The King v Ajax
[2023] NTSC 80
•12 September 2023
CITATION:The King v Ajax & Anor [2023] NTSC 80
PARTIES:THE KING
v
AJAX, David
and
CHIEF EXECUTIVE OFFICER DEPARTMENT OF HEALTH
TITLE OF COURT: SUPREME COURT OF THE NORTHERN TERRITORY
JURISDICTION: SUPREME COURT exercising Territory jurisdiction
FILE NO:22028681
DELIVERED: 12 September 2023
HEARING DATE: 3 May 2023
ADDITIONAL WRITTEN
SUBMISSIONS: 11, 22, 25 May 2023
JUDGMENT OF: Brownhill J
CATCHWORDS:
Criminal Code 1983 (NT) ss 43R, 43T, 43XA, 43XB, 43Y, 43ZA, 43ZG, 43ZH, 43ZJ, 43ZLA, 43ZM, 43ZN, 43ZO
Briginshaw v Briginshaw (1938) 60 CLR 517; Gifford v The Queen (2016) 263 A Crim R 373; Nigro v Department of Justice (2013) 234 A Crim R 1; Reberger v The Queen [2011] NSWCCA 132; The Queen v Faulton [2004] NTSC 12; The Queen v Forscutt [2004] NTSC 8; The Queen v Gibson [2017] NTSC 47; The Queen v KMD (No 2) [2017] NTSC 18; The Queen v KMD (No 5) [2022] NTSC 69; The Queen v KMD [2015] NTSC 31; The Queen v Kunoth [2014] NTSC 41; The Queen v Morton (2010) 27 NTLR 114; The Queen v RK [2019] NTSC 67; The Queen v Skeen [2018] NTSC 28; The Queen v Verdins (2007) 16 VR 269, referred to
REPRESENTATION:
Counsel:
Crown:TJ Wrathall
Supervised Person: T Collins
CEO Department of Health: K Bremner
Solicitors:
Crown:Office of the Director of Public Prosecutions
Supervised Person: North Australian Aboriginal Justice Agency
CEO Department of Health: Solicitor for the Northern Territory
Judgment category classification: C
Judgment ID Number: Bro2317
Number of pages: 49
IN THE SUPREME COURT
OF THE NORTHERN TERRITORY
OF AUSTRALIA
AT DARWINThe King v Ajax & Anor [2023] NTSC 80
No. 22028681
BETWEEN:
THE KING
Crown
AND:
DAVID AJAX
Supervised Person
AND:
CHIEF EXECUTIVE OFFICER DEPARTMENT OF HEALTH
CORAM: BROWNHILL J
REASONS FOR JUDGMENT
(Delivered 12 September 2023)
Introduction
By an indictment dated 12 May 2021, Mr Ajax was charged with two counts of aggravated assault alleged to have been committed on 11 September 2020.
On 31 August 2021, by agreement between the Crown and Mr Ajax’s counsel on his behalf[1], the Court found that Mr Ajax was unfit to stand trial pursuant to s 43T(1) of the Criminal Code, and that there was no reasonable prospect that Mr Ajax might, within 12 months, regain the necessary capacity to stand trial pursuant to s 43R(1) of the Criminal Code.
Following these findings, the Court received a report from psychiatrist, Dr Sam Calvin, of a psychiatric assessment of Mr Ajax (‘Calvin report’). The Calvin report stated that Mr Ajax meets the criteria for a major neurocognitive disorder due to multiple aetiologies, and displays features of alcohol use disorder. Consequently, the report found that Mr Ajax has an established diagnosis of intellectual disability and brain damage. The Calvin report recorded that Mr Ajax lives in supported accommodation, cannot manage his finances and needs assistance for activities of daily living. There is a longstanding history of poor emotional control, impulsivity and the use of instrumental violence, which are all attributable to his low intellectual functioning and exacerbated during periods of intoxication. The Calvin report stated the alleged offending is likely to have been driven by his poor impulse control, low frustration tolerance and an inability to deal with stress adaptively. Mr Ajax would not have been able to reason with a moderate degree of sense and composure about whether his conduct, as perceived by reasonable people, was wrong. The Calvin report concluded Mr Ajax had the defence of mental impairment available to him.
On 21 July 2022, the Crown and Mr Ajax’s counsel on his behalf agreed that he was suffering from a mental impairment at the time of the offending. Pursuant to s 43XA of the Criminal Code, the Court accepted a plea, and recorded a finding, of not guilty because of mental impairment. By consent, pursuant to s 43XB(a) of the Criminal Code, the Court declared Mr Ajax liable to supervision under Division 5 of Part IIA. Pursuant to s 43Y of the Criminal Code, the Court granted Mr Ajax an order for bail on the same terms and conditions that he was bailed after his arrest. Pursuant to s 43ZJ(1) of the Criminal Code, the Court ordered the CEO of the Department of Health (‘CEO’) to file a report on Mr Ajax’s mental impairment or disability.
Various documents were tendered in relation to the matter, including facts about the offending agreed between the Crown and counsel for Mr Ajax on his behalf (Ex P1), the report under s 43ZJ of the Criminal Code recommending that Mr Ajax be the subject of a non-custodial supervision order (‘NCSO’) for a period of 12 months (Ex P2) (‘the first s 43ZJ report’), the Calvin report (Ex P3), Mr Ajax’s criminal history record (Ex P4 and P5), photographs of the victim’s injury and the scissors used in the offending (Ex P6), a victim impact statement from the victim (Ex P7), a plan for the transition of Mr Ajax from the secure care facility operated by the Forensic Disability Unit (‘FDU’) of the Department of Health in Alice Springs (‘ASSCF’) to the community (Ex P8), a certificate under s 43ZA(4) of the Criminal Code (Ex P9), a further report under s 43ZJ dated 10 April 2023 (Ex P10) (‘second s 43ZJ report’), a report by forensic psychologist, Dr Luke Hatzipetrou, assessing Mr Ajax’s risk of reoffending (Ex P11), a report by an occupational therapist addressing Mr Ajax’s needs for support in the community (Ex P12), a report by an accredited disability social worker and National Disability Insurance Scheme (‘NDIS’) registered behaviour support practitioner responding to criticisms and concerns about his care held by the FDU (Ex D1) (‘Veritable report’), and an affidavit by Baltasara De Luca, the Senior Manager of the FDU, about the ASSCF.
The Court’s tasks are to consider whether to make a custodial supervision order (‘CSO’) or a NCSO within s 43ZA of the Criminal Code and to fix a term pursuant to s 43ZG of the Criminal Code, being the term that would have been the appropriate sentence to impose on Mr Ajax if he had been found guilty of the offences. That term becomes the period for the conduct of the major review to determine whether to release the supervised person from the supervision order (s 43ZG(5)).
The parties were agreed that the appropriate type of order to be made is a NCSO. They were also largely agreed as to the terms of that order, save in relation to three conditions sought by the CEO and the Crown.
Fixing the nominal term
Pursuant to s 43ZG(2) of the Criminal Code, the Court is required to conduct a hypothetical sentencing exercise, taking into account all relevant sentencing considerations that would apply had the supervised person been found guilty under the general criminal law.[2] The supervised person’s mental impairment is a relevant factor in that exercise.[3]
The maximum penalty for each offence Mr Ajax was charged with is five years’ imprisonment.
The facts agreed about the offending are that at about 10.30am on 11 September 2020, the victim was sitting on a window ledge in the vicinity of a shopping centre in Alice Springs. He was talking on his mobile phone. Mr Ajax walked past him playing loud music on a speaker and yelling. He approached a woman, pulled out a pair of scissors from his pocket and held them in front of her. She did not respond. He put the scissors back in his pocket and continued yelling loudly. The victim asked him to be quiet. Mr Ajax turned towards the victim, took out the scissors, raised them above his head and said he would stab and kill the victim. He moved towards the victim, who told Mr Ajax to go away and used his leg to kick Mr Ajax away. Mr Ajax lunged towards him with the scissors above his head. The victim raised his arm across his face to protect himself. Mr Ajax brought the scissors down, stabbing the victim on his forearm, causing pain and bleeding. The victim moved away, then went inside the shopping centre, notifying security, who contacted Police. When the victim came outside, he walked past Mr Ajax, who spat on him. The spittle went onto the victim’s face, neck and arms and into his eyes and mouth. When Police arrived, Mr Ajax was identified by the victim and arrested. The victim did not seek medical attention.
