NSW Minister for Mental Health v Paciocco (No 3) (Final)

[2023] NSWSC 587

Supreme Court

New South Wales

• Summary available

Medium Neutral Citation:

NSW Minister for Mental Health v Paciocco (No 3) (Final) [2023] NSWSC 587

Hearing dates:

1 June 2023

Date of orders:

7 June 2023

Decision date:

07 June 2023

Jurisdiction:

Common Law

Before:

Davies J

Decision:

1. Order pursuant to s 121 of the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (No 12) (NSW) that the status of the defendant as a forensic patient be extended up to and including 11 June 2028.

Catchwords:

MENTAL HEALTH – application for extension of status as forensic patient – Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW) – final order – where three prior orders made over a 6 year’ period – whether defendant continues to pose unacceptable risk of harm to others – no substantial change in defendant’s condition – whether defendant could be managed by less restrictive means – length of order – extension granted

Legislation Cited:

Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (No 12) (NSW) ss 121, 122, 124, 125, 127, 133

Mental Health (Forensic Provisions) Act 1990 (NSW)

Cases Cited:

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

Minister for Mental Health v Paciocco [2016] NSWSC 1530

Minister for Mental Health v Paciocco [2017] NSWSC 4

NSW Minister for Mental Health v Paciocco (No. 2) [2018] NSWSC 866

Minister for Mental Health v Paciocco (Final) [2020] NSWSC 205

NSW Minister for Mental Health v Paciocco (Preliminary) [2023] NSWSC 154

Texts Cited:

Nil

Category:

Principal judgment

Parties:

NSW Minister for Mental Health (Plaintiff)
Steven Mark Paciocco (Defendant)

Representation:

Counsel:
J Davidson & J Cooper (Plaintiff)
R Khalilizadeh (Defendant)

Solicitors:
Crown Solicitor’s Office (Plaintiff)
Legal Aid NSW (Defendant)

File Number(s):

2022/41033

Publication restriction:

Nil

Judgment

1. The defendant has been a forensic patient since he was found unfit to plead and to stand trial on 20 April 2015 by Flannery DCJ. The offences for which he was found unfit to plead were one count of reckless wounding and one count of assault police officer in the execution of his duty.

2. On 20 July 2016 following a special hearing, Jeffreys DCJ found the defendant guilty of the offences, and on 8 September 2016 his Honour nominated a limiting term of two years and six months which commenced on 20 April 2014 and expired on 19 October 2016.

3. Since that time final orders have been made on three occasions extending the defendant’s status as a forensic patient pursuant to the Mental Health (Forensic Provisions) Act 1990 (NSW): Minister for Mental Health v Paciocco [2017] NSWSC 4; NSW Minister for Mental Health v Paciocco (No. 2) [2018] NSWSC 866 (Paciocco (No 2)); Minister for Mental Health v Paciocco (Final) [2020] NSWSC 205 (Pacciocco (Final)). An interim extension order was made by Rothman J on 28 February 2023 which extended the defendant’s status as a forensic patient to 11 June 2023: NSW Minister for Mental Health v Paciocco (Preliminary) [2023] NSWSC 154.

4. Pursuant to the summons in respect of which the interim order was made by Rothman J, the plaintiff now seeks an extension of the defendant’s status as a forensic patient for a further five years. The defendant does not oppose the extension but submits that it should be for a period of four years. Notwithstanding the concession by the defendant, the Court must be independently satisfied that the requirements to extend the defendant’s status have been met.

Legislation

5. The Act now governing the matter is the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (No 12) (NSW). The provisions governing extension of status as a forensic patient are found within Pt 6 of that Act. Section 122 provides that a forensic patient can be made the subject of an extension order 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.

6. Section 124 enables an application to be made only if the forensic patient is subject to a limiting term or an existing extension order and the application is made not more than six months before the end of the forensic patient’s limiting term or the expiry of the existing extension order. Those requirements are satisfied, because the summons was filed on 7 December 2022 and the defendant was subject to an existing extension order which expired on 12 March 2023.

