NSW Minister for Mental Health v BB

[2015] NSWSC 1418

Supreme Court

New South Wales

Medium Neutral Citation:	NSW Minister for Mental Health v BB [2015] NSWSC 1418
Hearing dates:	21 September 2015
Date of orders:	30 September 2015
Decision date:	30 September 2015
Jurisdiction:	Common Law
Before:	Bellew J
Decision:	1. Pursuant to Clause 7(1)(a) of Schedule 1 of the Mental Health (Forensic Provisions) Act 1990, the status of the defendant as a forensic patient is extended for a period of 2 years on and from 30 September 2015.
Catchwords:	CRIMINAL LAW – Application by the Minister for an order extending the status of the defendant as a forensic patient for a period of 2 years – Where defendant charged with having sexual intercourse with a child under the age of 10 years – Where defendant found unfit to be tried – Limited term imposed upon the defendant following a special hearing – Limiting term completed – Whether the defendant posed an unacceptable risk of causing serious harm to others if he ceased being a forensic patient – Whether any identified risk could be adequately managed by other less restrictive means – Where proffered alternative involved the placement of the defendant in an aged care facility – Where medical evidence supported the conclusion that ongoing treatment of the defendant’s condition required a multi-factorial approach involving the input of a variety of medical professionals – Where medical treatment and assistance at the proposed facility was comparatively limited – Extension order made for a period of 2 years
Legislation Cited:	Crimes Act 1900 (NSW) Guardianship Act 1987 (NSW) Interpretation Act 1987 (NSW) Mental Health Act 2007 (NSW) Mental Health (Forensic Provisions) Act 1990 (NSW) Telecommunications Interception Act 1979 (Cth)
Cases Cited:	Attorney-General for NSW v McGuire (No 2) [2013] NSWSC 288 Attorney-General of NSW v McGuire [2015] NSWSC 152 Attorney General of New South Wales v Skerry [2015] NSWSC 859 Attorney-General (NSW) v XY [2014] NSWCA 466 Cornwall v Attorney-General for NSW [2007] NSWCA 374 Court Suppression and Non-publication Orders Act 2010 Kizon v Palmer (1998) 82 FCR 310 Sarah White v Local Health Authority [2015] NSWSC 417 State of NSW v Richardson (No 2) [2011] NSWSC 276; (2011) 210 A Crim R 220 State of NSW v Thomas [2011] NSWSC 118 State of NSW v Thomas [2011] NSWSC 308
Category:	Principal judgment
Parties:	Plaintiff – NSW Minister for Mental Health Defendant – BB
Representation:	Counsel: Plaintiff – Ms G Wright Defendant – Ms S Kluss   Solicitors: Plaintiff – Crown Solicitor for NSW Defendant – Legal Aid Commission
File Number(s):	2015/185957
Publication restriction:	Nil

Judgment

INTRODUCTION

1. By a summons filed on 24 June 2015 the plaintiff, the Minister for Mental Health of NSW, seeks an order pursuant to Clause 7 of Schedule 1 of the Mental Health (Forensic Provisions) Act 1990 (“the Act”) extending the status of the defendant as a forensic patient. Although the summons seeks an extension of 5 years, counsel for the plaintiff informed me at the hearing that an extension of 2 years was now sought.

2. The matter initially came before Adamson J on 30 June 2015 when, following a preliminary hearing, her Honour made an order appointing medical practitioners to conduct examinations of the defendant and furnish reports to the Court. Her Honour also made an Interim Extension Order for a period of 28 days from 1 July 2015. The matter again came before her Honour on 21 July 2015, at which time the Interim Extension Order was renewed for a further period of 28 days from 29 July 2015. The order was then renewed by her Honour for a further period of 28 days from 25 August 2015.

A PRELIMINARY ISSUE

3. At the commencement of the hearing before me, counsel for the defendant made application for an order that there be no publication of the name of the defendant. The plaintiff neither consented to, nor opposed, that application. My attention was drawn to s. 162 of the Mental Health Act 2007 (“the MHA”) which is in the following terms:

Publication of names

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

(a) to whom a matter before the Tribunal relates;

(b) who appears as a witness before the Tribunal in any proceedings; or

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

either before or after the hearing is completed.

Maximum penalty:

In the case of an individual – 50 penalty units or imprisonment for 12 months or both; or

In the case of a corporation – 100 penalty units.

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

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

4. Section 21 of the Interpretation Act 1987 (NSW) is in (inter alia) the following terms:

Meaning of commonly used words and expressions

(1) In any Act or instrument:

…

“person” includes an individual, a corporation, and a body corporate or politic.

5. I was referred by counsel for the plaintiff to the decision in Kizon v Palmer (1998) 82 FCR 310. In that case the Full Court of the Federal Court of Australia upheld a conclusion of the primary Judge that the word “person” where it was used in provisions of the Telecommunications Interception Act 1979 (Cth) which prohibited the disclosure of material did not apply to, or include, a Court hearing a public interest immunity claim, such that the Judge hearing the claim could examine affidavit material which contained prohibited information.

6. In Attorney-General (NSW) v XY [2014] NSWCA 466, McColl JA concluded (at [186]-[187]) that the making of an order under the Court Suppression and Non-publication Orders Act 2010 prohibiting the publication of the name of the defendant was not necessary in light of s. 162 of the MHA which, her Honour accepted, applied to proceedings in the Court of Appeal. In those circumstances her Honour concluded that it was appropriate that the Court’s judgment not use the Respondent’s name.

7. More recently in Sarah White v Local Health Authority [2015] NSWSC 417, Slattery J noted (at [3]) that some of the parties to the proceedings before the Court were parties to proceedings before the Mental Health Review Tribunal (“the Tribunal”). His Honour concluded:

“To avoid the publication of the names of any person involved in those MHR Tribunal proceedings in contravention of the Mental Health Act s. 162, this judgment uses pseudonyms for all parties and witnesses”.

8. Although I have not had the benefit of full argument in relation to this issue, the judgments in XY and White clearly support the proposition that s. 162 of the Act applies to a Court. In these circumstances I propose to refer to the defendant as “BB”.

THE EVIDENCE

9. In support of the application the plaintiff read the following affidavits:

1. Dana McMullen affirmed 24 June 2015;

2. Dana McMullen affirmed 25 June 2015 along with exhibits DM-1 and DM-2;

3. Jenny Howell (Forensic Psychologist) of 25 June 2015 (annexures J and K to which are expert reports of Ms Howell of 22 June 2015 and 25 June 2015 respectively);

4. Dana McMullen of 31 August 2015;

5. Jenny Howell of 3 September 2015;

6. Danielle Matsuo of 11 September 2015;

10. The plaintiff also tendered:

1. a report of Dr Stephen Allnutt, Forensic Psychiatrist, of 21 August 2015;

2. an amended report of Dr Allnutt of 21 September 2015;

3. reports of Associate Professor Stephen Woods, Forensic Psychologist, of 24 August 2015 together with an updated report of 21 September 2015.

11. The defendant read the affidavit of Joanna Kwan of 9 September 2015.

12. Dr Allnutt, Associate Professor Woods and Ms Howell all gave oral evidence before me in the course of the hearing. I have referred to aspects of their evidence in more detail below. Ms Judy Hunt, a Principal Guardian at the Office of the Public Guardian in Sydney also gave evidence to which I have referred below.

THE FACTUAL BACKGROUND

13. There is no dispute as to the factual background which gives rise to the defendant’s present status as a forensic patient. That background may be summarised as follows.

The offending

14. The defendant’s status as a forensic patient arises out of his commission of an offence of sexual intercourse with a child under 10, contrary to s. 66A of the Crimes Act 1900 (NSW). The facts prepared in relation to that offending state that in the late afternoon of 1 January 2011 several young children, ranging in ages from 2 to 12 years, were playing in a bus which was parked in the rear yard area of a unit block in the township of Inverell in NSW. The yard area was shared between the residents of the block. The bus was used by the victim’s mother. The victim was 4 years old at the time.

15. The defendant walked towards the bus. He had removed most of his clothing and was wearing only a pair of blue boxer shorts. He took hold of the victim by her body and arms and pulled her through the window, and out of the bus. He dragged her towards his premises within the unit block. In the course of doing so, he placed her on the ground and inserted his penis into her mouth, to the point that she was observed to have trouble breathing. Another child intervened and removed the victim, taking her to her parents.

16. On the following day the defendant was arrested by police. He was observed to be highly intoxicated and was described as being slow and unsteady on his feet. Ultimately, police made a determination not to interview him due to his level of intoxication.