In his victim impact statement, the victim said he was disgusted and felt dirty and worried about bacteria on the scissors and ‘the virus’ (a reference to COVID-19).
This was a random and largely unprovoked attack, upon a request to turn down Mr Ajax’s music. Count 1 involved the use of an edged weapon, a threat to stab and kill, and physical injury to the victim. The weapon was a small pair of scissors, and the physical injury was minor and did not require medical treatment. Count 2 involved the act of spitting at another person, with the spittle landing on the victim’s face and in his eyes and mouth. The offending occurred during the prevalence of COVID-19 and caused the victim to feel disgusted and have some concerns about contracting a disease.
I consider the offending to be at the low end of the range of objective seriousness for this kind of offending.
Mr Ajax’s criminal history includes some 15 convictions for assault (most of them against Police) and threatening behaviour, 5 convictions for being armed with a weapon, and a number of convictions for disorderly behaviour in public, property damage and the like.
Generally speaking, both general and specific deterrence, denunciation and punishment would be important sentencing factors. Those factors would be moderated to a substantial degree given Mr Ajax’s cognitive deficiencies as described in the Calvin report, which had a causal link to the offending, in accordance with the principles in The Queen v Verdins (2007) 16 VR 269, but those same deficiencies raise the risk of similar offending in the future, making the protection of the public a relevant consideration.
The Crown submitted that a total sentence to imprisonment of 12 months would not be outside the range for these offences and counsel for Mr Ajax accepted and adopted that submission. I agree.
Pursuant to s 43ZG(1) of the Criminal Code, I fix a term of 12 months. While the Court may, pursuant to s 43ZG(4B), determine that the term is to commence from a time before the making of the supervision order and at or after the time Mr Ajax was first taken into custody for the offences, I consider that the 12 month period should commence from the date of this decision, noting that Mr Ajax was granted bail following his arrest.
Making a supervision order – Relevant considerations and approach
The Court may make a NCSO subject to the conditions the Court considers appropriate and specifies in the order (s 43ZA).
In determining whether to make an order under Part IIA, including a NCSO (s 43ZLA), the Court must apply the principle that restrictions on a supervised person’s freedom and personal autonomy are to be kept to the minimum that is consistent with maintaining and protecting the safety of the community (s 43ZM). The matters to which the Court must have regard are set out in s 43ZN(1), namely:
(a)whether the supervised person is likely to, or would if released be likely to, endanger himself or herself or another person because of his or her mental impairment, condition or disability;
(b)the need to protect people from danger;
(c)the nature of the mental impairment, condition or disability;
(d)the relationship between the mental impairment, condition or disability and the offending conduct;
(e)whether there are adequate resources available for the treatment and support of the supervised person in the community;
(f)whether the supervised person is complying or is likely to comply with the conditions of the supervision order; and
(g)any other matters the Court considers relevant.
In The Queen v KMD [2015] NTSC 31, Riley CJ made the following observations (at [39]) in relation to the Court’s determination in accordance with ss 43ZM and 43ZN:[4]
In my opinion determination of these matters involves a balancing of competing considerations. The likelihood of the person being a danger to herself or another person and the need to protect others must be balanced against the desire to ensure the liberty of the individual. The consequences for the individual who, it must be remembered, has been found not guilty of criminal activity by virtue of mental impairment, may be quite serious including ongoing detention or living under onerous supervision. The risk assessment must reflect both the likelihood of conduct of concern occurring and the magnitude of the harm that may result from any such conduct. The legislation calls for an assessment of the degree of likelihood of the occurrence of the risk along with the nature of the risk and its consequences. Some level of risk will, almost always, be present. The extent of the risk must be weighed in the balance in determining the nature of the supervision order to be imposed.
The purpose of Part IIA is to assist a supervised person to successfully integrate into the community if that can be achieved safely.[5] It is not about sanction under the criminal law, but a plan for the rehabilitation of a person who has been found not guilty of a crime by reason of mental impairment.[6]
There can be little doubt that the onus of establishing the relevant risk lies on the ‘appropriate person’, in this case, the CEO, and that the standard of proof is the balance of probabilities upon the Briginshaw principle[7], such that matters to be proven should be firmly established.[8]
Counsel for Mr Ajax submitted that the ‘threshold’ question for the making of a NCSO (and its conditions) is whether there is a ‘serious risk’ posed by the supervised person’s unconditional release. In its terms, Part IIA only applies such a threshold when the Court is undertaking the major review of a supervision order under s 43ZG and when the Court is undertaking a periodic review of a supervision order under s 43ZH. In those circumstances, the threshold is whether the Court considers or is satisfied that the safety of the supervised person or the public will or is likely to be seriously at risk if the person is released. That test does not apply when the Court is considering whether to impose a NCSO on a person who has been declared liable to supervision and granted bail. The relevant matters for the Court to consider in these circumstances are those set out in ss 43ZM and 43ZN, which are to be determined in the way set out in paragraph [20] above, cognisant of the purpose of Part IIA referred to in paragraph [21] above.
Counsel for Mr Ajax submitted that the relevant question is not what is in the best interests of the supervised person. Certainly, the relevant provisions do not use that term. However, one of the matters the Court must consider is whether the supervised person is likely to endanger himself or herself because of their mental impairment, condition or disability. Even if it is accepted that Part IIA is concerned with ‘forensic risks’ rather than ‘disability associated risks’ (something which is supported by the terms of s 43ZM – which focuses on maintaining and protecting the safety of the community), the differentiation between those two, particularly in the context of a statutory obligation to consider whether the supervised person is likely to endanger themselves because of their disability, may be very difficult to draw.
Uncontested terms of the NCSO
The parties are agreed that the Court should make a NCSO subject to the following conditions:
(a)Mr Ajax be under the care of and receive treatment from the Department of Health, including the FDU, and NDIS support providers agreed to by the Office of the Public Guardian, including the specialist behaviour support practitioner, the coordinator of supports, the supported independent living accommodation provider and the community access disability service provider (‘the treating team’).
(b)Mr Ajax comply with any reasonable direction made by a member of the treating team.
(c)Mr Ajax participate to the best of his ability with ongoing assessment, development and interventions offered by the treating team, including any Positive Behaviour Support Plan, activity program, vocational education and learning.
(d)Mr Ajax attend all medical and allied health appointments advised by medical and allied health professionals as organised by the treating team.
(e)Mr Ajax reside at his supported independent living accommodation as specified by the treating team.
(f)Mr Ajax not threaten or assault any person.
Those conditions are quite common in NCSOs made in relation to people with a mental impairment, condition or disability who need support and assistance in daily living, and I am satisfied they are appropriate in Mr Ajax’s case.
Contested conditions of the NCSO
In addition to those conditions, there are three conditions proposed by the CEO, with support from the Crown, which are contested by Mr Ajax’s counsel on his behalf. Those conditions are:
(a)Mr Ajax be accompanied by a member of his treating team 24 hours per day, 7 days per week.
(b)Mr Ajax not purchase, possess or consume alcohol, or other volatile or intoxicating drugs or substances, including cannabis.
(c)If Mr Ajax’s behaviour deteriorates such that a period of stabilisation at the ASSCF is required, the CEO together with members of the NT Police, are to re-accommodate Mr Ajax at the ASSCF and the Court is to be notified as soon as practicable.