7. Section 125 provides:

125 Requirements with respect to application

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

(a) that addresses each of the matters referred to in section 127(2) (to the extent relevant to the application), and

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

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

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

8. Section 127(2) provides that the 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 section 126(5) to conduct examinations of the forensic patient,

(c) the report of the qualified psychiatrist, registered psychologist or registered medical practitioner provided under section 125(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 Secretary of the Ministry of Health, the Commissioner of Corrective Services, the Secretary of the Department of Communities and Justice 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 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),

(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.

Background

9. Extensive details concerning the defendant’s background, offending, and diagnoses have been set out in the earlier judgments to which I have referred, and do not need to be repeated. It is sufficient to set out what was said by Rothman J in his reasons for making an interim order extending the defendant’s status as a forensic patient on 28 February 2023 as follows:

[3]   The defendant is 49 years old. He was diagnosed with schizophrenia or a schizoaffective disorder in his early 20’s. He grew up in a dysfunctional family with his mother suffering schizophrenia and requiring multiple inpatient psychiatric admissions. Further, the dysfunction was exacerbated by the conduct of his stepfather, who is described as an abusive and aggressive alcoholic.

[4]   The defendant has a history of drug and alcohol abuse from the age of 17. This abuse included the use of intravenous cocaine, lysergic acid (“LSD”), heroin, and crystal methamphetamine. The defendant has been hospitalised in psychiatric wards at Royal Prince Alfred Hospital, Concord General Repatriation Hospital and Rozelle Hospital.

[5]   The defendant’s mental state has led to a history of significant self-harm. Most relevantly, the defendant is described as having attempted suicide in 1996 by jumping in front of a train, which led to injuries necessitating bilateral lower limb amputations.

[6]   Since then, the defendant has ambulated using a wheelchair and/or prostheses. There were apparently two further suicide attempts in August and September 2013, which involved the defendant throwing himself from a height and a medication overdose, respectively.

[7]   According to a Risk Assessment Report by Dr Elliott and relied upon by the plaintiff, the defendant has chronic schizophrenia which persists despite multiple trials of anti-psychotic medication. Dr Elliott also expressed the view that the defendant suffers from comorbid ADHD and substance abuse disorders, as well as a possible underlying personality disorder. The defendant’s cognitive function is said to be in the borderline range.

[8] Documents before the Court disclose a forensic history which includes a number of offences that predate the index offences. On 5 March 2006, the defendant was charged with two counts of common assault, which were dismissed pursuant to s 32 of the Mental Health Act 2007 (NSW).

[9]   On 15 April 2007, the defendant was charged with common assault and shoplifting. The sentence imposed for these offences was a fine and a good behaviour bond. On 8 May 2008, the defendant was charged with destroying property and assault occasioning actual bodily harm. In respect of the offence of assault occasioning, the defendant had imposed upon him a bond which included 18 months of supervision. For the property damage offence, the defendant had imposed upon him a bond with 12 months supervision.

[10] On 7 September 2013, the defendant was charged with assaulting a police officer and with stalk/intimidate with intent to cause fear of harm. Once more, those charges were dealt with pursuant to the terms of s 32 of the Mental Health Act.

[11] On 21 November 2012, a further charge for property damage was also dealt with under the provisions of s 32 of the Mental Health Act. On 18 February 2014, the defendant committed offences of using offensive language, assaulting a police officer in the execution of duty and contravening an Apprehended Violence Order (“AVO”). For those offences the defendant was dealt with pursuant to s 10A of the Crimes (Sentencing Procedure) Act 1999 (NSW).

10. The index offences occurred on 20 April 2014. On that day, the defendant was at the intersection of Pyrmont Bridge Road and Parramatta Road in Camperdown, when he pulled a Swiss Army knife on two strangers who were waiting for a taxi. He stabbed the female victim and chased the male victim down the road. Both of the victims fled into the nearby 7-Eleven store. When police arrived, he tried to strike one of the officers with his crutches. When he was charged with the offences he admitted to having indulged in drugs and alcohol in the days prior to the offending, and also to overdosing on clozapine on the night before the offences occurred.

