Attorney General of New South Wales v WB (Preliminary)

[2019] NSWSC 1664

Supreme Court

New South Wales

• Amendment notes

Medium Neutral Citation:

Attorney General of New South Wales v WB (Preliminary) [2019] NSWSC 1664

Hearing dates:

19 November 2019

Decision date:

28 November 2019

Jurisdiction:

Common Law

Before:

Ierace J

Decision:

(1) Pursuant to cl 6(5)(a) of Schedule 1 to the Mental Health (Forensic Provisions) Act 1990 (NSW), a psychiatrist and psychologist be appointed to separately examine the defendant and furnish reports to the Supreme Court, on the results of those examinations by a date to be fixed by the Court;

 

(2) Pursuant to cl 6(5)(b) of Schedule 1 to the Mental Health (Forensic Provisions) Act 1990 (NSW), the defendant is directed to attend the examinations by the psychiatrist and psychologist;

 

(3)   The application for an interim extension order extending the defendant’s status as a forensic patient is dismissed;

 (4)   Access to the Court’s file in this proceeding be 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 – limiting term – application under the Mental Health (Forensic Provisions) Act 1990 (NSW) – application for interim extension order – preliminary hearing – where the index events involved charges of child sexual abuse – where the defendant was found unfit to be tried and a qualified finding of guilt was made – where the defendant has a limited criminal history – Court satisfied to a high degree of probability that the defendant poses an unacceptable risk of causing serious harm to others – discretion not to impose IEO regardless exercised – application refused

Legislation Cited:

Court Suppression and Non-publication Orders Act 2010 (NSW), s 8(1)(c)
Crimes (High Risk Offenders) Act 2006 (NSW), ss 7(4), 10A(b))
Mental Health Act 2007 (NSW), s 162
Mental Health (Forensic Provisions) Act 1990 (NSW), Sch 1, cll 2, 6, 7(2), 10, 11
Terrorism (High Risk Offenders) Act 2017 (NSW), ss 24(5), 27(b)

Cases Cited:

Attorney General of New South Wales v Beryalay by his tutor Jennifer Thompson (Preliminary) [2019] NSWSC 252
State of New South Wales v Richardson (No 2) [2011] NSWSC 276
State of New South Wales v Thomas (Preliminary) [2011] NSWSC 118

Category:

Procedural and other rulings

Parties:

Attorney General of New South Wales (Plaintiff)
WB (Defendant)

Representation:

Counsel:
S Climo (Plaintiff)
M Bridgett (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 is presently a forensic patient subject to a limiting term that will expire on 29 November 2019.

2. The summons seeks 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 seeks 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, who has also been appointed his guardian ad Litem. The defendant filed written submissions consenting to the IEO being made. At the hearing of this matter, on 19 November, the defendant reversed that position. The defendant does consent to the final order sought, concerning access to the Court file.

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

7. The defendant is a 40 year old man with a moderate degree of intellectual disability.

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

9. The defendant was born on 20 March 1979, 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.

The legislative provisions

33. The objects of the relevant Part of the Act to s 54A (Pt 5) are set out at s 40. The focus of that section is on “persons suffering from a mental illness or mental condition” and the definition of the latter term (s 3) expressly excludes a “developmental disability of mind”, which is a term often used interchangeably with an intellectual disability, since it becomes apparent in the developmental stage of life. As well, in view of the terms of cl 7(2) of the Schedule, the objects have little relevance to a defendant in such an application.

34. Clause 2 of the Schedule is in the following terms:

“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.”

35. The purpose of a preliminary hearing is for the court to determine whether the documentation supporting the application would, if proved, justify the making of an extension order. If so, the Court must make orders appointing two psychiatrists, psychologists or medical practitioners or any combination thereof, to separately examine the forensic patient and furnish reports to the Court: cl 6(5). I note that, by virtue of the word “must”, the Court is obliged to make orders for such an examination if so satisfied. If the Court is not so satisfied, the Court must dismiss the application: cl 6(6).

36. The Court may make an IEO if it appears to the Court: (a) that the limiting term or existing extension order to which the forensic patient is subject will expire before the proceedings are determined; and (b) that the matters alleged in the supporting documentation would, if proved, justify the making of an extension order: cl 10. An IEO may be made for a period of up to three months: cl 11(1). In determining whether to make an extension order, the Court is obliged to have regard to a list of non-exhaustive factors set out at cl 7(2).

