Mr Michael John Aller (the defendant) is 57 years of age. He has had a lifelong connection with the Central West of New South Wales, and resides there still. He endured a deprived and unsatisfactory upbringing, including witnessing acts of violence of various kinds. As a teenager, he commenced to abuse alcohol and some kinds of prohibited drugs, but it is the former that has chronically distorted his life, and led to a substance use disorder. As a young adult, he began to intersect with the criminal justice system. His offending was serious, and included violence against intimate partners, and multiple breaches of apprehended violence orders. Patently, he was a person who repeatedly failed to respect the physical and emotional boundaries of women. Having said that, all of his offending resulted in non-custodial penalties.
In May 2012, by then 46 years of age, the defendant was seeking help with regard to his undoubted dependence upon alcohol. He met a woman who was seeking the same help. The pair commenced an intimate relationship and began living together in a suburb just north of Gosford. Two months later, in a drunken rage, the defendant stabbed her repeatedly, resulting in her tragic death.
Promptly incarcerated, the defendant behaved bizarrely, attempted suicide more than once, and seemed to be suffering from hallucinations. On the basis of expert evidence that he was suffering from a chronic schizophrenic illness, the defendant was found unfit to stand trial by Garling J of this Court on 27 March 2014: R v Aller [2014] NSWSC 360.
At a subsequent special hearing before Hidden J, the elements of murder were not disputed. The issue was whether the partial defence of substantial impairment should operate to reduce the offence from murder to manslaughter. His Honour found that it did, with the result that, on the limited evidence available, the lesser form of homicide was established. Subsequently, Hidden J imposed a limiting term of 11 years 6 months, to commence on 1 August 2012 and expire on 31 January 2024: see R v Aller (No 2) [2015] NSWSC 402. His Honour emphasised the sustained and ferocious nature of the attack; the particular vulnerability of the deceased due to pre-existing physical injuries; the undoubted role of alcohol in the repeated crimes of violence by the defendant; the fact that a finding that an intention beyond the infliction of grievous bodily harm could not be proven was of little moment; and an acceptance that, despite his mental conditions, the defendant was genuinely remorseful.
Accordingly, the defendant came under the care of the Mental Health Review Tribunal (the Tribunal). He was continuously detained until August 2019, when he commenced escorted day leave; unescorted day leave commenced in February 2020; night leave in November 2021; and the defendant has been living independently in the community since July 2022, a period of approximately 20 months. That sound progress and reintegration into the community has been interrupted only once: on 15 June 2020 he absconded whilst on leave, downed a bottle of bourbon, and was re-apprehended the following day. As a result of that breach, the Tribunal added an extra day to the defendant's limiting term.
The defendant now lives quietly in the community, residing in an apartment in Orange with his dog. He is abstinent from alcohol, sees a psychiatrist every two months, and attends the Curran Community Mental Health Centre fortnightly. He maintains twice weekly contact with his mother.
[3]
Application
That is the context in which the Attorney General of New South Wales (the plaintiff) applied by summons to this Court for an interim extension of the limiting term for three months. That application was not opposed and was granted, with the result that the limiting term now expires on 1 May 2024: see the judgment of Walton J in Attorney-General for New South Wales v Aller [2023] NSWSC 1409.
Before me on 30 January 2024, the plaintiff moved on the same summons for a final order extending the limiting term by a period of three years, pursuant to Part 6 of the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW) (the Act). A helpfully focused hearing was conducted, not least because the defendant (who appeared by a tutor, and was represented by solicitor and counsel) not only conceded that his limiting term should be extended, but affirmatively argued for it. That was because he possessed the insight to appreciate that he needs ongoing help, and his living completely independently in the community would be in the interests of nobody, including himself.
It was also explicitly accepted by his counsel that other means of supervising and aiding the rehabilitation of the defendant in a sanctioned way - such as a guardianship order, involuntary detention, or a community treatment order - were either inapposite to these circumstances, or would not be efficacious.
Nor could there be any dispute between the parties about the conditions of any extension before me, because of course they are a matter for the Tribunal, not this Court.