The Court’s view when the limiting term was imposed (s 127(2)(h))

11. The sentencing judge considered that the offence of wounding with intent to cause grievous bodily harm fell within the lower end of the mid-range of objective seriousness and the offence of assaulting a police officer in the execution of his duty was at the bottom of the low range of objective seriousness. The judge noted that the defendant had been known to the mental health services of Sydney from his late teens, and his primary diagnosis was paranoid schizophrenia. His Honour noted that the accused had a history of poor impulse control with low frustration tolerance levels. He was prone to aggressive outbursts, often with little provocation directed at both himself and others. He had great difficulty in reasonably and rationally dealing with matters, and at times his mind was greatly impaired. His Honour noted that the medical material before him showed that the defendant’s condition was chronic in nature.

The defendant’s diagnosis

12. In Paciocco (No 2) at [24] I set out a summary from the judgment of Campbell  J (when he made an extension order on 16 January 2017) concerning the defendant’s acts of violence in the community and whilst he had been in custody.

13. I also set out portions of reports from Dr Kerri Eagle, Dr Jonathan Adams, Associate Professor John Basson, Dr Kirsty MacDonald and Dr Andrew Ellis. Subsequently, in Paciocco (Final) Beech-Jones CJ at CL set out extracts from later reports of Dr Kerri Eagle and Associate Professor John Basson as well as a report from Dr Adam Martin. A Risk Assessment Report (RAR) was prepared by Dr Gordon Elliott dated 22 August 2022 and reports have been prepared by the appointed experts, Dr Sathish Dayalan and Dr Jeremy O’Dea.

14. All of those doctors have at various times diagnosed the defendant as suffering from schizophrenia or, as a differential diagnosis, a schizoaffective disorder (the former diagnosis is the preferred one by most of the doctors). Both Dr Dayalan and Dr O’Dea were also of the opinion that the defendant had borderline intellectual functioning or impairment, and substance abuse, albeit, that condition was in remission in the controlled environment where the defendant was detained. The defendant has also been diagnosed with ADHD from childhood. A comparison between the earlier reports referred to and the reports of the recently engaged doctors discloses the intractable nature of the defendant’s condition.

Mental Health Review Tribunal (s 127(2)(e))

15. The latest available report from the Mental Health Review Tribunal (MHRT) is dated 1 December 2022. The Tribunal noted that neither the defendant nor his treating team had asked the Tribunal to consider changing the current order, and the Tribunal did not do so.

16. The MHRT noted a treating team report which provided that the defendant had a number of episodes of verbal and physical aggression during the previous six months. It included aggression directed towards a nurse of Asian appearance, and an attempt to slap his then treating psychiatrist, Dr Reznik, on the face. The report also noted that although the defendant had been on a maximal dosage of psychotropic medication for some years, his underlying behaviours had changed little.

17. On the positive side, the MHRT noted that the defendant had asked for more books to read, that he had been attending a TAFE course, and had been engaging well in art therapy. Nevertheless, the MHRT noted that the defendant’s assessment demonstrated a high loading of static/historical risk factors. Then current clinical risk factors were problems with violent ideation or intents, symptoms of major mental illness, instability and treatment or supervision response. The authors of the assessment opined that in a less controlled environment, there would be a significant risk of deterioration in his mental state secondary to stress, lack of supports and possible substance abuse, which might lead to a heightened risk of violence.

18. The Tribunal noted that the defendant engaged well with the Tribunal, but he appeared to lack a nuanced appreciation of the concerns about his behavioural issues. The Tribunal said that the defendant’s complex mental health and physical needs were currently best met in the Forensic Hospital.

