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

Supreme Court

New South Wales

Summary available

Medium Neutral Citation: Attorney-General of NSW v McGuire (No.2) [2014] NSWSC 288
Hearing dates: 04/03/2014, 05/03/2014
Decision date: 21 March 2014
Jurisdiction: Common Law
Before: Garling J
Decision:
Order pursuant to clause 1 of Schedule 1 of the Mental Health (Forensic Provisions) Act 1990 that the status of Mr Herbert McGuire as a forensic patient be extended up to and including 21 March 2015.

Catchwords:
CRIMINAL - defendant charged with multiple sexual offences - found unfit to plead - forensic patient - limiting term of five years - whether after expiry of limiting term extension order as a forensic patient should be made

CIVIL - Mental Health (Forensic Provisions) Act 1900 (NSW) - forensic patient - limiting term expired - multiple interim extension orders made - final hearing - whether final order should be made to extend status as a forensic patient - whether poses an "unacceptable risk" of causing serious harm to others - balancing exercise - deprivation of liberty - protection of community - other less restrictive means - period necessary to enable assessment of progress
STATUTORY INTERPRETATION - Mental Health (Forensic Provisions) Act 1900 (NSW) - Schedule 1 - "unacceptable risk of causing serious harm" - "other less restrictive means"
Legislation Cited: Crimes (High Risk Offenders) Act 2006
Crimes Act 1900
Guardianship Act 1987
Mental Health (Forensic Provisions) Act 1990
Mental Health Act 2007
Cases Cited: Attorney-General of NSW v McGuire [2013] NSWSC 1862
Cornwall v Attorney-General for NSW [2007] NSWCA 374
Director of Public Prosecutions (WA) v GTR [2008] WASCA 187; (2008) 38 WAR 307
NSW v Richardson (No.2) [2011] NSWSC 276
State of NSW v Thomas [2011] NSWSC 118
R v McGuire [2009] NSWDC 245
Director of Public Prosecutions (WA) v Williams [2007] WASCA 206; (2007) 35 WAR 297
Texts Cited: Diagnostic and Statistical Manual of Mental Disorders - 5th Edition
Category: Principal judgment
Parties: Attorney-General of NSW (P)
Herbert Robert McGuire (D)
Representation: Counsel:
W Abraham QC / Ms S Callan (P)
M Ierace SC (D)
Solicitors:
Crown Solicitor (P)
Legal Aid (NSW) (D)

File Number(s): 2013/369832
Publication restriction: Victim's name suppressed

Judgment

By a Summons filed on 9 December 2013, the Attorney-General of NSW seeks an order pursuant to cl 1 of Schedule 1 of the Mental Health (Forensic Provisions) Act 1990 ("MHFP Act"), that Mr McGuire be subject to an extension order for a period of five years.

At the hearing of the proceedings, the Attorney-General modified the length of that period and sought only an extension order for a period of two and a half years.

Mr McGuire opposes the making of any extension order.

For the reasons which follow, I have decided that an extension order ought to be made for a period of 12 months.

Mr McGuire becomes a Forensic Patient

On 17 August 2006, Mr McGuire was charged with three offences contrary to s 61I of the Crimes Act 1900, namely that he had sexual intercourse without consent, knowing that the victim was not consenting. As well, he was charged with one offence of aggravated break and enter, and commit serious indictable offence.

On 4 December 2007, he was committed to stand trial with respect to each of these offences in the District Court at Nowra.

On 25 August 2008, the District Court at Nowra (Garling DCJ) determined after an inquiry conducted in accordance with the MHFP Act, that on the evidence before the Court, Mr McGuire was not fit to be tried, and he was referred to the Mental Health Review Tribunal ("the Tribunal"). Mr McGuire, who was then in custody, was remanded in custody.

It is clear that the basis upon which Mr McGuire was found unfit to be tried, was that he suffered from an intellectual disability which meant that, together with poor language skills, he was unable to understand the charges with which he was confronted, and was unable to instruct lawyers rationally with respect to his version of the facts, and what defences can or should be raised. It was also clear that he would not understand adequately the nature of the proceedings to which he was subject.

In August and September 2009, the District Court held a special hearing pursuant to the provisions of the MHFP Act. On 4 September 2009, for the reasons which she then expressed, Murrell DCJ, held that in respect of the three counts of sexual intercourse without consent, on the limited evidence available to her, Mr McGuire committed each of the offences charged. Her Honour permanently stayed the fourth charge of aggravated break and enter as an abuse of process. Her Honour's reasons are to be found at R v McGuire [2009] NSWDC 245.

On 4 September 2009, pursuant to s 23(1)(b) of the MHFP Act, in respect of each of the three offences her Honour nominated a limiting term of four years. In respect of the first of the three offences, her Honour nominated the limiting term to commence on 1 January 2009. In respect of the other two offences, her Honour nominated the limiting term to commence on 1 January 2010. The effect of this was Mr McGuire was subject to an overall effective limiting term of five years, which would expire on 31 December 2013.

Having nominated a limiting term, Murrell DCJ was obliged by s 24 of the MHFP Act to refer Mr McGuire to the Tribunal and also to make an order with respect to his custody. She did so.

Thereafter, Mr McGuire was detained in custody, in a correctional facility and, by reason of the provisions of s 42 of the MHFP Act, he became a forensic patient subject to regular review by the Tribunal.

On 26 August 2013, the Tribunal, pursuant to the provisions of s 47(1)(b) of the MHFP Act, released Mr McGuire into the community subject to a comprehensive set of conditions.

By reason of the expiration of the limiting term on 31 December 2013, Mr McGuire's status as a forensic patient would have ceased. However, on 12 December 2013, Davies J made an interim extension order under cl 10 of Sch 1 to the MHFP Act, which extended Mr McGuire's status as a forensic patient from 31 December 2013 for a period of 28 days. Other Judges of the Court have subsequently renewed this interim order, so that it will now expire on 25 March 2014.

On 4 and 5 March 2014, the Court held a final hearing dealing with the Summons filed by the Attorney-General. It is necessary that judgment be delivered prior to 25 March 2014 because interim extension orders cannot be further renewed after that date: cl 11 Sch 1 MHFP Act.

Mr McGuire's Background

Mr McGuire was born on 11 November 1972 in Ballarat in Victoria. He was the youngest of nine children.

In the late 1970's the family moved to NSW, ultimately to Department of Housing accommodation at Mt Druitt. Mr McGuire began school whilst living in NSW. He attended Shalvey High School and was expelled for truancy in Year 8. During his period of time at school he had been involved in physical confrontation with other students.

After leaving school, he remained living at home helping his father with the collection of scrap metal. When he was 17, he left home and moved in with his sister, and worked as a painter's labourer. He was sacked from this job for absenteeism.

He then moved to Young where his parents were living and there worked as a casual fruit picker. In the early 1990s, he met his former partner in Young and they lived together for about two years. Some time during 1993 or 1994, the precise date is unclear and of no particular moment, he and his former partner had a daughter.

He apparently met his former partner at the TAFE College at Young where he was enrolled in a literacy course. After the termination of the relationship in Young, he moved to Richmond and resided with his brother.

His criminal record commenced when he was about 24 years old. He was first convicted in the Local Court for breach of an apprehended violence order and malicious damage

Thereafter his criminal record consists of quite serious driving offences, including driving in a manner dangerous and offences of violence including assault and petty larceny.

In December 2003, he was charged with driving whilst under the influence of alcohol and driving his vehicle in a reckless or furious way at a speed or manner dangerous to the public. For these offences he was imprisoned for 12 months, with a 9 month non-parole period.

In February 2005, he was again charged with driving his vehicle in a reckless or furious way at a speed or manner dangerous to the public, and driving whilst disqualified together with a number of other driving offences. For these offences, he was sentenced to a total of 12 months imprisonment commencing in February 2005, with a non-parole period of 9 months. He first became eligible for release on 4 November 2005.

Just over four months after his release from imprisonment, he committed the Index Offences.

The Index Offences

According to the Court Attendance Notice, each of the three offences against s 61 I of the Crimes Act, were committed between 4.30pm and 5.20pm on 4 April 2006 at Nowra. The charges are in identical form, and, save for the victim's name which I have anonymised, read this way:

"Crimes Act 1900, Section 61 I - IS

Sexual intercourse without consent between 4.30pm and 5.20pm on 04/04/2006 at Nowra. That Herbert Robert McGuire on 4th April 2006, at Nowra, in the State of New South Wales, did have sexual intercourse with [XX], without her consent and knowing that [XX] had not consented to sexual intercourse."

Since these three offences were the ones in respect of which limiting terms were fixed, I will refer to them as the index offences.

Mr McGuire was first apprehended in respect of the index offences shortly after lunchtime on 17 August 2006. However, it seems that he remained on bail until October 2007, when he was taken into custody with respect to the other matters. He was in custody when the index offences were dealt with by the District Court at Nowra.

In her Reasons, delivered at the conclusion of the special hearing, Murrell DCJ recorded the circumstances of the offences which she was satisfied had been committed by Mr McGuire. She said that but for Mr McGuire's intellectual disability, there was little doubt that each of the offences would be categorised as falling in the upper mid or high range of objective seriousness because they occurred in the victim's home, they involved the use of violence and they occurred in the presence of the victim's child.

