Attorney General of New South Wales v Randall (Final)

[2023] NSWSC 708

Supreme Court

New South Wales

Medium Neutral Citation:

Attorney General of New South Wales v Randall (Final) [2023] NSWSC 708

Hearing dates:

19 June 2023

Decision date:

19 June 2023

Jurisdiction:

Common Law

Before:

Rothman J

Decision:

(1) Pursuant to ss 121, 127(1)(a) and 128 of the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW), the defendant be subject to an extension of his status as a forensic patient for a period of 15 months from the date of this order, being today.

(2)   There is no order for costs.

Catchwords:

MENTAL HEALTH – forensic patient – extension of status – availability of less restrictive means to manage risk – extension issued for 15 months

Legislation Cited:

Mental Health and Cognitive Impairment Forensic Provisions Act2020 (NSW), ss 121, 127(1)(a), 128

Category:

Procedural rulings

Parties:

Attorney General of New South Wales (Plaintiff)
Raymond Randall (Defendant)

Representation:

Counsel:
A Rose (Plaintiff)
N Evans (Defendant)

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

File Number(s):

2022/00375357

EX TEMPORE JUDGMENT

1. HIS HONOUR: Before the Court is an application by Summons, filed on 13 December 2022, for an order pursuant to s 121 and 127(1)(a), and 128 of the Mental Health and Cognitive Impairment Forensic Provisions Act2020 (NSW) that the defendant be subject to an order for the extension of his status as a forensic patient for a period of 2 years from the date of the order. The history of the matter is that the defendant has been the subject of an Interim Extension Order which expires on 23 June 2023, which is four days from today. As a consequence, the final order, which is the order sought from the Court as presently constituted, needs to be dealt with prior to then, for obvious reasons.

Factual and Procedural History

2. The defendant, Raymond Randall, is a 63-year-old man who suffers from treatment resistant schizophrenia, with a potential differential diagnosis of schizo-effective disorder which is treatment resistant also, together with cognitive impairment and antisocial personality traits. The defendant’s entrenched delusions have made it difficult for experts and others to obtain an accurate personal history from him. The documents provided would indicate that he was born in England, and first came to Australia with his family as an infant. The defendant says that he grew up in the Bowral area with his family and was expelled from school in year 9 or 10. Following this, he worked briefly at a butchery, and then at the Port Kembla steelworks.

3. The defendant claims to have several children by several partners, one of which he says was later murdered. The extent to which that information is accurate is unclear, particularly given his significant and disabling mental health issues. Mr Randall was diagnosed with schizophrenia in his twenties. He has been well known to health services since that time. He has spent significant time as an inpatient at various forensic hospitals, and also as a subject of Community Treatment Orders, (hereinafter referred to as a “CTO”). He is currently treated with antipsychotics and Clozapine and is the subject of a Guardianship Order.

4. The extension order as such is not opposed by the defendant. I hasten to add, a tutor has been appointed, and through his tutor the defendant does not oppose that order. Notwithstanding that non-opposition, it is for the Court to be satisfied that the forensic order is appropriate, and the unacceptability of his risk, assuming for present purposes that the Court is minded to take the view that the defendant poses an unacceptable risk, is not capable of management by less restrictive means.

5. I hasten to add that this is necessary even here, where the actual regime imposed upon the defendant by a CTO, as distinct from a Conditional Release Order, may be little different or no different. The Court takes the view that the potential restrictions and oversight which are inherent in the status of a forensic patient, render the forensic scheme a more restrictive means of managing the risk than would otherwise be the case, assuming for present purposes that the risk could be managed under that process, by a combination of a CTO, a Guardianship Order, and plans under the National Disability Insurance Scheme (“NDIS”).

6. The defendant has a criminal history which dates back to his juvenile years. I hasten to add, that this is unsurprising, given the diagnoses that are before the Court. In 1991, he committed an assault upon a woman which seemed to be a domestic violence offence.

