Attorney General of NSW v Williams (by his tutor Ainsworth) (Final)

[2023] NSWSC 426

Supreme Court

New South Wales

Medium Neutral Citation:

Attorney General of NSW v Williams (by his tutor Ainsworth) (Final) [2023] NSWSC 426

Hearing dates:

17 April 2023

Date of orders:

26 April 2023

Decision date:

26 April 2023

Jurisdiction:

Common Law

Before:

Chen J

Decision:

(1) Order, pursuant to ss 121 and 128 of the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW), that the defendant be subject to an order for the extension of his status as a forensic patient for a period of 18 months from 29 April 2023.

(2)   Direct that the Registrar of the Court notify the Mental Health Review Tribunal of the making of the above extension order.

Catchwords:

MENTAL HEALTH – forensic patient – extension order sought for a period of two years as forensic patient – whether defendant poses unacceptable risk of causing serious harm to others – whether the risk can be adequately managed by other less restrictive means – extension granted

Legislation Cited:

Crimes Act 1900 (NSW)

Crimes (High Risk Offenders) Act NSW (2006)

Crimes (Sentencing Procedure) Act 1999 (NSW)

Interpretation Act 1987 (NSW)

Mental Health Act 2007 (NSW)

Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW)

Mental Health (Forensic Provisions) Act 1990 (NSW)

Cases Cited:

Attorney General for New South Wales v Bragg (Preliminary) [2021] NSWSC 439

Attorney General for New South Wales v Haines (Preliminary) [2022] NSWSC 458

Attorney General for New South Wales v Kapeen [2017] NSWSC 685

Attorney General for New South Wales v Mulipola(Final) [2021] NSWSC 1041

Attorney General for the State of New South Wales v Boyce (No.2) [2017] NSWSC 648

Attorney General for the State of New South Wales v Steadman [2016] NSWSC 174

Attorney General of New South Wales v Beryalay(by his tutor Johnson) (Final) [2022] NSWSC 1274

Attorney General of New South Wales v Beryalay by his tutor Thompson (Preliminary) [2019] NSWSC 252

Attorney General of New South Wales v Beryalay by his tutor Thompson (Final) [2019] NSWSC 816

Attorney General of New South Wales v Kereopa(No 2) [2017] NSWSC 928

Attorney General of New South Wales v Vakapora(Preliminary) [2020] NSWSC 1701

Attorney General of NSW v Williams (by his tutor Ainsworth) (Preliminary) [2023] NSWSC 1

Attorney-General of New South Walesv Williams [2021] NSWSC 1362

Attorney-General of New South Wales v Williams [2022] NSWSC 124

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

Cornwall v Attorney General for New South Wales [2007] NSWCA 374

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

Minister for Mental Health v Paciocco [2017] NSWSC 4

Parker v Comptroller General of Customs (2009) 252 ALR 619; [2009] HCA 7

State of New South Wales v Chaplin [2019] NSWSC 471

State of New South Wales v Devaney (Final) [2019] NSWSC 1551

State of New South Wales v French (Final) [2017] NSWSC 1475

State of New South Wales v Golding (Preliminary) [2018] NSWSC 1041

State of New South Wales v Kamm(Final) [2016] NSWSC 1

State of New South Wales v Simcock (Final) [2016] NSWSC 1805

State of New South Wales v Sleeman(Preliminary) [2018] NSWSC 562

Category:

Principal judgment

Parties:

Attorney General of New South Wales (plaintiff)
Maurice Percy Williams (defendant)

Representation:

Counsel:
Mr K Ng (plaintiff)
Ms C Goodhand (defendant)

Solicitors:
Crown Solicitor’s Office (plaintiff)
Legal Aid NSW (defendant)

File Number(s):

2022/286563

Publication restriction:

Nil

JUDGMENT

1. By summons filed on 23 September 2022, the Attorney General of New South Wales (‘the plaintiff’) seeks an order, by way of final relief, pursuant to ss 121, 127 and 128 of the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW) (‘the MHCIFP Act’) against Mr Maurice Percy Williams (‘the defendant’), who appears by his tutor, Dr Frank Ainsworth, to extend his status as a forensic patient for a period of two years.

2. The plaintiff read, in support of the final orders, an affidavit of Melinda Smith affirmed 23 September 2022 and affidavits of Tina Wu affirmed 18 November 2022, 29 March and 12 April 2023. The defendant relied upon an affidavit of Suzanne Russell affirmed 11 April 2023.

3. I will briefly explain the background circumstances giving rise to how and why the above orders came to be made.

4. All references to legislative provisions in these reasons are, unless otherwise specified, references to the MHCIFP Act.

Procedural history and background

The defendant

5. The defendant is an Aboriginal man born on 9 March 1994 (or 9 March 1995 – the evidence does not clearly identify which is the correct date). He has a history of illiteracy, a mild intellectual disability, and he has been diagnosed as suffering from a substance use disorder and a personality disorder with antisocial traits. He has a varied and extensive criminal history.

The index offence

6. By indictment presented on 20 August 2019, the defendant was charged with one offence of aggravated break and enter premises with intent to commit a serious indictable offence, namely larceny, contrary to s 112(2) of the Crimes Act 1900 (NSW). The circumstance of aggravation was alleged to be the defendant’s knowledge that a person was inside the premises at the time of the defendant’s entry. The maximum penalty for the offence was imprisonment for 20 years, and a standard non-parole period of 5 years imprisonment.

7. The facts underlying the offending conduct were set out in the fitness judgment of McLennan SC DCJ delivered 28 February 2020 and the special hearing judgment delivered 18 March 2021, from which the following is drawn.

8. The allegations were that, sometime after 6pm on 20 September 2018, the defendant entered the home of the victim from a balcony at the front of the house: the defendant opened a glass sliding door that was closed, but not locked. The victim, who was then aged 76 years old, was at home with her husband. They were speaking on the telephone in their kitchen area. Once inside, the defendant entered the victim’s bedroom and stole the victim’s handbag and her jewellery box.

9. Thereafter, the defendant left the premises and went to a unit where he was staying. He was arrested the following morning, and found to be in possession of some of the items. The defendant made admissions to various elements of the offence. The defendant’s fingerprints were found on a tin in the bedroom of the victim’s home, and also on a railing on the front porch leading to the point of entry. McLennan SC DCJ found that the defendant was aware of the presence of the victim, and her husband, once he had gained access to the premises, which was a circumstance of aggravation.

10. The matter proceeded to a special hearing, under s 21 of the Mental Health Forensic ProvisionsAct1990 (NSW) (‘MHFP Act’). McLennan SC DCJ made a qualified finding of guilt. On 7 May 2021 McLennan SC DCJ sentenced the defendant to a total limiting term of 2 years and 5 months – to commence on 6 June 2019, and expire on 5 November 2021. The sentence was backdated to take account of the time that the defendant had already served in custody.

The earlier extension order

11. The defendant’s status as a forensic patient was extended, on 28 October 2021, by orders made by Davies J: Attorney-General of New South Wales v Williams [2021] NSWSC 1362.

12. Thereafter, final orders were made by Garling J, on 31 January 2022, that the defendant’s status as a forensic patient be extended for a period of 12 months: Attorney-General of New South Wales v Williams [2022] NSWSC 124. The order made by Garling J thus expired on 30 January 2023.

The 3 January 2021 “offences”

13. It is necessary to make mention of three offences that were alleged to have occurred on 3 January 2021: the defendant is alleged to have committed an offence of armed robbery causing wounding; armed with intent to commit an indictable offence; and reckless wounding in company. The essential allegation was that, on 3 January 2021 at Casino, the defendant robbed the victim whilst being then armed with a machete.

14. At the time that the matter was listed for the final hearing in relation to the earlier extension order, the defendant had been charged and bail refused.

15. It appears that a special hearing was conducted on 5 December 2022. The precise orders made at that hearing were not in evidence (nor were the reasons for judgment of Hunt DCJ – who heard the matter – or any other material relating to that hearing), but the plaintiff accepted that the defendant “was discharged because there wasn’t found to be enough evidence to prove beyond doubt that [the defendant] was involved in the incident at all” (T49.19).

The preliminary hearing: the current application

16. On 19 January 2023, McNaughton J made an order pursuant to s 126(5) of the MHCIFP Act for the examination of the defendant and, further, an order pursuant to s 130 that the defendant be subject to an interim extension order for a period of three months: Attorney General of NSW v Williams (by his tutor Ainsworth) (Preliminary) [2023] NSWSC 1.

17. The interim extension order commenced on 30 January 2023, and is accepted by the parties to expire on 29 April 2023.

18. Following the order made for the examination of the defendant, the defendant was examined by Dr Gordon Elliott, consultant general and forensic psychiatrist, and Dr Carollyne Youssef, consultant forensic psychologist, and they have each prepared reports. The opinions expressed by the experts are addressed later in these reasons.

