Attorney-General of New South Wales v McGuire

[2017] NSWSC 1572

Supreme Court

New South Wales

• Amendment notes

Medium Neutral Citation:	Attorney-General of New South Wales v McGuire [2017] NSWSC 1572
Hearing dates:	15 November 2017
Date of orders:	23 November 2017
Decision date:	23 November 2017
Jurisdiction:	Common Law
Before:	Bellew J
Decision:	1. Pursuant to Clause 1 of Schedule 1 of the Mental Health Forensic Provisions Act 1990 (NSW), the defendant is subject to an extension order for a period of one year from today. 2. I direct the Registrar, pursuant to Clause 7(3) of Schedule 1 of the Mental Health Forensic Provisions Act 1990 (NSW), to notify the Mental Health Review Tribunal of Order (1).
Catchwords:	MENTAL HEALTH – Forensic patient – Application for an extension order – Whether court could be satisfied to the requisite standard that the defendant posed an unacceptable risk of causing serious harm to others if he ceased to be a forensic patient – Whether any such risk could not be adequately managed by other less restrictive means – Extension order made for a period of 12 months   PRACTICE AND PROCEDURE – Application for order prohibiting the publication of the name of the defendant – Where the name of the defendant previously published in successive judgments – No utility in making such order – Application refused
Legislation Cited:	Court Suppression and Non-Publication Orders Act 2010 (NSW) Guardianship Act 1987 (NSW) Mental Health (Forensic Provisions) Act 1990 (NSW) Mental Health Act 2007 (NSW)
Cases Cited:	Attorney-General for the State of New South Wales v Boyce [2017] NSWSC 144 Attorney-General for the State of New South Wales v Tillman [2007] NSWSC 605 Attorney-General of New South Wales v HRM [2016] NSWSC 1189 Attorney-General of New South Wales v Huckstadt (No.2) [2017] NSWSC 595 Attorney-General of New South Wales v McGuire (No.2) [2014] NSWSC 288 Attorney-General of New South Wales v McGuire [2013] NSWSC 1862 Attorney-General of New South Wales v McGuire [2015] NSWSC 152 Attorney-General of New South Wales v McGuire [2016] NSWSC 158 Attorney-General of New South Wales v TP [2015] NSWSC 1656 Cornwall v Attorney-General of New South Wales [2007] NSWCA 374 Lynn v State of New South Wales [2016] NSWCA 57; (2016) 91 NSWLR 636 Minister for Health v Paciocco [2017] NSWSC NSW Minister for Mental Health v BB [2015] NSWSC 1418 State of New South Wales v Thomas (Preliminary) [2011] NSWSC 118
Category:	Principal judgment
Parties:	Attorney-General for New South Wales – Plaintiff Herbert Robert McGuire – Defendant
Representation:	Counsel: S Callan - Plaintiff N Evans - Defendant   Solicitors: Crown Solicitor for New South Wales - Plaintiff Legal Aid NSW - Defendant
File Number(s):	2017/00162261
Publication restriction:	Nil

Judgment

1. By a summons filed on 30 May 2017 the Attorney-General of New South Wales (“the plaintiff”) seeks an order pursuant to Clause 1 of Schedule 1 of the Mental Health (Forensic Provisions) Act 1990 (“the Act”) that Herbert Robert McGuire (“the defendant”) be subject to an extension order for a period of one year from the date of the order.

2. The plaintiff relied on the following affidavits which were read without objection:

1. Clara Potocki of 30 May 2017 together with exhibit CP-1;

2. Clara Potocki of 5 July 2017 together with exhibit CP-2;

3. Clara Potocki of 19 October 2017; and

4. Clara Potocki of 9 November 2017;

3. In addition, the plaintiff tendered the following exhibits:

1. the remarks of her Honour Judge Murrell SC (as her Honour then was) in the District Court of New South Wales – exh. A;

2. the orders of the District Court made pursuant to s. 24 of the Act – exh. B;

3. a report of Dr Kerri Eagle of 5 October 2017 – exh. C;

4. a report of Patrick Sheehan, psychologist of 30 September 2017 – exh. D; and

5. a report of Dr Andrew Ellis dated 14 November 2017 – exh. E.

4. The defendant read the following affidavits without objection:

1. Todd Davis of 2 November 2017; and

2. Ye Jun Wu of 13 November 2017.

THE DEFENDANT’S APPLICATION FOR A NON-PUBLICATION ORDER

5. At the commencement of the hearing, counsel for the defendant sought an order prohibiting the publication of the defendant’s name. That order was sought pursuant to s. 162 of the Mental Health Act 2007 (NSW) (“the MHA”) or, in the alternative, pursuant to s. 8 of the Court Suppression and Non-Publication Orders Act 2010 (NSW) (“the CSNPO Act”).

6. The plaintiff did not consent to such an order being made. It was the plaintiff’s position that s. 162 of the MHA did not apply and that whilst the CSNPO Act clearly did, there was no proper basis for the making of such an order. It was submitted, in particular, that in light of the publication of previous judgments of this Court in which the defendant’s full name was disclosed, there would be no utility in making the order which was sought.

