Attorney General of New South Wales v McGuire

[2015] NSWSC 152

Supreme Court

New South Wales

Medium Neutral Citation:	Attorney General of New South Wales v McGuire [2015] NSWSC 152
Hearing dates:	2 March 2015
Decision date:	09 March 2015
Jurisdiction:	Common Law
Before:	Hoeben CJ at CL
Decision:	1.Pursuant to clause 6(5) of Schedule 1 of the Mental Health (Forensic Provisions) Act 1990 ('the Act"): (a)The court appoints two qualified psychiatrists or psychologists Professor Susan Hayes and Dr Andrew Ellis to conduct separate examinations of the Defendant and to furnish reports to the Supreme Court on the results of those examinations by 30 March 2015; (b)The Defendant is directed to attend those examinations. 2.Pursuant to clause 10 of Schedule 1 of the Act the Defendant is subject to an Interim extension order for a period of 28 days from 21 March 2015. 3.I list the proceedings before the court on 17 April 2015 to hear the State's application to extend the interim extension order referred to in order 2 above. 4.The Plaintiff to file and serve any evidence for the final hearing by 6 April 2015. 5.The Defendant to file and serve any evidence for the final hearing by 13 April 2015. 6.The Plaintiff to file and serve written submissions 5 days prior to the final hearing. 7.The Defendant to file and serve written submissions 1 day prior to the final hearing. 8.The parties are granted leave to approach the Listing Manager in the Supreme Court Registry to obtain a date for the final hearing, noting: (a)The parties estimate of 1 - 2 days; and (bThere is some need for urgency/expedition as the matter concerns the liberty of the Defendant and must be heard and determined before 12 June 2015. 9.I Grant liberty to apply on one day's notice. Note: 10In relation to the court appointed experts (referred to in order 1 above) the Court notes the parties will send a joint letter of instruction (and accompanying bundle of documents) on or before 9 March 2015.
Catchwords:	CRIMINAL LAW – forensic patient – serious sexual offences found proven at special hearing – limiting term expired – further extension order made – extension order due to expire 21 March 2015 – application for interim extension order at preliminary hearing – regime under Schedule 1 to Mental Health (Forensic Provisions) Act similar to Crimes (High Risk Offenders) Act – similar principles to be applied – defendant requires current level of supervision – need to ensure safety of community – moderate to high risk of relapsing into violent conduct – interim extension order made.
Legislation Cited:	Crimes Act 1900 – s6I1 Crimes (High Risk Offenders) Act 2006 Mental Health (Forensic Provisions) Act 1990
Cases Cited:	Attorney-General for the State of New South Wales v Gallagher [2006] NSWSC 340 Attorney General of NSW v McGuire [2013] NSWSC 1862 Attorney General of NSW v McGuire (No 2) [2014] NSWSC 288 Attorney General for NSW v Tillman [2007] NSWCA 119 Cornwall v Attorney-General for New South Wales [2007] NSWCA 374 Director of Public Prosecutions (WA) v GTR [2008] WASCA 187; 198 A Crim R 149 Director of Public Prosecutions (WA) v Williams [2007] WASCA 206; 176 A Crim R 110 State of NSW v Colin John Fisk [2009] NSWSC 778 State of NSW v Manners [2008] NSWSC 1242 State of NSW v Graeme Allan Reed (Preliminary) [2011] NSWSC 625 State of NSW v Thomas (Preliminary) [2011] NSWSC 118 State of NSW v Thomas (Final) [2011] NSWSC 307 Tillman v Attorney-General for the State of NSW [2007] NSWCA 327; 70 NSWLR 448
Category:	Principal judgment
Parties:	Attorney General of New South Wales – Plaintiff Herbert Robert McGuire - Defendant
Representation:	Counsel: Ms H Bennett – Plaintiff Mr P Coady - Defendant Solicitors: IV Knight, Crown Solicitor for NSW – Plaintiff Legal Aid NSW - Defendant
File Number(s):	2015/46297

Judgment

1. HIS HONOUR:

Nature of proceedings

The Attorney General (the plaintiff) seeks the orders set out in the Summons filed on 13 February 2015.

1. Pursuant to clause 6(5) of Schedule 1 to the Mental Health (Forensic Provisions) Act 1990 (MHFP Act) an order appointing two psychiatrists/psychologists to conduct examinations of Mr McGuire (the defendant) and to provide a report and for him to attend those examinations.

2. Pursuant to clause 10 of Schedule 1 to the MHFP Act an interim extension order commencing 21 March 2015 and expiring 28 days later.

3. Pursuant to clause 1 of Schedule 1 to the MHFP Act an order for the extension of the defendant’s status as a forensic patient from the date of the order and expiring 2 years later.