19. I will next set out the relevant statutory provisions, principles and the preconditions to the making of an extension order and, thereafter, deal with the grounds for making an extension order under s 122 – this last matter being the only area of debate between the parties.

The legislative scheme

An overview

20. In Attorney General of New South Wales v Beryalay (by his tutor Johnson) (Final) [2022] NSWSC 1274 at [13]-[33], I set out the relevant statutory provisions under the MHCIFP Act, and identified the organising principles. What follows draws upon, and supplements, what I there set out.

21. The MHCIFP Act came into force on 27 March 2021 and repealed the Mental Health (Forensic Provisions) Act 1990 (NSW): see s 2 of the Act, and New South Wales, Commencement Proclamation, No 116, 19 March 2021 (in relation to the commencement); section 167(a) of the MHCIFP Act (now repealed) and ss 30C(1)(b) and 30C(2) of the Interpretation Act 1987 (NSW) (in relation to the repeal). When compared to the MHFP Act, the MHCIFP Act does not “substantially alter the process or the test to be applied in applications for an extension order, and so the case law relating to applications under the MHFP Act remains applicable”: Attorney General for New South Wales v Haines (Preliminary) [2022] NSWSC 458 at [15] (Lonergan J).

22. The treatment, care and detention of forensic patients is dealt with in Pt 5 of the MHCIFP Act. Section 123 of the MHCIFP Act permits the administering Minister to apply for an extension order against a forensic patient.

23. Section 121(1) of the MHCIFP Act provides that the Supreme Court may, upon application, “make an order for the extension of a person’s status as a forensic patient”. An order made under that section is described as “an extension order”: s 121(2).

24. Section 72 of the MHCIFP Act defines “forensic patients”. The defendant is accepted by the parties to be a “forensic patient”, by reason of s 72(1)(b) of the MHCIFP Act. That was the finding made by McNaughton J (judgment at [31]). I also find that the defendant is a forensic patient.

25. Section 69 of the MHCIFP Act identifies six objects of that part, which relevantly includes “to protect the safety of members of the public” (s 69(a)); “to provide for the care, treatment and control of persons subject to criminal proceedings who have a mental health impairment or cognitive impairment” (s 69(b)); and “to protect the safety of victims of forensic patients and acknowledge the harm done to victims” (s 69(f)).

26. Section 122, which provides the grounds for making an extension order, is in the following terms:

(1) A forensic patient can be made the subject of an extension order as provided for by this Part 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 the patient ceases to be a forensic patient, and

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

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

27. This section has been described as creating two limbs. The first requires demonstration that the defendant “poses an unacceptable risk of causing serious harm to others if the patient ceases to be a forensic patient”. This involves consideration of, and a comparison with, the identified counter-factual: Lynnv State of New South Wales (2016) 91 NSWLR 636; [2016] NSWCA 57 at [126] (Basten JA) (‘Lynn’). The second involves consideration of whether the “risk cannot be adequately managed by other less restrictive means” which, as the note to the section provides, will include consideration of whether the involuntary detention or treatment under the Mental Health Act 2007 (NSW) adequately manages the risk: Minister for Mental Health v Paciocco [2017] NSWSC 4 at [7] (Campbell J) (‘Paciocco’).

28. The following further matters should also be noted in connection with s 122 of the Act.

29. First, the standard of persuasion for each limb is to a “high degree of probability”. In this respect, the Court must be satisfied that the existence of the unacceptable risk is higher than the civil standard of proof and thus “beyond more probably than not”, but not to the criminal standard of beyond reasonable doubt: Cornwall v Attorney General for New South Wales [2007] NSWCA 374 at [21] (Mason P, Giles and Hodgson JJA). Although the decision in Cornwall concerned the Crimes (High Risk Offenders) Act NSW (2006), this analysis has been held to apply equally to the Act, or its predecessor: Attorney General for New South Wales v Bragg (Preliminary) [2021] NSWSC 439 at [18] and [25] (Wright J) (with respect to the Act); Attorney General for New South Wales v Kapeen [2017] NSWSC 685 at [11]-[12] (Beech-Jones J) (with respect to the MHFP Act). Both parties accepted the correctness of that approach.

30. Secondly, the plaintiff bears the onus in respect of both limbs, and in respect of the second limb must prove a negative: Paciocco at [8].

31. Thirdly, the phrase “unacceptable risk” is not defined in the MHCIFP Act, but it has been held to have the same meaning as in the Crimes (High Risk Offenders) Act: Attorney General for the State of New South Wales v Boyce (No.2) [2017] NSWSC 648 at [30] (Davies J) (‘Boyce’). That finding provides the basis for imposing control on the offender (or, more relevantly here, the forensic patient): Lynn at [127] (Basten JA).

32. In the context of high risk offenders, the phrase “unacceptable risk” is given its everyday meaning within its context, having regard to the objects of the MHCIFP Act (Lynn at [55]-[58] (Beazley P)), and “involves considerations of both likelihood of the risk eventuating, and the gravity of the risk that may eventuate”: State of New South Wales v Simcock (Final) [2016] NSWSC 1805 at [71] (Wilson J); State of New South Wales v Chaplin [2019] NSWSC 471 at [15] (Rothman J). The nature of the risk “posed [has] to be assessed by reference to past conduct, the seriousness of the possible future conduct and the period over which the risk may come to fruition”: Lynn at [126] (Basten JA). Further, a forensic patient may pose an unacceptable risk, even where the likelihood of causing serious harm to others is low, if the likely consequences of such an offence are very grave: State of New South Wales v Kamm (Final) [2016] NSWSC 1 at [41] and [43] (Harrison J); State of New South Wales v Golding (Preliminary) [2018] NSWSC 1041 at [16] (R A Hulme J); State of New South Wales v Devaney (Final) [2019] NSWSC 1551 at [73] (Dhanji J).

33. The phrase “serious harm” is not defined by the MHCIFP Act. It has been accepted that it includes physical or psychological harm, albeit conditioned by the requirement that the harm be “serious”: see the discussion in Attorney General of New South Wales v Kereopa (No 2) [2017] NSWSC 928 at [16] (R A Hulme J); and Attorney General of New South Wales v Beryalay by his tutor Thompson (Preliminary) [2019] NSWSC 252 at [15] (Ierace J). This analysis was followed by Wright J in Attorney General of New South Wales v Beryalay by his tutor Thompson (Final) [2019] NSWSC 816 at [25].

34. The phrase “adequately managed” is also not defined by the MHCIFP Act. It has been held 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”: Attorney-General of NSW v McGuire (No.2) [2014] NSWSC 288 at [63] (Garling J); Boyce at [17].

Further pre-conditions to making orders under s 121

35. There are a number of statutory provisions required to be satisfied prior to the Court making an order under s 121 of the MHCIFP Act.

36. Section 123 of the MHCIFP Act permits the relevant Minister (here, the plaintiff) to apply for an extension order “against a forensic patient”. However, s 124(1) qualifies this by providing that an order can only be made if the forensic patient is subject to “a limiting order” or “an existing extension order”: ss 124(1)(a)-(b). Section 3 of the MHCIFP Act defines “extension order” to mean “an order for the extension of a person’s status as a forensic patient under section 121” and defines “limiting term” to mean “a term nominated for a person under Division 3 of Part 4”.

37. The defendant accepted, and I have previously found, that he is a forensic patient within the meaning of the MHCIFP Act: s 72(1)(b).

38. Relevantly, s 124(2) of the MHCIFP Act provides that an application, made under s 123, may not be made more than six months before the expiry of the existing extension order: s 124(2)(b). It is accepted by the defendant that this requirement is satisfied, and I find that it is. The application made by the plaintiff was commenced by summons filed on 23 September 2022 and, at that time, the order of Garling J was to expire on 31 January 2023. The application was therefore compliant with the time stipulated by s 124(2)(b).

39. A further requirement is that the material that must accompany the application for an extension order addresses the matters in s 127(2) of the MHCIFP Act to the extent relevant (s 125(a)); includes a report from a qualified psychiatrist, registered psychologist or registered medical practitioner that “assesses the risk of the forensic patient causing serious harm to others” (s 125(b)(i)); and, “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” (s 125(b)(ii)).

40. I am satisfied that the material in the affidavits of Melinda Smith and Tina Wu address the matters in s 127(2) of the Act, and the defendant did not contend otherwise.

41. Section 126 of the MHCIFP Act prescribes a number of pre-hearing procedures relating to the making of, and dealing with, an application for an extension order: the application must be served on the forensic patient (the defendant) within two business days after the application is filed, or such further time as the Court may allow (s 126(1)); the Minister must notify the Tribunal as soon as practicable after making the application (s 126(2)); subject to some presently relevant exceptions, the Minister must disclose to the forensic patient material relevant to the application (s 126(3)); and the Court is to hold a preliminary hearing within 28 days after the filing of the application, or within such further time as the Court may allow (s 126(4)).

