Attorney General for New South Wales v Rohan (a pseudonym) by his tutor Johnson (Final)

[2021] NSWSC 132

Supreme Court

New South Wales

Medium Neutral Citation:

Attorney General for New South Wales v Rohan (a pseudonym) by his tutor Johnson (Final) [2021] NSWSC 132

Hearing dates:

18 February 2021

Date of orders:

23 February 2021

Decision date:

23 February 2021

Jurisdiction:

Common Law

Before:

Wright J

Decision:

(1) Under s 54A and Sch 1 of the Mental Health (Forensic Provisions) Act 1990 (NSW), the status of the defendant as a forensic patient is extended for three years, commencing immediately from the expiration of the interim extension order at midnight on 1 March 2021 and expiring on 1 March 2024.

(2)   Access to the Court file in this proceeding is permitted to a non-party only with the leave of a Judge of the Court, and with prior notice to the parties so as to allow them an opportunity to be heard in respect of the application for access.

Catchwords:

MENTAL HEALTH – Mental Health (Forensic Provisions) Act 1990 – Forensic patient – Limiting term expired – Interim extension order due to expire – Whether applicant poses continuing unacceptable risk – Whether risk can be adequately managed by less restrictive means – Status as forensic patient extended in the circumstances – Status extended for a period of three years

Legislation Cited:

Crimes (High Risk Offenders) Act 2006 (NSW)

Guardianship Act 1987 (NSW)

Mental Health Act 2007 (NSW)

Mental Health (Forensic Provisions) Act 1990 (NSW)

Cases Cited:

Attorney General for NSW v Peckham (Final) [2019] NSWSC 1775

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 Rohan (Preliminary) [2020] NSWSC 1610

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

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

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

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 Hayter (Final) [2020] NSWSC 1581

State of New South Wales v Pacey [2015] NSWSC 1983

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

Category:

Principal judgment

Parties:

Attorney General for New South Wales (Plaintiff)
Rohan (a pseudonym) by his tutor Katherine Johnson (Defendant)

Representation:

Counsel:
A Rose (Plaintiff)
E McLaughlin (Defendant)

Solicitors:
Crown Solicitor’s Office (Plaintiff)
Legal Aid (Defendant)

File Number(s):

2020/264960

Publication restriction:

Note: The operation of s 162 of the Mental Health Act 2007 (NSW) and the non-publication orders made in the District Court in relation to the defendant’s offending.

Judgment

1. By an amended summons filed in Court on 18 February 2021, the Attorney General for New South Wales, the plaintiff, sought by way of final relief:

1. an order, under s 54A and Sch 1 of the Mental Health (Forensic Provisions) Act 1990 (NSW) (the MHFP Act), extending the status of Rohan (a pseudonym), the defendant, as a forensic patient (an extension order) for three years; and

2. an order restricting access to the Court file in this proceeding such that access is permitted to a non-party only with the leave of a Judge of the Court, and with prior notice to the parties so as to allow them an opportunity to be heard in respect of the application for access.

2. The defendant’s tutor and legal representatives did not oppose the making of those orders and there were no significant issues in dispute between the parties. Furthermore, it was formally, and properly in my view, conceded on behalf of the defendant that the following pre-conditions for the making of an extension order were satisfied in the present case:

1. the defendant, at the time the plaintiff made the application for the orders by filing the original summons, was a forensic patient subject to a limiting term, within cl 4(1)(a) of Sch 1 to the MHFP Act;

2. the plaintiff’s application was not made more than six months before the expiration of the defendant’s limiting term on 11 September 2020, as required by cl 4(2)(a) of Sch 1;

3. the plaintiff’s application was supported by the documentation required by cl 5 of Sch 1; and

4. the necessary prehearing procedures required by cl 6 of Sch 1 had occurred.

3. Nonetheless, under Sch 1, cl (2) of the MHFP Act, an extension order can be made by the Court:

“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 he or she ceases being a forensic patient, and

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

4. Accordingly, I must consider whether I am satisfied of the relevant matters to the requisite standard before an extension order can be made.

Background

5. The background to this application was not in dispute and was helpfully summarised by Hoeben CJ at CL in his Honour’s recent judgment in relation to the application for interim relief in this matter: Attorney General for New South Wales v Rohan (Preliminary) [2020] NSWSC 1610 (the Preliminary Judgment). It is sufficient to note here what is set out in the following paragraphs.

6. The defendant is a 42 year old man who has been diagnosed with mild-moderate intellectual disability and paedophilia. In 1998 in Victoria, he was convicted of sexual penetration of a child between 10 and 16 years and committing an indecent act with a child under 16 years. The defendant was aged 15 at the time of that offending.

7. In New South Wales, the defendant has been found unfit to be tried on two occasions. This has led to the following verdicts after a special hearing:

1. in 2013, that on the limited evidence available, the defendant committed seven offences of indecent assault against a person under the age of 16 and three offences of indecent assault against a person under the age of 10, when the defendant was aged 31 to 32 years; and

2. in 2019, that on the limited evidence available, the defendant committed six offences of sexual intercourse with a person under the age of 10 and four offences of indecent assault of a person under 16, when the defendant was between 27 and 32 years of age.