2. This judgment relates to the preliminary hearing in which the plaintiff sought that Orders 1 and 2 be made. Should those orders be made, the plaintiff will seek Order 3 at a subsequent final hearing.

3. The defendant opposes the making of all three orders.

Background

4. The defendant was born in November 1972 and is now aged 42. His criminal history commenced in 1996 when he was aged 24. Convictions exist for breach of an apprehended violence order, malicious damage, unlawfully use conveyance, stealing, drive in dangerous manner, take conveyance without consent, assault with intent, larceny, destroy or damage property, behave in offensive manner, having custody of offensive implement in a public place, drive under the influence of alcohol or drugs, drive recklessly or furiously or speed in dangerous manner, use unregistered and uninsured vehicle, drive while unlicensed, having an unauthorised number plate, possess or use prohibited weapon, disobey request to stop for breath test and drive while disqualified.

5. On 17 August 2006, the defendant was charged with three offences contrary to s61I of the Crimes Act 1900, namely that he had sexual intercourse without consent, knowing that the victim was not consenting (the index offences). He was also charged with one offence of aggravated break and enter, and commit a serious indictable offence. The facts of the three index offences were as follows.

6. At midday on 4 April 2006 the defendant was drinking alcohol with two acquaintances at premises adjacent to the victim’s residence. During the course of the afternoon, the defendant consumed at least 8 stubbies of beer (probably more) and observed the victim in the next door premises. He remarked that “she would be all right for a girlfriend”.

7. Thereafter the defendant went to the victim’s residence, asked if he could come in for a drink and spoke of “wanting to be with [the victim] and wanting to be [her] friend”. The victim refused his request. The defendant then went into the backyard of the house and played with the victim’s young daughter. When the defendant followed the victim’s daughter into the house, the victim asked him to leave. The defendant refused.

8. The victim walked to the front of the house and successfully enticed the defendant outside. Having done so, the victim secured the latch on the front door and went further inside the house to obtain the key to lock the front door. While she was standing in the living room, the defendant entered the house and committed a series of sexual assaults upon her.

9. The conduct forming the first count involved forced penile/vaginal intercourse that extended between five to fifteen minutes and caused the victim to feel some pain. The victim struggled and even managed to hit the defendant over the head with a telephone but he continued undeterred.

10. The conduct forming the second count involved forced penile/anal intercourse that continued for some five to ten minutes.

11. The conduct involving the third count involved forced penile/vaginal intercourse, although by this time with a "soft" penis which the victim succeeded in yanking. After words were exchanged, the defendant left the house saying he would "come back next week to finish the job".

12. The sexual assaults were witnessed by the victim's five year old daughter.

13. In October 2007, subsequent to the index offences, the defendant was charged with inflicting grievous bodily harm on a police officer, assaulting a police officer and resisting an officer in the performance of his duty. He was convicted of the inflict grievous bodily harm offence on 19 June 2009 with the other two offences taken into account on a Form 1. The circumstances were that a police officer suffered a fractured hand requiring surgery when the defendant was resisting arrest. At the time he was arrested, he was too intoxicated and violent to be interviewed.

14. On 25 August 2008 in the District Court at Nowra, Garling DCJ determined, after an inquiry conducted in accordance with the MHFP Act, that the defendant was not fit to be tried. The existence of an intellectual disability provided the basis of the finding. The defendant, who was then in custody, was referred to the Mental Health Review Tribunal (the Tribunal), and was remanded in custody.

15. On 4 September 2009, Murrell DCJ held that on the limited evidence available, the defendant had committed each of the index offences charged. Her Honour ordered, under s23(1)(b) of the MHFP Act, that the defendant be subject to a limiting term of five years for the offences, which would expire on 31 December 2013.

16. Under s24 of the MHFP Act the defendant became a forensic patient, subject to regular review by the Mental Health Review Tribunal (the Tribunal).

17. Under s24 of the MHFP Act, the defendant was referred to the Tribunal together with an order that he be detained in custody as a forensic patient.

18. On 26 August 2013, the Tribunal, pursuant to s47(1)(b) of the MHFP Act, released the defendant into the community subject to a comprehensive set of conditions.

19. By reason of the expiration of the limiting term on 31 December 2013, the defendant's status as a forensic patient was to cease. However, following an application made by the plaintiff (Attorney General of NSW v McGuire [2013] NSWSC 1862) Davies J made an interim extension order under cl 10 of Sch 1 of the MHFP Act (the preliminary hearing). This extended the defendant’s status as a forensic patient from 31 December 2013 for a period of 28 days. Other interim orders were subsequently made, such that the order was ultimately set to expire on 25 March 2014.

