Attorney General of New South Wales v WB (Final)

[2020] NSWSC 152

Supreme Court

New South Wales

Medium Neutral Citation:	Attorney General of New South Wales v WB (Final) [2020] NSWSC 152
Hearing dates:	20 February 2020
Decision date:	28 February 2020
Jurisdiction:	Common Law
Before:	Ierace J
Decision:	(1) Pursuant to clause 7 of Schedule 1 of the Mental Health (Forensic Provisions) Act 1990 (NSW), the defendant’s status as a forensic patient is extended for a period of 6 months from 29 February 2020.  (2)   Access to the Court’s file in this proceeding is restricted such that access will be granted to a non-party only with the leave of a Judge of the Court and with prior notice to the parties, so as to allow them an opportunity to be heard in respect of the application for access.
Catchwords:	MENTAL HEALTH – forensic patient – intellectual disability – statutory interpretation – objects clause – unacceptable risk of causing serious harm – less restrictive means – line of sight condition – guardianship order – Child Protection Register – extension order granted
Legislation Cited:	Child Protection (Offenders Prohibition Orders) Act 2004 (NSW), s 5 Child Protection (Offenders Registration) Act 2000 (NSW), ss 9, 10, 11, 17 Guardianship Act 1987 (NSW), s 4 Interpretation Act 1987 (NSW), s 33 Mental Health (Forensic Provisions) Act 1990 (NSW), ss 40, 46, Sch 1 Mental Health Act 2007 (NSW), s 16
Cases Cited:	Attorney General of New South Wales v Christian bht Thompson [2018] NSWSC 744 Attorney-General of New South Wales v Kereopa [2017] NSWSC 411 Attorney General of New South Wales v Kereopa (No 2) [2017] NSWSC 928 Attorney General of New South Wales v WB (Preliminary) [2019] NSWSC 1664 Attorney General of New South Wales v WB [2020] NSWCA 7 Cornwall v Attorney General for New South Wales [2007] NSWCA 374 Lynn v State of New South Wales (2016) 91 NSWLR 636; [2016] NSWCA 57 R v Mailes (2001) 53 NSWLR 251; [2001] NSWCCA 155 Re J (No 2) [2011] NSWSC 1224 Re Yanner (2000) 176 ALR 1; [2000] FCA 975 State of New South Wales v Golding (Preliminary) [2018] NSWSC 1041 State of New South Wales v Kamm (Final) [2016] NSWSC 1 Wacando v The Commonwealth (1981) 148 CLR 1; [1981] HCA 60
Texts Cited:	New South Wales Legislative Assembly, Parliamentary Debates (Hansard), 13 November 2013
Category:	Principal judgment
Parties:	Attorney General for New South Wales (Plaintiff) WB bht Dr Katherine Johnson (Defendant)
Representation:	Counsel: S Climo (Plaintiff) D Goodhand (Defendant)   Solicitors: Office of the Crown Solicitor (Plaintiff) Legal Aid NSW (Defendant)
File Number(s):	2019/274191
Publication restriction:	Pursuant to s 162(1)(c) of the Mental Health Act 2007 (NSW) and s 8(1)(c) of the Court Suppression and Non-publication Orders Act 2010 (NSW) the name of the defendant is anonymised

Judgment

1. HIS HONOUR: The Attorney General of New South Wales (“the plaintiff”) commenced proceedings by summons filed on 3 September 2019 against the defendant, WB, seeking interim and final orders extending the defendant’s status as a forensic patient, pursuant to s 54A and Sch 1 (“the Schedule”) of the Mental Health (Forensic Provisions) Act 1990 (NSW) (“the Act”). The defendant was a forensic patient subject to a limiting term that expired on 29 November 2019.

2. The summons sought orders that two psychiatrists be appointed to separately examine the defendant and furnish reports to the Court, that he be ordered to attend the examinations, and that he be subject to an interim extension order (“IEO”) commencing on 29 November 2019. By way of final relief, the summons sought an order extending the defendant’s status as a forensic patient (“an extension order”) for a period of three years and, finally, an order that access only be granted to the Court’s file to a non-party with leave of a judge of this Court and with prior notice to the parties and an opportunity for them to be heard.

3. The defendant responds to the application by his court-appointed tutor, Dr Katherine Johnson. The defendant filed written submissions consenting to the IEO being made. At the preliminary hearing of this matter on 19 November 2019, which was before me, the defendant reversed that position and opposed an IEO being made. I made orders for the provision of forensic reports (a psychiatrist and a registered psychologist, rather than two psychiatrists) and limiting access to the Court file. I purported to exercise my discretion to not make an IEO pending the final hearing as to whether an extension order should be made: Attorney General of New South Wales v WB (Preliminary) [2019] NSWSC 1664 (“the preliminary judgment”).

4. The plaintiff sought leave to appeal the judgment to the Court of Appeal, submitting, inter alia, that an extension order can only be made if the defendant is currently a forensic patient. The Court of Appeal made an IEO pending the anticipated date of the hearing of the application, which was extended when that hearing was delayed. The hearing of the application occurred on 6 February 2020. The Court handed down judgment on 12 February 2020, granting leave to appeal on that ground and finding in favour of the plaintiff’s submission: Attorney General of New South Wales v WB [2020] NSWCA 7 per Basten JA, Macfarlan JA agreeing, Leeming JA dissenting. The IEO was further extended to 29 February 2020.

5. At the outset of the final hearing, the plaintiff sought leave to file in court an amended summons, the amendment being that the order sought by way of final relief is an extension of the defendant’s status as a forensic patient for a period of 12 months, rather than for three years. Leave was granted.

The background to the plaintiff’s application

6. The defendant is a 41 year old man with a significant intellectual disability. In the preliminary judgment, I reviewed the material tendered by the plaintiff concerning the index events, the defendant’s background, his psychological history and the services that have been provided to him during his detention and following his conditional release. The essential material on which my review was based is tendered by the plaintiff for the purposes of this final hearing as well, and remains uncontested by the defendant. Accordingly, my assessment of that material remains the same and I adopt those parts of the preliminary judgment for the purposes of this judgment. There are some additional background details that have emerged in the histories given by the defendant to the court-appointed forensic clinicians, which I will relate later in the judgment. My earlier review was as follows:

“The index ‘events’

4   In 2013, the defendant was charged with child sexual assault offences pursuant to the Crimes Act 1900 (NSW). In March 2015, he was found unfit to be tried. The Mental Health Review Tribunal (‘the Tribunal’) found that he would not become fit within 12 months and in April 2016, a Special Hearing was conducted by her Honour Judge Payne, pursuant to s 19 of the Act. A qualified finding of guilt was returned on a count of indecent assault of a child under 10 pursuant to s 61M(2) of the Crimes Act and one of sexual intercourse with a child under 10 pursuant to s 66A.

5   The complainant was the child of the defendant’s partner. The alleged circumstances of the indecency offence were that the defendant took the complainant to his bedroom, asked her to take off her clothes, lay naked with her and touched her bottom and back. The behaviour ceased when the complainant’s mother could be heard approaching. The sexual assault allegation involved an act of penile-anal intercourse. Her Honour imposed concurrent limiting terms of 6 months on the first count and 3 years, 2 months on the second. The complainant was aged between 5 and 7 years at the time, while the defendant was aged between 27 and 29 years, that is, between approximately 2006 and 2008.

6   While it is customary in applications pursuant to the Crimes (High Risk Offenders) Act 2006 (NSW) and the Terrorism (High Risk Offenders) Act 2017 (NSW) to identify the key relevant entry on a defendant’s criminal antecedents as the ‘index offence/s’, at a special hearing, since the defendant is unfit to be tried, a qualified finding of guilt does not result in him or her being convicted of the charges: s 22(3)(a) of the Act. I note that the Tribunal refers to the allegations that are the subject of the qualified findings of guilt as the ‘index events’, and I shall do likewise.

The defendant’s background

…

8   The relevant background that emerges from the reports tendered by the plaintiff is as follows.

9   The defendant was … the youngest of four brothers. He was born with a cleft palate, which required surgery in his infancy. There is a reference in a psychological report in 2012, when the defendant was aged 33, by psychologist Ms Gazzard, to him suffering from ‘hypernasality, most likely relating to uncorrected speech problems from his cleft palate repair in infancy’.

