Attorney General of NSW v McGuire

[2018] NSWSC 1795

Supreme Court

New South Wales

Medium Neutral Citation:	Attorney General of NSW v McGuire [2018] NSWSC 1795
Hearing dates:	20 November 2018
Decision date:	21 November 2018
Jurisdiction:	Common Law
Before:	Button J
Decision:	(1) Pursuant to clause 6(5) of Schedule 1 of the Mental Health (Forensic Provisions) Act 1990 (“MHFP Act”): (a) two qualified psychiatrists or registered psychologists or registered medical practitioners (or any combination of such persons) are appointed to conduct separate examinations of the Defendant and to furnish reports to the Supreme Court on the results of those examinations by no later than 16 January 2019; and (b) the Defendant is directed to attend those examinations. (2) Pursuant to clause 10 of Schedule 1 of the MHFP Act, the Defendant is subject to an interim extension order for a period of 28 days, commending on 22 November 2018 and expiring on 20 December 2018.
Catchwords:	FORENSIC PATIENTS – application for interim extension order – assessment of whether defendant poses an unacceptable risk – two interim orders made
Legislation Cited:	Mental Health (Forensic Provisions) Act 1990 (NSW) Crimes (High Risk Offenders) Act 2006 (NSW)
Cases Cited:	Attorney General of New South Wales v McGuire [2013] NSWSC 1862 Attorney General of New South Wales v McGuire [2015] NSWSC 152 Attorney General of New South Wales v McGuire [2016] NSWSC 158 Attorney General of New South Wales v McGuire [2017] NSWSC 1072 Attorney-General of New South Wales v McGuire [2017] NSWSC 1572 Attorney-General of NSW v McGuire (No.2) [2014] NSWSC 288
Category:	Principal judgment
Parties:	Attorney General of New South Wales (Plaintiff) Herbert Robert McGuire by his tutor Jennifer Thompson (Defendant)
Representation:	Counsel: J Single (Plaintiff) E Tringali (Defendant)   Solicitors: Crown Solicitor’s Office (Plaintiff) Legal Aid Commission (Defendant)
File Number(s):	2017/162261; 2018/347227
Publication restriction:	Nil

Judgment

Introduction

1. This matter came before me at 2 pm on Tuesday, 20 November 2018 (the late commencement was in order to meet the convenience of counsel for the defendant). I was informed at the start of the hearing that a decision would be required of me with regard to the diminution of the liberty of a citizen – which was not the subject of his consent in any sense – by 11.59 pm on Wednesday, 21 November 2018.

2. I do not believe that I should provide such a decision without simultaneously providing reasons for it; that is especially the case if the decision is adverse to the liberty of the citizen. Another reason for declining to provide orders without reasons is that counsel for the moving party indicated that, if I were to refuse to make the orders sought, an appeal would be the subject of prompt consideration.

3. As well as that, this litigation between the Attorney General of New South Wales (the plaintiff) and Mr Herbert Robert McGuire (the defendant) has been the subject of very many judgments of judges of this Court: see Attorney General of New South Wales v McGuire [2013] NSWSC 1862; Attorney-General of NSW v McGuire (No.2) [2014] NSWSC 288; Attorney General of New South Wales v McGuire [2015] NSWSC 152; Attorney General of New South Wales v McGuire [2016] NSWSC 158; Attorney General of New South Wales v McGuire [2017] NSWSC 1072; and Attorney-General of New South Wales v McGuire [2017] NSWSC 1572. The facts of the matter, and its curial history, are amply publicly available by way of those judgments.

4. In all of those circumstances, I believe that I can, indeed must, be unusually concise.

Background

5. The defendant was born in November 1972, and accordingly is 46 years of age. He is mildly intellectually disabled (it is well known that in truth that characterisation speaks of quite a severe deficit). It is not clear whether that disability is the result of a cognitive impairment caused by restriction of oxygen to his brain as a child. Whatever the cause, the condition is permanent, and amenable to neither therapy nor medication.

6. In earlier times, he commenced to intersect with the criminal justice system, albeit in less serious ways, and in ways that did not feature serious violence.

7. In April 2006, however, in the Illawarra town of Nowra, he entered the home of a woman who was a stranger to him, and sexually assaulted her by having penile/vaginal intercourse with her without her consent. Although all of the offending occurred during one incident, there were in fact three phases of it. Deplorably, the entirety of the sexual assault occurred in the presence of the five year old child of the victim.

