Attorney General for New South Wales v Andrews

Background

1. The background to this application and of the defendant's circumstances was comprehensively summarised by Wright J and need not be repeated at any length. The defendant is 43 years old. His criminal history dates back to 1997 and includes sexual offences, drink driving and fire-setting offences. He suffered a hypoxic brain injury at birth which has caused him to live with a lifelong intellectual disability. He struggled at school and has not been able to maintain employment. He lacks appropriate social and communication skills and has limited cognitive functioning.
2. On 23 October 2020, Mr Andrews was charged with 5 counts of intentionally cause fire being reckless as to its spread, contrary to s 203E of the Crimes Act 1900 (the index offending). These fires were lit by Mr Andrews in early December 2019, during the period known as the Black Summer bushfire season. Fortunately, these fires were extinguished before property was extensively damaged or lives were endangered.
3. Mr Andrews was found unfit to be tried in relation to these charges by Herbert DCJ after a fitness hearing was conducted on 20 October 2021. Following a special hearing, Coleman SC DCJ was satisfied on the limited evidence available that Mr Andrews committed the offences: see R v Andrews [2022] NSWDC 743. On 13 July 2023, his Honour imposed a limiting term of 20 months for each count, to be served partially concurrent and partially cumulatively so that the effective duration of the limiting term was 2 years and 18 days, which was backdated. The limiting term expired on 30 August 2023.

Evidence

1. Most of the evidence tendered in the final hearing was also tendered at the preliminary hearing. This material comprised a large number of documents annexed to the affidavits read in the proceedings, which included information about the defendant's criminal history, psychological, neuropsychological and psychiatric reports, information about the defendant's engagement with the National Disability Insurance Scheme (NDIS) and reports from Corrective Services. Also tendered at the final hearing were the reports of the court appointed experts, Dr Kate Seidler and Dr Richard Furst. Neither expert was required by the parties to give evidence at the final hearing, and thus they were not cross-examined.