8. On 21 January 2019 and in accordance with s 23 of the MHFP Act, Hunt DCJ nominated an overall limiting term of 5 years and 6 months. That term commenced on 2 June 2015 and expired on 1 December 2020. The defendant was referred to the Mental Health Review Tribunal (the Tribunal), in accordance with s 24(1)(a) of the MHFP Act, and an order was made pursuant to s 24(1)(b) that the defendant remain in custody pending any determination by the Tribunal. The material before the Court also indicated that on 10 May 2019 the Tribunal made an order under s 27(a) of the MHFP Act that the defendant be detained in the Additional Support Unit at Long Bay Correctional Centre. The defendant has remained there since.

9. It was not in dispute that, until the expiration of the limiting term on 1 December 2020, the defendant was, as a result of the orders made in respect of him in 2019, a “forensic patient” as defined in s 42 of the MHFP Act, by operation of s 42(a)(i) of that Act which provides:

“For the purposes of this Act, the following persons are forensic patients:

(a) a person who is detained in a mental health facility, correctional centre or other place, or released from custody subject to conditions, pursuant to an order under:

(i) section 14, 17 (3), 24, 25, 27 or 39, or

…

(a1) a person in respect of whom an extension order or interim extension order is in force,

...”.

10. The original summons seeking interim and final relief in this matter was filed on 11 September 2020. After an initial hearing, Hoeben CJ at CL made an interim extension order under cll 10 and 11 of Sch 1 of the MHFP Act extending the defendant’s status as a forensic patient for three months from midnight on 1 December 2020 until 1 March 2021: the Preliminary Judgment at [142]. At the same time, his Honour made an order pursuant to cl 6(5) of Sch 1, for the appointment of two qualified psychiatrists, registered psychologists or medical practitioners (or any combination of two such persons) to examine the defendant, as well as an order directing that he attend those examinations. Pursuant to those orders, the defendant was examined by Mr Patrick Sheehan, registered psychologist, and Dr Andrew Ellis, forensic psychiatrist.

11. As a result of the interim extension order, the defendant’s status as a forensic patient has been maintained, by operation of s 42(a1) of the MHFP Act, until 1 March 2021. In the circumstances of the present case, this appears to mean that the defendant’s status as a forensic patient will cease, unless an extension order is made, immediately after 11:59 pm on 1 March 2021, rather than on 28 February 2021. However, although the precise date and time of expiration were touched upon in submissions, it was accepted that it was not necessary to decide this point and that the present application should be determined, if possible, prior to 28 February 2021 to avoid any difficulty.

The hearing and evidence

12. On 18 February 2021, the matter came on for hearing before me in relation to the final relief sought in the amended summons.

13. The evidence was appropriately limited, in light of the concessions made by the defendant, to the following:

1. the affidavit of David Yang of 3 February 2021 which annexed the report dated 31 July 2019 of Ms Arango, a Senior Clinical Consultant with the Department of Family and Community Services NSW Integrated Services Program, and documents produced by Corrective Services NSW which noted, inter alia, that:

“[The defendant] is wanted for extradition to Victoria on charges in that state. An arrest warrant is on NSW Police system. Please call NSW Police to arrange his arrest if he is to be released”;

and that the defendant has the support of an NDIS plan with a review date of 30 March 2021.

2. the psychological report of Mr Patrick Sheehan, registered psychologist, of 11 December 2020 obtained pursuant to the orders made by Hoeben CJ at CL on 17 November 2020; and

3. the psychiatric report of Dr Andrew Ellis, forensic psychiatrist, of 17 January 2021, also obtained pursuant to Hoeben CJ at CL’s orders.

14. None of the evidence was challenged and it was substantially consistent and inherently credible. I accept all of this evidence.

Statutory Provisions

15. Part 5 of the MHFP Act provides for the care, treatment and control of forensic patients, with the objects of Pt 5 delineated in s 40 in the following terms:

“40 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 are suffering from a mental illness or mental condition,

(c) to facilitate the care, treatment and control of any of those persons in correctional 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.”

16. Section 54A of the MHFP Act empowers this Court to extend a person’s status as a forensic patient in accordance with Sch 1 of the Act. The following clauses of Sch 1 are the most relevant to the making of extension orders for present purposes:

“1 Extension orders for forensic patients

(1) The Supreme Court may, on application under Part 2 of this Schedule, make an order for the extension of a person’s status as a forensic patient.

(2) An order made under this clause is an extension order.

2 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 Schedule 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 he or she ceases being 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.

…

4 Application for extension order

(1) An application for an extension order may be made in respect of a forensic patient only if the forensic patient is subject to:

(a) a limiting term, or

(b) an existing extension order.

…

7 Determination of application for extension order

(1) The Supreme Court may determine an application under this Part 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 clause 6(5) to conduct examinations of the forensic patient,

(c) the report of the qualified psychiatrist, registered psychologist or registered medical practitioner provided under clause 5 (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 Family and Community Services 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 he or she is or has been subject while a forensic patient (including while released from custody subject to conditions and while on a leave of absence in accordance with section 49 or 50),

(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.