Report from psychiatrist (s 125(b)) and reports from appointed specialists (s 126(5))

Risk of harm to others (s 122(1)(a))

19. In his RAR, Dr Elliott considered that the defendant fell into a group of offenders considered high risk for violent recidivism. He said that the defendant was resistant to progress through the forensic pathway and continued to display aggressive behaviour. Dr Ellliott considered that if the defendant relapsed into alcohol or cannabis use, or the use of other illicit substances, that would markedly increase his risk of violent recidivism.

20. Both Dr Dayalan and Dr O’Dea considered that the defendant was a risk of serious harm to others.

21. In his report, Dr Dayalan noted a number of incidents of violence by the defendant directed at staff and patients of the premises where he is being detained. These incidents are consistent with many of those set out by Campbell J in his judgment and which I summarised in Paciocco (No 2) at [24].

22. In relation to the risk presented by the defendant, Dr Dayalan said this:

Mr Paciocco has a high loading of historical risk factors which include problems with violence; problems with other anti-social behaviour; problems with relationships; problems with employment, problems with substance use, presence of major mental disorder; probable violent attitudes; traumatic experiences, problems with treatment or supervision response and possible problems with personality functioning.

He also presents with a high loading of clinical risk factors namely problems with insight into his illness and substance use; possible violent ideation; ongoing symptoms of major mental disorder, cognitive/emotional/behavioural instability and problems with treatment response.

…

Mr Paciocco presents with a high loading of historical and clinical risk factors for violence. It has been challenging to manage his aggressive behaviour within a high secure hospital. His ongoing psychotic symptoms, poor frustration tolerance and impulsivity contribute to the problem behaviour. Periods of relative stability in presentation have been noted but not sustained.

It appears that improved understanding of his presentation by staff members and establishment of a therapeutic relationship are important to managing his risk of aggression to himself and others in addition to medications and psychological treatment. Progress with rehabilitation has been quite delayed probably due to paranoid perception of staff members, cognitive deficits and limited insight and motivation to progress through the forensic system. His functioning is quite impaired due to his physical and mental health impairments and this probably contributes to his anxiety of progressing through settings with reduced support.

The aggressive behaviour exhibited by Mr Paciocco whilst in the Forensic Hospital has not resulted in serious injuries. This would be at least partly attributable to the secure nature of the setting where he has limited access to weapons and where staff are well-experienced in managing aggressive behaviour. Any reduction in the levels of security and support provided needs to be done in a graded stepwise manner. Staff experienced in the management of patients with risk of aggression will need to be involved in his care.

…

Given the high loading of historical risk factors and clinical risk factors, Mr Paciocco does pose a risk of serious harm to others. I will address the risk of serious harm to others if he were to continue as a forensic patient and cease to be a forensic patient in my response to question 5.

The factors contributing to the risk of violence have been detailed in the section Risk Assessment. The level of risk posed will be influenced by a number of external factors such as his living circumstances, extent of psychosocial support and monitoring. The risk of Mr Paciocco committing an act of serious violence will increase if placed in a setting with limited support and supervision.

The historical risk factors are largely static in nature and do not significantly change over time. The dynamic risk factors will be influenced by his placement, treatment and supervision. Problems with insight, ongoing psychotic symptoms, instability, risk of relapse into substance use, problems with coping, interpersonal skills and response to treatment and supervision can potentially improve with ongoing treatment and rehabilitation. It is noted that there have not been any significant sustained shifts in these risk factors despite his placement in the Forensic Hospital for some years.

23. In relation to risk, Dr O’Dea said:

61.   On the basis of the documents made available to me, and my clinical assessment on 31 March 2023, Mr Paciocco suffers from a severe chronic treatment resistant schizophrenic illness, with ongoing positive signs of schizophrenia (of at least marked disorder in the form and content of his thinking, an irritable affect, and ongoing problems with significant anger, aggression and violence, and poor behavioural control), and significant cognitive impairment (including poor empathy, insight and judgement), despite intensive psychiatric treatment in a structured and supervised mental health facility for the past 5 years.

