Attorney General of New South Wales v McGuire

[2017] NSWSC 1072

Supreme Court

New South Wales

• Amendment notes

Medium Neutral Citation:	Attorney General of New South Wales v McGuire [2017] NSWSC 1072
Hearing dates:	3 August 2017
Date of orders:	03 August 2017
Decision date:	16 August 2017
Jurisdiction:	Common Law
Before:	Wilson J
Decision:	1. Pursuant to clause 10 of Schedule 1 of the Mental Health (Forensic Provisions) Act 1990 ("the MHFP Act”), that the Defendant be subject to an interim extension order commencing on 23 August 2017 for a period of 28 days expiring 20 September 2017. 2. Pursuant to clause 6(5) of Schedule 1 of the MHFP Act that: (a)    two qualified psychiatrists, psychologists and/or registered medical practitioners (or any combination of such persons) as agreed by the parties are appointed to conduct separate examinations of the Defendant and to furnish reports to the Supreme Court on the results of those examinations by 5 October 2017; and (b)    the Defendant is directed to attend those examinations. 3.   The matter is listed on a date to be advised by the Court (no later than 20 September 2017) for an application by the Plaintiff to renew the interim extension order set out in Order 1. 4.   The plaintiff is to file and serve any evidence on which it relies by 5pm on 19 October 2017. 5.   The plaintiff is to file and serve any submissions on which it relies by 5pm on 26 October 2017. 6.   The defendant is to file and serve any evidence on which he relies by 5pm on 2 November 2017. 7.   The defendant is to file and serve any submissions on which he relies by 5pm on 9 November 2017. 8.   The matter is listed for a final hearing at 10am on 15 November 2017 with an estimate of one day. 9.   Liberty to apply on one days' notice.
Catchwords:	MENTAL HEALTH (FORENSIC PROVISIONS) ACT 1990 – application for an extension order pursuant to Schedule 1 – forensic patient – interim proceedings – question of interim order – question of appointment of medical practitioners to examine the defendant – risk to the community – question of publication
Legislation Cited:	Court Suppression and Non-publication Orders Act 2010 (NSW) Crimes (High Risk Offenders) Act 2006 (NSW) Crimes Act 1900 (NSW) Guardianship Act 1987 (NSW) Mental Health (Forensic Provisions) Act 1990 (NSW) Mental Health Act 2007 (NSW)
Cases Cited:	A by his tutor Brett Anthony Collins v Mental Health Review Tribunal [2010] NSWSC 1363 Attorney General for the State of New South Wales v Boyce (No. 2) [2017] NSWSC 648 Attorney General for the State of New South Wales v XY [2014] NSWCA 466 Attorney General of New South Wales v HRM (No 2) [2016] NSWSC 751 Attorney General of New South Wales v Kereopa (No 3) [2017] NSWSC 929 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 NSW v HRM [2016] NSWSC 1189 Attorney General of NSW v McGuire (No 2) [2014] NSWSC 288 Attorney General v Doolan [2015] NSWSC 1773 Attorney General v Huckstadt (No 2) [2017] NSWSC 595 B v St Vincents Hospital Sydney Limited [2016] NSWSC 39 Cornwall v Attorney General of New South Wales [2007] NSWCA 374 M v Mental Health Review Tribunal & Ors (No 2) [2016] NSWSC 572 R v McGuire [2009] NSWDC 245 Sarah White v Local Health Authority & Anor [2015] NSWSC 417
Category:	Principal judgment
Parties:	The Attorney General of NSW (Plaintiff) Herbert Robert McGuire (Defendant)
Representation:	Counsel: Ms S Callan with Ms R Khalilizadeh (Plaintiff) Ms Neha Evans (Defendant)   Solicitors: Crown Solicitors Office (Plaintiff) Legal Aid Commission (Defendant)
File Number(s):	2017/162261
Publication restriction:	Restricted to the Parties pending further order. Final Suppression Order refused by Bellew J on 15 November 2017.

Judgment

1. WILSON J: On 30 May 2017 the Attorney General for the State of New South Wales (“the Attorney”) filed a Summons in which the Court is asked to make a number of orders pursuant to the Mental Health (Forensic Provisions) Act1990 (NSW) (“the Act”). The preliminary proceedings on the summons were heard before me on 3 August 2017. At the conclusion of the hearing, I made a number of orders, reserving my reasons until today.

2. The orders the Court earlier made are as follows:

“1. Pursuant to clause 10 of Schedule 1 of the Mental Health (Forensic Provisions) Act 1990 ("the MHFP Act”), that the Defendant be subject to an interim extension order commencing on 23 August 2017 for a period of 28 days expiring 20 September 2017.

2. Pursuant to clause 6(5) of Schedule 1 of the MHFP Act that:

(a)    two qualified psychiatrists, psychologists and/or registered medical practitioners (or any combination of such persons) as agreed by the parties are appointed to conduct separate examinations of the Defendant and to furnish reports to the Supreme Court on the results of those examinations by 5 October 2017; and

(b)    the Defendant is directed to attend those examinations.

3.   The matter is listed on a date to be advised by the Court (no later than 20 September 2017) for an application by the Plaintiff to renew the interim extension order set out in Order 1.