7. Having heard submissions, I refused the application and indicated to the parties that I would incorporate the reasons for that decision in my final judgment. Those reasons now follow.

8. It is apparent that different views have been taken by Judges of this court in relation to the question of whether or not s. 162 of the MHA has any application in circumstances such as the present. It is also apparent that in some cases where orders have been made pursuant to that section, those Judges who have made them (including myself) have not had the benefit of full argument in relation to the relevant provisions: see for example NSW Minister for Mental Health v BB [2015] NSWSC 1418; Attorney-General of New South Wales v TP [2015] NSWSC 1656.

9. The plaintiff did not take issue with the proposition that the CSNPO Act does apply to this application. Section 8 of that Act is in the following terms:

8 GROUNDS FOR MAKING AN ORDER

(1) A court may make a suppression order or non-publication order on one or more of the following grounds:

(a) the order is necessary to prevent prejudice to the proper administration of justice,

(b) the order is necessary to prevent prejudice to the interests of the Commonwealth or a State or Territory in relation to national or international security,

(c) the order is necessary to protect the safety of any person,

(d) the order is necessary to avoid causing undue distress or embarrassment to a party to or witness in criminal proceedings involving an offence of a sexual nature (including an act of indecency),

(e) it is otherwise necessary in the public interest for the order to be made and that public interest significantly outweighs the public interest in open justice.

(2) A suppression order or non-publication order must specify the ground or grounds on which the order is made.

10. It has been observed that the term “necessary” as it appears it in s. 8(1)(a) is not satisfied merely because the order is convenient, reasonable or sensible: Attorney-General of New South Wales v Huckstadt (No.2) [2017] NSWSC 595 per Adamson J at [49]. Her Honour went on to observe (at [53]) that applications for non-publication orders have been refused on the grounds of futility because the information which is sought to be restrained is already in the public domain. Her Honour concluded by saying:

Plainly, an order which will be futile cannot be ‘necessary’.

11. In the present case four judgments of Judges of this court have already been published disclosing the name of the defendant, namely:

1. Attorney-General of New South Wales v McGuire [2013] NSWSC 1862;

2. Attorney-General of New South Wales v McGuire (No.2) [2014] NSWSC 288;

3. Attorney-General of New South Wales v McGuire [2015] NSWSC 152; and

4. Attorney-General of New South Wales v McGuire [2016] NSWSC 158.

12. In the circumstances of the present case, the order sought would serve no purpose and it is not necessary. It was for these reasons that I refused the application when it was made.

BACKGROUND TO THE APPLICATION

13. The background to the application is helpfully set out in the written submissions filed by the plaintiff. It is not in dispute and may be conveniently summarised as follows.

14. The defendant is currently 44 years of age. He has not been diagnosed as suffering a psychiatric illness although he has, at times, displayed symptoms consistent with such illness. He has an intellectual disability and an alcohol use disorder.

15. On 4 September 2009, the defendant appeared before her Honour Judge Murrell SC (as her Honour then was) in the District Court of NSW in respect of three offences alleging sexual intercourse without consent (“the index offences”). It was alleged that on 4 April 2006 he had been drinking alcohol with friends at premises which were adjacent to the residence of the victim, who herself suffered an intellectual disability. It was alleged that when the defendant observed the victim, he went to her residence and asked if he could come in for a drink. He spoke of “wanting to be with (the victim) and wanting to be (her) friend”. The victim refused to allow him to come in. When the defendant followed the victim’s daughter into the house, the victim asked him to leave. The defendant refused. The victim then walked to the front of the house in an attempt to have the defendant come outside. The victim went inside the house to obtain the key to lock the front door, during which time the defendant entered the house and committed a series of sexual assaults upon her.

16. The first count in the indictment alleged forced penile/vaginal intercourse that extended between five to fifteen minutes and caused the victim to feel pain. It was alleged that the victim struggled and managed to hit the defendant over the head with a telephone but that he continued. The second count alleged forced penile/anal intercourse that continued for five to ten minutes. The third count alleged forced penile/vaginal intercourse. After words were exchanged, the defendant left the house saying that he would “come back next week to finish the job”. The offending was witnessed by the victim’s 5 year old daughter.

17. Her Honour found that on the limited evidence available, the defendant had committed the three offences charged in the indictment. Her Honour also found that the defendant was intoxicated at the time but was nevertheless well aware of what he was doing.

18. Her Honour found that the defendant’s moral culpability was substantially reduced on account of his intellectual disability and his developmental delay. She also found that the disinhibiting effect of alcohol would have further reduced his capacity to make rational decisions, and that the offending was not planned.

19. In respect of each of counts one and three, which alleged forced penile/vaginal intercourse, her Honour imposed concurrent limiting terms of 4 years commencing on 1 January 2009 and expiring on 31 December 2012. In respect of count two, which alleged force penile/anal intercourse, her Honour imposed a limiting term of 4 years (partially concurrent and partially cumulative) commencing on 1 January 2010 and expiring on 31 December 2013.