37. The use of the word “may”, in cl 10, suggests that, although the matters alleged in the supporting documentation would, if proved, justify the making of an extension order, the Court has a discretion as to whether to make IEO. The existence of such a discretion is to be reconciled with the obligatory terms of cl 6(5). If the Court, in its discretion, does not make an IEO even though the material would, if proved, justify an extension order, there would be little point in the Court making an order requiring a forensic examination of the defendant, since the status of the defendant as a forensic patient would cease: s 42(a1) of the Act.

35. There are counterpart provisions in relation to interim supervision orders in the Crimes (High Risk Offenders) Act (ss 7(4) and 10A(b)) and the Terrorism (High Risk Offenders) Act (ss 24(5) and 27(b)). There are also counterpart provisions in both Acts in respect of interim detention orders. In the context of the Act and applying the effect of those counterpart provisions, the effect of an exercise of the discretion would appear to be that, once the limiting term expires, the status of the defendant as a forensic patient ceases, unless and until at the final hearing the Court determines to make an extension order. I note that the plaintiff’s submissions at the hearing presumed that there is indeed such a discretionary stage, pursuant to the Schedule.

36. In Attorney General of New South Wales v Beryalay by his tutor Jennifer Thompson (Preliminary) [2019] NSWSC 252, I considered the application of some decisions concerning counterpart provisions of the Crimes (High Risk Offenders) Act to the interpretation of the statutory test for the making of an extension order, pursuant to cl 2 of the Act, as follows:

“20   A significant departure from the legislative scheme in the Crimes (High Risk Offenders) Act is the degree of seriousness of the behaviour that is sought to be prevented, in order to warrant the Court’s supervisory or custodial intervention. In the Crimes (High Risk Offenders) Act, it must be ‘another serious offence’ (ss 5B(d) and 5C(d)). The term ‘serious offence’ is defined to mean specific serious sexual offences and crimes of violence: ss 4, 5(1) and 5A(1). In the Mental Health (Forensic Provisions) Act, however, it is ‘serious harm to others’, which is undefined. The meaning of ‘serious harm’ in the context of cl 2(1)(a) has been considered in earlier applications for an extension order, by Davies J in Attorney-General of New South Wales v Kereopa [2017] NSWSC 411 and R A Hulme J in Attorney General of New South Wales v Kereopa (No 2) [2017] NSWSC 928. Davies J considered that, having regard to the use of ‘serious harm’ in the definition of ‘mentally ill person’ at s 14 of the Mental Health Act 2007 (NSW), ‘there is no reason in principle why ‘serious harm’ in the [Mental Health (Forensic Provisions) 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’ (at [19]). In Attorney General of New South Wales v Kereopa (No 2), R A Hulme J said (at [16]):

‘The ‘risk of causing serious harm to others’ was considered by Davies J in his judgment on the preliminary hearing of the present matter. 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’.”

Whether the material would, if proved, justify an extension order: cll 10(b) and 7(2)

40. Clause 7(2) requires the Court to take certain matters and material into account in determining whether to make an extension order.

41. Not all of the material that the Court is required by cl 7(2) to take into account is available at a preliminary hearing. The material that is relevant to a preliminary hearing is as follows.

Clause 7(2)(d): any … report of a qualified psychiatrist, registered psychologist or registered medical practitioner provided in support of the application or by the forensic patient

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

42. These two categories may conveniently be considered together.

43. Whilst in custody, the defendant was precluded from programs addressing recidivism, in particular, programs addressing sexual reoffending, because his risk assessment was too low for him to qualify.

44. At its review held on 26 October 2017, the Tribunal noted that the risk assessment of the defendant, using the Level of Service Inventory – Revised (“LSI-R”) for overall reoffending and the Static-99R for sexual re-offending, is low, and stated:

“However, the Tribunal remained concerned about the seriousness of the offences. There does not appear to have been any exploration of the offences and [the defendant’s] views of them, nor of his general sexual interests and whether those interests include children. These more dynamic risks could be usefully explored.”

45. At a review conducted on 8 November 2018, the Tribunal heard an application by the defendant for conditional release. The application was opposed by the plaintiff. The Tribunal had regard to a forensic psychological assessment report dated 26 October 2018, prepared by Ms Jenny Howell, clinical psychologist. Ms Howell assessed the defendant’s static, dynamic and protective factors using various assessment tools and concluded that “[i]t 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”. However, she concluded her report by stating that “Clinical 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.