…

65.   Whilst Mr Paciocco has an extensive history of antisocial and illegal behaviours, with ongoing irritability and aggressiveness, reckless disregard for the safety of himself or others, and lack of remorse; these characteristics are better understood in the context of a psychiatric diagnosis of a severe chronic treatment resistant schizophrenic illness, than as a Personality Disorder.

66.   Furthermore, Mr Paciocco’s forensic history, the commission of the index illegal act, and his history of self-harm; would appear to be best understood, at least in large part, in the context of his schizophrenic illness; with his history of at least delusions, significant disorder in the form of his thoughts, significant mood disturbance, and evident and ongoing problems with poor insight, poor judgement and poor behavioural controls related to his schizophrenic illness; likely active at the time of the commission of these acts.

67.   On the basis that Mr Paciocco continues to display at least significant disorder in the form of his thoughts, significant mood disturbance, poor insight, poor judgement and poor behavioural controls, he requires ongoing structured and supervised psychiatric treatment in a secure psychiatric facility at the present time for at least the protection of others from serious harm.

68.   In particular, he requires significant improvement in his schizophrenic illness, in order to adequately and appropriately manage his risk of engaging in further offending behaviours, or of causing serious harm to others, in the community in the long term.

69.   Whilst Clozapine is the gold standard treatment for severe chronic treatment resistant schizophrenia, and psychostimulants (such as Ritalin®) are indicated in the treatment of ADHD, I would be at least cautious regarding the potential deleterious effects of the prescribed Ritalin® on Mr Paciocco’s severe chronic treatment resistant schizophrenia, and overall risk issues.

70.   On the basis of the active and ongoing signs of his severe chronic treatment resistant schizophrenic illness, and the likely relationship between this condition, his significant history of self harm, his offending behaviours in the past, and his ongoing problems with anger, aggression and violence, I would consider that Mr Paciocco currently suffers from a “mental illness” and is a “mentally ill person” under the meaning of the New South Wales Mental Health Act 2007.

71.   I would also consider that, if Mr Paciocco were to cease to be a forensic patient, and were to be released into the community without supervision, then there is a significantly high likelihood that he would pose a significant risk of serious harm to others by virtue of his active schizophrenic illness.

Management of risk (s 122(1)(b))

24. In his RAR, Dr Elliott said:

Currently the least restrictive form of management of Mr Paciocco’s risk of harm to others is for his continued placement in The Forensic Hospital as a forensic patient.

…

Mr Paciocco’s risk of causing serious harm to others is best managed by the continuation of his forensic patient status. As has been highlighted in earlier reports, forensic patient status ensures that his overall care is supervised by the Mental Health Review Tribunal. Any plans to release him from the Forensic Hospital will automatically require an independent risk assessment and the approval of the Mental Health Review Tribunal.

…

I do not consider that Mr Paciocco’s risk of causing harm to others can be adequately managed by his reclassification as an involuntary patient under the Mental Health Act 2007. … Should he become an involuntary patient under the Mental Health Act, this oversight [of the Mental Health Review Tribunal] is lost.

25. Dr Elliott reiterated that view in a supplementary report of 24 October 2022.

26. Dr Dayalan said this:

Mr Paciocco has continued to present with verbally and physically aggressive behaviour whilst in the Forensic Hospital. However, given the nature of the setting, the acts of physical aggression have not resulted in serious physical harm. It is noted that the MHRT and his treating team are of the opinion that the Forensic Hospital is the least restrictive environment to manage Mr Paciocco’s risk of serious harm to self and others. He continues to have his medications reviewed to manage his behaviour on the unit. The multidisciplinary team including the psychologist have been attempting to engage Mr Paciocco in psychosocial rehabilitation. He has had a recent change in his psychiatrist.

…

The complex presentation and challenges posed by Mr Paciocco will require input from specialist psychiatric services as he transitions through different settings into the community. He will require oversight of the Mental Health Review Tribunal in regard to his placement, treatment received and level of supervision and monitoring.