10   The defendant has reported that both his parents were heavy drinkers and that his father was physically abusive towards him and his mother, but not to his three brothers. The defendant reported that his father would hit him with various objects, including a belt and jug cord. He recalled suffering a bleeding nose as a result of being punched by his father.

11   The defendant has said that he was a ‘slow learner’ at school and that he was bullied by his peers, being teased for his speech. He acted out at school, becoming involved in schoolyard fights, and was once suspended.

12   The defendant left school in Year 10 and worked as a kitchen hand for three years. His later employment history includes working in an abattoir, a fast food outlet and a community transport facility for teenagers. At the time of his arrest for the index events, the defendant was on a disability support pension.

13   At the age of 19, the defendant ran away from home and lived with his girlfriend, who also had an intellectual disability. He was reported as a missing person and, following police contact, was brought home by one of his brothers. The defendant moved out shortly afterwards, thereafter residing variously with friends or partners, interspersed with periods of homelessness.

14   The defendant was in a relationship with a different person for approximately two years from the age of 21. During that period, he reported using speed and heroin on a daily basis, drinking alcohol and associating with anti-social peers.

15   When aged 23, the defendant commenced a third relationship, which lasted for three years. This partner had 12 children. The youngest, who was the complainant in the index events, resided with her mother and the defendant, while her siblings stayed with her mother’s ex-husband. The relationship deteriorated and the defendant resumed his relationship with his first partner, the woman he had lived with when aged 19. They subsequently married and had a daughter, forming a household with his wife’s two children with a former partner.

16   Their daughter was removed by the Department of Family and Community Services when she was two years of age, due to concerns as to the quality of their parenting. The defendant admitted to smoking cannabis daily for a month following this event to ‘calm [him] down’. The relationship broke down when the defendant was charged with the index events, although it is unclear from the material before me whether they remain married. They have recommenced an intimate personal relationship which, according to a report by Sinead Corcoran dated 17 October 2019, is an antisocial influence.

17   The only other entries on the defendant’s record is a conviction for common assault in 1999, for which he was fined, and another of receiving stolen property in 2001, for which he received a 12 month good behaviour bond.

18   Following his release on bail and subsequent to his conditional release on 12 December 2018, the defendant resided in the household of his parents, together with one of his brothers. He slept in the family home and had his own space during the day in a caravan in the backyard. Although this arrangement for a while appeared to be a positive experience for all concerned, his father’s ill-health increasingly placed strain on family relationships, to a point that there was an AVO between his parents. The defendant was finally obliged to leave the family home on 31 May 2019.

19   After a destabilising period of six moves in temporary accommodation including a motel, a respite care facility and a serviced apartment, on 23 July 2019 the defendant moved into more permanent independent accommodation, where he continues to reside. In the same period, the Tribunal noted there were significant shortcomings in the quality of supervision provided by the primary service provider (the Ascent Group), raising concerns about their level of experience and understanding of the defendant’s needs. Organisational changes were made to rectify these concerns.

Psychological history

20   Reports from the defendant’s primary school refer to a diagnosis of Foetal Alcohol Spectrum Disorder, although this has not been confirmed. In 1986, when the defendant was aged around 7 years, he was assessed as being in the moderate range of intellectual disability. He was placed in a special support class and provided with speech therapy sessions. In 1991, when he was aged around 12 years, the defendant’s level of intellectual impairment was re-assessed as mild.

21   In her 2012 report, Ms Gazzard applied the Wechsler Adult Intelligence Scale (‘WAIS-IV’) intellectual functioning assessment tool to the defendant and concluded that he fell in the ‘Extremely Low Range’ of intellectual functioning, ‘indicating that [his] intellectual ability is severely impaired’.

22   In 2014, when aged 35 years, his full-scale IQ was assessed by a different psychologist as falling within the ‘Extremely Low Range’, at the 0.1 percentile, again indicating ‘Severe Intellectual Impairment’, resulting in a diagnosis of him having a moderate intellectual disability. In 2018, another psychologist, Ms Howell, also diagnosed the defendant as having a moderate intellectual disability.

23   Although there has been some variation in assessments over the years, I accept for the purposes of this application that the defendant has a moderate degree of intellectual disability. Contrary to what the term ‘moderate’ might suggest, such a degree of intellectual disability is in fact quite significant. In 2017, the defendant was assessed as functionally illiterate and innumerate.

24   While in custody, the defendant was diagnosed with an adjustment disorder, with a differential diagnosis of depression. From about May 2019, he began to exhibit increased symptoms of depression with suicidal ideation. This coincided with him becoming distressed by the breakdown of his relationship with his parents and their relationship with each other, the disruption in his accommodation and the change in case manager. Otherwise, the defendant does not have a psychiatric history.

Services provided to the defendant during his detention and since his conditional release

25   In custody, the defendant participated in literacy and numeracy programs. He was transferred to the Assisted Support Unit at Long Bay Correctional Complex, which is a specialist unit for prisoners who have an intellectual disability. This allows the provision of remedial services to such prisoners, to enhance their capacity to behave lawfully on their release.

26   In 2017, whilst the defendant was still in custody, he was approved for participation in the Community Justice Program (‘the CJP’), on his eventual release. The CJP provided a range of specialist services to offenders with an intellectual disability when they are released back into the community. On his release, the defendant received, and continues to receive, services provided through a NSW government program known as the Community Justice and Integrated Services Program (‘the CJ&ISP’). I understand that this is a successor program to the CJP.

27   The following year, the defendant was approved for funding under the National Disability Insurance Scheme (‘the NDIS’).

28   The defendant was conditionally released by the Tribunal on 12 December 2018. His current conditions, as of the date of the most recent review by the Tribunal which was on 22 October 2019, include conditions to the following effect: that he accept services and support as nominated by his case manager, Ms Sinead Corcoran, and/or his NDIS support coordinator; that he reside at a particular address; that he ‘not associate with peers known to be of anti-social influence’; and that he agree to permit a sharing of ‘treatment, progress and management’ information between his service providers. There are also conditions of non-association with children unless supervised, and conditions governing drugs and alcohol, travel, engaging in unlawful conduct and providing his phone number to his case manager.

29   There are two other types of conditions currently placed on the defendant that are particularly relevant. One is a set of conditions that require the defendant to be managed by Ms Corcoran and meet with her in whatever form, and however often she decides and to participate in ‘education, training, rehabilitation, recreational, therapeutic, or other programmes’ as directed by Ms Corcoran.

30   The other is a ‘line of sight’ condition, namely, that, except when using ‘private amenities’, such as going to the toilet, the defendant is not to leave his address without being in the company of ‘support staff, case manager (or delegate) and/or family, and/or Lesley Bishop’. Ms Bishop is a team leader with Ascent Group, which is an NDIS service provider for persons who have an intellectual disability. She is also a long-term informal support person for both the defendant and his parents.

31   Amanda White, who is a forensic psychologist and clinical neuropsychologist, prepared a report for the plaintiff, dated 14 May 2019. Ms White noted that the defendant received 15 hours of counselling by a behavioural therapist, Ms Kris Bryant, that focussed on ‘providing education about appropriate sexual knowledge including consent, relationships, social and communication skills’. The sessions were completed by May 2019. Ms Bryant reported that the defendant was ‘engaged, cooperative and motivated’ in their sessions and that ‘there was [sic] no signs of inappropriate attitudes, behaviours or desires; although conceded this had not been adequately evaluated’.

32   The defendant’s level of annual funding under the NDIS was significantly increased from 13 August 2019. His funding for ‘core supports’, as outlined in a plan forwarded to the defendant on that date, includes support to encourage independent living, and for therapeutic and behaviour intervention supports, in the sum of $84,327.40. A category of ‘capacity building support’ includes a component of ‘20 hours of specialist behaviour intervention support and 20 hours of behaviour management plan, training in behaviour management strategies’, in the sum of $5,050.20.”

7. In the preliminary judgment, I noted two post-conditional release incidents that had come to the attention of the relevant agencies, one of which was unsubstantiated, and neither of which resulted in any breach action.