20. A final hearing of the application by the plaintiff for an extension order was held on 4 - 5 March 2014 before Garling J (Attorney General of NSW v McGuire (No 2) [2014] NSWSC 288 (McGuire No 2 [2014])). The plaintiff had initially sought an order for a period of five years, however, this was varied at the hearing to a period of two and a half years. The Court handed down its decision on 21 March 2014, making an order for an extension order for a period of 12 months.

21. The defendant’s current extension order expires on 21 March 2015.

22. On 21 March 2014 the Tribunal concluded that the previous conditions of release were necessary and should continue. It amended the existing orders for the defendant’s release from 70 hours of supervision to 35 hours.

23. On 3 June 2014 the Tribunal determined that the conditions were necessary and should continue.

24. On 2 August 2014 the Tribunal determined that the existing orders were necessary and should continue.

25. On 11 December 2014 and 17 February 2015 Dr Lennings, psychologist, provided reports to the plaintiff in this application.

Applicable legislation and legal principles

26. Applications for extension orders may only be made in relation to forensic patients (MHFP Act – Schedule 1, clause 3). A forensic patient is defined within the MHFP Act at s42. There is no issue that the defendant is currently a forensic patient.

27. Section 40 of the MHFP Act sets out the objects of Pt 5 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.”

28. The objects which relate to Pt 5 extend to Schedule 1 by virtue of s54A (within Pt 5) which provides as follows:

“Extension of status as forensic patient

A person’s status as a forensic patient may be extended in accordance with Schedule 1.”

29. Under Schedule 1 of the MHFP Act, the test to be applied by the Court in relation to the making of an extension order is set out in clause 2:

“Clause 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 (including classification as an involuntary patient under section 53).

(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.”

30. Clause 5 of Schedule 1 sets out the requirements with respect to applications for an extension order:

Clause 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.”

31. A preliminary hearing into the application for an extension order is to be conducted by the Supreme Court within 28 days after the application is filed or within such further time as the Court may allow (clause 6(4)). The task of the Court is:

“6(6)   If, following the preliminary hearing, it is not satisfied that the matters alleged in supporting documentation would, if proved, justify the making of an extension order, the Supreme Court must dismiss the application.”

32. Matters to be considered by the Court are set out in clause 7(2) of Schedule 1:

“7    Determination of application for extension order

…

(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 Director-General of the Ministry of Health, the Commissioner of Corrective Services, the Director-General 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.

…”

33. Clause 10 of Schedule 1 makes provision for an interim extension order:

“10    Interim extension order

The Supreme Court may make an order for the interim extension of a person’s status as a forensic patient if, in proceedings on an application for an extension order, it appears to the Court:

(a)    that the limiting term or existing extension order to which the forensic patient is subject will expire before the proceedings are determined, and

(b)    that the matters alleged in the supporting documentation would, if proved, justify the making of an extension order.”

34. The test to be applied by the Court in determining whether a forensic patient “can” be made the subject of an extension order is set out in clause 2 of schedule 1. A number of the phrases used in that clause are identical to those found in the Crimes (High Risk Offenders) Act 2006 (HRO Act). It was accepted by the parties that judicial consideration of those phrases in the context of the HRO Act has relevance to the meaning of those same provisions as found in the MHFP Act.

35. Clause 2 of Schedule 1, provides that a forensic patient can only be made the subject of an order “if and only if” the Court is satisfied on a number of issues. Of this phrase McClellan CJ at CL in Attorney-General for the State of New South Wales v Gallagher [2006] NSWSC 340 said at [34]:

“34   … The caution that an order can only be made “if and only if” the Court is relevantly satisfied emphasises the care with which the Court must approach the question of whether to make orders imposing continuing restrictions, in whatever form, on a person’s liberty….”

36. Clause 2 further requires the Court to be satisfied to a “high degree of probability” in relation to its satisfaction as to the provisions of clauses 2(1)(a) and (b). This constitutes a standard of proof which is higher than the civil standard but lower than the criminal standard.

37. In Cornwall v Attorney-General for New South Wales [2007] NSWCA 374 at [21] the Court of Appeal (Mason P, Giles JA and Hodgson JA at 1) observed that:

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

38. The position is further clarified by the terms of clause 2(2) which provides that the Court:

“Is not required to determine that the risk of a person causing serious harm to others is more likely than not in order to determine that the person poses an unacceptable risk of causing serious harm to others.”

39. In State of NSW v Colin John Fisk [2009] NSWSC 778 Howie J said at [27] that the prediction the Court undertakes as to the risk of committing a further offence is concerned with the period in which it can make an order – i.e. a period of 5 years (citing Mason P in Tillman v Attorney-General for the State of NSW [2007] NSWCA 327; 70 NSWLR 448 at [8]).

