risk and needs” and NDIS support was noted not to include support for “NDIS participants’ forensic needs if that support is related solely to risk management or order/supervision compliance, rather than their disability”. Thus, it was concluded that there were no other less restrictive means available to manage his risks and needs at this stage.

106. As to the duration of any extension, Dr Youssef said:

“… in my opinion, based on [the defendant’s] risk of reoffending, an assessment of his dynamic risk factors, and considering his mental health condition and its chronicity and severity, I recommend an extension period of a minimum of three years and up to four years, with a plan preparing him for conditional release. [He] is currently in a highly structured environment thus a period of gradually, but steadily reducing some of this control and structure is necessary as [he] prepares for conditional release into the community. A period of at least three years would allow sufficient time to firstly stabilise [his] mental health (as much as is possible) and to demonstrate an increase in some independent living skills, self-care, and autonomy within an MSU.”

Significance of unproved charges

107. Both Dr Chew and Dr Youssef were effectively asked to form their opinions on the basis of the evidence other than the material relating to the unproven charges. Accordingly, the opinions referred to above were formed without taking into account that material.

108. Dr Chew and Dr Youssef were also asked specifically to comment on the significance for their opinions if the material about the unproven charges were taken into account.

109. Dr Chew’s opinion was that his opinions in his original report or his supplementary report would not significantly change, if he took into account the unproved charges as well as the other material on which he relied. He continued in his supplementary report:

“If the unproven charges are proven, then this would increase his risk profile and strengthen my recommendation however the recommendation as stands is the adequate and least restrictive means of managing his conditions and risk in either scenario.”

110. Dr Youssef explained the effect of taking into account the unproven charges as follows:

“Whilst my opinion regarding the questions pertaining to the management and treatment of [the defendant’s] mental health would not alter much with the consideration of the unproven charges, it would add to my opinion with regards to his potential risk, risk scenarios and risk management, if [he] is convicted of these offences. Depending on the outcome of the current charges, it may heighten concerns about [the defendant’s] potential risk for sexual harm adding another dimension to the risk he poses, in addition to his existing risk of IPV and general violence and may require an additional risk assessment. This risk may involve different dynamic risk factors, impacting on [his] risk scenario planning, risk management, treatment planning and monitoring recommendations, as such important in informing appropriate management and intervention strategies.”

111. In light of that evidence and given the basis upon which Dr Chew and Dr Youssef formed their views, it appeared that if the material relating to the unproved charges to which objection was taken was given no or little weight, this would make no significant difference to Dr Chew’s or Dr Youssef’s opinions.

112. In all the circumstances, I accept Dr Chew’s and Dr Youssef’s opinions, which are essentially consistent with one another.

The matters in s 127(2)(c), (d), (e) and (f)

113. Some of the matters referred to in s 127(2)(c), (d), (e) and (f) were summarised in the agreed facts and I have taken these matters into account. Nonetheless, in some instances they were not, in my view, as relevant as the more recent opinions and information provided by Dr Chew and Dr Youssef. There was, however, nothing in that material which was significantly inconsistent with the opinions of Dr Chew and Dr Youssef or which indicated to me that their opinions should not be accepted.

The views of the court that imposed the limiting term – s 127(2)(h)

114. When on 8 April 2022 King SC DCJ imposed limiting terms in respect of the index offending totalling 2 years and 6 months, expiring on 7 October 2024, his Honour made the following observations:

“Overall, on assessment he presented with a high loading of risk factors relating to violence, and considering ongoing placement in the community, those concerns would be notably ameliorated if he was placed in a secure facility with access to therapeutic programs. Doctors Gibson and Keating considered him to be a high risk for future episodes of aggression and intimate partner violence.

…

… In my view the current report of Doctors Gibson and Keating indicates that he is a clear and present danger both to himself and others in the community and it appears that since the conclusion of the special hearing his mental health has continued to deteriorate to the point where hew has been again scheduled yesterday.