7. In 1992, he was charged with possessing drug use equipment and breaching an Apprehended Domestic Violence Order. In 1993 there was an offence of stealing and obtaining a financial advantage by deception. In 1998 there were two counts of assault with which Mr Randall was charged, each of which related to an assault he allegedly perpetrated upon another inpatient at the Chisholm Ross Centre in Goulbourn, which is a secure psychiatric facility.

8. A further assault charge was laid in 2000, while Mr Randall was in the community. Also, in 2000 and again in 2003, there were charges of maliciously destroying property. The index offence is an offence that occurred on 23 January 2019. In the circumstances of the index offence, the defendant was detained at a facility known as Waratah House, pursuant to the Mental Health Act 2007 (NSW).

9. An incident took place where Mr Randall attacked another patient with a butter knife and caused cuts to the face of the victim. It seems the defendant had a delusion that the other patient had wronged him by stealing a motorbike. The defendant was charged and found unfit to be tried. On 2 November 2020 at a special hearing, Judge Baly SC DCJ found Mr Randall guilty of an offence of wounding with recklessness as to causing actual bodily harm, here and after referred to as the index offence.

10. Her Honour imposed a limiting term of 1 year and 10 months, which expired on 5 January 2021. As a result of the way in which the Mental Health Act operates, patients who are deemed unfit to be tried or are otherwise found guilty in a special hearing may continue in the status as a forensic patient for many years beyond that for which they would otherwise serve a sentence for the offence that was actually committed. This is the case that affects the defendant.

11. Since the first imposition upon the defendant of the status of a forensic patient, the Court has extended that status on a number of occasions. On 25 March 2021, his Honour Johnson J of this court made final orders for an extension of a further 2 years expiring on 24 March 2023. With the expiry of that term fast approaching, her Honour Yehia J of this Court granted an Interim Extension Order on 15 March 2023 on this application. Her Honour also made orders for Mr Randall to be assessed by two qualified clinicians and for reports from those clinicians to be provided to the Court. The Court has had the benefit of those reports. The matter now comes before the Court is presently constituted to consider whether a final order ought to issue and whether it should be for a duration of 2 years.

Evidence and Submissions

12. Before dealing with the evidence before the Court, I want to pay particular regard to the submissions that were made before me by counsel both for the Attorney General and for the defendant. It is not often that the Court, frankly, is treated to submissions that are as good and as well presented as was the case with each of the counsel before me and I congratulate them on the manner of their presentation and the way in which the matter has been dealt with.

13. If I can then deal with the court ordered expert reports. There are two experts, Dr Gordon Elliott and Dr Anna Farrar. Each is a Forensic Psychiatrist. The Report of Dr Gordon Elliott, which is Exhibit A in the proceedings, is dated 30 April 2023. The two experts gave evidence by conclave in the proceedings. I should add that Dr Elliott is, in fact, employed primarily as a Visiting Medical Officer at Justice Health and Forensic Mental Health Network. Dr Elliott assessed the defendant on 28 April 2023 by audio visual link. The defendant was accompanied by two support workers at the time. At the time of the assessment, the defendant was living in supported independent living (“SIL”). According to the support staff, he had been living full time in that situation for about two weeks with the transition from the Forensic Hospital to SIL having taken place for over a year.

14. The defendant has had a remarkably swift progress through different stages of the forensic patient scheme, being first at the Bronte facility (with which the Court is familiar from other proceedings) and then progressing very quickly within a period of months to the Clovelly facility (with which the Court is also familiar from other proceedings).

15. In any event, Dr Elliott noted that the defendant was prone to spontaneous remarks which were of a random and mildly thought disordered nature. The remarks at times unravelled into strings of deluded beliefs. The defendant made some positive comments about his accommodation but was overall a poor historian.

16. Dr Elliott was unable to conduct cognitive testing. Notwithstanding that inability, Dr Elliott’s impression was that the defendant had very poor short-term memory, even when allowance was made for the impact of formal thought disorder. One example provided was that the defendant could not recall or retain his answers to questions from one moment to the next and often lost the direction of his point. He did not seem to have insight or understanding as to the nature of his illness and said on a number of occasions that he did not think he needed treatment.