The proceedings before the District Court – the defendant’s fitness

17. On 30 April 2012 in the District Court at Armidale, Judge Toner found that the defendant was unfit to be tried. His Honour remanded the defendant in custody and referred him to the Tribunal. On 28 June 2012 the Tribunal ordered that the defendant be detained at the Long Bay Correctional Centre for care and treatment. On 23 August 2012 the Tribunal confirmed that the defendant remained unfit to be tried and, on the balance of probabilities, would not become fit within 12 months.

The proceedings before the District Court – the special hearing

18. On 5 November 2013 the defendant appeared before his Honour Judge King in the District Court. Having held a special hearing pursuant to the provisions of the Act, his Honour was satisfied that on the limited evidence available, the defendant committed the offence to which I previously referred. In the course of his judgment (at T7) his Honour noted that at the time of his arrest, the defendant was assessed by police to be so affected by alcohol that it was inappropriate to try to conduct an interview with him.

19. The matter again came before Judge King on 5 December 2013. On that occasion, having noted his previous conclusions, his Honour imposed a limiting term of 4½ years commencing on 2 January 2011 and expiring on 1 July 2015. The defendant was referred to the Tribunal pursuant to s. 24(1)(a) of the Act. His Honour further ordered, pursuant to s. 24(1)(b) of the Act, that the defendant be detained in such place as directed by the Tribunal. The defendant thereby became a Forensic Patient by reason of s. 42 of the Act.

20. In the course of his judgment, his Honour observed (at T9) that on 3 January 2011, following his arrest on the previous day, the defendant was noted to suffer a seizure (secondary to alcohol withdrawal). His Honour went on to say:

“Although he was not interviewed until 2 January, and there is no specific evidence about his state of sobriety at the time of the offence, I have no doubt that the offender was at least significantly affected by alcohol at the time of the commission of the offence, on the basis of his past history, and also as a result of the fact that he suffered the secondary seizures within a short time after being taken into custody. That may provide some understanding for the commission of what I have previously referred to as an offence that in the circumstances was somewhat bizarre”.

21. His Honour recounted the defendant’s criminal history as follows (at T10):

“In 1978, a PCA and some four months approximately after that offence, a further PCA; In 1979, there was further PCA as well as a subsequent disqualified driver; In 1990, an assault dismissed pursuant to s. 556A without conviction, and an offence of assault female dealt with by a fine; In 1993, an assault occasioning actual bodily harm dealt with in the Local Court by a fixed term of imprisonment of 3 months; Further, in 1993, one offence of malicious damage by fire and a further offence of malicious damage by fire with intent to cause bodily injury. In respect of each of those offences, he received concurrent terms of imprisonment for 12 months with a 2-month non-parole period. In 2000, he received a fine for destroy or damage property. In 2005 he received a fine for behave in offensive manner in or near a public place or school and a similar offence in 2008. There was a further common assault in 2009 as well as an offence of larceny. All of those matters were dealt with by way of fines.”

22. His Honour then observed (at T11):

“What can be said of his criminal history is that up until the age fifty-two, when he committed this offence, there is no suggestion of any offending of a sexual nature. In that sense, although the offender has a criminal history, it is not of significant relevance to the limiting term to be imposed, and does not contain any like offence.”

23. His Honour then said (at T13):

“In view of the offender’s mental health issues, I am of the view that he is not a good example by which to provide general deterrence to the community. Considering his current ongoing mental health issues, it is extremely difficult to make any evaluation as to the likely rehabilitation of the offender, particularly where he has a significant alcohol problem that has already caused major physical damage to his intellectual abilities. Considering his lack of any similar offending in the past, and my conclusion that he was no doubt significantly affected by alcohol on the occasion of the offending, it might be said that in the absence of alcohol there would be a low prospect of re-offending. The difficulty is that with an individual such as (BB), who has a twenty year history of alcoholism, there can be little assurance that reform in relation to alcohol consumption will ever be achieved, particularly having regard to the effects that it has already had on him, and the court must, apart from general and specific deterrence and rehabilitation, take into account the need for protection of the community.”

Events following the imposition of the limiting term

24. In the course of the limiting term imposed by Judge King, the defendant was reviewed by the Tribunal in accordance with s. 46(1) of the Act. Whilst I do not propose to recount the entirety of the material which relates to those various reviews, there are aspects of it to which I was specifically taken in the course of argument, and to which I should refer.

25. The defendant was reviewed by the Tribunal on 12 December 2013. On that occasion Dr Anna Farrer reported that he had alcohol induced dementia, characterised by deficits in memory, attention, concentration and executive function. Dr Farrer noted that the defendant had a history of alcohol dependence over a period of at least 20 years and that his cognitive function appeared to have deteriorated mildly over the preceding 6 months. She expressed an expectation that the defendant’s cognitive function would continue to deteriorate slowly, and she concluded that he presented in a manner which was consistent with a person suffering a borderline intellectual impairment. Dr Farrer concluded (at page 5):

“His alcohol dependence and abuse disorder is in long-term remission in a controlled environment”.

26. A further review took place on 17 July 2014. On that occasion, the Tribunal concluded that the defendant should be detained in the aged care rehabilitation unit at Long Bay Hospital. The reasons of the Tribunal set out (at page 5) an extract of a report of Dr Morgan, Psychiatry Registrar, of 17 July 2014 in which the following was stated:

“(BB) is described as having had a slow but progressive decline in mental state over the last 6 months. His memory has steadily declined with an associated increase in delusional beliefs. He is described as believing that staff are poisoning him and have given him AIDS. He has been noted to be engaging in bizarre behaviours such as eating cigarette butts and talking to himself. He has been confused at times and was transferred to POWH on two occasions due to concerns for his level of orientation. No acute medical problems were identified to account for his confusion despite extensive investigation”.

27. A further review was undertaken on 5 February 2015. On that occasion, the Tribunal’s report stated:

“(BB) has alcohol induced persisting dementia. He has a history of depression and suicidal ideation. His criminal history most significantly involves sexual assault on children. He remains unfit to be tried. His limiting expires on 1 July 2015 and no placement has been found at this stage – now URGENT. He is diagnosed as neither psychotic nor with cognitive impairment, so falls between all categories of suitability for hostels HASI Plus etc, especially when his age (56), criminal behaviour and alcohol issues are taken into account” (emphasis in original).

28. The Tribunal’s report noted that no risk assessment had been proffered by the defendant’s treating medical practitioners and that his risk was therefore assumed to be low. The report also noted that in the opinion of Dr Kheng Chan, the Psychiatry Registrar at Long Bay Hospital, no Community Treatment Order would be needed if appropriate accommodation could be found, but that if this was not the case there would be concerns about supervision of the defendant’s living arrangements, particularly from the perspective of alcohol abuse. The report also noted that Dr Wilkee Sim, a Geriatrician, had suggested that if all else failed, the defendant should be placed on a Community Treatment Order in Department of Housing accommodation.

29. On 22 January 2015, Dr Chan provided a report to the Tribunal in which he stated (inter alia):

“(BB’s) depressive illness had significantly improved. He no longer suffers from persistent low mood or psychotic symptom (sic). (BB) suffers from alcohol related cognitive impairment which is progressive and is unlikely to improve in (the) near future. The treating team is of the opinion that (BB) cease (sic) to be become a mentally ill person as defined under the NSW Mental Health Act 2007…Owing to his vulnerability, the psychiatric team is of the opinion that (BB) will benefit from ongoing management at Age Care and Rehabilitation Unit at Long Bay Hospital. In view of his limiting term expiring soon, (BB) has had an ACAT assessment and currently is waiting for acceptance into an appropriate age care facility” (emphasis in original).

30. A further review was undertaken by the Tribunal on 14 May 2015. On that occasion the Tribunal reported:

“On the one hand, (BB) is a low risk to others because of his physical impairment. However, Dr Bhattacharyya expressed serious concern that (BB) NOT have any contact with children, to whom he would pose a risk.”