She described the circumstances in the following way:

"21. At about midday on 4 April 2006 the accused went to premises adjacent to the complainant's residence. In the period until about 4.30 or 5p.m. he drank with two acquaintances, consuming least eight stubbies [of] beer and probably more. In the course of the afternoon, the accused observed the complainant in the next-door premises and said words to the effect of 'she would be all right for a girlfriend'. He became somewhat intoxicated and at one stage was 'nodding off'. When he left the premises he was 'a little bit intoxicated' but was 'not overly drunk' and was capable of walking. He saw a cat and was told that it belonged to the complainant. He picked up the cat and walked in the direction of the complainant's residence.

22. It was the complainant's evidence that a man (who must have been the accused) appeared on her front porch and asked to come in for a drink. According to the complainant's police statement 'he spoke of wanting to be with (the complainant) and wanting to be (her) friend'. The complainant refused the request to come into her house. The man was drinking a stubbie of beer. Later, the police seized an empty stubbie from the complainant's front porch. It was found to contain the accused's DNA.

23. The accused went to the side of the house and then to the backyard, where he played with the complainant's young daughter. The complainant removed washing from the line and took it into the house. The complainant's daughter came into the house, followed by the accused. The complainant asked the accused to leave the house but he refused to do so. The complainant walked to the front of the house, successfully enticing the accused out of the house. The complainant went back inside, securing the latch on the front screen door. She went to the kitchen to locate a key so that she could lock the front screen door.

24. When the complainant was standing in her living room, the accused grabbed her by the arms and told her to be quiet. He put a hand over her mouth. The complainant bit the accused on the hand. The complainant found herself lying on her back on the floor. The accused pulled his pants down to his knees and pulled her pants down, possibly to her knees, and proceeded to have penile/vaginal intercourse, causing the complainant to feel some pain. The complainant estimate that the intercourse continued for between five and fifteen minutes. The complainant was struggling. She managed to get onto her hands and knees and reached for the telephone, intending to dial for assistance. However, she discovered that the lead had become disconnected. She hit the accused over the head with the telephone. He was undeterred. She began to search for her mobile telephone. As she was doing so, the accused commenced penile/anal intercourse, which continued for five to ten minutes. The complainant believes that the accused did not ejaculate.

25. The complainant found herself with her back to the floor. The accused 'tried it again'. It was the complainant's evidence that the accused put his penis back into her vagina 'quite a few times'. 'Almost immediately' that the accused 'tried it again' the complainant succeeded in yanking his penis. It was soft After words were exchanged, the accused left, saying that he would 'come back next week to finish the job'.

26. The complainant dressed, comforted her daughter and called the police."

Because the fourth offence of breaking and entering involved the same circumstances as those included in the first offence of sexual intercourse without consent, her Honour was satisfied that as all of the elements of Count 4 were wholly included in Count 1, and because she had returned a verdict on the first offence before considering the fourth offence, that it was an abuse of process to proceed to make any finding with respect to the fourth offence. In the exercise of her Honour's inherent discretion, she permanently stayed the proceedings on the fourth offence of aggravated break and enter:

"... because the entry of a verdict on Count 4 would entail two adverse findings in relations to the same conduct."

The Relevant Legislation

Because Mr McGuire is a forensic patient, the basis for the making of the order sought by the Attorney-General is to be found in the MHFP Act.

A forensic patient is defined for the purposes of the MHFP Act in s 42. That definition is in the following form:

"42 Forensic patients

For the purposes of this Act, the following persons are

"forensic patients" :

(a) a person who is detained in a mental health facility, correctional centre or other place, or released from custody subject to conditions, pursuant to an order under:

(i) section 14, 17 (3), 24, 25, 27 or 39, or

(ii) section 7 (4) of the Criminal Appeal Act 1912 (including that subsection as applied by section 5AA (5) of that Act),

(a1) a person in respect of whom an extension order or interim extension order is in force,

(b) a person who is a member of a class of persons prescribed by the regulations for the purposes of this section. "

Because Mr McGuire was the subject of a limiting term, and was detained in custody pursuant to an order made under s 24 of the MHFP Act, Mr McGuire was a forensic patient. Because, since 1 January 2014, he is a person in respect of whom an interim extension order is in force, he continues as a forensic patient, until at least 24 March 2013.

It is relevant to note the provisions of s 43 of the MHFP Act. It is in the following form:

"43 Criteria for release and matters to be considered by Tribunal

The Tribunal must not make an order for the release of a forensic patient unless it is satisfied, on the evidence available to it, that:

(a) the safety of the patient or any member of the public will not be seriously endangered by the patient's release, and

(b) other care of a less restrictive kind, that is consistent with safe and effective care, is appropriate and reasonably available to the patient or that the patient does not require care."

Section 54A of the MHFP Act provides for the extension of the status as a forensic patient for a person providing that it is done in accordance with Sch 1.

Schedule 1 of the MHFP Act is in the following form:

"SCHEDULE 1 - Extension of status as forensic patient

Part 1 - Extension of status as forensic patient

1 Extension orders for forensic patients

(1) The Supreme Court may, on application under Part 2 of this Schedule, make an order for the extension of a person's status as a forensic patient.

(2) An order made under this clause is an "extension order".

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

(1) 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 (including classification as an involuntary patient under section 53).

(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.

Part 2 - Extension orders

Division 1 - Application for extension order

....

5 Requirements with respect to application

An application for an extension order must be supported by documentation:

(a) 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.

...

Division 2 - Determination of application

7 Determination of application for extension order

(1) The Supreme Court may determine an application under this Part for an extension order:

(a) by making the order, or

(b) by dismissing the application.

(2) In determining whether or not to make an extension order, the Supreme Court must have regard to the following matters in addition to any other matter it considers relevant:

(a) the safety of the community,

(b) the reports received from the persons appointed under clause 6 (5) to conduct examinations of the forensic patient,

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

(d) any other report of a qualified psychiatrist, registered psychologist or registered medical practitioner provided in support of the application or by the forensic patient,

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

(f) 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,

(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),

(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,

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

(3) If the Supreme Court makes an extension order in respect of a forensic patient, the Court is to notify the Tribunal of the making of the order.

8 Term of extension order

(1) An extension order:

(a) commences when it is made, or when the limiting term or existing extension order to which the forensic patient is subject expires, whichever is the later, and

(b) expires at the end of the period (not exceeding 5 years from the day on which it commences) that is specified in the order.

(2) Nothing in this clause prevents the Supreme Court from making a second or subsequent extension order against the same forensic patient.

...

Division 4 - General

12 Extension order or interim extension order may be varied or revoked

(1) The Supreme Court may at any time vary or revoke an extension order or interim extension order:

(a) on the application of a Minister administering this Act or the forensic patient, or

(b) on the recommendation of the Tribunal under section 47 (2A).

(2) The period of an order must not be varied so that the total period as varied is greater than that otherwise permitted under this Part.

(3) Without limiting the grounds for revoking an extension order or interim extension order, the Supreme Court may revoke an extension order or interim extension order if satisfied that circumstances have changed sufficiently to render the order unnecessary."

Part 5 of the MHFP Act deals with how forensic patients are to be overseen by the Tribunal, and how they are to be cared for, including by the making of community treatment orders. The objects of Part 5 are set out in s 40 in the following terms:

"40 Objects

The objects of this Part are as follows:

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

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

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

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

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

In determining any application for an extension order, the Court is obliged to give attention to the provisions of Division 2 of Sch 1 of the MHFP Act, the relevant clauses of which have been set out above.

Once an extension order has been made, the order may at any time be varied or revoked by the Supreme Court: cl 12 Sch 1 of MHFP Act. Although the grounds are limited for revoking an extension order, one ground is that if the Supreme Court is satisfied that circumstances have changed "sufficiently to render the order unnecessary", it may be revoked: cl 12(3) of Sch 1 of the MHFP Act.

As well, in the event that the Court does make an extension order, or if a court refuses to make such an order, then there is a right of appeal to the Court of Appeal: cl 14 of Sch 1 of the MHFP Act.

Applicable Legal Authorities

The legislation is substantially similar to, and mirrors very closely, the regime in the Crimes (High Risk Offenders) Act 2006 ("HRO Act").

The HRO Act deals with two categories of offenders: high-risk sex offenders, and high-risk violent offenders. The Supreme Court is given the power to make continuing detention orders, or extended supervision orders, with respect to both categories of offenders.

The principal test to be applied to each of these categories of offenders is whether the Supreme Court is satisfied to a high degree of probability that the offender poses an unacceptable risk of committing either a serious sex offence (for high-risk sex offenders) or else a serious violence offence (for high-risk violent offenders) if the offender is not kept under supervision.

In the relevant provisions of the MHFP Act, the Supreme Court also has to be satisfied to a high degree of probability when considering making an extension order. As well, the concept of unacceptable risk is also used. However, the risk is not expressed as one of committing an offence, but rather as an "... unacceptable risk of causing serious harm to others", if the person ceases to be a forensic patient.

Since these two concepts use identical phrases, an examination of previously decided cases relating to the HRO Act is a useful guide to the application of the same or substantially similar phrases in the MHFP Act.

The first phrase to be considered is "high degree of probability". In Cornwall v Attorney-General for NSW [2007] NSWCA 374 at [21], the Court (Mason P, Giles and Hodgson JJA) said:

"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 ..."

In the circumstances here, the applicant for the order, namely the Attorney-General, carries this onus of proof and persuasion.