4.   The plaintiff is to file and serve any evidence on which it relies by 5pm on 19 October 2017.

5.   The plaintiff is to file and serve any submissions on which it relies by 5pm on 26 October 2017.

6.   The defendant is to file and serve any evidence on which he relies by 5pm on 2 November 2017.

7.   The defendant is to file and serve any submissions on which he relies by 5pm on 9 November 2017.

8.   The matter is listed for a final hearing at 10am on 15 November 2017 with an estimate of one day.

9.   Liberty to apply on one days' notice.”

3. These are my reasons for making those orders.

The Application

4. By the summons of 30 May 2017, the Attorney ultimately seeks an order pursuant to clause 1 of Schedule 1 of the Act that the defendant is made subject to an extension order for a period of one year from the date of the order. Those matters dealt with by the Court on 3 August 2017 are preliminary to the determination of the Attorney’s ultimate application.

The Law

5. Section 54A of the Act provides for applications for an extension order to be made pursuant to Schedule 1 to the Act. They may only be made in relation to a forensic patient: clause 3. Clause 2 sets out the circumstances in which an extension order can be made:

“2   Forensic patients in respect of whom extension orders may be made

(1)   A forensic patient can be made the subject of an extension order as provided for by this Schedule if and only if the Supreme Court is satisfied to a high degree of probability that:

(a)   the forensic patient poses an unacceptable risk of causing serious harm to others if he or she ceases being a forensic patient, and

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

(2)   The Supreme Court is not required to determine that the risk of a person causing serious harm to others is more likely than not in order to determine that the person poses an unacceptable risk of causing serious harm to others.”

6. There are parallels with comparable provisions under the Crimes (High Risk Offenders) Act 2006 (NSW), and authorities relevant to that Act can be of assistance. In Cornwall v Attorney General of New South Wales [2007] NSWCA 374 the Court (Mason P, Giles JA, and Hodgson JA) observed (at [21]) of a similarly worded provision in that Act that,

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

7. Clause 5 sets out the requirements for applications for such an order:

“5   Requirements with respect to application

An application for an extension order must be supported by documentation:

(a)   that addresses each of the matters referred to in clause 7 (2) (to the extent relevant to the application), and

(b)   that includes a report (prepared by a qualified psychiatrist, registered psychologist or registered medical practitioner):

(i)   that assesses the risk of the forensic patient causing serious harm to others, and

(ii)   that 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.”

8. Clause 7(2) provides:

“7   Determination of application for extension order

(1)   […]

(2)   In determining whether or not to make an extension order, the Supreme Court must have regard to the following matters in addition to any other matter it considers relevant:

(a)   the safety of the community,

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

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

(d)   any other report of a qualified psychiatrist, registered psychologist or registered medical practitioner provided in support of the application or by the forensic patient,

(e)   any order or decision made by the Tribunal with respect to the forensic patient that is relevant to the application,

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

(g)   the level of the forensic patient’s compliance with any obligations to which he or she is or has been subject while a forensic patient (including while released from custody subject to conditions and while on a leave of absence in accordance with section 49 or 50),

(h)   the views of the court that imposed the limiting term or existing extension order on the forensic patient at the time the limiting term or extension order was imposed,

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

9. Clause 6(4) provides for the Supreme Court to hold a preliminary hearing within 28 days of the filing of the application, or within such other time as the Court may allow. Clause 6(6) provides for the Court to dismiss the application if not satisfied that the maters alleged in the supporting documentation would, if proved, justify the making of an extension order.

10. Clause 6(5) provides for the Court to make an order appointing two psychiatrists, psychologists, or medical practitioners (or combination thereof) to examine the defendant and provide reports to the Court. Clause 10 provides for an interim extension order to be made.

The Evidence

The Background to the Matter

11. This matter has a considerable history.

12. On 17 August 2006 the defendant was charged with three counts of sexual intercourse without consent contrary to s 61I of the Crimes Act 1900 (NSW), and one count of aggravated break enter and commit serious indictable offence, contrary to s 112(2) of the same Act. Subsequently, on 4 December 2007, he was committed to the District Court to stand his trial.

13. On 25 August 2008 a fitness inquiry was conducted by Garling DCJ, with his Honour concluding that, because of the intellectual disability from which the defendant suffered, he was not fit to be tried. The defendant was remanded in custody, and his matter was referred to the Mental Health Review Tribunal (“MHRT”, or “the Tribunal”).

14. The MHRT, having subsequently determined that the defendant would not become fit to be tried within a twelve month period, returned the matter to the District Court, where a special hearing was held between 31 August 2009 and 3 September 2009. The following day, the presiding judge, Murrell SC DCJ (as she then was), who heard the matter sitting alone without a jury, returned verdicts in accordance with s 21(1)(c) of the Act that, on the limited evidence available, the defendant committed each of the three offences contrary to s 61I of the Crimes Act. Her Honour stayed the fourth count on the indictment, being the s 112(2) offence: R v McGuire [2009] NSWDC 245.

15. An overall limiting term of 5 years pursuant to s 23 of the Act was imposed, expiring on 31 December 2013. Pursuant to s 24(1) of the Act the defendant was referred to the MHRT, and subsequently became a forensic patient (pursuant to s 42) and subject to regular review by the Tribunal.