31. It is noted that Dr Bhattacharrya is the defendant’s treating psychiatrist.

32. On 29 April 2015, Dr Lee wrote to the Tribunal on behalf of Dr Bhattacharrya. He expressed the view that the defendant’s depressive illness had significantly improved and that he no longer suffered from persistent low mood or psychotic symptoms. He reported that the defendant suffered from alcohol-related cognitive impairment which was progressive, and which was not likely to improve in the near future. He noted that the defendant’s treating doctors were of the opinion that the defendant had ceased to become a mentally ill person within the meaning of the MHA. In terms of the defendant’s ongoing placement Dr Lee said the following:

“Owing to his vulnerability, the psychiatric team is of the opinion that (BB) will benefit from ongoing management at Age Care and Rehabilitation Unit at Long Bay Hospital. In view of his limiting term expiring soon, (BB) has had an ACAT assessment. The recommendation has been for low level respite care. It is recommended he not be placed in close vicinity of children. It is recommended he abstain from alcohol. Further occupational therapy assessment of 28/4/15 confirmed independence in personal activities in daily living and would benefit from low level care.

Therefore the psychiatric team respectfully recommends for no change to his current order but will support his conditional release to an appropriate Age Care Facility when a bed becomes available” (emphasis in original).

33. On 30 April 2015, bearing in mind the opinions expressed by Dr Lee in the passage set out above as to the defendant’s placement in an appropriate aged care facility, the Manager of the Bexley Care Centre (“the Centre”) confirmed that a bed had been booked at that Centre for the defendant which would be available for him following his discharge from Long Bay Hospital.

THE EXPERT MEDICAL EVIDENCE

Associate Professor Woods

34. Associate Professor Woods provided two reports. The first was dated 24 August 2015 and followed an assessment of the defendant undertaken on 14 August 2015. In the course of that assessment, Prof. Woods administered testing for the purposes of assessing the defendant’s level of cognitive functioning. He concluded (at p.12) that the results were consistent with impaired executive functioning, and he expressed the view that although there appeared to have been some improvement in that regard, the defendant’s level of cognitive functioning would rapidly decline in the absence of continued treatment. In expressing these views, Prof. Woods stressed the importance of bearing in mind that the defendant had been diagnosed with alcohol and vascular dementia. He considered that one factor relevant to the risk of re-offending was the expectation that the defendant’s level of cognitive function would continue to decline, regardless of whether symptoms of his mental illness were controlled by appropriate medication.

35. For the purposes of preparing his report, Prof. Woods spoke with Ms Twomey, the Nurse Unit Manager at Long Bay Hospital. He noted that Ms Twomey supported the defendant’s proposed transfer to the Centre and had advised that:

1. the defendant was fully compliant with all aspects of his treatment and with the directions of staff;

2. he engaged well with other patients and staff; and

3. there had been no incidents, or indications, of sexually inappropriate behaviour on the defendant’s part.

36. Prof. Woods also spoke with Dr Sim, who expressed the opinion that the defendant could be safely managed at the Centre. That expression of opinion is consistent with the report of Dr Sim which is annexed to the affidavit of Ms Kwan, and in which Dr Sim offered to work closely with any medical practitioner(s) at the Centre. Prof. Woods noted that Dr Sim expressly rejected the possibility, suggested by Ms Howell in her report of 22 June 2015, that the defendant would be capable of “scaling walls and gates” in order to abscond from the Centre. Prof. Woods further noted that Dr Sim had made specific comment about the defendant’s reduced level of mobility.

37. Prof. Woods himself visited the Centre and documented the following (commencing at p.16 of his first report):

“4:1   General

The Bexley Care Centre is a two (2) level secure facility. The thirty-six (36) bed dementia specific ward is located on the first (1st) level.

An elevator, accessible by the residents, enables movement from the first level down to the ground level where the main recreation room that leads to the garden is located; the elevator is only able to access the basement by use of key lock.

At least one (1), but generally at least three (3) staff members are present in the recreation room at all times when open to residents. At other times, the recreation room is locked thus preventing a resident from also accessing the gardens. All internal security doors, including one (1) that leads to the reception area have coded locks. The door leading from reception to be outside (street) entrance is code locked and supervised by (reception) staff at all times.

All doors that would enable a resident to leave the facility are code locked at all times. Any residents wishing to access the “fence enclosed garden” can do so only via the recreation room and when doing so are observed by staff members.

The Centre's Manager, Ms Christine Hayes, advised that any resident who accesses the garden is always monitored by staff members. In cases where the resident is identified as a) a potential risk to other patients and/or b) at risk of "escaping", they are either physically accompanied when in the garden or kept in "line of sight".

Ms Christine Hayes, Centre Manager, reported to have met (BB) and to being confident of being able to manage and provide him with appropriate care and treatment in a safe environment.

4:2   Identified Risk

A register of residents who are identified as being a potential risk to others or of possibly attempting to leave the Centre is kept and all staff briefed accordingly. These identified residents are closely monitored (i.e. it least hourly) and in general receive a higher level of supervision, including line of sight, when in situation/locations where there is even a remote potential risk/possibility of absconding. When on a supervised outing, these residents are closely supervised by a nominated member of staff.

4:3    The Garden

The Centre’s garden is fully enclosed by colour bond fences. All but one (1) fence, estimated height of 1.5 metres, are estimated to be at least (2) metres in height. I note that Ms Hayes, Centre Manager, has given an undertaking to, if deemed necessary to the Court, have the existing (estimated) 1.5 m fence raised in height by way of wood panelling.

In order to access the colour bond fence that leads to the street, it would be necessary to first climb over two (2) gates estimated height of each being 1 to 1.3 metres, and then a colour bond fence estimated to be at least two (2), but possibly more, metres.

There are no rails etc. on any fence or gate that would assist a resident in attempting to climb.

4:4    Staff

Ms Hayes, Centre Manager, advised that all staff at the Centre are trained and experienced in the care, management and supervision of old age and dementing residents.

She further advised that the Centre has previously successfully cared for a resident who has/had a history of sexual offending and attempted absconding.

4:5    Support Services

All residents have access to a general medical practitioner; either at the Centre or St. George Hospital.

St George Hospital, located an estimated “ten (10) minutes" travel time from the Centre provides ancillary and medical support for residents.

The Centre reportedly has a close working relationship with the St. George Hospital Mental Health team.

If a deterioration in (BB’s) mental health is identified or he requires review, Ms Hayes, Centre Manager, has undertaken to arrange for him to be seen by a psychiatrist attached to the St. George Hospital Mental Health team.

Risk Analysis

The following factors pertaining to risk of reoffending are, in my opinion, relevant to (BB).

Monitoring

If transferred to the Bexley Care Centre, (BB) will, I am advised, be placed on a Unit register of high-risk patients (i.e. history of sexual offending and increased risk of absconding) and arising from this "classification" subject to a greater level of monitoring by experienced staff than other patients. If permitted to go on outings, he will be supervised at all times and kept in "line of sight".

If he wishes to utilise the Centre’s garden, it will be necessary to gain access via the Centre’s recreation room and thus will come to the attention of a staff member who will a) supervise (BB) in the garden and b) as far as possible, keep him in line of sight; if unable to see (BB) a staff member will check on his whereabouts in the garden. I understand from Ms Hayes, Centre Manager, that all residents are monitored at least hourly while in the garden.

Outings and External Medical Care

(BB), as already indicated, would be closely monitored on any and all occasions he is permitted to go on supervised outings or attend for medical/health related treatment provided externally.

Opportunity

(BB), as indicated above, will be placed on the register of high-risk patients. On occasions when patients at the Centre receive visits from family and/or friends, particularly if accompanied by children, his level of supervision will, I am advised by Ms Hayes, Centre Manager, be appropriately increased.

Alcohol

Ms Hayes, Centre Manager, has provided an absolute assurance that (BB) will not (at any time) be permitted to gain access to alcohol.

Erectile Dysfunction

(BB) reportedly suffers from erectile dysfunction. Further, he reports to not have sexual urges or entertain sexual fantasies of any type.

Ms Liz Twoomey, Nursing Unit Manager, Aged Care and Rehabilitation Unit, Long Bay Gaol Hospital, has advised that there have been no instances of (BB) behaving in a sexually inappropriate manner. She described (BB) as being compliant and an “ideal patient”.”

38. Prof. Woods accepted that the defendant had a disturbing history of alcohol abuse and dependence, and that he satisfied the criteria for:

1. alcohol use disorder (in remission since entering a controlled environment); and

2. major vascular neurocognitive disorder (dementia) currently without behavioural disturbance, secondary to chronic alcohol abuse.

39. He concluded that the defendant’s dementia, even in the absence resumed use of alcohol, would continue to deteriorate.

40. In terms of the management of any risk which was found to be posed by the defendant, Prof. Woods said the following (at p.23):

“(BB) can, in my opinion, be safely managed and treated in a secure aged care facility. Having visited the Bexley Care Centre, and spoken with relevant "stakeholders", I am of the opinion that referral to the Bexley Care Centre represents the least restrictive safe and effective care/treatment option.