40. The Court’s task at the preliminary hearing stage was stated by Johnson J in State of NSW v Manners [2008] NSWSC 1242 at [8] as follows:

8    In Attorney-General for the State of New South Wales v Tillman [2007] NSWCA 119 at [98], the Court of Appeal emphasised that the task of the Court, at the preliminary hearing stage, was not to weigh up the documentation or to predict the ultimate result or to consider what evidence the Defendant might call at the final hearing. It has been said that the test to be applied at this stage is similar to the prima facie case test applied by magistrates as part of committal proceedings: Attorney-General for the State of New South Wales v Hayter at [6]; State of New South Wales v Brookes [2008] NSWSC 150 at [13].”

The parties agreed that this accurately stated the Court’s task.

41. The phrase “unacceptable risk” is not defined by the MHFP Act. In first instance decisions in New South Wales, a difference of opinion has emerged. The current position may be summarised as follows. In State of NSW v Thomas (Preliminary) [2011] NSWSC 118 R A Hulme J set out his preliminary view that an “unacceptable risk” is one where “the safety and protection of the community cannot be ensured unless an order is made” (at [20]). In his final decision in relation to the same application (State of NSW v Thomas (Final) [2011] NSWSC 308 at [28]) R A Hulme J indicated that the words “unacceptable risk” ought to be given their everyday meaning in the context of the provision in which they appear and having regard to the objects of the Act (at [58]). This approach has been followed by Fullerton J and McCallum J.

42. In contrast, Davies J has applied a “balancing exercise” approach which he took from two decisions of the Western Australian Court of Appeal (Director of Public Prosecutions (WA) v Williams [2007] WASCA 206; 176 A Crim R 110 per Wheeler JA, with whom Le Miere AJA agreed) at [63]; Director of Public Prosecutions (WA) v GTR [2008] WASCA 187; 198 A Crim R 149 at [27]). In this approach the test for “unacceptable risk” involves a balancing exercise of the following factors. First, the likelihood of committing a further serious offence; second, the gravity of such an offence; and third, the consequences of an order on the offender.

43. In State of NSW v Graeme Allan Reed (Preliminary) [2011] NSWSC 625 McCallum J noted the two approaches and cited the submissions of the State “that it may be appropriate to treat the interstate authorities (and implicitly the decision of Davies J to the extent his Honour relied upon those authorities) with caution”. Her Honour observed “the impact of an order on the offender is not a factor in the relevant balancing exercise, which focuses rather on the assessment of factors relevant to the content of the risk itself (such as the degree of risk and likely consequences if an offence is committed)” (at [15]). Otherwise her Honour did not consider that it was necessary to resolve the issue.

44. There are thus two approaches which have been taken by first instance decisions in NSW as to what factors the Court ought have regard to in considering what will constitute an “unacceptable risk”. The issue as to which of these approaches is correct remains to be resolved. I am of the opinion that the preferable approach is that adopted by R A Hulme J and I propose to apply it in this case.

The evidence

45. At the time of the first extension order application, the Court was provided with expert assessment evidence from a psychiatrist, Dr Andrew Ellis, and a psychologist, Professor Susan Hayes.

46. Dr Ellis concluded that the defendant met the criteria (DSM 5) for intellectual disability. Dr Ellis said that the defendant’s level of function showed consistent requirements for assistance in literacy, life skills, problem solving and emotional regulation. He also identified an alcohol use disorder, but noted that in the defendant’s partially controlled environment, this disorder was in remission. He also noted that the defendant had been assessed at various times as suffering from a personality disorder and that there was sufficient information to conclude that he had adult anti-social personality traits.

47. In relation to ongoing risk factors for future offending, Dr Ellis stated:

“Identified risk factors are poor coping skills arising from his intellectual disability, lack of stable relationships, impulsivity, historical substance abuse, anti-social personality traits, his history of offending, including whilst on conditional liberty, negative attitude towards his offences and authority, childhood maladjustment, employment problems, poor prior engagement with rehabilitation.”

48. Professor Hayes, who appears to have had a good rapport with the defendant, confirmed that he suffered from an intellectual disability citing performance on a number of psychometric tests to confirm this. In keeping with the opinion of Dr Ellis, she concluded that the defendant met three sets of DSM 5 criteria: intellectual disability, anti-social personality disorder and alcohol use disorder. Professor Hayes had additionally carried out risk assessments on the Static-99 test which showed that the defendant fell into the category of moderate-high risk (of sexual re-offending). Professor Hayes noted, however, that this instrument did not include populations of individuals with disabilities. She also noted that the static-2002R test had included a small sample of sex offenders with intellectual disabilities and that on that instrument the defendant was placed in the high risk category.