16. On 26 August 2013 the Tribunal ordered that the defendant be released conditionally into the community, pursuant to s 47(1)(b). Later that year the Attorney made an application to this Court for an extension order.

17. On 12 December 2013 Davies J made preliminary orders in relation to the application, extending the defendant’s status as a forensic patient beyond 31 December 2013: Attorney General of New South Wales v McGuire [2013] NSWSC 1862. The application was determined finally on 21 March 2014 by Garling J, who made an extension order pursuant to clause 1 of Schedule 1 of the Act, for a period of 12 months: Attorney General of NSW v McGuire (No 2) [2014] NSWSC 288.

18. Towards the expiration of the first extension order the Attorney made an application for a further extension order. Preliminary proceedings were heard by Hoeben CJ at CL: Attorney General of New South Wales v McGuire [2015] NSWSC 152. Final orders were made on 10 June 2015 by Rothman J, extending the defendant’s status as a forensic patient for a further 12 month period, ending on 10 June 2016: Attorney General of New South Wales v McGuire [2016] NSWSC 158.

19. An application for a further extension order was made in early 2016 with preliminary orders made by Button J: Attorney General of New South Wales v HRM (No 2) [2016] NSWSC 751. Final orders were made by Campbell J on 24 August 2016, with the defendant made subject to an extension order for a 12 month period, to date from 24 August 2016 and expiring on 23 August 2017: Attorney General of NSW v HRM [2016] NSWSC 1189. That order remains current.

20. The defendant has continued as a forensic patient since the currency of the limiting term until now. The Attorney’s application would see that status extended for a further period.

The Defendant’s Background

21. The defendant was born on 11 November 1972 in Victoria. He is now aged 44 years.

22. The defendant was the youngest of a family of nine children. In the late nineteen seventies his family left Victoria, moving to New South Wales, where they eventually settled in Mt Druitt. The defendant went to school locally, but struggled at school. In Year 8 he was expelled for truancy.

23. After leaving school, he worked from home with his father, collecting scrap metal. At age 17 the defendant left home and moved to live with a sister. He secured work as a painter's labourer, but lost that job due to absenteeism. Thereafter, the defendant moved to Young where his parents were living. He took casual work picking fruit.

24. In the early nineteen nineties the defendant commenced a relationship, and a daughter was born to him and his partner in 1993 or 1994. That relationship did not last, and the defendant had little or no contact with his daughter in the early years of her life. After his relationship ended, the defendant left Young and moved to Richmond, where he lived with a brother.

25. From early in his life the defendant abused alcohol and cannabis. He also came into contact with the criminal law, with his first recorded conviction entered against him when he was aged about 24 years, for offences of contravening an apprehended domestic violence order, and malicious damage. The convictions that followed were for offences dealt with summarily, including driving offences, assault, and larceny.

26. In 2003 the defendant was sentenced to a term of imprisonment, being a 12 month term, with a non-parole period of 9 months, for offences of driving under the influence of alcohol, and driving furiously. A further term of imprisonment (for 12 months, with a non-parole period of 9 months) was imposed in 2005, again for serious driving offences.

27. Shortly after the defendant’s release from custody after serving that second sentence, the defendant committed the index offences of sexual intercourse without consent.

28. After the commission of the index offences, and at a time when the defendant must have been at liberty on bail awaiting the finalisation of the sexual offences, he was charged with inflicting grievous bodily harm upon a police officer, together with offences of assaulting a police officer and resisting an officer. On 19 June 2009 he was convicted of the more serious offence, with the remaining two charges taken into account on a Form 1 document. A sentence of 2 years and 6 months, with a non-parole period of 1 year and six months, was imposed.

The Index Offences

29. Each of the three sexual assaults that the defendant was found to have committed occurred on 4 April 2006, in Nowra. Murrell SC DCJ described the offences as follows:

"At about midday on 4 April 2006 the accused went to premises adjacent to the complainant's residence. In the period until about 4.30 or 5p.m. he drank with two acquaintances, consuming at least eight stubbies [of] beer and probably more. In the course of the afternoon, the accused observed the complainant in the next-door premises and said words to the effect of 'she would be all right for a girlfriend'. He became somewhat intoxicated and at one stage was 'nodding off'. When he left the premises he was 'a little bit intoxicated' but was 'not overly drunk' and was capable of walking. He saw a cat and was told that it belonged to the complainant. He picked up the cat and walked in the direction of the complainant's residence.

It was the complainant's evidence that a man (who must have been the accused) appeared on her front porch and asked to come in for a drink. According to the complainant's police statement 'he spoke of wanting to be with (the complainant) and wanting to be (her) friend'. The complainant refused the request to come into her house. The man was drinking a stubbie of beer. Later, the police seized an empty stubbie from the complainant's front porch. It was found to contain the accused's DNA.

The accused went to the side of the house and then to the backyard, where he played with the complainant's young daughter. The complainant removed washing from the line and took it into the house. The complainant's daughter came into the house, followed by the accused. The complainant asked the accused to leave the house but he refused to do so. The complainant walked to the front of the house, successfully enticing the accused out of the house. The complainant went back inside, securing the latch on the front screen door. She went to the kitchen to locate a key so that she could lock the front screen door.