8. The defendant was identified, and he was charged in August 2006 with the three counts that I have described above. In the District Court in August 2008, he was found unfit to stand trial, based upon the joint opinion of two forensic psychiatrists about the effects of his intellectual disability. Thereafter, a special hearing was conducted in the same Court, which concluded with a finding in September 2009 that, on the limited evidence available, the defendant committed the offences. That in turn led on 4 September 2009 to the imposition of a total limiting term of five years, to commence on 1 January 2009 and to expire on 31 December 2013.

9. In the meantime, whilst seemingly on bail for the sexual offences, in October 2007 the applicant had been charged with inflicting grievous bodily harm on a police officer. I proceed on the assumption that the offence was committed on or shortly before that date.

10. No details of that offence were placed before me, but it led in June 2009 to the defendant being incarcerated, pursuant to a head sentence of imprisonment for 2 years 6 months with a non-parole period of 1 year 6 months, each to commence on 26 January 2008. His putative date of release must therefore have been 25 July 2009 (I characterise it in that way because of the overlap between the end of the non-parole period and the commencement of the limiting term; in the absence of a printout from the Department of Corrective Services, his custodial history is not entirely clear to me).

11. Pursuant to the total limiting term of five years, the defendant was detained by way of order of the Mental Health Review Tribunal (the Tribunal) for an extended period. On 20 June 2013, the Tribunal ordered his conditional release, and that was implemented on 26 August 2013.

12. At the conclusion of the limiting term on 31 December 2013, an extension order was imposed, pursuant to Schedule 1 of the Mental Health (Forensic Provisions) Act 1990 (NSW) (the MHFP Act).

13. Speaking generally, the regime that applies to forensic patients and to be found in that Schedule is broadly analogous to the regime established by the Crimes (High Risk Offenders) Act 2006 (NSW) (the HRO Act). An important difference, however, is that, pursuant to the HRO Act, a judge imposing an interim supervision order or an extended supervision order also sets the conditions; pursuant to the MHFP Act, a judge merely decides whether to impose an extension order or not, and the Tribunal sets the conditions.

14. Ever since the conditional release of the defendant more than five years ago, he has been subject to extension orders that have been repeatedly imposed, and he therefore remains under the jurisdiction of the Tribunal. The judgments to which I have referred above are all to do with that series of extensions.

15. Speaking generally, the applicant has proceeded well over that period: he has been prepared to receive therapy from a psychiatrist who specialises in sexual offending; to gain the benefit of some community services; to take anti-libidinal medication; and also to take medication to reduce his craving for alcohol (which has undoubtedly been problematic in general and criminogenic in particular throughout the life of the defendant). Speaking generally again, he has lived quietly, although isolatedly, in the community; maintained his own apartment in a suburb of Sydney; and has enjoyed some contact with family. His interest in scrap metal collection – what I understand to be something of a “self-employed hobby” – is facilitated by the community service providers with whom he has had contact.

16. The exception to those general propositions is that, for a time in 2016, the defendant became non-compliant with regard to therapy, medication, and contact. As a result, he was involuntarily detained in a mental hospital. On the material before me, it is not clear whether that was because he had breached the conditions of his release imposed by the Tribunal, or because his condition had deteriorated sufficiently for him to be detained, or both, but there is a suggestion that his attitudes and conduct towards women had regressed.

17. A recent risk assessment report expressed a guarded optimism, an important component of which is the absence of offending since the conditional release of the defendant.

18. To be weighed against that is another recent report, this one of a distinguished forensic psychiatrist, which sounds a loud note of caution. In particular, it makes the point that it is one thing to say that the defendant has largely succeeded over the past five years when subject to conditional liberty; whether he would do so without those conditions is suggested to be another matter entirely.

19. The final aspect of the matter that should be dealt with in this précis of background is that, although the defendant has generally been compliant with the conditions imposed upon him by the Tribunal, he has made it clear that, unless compelled to do so, he will neither receive therapy nor take medication.

Summons, and submissions about it

20. It is in those circumstances that the plaintiff has moved upon a summons filed very recently. The orders sought at this stage are as follows:

Interlocutory relief

1. An order pursuant to cl. 6(5) of Sch. 1 of the Mental Health (Forensic Provisions) Act 1990 (“MHFP Act”):

(a) appointing two qualified psychiatrists or registered psychologists 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.

