Attorney General of NSW v Delmege (Preliminary)

[2021] NSWSC 50

Supreme Court

New South Wales

Medium Neutral Citation:

Attorney General of NSW v Delmege (Preliminary) [2021] NSWSC 50

Hearing dates:

2 February 2021

Decision date:

08 February 2021

Jurisdiction:

Common Law

Before:

Hoeben CJ at CL

Decision:

(1) An order pursuant to cl 6(5) of Sch 1 of the Act:

(a)   appointing two qualified psychiatrists, psychologists and/or registered medical practitioners (or any combination of such persons) to conduct separate examinations of the defendant and to furnish reports to the Supreme Court on the results of those examinations by a date to be fixed by the Court; and

(b)   directing the defendant to attend those examinations.

(2) An order pursuant to cll 10 and 11(1) of Sch 1 of the Act that the defendant be subject to an interim extension order commencing from 9 February 2021 for a period of three months.

(3) Dr Katherine Johnson is appointed as tutor for the defendant in these proceedings.

Catchwords:

Application for interim detention order under Mental Health (Forensic Provisions) Act 1990 (NSW) – whether order should be made to extend status as a forensic patient – whether matters relied upon by the plaintiff if proved would entitle the plaintiff to an extension order.

Legislation Cited:

Crimes Act 1900 (NSW)

Crimes (High Risk Offenders) Act 2006 (NSW)

Guardianship Act 1987 (NSW)

Mental Health Act 2007 (NSW)

Mental Health (Forensic Provisions) Act 1990 (NSW)

Cases Cited:

Attorney-General of NSW v Doolan (by his tutor Jennifer Thompson (No 2) [2016] NSWSC 107

Attorney General of New South Wales v Kereopa [2017] NSWSC 411

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

Attorney General of NSW v McGuire (No 2) [2014] NSWSC 288

Cornwall v Attorney-General for NSW [2007] NSWCA 374

Lynn v State of New South Wales [2016] NSWCA 57; (2016) 91 NSWLR 636

Category:

Principal judgment

Parties:

Attorney General of NSW – Plaintiff
Paul Errol Delmege – Defendant

Representation:

Counsel:
M Dalla-Pozza – Plaintiff
B Fogarty – Defendant

Solicitors:
Crown Solicitor for NSW – Plaintiff
Legal Aid NSW – Defendant

File Number(s):

2020/317094

JUDGMENT

1. HIS HONOUR:

Nature of proceedings

It is the position of the Attorney General of NSW (the plaintiff) that on the strength of the relevant material to which the Court must have regard pursuant to cl 7(2) of Schedule 1 to the Mental Health (Forensic Provisions) Act 1990 (NSW) (the Act), and on the assumption that the matters alleged in that material are proved, the Court would be satisfied of both the limbs of the test prescribed in cl 2 to the requisite high degree of probability. That is, the Court would be satisfied that:

1. the defendant poses an “unacceptable risk” of causing “serious harm” to others if he ceases being a forensic patient; and

2. that risk cannot be managed by other, less restrictive means.

If so satisfied, the Court may make an interim order extending the defendant’s status as a forensic patient pursuant to cl 10 of the Act.

Overview

2. The defendant is a 62 year old man who was born with congenital deafness and has a diagnosis of mild intellectual disability. He has also been diagnosed with alcohol use disorder and cannabis use disorder. Presently, the defendant is a forensic patient housed in the Metropolitan Special Program Centre at 18 Wing (an Additional Support Unit (ASU)) at the Long Bay Correctional Centre. He is prescribed and takes medication for his heart, blood pressure, cholesterol, back pain and depression.

3. The defendant is the second youngest of seven children and was raised in the Raymond Terrace area. He attended school until the age of 15, including at what was then called a “special school for the deaf”. He worked in unskilled labouring for about 15 years and thereafter, received the Disability Support Pension for his hearing impairment and back injury. He is divorced and has six adult children with some of whom he remains in contact. The defendant suffers a number of cognitive and adaptive functioning deficits in the areas of communication, socialisation and daily living skills.

4. On 23 November 2020, Dr Katherine Johnson agreed to be appointed as tutor for the defendant in these proceedings. I now make an order to that effect.

5. On 7 October 2015, his Honour Ellis DCJ found that the defendant was unfit to be tried on two historical charges of sex offences against a child (one of his daughters), on the basis of his cognitive impairment and deafness. On 1 March 2017, in a special hearing before Ellis DCJ, the defendant was found guilty and sentenced to two limiting terms of 2 and 5 years with a 1 year overlap, i.e. a total sentence of 6 years duration commencing on 10 February 2015.

6. The defendant’s limiting term, and status as a forensic patient, is due to expire on 9 February 2021. Pursuant to the Summons, filed on 5 November 2020, the plaintiff seeks an extension of the defendant’s status as a forensic patient for a period of 3 months on an interim basis pursuant to Sch 1 of the Act.