8 Term of extension order

(1) An extension order:

(a) commences when it is made, or when the limiting term or existing extension order to which the forensic patient is subject expires, whichever is the later, and

(b) expires at the end of the period (not exceeding 5 years from the day on which it commences) that is specified in the order.

(2) Nothing in this clause prevents the Supreme Court from making a second or subsequent extension order against the same forensic patient.

…”

17. It is useful to note that, even if an extension order is made, such an order can be varied or revoked at any time, under cl 12 of Sch 1, which provides:

“12 Extension order or interim extension order may be varied or revoked

(1) The Supreme Court may at any time vary or revoke an extension order or interim extension order:

(a) on the application of a Minister administering this Act or the forensic patient, or

(b) on the recommendation of the Tribunal under section 47(2A).

(2) The period of an order must not be varied so that the total period as varied is greater than that otherwise permitted under this Part.

(3) Without limiting the grounds for revoking an extension order or interim extension order, the Supreme Court may revoke an extension order or interim extension order if satisfied that circumstances have changed sufficiently to render the order unnecessary.”

Relevant Principles

18. Given the similarity in structure and language of the statutory regime set out in Sch 1 to the MHFP Act with that established by the Crimes (High Risk Offenders) Act 2006 (NSW), it is appropriate to look to authorities in relation to High Risk Offender legislation for assistance in understanding the relevant provisions of the MHFP 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).

19. However, it must be noted that the MHFP Act, unlike the Crimes (High Risk Offenders) Act, does not empower the Court to make specific orders about the care, treatment, supervision or control of a forensic patient. Such powers remain within the province of the Tribunal to determine, for example under s 47 of the MHFP Act.

20. Clause 2 of Sch 1 imposes a standard of proof, for the purposes of determining whether such an extension order should be made, described as 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. …”

21. This standard of satisfaction “to a high degree of probability” applies to both central questions posed by cll 2(1)(a) and (b) namely:

1. does the defendant pose an unacceptable risk of causing serious harm to others if he ceases being 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).

22. The “unacceptable risk” of causing serious harm to others if the forensic patient ceases to have that status, referred to in cl 2(1)(a), 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 the Act: Lynn v State of New South Wales (2016) 91 NSWLR 636; [2016] NSWCA 57 (Lynn) at [58]; Attorney General for NSW v Peckham (Final) [2019] NSWSC 1775 at [92].

23. It should be noted that the right of a person to be at personal liberty at the expiry of a limiting term does not factor in as 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].

24. In assessing the nature of this risk, the following comments of Basten JA in Lynn at [126] are to be borne in mind:

“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.”

25. The Court is to direct its assessment of whether the risk apparent rises to the level of 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]. In considering this question of unacceptability, the comments of Harrison J in State of New South Wales v Pacey [2015] NSWSC 1983 at [43] should be observed:

“It is perhaps trite to observe that the assessment of the ordinary meaning of the unacceptability of any risk involves at least notionally the arithmetical product of the consequences of the risk should it eventuate on the one hand and the likelihood that it will eventuate on the other hand. A very high risk of occurrence of something that is insignificant, or a very low risk of occurrence of something that is significant, are both risks of similar or corresponding proportions, but neither risk could be considered to be unacceptable.”

26. The second aspect of cl 2(1)(a) for consideration concerns “serious 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’.”

27. Once satisfied to a high degree of probability that the defendant poses an unacceptable risk of serious harm to others, the Court must then turn to consider cl 2(1)(b) of Sch 1 and whether such an unacceptable risk cannot be managed by other less restrictive means.

28. An assessment of whether the risk can be adequately managed by other less restrictive means involves determining, in respect of such alternatives:

1. whether the risk of causing serious harm to others can be adequately managed by each alternative proposed; and

2. how restrictive each alternative is in comparison with the situation if an extension order were made and, as Adamson J observed in Attorney General of NSW v Doolan by his tutor Jennifer Thompson (No. 2) [2016] NSWSC 107 (Doolan (No. 2)) at [96], this 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.

29. The note to cl 2(1) of Sch 1 of the MHFP Act should also be kept in mind in assessing such less restrictive means in relevant cases. That note states:

“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.”

30. The interaction between “less restrictive means” and “adequately managed”, in relation to the relevant risk, was analysed by Garling J in Attorney-General of NSW v McGuire (No.2) [2014] NSWSC 288 at [63]:

“I would take the use of the phrase "adequately managed" to mean that 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 patients being confined in some form of institutional care rather than taking their place in the community.”

31. It can be noted, however, that, in the present case, the experts were agreed, and it was not in dispute that, the defendant was not a “mentally ill person” for the purposes of the Mental Health Act 2007 (NSW) and consequently he could not be considered for involuntary admission or a community treatment order under that Act.