20. The effective total limiting term imposed by her Honour was one of 5 years, commencing on 1 January 2009 and expiring on 31 December 2013. Her Honour referred the matter to the Mental Health Review Tribunal (“the MHRT”) and ordered that the defendant be detained in Long Bay Hospital or such other place as the MHRT might determine.

21. On 26 August 2013, the defendant was conditionally released into the community by order of the MHRT. That order obliged him to comply with a number of conditions which have continued, in large measure, up until the present time, including to:

1. accept case management from the Criminal Justice Program (“CJP”) and in doing so to obey the directions of his case manager, and accept management and support of not less than 12 hours per week;

2. attend his treating psychiatrist, Dr O’Dea;

3. take medication as directed by Dr O’Dea, such medication to include anti-libidinal and anti-alcohol medication;

4. reside in approved accommodation;

5. attend rehabilitative programs as directed; and

6. remain abstinent from alcohol, illegal and non-prescription drugs and substances, and undertake urinalysis, breath testing and searches.

22. On 29 November 2016, the Guardianship Division of the NSW Civil and Administrative Tribunal (“NCAT”) made an order under the Guardianship Act 1987 (NSW) (“the Guardianship Act”) appointing the Public Guardian as the guardian of the defendant for a period of 12 months. Pursuant to that order, it is the function of the guardian to (inter alia):

1. decide where the defendant may reside;

2. decide what health care the defendant may receive; and

3. make decisions about services to be provided to the defendant.

AN OVERVIEW OF THE RESPECTIVE CASES

23. The evidence tends to establish that over a period of time there has been a reduction in the defendant’s assessed risk. However, it is the plaintiff’s position that this is a result of the regime imposed upon him as a continuing forensic patient under the monitoring of the MHRT. As a forensic patient he is required to take anti-libidinal and anti-alcohol medication, and accept the support of CJP and others. It is the plaintiff’s position that anti-libidinal medication represents a central component of managing the defendant’s risk. Counsel for the plaintiff submitted that the evidence tends to establish that if the defendant was not compelled to take that medication by the MHRT, he would cease to do so. It is the plaintiff’s position that there is no indication that NCAT would make such an order under the Guardianship Act and that accordingly there continues to be an unacceptable risk of the defendant causing serious harm to others if he ceases to be a forensic patient, and that such risk cannot be adequately managed by less restrictive options.

24. Counsel for the defendant frankly conceded that the evidence before the court was capable of establishing that the defendant continues to be an unacceptable risk of causing harm to others, and that such risk cannot be adequately managed by less restrictive options. It was the defendant’s position that if I were to come to that view following an independent assessment of the evidence, any order should not be of a duration in excess of one year.

The legislative regime

25. Pursuant to s. 54A of the Act, this court is empowered to make an order extending a person’s status as a forensic patient in accordance with Schedule 1. Section 54A is contained within Part 5 of the Act, the objects of which are set out in s. 40 as follows:

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.

Note : Section 68 of the Mental Health Act 2007 sets out general principles with respect to the treatment of all people with a mental illness or mental disorder.

THE TEST

26. Clause 2 of Schedule 1 imposes a two limb test for the making of an extension order in the following terms:

(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.

Note : Less restrictive means of managing a risk includes, but is not limited to, a patient being involuntarily detained or treated under the Mental Health Act 2007 .

27. The plaintiff bears the onus in respect of both limbs and, in respect of the second, must prove the negative: Minister for Health v Paciocco [2017] NSWSC 4 at [8].

28. In order to make the order sought, I must be satisfied to a high degree of probability in respect of both limbs. The expression “a high degree of probability” indicates something beyond more probable than not: Cornwall v Attorney-General of New South Wales [2007] NSWCA 374 at [21]. It is higher than the civil standard but lower than the criminal standard: State of New South Wales v Thomas (Preliminary) [2011] NSWSC 118 at [17] citing Attorney-General for the State of New South Wales v Tillman [2007] NSWSC 605 (at [27]). The phrase “unacceptable risk” is to be given its ordinary everyday meaning: Lynn v State of New South Wales [2016] NSWCA 57; (2016) 91 NSWLR 636; Attorney-General for the State of New South Wales v Boyce [2017] NSWSC 144.

29. If I am satisfied to the requisite standard that the defendant poses an unacceptable risk and if I am also satisfied, to the same standard, that the risk cannot be adequately managed by other less restrictive means, then I may make an extension order. In the present case a potentially less restrictive means is a guardianship order pursuant to the Guardianship Act.

Relevant considerations

30. Clause 7(2) of the Act sets out a number of matters to which I must have regard in determining whether to make an extension order. However, these considerations, although mandatory, are not exclusive. It remains open to me to take into account any other matter that I consider relevant. The mandatory considerations set out in clause 7(2) are as follows:

1. the safety of the community;

2. the reports received from the persons appointed under clause 6(5) to conduct examinations of the forensic patient;

3. the report of the qualified psychiatrist, registered psychologist or registered medical practitioner provided under clause 5(b);

4. any other report of a qualified psychiatrist, registered psychologist or registered medical practitioner provided in support of the application by the forensic patient;

5. any order or decision made by the tribunal with respect to the forensic patient that is relevant to the application;

6. 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;

7. the level of the forensic patient’s compliance with any obligations to which he or she is 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);

8. 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; and

9. any other information that is available as to the risk that the forensic patient will in future cause serious harm to others.

