Attorney General for NSW v MZ

[2017] NSWSC 1773

Supreme Court

New South Wales

Medium Neutral Citation:

Attorney General for NSW v MZ [2017] NSWSC 1773

Hearing dates:

11 December 2017

Decision date:

15 December 2017

Jurisdiction:

Common Law

Before:

Fullerton J

Decision:

1. Save for the relief sought in paragraph 4 of the Summons filed on 11 October 2017, the Summons is dismissed.

 

2. I make an order in accordance with paragraph 4 of the Summons filed on 11 October 2017.

 

3. I further order that the defendant’s name be anonymised as “MZ” and his daughter’s name be anonymised as “Ms Z”.

 4. The plaintiff is to pay the defendant’s costs.

Catchwords:

CIVIL – Mental Health Forensic Provisions Act 1990 (NSW) – application for interim extension order – forensic patient – limiting term due to expire – whether unacceptable risk of causing serious harm if status as forensic patient ceases

Legislation Cited:

Child Protection (Offenders Registration) Act 2000 (NSW)
Court Suppression and Non-publication Orders Act 2010 (NSW)
Guardianship Act 1987 (NSW)
Mental Health (Forensic Provisions) Act 1990 (NSW)
Powers of Attorney Act 2003 (NSW)

Cases Cited:

Attorney General of New South Wales v Kereopa (No 2) [2017] NSWSC 928
Attorney General of New South Wales v McGuire (No 2) [2014] NSWSC 288
Attorney General of New South Wales v Skerry (Preliminary) [2015] NSWSC 859
Lynn v State of New South Wales [2016] NSWCA 57; 91 NSWLR 636

Category:

Principal judgment

Parties:

Attorney General of NSW (Plaintiff)
MZ (Defendant)

Representation:

Counsel:
A Rose (Plaintiff)
A Hawkins (Defendant)

  Solicitors:
Crown Solicitor of NSW (Plaintiff)
Legal Aid NSW (Defendant)

File Number(s):

2017/306668

Judgment

1. HER HONOUR: By a summons filed on 11 October 2017 the Attorney General of New South Wales (the Attorney) seeks an order under cll 1 and 7(1)(a) of Sch 1 of the Mental Health (Forensic Provisions) Act1990 (NSW) (the Forensic Provisions Act) extending MZ’s status as a forensic patient for a period of twelve months.

2. An order is also sought under cll 10 and 11(1) of Sch 1 of the Forensic Provisions Act for an interim extension order to commence on 18 December 2017 for a period of 28 days.

3. MZ’s current status as a forensic patient results from the imposition of concurrent limiting terms under s 23 of the Forensic Provisions Act on 8 August 2013, and further concurrent limiting terms imposed on 19 December 2014, in two separate special hearings convened in the District Court under s 21A of the Forensic Provisions Act. MZ has been in custody since 21 December 2012. He is now aged 72.

4. The effective limiting terms imposed in the District Court expire on 18 December 2017 at which time MZ’s status as a forensic patient will cease. That being the case, s 54 of the Forensic Provisions Act provides that he must be released, unconditionally, from his current detention in the Kevin Waller Unit of Long Bay Hospital.

5. In the event that I am satisfied that the matters alleged in the supporting documentation annexed to the affidavits of James Zhao, solicitor, would, if proved, justify the making of an extension order (as to which the Attorney bears the onus of proof), I am obliged to make an interim extension order extending his status as a forensic patient and his continued detention. I am also obliged to make an order pursuant to cl 6(5) of Sch 1 appointing two qualified mental health practitioners to conduct examinations of MZ and furnish reports to the Court in advance of a final hearing when the question whether an extension order should be made for a period of twelve months will be determined.

6. The Attorney also seeks ancillary orders restricting access to the Court’s file subject to a grant of leave after notice to the parties. MZ seeks an order pursuant to s 8(1)(d) of the Court Suppression and Non-publication Orders Act 2010 (NSW) for MZ’s name to be anonymised as it may tend to identify the victim of one of the first index sexual offences by reason of MZ's relationship with that person. There is no objection to either order.

7. MZ is represented by his tutor in the proceedings. Through his tutor, he opposes the making of the interim order extending his status as a forensic patient.

8. In MZ’s submission, the evidence upon which the Attorney relies does not support a finding in accordance with the statutory test in cl 2 of Sch 1 of the Forensic Provisions Act (the test with which this Court is concerned) that there is a high degree of probability that he poses an unacceptable risk of causing serious harm to others if he ceases being a forensic patient, or that such risks of harm that are assessed cannot be adequately managed by other less restrictive means than his current detention as a forensic patient. MZ accepts that if the Attorney discharges the onus of satisfying the Court that an interim extension order should be made, he would submit to an order for assessment by appropriately qualified mental health professionals.

9. The standard of proof (or standard of persuasion) encapsulated in the statutory test in cl 2 is higher than the civil standard but lower than the criminal standard. As cl 2(2) makes clear, the Court is not required to determine that the risk of serious harm to others is more likely than not, but rather to determine whether the Court is satisfied to a high degree of probability that MZ poses an unacceptable risk of causing serious harm to others if he ceases to be a forensic patient.

10. Neither “unacceptable risk” nor “serious harm” is defined in the Forensic Provisions Act.

11. The assessment as to whether MZ poses an unacceptable risk of causing serious harm to others, a risk which cannot be adequately managed by other less restrictive means, is an evaluative exercise, where the assessment of risk is to be made in the context of the Court’s obligation to secure the community from harm to a reasonable or adequate degree as opposed to guaranteeing its safety and protection.

12. As an evaluative exercise, predicting the nature and extent of the risk of MZ causing serious harm to others involves considering both the likelihood of the risk of harm eventuating and the gravity of the risk that may eventuate. That risk must also be assessed on the basis that, if the interim extension order is not made, MZ will be living in the community without any Court ordered supervision or monitoring as and from 18 December 2017 (see Attorney General of New South Wales v Skerry (Preliminary) [2015] NSWSC 859) save for his legal obligations under the Child Protection (Offenders Registration) Act 2000 (NSW).

13. The right of a forensic patient to be at his or her personal liberty at the expiration of the Court imposed limiting terms is not a relevant consideration in the assessment of whether that person poses an unacceptable risk of causing serious harm to others if he or she ceases to be a forensic patient (see Lynn v State of New South Wales [2016] NSWCA 57; 91 NSWLR 636).

14. In this case, the only risk of serious harm that the Court is invited by the Attorney to assess as unacceptable is the risk of MZ opportunistically sexually assaulting or attempting to sexually assault a female who he might perceive as vulnerable. Were I satisfied that there is a high degree of probability that there is an unacceptable risk of that occurring, I accept that any such assault or attempted assault would, by its very nature, be likely to be productive of serious harm, including psychological harm extending beyond feelings of fear or panic (see Attorney General of New South Wales v Kereopa (No 2) [2017] NSWSC 928 at [16].