8. The first incident occurred on 23 August 2019. One of the defendant’s stepdaughters phoned him and asked him to come to her home, which was a 10 minute walk away. She told the defendant that she was upset about a recent death. The defendant was distressed, and felt a need to support his stepdaughter, and complied with her request by going to her home, without organising for someone to accompany him, which was contrary to his “line of sight” condition. The defendant was away from home for 1 hour and 20 minutes. There were no reports of concerns as to the defendant’s activities during his absence (“the stepdaughter incident”).

9. The other incident is alleged to have occurred on 11 October 2019. A staff member of the Ascent Group (“Ascent”), which is the NDIS service provider for the defendant, received a report from a fellow client that the defendant had been seen with his wife, “smoking drugs together”. The defendant did not admit the allegation and a drug test that was administered to him on 31 October 2019 found no presence of an illegal drug, including cannabis.

Developments since the preliminary judgment

10. A letter dated 17 February 2020 from the Service Manager of Ascent was tendered on behalf of the defendant without objection. The contents were to the effect that the defendant continues to reside at the same address and Ascent is providing up to 32 hours per week of support. Since their involvement with the defendant began in December 2018, Ascent had received no reports of any inappropriate sexual behaviour of the defendant towards children. The Service Manager stated: “The staff consistently report finding [the defendant] to be eager and motivated to engage with support, which has been my personal observation of [him] also”. His activities include attending a men’s shed twice a week where he engages in woodwork and “is building positive relationships with the other men who attend”. He is volunteering in a market garden twice a week and attending a course teaching basic literacy and numeracy, planning and organisational skills and shopping and cooking. The Service Manager further stated:

“Ascent staff continue to implement the Interim Incident Prevention and Response Plan developed by the Community Justice & Integrated Services Program (CJ&ISP) on 12 December 2018 … which provides both preventative and reactive strategies for managing problematic sexualized behaviours. A reviewed Behaviour Intervention and Support Plan has been drafted by The Benevolent Society and is expected to be released for implementation shortly. This plan likewise will provide preventative and reactive strategies for dealing with problematic sexualized behaviour.

CJ&ISP have provided training to Ascent staff in how best to support [the defendant’s] disability needs in the community and continues to provide support staff via (approximately) monthly meetings with Ascent support staff.

…

If Ascent staff noted [the defendant] had unmet need[s] or an issue that required addressing – for instance relating to guardianship, support or services – Ascent would liaise with [the defendant’s] established network of support to determine a suitable course of action. This might be done either directly to the most appropriate source of support (for example, his guardian) or via the routine case conferences held jointly by [the defendant’s] support services (which includes Legal Aid, his guardian, his NDIS support co-ordinator, CJ&ISP, Ascent, etc).”

11. At the time of the preliminary hearing, a guardianship application in respect of the defendant was on foot, following a decision by the defendant’s parents to relinquish their role as his carers. On 9 December 2019, the Guardianship Division of the NSW Civil and Administrative Tribunal (“NCAT”) made a guardianship order for a period of 12 months (“the guardianship order”). Dr Ellis is of the opinion that, as the defendant’s condition is not likely to be different in 12 months’ time, the guardianship order is likely to be renewed. The order appointed a Public Guardian as the defendant’s guardian and limited its scope to the extent necessary to carry out three functions: to decide what health care he may receive, what services are to be provided to him, and “to give or withhold consent as to whether [environmental restraint] should be used to influence [the defendant’s] behaviour”. The order included certain conditions, relevantly:

“CONDITIONS:

6.   The conditions of this order are:

a)   Standard Condition

In exercising this role the guardian shall take all reasonable steps to bring [the defendant] to an understanding of the issues and to obtain and consider his views before making significant decisions.

b)   Restrictive Practices Condition

The guardian(s) may only consent to the use of the types of restrictive practices permitted under this order to influence [the defendant’s] behaviour:

(i)   as a last resort to prevent [the defendant] harming himself or others; and

(ii)   in accordance with a behaviour support plan which has been developed by a behaviour support practitioner after having conducted a functional behavioural assessment upon [the defendant], and which is reviewed regularly (and no less than every 12 months) and/or reviewed as soon as practicable if there is a change in circumstances which requires the plan to be amended.”

12. In their reasons, NCAT explained why it made an environmental restraint order, and that it was intended to provide the guardian with sufficient authority to approve a “line of sight” provision.

13. By letter dated 16 December 2019, the National Disability Insurance Agency (“the NDIA”), which is the Commonwealth agency that administers the NDIS, informed the defendant that an NDIS plan for him for 2020 had been approved. It includes $99,927.76 for “core supports” and $35,074.87 for “capacity building supports”, which includes an allocated amount to cover “64 hours of specialist behaviour intervention support and 30 hours of behaviour management plan [and] training in behaviour management strategies”.

14. The defendant has tendered material published on the internet by the NDIS that sets out their policy on the use of environmental restraints that restrict a person’s free access to parts of their environment. It states that registered providers who develop behaviour support plans are to comply with a framework of stated principles.

15. On 24 January 2020, the defendant met with police for the annual review of his circumstances pursuant to his obligations under s 10 of the Child Protection (Offenders Registration) Act 2000 (NSW). Police advised: “No issues were raised or revealed at this time and he was deemed to be in compliance with his reporting obligations”.

16. On 3 February 2020, the defendant’s Public Guardian approved the appointment of a relevantly-experienced co-ordinator of support services for the defendant.

17. There have been no reported breaches by the defendant of his conditional release order. He remains subject to a “line of sight” condition when he is outside his residence. He continues to receive a disability support pension.

Relevant statutory provisions

18. The defendant became a forensic patient when he received a limiting term (ss 24 and 42(a)(i) of the Act) and remains a forensic patient because he is subject to an IEO (s 42(a1) of the Act). Section 54A, which is in Pt 5 of the Act, provides that a person’s status as a forensic patient may be extended in accordance with the Schedule.

19. Clause 1 of the Schedule requires the application to be made under Pt 2 of the Schedule, which sets out time constraints and other compliance requirements for an application, and identifies certain material that must accompany it (cls 3, 4, 5 and 6(1)–(4)). The defendant does not contest that the plaintiff has complied with these requirements and I find that they are satisfied.

20. The Court may determine an application by either making the order or by dismissing the application: cl 7(1). The Court may make a second or subsequent extension order against the same forensic patient: cl 8(2). The making of an extension order does not affect the operation of “any order as to the forensic patient’s care, detention, treatment or release from custody to which the forensic patient was subject immediately before the making of the extension order”: cl 9.

21. The title of Pt 5 of the Act is “Forensic patients and correctional patients”. The objects of Pt 5 are set out in s 40, as follows:

“40   Objects

The objects of this Part are as follows:

(a)   to protect the safety of members of the public,

(b)   to provide for the care, treatment and control of persons subject to criminal proceedings who are suffering from a mental illness or mental condition,

(c)   to facilitate the care, treatment and control of any of those persons in correctional centres through community treatment orders,

(d)   to facilitate the provision of hospital care or care in the community through community treatment orders for any of those persons who require involuntary treatment,

(e)   to give an opportunity for those persons to have access to appropriate care,

(f)   to protect the safety of victims of forensic patients and to acknowledge the harm done to victims.”

22. The plaintiff submits that ss 40(a), (b), (e) and (f) of the Act are relevant to a determination of the application. However, s 40(b) is relevant only to “persons … who are suffering from a mental illness or mental condition”, and subs (c), (d) and (e) are confined to “those persons”, which refers back to subs (b). The term “mental illness” is undefined in the Act, but “mentally ill person” is defined at s 3 of the Act to have the same meaning as in the Mental Health Act 2007 (NSW). The Mental Health Act states, at s 16, that a person is not a mentally ill person “merely because … the person has an intellectual disability or developmental disability”. The term “mental condition” is defined at s 3 of the Act to exclude “developmental disability of mind”.

23. The terms “developmental disability of mind” and “developmental disability”, in the context of the cognate legislation affecting forensic patients, include (and are often used interchangeably with) an intellectual disability: see, for example R v Mailes (2001) 53 NSWLR 251; [2001] NSWCCA 155 per Wood CJ at CL, Spigelman CJ and Greg James J agreeing at [95], concerning the predecessor to the Act, the Mental Health (Criminal Procedure) Act 1990 (NSW) (“the MHCPA”).