When the complainant was standing in her living room, the accused grabbed her by the arms and told her to be quiet. He put a hand over her mouth. The complainant bit the accused on the hand. The complainant found herself lying on her back on the floor. The accused pulled his pants down to his knees and pulled her pants down, possibly to her knees, and proceeded to have penile/vaginal intercourse, causing the complainant to feel some pain. The complainant estimated that the intercourse continued for between five and fifteen minutes. The complainant was struggling. She managed to get onto her hands and knees and reached for the telephone, intending to dial for assistance. However, she discovered that the lead had become disconnected. She hit the accused over the head with the telephone. He was undeterred. She began to search for her mobile telephone. As she was doing so, the accused commenced penile/anal intercourse, which continued for five to ten minutes. The complainant believes that the accused did not ejaculate.

The complainant found herself with her back to the floor. The accused 'tried it again'. It was the complainant's evidence that the accused put his penis back into her vagina 'quite a few times'. 'Almost immediately' that the accused 'tried it again' the complainant succeeded in yanking his penis. It was soft. After words were exchanged, the accused left, saying that he would 'come back next week to finish the job'.

The complainant dressed, comforted her daughter and called the police": R v McGuire [2009] NSWDC 245, at [21] – [26].

30. The sexual assaults upon the victim were committed in the presence of her five year old daughter.

31. In imposing a limiting term upon the defendant the sentencing judge concluded that the offences perpetrated upon the victim had a “grave impact” upon her (Remarks on Sentence, 4 September 2009). But for the defendant’s intellectual disability, her Honour would have concluded that the offences fell within the upper mid to high range of offending of that nature. She accepted that the defendant’s moral culpability was substantially reduced because of his disability, whilst his use of alcohol prior to the commission of the offences would have both disinhibited him, and reduced his already limited capacity to make rational decisions.

32. The sentencing judge concluded that,

“Despite the fact that he is in his thirties [the defendant] does not have similar matters on his criminal history. To date, he has not been a sexual predator. There is no indication that he represents a danger to the community” (p.7 ROS).

The Defendant’s Present Circumstances

33. The defendant was released to the community on 26 August 2013, with his liberty constrained by a number of conditions. He was obliged to accept case management from the Criminal Justice Programme (“CJP”), obey the directions of his case manager, and accept management and support of not less than 70 hours per week from the CJP. The amount of face to face contact and supervision has been reduced over time, and is presently fixed at 12 hours. The organisation responsible for providing case management has been and is New Horizons.

34. The defendant was also obliged by the terms of his release to take a prescribed anti-libidinal medication, although there have been concerns from time to time about his compliance with the medication regime.

35. Following his conditional release on 26 August 2013 the defendant remained in the community until 8 January 2016, when the MHRT determined that he had breached his release order, by being away from his accommodation without permission; making inappropriate sexual comments about a number of women; failing to attend for alcohol testing, and consuming alcohol; and failing to attend an appointment with his treating psychiatrist, Dr Jeremy O'Dea. There were also concerns that the defendant was non-compliant with anti-libidinal medication.

36. On 9 January 2016, the defendant was detained at Nepean Hospital, where he remained until 8 April 2016, under regular review from the MHRT.

37. On 8 April 2016 the MHRT concluded that the defendant was not receiving any treatment at Nepean that could not be provided to him in the community, and issues of risk could be dealt with through supervision and treatment. In reaching that conclusion, regard was had to a report from Dr Andrew Ellis, forensic psychiatrist, of 29 March 2016.

38. The defendant was again released to the community, subject to the following conditions:

1. accept case management from the CJP;

2. obey the directions of his case manager, and accept case management and support of not less than 25 hours per week;

3. attend his treating psychiatrist, Dr O'Dea;

4. take medication as directed by Dr O'Dea, including but not limited to anti-libidinal and anti-alcohol medication;

5. reside in approved accommodation;

6. attend rehabilitative programs as directed; and

7. remain abstinent from alcohol, illegal and non-prescription drugs and substances, and submit to urinalysis, breath testing and searches.

39. On 30 May 2016 the MHRT again considered the defendant’s case, concluding that he was managing well. The defendant noted a wish to have fewer hours of supervision from New Horizons.

40. There were further reviews on 11 November 2016 and 19 May 2017. At the latter review, the Tribunal reduced the hours of weekly supervision from 25 hours to 12 hours, although this was based on non-compliance and the limitations to resources rather than because of any view that fewer hours were required.

Information from New Horizons

41. As noted above, New Horizons provides case management services to the defendant through the Criminal Justice Programme. The notes maintained by staff members of that organisation form part of the evidence before the Court.

42. In August 2016 concerns were expressed in the notes about the defendant’s disengagement with support, and failure to attend appointments. This was regarded as a risk factor.

43. In September 2016 the defendant told New Horizons staff (in the context of guardianship proceedings before the NSW Civil and Administrative Tribunal (“NCAT”)) that he did not want to take Androcur (the prescribed anti-libidinal treatment), did not like seeing Dr O’Dea, and did not want to be under the supervision of either the MHRT or guardianship. He began refusing blood tests and required appointments.

