State of New South Wales v MAK

[2021] NSWSC 875

Supreme Court

New South Wales

Medium Neutral Citation:	State of New South Wales v MAK [2021] NSWSC 875
Hearing dates:	19 July 2021
Date of orders:	23 July 2021
Decision date:	23 July 2021
Jurisdiction:	Common Law
Before:	Harrison J
Decision:	Application for extended supervision order dismissed with costs.
Catchwords:	HIGH RISK OFFENDER – serious sex offender – application for an extended supervision order – whether offender poses unacceptable risk of committing another serious offence without supervision – where offender currently living in community following release on parole – where psychiatric and risk assessment reports suggest limited to no risk of offender committing another serious sexual offence of same type – where reports suspect or fear that offender is at some possible risk of committing intrarelationship sexual violence but no history of him having done so – where offender has manageable schizophrenia secondary to acquired brain injury which presents some likelihood of reducing risk of reoffending – where State has not satisfied test of unacceptable risk to high degree of probability
Legislation Cited:	Crimes (High Risk Offenders) Act 2006 (NSW)
Cases Cited:	State of New South Wales v Pacey [2015] NSWSC 1983
Category:	Principal judgment
Parties:	State of New South Wales (Plaintiff) MAK (Defendant)
Representation:	Counsel: P Aitken (Plaintiff) R Pettit (Defendant) Solicitors: Crown Solicitor’s Office (Plaintiff) Ryan Payten Le (Defendant)
File Number(s):	2021/147829
Publication restriction:	Nil

Judgment

1. HIS HONOUR: By its amended summons dated 14 July 2021, the State of New South Wales seeks orders against MAK pursuant to the Crimes (High Risk) Offenders Act 2006. MAK was sentenced by Sully J on 22 April 2004, for a series of nine counts of aggravated sexual assault in company, to imprisonment for 16 years commencing on 1 August 2002 and expiring on 31 July 2018 with a total non-parole period of 12 years expiring on 31 July 2014. MAK was later sentenced by Hidden J on 5 April 2006, for one count of aggravated sexual assault, taking into account a charge of indecent assault on a Form 1, to imprisonment for 9 years with a non-parole period of 4 years commencing on 1 August 2012. The effect of these sentences was that MAK was imprisoned for a total period of 19 years commencing on 1 August 2002 and expiring on 31 July 2021 with a non-parole period expiring on 31 July 2016. MAK is currently living in the community, having been released to parole on 8 July 2020.

2. The State seeks interim and interlocutory relief from me as follows:

1. An order pursuant to s 7(4) of the Crimes (High Risk Offenders) Act 2006:

2. (a) Appointing two qualified psychiatrists and/or registered psychologists (or any combination of two such persons) to conduct separate psychiatric and/or psychological examinations of the defendant, as the case may be, and to furnish reports to the Court on the results of those examinations by a date to be fixed by the Court;

3. (b) Directing the defendant to attend those examinations.

4. An order pursuant to ss 10A and 10C that the defendant be subject to an interim supervision order for a period of 28 days commencing on 31 July 2021.

5. An order pursuant to s 11 of the Act, directing that the defendant, for the period of the interim supervision order, comply with the conditions set out in the Schedule to the summons.

3. On 27 November 2020, the State provided a brief, comprised of approximately 1,180 pages of material gathered from a series of State agencies, to Dr Richard Parker, a Senior Specialist Psychologist within the Serious Offenders Assessment Unit of Corrective Services NSW. Dr Parker was asked by the Corrective Services Commissioner to consider that material and to provide a Risk Assessment Report in relation to MAK in anticipation of this application and the expiration of his sentence.

4. Dr Parker provided a Risk Assessment Report as requested dated 25 January 2021. His qualifications and experience are described in that report as follows:

“My qualifications include a Bachelor of Science degree, Graduate Diploma in Community Counselling, Graduate Diploma in Applied Psychology, Master of Education (Hons), and a Doctor of Philosophy. My Master’s degree was completed by thesis alone and investigated the predictive abilities of offenders, probation and parole officers, and an actuarial risk assessment instrument. My PhD investigated the role of moral emotions (shame, guilt and pride) in the onset and maintenance of sexual offending. I am a member of the Australian and New Zealand Association for the Treatment of Sexual Abuse (ANZATSA) and a Clinical and Research member of the Association for the Treatment of Sexual Abusers. I have been registered as a psychologist since 1996.”