7. For the purposes of this Preliminary Hearing, the defendant does not oppose the plaintiff’s application for an interim extension order of 3 months or to be examined by two relevantly qualified practitioners, set out as proposed in orders 1 and 2 of the relief claimed in the Summons.

Summary of plaintiff’s case

8. The plaintiff submits that the cl 7(2) material establishes the following propositions which demonstrate the existence to a high degree of probability of an “unacceptable risk” for the purposes of cl 2(1)(a) of the Act:

1. the index offending was serious (in that it involved offending of a sexual nature perpetrated against a young, and consequently vulnerable victim);

2. in addition to the index offence, the defendant had previously been convicted of similar offending (also offending of a sexual nature committed against a young victim);

3. the index offending and the offending of a similar type to it, occurred over a long period of time, which the plaintiff argued demonstrated the existence of long term behavioural attributes on the part of the defendant which need to be addressed to lessen the risk the defendant poses to others in the community;

4. the defendant’s present mental state suggests that he is not yet in a position to be able to change these behaviours, noting in particular that the defendant:

1. continues to suffer from limited intellectual functioning;

2. continues to lack insight, remorse and contrition into the offending and seeks to minimise it;

3. has been unable to give a coherent account of the offending to the author of the Risk Assessment Report, Dr O’Dea; and

4. is said to possess limited coping skills when placed under stress.

5. the defendant has a continuing history of drug and alcohol abuse, which:

1. is a precipitating risk factor for his risk of offending; and

2. which will be difficult for him to address absent some structured and supervised management program.

6. the defendant has, by virtue of the above matters, consequently been assessed as posing a significant risk of harm to others in the community were his status as a forensic patient to come to an end;

7. the discharge planning that has occurred to date suggests the existence of an unacceptable risk in the event that adequate control measures are not implemented prior to the defendant’s release. Their implementation requires an extension of the limiting term. This is because, even on the timeframe provided by the treating team for implementing it, the transition plan would necessitate the extension of the limiting term to a period to mid-April 2021 at the earliest and, potentially, for some period of time after that. This must necessitate some extension of the limiting term which is due to expire in February 2021; and

8. the discharge planning to date remains at an early stage and does not deal with some important matters, most notably, addressing the risk of the defendant relapsing into alcohol use.

9. The cl 7(2) material established the following propositions, which tend to prove that there is no less restrictive way of managing the risk which the defendant presents (cl 2(1)(b)):

1. the defendant is not a “mentally ill person” or suffering from a “mental illness” for the purposes of the Mental Health Act 2007 (NSW) (MH Act). As a consequence, involuntary detention as a civilian patient pursuant to s 19 of the MH Act is not available as an option;

2. the defendant has a history of responding poorly to supervision while on parole. This suggests that treatment by way of a Community Treatment Order (CTO) under s 51 of the MH Act would be inadequate to modify his behaviours to a sufficient degree to mitigate the risk he presents. In this regard, the plaintiff notes the comparatively limited powers of oversight which the Mental Health Review Tribunal (Tribunal) has in the case of a civilian patient as opposed to a forensic patient;

3. in light of the defendant’s assessed “complex needs”, the level of support that he requires goes beyond that which could be provided to him pursuant to an order under the Guardianship Act 1987 (NSW) (Guardianship Act); and

4. the available expert opinion is that a “structured and supervised risk management program” would be “most appropriately and effectively put in place via the Defendant’s current status as a forensic patient”.

Defendant’s background

Criminal history

10. The defendant has some history of criminal violence with convictions for drive with prescribed concentration of alcohol, contravene apprehended domestic violence order, use carriage service to menace/harass/offend and assault occasioning actual bodily harm.

The 2013 sexual offending

11. Relevant for present purposes, apart from the index offending (discussed at [15]), the defendant has convictions for two further instances of offending of a sexual nature which have involved persons under the age of 16. One of those convictions was for committing an act of indecency. This occurred in January 2013 when the defendant exposed himself to two female school children on a train (one of whom was aged 14 and the other aged 16) and masturbated in their presence. These charges were dealt with by way of an order under s 33 of the Act.

The 1995 sexual offending

12. This offending comprised two counts of aggravated indecent assault occurring on separate occasions through the course of 1995. The victim, who was aged between 10 and 11 at the time of the offending, was a friend of the defendant’s eldest daughter (who was the victim of the index offending). On the first occasion, the victim spent the night at the house where the defendant and his eldest daughter were living and had gone to sleep in the defendant’s bed. The defendant and his eldest daughter were also in the bed. The defendant’s daughter was sleeping alongside the defendant between him and the victim. The victim awoke when the defendant moved his daughter to one side thereby placing himself alongside the victim. The defendant then rubbed the victim’s vagina with his hand underneath her pyjama bottoms, while breathing heavily.