Assessment of risks
Dr Hatzipetrou is a Forensic Psychologist, a Fellow of the College of Forensic Psychology and of the College of Clinical Psychology. There was no evidence as to his experience, save for a statement in the first s 43ZJ report that he has expertise in delivering treatment services to people with intellectual disability, autistic spectrum disorders and mental health disorders. Dr Hatzipetrou provided a report (Ex P11) prepared following: (a) a 40 minute interview with Mr Ajax during which Mr Ajax was supported by a Disability Support Supervisor; (b) an interview with Craig Sawyer, the Regional Operations Manager of Life without Barriers (‘LWB’), the organisation providing supported independent living (‘SIL’) accommodation to Mr Ajax; and (c) a meeting with LWB staff working in that accommodation. He also reviewed a large number of written documents, including numerous assessment reports by psychiatrists, psychologists, an occupational therapist, case managers and other health professionals, medical reports, NDIS support plans, transition plans and court documents. Dr Hatzipetrou was not required for cross-examination by counsel for Mr Ajax, so did not give oral evidence. References to what Dr Hatzipetrou said are to the statements and opinions set out in his report.
Dr Hatzipetrou recited Mr Ajax’s medical history, which includes seizures due to epilepsy and alcohol withdrawals, including some in which Mr Ajax suffered significant injuries, dementia, alcohol abuse, cannabis use and petrol sniffing, the latter three having contributed to his brain damage, which is progressive. Dr Hatzipetrou recited Mr Ajax’s personal history, which includes the appointments of the Public Guardian as his guardian for personal affairs and the Public Trustee as his guardian for financial affairs, accommodation break downs and homelessness, NDIS funding for SIL accommodation, and reviews of the adequacy of his NDIS package. He recorded that, since May 2020, Mr Ajax has lived, and is currently living, in a supervised four bedroom house with two other men with disabilities (‘the house’). The house is managed by LWB. Mr Ajax’s NDIS package provides funding for a staff ratio of 1:3 and a ‘passive nightshift’, however an ‘active nightshift’ is currently funded through one of the co-tenant’s NDIS package. Reference was made to that co-tenant taunting and antagonising Mr Ajax, which causes Mr Ajax to display ‘spontaneous reactions’, and has led to a physical altercation between them in the past. In the house, Mr Ajax has his own bedroom and shares a bathroom. There are two living areas in the house so the three tenants can be separated if required. On a daily basis, Mr Ajax is absent from the house for significant periods of time, often leaving on his own in the morning and returning in the afternoon or at night. His routine is to attend the Tangentyere Council to access his daily allowance, a place Mr Ajax has historically sought assistance from when he was homeless, and continues to attend there if he is upset. He has become verbally abusive and threatening to staff there on occasion. They are generally able to de-escalate his outbursts and contact the staff of LWB if necessary. The staff in the house comprise a core group who have been working with Mr Ajax for an extended period and others including six casual staff. Mr Ajax finds music very enjoyable and carries his USB music player and speaker and plays music when he goes out in public. Mr Ajax’s persistent and longstanding abuse of alcohol is referred to, including Mr Ajax drinking methylated spirits in 2016, drinking hand sanitizer mixed with lemonade ‘more recently’, and Mr Ajax commonly accessing alcohol and becoming intoxicated whilst out of the house. Reference was made to a number of psychiatric assessments in which the opinion was expressed that Mr Ajax becomes aggressive when intoxicated or in periods of confusion (such as following a seizure). It was noted that, at the time of his report, there was no Positive Behaviour Support Plan in place for Mr Ajax. Reference was made to concerns raised by the LWB staff about Mr Ajax’s ‘behaviours of concern’, namely his propensity for physical and verbal aggression towards others and property, his alcohol use which appears to occur ‘on most days’, his leaving the house alone either for the day or, at times, overnight, his being struck (but not injured) or almost struck by vehicles whilst crossing the road, and Police escorting him home due to this or intoxication.
Dr Hatzipetrou undertook a risk assessment of Mr Ajax’s risk of ‘general offending’ using the ARMIDILO-G risk assessment tool, which is designed to assess the risk of general recidivism amongst individuals with intellectual and/or cognitive impairment. This was done on the basis of information provided by staff of LWB during a two hour interview.
Dr Hatzipetrou also undertook a risk assessment of Mr Ajax’s risk of violent offending using the Historical Clinical Risk – 20 (‘HCR-20’) risk assessment tool, which is a structured professional judgement risk assessment tool. This was done on the basis of information contained in the documents provided and Dr Hatzipetrou’s observations of Mr Ajax.
Dr Hatzipetrou said Mr Ajax requires more formalised behavioural support, and a review of his current residential situation and staff support ratio. He said that without formal behavioural interventions or ongoing risk assessments and management strategies, Mr Ajax is unlikely to have developed new coping skills including anger management or improved problem solving or to use alternative responses if confronted with the same scenario that triggered his offending, which scenario is feasibly possible to reoccur given Mr Ajax frequents Alice Springs daily and consumes alcohol, which would further diminish his capacity for self-regulation. He said Mr Ajax is also at risk of being harmed himself and/or exploited without an increase in staff support ratios, given he has wandered into traffic and been struck by vehicles. Dr Hatzipetrou said the risk of reoffending and vulnerabilities will decrease if Mr Ajax has higher levels of supervision and support throughout the day. Further, Mr Ajax’s physical health means he requires ongoing care and increased supervision during the day. Dr Hatzipetrou said Mr Ajax’s violent behaviour appears to be a learnt response to perceived threats or antagonism and a maladaptive coping response to psychosocial dilemmas that cannot be readily resolved. He said, under the influences of alcohol, Mr Ajax’s ability to tolerate and manage his negative affective states is significantly compromised. He said there is a clear and immediate need for a Positive Behaviour Support Plan containing prescriptive strategies for positive programming, managing behaviours and recording incidents, and the staff at the house should be trained in its implementation.
Risk of harm to others
The expression of Dr Hatzipetrou’s opinions regarding the risk of harm to others in his report raises some difficulties. Initially, Dr Hatzipetrou opined that Mr Ajax’s estimated risk of perpetrating violent and general offending behaviours is moderate to high, as is his risk of causing serious physical harm to others.[9] Elsewhere in the report, Dr Hatzipetrou opined that Mr Ajax’s risk of violent reoffending is likely to be moderate to high, with the risk of causing serious harm to others being moderate and the risk of ‘imminent violence’ being low to moderate.[10]
Doing the best I can in the absence of oral evidence from Dr Hatzipetrou, it appears that it was Dr Hatzipetrou’s opinions that:
(a)The risk of Mr Ajax reoffending at some time in the future by either violent or non-violent conduct (Dr Hatzipetrou’s term ‘general offending’) is moderate to high. I note that reoffending which does not endanger someone (such as property damage or disorderly behaviour) is not relevant to the Court’s task.
(b)The risk of Mr Ajax reoffending at some time in the future by violent conduct is moderate to high.
(c)The risk of Mr Ajax reoffending at some time in the future by violent conduct causing serious harm to another person is moderate. I note that, when stating this opinion, Dr Hatzipetrou referred to Mr Ajax’s use of scissors ‘in the past’ which resulted in injury to a person. That appears to be a reference to the index offending, which involved a very minor injury to the victim’s arm which did not require medical treatment. Such injury could not be described as ‘serious harm’.
(d)The risk of Mr Ajax reoffending in the short term by violent conduct is low to moderate.
It is unknown what Dr Hatzipetrou considers to be ‘violent conduct’. For example, whether that conduct is confined to an application of physical force upon another person or includes a verbal threat to harm another person unaccompanied by any application of physical force, or being armed with an offensive weapon in public or disorderly behaviour. It is also unknown what Dr Hatzipetrou considers to be ‘serious harm’, but he appears to class the injury to the victim of the index offending, which was minor, as ‘serious harm’.
Mr Ajax’s counsel has criticised Dr Hatzipetrou’s risk assessments on a number of bases, including that they do not take into account that, at the time of the offending (which occurred around three years ago and two years and seven months before Dr Hatzipetrou prepared his report), Mr Ajax had only just moved to supported accommodation, whereas he had for many years lived in unsupported accommodation or had been homeless, and that Mr Ajax has been on bail since the offending and has not committed another violent offence in that time. Further, it was said that Dr Hatzipetrou was not provided with accurate information regarding Mr Ajax’s more recent ‘behaviours of concern’.
Is the Court bound by Dr Hatzipetrou’s opinions?