In these circumstances, and having regard to the fact that (BB) is subject to a Guardianship Order (with coercive powers; treatment and residence) I do not believe it necessary for him to remain a forensic patient.”

41. Prof Woods summarised his conclusions as follows:

“Assessment of (BB) has revealed an extensive and well-documented history of a depressive mental illness and cognitive impairment secondary to Alcohol and Vascular dementia.

CT and MRI scans carried out in April and May, 2014, revealed cerebral atrophy with prominent ventricles in the brain as well as white-matter disease; continuing cognitive decline is commonly associated with vascular dementia.

(BB) also presents with multiple medical illnesses/conditions that include, but are not limited to, emphysema, osteoarthritis, chronic renal failure, deficiency anaemia, and non-obstructive coronary artery disease; all of these physical conditions, especially in the context of his "shuffling gait", will, to an increasing degree, further impact on (BB’s) already impaired level of physical functioning and mobility.

(BB) is not currently exhibiting active symptoms of mental illness, but would, in all probability, relapse into a depressive illness if he ceased appropriate antidepressant medication; in these circumstances I believe he satisfies the criteria of “Continuing Condition”.

In my opinion, (BB) medical conditions and deteriorating cognitive functioning can be managed in a secure aged care facility. (BB) has been accepted by the Bexley Care Centre where, I believe, he can be safely managed while receiving appropriate care. “

42. Prof. Woods provided a supplementary report of 21 September 2015 after having the benefit of reading the reports of Dr Allnutt and Ms Howell. In the course of that supplementary report (commencing at p.5) he again addressed the level of risk that the defendant might pose in the event that he ceased to be a forensic patient. In that regard he said the following:

“When assessing the possible level of risk (BB) may pose in the event he ceases to be "a forensic patient" detained at the Aged Care and Rehabilitation Unit, Long Bay Gaol Hospital, I was cognisant of the following:-

(BB’s) deteriorating cognitive and physical functioning.

The index offence occurred in the context of him being heavily intoxicated and (also) suffering from active symptoms of mental illness.

Whether or not (BB) will, if placed at the Bexley Care Centre he will be subject to strict supervision and a) will not have access to alcohol and b) potential victims.

Availability of treatment, including "diversional therapy", if he continues to be detained in the Aged Care and Rehab Unit, Long Bay Hospital, Long Bay Correctional Centre, or other correctional facility.”

The Bexley Care Centre is a "locked" (secure) facility". Staff at the Centre have, I am advised, previously successfully managed a sex offender who had a history of attempting to abscond.

In order to abscond from the facility, it would be necessary for (BB) to a) obtain and use “lock codes” on doors as well as pass by a member of staff who supervises entry to and exit from the locked door that leads to the street, or b) climb over fences whilst in “line of sight” of a member of staff. Given his level of impaired cognitive and physical functioning, I believe he is incapable of breaching the security of the Bexley Care Centre.

Based on my assessment of (BB) and having had an opportunity to a) case conference with relevant stakeholders, and b) visit the Bexley Care Centre, I am of the opinion that (BB) can, in accordance with the principle of the least restrictive form of safe and effective care" be effectively managed at the Bexley Care Centre where he will have the benefit of “diversional therapy programs” (relevant to his dementia related needs) as well as access to appropriate medical (including psychiatric) care.

Finally, I would emphasise that my stated opinion is contingent upon (BB) remaining subject to a Guardianship Order with (full) coercive powers.

43. Prof. Woods gave oral evidence before me. He confirmed (at T11 L5-7) that his view about the suitability of the Bexley Care Centre was contingent upon the defendant remaining subject to guardianship with coercive powers which, as he understood it, permitted a guardian to (for example) authorise police to return him to their place of accommodation. As I have set out further below when considering the evidence of Ms Hunt, there are presently no coercive powers in force, although steps have been taken to ensure that an application for such powers can be made at short notice if necessary.

44. Prof. Woods confirmed (commencing at T11 L15) that he did not believe that the defendant should be placed in the community with the “normal freedoms” that members of the community enjoy. He expressed the view that it would be necessary for the defendant to be subject to some degree of control, particularly with respect to factors such as his living arrangements and the acceptance of ongoing treatment. He was then asked (at T11 L23):

Q. So without those sorts of controls on him, you consider that he does pose a risk of harm to others; is that the case?

A. Yes. And that risk would arise, in my opinion, from two factors: The potential for him to consume alcohol and also not to be compliant with medication.

45. Prof. Woods had incorrectly assumed that coercive powers were already in place in association with the defendant’s guardianship. In bringing this to his attention, counsel for the plaintiff asked (at T11 L45):

Q. In the absence of coercive powers, does that change your opinion about whether forensic patient status should continue?

A. Well, of course. I certainly believe that, as I've said and I'm repeating myself now, but just to be absolutely clear, I do not believe, given the history, given the possibility of resumed alcohol, et cetera, et cetera, that he should be released into the community. I think, as I've said in my addendum, I'm working on the assumption that he's not going to be released into the community and I base my view on that.

46. Prof. Woods confirmed (commencing at T 12 L7) that in his opinion the defendant would not be adequately managed in the wider community, or in a low security aged care facility where he did not have the benefit of a high level of care. He said (commencing at T12 L15) that the Centre was, as he understood it, able to provide close supervision and monitoring throughout the day. He agreed that in the case of the defendant, close supervision would necessarily have to include:

1. monitoring the defendant’s physical whereabouts;

2. ensuring that he did not have access to children;

3. ensuring that he did not consume alcohol;

4. ensuring compliance with his medication regime; and

5. supervising any outings or excursions.

47. Importantly, Prof. Woods confirmed (commencing at T17 L5) that in his opinion the defendant’s level of cognitive functioning would continue to decline. He agreed that a person’s cognitive functioning affected his or her capacity to control behaviour and make decisions. He also agreed that as the defendant’s cognitive functioning declined, so too would his ability to inhibit any anti-social behaviour. He was then asked by counsel for the plaintiff (commencing at T17 L40):

Q. A decline in his level of cognitive functioning won't reduce his risk of re‑offending; do you agree with that?

A. Well, if we think in terms of cognitive functioning also controlling motor ability, and factoring in also his already limited mobility, as the base vascular dementia increases or develops, as he goes down the road, I would say that his ability, physical ability, to pose a risk will decrease.

Q. His ability to comply with directions will also decrease; do you agree with that?

A. Yes.

Q. And his memory will have greater memory loss as his cognitive functioning declines?

A. Yes.

48. Importantly, Prof. Woods also gave the following evidence (commencing at T21 L30):

Q. I took you to a number of risk factors such as access to children, access to alcohol, those matters?

A. Yes.

Q. Do you agree that a forensic patient status would allow those risk factors to be monitored in a compulsory way?

A. Of course.

Q. But it is not required?

A. I am saying they could manage him in a different way as well by what you could do by forensic order, an order under Guardianship that requires him to stay in the Bexley Health Care Centre. That is another way of controlling risk factors.

Q. Assuming a coercive function is not granted to the Guardian?

A. Yes.

Q. Assuming that is not an option for the moment?

A. Yes.

Q. The only legally compulsory option being forensic patient status, do you consider that he should remain a forensic patient?

A. In the absence of a coercive order?

Q. Yes?

A. Yes.

Dr Stephen Allnutt

49. Dr Allnutt provided two reports, the first dated 21 August 2015 and the second dated 21 September 2015. The second report was effectively an amended version of the first and in those circumstances it is the second report to which I will refer.

50. Dr Allnutt assessed the defendant on 13 August 2015. In his opinion, the defendant met diagnostic criteria for (inter alia):

1. mild neurocognitive disorder, secondary to alcohol and vascular problems;

2. a recurrent depression disorder;

3. hypothyroidism;

4. an alcohol use disorder (moderate to severe) which was currently in remission in light of his controlled environment;

5. a history of anti-social behaviour manifesting anti-social traits; and

6. chronic obstructive pulmonary disease, hypertension, cardiovascular disease, chronic renal failure, iron deficiency anaemia, hearing impairment, osteoarthritis, mild concentric ventricular hypertrophy, AV stenosis and benign prostatic hypertrophy.