…

Whether or not his mental health can be stabilised or improved is unknown. It can only be hoped that appropriate intervention will assist him but if it does when he is returned to the community, if he returns to mixing with associates involved in the use of prohibited drugs, I opine that there will be a rapid deterioration in his mental health and consequently a high risk of reoffending.”

115. These views of the judge imposing the limiting terms were consistent with the other material available to the Court and, in particular, with the views of Dr Chew and Dr Youssef.

Any other information available as to risk – s 127(2)(i)

116. I have taken into account all of the other information referred to in the agreed facts and elsewhere in the material and there was nothing in that material which was significantly inconsistent with the views of Dr Chew and Dr Youssef or which caused me not to accept their opinions.

Consideration

Extension order

117. On the basis of the material to which I have referred above and having regard, in particular, to the defendant’s past proved offending and conduct, the defendant’s mental health diagnoses, the risk of his reoffending as determined by the various clinicians who have assessed him, including Dr Chew and Dr Youssef, as well as the opinions accepted recently by the MHRT, and the nature and gravity of any likely reoffending, I am satisfied to a high degree of probability that, if he ceased to be a forensic patient and was consequently released into the community without supervision, he would pose an unacceptable risk of causing serious harm to others. Thus, the first limb of the test in s 122(1) of the MHCIFP Act is, in my view, satisfied. In reaching this conclusion, I have not attributed any significant weight to the unproven charges.

118. As to the second limb, the evidence of Dr Chew and Dr Youssef, which I accept, established that the risk posed by the defendant could not be adequately managed by other less restrictive means. In particular, I accept Dr Youssef’s opinion that treatment of the defendant an involuntary patient under the MHA or under a CTO would not be sufficient to manage his risk. Similarly, I accept her opinion concerning the unsuitability of a guardianship order to manage the risk. This is so because a guardianship order on its own would not give the person appointed as a guardian sufficient authority to manage the relevant risk posed by defendant and his related needs, given the functions of a guardian under the Guardianship Act 1987 (NSW) and the principles to be observed by “everyone exercising functions under [the Guardianship] Act with respect to persons who have disabilities” set out in s 4 of that Act, noting in particular that the protection of the community from harm is not one of those principles. I also accept Dr Youssef’s evidence that NDIS support would not include support for “NDIS participants’ forensic needs if that support is related solely to risk management or order/supervision compliance, rather than their disability” as well as noting that the defendant is not currently a participant in the NDIS.

119. Accordingly, I am satisfied to a high degree of probability that the risk posed by the defendant cannot be adequately managed by other less restrictive means. Consequently, the second limb of the test in s 122(1) has also been met.

120. Having regard to all the defendant’s circumstances referred to above, I accept that his status as a forensic patient should be extended. The only remaining issue is the length of that extension.

Duration of the extension order

121. The plaintiff contended that the defendant’s status as a forensic patient should be extended for four years while the defendant submitted that the extension order should only be for three years or, if more than three years, less than four years.

122. The agreed facts established that on 12 September 2024, the MHRT noted that the defendant was amenable to trialling clozapine as a treatment for his condition. The Justice Health notes for 4 to 19 October 2024 indicated that the defendant commenced such medication on 4 October 2024 and the defendant reported on 16 October 2024 that “I don’t hear voices anymore. Clozapine is good” and that there were no overt psychotic symptoms observed on that day. On 19 October 2024, the defendant’s report was that clozapine was “working well” and “[i]t gets rids of the voices. It’s getting softer and softer and slowly drifting away somewhere else” and he was observed to have “[m]inimal overt psychotic symptoms”.

123. As noted above, Dr Chew stated in his report that in his opinion an extension for four years was appropriate and he indicated that this would be made up of approximately one year at the Forensic Hospital, one to two years at a Medium Secure Unit, and follow up for one year in the community as a forensic patient prior to transition to a CTO. It can be seen the total of four years assumes that the steps proposed take the longer times specified by the doctor. The shortest timespan involved in Dr Chew’s approach would be about three years.