The only matter placed in dispute by the parties was the length of any extension: the plaintiff contended for three years, but the defendant submitted that two years would be sufficient, not least because it would be perfectly open to the plaintiff to make a further application at the end of that time if it were thought necessary.
The reports of two highly experienced forensic psychiatrists ordered by Walton J were placed before me. Notably, there has been some question about the diagnosis of the defendant over the years, and there has been a recent movement away, I think, from the opinion that he suffers from the chronic and serious mental illness of schizophrenia. The focus recently has been upon other explanations for hallucinations and the like in the past, including perhaps a measure of changeability in the presentation of, and histories given by, the defendant.
What the two most recent experts are agreed upon is the incontrovertible fact that this man suffers from a very profound problem with alcohol. Another point of agreement is that his symptoms can best be explained by Borderline Personality Disorder, which features patterns of instability in interpersonal relationships, self-image and affect; marked impulsivity; and reactive mood.
The final point of agreement - based upon statistical diagnostic tools and clinical observations - is that the risk of the defendant reoffending in a serious way is an elevated one. To be more precise about that, the ultimate conclusion of Dr Youssef is that the defendant poses a moderate risk of committing general violence, and a higher risk of interpersonal violence, if he were to cease to be a forensic patient. The ultimate conclusion of Dr Eagle is that the defendant poses an elevated risk of serious harm to others, specifically in the context of any future intimate relationships, if he were to cease to be a forensic patient. Both experts consider the forensic order to be the least restrictive form of management available regarding the defendant's risk to others.
[4]
Determination
Turning to my determination, I accept the joint submission that I have jurisdiction to make the orders sought, in the sense of all mechanistic preconditions having been fulfilled.
I am also satisfied that the defendant poses an unacceptable risk of causing serious harm to others if he were to cease to be a forensic patient. I say that because: for quite some years he was a recidivist offender against intimate partners; the offending that led to his detention was catastrophic, in that a human life was unlawfully taken; but for his mental conditions causing him to be unfit to stand trial and establishing substantial impairment, he would have been convicted of murder; in all of those circumstances, protection of the safety of the communication remains a primary concern; although sound progress has been made, there remains a real concern about relapse in many forms if he were living completely independently in the community; and, finally, the comparatively recent absconding and immediate abuse of alcohol less than four years ago shows in my opinion that the abuse of that undoubtedly criminogenic substance remains a serious issue for the defendant.
I am also amply satisfied that the risk cannot be adequately managed by other, less restrictive means, not only because of the inappropriateness of the positive alternatives, but also because the current independent living arrangements of the defendant demonstrate that supervision by the Tribunal need not necessarily be onerous.
Overarchingly, I am satisfied of all those propositions to a high degree of probability, yet again in accordance with the joint position.
For those reasons I have extended the limiting term.
There remains the dispute about the length of the order. Underpinning that dispute was a shade of difference in the opinions of the psychiatrists: Dr Youssef felt that two years would be adequate; Dr Eagle thought that more time was necessary, as had Dr Ellis, another eminent forensic psychiatrist. But as the parties agreed, it is hardly a matter of me simply "adding up" which number of psychiatrists support which outcome. My own view is that the defendant has been making good progress; has been gradually reintroduced into the community over some years; and has been living independently for 20 months. One can have a guarded optimism, I think, that at the end of two years he may no longer require mandated assistance by way of the conditions of the Tribunal. But if things deteriorate, or even fail to advance, it will be perfectly open to the plaintiff to seek a further extension of the limiting term.
For those reasons, I have imposed an extension of two years.
Finally, I trust that this judgment records - albeit concisely - my reflection upon all of the statutory factors mandated for my consideration to be found in s 127 of the Act.
[5]
Orders
I make the following orders:
1. An order pursuant to s 133 of the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 ("the Act") that order 2 of the orders made by Justice Walton on 20 November 2023 is revoked.
2. An order pursuant to ss 121, 127(1)(a) and 128 of the Act that the Defendant is subject to an order for the extension of his status as a forensic patient for a period of two years from the date of the order, Friday 2 February 2024.
[6]
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Decision last updated: 02 February 2024