24. Although this issue was raised in the preliminary judgment, neither party has addressed how s 40 of the Act should be reconciled with an application pursuant to the Schedule, when it is not suggested that the defendant has a mental illness or a mental condition, as defined.

25. The Interpretation Act 1987 (NSW) provides in s 33 that:

“In the interpretation of a provision of an Act, a construction that would promote the purpose or object underlying the Act … shall be preferred to a construction that would not promote that purpose or object.”

26. In Wacando v The Commonwealth (1981) 148 CLR 1; [1981] HCA 60, the High Court considered the use of statutory preambles in statutory construction. Gibbs CJ said, at 15-16: “… if the words of the section are plain and unambiguous their meaning cannot be cut down by reference to the preamble”. Mason J said, at 23:

“It has been said that where the enacting part of a statute is clear and unambiguous it cannot be cut down by the preamble. But this does not mean that a court cannot obtain assistance from the preamble in ascertaining the meaning of an operative provision. The particular section must be seen in its context; the statute must be read as a whole and recourse to the preamble may throw light on the statutory purpose and object.”

27. In Re Yanner (2000) 176 ALR 1; [2000] FCA 975, at [95]-[96], Dowsett J adopted this approach when considering how a statutory objects clause is to be utilised in statutory interpretation.

28. The nature of the objects in s 40 of the Act aligns with the scope of Pt 5 absent the Schedule, in particular, the care, treatment and control functions of the Tribunal over forensic and correctional patients. The Schedule, however, is exclusively concerned with a qualitatively different issue, being whether a person’s status as a forensic patient should be extended by the Supreme Court, according to a test set out at cl 2 as to the level of risk that would be posed by the person if that status is not extended.

29. In my view, the objects that are set out at s 40 of the Act are intended as guidance to the interpretation of Pt 5 of the Act insofar as it concerns the functions of the Tribunal, and must yield to the clear terms of cll 2 and 7(2) of the Schedule.

30. The central provision of the Schedule as to the criteria for determining an application is found in cl 2:

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

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

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

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

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

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

Relevant principles

31. Two of the key phrases in cl 2 of the Schedule appear in the context of counterpart legislative schemes for continuing supervision and detention in the Crimes (High Risk Offenders) Act 2006 (NSW) and the Terrorism (High Risk Offenders) Act 2017 (NSW), and have been the subject of appellate consideration of their meaning in those contexts. The Court concluded in Cornwall v Attorney General for New South Wales [2007] NSWCA 374 at [21]:

“The expression ‘a high degree of probability’ indicates something beyond ‘more probably than not’, so that the existence of the risk … has to be proved to a higher degree than the normal civil standard of proof, though not to the criminal standard of ‘beyond reasonable doubt’.”

32. The term “an unacceptable risk” should be given its everyday meaning in the context of the provision in which it appears: see Lynn v State of New South Wales (2016) 91 NSWLR 636; [2016] NSWCA 57 at [58].

33. The level of risk is determined by the Court on the assumption that the defendant would no longer be a forensic patient. In the context of an application where the defendant has already been conditionally released, the question is whether the defendant would pose an unacceptable risk residing in the community if he were no longer subject to the oversight of the Tribunal, with its power to enforce its conditions on pain of being returned to detention.

34. If the Court is satisfied to a high degree of probability that the defendant poses an unacceptable risk of causing serious harm to others in that circumstance, the Court is then required to evaluate whether that risk is capable of being adequately managed by other less restrictive means. It is for the Attorney General to prove that the risk cannot be so managed. I note that this approach has been adopted previously: see Attorney General of New South Wales v Christian bht Thompson [2018] NSWSC 744 per Rothman J at [92]–[93].

35. The term “serious harm to others” is unique in the three legislative schemes, although the notion of “serious harm” (to others or to him or herself) is the basis for a person being made an involuntary patient, pursuant to s 14 of the Mental Health Act, which is a cognate Act: see Mailes at [190]. This was an intentional adoption, as was acknowledged in the second reading speech by the Attorney General the Hon Greg Smith SC for the Mental Health (Forensic Provisions) Amendment Bill 2013 (New South Wales Legislative Assembly, Parliamentary Debates (Hansard), 13 November 2013 at 25638). The Attorney General stated:

“The test varies in one respect from the test recommended by the Law Reform Commission. Rather than requiring that the forensic patient pose an unacceptable risk of causing ‘serious physical or psychological harm’ to others, the bill provides that the patient must be at risk of causing ‘serious harm’ to others. That change brings the test into line with the test for involuntary detention under the Mental Health Act, without losing the stringency of the Law Reform Commission's test.”

36. In Attorney-General of New South Wales v Kereopa [2017] NSWSC 411, Davies J noted, at [15], that there is no authority on the meaning of the words in the context of the Schedule, although the term has received consideration in the context of s 14 of the Mental Health Act, by White J (as his Honour then was) in Re J (No 2) [2011] NSWSC 1224. In that case, White J considered, at [93], that the term “serious harm” was wider than “serious physical harm” and that there was “much to be said” in favour of it meaning either physical or psychological harm.

37. In Kereopa, Davies J concluded, at [19], as to the term’s contextual meaning in the Act:

“I accept that Re J must be treated carefully for a determination of the meaning of the term ‘serious harm’ in the [the Act] because of its context in the Mental Health Act. However, there is no reason in principle why ‘serious harm’ in the [the Act] would not include, at least, psychological harm. It may include serious economic or financial harm but it is not necessary to reach a view about that. Similarly, grievous bodily harm (the less serious part of the definition of ‘serious violence offence’ in the [Crimes (High Risk Offenders) Act 2006 (NSW)] is explained to juries as being ‘really serious injury’, a concept that must be on a higher plane than ‘serious harm’.”

38. In Attorney General of New South Wales v Kereopa (No 2) [2017] NSWSC 928, R A Hulme J, referring to Davies J’s conclusion in Kereopa, said, at [16]:

“… I agree with his Honour that it may concern physical or psychological harm. In terms of physical harm it does not require a concern about harm to the level of ‘grievous bodily harm’ (defined in the criminal law as really serious bodily harm). I accept the submission on behalf of Mr Kereopa that it contemplates something more than would satisfy the minimum threshold for ‘actual bodily harm’ under the criminal law. I also accept the submission that psychological harm must be something more than emotions such as fear or panic. Such things are not ‘serious harm’.”

39. I agree with R A Hulme J’s understanding of the term “serious harm”. In the context of this application, the focus of the plaintiff’s submissions is whether the defendant would engage in behaviour similar to that involved in the index events, which clearly would constitute “serious harm”.

Clause 7(2) matters

40. Clause 7(2) of the Schedule sets out a non-exclusive list of matters that the Court must have regard to when deciding whether to make an extension order. These matters are now separately considered.

Clause 7(2)(a): the safety of the community

41. Although differently drafted, this is essentially the same consideration as expressed in s 40(a) of the Act: “to protect the safety of members of the public”.

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

The forensic psychologist’s report

42. Forensic psychologist Patrick Sheehan interviewed the defendant on 6 February 2020, for about two and a half hours. The history that the defendant gave Mr Sheehan follows those he had provided to forensic professionals and others previously, although he included for the first time an allegation that when he was below the age of ten years, he was sexually abused by a close male family member. The defendant was too embarrassed to go into details and said it had continued to trouble him. Mr Sheehan also noted a report to the effect that the defendant had been suspended from high school in 1994, when he would have been aged about 15, for “sexually inappropriate behaviour towards female peers”.

43. The defendant told Mr Sheehan that with the support of his caseworker, he had recently ended the relationship with his wife, because her behaviour left him insecure and angry. Mr Sheehan said that he saw “no evidence that he identifies as antisocial or naturally seeks the company of antisocial peers”.

44. Mr Sheehan considered that the defendant’s degree of intellectual disability was “mild to moderate”. Mr Sheehan said:

“[The defendant’s] intellectual functioning is part of the wider picture of behavioural dysfunction and risk, impairing his ability to adequately appraise his situation and make appropriate decisions. His disability is relevant to his index offence and to his risk of reoffending, both through his impaired decision making and by creating emotional identification with young persons. This condition is permanent.”