31. To the extent that they are relevant to the present application, I turn to consider these factors. In doing so, I note that the matters in clause 7(2)(b)-(i) necessarily bear on a consideration of the safety of the community referred to in clause 7(2)(a).

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

32. I have already set out the nature and circumstances of the index offences. However, it is necessary to emphasise that the defendant’s criminal history is not limited to those matters, and includes driving offences, as well as offences of dishonesty and violence. As to the latter, his history includes convictions for assault, possessing a prohibited weapon and damaging property. The defendant has also been convicted for inflicting grievous bodily harm on a police officer.

Reports received from the persons appointed under clause 6(5) to conduct examinations of the forensic patient – clause 7(2)(b)

Report of the qualified psychiatrist, registered psychologist or registered medical practitioner provided under clause 5(b) – clause 7(2)(c)

Any other report of a qualified psychiatrist, registered psychologist or registered medical practitioner provided in support of the application or by the forensic patient – clause 7(2)(d)

33. There are a number of medical reports contained in the evidence. The opinions of the experts who have provided those reports may be summarised as follows:

Dr Ellis

34. Dr Ellis is a forensic psychiatrist. He has diagnosed the defendant with an intellectual disability, an alcohol use disorder, anti-social and paranoid personality traits, possible psychotic experiences and problem gambling. In a report of 18 May 2016 Dr Ellis stated:

If (the defendant) were to cease being a forensic patient, and no other form of management plan was in place, then he would pose a risk of causing serious harm to others.

35. It was Dr Ellis’ view that in the absence of a structured framework, it was unlikely that the defendant would continue accessing the support or treatment services which would be available to him. Dr Ellis also thought that anti-libidinal medication was still required in the medium term, along with ongoing review by a psychiatrist.

36. Most recently, Dr Ellis provided a report of 14 November 2017 for the court’s assistance. In that report, he explained that any risk management strategy works in conjunction with other strategies. He then stated:

The (defendant) has expressed on a number of occasions his wish to be free of medication, appointments, disability support and review of the tribunal and to move elsewhere. He has previously used substances whilst subject to supervision. This acceptance of support may be improving with some greater development of insight into his offending and risk factors noted by Dr Eagle and Mr Sheehan. However his motivation to routinely apply this insight would remain impaired. He is still noted to behave impulsively at times.

37. Having made references to the prescription of anti-libidinal and anti-alcohol medication, Dr Ellis stated:

There may be no impact on overall risk if he remained in his current accommodation, kept accepting disability support, kept being monitored for substance use and continued to be reviewed by his psychiatrist. In this situation he could be monitored for any changes in his behaviour and mental state. It may be that he now has capacity to internally control sexual imposes and craving for substances and these interventions are no longer crucial. It may be that he does not, but with monitoring in place early signs of lapse could be observed and the medications re-instated before any serious harm occurred.

38. Dr Ellis noted that in the event that cessation of medication was accompanied by a reduction or cessation in clinical support and monitoring, the risk posed by the defendant would be significant. In particular, he thought that there would be an increased likelihood of the defendant engaging in impulsive decision making, the use of substances and association with marginal peer groups. He thought that in that event, the defendant’s risk profile would return to being closer to what it was when he committed the index offences. He also though that with no professional monitoring, these risk factors could lead to serious harm.

Professor Hayes

39. Professor Hayes provided a number of reports in relation to the defendant between 2014 and 2016. The essence of her opinion was that the defendant posed a moderate risk of causing serious harm to others. She thought that his risk may increase if he ceased to be a forensic patient, and that the combination of risk factors and withdrawal of support would increase his likelihood of re-offending.

Dr Eagle

40. Dr Eagle concluded that the defendant was at moderate risk of sexual and violent re-offending, and thought that such risk had been properly managed by the interventions which were the subject of the current order. She expressed some concern at the likelihood that the defendant would not comply with (inter alia) his medication regime in the absence of an order. This was based on statements made by the defendant to her in the course of assessment.

41. Dr Eagle regarded the anti-libidinal and anti-alcohol medication as important, if not essential, components of the defendant’s ongoing management and treatment. She took the view that there was insufficient information to confirm a diagnosis of psychotic illness, but concluded that the defendant was a moderate risk. She thought that such risk was currently managed adequately pursuant to the terms of the order which is in place. Significantly, she expressed the view that if the present order were to lapse, it would likely lead to the defendant disengaging from the professional services which were currently available to him. She thought that the defendant posed a risk of causing serious harm to others if he ceased to be a forensic patient, because he would not, in those circumstances, have adequate monitoring and support.