49. Professor Hayes assessed the defendant on an instrument specifically designed for assessing risk in intellectually disabled sex offenders, the ARMIDILO-S (Assessment and Risk Manageability of Individuals with Developmental and Intellectual Limitations who offend – sexually). She concluded that the defendant presented an overall convergent risk to a moderate level and identified a similar range of risk factors for future offences as set out by Dr Ellis. Overall, she was of the opinion that the defendant posed a moderate to high risk of causing serious harm to others which could be significantly reduced by risk management strategies.

50. There was evidence in the form of reports of personnel from New Horizons who provide some supervision for the defendant. He continues to live alone in the community in a house in Panania. To occupy himself he works on a car he is restoring and collects and sells scrap metal. He continues to receive supervision and support from a case manager from New Horizons as part of the Community Justice Program of no less than 35 hours per week. He remains subject to all of the other conditions attached to the order for his conditional release.

51. The most recent review under s46 of the MHFP Act occurred on 2 December 2014. On that occasion the Tribunal was satisfied that there were reasonable grounds for believing that the present arrangement for care, treatment and release of the defendant were necessary and sufficient for the protection of him from serious harm and for the protection of others from serious harm. The Tribunal did not vary any of the conditions already in place.

52. On behalf of the defendant, a number of reports have been obtained from a psychologist, Dr Seidler. Her most recent reports advise as follows:

“Based on my contact with Herbert to date, my impression is very similar to that of my colleague Caroline Hare from last year. That is, he is not really a candidate for psychological treatment. Let me preface this by saying that Herbert is pleasant and willing to attend sessions and he is very talkative through the sessions but there are three primary issues with his treatment. Firstly, the offence happened many years ago now and under a particular set of circumstances that given Mr Herbert’s cognitive and psychological functioning, he cannot much remember or access or discuss in enough detail that we can reasonably work on relapse prevention. Secondly, Mr Herbert is a low functioning individual who is not psychologically minded, reflective or able to consistently or reasonably access his thoughts and feelings which is essential to profit from an engage in psychological treatment. This means the content of sessions is often confusing, circular, and unrelated to the primary issues, such that he needs a great deal of assistance to focus. This is not his fault but a function of how he operates cognitively and socially. Thirdly, despite the seriousness of Mr Herbert’s sexual offending, he is a low risk offender in terms of sexual deviancy. His primary issues are alcohol abuse, negative peer associations (including his social vulnerability to these kinds of people) and an unstructured personal routine. These risks remain and are best managed by intensive case management and disability services support. There is no need for psychological treatment to address these issues on an ongoing basis. …” (17 September 2004)

“I do not see Herbert as possessing significant mental health issues that require psychological counselling. He does express low mood and frustration at times but this usually in relation to normal life events and not something that in my opinion required psychological therapy. He does need someone who he can talk to on an ongoing basis so he can debrief about those things that impact upon him, such as time with his daughter etc. In my opinion, ongoing disability and case management support, which includes someone he has a positive enough relationship with that he can talk to and get some support from will meet his needs on an ongoing basis. However, if this situation changes, he starts to drink etc, or has a significant relationship setback or if his mental health obviously deteriorates that this changes things and he can always come back to our Service. It is not that I don’t want to see him but that I don’t consider he has ongoing need for treatment at this time that require specialist intervention. ...” (6 October 2004)

53. For this preliminary application, two reports were obtained by the plaintiff from Dr Lennings, psychologist, dated 11 November 2014 and 17 February 2015. In the November 2014 report, Dr Lennings had this to say about “risk assessment”:

“24   In reviewing my risk assessments previously reported in my reports I see no reason to change my prior assessment level, despite the good response to date from Mr McGuire to his return to the community and Professor Hayes moderation of dynamic risk to moderate. Mr McGuire remains at moderately high risk of committing another serious offence, with abstention from alcohol the most likely inhibitor of such an offence. Factors that continue to underlie Mr McGuire’s risk remain his lack of insight into his own or others feelings and motivations, his high impulsivity, his hedonism or pleasure seeking orientation, and the concern I have that left to his own devices he would rapidly resume a habit of significant alcohol intake. However, it appears likely that as long as Mr McGuire abstains from alcohol he is not likely to commit another serious offence.

25   The mitigation of risk is dependent upon the identification of risk factors that can be managed within a community setting. In previous reports the primary treatment targets identified have been sexual deviancy and alcohol risk. More general risks include his impulsivity and hedonistic attitude to life. However, it is generally accepted by most of the people who have reviewed Mr McGuire, and thereby strengthens my opinion, that Mr McGuire is unlikely to suffer from any sexual deviancy.”