The second phrase to be considered is "unacceptable risk". A similar expression was considered by the West Australian Court of Appeal in Director of Public Prosecutions (WA) v Williams [2007] WASCA 206; (2007) 35 WAR 297 where at [63], Wheeler JA said with respect to the same expression in legislation broadly corresponding to the HRO Act, this:

"In my view, an 'unacceptable risk' ... is a risk which is unacceptable having regard to the variety of considerations which may include the likelihood of the person offending, the type of sexual offence which the person is likely to commit (if that can be predicted), and the consequences of making a finding that an unacceptable risk exists. That is, the judge is required to consider whether, having regard to the likelihood of the person offending and the offence likely to be committed, the risk of that offending is so unacceptable that, notwithstanding that the person has already been punished for whatever offence they may have actually committed, it is necessary in the interests of the community to ensure that the person is subject to further control or detention."

The West Australian Court of Appeal considered the matter again in Director of Public Prosecutions (WA) v GTR [2008] WASCA 187; (2008) 38 WAR 307 at [27] where Steytler P and Buss JA said:

"The word 'unacceptable' necessarily connotes a balancing exercise, requiring the Court to have regard, amongst other things, for the nature of the risk (the commission of a serious sexual offence, with serious consequences for the victim) and the likelihood of the risk coming to fruition on the one hand, and the serious consequences for the offender, on the other, if an order is made (either detention, without having committed an unpunished offence, or being required to undergo what might be an onerous supervision order). ..."

In NSW the HRO Act was considered in State of NSW v Thomas [2011] NSWSC 118. There R A Hulme J considered the application of the phrase "unacceptable risk" where he said, at [20]:

"Whilst bearing in mind the second of these two objects, I would regard the test in s 9(2) as being satisfied if there is a risk that the person will commit a serious sex offence which is present to a sufficient degree so that the safety and protection of the community cannot be ensured unless an order is made."

R A Hulme J called attention to the objects of the Act there under consideration as the starting point for understanding the legislation. The position is rather more complicated here, in this statutory regime.

The reason for this greater complexity is to be found in the breadth of functions to which the MHFP Act is addressed. Part 2 of the MHFP Act deals with the procedures in a part of the criminal justice system, namely proceedings in the Supreme Court and the District Court. It applies to people who have a mental disorder, but who are not necessarily mentally ill. Part 3 applies to criminal proceedings before a Magistrate, other than committal hearings, and also to bail applications. Part 4 makes provision for the defence of mental illness which may apply to some but not all of the individuals to whom Parts 2 and 3 apply.

Part 5 of the MHFP Act, which relates directly to Sch 1, and contains the relevant provisions for extension orders deals with forensic patients, who may or may not be mentally ill, and correctional patients, namely prisoners who have become mentally ill, but are not in mental health facilities and who are not involuntary patients in such facilities.

Because of these complexities, it is the objects of Part 5 to which attention must be given. As earlier indicated, they are set out in s 40. For a forensic patient such as Mr McGuire, who suffers from an intellectual disability, the only object which appears to be of direct relevance is that set out in s 40(a), namely the protection of the safety of members of the public.

Accordingly, it is this object to which attention must be given when addressing the balancing exercise discussed in the authorities to which I have earlier referred.

Taking into account these authorities and the object of the provisions, and the words of Clause 2 of Sch 1 of the MHFP Act, it seems to me that the balancing exercise required involves the following integers. On one side of the ledger, the Court needs to consider and assess the nature and extent of the risk of Mr McGuire causing serious harm to others, the likelihood of that risk becoming an actuality, and the possible consequences of serious harm being caused to others upon the assumption that an extension order was not made and upon the assumption that, in the case of Mr McGuire, he is at liberty to live his life as he chooses.

On the other side of the ledger, the Court needs to assess and consider, having regard to the fact that, but for the making of an interim order Mr McGuire has completed the limiting term fixed by the District Court, Mr McGuire is not presently under any constraint on his liberty, and ought as a matter of the norms of a democratic society, be allowed to live his life in a way which enables him to exercise such liberty like any other member of society.

The exercise of balancing these two sides of the ledger, and considering the result, is to be done to further the relevant objects of the legislation namely, to protect the safety of the community generally. The exercise results in an evaluation of whether the risk is an acceptable one or not. In other words, notwithstanding that Mr McGuire has completed the punishment imposed on him by serving his limiting term, largely in custody, can the community be protected, not completely, but to an adequate or reasonable degree, if an order is not made?

The remaining element to be considered is that described in Clause 2(1)(b) of Sch 1 of the MHFP Act. This requires that the Court, even if satisfied that there is an unacceptable risk of causing serious harm, to then be satisfied to a high degree of probability, that this unacceptable risk cannot be adequately managed by other less restrictive means.

Curiously, although not applicable to Mr McGuire who is neither mentally ill nor mentally disordered, as those terms are defined in the Mental Health Act, Cl 2 suggests that classifying a person as an involuntary patient is regarded as a less restrictive means of adequately managing them, than the making of an extension order.

It is also hard to see that if a risk can be adequately managed by a less restrictive means than continuing a person's status as a forensic patient, a Court could ever be satisfied that the risk is an unacceptable one. Nevertheless, the legislation requires the Court to approach the matter by considering, once it is satisfied that an unacceptable risk exists, whether adequate management by other less restrictive means, exists. The question to be determined here is expressed in terms that require the Court to be satisfied to a high degree of probability that the risk cannot be adequately managed.

I would take the use of the phrase "adequately managed" to mean 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.

The notion that mentally ill individuals ought receive their treatment in the community is well recognised by the community and is entrenched in the Mental Health Act: s 12, s 38, s 53 and, in particular, s 68. However, the position is novel with respect to a forensic patient who is not mentally ill, or mentally disordered, but as is the case here, a person with an intellectual disability.

Despite the novelty of the position, it is appropriate to approach this matter by attempting to give effect to the rather curiously expressed provisions contained in Sch 1 of the MHFP Act.

Mr McGuire's Time as a Forensic Patient

Since being in custody as a forensic patient, Mr McGuire has been held either at the Goulburn Correctional Centre, or else at the Metropolitan Special Programs Centre. As a forensic patient, Mr McGuire has been reviewed by the Tribunal from time to time.

In February 2010, Mr McGuire was referred to the Aging, Disability and Homecare Agency ("the ADHC"), which was establishing services for people with an intellectual disability who were leaving correctional facilities. This was being done through its Community Justice Program ("CJP").

According to the ADHC, through the CJP, an individual could receive accommodation and behaviour support services designed to assist their transition to community living and reduce their risk of re-offending.

About February 2010, the Tribunal was provided with a psychiatric report by Dr Matthew Hearps, a consultant psychiatrist, who expressed the following opinion:

"Mr McGuire's pre-eminent feature is cognitive impairment, consistent with his diagnosed intellectual disability.

There is not evidence that Mr Mr McGuire has a psychotic or mood disorder. There was not sufficient evidence, on today's assessment, to make a diagnosis of paraphilia.

In terms of fitness, in my view, were the question of Mr McGuire's fitness to be redetermined, he would like again be found unfit to be tried.

The treatment recommendations are:

(1) Assessment of Mr McGuire's risk of sexual re-offending, and assessment with a view to participation in a custodial sex offender program. This assessment can be undertaken by DCS Sexual and Violent Offenders Program.

(2) Assessment by the Community Justice Program (and agency of Aging Disability and Homecare, Department of Health Services) - with a view to risk assessment, placement and risk management for Mr McGuire, once he is released to the community. ...

(3) While Mr McGuire continues in custody, his present placement in 5-Wing appears to be appropriate, given his intellectual disability and his consequent vulnerability."

In August 2010, the ADHC indicated that it was engaged in assessing Mr McGuire and nominated three possible accommodation models which may be considered. They were:

(a) an intensive residential support model which is a high level supported environment, which usually provides a single level property with a 24/7 staffing establishment and access to targeted interventions;

(b) an on-site supported living model which provides a range of support options but is generally suitable for individuals with a greater capacity for increased independence. That model is able to provide the individual with up to 24/7 access to support staff and could be implemented in a variety property types;

(c) drop in support which provided a flexible drop-in service to individuals who require specific support and intervention. It was described as covering a range in terms of hours and may be delivered to an individual in a private or Department of Housing property, family home or shared accommodation setting.

On 3 December 2010, the Guardianship Tribunal made a financial management order pursuant to the Guardianship Act 1987 which placed the management of Mr McGuire's financial affairs under the control of his sister. The Guardianship Tribunal expressed itself satisfied that Mr McGuire was incapable of managing his financial affairs.

On 10 March 2011, Mr McGuire was reviewed by the Tribunal which determined that it was appropriate to continue Mr McGuire's detention at the Goulburn Correctional Centre. The reasons for the Tribunal's decision indicate that Mr McGuire had been transferred to the Additional Support Unit of the Goulburn Correctional Centre because his classification had changed. His behaviour had been assessed as entirely satisfactory. He was working on a regular basis, assisting in the refurbishment of portable demountable school classrooms. There were no structured programs available to him. There was no suggestion that he had imbibed any alcohol or taken any illicit drugs.

The Tribunal in its reasons expressed this conclusion:

"The Tribunal was satisfied that there are reasonable grounds to believe that care, treatment and control of Mr McGuire is necessary for his own protection from serious harm and the protection of others from serious harm. Mr McGuire has a diagnosis of intellectual disability, and does not have a diagnosed mental illness. The CJP have now accepted Mr McGuire and have prepare a comprehensive plan which emphasises the kind of support that can be offered to Mr McGuire on release. However, appropriate assessments in respect of risk of harm to himself or others if released, at present has not yet occurred. ...