46. The Tribunal also had regard to a risk manageability assessment report 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 receive “drop in support”, he had an overall risk rating within the “low to medium range”.

47. Amanda White, in her earlier-mentioned report that was prepared for the purposes of this application, assessed the defendant for over five and a half hours, with a lunch break. In her extensive 33 page report, Ms White has canvassed a wide range of material that is relied upon by the plaintiff, including: the brief of evidence of the index events; the defendant’s police and Corrective Services records; the transcript and exhibits of the fitness and other court proceedings; numerous psychologist and psychiatric reports of the defendant; orders, reports other documentation of the Tribunal; reports of other agencies including the Community Justice Program and the NDIS; and communications by the author with key members of treating and service agencies.

48. Ms White assessed the defendant’s level of intellectual functioning by administering the WAIS-IV tests, yielding a result of his full-scale IQ as falling at the 0.3 percentile, being a level consistent with earlier tests.

49. As to her assessment of the defendant’s level of risk, Ms White administered the STATIC-99R which rated him as being in the “below average” risk level of sexual recidivism. She administered the Questionnaire on Attitudes Consistent with Sexual Offending (“QASCO”), 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”.

50. In order to capture dynamic factors, Ms White administered the Risk of Sexual Violence Protocol (“RSVP”) tool, which is intended to assess the risk of sexual violence based on empirical evidence. Regrettably, the results and Ms White’s observations concerning that test appear to be missing from her report. However, the import may be gleaned from this conclusion, later in her report:

“On actuarial risk assessment measures his overall level of risk is Below Average compared to other high-risk sexual offenders. However, considering his dynamic risk factors, taken together, his current level of risk of sexual reoffending is estimated to be within the Average range. At present his risk is mitigated by his stringent conditional release conditions.”

51. Ms White’s response, when asked her opinion as to whether the defendant poses a risk of causing serious harm to others, was in identical terms. She added that:

“… there are several concerns which may impact his level of risk, including his level of external support and (quality of) supervision, community engagement, relationship status, accommodation, social supports and psychological wellbeing.”

52. It is relevant to note that the defendant is on the child protection register, so that if his status as a forensic patient is not extended, he is nevertheless subject to scrutiny.

53. A guardianship application in respect of the defendant is on foot, following a decision by the defendant’s parents to relinquish their role as his carers.

54. The plaintiff acknowledges that the significant levels of support through the NDIS and the CJ and IPS are relevant considerations pursuant to cl 7(2)(i).

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

55. The most recent determination by the Tribunal is dated 12 November 2019, and is consequent to its review on 22 October 2019. The report noted that the defendant remained unfit to be tried. It referred to the two alleged breaches of his conditions, but not to the negative drug test, as it post-dated the review. The report referred briefly to matters from the report of Ms Corcoran to the Tribunal dated 17 October 2019. 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”.

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

56. I have referred to some of these reports earlier in this judgment.

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)

57. In her report to the Tribunal dated 17 October 2019, Ms Corcoran noted that since his conditional release, the defendant has complied with his conditions, with the exception of his “line of sight” condition, on one occasion and allegedly on a second. On 23 August 2019, one of the defendant’s stepdaughters 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 felt distressed and a need to support her and complied, without organising for someone to accompany him, in compliance with the condition. The defendant was away from home for 1 hour and 20 minutes. There were no reports of concerns as to the defendant’s presentation on his return.

58. The other incident is alleged to have occurred on 11 October 2019. A staff member of the Ascent Group received a report from a fellow client that the defendant had been seen with his wife, “smoking drugs together”. However, a drug test conducted on the defendant on 31 October found no presence of an illegal drug, including cannabis. Unlike the first incident, there is not an admission by the defendant that he did breach the condition on this occasion.

59. Ms Corcoran observed that the defendant has not breached any other conditions and had been compliant with his Child Protection Order. He had attended all of his case management meetings.

60. In relation to sexual deviance, Ms Corcoran noted an absence of evidence of the defendant exhibiting “fantasies, thoughts or behaviours consistent with sexual deviance”. However, the defendant may endorse attitudes which may be associated with sexual offending as per the QASCO that was administered on 12 March 2018. Ms Corcoran considered that the defendant had developed some limited insight into high risk situations relating to his risk and utilises “avoidant strategies” to deal with confrontation and stress. The authors expressed concern that some support staff are “overly compassionate towards [the defendant] and may fail to identify possible forensic risk factors”.