54. Dr Lennings set out his conclusions as follows:

“36   The primary needs for Mr McGuire are to abstain from alcohol, to be engaged in a reasonable daily routine and to have secure accommodation. In addition, an external incentive to manage his behaviour via supervision has been to date required. A dilemma arises in that Mr McGuire’s failure to internalise his need for restraint or abstinence suggests that he will likely continue to require supervision. …

37   The thesis of this report is that managing Mr McGuire’s access to alcohol remains a key issue in reduction of risk. There are three means to manage such a need. The first is via treatment (therapy) such that Mr McGuire gains insight into his need not to drink, develops behavioural skills in avoiding alcohol and maintains the motivation to remain abstinent. I see no likelihood of such treatment occurring or being of any real use in this situation.

38   The second approach is the administration of pharmacological agents such as Campral or Naltrexone to moderate his desire to drink alcohol, or, in the alternate, the administration of a drug such as Antabuse to establish an aversive reaction should Mr McGuire drink. However, both approaches require motivation by Mr McGuire to take such medication, especially as side effects (especially to Antabuse and Naltrexone) can be anticipated. …

39   The third approach is based on supervision. Supervision has two outcomes. The first is that it acts as a reminder to Mr McGuire that he is on an order and hopefully leads to some external inhibition of behaviour out of fear of being caught and returned to gaol. Such supervision needs to be highly visible and frequent in order to achieve that aim. Such supervision is designed to inhibit behaviour as well as increase the probability of medication adherence. The second role of supervision is to allow observation of Mr McGuire should he lapse in a significant way and intervene before his behaviour reaches a threshold where a serious criminal offence may occur. …

40   To date the supervision and accommodation package has established a situation where Mr McGuire is functioning as effectively as he can in the community, and this is attested by the comments of his family and the welcoming him back into their lives. In my view there is little more that can be gained by extending the supervision order on Mr McGuire other than making the decision that the supervision order will need to be effectively life long.

…

42 Mr McGuire is unlikely to be accepted as a mental health patient by a mental health service in the absence of any meaningful mental illness diagnosis. If he does travel to be with his brother, which seems to be the most likely outcome if the supervision order lapses, there are unlikely to be any services available for him or capable of acting as a case manager. Thus there appear to be no services that can provide a lesser level of restriction in managing his behaviour.

…

44   For the above reasons I see no prospect for managing Mr McGuire by any less restrictive means that by a supervision order if supervision of his behaviour is to be considered a requirement.

…

47   As I have noted earlier, the prevention of relapse into alcohol use remains a major concern and one most likely to minimise his risk of a serious criminal offence. To my mind the supervision and monitoring to date have been effective in preventing a relapse. His relapse potential in the absence of such monitoring remains unknown but I presume it to be high. If he were to remain in Sydney in proximity to liquor outlets, and especially if he were not supervised, I expect his relapse potential to be high. Living on an isolated property with his brother, who professes a strong anti alcohol/drug philosophy and without independent transport his potential for relapse is low. If he obtains independent transport I believe that the relapse potential will likely become high at some point.

…

49   In summary the current case management plan, with the removal of requirements for treatments of sexual deviancy appears adequate to maintain his risk if an extended supervision order is to be granted. Given the development of gambling in his behavioural repertoire it seems wise to maintain the scrutiny of his finances by the Guardianship Board. In the alternate, there seems little further rehabilitation that can occur for Mr McGuire: his continued placement under a supervision order delays the point at which time he will have to assume some responsibility for living offence free in society.”

55. Dr Lennings’ report of 17 February 2015 was based on a review by him of the records of New Horizons’ contact with the defendant between October 2014 and February 2015. Dr Lennings described the results of his documentary review as follows:

“3   The documents consisted of additional records of New Horizons’ contact with Mr McGuire. The documents reveal generally reasonable conduct although he appears to get sets against certain workers and becomes more difficult in his response to them. At times he can become quite aggressive to staff and at other times was reported as being aggressive in speech patterns. He shows an inability to focus on goals (e.g. obtaining his licence) although he continues to assert his desire to live in the country with his brother and to have some relationship with his daughter. He shows some signs of potential conflict about linking with family members – for instance he complained about how little money he received from his brother in Young when working for him, and also seemed “paranoid” about his sister’s reactions to his former partner and daughter but generally seems to have a positive relationship with them. He can get exasperated with his family at times referring to them “treating me like shit” but seemingly such outbursts are rare and he maintained contact with his sister. …

…

6   I had indicated in my previous report that the primary needs for Mr McGuire are to abstain from alcohol, to be engaged in a reasonable daily routine and to have secure accommodation. I raised my concern that on the strength of my reading of the New Horizon reports, Mr McGuire had not been able to achieve a satisfactory level of routine and structure in his life without assistance and supervisory support. Supervision currently supplements his lack of social support … In general he has abstained from alcohol but it seemed to me that was largely a function of his continued supervision and testing. In order to maintain the benefits of supervision it seems necessary to consider retaining his status as a forensic patient. It is difficult to see what alternate, meaningful source of supervision with sufficient force to ensure compliance from Mr McGuire there is other than the current system…