44. In early October the defendant declined support from his “key worker” leading to concerns regarding his diminished level of face to face contact with the CJP. His withdrawal from staff was regarded as, at least in part, a consequence of changes to staff, and the defendant’s distress about family issues. On occasion, the defendant swore abusively at staff who endeavoured to encourage compliance with the contact regime.

45. At a meeting between New Horizons staff and staff of the Department of Family and Community Services on 10 October 2016, New Horizons staff indicated that there were a number of potential mental health issues suffered by the defendant, including hallucinations regarding a former partner. He also had some issues with family and there were ongoing concerns regarding the defendant’s medical compliance. Staff had observed a change in behaviour in the two weeks preceding the meeting, with inappropriate language and sexual advances observed. The defendant’s female key worker noted her desire to step down “given some sexual advances and safety concerns.” The defendant’s disengagement from support and lack of compliance with medical treatment were noted as particular concerns.

46. The defendant continued to accept fewer hours of support than was required in October and November 2016, and concerns were noted about his stated intention to travel interstate. The defendant told CJP staff that he was going to Queensland to resume a relationship with a former partner, despite travel restrictions that applied to him, and despite the unwillingness of the partner to have any involvement with him.

47. He continued to express unwillingness to attend psychiatric and drug testing appointments.

48. When with staff, the defendant appeared angry on occasion, and expressed his anger to workers. For example, on 16 November 2016 during a car journey:

“…HM said that if he wanted to hurt someone he would grab the steering wheel and put the car under a semi. This was not a threat he was just on a subject where he expressed [a] bit of anger” (Ex. CP-1, tab 10, p.79).

49. This apparent anger with the contact and supervisory regime continued into December 2016.

50. On 9 December 2016 the following note was recorded:

“New Horizons indicated that Mr McGuire terminates his face to face support time prematurely due to feeling unwell or being tired…Risk Summary: to the best of our knowledge through consultation with Mr McGuire and New Horizons, he has been compliant with his medication regime, nil positive drug test results and no evidence of association with anti-social peers. For this reason, the reduction in hours of direct client contact is unlikely to be associated with increase[d] risk of harm to himself and others in the community. Likewise, this level of support appears to meet his needs as he has demonstrated a level of independence” (Ex. CP-1, tab 9, p.193).

The Use of Guardianship Orders

51. The defendant has been in the past, and is presently, the subject of guardianship orders.

52. In 2010 the defendant’s sister was appointed as the defendant’s guardian for 12 months with authority to make decisions about accommodation and services, and financial management. The order was renewed for a further 12 month period in late 2011, with a variation to appoint the Public Guardian to act as advocate for the defendant. In 2012, there was a further renewal of guardianship, varying the order so as to give the Public Guardian authority to make decisions about accommodation and services. A few months later responsibility for financial management was given to the NSW Public Trustee and Guardian.

53. These orders ultimately lapsed in 2014.

54. In May 2016 the defendant’s CJP caseworker made an application to the NSW Civil and Administrative Tribunal for a guardian to be appointed for him.

55. That was followed a month later by an application for consent to medical treatment, seeking the approval of NCAT to the defendant’s treatment with anti-libidinal medication. NCAT expressed reservations about its power to approve such medical treatment, and the evidence as to the suitability of it for the defendant.

56. A Health Professional Report before NCAT noted that the proposed treatment involved ongoing compliance with testosterone lowering medication (Androcur), which would “serve to reduce risk of problematic sexualised behaviour, thus allowing the defendant to remain in the community to achieve his goals and live a meaningful life”.

57. In its Reasons of 10 May 2015 NCAT noted that Androcur had been prescribed by Dr Andrew Ellis as a means of reducing risk of sexual violence and as having a likely effect on general levels of anger and aggression. Dr Ellis had noted that during a period of non-compliance with testosterone lowering medication there appeared to have been an escalation in sexual comments and an episode of disinhibited sexual behaviour. Dr Jeremy O’Dea gave evidence to NCAT to the effect that testosterone lowering medication was likely to be the most important intervention in management of the risk posed by the defendant.

58. In September 2016 the application for consent to medical treatment was marked as withdrawn and dismissed.

59. The guardianship application was granted on 29 November 2016 on the basis of the defendant’s intellectual disability and need for support, with NCAT appointing the Public Guardian as guardian for a period of 12 months. The guardian has power to decide where the defendant can live, what services he is to receive, and what health care he is to have. The order remains current.

Risk Assessment and Management

60. In a report dated 20 October 2016 Isuri Gunatillake, Senior Clinical Consultant with the CJP, concluded that the defendant poses a low to moderate risk of re-offending.

61. She noted that the defendant, with a diagnosis of mild intellectual disability with concurrent deficits in social and adaptive behaviour, “continues to exhibit some difficulties with interpersonal functioning and managing impulsivity”. She observed,

“…it was indicated that Mr McGuire may hold some cognitive distortions relating to offending including victim of rape could do more to prevent an attack and starting at, following or making sexual advances toward a woman are [g]ood ways to indicate sexual interest in her. This behaviour is likely to be maintained by his poor communication and social skills” (Ex. CP-1, tab 6, p.2).