35. I am satisfied that these pre-hearing procedures have been complied with. The defendant has accepted this to be so.

The admissibility of the defendant’s correctional records

43. It is appropriate at this point to deal with an objection raised by the defendant at the commencement of the hearing. The defendant objected to the plaintiff tendering records produced by Corrective Services NSW, as follows (exhibit A, exhibit MS-1):

1. Tab 1, pages 4-5: These are the defendants inmate records for the period 18 June 2015 to 7 April 2022.

2. Tab 2 from the heading “Punishment details” pages 20-22. These are the defendant’s punishment details from the period 15 May 2014 to 7 April 2022.

3. Tab 51 pages 410-413.

4. Tab 52, pages 414-455.

44. The defendant relied upon an affidavit of Suzanne Russell affirmed 16 April 2023 which was admitted on the voir dire. That affidavit annexed a document that was accessed online from the website of Corrective Services NSW on 14 April 2023.

45. The defendant drew attention to cl 4.1 of that policy which, put simply, states that inmates “with cognitive impairment who lack capacity to fully understand an investigative interview must have a support person for the interview”. It was argued that there was no “support person” present in relation to the “institutional infractions” with the consequence, so it was argued, that the evidence was improperly obtained or there was impropriety: the defendant ultimately submitted that the evidence should not be admitted.

46. Although the defendant sought to defer a ruling on the admissibility of this material until after the expert evidence had been given, I indicated, as the experts were present, a ruling was necessary before that evidence commenced.

47. The defendant did not rely upon, or draw attention to, any authorities in support of the submissions made. Following the submissions, I admitted the evidence and indicated that I would provide my reasons in the judgment to be delivered. These are my reasons.

48. No submissions were directed to why, in the circumstances, this was an “investigative interview” covered by the policy, nor were there any submissions directed to how the phrase “fully understand” should be construed. Although it might be possible to assume as much, I am not disposed to make favourable findings in that setting. Further, it is unclear why an inference should be drawn, based upon the records, that there was not a support person involved (the defendant himself did not give any evidence at all in the proceedings). These are all matters upon which the defendant carried the onus of proof: Parker v Comptroller General of Customs (2009) 252 ALR 619; [2009] HCA 7 at [28].

49. Even if these matters are assumed, favourable to the defendant, in my view, the desirability of admitting the evidence outweighs the undesirability of admitting evidence that has been obtained in the way that it was. Specifically, in connection with s 138(3), I consider the evidence to be probative and important (ss 138(3)(a)-(b)), having regard to the nature of the current proceedings (s 138(c)), and there is no reason for me to infer (and I do not) that any assumed impropriety or contravention was deliberate or reckless (ss 138(3(e) and (f)).

50. There is a further matter for consideration, which is relevant to why I was disposed to admit this evidence: there is an abundance of other material, directed to these matters, that was not the subject of objection. For example, in connection generally with the reporting of institutional breaches during the defendant’s incarceration, they are repeatedly referred to in the Mental Health Review Tribunal (‘the Tribunal’) reasons. Further, other records relating to the defendant’s offending history whilst in custody were attached to the affidavit of Tina Wu affirmed to 29 March 2023, annexure B. These records relate to the period December 2022 to February 2023. There was no objection to this material.

The determination of the application: assessment of the risk

51. Section 127(1) empowers the Court, when determining an application for an extension order, to make such an order (s 127(1)(a)) or to dismiss the application (s 127(1)(b)). If an extension order is made, it is not to exceed 5 years: s 128(1)(b).

52. In determining whether or not to make an extension order, the Court must take into account – in addition to any other matter the Court considers relevant – the matters in s 127(2)(a)-(i). If the Court makes an extension order in respect of a forensic patient, the Court is to notify the Tribunal making the order: s 127(3).

53. I next outline the considerations that I have taken into account, in accordance with s 127(2) of the MHCIFP Act, in reaching my conclusions.

The safety of the community: s 127(2)(a)

54. The parties did not, in their written submissions for the final hearing or during submissions, address this specific consideration. The plaintiff did, however, rely upon the written submissions that were filed in connection with the preliminary hearing – where the matter was addressed.

55. This consideration typically extends to a consideration of the index offence, and any criminal history: Attorney General of New South Wales v Vakapora (Preliminary) [2020] NSWSC 1701 at [38] (Davies J); Attorney General for New South Wales v Mulipola(Final) [2021] NSWSC 1041 (Walton J). It may also extend to consideration of alleged criminal conduct of the defendant that did not result in conviction for any offence: State of New South Wales v French (Final) [2017] NSWSC 1475 at [46] (Walton J), albeit that material of that kind can be considered under s 127(2)(i): Attorney General for the State of New South Wales v Steadman [2016] NSWSC 174 at [24] and [127] (Adamson J); State of New South Wales v Sleeman (Preliminary) [2018] NSWSC 562 at [14] (R A Hulme J).

56. I have earlier referred to the index offence: see [6]-[10].

57. In terms of the defendant’s offending, this is essentially set out in two documents: the NSW Department of Corrective Services Conviction, Sentences and Appeals Document – which records the defendant’s offending history whilst in custody; and the NSWPF Criminal History-Bail Report – which records the defendant’s offending whilst in the community.

58. In relation to the defendant’s offending history whilst in custody, those records note institutional behaviour and breaches of discipline. The document, which is dated 27 October 2022, is extensive. Much of it has been covered, and summarised, in the reports from Dr Gordon Elliott and Dr Carollyne Youssef – the experts appointed following the order under s 126(5) made by McNaughton J. They were referred to in hearings before the Tribunal. For example, in the decision following the hearing on 6 October 2022, the Tribunal, in its reasons published 2 November 2022, noted the following (at [16]):

[The defendant] has apparently incurred 7 institutional misconduct charges since the last report in March 2022. These include possession of a weapon, failing to comply with correctional routine, and failing a prescribed drug test. He was subject to three days confinement on 23 September 2022 following the failure to attend a muster and disobeying direction.

59. Focusing upon the records for 2022, the offence of possessing an offensive weapon/instrument occurred on 19 June 2022 (a makeshift “baton”), and the defendant failed a prescribed drug test on 25 August 2022.

60. Further records relating to the defendant’s offending history whilst in custody were attached to the affidavit of Tina Wu affirmed to 29 March 2023, annexure B. These records relate to the period December 2022 to February 2023. Relevantly, the defendant was found to have assaulted an inmate on 1 February 2023 and, on 14 February 2023 was charged with, and found guilty of, misconduct – being obstructing a correctional officer, disobeying a direction, and intimidating a correctional officer.

Reports received by experts appointed under s 126(5) to conduct examinations of the forensic patient: s 127(2)(b)

61. Following the order under s 126(5) made by McNaughton J, the defendant was examined by Dr Gordon Elliott (who produced reports dated 15 March 2023 and 10 April 2023) and Dr Carollyne Youssef (who produced reports dated 19 March 2023 and 10 April 2023).

62. Shortly stated, each expert considered that the defendant should be subject to an extension of his status as a forensic patient: each agree that there is an unacceptable risk of causing serious harm to others if the defendant ceases to be a forensic patient and that there are no less restrictive means available to adequately address the risk of harm.

63. Given that the defendant submits that the evidence does not support a finding that the defendant poses an unacceptable risk of causing serious harm to others if he ceases to be a forensic patient, it is necessary to address the detail as to why each expert arrived at the conclusions they did.

64. Thereafter, I will address the opinions from the Court appointed experts – Mr Bradley Jones and Dr Jeremy O’Dea – in connection with the earlier extension application. In relation to these reports, neither side made any submissions about them – albeit that the plaintiff’s written submissions in connection with the preliminary hearing did make reference to them.

Report from Dr Gordon Elliott dated 15 March 2023

65. The key points made in the report dated 15 March 2023 are as follows:

1. Having reviewed the defendant’s Corrective Services Inmate Profile document, noted that the defendant’s history of offences in custody was “extensive”: between “19 January 2015 and 7 September 2022 he has been charged for 60 offences in custody. The range of custodial offences is broad and includes substance use in custody, aggressive behaviour including fighting with other inmates, and generally failing to comply with correctional centre routine” (p 4).

2. While the defendant was a “generally cooperative historian”, he was “unwilling to discuss his early developmental history in any detail and his account of his substance use history minimised it and downplayed the significance of this use upon his offending behaviour” (p 18).

3. The defendant does not suffer from a “major mental illness” and there is no evidence that he has a chronic psychotic illness. However, he has “a conclusive diagnosis of a mild intellectual disability” (p 17).

