Attorney General of New South Wales v McGuire

[2013] NSWSC 1862

Supreme Court

New South Wales

Medium Neutral Citation:

Attorney General of New South Wales v McGuire [2013] NSWSC 1862

Hearing dates:

12 December 2013

Decision date:

12 December 2013

Jurisdiction:

Common Law

Before:

Davies J

Decision:

1. Pursuant to clause 6(5) of Schedule 1 of the Mental Health (Forensic Provisions) Act 1990 ("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 14 February 2014;

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 31 December 2013.

3. List the proceedings before the Duty Judge on 16 January 2014 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 21 February 2014.

5. The Defendant to file and serve any evidence for the final hearing by 28 February 2014.

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

7. The Defendant 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 prior to 25 March 2014.

9. 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 20 December 2013.

Orders to be entered forthwith.

Catchwords:

CRIMINAL LAW - forensic patient - serious sexual offences found proven at a special hearing - limiting term about to expire - regime under Schedule 1 to Mental Health (Forensic Provisions) Act similar to Crimes (High Risk Offenders) Act - similar principles to be applied - moderately high risk offender - extension order made

Legislation Cited:

Crimes (High Risk Offenders) Act 2006
Mental Health Act 2007
Mental Health (Forensic Provisions) Act 1990

Cases Cited:

Attorney-General for the State of New South Wales v Haytar [2007] NSWCA 993
Attorney-General for the State of New South Wales v Tillman [2007] NSWCA 119
Director of Public Prosecutions Western Australia v GTR [2008] WASCA 187; (2008) 198 A Crim R 149
Director of Public Prosecutions Western Australia v Williams [2007] WASCA 206; (2007) 176 A Crim R 110
State of the New South Wales v Brooks [2008] NSWSC 150
State of New South Wales v Richardson (No. 2) [2011] NSWSC 276; (2011) 210 A Crim R 220
State of New South Wales v Thomas (Preliminary) [2011] NSWSC 118

Category:

Interlocutory applications

Parties:

Attorney General of New South Wales (Plaintiff)
Herbert Robert McGuire (Defendant)

Representation:

Counsel:
W Abraham QC & S Callan (Plaintiff)
M Ierace SC (Defendant)
Solicitors:
Crown Solicitors Office (Plaintiff)
Legal Aid NSW (Defendant)

File Number(s):

2013/369832

Judgment

1. This is an application made under Schedule 1 of the Mental Health (Forensic Provisions) Act 1990 for an extension order in respect of the Defendant. Such an application may be made in respect of a forensic patient only if the forensic patient is subject to a limiting term or an existing extension order.

1. The Defendant had been charged with four related offences, three of which were offences of having sexual intercourse with the victim without her consent. On 27 November 2008 the Mental Health Tribunal found that the Defendant was unfit to be tried.

1. A special hearing took place before Judge Murrell who on 4 September found that the Defendant had committed the offences. Her Honour then sentenced him on each of counts one and three to a limiting term of four years commencing 1 January 2009. In relation to count two she nominated the limiting term of four years commencing 1 January 2010.

1. The effective limiting term was five years from 1 January 2009 expiring 31 December 2013.

1. The Defendant was released as a result of orders by the Mental Health Tribunal in August of this year but subject to a large number of conditions imposed by the Tribunal in relation to his supervision, the requirement to see a psychologist, the requirement to take anti-libidinal and drugs which suppress cravings for alcohol.

1. It is in the circumstances that that supervision will come to an end on 31 December 2013 in the absence of the order that is now sought by the Attorney-General.

1. What is contained in Schedule 1 of the Mental Health (Forensic Provisions) Act mirrors very closely the regime in the Crimes (High Risk Offenders) Act 2006. The onus of proof is to the same level and the procedure for applying within six months before the end of the limiting term together with the provision for interim orders is virtually identical with the provision under the Crimes (High Risk Offenders) Act 2006.

1. The one significant difference between the two pieces of legislation is that under the Mental Health (Forensic Provisions) Act the Court is not required to determine whether the order made is one for detention of the Defendant or supervision within the community. The Court simply makes an extension order and it is for the Mental Health Tribunal to determine what flows from the making of that order.

1. The definition in s 42 of the Act of "forensic patients" makes it clear that the person may thereafter be detained in a mental health facility, correctional centre or other place, or be released from custody subject to conditions.

1. I note also that s 40 of the Act sets out the objects of Part 5 which deals with forensic patients. The first of such objects is the protection of the safety of members of the public. The remaining four objects are directed towards the care and rehabilitation of the forensic patient. Those objects relevantly accord with the two objects in the Crimes (High Risk Offenders) Act.