13. On a separate occasion, which occurred shortly afterwards, the victim had again slept overnight at the defendant’s house and had gone to sleep at the foot of his bed. She awoke when the defendant lifted her up and moved her into the bed to a position directly beside him. She felt the defendant’s hand slide into her pyjama bottoms and rub her vagina and heard him breathing heavily. After a time, the victim rolled over and the defendant stopped.

14. In December 2011, the defendant was convicted, after trial, of two counts of aggravated indecent assault. On 19 August 2013, after a severity appeal, a total sentence of 18 months was confirmed by the Newcastle District Court.

The index offending

15. The index offending comprised one count of sexual intercourse with a child under 10 (contrary to s 66A of the Crimes Act 1900 (NSW) and one count of indecent assault of a child. The victim was the defendant’s eldest daughter. The sexual intercourse occurred in February 1981 at a time when the victim was aged seven. The indecent assault occurred some years later when the victim was aged about 11 or 12.

16. The facts of the offending (as found by Ellis DCJ) were as follows. While the victim’s mother (the defendant’s ex-wife) was away from home, the defendant physically picked up the victim and piggybacked her to his bedroom, placing her on the bed so that she was lying on her back. He then pulled her underpants to one side and proceeded to lick her vagina. This formed the basis of count 1.

17. Count 2 involved the defendant fondling the victim’s breast. There is only limited information available as to the circumstances of that offence.

18. On 1 March 2017, after a special hearing, Ellis DCJ found the defendant guilty of both charges. His Honour regarded the act comprising Count 1 (which he categorised as an act of cunnilingus) as “arguably” less serious than “any penetrative type example of sexual intercourse”. Nevertheless, his Honour took into account the “profound effects” the offending had on the victim and described the offending as “reprehensible” and requiring “appropriate punishment”.

19. His Honour entirely discounted a need for general deterrence and noted that there was “a rather large question mark over the issue of personal deterrence” given the age of the convictions. The defendant’s age at the time he committed the offences, when compared with his age at the time he was being sentenced, and the relatively limited opportunity that the defendant’s present circumstances left for him committing further offending of a similar type, further discounted the sentences imposed.

20. Relevantly, his Honour noted that it was “clear” that the defendant had an alcohol abuse issue. His Honour did not regard this as a mitigating factor although he allowed that it perhaps explained his conduct.

21. His Honour imposed a total effective limiting term of 6 years, dating from 10 February 2015 until 9 February 2021

22. His Honour Ellis DCJ recorded that he found the defendant unfit to be tried for the index offences on 7 October 2015.

Tribunal reviews

23. At a review hearing of 29 January 2016, the Tribunal found that the defendant remained unfit to be tried and would not become fit within 12 months of the Court’s finding of unfitness. The Tribunal adjourned the proceedings pending an assessment of his suitability for placement in the Additional Support Unit (ASU) of the Metropolitan Special Programs Centre (MSPC).

24. At the resumed hearing on 18 March 2016, the Tribunal determined that the defendant should be detained in the ASU.

25. At a review hearing of 15 September 2016, the Tribunal determined that the defendant should continue to be detained in the ASU. Relevantly, during the course of that hearing, the Tribunal heard that Statewide Disability Services (SDS) was managing the defendant in custody. The Tribunal determined that the defendant was not suffering from a mental illness or mental condition for which treatment was available in a mental health facility. The Tribunal determined that he had not become fit to be tried and on the balance of probabilities, would not become fit within 12 months of the finding of unfitness.

26. At a review hearing of 17 August 2017, the Tribunal determined that the defendant was still unfit to be tried and had not become fit to be tried within 12 months of the Court’s finding of unfitness. The Tribunal ordered that the defendant be detained at the Long Bay Correctional Centre Complex. The Tribunal heard that the defendant had commenced the Self-Regulation Program: Sex Offending (SRP:SO) on 3 July 2017 and his participation in it, until that point, had been considered satisfactory.

27. At a review hearing of 15 February 2018, the Tribunal extended the previous order for the defendant's treatment, care and detention. The Tribunal heard that the defendant was, at that time, classed as a C1 inmate and would require classification as a C3 inmate in order to be considered for participation in any external leave programs. The Tribunal was told that an application for a package under the National Disability Insurance Scheme (NDIS) had been made and that the defendant had been accepted but that a planner would not be involved in working with the defendant until closer to his release date.

28. At a review hearing of 2 August 2018, the Tribunal made an order for the defendant’s care, treatment and detention at the MSPC. The Tribunal was told that the defendant continued to display limited insight into his problematic thoughts and behaviours, that he continued to deny his offending behaviours and had a pattern of externalising blame. The Tribunal noted that the defendant had not yet met with an NDIS planner and did not, at that time, have an approved NDIS plan.