17. Dr Elliott said that the defendant was prominently thought disordered overall with intrusive signature delusions. These delusions related to assaults and murders, snakes living inside him and dying and coming back to life. Dr Elliott could not say for certain whether the defendant was experiencing active auditory or visual hallucinations at the time of the interview.

18. The support staff at the facility that was accommodating the defendant reported to Dr Elliott that he had settled well into SIL but that he became easily frustrated and required a high level of support. The staff reported to Dr Elliott, which is contained obviously in his report, that the defendant was at risk of wandering off and wanted to chase after his old concerns and old delusions, and had at times accused other residents in the supported independent living of various incidents.

19. The staff also reported that the defendant was at a high risk of exploitation as he frequently offered money to people, went on walks and would look for groups of people at hotels so that he can join them. Both support staff were of the view that then extension of Mr Randall’s status as a forensic patient was needed — as was Dr Elliott, I hasten to add — as the defendant was still transitioning into SIL and needed to form stronger bonds with staff to feel safe within the facility.

20. Dr Elliott diagnosed the defendant with consistent and chronic schizophrenia. He said that this persisted despite high dose of Clozapine. There were also underlying antisocial traits and a documented history of substance abuse disorders and past diagnosis of cognitive impairment. Dr Elliott’s view, as explained in his report, was that the defendant was currently settled in SIL, and as such, would not meet the criteria necessary for a mentally ill person to be detained involuntarily under the Mental Health Act.

21. Dr Elliott assessed Mr Randall’s case under The Historical, Clinical and Risk Management – 20 (“HCR-20”) tool — a tool about which I’ve heard in a number of proceedings — and identified a significant load of historical and clinical risk factors. He said that all protective factors were external to Mr Randall, noting the high levels of support currently available. Dr Elliott thought that there was therefore a risk of the defendant committing an act of violence if his status as a forensic patient were to cease. Dr Elliott noted that the defendant’s forensic status meant that his current release required him to remain at the SIL centre and engage meaningfully with staff.

22. If the defendant were to abscond from SIL, an emergency order could be obtained from the Mental Health Review Tribunal for his rapid apprehension by police. Without forensic status, Dr Elliott expressed the opinion — with which I do not cavil — that any breach or absconding would fall to his community team to deal with and would be more difficult to ameliorate or police. As such, Dr Elliott expressed the opinion that currently, continued forensic status is the least restrictive way to manage the defendant’s ongoing risk. He expressed doubt about the effectiveness of the Mental Health Act and/or a CTO to manage the risk at this point but expressed optimism that in another 12 months or so, when Mr Randall would be more settled in SIL, these may be more viable options. Dr Elliott thought that a minimum of 12-month extension order was warranted at this time.

23. The Report of Dr Elliott and that of Dr Anna Farrar are, in my view, entirely consistent. Dr Farrar’s Report was dated 11 May 2023 and was marked Exhibit B in the proceedings. Dr Farrar assessed the defendant on 2 May 2023 at her rooms, so had the advantage of seeing the defendant in person (although, that advantage does not seem to have impacted upon the assessments of each of the experts. No doubt for reasons which are obvious in the last few years, each of them have become familiar with assessing by audio visual link).

24. In the same way as Dr Elliott, Dr Farrar found that the defendant was a poor historian who was preoccupied with delusional beliefs. She also found he was suffering the effects of cognitive impairment. Dr Farrar diagnosed the defendant with schizoaffective disorder and a major neurocognitive disorder. This latter diagnosis was based on testing that Dr Farrar conducted, which showed significant impairment.

25. Dr Farrar thought that this gave rise to a need for 24-hour support. She noted that the documentation available was also consistent with substance abuse disorder. On the assessment under HCR 20, which Dr Farrar conducted, Dr Farrar concluded that the defendant posed a moderate to high risk of future violence. She said his clinical risk factors had not improved much despite treatment and rehabilitation in the forensic hospital.