62. Ms Gunatillake used both the Static-99 and ARMIDILO-S risk assessment tools to predict the low to moderate risk of recidivism, with both tools returning consistent results.

63. Referring to the defendant’s history of sexual offending, physical violence, and motor vehicle related crime, Ms Gunatillake observed,

“Mr McGuire's engagement in the above behaviours has adversely impacted upon his ability to access mainstream services within the community. For example, during times of emotional distress, Mr McGuire's intellectual disability may make it difficult for him to effectively manage his level of impulsivity and ability to express his feelings and desires, often resulting in frustration, anger, violence. Further, due to his limited social and living skills, he also requires a high degree of assistance and supervision surrounding daily tasks, including assisting with grocery shopping and attending medical appointments. Staff involved in Mr McGuire's care and management ha[ve] opined that he will require considerable ongoing support and that it is unlikely he will be able to live independently. Specifically, in the absence of support, Mr McGuire will struggle to comply with various appointments, understand his rationale for medication and legal conditions, and all of which may increase his risk of being breached by Mental Health Review Tribunal (MHRT). This in return will significantly impact his engagement with the community” (Ex. CP-1, tab 6, p.3).

64. She referred to a number of risk factors, including poor planning and emotional regulation skills leading to failure to comply with his medication regime and attend necessary appointments, such as with a psychiatrist; poor compliance with supervision; inability to manage interpersonal conflict leading to aggressive responses to emotionally challenging situations; limited capacity to establish and maintain personal relationships; impulsivity and poor behavioural regulation; and an obsession or compulsion around access to sexual material.

65. High risk situations were noted to be as follows:

“•   Instances of conflict and disagreements with others

•   Disengaging from support and services

•   Engaging in frequent use of alcohol and illicit drugs

•   Provocation or conflict with other residents and staff

•   Inconsistences in staffing and introduction of many new staff members

•   Spending time with other antisocial peers

•   Disengagement from pro-social activities such as regular church attendance

•   Refusing medical intervention and psychiatric treatment” (Ex. CP-1, tab 6, p.8).

66. Circumstances which operate to reduce risk were identified as follows:

“•   Being provided with routine level of support by known, trusted staff members who are familiar with Mr McGuire's needs, offence cycle and behaviour support plan

•   Staff who can provide reassurance during times of stress, and who can impart adaptive coping skills

•   Regular engagement with service activities and staff

•   Regular engagement in recreational and vocational activities to provide Mr McGuire with sense of achievement and mastery

•   Regular receipt of support from staff to provide calm but confident reassurance and support at times of stress and are skilled in de-escalation procedures

•   Ongoing compliance with medical regime” (Ex. CP-1, tab 6, p.8).

67. Ms Gunatillake’s second risk manageability assessment, of 4 November 2016, was consistent with the October report.

68. Dr Andrew Ellis prepared a psychiatric risk assessment relevant to the defendant in March 2017, although it was limited by the defendant’s refusal to consent to a psychiatric interview and assessment. In his report of 31 March 2017, Dr Ellis concluded that the defendant was at a moderately high risk of committing another serious sexual offence.

69. Dr Ellis had previously seen the defendant, in December 2013, March 2015, March 2016, and May 2016, (with earlier reports forming part of the evidence) and he relied on his earlier assessments of the defendant, together with documentation relevant to him, and interviews with Dr O’Dea and a New Horizons staff member.

70. Dr Ellis observed that the defendant lived alone in a unit that was one of nine in a residential complex, and is independent in cooking and cleaning. His prescription medication was an anti-libidinal (cyproterone acetate 100mg daily) and an anti-alcohol craving medication (acamprosate 666mg three times daily). He received support and supervision from New Horizons and was obliged to consult a psychiatrist (Dr O’Dea) as part of his conditions of release. It was believed that the defendant was generally compliant with medication, although missing occasional doses, and generally compliant with supervision.

71. On consultation in May 2016 Dr Ellis had concluded that the defendant had an intellectual disability, a substance use disorder, and personality dysfunction. More recently, Dr O’Dea had noted that the defendant appeared to have a fluctuating psychotic disorder, although specific treatment was not indicated. He was noted to be reluctant to share his internal life or to discuss his sexual offending.

72. Dr Ellis thought that the diagnoses he had made of the defendant in 2016 remained current. The defendant continued to have an intellectual disability placing him in a range more than two standard deviations below the mean in the population. He consistently required assistance with literacy, life skills, problem solving and emotional regulation. Whilst, with support, there could be improvement in areas such as self-care, an intellectual disability is chronic.

73. Although now in partial remission (when living in a controlled environment), the defendant continues to have an alcohol use disorder, and possibly a cannabis use disorder.

74. There continues to be a basis to conclude that the defendant has a personality disorder, with difficulties in inter-personal relationships, impulse control, and affect regulation. Traits consistent with an antisocial personality disorder are indicated.

75. Although there is some evidence of sexual pre-occupation, Dr Ellis thought that there was insufficient evidence to make any firm conclusions about the existence of a paraphilia or psychosexual disorder.