61. In many respects this latter report, which is quite recent, is positive about the defendant’s continuing efforts to improve his situation. The defendant has maintained a relationship with his mother; his mild depression and anxiety are being treated with medication and psychology sessions; he has commenced a “life skills” course; and he is a volunteer in a market garden. The defendant conducts woodwork in a “men shed” and engages in other social activities, such as tenpin bowling. He has six to eight hours a day of formal disability support and enjoys a good relationship with primary support staff. The defendant has no monitoring or support outside those hours.

62. In their report of 17 October 2019, Ms Corcoran summarised the defendant’s current level of risk thus:

“… it is my opinion that [the defendant] presents with moderate risk due primarily to the current dynamic risk factors.

At present, the primary risk factor for [the defendant] continues to be his limited ability to independently manage his risk in the community and presence of external influences in his immediate environment (e.g., ex-partner, fellow client). This may stem from his lack of insight associated with his cognitive impairment and adaptive functioning skills deficits. [The defendant] presents with poor emotional coping and impulsivity and is vulnerable to peer influence and exploitation in the community. [The defendant’s] legal conditions and daily formal supports provides [sic] the most significant protective factor to managing his risk.”

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

63. In her judgment, Judge Payne noted that, pursuant to s 23(1)(b) of the Act, a limiting term is the equivalent of the sentence that would have been imposed if the person had been convicted at a normal trial. It is without the benefit of a non-parole period and 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.

64. As to his prospects of rehabilitation, her Honour noted that the alleged offences at that stage were eight to ten years old, and the defendant had not come under attention in the intervening period.

Submissions of the parties

65. The plaintiff acknowledges the effect of the forensic evidence that the level of risk of recidivism is moderate rather than high, but submits that the consequences of any breach involving the same type of offence as the index events, would be so grave that the Court would determine that the risk is nevertheless unacceptable: State of New South Wales v Richardson (No 2) [2011] NSWSC 276 at [94]; State of New South Wales v Thomas (Preliminary) [2011] NSWSC 118 at [16].

66. As noted earlier, static test results indicate that the defendant poses a below average level of risk. Ms Climo, who appeared for the plaintiff, relied upon a number of factors in order to establish unacceptable risk, submitting that they came down to the defendant’s dynamic risk factors. In that regard, she referred to Ms White’s report in which Ms White found that the defendant’s overall risk of sexual reoffending to be in the “Average range” when one takes into account dynamic factors. Ms White identified some specific concerns that contributed to this conclusion, including the defendant’s limited hours of support; limited opportunities for employment and educational courses available to the defendant; the fact that the NDIS is not designed to address sexual offending or forensic client needs; the strained family relationship; and the defendant’s consequent fragile psychological state. Finally, Ms White observed that the index events allegedly occurred in a period when the defendant was experiencing heightened emotional distress from his relationship breakdown, and therefore his capacity for emotional regulation is relevant to his risk assessment.

67. The defendant’s counsel, Ms Bridgett, counters that Ms White’s report, which is dated 14 May 2019, predates the defendant moving out of his parents’ home into stable independent accommodation, as well as a significant increase in his NDIS funding.

68. In relation to the relevance of dynamic factors to a determination of the defendant’s level of risk, the plaintiff also relied upon Ms Corcoran’s report, in particular, the passage quoted at [62] above.

69. In relation to the final order sought, I note that, unusually, the plaintiff seeks an order that the reports of two psychiatrists be obtained, rather than reports of a psychiatrist and a psychologist. I note that cl 6(5) obliges the Court to order two reports if it finds that the supporting material would justify the making of an extension order. The plaintiff explained that the report of Amanda White, which was prepared in May of this year, obviated the need for a further report. However, two psychiatric reports are hardly warranted. The defence submits that there is merit in the usual order of a report from each discipline, since there have been substantial changes since the date of Ms White’s report.

Consideration

70. At the outset I note that, in a preliminary hearing, the Court is not apprised of all the material relevant to a final determination. The material it does have, tendered by the State, is untested. For these reasons, my determination is, of necessity, qualified.