Mr McGuire appeared at the hearing to be somewhat surprised that he was not going to be released by the Tribunal on the day of the hearing, and it was explained to him that the Tribunal was unable to make such a decision unless it formed the view, after proper assessment, that he would not pose a risk of serious danger to himself or others. The Tribunal, at this stage has not been provided with a comprehensive Risk Assessment Report or any firm information as to what, if any, interventions could usefully take place before the expiry of Mr McGuire's limiting term, or indeed in the community if his release to the community by way of conditional release became appropriate. Such evidence is vital to the Tribunal's consideration of conditional release. Accordingly, the Tribunal is satisfied that Mr McGuire should remain detained at the correctional centre."

For reasons which do not appear in the evidence before the Court, although the hearing of the Tribunal was conducted on 10 March 2011, the reasons for its decision were not finalised and published until six months later, on 12 September 2011.

Meanwhile, on 23 August 2011, an extensive Risk Assessment and Management Report was prepared by the NSW Community Forensic Mental Health Service, which made particular recommendations as to Mr McGuire's treatment and supported his placement in the community in principle, but not if he were to be placed in independent accommodation. It recommended that Mr McGuire's future community placement consider supported accommodation options, which had a capacity for high levels of supervision, routine and structure.

The Tribunal undertook a further review of Mr McGuire on 6 September 2011. Again for reasons which are unclear from the evidence before the Court, the Tribunal's reasons were not concluded and delivered until over four months later, on 30 January 2012.

The Tribunal determined that there should be no variation to Mr McGuire's care, treatment and detention.

On 6 December 2011, the Guardianship Tribunal appointed the Public Guardian as the guardian for Mr McGuire to the limited extent of providing advocacy services.

On 10 October 2012, the Tribunal conducted its eighth review of Mr McGuire. The Tribunal noted in its reasons, which were published on 5 December 2012, that it was concerned with the question of whether Mr McGuire had spent "sufficient time in custody", and the Tribunal noted that by the time of the review, Mr McGuire would have effectively served what would otherwise have been a non-parole period for a sentenced prisoner.

At this review, an officer from the CJP indicated that a plan was in place for Mr McGuire, involving support services, appropriate accommodation and up to 70 hours per week support for attending appointments, managing finances, learning daily living skills and other appropriate management skills.

The Tribunal made its determination in the following terms:

"The Tribunal notes that there may be an application for conditional release made in relation to Mr McGuire in the not too distant future. In the meantime, the Tribunal notes that until there has been further exploration of any proposed community management plan, and until an independent risk assessment has been carried out, it is appropriate that Mr McGuire continue in his current detention."

In November 2012, Dr Christopher Lennings, an expert psychologist, undertook a risk assessment with respect to Mr McGuire. For this purpose he interviewed him for about one and a half hours. Dr Lennings assessed Mr McGuire in a number of different ways. One instrument, the STATIC-99, was administered. This instrument is regarded as having a high level of predictive accuracy.

Of this assessment, Dr Lennings said this:

"Mr McGuire achieved a score of 5 on the STATIC-99, based on the sexual offence co-occurring with the violent offence, that the person was unrelated and a stranger to him (known for less than 24 hours), and that he had multiple prior convictions (non-sexual) and also at least one prior conviction that was for a violent matter. A score of 5 places him in the moderately high risk group, and a person with his score belongs to a group such that over a 15 year period for every 100 people with his score, 40 might be expected to re-offend for a sexual offence, and 52 for a violent offence, post-release. Mr McGuire's rating on this measure places his risk level above the base rate, indicating a substantial concern regarding his recidivism potential."

Dr Lennings also assessed Mr McGuire by reference to a specific approach developed for those with an intellectual disability. That approach is known as the Assessment of Risk and Manageability of Intellectually Disabled Individuals Who Offend Sexually (ARMIDILO-S). Dr Lennings was able to identify some principal risk factors by reference to ARMIDILO-S, including poor emotional coping skills, impulsivity, substance abuse, the presence of anti-social traits and a past history of some abuse and neglect.

He identified a number of factors protective against offending including the absence of any significant mental illness, the lack of any disciplinary issues in custody and support from his family. There were other factors upon which Dr Lennings felt he had inadequate information to undertake a rating.

Of Mr McGuire, Dr Lennings concluded:

"It appears very little has changed for Mr McGuire in the years since being in jail. He remains essentially a low functioning man who has little insight into his past behaviour and no concern about it. Nonetheless, he has been compliant within the correctional system. That is, within highly structured environments he appears settled. The question which therefore arises is the likelihood that similar circumstances as to the offence might arise, and any capacity he might have for restraint if those circumstances were to arise. I believe that should he decide to go drinking again, and is outside of a supervisory regime in the community, similar circumstances might arise. In regards to the CJP plan, release without suitable consideration of the intensity of supervision and an alcohol management plan could result in further serious harm to members of the public."

On 5 December 2012, the Guardianship Tribunal renewed the guardianship order and varied it. The Public Guardian continued as Mr McGuire's guardian. The functions of the Guardian were extended so as to include the following:

(a) accommodation: to decide where Mr McGuire may live;

(b) services: to make decisions about services to be provided to Mr McGuire.

On 27 February 2013, Dr Hearps concluded his report with respect to Mr McGuire. He had interviewed Mr McGuire on 30 January 2013. Dr Hearps had access to a good deal of information about Mr McGuire's previous history and psychological and psychiatric condition. Dr Hearps expressed the view that at that time, Mr McGuire would not meet the criteria for conditional release because he represented a serious danger to the public. He said this:

"His risk is informed by factors that include history of sexual offending, personality disorder, alcohol misuse, lack of remorse, impulsivity, non-compliance with remediation attempts and exposure to destabilisers in the community. Independent accommodation with drop-in support would not be adequate to ensure his safe and effective care, given that his access to the community (and potential victims) would be unrestricted."

On 5 March 2013, the Tribunal resumed a hearing which it had commenced in December 2012. This hearing was a particularly lengthy one, apparently occupying most of the morning. Evidence was taken from Dr O'Dea, a specialist psychiatrist, who had been supervising and treating Mr McGuire during his time in custody, and also from Dr Lennings. Mr Williams, the relevant program officer from CJP gave evidence and described the proposed program with respect to Mr McGuire should he be released.

Counsel for the Attorney-General appeared and made submissions, and submissions were put by a solicitor from the Intellectual Disability Rights Service on behalf of Mr McGuire.

As well, the CJP provided 23 conditions, which it proposed should be imposed in the event that Mr McGuire was released into the community.

On 10 May 2013, the Tribunal delivered very extensive reasons, 66 pages, which supported its conclusion that Mr McGuire should be released into the community. It expressed its conclusion in this way:

"The Tribunal notes that there are only seven months remaining on Mr McGuire's limiting term. The Tribunal is not confident that Mr McGuire will engage in any meaningful way with the programs, limited though they are, that remain available to him whilst he is an inmate in a custodial setting. He has never shown any inclination or aptitude to do so thus far during his limiting term. The strong likelihood is that he will refuse to undertake any such programs, and will be released into the community at the end of his term on 31 December 2013. Hopefully, there will be some assistance given to him by ADHC and the CJP when he is in the community.

There is currently available to Mr McGuire, a CJP SNRG case implementation plan that will offer him 70 hours of support and supervision in the community, in the event that he is granted conditional release. The Tribunal has the authority to impose stringent conditions upon Mr McGuire in the event that he is conditionally released, although such conditions will only remain in force the balance of his limiting term. Nevertheless, such a release could be highly structured and, in the event that Mr McGuire breaches any of his conditions, the President of the Tribunal under s 68 of the Mental Health (Forensic Provisions) Act 1990, would be able to order his apprehension, and Mr McGuire could be returned to a correctional centre, if necessary, for the balance of the limiting term. The conditions that the Tribunal could impose could include the components identified by Dr Lennings and Dr O'Dea that would appropriately address the risks that Mr McGuire presents.

The Tribunal does not consider that further time in custody would further advance any of the purposes of sentencing referred to in s 3A of the Crimes (Sentencing and Procedure) Act 1999. The Tribunal notes that Mr Kell, on behalf of the Attorney-General, does not seek to contend otherwise than that Mr McGuire has spent sufficient time in custody. Indeed, the Tribunal's view, further incarceration may seriously inhibit an available rehabilitation pathway that is currently being offered to him by CJP.

It is one of the unfortunate features of the NSW Forensic Mental Health system that there are currently very limited transitional programs or 'step down' options available to persons serving limiting terms who suffer from intellectual disability but not from mental illness. There are no medium secure facilities for such persons, from which they might be permitted to exercise closely monitored and gradually increasing amounts of community leave, in order to test their ability to manage their risks and their own well being in the community prior to release. The criminal justice program is currently the only available transitional pathway for such persons, which would allow them to be in the community with close support appropriate to their assessment needs. Having considered the evidence, and having regard to factors referred to in s 74 of the Mental Health (Forensic Provisions) Act 1990, and to the provisions of s 43 of the Act, and having regard also to the principles and form care and treatment set out in s 68 of the Mental Health Act 2007, the Tribunal is satisfied, and finds, that Mr McGuire has served sufficient time in custody, and is also satisfied that, if Mr McGuire were to be released in accordance with the conditions set out below, the safety of Mr McGuire or any member of the public will not be seriously endangered by Mr McGuire's release. The Tribunal is also satisfied that Mr McGuire's release subject to those conditions, would provide him with care of a less restrictive kind that is appropriate and reasonably available to Mr McGuire."