32. A possible management regime that is relevant in the present case is that available by the Civil and Administrative Tribunal of New South Wales (NCAT) making appropriate guardianship orders under the Guardianship Act 1987 (NSW). In that regard, however, it is important to note s 4 of that Act which provides:

“It is the duty of everyone exercising functions under this Act [including making guardianship orders] with respect to persons who have disabilities to observe the following principles:

(a) the welfare and interests of such persons should be given paramount consideration;

(b) the freedom of decision and freedom of action of such persons should be restricted as little as possible,

(c) such persons should be encouraged, as far as possible, to live a normal life in the community,

(d) the views of such persons in relation to the exercise of those functions should be taken into consideration,

(e) the importance of preserving the family relationships and the cultural and linguistic environments of such persons should be recognised,

(f) such persons should be encouraged, as far as possible, to be self-reliant in matters relating to their personal, domestic and financial affairs,

(g) such persons should be protected from neglect, abuse and exploitation,

(h) the community should be encouraged to apply and promote these principles.” (the Guardianship s 4 Principles)

33. It may be significant that the Guardianship s 4 Principles do not include protection of the community as a consideration. Thus, the making of a guardianship order and the exercise of functions under such an order do not depend on or involve direct consideration of the protection of the community or of the avoidance of serious harm to persons other than the person who is the subject of the guardianship application or order.

34. Clause 2(2) of Sch 1 specifies that in making its assessment 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.

35. Considerations to which the Court must have regard, in addition to any other matter it considers relevant, in determining whether or not to make an extension order, are listed in cl 7(2)(a) – (i) of Sch 1 of the MHFP Act as follows:

“(a) the safety of the community,

(b) the reports received from the persons appointed under clause 6(5) to conduct examinations of the forensic patient,

(c) the report of the qualified psychiatrist, registered psychologist or registered medical practitioner provided under clause 5(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 Family and Community Services 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 he or she is or has been subject while a forensic patient (including while released from custody subject to conditions and while on a leave of absence in accordance with section 49 or 50),

(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.”

The defendant’s circumstances

36. The defendant was born in 1978 in Broken Hill and was raised in that area. Later he moved, with his parents, to Mildura and then Gol Gol, which is just outside of Mildura. He is the eldest of six children of his parents who remained married until his mother’s death in 2017.

37. The defendant apparently suffered an hypoxic brain injury at birth. Although his development appeared normal until the age of two, at that time his language regressed and at the age of four he was found to have hearing impairment. He was diagnosed with intellectual disability when he was aged five.

38. As to his family background, the defendant’s father worked in agricultural settings and in livestock transport and there were no familial problems with substance abuse, domestic violence, mental illness or criminality. The defendant was never neglected and was well cared for by his family. He denied any experience of childhood sexual abuse or other trauma. He has never lived independently, eventually residing in a caravan on the family property. It appears most likely that his parents managed his finances. The defendant’s mother died in 2017 while he was in custody and he was unable to attend the funeral. It appears that the applicant’s father may be in declining health and, although the defendant does not receive family visits in custody, he speaks with his father by telephone once a week. The defendant is estranged from two of his siblings, likely as a result of his having sexually offended against their children. It appears that the defendant relied heavily on immediate family to provide or coordinate social contact, both in the community and in custody.

39. In primary school, the defendant attended a supported learning class in a public school in Broken Hill. He was expelled from high school in Year 7. During his teens, he was reported to be unable to read, write or perform simple arithmetic. He has attended literacy and numerously classes in custody since 2016 but it does not appear that he has made substantial progress in these regards.

40. The defendant’s employment history is limited and he has been supported on a disability support pension since early adulthood. He assisted his father undertaking farming activities such as property maintenance, fruit picking and animal care. He has never held a driver’s licence. While in custody he has been employed undertaking simple tasks such as packaging and he is said to work currently five days a week four and a half hours per day, which he says he enjoys.

41. The defendant has never married, never cohabited with a partner and has no children. It is unclear the extent to which the defendant has had any age-appropriate intimate relationships.

42. The applicant has reported no history of symptoms in keeping with psychosis and there is no information to suggest otherwise. There is also no history of psychiatric admission, significant mood disturbance, self-harm or suicidal ideation. Nor has he been prescribed antipsychotic, antidepressant or anxiolytic medications. It is the common view of the experts that he does not suffer from a mental illness and is not a mentally ill person as defined under the Mental Health Act.

The defendant’s offending

43. Information concerning the defendant’s offending is recounted in [54] of Hoeben CJ at CL’s Preliminary Judgment, Attorney General for New South Wales v Rohan (Preliminary) [2020] NSWSC 1610. It can be adequately summarised for present purposes as set out in the following paragraphs.

44. Between 1994 and 1996, when the defendant was between about 15 and 17 years of age, he sexually penetrated and performed indecent acts with a younger male. For this offending, he was sentenced in Victoria to a community-based order for two years and was required to undergo treatment.

45. Between 2007 and 2009, when he was about 28 to 30, the defendant sexually abused one of his nieces when she visited her grandparents at their house where the defendant also lived. The victim was seven to nine years old at the time. The Court also took into account that the defendant started abusing this victim when she was about three or four years old. Since the defendant had been found unfit to be tried, a limiting term effectively amounting to five years and six months was imposed in relation to six counts of sexual intercourse with a person under the age of ten years and four counts of indecent assault of a person under 16 years. The special hearing in respect of this offending took place in June 2018 and the limiting term was imposed on 21 January 2019. This is the limiting term that expired on 1 December 2020.