29. At a review hearing of 31 January 2019, the Tribunal made no further order. The Tribunal heard that the defendant had received a C2 inmate classification. The Tribunal also heard that the defendant had completed the SRP:SO and that his participation in it had been considered satisfactory, however, his limited insight and hearing difficulties had continued to impact his motivation and engagement. The Tribunal noted that the defendant continued to externalise blame for the index events, that he had difficulty in accepting responsibility for some of his behaviours and that he suffered from situational anxiety.

30. At a review hearing of 18 July 2019, the Tribunal made no further order in relation to the defendant. During that hearing, the Tribunal commented that, apart from arrangements for the defendant to commence the EQUIPS Addictions Program in the near future “very little discharge planning had been done”. The Tribunal noted that, at the time of the review, a referral from Community Justice Planning Support was pending and that a planning meeting for NDIS had not occurred due to uncertainty about the timing of the defendant’s unconditional release. The Tribunal further noted the defendant’s vulnerability to early cognitive decline and that no psychometric testing had been undertaken for at least four years. Accordingly, the Tribunal listed the matter for an early review to ensure that discharge planning was underway and made orders for neuropsychological testing to be performed.

31. On 28 June 2019, an NDIS plan was received with review on 16 June 2020 and the neuropsychological testing ordered by the Tribunal was performed by Dr van den Berg.

32. At a review hearing of 17 October 2019, the Tribunal made no further orders. The Tribunal was told that the defendant was “exploring supervised day leave”, however, he was currently prohibited from participating in such due to his inmate classification of C2 level. The Tribunal noted that the defendant's treating team were working towards having his classification lowered and would work with the NDIS with regard to developing his NDIS plan. The Tribunal also noted that the defendant had completed a custody based residential therapy program for men who had sexually abused and who had an intellectual disability. He was due to begin an alcohol abuse program in November 2019. On the evidence before it, the Tribunal considered that the defendant posed a moderate risk of reoffending.

33. At an adjourned review hearing on 13 August 2020, the Tribunal made no further order. The Tribunal noted that the defendant remained on a classification that would not permit him to exercise escorted leave (which the Tribunal noted would have been unavailable in any event due to the impact of COVID-19). The Tribunal also noted that, because the defendant was in custody, no set plan has been formulated. Rather his treating team were “working on all options”. During that hearing, the defendant stated that he did not want to live in supported housing but wanted to live alone on a boat which he owned. The Tribunal observed that the defendant had begun to accept that this might not be possible, in part due to the fact that he had been placed on the child protection register. The Tribunal further noted that the defendant continued to display limited insight and to minimise his offending behaviour. His most recent psychology report outlined two behavioural issues with other inmates.

23. A speech therapist report, dated 8 September 2020, prepared by Ms Jessica Martino, was available to the Court. Ms Martino administered a series of assessment tasks to the defendant for the purpose of preparing the report. Ms Martino repeated that the defendant presented with significant expressive and receptive language difficulties. She opined that these difficulties would:

1. decrease the defendant's access and safety in the community;

2. negatively impact his social interactions;

3. negatively impact his employment opportunities; and

4. overall, reduce his independence with daily tasks that required literacy and language skills.

Relevant custodial history

35. The defendant had been in custody for the earlier sexual offending from 19 August 2013. He was released to parole on 12 May 2014 and was accommodated in the Nunyara Community Offender Support Program (COSP).

36. An updated Breach of Parole Report prepared by Community Corrections, dated 10 September 2014, recorded that staff at COSP encountered difficulties with managing the defendant whilst he was a resident there. The defendant had made a racist remark towards another resident and had continued to engage in inappropriate behaviour, despite being given numerous verbal and written directions. The author of the report concluded that the defendant was not suited to community based living, was unable to reside in shared accommodation and that the defendant’s behaviour had reached the stage whereby the defendant had placed both himself and the staff of COSP at risk of harm.

37. The defendant’s parole was revoked effective from 11 September 2014 after he breached parole conditions requiring him to be of good behaviour and not to commit any offences.

38. A NSW Corrective Services Incident Report alleged that on 8 July 2020, the defendant assaulted a fellow inmate over a dispute about the sharing of some bread.

Statutory framework

39. Section 54A of the Act provides for the extension of a person’s status as a forensic patient if the forensic patient is subject to a limiting term or an existing extension order: cll 1.1 and 4, Sch 1.

40. Clause 3 of Sch 1 to the Act permits the Minister administering the Act to apply to the Supreme Court for an extension order against a forensic patient.