26. Dr Farrar thought that the defendant would meet the criteria of a mentally ill person under the Mental Health Act based on his presentation on assessment, but that he did not currently require inpatient treatment. As such, the defendant would likely be ineligible for inpatient mental health treatment on an involuntary basis.

27. Dr Farrar thought that there was a risk of violence if the defendant ceased to be a forensic patient. Dr Farrar also thought that the best way to manage that risk would be by an extension of that status. She did not think that other methods of managing his risk would be effective. Dr Farrar thought there was no less restrictive way of managing the risk, and recommended an extension order, which she explained in oral evidence to be one of up to 2 years in duration, to allow for continued multifaceted community management and consideration to transition to other services, including aged care services.

28. Other expert reports are before the Court. There is a Risk Assessment Report of Dr Kerri Eagle dated 19 August 2022. Dr Eagle was commissioned by the plaintiff for the purpose of the preliminary hearing, and her report was referred to in the judgment of her Honour justice Yehia. Dr Eagle had also previously assessed that defendant in 2020, so she had the ability to assess him from what I will refer to as a longitudinal perspective. For the preparation of the report she saw the defendant on 29 July 2022, and assessed him face to face. At that stage he was an inpatient at the forensic hospital.

29. Dr Eagle’s report, like that of doctors Elliot and Farrar, is comprehensive. Dr Eagle outlined the documentary history and the defendant’s volunteered history, which was variable. Dr Eagle did not think that the defendant was exhibiting active psychosis on assessment, but his thought form was disorganised. There was no formal thought disorder.

30. Mr Randall did adhere to the reality of his signature delusions, and only had a minimal understanding of the mental illness and symptoms according to the Risk Assessment Report. Dr Eagle also liaised with Mr Randall’s treating specialist, Dr Kirsty Macdonald. Dr Macdonald outlined what was then the plan to transition the defendant into SIL in the Bowral area, within a short time, and with 24-hour onsite support.

31. Dr Macdonald confirmed that the defendant had the support of a sister and daughter, who were supportive of this plan. Dr Macdonald otherwise noted that while that defendant could be resistant to taking medication at times, he could usually be convinced to do so. Dr Macdonald was concerned about the ability to manage the defendant’s alcohol use, were his forensic status to lapse. That is a matter on which over comment later in these reasons.

32. Dr Eagle diagnosed Mr Randall with schizoaffective disorder, substance use disorder in remission in a controlled environment, a potentially major neurocognitive disorder, and adult antisocial personality traits. On the HCR-20 assessment, Dr Eagle identified realistic risks of violence in the future, given the defendant’s poor impulse control, treatment resistant psychosis, and a lack of problem-solving skills.

33. Dr Eagle said the defendant’s risk of reoffending was closely related to his mental health condition. Dr Eagle thought that at that stage, Mr Randall would meet the criteria to be involuntarily detained under the Mental Health Act, but she thought his risk would be too difficult to manage in the absence of a forensic order.

34. Dr Eagle thought that in due time it may be possible to manage the risk with a variety of other measures, such as an assertive mental health team who know the defendant, a CTO, and a restrictive Guardianship Order, as well as a 24-hour supported community accommodation. Dr Eagle however explained that the transition to the community would be a potentially destabilising period, and that any lapsing of forensic status should occur after hat process has been completely and successfully managed.

35. Other records are before the Court. There are a number of recent medical reports which range from November 2020 to August 2022 in date, as well as copies of decisions of the Mental Health Review Tribunal relevant to the defendant. I am required to take into account those reports, and indeed the decisions of the Tribunal, but essentially, the issues have been defined adequately by my more complete summary of the views expressed by doctors Elliott and Farrar, and to a lesser extent, the Risk Assessment Report of Dr Eagle.

36. I have also been provided with a copy of the Guardianship Orders, which are perhaps because of, or otherwise pursuant to, the view expressed by Dr Eagle, as the defendant is subject to a Guardianship Order that I would describe as restrictive. I also have the NDIS plans, financial management orders, and a behaviour support plan. There are copies of documents relevant to the defendant’s criminal history, which I do not need to detail to any extent greater than already has been done.