5. Dr Parker’s Risk Assessment Report forms part of the supporting documentation tendered by the State on this application. It contains the following material:

“62. From a risk assessment perspective, MAK presents a rather confusing picture. Static risk assessment instruments (STATIC-99R and VRAG-R) place MAK in the average or below-average risk categories – primarily as a result of his limited criminal history and stable upbringing.

63. On the other hand, dynamic risk assessment (STABLE-2007) indicates a high density of criminogenic needs relevant to sexual recidivism. Adding to this picture is the reality that MAK has spent very little time in the community since the index offences were committed about 18 years ago.

64. The process of developing risk scenarios attempts to draw together the dynamic risk factors that contributed to the serious sexual offence, and to identify circumstances and situations where risk of re-offending may increase in the future. This is based on the case formulation developed above.

65. While his parole conditions have restrained him from interacting with his brothers, at the time of the offending they were all young men and teenagers, living together in a house with no mature adult supervision. It seems unlikely that this living situation would be replicated, given the ages of his siblings now and the fact that some are married with children.

66. Consequently, the most likely scenario for any future offending would be quite different from the situation where the index offences occurred – particularly the active encouragement to offend from his siblings. In this respect, I consider it unlikely he would become involved in group rapes such as the index offences.

67. The most likely scenario for future sexual offending would be for sexual offences to be committed in the context of domestic violence. MAK’s attitudes and belief systems, combined with his lack of experience of relationships, leave him poorly equipped to navigate the dynamics of a relationship in the Australian culture. His limited social supports leave him further vulnerable in such a situation.

CONCLUSIONS AND RECOMMENDATIONS

68. MAK is a 39 year old man who migrated to Australia after finishing school in Pakistan. While he was able to gain employment, within a short time he was responsible for supervising his younger siblings who came to live with him. Within a few years, he was binge drinking and sexually promiscuous.

69. In concert with his brothers, teenage females were lured to the house and were subjected to repeated sexual assaults by the group. MAK received a 19-year sentence for his role in these crimes.

70. While in custody he suffered brain damage from an assault and later developed schizophrenia. While his schizophrenia responded to medication, he has ceased taking medication on a number of occasions, which was followed by a return of his symptoms. This resulted in him not being released to parole until the final year of his sentence, despite completing the CUBIT program several years earlier.

71. However, despite his somewhat superficial interactions in that program, it is likely that MAK has developed a satisfactory understanding of what is, and is not, legal in sexual interactions. Whilst he has only been briefly tested in the community, his behaviour in custody was generally compliant, suggesting a general willingness to comply with rules and regulations.

72. MAK has only offended during one short period of his life, some 18 years ago, and these offences were committed in concert with his siblings. It seems unlikely that MAK would participate in a similar offence in the future, although the possibility of a different type of sexual offence unfolding (probably within the context of a relationship) cannot be ruled out.

73. Static risk assessment instruments rank him as at average, or lower risk, whereas dynamic risk assessment indicates the presence of a number of risk factors. He has not been in the community long enough to warrant a formal re-examination of those risk factors.

74. In the event that MAK is subject to an Extended Supervision Order, he would receive intensive supervision and case management by CSNSW. This may include electronic monitoring, the obligation to provide weekly schedules of movement; unannounced visits by supervising staff; assistance finding suitable accommodation; scrutiny of social contacts, employment and leisure activities; and participation in CSNSW risk management programs located at Forensic Psychology Services.

75. In the event no further order is imposed, MAK’s sentence will expire on 31 July 2021. Whether the potential risk of MAK being left unsupervised in the community would be considered ‘unacceptable’ is a matter to be determined by the Court.”

6. On 14 December 2020, at the request of MAK’s treating psychiatrist, the Justice Health and Forensic Mental Health Network prepared a Problem Behaviour Management Report with the expressed aims of identifying factors associated with his index offending in order to assist with his safe treatment and care. The report was subject to the following limitation:

“This report provides an opinion on MAK’s current risk management needs. The opinions expressed in this report are time-limited to approximately six months, due to the variability of individuals’ needs and risk. Unexpected changes in MAK’s clinical and psychosocial circumstances may lead to fluctuations in his propensity for problem sexual behaviour over a shorter period.”