The Tribunal indicated that, subject to it being satisfied of certain matters, it was presently minded to make an order granting Mr McGuire conditional release. The Tribunal determined that on the evidence currently before it:

"... that the grant of conditional release would not seriously endanger Herbert McGuire or any other member of the public ..."

The conditions to which the Tribunal referred, and which were the subject of its decision were lengthy. In an attempt to summarise those conditions, it appears that they essentially required the following:

(a) accepting the nominated case manager from the CJP and carrying out all reasonable directions of that case manager;

(b) accepting ongoing treatment from Dr Jeremy O'Dea, specialist psychiatrist, including taking such medication as may be prescribed such as testosterone lowering medication, accepting such psychotherapeutic intervention as may be recommended, and also undertaking psychology sessions for the purpose of addressing Mr McGuire's sexual offending;

(c) living in such accommodation as the CJP provided, accepting supervisory visits to the accommodation and testing for drugs and alcohol as may be appropriately administered;

(d) essentially remaining of good behaviour, abstinent from alcohol, illicit drugs, substances, gambling and other inappropriate activities; and

(e) agreeing to be admitted to a mental health facility for assessment or treatment if so advised by a case manager or psychiatrist.

On 20 June 2013, the Tribunal ordered the conditional release of Mr McGuire with effect from 26 August 2013. It set out conditions which accorded with the conditions which it had considered earlier, and which I have summarised above. In its reasons dated 31 July 2013, the Tribunal expressed itself satisfied that the conditional release of Mr McGuire would not seriously endanger his safety or the safety of any members of the public.

It also declared itself satisfied that the conditional release of Mr McGuire would provide him with care of a less restrictive kind than that which he was undergoing in custody, which was appropriate and reasonably available.

On 23 August 2013, the conditions for Mr McGuire's relief were varied to a minor extent, essentially to deal with what had been an unforseen interruption to his prescription for, and taking of, anti-libidinal medication. However, on 23 August 2013, the Tribunal made an order confirming Mr McGuire's release.

On 26 August 2013, Mr McGuire was released into the community. He remains on release.

On 22 October 2013, the team leader of Clinical Services for the CJP and the clinical consultant jointly prepared a report with respect to Mr McGuire. The report was sent to the Tribunal. The report noted that Mr McGuire had been a resident in the identified property of CJP, and he had been the recipient of 70 hours per week of "direct drop in support" from New Horizons, the agency delivering the support on behalf of the CJP. He was listed as a high priority client to receive services from the NSW Department of Housing for suitable and stable permanent accommodation.

He had been the subject of random drug and alcohol testing. That testing had indicated total abstinence. He had commenced attending Alcoholics Anonymous meetings. He had attended at his treating psychiatrist appointments. He had consumed the medication prescribed in accordance with the Tribunal's directions.

At the time of the review, Mr McGuire was taking anti-libidinal medication to manage his inappropriate sexual behaviour and medication which dealt with his alcoholic cravings. The report also noted that he had received additional community-based mental health support from Ms Caroline Hare, a psychologist, on a fortnightly basis.

The report concluded in this way:

"Overall, Mr McGuire has gravitated towards achieving his goals in the community. That is, he has reconnected with family members (sister, aunt and uncle), demonstrated efforts to acquire permanent housing and maintained compliance conditions to ensure he remains offence free. To further enhance his re-integration, his key worker will explore his interests and identify options and areas of education, employment, leisure and cultural activities. Efforts will also be directed to improve his adaptive functioning skills, and decision making. All community access has been supervised by [New Horizons]."

On 5 November 2013, the Tribunal conducted a further review. The case worker from CJP was in attendance and gave the Tribunal an update on Mr McGuire's progress. One matter which was of concern to the Tribunal was what would happen with Mr McGuire after 31 December 2013, with respect to his accommodation. Mr Wu, the CJP case worker, reassured the Tribunal that Mr McGuire would be able to stay at his accommodation provided by the CJP:

"until we really find him an alternative, he is not going to live, like, homeless in the interim, so yeah, he will stay there".

Mr Wu also assured the Tribunal that

"New Horizons service will be available, they'll always continue to be available up until he rejects them, if he - because it's a voluntary service, it's really up to him. It's always going to be there if he needs it basically."

On 10 January 2014, because Mr McGuire continued as a forensic patient, by reason of the interim extension orders made by Judges of this Court, he was reviewed by the Tribunal. The Tribunal made no further order in relation to the care, treatment and control of Mr McGuire and noted that the present order or orders continued in effect. In short, the conditional release of Mr McGuire, together with his residence at the CJP and drop-in support, was to be continued. By the time of this hearing, the number of hours of support per week had been reduced from 70 hours to 35 hours per week. The Tribunal was satisfied that Mr McGuire remained compliant with the terms of his conditional release, and was dealing with stress very well.

It is necessary to record some parts of the Tribunal's determination, as this is the most recent determination prior to the hearing of this present application.

The Tribunal recorded this:

"6. Any plans for a change in relation to care, treatment or control of the person:

Mr McGuire's plans depend in part on the outcome of the Attorney-General's application for an extension of Mr McGuire's forensic order. In his report to the Tribunal dated 5 November 2013, Dr Jeremy O'Dea had indicated that he hoped that Mr McGuire would continue with his psychiatric treatment beyond 31 December 2013. In circumstances where an extension of Mr McGuire's forensic order has been made, at least on an interim basis, the Tribunal's conditions in relation to continuing to seek treatment from Dr O'Dea would continue.

Mr McGuire explained that his preference is to move out of Blacktown to Penrith or St Marys where he has family. He has applied for Department of Housing assistance and hopes to find accommodation at a similar rate to the amount he is paying at the moment ($210 a fortnight). New Horizons has indicated that he will be able to stay in his accommodation until Department of Housing accommodation is available. Mr McGuire's New Horizons support worker said that he gets on well with all staff and is always grateful for any help. He is now having only 35 hours a week drop-in assistance, but is still managing well. Mr McGuire uses the assistance of the New Horizon workers to collect scrap metal for extra cash."

The Tribunal noted that the 35 hours per week of drop-in support meant that Mr McGuire was not monitored between 8pm and 8am, and generally had not left his housing unit during that period of time except to visit a local fast food outlet.

The Tribunal determined that it would hold its next review within six months, although it did not specify a particular date.

The most recent report available with respect to Mr McGuire's progress in the community is that prepared by the CJP on 31 January 2014.

The report discloses that Mr McGuire informed staff of the CJP that he had consumed alcohol in the holiday season, but that was not detected by the breathalyser test. It was noted that Mr McGuire was struggling to trust people in the community so as to form relationships, but had continued to socially interact with his family and those known to him. The report also noted that Mr McGuire was apparently progressing satisfactorily, he was to undertake a random breath test every week, and a urine drug screen test every fortnight, and was to continue to receive 35 hours support per week.

The only other matter which requires to be noted in more recent developments is that on a drug test undertaken on 30 January 2014, Mr McGuire was found to have tested positive for cannabis, although on a urine test undertaken on 13 February 2014, the results were negative for cannabis.

Ms Martin, Mr McGuire's sister, disclosed in evidence to the Court that Mr McGuire has regularly visited her and her husband at their home since release into the community. On Christmas Day she shared a glass of wine with Mr McGuire at lunch. She was unaware that consumption of alcohol was a breach of Mr McGuire's conditions. She has expressed the view that since Mr McGuire's return to the community, his behaviour has been entirely acceptable.

Expert Assessments

On 12 December 2013, for the reasons which he then expressed, Davies J ordered that Mr McGuire be examined and assessed by a psychiatrist, Dr Andrew Ellis, and a psychologist, Professor Susan Hayes, and that their reports of that examination and assessment be provided to the Court. His Honour's reasons are to be found at: Attorney-General of NSW v McGuire [2013] NSWSC 1862.

As well as providing reports, both Dr Ellis and Professor Hayes gave evidence before the Court at the final hearing.

Dr Ellis set out the results of his examination and his opinion in a report dated 13 January 2014, but filed in Court on 11 February 2014.

Dr Ellis concluded that Mr McGuire met the criteria contained within the Diagnostic and Statistical Manual of Mental Disorders - 5th Edition ("DSM-5") for intellectual disability. Of this diagnosis, he said of Mr McGuire that his level of function showed consistent requirements for assistance in literacy, life skills, problem solving and emotional regulation. He also identified an alcohol use disorder, but noted that in Mr McGuire's partially controlled environment that the disorder was in remission.

He said that Mr McGuire had been assessed at various times as suffering from a personality disorder and that there was sufficient information to conclude that he had adult anti-social personality traits.

Importantly, he expressed this conclusion:

"There is insufficient evidence to conclude a paraphilia or psycho-sexual disorder. There have been no observations in custody, or on release, of pre-occupation with sexual coercion. It does not report this. His sex offences occurred on one occasion and of a type associated with intoxication and impulsive opportunity."

Dr Ellis concurred with the scoring on the STATIC 99-R instrument which placed Mr McGuire into the moderate-high risk category for sexual re-offence. Dr Ellis noted the number of ongoing risk facts for future offending by Mr McGuire. He said this:

"Identified risk factors are poor coping skills arising from his intellectual disability, lack of stable relationships, impulsivity, historical substance abuse, anti-social personality traits, his history of offending, including whilst on conditional liberty, negative attitudes towards his offences and authority, childhood maladjustment, employment problems, poor prior engagement with rehabilitation. Risk factors specific to sexual offending include targeting a stranger, using physical force during the assault and a history of general offending. All of these factors may change over time, although some have a more dynamic quality to them. Most dynamic change in risk relates to effective treatment of underlying conditions and support structures able to be put in place."