15. In the event that I am satisfied to a high degree of probability that MZ does pose an unacceptable risk of serious harm to others under cl 2(1)(a), then I am obliged to make an extension order if I am also satisfied, to the same high degree of probability, that the risk cannot be adequately managed by less restrictive means as provided for in cl 2(1)(b). The Attorney also bears the onus on that question, albeit in the negative.

16. The concept of adequate management by less restrictive means was held by Garling J in Attorney General of New South Wales v McGuire (No 2) [2014] NSWSC 288 at [63] to mean that the unacceptable risk of the forensic patient causing serious harm:

… 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.

17. The question whether the Attorney has demonstrated to a high degree of probability that the proposed regime for supervising MZ, if he is at his liberty, does not adequately manage or mitigate the unacceptable risk of him causing serious harm to others, is to be addressed referable to the evidence.

18. For the purposes of the preliminary hearing that evidence includes the affidavit of his solicitor, Agnes Dalumpines, of 4 December 2017. The Attorney has taken no objection to me taking that material into account on the questions raised in the preliminary hearing. This is an appropriate concession in circumstances where the Attorney’s submitted position is, at least in part, that MZ’s risk of reoffending is low so ever long as he is housed in a suitable supervised environment and where residential care in an aged person’s facility was either not an option, not available, or both in successive hearings before the Mental Health Review Tribunal (the Tribunal) when his conditional release was under consideration, most recently in October 2017.

19. Ms Dalumpines deposes to having received correspondence from Ms Stoupas, Clinical Nurse Consultant at Long Bay Hospital, on 22 November 2017 forwarding an email from Sarah Riach, Director of Nursing at Fairfield Aged Care Home, sent the previous day confirming that they will “happily receive MZ into [their] care” and confirming the availability of full-time residential accommodation upon his release from custody.

20. In a letter dated 13 December 2017 from Sunil Victor, Clinical Nurse Manager at Fairfield Aged Care Home (furnished to the Court after the preliminary hearing, again without objection from the Attorney), Mr Victor elaborated upon the facilities available at the Fairfield Aged Care Home. He advises that Fairfield Aged Care Home is a well-established facility with staff from different cultural backgrounds, with different beliefs, values and languages. The facility is fully accredited by the Australian Aged Care Quality Agency, recently meeting all 44 outcomes at re-accreditation. The facility operates 24 hours 7 days a week with registered nurses on every shift and with care staff in attendance. The facility has nine medical practitioners who attend to the residents on a regular basis. They are well supported and assisted by an Allied Health team, including a consultant ophthalmologist, and dental and hearing specialists. Medication is reviewed as required.

21. Mr Victor proposes that MZ be accommodated in a companion room with two other male care recipients. This room is close to the registered nurses’ office. The facility has security code-locked gates and doors. External cameras operate with an intercom system allowing staff to identify individuals before allowing them access. The primary entrance and exit doors remain locked during the night and only a registered nurse may open them.

22. The application brought by the Attorney to extend MZ’s status as a forensic patient obligates him, pursuant to cl 5(b) of Sch 1 of the Forensic Procedures Act, to provide supporting documentation addressing each of the matters referred to in cl 7(2) of Sch 1, together with a report by a qualified psychiatrist, registered psychologist or medical practitioner that:

1. assesses the risk of the forensic patient causing serious harm to others; and

2. addresses the need for ongoing management of the patient as a forensic patient and the reasons why the risk of the forensic patient causing serious harm to others cannot be adequately managed by other less restrictive means.

23. On 4 July 2017, the Attorney instructed the Crown Solicitor to obtain a risk assessment report in relation to MZ after seeking advice from the Crown Solicitor on 22 June 2016 as to the merits of applying to extend MZ’s status as a forensic patient beyond the expiration of his limiting term.

24. Chelsey Dewson, clinical psychologist, was retained by the Crown Solicitor to undertake a psychological assessment of MZ. I will return to consider the reports furnished by Ms Dewson later in this judgment.

25. Clause 7(2) of Sch 1 provides that:

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.

26. Since this is a preliminary hearing, cl 7(2)(b) is irrelevant.

Safety of the community (cl 7(2)(a)

The views of the court that imposed the limiting terms (cl 7(2)(h))

The Tribunal orders and decisions (cl 7(2)(e)

27. As will become apparent from the structure of what follows, I have determined to consider these three mandatory matters together. Additionally, while I have had regard to the large number of reports concerning MZ’s various mental and physical health since 2010 included in the Attorney’s supporting documents, again for reasons that will become obvious, it is not necessary to refer to them in detail since the views of those practitioners are not materially different from the comprehensive reports of the healthcare professionals who have had the most recent engagement with MZ’s ongoing care and treatment.

General overview of MZ’s current health

28. MZ was most recently diagnosed by Dr Ellis, a forensic psychiatrist who was retained by MZ’s legal representatives in 2017 to prepare a risk assessment report, preparatory to the conditional release application heard and determined by the Mental Health Review Tribunal, adverse to MZ, on 25 October 2017. He reported that MZ had a mental condition (as defined in s 24(2)(b) of the Forensic Provisions Act), being cognitive impairment of long standing and a major neurocognitive disorder secondary to mild vascular dementia. (His dementia was first diagnosed in 2012.)

29. In Ms Dewson’s first risk assessment report of 31 July 2017, she states that MZ “meets the DSM-5 diagnostic criteria for an intellectual disability (intellectual developmental disorder) 319 (F70)”. She further notes that the psychometric test results from her examination of him are consistent with his previous diagnosis of vascular dementia.

30. MZ also has a number of medical comorbidities, including ischaemic heart disease, hypertension, hypercholesterinaemia, wastage of a lower limb from childhood polio, an enlarged prostate, arthritis and vision and hearing impairments. Since 2004 he has had a total of seven heart attacks and five bypass surgeries. His most recent admission to hospital was the result of a myocardial infarction and hypertension. He was medically managed before he was discharged and returned to custody. He is taking a number of medications to treat his heart disease and other physical health problems. His medication is administered under supervision as he does not have the capacity to monitor his own intake needs.

The index offending and views of the sentencing courts

31. The first index offences which attracted limiting terms in August 2013 occurred over a two year period between 2007 and 2008 when MZ was aged 62. The offences included two counts of aggravated sexual intercourse with a person under the age of 16 and one count of attempt to have sexual intercourse with a person under 10 years. The victim of those offences was the child of MZ’s former partner, aged between 9 and 11 years.