51. Dr Allnutt had been asked to specifically address the question of whether the defendant posed a risk of causing serious harm to others if he ceased being a forensic patient. He addressed that issue as follows (at p. 13):

“In providing an opinion on risk of recidivism it is important for the court to be aware that the quality of expert opinion in this regard is limited, as the scientific foundation has limitations. Any opinion on risk of recidivism is more professional than scientific. Risk assessment is the process of determining whether a person falls into in a particular risk group for committing a further offence. It is not an exercise in predicting if a person would in fact recidivate. Risk fluctuates depending on changes in the person or their environment and thus re-assessment is required over time. The evidence suggests that risk assessment can place a person in a risk group with moderate accuracy. It is not possible to categorise the individual’s risk level with reasonable clinical accuracy. In this the court is alone.

Given his history of violent and sexual offending, I have addressed both risks.”

52. Having recounted a summary of the evidence, Dr Allnutt said (at p. 17):

“The unpredictable nature of the index offence and its brazenness; the deterioration in his cognitive mental state since the index offences (in particular with executive impairment and thus reduced problem-solving ability, impaired social judgment and reduced inhibitory capacities); and his increased needs, lead me to a final opinion on his risk status.

Without relatively intense supervision, remaining a forensic patient and in a restricted placement, he would fall into a group of mentally disordered offenders who are at moderate risk of engaging in aggressive offensive behaviour and are at moderate to high risk of engaging in serious sexual offending compared to other sexual offenders and mentally disordered offenders.

I believe he poses a risk of causing serious harm to others if he ceases being a forensic patient.”

53. In response to being asked whether, if the defendant posed such a risk, it could be adequately managed by other less restrictive means, Dr Allnutt said (at p. 17):

“Having regard to the loading of factors that perpetuate his risk as outlined above, he manifests a number of factors that require intervention and rehabilitation before he is able to move to non-conditional dispositional status. On this basis he requires ongoing treatment and rehabilitation, preferably in a clinical facility with expertise in managing people with mental disorder and who offend sexually. His cognitive impairment makes him more resistant to responding to rehabilitation.

If he remains a forensic patient then he would be eligible for rehabilitation in a medium forensic mental health unit (such as Mariette, Macquarie Unit or Bunya Unit). These units have specialist forensic clinicians who have expertise in managing mentally disordered offenders and his risk could be managed in such a unit.

His risk could be managed in a civil psychiatric unit as long as that unit is a locked unit. It is important to note that staff civil units do not have forensic mental health professionals. A guardianship order alone without restrictions to his access to children, supervision and 24- hour monitoring at this stage would not be sufficient to manage his risk. Coercive powers in regard to the guardian would provide some capacity to determine placement in a secure facility.”

54. Ultimately, Dr Allnutt expressed the view (at p.18) that the defendant required ongoing management as a forensic patient. He made a series of recommendations for a risk management plan incorporating medication and counselling. In terms of an appropriate placement Dr Allnutt said (at p.18):

“He requires ongoing treatment and rehabilitation, preferably in a clinical facility that limits and/or supervises his access to the community and is able to manage, assess and monitor him for impulsive sexual behaviour and mental state changes.

I note that others have visited Bexley. I have not had the opportunity to do so at this stage. Having regard to the list of characteristic for Bexley provided by Ms Howells, it appears that the environment provides for restrictions on his movement, association, activities and communication. Such an environment could be appropriate. However, I would recommend the ongoing consultation between whatever facility he is placed in and the Justice Health Forensic and Mental Health Network, (the Community Forensic Mental Health Service), providing forensic psychiatric consultation at least every six months.

My preference is that his move to Bexley occurs after a period in a medium secure unit, which allows for “testing” of alternative community situations.”

55. Finally, in response to being asked whether, in the event that the defendant ceased to be a forensic patient, he would be able to understand and comply management conditions and directions imposed by his guardian, doctors and carers in light of his cognitive functioning, Dr Allnutt stated (at p. 19):

“At this stage I believe he would have difficulty understanding and complying with the management conditions and directions imposed by his guardian, doctors, and carers taking into account his cognitive function”.

56. Dr Allnutt gave evidence before me. He confirmed (commencing at T27 L28) that management of the defendant’s risk required the adoption of what was described as a “multipronged” approach. He then gave the following evidence (commencing at T27 L28):

“Q. It is your view that managing (BB’s) risk requires a multipronged approach?

A. Correct.

Q. It is your view that continued management as a forensic patient is the means by which his current risk should be managed?

A. Yes, I believe so.

Q. Why do you say that?

A. I believe that as a forensic patient he will come under the purview of the Mental Health Tribunal. The Mental Health Tribunal is a body comprised of people with a variety of expertise including legal, psychiatric and psychological expertise as well as - those are the two main areas of expertise - there is forensic and psychiatric expertise. The Mental Health Tribunal also has the ability to implement control restrictions that might be required. They would have regular opportunity to assist him over time and obtain feedback from the clinical staff of whatever area he is in and to have the experience to make judgments in relation to restrictions. As a forensic patient he would come under the purview of the forensic mental health arm of the Mental Health Tribunal. I think he needs coherence of some type. I am aware that there is a Guardian appointed. My concern is that the Guardian does not have the necessary forensic experience and this is an issue that has forensically related aspects to it. The reason why he needs legal coherence is because he has been diagnosed with mild neo-cognitive disorder which is the same as early dementia. This is a sort of condition which is likely to decline and worsen with time. The speed at which it is likely to worsen is difficult to predict.”

57. Dr Allnutt noted (commencing at T 28 L22) that the defendant’s offending which resulted in the implementation of the limiting term was alcohol related and said (commencing at T28 L23):

“One thing to do is to ensure that he does not use alcohol again. The neurocognitive dysfunction increases the risk for less control. So there is more risk of being less capable of inhibiting drives. So those two components would make matters worse as far as inhibition is concerned, and sexual inhibition is concerned.”

58. When asked (commencing at T28 L41) about the decline in the defendant’s cognitive functioning, and its impact upon his risk of re-offending, Dr Allnutt said:

“I think, given that he is in the mild range, it will initially increase the risk, but depending on how badly unwell he becomes with the dementia, that risk might diminish over time, but I think there will be a potential period of increased risk, but more often with people who develop more severe dementias they can become quite impulsive. There is a point where that will decline but there is a risk that might increase for impulsive behaviours.”

59. In terms of the defendant’s consumption of alcohol constituting or contributing to a risk, Dr Allnutt said (commencing at T29 L15):

“I think it would be fair to say that one has to hold a level of concern that if he was in the community there would be a risk that he would eventually go into the closest pub and begin drinking again and, having had quite a significant problem with alcoholism, we know there is a risk of relapse with alcoholism, and particularly given his neurocognitive disorder and less ability to inhibit himself in whatever he does.

I think one has to maintain a concern that the only reason he has stopped drinking is because he is in a controlled environment. The plus side is he is detoxified so the craving has probably diminished but the risk is if he does relapse there is a reasonable risk that he would gradually begin developing an alcohol abuse and then become dependent.”

Ms Jenny Howell

60. Ms Howell, a Forensic Psychologist, provided an affidavit of 25 June 2015 annexed to which was (inter alia) a report of 22 June 2015, which was prepared following her assessment of the defendant conducted on 12 June 2015.

61. Ms Howell expressed the view that the defendant posed an unacceptable risk of causing serious harm to others if he ceased being a forensic patient. In this regard she said (at p.21):

“Risk assessed around the time of (BB’s) offence included: his chronic alcohol use and the associated cognitive impairment and emotional regulation problems; persisting dementia with evidence of early cerebral atrophy with prominent ventricles in the brain; and major depressive illness. Dr Hearps,

Consulting Psychiatrist, found (BB’s) dementia was a permanent condition and that depression may also be a contributing factor to (BB’s) cognitive impairment.

Dr Susan Pulman, clinical and forensic neuropsychologist, concluded that (BB’s) intellectual functioning lies within the extremely low range. This suggests that (BB’s) cognitive ability may fall between the moderate to high intellectual disability range. During this assessment (BB) exhibited problems with frustration and impulsivity.

Assessment of (BB’s) risk of sexual recidivism, using actuarial measures and structured clinical judgement, suggests it is in the moderate-high range. He has not participated in treatment and as such has not developed new skills to manage his risk of re-offending and has little insight into the aetiology or effect of his behaviour.

When these factors are considered together it is unlikely that (BB’s) risk of re-offending will significantly diminish.

It is my view that (BB) poses an unacceptable risk of causing serious harm if he ceases being a forensic patient.”