37. I have a Report of Mr Rivkin and Dr Read of the Community Forensic Mental Health Service dated 23 February 2023, which is one that provides up to date treating information, and which provides the current medication that the defendant is prescribed. This report was prepared during the period that the defendant was transitioning to the SIL and is therefore of particular use in that respect. The report noted that the defendant presented a moderate to high concern for future episodes of reactive aggression, but that the risk could be managed in a SIL environment if the defendant adhered to the proposed treatment plan.

12. I also have a Report of Dr Kirsty MacDonald of 27 February 2023 which is consistent with her views as reported by Dr Eagle. It’s unnecessary to detail the report to any greater extent than has already been done, except to say that the report was prepared at the forensic hospital, Dr MacDonald being a specialist at The Forensic Hospital, and done in advance of one of the Mental Health Review Tribunal hearings. Dr MacDonald was dealing in futuro with the proposed discharge to SIL and considered that discharge was appropriate, given that the defendant had managed periods of escorted leave in the community with no issues.

13. In any event, it seems fairly clear from that short summary that the other documents reflect, and are consistent with and indeed support, the opinions of the two experts appointed by the Court pursuant to the interim orders of Yehia J. Those reports evidence that the defendant suffers a severe mental illness that is treatment resistant as well as a cognitive impairment which gives rise to significant care needs. Notwithstanding those factors, the defendant seems to have had a positive reaction, or there has been a position impact from his time in the forensic hospital and is so far managing the transition to supported independent living as well as could be hoped in the circumstances.

14. Some attention was paid during the course of the proceedings to incidents that occurred during the course of his accommodation in supported independent living, but none of the “incidents” were such as to warrant from the view of the Tribunal any departure from SIL, and they seemed to be in the scheme of things relatively minor.

15. In the course of the proceedings, the plaintiff relied upon the Affidavit of James Palmer affirmed 13 December 2022, the Affidavit of James Palmer affirmed 16 February 2023, the Affidavit of James Palmer affirmed 10 March 2023 and the Affidavit of James Palmer affirmed 25 May 2023, as well as the last Affidavit of James Palmer affirmed 13 June 2023. The defendant relied upon the Affidavit of Amelia Gilroy, affirmed 8 June 2023. The Affidavits are largely formal. That is not a criticism, that’s a statement of the obvious given that a Court in essence relies upon expert reports and reports over the time that the defendant has been the subject of assessment, and each of the Affidavits either annexes or exhibits documentation going to those aspects. The exhibits to the first, second and fourth Affidavit of Mr Palmer are Exhibits JP1, JP2 and JP3 in the proceedings. All of the evidence has been adduced without objection.

16. The defendant relies upon the Affidavit of Amelia Gilroy, as I have already said. Ms Gilroy annexes documents which are relied upon by Mr Randall, and including a letter from Home Caring as to the extent of the needs for support and the strategies that are in place under the supported independent living to manage those needs and manage those risks, a letter from the Support Coordinator, Francis Matthew, outlining the defendant’s NDIS supports currently in place, which include one-to-one staffing, community restrictions, behavioural support, occupational therapy and support coordination. There can be little doubt of the benefits the community obtains from the provision of NDIS in circumstances such as these. A bundle of documents is also provided from Home Caring which are contained in annexures which are before the Court.

Consideration

43. As is obvious from the foregoing, the plaintiff contends that the defendant poses an unacceptable risk should he cease to be a forensic patient, and that his risk cannot be managed by a less restrictive means. The defendant accepts that at present he poses an unacceptable risk which cannot be managed less restrictively at this stage. The issue between the parties is thus the duration for which his forensic patient status should be extended. The defendant suggests 12 months in accordance with what he submits is the opinion expressed by Dr Elliot, and the plaintiff submits that any extension should be for 2 years in accordance with what is said to be the opinion expressed by Dr Farrar.