1. The Defendant is a forensic patient in respect of whom the present application is able to be made.

1. Because the terms of the two legislative provisions are so closely aligned, I consider that the learning that has grown up in relation to the Crimes (High Risk Offenders) Act should be appropriately applied to Schedule 1 of the Mental Health (Forensic Provisions) Act.

1. In that regard, it should be noted that the task of the Court at the preliminary stage for an interim order is not to predict the ultimate result. Rather, the test is said to be one similar to the prima facie test applied by Magistrates in committal proceedings: Attorney-General for the State of New South Wales v Tillman [2007] NSWCA 119; Attorney-General for the State of New South Wales v Haytar [2007] NSWCA 993 and State of New South Wales v Thomas (Preliminary) [2011] NSWSC 118 at [11].

1. In Director of Public Prosecutions (WA) v Williams [2007] WASCA 206; 176 A Crim R 110 Wheeler JA (with whom Le Miere AJA agreed) said at [63]:

In my view, an "unacceptable risk" in the context of s 7(1) is a risk which is unacceptable having regard to a variety of considerations which may include the likelihood of the person offending, the type of sexual offence which the person is likely to commit (if that can be predicted) and the consequences of making a finding that an unacceptable risk exists. That is, the judge is required to consider whether, having regard to the likelihood of the person offending and the offence likely to be committed, the risk of that offending is so unacceptable that, notwithstanding that the person has already been punished for whatever offence they may have actually committed, it is necessary in the interests of the community to ensure that the person is subject to further control or detention.

1. In Director of Public Prosecutions (WA) v GTR [2008] WASCA 187; (2008) 198 A Crim R 149 Steytler P and Buss JA said at [27]:

The word 'unacceptable' necessarily connotes a balancing exercise, requiring the court to have regard, amongst other things, for the nature of the risk (the commission of a serious sexual offence, with serious consequences for the victim) and the likelihood of the risk coming to fruition, on the one hand, and the serious consequences for the offender, on the other, if an order is made (either detention, without having committed an unpunished offence, or being required to undergo what might be an onerous supervision order). As John Fogarty points out, albeit in a rather different context (Unacceptable risk - A return to basics (2006) 20 AJFL 249, 252), the advantage of the phrase 'unacceptable risk' is that 'it is calibrated to the nature and degree of the risk, so that it can be adapted to the particular case ... '.

1. In State of New South Wales v Richardson (No. 2) [2011] NSWSC 276; (2011) 210 A Crim R 220 I said at [90]:

Two things seem to me significant when assessing the evidence and the likelihood of re-offending. The first is the higher standard of proof imposed by the words "a high degree of probability". The second is the notion that "unacceptable risk" involves a balancing exercise between the commission of a serious sexual offence and the likelihood of that risk coming to fruition on the one hand, and the serious consequences for the Defendant either because he will be detained beyond the period of his sentence although he has not committed any further offence or he will be subject to an onerous supervision order, on the other hand. It is because of that balancing exercise that it is open to the Court to be satisfied to a high degree of probability that there is an unacceptable risk but that the result of that finding (either a continuing detention order or a supervision order) may vary in a given situation. ...

1. The evidence in the present case shows that whilst the Defendant, who is now aged 41 years, has a reasonably long criminal record dating back to the time that he was aged 24 there has not been, prior to the present offences for which a limiting term was imposed, any offence of a sexual nature. The majority of the offences committed were either driving offences or property offences, many of which involved alcohol on the Defendant's part.

1. There has been prepared a report by a psychologist Dr Christopher Lennings dated 6 December 2013.

1. The report from Dr Lennings says this in paragraph 30:

In reviewing the available documentation, it appears that to date Mr McGuire has madder a good response to his release into the community. Such a response is most encouraging. However, the response appears to be a function of the case implementation plan, supervision and treatment processes available to him. It is therefore of some concern that his response in the community only began in August 2013, and that he will have received a relatively short period of assistance in adjusting to community living since that time before his order lapses. Threats to Mr McGuire's ongoing adjustment may derive from the possible non-continuation of his Guardianship Order after 5.12.2013 and lapsing of his CJC support and supervision after 31.12.2013.

1. Doctor Lennings reviewed a large number of documents available to him particularly from the Defendant's time in custody. Those documents included reports from treating and other psychiatrists and decisions of the Mental Health Tribunal from time to time. Doctor Lennings had also seen the Defendant on at least one prior occasion in 2012.

1. Doctor Lennings performed a risk assessment using two particular protocols, the first being a Static 99 where the Defendant achieved a score of five. That placed him in the moderate to high risk of re-offending.