Interestingly, Dr Ellis noted that the most prominent risk factor for sexual re-offending was deviant sexual arousal which had not been identified in any clinical evaluation or review of Mr McGuire. He also noted that increasing age, Mr McGuire is now over 40, is associated with less general criminal behaviour and specifically less sexual offending.

Dr Ellis noted that Mr McGuire did not have a diagnosis of paraphilia, and raised a question as to the appropriateness of anti-libidinal medication.

Dr Ellis noted that Mr McGuire's rehabilitation plan was extensive and individualised, which provided for robust levels of support in decision making, planning, routine activities, accommodation and the moderation of negative effects. He also noted that the monitoring for alcohol and illicit drug consumption provided effective motivation for abstinence.

Of interest is that Dr Ellis noted some difficulties in dealing with intellectually disabled individuals who are forensic patients. He said this:

"In practical terms, this case highlights structural deficits in service provision for forensic patients. Although the recall power could be used to direct to a therapeutic environment like a hospital, as Mr McGuire is not a patient of a health service, the only real alternative in case of a breach of conditions is a return to prison. This would not serve any rehabilitative endeavour, and may in turn increase longer term risk (while containing immediate risks). Being sent to prison for less than a criminal act would jeopardise his current progress by severing ties with his treatment providers, family and accommodation. His attitudes to rehabilitative services would likely worsen, feeling unfairly treated. He would not likely appreciate the nuances of consequence in breaching an order, and concretely assume he was being punished. It would be exposed to pro-criminal associates. He would initially be housed in mainstream prison units with no access to programs. He would likely take some length of time to re-coordinate his care. There would be limited utility in risk management, and no purpose for rehabilitation with this approach.

Rehabilitation and community safety are not mutually incompatible goals. If he were a patient of a health service, the recall power may be used more efficiently in containing an immediate risk in a hospital environment, and better coordination back to service provision in the community. Being a patient of a health service may give better access to needed health interventions around substance use, and should the need arise, other psycho-tropic medication. This would give rise to a rehabilitative aspect to the recall power."

Dr Ellis concluded in this way:

"Overall, continued forensic status would provide limited improvements in clinical risk management over guardianship with significant potential restriction in terms of recall to prison. Recall to prison is unlikely to be of benefit, other than in prompting participation in programs. This type of participation is not of benefit long-term. This level of restriction would be mitigated somewhat by a collaborative health/disability approach to his management, which would have greater rehabilitative and safety provisions than simply extending the length of his current order."

Dr Ellis suggested that any extension order be limited to a period of two years "... as this is the period after release from prison where re-offending is most likely to occur". Dr Ellis also thought that a better assessment of Mr McGuire's participation in programs and re-integration into the community would be able to be judged at that time.

Professor Hayes gave evidence both by a lengthy and detailed report filed on 14 February 2014, and orally in Court.

Professor Hayes is a professor of behavioural sciences in medicine at the University of Sydney. She is an eminently well-qualified and experienced psychologist. She was also able to engage in a very lengthy assessment with Mr McGuire. Her consultation with him lasted about one and a half hours.

Professor Hayes assessed Mr McGuire's intelligence. She also had regard to the assessment which had been conducted by Dr Susan Pullman in 2008. At that time, Mr McGuire's full scale IQ was 67, which placed him in the mildly intellectually disabled category.

On the Kaufman Brief Intelligence Test 2nd Edition, Mr McGuire was assessed as having a functional age equivalent on verbal skills of a 10 year old, and on non-verbal skills of a person who is 10 years and 4 months old. These scores are similar to an individual in Year 4 of primary school.

On the Vineland Adaptive Behaviour Scale 2nd Edition, on communication skills, Mr McGuire had a result indicative of an age equivalent of about 8 years to 8 years and 10 months old; on daily living skills, his age equivalent ranged from 11 years and 6 months to 19 years with a mid-point at about 15 years and 3 months; and on socialisation skills, his equivalent age range was from 8 years and 5 months to 12 years and 9 months, with a mid-point at about 10 years.

Professor Hayes summarised this result in this way:

"The results for adaptive behaviour place Mr McGuire in the range of mild intellectual disability at a level lower than 99% of his age peers. The area of greatest deficit is communication skills where his results are in the range of moderate intellectual disability, consistent with his inability to understand court processes and unfitness to be tried.

His functional age equivalent scores are all at levels well below his chronological age, especially all areas of communication and interpersonal relationships."

Professors Hayes then undertook a risk assessment which included assessing Mr McGuire on static and dynamic factors which have been found to correlate significantly with re-offending by sex offenders with intellectual disabilities. After reviewing an extensive number of risk factors, Professor Hayes concluded that Mr McGuire presented with dynamic risk factors of low self-esteem, lack of skills of appropriate assertiveness, anti-social attitude, allowances made by staff and possibly some level of staff complacency.

She also noted the following:

"On the other hand, risk management strategies involving the current conditions under which Mr McGuire is living, indicate some improvements in treatment motivation, establishment of a daily routine, attendance at treatment, response to treatment, acceptance of responsibility for the offences, and motivation to adhere to the conditions."

Professor Hayes agreed that on the STATIC-99 risk assessment tool, Mr McGuire was in the category of moderate high risk. She however noted that the STATIC-99 instrument did not include populations of individuals with intellectual disabilities. The STATIC-2002 R instrument had a small sample of sex offenders with intellectual disabilities. On that instrument Mr McGuire was rated as being in the high-risk category.

Professor Hayes also assessed Mr McGuire on the ARMADILO-S instrument. She concluded that Mr McGuire presented an overall convergent risk at the moderate level. She identified some stable client factors and protective environmental factors which contributed to a decrease in the risk with which Mr McGuire presented. She also noted risk factors in the future which included future treatment compliance, impulsivity and limited emotional coping skills, previous relationship difficulties, previous substance abuse especially alcohol, and a history of being the victim of physical and child sexual abuse.

Professor Hayes concluded with respect to the DSM-5, that Mr McGuire's condition fitted three sets of diagnostic criteria, namely:

(a) intellectual disability;

(b) antisocial personality disorder; and

Professor Hayes was then asked to address the question of whether Mr McGuire posed a risk of causing serious harm to others, which is the test identified in the MHFP Act.

She expressed her conclusion in this way:

"Mr McGuire poses a moderate to high risk of causing serious harm to others, according to risk assessment instruments which mainly take into account historic or static factors. The risk of causing harm to others can be significantly reduced, however, by risk management strategies, some of which have been implemented above, and others which would be recommended. Some protective factors are present, as described above."

Professor Hayes noted that whilst Mr McGuire posed a risk of causing serious harm to others, she was not satisfied that there was any certainty that he would do so, particularly if risk management strategies were implemented.

Professor Hayes summarised the risk factors which contributed to Mr McGuire's moderate to high risk of causing serious harm to others and/or re-offending as including, in addition to the matters described above, impulsivity, limited emotional coping skills, previous relationship difficulties and significantly, the lack of offence specific treatment appropriate for a person of intellectual disability and communication deficits (other than medication), apparent lack of appropriate alcohol and other drugs programs and an apparent lack of an appropriate anger treatment program.

Professor Hayes considered that the likelihood of re-offending would be reduced by Mr McGuire continuing to receive support and supervision, participating in offence specific interventions, including a sex offender program for offenders with intellectual disability; participating in interventions such as cognitive behavioural therapy designed to address some of the features of his anti-social personality disorder, particularly aggression and impulsivity, and as well participation in alcohol and other drug programs.

She also noted that if Mr McGuire remained abstinent from alcohol and other illicit substances, and continued with his prescribed medication, this would have a significant effect in reducing his risk factors.

Professor Hayes expressed the view that there may be less restrictive alternative treatment for Mr McGuire in due course, once he had been able to be assisted by the establishment and maintenance of the various treatment interventions which she had described, and to which I have made reference.

Ultimately, Professor Hayes was asked to consider an appropriate period for an extension order. Of that, she said this:

"If an extension order were to be made, there are two scenarios which need to be considered. The first would be an extension order for the period of time needed to address the uncertainties in Mr McGuire's current conditions, and to ensure that substance abuse and sex offending programs were available to the client.

The second scenario to be considered would be an extension order for the period of time that Mr McGuire would engage in this programs: as indicated by the research, a period of at least 12 months and preferably 24 months, in a treatment program yields the best outcomes for sex offenders with intellectual disabilities. If Mr McGuire consented to participation and complied with the program requirements, an extension order may not be required for that duration, but it would be important to ascertain that he was willing to continue to engage in treatment."

In a supplementary report, filed on 3 March 2014, Professor Hayes identified a possible program which could be provided to Mr McGuire which was offence specific and took account of his intellectual disabilities. That would be a sex offender program modelled on a program developed by Professor William Lindsay from the University of Abertay in Scotland.

In their evidence before the Court, both experts largely adhered to their written opinions and gave some explanations of them.