Legislative framework

1. The legislative framework is set out in the judgment of Wright J in Andrews Preliminary. Part 6 of the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (the Act) deals with the extension of a person's status as a forensic patient. Sections 121 and 122 provide for the making of such applications and the level of satisfaction that the Court must reach before making a forensic patient the subject of an extension order: 121 Extension orders for forensic patients (1) The Supreme Court may, on application under Division 2, make an order for the extension of a person's status as a forensic patient. (2) An order made under this section is an extension order. 122 Forensic patients in respect of whom extension orders may be made (1) A forensic patient can be made the subject of an extension order as provided for by this Part if and only if the Supreme Court is satisfied to a high degree of probability that - (a) the forensic patient poses an unacceptable risk of causing serious harm to others if the patient ceases to be a forensic patient, and (b) the risk cannot be adequately managed by other less restrictive means. (2) The Supreme Court is not required to determine that the risk of a person causing serious harm to others is more likely than not in order to determine that the person poses an unacceptable risk of causing serious harm to others.
2. The parties agree that elements of ss 124 - 126 have been satisfied with respect to the plaintiff's application for an extension order. Those provisions provide: 124 Application for extension order (1) An application for an extension order may be made in respect of a forensic patient only if the forensic patient is subject to - (a) a limiting term, or (b) an existing extension order. (2) An application in respect of a forensic patient may not be made more than 6 months before - (a) the end of the forensic patient's limiting term, or (b) the expiry of the existing extension order, as appropriate. 125 Requirements with respect to application An application for an extension order must be supported by documentation - (a) that addresses each of the matters referred to in section 127(2) (to the extent relevant to the application), and (b) that includes a report (prepared by a qualified psychiatrist, registered psychologist or registered medical practitioner) - (i) that assesses the risk of the forensic patient causing serious harm to others, and (ii) that addresses the need for ongoing management of the patient as a forensic patient and the reasons why the risk of the forensic patient causing serious harm to others cannot be adequately managed by other less restrictive means. 126 Pre-hearing procedures (1) An application under this Division for an extension order must be served on the forensic patient concerned within 2 business days after the application is filed in the Supreme Court or within any further time that the Supreme Court may allow. (2) The Minister applying for the extension order must notify the Tribunal as soon as practicable after making the application. (3) Subject to subsections (7)-(9), the Minister applying for the extension order must disclose to the forensic patient the documents, reports and other information that are relevant to the proceedings on the application (whether or not intended to be tendered in evidence) - (a) in the case of anything that is available when the application is made, as soon as practicable after the application is made, and (b) in the case of anything that subsequently becomes available, as soon as practicable after it becomes available. (4) A preliminary hearing into the application is to be conducted by the Supreme Court within 28 days after the application is filed in the Supreme Court or within any further time that the Supreme Court may allow. (5) If, following the preliminary hearing, the Supreme Court is satisfied that the matters alleged in the supporting documentation would, if proved, justify the making of an extension order, the Supreme Court must make orders - (a) appointing - (i) 2 qualified psychiatrists, or (ii) 2 registered psychologists, or (iii) 2 registered medical practitioners, or (iv) any combination of 2 persons referred to in subparagraphs (i)-(iii), to conduct separate examinations of the forensic patient and to give reports to the Supreme Court on the results of those examinations, and (b) directing the forensic patient to attend those examinations. (6) If, following the preliminary hearing, the Supreme Court is not satisfied that the matters alleged in the supporting documentation would, if proved, justify the making of an extension order, the Supreme Court must dismiss the application. (7) A forensic patient in respect of whom an application for an extension order has been made is, unless the Supreme Court otherwise determines, entitled to inspect or otherwise have access to any medical records in the possession of any person relating to the forensic patient. (8) A representative of the forensic patient is entitled, at any time before or during the proceedings on the application, to inspect or otherwise have access to any medical records in the possession of any person relating to the forensic patient. (9) Subject to any order or direction of the Supreme Court, in relation to an inspection under subsection (8) of, or other access under that subsection to, any medical record relating to a forensic patient - (a) if a medical practitioner warns the representative of the forensic patient that it may be harmful to communicate to the forensic patient, or any other person, specified information contained in those medical records, the representative is to have full and proper regard to that warning, and (b) the representative is not obliged to disclose to the forensic patient any information obtained by virtue of the inspection or other access.
3. The matters to which the Court must have regard when considering an application for an extension, in addition to any other matter considered relevant, are set out at s 127(2) of the Act. Section 127 provides: (1) The Supreme Court may determine an application under this Division for an extension order - (a) by making the order, or (b) by dismissing the application. (2) In determining whether or not to make an extension order, the Supreme Court must have regard to the following matters in addition to any other matter it considers relevant - (a) the safety of the community, (b) the reports received from the persons appointed under section 126(5) to conduct examinations of the forensic patient, (c) the report of the qualified psychiatrist, registered psychologist or registered medical practitioner provided under section 125(b), (d) any other report of a qualified psychiatrist, registered psychologist or registered medical practitioner provided in support of the application or by the forensic patient, (e) any order or decision made by the Tribunal with respect to the forensic patient that is relevant to the application, (f) any report of the Secretary of the Ministry of Health, the Commissioner of Corrective Services, the Secretary of the Department of Communities and Justice or any other government Department or agency responsible for the detention, care or treatment of the forensic patient, (g) the level of the forensic patient's compliance with any obligations to which the patient is or has been subject while a forensic patient (including while released from custody subject to conditions and while on leave of absence granted under this Act), (h) the views of the court that imposed the limiting term or existing extension order on the forensic patient at the time the limiting term or extension order was imposed, (i) any other information that is available as to the risk that the forensic patient will in future cause serious harm to others. (3) If the Supreme Court makes an extension order in respect of a forensic patient, the Court is to notify the Tribunal of the making of the order.
4. I will now address the matters set out at s 127(2) of the Act.

The safety of the community - s 127(2)(a)

1. It is clear on the evidence before me, some of which is summarised below, that Mr Andrews poses an unacceptable risk to the safety of the community if he is to cease being a forensic patient.

The reports received from the person appointed under s 126(5) to conduct examinations of the forensic patient - s 127(2)(b)