46. In mid-2010, the defendant was living in a caravan in the backyard of his parents’ property. In his caravan he indecently assaulted another of his nieces who was seven years old and staying with her grandparents. In February 2011, the defendant indecently assaulted in his caravan the six-year-old daughter of a family friend who was staying at the defendant’s parents’ house for the weekend. In respect of this offending, an effective limiting term of two years was imposed, on appeal. Although this offending was later in time than the offending in 2007 to 2009, the special hearing in respect of the 2010 to 2011 offending took place in December 2012 and the overall limiting term expired on 17 October 2013.

47. The defendant has only ever been convicted of sexual offences against children.

The defendant’s pending charges and warrant

48. As has been noted above, there is an outstanding arrest warrant for the defendant. A warrant was issued on 4 October 2018 by the Victorian Magistrate’s Court in Mildura in relation to: one charge of threat to inflict serious injury; one charge of indecent act with a child under 16; and, two charges of sexual penetration of a child under 16. These charges relate to alleged conduct in 2005.

49. It was common ground that the existence of this warrant means that, if the defendant is released from custody, it is likely that steps will be taken for him to appear in the Mildura Magistrate’s Court to answer the charges.

Section 7(2) matters

50. Against that background and having regard to the matters identified in s 7(2) of the MHFP Act, it is necessary to consider whether I am satisfied to the requisite standard that:

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

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

The safety of the community – s 7(2)(a)

51. The safety of the community in this context encompasses the protection of the safety of members of the public, as referred to in the object in s 40(a) of the MHFP Act, and the management of the risk of serious harm being caused to others, as appears in cl 2(1)(a) of Sch 1 to that Act.

52. In my view, it is beyond dispute that the defendant’s offending involved serious harm, both physical and psychological, to the victims in each instance. Further, it appears that if the defendant is in the community and is unsupervised with access to children, there is a very substantial risk that further offending might occur involving serious harm to the victims and harm to their families and friends. In this way, the defendant poses a substantial risk to the safety of a significant part of the community.

53. It is likely that the defendant’s intellectual disability plays a significant role in his offending and reduces his moral culpability. This does not, however, reduce the need to take effective measures to ensure the safety of the community. Indeed, his disability heightens that need.

Reports received from the persons appointed under cl 6(5) – cl 7(2)(b)

54. As noted above, the defendant was examined by a registered psychologist, Mr Sheehan, and a psychiatrist, Dr Ellis, who were appointed under cl 6(5) of Sch 1 to the MHFP Act, and those experts provided reports.

Mr Sheehan’s Report of 11 December 2020

55. After reviewing the defendant’s circumstances and background and based on an interview with him on 10 December 2020 for approximately one and a half hours, Mr Sheehan noted that the defendant appeared overconfident in his ability to seek autonomously employment and care for himself, noting that he would make confident statements about what he could achieve but on questioning was unable to explain the steps required to achieve this end. The psychologist also formed the view that the defendant relied heavily on immediate family to provide or coordinate social contact.

56. Mr Sheehan observed that all of the defendant’s offences were against prepubescent children with four identified victims spread over a period of 15 years. He was of the view that there could be no doubt that this constitutes a disorder of sexual behaviour and that the criteria for paedophilic disorder (attracted to males and females) were likely to be met. The psychologist also acknowledged that impoverished boundaries, opportunism and lack of opportunities to associate with similar aged partners were also likely contributing factors.

57. Mr Sheehan found that that there was incontrovertible evidence that the defendant would meet the criteria for intellectual development disorder (mild-to-moderate). In this regard, the psychologist opined:

“Until his current period of institutionalisation, [the defendant] was not subject to organised professional support in the community, with his care needs being met by his family. He was recently granted NDIS funding in recognition of his disability. [The defendant’s] intellectual functioning undermined his ability to operate effectively in the world, impairing his ability to adequately appraise his situation and make appropriate decisions. His disability is relevant to his sexual offending and to his risk of reoffending, both through his impaired decision making and by creating emotional identification with young persons. This condition is permanent.”

58. Mr Sheehan also considered the defendant’s progress towards community release, noting Ageing, Disability and Home Care (ADHC) acceptance in May 2017, NDIS approval in March 2020 and nomination of a support coordination agency, Participate Australia. He went on to comment:

“41. Although [the defendant] has repeated his preference for return to the family home in Gol Gol, assessors have referred to the need for transition to a 24/7 supported living arrangement, with a preference for a suitable facility within that geographical region close to [his] family, with Broken Hill being the nearest regional facility likely to have relevant resources…. A behaviour support practitioner was also recommended. These recommendations appear entirely suitable in my view. At a review of 30 January 2020, the MHRT anticipated that a suitable residential facility would be identified in June 2020. This has not occurred. Telephone contact with Participate Australia on 8 December 2020… Reveal that an appropriate post-release facility is not yet identified. [It was] revealed to me that a residence would not be identified until a firm release date was proposed. However, it would appear that a release date would not be proposed in the absence of a suitable accommodation option being presented. This stalemate will need to be resolved.