7. That report contained the following opinions concerning risk:

“Risk Factors for Problem Behaviour

Historical Risk Factors

MAK has a moderate-high loading of historical risk factors, which are associated with risk of aggression in the longer term. These are considered static and, largely, unchangeable. MAK presents with a history of problems with: violence; maintaining relationships and employment; alcohol use; major mental illness (including a psychotic illness and cognitive impairment); adverse child rearing experiences and victimisation trauma; attitudes permissive of violence; and poor compliance with treatment.

Dynamic Risk Factors

MAK presents with a moderate loading of clinical risk factors relevant to his recent presentation. These are considered dynamic, and can be utilised to inform treatment targets. He presents with broad deficits of insight into his mental health, need for treatment, and risk for future sexual violence. He presents with residual symptoms, despite compliance with antipsychotic treatment, and has a pattern of superficial engagement with treatment.

MAK presents with a moderate loading of factors related to his prospective risk management. Whilst he presents with a support network in his family, at least one of these persons was a co-offender in his index offences. He has a history of poor coping with stress, which will remain relevant as he is exposed to increased stressors associated with establishing an independent lifestyle. Finally, his treatment compliance is superficial, and concerns would be significantly raised without involuntary orders mandating his compliance.

Factors Specific to Risk for Sexual Violence Risk

The STATIC-99R was used to explore MAK’s future risk of being charged or convicted of a further sexual offence. This tool mainly examines the patient’s offending history. In a sample of High Risk/High Need offenders, MAK falls into a group with a rate of sexual recidivism estimated at 7.2% over a five year period, and 13% over a ten year period. Compared to this sample, this is considered ‘below average risk’.

MAK presents with a number of further factors that elevate risk concerns related to his propensity for sexual violence. With respect to the cluster of index offences, MAK’s problem sexual behaviour was chronic (involving a high density episode of offending), and involved both physical and psychological coercion (victims were threatened with weapons, prevented from leaving, intoxicated, and had some previously established friendship with the perpetrators). MAK presents with extreme minimisation and denial of the problem sexual behaviour. Furthermore, he has an extended history of attitudes that are derogatory towards women and condoning of sexual violence. In combination, these contribute to significant deficits in MAK’s self-awareness.

Other risk factors discussed above for risk of reactive aggression additionally serve as risk factors for future episodes of sexual violence.

Strengths and Protective Factors

MAK presents with some protective factors that may serve to ameliorate his risk for future violence. He has an appropriate range of medical and psychosocial treatments offered to him, and is subject to a number of external control orders with which he maintains compliance.

Synopsis

MAK presents a moderate-high concern for future episodes of problem sexual behaviour. He was convicted of a cluster of aggravated sexual assaults committed in company. MAK engaged with intensive sex offender treatment in custody and maintenance forensic psychology services in the community. Despite this, he maintains denial of the index offence, and presents with derogatory attitudes towards the victims and more pervasive derogatory attitudes towards women generally. He has familial links to his convicted co-offenders, and maintains contact where he is legally allowed to do so.

MAK additionally presents with a loading of static risk factors for violence generally, as well as a psychotic illness with only partial response to treatment. Whilst his problem sexual behaviour is considered to be derived from non-psychotic motivators and attitudes, MAK’s psychotic illness has the potential to disinhibit his behaviour, which would increase risk concerns. He presents with some external protective factors, including numerous legal orders with which he maintains compliance. In combination with his superficial pattern of engagement and poor insight, this is indicative of a limited capacity for internal regulation of his problem sexual behaviour.”

8. On 11 March 2021, following MAK’s release to parole some eight months earlier, Shantelle Hodgkinson, a Community Corrections Officer, prepared a Risk Management Report concerning MAK. Ms Hodgkinson noted that an assessment of MAK’s risk of general reoffending undertaken on 20 July 2020 found him to fall into the medium risk level for general reoffending. A psychological risk assessment undertaken on 1 June 2016 estimated that MAK fell into the well above average risk category of sexual reoffending. Ms Hodgkinson noted that at the date of her report, MAK was supervised in the community by way of parole order. His response to supervision was noted to have been satisfactory and he appeared to be appropriately engaging with his then current supervising officer and adhering to the conditions of his parole order among others.