32. On 5 July 2011, Sides DCJ found MZ unfit to be tried due to his anxiety levels and “issues in relation to his cognition” and referred the matter to the Mental Health Review Tribunal pursuant to s 14A of the Forensic Provisions Act.

33. In May 2012 a special hearing was convened in the District Court before Payne DCJ. That hearing did not conclude as a result of MZ’s hospitalisation for a medical condition. The hearing was reconvened in March 2013 and on 8 August 2013, after a qualified finding of guilt, limiting terms were imposed pursuant to s 23 of the Act. Her Honour also referred MZ to the Tribunal pursuant to s 24(1)(a) of the Forensic Provisions Act and ordered, pursuant to s 24(1)(b), that MZ be detained in such place as the Tribunal directed.

34. Her Honour noted that the three offences, which involved vaginal penetration and attempted anal penetration, were not isolated instances of sexual offending against the child. Her Honour was satisfied the medical evidence supported the child’s account that the assaults occurred on a regular basis.

35. In her reasons for decision her Honour found that MZ presented with a combination of physical defects, intellectual impairment and cognitive deficits based upon a number of reports tendered in the special hearing, including a psychological assessment from Ms O'Neill, clinical psychologist, and a report from Dr Furst, forensic psychiatrist, which incorporated the notes of Dr Reutens, geriatric psychiatrist.

36. Her Honour extracted part of the report of Ms O'Neill in which Ms O'Neill noted that psychometric testing suggested MZ was a man of low intelligence with obvious signs of cognitive disturbance, with a level of premorbid functioning in the lowest one per cent of the population. He was also found to have gross cognitive dysfunction with his memory for verbal and non-verbal information in both the short and long-term found to be poor. This was consistent with what Ms O'Neill expected based upon MZ’s intellectual skills. A definitive diagnosis of dementia was not made at that time. Her Honour also noted that given MZ’s age, his prognosis was poor and it seemed likely that he would experience further cognitive decline.

37. At the time of the imposition of the limiting terms for the first index offences in August 2013, MZ was already housed as a remand prisoner in the Aged Care and Rehabilitation Unit (ACRU) at Long Bay Hospital as a consequence of having been charged on 21 December 2012, whilst on bail for the first index offences, with sexual intercourse without consent and assault with an act of indecency (the second index offences) committed between 3 November and 4 November 2012. The victim of the second index offences was a woman aged 44 who was a friend of MZ and who stayed at his home overnight after she had been socialising with him and other friends. MZ was transferred to the ACRU after it was found that he was not functioning in the general remand prison population. Payne DCJ recommended that he be detained in the ACRU during the currency of the limiting terms she imposed.

31. In September 2013, in the course of the Tribunal's progressive review of MZ’s fitness to stand trial for the first index offences (that is, after the commission of the second index offences but before he was found unfit to be tried for those offences) evidence was adduced that confirmed Ms O’Neill’s assessment of MZ as cognitively impaired, although there were conflicting medical opinions as to its nature and origin. The Tribunal resolved to adjourn the hearing to enable MZ’s treating team to gather information from MZ's family as to his functioning prior to his detention and to obtain reports after a CAT scan and MRI were administered.

32. On 18 November 2013 Mahoney DCJ found MZ was unfit to stand trial for the second index offences and referred the matter to the Tribunal pursuant to s 14A of the Forensic Provisions Act. The reports furnished to the Court on that occasion included the reports that were before both Sides DCJ and Payne DCJ in July 2011 and August 2013.

33. Following a further hearing before the Tribunal in January 2014 (that is, after MZ was found unfit to be tried for the second index offences but before the convening of the special hearing), the Tribunal determined, pursuant to s 24(2) of the Forensic Provisions Act, that MZ had a mental condition, namely dementia, and that the current arrangements for his continued care, treatment and detention as a forensic patient under the limiting terms imposed by Payne DCJ should remain unchanged.

34. On 8 August 2014 the Tribunal determined that MZ had not become fit to be tried for the second index offences, and would unlikely be fit to be tried within 12 months of that date.

35. On 24 October 2014 a second special hearing was convened in the District Court under s 21A of the Forensic Provisions Act and, after a qualified finding of guilt in respect of the second index offences, on 19 December 2014 Yehia DCJ imposed further concurrent limiting terms under s 23 of the Act. It is those limiting terms that are due to expire on 18 December 2017.

36. Her Honour accepted that MZ entered the room where his friend was sleeping and, after removing her underwear, inserted his fingers into her vagina and sucked her nipples. Her Honour considered the objective seriousness of the offences at the lower end of the range on the basis that the assaults were of short duration and perpetrated simultaneously and “opportunistically in the true meaning of the word”. She also noted MZ immediately desisted on being confronted.

37. Her Honour's further finding that MZ’s moral culpability was significantly reduced by reason of his intellectual disability and his dementia was supported by a body of medical evidence, including an updated report from Ms O'Neill, a transcript of the evidence given by various medical practitioners during the fitness hearing before Mahoney DCJ in November 2013 and a transcript of the special hearing before Payne DCJ in August 2013. Her Honour also noted a report from the psychiatry registrar at the Long Bay Hospital which confirmed MZ’s diagnosis of multi-infarct vascular dementia with increased confusion and forgetfulness following a stroke. Her Honour also took into account that MZ’s deteriorating condition and that he will likely become more disinhibited as his symptoms worsened, with the likelihood that on his release he will reside in a structured care facility as he was simply too unwell to live independently. Finally, her Honour noted that MZ was not suitable to be housed in the general population due to his frailness and his need for regular medical input and that he should be detained in the ACRU.

38. Further reviews by the Tribunal in February 2015 and August 2015, pursuant to s 46(1) of the Forensic Provisions Act, did not result in any alteration to the arrangements for MZ’s detention that had, by that time, been in place for over three years. At the hearing before the Tribunal in August 2015, the Tribunal noted evidence from the nurse unit manager that:

If [MZ] was to be released into the community, he would need to be housed in supported accommodation where he would receive assistance with his medication, laundry and monitoring.

46. At a review on 4 February 2016 the Tribunal considered MZ's plans for conditional release including his ongoing fitness to stand trial. The Tribunal noted MZ's daughter’s (Ms Z) fervent wish that her father should live with her and her family once his limiting term expired on 18 December 2017, but also noted the view of MZ’s treating team that a suitable nursing home placement would be more appropriate to ensure a high level of supervision and monitoring. The Tribunal also recommended that MZ continue to be detained in the ACRU or the Kevin Waller Unit of Long Bay Hospital to receive necessary care and treatment in the meantime.