45. Mr Sheehan considered the defendant’s substance use history, and suggested that the defendant met the criteria for Polysubstance Use Disorder, although in the context of there being no recent use, the condition is “[m]ild, in sustained remission”. Mr Sheehan noted that the index events were not alleged to be substance-related.

46. Mr Sheehan reported that:

“[The defendant] denied any paraphilic sexual interests, any unusual sexual practices, any interest in non-consenting sex or any sexual interest in children. He reported the belief that sexual interactions with children were morally wrong.”

47. Mr Sheehan deferred a diagnosis of paraphilia, stating that although the two index events were:

“… spread over a period of time possibly exceeding six months, I think there is insufficient evidence of fixed paraphilic interest (with disinhibited high libido, impoverished boundaries and opportunism being key factors).”

48. Mr Sheehan concluded that the defendant had a depressive disorder, though was currently in remission for that, as well as an unspecified personality disorder:

“[The defendant’s] history of insecurity, heightened sensitivity to perceived slight, troubled interpersonal relationships, avoidance and emotional dysregulation, are all indicators of personality dysfunction. These features are likely influenced to various degrees by his intellectual functioning but also form enduring aspects of personality function. Importantly, I do not believe that the criteria for Antisocial Personality Disorder is met. The absence of which is a positive prognostic indicator.”

49. Mr Sheehan related that when detained, which was in a prison, the defendant was pro-active in seeking treatment and was, effectively, a model detainee. Mr Sheehan said:

“[The defendant] undertook institutional employment (packaging headphones) and education programs (literacy and numeracy, computing, first aid). He applied for sex offender treatment programs but was declined due to his lower risk status (1 May 2018). Similarly, his low score on the Level of Service Inventory - Revised (LSI-R) made him ineligible for other offender rehabilitation programs offered by CSNSW. He did participate [in] some form of treatment aimed at improving coping and emotional regulation. He incurred no institutional misconduct charges. His work reports, education reports and wing reports are all favourable. He obtained minimum security classification from 19 October 2017 and was never regressed. He was managed under Limited Association due to the nature of his charges and being a vulnerable inmate.”

50. Mr Sheehan assessed how the difficulties the defendant experienced in 2019 with his accommodation and the breakdown in his family’s support impacted on his mental health, and how the improvement in resources that have been allocated to the defendant impacted on him positively, although he feels burdened by the “line of sight” restriction:

“Throughout 2019 the level of service provision has increased through further funding grants by NDIS and other community grant sources (as it became recognised that [the defendant’s] level of functioning was lower than previously anticipated). As revealed by a weekly timetable included in the annexures, [the defendant’s] support program involves activities seven days per week. His support worker estimated an average of six hours each weekday and two hours on Friday and Saturday. He is assisted with all aspects of living, from budgeting, home maintenance, shopping and cooking. In my view the level of support is optimal. [The defendant] said that he is content with the level of support and is sufficiently stimulated, but continues to feel stifled by the line-of-sight condition, meaning that he is unable to go for a ride on his pushbike, visit his family, or go down to the local shop at times when his support workers are not on shift.”

51. As to the defendant’s compliance with conditions, Mr Sheehan noted the stepdaughter incident and the unsubstantiated allegation that he had been seen smoking drugs. He related another incident (“the neighbour incident”):

“[The defendant’s] support worker also told me of an incident in late 2019 when [the defendant] was invited into the home of his neighbour for a cup of tea whilst children were present. The incident became known because [the defendant] disclosed it to a case worker. [The defendant] said that at the time his neighbour had offered him a piece of furniture and he had been focussed on that objective, rather than considering that his actions were in breach of his conditional release. This reveals how [the defendant’s] cognitive impairment makes it difficult for him to simultaneously consider multiple factors in his daily decision making, which can lead to poor choices.”

52. Mr Sheehan concluded that the defendant’s “only significant pathway to serious harm to others [would] be through his sexual behaviour”. He administered two tools intended to assess an alleged or convicted sex offender’s risk of future sexual offending, although emphasising that a scientific prediction of whether an offender will re-offend is not possible, and that such tools have only moderate predictive accuracy.

53. One such tool was the Static-99R which, as its name suggests, is based exclusively on static factors. Further limitations on the Static-99R are, as Mr Sheehan discussed, that it “is not sensitive to changes in the patient’s circumstances … [and it is] not specifically normed on intellectually impaired offender populations”. This tool yielded a response of the defendant’s risk being either below average or average, relative to other male sexual offenders, depending on whether he had previously resided with a partner for two years or more; Mr Sheehan was not confident of the defendant’s reliability as an historian on that fact.

54. The other test Mr Sheehan administered was the “Risk of Sexual Violence Protocol” (“RSVP”) which assesses dynamic risk factors. He described it as a structured professional judgement tool that assesses the person against a list of 22 dynamic factors relating to five domains; sexual violence history, psychological adjustment, mental disorder, social adjustment and manageability. Mr Sheehan considered his observations and the defendant’s history in each category, noting factors that affected risk assessment, both positively and negatively.

55. Mr Sheehan referred to a third test. He noted that in February 2018, officers of the Community Justice Program (“CJP”) had administered the “Assessment of Risk and Manageability of Individuals with Developmental and Intellectual Limitation who Offend – Sexually” (“ARMIDILO-S”). This test takes into account specific environmental factors that are considered to have a significant influence on the risk of recidivism for sex offenders with an intellectual disability, as well as specialist services. When the ARMIDILO-S was administered on the defendant, he was assessed as being in the “low to medium” category of sexual re-offending.

56. Overall, Mr Sheehan concluded as follows:

“The totality of information supports the view that [the defendant] presents a moderate or medium risk of reoffending, with this rating being inseparable from the protective influence of his intensive community management since December 2018. His history suggests that he is most vulnerable to offences of a sexual nature against young vulnerable females who are known to him and who are placed under his supervision, in circumstances where he is simultaneously experiencing multiple stressors (likely interpersonal stressors) and is emotionally distressed.”

57. In evidence, Mr Sheehan clarified the first sentence of this paragraph to refer to the defendant’s level of risk if he was removed from the “framework” of his current supervision. Mr Sheehan summarised the framework and its suitability for purpose as follows:

“Since conditional release in December 2018, [the defendant’s] risk has been well managed through a combination of management through the MHRT, CJP and the Ascent NGO. Although there have been evident difficulties in administering supervision, in my view the optimal level of service provision has been reached and [the defendant] shows much improved community adjustment and stability relative to when earlier reports were submitted in early-mid 2019. The records reveal that the ongoing involvement of MHRT, Legal Aid Mental Health Advocacy Service and CJP have value in being able to respond assertively to fluctuations in risk presentation and to intervene when service provision falls short of forensic requirements. Such is the expertise of these services.”

58. As noted earlier, the Court is obliged by cl 2 of the Schedule to consider whether there are “less restrictive means” of managing a risk that the defendant would cause “serious harm to others”, which would otherwise be at an unacceptable level.

59. In this context, Mr Sheehan considered whether guardianship would suffice to contain what he considers to be a moderate risk of sexual re-offending, and set out the way forward for the defendant, as he sees it, as follows:

“In terms of viable alternatives to MHRT management, the Guardianship pathway may have some merit. The Public Guardian can be given the function of determining where [the defendant] will reside, the health care that he will receive, and decisions about services he will be provided. However the mantle of risk manager does not sit naturally with the Guardianship pathway where there is no explicit mandate to act for community safety, therefore requiring decision making to be based on the logic that causing serious harm to others would not be in [the defendant’s] best interests. This extended logic may or may not be palatable to the Public Guardian. It remains unclear to me whether there would be any capacity to intervene and contain [the defendant] in the scenario that his risk would be seen to escalate. It may be that there is a capacity for the Public Guardian to direct him temporarily to a more intensive CJP model in that instance … (with the support of CJP and their expertise in dynamic risk management of offenders with complex needs).