44. The Court was assisted by the fact that the two experts gave evidence in conclave. There are a number of factors which the Court needs to note. Notwithstanding the agreement between the parties as to the unacceptability of the risk posed by the defendant, it is for the Court to determine whether the defendant poses an unacceptable risk, and it is for the Court to assess whether that risk can be managed by less restrictive means. I said earlier in these reasons that I take the view that a CTO is a less restrictive means, and associated control such a restrictive Guardianship Order, NDIS support and the like, to which I have already referred are a less restrictive means than continuation of the patient as a forensic patient.

45. I do so notwithstanding that if the defendant remains in the current facility providing SIL, the regime under which he will be accommodated is almost identical under each of the schemes. The difference between them is the requirement for and regularity of assessment, the degree of compulsion, and if there be a significant breach (for example, if the defendant were to abscond from the premises) the capacity to call upon law enforcement to enforce the Conditional Release Order, and/or to return the patient either to the SIL facility or to a forensic hospital for assessment.

46. Fundamentally, as the experts agreed during the course of their evidence, the difference between them is the role of the Mental Health Review Tribunal. Under a CTO and restrictive Guardianship Order a kind that is in place here, there will continue to be assessments, and there will be restrictions on the defendant. The difference is that under the forensic patient status, it is the Mental Health Review Tribunal which performs those assessments, rather than the team that is caring for him providing the final assessment in relation to issues.

47. There are a number of aspects that require comment, First, given the criminal history of the defendant, and the opinion of the experts, and by that I go beyond merely the two experts appointed by the Court most recently, it is clear that the defendant poses an unacceptable risk. I congratulate the parties on their capacity to reach agreement on that issue. As I said earlier, it is for the Court to make an independent assessment of the unacceptability of risk. In doing so, the Court is required to deal with two factors said by some to be a matrix, being the likelihood of the commission of an offence, and the damage that would be occasioned were that likelihood to manifest.

48. Taking those two together, the Court then weighs up the issue of whether that likelihood results in an unacceptable risk. In so doing, the likelihood of the commission of an offence if an order is not made does not need to be more probable than not, but it needs to be real rather than insignificant. To take an example that I have used in a different context, even if the likelihood of an offence were low, but the offence was the detonation of an atomic bomb in the city, the risk would be unacceptable. Even if the risk of committing an offence were of a high probability of occurrence, but the offence was merely property damage, then the unacceptability of the risk may well be such that the Court would come to a view that an order was unnecessary.

49. In this case, given the treatment resistance of the conditions under which the defendant suffers, and his lack of insight, and the criminal history, I consider that the risk posed by the defendant, bearing in mind that matrix, is unacceptable. The question then becomes whether and for what period the risk is not able to be managed by a less restrictive means. The experts agree that the risk posed by the defendant will not ameliorate over time. The fact that the delusions under which the defendant suffers continue notwithstanding significant level of medication, including clozapine, means that the delusional beliefs and the schizophrenia or schizoaffective disorder is likely to continue for the defendant’s life.

50. As a consequence, there will always be some risk associated with the defendant. Whether that risk is unacceptable depends very much on the degree to which the defendant displays a capacity to deal with that risk and those issues in a manner that does not involve serious damage to the community. I am mindful, as has been pointed out by the defendant’s counsel, that the defendant has been in a forensic patient for a significantly longer period than he would have been a prisoner, where he to have committed this offence otherwise than in the context of a mental illness. That is a troubling, but understandable aspect of the mental health regime.

51. One of the aspects to which I referred in the course of the proceedings was the combination of the defendant’s continuing desire to consume alcohol and his lack of insight into his own mental health issues. The combination of those factors render lapses more likely than would be the case in the absence of those circumstances. That is a factor which the Court takes into account and is important in the determination of the matters which are before the Court.

52. I have already expressed the view that the defendant poses an unacceptable risk. I also express the view, if it is not already obvious from the foregoing, that the means of managing that risk are, at the moment, only met by the continuation of his status as a forensic patient. When one gets beyond that to the duration, there is an interesting issue as to how determines the duration of such an order.