4. The defendant “continues to pose a risk of serious harm to others”, with multiple risk factors presents combining to cause the defendant’s “overall risk of recidivist offending to be high” (p 18-19):

Given [the defendant’s] criminal record and his custodial record of continued offending of a varied nature, then no other conclusion can be arrived at than that he continues to pose a risk of serious harm to others. I note he has been subjected to now multiple standardised risk assessments … and he is considered to fall within a medium to high risk of reoffending. I note Dr Furst’s opinion that the LSI-R understated his risk of recidivist offending. Dr Furst noted multiple risk factors present, once again his extensive criminal record from an early age, the history of substance use disorders, his intellectual impairment and varied antisocial features, and he considered [the defendant’s] overall risk of recidivist offending to be high. I would agree with that assessment for all the same reasons.

5. The most secure means of containing the defendant’s risk of serious harm to others is by his continued status as a forensic patient. However, there are some concerns that the defendant is “languishing” while in custody because he is unable to access standard treatment pathways for intellectually impaired inmates at the correctional centre at which he is located (p 19).

6. Dr Elliott considered that, should the defendant be released without any supervision or monitoring, the defendant’s risk of recidivist reoffending would be considered high (p 20):

He will again pose a risk of relapse into substance use and reoffending in the nature of his past offences. Whilst he has expressed his desire to now reside with his current partner, he remains and will ever remain a mildly intellectually impaired man with significant problems with impulsivity …

7. The defendant’s history of substance use, and a possible relapse, is the “first and foremost factor” which contributes to the defendant’s risk of serious harm to others (p 20):

I note again he has not completed a substance use course or had the opportunity to develop more adaptive strategies for managing stress or boredom. His behaviour in custody remains of concern and may well be related to continued substance use. By extension his association with substance using peers will also increase his risks of serious harm. He has unrealistic or no plans for managing his risks or transitioning to a prosocial lifestyle and his lifelong pattern of behaviour suggests day to day volatility and unpredictability.

8. However, Dr Elliott noted that the defendant’s sustained relationship with his partner for a period of two years has offered a point of stability and consistency, and considered that the imposition of a stable routine characterised by stable accommodation and supported employment, completion of programs including drug and alcohol programs and educational courses would lower the risk of serious harm (pp 20-21). Further, Dr Elliott considered that the defendant’s NDIS package “whilst currently insufficient, will be a key means of support in the community and facilitate particularly his engagement with vocational training and supported employment, as well as providing him with access to prosocial activities” (p 21).

9. There is a risk of the defendant “rebelling against his forensic patient status and his behaviour deteriorating further in custody should he perceive that there is no defined end date to his incarceration” (p 21).

10. Dr Elliott considered that the defendant’s continued status as a forensic patient was the least restrictive means of managing his risk of serious harm to others (p 22).

11. An extension of the defendant’s forensic patient status of two to three years is appropriate, as this would constitute the “minimum timeframe” to ensure a successful transition to the community (p 23).

Report from Dr Carollyne Youssef dated 19 March 2023

66. The key points made in the report dated 19 March 2023 are as follows:

1. Dr Youssef conducted a risk assessment of the defendant relying on several tools, those being: (a) an actuarial risk assessment – a combination of the Self-Appraisal Questionnaire and the VRAG-R; (b) an assessment of Dynamic Risk Factors – adopting the Historical Clinical Risk Manamgement-20 (HCR-20) tool for a structured professional judgment; and (c) an assessment of protective factors – adopting a structured assessment of protective factors for violence risk (pars 63-75). Dr Youssef summarised the risk in these terms (par 76):

Based on the information collected during interview, file review and risk assessments, a risk rating reflective of a high number of outstanding factors adequately reflects [the defendant’s] risk of reoffending. [The defendant] presents with risk factors in each of the domains covered by the HCR-20, suggestive of a high level of outstanding dynamic risk. This suggests that his risk score placing him in the highest category for recidivism in the VRAG-R is an accurate reflection of his risk of reoffending. Particularly salient dynamic risk factors identified for [the defendant] include limited to no insight into his risk; general self-regulation (e.g., poor coping skills, negative emotion analogy, poor problem-solving, difficulty planning); negative peer influences; substance use; crime and supportive cognitions; and limited insight regarding internal processes (i.e., thoughts, emotions). In relation to protective factors, [the defendant] has minimal protective factors in place, and requires support and intervention to enhance other areas that can be deemed protective for him, such as social support.

2. In terms of potential risk scenarios, and based upon an analysis of the defendant’s offending history, previous assessments and her interview with the defendant, Dr Youssef identified potential risk scenarios: being offending that was “likely to be an armed break and enter”, with the potential for the defendant to become “more brazen” with each offence, “particularly with the presence of others”; and, “if a violent offence”, he was likely to have a weapon, and “likely to use force and violence to assault the victim”, something that would form part of “acquisitional” offending (par 77).

3. The factors most likely to escalate the defendant’s risk of reoffending “include financial difficulties; difficulty coping and poor problem-solving; substance use (e.g., ice); boredom and an unstructured lifestyle; and association with antisocial peers” (par 78).

4. The defendant has “no insight into his offending behaviour” and therefore does not have “self-management strategies or an understanding of how best to mitigate his risk factors”, as well as lacking an understanding of how his “substance use and antisocial affiliations together with his disability” contribute to his offending behaviour (par 82).

5. The defendant has a mild intellectual disability, and meets the DSM-V-TR diagnostic criteria for Stimulate Use Disorder, Cannabis Use Disorder (pars 83.2.1, 83.2.4-83.2.5). He also meets the diagnostic criteria for Antisocial Personality Disorder (par 83.2.7).

6. The defendant poses a risk of causing serious harm to others (par 83.4.1):

According to the risk assessments completed, [the defendant’s] risk of recidivism suggests a high degree of outstanding dynamic risk needs as per the HCR-20v3 …, very few protective factors as per the SAPROF … and static variables that place him in the highest category for violent recidivism according to the VRAG-R … [The defendant’s] static factors suggest a lengthy history of committing a range of offences, with increasing severity, an unstable childhood, history of substance use, prior admissions to prison, and the lack of a stable intimate relationship.

7. Should the defendant cease to be a forensic patient, he poses a “risk of serious harm to others” whereas the continuation of his status as a forensic patient would provide “an opportunity to address his dynamic risk factors, whilst increasing his protective factors, to ultimately mitigate his current risk”: the defendant’s “history indicates that he is prepared to use violence in the commission of his offences. The risk scenario most relevant to [the defendant) has been described” in paragraph 77 of Dr Youssef’s report. In Dr Youssef’s opinion, the defendant’s risk cannot be “adequately managed if he ceases to be a forensic patient and is released to the community without an extended period of supervision and monitoring in the community” (pars 83.5.1-83.5.2).

8. The defendant’s “limited insight into his risk factors, poor general self-regulation, offence-supportive attitudes, substance use, susceptibility to negative peer influences, and a poor self-reflective capacity regarding internal processes” are relevant to the risk of his causing serious harm. Should the defendant meaningfully engage with “service providers and psychological intervention, a cessation of substance use, prosocial supports rather than antisocial affiliations, a structured lifestyle, with the support of relevant support services … and an increase in protective factors”, the defendant’s risk of recidivism is reduced. To mitigate the risk of recidivism, it is necessary for the defendant to first develop “motivation” to change (pars 83.6.1-83.6.3).

9. The continuation of the defendant’s status as a forensic patient would permit his risk to be adequately managed, and would allow for ongoing oversight by the Tribunal in “relation to regular reviews and overseeing [the defendant’s] progress, treatment, and supervision”. Further, the defendant is not eligible for classification as an involuntary patient, or a community treatment order. While a Guardianship Order may present benefits for the defendant, it does not – on its own – provide sufficient control of the defendant’s risk at present. With this in mind, there are no less restrictive means to mitigate the defendant’s risk (pars 83.7.1-83.7.5).

7. Further incarceration is “unlikely to reduce [the defendant’s] risk other than providing further containment” such that the “ideal scenario” would be that the defendant is subject to conditional release should it be deemed appropriate by the Tribunal. Because of the defendant’s significant period of time in custody, he is likely to require a ‘step-down plan’ to mitigate the effects of institutionalisation and increase his “independence, self-management, and eventual gradual exposure to the community” (par 83.8.1).

8. Should the defendant be granted conditional release by the Tribunal, he would benefit from a referral to a community forensic psychologist (on an individual, rather than group, setting), access to Supported Independent Living (‘SIL’), ongoing supervision and monitoring, and ongoing access to his NDIS supports (pars 83.8.2-83.8.8).

9. A two-year extension on the defendant’s status as a forensic patient is recommended.

Supplementary reports from Dr Gordon Elliott dated 10 April 2023 and Dr Carollyne Youssef dated 10 April 2023

67. After the initial reports were provided by Dr Elliott and Dr Youssef, there were a number of developments: there was a hearing before the Tribunal, on 6 April 2023 (following which the Tribunal made an order for the conditional release of the defendant (Exhibit J)); the defendant was accepted into the Namatjira Haven Drug and Alcohol Healing Centre (or ‘Namatjira Program’); a Transitional Plan was prepared by the Community Safety Program (‘CSP’); and the defendant received accommodation support from his sister, should he be granted conditional release by the Tribunal.