The CEO argued that it was not open to Mr Ajax to invite the Court to reject Dr Hatzipetrou’s opinions on the basis also pressed by counsel for Mr Ajax, namely that he had misapplied the ARMADILO-G risk assessment tool, when he was not required for cross-examination, citing Reberger v The Queen [2011] NSWCCA 132 at [48]. In that decision, the Court acknowledged that a court can sometimes reject evidence that has not been cross-examined on and gave the examples of if it was inconsistent with other evidence that the court accepted, or was inherently incredible. The Court cited four New South Wales authorities, each of which make clear that a court is not bound to accept evidence which a witness was not cross-examined on, and a failure to do so may or may not, in the circumstances of the case (including reasons explaining the absence of cross-examination), amount to an error of fact. I note that none of those four authorities related to expert evidence. When determining what weight should be accorded to an expert’s opinion, it is relevant to consider the process of reasoning by which those opinions were formed.[11]
It is apparent that the failure of Mr Ajax’s counsel to require Dr Hatzipetrou for cross-examination was because, in their written submissions filed before the oral hearing, neither the CEO nor the Crown indicated any reliance on Dr Hatzipetrou’s report or his assessment of risk. Rather: (a) the Crown made generalised submissions in support of a NCSO with the proposed disputed conditions; and (b) the CEO’s submissions referred to and relied on the two s 43ZJ reports. The first s 43ZJ report was prepared before Dr Hatzipetrou’s report, and makes no reference to its conclusions. The second s 43ZJ report includes Dr Hatzipetrou’s report as one of 27 documents listed as ‘sources of information’. It contains only two mentions of Dr Hatzipetrou’s report, as follows:
Dr Hatzipetrou’s Forensic Risk Assessment indicates Mr Ajax’s cognitive impairment impacts on judgement reasoning and self-regulation and more so, planning and organisation. He presents with an elevated risk of physical violence and general offending when he is not accessing supports and/or accessing alcohol. His use of alcohol is not accurately monitored or recorded yet he does return home in [a] state of intoxication and he is reportedly transported by Police to his home on multiple occasions. Mr Ajax is also vulnerable to assaults from others. There is reported history of violence perpetrated on Mr Ajax, and he subsequently seeks weapons to protect himself. Mr Ajax’s vulnerability increases markedly when intoxicated and importantly, his access to sharps will need to be managed and access to alcohol stopped.[12] [emphasis added]
…
Dr Luke Hatzipetrou’s forensic risk assessment has made evidence-based recommendations in regards to Mr Ajax’s treatment needs and this will inform his Behaviour Clinician, FDU and the NDIA Complex Support Need Branch about his NDIS support needs moving forward.[13]
By contrast, numerous references were made in the s 43ZJ reports to LWB incident reports and daily notes and/or Mr Ajax’s behaviours whilst living in his SIL accommodation (ie in the recent past and since the index offending),[14] which were sought to be substantiated by summaries of these ‘behaviours of concern’ contained in annexures to the reports and covering the period 2 January 2022 to 31 March 2023.
It is hardly surprising, therefore, that the challenge made by Mr Ajax’s counsel to the proposed disputed conditions did not involve cross-examination of Dr Hatzipetrou regarding his risk assessment, but cross-examination of various witnesses, including Ms De Luca, regarding the bases for and accuracy of the opinions drawn in the s 43ZJ reports about Mr Ajax’s ‘behaviours of concern’, particularly those said to involve acts of physical violence or aggression.
In the circumstances, I do not consider myself bound to accept the opinions of Dr Hatzipetrou regarding his assessments of the risks of reoffending posed by Mr Ajax, particularly where I consider that his opinions or reasoning are difficult to understand. I have already referred above to the difficulties with understanding Dr Hatzipetrou’s opinions.
Dr Hatzipetrou’s factual observations
It is correct to say that Dr Hatzipetrou did not make any reference to Mr Ajax not having committed another violent offence for which he has been charged since the index offending, almost three years ago. It appears that he has not taken that fact into account.
That fact seems particularly important in this case, where the offending occurred almost three years ago, Mr Ajax has been in the community on bail (and not the subject of a NCSO) since then, with conditions that did not include the three disputed proposed conditions,[15] the Court is now deciding whether to impose a NCSO and the nominal sentence period for the purposes of the major review is 12 months. Consequently, a risk assessment focussing on the likelihood that Mr Ajax will commit a violent offence at any time in the future is not of great assistance in determining this matter. Much more relevant is the assessment of risk of violent offending in the short term, which Dr Hatzipetrou has put at low to medium.
I also note that Mr Ajax is now 57 years old. Dr Hatzipetrou described him as a small and frail looking man, appearing older than his stated age. This stature must bear on his capacity to cause serious harm to anyone, particularly if he does not have a weapon, and that capacity is diminishing with age. Dr Hatzipetrou did not appear to take this stature into account when conducting his risk assessments.
Like the s 43ZJ reports, Dr Hatzipetrou made numerous references to Mr Ajax recently engaging in behaviours of concern.[16] In doing so, he appears to have relied, at least in part, on the observations and summaries or opinions drawn about Mr Ajax’s ‘behaviours of concern’ in the s 43ZJ reports. For example, he said that ‘the typography of violence largely consists of punching and kicking others, throwing items and use of weapons’ and that, ‘[c]oupled with verbal and physical aggression, Mr Ajax’s behaviours of concern involve property destruction and leaving the home without supervision, notwithstanding alcohol dependency’. The analysis set out below demonstrates that Dr Hatzipetrou’s factual observations about these behaviours of concern are not borne out by what is reported in the s 43ZJ reports.
Narrative of ‘behaviours of concern’ – s 43ZJ reports
The first s 43ZJ report, dated 12 October 2022, (Ex P2) was prepared by a case manager, a senior clinician and Ms De Luca, who gave oral evidence. That report identified multiple ‘risk considerations’, including a failure to comply with the bail condition that he remain at the SIL accommodation, behaviours placing Mr Ajax at ‘high risk to himself’ by being unsupported in the community on busy roads, walking into traffic, kicking vehicles, throwing a wheelie bin onto the road and verbally abusing drivers, five ‘behavioural outbursts’ and one incident of heavy intoxication in a three month period between July and September 2022, a view that the LWB daily notes reflect significant under-reporting, minimising and normalising of Mr Ajax’s ‘behaviours of concern’ and general health observations, missed medication and medical appointments, a failure of Mr Ajax to participate in structured community based activities, conflict between Mr Ajax and his co-tenants, Mr Ajax having unsupported community access, ‘absconding overnight’, having access to alcohol, ‘violent offending behaviour’, and being ‘routinely’ returned to the house intoxicated. It was said that these behaviours of concern have been increasing over time. The annexure set out instances of ‘behaviours of concern’ as recorded in the LWB daily notes from 2 January to 5 October 2022. The ‘behaviours of concern’ comprised being away from the house during the day or at night, being verbally aggressive and/or throwing or hitting things, not taking medication, being intoxicated on return to the house, being returned to the house by Police at night and/or when intoxicated, and behaving dangerously on public roads, including one instance of being hit by a car, suffering a scratch on the back of his head. The report concluded by saying that, over the last nine months (prior to October 2022), Mr Ajax had ‘continued to demonstrate escalating behaviours of concern, particularly absconding for long periods of time, and offending behaviour in the community which place him and others at risk of harm’. The proposal at that stage was, pursuant to a NCSO, for Mr Ajax to be placed in the ASSCF for a ‘transition period’ and further assessment of his forensic disability needs and pursuit of further NDIS funding with a graduated transition to the community in whatever accommodation is necessary, funded and available.
As to the view that Mr Ajax had breached his bail condition by leaving the house, the bail condition did not require that he remain at the house 24 hours per day, 7 days per week, or prohibit him from leaving unaccompanied; it required only that he reside at the house.