42. Most recently, Dr Eagle provided a report dated 5 October 2017. The following passages encapsulate her opinion:

In my view Mr McGuire does pose a risk of causing serious harm to others if he ceases to be a forensic patient without adequate monitoring and supports in place. His baseline risk is unchanged (moderate or above average). His dynamic risk has remained moderate (on various structured professional judgement tools). The risk is being adequately managed under the conditions of the forensic order. A recent reduction in the required hours of support to 12 hours per week does not appear to have reduced the effectiveness of the risk management plan.

…

The risk factors contributing to Mr McGuire’s ongoing dynamic risk include his inability or unwillingness to cooperate with supervision or recommended treatments; his cognitions in relation to women; his lack of problem solving skills (secondary to his intellectual disability); his impulsivity; his limited insight and his emotional disregulation. He is also at risk of relapsing into alcohol use if external constraints are removed.

…

It is clear that the terms of Mr McGuire’s forensic order has (sic) adequately managed his risk of re-offending for a number of years. Unfortunately, he has been clear in his intention to disengage from services, cease his prescribed medications and leave Sydney in the event that the forensic order is not renewed. In those circumstances, he is at moderate risk of sexual recidivism (or above average) based on his dynamic and static risk factors. He is (sic) also has a number of historical and clinical risk factors for violent re-offending in the event that the forensic order ceases.

…

Anti-libidinal medications can be of benefit to those who have a paraphilic disorder. Mr McGuire does not have such a diagnosis on the existing information. However, the medication may have been of benefit in his risk management. He has clearly indicated that he would not continue the medication if it were not mandated. In the event that his forensic order were not extended, and the Guardianship Tribunal did not make and order that he continue to take the medication, it would be recommended that he be supervised for a further period following cessation of the medication.

…

Given Mr McGuire’s intellectual disability, it is likely that he would not have the ability to refrain from alcohol use without external constraints such as the anti-alcohol craving medication he has been prescribed. He reported consuming a beer over Christmas but feeling sick as a result. A limitation of such a medication is the need for compliance. For instance, it will only work if the person is motivated to take it. If Mr McGuire was non-compliant with the medication, it would have no effect on his alcohol use. He appears to have tolerated the medication without adverse effects, although that would be better ascertained by his treating psychiatrist.

…

Mr McGuire is a moderate risk of sexual re-offending in the event that the forensic order lapsed and his dynamic risk factors were not able to be managed in the same way. However, it is not unreasonable for McGuire to be gradually transitioned of a forensic order and an attempt made to trial other supports (with the benefit of a Guardianship order that may continue to optimally manage Mr McGuire (sic) risk factors. I am of the view that Mr McGuire will likely not comply with medication and medical appointments in the absence of a forensic order.

…

If Mr McGuire were successfully gradually transitioned off his prescribed medications (or they were continued under a guardianship order) under supervision (without incident), he continued to accept a minimal level of support from a non-governmental organisation and he was subject to guardianship orders mandating support of accommodation in a secure location, I am of the view that his risk management needs may be adequately met.

Patrick Sheehan

43. Mr Sheehan is a forensic psychologist who provided a report dated 30 September 2017. He did not consider the defendant to be mentally ill and expressed the view that he posed a low to moderate risk of re-offending. Consistent with the opinions expressed by Dr Eagle, Mr Sheehan thought that the defendant’s risk may escalate if he rejected supervision and support, was unable to occupy himself, fell out with his family or reacted impulsively to stressors and consumed alcohol.

44. Mr Sheehan provided a further report for the court dated 30 September 2017. In that report Mr Sheehan stated (inter alia) as follows:

There is an identifiable risk of Mr McGuire causing serious harm through dangerous driving, interpersonal aggression and sexual offending.

…

As detailed in the body of this report, I estimate his overall risk of causing serious harm to be in the low to moderate category. His risk is best viewed as a result of the complex interplay between his various diagnoses and environmental contingencies (access to substances, presence of anti-social associates, presence of potential victims, problems in his interpersonal relationships, unstable residence). His antisocial traits may have been influenced by his intellectual impairment in his early life when he has been unable to thrive at school and gravitated to a path of non-conformity and rejection of a system in which he could not compete. His irritability, suspicion and frustration may have developed similarly, as he struggles in a world that is confusing to him. In adolescence and adulthood, his cognitive impairment has contributed to aggravating his antisocial behaviour through impaired appraisal and decision-making, thereby further disinhibiting antisocial impulses and impairing his ability to learn from experience or realistically predict consequences. Substance use has also further reduced his appraisal and decision-making from an already impaired baseline.

…

Mr McGuire’s risk may continue to abate over time as he ages and becomes increasingly habituated to stable community life. Alternatively, his risk may escalate in the event that he rejects supervision and support, that he is unable to occupy himself with his weekly scrap metal activities, that he falls out with family or his daughter, that he reacts impulsively to some stressor (such as family problems, financial problems or conflict) and decides to consume alcohol, that loneliness, intoxication, sexual arousal and negative mood intersect with him coming into contact with someone to who (sic) he is sexually attracted, but whom spurns his clumsy advances.