Report of Dr Richard Furst dated 4 November 2023

1. Dr Furst is a forensic psychiatrist. He examined the defendant via AVL on 28 September 2023 for approximately one hour and was provided with much of the material tendered at the preliminary hearing.
2. Dr Furst reported that Mr Andrews suffered hypoxic brain damage at birth which caused an intellectual disability. The defendant attended school until about midway through Year 11 where he was placed in disability classes. He had deficits in reading, writing, maths and comprehension. After leaving school, the defendant worked in garden maintenance and studied landscaping at TAFE. However, he found it difficult to maintain employment because of his disability, which caused communication/social deficits and difficulties with memory and following instructions. The defendant reported no instances of childhood psychiatric problems apart from his learning difficulties and associated impairments. He had never been admitted to a psychiatric hospital.
3. The defendant told Dr Furst that he had no history of substance abuse or addiction. He reported drinking alcohol from approximately 15-16 years of age on a regular basis, but said that he had no dependence on alcohol. Dr Furst observed that the documents he reviewed indicated that the defendant was drinking heavily at times, consistent with an alcohol use disorder/abuse.
4. The defendant was prescribed antidepressant medication by a psychiatrist who he saw for about 5 months prior serving the limiting term. Dr Furst noted that the defendant had NDIS support which included funding for 20 hours of clinical support per week and 50 hours per week for a support worker. The defendant told Dr Furst that he was willing to engage in courses or therapy as required.
5. Mr Andrews was estranged from his parents. He told Dr Furst that there was no family history of mental health problems. However, his father was a heavy drinker.
6. When Dr Furst asked the defendant about his criminal history, the defendant minimised his criminal antecedents. He denied any interest in fire-lighting or cruelty to animals. The defendant denied that he was responsible for the index offending.
7. Dr Furst had regard to previous psychological reports with respect to Mr Andrews. He confirmed that Mr Andrews meets the diagnostic criteria for intellectual disability - mild range to borderline range and alcohol use disorder. Psychometric testing in the 1990s indicated that Mr Andrews' IQ was 70, and testing performed in 2015 and 2022 indicated that he was in the extremely low range for verbal comprehension and perceptive reasoning.
8. In Dr Furst's opinion, the defendant's impairments contribute to his risk of reoffending. Salient risks include anti-social behaviour such as recklessness, impulsivity, deficits in consequential thinking, poor communication skills and deficits in abstract reasoning and decision-making. Dr Furst observed that the defendant has clear deficits in insight and that he has very little capacity to learn new skills to self-regulate and make better decisions in life. The defendant's low intellect, cognitive deficits and what Dr Furst considered to be autistic traits, in his opinion, coalesce such that the defendant lacks empathy for others and feels no remorse. The combination of these factors has resulted in a pattern of criminal behaviour, which in Dr Furst's view constitutes a continuing risk of causing serious harm to others. Dr Furst said that this risk would be extant if and when the defendant ceases to be a forensic patient. Specifically, he believes that the defendant is at risk of future sexual offending, fire-setting and driving related offences.
9. Dr Furst assessed Mr Andrews' risk of sexual reoffending to be well above average. His dynamic risk factors, also well above average, include sexual preoccupation, use of sex as a means of emotional regulation, lack of insight, immaturity, impulsivity and lack of empathy.
10. As to the defendant's fire-setting risk, Dr Furst noted that it was difficult to assess this risk because even if a person is charged with an arson offence, their background of fire-setting will often be underestimated and undetected. Thus, in his view, little weight should be placed on specific risk assessment tools. However, Dr Furst observed that people with an intellectual disability are overrepresented amongst the population of detected arsonists. In his opinion, previous offending is the most reliable predictor of future conduct, combined with an appraisal of a person's psychological profile and other individual factors relevant to that person. Taking all of these matters into account, Dr Furst assessed the defendant as at a high-risk of lighting fires in the future.
11. Dr Furst was also of the opinion that the defendant is at risk of future drink-driving given his limited capacity for consequential thinking and lack of empathy and regard for others.
12. Dr Furst considered that the least restrictive means capable of managing Mr Andrews' risk would be for him to remain as a forensic patient with ongoing NDIS support, preferably in a supported independent living setting. In Dr Furst's opinion, Mr Andrews will need to remain as a forensic patient indefinitely.

Report of 11 November 2023

1. At the request of the parties, Dr Furst provided an addendum to his 4 November 2023 report. He appended several journal articles which he said formed the basis for his opinions with respect to the defendant's risk of future fire-setting set out in his report of 4 November 2023.