Interim relief

2. An order pursuant to cl. 10 of Sch. 1 of the MHFP Act, that the Defendant be subject to an interim extension order for a period of 28 days, commending upon the expiration of his status as a forensic patient pursuant to the present extension order.

21. In support of those proposed orders, the plaintiff placed voluminous documentary material before me. It charts the whole history of the matter, but the position of the plaintiff may be summarised as follows.

22. It is accepted that the defendant has indeed proceeded quite well over the past five years. And it is noteworthy that the level of intervention, therapy, and medication has been gradually reduced over the years. Nevertheless, to end abruptly the conditional liberty of the defendant now would indeed endanger the community. That is simply because the intellectual disability of the defendant is untreatable; he has committed very grave sexual offences in the past; during the recent period of deterioration there was a suggestion of dysfunctional sexual ideation; the life of the defendant in the community without compulsory intervention would in all likelihood be extremely isolated, and physically and emotionally impoverished; and the defendant has made it quite clear that he is not open to receiving help voluntarily.

23. The plaintiff also submitted that, at this preliminary stage, just as in the case of a preliminary application pursuant to the HRO Act, I am being asked to undertake the task of assessing what a judge of this Court could ultimately regard as appropriate, not what he or she would, or should, or must so regard. It was said that the well-known analogy with the task of a magistrate in committal proceedings is apposite here as well. In short, it was said that the hurdle to be overcome by the plaintiff at this stage is surely a low one, pursuant to clauses 2 and 6(5) of the Schedule to the MHFP Act.

24. In response, counsel for the defendant did not submit that any of the mechanistic statutory preconditions to the making of the extension order had not been established. But with regard to the fundamental question, she submitted that her client is very much caught in a “Catch-22” or “chicken and egg” situation: the conditional liberty of the defendant is repeatedly extended because of fear of endangerment of the community; but the defendant is incapable of showing that he would not endanger the community if his liberty was unfettered, because his conditional liberty is repeatedly extended.

25. She also submitted that a number of protective factors are to be seen in the documentary evidence, not least the degree of contact the defendant has with family members; his general compliance with the medication that he has been asked to take; and in particular the absence of sexual offending of any kind since 2006, well over a decade ago.

Determination

26. Turning to my determination of this preliminary question, I respectfully think that there is force in the submission made on behalf of the defendant that the restrictions on his liberty cannot simply be extended for many decades, perhaps until his death, based upon one incident that occurred well over a decade ago already. One solution, perhaps, is that (as has already occurred), those conditions gradually become less and less onerous; that his medication, to the extent practical, be slowly reduced; and that, eventually, a very light interference with his liberty become no interference at all.

27. I also accept that this man has generally succeeded since his release in 2013. Having said that, the reasonably recent period during which he became non-compliant to the extent that he was detained again in a psychiatric hospital must be a matter of concern.

28. Separately, I accept that, at this stage, the test is not an unduly difficult one for the plaintiff to fulfil.

29. I also think that I can take into account the fact that, for the past five years, judges of this Court have been prepared to make an extension order, in my assessment of whether or not a judge could be prepared to do so again in the future.

30. Finally, I think that there is force in the submission of the plaintiff that simply to bring the conditional liberty of the defendant to an end now could lead rapidly to isolation, a return to alcohol abuse, an unwillingness or inability on the part of this intellectually disabled man to get help, and a real risk serious offending, not least in a sexual way, thereby endangering the community. And it is not unimportant, I think, that the reasonably recent period of deterioration showed hints of a return to sexual dysfunction.

31. In the circumstances, I am satisfied that I should make the two interim orders sought by the plaintiff at this stage.

Orders

32. For the foregoing reasons, I make the following orders:

1. Pursuant to clause 6(5) of Schedule 1 of the Mental Health (Forensic Provisions) Act 1990 (“MHFP Act”):

(a) two qualified psychiatrists or registered psychologists or registered medical practitioners (or any combination of such persons) are appointed to conduct separate examinations of the Defendant and to furnish reports to the Supreme Court on the results of those examinations by no later than 16 January 2019; and

(b) the Defendant is directed to attend those examinations.

2. Pursuant to clause 10 of Schedule 1 of the MHFP Act, the Defendant is subject to an interim extension order for a period of 28 days, commending on 22 November 2018 and expiring on 20 December 2018.

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Decision last updated: 23 November 2018