Attorney General of New South Wales v Boyce (by his tutor Johnson) (Final)

[2022] NSWSC 1124

Supreme Court

New South Wales

Medium Neutral Citation:

Attorney General of New South Wales v Boyce (by his tutor Johnson) (Final) [2022] NSWSC 1124

Hearing dates:

17 August 2022

Date of orders:

17 August 2022

Decision date:

17 August 2022

Jurisdiction:

Common Law

Before:

Hamill J

Decision:

(1) Pursuant to sections 121, 127(1)(a) and s 128 of the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW), the defendant is subject to an order for the extension of his status as a forensic patient for a period of four years from 17 August 2022.

(2) Access to the two court appointed experts’ reports be granted to Mr Boyce’s treating team.

Catchwords:

MENTAL HEALTH – forensic patient – extension of status as forensic patient – history of sexual offending against children – where the defendant poses an unacceptable risk of serious harm to others if he ceases to be a forensic patient – defendant cannot be managed adequately by less restrictive means – dispute as to duration of extension order – order made extending status as forensic patient for four years

Legislation Cited:

Child Protection (Offenders Registration) Act 2000 (NSW)

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

Mental Health (Forensic Provisions) Act 1990 (NSW), Sch 1 cl 1

Cases Cited:

Attorney General for the State of New South Wales v Boyce (No. 2) [2017] NSWSC 648

Category:

Principal judgment

Parties:

Attorney General of New South Wales (Plaintiff)
Warren Boyce (Defendant)

Representation:

Counsel:
C Brain (Plaintiff)
J Alewood (Defendant)

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

File Number(s):

2022/30798

EX TEMPORE JUDGMENT (REVISED)

1. Warren Boyce is a forensic patient under s 72 of the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW), which I will call “the 2020 Act”. He was a forensic patient under the legislation that the 2020 Act repealed and replaced, that is the Mental Health (Forensic Provisions) Act 1990 (NSW), which I will call “the 1990 Act”, following the imposition of a limiting term on 6 October 2015 pursuant to s 23 of the 1990 Act.

2. He has lived in the community for about five years in an intensive residential facility, that is since May 2017, although his freedom is greatly restricted because of a variety of legislative provisions and court orders. Specifically, he is on the Child Protection Register and his status as a forensic patient was extended for a period of five years by an order of this Court made by Wilson J on 26 May 2017. That order was made under clause 1 of Schedule 1 of the 1990 Act. [1]

   1. Attorney General for the State of New South Wales v Boyce (No. 2) [2017] NSWSC 648.

3. That order has expired but, on 18 May 2022, Fagan J made interim orders under ss 130 and 131 of the 2020 Act extending Mr Boyce’s status as a forensic patient for a period of three months. The interim order will expire on 25 August 2022, which is next Thursday. The Attorney General seeks orders under ss 121, 127(1)(a) and 128 of the 2020 Act extending his status for a further period of five years. Today is the final hearing and the decision must be made in the next week, and so I have done my best to put together reasons in order to provide a decision and judgment ex tempore. I have to say that my ability to do that has been made possible and enhanced by the diligent efforts of the solicitors and barristers on both sides.

4. Mr Boyce, who is represented by experienced and capable counsel, filed written submissions on 5 August 2022 which indicated that the Attorney General’s application is not opposed. However, it was submitted that the order should only be for a term of three years.

5. Between them, and by consent, the parties tendered two volumes of material referred to as the Judge’s Working Folder and marked Exhibit A. The material included incident reports from the facility in which Mr Boyce resides, various risk assessment and management reports, the decisions of other Judges of this Court, Mental Health Review Tribunal (“MHRT”) and NSW Civil and Administrative Tribunal, NDIS plans, psychiatric notes, Mr Boyce’s criminal and custodial histories and his Child Protection Register obligations.

6. The statutory prerequisites to the making of an extension order are satisfied. [2] Further, Mr Boyce’s concession that the order is appropriate should be accepted. Even though the evidence demonstrates a pleasing response to the strict supervision to which he has been subjected over the last several years and Mr Boyce has committed no offences for almost a decade, I am satisfied to a high degree of probability that he poses, and remains, an unacceptable risk of causing serious harm to others if he ceases to be a forensic patient and subject to the conditions considered to be appropriate and necessary by the MHRT on their six monthly reviews of his case.