9. MAK was more recently reviewed by his psychiatrist Nahid Siddiqui on 23 June 2021. Her “Final Report” included the following observations:

“On assessment

Today MAK attended the clinic for review on time.

He presented as average built man of stated age with mild central obesity.

He is well groomed, pleasant, polite, engaged superficially

Nil psychomotor agitation or slowing.

Spontaneous normal appropriate speech.

Mood – worried with euthymic congruent affect.

Nil FTD [frontotemporal dementia]

Nil Depressive/hypomanic or manic – thoughts expressed nor identified.

Nil psychotic features with delusions or perceptual disturbances acknowledged nor identified.

He denies any DSH/SI nor any thoughts of harming others.

Her [sic] insight – is difficult to ascertain at best ambivalent. He verbally expressed he accepts he has schizophrenia but often refers to it being given to him by doctors, he does not feel any different than normal man and feels there are interpretations which are different.

IMP Schizophrenia in remission

Low risk of relapse or non-compliance or harm to self or others.”

10. Section 7(4) of the Act provides as follows:

(4) If, following the preliminary hearing, it is satisfied that the matters alleged in the supporting documentation would, if proved, justify the making of an extended supervision order, the Supreme Court must make orders:

(a) appointing:

(i) 2 qualified psychiatrists, or

(ii) 2 registered psychologists, or

(iii) 1 qualified psychiatrist and 1 registered psychologist, or

(iv) 2 qualified psychiatrists and 2 registered psychologists,

to conduct separate psychiatric or psychological examinations (as the case requires) of the offender and to furnish reports to the Supreme Court on the results of those examinations, and

(b) directing the offender to attend those examinations.

11. In order to justify the making of an extended supervision order, the following test in s 5B of the Act must be satisfied:

5B Making of extended supervision orders—unacceptable risk

The Supreme Court may make an order for the supervision in the community of a person (an extended supervision order) if:

(a) the person is an offender who is serving (or who has served) a sentence of imprisonment for a serious offence either in custody or under supervision in the community, and

(b) the person is a supervised offender (within the meaning of section 5I), and

(c) an application for the order is made in accordance with section 5I, and

(d) the Supreme Court is satisfied to a high degree of probability that the offender poses an unacceptable risk of committing another serious offence if not kept under supervision under the order.

12. In the present case, there is no dispute that the three factors described in s 5B(a), (b) and (c) have been satisfied. Only s 5B(d) remains in issue.

13. The cases in this area of jurisprudence are replete with statements of what represents an unacceptable risk. It is unnecessary slavishly to reproduce those statements here.

14. It is apparent that MAK poses a risk of committing another serious offence if not kept under supervision. The material before me suggests that the risk is that MAK may commit an offence in the context of an established or developing relationship. The burden of opinion suggests that there is limited, if any, risk at all that MAK will commit a serious sexual offence of the type that was concerned with the index offences. Specifically, that offending involved the assistance and urging of his brothers, present with him at the time and also offending in a similar way, when he was in his early twenties. There is general acceptance of the fact that similar violent offending is not likely. That, of course, is not the end of the matter.

15. In support of his opposition to the interim orders sought by the State, MAK made the following submissions.

16. All of MAK’s offences were committed in a single year when he was either 21 or 22. He is now 41.

17. The State’s concern that there is an unacceptable risk that MAK will commit a further serious sexual offence relies primarily upon the nature and circumstances of his index offending in 2002, a risk assessment drawn from 2017 data that he presents a “well above average” risk of sexual reoffending of a different type and an opinion that it is “too early to tell” if he has adapted to lawful community life.

18. MAK submitted that this application raised three key areas of concern for consideration. First, the calculation of the risk of MAK committing a further serious sexual offence. In the present case, the State contends that MAK is at risk of committing further sexual offences of unexplained seriousness within the context of a relationship. MAK’s risk of offending, both sexual offending and more generally, has been exhaustively assessed using several of the standard tests designed for making predictions concerning such risks. His general risk of offending has been assessed as moderate by Dr Parker. His risk of sexual recidivism has been assessed as “moderate-low”, scoring 2 on a scale of -3 to 12, by Amanda Pilley in her CUBIT Treatment Report dated 18 May 2017. MAK’s risk of violent offending has been assessed at “below average” by Dr Parker.