121. Dr Chew was also called to give oral evidence by audio-visual link. In that evidence, the doctor explained that the roughly four years to which he referred in his report was dependent on progress. After referring to the more recent Justice Health notes concerning the defendant’s progress after starting on clozapine and the fact that it appeared that the defendant was responding well, Dr Chew said:

“So for example, if that goes well it may shorten the period required but I think that my view that I still stand by, my view that it may be up to four years is a reasonable time frame”. (Emphasis added.)

125. Furthermore, Dr Chew did not disagree with Dr Youssef’s recommendation of three to four years which he described as “roughly similar” and continued:

“… while I did state four years and I still think that would be appropriate, you know, if he does progress well, three years may well be appropriate as well.”

126. In cross-examination, the following interchange with Dr Chew took place:

“Q. Dr Chew, just following on from that question, so if all things go well, particularly with his recent responsivity to clozapine, in your view he could very well progress and only need an order for three years?

A. That's correct, yes.

Q. In giving that opinion that would be the less restrictive option, three years?

A. Yes. Well, three years is less restrictive than four years so I do think three years would be sufficient, particularly given the recent progress noted but I do have to say it is very difficult to judge just on that. It looks like very early days of clozapine and still in the titration phase so clinically you want them a lot more stable on the treatment before you make any real judgments about how effective clozapine has been but it certainly looks positive from the clinical notes.”

127. As noted above, Dr Youssef recommended “an extension period of a minimum of three years and up to four years, with a plan preparing him for conditional release”. It was said that a period of at least three years would allow sufficient time to firstly stabilise his mental health (as much as is possible) and to demonstrate an increase in some independent living skills, self-care, and autonomy.

128. Having regard to the experts’ evidence and the Justice Health notes concerning the early stages of the treatment with clozapine, I accept that the extension order should be for between three and four years. Given the potential for progress to be sped up if the treatment with clozapine continues to be successful, it does not appear to me that the longer period of four years identified by both Dr Chew and Dr Youssef as the outer limit is the most appropriate duration. Similarly, since the treatment with clozapine is still in its early stages and it is not certain that progress will continue to be as positive as it has been up to 19 October 2024, I do not accept that the shorter period of three years proposed as the lower limit would be appropriate. Rather, I am satisfied that the appropriate duration is 3 years and 6 months, which will allow for the stages proposed by Dr Chew and the stabilisation of his mental health and demonstration of some independent living skills, self-care, and autonomy, but taking into account the prospect of an improved outcome as a result of the treatment with clozapine.

129. I note here that the assumption implicit in the question asked of Dr Chew in cross-examination that a shorter duration extension order is a “less restrictive means” than a longer duration order within the meaning of that expression in s 122(1)(b) of the MHCIFP Act is not one that I have adopted. When s 122 is read a whole, in context, and having regard to the scope and purpose of the MHCIFP Act including the objects of Pts 5 and 6 in s 69, in my view, “less restrictive means” refers to:

1. “means” of managing the risk posed by a person other than continuing the person’s status as a forensic patient;

2. which are “less restrictive” than an extension order in the sense explained above at [85].

Orders

130. For these reasons, the orders of the Court are:

1. An order pursuant to ss 121, 127(1)(a) and 128 of the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW) that the defendant be subject to an order for the extension of his status as a forensic patient for a period of 3 years and 6 months from when his current interim extension order expires.

2. The Registrar is directed to inform the Mental Health Review Tribunal of the making of the extension order referred to in order (1) and is to provide to the Tribunal a copy of these orders and the judgment in this matter.

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Amendments

11 December 2024 - 11/12/2024 – Anonymisation of the name of the defendant by use of a pseudonym for the reasons stated in the last three sentences added to [2] of the judgment.

Decision last updated: 11 December 2024