47. On 4 August 2016, in a further review by the Tribunal attended by MZ's daughter by telephone and other mental health professionals, including a representative of the Mental Health Advocacy Service, it was noted that MZ had been transferred to the Kevin Waller Unit and, following an initial period of apprehension, that he had reportedly settled in well and did not present with any management problems. The Tribunal also noted that although MZ had not been formally risk assessed, because of his increasing frailty he did not present a risk of doing harm to himself or others. His activities within the Unit at that time were limited to watching television and whilst outside the Unit his focus was on the garden.

48. MZ’s treating geriatric psychiatrist, Dr Reutens, updated her earlier reports noting that upon administering the Rowland Universal Dementia Assessment Scale MZ scored 21/30 with “deficits in memory, praxis and visuoconstruction”, a score which represented a decline when compared with his previous assessment, including a decline in cognition. Dr Reutens also confirmed a diagnosis of vascular dementia and MZ’s continuing unfitness to stand trial. Further, she reported:

The natural history of dementia is of a continued decline in cognition. The clinical picture varies with each individual, with some demonstrating significant impairments of judgment, personal boundaries and difficulties inhibiting behaviour. However, apathy is also common as the incidence increases with progression of dementia.

[MZ] appears to have a slowly progressing dementia, which has not been complicated by impulsivity disinhibition. At the present time the dementia does not affect his risk of reoffending.

49. The Tribunal again noted Ms Z’s commitment to having her father live with her in the family home when his limiting term expired, or earlier if he were to be conditionally released, and the steps she had taken to be appointed her father's legal guardian and Enduring Power of Attorney as well as seeking a financial management order on his behalf. Ms Z stated her resistance at that time to having her father placed in an aged care facility in the community on the strength of which Dr Reutens reported that the treating team were no longer looking for alternative accommodation for him.

Applications before the Tribunal for conditional release

50. On 23 January 2017 MZ’s treating team filed a Notice of Intent with the Tribunal requesting a conditional release to MZ’s daughter under the care of the Blacktown Specialist Mental Health Service for Older People.

51. A further review by the Tribunal on 3 August 2017 was attended by MZ and his solicitor. A number of healthcare professionals were in attendance as was Ms Z and her partner.

52. The Tribunal noted Dr Ellis’s reported views that a conditional release to enable MZ to live with his daughter would not seriously endanger the public. Dr Watt, the staff specialist psychiatrist at the ACRU, agreed with Dr Ellis’s conclusion. He also noted that MZ’s physical frailty reduces his risk of harm to others, with any risk being susceptible to management with supervision.

53. The Tribunal considered evidence from MZ’s treating team concerning the difficulties it had encountered finding a community health service that would accept MZ as a client, and their further assessment that under the close management he is receiving in the Kevin Waller Unit he constitutes no risk to himself or others. In their reasons for determination the Tribunal noted as follows:

Dr Watt has also explored a number of other alternative avenues. These include a referral to the Aged Care Service at Nepean (which is also geographically close to [MZ’s] home at Mt Druitt). However that service said that they were at capacity and as [MZ] was out of area, they could not accommodate him. Dr Watt spoke with Dr John Basson who also reviews other forensic patients through the Merrylands Community Health Service. Dr Basson does not have the capacity to take on an additional out of area referral. There have been discussions with the Mt Druitt Aboriginal Medical Service. However that Service said that they refer to the Blacktown Community Mental Health Service for people with mental health difficulties. There have been conversations with the Community Justice Program who said that [MZ] is too old to meet their admission requirements and in addition, that Service is in the process of transitioning all of its clients to the NDIS and so it is not an appropriate time to take on additional clients.

The only other option is for Dr Andrew Ellis to see [MZ] as a private patient. Dr Ellis is willing to do this.

The Tribunal raised the question of whether an ACAT assessment would offer additional clinical evidence of [MZ’s] need for a SMHSOP service. However Ms Stoupas said that ACAT would not provide an assessment where the proposed discharge was for a service at home rather than in a nursing home environment. [MZ] has had an assessment by both Dr Sims and Dr Watt and the Occupational Therapist at Corrective Services. [MZ’s daughter] also told the Tribunal that she had made arrangements for adapting her home to put in railings, a ramp and hand rails as well as purchasing a mobility scooter for her father.

54. On 24 August 2017 MZ’s treating team withdrew its application for MZ’s conditional release due to "issues with the discharge plan".

55. On 30 August 2017 MZ’s legal representatives filed a Notice of Intent for MZ to be conditionally released to live with his daughter and also to be under the care of the "relevant local community mental health team”.

56. By letter of 20 September 2017 the Tribunal were advised by the Crown Solicitor that it had received instructions from the Attorney to apply to the Court for an extension order under the Forensic Provisions Act unless suitable supervision by a community mental health team had been confirmed before the expiry of his limiting terms.

57. On 12 October 2017 the Tribunal reviewed MZ's application to be conditionally released to live with his daughter. The Tribunal again heard evidence from a number of healthcare professionals and MZ's daughter. The Attorney was represented at the hearing and opposed the application, having commenced proceedings in this Court on 11 October 2017. Although the Attorney had been furnished with the first risk assessment report commissioned from Ms Dewson by the time of the review, it was not produced in the hearing and, so far as the Court can discern, no reference was made to it in the submissions the Attorney advanced in opposing MZ’s application for conditional release.

58. In the consideration the Tribunal gave to Dr Ellis’s report, they noted that he had visited the family home of MZ’s daughter describing it as a Housing Department home in which Ms Z lives with her partner and two sons aged 14 and 17. The Tribunal accepted the teenagers were under a very strict domestic regime instituted by their mother. All of the family members indicated there keenness to have MZ reside with them. The house has four bedrooms with rails in the house, including in the bathroom. The intention is that MZ have the bedroom closest to the bathroom. Dr Ellis also noted that the home included a backyard and shed where it was hoped MZ might resume work on model cars, a previous hobby. There are animals in the home which were also cared for by the family.

59. The Tribunal noted that Dr Ellis understood that were MZ to live under the supervision of his family he would be unlikely to have any contact with females on their own or young children and, in any event, that the arrangement was that there would be an adult in the home to supervise MZ at all times. Dr Ellis noted MZ’s limited mobility and considered the planned supervision to be feasible. However, it was Dr Ellis’s concluded view that:

… release under supervision of the MHRT would be preferable in order to monitor responses to community living in cooperation with supervision, rather than a precipitous discharge at the end of the limiting term.

60. In Ms Z’s letter to the Tribunal she undertook to provide her father with 24 hour supervision, because being aware of his fragile mental state, she appreciated that he was not capable of leaving the house without her, it being too dangerous to him to go anywhere by himself. She undertook to ensure her father had regular appointments with his general practitioner and to obtain a referral to a local geriatrician.