As to the view that Mr Ajax had, in the period January to October 2022, engaged in ‘offending behaviour in the community’, the annexure cites the following:
(a)one instance, in January 2022, of Mr Ajax and his co-tenant having a physical fight, and no other instances of the application of physical force to another person;
(b)one instance, in April 2022, of swearing at and threatening to harm Police, and one instance, in May 2022, of a report of ‘aggressive behaviour towards staff and other people’ at Tangentyere Council, and no other instances of threatening to harm another person; and
(c)one instance, in January 2022, of Mr Ajax stopping a car on the road, swearing at the driver and throwing a wheelie bin onto the road; one instance, in January 2022, of Mr Ajax throwing a bin at a wall and stones at a fence; one instance, in March 2022, of Mr Ajax holding a rock in his hand and yelling at a passing car, throwing away the rock when staff asked him to, then punching the staff car on his way past; one instance, in April 2022, of Police reporting Mr Ajax ‘tried to smash cars in the middle of the road’; and one instance, in August 2022, of Mr Ajax throwing some pebbles towards the house and vehicles, and no other instances of potentially causing property damage (noting that none of these instances record that any property was actually damaged by Mr Ajax).
None of the above instances cited in the first s 43ZJ report sustain the conclusion that Mr Ajax had, in the period January to October 2022, engaged in offending behaviour in the community, save possibly the threat to harm Police. He was not prosecuted for that, or any other, offence.
As to the proposition that the behaviours of concern had increased over the period, the Veritable report translated the incidents in the annexure into a graphic representation to visually represent the data. The CEO and the Crown did not take issue with the accuracy of the graphic representations.
Those representations show that, across the period January to October 2022, the incidence of behaviours of concern generally declined from a peak in March/April 2022. Across the entire period, the frequency of verbal or physical outbursts was between one to three incidents per month, and those instances were generally only verbal, and had decreased since early 2022.
The representations also show that, across the period January to October 2022, Mr Ajax was absent from the house overnight on 11% of the nights reviewed, and returned home by Police after being absent overnight on 3 occasions. From June 2022 to October 2022, Mr Ajax was absent from the house overnight on only 5% of the nights, indicating the incidence of this behaviour was declining. There were also declining instances of intoxication and declining instances of Police involvement (bringing Mr Ajax home), which were largely as a consequence of welfare concerns rather than acts of aggression in public. Mr Ajax was returned home by Police only twice in September/October 2022.
The second s 43ZJ report, dated 10 April 2023, (Ex P10) stated that the LWB reports and daily notes indicate Mr Ajax has difficulties with staff and co-residents at the house, which include incidents of ‘threatened and actual violence against staff and verbal aggression against co-residents’. It stated that Mr Ajax had continued incidents of ‘aggression involving the Police whilst unsupported in the community and at his placement with support staff’. It stated that Mr Ajax’s ‘aggressive behaviours over the past 6 months at home includes [sic] physical assault of staff by punching or hitting, threatening to assault staff with a weapon, attempted property damage, verbal aggression and threats to harm and conflicts [with] co-residents’. The annexure sets out ‘behaviours of concern’ recorded in the LWB daily notes from 6 October 2022 to 31 March 2023.
The annexure cites the following:
(a)one instance, in December 2022, of Mr Ajax being ‘verbally and physically aggressive’, assaulting a staff member by slapping their elbow, threatening to hit staff with a big stick, and walking around hitting doors and the table, and no other instances of a physical application of force, or a threat of doing so, by Mr Ajax to another person;
(b)one instance, in February 2023, of Mr Ajax being verbally abusive to staff and threatening to smash a chair and the house, and no instances of actual property damage by Mr Ajax; and
(c)30 instances, across October 2022 to March 2023, of Mr Ajax being verbally abusive to others, those others being staff at the house (12 instances), drivers as he crossed a road (9 instances), a co-resident (4 instances), other people in the community (4 instances, including 1 at Tangentyere Council) and Police (1 instance).
It is apparent from what is set out in paragraphs [48] and [54] above, that the views expressed in both s 43ZJ reports are, at best, a gloss which does not convey an accurate description or reasonable sense of the nature or degree of acts of violence or property damage engaged in, or threatened, by Mr Ajax across that period. A more accurate gloss is that, across the period from January 2022 to March 2023, Mr Ajax physically struck another person twice, both of which were apparently minor applications of physical force and one was in the context of a consensual fight, Mr Ajax threatened to strike another person once (with a weapon), and did not actually cause any property damage but threatened to do so on one or, arguably, on no more than four occasions. That gloss is consistent with the observations made by forensic psychologist Dr Yvonne Maxwell, the author of a needs assessment and a Positive Behaviour Support Plan for Mr Ajax, on the basis of the data provided to her.[17]
It follows that, to the extent that Dr Hatzipetrou’s risk assessments were founded on the narratives in the s 43ZJ report, they are likely to be founded on a perception that Mr Ajax has, since the index offending, engaged in violent or threatening behaviour more often and more intensely than he actually has. This also confirms the importance of the matters set out in paragraphs [42] and [43] above.
Impact of Positive Behaviour Support Plan on risk of harm to others
It is also relevant to the Court’s task that Dr Hatzipetrou identified a ‘clear and immediate need’ for a Positive Behaviour Support Plan for Mr Ajax which, at the time of the offending, did not exist and, at the time of Dr Hatzipetrou’s report, had only just been drafted. Dr Hatzipetrou acknowledged that the development of positive and proactive strategies in such a plan would minimise the risk of violent offending.
Annexure C to the second s 43ZJ report is an Interim Positive Behaviour (Multi-Element) Support Plan (‘PBSP’) prepared for Mr Ajax by forensic psychologist Dr Maxwell in March 2023. The purpose of the PBSP was to improve Mr Ajax’s quality of life and reduce his behaviours of concern.[18] The FDU intended that the PBSP be implemented with staff of the house to be trained in its implementation commencing on 12 April 2023.[19] Dr Maxwell explained that the PBSP is not designed to manage forensic risk, but is specifically designed to support behaviour concerns related to disability.[20] Even so, if at least some of the behaviours of concern are drivers or indicators of forensic risk, then a PBSP which addresses and reduces behaviours of concern must have a consequential effect of reducing the forensic risk. That is consistent with Dr Hatzipetrou’s opinions as set out in paragraph [57] above.
Impact of intoxication on risk of harm to others
It is clear from, amongst other things, the annexures to the s 43ZJ reports and the Veritable report, that Mr Ajax consumes alcohol and becomes intoxicated on a regular basis, in the order of three to four days per week.[21] Dr Hatzipetrou referred to opinions expressed by Dr Kevin Smith about Mr Ajax’s offending behaviours, who opined that Mr Ajax was unable to control his behaviour due to his cognitive impairment and ‘acute alcohol abuse’, that alcohol intoxication had been ‘the most important determinate [sic] of Mr Ajax’s aggression’, and that Mr Ajax would experience ongoing difficulties controlling his behaviour as he was unable to control his drinking and continued accessing alcohol. Although not stated, this appears to be a reference to the report prepared by Dr Smith in January 2009.[22] Dr Hatzipetrou also referred to opinions expressed by Dr Ranjit Kini in a report dated 7 March 2017 that Mr Ajax’s alcohol consumption was a significant risk factor which rendered him vulnerable and significantly increased the risk he posed to himself, leading him to recommend that Mr Ajax not be permitted to consume alcohol. Dr Hatzipetrou stated that the reports from Dr Kini and Dr Smith highlight the elevated risks of violent behaviour associated with Mr Ajax’s alcohol intoxication. Dr Hatzipetrou opined that consuming alcohol would further diminish Mr Ajax’s capacity for self-regulation, intoxication significantly compromises Mr Ajax’s ability to tolerate and manage his negative affective states and ongoing access to alcohol impacts negatively on his cognitive abilities such as judgement and behavioural control, so he should not have access to alcohol.
Ms De Luca expressed the opinions that, even for a person who has significant cognitive deficits, alcohol intoxication will reduce the capacities they do have.[23] Asked about whether Mr Ajax’s alcohol intoxication would materially impact Mr Ajax’s risk of harm to others, noting that he had not reoffended since the index offending, she referred to Dr Hatzipetrou’s report and the outcomes of the risk assessments undertaken by him, saying ‘and we have to go by that’.[24] She also said that there have not been any intervention measures put in place since the index offending, other than providing him the house and the 1:3 support staff ‘which is not adequate support for him’, so she could not ‘say with certainty’ those risks ‘are mitigated … or decreased’.[25]
There are a number of difficulties with that opinion. First, there are the difficulties with the bases of Dr Hatzipetrou’s opinions set out in paragraph [56] above. Second, Dr Hatzipetrou’s report was written before the PBSP was being implemented and the 1:1 daily support was being provided to Mr Ajax (as to which, see paragraph [69] below). Third, it is not, in the task being undertaken by the Court, a matter of being able to say with certainty that forensic risks are mitigated or decreased. As the authorities referred to above make clear, there will always be some degree of risk.