11   My views have not changed. The difficulty for Mr McGuire is he does not have insight into his behaviour, the anti-sociality of his underlying personality will encourage impulsive, self-gratifying and abrasive behaviour, and he will remain limited in his ability to set and achieve meaningful goals. His risk is based on a mix of historical features and maladaptive behaviours, and his lack of insight means that his risk rating is unlikely to change in the medium term. …”

Submissions

56. On behalf of the defendant it was submitted that the following matters were of primary consideration:

1. What is the assessment of risk of further serious sexual offending or serious sexual harm occurring and is that risk unacceptable.

2. What is the assessment of further serious harm occurring generally and is the risk unacceptable.

57. It was submitted by reference to the reports of Dr Ellis, Dr Hayes and Dr Lennings that the defendant’s responses were not indicative of sexual deviancy or a desire to inflict violence or pain for his own enjoyment within a sexual context.

58. It was submitted that the risk of the commission of further sexual offences or the infliction of sexual violence was low, given the relatively low level of supervision which the defendant was receiving. It was submitted that since 10 January 2014 he was receiving 35 hours of supervision per week, between the hours of 8.30am and 2.30pm Monday to Friday. He was not monitored at night or on weekends. The supervision provided does not include treatment by psychiatrists or psychologists but by intellectual disability health workers. It was submitted that the extent of the supervision was effectively to drive the defendant around to medical appointments and to assist him collect scrap metal. It was submitted that the supervision by New Horizons provides no other value than a regular structure for the defendant.

59. In relation to the risk of further serious offences or harm occurring generally, it was submitted that Dr Lennings’ conclusion as to supervision was incorrect. It was submitted that Dr Lennings’ conclusion was based on the assumption that if an extension order was not continued, the defendant would lose the structure and support that has been carefully built around him. It was submitted that even without the assistance of New Horizons, the defendant retained strong family support, particularly from his sister. There was an offer of support from his brother David who lives at Young.

57. It was submitted that should an extension order not be made, the defendant would not lose the support of the Community Justice Program, which could continue to provide services for him. It was submitted that the extent of that supervision at the present time was modest and principally involved providing transportation.

58. It was submitted that, if without supervision the prospects of the defendant relapsing into further serious offences or the commission of harm was low, the NSW Trustee and Guardian as the financial manager of his affairs would reduce the amount of alcohol and drug consumption available to him. It was submitted that the bulk of medical opinion was to the effect that no further psychological treatment was required by the defendant.

59. In summary, the submissions put on behalf of the defendant were:

“This Court could not be satisfied that Dr Lennings’ reports and other relevant documents relied upon the plaintiff would prove to a high degree of probability that the defendant poses an unacceptable risk of causing serious harm to others if the interim extension order was not granted because:

(a)   Dr Lennings concludes that there is little more that can be done for the defendant from a therapeutic or pharmacological point of view;

(b)   While the defendant has been assessed as a moderately high risk of causing serious harm, he lacks the primary indicator for sexual re-offending being sexual deviancy or preoccupation. Further he has not re-offended since his release.

(c)   The defendant has largely abstained from alcohol and drugs whilst in the community.

(d)   He doesn’t have significant matters of violence on his criminal record.

(e)   He retains sufficient family connection in the community to provide him with the structure and support that he requires.

(f)   He remains under a financial management order that controls his finances lessening the risk of gambling or alcohol abuse to arise.”

Consideration

63. In having regard to the requirements of the MHFP Act, and in particular Schedule 1, it needs to be kept in mind that the task of the Court is not to weigh up the documentation or to predict the ultimate result, but to consider the material globally and be satisfied on a prima facie basis that the relevant matters have been established. The submissions on behalf of the defendant are more appropriate to a final order rather than to a preliminary hearing.

64. By reference to Clause 7(2) matters, the safety of the community remains an important consideration. This is the first stated object of Part 5 of the MHFP Act. A matter which supports the making of the order sought by the plaintiff is the defendant’s criminal history involving as it does episodes of violence. While there is no evidence of sexual deviancy, the defendant’s relatively good behaviour since his release into the community is adequately explained by the very caring supervision of the New Horizons personnel who perform a function which goes far beyond that of the provision of transportation. They not only provide structure to the defendant’s life, but companionship which would be otherwise lacking. As appears from their reports, they are also able to divert the defendant from potential episodes of aggression.