62. Ms Howell expressed the view that the defendant’s continuing abstinence from drinking alcohol was a factor of critical importance to any assessment of risk because his chronic problems with alcohol had underpinned the offending. She concluded that the defendant’s alcohol related dementia was a permanent condition, and that he required ongoing management as a forensic patient.

63. Ms Howell specifically addressed the adequacy of the Centre as a facility for managing the risk as follows (at p.22):

“Correspondence of the Crown Solicitors Office, dated 17 June 2015, provides information from the Bexley Care Centre with respect to how they would manage (BB’s) care and supervision in the community. A visit to the Bexley Care Centre and discussion with the Manager, Ms Hayes, identified a number of positive aspects in relation to their ability to care for (BB). These include staff with training and experience in the care of residents with dementia and mental health problems. Ms Hayes said that the Bexley Care Centre has formed a good working relationship with the South Eastern Sydney Local Area Health District, Mental Health and Older Adult Mental Health Service. They also have an understanding of patients with alcohol related health problems. Ms Hayes acknowledged that the Bexley Care Centre staff have not received any training in relation to sexual offending and expressed a view that this would support staff manage (BB).

The Bexley Care Centre is staffed by registered nurses, care staff (who have enrolled nurse certification) and they are supported by a behaviour support manager and dementia specialist manager 24 hours a day seven days a week. A local GP visits the home several times a week and a Psychiatrist from St George Hospital visits weekly.

The Bexley Care centre is an older, purpose built nursing home with two floors and is situated in a residential neighbourhood. There are 60 residents currently at the centre who have individual safety plans that have clinical oversight, are monitored and reviewed regularly.

A number of impediments to the Bexley Care Centre’s ability to safely manage (BB) were also identified; including a lack of relevant experience in their clinical capacity and security issues. Ms Hayes reported that the Bexley Care Centre has very limited experience (one previous patient) in the care and safe management of a patient with a sexual offending history.

I understood from correspondence, that the Bexley Care Centre is a secure facility, has keypad doorways and that (BB) would be accommodated in the secure unit. On the visit to the Bexley Care Centre I observed a keypad on the doorway into and out of the secure unit on the second floor. However, the doors were open and residents were able to walk in and out of the unit. There is a lift between the first floor and ground floor which does not require a keypad to operate and is available to residents. Once on the ground floor residents are able to walk freely around that unit and access the garden through an unsecured (non- keypad) doorway.

The garden at the Bexley Care Centre is large with a winding walking path, several different gardening areas, trees and seats. The garden shares common boundaries with private residential homes and is fenced between the different properties. These fences would conform to council regulations; they are not secure, and able to be scaled. At one side of the garden there is also a series of three gates along a driveway which could be scaled to reach the road.

(BB) has been told that he will be going to the Bexley Care Centre on release from custody and during the assessment indicated that if he was not released to the Bexley Care Centre then he would “give up” and “not take” his medication. It is my view that if the Bexley Care Centre provided their staff with training in relation to working with and managing the risk of sexual offenders in conjunction with upgrading security, they have the potential to safely manage (BB) on a day to day basis. However, if (BB) was determined to leave the centre at some time in the future and consume alcohol his risk of sexually re-offending would significantly increase.

Without the certainty that (BB) can be safely managed at the Bexley Care Centre, it is my view that (BB) would require ongoing management as a forensic patient.”

64. Ms Howell also gave evidence before me. She agreed (at T44 L1-5) that in her observation, and on the basis of the entirety of the available evidence, the defendant had always been compliant with requests made of him. However she was not moved from her stated view that the defendant should remain a forensic patient.

Judy Ann Hunt

65. Oral evidence was also given before me by Judy Ann Hunt, a Principal Guardian at the Office of the NSW Public Guardian. Ms Hunt has the carriage, within the Public Guardian’s office, of matters pertaining to the defendant.

66. Ms Hunt confirmed that the defendant is currently the subject of a Guardianship Order which does not include coercive powers. She confirmed that an application for an order for such powers was ready to be filed and that the effect of powers is that the Public Guardian is given “the legal right to ask police and ambulance to retrieve and return anybody who has left their place of residence that we have provided consent to” (at T49 L16-19). Ms Hunt gave evidence (at T49 L26-28) that she anticipated, given the fact that there would be a “very strong recommendation” for the making of an order (at T50 L5-8) that if sought, coercive powers would be granted.

THE RELEVANT LEGISLATIVE PROVISIONS

67. Clauses 1 and 2 of Schedule 1 of the Act are in the following terms:

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) A forensic patient can be made the subject of an extension order as provided for by this Schedule if and only if the Supreme Court is satisfied to a high degree of probability that:

(a) the forensic patient poses an unacceptable risk of causing serious harm to others if he or she ceases being a forensic patient, and

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

68. Clauses 7 to 9 of Schedule 1 are in the following terms:

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.

9 Continuation of order relating to forensic patient

The making of an extension order or interim extension order in respect of a forensic patient does not affect the operation of any order as to the forensic patient’s care, detention, treatment or release from custody to which the forensic patient was subject immediately before the making of the extension order.

SUBMISSIONS OF THE PLAINTIFF

69. Counsel for the plaintiff emphasised the medical evidence which, it was submitted, justified the making of the order sought. Counsel relied generally upon Dr Allnutt’s opinion that the defendant posed a risk of causing serious harm to others if he ceased being a forensic patient. In particular, counsel relied on Dr Allnutt’s opinion that the defendant:

1. would, in the absence of relatively intense supervision in a restricted placement, fall into a group of mentally disordered offenders who are at moderate risk of engaging in aggressive and offensive behaviour, and who are at a relatively high risk of engaging in serious sexual offending;

2. would, as a consequence of his history of substance abuse disorder, be predisposed to violent and/or sexual recidivism;

3. would be at risk of relapsing into substance abuse if the opportunity arose;

4. would not adhere to supervision in the absence of formal legal compulsion; and

5. suffered from cognitive difficulties and a level of instability which were unlikely to respond to treatment, and which warranted ongoing monitoring and supervision.

70. Counsel for the plaintiff also relied upon the opinion of Ms Howell in support of a conclusion that the defendant posed an unacceptable risk if he ceased to be a forensic patient and was released into the community. In particular, counsel pointed to the fact that Ms Howell had:

1. assessed the defendant’s risk of engaging in a further sexual offence as falling within the moderate to high range;

2. concluded that the defendant had ongoing problems with impulse control and frustration, and had little insight into his offending;

3. considered that the defendant’s chronic alcohol abuse, and its associated cognitive impairment, posed a particular risk; and

4. concluded that the defendant had not developed new skills to manage his risk of re-offending, and that such risk was unlikely to significantly diminish.

71. Counsel for the plaintiff pointed out that although Prof. Woods had expressed the view that there was no necessity for the defendant to remain a forensic patient, he nevertheless did not believe that the defendant could be adequately managed in the wider community, or in a low security aged care facility, in circumstances where he was not subject to close supervision and not provided with a high level of care.

72. Counsel for the plaintiff also pointed to the fact that the defendant’s treating psychiatrist, Dr Bhattacharrya, had expressed serious concern about the possibility of the defendant having any contact with children in light of the risk which would be posed. It was submitted that in circumstances where the defendant’s risk factors had not been mitigated, and given the preponderance of expert opinion, the test in cl. 2(1)(a) of Schedule 1 was satisfied.

73. As to the provisions of cl. 2(1)(b), counsel for the plaintiff submitted that the relevant focus was upon the question of adequately managing the risk, rather than upon identifying, or attempting to identify, whether one proposed regime was more or less restrictive than another: Attorney General of New South Wales v Skerry [2015] NSWSC 859 at [54] per R A Hulme J. It was submitted that there was no adequate alternative pathway through which the defendant could be compulsorily supervised or treated other than as a forensic patient, and that involuntary patient status and/or guardianship would not be adequate to manage the risk that he continued to pose.

74. Counsel for the plaintiff submitted that in circumstances where the defendant remained cognitively impaired, there were no grounds upon which to conclude that his risk could be managed by classification as an involuntary patient. It was submitted, in particular, that in circumstances where the Tribunal, at its most recent review, had stated that the defendant was not mentally ill, classification as an involuntary patient was not relevant. It was submitted that whether or not the defendant was a mentally ill person under s. 14(2) of the Mental Health Act was a speculative exercise, and that in the absence of any proposal or intention on the part of the Tribunal that he be classified as an involuntary patient, the management of his risk by the civil mental health system was neither available nor relevant to my consideration of cl. 2(1)(b).