41. Clause 5 of Sch 1 to the Act provides that an application for an extension order:

“(a) ... must be supported by documentation ... that addresses each of the matters referred to in clause 7 (2) (to the extent relevant to the application), and

(b) that includes a report (prepared by a qualified psychiatrist, registered psychologist or registered medical practitioner):

(i) that assesses the risk of the forensic patient causing serious harm to others, and

(ii) that addresses the need for ongoing management of the patient as a forensic patient and the reasons why the risk of the forensic patient causing serious harm to others cannot be adequately managed by other less restrictive means.”

42. Extension orders are limited to 5 years in duration, but subsequent orders may be made pursuant to cl 8.

43. On the making of an extension order, the Supreme Court is not required or permitted to determine whether the order is one for detention of the individual or supervision within the community. The Court makes an extension order and it is for the Tribunal to determine what flows from the order (Attorney General of New South Wales v McGuire [2013] NSWSC 1862 at [8] per Davies J.)

44. Once an extension order has been made, it may be varied or revoked by the Supreme Court, on the application of the Attorney General or the forensic patient or on the recommendation of the Tribunal under s 47(2A) of the Act: cl 12, Sch 1.

45. The test for making an extension order is set out at cl 2 of Sch. 1, as follows:

“(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 hot in order to determine that the person poses an unacceptable risk of causing serious harm to others.”

46. Clause 2 uses a number of terms that appear in the Crimes (High Risk Offenders) Act 2006 (NSW) (CHRO Act). That, and the parallels between the two statutory regimes mean that authorities under that Act as to the meaning of those terms are of assistance in this context.

47. The phrase “high degree of probability” constitutes a standard of proof which is higher than the civil standard but lower than the criminal standard. In Cornwall v Attorney-General for NSW [2007] NSWCA 374 at [21] it was observed that:

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

48. This standard of proof governs both questions in cl 2.

49. The term “unacceptable risk” is not defined in the Act. In Lynn v State of New South Wales [2016] NSWCA 57; (2016) 91 NSWLR 636, the Court of Appeal held the word “unacceptable” is contextual, requiring parameters against which the conduct can be measured. The precise parameters, norm or standard were not immediately evident from the CHRO Act as Beazley P remarked at [51] “[t]hat must be so. A determination as to whether something is unacceptable is an evaluative task...”. As such, the question of unacceptable risk must be understood in the context of the legislative object of the CHRO Act; in particular, its purpose in ensuring the safety of the community.

50. Notwithstanding the need to prove the existence of the risk to a “high degree of probability”, cl 2(2) provides that the Court is not required to determine that the risk of causing serious harm to others is more likely than not to eventuate.

51. The prediction undertaken by the Court as to the risk posed is in relation to the period in which it can make an order - that is, 5 years.

52. The right of a forensic patient to his or her personal liberty at the expiry of the limiting term is not a relevant consideration in the determination of whether a person poses an unacceptable risk for the purposes of cl 2(1)(a).

53. The term “serious harm” is also undefined. Its meaning was considered by Davies J in Attorney-General of New South Wales v Kereopa [2017] NSWSC 411. In that case, his Honour observed (at [19]) that, having regard to the use of “serious harm” in the definition of “mentally ill person” at s 14 of the MH Act: “there is no reason in principle why “serious harm” in 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”.

54. On the assumption that the Court is satisfied to a high degree of probability that the defendant poses an unacceptable risk of serious harm to others, it must make an extension order if also satisfied to the same high degree of probability that “the risk cannot be adequately managed by other less restrictive means”. This requires the plaintiff to prove the negative.

55. In Attorney General of NSW v McGuire (No 2) [2014] NSWSC 288 Garling J interpreted the phrase “adequately managed” as meaning at [63]):

“... that the unacceptable risk is mitigated by the proposed management regime so that the community's interest in being kept safe is outweighed by the community's interest in not having mentally ill or mentally disordered individuals or forensic patients being confined in some form of institutional care rather than taking their place in the community”.

56. The focus of this test is on the powers that may be exercised in relation to the subject of the order applied for. In Attorney-General of NSW v Doolan by his tutor Jennifer Thompson (No 2) [2016] NSWSC 107 at [96], Adamson J considered that the question of whether “means” are more or less restrictive is to be judged by the legal powers of others to control the defendant’s actions, locations, treatment and other matters, as well as the practical operation of how that power might be exercised in a particular instance. Her Honour also noted (at [96]) the assumption implicit in the wording of cl 2(1)(b) that an extension of a person’s status as a forensic patient is more restrictive than classification as an involuntary patient.