Dr Ellis was asked about the likely period of time it would take for Mr McGuire to have a significant reduction in the level of risk which he presently poses. He gave this answer:

"I think if you had detailed information about what rehabilitative endeavours were going to be undertaken, you could have a better estimate than you do currently. I have made an estimate based on the, I mean, I think one thing is, in terms of rehabilitation with people with intellectual disabilities, it generally takes longer. That any kind of counselling intervention that is delivered needs to be of a longer duration with more repetition and perhaps shorter, shorter sessions themselves but extend it over time. Generally, the programs that have been done are of the order of two years. The ones, ... that are shorter than that, tend to be less effective."

Professor Hayes also gave evidence on the subject of the length of time for which it would be appropriate for an extension order. She said this:

"A: Let's not beat around the bush here, this man has committed a sex offence and therefore he needs a targeted program. You can't just expect him to give up sex offending because he gives up alcohol. So you need a specific and targeted program, and also his other offences in the past, and to some extent the sex offence, appear to involve aggressive behaviour and so therefore you need anger management. So the uncertainty that he hasn't got those programs in place and how are they going to be put in place. ...

Q: How long does an anger management program typically last.

A: Well, typically it lasts for a brief period of time, two or three months. Professor Lindsay's work in Abertay has demonstrated that quite clearly people with intellectual disabilities require at least 12 months, and for maximum benefit 24 months, in a program, and those are people that he has been seeing who have been on parole in the local area and their parole has often been set at that period of time so that they can benefit from the program."

Professor Hayes also said that with the programs to which she was referring, it would be likely that an assessment could be made of progress in a period between three and six months after the commencement of the program.

Discernment

In keeping with the authorities and principles to which I have earlier referred, it is necessary to consider the issues which arise.

The first issue which needs to be considered, is whether I am satisfied to the requisite degree, as required by cl 2 of Sch 1 of the MHFP Act, that Mr McGuire poses "... [a] risk of causing serious harm to others if he ceases being a forensic patient".

The second issue is whether Mr McGuire poses an "unacceptable risk". As I have earlier explained, what is involved is a balancing exercise between Mr McGuire conducting himself in a way which may cause serious harm to others, and the likelihood of that risk coming to fruition on the one hand, and the serious consequences for Mr McGuire of being subject to the supervision, including the imposition of significant conditions, by the Tribunal on the other hand.

It is necessary to bear in mind that in considering this question, before coming to a conclusion that Mr McGuire does pose such an unacceptable risk, I have to be satisfied to a high degree of probability. The phrase "high degree of probability" is, on the authorities, a higher standard of proof than the civil standard, but less than the criminal standard.

As well, I need to bear in mind that cl 2(2) of Sch 1 of the MHFP Act notes that in considering whether there is an unacceptable risk of causing serious harm, the Court is not required to determine that it is more likely than not that Mr McGuire will cause serious harm before concluding that there is an unacceptable risk of causing serious harm to others.

The third issue, assuming the first two are established, is whether on the evidence, there is another less restrictive means available for dealing with the risk posed, than making an extension order, and continuing Mr McGuire's status as a forensic patient.

The fourth issue which arises only if I am satisfied that there is no other less restrictive means for managing the risk of Mr McGuire, is the appropriate period for which an extension order ought be made?

The evidence discloses that the principal underlying issue with respect to the existence of a risk of causing serious harm to others is that Mr McGuire is a mildly intellectually disabled individual who presents with a significant number of risk factors which require lengthy one-on-one treatment to minimise the risk of such harming behaviour in the future. The need for this treatment is combined with the need for him to stay abstinent from alcohol and to avoid illicit drug usage, because the effects of alcohol and illicit drugs is to reduce any inhibition, and thereby increase, his tendency towards impulsive conduct, including sexual offending and violence.

The prominent feature of Mr McGuire's behaviour whilst in custody, and whilst in the community subject to the supervision of the Tribunal, is that with one or two exceptions, which I regard as not significant and merely idiosyncratically aberrant, Mr McGuire has survived without causing any serious harm to others in an environment which is structured, and in which he has been given significant assistance and support. The other feature which is apparent from his history whilst in custody is that, with the exception of nine sessions of psychotherapy with Ms Caroline Hare, Mr McGuire has not had any suitable treatment provided to him which addressed the specific features of his conduct, other than the prescription of specific medication and the requirement, supported by random testing, that he refrain from alcohol and illicit drugs.

Accordingly, the evidence reveals that although Mr McGuire has not whilst being in custody or in the community under the supervision of the Tribunal, caused anyone serious harm, or indeed any harm, his behaviour is rationally explained by the structured environment, and extensive supervision and support which he has received.

The inadequacy of the availability of suitable treatment programs whilst he has been in custody, particularly coupled with his intellectual disability, has meant that the risk factors and in particular Mr McGuire's impulsivity, difficulty with interpersonal relationships, and what can appear at times to be oppositional behaviour, remain unmitigated because of the absence of effective, targeted treatment programs. Some progress has been made since release into the community, but there is little confidence amongst the experts that sufficient progress has been made such as would justify a conclusion that there is little, or no, risk of Mr McGuire causing serious harm to others if he is not a forensic patient.

I accept the evidence of both Dr Ellis and Professor Hayes that, assessed against various statistical instruments, Mr McGuire is at moderate to high risk of causing serious harm to others. There was no evidence to the contrary. I accept further that such risks, whilst untreated and unmitigated, will continue. Accordingly, I am satisfied to a high degree of probability about the first issue, namely, Mr McGuire presents a risk of causing serious harm to others. That risk is a moderate to high one.

I turn then to consider the second and more difficult issue of whether that risk is an unacceptable one.

In opposing the extension order being made, senior counsel for Mr McGuire submits that any remaining risk is not an unacceptable one, when balanced with the consequences to a forensic patient such as Mr McGuire, who has an intellectual disability rather than a mental illness, which are particularly onerous, principally because a breach of a condition may result in a revocation of the conditional release order by the Tribunal, which would lead to Mr McGuire's detention in a prison rather than a mental health facility. Senior counsel for Mr McGuire points to the clear, and unequivocal, opinion of Dr Ellis that detention in a correctional centre is contrary to Mr McGuire's best interests, antithetical to his rehabilitation and would be a harsh punishment in circumstances where Mr McGuire had not committed any offence.

Senior counsel for Mr McGuire points to the fact that having regard to what Mr Wu told the Tribunal, and to the contents of the exhibit which outlines the detail of the CJP, Mr McGuire continues to qualify for assistance under the CJP and there is no reason to believe that he would not continue to accept such support and assistance from the program as is presently in existence.

The Attorney-General in submissions in response identifies these features as pointing to a finding that the risk is an unacceptable one: the fact that Mr McGuire has not had any of his risk factors mitigated; the seriousness of his past offending; if an extension order is not made, the absence of any compulsion with respect to prescription medication, abstinence from alcohol and abstinence from illicit drugs, and his acknowledged lack of independent living skills. The Attorney-General submits that these factors suggest that there is a very real prospect that Mr McGuire would offend again in a way which caused serious harm to others. The Attorney-General accepts that whilst supervision by the Tribunal does have an adverse effect on the liberty of an individual, having regard to what has occurred in the past with the Tribunal's supervision, the Court ought accept that such restriction on Mr McGuire's liberty as is involved in an extension order, is not an undue restriction for him and when compared with the protection of the community, does not mean that there is other than an unacceptable risk.

I am satisfied to a high degree of probability that on all of the evidence, that Mr McGuire poses an unacceptable risk of causing serious harm to others if he ceases being a forensic patient.

As I have said, I accept the categorisation of Mr McGuire referred to by Professor Hayes and Dr Ellis, that he is in a moderate to high-risk category when assessed by reference to the various statistical instruments. They concluded that Mr McGuire posed a moderate to high risk of causing serious to harm to others. I accept this assessment, which was not actually challenged by senior counsel for Mr McGuire. I also accept their evidence that Mr McGuire's risk factors for engaging in conduct of a kind which would cause serious harm, have, in large part, not been mitigated by any appropriate treatment. I also accept that abstinence from alcohol and illicit drug usage, together with the consumption of anti-libidinal and other prescription medication is necessary in order to reduce the moderate to high risk of causing serious harm to others, in particular by engaging in impulsive conduct including sexual re-offending.

Untreated, and un-medicated, the risk which Mr McGuire poses to the community of causing serious harm is entirely unacceptable.

Of course, before reaching a conclusion in accordance with the legislation, I have to have regard to, in a balancing exercise, what will happen to Mr McGuire if an extension order is made, and the extent of any negative impact on Mr McGuire of being subject to the supervision of the Tribunal.

Unlike other cases under similar legislation, the Court in this case is not confronted with a proffered set of conditions to which an offender may be required to be subject. The only balancing consideration is that insofar as Mr McGuire continues to be a forensic patient, he will be subject to reviews at approximately six month intervals by the Tribunal, and the imposition of such conditions as the Tribunal thinks appropriate. If Mr McGuire does not comply with those conditions, the President of the Tribunal may revoke his conditional liberty and confine him to custody. The Tribunal may also alter or amend any of the conditions which it has imposed, including by increasing the supervision to which Mr McGuire may be subject, or by placing significant restrictions on his freedom to engage in the community, including where he can live and work, with whom he can associate and by whom, and to what extent he is to be supervised. .

However, the Tribunal has not yet determined what conditions may be appropriate for Mr McGuire for the entirety of any period that he would continue as a forensic patient. All that the Court presently knows is the nature of the conditions to which Mr McGuire is presently subject, which continue whilst he is the subject of an interim order. The Court is entitled to expect that a Tribunal will conduct a review of the conditions in light of any extension order which may be made.