12. Secondly, MAK also drew attention to what have been referred to by medical experts as “criminogenic needs”. In this respect, MAK was classified as having “high” criminogenic needs in 2017. A composite assessment provided by Ms Tilley in her report concluded that MAK was in the “moderate high” category for supervision and intervention compared to other sexual offenders. MAK’s Sexual Offenders Supervision Assessment level was “medium”, and deemed unlikely to change as at September 2020.

13. Finally, MAK was assaulted while in custody in 2007. This attack was severe and is well documented. MAK developed mental health issues as a result and now suffers from schizophrenia secondary to an acquired brain injury. MAK has been medicated for his schizophrenia since 2012. He is currently subject to a Community Treatment Order which expires in approximately six months. There is evidence to suggest that an application to extend or renew that order is proposed. At present, the evidence suggests strongly that the Community Treatment Order is effectively assisting to manage MAK’s schizophrenia. There is no unambiguous evidence that MAK’s psychiatric condition heightens the risk of reoffending. Dr Parker is of the view that it is likely to reduce that risk.

14. There is no issue that MAK has complied with the conditions of his parole since his release on 8 July 2020. He has in addition been compliant with conditions attaching to his Community Treatment Order, a Child Protection Prohibition Order and the requirements of the Child Protection Register. All of those orders will continue in force, in varying degrees, past the expiration of MAK’s sentence on 31 July 2021. MAK also currently has the support of the National Disability Insurance Scheme which has arranged for supported accommodation with 24-hour care.

15. In State of New South Wales v Pacey [2015] NSWSC 1983, I described the task of assessing an unacceptable risk in the following way:

“[43] It is perhaps trite to observe that the assessment of the ordinary meaning of the unacceptability of any risk involves at least notionally the arithmetical product of the consequences of the risk should it eventuate on the one hand and the likelihood that it will eventuate on the other hand. A very high risk of occurrence of something that is insignificant, or a very low risk of occurrence of something that is significant, are both risks of similar or corresponding proportions, but neither risk could be considered to be unacceptable.”

23. Dr Parker is eminently qualified to express an opinion about MAK. He did not interview MAK, but was provided with a wealth of material by reference to which to form his views. That material came from sources such as the Children’s Guardian, the Serious Offender’s Review Council, the State Parole Authority, Corrective Services NSW, the NSW Police Force, Victims Services and the Justice Health and Forensic Mental Health Network. Dr Parker was also provided with material from this Court which, without other information about it, I assume to have been the sentencing remarks of Sully J and Hidden J as well as the judgments of the Court of Criminal Appeal in each case. The fact that Dr Parker did not speak to MAK seems to me to be of minor significance.

24. Dr Parker’s opinion is that MAK presents “a rather confusing picture” from a risk assessment perspective. Static risk assessment instruments place him in the average or below-average risk categories. It is significant that this assessment derives primarily from his limited criminal history and stable upbringing. On the other hand, MAK’s dynamic risk assessment indicates a high density of criminogenic needs relevant to sexual recidivism. Although MAK has spent little time in the community, which adds to this risk analysis, MAK’s progress since his release to parole appears to have been relevantly without incident.

25. Dr Parker also emphasises that it seems unlikely that the collocation of factors that spawned the index offending will be repeated. Those offences were committed in circumstances where MAK had been effectively left to his own devices in Australia, with no parental supervision, living with his brothers who were then all young men or teenagers. Dr Parker opined that the most likely scenario for any future offending would be in the context of domestic violence. MAK’s attitudes and belief systems, combined with his lack of relationship experience, leave him poorly equipped to navigate the dynamics of a relationship in the Australian culture. However, MAK has no history of intra-relationship violence and to some extent Dr Parker’s caution is the result of understandable predictive hesitancy.

26. MAK has completed the CUBIT program. The material suggests that he was resistant to this in some respects in years past. However, that program, or its present equivalent, are regularly emphasised as preconditions to parole in cases involving violent sexual offenders. It is not something that in my view can fairly be levelled at MAK as a negative or disentitling factor. MAK has completed the course and is entitled to receive the benefit of having done so. Indeed, Dr Parker specifically notes that MAK has developed a satisfactory understanding of what is, and what is not, legal in sexual interactions.