57. Clause 7(2) of Sch 1 sets out the matters to which the Court must have regard in determining whether to make an extension order. These are in addition to any other matter the Court considers reasonable:

1. “the safety of the community;

2. the reports received from the persons appointed under cl 6(5) to conduct examinations of the forensic patient;

3. the report of the qualified psychiatrist, registered psychologist or registered medical practitioner provided under cl 5(b);

4. any other report of a qualified psychiatrist, registered psychologist or registered medical practitioner provided in support of the application or by the forensic patient;

5. any order or decision made by the Tribunal with respect to the forensic patient that is relevant to the application;

6. any report of the Director-General of the Ministry of Health, the Commissioner of Corrective Services, the Director-General of the Department of Family and Community Services or any other government Department or agency responsible for the detention, care or treatment of the forensic patient;

7. 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 s  49 or 50);

8. 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; and

9. any other information that is available as to the risk that the forensic patient will in future cause serious harm to others.”

58. The Act requires a preliminary hearing into the application within 28 days after the application is filed or within such further time as the Court allows: cl 6(4). Clause 6(5) provides: “if, following a preliminary hearing, the Supreme Court is satisfied that the matters alleged in the application would, if proved, justify the making of an extension order”, it must appoint independent clinical experts to conduct examinations of the forensic patient and to furnish reports to the Court: cl 6(5), Sch 1. If the Court is not so satisfied, the Court must dismiss the application.

59. Clause 10 provides for the making of interim orders. It provides:

"10 Interim extension order

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

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

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

60. The “supporting documentation” refers to the materials accompanying the application. The Court's task, in applying the tests in cl 6(5) and 10 as to whether the matters alleged would “if proved” justify the making of an extension order, has been described as being “similar to the requirement for a prima facie case to be made out in committal proceeding” although, ultimately, the test is different. It has been observed that one purpose of the preliminary hearing procedure is to allow the Court to filter out unmeritorious applications at an early stage, with another purpose being to give the Court the benefit of expert opinions of two independent witnesses before making a final decision. Since that question involves consideration of the Court’s task on the final hearing of an application, it is also necessary to have regard to the criteria set out in cl 7(2) (set out above) and the authorities on the Court’s task on final hearing.

61. In assessing whether or not to make any interim orders, it is appropriate to give weight to risk-avoidance.

The cl 7(2) matters

62. By reference to the cl 7(2) considerations, I am satisfied at this preliminary stage to a high degree of probability of both of the limbs of the cl 2(1) test, i.e. unacceptable risk and the absence of any less restrictive means of managing that risk.

63. The safety of the community is the ultimate question for the Court in determining whether the test in cl 2(1)(a) is met. It is for that reason that I have not considered that issue separately at any length, save to note that the totality of the matters referred to below supporting an “unacceptable risk” equally demonstrate the existence of any risk to the safety of the community.

64. It is, however, useful to emphasise that the circumstances of the index offending (particularly when considered in the context of the parallels of sexual offending involving a friend of the defendant’s oldest daughter), are indicative of a risk to the community. It is well known that this type of offending carries with it a peculiar risk of harm involving, as it does, very young and vulnerable victims.

65. Doctor O’Dea, a qualified psychiatrist interviewed the defendant on 5 August 2020, as a result of which he prepared a Risk Assessment Report (RAR).

66. The information contained in Dr O’Dea’s report can be summarised as follows:

1. the defendant reported smoking “a lot” of cannabis from 2009 onwards;

2. the defendant gave an inconsistent account of his level of alcohol consumption. During the interview, he is said to have “reluctantly” agreed that he drank daily throughout 2012 and 2013;

3. the account given by the defendant to Dr O'Dea of the index offending during the interview was “disjointed”. The defendant initially attributed the offending to a desire to get back at his wife who, he believed, had been cheating on him for a period of nine years. He then said he thought his wife had slipped ice or some other drug in his drink. He claimed that he himself had been the victim of sexual offending perpetrated by his wife’s boyfriend at the time of the offending;

4. although the defendant had participated in the SRP:SO, he had been noted by the convenor of that program to have made limited treatment gains. This was as a result of significant responsivity issues. The defendant was assessed to be at an average risk on the STATIC 99-R test administered during the course of that program. The defendant was unable to provide to Dr O’Dea an account of what he had learned from his participation in the program beyond saying that if a girl ever sat next to him, he should move away;

5. Dr O’Dea referred to Dr van den Berg’s neuropsychological assessment, which noted that, the defendant’s cognitive functioning had remained relatively stable over time and that there was no evidence of decline; and

6. the defendant reported to Dr O’Dea that his plans following release were to live on a boat he owned, that he was not interested in a relationship and was not going to drink alcohol or smoke cannabis.