68. Both Court appointed experts were subsequently briefed by the parties to provide a supplementary report, and each has prepared a further report in response to that request.

69. The key points made by Dr Elliott in his supplementary report dated 10 April 2023 are as follows:

1. The recent developments (as identified in [67], above) suggests that the defendant has “been provided with opportunities for skills development in custody, including literacy programs, along with opportunities for psychological care and treatment, however he has failed to engage with or take advantage of these opportunities”. However, it is a “most encouraging development” that the defendant has secured a relatively high level of NDIS approved funding – noted to be “16 hours of face-to-face care per week in addition to the care and support provided by the Namatjira Program” (p 4).

2. While the release plan devised is a “highly supported one, culturally appropriate to [the defendant] as a First Nations person, and appropriate also for his intellectual disability”, Dr Elliott retains concerns for the defendant’s “level of motivation to engage with the program” given that his behaviour in custody has remained generally poor, he has historically failed to engage with programs in custody and “he was unable to give any of the details” of his release plan to the Namatjira Program to a forensic psychologist, Mathew Gullotta who assessed him in March 2023. These matters “do not provide cause for optimism with regards his ability to engage with a voluntary and highly contained but voluntary residential drug rehabilitation program” (p 4).

3. The material provided to Dr Elliott “firmed” his opinion that a three year order extending the defendant’s status as a forensic patient is appropriate because his “complex needs and his problems are relatively enduring and will require time to change”. There is also the high risk that the defendant will leave the Namatjira Program prematurely which would increase the risk of recidivist offending. With this in mind, his continued status as a forensic patient “is the most secure means of managing that risk” (p 5).

70. They key points made by Dr Youssef in her supplementary report dated 10 April 2023 are as follows:

1. Despite the developments identified, Dr Youssef did not change any of the opinions expressed in her initial report. Dr Youssef considered the defendant’s “risk is assessed as being high, with a high degree of outstanding dynamic risk needs, which coupled with his intellectual limitations and limited protective factors leave him vulnerable without intensive support and monitoring”. Dr Youssef expressed the opinion that “continuation as a forensic patient will provide an opportunity to address is dynamic risk factors whilst increasing his protective factors, to ultimately mitigate his current risk” (par 21.1.1).

2. Though the Namatjira Program has the potential to benefit the defendant, it is a voluntary program and “requires participants to be motivated to change” – given the defendant’s limited motivation and readiness for change, “he will likely require some modifications to and additional support in this program, considering his responsivity” (par 21.1.2).

3. An extension of the defendant’s status as a forensic patient for two years remains the most appropriate “considering his risk, dynamic needs, limited protective factors and intellectual disability. Furthermore [the defendant’s] limited motivation and readiness for change appears to continue to be a factor that requires some focused therapeutic intervention … [The defendant] has a history of poor community adjustment and a short survival period in the community, suggestive of a pattern of reoffending reasonably soon after release … [The defendant] is particularly prone to substance abuse and negative influences … these factors coupled with [the defendant’s] cognitive vulnerabilities, lack of insight, pro-criminal attitudes, outstanding dynamic risk needs, and low motivation place him at elevated risk of recidivism without adequate community supports in place for a sufficient period of time” (par 21.1.3).

4. Should the defendant choose to “continue engaging in the Namatjira Haven Program, he will likely benefit most from remaining there for a period of up to 9 months, given his cognitive limitations and responsivity. Thereafter, he would benefit from a sufficient period of at least 12 months in the community with support, supervision and monitoring to allow CSP to continue to have oversight over his progress in the community, whilst reducing restrictions commensurate with his progress”. However, should he not continue to engage with the Namatjira Program, then a period of two years would permit sufficient time “for suitable accommodation, community services and NDIS supports to be established”. A period of two years would allow for CSP to support community providers and stakeholders as well as the defendant to facilitate his successful reintegration (pars 21.1.4-21.1.6).

Report from Bradley Jones dated 14 December 2021

71. Bradley Jones is a forensic psychologist. He prepared a report dated 14 December 2021, following his assessment of the defendant on 6 December 2021.

72. Mr Jones considered that the defendant met the diagnostic criteria for having an intellectual disability (mild) and substance use disorder, and that the defendant’s “history suggests he may meet the diagnosis of antisocial personality disorder”.

73. Mr Jones expressed the opinion that these conditions affect the defendant’s risk of reoffending: the defendant “does pose a risk of causing serious harm to others due to his lack of insight into his past offending, lack of insight into his mental health disorders, and lack of mental health treatment”. Mr Jones also expressed the opinion that the defendant posed a risk of causing serious harm both as a forensic patient and if released into the community, and the basis for this opinion was that the defendant’s “custodial records indicate he has been involved in incidents that caused harm to other inmates”.

74. It was Mr Jones’ view that no less restrictive mechanism could be used to adequately manage the risk and that an extension of between 10 and 18 months was appropriate.

Report from Dr Jeremy O’Dea dated 17 December 2021

75. Dr O’Dea is a consultant forensic psychiatrist. He prepared a report dated 17 December 2021, following an assessment of the defendant on 7 December 2021.

76. Dr O’Dea diagnosed the defendant as having a mild intellectual disability, a substance use disorder and that he met the diagnostic criteria for a personality disorder with significant antisocial traits.

77. Dr O’Dea considered that the defendant’s risk profile was informed by his past behaviour in “the context of ongoing substance abuse, limited intellectual functioning and more general personality issues” that were “significant issues” in the defendant’s case. He expressed the opinion that the defendant had “a number of static and dynamic risk factors for future offending behaviour and in relation to the risk of causing serious harm to others” which included the defendant’s “criminal history, his antisocial lifestyle to date, and his documented problems with supervision in the past; with more clinical risk factors, that would include his history of substance use disorder, his personality, his developmental disability, his limited insight, and his limited express commitment to change and realistic plans for change”.

78. Dr O’Dea later expressed the opinion that the defendant’s risk of causing serious harm to others in the community “would be considered significant”, particularly if the defendant resumed his alcohol and illicit substance use in the community, and returned to his anti-social lifestyle – and the risk was a long-term one, of at least 5 years duration. Dr O’Dea also considered that the defendant’s “complex needs” could not be managed by less restrictive means.

The report provided under s 125(b): s 127(2)(c)

79. The plaintiff secured a report from Dr Richard Furst, consultant forensic psychiatrist, dated 8 August 2022. The report was relied upon by the plaintiff in the preliminary hearing before McNaughton J.

80. Dr Furst had also previously prepared a Risk Assessment Report dated 1 September 2021 in relation to the earlier extension order.

Report from Dr Richard Furst dated 1 September 2021

81. Dr Furst diagnosed the defendant as having an intellectual disability – assessment suggested that the defendant fell “in the lower end of the mild intellectually disabled range” – and a substance use disorder – a disorder characterised “by excessive habitual use of alcohol and/or drugs of abuse” commonly associated with dependence, patterns of tolerance, difficulties controlling the use of alcohol/drugs and failed attempts to stop using them despite the harmful consequences.

82. Dr Furst considered that the defendant posed a risk of causing serious harm to others if he ceased being a forensic patient, and that was due to a range, and combination, of primary risk factors, coupled with the defendant’s inability to learn from previous criminal sanctions and sentences: Dr Furst expressed the opinion that this made it “highly likely that [the defendant] will continue to commit further crimes in the future most likely associated with an escalation in violence, including the use of weapons, placing members of the community at risk of serious harm as a consequence of his criminal/offending tendencies”.

83. Given that risk, Dr Furst was of the view that no other less restrictive means was available having regard to the defendant’s clinical profile and identified risks.

Report from Dr Richard Furst dated 8 August 2022

84. Dr Furst noted there had been “no significant change” in the defendant’s mood or behaviour over the past 12 months, with the only significant difference being that he had been transferred to the Clarence Correctional Centre.

85. Dr Furst confirmed the diagnoses previously made – that the plaintiff had an intellectual disability and a substance use disorder. He also essentially confirmed the defendant’s risk profile and the risk factors in relation to his potential to cause serious harm to others – as set out in his earlier report – as continuing: see [82], above.

86. Dr Furst’s view was that the defendant continued to pose a risk of causing serious harm to others if he ceased to be a forensic patient, and that the primary risk factors were unlikely to change in the foreseeable future, and that no other less restrictive form of management was available.

87. Based upon the defendant’s clinical needs and risk profile, Dr Furst suggested that the defendant would need a further period of at least 2 years supervision as a forensic patient. Nevertheless, Dr Furst considered that the defendant “may well need longer supervision” but that an order of that kind might tend to demoralise the defendant.