In support of her opinions about Mr Ajax’s intoxication being a forensic risk factor, Ms De Luca pointed to a correlation, in the annexures to the s 43ZJ reports, between intoxication and aggressive behaviour.[26] No such correlation is borne out in the behaviours of concern recorded in the annexures to the two s 43ZJ reports. The annexure to the first report shows, between 2 January and 5 October 2022, 30 instances of Mr Ajax being intoxicated, but no reference to any aggressive behaviour at the time (verbal abuse, yelling, screaming, arguing, throwing or hitting things), 11 instances of Mr Ajax exhibiting aggressive behaviour, but no reference to him being intoxicated at the time, and only 5 instances of Mr Ajax exhibiting aggressive behaviour whilst intoxicated. The annexure to the second report shows, between 6 October 2022 and 31 March 2023, 19 instances of Mr Ajax being intoxicated, but no reference to any aggressive behaviour, 28 instances of Mr Ajax exhibiting aggressive behaviour, but no reference to him being intoxicated, and only 4 instances of Mr Ajax exhibiting aggressive behaviour whilst intoxicated. In other words, across the 14 month period, there were 88 instances of either intoxication or aggressive behaviour, and only 9 instances of both at the same time. That is not a sound basis from which to infer that Mr Ajax’s intoxication gives rise to aggression and thereby enhances the risk that Mr Ajax will, whilst intoxicated, commit violent reoffending in the future. Further, there is no evidence that the index offending was committed whilst Mr Ajax was intoxicated, a matter about which Ms De Luca was unaware.[27] Mr Sawyer’s evidence was that he had not identified any link between intoxication and behaviour which put other people at risk.[28]
I do not accept that Mr Ajax’s intoxication is a matter which gives rise to aggression and enhances the risk that he will, whilst intoxicated, commit violent offending in the future.
Conclusions on risk of harm to others
In light of all of the above, I find that the likelihood that Mr Ajax would, in the short term, engage in an act of violence, in the form of a physical application of force or a threat thereof, because of his mental impairment, is low to moderate.
Furthermore, I find that the degree of harm to another person likely to be caused if Mr Ajax were to so engage is unlikely to be serious, and is likely to be of a relatively low degree.
Consequently, I find the likelihood that Mr Ajax would endanger another person because of his mental impairment to be low to moderate.
Risk of harm to self
As to the likelihood that Mr Ajax would endanger himself because of his mental impairment, essentially the concerns in this regard raised in the various reports received into evidence were:
(a)Mr Ajax crossing roads without regard for traffic, thereby placing himself in danger of being struck by a car;
(b)Mr Ajax walking around in hot weather, and not drinking or eating;
(c)Mr Ajax not taking his medication as required, generally because he is not in the house when it is due to be taken;
(d)Mr Ajax falling and injuring himself when intoxicated;
(e)Mr Ajax not returning to the house for meals or at night time and his whereabouts and welfare being unknown; and
(f)Mr Ajax being assaulted or taken advantage of by others when he is by himself out of the house.
The occupational therapist’s functional assessment (Ex P12) described the concerns at (a) and (e) above to be ‘extremely catastrophic risk-taking’.[29] That led her to recommend ‘supervision, transport and 1:1 active support’.
The second s 43ZJ report (Ex P10) stated that, in February and March 2023, Mr Ajax was followed and observed in the community from 7am to 5pm. He was seen to cross the road multiple times, nearly being struck by vehicles, not to eat or drink despite the extremely hot weather conditions, taking water from a shop without paying for it, and yelling abuse at others or traffic. The annexure of behaviours of concern from October 2022 to 31 March 2023 includes the observations of Mr Ajax whilst out of the house, noting his crossing or obstructing roads without regard to traffic, his verbally abusing and gesturing at drivers who beep or yell at him, and his interactions with others. The report states that, since April 2023, the FDU has been funding 1:1 direct daily support for Mr Ajax from 7am to 6pm in the form of a staff member to accompany Mr Ajax when he leaves the house and providing a vehicle so the staff member can drive him to appointments or where he wishes to go, and providing to Mr Ajax from the vehicle water, snacks and a charging station for his music speaker. He is reminded to return home for lunch and in the evening.
It was accepted by Mr Sawyer, who had been working with Mr Ajax for the past two years, that having a staff member available to support Mr Ajax whilst out of the house, by driving him where he would like to go, or to medical appointments, or walking with him and helping him to cross the road safely, acting as an intermediary in his dealings with other people when he gets upset or frustrated, and monitoring his whereabouts, would reduce the risks of harm to Mr Ajax.[30]
The occupational therapist’s functional assessment (Ex P12) referred to the FDU having funded the 1:1 daily support ‘to ensure [Mr Ajax] is safe and so is the wider community to mitigate risk and ensure that [Mr Ajax’s] disability does not cause his death’. Clearly, the FDU must consider this support to be mitigating the risks of harm to Mr Ajax, or they would not have commenced providing it.
With the 1:1 daily support now being provided to Mr Ajax, I find that the likelihood that he would endanger himself because of his mental impairment to be substantially reduced from what it was without that support, and is now, with that support, low.
Summary of risks
I have found the likelihood that Mr Ajax would endanger another person because of his mental impairment to be low to moderate, with the likely degree of harm to be low. Further, I have found that the likelihood that Mr Ajax would endanger himself because of his mental impairment is now, with the provision of the 1:1 daily support, low.
Justifications for and effects of disputed proposed conditions
Condition prohibiting consumption of alcohol
There is no evidence explaining how, in the short term, Mr Ajax would be supported to comply with a condition that prohibited him from consuming alcohol. Rather, the proposal appears to be to seek to manage his persistent desire and efforts to obtain and consume alcohol over the longer term, with strategies directed to making changes in the longer term. Ms De Luca said that abstinence from alcohol would not be achieved overnight.[31]
In the needs assessment report and the PBSP, Dr Maxwell stated that Mr Ajax has a long history of utilising substances and is likely to continue to engage in this behaviour, so it will be important to support him to develop safety strategies around the behaviours, as opposed to ceasing the behaviours altogether. She stated that, due to his level of cognitive impairment and experience of dementia, these strategies need to be founded in an alcohol harm minimisation approach, within the context of cognitive impairment and dementia. The PBSP stated Mr Ajax is likely to be in the ‘pre-contemplation’ stage in relation to his substance use, which is where the person may not be aware of the need to change and is avoidant to believing a change would be beneficial. The support to be provided in this stage is to establish rapport, raise concerns about substance-related risk behaviours in a way of care and elicit his perceptions of their level of risk, with respect to safety, well-being and health, explore the benefits and risks of risky behaviours and treatment, express concern and remain available (without judgement), and not press the discussion if he does not want to engage in it. If he moves to the ‘contemplation stage’, the support to be provided is to, amongst other things, emphasise his free choice, responsibility and self-efficacy for change. Then would follow the ‘preparation’ stage.
That evidence is inconsistent with a condition in a NCSO prohibiting Mr Ajax from purchasing, possessing or consuming alcohol or other volatile substances or intoxicating drugs. Such a condition would be in direct opposition to Mr Ajax exercising his free choice, responsibility and self-efficacy for change. Given the intended approach as set out in the PBSP, I consider it highly likely that Mr Ajax would not comply with that condition. It is also relevant that, as held above, I do not consider Mr Ajax’s intoxication to have any real bearing on the likelihood that he would endanger others. There is no evidence about any association of cannabis use with offending or risk of offending, and no evidence of ongoing volatile substance use.