1. The Defendant suffers from a fairly severe intellectual disability and it was on that basis that Dr Lennings also assessed him under the protocol known as the Assessment of Risk and Manageability of Intellectually Disabled Individuals Who Offend Sexually. That protocol is known by the acronym ARMIDILO-S.

1. As a result of assessment under that protocol Dr Lennings identified the principal risk factors which were these:

(1)   The Defendant had poor emotion coping skills with little ability to delay gratification or monitor his feelings or act in a restrained way;

(2)   He only had a history of one unsuccessful relationship. In that regard Dr Lennings noted that the index offences occurred in the context of relationship seeking;

(3)   A risk factor was impulsivity which presented as high both historically but continuing, although it was noted that he had no gaol based punishments recorded in his file;

(4)   Substance abuse, primarily alcohol;

(5)   The release would increase opportunity and access to victims;

(6)   There were the presence of anti-social traits and a past history of some abuse and negligent.

1. On the other hand, Dr Lennings noted factors in the Defendant's favour, including the declared support for him from his family, lack of disciplinary issues in gaol and good response since August 2013 to supervision, and the absence of any significant mental illness.

1. Doctor Lennings also concluded, based on tracking his behaviour through gaol and the various reports available, including the most recent ones in 2013, it appeared very little had in fact changed for Mr McGuire in the years since being in gaol. He remained essentially a low functioning man who has little insight into his past behaviour and no concern about it.

1. Doctor Lennings thought the risk remained moderately high of a future serious re-offence and the most likely scenario would involve alcohol use disinhibiting his behaviour.

1. Dr Lennings thought there was a need to prolong his supervision condition so as to ensure compliance with treatment and the medication regime that the Defendant has begun.

1. Mr Ierace of Senior Counsel, who appears for the Defendant, drew my attention to a number of matters which he said were favourable to the Defendant.

1. The first was that the Defendant had lived by himself since his release in August 2013 with staff who supervise him dropping in from time to time. In that regard he had demonstrated an ability to live within the community. He was not living in the most controlled of arrangements.

1. Secondly, he had been compliant with his medication whilst out in the community.

1. Thirdly, he had complied with the condition of the Tribunal that he attend a psychologist and he had been doing that for a period of over three months.

1. Fourthly, he drew attention, as Dr Lennings had noted, to the fact that there were no disciplinary breaches whilst he was in custody.

1. A matter of some concern was that the evidence tended to show the Defendant had not undergone any treatment in custody by attendance at sex offender or other drug and alcohol courses. However, Mr Ierace pointed to the fact that there was some conflict in the material suggesting that he may have attended at least some drug and alcohol counselling sessions.

1. It is not easy for me to resolve the conflict in that material. It is sufficient to note that the evidence suggesting that he has had any treatment appears to be dependent upon the Defendant's self-reporting to a nurse within custody or other people.

1. Mr Ierace also draw attention to the fact that, as I have noted, the only sex offences committed have been the index offences for which he has recently been released from custody.

1. When considering interim applications under the Crimes (High Risk Offenders) Act it has been noted that principally because of the objects of that Act and the primary object being the protection of the community, the approach of the Court when considering an interim order is one of giving weight to risk avoidance: State of the New South Wales v Brooks [2008] NSWSC 150.

1. The test that I have to apply is to be satisfied that if the evidence that I have was proved it would justify the making of an extension order.

1. In my opinion although the matters that have been drawn to my attention by Mr Ierace suggest a good start on the Defendant's part for compliance with the conditions of his current release, the material in Dr Lennings' report at least as well as the reports of Dr O'Dea and other psychologists who have examined him within the gaol system provided a sufficient basis for making an extension order in the present case.

1. Doctor Lennings considers that he has a moderate to high risk of offending. He has probably not, for one reason or another, completed any courses. He has limited insight into his offending. The problem with alcohol has not yet been satisfactorily resolved and both the use of alcohol and the libidinal cravings are only under control at the present time by voluntary compliance with the medication that he is required to take in accordance with the Tribunal's order.

1. In my opinion I have to give consideration to risk avoidance in the present matter. The present material, if proved at a final hearing, would justify the making of an extension order.

1. In those circumstances I will make orders in terms of paragraphs 1 to 7 of the short minutes of order provided to me.

1. Leave is given to the parties to approach the Listing Manager to obtain a hearing date for the final hearing on the basis of an estimate of one to two days.

1. I note in that regard the urgency of the need for a final hearing because of the Act's requirements that the final determination must be made prior to 25 March 2014.

1. The parties are given liberty to apply on one day's notice.

1. The orders may be entered forthwith.

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Decision last updated: 03 February 2014