53. Obviously, as at present, the defendant is a forensic patient. He poses an unacceptable risk, and the risk cannot be managed by less restrictive means. Ultimately, the duration of the order depends upon an evaluation by the Court of the time during which it will be necessary to assess and/or to stabilise the defendant’s current situation and in so doing, determine when that assessment might be able to change such that he is entitled to a less restrictive means.

54. While the primary purpose of the Act is to ensure the safety of the community, one is entitled to take into account the seriousness of the offence in dealing with that aspect. One of the other purposes of the Act is clearly to have a person who is not currently serving a sentence or charged with an offence not be under a regime which is more restrictive than is necessary for the management of that risk.

55. I am mindful of the intrusiveness of the examinations that will occur, although in the scheme of things, I do not consider that intrusiveness to be a factor weighing either way as to the duration of the timetable. Assessments have to occur. They are done by professionals. The fact that they are intrusive is a given. They will occur as a forensic patient from time to time. They will occur if he is not a forensic patient from time to time, and in the scheme of things, I am not sure that it should impact greatly on a person of this kind. There are circumstances where it will clearly impact, but in this case, I am not sure that is the situation.

56. At one stage, Dr Elliott expressed the view that the extension of the status of forensic patient in the future will depend on what he called an institutional response. As a matter of practicality, that may be so. As a matter of law, it will, of course, depend on an institutional response to the extent that an application has to be made, but ultimately, the extension of his forensic patient status depends upon the management of the risk and the assessment by the Court of the least restrictive means by which that risk may be managed at the time.

57. I have already referred to the index offences and the fact that by comparison to many applications of this kind, the index offence is not in the most serious category. The defendant has also been free of any serious offence for a significant period of time, which informs to his credit a duration which would allow an assessment earlier rather than later.

58. Also informing that aspect is the circumstance that the defendant has progressed - and I use that word deliberately - significantly, even whilst in the Forensic Hospital environment and also while in a SIL environment with a speed that is described by the experts as unusual. Without accepting necessarily that the normal rate is glacial, nevertheless, the applicant has proceeded positively in a relatively short period of time.

59. I do not see an inconsistency between an expression by Dr Farrar that an extension should be up to a 2-year duration, and an expression by Dr Elliott that it should be a minimum of 12 months. The two statements are not inconsistent. It seems to me that given the speed of the defendant’s progress and the period during which he has been free of offences in the community, together with the less serious nature of the index offences, it is appropriate to ensure that the assessment occurs earlier rather than later. That, on the expert evidence, means some period between 12 months and 2 years.

60. I accept that it takes about four to six months to assess the defendant. That includes the decision-making proceedings which the Attorney must undertake in order to determine whether a further extension will be undertaken. As a consequence, it seems to me that there is a minimum period of 12 months.

61. That process would mean he would have to be assessed or the process of assessment would start in six months’ time, which is extraordinarily short, and I am not in favour of that occurring, and notwithstanding what I earlier said, that would be relatively intrusive and not give sufficient time for the settlement of the defendant in SIL in a way which would be to his benefit. At the same time, I think 2 years is too long of a period and I do not think, in the scheme of things, I should merely take the arithmetic average and say 18 months.

62. It seems to me, given the factors to which I have already referred, I would fix a duration that is shorter than 18 months and I do so also bearing in mind that when the assessment process begins and the Attorney assesses the progress or otherwise of the defendant, the Attorney has within his discretion the capacity to apply for a further extension if that is desired. In all of the circumstances, it seems to me I should fix a period of 15 months as the period for the continuation of the forensic patient status. In light of the foregoing comments, the Court makes the following orders:

1. Pursuant to ss 121, 127(1)(a) and 128 of the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW), the defendant be subject to an extension of his status as a forensic patient for a period of 15 months from the date of this order, being today.

2. There is no order for costs.

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Decision last updated: 23 June 2023