61. Ms Z gave evidence before the Tribunal. Under questioning as to her health and that of her family she advised that her youngest son suffers from cardiac arrhythmia and that both sons are receiving treatment for ADHD. She also advised that she was prescribed a neurological drug to deal with pain associated with a car accident some time ago. Ms Z’s partner gave evidence that he had been in a relationship with Ms Z since 2006, that he assisted in the domestic management of the house and would be willing and able to assist with supervising MZ and attending to his care in the event that his partner was not available.

62. The Tribunal also noted that Dr Ellis described MZ’s neurocognitive disorder as mild in his assessment of him as at March 2017 since although he required nursing or family care for needs such as housework, managing money and legal tasks, he retained abilities in basic living skills such as feeding and dressing. Dr Ellis also noted that MZ did not present with any obvious mood anxiety or psychotic symptoms. He recommended regular geriatric and other specialist medical reviews, including a referral to the local Community Aged Care Mental Health Team which would allow for additional monitoring of MZ’s situation.

63. The Tribunal acknowledged receipt of a letter from Dr Doolabh, an old age psychiatrist at the Blacktown Specialist Mental Health Service for Older People, who identified herself as the practitioner who would be involved in MZ’s care in the community under the team leadership of Mrs Chandra. Dr Doolabh expressed some reservations about the extent to which MZ’s daughter could provide the necessary supervision in the family home, noting her preference (and that of the treating team) that he be discharged from custody conditional upon his reception into an aged care facility. The Tribunal also noted the views of Dr Spencer, the acting Clinical Director of Custodial Mental Health, who attended at the hearing in substitution for Dr Watts who was on leave. She confirmed that the withdrawal of the conditional release plan in August 2017 was due to concerns about MZ’s placement in the community. She informed the Tribunal that there had been discussions with his family about the team's preference for MZ to be in a facility where he would have more support and supervision and noted that the family expressed some reluctance about that option. She said the views of the family were taken into account and, that being the case, the location of a suitable facility had not been actively pursued. Ultimately, Dr Spencer was of the view that MZ would be better managed in an aged care facility where supervision was provided as part of the amenity.

64. In his evidence, Dr Ellis addressed the fact that at the time of the preparation of his report in March 2017 no community service had been identified. He acknowledged the concerns in Dr Doolabh’s recent letter and confirmed his assessment that MZ “needed professional support, not just family support”. He considered that the proposed community management was not inappropriate so long as the community service sector and Justice Health coordinated a release plan. It appeared to him that their communication to date had been limited. He expressed the opinion that it would be an unsatisfactory outcome for MZ be released into the community on 18 December 2017 with no community support.

65. On 25 October 2017 the Tribunal refused MZ's application for conditional release.

66. In refusing the application, the Tribunal noted its obligation under s 43 of the Forensic Provisions Act, to be satisfied that:

(a)  the safety of the patient or any member of the public will not be seriously endangered by the patient’s release, and

(b)  other care of a less restrictive kind, that is consistent with safe and effective care, is appropriate and reasonably available to the patient or that the patient does not require care.

67. The Tribunal also noted its obligation to consider the matters specified under s 74 of the Forensic Provisions Act when determining what order should be made. Those subsections provide as follows:

Without limiting any other matters the Tribunal may consider, the Tribunal must have regard to the following matters when determining what order to make about a person under this Part:

(a)  whether the person is suffering from a mental illness or other mental condition,

(b)  whether there are reasonable grounds for believing that care, treatment or control of the person is necessary for the person’s own protection from serious harm or the protection of others from serious harm,

(c)  the continuing condition of the person, including any likely deterioration in the person’s condition, and the likely effects of any such deterioration,

(d)  in the case of a proposed release, a report by a forensic psychiatrist or other person of a class prescribed by the regulations, who is not currently involved in treating the person, as to the condition of the person and whether the safety of the person or any member of the public will be seriously endangered by the person’s release,

(e)  ...

68. In the view of the Tribunal, supervision and monitoring of MZ were considered necessary both for his protection from serious harm and for the protection of others from serious harm in circumstances where his mental condition is likely to further deteriorate over time. In reviewing the reports tendered on the application, the Tribunal emphasised that Dr Ellis and Dr Spencer considered that 24 hour supervision was “the core” or “the crux” of ensuring against the risk of a situation presenting where a vulnerable person might be at risk of serious harm from MZ were he to make an impulsive and opportunistic sexual advance. The Tribunal was of the view that despite MZ’s daughter’s strong desire and capacity, as she saw it, to supervise her father as a member of her extended family within the family home, the control she would need to exercise with her father as a member of the family in permanent residence was “more complex then she was able to acknowledge”. Ultimately, the Tribunal was satisfied the supervision of MZ in his daughter’s home would not be adequate to protect against the risk of serious harm to others.

69. In the result, the Tribunal formally declined to make an order for MZ's conditional release on the basis that the proposed conditional release plan for MZ to reside with his daughter would not ensure the safety of MZ or any member of the public. The decision was expressed as follows:

Having reviewed [MZ] on 12 October 2017, and having regard to sections 43, 46 and 47 of the Mental Health (Forensic provisions) Act 1990, and s 68 of the Mental Health Act 2007 the Tribunal is satisfied that there are reasonable grounds for believing that the present arrangements for care, treatment and control of [MZ] are necessary and sufficient for the protection of [MZ] from serious harm and/or for the protection of others from serious harm.

The Tribunal makes no further order and confirms the current arrangements for care, treatment and detention.

Ms Dewson’s assessment reports (cl 7(2)(c))

70. Ms Dewson was furnished by the Crown Solicitor with a compendium of material, inclusive of various reports from mental health practitioners and the successive determinations of the Tribunal up to and including 4 August 2016. On 31 July 2017 she furnished her first report.

71. Ms Dewson interviewed MZ on 19 July and 26 July 2017 and administered psychometric testing facilitated by a clinical psychologist at the Long Bay Correctional Centre. She noted that MZ’s presentation was consistent with historical cognitive assessments which placed him in a category suggestive of an intellectual disability. She also noted that MZ had failed to develop basic literacy and numeracy skills but that otherwise he had not deviated from a natural developmental outcome from early adolescence to early adulthood.

72. Ms Dewson noted that after leaving school MZ worked as a cleaner for six years and thereafter in several nonskilled factory positions on a casual contractual basis before being advised to medically retire from work as a result of his heart condition. At the time of his arrest for the first index offences MZ was a recipient of the Disability Support Pension.

73. She also considered MZ generally to be a poor historian and that he seemed to experience difficulty with temporal specificity. She also noted his apparent hearing loss as he frequently asked questions be repeated and that his dentures became loose on occasions interrupting his speech.