Report of Dr Kate Seidler dated 1 November 2023

1. Dr Seidler is a clinical and forensic psychologist who prepared a report identifying the defendant's criminogenic needs and risk of future offending. She assessed the defendant via AVL on 20 October 2023 for 1 hour and 45 minutes. She was provided with a large number of documents.
2. Dr Seidler reported that Mr Andrews presented as a low functioning individual who was unsophisticated in his reasoning, with little insight or reflective process. He demonstrated poor memory. However, he engaged readily and was responsive to questioning. His manner was generally immature and socially unskilled. He became uncomfortable during a discussion of his sexual offending and was visibly upset at times. Dr Seidler did not observe any thought disorder.
3. The defendant reported a loving relationship with his parents as a child, although he said that his father abused alcohol heavily. He told Dr Seidler that he is no longer in contact with either of his parents, but he was unsure why. Dr Seidler reported that he was reluctant to talk about his childhood and developmental history, but she noted from the documents provided that he had previously denied any experience of childhood abuse, that he reported a difficult relationship with his father, and that he was often left unsupervised. He had previously described himself as an insecure child with difficulties forming and maintaining friendships. Dr Seidler also noted a previous diagnosis of mild intellectual disability and attention deficit hyperactivity disorder (ADHD). The defendant provided an account of his medical, occupational and educational history as well as information about his NDIS supports that was generally consistent with the history he gave to Dr Furst.
4. Mr Andrews described himself as a "loner". He reported that he prefers to keep to himself and that because of his disability, people manipulate or take advantage of him and that this bothers him. He expressed a desire for greater social connection. The defendant reported one significant relationship that lasted for six years but broke down at about the time of court proceedings for the index offending. He said that they remain friends and that his ex-partner visits him in gaol regularly. I observe that her visits were confirmed in the evidence before me.
5. With respect to his drug and alcohol history, Mr Andrews provided an account to Dr Seidler contrary to that which he gave to Dr Furst. He reported to Dr Seidler that he identified as a "binge drinker" and estimated that he may have been consuming up to ten cans of Jack Daniels in a day. However, he also reported that he complied with an alcohol abstention condition which was a part of his bail conditions. He denied dependence and reported that he attended Alcoholics Anonymous for six months as a condition to his previous release to parole. Dr Seidler observed that the defendant has never engaged in substance abuse treatment.
6. The defendant disclosed a history of cannabis use as an adolescent but said that he "hated" drugs and has not used cannabis or other illicit drugs as an adult.
7. As to his mental health, the defendant reported a history of depressive symptoms and paranoia, especially since being arrested for the index offences. He claimed to have never been diagnosed with ADHD. Mr Andrews said that before being taken into custody, he saw a psychologist in Wyong about every three weeks.
8. The defendant denied involvement in the index offending and only identified a history of driving under the influence of alcohol when Dr Seidler asked him about his previous criminal history. He recognised that driving under the influence of alcohol could kill him or someone else. It was only after prompting that the defendant acknowledged his history of sexual offending. He told Dr Seidler that his behaviour was motivated by "stupidity", although he conceded that he was sexually aroused on at least one occasion. He claimed that other charges for sexual offences were "dropped". Dr Seidler noted that overall, Mr Andrews provided a sanitised and minimising account of his past offending. In her view, his claims of innocence for all but one sexual offence was of concern.
9. The defendant reported two significant relationships with women, including the woman that he told Dr Furst about. Dr Seidler considered that his history suggests long-standing problems with intimacy and communication, and that he craves the attention and affection of females. Further, in Dr Seidler's opinion, Mr Andrews has a high resting sex drive. He finds it difficult to negotiate sexual boundaries and consent, which Dr Seidler considered is likely a function of his disability.
10. Dr Seidler noted that the defendant has participated in sexual offence focussed programs, including the Self-Regulation Programme (SRP). The defendant recalled that he was taught problem solving skills, and how to treat females in general. He said that he had learned to teach women with respect.
11. Dr Seidler observed that Mr Andrews placed in the well above average risk range for sexual recidivism when the Static-99R tool was applied. However, Dr Seidler noted that Mr Andrews' sexual offending is historical and that research suggests that for every five years that a person does not offend, their risk of re-offending halves, which should be taken into account.
12. Dr Seidler also applied the Risk for Sexual Violence Protocol (RSVP-2) to identify the defendant's dynamic risk factors. The result indicated that the defendant poses a moderate-high risk of sexual reoffending, contributed to by factors including that his offending dates back to adolescence, that it has involved adults and juveniles, that he engaged in some coercion, that he continues to deny most of the offending, that he is a lonely and isolated person with few meaningful relationships and the impact of his intellectual disability generally. Mitigating these factors are his age, the fact that it has been 10 years since his last offence, that he has been involved in an adult intimate partnership, that there is no evidence of escalation in Mr Andrews' sexual offending, and that he does not present with psychopathic traits.
13. With respect to general antisocial recidivism, Mr Andrews was assessed as having a medium risk of future generalised offending. As to his fire-setting risk, Dr Seidler noted that such a task is complex and that the risk assessment measures that have been developed have not been robustly evaluated. Thus, Dr Seidler was not prepared to provide an assessment of that risk. In her opinion, Mr Andrews is more aptly considered a sex offender, with a moderate-high risk of reoffending.