The Court also knows that the Tribunal is a specialist body constituted under s 140 of the Mental Health Act and having the functions conferred on it by statute. The Tribunal consists of lawyers, psychiatrists and a group of lay members nominated by various interest groups. In the hearings involving Mr McGuire, the Tribunal has been presided over by a senior and very experienced lawyer. More recently, the current President of the Tribunal, Mr Dan Howard SC has presided and there has been a senior psychiatrist as a member of the panel, as well as the community member.

My observation based on the evidence in this case, of the Tribunal's interactions with Mr McGuire, which I have carefully read, is that the Tribunal has gone about its work in a highly professional, thorough and sensitive manner. It has paid careful attention to Mr McGuire's progress whilst in custody and has been particularly conscious of the need to maintain the least restrictive environment in which he can be treated and maintained. Although there has been one apparent breach of conditions brought to the Tribunal's attention, that was not dealt with by way of confining Mr McGuire to custody, rather it was dealt with by of an adjustment of conditions so as to enable him to proceed to live in the community.

Of course, if there is a serious breach of any of Mr McGuire's conditions it is open to the Tribunal to have him confined in custody. However, the point to be noted is that confinement to custody does not appear to be the automatic response by the Tribunal in the event of any breach of any condition.

The Court has no reason to think that the Tribunal would engage, when conducting any of the reviews required if Mr McGuire was to remain a forensic patient, in conduct which was in any way inappropriate or not designed to reflect the principle that the community needs to be protected and, as well, that Mr McGuire needs to be rehabilitated; and that such treatment as Mr McGuire is required to undertake is done in a way which involves the least restrictive means available, and that any restrictions on his liberty are not inappropriately imposed or continued.

Although I accept that making an extension order involves a continuing detriment to Mr McGuire and his right to be at liberty, having regard to the risk which exists of his causing serious harm to others, I am not satisfied that such supervision and conditions as may be imposed by the Tribunal are unduly onerous. This means that in the conduct of the balancing exercise, I am persuaded to a high degree of probability that I should find that there is an unacceptable risk of Mr McGuire causing serious harm to others if he does not remain as a forensic patient.

The next issue is whether I am satisfied to the requisite degree that the unacceptable risk cannot be adequately managed by less restrictive means.

Senior counsel for Mr McGuire submits that Mr McGuire's risk of causing serious harm to others can be adequately managed by the existing guardianship order together with Mr McGuire's continued participation in the CJP, including accepting the support provided by the New Horizons service, and undertaking and completing such treatment interventions as are provided.

Necessarily, if Mr McGuire was not a forensic patient, there would be no enforceable obligation on him to take the presently prescribed medication, or to agree to be abstinent from alcohol or illicit drugs, or subject himself to testing to ascertain the state of his abstinence from alcohol or illicit drugs. As well, whilst he may be provided with treatment, there would be no compulsion upon him to undertake that treatment.

I am not satisfied that such less restrictive means would be an adequate way of managing the risk which Mr McGuire poses. In short, to mitigate the unacceptable risk, it is essential that Mr McGuire be the subject of ongoing treatment programs and that he be completely abstinent from alcohol and illicit drugs.

That simply cannot be secured by the alternative proposed, namely, of having a guardian appointed and his voluntary participation in the CJP, whilst Mr McGuire's character traits remain as they are.

Importantly, neither of the experts expressed any confidence that Mr McGuire would, in the absence of compulsion, undertake his treatments or continue to regularly take his medication.

On this issue, I did not have the benefit of any evidence at all from Mr McGuire. I do not draw any inference adverse to Mr McGuire because he did not give evidence. However, the absence of such evidence means that I do not have any direct statement of his intention to voluntarily comply with the suggested treatment and other features of the CJP.

On the whole of the evidence and, in particular, having regard to Mr McGuire's intellectual disability, I cannot be satisfied that Mr McGuire would voluntarily attend at, and participate in, any treatment provided. Nor am I satisfied that without the supervision provided by the CJP, and overseen by the Tribunal, and without the possibility of changed conditions which would reward him for compliance and improvement or conversely by punishing him, help him to understand the importance of engaging with the CJP, Mr McGuire's risk of causing serious harm to others would be an acceptable one.

It follows that I am appropriately satisfied that there is no less restrictive means to address the risk of Mr McGuire causing serious harm to others, other than for the Court to make an extension order.

The fourth issue is to identify and fix the appropriate period for the extension order. Senior counsel for Mr McGuire submits that as a matter of principle, the order should not be made for any longer than the minimum time necessary to enable the risk to be mitigated. I accept this as the appropriate principled approach in this case.

The Attorney-General submits that a period of two and a half years is the appropriate period for an extension order. That figure is arrived at by relying upon the outer period of two years nominated by Professor Hayes as being a period within which any treatment programs may be completed, and then adding to it a period of six months which the Attorney-General argues is not an unreasonable period to enable the Tribunal to identify the relevant treatment programs, identify a person who can provide the relevant treatment programs, and to commence those programs.

On the other hand, senior counsel for Mr McGuire submits a period of six months would be all that is necessary, because by that stage it is likely that an appropriate treatment program would be identified and then the Court would be in a position to know with some greater certainty, what the length of an extension order ought be.

Because this is a case in which there is no identified program for treatment which Mr McGuire is presently undertaking, there is necessarily some uncertainty about the appropriate length of the order. Much also depends upon how Mr McGuire manages any intervention, and manages his life in the community. Clearly, he is doing so quite well at the moment because the intensity of supervision has been reduced by one half.

It seems to me that the length of time must be sufficient to enable firstly, the identification of a suitable program and a suitable provider, and for that program (or programs) to have been commenced and to have been in existence for a sufficient period of time to enable a reasonable assessment to be made.

I accept the opinion of Professor Hayes that progress ought be able to be assessed in such programs between three to six months.

The next scheduled review by the Tribunal of Mr McGuire is in July. However, if an extension order is made, I would expect the Tribunal to schedule a review promptly, upon the making of the order, so that the nature of treatment and a possible provider could be attempted to be identified and the program commenced as soon as possible.

Hopefully, a program may be able to be started by August or September and Mr McGuire's progress assessed six months after that.

As well, a period to about then would provide a reasonable time to observe whether Mr McGuire has the capacity to abstain from alcohol and to be compliant with prescription medication. Such a period would also cover the bulk of the period identified by Dr Ellis as being the time within which people released from custody are likely to re-offend.

Accordingly, I have concluded that the appropriate time for an extension order is 12 months.

It should be understood that I regard this as the minimum time necessary to enable Mr McGuire to commence and progress along the path of reducing his unacceptable risk. I do not, by concluding that this is the appropriate time for a supervision order, express any view as to whether by the end of the period Mr McGuire or will not require a further extension order. That will be a matter that needs to be assessed at that point in time.

Order

I make the following order:

(1) Order pursuant to cl 1 of Schedule 1 of the Mental Health (Forensic Provisions) Act 1990 that the status of Mr Herbert McGuire as a forensic patient be extended up to and including 21 March 2015.

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Decision last updated: 21 March 2014

Medium Neutral Citation:	Attorney-General of NSW v McGuire (No.2) [2014] NSWSC 288
Hearing dates:	04/03/2014, 05/03/2014
Decision date:	21 March 2014
Jurisdiction:	Common Law
Before:	Garling J
Decision:	Order pursuant to clause 1 of Schedule 1 of the Mental Health (Forensic Provisions) Act 1990 that the status of Mr Herbert McGuire as a forensic patient be extended up to and including 21 March 2015.
Catchwords:	CRIMINAL - defendant charged with multiple sexual offences - found unfit to plead - forensic patient - limiting term of five years - whether after expiry of limiting term extension order as a forensic patient should be made CIVIL - Mental Health (Forensic Provisions) Act 1900 (NSW) - forensic patient - limiting term expired - multiple interim extension orders made - final hearing - whether final order should be made to extend status as a forensic patient - whether poses an "unacceptable risk" of causing serious harm to others - balancing exercise - deprivation of liberty - protection of community - other less restrictive means - period necessary to enable assessment of progress STATUTORY INTERPRETATION - Mental Health (Forensic Provisions) Act 1900 (NSW) - Schedule 1 - "unacceptable risk of causing serious harm" - "other less restrictive means"
Legislation Cited:	Crimes (High Risk Offenders) Act 2006 Crimes Act 1900 Guardianship Act 1987 Mental Health (Forensic Provisions) Act 1990 Mental Health Act 2007
Cases Cited:	Attorney-General of NSW v McGuire [2013] NSWSC 1862 Cornwall v Attorney-General for NSW [2007] NSWCA 374 Director of Public Prosecutions (WA) v GTR [2008] WASCA 187; (2008) 38 WAR 307 NSW v Richardson (No.2) [2011] NSWSC 276 State of NSW v Thomas [2011] NSWSC 118 R v McGuire [2009] NSWDC 245 Director of Public Prosecutions (WA) v Williams [2007] WASCA 206; (2007) 35 WAR 297
Texts Cited:	Diagnostic and Statistical Manual of Mental Disorders - 5th Edition
Category:	Principal judgment
Parties:	Attorney-General of NSW (P) Herbert Robert McGuire (D)
Representation:	Counsel: W Abraham QC / Ms S Callan (P) M Ierace SC (D) Solicitors: Crown Solicitor (P) Legal Aid (NSW) (D)
File Number(s):	2013/369832
Publication restriction:	Victim's name suppressed