…

For reasons explained earlier, Mr Paciocco will be expected to transition through a medium secure facility. With reduction in the level of security, he will require input from clinicians who have expertise in managing patients with chronic mental health conditions and challenging behaviour. As a forensic patient, he will be able to access three medium secure units namely Macquarie Unit at Bloomfield Hospital, Kestrel Unit at Morisset Hospital or Bunya Unit at Cumberland Hospital.

Discharge into the community as a forensic patient will require a second opinion from another specialist, often the community forensic mental health services (CFMHS) and permission from the MHRT. The MHRT will need to be satisfied that he does not pose a risk of causing serious harm to others before ordering his release into the community.

…

The Forensic Patient status is of most relevance in managing his risk of serious harm in the community as this allows for oversight from the MHRT and mandates periodic assessment of risk by the CFMHS. The conditions imposed under a conditional order for a forensic patient are more rigorously monitored by the community mental health services and breaches of the conditions are more effectively addressed.

…

There are limits to the conditions that can be imposed under a CTO and the level of monitoring can be variable depending upon the team involved in his care. It appears that Mr Paciocco was receiving treatment under a community treatment order at or just prior to the time of the index offences. He admitted that he had continued to smoke cannabis and had not been compliant with his treatment prior to the offences.

27. Dr O’Dea said:

71.   I would also consider that, if Mr Paciocco were to cease to be a forensic patient, and were to be released into the community without supervision, then there is a significantly high likelihood that he would pose a significant risk of serious harm to others by virtue of his active schizophrenic illness.

72.   Whilst I would be guarded as to the likely improvement in Mr Paciocco’s mental state, even with ongoing and assertive treatment in the Forensic Hospital; progression from the Forensic Hospital to another secure psychiatric facility, may be considered, dependent on his progress at the Forensic Hospital. However, I do not consider that Mr Paciocco is likely to be able to be managed in the general community, outside the confines of a structured, supervised and secure psychiatric facility, in the foreseeable future.

73.   Ongoing treatment at the Forensic Hospital could be provided equally via continuation of Mr Paciocco’s forensic patient status or via classifying him as an involuntary patient under the New South Wales Mental Health Act 2007. Whilst he is an inpatient at the Forensic Hospital, or at any other gazetted psychiatric facility, under either status, he would have access to the same level of clinical care. However, the legal procedures for discharge and the structure of community treatment thereafter would differ.

74.   As a forensic patient, his release to a less restrictive environment, including the general community, would be required to be granted by the New South Wales Mental Health Review Tribunal, but, as an involuntary patient under the New South Wales Mental Health Act 2007, his discharge from Hospital to the community would be at the discretion of the Medical Superintendent of the Hospital in which he is resident.

75.   In the clinically unlikely event that, in the short to medium term, it were psychiatrically indicated that Mr Paciocco be conditionally released into the community as a Forensic Patient, under the provisions of the New South Wales Mental Health and Cognitive Impairment Forensic Provisions Act 2020; or discharged to the community on a Community Treatment Order (CTO) under the provisions of the New South Wales Mental Health Act 2007, the conditions of such a community risk management program could be more prescriptive on Conditional Release than under a CTO, and therefore more adequate and appropriate in Mr Paciocco’s case, as the conditions that can be put in place under a CTO are limited.

…

79.   That being said, whilst a CTO may be a less restrictive alternative to conditional release, it is likely to prove insufficient in prescribing and therefore providing the framework to provide adequate risk management of Mr Paciocco’s overall forensic psychiatric treatment needs under such circumstances; with remaining a Forensic Patient likely to be the least restrictive and best option in the long term under the circumstances.

Determination

28. Having regard to the earlier judgments in relation to the defendant, to the RAR by Dr Elliott and to the reports of Dr Dayalan and Dr O’Dea I am satisfied to a high degree of probability that the defendant poses an unacceptable risk of causing serious harm to others if he ceases to be a forensic patient, and that the risk cannot be adequately managed by other less restrictive means. In relation to managing risk by other less restrictive means, I have had particular regard to what was said by Adamson J in Attorney General of NSW v Doolan by his tutor Jennifer Thompson (No. 2) [2016] NSWSC 107 at [96]-[129], and to the summary of that analysis by Beech-Jones J in Minister for Mental Health v Paciocco [2016] NSWSC 1530 at [61]-[65].