65. The medical evidence, at least insofar as the preliminary hearing is concerned, is all one way. While the psychologists and psychiatrists have not identified any propensity towards sexual offending, all have confirmed the need for continuing supervision to prevent a lapse into alcohol and other substance abuse with consequent episodes of violence. The recent reports of Dr Lennings consistently emphasise that fact. He is blunt in his assessment that without the current level of supervision, the risk of the defendant relapsing into violent conduct is high.

66. The assessment of the medical practitioners is consistent with the various decisions of the Tribunal, to which reference has been made elsewhere in this judgment.

67. There is nothing in the orders sought by the plaintiff which runs counter to the judgment of Garling J when imposing the existing extension order (Attorney General of NSW v McGuire (No 2)).

68. Not only the medical evidence, but also the regular reports of the New Horizons personnel, make it clear that it is their presence and their ability to distract or divert the defendant from aggressive behaviour which have played a significant part in preventing offending during the operation of the current extension order. There is nothing in the reports of Dr Seidler to contrary effect.

69. It is not without significance that the following issues have arisen from time to time since the defendant was released into the community:

(a)   Consumption of alcohol.

(b)   Non-compliance with taking medication.

(c)   Refusing breath tests and blood tests.

(d)   Gambling.

(e)   Unstable relationship with family (including sister, brothers and daughter).

(f)   Poor coping skills and a perceived need (by the New Horizons personnel) of a need to see a psychologist/counsellor.

These issues have been largely ameliorated or defused by the actions of the New Horizons personnel.

70. It follows that I am satisfied to the standard relevant to a preliminary hearing, that the requirements of Clause 7(2) of Schedule 1 have been made out by the plaintiff.

71. Given the complexity of the material which is before the Court, and which will form part of the matters to be considered at the final hearing, I have concluded that it is appropriate to appoint two health professionals to examine the defendant and to provide a report. I am also satisfied that the existing extension order, to which the defendant is subject, will expire before the proceedings are determined.

72. For the purpose of the preliminary hearing, I am satisfied to a high degree of probability, that the defendant poses an unacceptable risk of causing serious harm if he ceases to be a forensic patient for the following reasons.

1. The existence of such a risk was accepted in Attorney General of NSW v McGuire (No 2) and there has been no real mitigation of those risk factors since.

2. More recently, Dr Lennings in his reports of November 2014 and February 2015 is of the opinion that the defendant continues to pose a moderately high risk of harm to others.

3. The New Horizons notes confirm the ongoing existence of risk factors associated with this moderately high risk.

4. In the circumstances, and giving the words “unacceptable risk” their normal meaning, the safety and protection of the community cannot be ensured unless an order is made and therefore the risk is unacceptable.

73. I am also satisfied on the basis of the material above to a high degree of probability, that the risk which has been identified cannot be adequately managed by other less restrictive means. While there has been some (albeit sparse) evidence of voluntary assistance which can be provided to the defendant should supervision cease, I am not persuaded that the defendant would participate in any voluntary programs. The effect of the evidence is that it is the punitive element which ensures his compliance with supervision and the conditions which have been imposed on his liberty.

Conclusion

74. For the above reasons, I make the following orders which have been agreed between the parties.

1. Pursuant to clause 6(5) of Schedule 1 of the Mental Health (Forensic Provisions) Act 1990 ('the Act"):

(a)   The court appoints two qualified psychiatrists or psychologists Professor Susan Hayes and Dr Andrew Ellis to conduct separate examinations of the Defendant and to furnish reports to the Supreme Court on the results of those examinations by 30 March 2015;

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

2. Pursuant to clause 10 of Schedule 1 of the Act the Defendant is subject to an Interim extension order for a period of 28 days from 21 March 2015.

3.   I list the proceedings before the court on 17 April 2015 to hear the State's application to extend the interim extension order referred to in order 2 above.

4.   The Plaintiff to file and serve any evidence for the final hearing by 6 April 2015.

5.   The Defendant to file and serve any evidence for the final hearing by 13 April 2015.

6.   The Plaintiff to file and serve written submissions 5 days prior to the final hearing.

7.   The Defendant to file and serve written submissions 1 day prior to the final hearing.

8.   The parties are granted leave to approach the Listing Manager in the Supreme Court Registry to obtain a date for the final hearing, noting:

(a)   The parties estimate of 1 - 2 days; and

(b   There is some need for urgency/expedition as the matter concerns the liberty of the Defendant and must be heard and determined before 12 June 2015.

9.   I Grant liberty to apply on one day's notice.

Note:

10   In relation to the court appointed experts (referred to in order 1 above) the Court notes the parties will send a joint letter of instruction (and accompanying bundle of documents) on or before 9 March 2015.

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Decision last updated: 12 March 2015