   2. See ss 122, 124, 125 and 126 of the 2020 Act.

7. I am also satisfied to a high degree of probability that the risk cannot be managed adequately by less restrictive means, for example, by the provisions of the Child Protection (Offenders Registration) Act 2000 (NSW) or by the recent appointment of the Public Guardian on 21 June 2022 (being Dr Johnson who is present, virtually at least, at the hearing today).

8. In reaching those conclusions, I have considered the relevant matters under s 127(2) in accordance with the 2020 Act.

9. The reports of the qualified psychiatrists, the observations of the MHRT, the evidence of his response to supervision and his criminal and psychiatric histories lead me to be convinced that Mr Boyce remains a danger of committing serious sexual offences against children, which would lead almost inevitably to serious harm, at least of a psychological nature, without the strict supervision provided as a result of his status as a forensic patient.

10. Mr Boyce’s criminal history is substantial, although much of it is not of a particularly serious kind, but there are at least four significant occurrences of sexual offending against children. I do not propose, in the circumstances, to go into the factual detail of all of his criminal history, but the history of aberrant offending is long-standing.

11. In 1980 he was placed on a bond for indecent assault on a victim under the age of 16. In 1997 he was placed on a bond, which he breached, for three counts of indecent assault against a victim aged 11. In 2003 he was convicted of several offences: committing acts of gross indecency and sexual intercourse against victims under the age of 18, as well as indecent assault on a victim under the age of 16 years. That last series of offences resulted in a gaol sentence.

12. The so-called “index offences”, that is the offences that bring Mr Boyce under the purview of the 2020 Act, were committed in September of 2013. They involved committing an act of indecency with or upon a child under the age of 10 and failing to comply with reporting obligations. Mr Boyce was living at a caravan park between May and September 2013. He had not provided his address to police, as required by his Child Protection Register reporting obligations. On 5 September 2013, he was witnessed to be lying on a mattress in a tent and masturbating while watching a 5-year-old boy standing next to him, who was naked from the waist down.

13. Mr Boyce was referred to the MHRT and a qualified finding of guilt was made on the limited evidence available in the District Court by Judge Ellis SC. A limiting term of 3 years was imposed in relation to the act of indecency offence, and a limiting term of 12 months was imposed for the failure to report offence. Throughout this process it became clear, if it wasn’t clear before, that Mr Boyce suffers from a significant cognitive impairment, requires psychiatric and/or psychological intervention, as well as structured and strict supervision, and that without those supports, the chronic, if intermittent, history of aberrant sexual offending would likely continue. It was in light of that background that Wilson J made the order extending Mr Boyce’s status as a forensic patient in 2017.

14. The reports and other documents that have been generated since then, many of which have been tendered on the present application, show that Mr Boyce has largely been compliant with the strict orders and conditions, although his conduct has not been perfect. There has been no improvement in his intellectual disability, and the lack of offending is most likely explained by the strict conditions which infringe upon his liberty simply to move about the community without supervision.

15. I have considered the reports of the court appointed experts, psychologist Dr White and psychiatrist Dr Singh. I accept the opinions contained in those reports, which are not contested, have not been tested in cross-examination and which are, at least generally, consistent.

16. Based on all of the evidence, it is abundantly clear that Mr Boyce remains a risk to the community, particularly to children.

17. Those, in extremely short form, are the reasons why I am satisfied of the matters in s 127 of the 2020 Act and satisfied that Mr Boyce’s concession that his status as a forensic patient must be extended should be accepted.

18. As to the length of the extension, which has been where all of the oral argument has been directed, I intend to take what might be considered to be a parsimonious approach. I accept the submission made by Ms Alewood (who appears for Mr Boyce) that the extension should not exceed that which is necessary. Having said that, what is necessary is a matter upon which minds will inevitably differ. The parties are only two years apart, in that the Attorney General seeks five years as identified in the summons, whereas Ms Alewood submits that it should be three years.

19. In taking this parsimonious approach, I place significant weight on the fact that Mr Boyce has not committed a sexual offence for almost 10 years, although it may be argued that some recent behaviours would constitute offences if charged. Even so, he has generally responded well to supervision. There are promising signs that as he approaches his late middle age his aberrant sexual urges may subside. However the evidence is far from conclusive about that and indeed, as will be seen, there have been recent troubling incidents.

20. The impact of his age was a matter touched upon by Wilson J in her judgment granting the extension order in 2017. [3] Those observations are relied upon by Ms Alewood. However, the observations were, one, made in the context of the chronic nature of Mr Boyce’s conditions (that is, speaking loosely, his intellectual disability and paedophilia) and, two, used conjunctively with the word “infirmity”. While Ms Alewood pointed to a number of medical conditions consistent with Mr Boyce’s advancing age, there is no evidence that his age has impacted on his libido and he cannot properly be described as infirm.