A condition prohibiting Mr Ajax’s purchasing, possession or consumption of alcohol, volatile substances or intoxicating drugs will not be included in Mr Ajax’s NCSO.
Condition to be accompanied 24/7
It is not entirely clear what ‘be accompanied’ by a member of the treating team would actually require.
Dr Hatzipetrou recommended a greater level of support for Mr Ajax, including ‘higher levels of supervision and support throughout the day, which facilitates participation in structured activities that encourage skill development, relationships with others and connections to family and Country’. He supported the proposal of ‘a SIL arrangement with 1:1 staff ratio’. The occupational therapist’s functional assessment (Ex P12) gave various assessment scores identifying that Mr Ajax has a severe or extreme level of functional impairment, with an extreme need for 24/7 supports. One of those scores rated as ‘cannot be left alone – requires supports 24/7’. The identified needs were in self-care (feeding and medication management, personal hygiene/grooming, showering/drying, dressing/undressing, meal preparation, toileting, sleep patterns/rest), mobility (falls risk, functional mobility, stairs, bed mobility), domestic life (domestic and community activities of daily living), community, social, cultural and civic life, communication, cognitive, sensory, and behaviours of concern (violent behaviours, crossing the road and acts of verbal and physical violence in response to drivers beeping at him, leaving the house overnight, and consuming alcohol and other substances). The report concluded that Mr Ajax requires a mixture of 1:1 supervision, 2:1 active supports when out in community and 1:1 active overnight supports to ensure his safety.
Ms De Luca gave evidence about how the recently increased support has been provided to Mr Ajax, describing the use of the vehicle to take Mr Ajax where he wishes to go, with the support person usually remaining in the car while Mr Ajax engages with members of the community, keeping a line of sight, but keeping a distance to provide Mr Ajax the independence and autonomy to engage with others on his own terms in his own space, and not restricting Mr Ajax’s attendance at any place, but providing him with ‘a social story’ of why anti-social settings or places selling alcohol might not be a healthy place.[32] Ms De Luca said that, when the supervising staff member starts work at 7am, Mr Ajax may or may not be at the house, and if he has already left the house, the staff member drives around looking for him.[33]
Mr Sawyer gave evidence that, if the LWB staff were required to accompany Mr Ajax 24 hours per day, 7 days per week, by remaining with him and keeping eyes on him at all times, they would have to change the locations of visits so they took place outside of people’s homes, or only went to homes where the homeowner agreed to the staff member’s presence.[34]
In the needs assessment report, Dr Maxwell stated that Mr Ajax requires a high level of support, and needs a 1:1 level of support when he is out of the house and in the community to ensure he can meet his needs in adaptive ways. She said:[35]
This does not mean that Mr Ajax requires a 1:1 support staff to be next to him at all times or to be engaging with him constantly (this would likely increase behaviours of concern). Rather he requires support that can be actively available to Mr Ajax, that can prepare and implement strategies to reduce the behaviours of concern, and that Mr Ajax can utilise to support adaptive functioning skill development. [emphasis added]
The CEO submitted that Dr Maxwell’s evidence is accepted by the FDU and the recent arrangements as described by Ms De Luca are consistent with her caution. So much may be accepted, but a condition that Mr Ajax be ‘accompanied’ by a member of the treating team 24 hours a day, 7 days a week, could be construed as mandating that a staff member be next to him at all times or engaging with him constantly. I accept Dr Maxwell’s evidence that, if that were to occur, the likelihood is that Mr Ajax’s behaviours of concern would increase. Further, Mr Sawyer’s evidence indicates that compliance with such a condition could impinge upon Mr Ajax’s freedom to go inside private homes to visit family or other people.
Mr Ajax has a firmly entrenched routine of leaving the house and either returning across the course of the day or, on occasion, remaining out at night. There was no specific evidence about how Mr Ajax is encouraged to return home, or what is done if he decides he wants to remain out of the house at the end of the staff member’s shift at 7pm. Presumably, the approach is as set out in the PBSP.
It is plain that, as a consequence of his disabilities, Mr Ajax needs the 1:1 active staff support currently being provided to him through the FDU to be safe and have a reasonable quality of life. However, imposing a legal obligation requiring Mr Ajax to be ‘accompanied’ by another person 24 hours per day, 7 days per week is a serious intrusion into his freedom and personal autonomy. Given my findings regarding the risks of harm to others, I do not accept that such a condition is necessary to maintain and protect the safety of the community. In light of Mr Ajax’s long entrenched routine of leaving the house early in the morning, I also have doubts about whether he would be likely to comply with the proposed condition.
A condition that Mr Ajax be accompanied by a member of the treating team 24 hours per day 7 days per week will not be included in the NCSO.
Stabilisation at the ASSCF
The first s 43ZJ report advocated for Mr Ajax to be immediately placed in the ASSCF to enable the FDU to undertake comprehensive testing, assessment and develop treatment recommendations that support his disability and address his behaviours of concern and offending risk. The second s 43ZJ report advocated for Mr Ajax to be subject to a condition permitting a period of stabilisation at the ASSCF when Mr Ajax exhibited ‘a series of behaviours including but not limited to: (a) if his repetitive high risk behaviour is likely to cause harm to himself or someone else; or (b) attempted or actual assault to [sic] member of the public’.
In her affidavit, Ms De Luca described the ASSCF as a secure facility, staffed 24 hours per day by disability support workers, clinicians and medical staff, shift supervisors and other support staff. There are no security or Corrections staff present. The ASSCF is described as a stepping stone for clients transitioning into the community. Clients are able to receive their NDIS support services there and to attend the community with supports. Ms De Luca said the ASSCF is a less restrictive therapeutic option for Mr Ajax than the Alice Springs Correctional Centre (‘ASCC’) or the Complex Behaviour Unit in Darwin, as it ‘would allow for a graded transition whilst ensuring Mr Ajax has the wrap around supports required to mitigate risk to self and others’.
The thrust of Ms De Luca’s evidence appeared to be that, if Mr Ajax were to breach the conditions of his NCSO in a serious way, rather than being arrested, taken to the Watch House and processed into custody at the ASCC to be detained there until he could be brought to Court to deal with the matter (which would be the course without such a condition), it would be to his therapeutic benefit if he could instead be taken by Police to the ASSCF, and kept there pending determination of any criminal charges or applications relating to his NCSO or until the FDU otherwise deemed it appropriate for him to be returned to his SIL accommodation. Such a condition, appropriately worded so that its operation is clear, would be of utility and to Mr Ajax’s benefit.
In her oral evidence, Ms De Luca described ‘behaviours of concern’ as behaviours that place the client in a ‘non-safe environment of behaviours that decrease the quality of life’, and ‘behaviours which place others at risk and the client at risk’.[36] She said a ‘deterioration’ in behaviour is behaviours that increase in intensity and frequency, and that are similar or escalating to worse behaviours than the index offending.[37] She said, if there is an escalation of behaviour and it becomes unsafe for Mr Ajax to be in the house, or his behaviours become unmanageable in the community, a period of stabilisation would provide Mr Ajax with a place where he can be supported to stabilise some of the behaviours while being managed in a secure environment.[38] She said, if a person’s behaviour becomes quite risky to others and themselves, rather than going back to the Court and consideration of placing the person on a CSO (which would likely see them lose their NDIS funded SIL accommodation), they can be stabilised for a few days, a week or whatever is needed and then returned to the SIL accommodation.[39] Asked what behaviours would require Mr Ajax to go into the ASSCF, she said behaviours congruent with the index offending, such as assault and aggression that puts the community and himself at risk, and ‘absconding’ for long periods of time.[40] She said a ‘long period’ was not 24 hours, but a number of days.[41] Asked if the consumption of alcohol would see Mr Ajax placed in the ASSCF, she said it depends, but gave the example of consuming alcohol and becoming physically aggressive, ie committing a physical assault.[42] She said he would only be placed in the ASSCF in extreme circumstances ‘where the behaviours become forensically high risk of him reoffending’,[43] or where ‘behaviours of concern … are escalating or deteriorating into index behaviour’.[44] She said such periods of stabilisation have been used with other clients and they have worked well, with the periods of stabilisation ranging from two days to a few months.[45] She said it was not possible to predict how long a period of stabilisation would be.[46]
Dr Maxwell gave evidence that ‘restricting’ Mr Ajax would be likely to lead to an increase in behaviours of concern, and that it will be critical that Mr Ajax’s routine does not change significantly.[47] She also said that, assuming Mr Ajax has dementia, changing the routine and environment of a person with dementia can have a detrimental impact on their wellbeing and behavioural presentation.[48]
Dr Maxwell’s evidence confirms that any placement of Mr Ajax in the ASSCF should only occur in response to behaviour which places Mr Ajax or a member of the community seriously at risk of harm. Essentially, that behaviour would be if Mr Ajax: (a) is absent from the house and cannot be located or refuses to return for a period in excess of 72 hours; (b) assaults any person such as to cause them physical injury; or (c) threatens to assault any person whilst behaving in a manner that poses a real risk of physical injury to a person. That behaviour would not include merely being intoxicated, merely being verbally abusive to a person, or other upset behaviour such as yelling, throwing things, hitting or kicking property such as furniture or slamming doors.