67. In the RAR, Dr O’Dea set out the following conclusions and made the following observations of the defendant’s mental state:

1. the defendant displayed limited insight, remorse or contrition for his conduct in relation to his history of sexual offending, including the index offence, and there was a significant level of minimisation and denial in his description of at least some of his offending behaviour and alcohol consumption;

2. the defendant suffers from a mild intellectual disability (which was likely to be exacerbated by his hearing impairment and his problems with education, the long-term effects of chronic alcohol abuse and medical problems). This potentially suggested the existence of an additional mild neurocognitive disorder;

3. the defendant met the criteria for at least an alcohol use disorder, with his history of cannabis abuse likely to point to an additional cannabis use disorder;

4. the defendant’s developmental history, forensic history, history of anger and aggression problems and of general mood instability and impulsivity might point to a psychiatric diagnosis of antisocial personality disorder. These problems may be better understood in the context of his substance abuse, mild intellectual impairment and problems managing these issues with a significant hearing impairment;

5. the defendant has a “limited repertoire of coping skills when placed under stress”;

6. the defendant did not meet the criteria for a “mental illness” or a “mentally ill person” under the MH Act; and

7. the defendant did not suffer from any Major Psychiatric Illness nor any specific Paraphilic Disorder.

68. Doctor O'Dea’s (at [100] of the RAR) conclusion as to the defendant’s current level of risk was follows:

“[Taking into consideration] Mr Delmege’s history of general and sex offending, his persistent alcohol abuse in the community, his limited intellectual functioning and his personality, Mr Delmege’s risk of causing serious harm to others in the community in the long term would be considered significant, particularly if he were to resume alcohol and/or cannabis use in the community in the long term.”

69. In relation to the options for managing the defendant’s risk, Dr O’Dea expressed the following opinion (at [111]-[113] of the RAR):

1. the defendant has “complex needs that would best be met by multiple agencies under the provisions of mental health legislation, rather than via less restrictive means” such as an order under the Guardianship Act. This is due to the likely level of the defendant’s engagement with those agencies;

2. it was “unlikely” that the defendant would receive the required level of treatment, supervision and monitoring were he to cease to be a forensic patient. This would result in “a significant risk that he would resume alcohol and/or illicit substance use, and in a significant probability that he would pose a significant risk of causing serious harm to others”; and

3. a “structured and supervised risk management program” would be “most appropriately and effectively be put in place via the defendant’s current status as a forensic patient”.

70. The observations and opinions of Dr O’Dea strongly support the existence of an “unacceptable risk” on the part of the defendant should he cease being a forensic patient. In particular, Dr O'Dea’s conclusions about the limitations of the defendant’s insight, his continued minimisation and denial of aspects of the index offending and of his substance use suggest a persistence of attitudes on the defendant’s part which contributed to the index offending, and thereby increasing the probability of similar offending occurring again in the future. These conclusions were reinforced by the defendant’s inability to provide a coherent account of the offending.

71. Dr O’Dea’s opinion as to the significance of the defendant’s drug and alcohol history, together with his assessment as to the low likelihood of the defendant achieving abstinence without significant support and intervention strongly suggest that the defendant would continue to engage in behaviours which elevate his overall level of risk.

72. The inability of the defendant to recount to Dr O’Dea what benefits he had derived from participation in the SRP:SO confirms the opinions of the convenors of that program that the defendant had derived little benefit from his participation in it. This consideration further demonstrates the existence of an unacceptable risk, in that it suggests that attempts to modify the defendant’s beliefs and patterns of behaviour have, to date, been ineffective.

70. In relation to the use of “any less restrictive means”, Dr O’Dea did not consider that the defendant satisfied the threshold test whereby he could be involuntarily detained as a civilian patient under the MH Act. This was because he was not a “mentally ill person” or suffering from a “mental illness” for the purposes of that Act.

71. Dr O’Dea considered that treatment of the defendant pursuant to an order under the Guardianship Act would also be insufficient to address his needs. Dr O’Dea concluded that the most appropriate way to manage the defendant’s needs would be for the forensic order to continue.

72. A copy of the SRP:SO treatment report, relating to the defendant, was before the Court. As has been noted, the defendant completed the program in 2019. Ms Cooper, a psychologist, was the author of the report. The report was a matter which the Court was required to take into account pursuant to cl 7(2)(d) of the Act. It was also taken into account by Dr O’Dea when setting out his opinion.

73. Leaving aside the specific matters identified by Ms Cooper, her overall opinion was that the defendant had derived little benefit from his participation in the SRP:SO program. The defendant’s motivation was regarded as questionable in that it demonstrated that previous strategies to shift behaviours and attitudes that contributed to the index offending had not been successful. Ms Cooper was of the opinion that those behaviours and attitudes were likely to persist. This opinion is relevant to the defendant’s psychological adjustment and problems with manageability and is relevant to the existence of an “unacceptable risk”.

74. Another document which was before the Court in accordance with cl 7(2)(d) of the Act was the Adaptive Functioning Assessment Report, dated 4 October 2019. That document was prepared by Mr Jason Tavares, Senior Clinical Consultant psychologist and Mr James Wu, a psychologist Team Leader with the Community Justice and Integrated Services Program. When preparing the report, Messrs Tavares and Wu administered the Vineland-3 scores, i.e. a set of scores that provides an estimate of the ability of the person being tested to perform daily activities required for personal and social sufficiency. Messrs Tavares and Wu urged a degree of caution when relying upon the Vineland-3 test since it was based entirely upon self-reporting by the defendant.