Any transition from being a forensic patient to the Guardianship model will inevitably involve weakening of the system that has supported and contained [the defendant] in the community over the past 13 months. However, despite this I would still suggest that Guardianship could potentially exert a protective influence to assist in reducing [the defendant’s] risk of creating serious harm to others. I would recommend a further extension of [the defendant’s] status as a forensic patient for 12 months, allowing for requisite investigation of Guardianship and the application processes. This will have allowed for a period of two years conditional release under MHRT, providing a more informed view as to whether [the defendant] can maintain and consolidate upon his current stability.

I would recommend that the line of sight condition be relaxed during this period (contingent on his ongoing stability). I would recommend treatment engagement with a skilled therapist to assist [the defendant] to devise simple plans for how to avoid future situations where he may be accused of sexual offences. This would be based on the ‘Deniers Program’ model, but would need to be administered in a simple and concrete fashion. This could also be an opportunity to reinforce the basic sexual psychoeducation undertaken in early 2019.”

60. Mr Sheehan explained in evidence that the “deniers program” is one designed for sex offenders who maintain their innocence. He said:

“I think it would be quite useful in [the defendant’s] case that he had, through working with someone who knows that field and is qualified in that field, to have a short list of concrete rules that he follows that don't require too much mental sophistication to apply to daily situations but just a handful of rules that he can follow. I think that would go some way to assist him.”

The forensic psychiatrist’s report

61. Dr Andrew Ellis is a forensic psychiatrist who has particular expertise in relation to the treatment of sex offenders. He prepared a report dated 16 February 2020, having interviewed the defendant for two hours on 7 February 2020. Dr Ellis related the relevant features of the history taken from the defendant which generally accorded with that provided to Mr Sheehan, two notable exceptions being that the defendant denied any experience of sexual abuse as a child and he gave a different account of his sexual libido, placing it at a significantly lower level than what he told Mr Sheehan.

62. Dr Ellis spoke with the defendant’s disability worker, who said he had known the defendant since his release into the community in December 2018. He reported that the defendant:

“… had never displayed any interest in children or children’s activities. When in the community and children were around he tended to be anxious and avoid any interaction with them.”

63. Dr Ellis was of the opinion that the defendant has a moderate degree of intellectual disability. He considered, and rejected, diagnoses of substance abuse disorder and personality disorder. He stated that the defendant has a mental illness in the form of depression, but it would not come within the definition of “mentally ill person” in the Mental Health Act. He elaborated on the diagnosis:

“[The defendant] would not be considered to have a continuing condition as his insight and motivation to remain under treatment is good, and there is no prior episode where he has deteriorated to a point requiring hospital care. He has always accepted psychiatric care when offered. Voluntary community treatment with antidepressants and psychological support is safe and effective for the foreseeable future.”

64. Dr Ellis regarded the evidence as to whether the defendant had a psychosexual disorder, such as a paraphilic disorder, as “equivocal”, and recommended that clinicians continue to monitor his attitudes and observe for behaviours that might indicate a pattern of arousal.

65. Dr Ellis noted that:

“… [w]hile intellectual disability per se is not associated with most types of offending (including general and sexual violence), impaired impulse control and decision making can predispose to negative mental states, drug use and marginal social situations which are associated.

Most factors associated with offending such as personality disorder, exposure to trauma, violent attitudes, psychotic illness and clinical substance use disorders are not present.”

66. Dr Ellis was of the opinion that the defendant’s level of risk of “physical endangerment to others … is very low in a supervised environment”. The defendant’s score on the Static-99R placed him as having an average level of risk of re-offending, which I note is at the top of the range found to apply by Mr Sheehan on that same test. Dr Ellis commented that this level of risk is effectively managed by current circumstances and that there was no need for him to partake in risk-reduction programs:

“There is limited evidence that cognitive behavioural programs geared at sexual offending reduce recidivism. This is even less so for intellectually disabled persons. He would benefit more from regular reinforcement of positive behaviours from day to day interactions with disability staff than completing a program. Having advice to staff as to what behaviours they can model would be of most benefit.”

67. In evidence, Dr Ellis elaborated on this approach:

“I think [the defendant] should be known by a forensic mental health clinician that is experienced in the management of sex offenders, and he might have reviews with that person, but the therapy itself is probably better delivered by his day to day disability workers, and have that therapist provide information to the disability workers, one, looking for any indications of behaviour or conversation that [the defendant] brings up that might indicate him thinking more along the lines of offending against children, for them to be able to watch for those signs, and then also for them to integrate into his disability rehabilitation appropriate sexual behaviours, appropriate social skills, appropriate relationship skills, and to build it into, in small, small chunks, his overall disability rehabilitation. I think that sort of giving him say ten or twenty sessions of psychotherapy, he's likely to forget that over time and it have less value. What would be of more value is to integrate that into his disability work, and it could be done by someone who perhaps only sees him say once or twice a year, but who knows his case well, and who can then provide that advice to the disability workers. I think that would be a more, a more practical and, you know, it would better suit his individual needs rather than doing sort of generic psychological programs.”

68. Overall, Dr Ellis concluded that he was of the opinion that if the defendant’s status as a forensic patient is not continued, he nevertheless would be safely and effectively managed under his guardianship order and his obligations under the Child Protection Register:

“The substantially different condition between a Guardianship and the Child Protection Register with his forensic order in regards to risk management is the recall power for forensic patients [who] are discharged to the community. This could lead to recall to hospital or prison should he not comply with conditions or deteriorate in mental state. Breach of the Child Protection Register would lead to potential criminal charges. Police could consider Child Protection Prohibition Orders if behaviours arose that give rise to concern around his interactions with children.

With a forensic order he would be subject to more oversight by the forensic arm of [the Tribunal]. He could only be discharged from his order by the forensic arm of [the Tribunal].

My view is that it is possible he could be safely and effective[ly] managed under the scheme provided by the Guardianship Act which allows for ongoing scaffold of his disability service provision and supervision, alongside the Child Protection Register.

A significant difference in forensic patient status is [that] when on conditional release, recall to hospital or prison may be enacted more rapidly in a cycle of clinical deterioration. It does not require [the defendant to] deteriorate to a point where he becomes a ‘mentally ill person’. As his risk does not relate directly to mental illness (depression, although when depressed he may be more impulsive) hospital admission is not likely to be a satisfactory mechanism to manage risk to children. Recall to prison is not recommended as a useful risk management strategy, other than for short term containment. There are insufficient resources in prison for his rehabilitative needs, he is exposed to antisocial peers and dislocated from supports. He received little relevant assessment or rehabilitative services while in custody during his limiting term.

Ultimately, the clinical care provided to him will manage the risk associated with his conditions, rather than the specific type of legal order. If conducted in an evidence-based fashion in the manner suggested above the use of the guardianship and Child Protection Register legislation could be as safe and effective as an order for conditional release. It would also remove the possibility of restrictive and ineffective recall to prison in the event of a non-criminal breach of conditions of release.

Remaining on a forensic order moves the oversight from individual clinicians in health and disability services to the automatic oversight of the forensic arm of [the Tribunal], however this would be at six-month intervals and reliant on clinician observations. In this case the police and public guardian would also provide oversight, and these more directly address risk to children than the scheme in the Mental Health (Forensic Provisions) Act in this case.”

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

69. Ms Amanda White, psychologist, prepared a report dated 14 May 2019. I considered her report in the preliminary judgment at [31], [47]–[51] and [66]–[67].

70. Ms White administered the Static-99R test, which yielded the result of the defendant having a “below average” risk level of sexual recidivism. She also administered the Questionnaire on Attitudes Consistent with Sexual Offending (“QACSO”), which is intended to assess attitudes and cognitive distortions consistent with sexual offending in men who have an intellectual disability. She concluded:

“[The defendant’s] individual results on all scales were at least one standard deviation below the mean for sex offenders with an intellectual disability.”

71. Ms White also applied the RSVP test. Overall, she made the following conclusions:

“On actuarial risk assessment measures his overall level of risk is Below Average compared to other high-risk sexual offenders. However, considering both static and dynamic risk factors, his current level of risk of sexual re-offending is likely to be within the Average range … At present there remains several factors which require additional attention and to be resolved in order to significantly reduce [the defendant’s] risk of sexual re-offending.”

The “several factors which require additional attention” Ms White referred to were related to the defendant’s deteriorating family and accommodation situation and concerns as to the suitability of his support at that time, which have since been resolved.