29. It is apparent that the optimism expressed when I considered this matter in 2018 has not been borne out since that time. Although the defendant’s treatment by clozapine appears to have been beneficial to some extent, it does not appear to have stabilised the defendant in the way that had been hoped. The behaviours which he has manifested since that time, particularly to staff and other patients of the facilities, seems to me to be a further indication of the intractable nature of his schizophrenia. I note the opinion of the treating team in its report to the MHRT (above at [16]) that, despite the defendant being on a maximal dose of psychotropic medication, his underlying behaviours had changed little.

30. I have also had regard to the Justice Health Records for 2023 which tend to support the conclusion that, overall, little has changed during the period the defendant has been detained.

The length of the order

31. The plaintiff seeks an order for five years. The defendant submits that the appropriate duration is an order for four years.

32. The defendant submitted that Dr Dayalan’s opinion was that a period of four years would be regarded as a minimum period to facilitate safe transition into the community. That was said to be on the basis that, provided the defendant makes further progress, he might be transferred to a medium secure unit in 12 months with an estimate of staying two to three years.

33. The defendant submitted that although Dr O'Dea said that five years was the appropriate period for the order, Dr Dayalan’s opinion should be preferred for three reasons; first, because Dr Dayalan took into account a recent conversation with the defendant's treating psychiatrist on 13 April 2023 in which it was stated that the intended pathway was for the defendant to transition through the Elouera Unit and a medium secure unit before being placed into the community; secondly, that potential progress was supported by the details of the order sought contained in the MHRT Forensic Patient Review Notice of Intent; and thirdly, because Dr Dayalan was an employee of the Forensic Hospital.

34. The defendant submitted that the progress notes from January to April 2023 show positive progression on the part of the defendant. Those matters were said to show that the defendant could be compliant and had the capacity to be “future-oriented” in his rehabilitation. In particular, the defendant’s attitude has changed from the time he spoke to Dr Elliott and he has now accepted progression to Elouera in a positive way.

35. The defendant submitted that four years is an appropriate period on the basis that there is no bar to the plaintiff making a further application for an extension order at the conclusion of the period if it is required.

36. In my opinion, the order should be made for a period of five years. There are a number of reasons for that conclusion.

37. First, Dr Dayalan’s statement that four years would be regarded as a minimum period must be read in its context. Dr Dayalan said:

Provided he makes further progress, it is possible that he may be transferred to a medium secure unit in 12 months. The estimated length of stay in a medium secure unit would be 2-3 years. As indicated earlier, it would be essential for his forensic patient status to continue when he transitions into the community. A period of four years would be regarded as a minimum period to facilitate safe transition of Mr Paciocco into the community if the forensic patient status were to be extended.

It should be noted that these timeframes are rough estimates and time periods for transfer can be influenced by external factors such as bed demand in medium secure units and accommodations in the community. They will also be influenced by Mr Paciocco’s response to treatment.

38. Dr Dayalan’s view that he “may” be transferred to a medium secure unit in 12  months is put on the basis that the defendant makes further progress and his response to treatment. An examination of the defendant’s response to treatment provides little hope of a significant improvement within a 12 month period to enable a transfer to a medium secure unit by that time. I have referred already to the unsatisfied optimism of those responsible for his treatment in 2018 and, indeed, in this Court’s assessment based on the material available to it - I say that without any criticism because at the time there was some evidence to support that optimism.

39. It is not without significance that in 2018 the order was made for an 18 month’ period, but when the matter came back before the Court in early 2020 an order was made for a three year period, seemingly on the basis that there had not been much, if any, change in the defendant’s condition and his response to treatment.