74. Given concerns about MZ’s reliability as an historian Ms Dewson sourced primary records which confirmed he suffered from a range of physical conditions including, ischemic heart disease, hypertension (a permanent pacemaker in situ), poliomyelitis, benign prostatic hypertrophy, gastro reflux disease, dyslipidaemia, angina and osteoarthritis. In addition, he has poor vision and hearing and was treated for a fractured hip after a fall in custody.

75. In reporting upon MZ’s relationship history and social functioning Ms Dewson noted that although MZ has been married twice he perceives himself as having "no luck" with romantic partners. She also noted that his second wife was with him for 37 years before she terminated the relationship. Despite the fact that his former wife has remarried she remains in daily contact with him. Although he has not seen two of his three children for some years he has been in close and regular contact with one of his daughters who, in Ms Dewson’s assessment, was a significant support for him.

76. MZ was unable to provide an estimation of his historical level of libido but denied engaging in masturbation or accessing pornography. He was unable to recall his sexual behaviours at the time of the index offences. At the time of assessment he described his current level of libido as very low and denied experiencing any arousal or sexual interests, in particular any sexual attraction to children.

77. Ms Dewson reported that:

[MZ] provided insufficient information to draw any significant conclusions relating to his current or past sexual functioning. It is possible that he experienced deviant sexual arousal (eg sexual arousal to children and/or non-consenting sexual contact) although there is limited evidence to support this. He did not provide any information to suggest that he experienced hypersexuality or impersonal sex. Given that [MZ] has offended against an adult and a child, it is possible that he became sexually aroused to the victims at the times of the offences, and was unable to manage his level of arousal. It is possible that he experienced sexual entitlement at the time of offending, and it is possible that this allowed him to overcome any moral objections that he may have otherwise had.

78. Ms Dewson reported that MZ wanted to live with his daughter where he would “build a chicken cage" and spend his days looking after and raising his "chooks". He acknowledged that his daughter would be his primary carer and that she would ensure he attended medical appointments and that he cooperated with any prescribed treatment. In considering this information Ms Dewson reported as follows:

… Outside of this, [MZ] did not feel that he required further support and had no other significant goals. Given [MZ’s] age and failing health, his lack of goals for the future does not appear concerning, although he may benefit from engaging in leisure activities where he can interact with individuals with similar interests and of a similar age.

79. Upon administering a number of psychological and psychometric assessments, Ms Dewson reported that MZ’s level of intellectual function was extremely low, that his non-verbal and visuo-construction reasoning was extremely low and that there were cognitive deficits across all domains consistent with an intellectual disability. Upon recognising that MZ was, according to other diagnoses, suffering dementia Ms Dewson administered a test specific to auditory memory, visual memory, immediate memory and delayed memory, on each of which MZ scored in the extremely low range.

80. After taking into account current static risk assessment tests and MZ’s dynamic risk factors, together with what Ms Dewson identified as factors protective against risk, she considered that he posed a low to moderate risk of reoffending. She reported further as follows:

… [MZ’s] primary risks relate to deficits in sexual self-regulation and intimacy. Given the nature of [MZ’s] offending, it seems that any offences in the future could be against female children or female adults. It is likely that these will occur within the context of the victim experiencing vulnerability (such as through age, disability or intoxication) and then manipulating the environment or individuals to create a situation where he is alone with them. The age of the victim is unlikely to be a consideration for [MZ] when potentially selecting future victims, but rather any female with whom he has the capacity to isolate when he is experiencing sexual arousal. Given his age and health status, physical violence is not likely to be a central factor in [MZ’s] offending, although psychological coercion in the future cannot be ruled out. Based on the information provided, [MZ] appears to deny his offending behaviour, and thus his level of insight into his offending is unknown. Based on this, it is assessed, in my opinion, that [MZ] is a Low-Moderate risk of sexual reoffending.

81. Ms Dewson was ultimately of the opinion that MZ’s risk of reoffending remained stable at a Low-Moderate level despite the acknowledged fact that dynamic risk factors are amenable to change, according scope for their mitigation and management. She was also conscious that given MZ’s lack of awareness into his offending, his ongoing level of denial and his unsuitability given his age and other factors for treatment programs specific to sexual offending, that there was no available evidence that his risk is likely to reduce in the foreseeable future. It follows that if it is determined by the Court that he requires extension as a forensic patient to manage his risk, the risk is likely to be enduring.

82. Ms Dewson was invited in the retainer letter from the Crown Solicitor to comment upon the extent to which any psychological or psychiatric condition, in diagnostic terms, affected MZ’s risk of reoffending, as to which she said:

An intellectual disability within itself is not considered to be a risk factor related to re-offending. In this case, however, [MZ] appears to experience difficulty integrating socially with others. [MZ’s] intellectual disability is likely, at least in part, to contribute to these difficulties which have resulted in social exclusion and difficulties in long-term romantic relationships. Again, whilst dementia is not considered to directly impact his risk, [MZ] may experience cognitive confusion, disinhibition and impaired judgment relating to boundaries as a result of his declining cognitive capacity. In this regard, [MZ’s] psychological conditions appear causally related to his offending, although it does not explicitly impact on his risk rating.

83. When asked to address strategies which might be implemented upon his release from custody as protective measures against risk, Ms Dewson recommended that MZ be transitioned into the care of a family member or into a facility that can assist with his self-care and in managing his medical requirements. She also recommended that he be offered opportunities to engage socially with peer appropriate individuals and, if possible, with people who function cognitively in a similar level. As concerns his sexual wants or needs, she recommended that he have the opportunity to discuss them with a professional trained in the treatment of sexual offenders such that he might be provided with education on healthy sexual functioning.

84. When asked to address specifically whether any risk of MZ causing serious harm to others could be adequately managed by less restrictive means than his continued detention, Ms Dewson re-emphasised that on the information available to her, MZ posed a low to moderate level of risk of sexual offending and that she had insufficient evidence from which to conclude that he poses an unacceptably high risk of causing serious harm should he cease to be managed as a forensic patient in a correctional setting.

85. On 7 November 2017 Ms Dewson was briefed by the Crown Solicitor to prepare a supplementary risk assessment report. The Crown Solicitor provided Ms Dewson with some materials additional to the material she had been supplied with for the purposes of the July report. Those materials included the Tribunal's reasons of 25 October 2017 for refusing MZ’s application for conditional release. Ms Dewson was also provided with Dr Ellis’s psychiatric report of 9 March 2017 and a determination by the New South Wales Child Protection Registry, dated 14 September 2017, to the effect that MZ would become a registrable person upon his release from detention and that his reporting obligations would remain in place for 15 years.