Any other report of a qualified psychiatrist or registered psychologist or medical practitioner: s 127(2)(d)

88. Neither party drew attention to, nor made any submissions about, reports of these kind, although the plaintiff’s written submissions prepared for the preliminary hearing did make reference to some of this material.

89. The material contained a number of these reports, most of which were prepared in connection with the sentencing of the defendant, or his fitness to be tried. Some are quite dated.

Report from Kathryn Wakely dated 6 November 2017

90. Kathryn Wakely, consultant psychologist, prepared a report dated 6 November 2017 for the purpose of the defendant’s sentencing hearing, on 7 November 2017, in connection with the defendant’s entry of a plea of guilty to assault occasioning actual bodily harm in company.

91. Ms Wakely undertook an intelligence assessment of the defendant – which showed that his full-scale intelligence score was in the lower extreme range – in the bottom 0.1% of his peers. She also undertook a risk assessment – using the Risk-Self Appraisal Questionnaire. The defendant’s total score placed him “within the High-Moderate range for general and violent recidivism when compared to a group of offenders”.

Reports from Dr Sally McSwiggan dated 26 November 2019 and 11 December 2019

92. Dr Sally McSwiggan, consultant neuropsychologist, prepared reports dated 26 November 2019 and 11 December 2019. The first report was prepared in the context of the defendant being “charged with break, enter and steal arising from events alleged on 21 June 2018”, with a view to evaluating the defendant’s fitness to be tried.

93. Dr McSwiggan administered a number of tests and diagnosed the defendant as having an Intellectual Disability (Mild) and “Substance Use (Stimulants, Cannabis)”. Her conclusion was that the defendant was unfit for trial.

94. In her report dated 11 December 2019, a report that was prepared in the context of the defendant being “charged with goods in custody and resist arrest arising from events alleged on 30 April 2019”, Dr McSwiggan largely repeated the content of the earlier report – expressing the opinion that the defendant was unfit for trial.

Report from Professor David Greenberg dated 7 February 2020

95. Professor David Greenberg, forensic psychiatrist, prepared a report for the DPP dated 7 February 2020. Professor Greenberg was qualified in order to assess, and express an opinion upon, whether the defendant was fit to stand trial in connection with the index offence.

96. Relevantly, Professor Greenberg diagnosed the defendant as suffering from intellectual disability (mild), substance use disorder and also considered, based upon the defendant’s criminal history and self-report, that the defendant was likely to be suffering from antisocial personality disorder. Professor Greenberg considered that the defendant was “currently unfit to plead and unfit to stand trial at this time”.

Report from Matthew Gullotta dated 16 March 2023

97. Matthew Gullotta is a psychologist who undertook a risk assessment, and prepared a report, dated 16 March 2023, for the purposes of the defendant’s conditional release. It was prepared for, and provided to, the Tribunal pursuant to s 84(1)(b) of the MHCIFP Act.

98. Mr Gullotta noted that the defendant had “a limited understanding of the proposed conditional release plan … He was unable to provide: specific details; an estimate of the time he may stay; or what outcomes he would expect before graduation. When asked about his interest in attending an alcohol and substance abuse intervention, he stated that he ‘had to’ because it was a requirement of the Tribunal. However, he denied that he ever had a problem with substances” (par 54).

99. In connection with conditional release, and placement in the Namatjira Program, the “highest risk of placement breakdown relates to the voluntary nature of the placement. Should [the defendant] abscond or choose to withdraw from the placement, there would be an increased risk of reoffending” and, further, having regard to custodial rule violations – which include “violent-related issues and use of substances” – there are “concerns regarding potential placement breakdown” (par 56; see also par 82).

100. Mr Gullotta undertook actuarial risk assessments in order to determine the defendant’s current risk of reoffending. He used the violence risk appraisal guide (VRAG-R) and the assessment of risk manageability of individuals with developmental and intellectual limitations who offend – generally (ARMIDILO-G). The results of those assessments suggested that the defendant possessed (par 71)

a number of risk factors that increases the likelihood for future violence and general offending. Although [the defendant] has a limited number of violent offences on his record, he presents with a high loading on static risk factors for the likelihood of future harm towards others … Additionally, [the defendant] also presents with a high loading on dynamic risk factors.

101. Earlier, in connection with the assessment under VRAG-R, Mr Gullotta noted that the defendant “attained a total score that placed him in risk bin 9 (out of 9). Approximately 77.6% of individuals from the validation sample … [that] were placed in this risk bin went [on] to commit another violent offence within a 5-year period” (par 65)

102. In terms of the risk and nature reoffending, Mr Gullotta expressed the following opinion (par 72):

If [the defendant] were to reoffend, he would engage in theft-related offences secondary to relapse into substances use. If [the defendant] were to recommence using alcohol and substances, it is likely to increase his vulnerability towards peers of negative influence. Engagement in violent behaviour may be subsequent. That is, it is likely that he may use violence instrumentally as a means to steal, such that he can find his substances use and ensure commonality with his peers. Engagement in substance abuse may also result in disinhibition leading to outbursts of reactive aggression and violent behaviours. Another high-risk scenario relates to: his ability to cope with significant or unexpected negative life events … Unfortunately he possesses limited emotional coping skills to appropriately and/or pro-socially self manage should these factors change. Another high-risk scenario relates to: non-compliance with supervision (MHRT case management) and treatment (program of Namatjira Haven). [The defendant] currently lacks the ability to identify risk factors and high-risk situations, as well as mitigation strategies.

103. Mr Gullotta later summarised his risk assessment, and did not consider that the defendant would endanger himself. In relation to potential harm to others, Mr Gullotta considered that the defendant appeared “to present with a high loading on static factors associated with violent reoffending … as well as a high loading on dynamic factors associated with general reoffending … He presents a risk of causing physical harm to others, although such harm would most likely be perpetrated in the context of theft-related offences” (par 80).

104. Mr Gullotta acknowledged that the potential risk of harm that the defendant may pose to others could be mitigated by placement in an “appropriate setting” – and considered that a placement at the Namatjira Program, and Tribunal case management would provide a degree of mitigation (par 81), although earlier Mr Gullotta described this mitigation as being theoretical (par 73). That description recognised the fact that the placement was involuntary, and there was a potential risk of the defendant absconding, or being evicted should he fail to follow placement rules (par 82).

Reports from Maria Kostyanaya dated 29 March 2023

105. Maria Kostyanaya is a psychologist working for Statewide Disability Services (‘SDS’). SDS coordinated the support for the defendant whilst the defendant was in custody. She prepared a report to the Tribunal dated 29 March 2023 for use at the hearing before the Tribunal on 6 April 2023.(The report was an updating report: Ms Kostyanaya prepared an earlier report, for the Tribunal, dated 30 September 2022).

106. Ms Kostyanaya noted that whilst the defendant has had access to psychology services – psychological support and intervention – since 30 September 2022, the defendant engaged with Clarence Psychology Services on 2 occasions – however, “his engagement was marked by minimal report (sic) and on 6 March 2023, he declined participation in a full session” (p 4). It was noted that the defendant “currently presents as ambivalent regarding the impact of illicit substance use on his life and having limited understanding of the steps required to address it” (p 4). Later, it was reported that whilst the defendant engages with psychological services “when prompted, he presents with low motivation to receive psychological intervention and support. He appears to be ambivalent with regards to how illicit substance use may be associated with his offending behaviour and impacts his life in general” (p 4).

107. Ms Kostyanaya prepared earlier reports for the Tribunal dated 12 July 2021; 6 January 2022; 29 March 2022; and 30 September 2022.

Any order or decision made by the Tribunal with respect to the forensic patient that is relevant to the application: s 127(2)(e)

108. Neither party addressed the orders or decisions of the Tribunal in written or oral submissions.

109. The plaintiff’s written submissions, filed in connection with the preliminary hearing, made limited reference to those that were in evidence – albeit not the orders made on 13 April 2023.

110. Shortly stated, and by way of summary, the orders or decisions in evidence were:

1. Decision dated 30 July 2020: the reasons of the Tribunal noted that all expert reports provided indicated that the defendant was unfit to stand trial, and would not likely become fit.

2. Decision dated 9 August 2021: the Tribunal determined that the defendant remained unfit to be tried, and ordered that he be transferred to and detained at Clarence Correctional Centre.

3. Decision dated 22 February 2022: the Tribunal’s review of the defendant was adjourned.

4. Decision dated 21 April 2022: the Tribunal noted that the defendant was engaged in psychological therapy and undertaking a TAFE reading and writing program. The Tribunal also noted there were difficulties in program availability, that may impede planning for the defendant’s discharge.

5. Orders dated 13 April 2023: on 13 April 2023 the Tribunal ordered that the defendant be conditionally released on 17 April 2023. Order 14 noted that the defendant is to live at Namatjira Haven Drug and Alcohol Healing Centre.