42. I note that the feasibility of a time specific community transition plan is also complicated by the outstanding warrants in Victoria, with the possibility of extradition upsetting the coordination of services.”

59. As to the defendant’s risk of sexual reoffending and risk of causing serious harm, Mr Sheehan considered the actuarial assessment of static risk factors using the Static-99R instrument and dynamic risk factors using the Risk of Sexual Violence Protocol (RSVP). His conclusion was that the totality of information supported the view that the defendant presented a moderate to high risk of reoffending on the risk spectrum. The psychologist was also of the view that this risk would escalate in uncontrolled community settings were the defendant to have unsupervised access to children, but the risk could be well-managed under the protective influence of suitably intensive community management.

60. As to the management of the risk inherent in the defendant’s circumstances, Mr Sheehan also said that:

1. the most robust means of ensuring ongoing adequate risk management would be an extension of his status as a forensic patient;

2. classification as an involuntary patient or imposition of a community treatment order would not be available as he is not a mentally ill person; and

3. as an alternative to management by the MHRT as a forensic patient, “the Guardianship pathway may have some merit, particularly if restrictive practices can be endorsed by NCAT” and such restrictive practices could include: seclusion, physical restraint, mechanical restraint, environmental restraint and chemical restraint.

61. Mr Sheehan’s ultimate conclusion in relation to adequate management was as follows:

“I would recommend a further extension of [the defendant’s] status as a forensic patient for one – two years, allowing for requisite investigation of Guardianship and the application processes. Should the Guardianship pathway be unsuccessful, then it is my view that extension of [his] status as a forensic patient is indicated until such time that he is established in the community in such a way that adequate risk management will endure in the absence of the order. There would appear to be much [to] achieve before this point of stability is reached.”

Dr Ellis’s report of 17 January 2021

62. In Dr Ellis’s opinion, the diagnosis which was of primary concern regarding the defendant’s risk of serious harm to others was the paraphilia disorder, paedophilia. It was also noted that he would meet the criteria for a mild intellectual disability, noting that mild in this context referred to comparison with other persons with intellectual disability and indicated a significant, lifelong clinical condition.

63. Dr Ellis also utilised the Static-99R instrument and RSVP and concluded that the defendant:

“on balance would fall into a group of persons with a risk of serious harm (in particular sexual abuse of children) to others that is low in a highly controlled supervised environment. There would be clinical grounds to continue intervention to manage this risk as it would rise in other circumstances. Should he be released to a community setting greater attention will need to be paid to accommodation, employment, monitoring and support with communication and decision-making to keep the risk factors controlled as it [is in] the current situation. Management of sexual deviance, or paraphilia will be the primary target of risk management in less restrictive settings.

Overall his profile shows concern centred around his sexual deviance. The offending indicates opportunism. This may reflect impulsive decision-making regarding sexual activity. Currently with significant supports and limits his impulsive decision-making is moderated, he has stable patterns of activity. He cooperates with support and supervision in prison, but does not make plans for how to translate this to community settings, where unsupervised and without MHRT oversight his risk would be considerable.”

64. Dr Ellis recommended antilibidinal medication treatment in the defendant’s case but noted that he likely lacked capacity to make this medical decision. This, however, could form part of a guardianship order. It was also recommended that he be referred to a forensic psychiatrist with experience prescribing this type of medication but it was noted that medication does not work alone and must be part of an overall management scheme.

65. It was Dr Ellis’s opinion that the defendant would not be considered a “mentally ill person” and consequently would not be considered for an involuntary admission or a community treatment order under the Mental Health Act.

66. The psychiatrist emphasised that there was little to be gained by the defendant remaining a forensic patient if he remained detained in custody without release planning.

67. If the defendant had a period of time supervised in the community this would provide an opportunity to assess the likelihood of his return to paraphilic sexual behaviour and would allow the risk assessment to be refined. However, Dr Ellis was of the view that at present it was difficult to be certain about his current sexual drive, which may increase if he were in a community setting with exposure to children. Nonetheless, there would be a number of clinical interventions that could be applied to reduce that risk.

68. Dr Ellis was of the view that Guardianship alone, even with antilibidinal medication and the oversight inherent in the Child Protection Register, should not be recommended given the level of uncertainty in this case, relating both to the defendant’s motivations and the lack of clarity with respect to his community plans.

69. Dr Ellis’s conclusions were as follows:

“… there would be clinical benefit to extend [his] forensic status for three years in the circumstance of an application for conditional release with treatment recommendations [as referred to above]. If he were to demonstrate a sustained cooperation with services and be stable in other aspects of life then his risk profile may be at a point where it could be managed by himself, family and professionals with assistance from police services such as the Child Protection Watch Team, and prohibition orders could be applied if required. His paraphilic disorder and intellectual disability are longterm, and will persist beyond three years. This timeframe is recommend[ed] on the basis that the greatest risk for offending is the… first two years post-release, and time taken to engage him in disability habilitation.

With a forensic order he would be subject to oversight by the forensic arm of the Mental Health Review Tribunal. He could only be discharged from his order by the forensic arm of the Mental Health Review Tribunal.