A condition to this effect will be included in the NCSO.
Disposition
I am satisfied that it is appropriate to make a NCSO in the terms annexed to these reasons.
For the purposes of s 43ZG of the Criminal Code, I fix a term of 12 months from today.
I will hear the parties as to the listing of the major review of the NCSO under s 43ZG(5) of the Criminal Code, and consequential orders.
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ANNEXURE
NON-CUSTODIAL SUPERVISION ORDER
David Ajax is subject to a non-custodial supervision order pursuant to s 43ZA(1)(b) of the Criminal Code, on the following conditions.
Mr Ajax will be under the care of and receive treatment from the Department of Health, including the Forensic Disability Unit, and the National Disability Insurance Scheme support providers agreed to by the Office of the Public Guardian, including the specialist behaviour support practitioner, the coordinator of supports, the supported independent living accommodation provider and the community access disability service provider (‘the treating team’).
Mr Ajax must comply with any reasonable direction made by a member of the treating team.
Mr Ajax must participate to the best of his ability with ongoing assessment, development and interventions offered by the treating team, including any Positive Behaviour Support Plan, activity program, vocational education and learning.
Mr Ajax must attend all medical and allied health appointments advised by medical and allied health professionals as organised by the treating team.
Mr Ajax must reside at his supported independent living accommodation (‘residence’), as specified by his treating team.
Mr Ajax must not threaten or assault any person.
If Mr Ajax:
(a)is absent from his residence and cannot be located or refuses to return for a period in excess of 72 hours;
(b)assaults any person such as to cause them physical injury; or
(c)threatens to assault any person whilst behaving in a manner that poses a real risk of physical injury to a person,
the CEO, Department of Health, together with members of the Northern Territory Police, may re-accommodate Mr Ajax at the Alice Springs Secure Care Facility, with the Court notified as soon as practicable.
[1] Pursuant to s 43ZO of the Criminal Code, counsel has an independent discretion to act as he or she reasonably believes to be in the accused person’s or supervised person’s best interests if they are unable to instruct their counsel on questions relevant to an investigation or proceedings under Part IIA.
[2] The Queen v Faulton [2004] NTSC 12 at [13] per Mildren J; The Queen v Kunoth [2014] NTSC 41 at [36] per Barr J.
[3] The Queen v Morton (2010) 27 NTLR 114 at 126 per Mildren J; The Queen v Gibson [2017] NTSC 47 at [11] per Barr J.
[4]Citing as helpful the discussion of similar, but different, legislative provisions found in Nigro v Department of Justice (2013) 234 A Crim R 1.
[5]The Queen v KMD(No 2) [2017] NTSC 18 at [33] per Hiley J; The Queen v Forscutt [2004] NTSC 8 at [11] per Martin CJ.
[6]The Queen v Forscutt [2004] NTSC 8 at [16] per Martin CJ.
[7]Briginshaw v Briginshaw (1938) 60 CLR 517.
[8]See The Queen v KMD [2015] NTSC 31 at [40] per Riley CJ; The Queen v KMD (No 5) [2022] NTSC 69 at [143] per Brownhill J; The Queen v Skeen [2018] NTSC 28 at [20] per Grant CJ; The Queen v RK [2019] NTSC 67 at [5] per Blokland J.
[9] Ex P11, p 28.
[10] Ex P11, p 32.
[11] See, for example, Gifford v The Queen (2016) 263 A Crim R 373 at [85] per Ward JA (Bellew J and Hidden AJ agreeing) citing Australian Securities and Investments Commission v Rich (2005) 218 ALR 764 at [136] per Spigelman CJ (Giles and Ipp JJA agreeing).
[12] Exhibit P10, [4.61].
[13] Exhibit P10, [6.7].
[14] Exhibit P2, [10.7], [11.2]-[11.7], [12.1]-[12.8], [12.10], [12.12]-[12.13], [12.16]-[12.19], [13.1], [13.5]-[13.6], [14.3]-[14.6], [14.10], [15.1], Annexure A; Exhibit P10, [4.9], [4.25]-[4.34], [4.62]-[4.63], [4.65]-[4.66], [5.3], [5.5], [5.8]-[5.10], [5.12], [5.15], [6.4], Annexure B.
[15] The only condition of Mr Ajax’s bail was that he reside at his SIL accommodation.
[16] Exhibit P11, p 6, line 261, p 13, lines 550-551, p 14, lines 580-581, 583-584, 596-597, 600-601, p 15, lines 611-612, 615-619, p 16, lines 657-658, 693-694, p 17, lines 696-698, 701, p 27, lines 948-949, p 28, lines 950, 952, 965-966, p 31, lines 1089-1090, 1096, p 32, line 1152, p 33, lines 1190-1192, 1201-1203.
[17] Annexure C to Ex P10, pp 6-7; Transcript, 3 May 2023, p 12.
[18] Transcript, 3 May 2023, pp 8, 12.
[19] Ex P10, [6.8].
[20] Transcript, 3 May 2023, p 13.
[21] Transcript, 3 May 2023, p 33.
[22] This inference is drawn because Dr Hatzipetrou said Dr Smith opined that Mr Ajax had dementia at the time when he was 44 years old, Dr Hatzipetrou cited Dr Smith’s opinions ‘on that occasion’, and Mr Ajax is now 58 years old.
[23] Transcript, 3 May 2023, pp 32-33.
[24] Transcript, 3 May 2023, pp 33-34. Ms De Luca placed heavy reliance on Dr Hatzipetrou’s risk assessments and report: Transcript, 3 May 2023, pp 30, 32, 33, 34, 35, 37, 41, 46.
[25] Transcript, 3 May 2023, p 34.
[26] Transcript, 3 May 2023, p 37.
[27] Transcript, 3 May 2023, p 37.
[28] Transcript, 3 May 2023, pp 20, 24.
[29] Exhibit P12, p 15.
[30] Transcript, 3 May 2023, pp 17-18, 23-24, 27-28.
[31] Transcript, 3 May 2023, p 35.
[32] Transcript, 3 May 2023, pp 27-28.
[33] Transcript, 3 May 2023, p 27.
[34] Transcript, 3 May 2023, p 24.
[35] See also Transcript, 3 May 2023, p 13.
[36] Transcript, 3 May 2023, p 28.
[37] Transcript, 3 May 2023, p 29.
[38] Transcript, 3 May 2023, p 29.
[39] Transcript, 3 May 2023, p 30.
[40] Transcript, 3 May 2023, p 30.
[41] Transcript, 3 May 2023, p 32.
[42] Transcript, 3 May 2023, p 30.
[43] Transcript, 3 May 2023, p 35.
[44] Transcript, 3 May 2023, p 36.
[45] Transcript, 3 May 2023, p 31.
[46] Transcript, 3 May 2023, p 31.
[47] Transcript, 3 May 2023, p 13. See also Dr Hatzipetrou’s report (Ex P11) at p 35, where he stated that transition to another service provider may present as a destabilising event with additional risk factors emerging.
[48] Transcript, 3 May 2023, p 13.
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