111. Although the orders made by the Tribunal on 13 April 2023 were in evidence, it should be noted that the reasons of the Tribunal were not.

Any report from a department or agency responsible for the detention, care or treatment of the forensic patient: s 127(2)(f)

112. Neither party referred to any such reports in written or oral submissions.

113. The plaintiff’s written submissions, filed in connection with the preliminary hearing, drew attention to the reports from Ms Kostyanaya – to which reference has previously been made: see [105]-[107] above.

The level of the forensic patient’s compliance with any obligations to which the patient is or has been subject while a forensic patient (including while released from custody subject to conditions and while on leave of absence granted under this Act): s 127(2)(g)

114. Neither party addressed this matter in written or oral submissions.

115. The plaintiff’s written submissions, filed in connection with the preliminary hearing, submitted that the defendant had a “long history of institutional breaches”, including 25 requiring disciplinary action since 6 June 2019 (the commencement of the limiting term imposed). I have earlier referred to this material.

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: s 127(2)(h)

116. The limiting term was imposed by McLennan SC DCJ on 7 May 2021.

117. The defendant drew attention to the finding made that the offence that the defendant was found to have committed was one assessed “as falling below the mid-range of objective seriousness but above low range”.

118. In addition, McLennan SC DCJ made the following further findings:

1. The defendant “has been regularly before the Courts since 2011. He regularly breaks into people’s houses, too often finds himself in other people’s cars without their permission and has a clearly demonstrated drug problem. The offence is one more addition to a criminal history that is moving towards being an aggravating matter” under s 21A of the Crimes (Sentencing Procedure) Act 1999 (NSW).

2. The defendant has an “apparently entrenched drug problem”.

3. That it was “also clear that he has a significant drug problem which makes it impossible for me (given his consistent offending over 8 years) to make a positive finding that he has good (as opposed to some) prospects of rehabilitation.

119. A previous extension order was made initially on an interim, but later final, basis. In making an interim extension order, Davies J considered that the material in evidence (which is broadly similar to the evidence in the current application) supported a finding in the following terms (at [46]):

It shows, in particular, that the defendant has an intellectual disability, poor insight, serious substance abuse issues, an extensive criminal history including breaches of various forms of conditional liberty, and a significant risk of recidivism. These matters are capable of showing to a high degree of probability that the defendant poses an unacceptable risk of causing serious harm to others if his status as a forensic patient is not extended.

120. In making an extension order, at the final hearing, Garling J accepted the opinion of Mr Bradley Jones, forensic psychologist, contained within his report dated 14 December 2021 (summarised in [71]-[74], above). That included acceptance of the following opinion (at [10]):

Mr Jones goes on to express the opinion, which I accept, that because [the defendant] has not taken any proactive steps to embark upon positive life changes, he continues to present as a risk of causing serious harm to others. I accept this opinion for the reasons expressed by Mr Jones. I also observe that there is abundant unchallenged evidence of factors in the defendant's life that contribute to the risk of serious physical harm occurring. These include past offending, past violent offending, a history of antisocial behaviour, a history of substance abuse arising from adverse childhood experiences, violent attributes, lack of engagement in treatment offered to the defendant and a lack of insight, as I have said, into his past offending behaviours.

121. In making an interim extension order, McNaughton J accepted the opinion contained within the report from Dr Richard Furst dated 8 August 2022 (summarised in [84]-[87], above), to the effect that there was an unacceptable risk of the defendant causing serious harm to others: [2023] NSWSC 1 at [68]-[70].

Any other information that is available as to the risk that the forensic patient will in future cause serious harm to others: s 127(2)(i)

122. The defendant drew attention to his approved NDIS Plan which commenced on 28 February 2022, and noted that an “application for variation and increase is anticipated upon conditional release from Clarence Correctional Centre and receipt of the Behaviour Support Plan” (defendant submissions at [28]). Further, solicitor for the defendant, Ms Russell deposed in her affidavit dated 11 April 2023 (at [4]):

In my experience, and based on Mr Williams’ diagnoses, he is eligible to receive a higher support package, or plan, that currently in place. It is common experience for individuals who have been in custody that, on transition, they do not have enough evidence to demonstrate community-based, disability support needs. Without sufficient evidence, the National Disability Insurance Agency (NDIA) is not satisfied higher levels of support are required.

123. The defendant drew attention to the Independent Risk Assessment Report of Mathew Gullotta (‘Gullotta Report’), forensic psychologist, dated 16 March 2023 which was prepared for the purpose of a conditional release application heard by the Tribunal on 6 April 2023 (see [97]-[104], above), albeit did not make any specific submission about what finding was sought based upon it.

124. The plaintiff, in the written submissions filed, suggested that, consistent with the approach adopted by McNaughton J (at [64]), the defendant’s conduct in relation to the 3 January 2021 “offences” (see [13]-[15], above) should nevertheless be considered, but given “little weight” (written submissions at [17]).

125. I do not accept that submission. In my view, given the concession made by the plaintiff (see [15], above), and in the absence of the reasons of Hunt DCJ (before whom the special hearing was conducted) or the material that was before Hunt DCJ, it is simply not possible to make any finding about the defendant’s involvement in the events that occurred on 3 January 2021, nor as a corollary to have regard to the conduct – whatever that might be – as informing the risk (as to which, see the authorities in [55], above), as was suggested.

The extension order should be made

126. Having regard to the matters under s 127(2) referred to above, I am satisfied that, unless the defendant’s status as a forensic patient is extended, there is an unacceptable risk of him causing serious harm and, further, that that risk cannot be adequately managed by other less restrictive means. Accordingly, I am satisfied that the terms of s 122(1) of the MHCIFP Act are met. I do not accept that, as the defendant submitted, it was “an appropriate case” for the Court to consider exercising its discretion to decline the extension application (defendant’s submissions at [42]).

127. In arriving at that conclusion (and state of satisfaction), I am particularly mindful of the following matters.

128. First, the defendant has mild intellectual impairment, and has been diagnosed with a substance use disorder and a personality disorder with significant antisocial traits disorders. These conditions, I find, on their own – as well as in combination – have predisposed the defendant to low frustration tolerance, poor judgment, impulsivity, antisocial behaviour (with limited insight into such behaviour), acts of aggression and regular contact with the criminal law. The defendant lacks, I also find, the appropriate internal mechanisms to regulate his conduct. These findings are, of course, not an end to the matter: but they significantly inform, and explain, the defendant’s past offending, as well as the in risk of him reoffending and/or engaging in conduct causing serious harm. The defendant has an entrenched pattern of criminal offending over 10 years, which clearly increases his risk of future reoffending as McLennan SC DCJ found when imposing the limiting term on 7 May 2021: see [118], above.

129. Secondly, the expert evidence demonstrates that the defendant’s risk profile, has essentially remained static over time. For example, in 2017, Ms Wakely, consultant psychologist, determined that the defendant’s total score on the ‘Risk-Self Appraisal Questionnaire’ placed him “within the high-moderate range for general and violent recidivism when compared to a group of offenders”. In 2023, Mr Gullotta, when assessing the defendant’s risk profile using the VRAG-R – an actuarial tool “shown to have strong predictive validity, with empirical support … across a wide variety of samples, including individuals with lower intellectual ability” – expressed the opinion that the defendant’s score placed him in “risk bin 9” which suggested that approximately 77.6% of individuals from the validation sample from “this risk bin went [on] to commit another violent offence within a 5 year period”.

130. The defendant submitted, in connection with the use of actuarial tools to determine the defendant’s risk profile, that caution is needed simply because, in the way in which they assess risk, that unless there are further offences there will be no change in an assessment over the course of time, and they have the potentiality of being somewhat “blunt instruments”. Dr Elliott and Dr Youssef accepted that there were some limitations in actuarial risk assessments, but each gave evidence (consistent with what is contained in their reports) that they use them as a guide only, but then undertake a specific case formulation for the individual in question (T39.17-40.25). It is, therefore, important to look at the case formulation by each expert rather than merely the results of the actuarial risk assessments used to determine the defendant’s risk profile.

131. When approached in this way, the result is the same. For example, Dr Youssef, whose evidence I accept, undertook a range of actuarial risk assessments (SAQ and VRAG-R), and HCR-20 – being a structured professional judgment tool developed to assess an individual’s risk of violence and to identify risk management strategies, and then went on to undertake a thorough and detailed “case formulation” drawing together information from a range of sources, including her interview with the defendant. Dr Youssef considered that, according to the risk assessments completed

[the defendant’s] risk of recidivism suggests a high degree of outstanding dynamic risk needs as per the HCR20v3 … very little protective factors as per the SAPROF [the Structured Assessment of Protective Factors for Violence Risk] … and static variables that place him in the highest category for violent recidivism … (par 83.4.1)

132. Dr Elliott, whose evidence I also accept, undertook a similar approach to Dr Youssef: see his report dated 15 March 2023 (‘Conclusions and Recommendations’, responses D and E), and reached a similar conclusion.