75. The report noted the following matters:

1. the defendant had have very little insight into his difficulties with stress;

2. his overall adaptive performance was well below the normative sample;

3. the defendant’s overall communication performance was well below the average of the normative; and

4. the defendant’s daily living skills were average within the normative sample.

79. Messrs Tavares and Wu recommended that the defendant should have access to support staff 24 hours per day. When discussing his living arrangements if he were to be released from the Forensic Hospital, the defendant could not identify any realistic alternatives other than residing on his boat.

80. The Adaptive Functioning Assessment Report substantially supported Dr O’Dea’s opinion and in particular, the need for access to 24 hour support for the defendant.

81. Ms Emily Higgins and Ms Tanya Brunette, psychologists at Statewide Disability Services, prepared a report which was intended to be submitted to the Tribunal. The document is dated 7 August 2020. For the purposes of preparing the report, they interviewed the defendant on 7 August 2020. This document was before the Court.

82. Ms Higgins and Ms Brunette noted the following:

1. the defendant’s history of problematic alcohol use and his limited insight into that;

2. there was the limited family support available to the defendant;

3. there was the expression by the defendant of a consistent desire to return home to live on his boat; and

4. that as of the date of that report, a NDIS support coordinator had been allocated to the defendant.

Conclusions

83. On the basis of the material reviewed in the judgment, I am satisfied to a high degree of probability (although on an assumption that the matters in the supporting documentation have been proved) that the defendant poses an unacceptable risk of causing harm to others if he ceases being a forensic patient.

84. In addition to the matters reviewed on that issue (in particular the report of Dr O’Dea) it is noted that while from August 2020 a transition plan has been developed for the defendant, the implementation of that plan will necessarily require the extension of a limiting term. That plan contemplates the accommodation of the defendant in what is described as “medium term” accommodation for a period of three months in order to enable an assessment to then be made of his suitability to live independently or alternatively, for an application to be made to the NDIS for funding to provide for the approved level of support.

85. It should be further noted that the transition plan remains at an early stage of development. Its completion requires further information to be obtained which is not yet available. For example, the “medium term” accommodation has not yet been identified. Accordingly, it is not known whether accommodation of that sort is available and when that accommodation might become available. Nor is the suitability of that accommodation for the defendant yet known. These are, of course, matters which the Tribunal would need to consider in the event of any application being made for a conditional release under s 47(1)(b) of the Act.

86. The above matters collectively demonstrate to a high degree of probability, at least on the “if proved” test applicable at the preliminary stage of proceedings, a risk that the defendant will commit further offending of a similar nature to the index offence, i.e. sexual offending involving young or potentially very young victims if he were to be deprived of the supervision and support available to him as a forensic patient. It has not been suggested in these proceedings that this type of offending does not satisfy the definition of “serious harm”.

87. On the basis of Dr O’Dea’s report, I am also persuaded to the necessary standard that there are no less restrictive ways of managing the risk the defendant currently poses. Doctor O’Dea’s conclusion that the defendant is not “mentally ill” for the purposes of the MH Act means that detention as a civilian patient (pursuant to s 19 of the MH Act) is not an option.

88. Dr O’Dea is of the view that the risks posed by the defendant are best managed by a continuation of his existing forensic order. This implicitly excludes potential alternative methods of treatment such as a CTO under s 51 of the MH Act. Dr O’Dea’s opinion on this issue is confirmed by the defendant’s previous response to supervision while on parole and his behaviour while a forensic patient. Those matters have been referred to earlier in the judgment. They demonstrate a problematic relationship between the defendant and those who may be responsible for supervising him. This in turn suggests that the more intrusive supervision and monitoring regime provided by the continuation of a forensic order is appropriate in the defendant’s case rather than other means for his supervision in the community such as a CTO.

89. Finally, Dr O’Dea expressly ruled out treatment under the Guardianship Act as a potential vehicle for treating the defendant.

Orders

90. For the reasons set out above, I make the following orders:

1. An order pursuant to cl 6(5) of Sch 1 of the Act:

1. appointing two qualified psychiatrists, psychologists and/or registered medical practitioners (or any combination of such persons) to conduct separate examinations of the defendant and to furnish reports to the Supreme Court on the results of those examinations by a date to be fixed by the Court; and

2. directing the defendant to attend those examinations.

2. An order pursuant to cll 10 and 11(1) of Sch 1 of the Act that the defendant be subject to an interim extension order commencing from 9 February 2021 for a period of three months.

3. Dr Katherine Johnson is appointed as tutor for the defendant in these proceedings.

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Decision last updated: 08 February 2021