The benefit of forensic patient status is when on conditional release, recall a hospital or prison may be enacted more rapidly in a cycle of clinical deterioration. It does not require he deteriorate to a point where he becomes a “mentally ill person”. As his risk does not relate to mental illness, this is pertinent, as relapse to paedophilic interest in the context of stress, inactivity, opportunity or boredom would be a more likely marker of risk. Recall to prison is not recommended as a useful risk management strategy, other than poor short-term containment.…”.

Report of the registered psychologist provided under clause 5(b) and other relevant reports – s 7(2)(c) and (d)

70. The risk assessment report provided under cl 5(b) was by Ms Lisa Zipparo, clinical neuropsychologist, and was dated 14 June 2020. There was also a supplementary report dated 2 July 2020. This was referred to in some detail by Hoeben CJ at CL in the Preliminary Judgment at [69] to [81] and I do not repeat that material here. Ms Zipparo’s views were consistent with those of Mr Sheehan and Dr Ellis and did not cause me to qualify my acceptance of their opinions.

71. In addition, there was the report dated 31 July 2019 of Ms Arango, a Senior Clinical Consultant with the Department of Family and Community Services NSW Integrated Services Program, which has been referred to above. In that report, it was noted that the defendant had previously declined to participate in custody based programs aimed at reducing his offending behaviour and oriented at promoting his release from custody. The author noted that it had been queried whether this was the result of communication deficits which led to a lack of interest in and understanding of such programs and their benefits. It was recommended that a communication assessment be conducted by a speech pathologist so that aid and assistance with communication could be provided. If such an assessment has been conducted, the results were not before the Court.

72. A number of other practitioners’ reports concerning the defendant were also referred to by Hoeben CJ at CL in the Preliminary Judgment at [82] to [112]. Mr Sheehan and Dr Ellis generally considered these reports in forming their views. To the extent that these reports continued to be relevant, in my view, they were properly considered and addressed in those reports of Mr Sheehan and Dr Ellis and they do not detract from, and were generally supportive of, the opinions expressed by Mr Sheehan and Dr Ellis.

Relevant orders or decisions of the Tribunal – s 7(2)(e)

73. Once again, various decisions of the MHRT were considered by Hoeben CJ at CL in the Preliminary Judgment at [113] to [120] and I do not repeat that material. In addition, there was a decision of the Tribunal on 19 October 2020, in which the Tribunal concluded that it was satisfied that:

“there are reasonable grounds for believing that the present arrangements for care, treatment and control of [the defendant] are necessary and sufficient for the protection of [the defendant] from serious harm and/or for the protection of others from serious harm.”

74. In particular, the Tribunal noted that the defendant’s risk of re-offending was assessed as above average and he had persistently refused to engage in the Sex Offender Program. Furthermore, since he denied that he committed the offences which were proved to the satisfaction of the Court, he was not in a position to engage in those programs even were he prepared to do so. The Tribunal expressly stated that:

“For the moment he is well-suited in his current place of detention where he seems content.”

Any report of the Secretary of the Ministry of Health, the Commissioner of Corrective Services, the Secretary of the Department of Family and Community Services or any other government Department or agency responsible for the detention, care or treatment of the forensic patient – s 7(2)(f)

75. The were no such Secretaries’ reports before the Court.

The level of the forensic patient’s compliance – s 7(2)(g)

76. The defendant has not relevantly been released from custody subject to conditions or on a leave of absence. Nor has there been any relevant lack of compliance with any obligations to which the defendant has been subject while a forensic patient.

The views of the court that imposed the limiting term – s 7(2)(h)

77. The last limiting term to which the defendant was subject was imposed by Hunt DCJ on 21 January 2019. On that occasion, his Honour made the following observations:

“given that his condition is pervasive and that he seems at least at the relevant time to have not benefited from treatment if it was afforded to him in the 1990s, future dangerousness must remain an issue because of the intractability of his mental condition. Having said that, because he appears not to have breached the law for the last eight years, that is the reason, along with all the other matters, that I have formed the view that he has moderately good prospects for rehabilitation and future dangerousness does not loom as large in the sentencing exercise.”

78. It is not entirely clear what was meant by “moderately good prospects for rehabilitation and future dangerousness”. In so far as Hunt DCJ’s view may be contrary to that of Mr Sheehan and Dr Ellis, I prefer the views of the psychologist and psychiatrist based on more recent assessments. I note that Hunt DCJ did not have the benefit of the psychologist’s and psychiatrist’s 2020 and 2021 opinions.

Consideration

Extension order

79. On the basis of the material to which I have referred above and having regard, in particular, to the defendant’s past offending and conduct, the defendant’s mental disability and diagnosis of paedophilia, the likelihood of his reoffending as assessed by Mr Sheehan and Dr Ellis, 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 by way of offending similar in nature to that for which he has been previously convicted. Thus, the first limb of the test in cl 2(1) of Sch 1 to the MHFP Act is, in my view, satisfied.

80. As to the second limb of the test in cl 2(1), the evidence of Mr Sheehan and Dr Ellis established that the defendant would not be likely to be eligible for involuntary admission or treatment under a Community Treatment Order, pursuant to the Mental Health Act, if he ceased to be a forensic patient and was released into the community. Consequently, these measures would not be available as a means of managing the risk.