45. Finally, Mr Sheehan went on to say:

In my view the most valuable aspect of the continuation of forensic patient status is the capacity to detain Mr McGuire at short notice in the event that it is determined that his behaviour is deteriorating in a way that implies escalating risk. His period of hospitalisation in early 2016 is a good example of the effectiveness of the current regime in interrupting what may otherwise have been an escalating pattern of behaviour. The ability for the MHRT to enforce medication is important. The ability to enforce compulsory drug testing is important.

THE ORAL EVIDENCE OF DR EAGLE AND MR SHEEHAN

46. Dr Eagle and Mr Sheehan gave concurrent oral evidence before me in the course of the hearing. Dr Eagle confirmed her view (commencing at T7.1) that the defendant posed a moderate level of risk and that in the event that the current extension order were to lapse, it was likely that the defendant would disengage from professional services and would stop taking prescribed medications including anti-libidinal medication. In particular, Dr Eagle said (commencing at T7.20):

He has expressed the view that he would disengage, repeatedly, from those services. I think that there is potential for individual case workers who have a good relationship with him to try to continue to engage him, if he finds their contribution helpful. So, I think that is going to be subject to the service being prepared to an out reach case management, and subject to the case workers involved in his care. However, I think overall the most likely scenario is that he will disengage from those services.

Q: What about his voluntarily continuing with the anti-libidinal medication?

A: I don't think he will continue with that and he has clearly said he will not.

Q: You say he would absent the regime not to do it?

A: Yes, that's right.

Q: To what extent do you regard the anti-libidinal medication as important in managing his overall management?

A: I think that is difficult. He does not have a diagnosis of paraphilia, however there is some information to suggest that it has been of benefit for him and that at least his risk about behaviours have reduced when he has been prescribed the anti-libidinal medication and he has been more cooperative. I think the only way you will know if it has contributed to his risk management, is if it is ceased so he could be observed. He does not report increased sexual arousal or sexual interest and there is no clear evidence that he has in the past. So it may be that the anti-libidinal medication is not contributing to his risk management, but you will have to observe him when it is ceased.

47. Notwithstanding those concluding comments, Dr Eagle confirmed what she saw as the importance of anti-libidinal medication and the part that it played in the defendant’s current treatment regime. She said (commencing at T8.24):

I think that is quite important. I think that is likely to be contributing quite a lot to Mr McGuire to refrain from consuming alcohol. One of the reasons for that is that he reported consuming alcohol over Christmas. He said he felt sick when he drank it and the medication will take away the beneficial effect of alcohol. I think someone with Mr McGuire's level of function and cognitive capacity would have actually benefitted quite a lot in having a medication that reduced it.

48. Dr Eagle also agreed (commencing at T8.45) that the anti-libidinal and anti-alcohol craving medications complemented each other, and that it was difficult to separate them.

49. She confirmed (commencing at T9.1) that the effect of the anti-libidinal medication could not be properly ascertained until such time that it has been ceased but said that in her view, it was better to cease both medications under supervision. This, she thought, was the most sensible risk management strategy in all of the circumstances.

50. Dr Eagle said (commencing at T9.15) that on the basis of what the defendant had said to her, she did not believe that he would continue with his anti-alcohol medication voluntarily. It was her belief (at T9.37-T9.38) that the defendant would prefer not take any medication at all.

51. Mr Sheehan agreed that any cessation of anti-libidinal medication should be under supervision (at T10.20-T10.29). He confirmed his view (commencing at T11.4) that the defendant posed a low to moderate risk of re-offending. When asked whether he thought that the risk of the defendant of re-offending would be increased in the absence of the current protective influences, Mr Sheehan said (commencing at T11.23):

Yes, I think I have described in my report that it could go one of two ways. He may find a way to adjust himself in a positive way. But, I feel the evidence suggests more likely that he would be worse in that situation and the protective factors would not be applying and he would make a series of poor decisions which may include abusing alcohol, not taking medication and all of this increases his risk of re offending with both sexual and physical violence.

Any order or decision made by the MHRT with respect to the forensic patient that is relevant to the application – clause 7(2)(e)

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) – clause 7(2)(g)

52. The defendant was released into the community, subject to a number of conditions, on 26 August 2013. The conditions on which he was released have been summarised at [21] above.

53. On 8 January 2016 an order was made by the MHRT for the defendant’s apprehension as a consequence of him breaching his conditional release order. Those breaches included him being absent from his accommodation without permission. The defendant subsequently remained an inpatient at Nepean Hospital between 9 January 2016 and 8 April 2016. There were various reviews carried out by the MHRT between January 2016 and May 2016, following which the MHRT released the defendant back in the community on the basis that appropriate treatment could be provided to him. At a review on 30 May 2016 following his release, it was noted that the defendant was managing well, and that there had been no additional concerns.

54. Whilst there are other documented instances of inappropriate behaviour, generally speaking the evidence supports a conclusion that the defendant has been relatively stable in recent times, and is progressing adequately.

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 – clause 7(2)(h)

55. I have already made reference (at [17]-[18]) to some of the observations made by the judge who imposed the limiting term. Proceedings against the defendant have been the subject of a number of previous judgments by this court.