Clause 7(2)(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

72. In the preliminary judgment, I referred to a report prepared by Ms Jenny Howell, who is a clinical psychologist, dated 26 October 2018. Ms Howell assessed the defendant’s static, dynamic and protective factors using various assessment tools and concluded that:

“It is my view, based on [the defendant’s] static, dynamic and protective factors that he has an overall Below Average risk of engaging in sexual recidivism.”

73. However, she concluded her report by stating that “[c]linical assessment suggests [the defendant’s] risk of re-offending falls within the Average Risk range”. Ms Howell did not attempt to reconcile her different conclusions.

74. I also referred to a risk manageability assessment report, dated 7 November 2018, which was prepared by Natasha Phong and James Wu, who are respectively a clinical consultant and a team leader with the Community Justice Program. They considered that if the defendant lived with his family and received “drop in support”, he had an overall risk rating within the “low to medium range”.

Clause 7(2)(e): any order or decision made by the Tribunal with respect to the forensic patient that is relevant to the application

75. Section 46(1) of the Act provides:

“The Tribunal must review the case of each forensic patient every 6 months but may review the case of any forensic patient at any time.”

76. At the final hearing, the plaintiff advised that the Tribunal’s most recent review of the defendant was in October 2019. I referred to the formal determination following that review (which was dated 12 November 2019) in the preliminary hearing. It referred to the stepdaughter incident and the alleged incident involving the use of drugs but not to the negative drug test, as the test result post-dated that review. The Tribunal was satisfied that the present arrangements in place for the defendant were “necessary and sufficient for the protection of [the defendant] from serious harm and/or the protection of others from serious harm”. In the absence of a more up to date review, I assume this to be essentially the current position of the Tribunal.

Clause 7(2)(f): any report of the Secretary of the Ministry of Health, the Commissioner of Corrective Services, the Secretary of the Department of Family and Community Services or any other government Department or agency responsible for the detention, care or treatment of the forensic patient

77. The plaintiff has tendered numerous reports that come within this description, many of which are of limited relevance due to their age and the availability of subsequent, more comprehensive, reports. Without intending to be critical of the parties and in the interests of reducing the paperwork in such applications in the future, I suggest that many could have been summarised in an agreed document. I will refer to three reports that have some relevance, insofar as they demonstrate that the defendant’s low-risk rating according to accepted assessment tools is long-standing and that when he was detained in custody, he was precluded from treatment programs because his level of risk was low.

78. A report dated 9 May 2017 by Olivia Munn, who was a senior psychologist at the time with Statewide Disability Services, which is an agency of the Department of Justice, referred to her assessment of the defendant using the LSI-R as having a low to medium risk of general recidivism, which was too low for him to qualify to partake in programs of the Department of Corrective Services (“DCS”) addressing general recidivism. She assessed him with the Static-99R assessment tool, which placed him in the low risk category for sexual re-offending.

79. A report dated 30 April 2018 by Monika Gubarewski, who also was then a senior psychologist with the DCS, noted that the defendant had been found unsuitable for the Sex Offender Treatment Program because his Static-99R score was too low for him to qualify.

80. A report dated 31 May 2018 by another senior psychologist of DCS, Meagan Donaldson, was to the effect that the defendant’s low Static-99R score also precluded him from participating in a DCS program that specifically designed for child sex offenders who have an intellectual disability, known as the “Self-Regulation Program: Sexual Offending” (“the SRP:SO”). It is only offered to moderate to high and high-risk offenders.

Clause 7(2)(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)

81. The defendant had no disciplinary matters against him when he was detained in prison. He has not been dealt with for breaching his conditions of release and there are no breaches of his obligations by reason of being on the Child Protection Register. In my view, the stepdaughter incident and the neighbour incident, which were contrary to the “line of sight” obligation imposed by the Tribunal, were minor. It is relevant that the affected agencies deemed it appropriate to take no further action in relation to them.

Clause 7(2)(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

82. In the preliminary judgment I observed that when Payne DCJ imposed the limiting term on the defendant, she said that, pursuant to s 23(1)(b) of the Act, it is the equivalent of the sentence that would have been imposed if the person had been convicted at a normal trial. Although it is without the benefit of a non-parole period, it is intended to ensure that a person is not detained for a longer period than he or she would have been, if convicted following a normal trial. Her Honour found that considerations of general deterrence were inappropriate, in view of the defendant’s intellectual disability; that his moral culpability was “considerably reduced”; that time in custody would be particularly onerous for him; and that he had a supportive family and friends. In relation to his prospects of rehabilitation, her Honour found that it was pertinent that the alleged offences at that stage were eight to ten years old and that he had not come under attention in the intervening period.

Clause 7(2)(i): any other information that is available as to the risk that the forensic patient will in future cause serious harm to others

83. There are two other matters which are relevant to the determination of the application.

Obligations pursuant to the Child Protection (Offenders Registration) Act 2000 (NSW)

84. The defendant has certain obligations as a “registrable person” pursuant to s 3A of the Child Protection (Offenders Registration) Act 2000 (NSW). He will remain on the Child Protection Register, and thus remain subject to these obligations, until 2033. Because of the nature of the charges which are the basis of the index events, he is obliged by s 9(1) of the Child Protection (Offenders Registration) Act to provide and update certain information to the Commissioner of Police, including the name and date of birth of each child who generally resides in the same household as that in which he generally resides (s 9(1)(e)), and details of any phone or internet service he uses or intends to use, including the types of internet connection, any email addresses and/or other usernames of the internet including social media (ss 9(1)(m)–(p)).

85. Of particular relevance to this application are ss 9(1A) and (1B) of the Child Protection (Offenders Registration) Act, which provide:

“(1A)   For the purposes of this Act, the relevant personal information to be reported by a registrable person also includes the name, date of birth and address of each child (or other means of contacting each child) with whom the person has had contact, but only if the registrable person was:

(a)   supervising or caring for the child, or

(b)   visiting or staying at a household where the child is present, or

(c)   exchanging contact details with the child (including providing the person’s contact details to the child), or

(d)   attempting to befriend the child.

(1B)   For the purposes of subsection (1A), contact with a child, includes the registrable person having:

(a)   physical contact with the child (including by touching the child or being in very close physical proximity to the child), or

(b)   oral communication with the child (including communication that takes place in person, by telephone or by electronic means such as via the internet), or

(c)   written communication with the child (including communication that takes place by mail, by telephone or by electronic means such as email).”

86. All of the information required by s 9 is to be reported each year: s 10(1). Any changes to the relevant information are to be provided: s 11(1)(a). The maximum penalty for failure to comply with a reporting obligation is 5 years imprisonment: s 17(1).

87. A report dated 17 October 2019 by Sinead Corcoran, who is a Senior Clinical Consultant with the CJ&ISP, was attached to an affidavit of a solicitor from the Crown Solicitor’s Office. The report was read by the plaintiff in the preliminary hearing and the final hearing. It stated that “[The defendant] has been compliant with his Child Protection Order”. I was advised by the plaintiff at the final hearing that the report was incorrect; the defendant is not subject to a Child Protection Order.

88. However, the fact that the defendant is a “registrable person” pursuant to the Child Protection (Offenders Registration) Act allows the Commissioner of Police to apply to the Local Court, pursuant to s 4 of the Child Protection (Offenders Prohibition Orders) Act 2004 (NSW), for an order prohibiting him from engaging in specified conduct (“a child protection prohibition order”). Pursuant to s 5(1) of the Child Protection (Offenders Prohibition Orders) Act, the Local Court may make the order if it is satisfied, on the balance of probabilities, that:

“(a)   there is reasonable cause to believe, having regard to the nature and pattern of conduct of the person, that the person poses a risk to the lives or sexual safety of one or more children, or children generally, and

(b)   the making of the order will reduce that risk.”

89. The type of conduct that may be the subject of such orders is set out at s 8 of the Child Protection (Offenders Prohibition Orders) Act, and includes the persons, or kinds of persons, with whom the person may associate, locations and kinds of locations the person may go to, and specified behaviours he may not engage in.