75. Counsel for the plaintiff acknowledged that:

1. guardianship may, at least in principle, fall within the expression “other less restrictive means” in cl. 2(1)(b);

2. guardianship arrangements may, in some circumstances, provide an alternative means of intervention in respect of a forensic patient who has been released at the end of his or her limiting term;

3. the defendant was subject to guardianship orders, the effect of which was to grant, to the Public Guardian, functions in respect of accommodation and matters of health care; and

4. the defendant remains the subject of a financial management order.

76. However counsel pointed out that at present, there were no coercive orders in place. Counsel also pointed to the opinion of Dr Allnutt that a guardianship order alone, absent restriction as to the defendant’s access to children, and absent supervision which included 24 hour monitoring, would be insufficient to manage the identified risk. It was submitted that even if the evidence of Ms Hunt were accepted and coercive powers were implemented, and even allowing for the fact that such powers would provide some capacity to determine placement in a secure facility, guardianship did not incorporate the same degree of supervision as that which applied to a forensic patient.

77. Counsel also pointed out that the need to protect the community was not a relevant principle under the Guardianship Act 1987 and that accordingly, reliance solely upon guardianship arrangements to manage and/or detain a person who presents a risk of serious harm to the community may not be sufficient. Counsel further submitted that even if it were assumed that coercive powers could be implemented, there remained important differences between the powers of the Tribunal (exercisable in the event that the defendant remained a forensic patient) and the powers of the Public Guardian.

78. It was further submitted that in any event, the risk that the defendant continued to pose could not be adequately managed by his unconditional discharge into any community setting, be it at the Centre or some other similar facility. Counsel pointed out that although it was proposed, in the event that the defendant was placed at the Centre, to restrict him from using alcohol and to supervise him and monitor his medication regime, his engagement in, and compliance with, any such placement was voluntary, such that he was under no legal obligation to reside or remain at the Centre, and was under no obligation to abide by any instructions of staff in any relevant respect.

79. Counsel for the plaintiff also relied upon the opinion of Dr Allnutt that even if the defendant was placed at the Centre, he should nevertheless remain a forensic patient until the Tribunal determined otherwise. Counsel also pointed to the fact that Dr Allnutt’s clear preference was that any move to the Centre should only occur, if at all, after a period of placement in a medium security unit so as to allow for the testing of alternative placements.

80. Ultimately, Counsel for the plaintiff submitted that the focus of the forensic mental health system is upon risk avoidance and that there was no legislative provision or regime available which was capable of addressing the defendant’s ongoing risk other than Schedule 1 of the Act. It was submitted that the defendant’s continued status as a forensic patient was necessary in order to meet his needs for psychiatric treatment, supervision and monitoring, as well as to ensure his safe reintegration into the community. It was submitted that a placement which relied, in effect, upon his voluntary compliance was not adequate for that purpose.

81. It was submitted that in these circumstances, it was appropriate that the defendant be the subject of continued supervision and monitoring by the Tribunal, with the potential, at some time in the future, for the implementation of a structured regime of conditions, in the event that the defendant was able to meet the threshold for release.

Submissions of the defendant

82. Counsel for the defendant submitted that I would find that the defendant did not pose an unacceptable risk of causing serious harm to others if he ceased being a forensic patient. If such a risk were established, counsel submitted that it could be adequately managed by other, less restrictive, means.

83. As to the issue of whether the defendant posed an unacceptable risk of harm to others, counsel submitted that given his personal circumstances and his incapacity, the conditions under which the defendant would live meant that there was little likelihood that he would commit any offence. In this regard, counsel pointed to a number of factors, including that the defendant:

1. is 56 years of age;

2. is cognitively impaired, to the extent that decisions are made for him by the public guardian;

3. suffers from a series of cognitive deficits which means that he is unable to manage his finances;

4. is physically impaired; and

5. suffers from a range of other physical illnesses including pulmonary disease, hypertension, cardiovascular disease, osteoarthritis and benign prostatic hypertrophy.

84. Counsel submitted that in these circumstances, the conditions under which the defendant would live meant that there was little likelihood that he would commit any offence, providing he was medicated, alcohol free and in a secure facility. Counsel submitted that the consequences of the defendant’s state of health were such that he is gradually losing the ability to function and will deteriorate further over time, such that it is in his interests to be integrated into a secure facility in the community.

85. Counsel for the defendant stressed the necessity to have proper regard to the fact that the defendant had completed the limiting term fixed by Judge King in the District Court. It was submitted that in these circumstances he should be allowed to live his life in a way which enabled him to exercise the liberty which would be exercised by any other member of society who was in a similar position.

86. Counsel for the defendant emphasised the views of Dr Allnutt that any expert opinion which might be expressed as to a risk of recidivism was more professional than scientific. It was submitted that this observation should operate to temper the use of professional opinion in determining whether an unacceptable risk existed.

87. Counsel stressed the opinion of Prof. Woods that the defendant’s medical conditions, and in his deteriorating cognitive functioning, could be safely managed at the Centre. Counsel also pointed out, relevant to an assessment of the defendant’s risk of relapsing into substance abuse, that there was no evidence that there was an opportunity to drink alcohol at the Centre.

88. Counsel further submitted that the defendant’s criminal history, in the context of a long standing cognitive disability, added little to the assessment of the risk which had been described by the expert witnesses. It was pointed out that the vast majority of the defendant’s convictions occurred more than two decades ago and that in any event, none of those convictions involved significant violence or the commission of any sexual offence.

89. For all of these reasons, it was submitted that I would not be satisfied that the defendant posed an unacceptable risk of causing serious harm to others.

90. In support of the proposition that any identified risk could be adequately managed by other less restrictive means, counsel for the defendant submitted that in essence, Dr Allnutt had not expressed a definitive view that placement at the Centre was not suitable. It was submitted that an identified risk was capable of adequate management at the Centre, and that such management would meet the behavioural, physical and psychiatric needs of the defendant.

91. Counsel for the defendant made lengthy submissions as to the nature of any placement at the Centre including the availability of experienced support staff, the level of security provided, and the fact that there was medical assistance available which included the capacity to provide psychiatric and psychological treatment and counselling. It was submitted that any suggestion that an identified risk could not be adequately managed by other less restrictive means ignored the powers of the Public Guardian, Community Treatment Management, and the skills and resources of the Centre.

92. Counsel further submitted that a guardianship arrangement may provide an alternative means of intervention for a forensic patient who has been released at the end of his or her limiting term. It was pointed out, in particular, that Prof. Woods considered guardianship appropriate subject to the implementation of relevant coercive powers which, on the evidence of Ms Hunt, were available. It was submitted that associated placement at the Centre, including the imposition of constraints which restricted the defendant’s access to alcohol, allowed him to be supervised, and permitted monitoring of his medication regime, would ensure that any risk was adequately and appropriately managed.

CONSIDERATION

93. The provisions of cl. 2(1) of Schedule 1 confer a discretionary power to make an extension order if, but only if, I am satisfied to a high degree of probability of two matters, namely that:

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

2. the risk cannot be adequately managed by other less restrictive means, including classification as an involuntary patient under s. 53.

94. The term “high degree of probability” in cl. 2(1) was considered by Garling J in Attorney-General for NSW v McGuire (No 2) [2013] NSWSC 288. His Honour cited (at [47]) the judgment of the Court of Appeal (Mason P, Giles and Hodgson JJA) in Cornwall v Attorney-General for NSW [2007] NSWCA 374 where the following was observed (at [21]):

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

95. Garling J went on to observe (at [48]) that an applicant for an order under cl. 2(1) carries the onus. In Attorney-General of NSW v McGuire [2015] NSWSC 152 Hoeben CJ at CL took the same approach (at [37]).

96. There are differing views as to the approach to be taken to a consideration of whether or not there is an “unacceptable risk” within the meaning of cl. 2(1)(a). The first is the “everyday meaning approach” under which the test of unacceptable risk will be satisfied if a risk is present to a sufficient degree that the safety and protection of the community cannot be ensured unless an order is made: State of NSW v Thomas [2011] NSWSC 118 at [20]; State of NSW v Thomas [2011] NSWSC 308 at [28] (per RA Hulme J in each case).

97. The alternative is the “balancing exercise approach”, which involves balancing the likelihood of committing a further serious offence, the gravity of such an offence, and the consequences of an order on the offender: State of NSW v Richardson (No 2) [2011] NSWSC 276; (2011) 210 A Crim R 220 at [90].