    3. See Attorney General for the State of New South Wales v Boyce (No. 2) [2017] NSWSC 648 at [71].

21. Both counsel today made spirited and helpful submissions as to the length of the order and I have considered them carefully, along with the evidence to which both counsel referred.

22. The experts have offered somewhat divergent opinions, although all of them are of the view that there is no likelihood that Mr Boyce’s psychological condition or paedophiliac tendencies are likely to abate. All suggest that the extension order should be of at least three years’ duration.

23. Dr White, in a passage to which I was taken by Ms Brain who appears for the Attorney General, provided the opinion that the extension to his status as a forensic patient should be “at least three years”. Dr Singh, who as Ms Brain submitted provided a more thorough analysis of this issue, said that a period of four to five years would be reasonable. Dr Rodriguez, whose thorough report was used in the application for the interim order granted by Fagan J, was of the view that the extension order should be of five years’ duration.

24. Mr Boyce has, in accordance with the orders made by Wilson J and the conditions thereafter imposed by the MHRT, taken medication to control his libido. They seem to have worked but were discontinued, appropriately I am sure, and while there was no noticeable change in his behaviour for a period after that, there have been three recent incidents in June of this year which raise substantial concerns.

25. Those incidents involved Mr Boyce masturbating in the presence of female staff members at the facility where he is living. The material suggests that Mr Boyce may not have been aware that his medication controlling his libido had been discontinued. I am not sure that that matters much in terms of the dispute between the parties. What is clear however is that inappropriate sexualised behaviour occurred after the anti-libidinal medication had ceased.

26. It is clear and consistent throughout the material that there is nothing upon which a finding could be made that Mr Boyce’s intellectual disability will ever abate. It is also clear that his paraphilia is being managed rather than cured. I have to take into account those recent incidents of masturbation in front of female staff. Those incidents may not be considered particularly serious, at least relative to the past offences committed against children, but they reflect a distinct lack of insight on Mr Boyce’s part into his sexual behaviour and, significantly, the impact of that behaviour on other people. It is simply wrong to suggest that such behaviour may not have a serious impact upon those to whom it is directed.

27. I do accept to a limited degree Ms Alewood’s submission that there is no downside to reducing the term of the extension order to three years, but that submission, which is predicated on the capacity of the Attorney General to make another application in three years’ time, must be considered in the light of Mr Boyce’s chronic difficulties and upon the duty now cast upon me to make a determination as to the appropriate length of the order based on all of the evidence and the chronic conditions Mr Boyce suffers.

28. I am not able to accept Ms Alewood’s submission that other forms of control, such as the recent involvement of the Public Guardian, have, or are even close to having, the same capacity to manage the risks established by the evidence. Let it not be forgotten that the primary risk is that sexual offences will be, or may be, committed on young children with potentially lifelong and devastating impacts.

29. Having said that, the experts’ opinions are based on their assessment of risks and on the probabilities of further offending. They are not based on the statutory prerequisites for the making of orders such as these, which have a very high intrusion on a person’s liberty, in circumstances where such a person has already served the punishment, or limiting term in this case, considered appropriate by a sentencing judge.

30. Satisfaction under the legislation requires “a high degree of probability” and that is not, as I read the reports, the way that the issue is approached by any of Dr White, Dr Singh or Dr Rodriguez.

31. What the situation may be in three years’ time or five years’ time is very difficult to predict given Mr Boyce’s advancing age and, as Ms Alewood pressed upon me, the fact that a number of the management strategies currently in place are still in their infancy.

32. I also have to take into account that Mr Boyce’s period of non-offending, while significant in assessing the length or duration of such an order, coincided with his either being in a form of custody or subject to onerous state control of his behaviour pursuant to the conditions set by the MHRT. On the other hand he has, as I observed in argument, generally done very well under supervision.

33. In all of the circumstances, and doing the best I can, I propose to make an order that the extension order be of four years’ duration.

34. Accordingly, I make the orders sought by the Attorney General in the following terms:

1. Pursuant to ss 121, 127(1)(a) and s 128 of the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW), the defendant is subject to an order for the extension of his status as a forensic patient for a period of four years from today, 17 August 2022; and

2. Access to the two court appointed experts’ reports be granted to Mr Boyce’s treating team.

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Endnotes

Decision last updated: 05 September 2022