56. On 21 March 2014 Garling J extended the defendant’s status as a forensic patient by 12 months, to 21 March 2015: Attorney-General of New South Wales v McGuire (No.2) [2014] NSWSC 288. At [157] his Honour said:

The evidence discloses that the principal underlying issue with respect to the existence of a risk of causing serious harm to others is that Mr McGuire is a mildly intellectually disabled individual who presents with a significant number of risk factors which require lengthy one-on-one treatment to minimise the risk of such harming behaviour in the future. The need for this treatment is combined with the need for him to stay abstinent from alcohol and to avoid illicit drug usage, because the effects of alcohol and illicit drugs is to reduce any inhibition, and thereby increase, his tendency towards impulsive conduct, including sexual offending and violence.

57. Later at [184] his Honour said:

On the whole of the evidence and, in particular, having regard to Mr McGuire's intellectual disability, I cannot be satisfied that Mr McGuire would voluntarily attend at, and participate in, any treatment provided. Nor am I satisfied that without the supervision provided by the CJP, and overseen by the Tribunal, and without the possibility of changed conditions which would reward him for compliance and improvement or conversely by punishing him, help him to understand the importance of engaging with the CJP, Mr McGuire's risk of causing serious harm to others would be an acceptable one.

58. His Honour also concluded (at [196]) that a period of 12 months was the minimum time necessary to enable the defendant to commence and progress along the path of reducing his unacceptable risk.

59. On 28 May 2015, Rothman J made orders extending the defendant’s status as a forensic patient for 12 months until 10 June 2016: Attorney-General of New South Wales v McGuire [2016] NSWSC 158. His Honour said commencing at [63]:

63. Each expert accepts that in the absence of the current medication, the risk posed by the defendant rises significantly. The fundamental question is whether the defendant’s insight into his alcohol issues and sex offending is sufficient to remove the supervision and the requirements for medication and allow the defendant the freedom to undertake the medication himself.

64. As has been described, the restrictions on the defendant are not draconian. They involve supervision by Corrective Services and the requirement for medication. The defendant lives in the community. The medication is needed to ameliorate the otherwise significant risk.

65. The cited comment to staff displays an attitude that is concerning, all the more so for its disclosed lack of insight. The defendant’s relationship with his family has not yet fully stabilised. That relationship has some important stabilising features, but is not sufficiently stable to affect positively the likelihood that the medication will be taken voluntarily and, in that way, improve the risk factors otherwise associated with the defendant’s mental state and previous behaviour.

66. On the other hand, there is no doubt there has been some improvement in the defendant. That improvement should continue into the foreseeable future and will, one would expect, result in less risk over the forthcoming period. Given the levels of improvement and the likelihood that the rate of improvement will remain static, if not increase, a shorter rather than longer period of operation for the order is appropriate, so that the unacceptability of the risk of the defendant can be ascertained at shorter intervals.

60. On 24 August 2016 Campbell J made an extension order for a period of 12 months expiring on 23 August 2017: Attorney-General of New South Wales v HRM [2016] NSWSC 1189. His Honour concluded that the defendant remained in a category of moderate to high risk of re-offending. Whilst his Honour acknowledged the availability of a less restrictive regime, he thought it unsuitable in the circumstances (at [21]):

A difficulty with me concluding that such a regime - I will refer to it as a therapeutic regime – is appropriate at this time is that the evidence before me from Mr Wu is to the effect that if HRM was no longer a forensic patient, the provision of CJP’s services to him would depend upon their assessment of him anew as to whether he is entitled to that ongoing support, and more significantly perhaps, upon the voluntary agreement of HRM to participate in their program.

Less restrictive means – guardianship application and orders

61. The defendant’s sister was originally appointed as his guardian but that order has since been varied to a public guardian to make decisions about the defendant’s accommodation and services. I have noted at [22] above that on 29 November 2016 NCAT made a guardianship order appointing the public guardian as the guardian of the defendant for a period of 12 months.

THE SUBMISSIONS OF THE PARTIES

Submissions of the plaintiff

62. Counsel for the plaintiff submitted that I would be satisfied to the requisite standard that the defendant posed an unacceptable risk of causing serious harm to others if he ceased to be a forensic patient. Counsel placed particular emphasis on the defendant’s criminal history, his intellectual disability, his alcohol use disorder, his anti-social personality disorder and his paranoid personality traits. In these respects, as well as in others, counsel relied, in particular, on the opinions of Dr Ellis, Dr Eagle and Mr Sheehan.

63. It was submitted that when viewed as a whole, the expert evidence supported a conclusion that the defendant continued to pose at least a moderate risk which would escalate if the current support available to the defendant was removed.

64. Counsel for the plaintiff also pointed to the fact that there was evidence of:

1. an episodic lack of engagement on the part of the defendant with service providers;

2. an absence of compliance with conditions, and the subsequent need for hospitalisation;

3. a degree of sexual preoccupation; and

4. disordered, and at times delusional, thoughts.