71. The defendant is a mature-aged man with a minor criminal history, other than the two qualified findings of guilt for the index events. His only two convictions attracted a fine and a conviction with a 12 month good behaviour bond, the former in 1999 and the latter in 2001. The index events were alleged to have been committed between 2006 and 2008. Although the defendant was at liberty from then until September 2016 and since December 2018, there have been no criminal charges in that time.

72. Since the defendant’s conditional release in December 2018, there have been two alleged breaches of his conditions of release, both of which I regard as very minor. According to all reports, the defendant has engaged with and been receptive to treatment and services.

73. At the hearing of this matter, it emerged that there are few, if any, services that the defendant presently receives that he would not continue to receive, if the plaintiff’s application is denied. The fundamental difference, it seems to me, is the obligation entailed in an IEO to continue to accept services and comply with a code of behaviour which the defendant has thus far willingly done. Viewed in this light, it is an “insurance policy” that would ensure that he does not choose, while subject to the IEO, to cease to utilise the services he receives under the CJ & ISP.

74. That is not the criterion for determination of the application. It is apparent from cll 2 and 10(b) of the Schedule that the only relevant consideration on this preliminary application is whether the matters alleged in the supporting material would, if proved, establish to a high degree of probability that the defendant poses an unacceptable risk of causing serious harm to others, if he ceases to be a forensic patient.

70. I conclude that it would satisfy this test, having regard in particular to the assessment by Ms Corcoran that the applicant’s level of risk or recidivism is “moderate” and the potential gravity of conduct such as that alleged in the index events.

71. However, in the exercise of my discretion, I decline to make an IEO. The defendant will remain subject to the Child Protection Order, which provides the community with a significant degree of protection against the possibility of the defendant committing an offence of the types that were the subject of qualified findings of guilt. There is no rational reason to think, on the material before me, that the defendant will cease his enthusiasm for the accommodation, services, social support and therapy that he presently receives, which he is likely to continue to receive according to his evolving needs, through the CJ & ISP and the NDIS. In exercising my discretion in this fashion, I am also conscious of the limited lapse of time before the final hearing and determination, being three months.

72. I note that, coincidentally, this will afford the defendant a limited window of opportunity to demonstrate his capacity or otherwise to live lawfully in the community without being obligated to accept the services he currently receives.

73. I will order that reports be prepared by both a psychiatrist and a psychologist, in view of two factors, being the significant changes in the defendant’s situation since May 2019; and the fact that the level of risk gauged by Ms Corcoran in her recent report is elevated from that of earlier reports by others, warranting in my view, a further exploration by another psychologist.

Anonymisation

79. The defendant seeks the anonymisation of the defendant’s name, on two bases, the first being s 8(1)(c) of the Court Suppression and Non-publication Orders Act 2010 (NSW) and the second being s 162 of the Mental Health Act 2007 (NSW). The plaintiff submits that it is open to the Court to anonymise the defendant’s name on the first basis, but not on the second.

80. It is appropriate, in my view, that the defendant’s name be anonymised on the first basis because of his relationship with the complainant’s mother. The second basis is also an appropriate basis in applications of this nature, which are brought pursuant to the Act. The relevant parts of the section are:

“162   Publication of names

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

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

…

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

whether before or after the hearing is completed.

…

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

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

81. The public policy behind the section is apparent, given the protective nature of the Tribunal’s function. When the Tribunal releases a report of its hearings, it routinely anonymises the forensic patient’s name. To publicise the defendant’s name in proceedings of this nature, namely, an application to extend the defendant’s status as a forensic patient, would tend to undermine the section’s purpose and rationale.

Orders

82. I make the following orders:

(1) Pursuant to cl 6(5)(a) of Schedule 1 to the Mental Health (Forensic Provisions) Act1990 (NSW), a psychiatrist and psychologist be appointed to separately examine the defendant and furnish reports to the Supreme Court, on the results of those examinations by a date to be fixed by the Court;

(2) Pursuant to cl 6(5)(b) of Schedule 1 to the Mental Health (Forensic Provisions) Act1990 (NSW), the defendant is directed to attend the examinations by the psychiatrist and psychologist;

(3)   The application for an interim extension order extending the defendant’s status as a forensic patient is dismissed;

(4)   Access to the Court’s file in this proceeding be 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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Amendments

21 February 2020 - Typographical error corrected at [33].

Decision last updated: 21 February 2020