27. MAK sustained a severe brain injury as the result of an assault in custody. He developed schizophrenia as a result for which he is medicated. This condition remains responsive to medication, provided that MAK maintains compliance with his pharmaceutical regime. Dr Parker notes that MAK’s behaviour in custody was generally compliant, suggesting a willingness to conform to rules and regulations. It is accepted that this remains to be tested over a longer period in the community.

28. Dr Parker also observes that MAK has only offended during one short period of his life, now approximately 19 years ago. Dr Parker re-emphasised his opinion that it seemed unlikely that MAK would participate in similar offending in the future, although the possibility of a different type of sexual offence unfolding, probably in the context of a relationship, could not be ruled out.

29. Static risk assessment instruments rank MAK as being average or lower risk whereas dynamic risk assessment indicates the presence of a number of risk factors. Dr Parker does not express a concluded view about how that combination is likely to play out in a community setting.

30. The Problem Behaviour Management Report of 14 December 2020 suggests that MAK has a moderate-high loading of historical risk factors that are associated with the risk of aggression in the longer term. For obvious reasons, MAK’s historical profile will never change. As I understand Dr Parker’s view, the historical significance of MAK’s index offending is not great.

31. The Problem Behaviour Management Report suggests that MAK presents with a moderate loading of factors related to his prospective risk management. Specifically with respect to his risk factors for sexual violence, MAK falls into a group with a rate of sexual recidivism estimated at 7.2% over a five year period and 13% over a ten year period. That is, according to the authors of the report, a below average risk.

32. Ms Hodgkinson’s report of 11 March 2021 suggests that MAK has a medium risk for general offending. Her reference to a psychological risk assessment undertaken on 1 June 2016 is somewhat curious. Even though that assessment estimated MAK fell into the well above average risk category of sexual offending at that time, no contemporary opinion endorses that prediction. It is in my opinion not without significance that the report is now more than five years old, MAK has since completed the CUBIT program and has been released to parole for 12 months without incident.

33. Finally, Dr Siddiqui has provided an assessment summary as recently as 23 June 2021. As far as I am aware, Dr Siddiqui has had a close therapeutic role with MAK for some time. It is not insignificant in my view that her opinion is that MAK presents with a low risk of relapse or non-compliance or harm either to himself or others.

34. Taking the matters alleged in the supporting documentation upon which the State relies at their highest, or what amounts to the same thing, proceeding at this stage of inquiry upon the basis that those matters can be proved, they would not in my opinion justify the making of an extended supervision order.

35. The ultimate requirement is satisfaction that MAK poses an unacceptable risk of committing another serious offence if not kept under supervision. The supporting documentation upon which the State relies raises arguably what might variously be characterised as a suspicion or a fear or a possibility that MAK poses an unacceptable risk of committing another serious offence if not kept under supervision. In particular, the matters alleged in the supporting documentation upon which the State relies provide some basis for a suspicion or a fear or a possibility that MAK poses what seems to be a low risk of committing a sex offence in the context of a relationship. The product of those integers – that is to say, a low risk (i.e. suspicion, fear or possibility) that MAK may commit a sex offence in the context of a relationship - means that the risk may, at least nominally, be characterised as unacceptable.

36. However, the underpinning justification for the making of an extended supervision order harks back to the requirement in s 5B(d) that this Court be satisfied “to a high degree of probability” that MAK relevantly poses such an unacceptable risk. While not critical for present purposes, it is reasonably apparent that this test was intended by the legislature as a brake upon orders amounting to a significant interference with an offender’s personal liberty, although importantly the safety and protection of the community are in this context taken to be paramount. I have not disregarded that critical consideration. I am of course not required to determine that the relevant risk is more likely than not in order to determine that there is an unacceptable risk of MAK committing a serious offence: s 5D.

37. In this case, as I have indicated, the material on which the State relies suggests at one level that MAK poses an unacceptable risk of committing another serious offence if not kept under supervision. However, even at the preliminary stage of an application such as this, the requisite justification for the making of an extended supervision order to which s 7(4) of the Act refers remains satisfaction to a high degree of probability. The existence of a fear or suspicion or possibility that this may occur is not enough. The matters alleged in the supporting documentation would not, if proved, satisfy me to a high degree of probability that MAK poses an unacceptable risk of committing another serious offence if not kept under supervision under an extended supervision order.

38. Accordingly, I dismiss the State’s application for an extended supervision order pursuant to s 9(1)(b) of the Act.

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Decision last updated: 26 July 2021