98. In the circumstances of the present case, it is unnecessary for me to resolve such conflict which might exist as to the appropriate approach to be taken. Irrespective of which of the two tests is applied, I am satisfied to a high degree of probability on the evidence that the defendant poses an unacceptable risk of causing serious harm to others if he ceases being a forensic patient.

99. As counsel for the defendant pointed out, Dr Allnutt emphasised that the “quality” of expert opinion as to risk of recidivism was limited. However even when appropriate allowance in made for that limitation, Dr Allnutt’s unequivocal opinion was that the defendant poses a risk of causing serious harm to others. In expressing that view, Dr Allnutt took into account the nature of the defendant’s offending and the deterioration in the defendant’s cognitive state in the years which have passed since that offending occurred. That cognitive deterioration is, in my view, of particular importance. The evidence satisfies me that it has resulted in the defendant having an impaired executive function. It has also seen a reduction in his problem solving abilities and an impaired degree of social judgment. Even allowing for the fact that his criminal history is comparatively limited, and includes no history of sexual offending, the consequences of the deterioration in the defendant’s cognitive state, coupled with the nature of the offending, support the conclusion that the relevant risk exists. Also of importance is the fact that Dr Allnutt identified that as a result of the deterioration in the defendant’s cognitive state, he suffers from a difficulty in understanding and complying with directions given to him.

100. The opinion of Ms Howell provides further support for this conclusion that the defendant poses an unacceptable risk of harm to others if he ceases being a forensic patient. She too cited the deterioration in the defendant’s cognitive state as a relevant factor in reaching that conclusion.

101. Prof. Woods also identified the deteriorating level of the defendant’s cognitive functioning as a factor which was relevant to an assessment of his risk of re-offending. Like Dr Allnutt, he concluded that the defendant’s already impaired level of cognitive function would further decline in the future. Importantly, although he expressed the opinion that the defendant could be properly treated in a secure aged care facility (an issue which I have addressed further below), Prof. Woods expressly accepted that absent an appropriate degree of control, the defendant posed a risk to others and that such risk arose principally from the potential for him to consume alcohol, along with the potential for a lack of compliance with prescribed medication.

102. I have had regard, in determining the question of risk, to the fact that the defendant’s criminal history is both limited and dated. However, as Dr Allnutt has pointed out, the bizarre nature of the offending, and perhaps more importantly its unpredictability, along with the other factors he identified, support a conclusion that the defendant poses an unacceptable risk to others if he ceases to be a forensic patient. The evidence to which I have referred satisfies me of that fact to a high degree of probability.

103. Having reached the conclusion that an unacceptable risk is posed, I must proceed to consider the question of whether I am satisfied, to a similarly high degree of probability, that such risk cannot be adequately managed by other, less restrictive means. In McGuire (No. 2) Garling J observed (at [60]-[63]) that the term “adequately managed” means 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”.

104. In the context of the present case, the suggested less restrictive means essentially comprise:

1. classification of the defendant as an involuntary patient; and/or

2. guardianship with coercive powers; and/or

3. placement at the Centre.

105. As to the first of those means, I accept the submission of counsel for the plaintiff that in circumstances where the defendant is not, according to the most recent assessment of the Tribunal, mentally ill, issues of the defendant being classified as an involuntary patient do not arise. In considering the remaining two issues, it is again necessary to turn to the expert evidence.

106. Prof. Woods expressed the view that a guardianship arrangement which saw the defendant placed at the Centre would be an appropriate alternative, and one which would adequately control the risk that I have identified. In expressing that view, Prof. Woods was under the misapprehension that the present Guardianship arrangements included coercive powers. Clearly, that is not the case. Prof. Woods expressly conceded that in the absence of such powers the defendant should remain a forensic patient.

107. The evidence of Ms Hunt, which I accept, establishes that an application for the implementation of coercive powers can be made at short notice. Whilst the granting of such power could not be regarded as certain, I have noted the evidence of Ms Hunt that such powers would be recommended, and that this recommendation would necessarily carry considerable weight. I am prepared, in these circumstances, to proceed on the basis that it is more likely than not that if application were made, coercive powers would be granted. However even if this is so, I am not satisfied, for the reasons that follow, that the identified risk can be appropriately managed by other less restrictive means of the kind suggested.

108. Dr Allnutt expressed the view that the various factors which give rise to the identified risk meant that the defendant required ongoing treatment and rehabilitation which was preferably carried out in a clinical environment, and where those having the requisite expertise in the medical management of a person such as the defendant were able to treat him. In this respect, Dr Allnutt again emphasised the defendant’s cognitive impairment which, he pointed out, rendered the defendant more resistant to responding to rehabilitation. Dr Allnutt also stressed the necessity for the ongoing management of the defendant’s condition to involve a multi-factorial approach which, in his view, was more appropriately administered under the purview of the Tribunal.

109. Ms Howell was prepared to accept that the Centre had the potential to manage the defendant on a day to day basis. However she expressed concern at what would occur in the event that at some future time, the defendant determined to leave the Centre and consume alcohol, a circumstance which, in her view, would accelerate the risk of sexual offending.

110. Prof. Woods visited the Centre and provided a comprehensive overview of its functions, administration and capabilities. Clearly, if the defendant were placed at the Centre, he would be monitored, although perhaps not on a 24 hour basis. The facility is also secure. The defendant would not, absent anything unforseen or out of the ordinary, have access to alcohol. Residents of the Centre have access to medical treatment from a General Practitioner, as well as access to medical facilities at the St George Hospital which is only a short distance away. A psychiatrist attends regularly.

111. Whilst all of these factors are obviously relevant considerations, I am persuaded that the risk that I have identified cannot be adequately managed by that particular means, or indeed any means other that the defendant remaining a forensic patient. I have reached that conclusion for a number of reasons.

112. To begin with, even when full weight is given to the facilities and set-up which is available at the Centre, the defendant, in the opinion of Dr Allnutt, would have difficulty understanding and complying with management conditions and directions in that type of setting. This difficulty comes about as a consequence of his impaired cognitive state, an issue about which all of the experts are generally agreed.

113. Further, whilst access to medical assistance and treatment is obviously available at the Centre, such access in comparatively limited. The Centre is staffed essentially by registered nurses. Access is available to a General Practitioner. Access to a special psychiatrist is also available through weekly visits. Any further treatment required is seemingly accessed through the St George Hospital. On any view of the evidence, appropriate treatment is essential to the management of the defendant’s condition generally, and to the management of the identified risk in particular. I have no doubt that the level of care and treatment available through the Centre is administered by properly qualified and caring professionals. However, it cannot compare with that which would be provided in the clinical setting envisaged, and regarded as necessary, by Dr Allnutt, under the purview of the Tribunal. On the evidence, the ongoing treatment, management, and monitoring of the defendant’s condition will be carried out at a substantially higher level if he were to remain a forensic patient.

114. Importantly, in his risk management plan, Dr Allnutt made specific reference to the defendant’s need for ongoing treatment and counselling of a kind which not only managed the defendant, but which monitored him. Although, as counsel for the defendant pointed out, Dr Allnutt accepted that the environment provided by the Centre “could” be appropriate, his clearly expressed preference was that any move to a facility of that kind occur at a time following the carrying of appropriate testing directed towards assessing the adequacy of alternative solutions.

115. I am satisfied that the defendant’s physical movements would, in all probability, be monitored (and appropriately restrained) at the centre. In these circumstances, even though it is theoretically possible, it would be unlikely that he would have access to alcohol which, as outlined by the experts, has a direct bearing on his condition. However, as Dr Allnutt pointed out in his evidence, managing the relevant risk requires a multi-factorial approach. That approach extends substantially beyond the imposition of physical control. It involves the administration of appropriate treatment and the monitoring of its effect. Significantly, and as I have previously noted, Prof. Woods took the view that the defendant would not be adequately managed in a setting where he did not have the benefit of a high level of care. Care and treatment administered under the purview of the Mental Health Tribunal, which as Dr Allnutt pointed out provides essentially immediate access to a variety of expertise, cannot be compared to the limited availability of such care and treatment which is available at the Centre.

116. For all of these reasons, I am satisfied to the requisite standard that the identified risk cannot be adequately managed by other less restrictive means.

ORDERS

117. For the reasons that follow I make the following order:

1. Pursuant to Clause 7(1)(a) of Schedule 1 of the Mental Health (Forensic Provisions) Act 1990, the status of the defendant as a forensic patient is extended for a period of 2 years on and from 30 September 2015.

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Decision last updated: 30 September 2015