86. When referring to Dr Ellis's report Ms Dewson noted as follows:

… Dr Ellis provided a summary of [MZ’s] circumstances, and this information was consistent with information provide to me in other sources. It was noted that Dr Ellis consulted with [MZ’s] treating physicians, during which [MZ’s] nurses reported having no significant concerns about [MZ’s] behaviour. There were reportedly two incidents on record relating to [MZ] engaging in “inappropriate touching”, although he was responsive to feedback about this and there was no enduring pattern of this behaviour. As part of Dr Ellis’ assessment, he consulted with [MZ’s] daughter … and engaged in a home visit on her property. Dr Ellis noted that [MZ’s daughter] is on a Disability Support Pension (DSP), although he did not consider that this should preclude her from caring for her father, and also he noted that [MZ’s daughter] would be supported by her partner in supervising [MZ]. During the home visit, it was reported that [MZ’s daughter] said she had very few visitors attend the house, and that they had no child visitors. Despite this, residing with [MZ’s daughter] is her 16 and 14 year old sons, who were consulted by Dr Ellis and they were reportedly happy to have [MZ] live with them. [MZ’s daughter’s] house and yard were assessed by Dr Ellis, and he considered them as being in satisfactory condition. Dr Ellis in his report commented that [MZ’s daughter] and her partner support [MZ’s] innocence, although he noted that they were willing to place limitations on him, as required.

87. After taking into account the supplementary material Ms Dewson concluded that MZ remained at an overall low to moderate risk of reoffending and that, in her view, he did not pose an “unacceptable” risk of reoffending sexually. She noted that his static risk factors would only change in the event that he was charged or convicted of further sexual offences involving a male victim, a stranger victim or if non-sexual violence occurred within the context of sexual offending. She did not envisage any significant changes to his dynamic risk factors, with the possibility that some dynamic risk domains will become more pertinent as his mental health declines, although those changes would not, in her opinion, be significant such as to raise his overall risk level.

88. She also expressed the view that the supplementary information highlighted for her the complexities of managing MZ in the community, as to which she said as follows:

… The interplay between [MZ’s] physical health, neuropsychological condition (which appears likely to deteriorate), and his risk of sexual reoffending place [MZ] in a position where no one service appears able to provide him with adequate management. The information, however, does not, in my opinion, suggest that [MZ’s] risk is sufficiently high to meet the criteria for extension of forensic status pursuant to Schedule 1 of the Mental Health (Forensic Provisions) Act 1990.

89. In light of these complexities as she had described them and, in particular her concerns for MZ’s potential impulsivity, Ms Dewson considered that supervision in the community was warranted. She signalled her awareness that Ms Z supports her father's innocence. She did not consider that to be significant, it being her experience that sexual offenders are often released to live with family who denied their offending behaviour. In her view, of far greater significance was MZ’s daughter's willingness and capacity to provide her father with an adequate level of supervision. She considered it unrealistic that MZ’s daughter should be expected to supervise her father on a constant basis, neither did she consider it was warranted. Again, of greater relevance, in her view, were the specific risks that MZ poses and how these can be managed. By way of example, in considering the risk that MZ might spontaneously offend against children, Ms Dewson was of the view that he could be the subject of constant supervision at times when he is around children, were that to occur in the family home. I note that Dr Ellis was told by MZ’s daughter that the family received no regular visitors and, specifically, no children visited the house and that his adolescent grandsons were not permitted by their mother to have girlfriends, although, as the Tribunal noted, Ms Z did say a teenaged girl had visited the house. Risks relating to MZ becoming disoriented and absconding could, in Ms Dewson’s view, be similarly be managed by fitting physical restrictions (such as locked gates or motion sensors) to the house. The combination of physical prevention measures (including things such as locks on bedroom doors to prevent MZ accessing those living in the house during sleeping hours) was, in her view, sufficient to protect MZ and the community. She considered that level of supervision as more realistic than “constant line of sight” supervision. I note that the level of supervision at the Fairfield aged care facility is consistent with what Ms Dewson considers appropriate, including, in particular, that it is a secure facility.

90. Ms Dewson confirmed the recommendation in her earlier report that community-based agencies assist in the care and supervision of MZ with ongoing risk assessment for acute risk factors related to reoffending. She noted Dr Ellis's willingness to provide that assessment on a private basis.

Consideration

91. The gravity of MZ’s past sexual offending as it is reflected in the index offences in 2007/08 and 2012 should not be understated. However, in the collective view of Dr Ellis, Dr Watt and Ms Dewson, the late onset of serious criminal offending and its opportunistic and impulsive nature was most likely the result of executive function impairment related to the dementing process.

92. That being the case, because of the persisting nature of MZ’s cognitive impairments and progressive dementia, the evidence before me well supports a finding that any further sexual offending by MZ would also constitute serious harm.

93. The question that has to be confronted, however, is whether the Attorney has satisfied me, to a high level of probability, that there is an unacceptable risk of MZ causing serious harm of that kind were he released on 18 December 2017 at the expiration of his limiting terms.

94. Although the role and function of the Tribunal and the test it was required to apply under s 43 of the Forensic Provisions Act, namely whether there were reasonable grounds for the Tribunal to believe that care, treatment or control of MZ was necessary for the protection of others (or himself) from serious harm, is different from the jurisdiction this Court is called upon to exercise under cl 2 of Sch 1, I accept that the objects of the Act have equal application in both contexts, including to protect the safety of members of the public.

95. That said, the first limb of the test in cl 2 of Sch 1 as it is engaged in this case is not whether there is some measure of risk of MZ causing serious harm to others by reoffending sexually, or even a risk (currently unidentified) that he might cause serious harm to others of some other kind or himself; the test is whether I am satisfied, to a high degree of probability, that there is an unacceptable risk of MZ causing serious harm by sexual reoffending if released into the community.

96. In dealing with that issue, the Attorney, who had the persuasive burden, is confronted with the risk assessment reports commissioned from Ms Dewson in July and November 2017 (material I am obliged to take into account in cl 7(2)(c)) and Ms Dewson’s unwavering conclusion that will MZ does not pose an unacceptably high risk of causing serious harm to others should he cease to be managed as a forensic patient, and her further view that upon his release from custody he should be transitioned into the care of and under the supervision of his daughter or an aged care facility, where his medical conditions can be managed and where he can be assisted with self care.

97. While it is well recognised that actuarial risk assessment techniques are not definitive of whether a person will reoffend (in this case such as to cause serious harm to others), they do provide the Court with some guidance as to the degree of risk and they are, as Dr Ellis pointed out, superior to unaided clinical impressions. It was Dr Ellis’s view that although actuarial scales tend to more accurately identify low risk offenders, the scales are of potentially limited relevance in older age populations.