76. Whilst noting a “moderately reduced” risk given the stabilisation of the defendant’s mental state (since early 2016) Dr Ellis referred to the Static-99 tests to record a risk assessment of moderate – high for sexual reoffending. He referred to the various risk measurement tools as identifying,

“[…] a number of risks factors for future offending which continue to be present. Identified risk factors are poor coping skills arising from his intellectual disability although there has been some improvement in this area with support, a lack of stable personal relationships persists evidenced by continue irritation and stressful interaction with his sister and other family members, impulsivity, historical substance use, antisocial personality traits, his history of offending, including whilst on conditional liberty, negative attitudes towards his offences and authority (which may have moderated more recently, but not demonstrated to be sustainably change), childhood maladjustment, employment problems and poor prior engagement with rehabilitation.

Risk factors specific to sexual offending include targeting a stranger, using physical force during the assault and a history of general offending, He has been found with weapons on at least two occasions during his other offences. His past physical and sexual aggression has been of the kind where physical and psychological injury could be expected. These specific factors are historical, therefore do not alter with treatment or rehabilitation” (Ex. CP-1, tab 25, p.11).

77. Exposure to treatment had, in Dr Ellis’ view, “yet to sustainably moderate this risk without a legal framework to support it” (Ex. CP-1, tab 25, p.12). He considered that the defendant would be unlikely to continue with treatment and rehabilitation voluntarily.

78. Dr Ellis concluded that anti-libidinal medication remained necessary as a means of risk reduction, as did medication to reduce the craving for alcohol. He noted,

“Ultimately risk is managed by the type of clinical care provided, rather than specific legal orders. His current care is a mix of general NGO disability services, government disability services, general health services and a private forensic psychiatrist. Legal orders may serve to facilitate this clinical care. At this point it is not considered likely he would voluntarily accept the recommended risk management strategies that are currently in place”

(Ex. CP-1, tab 25, p.14).

79. Dr Ellis had regard to the capacity for the risk posed by the defendant to be managed by guardianship, but noted the greater powers for compulsion as to anti-libidinal medication, and recall in the event of breach, that applied to forensic patients. He also referred to the differing aims of guardianship, and forensic orders, with the former focused on the interests of the person subject to guardianship, whilst the latter is concerned with community protection.

80. He concluded that it would be useful to further investigate the capacity of a guardianship order to compel compliance with anti-libidinal medication, and suggested a 6 month extension order in the interim, until that aspect of the matter was investigated.

81. In her report of 10 July 2016, prepared for the proceedings ultimately dealt with by Campbell J in 2016, and referred to by Dr Ellis in his 2017 report, Dr Kerri Eagle, forensic psychiatrist, concluded that the defendant was at moderate risk of sexual and violent reoffending. She opined that the risk could be adequately managed by biological and social interventions mandated by a forensic order.

82. Professor Susan Hayes, forensic psychologist, also prepared a report for the 2016 application. After administering the Kaufman Brief Intelligence Test (2nd edition), and the Vineland Adaptive Behaviour Scales-II, Professor Hayes concluded that the defendant fell within the borderline to mild range of intellectual disability. His functional age for verbal and non-verbal reasoning skills are comparable to those of a child in Year 4 at school. An assessment of the defendant’s static and dynamic risk factors found a significant correlation with re-offending by sex offenders with an intellectual disability. The Static-99 and ARMIDILO-S tests gave results consistent with moderate – high risk.

83. Professor Hayes concluded that the risk posed by the defendant of doing harm to others may increase if he ceased to be a forensic patient. She thought management under mental health provisions was necessary, inclusive of anti-libidinal treatment.

Determination

84. The consistent opinion of the various court appointed experts who have provided reports in evidence in these proceedings is that the defendant poses a moderate to high risk of sexually reoffending, with Ms Gunatillake finding a low to moderate risk existed.

85. Further, there have been some troubling recent changes in the defendant’s compliance with the supervisory regime to which he is currently subjected, with the defendant increasingly resistant to face to face contact with CJP staff, and frequently expressing reluctance to continue with anti-libidinal medication, or to consult Dr O’Dea. It is a matter of concern that the defendant’s previous key worker with the CJP, a woman, sought to step down from acting in that capacity because of perceived sexual advances from the defendant, and safety issues.

86. On the assumption that the evidence adduced by the Attorney can be proved, it can be readily concluded that the defendant poses a risk of causing serious harm to others if he ceases to be a forensic patient. The terrible consequences that would flow from the manifestation of that risk make it, in the Court’s conclusion, an unacceptable risk as contemplated by clause 2(1)(a) of Schedule 1 to the Act.

87. There is some evidence before the Court that a guardianship order may have the capacity to provide a less restrictive means of managing the risk posed by the defendant. However, as touched upon by Dr Ellis, there are significant differences between the aims of guardianship, and the aims of a forensic order pursuant to Schedule 1 to the Act.

88. Section 4 of the Guardianship Act 1987 (NSW) provides for a number of general principles that those exercising functions under the Act must observe. They include,

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

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

(c) – (h) […].”

89. By contrast, the paramount purpose of an extension order is to protect the community by managing the unacceptable risk a defendant may pose of causing serious harm to others. The MHRT effects that purpose by conducting reviews of a forensic patient at least every 6 months, pursuant to s 46 of the Act; and, where necessary because of a breach of a release order or a deterioration in the patient’s condition such that there is an elevation of risk, by ordering the apprehension of a forensic patient pursuant to s 68. That section provides a power for the Tribunal to order the detention of a patient: s 68(2)(b).