65. Counsel further submitted that the fact that the defendant had not caused harm to others since his release in 2013 was explained by the fact that he had been part of a structured environment and had received extensive supervision and support within that period of time. In these circumstances, it was submitted that I would be satisfied that the defendant continued to pose an unacceptable risk of causing serious harm to others, for the reasons most recently articulated by Campbell J.

66. In terms of the second limb of the test, counsel for the plaintiff submitted that the most relevant issue arose from the fact that the defendant had not been assessed as suffering from a mental illness or a mental disorder. It was pointed out that in these circumstances, there would be no basis for the MHRT to classify the defendant pursuant to s. 53 of the MHA (as an involuntary patient) and that there was no similar basis for him to be transferred to what was described as the “civil mental health scheme”.

67. It was submitted that of those avenues which remained, the most relevant was a guardianship order. However, in this regard, counsel pointed to the important differences between the powers of the MHRT (in the event that the defendant remained a forensic patient) and the powers of a guardian and the guardianship division of NCAT. Most importantly, counsel pointed out that a guardian would not be required to conduct regular reviews of the defendant’s condition, or regular reviews of the level of his risk of harm to others. Equally importantly, counsel explained that there was, at least at the present, no measure in place pursuant to the Guardianship Act to compel the defendant to take anti-libidinal medication. It was submitted that this was of particular significance in light of the oral evidence before me given by Dr Eagle and Dr Ellis.

Submissions of the defendant

68. As I have previously noted, it was accepted by counsel for the defendant that it would be open to me to conclude that both limbs of the test had been met. However, it was counsel’s submission that if I were so satisfied, I should not make an order for a period exceeding 12 months.

69. In these respects, counsel noted that it was now more than 11 years since the index offences occurred, the initial limiting term having expired on 31 December 2013. It was also pointed out that for the majority of the period which had elapsed since that time (save for the period in which he was detained at Nepean Hospital) the defendant had been living predominately in the community, generally without incident.

70. Counsel also emphasised that on the evidence, the defendant had not been diagnosed with any psychiatric condition at any time. She submitted that the breaches in 2016 were, in the scheme of things, of a relatively minor nature.

Consideration

71. In my view, the weight of the medical evidence is overwhelmingly in support of the conclusion that the defendant continues to pose an unacceptable risk of causing serious harm to others if he ceases to be a forensic patient. On the whole of the evidence, that risk, in my view, is a moderate one.

72. I accept that the breaches in 2016 were, in relative terms, towards the lower end of the scale. However, they nonetheless demonstrate that the defendant, as a number of the experts have pointed out, continues to be in need of a structured and supervised program in which his adherence to a regime of anti-libidinal and anti-alcohol craving medication can be properly monitored. Bearing in mind the opinions of Dr Ellis, I am not satisfied that the defendant would otherwise adhere to that regime.

73. I accept that the index offences occurred a number of years ago. However, two observations may be made about that circumstance. Firstly, as I have pointed out, those offences do not constitute the entirety of the defendant’s criminal history. That history includes violent offending. Secondly, as a matter of common sense, it is reasonable to conclude that the absence of any significant offending since that time has been because of the structured regime which has been put in place. It is of particular significance that Dr Eagle, as well as Mr Sheehan, thought that the importance of ongoing monitoring of the defendant’s regime of medication was best addressed by the making of an extension order.

74. In terms of the second limb of the test, in my view, the most significant factor is that the defendant has never been diagnosed as suffering from any mental illness. Whilst there have been passing references to his having exhibited symptoms of such illness (notably in the opinions of Dr O’Dea) the fact remains that at no stage has the defendant been so diagnosed. As counsel for the plaintiff pointed out, that necessarily limits the options in terms of his effective management.

75. I am satisfied to the requisite standard that at present there is no other less restrictive means by which the defendant can be managed. There are a number of reasons for that. They include, perhaps most importantly, the fact that there is no obligation upon a guardian to review the defendant’s ongoing adherence to medication. Moreover, a guardian cannot compel, or in my view satisfactorily monitor, the defendant’s adherence to anti-libidinal and anti-alcohol craving medication.

76. I am satisfied, on the evidence, that if left to his own devices, there is a real risk that the defendant would not continue to take that medication. In the light of the evidence of Dr Eagle in particular, the importance of its continuation is self-evident. The evidence also establishes that what is equally important is that if the medication is to be ceased at any time, it is best carried out under strict supervision. Clearly on Dr Eagle’s evidence, the defendant’s regime of medication forms an important, if not critical, part of his ongoing management. Those circumstances, without more, satisfy me to the requisite standard, that the identified risk cannot be managed by any less restrictive means.

ORDER

77. For the foregoing reasons I make the following orders:

1. Pursuant to clause 1 of Schedule 1 of the Mental Health Forensic Provisions Act 1990 (NSW), the defendant is subject to an extension order for a period of one year from today.

2. I direct the Registrar, pursuant to Clause 7(3) of Schedule 1 of the Mental Health (Forensic Provisions) Act 1990 (NSW), to notify the Mental Health Review Tribunal of Order (1).

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Amendments

27 November 2017 - Typographical corrections to [28], [29] and [77].

Decision last updated: 27 November 2017