98. As I have already emphasised, in substantial reliance upon the results of actuarial risk instruments, Ms Dewson was firmly of the view that although MZ poses a low to moderate risk of reoffending, it was a level of a risk which, in all the circumstances, in particular given MZ’s age and physical frailty, would not amount to an unacceptable risk of him causing serious harm to others were he to be released to live in the community under the primary supervision of his daughter, with his daughter availing herself of support services in the community. While I am not assisted by any consideration Ms Dewson or Dr Ellis might have been able to give to the suitability of the Fairfield Aged Care Home as a suitable residential environment in which his care and treatment needs can be addressed, or its suitability as a secure environment as a further protective measure against the risk of opportunistic sexual offending, I do note their concerns that there should be supervision of a suitable kind to protect against the assessed low-moderate risk of MZ reoffending, whether by unsupervised contact with females or by his absconding into the community where he would be at large.

99. It was also Dr Ellis’s view that although MZ’s overall profile raised concerns centred around sexual disinhibition and cognitive dysfunction (which places him at similar concern to other elderly offenders who tend, as a group to be at low risk of repeated sexual behaviour) any risk of physical endangerment to others would be very low in a supervised structured environment with intervention where necessary to manage that risk. When coupled with MZ’s current physical frailty and in the absence of any recorded history of physical violence, Dr Ellis concluded there were "few risk factors associated with future offending other than those related to impulsivity (relating to his cognitive impairment) and his diagnosis of major mental illness (neurocognitive disorder).

91. Dr Ellis went onto report that:

[MZ] accepts supervision and assistance. Personal supports and professional services are available that are appropriate to his needs. With treatment and rehabilitation in a secure nursing home environment these factors can be ameliorated, particularly his response to supervision.

101. Dr Ellis also noted that although MZ continued to deny the sexual offending that did not lead him to refuse engagement with services neither did it retard his prospects of rehabilitation. Dr Ellis considered whether MZ had a premorbid diagnosis of psychosexual disorder, but resolved to the view that it was unlikely to have any impact upon management decisions at this point in his life owing to his physical and mental condition.

102. In short, I am not persuaded on the evidence before me, that the Attorney has discharged the onus of satisfying me to a high degree of probability that there is an unacceptable risk of MZ causing serious harm to others by committing or attempting to commit a sexual offence were he released from custody upon the expiration of his limiting term.

103. The parameters or standard of the risk of a forensic patient causing harm to others being unacceptable, is a evaluative task which necessitates the Court undertaking its own assessment of the person’s past conduct and his predicted future behaviour. In this case, both parameters have been compendiously addressed in the materials before me.

104. I am fortified in the conclusion that I have reached by the valuable insights of Dr Ellis and Ms Dewson, both of whom independently conclude that in applying their clinical skills and their practical expertise with sex offenders, MZ’s risk of reoffending is low and is likely to endure at that level given the progressive nature of his various physical and mental disabilities and his advanced age.

105. While I have also given close consideration to focused insights of the Tribunal in the successive reviews of MZ’s candidacy for conditional release since 2016, I am obliged to determine the question raised by the Attorney’s application on the evidence as it presents to me at this time. As I have already noted, the Tribunal did not have available to it the comprehensive risk assessment undertaken by Ms Dewson - an analysis upon which I have placed considerable weight.

106. In concluding that the Attorney's application for an interim extension order must be refused because the first limb of the test in cl 2(1) of Sch 1 is not met, I should not be taken to have disregarded the test that is engaged by the second limb.

107. Counsel for MZ did not seek to contradict the unanimous view of all practitioners and others that have been involved in MZ’s care and treatment needs as a forensic patient, that he requires supervision upon his release from custody as a protective measure both to guard against the risk of harm to himself and harm to others. In her submission, however, the proposal that he reside at the Fairfield Aged Care Home, and the willingness of his extended family to closely supervise him should he be residing for any temporary periods within the family home, is a proposed management regime that more than adequately manages or mitigates any risk of his causing serious harm to others.

108. In her submission the community's legitimate interest in being protected from harm is outweighed in this case by the community's interest in not having MZ confined further in a correctional setting rather than having the opportunity to take his place in the community and with his family, albeit under practical and necessary restrictions on his liberty.

109. It is counsel’s further submission that the Attorney's submitted position in these proceedings to the effect that the level of supervision available in MZ’s daughter’s home is inadequate (in essence for the same reasons the Attorney submitted before the Tribunal in opposing his conditional release in October 2017) should be treated by the Court with reserve. In particular, she submitted the Attorney should not be heard to invite the Court to defer to the default position that MZ remain in the custodial setting as a forensic patient without having undertaken more thorough investigations as to supervised care options, the more so when the risk assessment reports the Attorney commissioned assess MZ as a low to moderate risk of reoffending given his age, physical frailty and other considerations. Counsel further submitted that it is not open to the Attorney on this application to submit that the Court should make the interim extension order so as to allow for the Tribunal to undertake a further review of his suitability for conditional release to that facility, when the Court is suitably placed to make that judgment and the letter of acceptance from the Fairfield Aged Care Home received by the Court and served on the Attorney after the preliminary hearing has not attracted any further submissions.

110. Finally, as I noted earlier, MZ is a Registrable Person under the Child Protection (Offenders Registration) Act. He will be required to report to his local police station within seven days of his release from custody to provide relevant personal information including, amongst other things, the address where he will reside and details of any child living in the premises. MZ will then need to report annually for 15 years unless there are changes in his personal information as to which he is required to report between 24 hours and seven days depending upon the nature of those changes.

111. Since it is clear that MZ has a disability which renders it impracticable for him to comply with this reporting obligation, his guardian or carer (in this case his daughter) will lodge the report on his behalf.

112. Contrary to the Attorney’s submission, I am satisfied that since Ms Z will be responsible for making decisions about her father's healthcare and other personal services, including where he will reside; providing consent to the carrying out of medical or other treatment for him; executing instruments in his name and undertaking any other functions consistent with her appointment as his Enduring Guardian and Enduring Power of Attorney (see generally s 6E of the Guardianship Act 1987 (NSW) and s 43 of the Powers of Attorney Act 2003 (NSW)), she will conscientiously and with care, consideration and determination supervise her father within her home both by attending to his care and treatment needs and protecting him and others against the risk of harm.

Orders

113. I make the following orders:

1. Save for the relief sought in paragraph 4 of the Summons filed on 11 October 2017, the Summons is dismissed.

2. I make an order in accordance with paragraph 4 of the Summons filed on 11 October 2017:

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

3. I further order that the defendant’s name be anonymised as “MZ” and his daughter’s name be anonymised as “Ms Z”.

4. The plaintiff is to pay the defendant’s costs.

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Decision last updated: 15 December 2017