90. Neither NCAT nor a person exercising the authority of a guardian has comparable powers. Further, a guardianship order would not provide the power to compel the defendant to accept forensic psychiatric care, or to monitor his compliance.

91. Although all of the relevant experts have concluded that anti-libidinal medication is a necessary measure for the protection of the community from the commission of sexual offences by the defendant, there is a real question as to whether NCAT would make orders providing for the defendant’s compulsory treatment, since its utility is in its contribution to the protection of the community, rather than in promoting the defendant’s health.

92. Having regard to the very real limitations to which guardianship is subject, and its objectives, I am not able to conclude that guardianship provides an adequate means of managing the risk posed by the defendant: clause 2(1)(b).

93. On the evidence before the Court, an interim extension order is necessary to protect the community. Reports from relevant experts are required to assist the Court to determine whether the final relief sought by the Attorney should be granted.

94. On that basis, the orders set out at [2] above were made.

The Question of Publication

95. At the interim hearing, the defendant made an application for his name to be replaced by a pseudonym pending the final determination of the proceedings. The defendant relied upon s 162 of the Mental Health Act 2007 (NSW), which provides:

“162   Publication of names

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

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

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

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

whether before or after the hearing is completed.

Maximum penalty:

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

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

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

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

96. Although it considers an appeal against orders made by the MHRT, and not the exercise of powers conferred on this Court by Schedule 1 to the Act, the defendant submitted that Attorney General for the State of New South Wales v XY [2014] NSWCA 466 provided authority for the use of a pseudonym in these proceedings.

97. In that decision, Basten JA (with whom McColl JA agreed) said (at [187]),

“It may be accepted that s 162 applies to the proceedings in this Court, so that it is appropriate that this judgment not use the respondent's name.”

98. The Court was also referred to a number of decisions of single judges of this Court, who had agreed to anonymise the relevant defendant’s name in accordance with s 162, or out of deference to the policy behind it: B v St Vincents Hospital Sydney Limited [2016] NSWSC 39 at [10]; M v Mental Health Review Tribunal & Ors (No 2) [2016] NSWSC 572 at [38]; A by his tutor Brett Anthony Collins v Mental Health Review Tribunal [2010] NSWSC 1363 at [3]; Sarah White v Local Health Authority & Anor [2015] NSWSC 417 at [3]. None of those decisions relate to proceedings in the Supreme Court for an extension order pursuant to Schedule 1 of the Act.

99. There are decisions of this Court in which an application for use of a pseudonym have been refused, s 162 of the Act having been found to have no application: Attorney General v Doolan [2015] NSWSC 1773; Attorney General v Huckstadt (No 2) [2017] NSWSC 595; Attorney General for the State of New South Wales v Boyce (No. 2) [2017] NSWSC 648.

100. In Boyce No 2, at [89] – [90], when considering a similar application to the present, I concluded,

“Whilst the spirit of [ss 162 and 189 of the Act] may be of some relevance, I do not accept that the letter of them applies to this Court, if for no other reason than that a court is not a “person”. Section 21 of the Interpretation Act 1987 (NSW) defines “person” as including an individual, a corporation and a body corporate or politic. Whilst that definition is inclusive and not exclusive, there is authority that “person” in the parallel Federal context does not extend to a court: Kizonv Palmer(1997) 72 FCR 409 at 430-31;Osborne v R [2014] NSWCCA 17; (2014) 283 FLR 97.

Further, it is apparent that those provisions apply to proceedings before the MHRT and not to proceedings before this Court. Accordingly, the question of whether non-publication orders should be made falls to be decided under the [Court Suppression and Non-publication Act 2010].”

101. In that case, and in Attorney General of New South Wales v Kereopa(No 3) [2017] NSWSC 929 this Court refused to make orders pursuant to the Court Suppression and Non-publication Orders Act 2010 (NSW) for the protection of the respective defendants.

102. Here, it was not possible to fully consider the matter as the defendant was not in a position to advance any evidence in support of the application, and counsel for the Attorney was not instructed with respect to it.

103. Whilst I continue in the view that s 162 does not apply to matters such as this, and suppression orders are generally not appropriate, I made an interim suppression order in this matter to preserve the status quo established by Button J in Attorney General of New South Wales v HRM (No 2) and Campbell J in Attorney General of New South Wales v HRM, pending the final hearing.

104. Publication of this judgment at this interim stage would have the practical effect of frustrating the 2016 anonymisation orders made by each of Button J and Campbell J that year. (It must be observed however that, since the original criminal proceedings and many of the earlier applications for extension orders are all in the public domain, there may be little utility in any event in non-publication orders.)

105. The final question of whether the defendant should be referred to by a pseudonym, or given the protection of a suppression order, should be resolved once both parties have had an opportunity to take instructions, and put such evidence and submissions to the Court as are considered desirable, at the final hearing of the Attorney’s Summons.

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Amendments

20 September 2018 - Final Suppression Order refused by Bellew J on 15 November 2017.

Decision last updated: 20 September 2018