133. The defendant also submitted that there was a question about whether all the risk assessment tools had been validated for use on individuals with intellectual disabilities and Indigenous groups. Dr Youssef’s evidence, which I accept, was that whilst there had been some research around the use of a number of those actuarial assessment tools – notably, SAQ, VRAG-R and the HCR-20 – that it did not preclude the use of those instruments upon intellectually disabled persons (T31.47-32.9). In any event, in connection with the use of actuarial tools to assess risk profiles of persons with an Indigenous background, neither expert accepted that it was inappropriate to use them – but, to allow for the fact that the risk could possibly be over inflated in some situations, undertook their own case specific case formulation in undertaking their assessments of the defendant (T32.46). Thus, I do not accept that the use of these actuarial tools in any way diminishes the opinions expressed by the experts who utilise them in their assessment of the defendant, or raises a “question” about their application. I note, in this respect, that Mr Gullotta, the forensic psychologist retained to provide a report to the Tribunal pursuant to s 84(1)(b) used a number of these risk assessment tools to assess the defendant’s risk profile (notably, VRAG-R and ARMIDILO-G), and no question was raised by him about their suitability nor is there any suggestion that the Tribunal considered the use inappropriate or inapplicable. More specifically, Mr Gullotta said (par 62):

The VRAG-R has been shown to have strong predictive validity, with empirical support from several studies across a wide variety of samples, including individuals with lower intellectual ability … countries, unique settings …

134. Thirdly, there is no suggestion that, whilst he has been in custody, the defendant has been rehabilitated or undergone treatment that has addressed the root cause of his offending nor, particularly, his substance use. (The fact that the defendant is to be admitted to the Namatjira Program serves to confirm this). There was some debate about whether the reason for this was attitudinal or whether, as the defendant submitted, it was a consequence of the defendant’s classification and the fact that there were pending charges until quite recently. The latter seems more likely, I find. But ultimately the reason is not to the point; the point is that the defendant has simply not undergone treatment of this kind. To the extent that the defendant was offered limited forms of psychological treatment since September 2022, it is relevant to note that his participation has been sub-optimal: see the reports from Ms Kostyanaya at [106], above, and the NSW Department of Corrective Services Case Note dated 6 March 2023. Absent treatment and rehabilitation, or other independent measure of progress, it is difficult to form a view other than the one that I have previously reached – namely, that there has been no material change, over time, in the defendant’s risk profile. That conclusion, and finding, is consistent with the finding made by McLennan SC DCJ, earlier referred to – namely, whilst the defendant had some prospects of rehabilitation, they were not good given his consistent offending over the previous eight years and his significant drug problem.

135. The evidence, in my view, clearly establishes the presence of there being an unacceptable risk. However, that is not the end of the enquiry. It is not simply a risk, nor a risk of reoffending generally; rather, what is necessary to be demonstrated is that the defendant poses an unacceptable risk of causing serious harm to others if he ceases to be a forensic patient.

136. The defendant submits that the “evidence, even when taken at its highest, does not to the high degree of probability required, support the making of an extension order”: it is argued that whilst the defendant may pose some risk, that “risk does not amount to an unacceptable risk of serious harm to others, to the high degree required” – particularly when regard is had to the NDIS plan, and the defendant’s placement at the Namatjira Program (defendant’s submissions at [42]).

137. The plaintiff essentially submitted (a submission that I accept) that the defendant’s custodial offending and criminal history demonstrated that there was an unacceptable risk of causing serious harm to others. The plaintiff drew attention to the index offence which the plaintiff submitted was the most significant. I have referred to this earlier: see [8]-[9], above. The plaintiff also drew attention to the fact that although many, if not the majority, of prior offending were of an acquisitional type (essentially, break enter and steal) some of them were aggravating (for example, the conviction for the offence on 16 November 2016). Furthermore, in 2017, the defendant was found guilty of assault occasioning actual bodily harm; he has committed a number of misconduct offences whilst in custody including assaults and intimidation (at least 9 of which have occurred since the index offence); and he was convicted for a firearms offence (being in possession of an unregistered replica pistol) in 2019 (albeit that this offence was dismissed under s 32 of the MHFP Act) and in 2020 (being in possession of a replica handgun/gel blaster: the defendant was sentenced to 6 months imprisonment following his conviction).

138. I have previously made reference to the defendant’s custodial records, particularly in the 2022-2023: see [57]-[60], above. These records have also been carefully reviewed by the Court appointed experts, Dr Elliott and Dr Youssef.

134. In my view, what is significant is that a number of highly experienced forensic psychologists and psychiatrists – Dr Elliott and Dr Youssef, in the current application; Mr Jones and Dr O’Dea in the earlier extension application (opinions that are still relatively recent); and Dr Furst who assessed the defendant in connection with both applications – have consistently assessed the defendant as posing an unacceptable risk of causing serious harm to others if he ceases to be a forensic patient. I appreciate that, ultimately, it is for the Court to determine, but my finding on this issue is significantly informed and aided by their evidence (which I accept, and which I have set out earlier in these reasons), and the consistency of it.

135. I am also satisfied to the requisite degree, that the risk cannot be adequately managed by other less restrictive means. That conclusion, in my view, is supported by the opinions (which I accept) from Dr Elliott, Dr Youssef and Dr Furst: each expert considered that there were no less restrictive means to adequately manage the defendant. Specifically, in connection with Dr Elliott and Dr Youssef, each of them had specific regard to the defendant’s NDIS funding, and the availability of a position, albeit on a voluntary basis, at the Namatjira Program (the material was jointly briefed to the experts, and they prepared supplementary reports), but did not lead either expert to alter their opinion.

136. As provided for by s 128(1)(b), the period of an extension order, under s 122, cannot exceed five years. In this case, the plaintiff seeks an extension order for a period of two years (the submissions did not specifically state as much, but presumably this is based upon the opinion expressed by Dr Youssef). The defendant submitted that, if the Court were satisfied that the defendant did pose an unacceptable risk of causing serious harm to others if he ceased to be a forensic patient, then a two year extension of his forensic status was unwarranted, and that “some shorter period could be imposed” – albeit that no specific “shorter period” was nominated (defendant’s submissions at [42]).

137. In my view, the extension order under s 122 should be for a period of 18 months, and not two years as the plaintiff submitted. I recognise that this is shorter than the period of the extension order recommended by Dr Youssef (who suggested two years) and Dr Elliott (who suggested three years). I am satisfied that an order of this length is proportionate, and serves the objectives in s 69 of the MHCIFP Act, for the following reasons.

138. First, as Dr Youssef noted, there is “no known specific literature available in relation to the recommended time frames for such orders to be extended”. Thus, the determination of the length of any extension order is necessarily an individualised one tailored to the specific circumstances including the nature and extent of the treatment and rehabilitation proposed, relevantly here, as part of the defendant’s community re-engagement. Dr Youssef’s opinion is consistent with other evidence that I accept – for example, that was also the view expressed by Mr Jones, consultant psychologist, in his report. Here the expert evidence varied, quite markedly, about the appropriate length of any extension order: at one end it was suggested that it should be no less than 10 months, but at the other for a period of 5 years. (I do not accept the plaintiff’s submission that there is “unanimity of the experts’ opinions on this issue”: they plainly varied).

139. Secondly, when regard is had to the specific features of the case, it is important to recognise, consistent with my earlier findings, that the defendant has essentially not had the benefit of any treatment whilst he has been in custody. Since his conditional release, the defendant has been accepted into the Namatjira Program, for treatment and to address his criminogenic risk needs. Consistent with what the expert evidence has said, which I accept, the position in that program will possibly extend for up to 9 months – during which time the defendant will also have access to his NDIS funding, and the support that his place in the program provides. These are important considerations, in my view, as the defendant submitted. The period of the extension order will allow for the completion of that important stage in the defendant’s rehabilitation, and a period for his re-entry into the community.

140. Thirdly, the length of the extension order serves to minimise, in my view, any internalisation of culture or patterns that follow from his time in custody and his status as a forensic patient.

141. Fourthly, as Garling J noted in the final hearing of the earlier extension order, the plaintiff is capable of applying, if so advised, for an extension of the defendant’s status as a forensic patient if the defendant’s trajectory, and risk profile, has not favourably altered during the currency of the proposed extension order.

Orders

147. Accordingly, I make the following orders:

1. Order, pursuant to ss 121 and 128 of the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW), that the defendant be subject to an order for the extension of his status as a forensic patient for a period of 18 months from 29 April 2023.

2. Direct that the Registrar of the Court notify the Mental Health Review Tribunal of the making of the above extension order.

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Decision last updated: 26 April 2023