40. Ms Khalilizadeh of counsel for the defendant submitted that this was not a case that was without hope. That may be so, but it is a case where experience must take precedence over hope. From having examined the matter closely in 2018 and again at the present time, the evidence appears to me to highlight the intractable nature of the defendant’s condition, and I see little change overall in his behaviour in terms of his expression of aggression and violence towards other people. I am not at all confident that the defendant would be transferred to a medium secure unit within 12 months based on what I perceive to be the lack of progress overall that the defendant has made since he first became a forensic patient.

41. Secondly, it may be accepted that there have been positive responses and behaviour from the defendant on the various occasions highlighted in the submissions prepared on his behalf. However, those occasions do not appear to have resulted in any real progress overall as far as the defendant’s behaviour is concerned. He has continued to act aggressively towards staff and other patients as disclosed in the various reports of Dr Elliott, Dr Dayalan and Dr O’Dea. Further, the defendant’s overall attitude appears from the way he dealt with the experts who examined him. Dr O’Dea said:

10.   He presented as irritable and cantankerous, and displayed marked disorder in the form and content of his thinking, typical of patients suffering severe schizophrenia. …At times he spoke in a rambling manner, and became louder, angry, aggressive, and threatening when questioned regarding inconsistencies in his history, …

…

12.   He displayed poor insight and judgment and limited remorse of contrition in relation to the index unlawful acts.

42. Dr Elliott said:

21.   …As I entered the room, it was evident that he was expecting me. He cut off my greeting with the remark, “can you come back in ten minutes”. He came to insist upon this delay, despite the nurse present trying to coax him to start the interview. He waited until I walked out, then said almost immediately that he was prepared to start the interview and exhibited an impatience to do so. He was terse and controlling of the interview. …He did not like to be questioned or have his remarks echoed back to him. My attempts to do the latter generally resulted in an angry, “I didn’t say that”.

…

24.   Mr Paciocco grew impatient for the end of the interview after around forty to forty five minutes. He began saying repeatedly, “so is that all” and it eventually became necessary for me to end the interview.

…

27.   Once again, Mr Paciocco was generally uncooperative and a poor historian who controlled this interview and didn’t reply directly to questions. He ended the interview early.

43. Thirdly, he told Dr Dayalan a number of times during his assessment that he would reoffend if he was discharged into the community. He reported feeling safer in the hospital and said that if released he would “probably end up doing the same thing eventually”, and his next victim would be a male. He also told Dr O’Dea that he did not want to be in the community and that he might do the same thing again.

44. Fourthly, remaining as a forensic patient does not mean that the defendant cannot be eased into the community if that is found by the MHRT to be appropriate. That was the flexibility that Beech-Jones J was speaking of in Paciocco (Final) at [41]. The treating team is clearly looking at progress on a step-down basis; I note in that regard The Notice of Intent for the next assessment to be made by the MHRT on 15 June 2023.

45. It will take some time before the defendant is at the stage of being conditionally released into the community, given that he has been detained at a high level of security now for about nine years without a great deal of improvement in his overall behaviour. Dr Dayalan said that the minimum period for a safe transition into the community would be four years. Further time would then be needed to stabilise him while he remains in the community after such a long period under the restrictive conditions he has lived for the past 9 years and the further years in medium security before he is so conditionally released. His position is not dissimilar to a prisoner who has become institutionalised, with all the difficulties that obtain when such a person obtains their freedom. But it is more difficult in this case because he will never be free from the schizophrenia that is the source of his behavioural issues. On the basis of the material before me, I consider that the defendant will need the close supervision accorded by being a forensic patient for some years when and if he is conditionally released.

43. Finally, I note the terms of s 133 of the Act which enables the Court to vary or revoke an extension order (inter alia) on the recommendation of the MHRT. In the event of a significant improvement in the defendant’s condition that might justify his being supervised under less restrictive means, I have no doubt that the MHRT would take appropriate steps under this provision.

Conclusion

47. I make the following order:

1. Order pursuant to s 121 of the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (No 12) (NSW) that the status of the defendant as a forensic patient be extended up to and including 11 June 2028.

**********

Decision last updated: 07 June 2023