81. While guardianship orders might possibly provide a means of allowing the defendant to live under the supervision of a guardian in the community, it is far from certain that any such supervision would be sufficient to protect the community, and especially children, from serious harm. This is because the Guardianship s 4 Principles (which have been set out above), which must be observed when making and implementing a guardianship order, require the welfare and interests of the subject person to be the paramount considerations. In addition, the subject person’s views must also be taken into consideration. As noted above, the protection of the community from serious harm is not a directly relevant consideration in this context. Thus, the arrangements for the defendant’s supervised living in the community that may be suitable under a guardianship order will not, or are unlikely to, include restrictions or conditions designed only or principally to ensure the safety of the community from serious harm.

82. Furthermore, while the Guardianship Division of NCAT may empower a guardian to determine whether the defendant should receive antilibidinal medication, whether such a power is granted and whether the guardian determines that the defendant should receive such treatment will be guided by the Guardianship s 4 Principles and not primarily by consideration of reducing the risk of serious harm to the community.

83. Consequently, although a regime of guardianship orders would be likely to be less restrictive than continuation of the defendant’s status as a forensic patient, it would not be sufficient, in my view, adequately to manage the risk of serious harm to others that would be posed by the defendant, if he ceased to be a forensic patient and was released into the community without supervision.

84. As I understood their reports, both Mr Sheehan and Dr Ellis were also of the view that a regime of guardianship orders at the present time for the defendant would not be adequate to manage the risk posed by the defendant.

85. No other less restrictive means of managing the risk posed by the defendant were identified.

86. Accordingly, I am satisfied to a high degree of probability that the risk could not be adequately managed by other less restrictive means and, as such, the second limb of the test in cl 2(1) of Sch 1 has also been met.

87. I have also taken into account that, if the defendant ceases to have the status of a forensic patient and is to be released, he will be arrested as a result of the warrant which has been issued in respect of his alleged offending in 2005 in Victoria.

88. Having regard to all the defendant’s circumstances referred to above, including his diagnoses, history, his apparent unwillingness to participate in risk reduction programs and his risk of re-offending, I accept that his status as a forensic patient should be extended.

89. It appeared to me that the period of three years was appropriate, especially since the greatest risk of offending is during the first two years post-release. Three years will allow sufficient time for:

1. suitable accommodation, support and close supervision arrangements to be put in place by, or under the direction or control of, the Mental Health Review Tribunal so that the defendant can be released from custody into the community, under the overall supervision of the Tribunal;

2. the defendant to demonstrate that he can live without offending or otherwise posing a risk of serious harm to the community, subject to such arrangements and supervision; and

3. a properly informed assessment can be made of whether there are, at that later time, other adequate and less restrictive means of managing the risk posed by the defendant which could then be put in place instead of a further extension of his status as a forensic patient.

90. In this regard, I rely on and endorse Dr Ellis’s view that there would be clinical benefit to extend his forensic status for three years so as to permit a properly prepared and supported application for conditional release with treatment, as recommended by Dr Ellis, to be made and put into effect.

Order restricting access to the file

91. Finally, I note that the order sought restricting access to the file was not opposed. The proposed order does not prohibit access to the file but rather makes access subject to the supervision of the Court.

92. I am mindful of the need to safeguard the public interest in open justice. However, given the nature of both the offending and the defendant’s disabilities as well as the existence of previous non-disclosure orders, it appears to me to be appropriate that access to the file should be subject to supervision, and the parties should have an opportunity to make submissions before access is permitted.

93. Such an approach would also, in my view, assist to ensure that s 162 of the Mental Health Act is not contravened. That section provides:

“162 Publication of names

(1) A person must not, except with the consent of the Tribunal, publish or broadcast the name of any person—

(a) to whom a matter before the Tribunal relates, or

(b) who appears as a witness before the Tribunal in any proceedings, or

(c) who is mentioned or otherwise involved in any proceedings under this Act or the Mental Health (Forensic Provisions) Act 1990,

whether before or after the hearing is completed.

Maximum penalty—

(a) in the case of an individual—50 penalty units or imprisonment for 12 months, or both, or

(b) in the case of a corporation—100 penalty units.

(2) This section does not prohibit the publication or broadcasting of an official report of the proceedings of the Tribunal that includes the name of any person the publication or broadcasting of which would otherwise be prohibited by this section.

(3) For the purposes of this section, a reference to the name of a person includes a reference to any information, picture or material that identifies the person or is likely to lead to the identification of the person.”

94. Accordingly, I propose to make the order sought permitting access to the file in this matter subject to the supervision of the Court.

Orders

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

1. Under s 54A and Sch 1 of the Mental Health (Forensic Provisions) Act 1990 (NSW), the status of the defendant as a forensic patient is extended for three years, commencing immediately from the expiration of the interim extension order at midnight on 1 March 2021 and expiring on 1 March 2024.

2. Access to the Court file in this proceeding is permitted to a non-party only with the leave of a Judge of the Court, and with prior notice to the parties so as to allow them an opportunity to be heard in respect of the application for access.

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Decision last updated: 23 February 2021