The reporting of concerning behaviour

90. In relation to behaviour by the defendant that falls short of criminal offending or warranting mandatory reporting, the Ascent support workers are required to watch out for ten specific concerning behaviours by the defendant, concerning his behaviour with or towards children, certain sexual behaviour and compliance with conditions. If there is a relevant observation, there is a reporting procedure which involves immediate verbal advice to the Ascent Service Manager or CEO and making a documentary record of the observation. The observation is also reported to the CJ&ISP, the Tribunal, the defendant’s Guardian and his psychotherapist, Dr Joseph Bowers.

91. The involvement of the CJ&ISP is tied to a person’s status as a forensic patient, and ceases when that status concluded. Ascent’s Service Manager has indicated that when that occurs, any such behaviour will still be reported to his guardian and psychotherapist, and perhaps to the NDIS support co-ordinator:

“If CJ&ISP were no longer involved, at a minimum the reports would be provided to [the defendant’s] behaviour support practitioner Dr Joseph Bowers and his Guardian. It would be expected that Dr Bowers response would include feedback on the management of any incident, training and information to staff and possibly further shaping of any reactive strategies provided in a behavior intervention and support plan. There would be also consideration given to whether his NDIS Support Co-ordinator should be notified; an example of when this might be appropriate would include if the incident indicated a need for an increase in, for instance, behavior support funding. Depending on the nature of the reported incident, consideration would also be given to whether the incident meets the criteria for mandatory child protection reported or of a ‘reportable incident’ and is notifiable to the NDIS Quality & Safeguarding Commission as outlined above. These reports would be provided within 24 hours of the Service Manager being notified of the incident.”

The submissions of the parties

92. The plaintiff submits that the risk “has over time remained at a moderate level” and that I would be satisfied to a high degree of probability that that there is an unacceptable risk of the defendant causing serious harm to others if he is no longer a forensic patient. In the context of the evidence, that is a risk established to the requisite degree that the defendant would commit a child sexual offence, if he does not remain a forensic patient.

93. The plaintiff further submits that, if I am so satisfied, the degree of risk cannot be reduced to an acceptable level by the framework that otherwise would apply to the defendant, namely, his on-going support funded under the NDIS which is provided through Ascent, his status as a registered person on the Child Protection Register, and the appointment of a guardian with powers to restrict his movements. The plaintiff particularly notes that decisions made by a guardian, unlike those made by the Tribunal, are required to be made in the best interests of the defendant, rather than from the perspective of the safety of the community.

94. The defendant submits that, in view of the defendant’s assessed low to moderate level of risk of re-offending, his open attitude to accepting supervision and the provision of services, the stability that he now has in his lifestyle and the restrictions of guardianship and the Child Protection Register, the level of risk does not reach the point of being “unacceptable” and, in any event, it can be “adequately managed” by the latter constraints.

Consideration

95. Although forensic assessments have consistently gauged the defendant’s level of risk as being moderate or low (or average and below average), even a low level of risk does not necessarily equate to an acceptable level of risk, for the purposes of cl 2 of the Schedule.

96. I agree with the observations of R A Hulme J in State of New South Wales v Golding (Preliminary) [2018] NSWSC 1041, which concerned an application made pursuant to the Crimes (High Risk Offenders) Act 2006 (NSW). At [16], his Honour adopted the reasoning of Harrison J in State of New South Wales v Kamm (Final) [2016] NSWSC 1 at [43]:

“… [I]t is important to recall … that the Supreme Court may legitimately find in some situations that a person poses an unacceptable risk for the purposes of the statutory test even if the likelihood of them committing a further serious sex offence is determined to be low.”

97. There are significant differences of opinion between Mr Sheehan and Dr Ellis concerning the relevant diagnoses (whether the defendant has a personality disorder or a substance abuse disorder), the nature of any further treatment (a variation of the “deniers program” or behavioural reinforcement through his disability workers) and whether a guardianship order, together with the guidance and services of his disability workers and his obligations as a person on the Child Protection Register, would provide sufficient oversight and protection of the community to warrant him being removed from the status of forensic patient in the short term, as opposed to in 12 months’ time.

98. More fundamentally, whereas Mr Sheehan has assessed the defendant as having a moderate or medium level of risk of sexual offending, Dr Ellis is of the view that if the defendant is in a supervised environment, his risk of any form of “physical endangerment” is “very low”.

99. In the context of the evidence, the only realistic risk of the defendant occasioning “serious harm to others” is by him sexually offending against children. Mr Sheehan and Dr Ellis agree on the type of unsupervised scenarios in which that danger could emerge, which essentially would involve impulsive sexual behaviour towards children he meets or supervises, through relationships with women who have children, family or boarders with children. I am satisfied to a high degree of probability that, if the defendant is unsupervised, he would pose an unacceptable risk of causing serious harm to others.

100. However, the alternative to the defendant being a forensic patient nevertheless entails a high degree of supervision, through him being registered on the Child Protection Register, having the support of the disability workers from Ascent funded by the NDIS, and being subject to the conditions imposed by the guardianship order.

101. According to s 4(a) of the Guardianship Act 1987 (NSW), “the welfare and interests of [persons who have disabilities] should be given paramount consideration” when determinations are made regarding the exercise of guardianship. That is one of a number of “general principles” in that Act that apply to persons who have a disability and are subject to a guardianship order. It is apparent from the terms of s 4 of that Act that, in relation to guardianship decisions affecting a person’s “freedom of decision and … action” and any impact of decisions on living “a normal life in the community”, the “views of such persons in relation to the exercise of those functions should be taken into consideration”. Implicit in those words and, indeed, the scheme of that Act, is an understanding that guardianship decisions, although made in the interests of the person, will not necessarily reflect the wishes of the person subject to the guardianship order.

102. The guardianship order explicitly provides for a “line of sight” power to the guardian. In their reasons, the Guardianship Tribunal explained that the purpose of this power was to supplant the release condition of the Tribunal, if the defendant’s status as a forensic patient is terminated. The guardian will be able to authorise Ascent to maintain the “line of sight” requirement, if needed.

97. The defendant has not been charged with any other offences since the index events, which are alleged to have occurred between 12 and 14 years ago. He has complied with the directions and advice provided to him by the service and enforcement agencies that provide the social framework for his life in the community. This attitude of co-operation and compliance is long-standing, dating back to the defendant’s time in detention, when he tried to access treatment programs in prison (although he has always maintained his innocence in relation to the index events). There is no suggestion that, if the sanction available to the Tribunal is removed by him ceasing to be a forensic patient, he will undergo a marked change of behaviour and resist the guidance of his disability workers. His only expression of resistance has been to the “line of sight” condition, which prevents him from leaving his residence at all unless accompanied by an approved person.

98. Pursuant to cl 2(1)(b) of the Schedule, I am not satisfied to a high degree of probability that the defendant poses an unacceptable risk of causing harm to others, if he ceases to be a forensic patient in six months’ time and is then managed by the combination of guardianship and being on the Child Protection Register, which I regard as “other less restrictive means”. I consider that, on the evidence before me, a period longer than six months is unnecessary in terms of cl 2 of the Schedule. On that issue I prefer the evidence of Dr Ellis to that of Mr Sheehan.

99. A period of 6 months, rather than a shorter period, would allow the Tribunal and the other agencies involved in the defendant’s management, supervision and provision of services to ensure a smooth transition. It would also allow the Tribunal the opportunity, should it decide to do so, to start the process of lessening the “line of sight” condition with the benefit of the threat of a strict sanction, if the defendant does not respond appropriately to the greater degree of freedom.

100. If there is a major disruptive event in the defendant’s circumstances over the next six months that impedes his progress, as occurred in mid-2019, the plaintiff may bring a further application for an extension order pursuant to cl 8(2) of the Schedule. However, in view of the co-ordinated services he now receives, which are described as “optimum” by Mr Sheehan, that seems unlikely.

Orders

107. I make the following orders:

(1) Pursuant to clause 7 of Schedule 1 of the Mental Health (Forensic Provisions) Act 1990 (NSW), the defendant’s status as a forensic patient is extended for a period of 6 months from 29 February 2020.

(2)   Access to the Court’s file in this proceeding is restricted such that access will be granted to a non-party only with the leave of a Judge of the Court and with prior notice to the parties, so as to allow them an opportunity to be heard in respect of the application for access.

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Decision last updated: 28 February 2020