The report of the qualified psychiatrist, registered psychologist or registered medical practitioner provided under s 125(b) - s 127(2)(c)

1. The reports of Dr Carolyne Youssef dated 6 August 2023 and 13 August 2023 have been addressed at length by Wright J in Andrews Preliminary at [61] - [70]. I do not repeat his Honour's summary of Dr Youssef's opinion, which dovetails with the opinions of Drs Furst and Seidler as to risk and management. I observe that Dr Youssef provided a report in 2009 on behalf of the Department of Corrective Services for the purposes of assessing his risk of reoffending. In July 2009, she assessed him as having a medium-high risk of sexual reoffending, which aligns with her current views.

Any other reports in support of the application or by the forensic patient - s 127(2)(d)

Report of Dr Adam Martin 30 September 2021

1. Dr Martin is a forensic psychiatrist and prepared a report with respect to the defendant's fitness to stand trial for the index offending. This report was before Herbert DCJ when her Honour conducted the fitness hearing in October 2021.
2. The defendant reported a history to Dr Martin that was generally consistent with that provided to Dr Seidler and Dr Furst. Dr Martin observed that the defendant interacted with him appropriately but was a poor historian, that his responses were vague, and that his language was rudimentary. He presented with blunt and restricted affect, which was consistent with low intelligence.
3. In Dr Martin's opinion, whilst Mr Andrews understood the nature of the charges he faced, his capacity to follow proceedings in a meaningful manner would be significantly impaired by his intellectual disability. Therefore, in Dr Martin's view, Mr Andrews was unfit to plead and stand trial.

Report of Lisa Zipparo dated 2 December 2022

1. Ms Zipparo is a senior clinical neuropsychologist who prepared a report following Coleman SC DCJ's finding that the defendant committed the index offending. Ms Zipparo had previously provided a report with respect to the defendant dated 18 August 2021.
2. The defendant reported a history consistent with that described in Dr Martin's, Dr Furst's, and Dr Seidler's reports. He told Ms Zipparo that he was feeling anxious and paranoid in custody after being assaulted.
3. In Ms Zipparo's opinion, the defendant presented as timid and naïve, with a demeanour of a person much younger than he was. Ms Zipparo performed a series of neuropsychological tests on Mr Andrews, which confirmed a diagnosis of mild intellectual disability with impairments to most areas of cognitive functioning. In addition, Ms Zipparo observed that Mr Andrews had a history of untreated ADHD. In her opinion, Mr Andrews would benefit from psychiatric consultation and treatment for his anxiety symptoms to reduce the risk of alcohol abuse, and which would enhance good decision making.

Report of Dr Melissa Hughes dated 31 January 2023

1. Dr Hughes is a clinical neuropsychologist and forensic psychologist. She prepared her report pursuant to s 66 of the Act to assess the defendant's risk of seriously endangering the safety of himself and the community were he to be released. Dr Hughes assessed the defendant over three hours on 19 January 2023.
2. In Dr Hughes's opinion, the defendant's long standing impairments have led to difficulties with appropriate development of conceptual, practical and social skills. The defendant displayed poor insight and minimised his offending. He expressed strong feelings of isolation, rejection, poor self-esteem and exhibited emotional immaturity. He was behaviourally impulsive and unable to assess consequences. Dr Hughes observed that alcohol was a relevant factor in his offending. However, Dr Hughes also observed that Mr Andrews was compliant with the bail conditions imposed on him at the time of his assessment, and that he was supported by NDIS funding.
3. In Dr Hughes's opinion the defendant presents as a moderate risk of general reoffending without further structured support and engagement. In her view he required a moderate degree of intervention to prevent future offending. Dr Hughes specifically recommended continued NDIS support, engagement with organised activities to keep the defendant occupied and that his sexual needs be managed to minimise the risk of future sexual offending.

Any order or decision of a Tribunal that is relevant to the application - s 127(2)(e)

1. There is no decision of a Tribunal relevant to this application. Mr Andrews is next before the Mental Health Review Tribunal in February 2024.

Any report of any government department responsible for the detention, care or treatment of the forensic patient - s 127(2)(f)

1. There is no such report relevant to this application.

The level of compliance by the forensic patient to any obligations subjected to while a forensic patient - s 127(2)(g)

1. The OIMS notes disclose that the defendant has been compliant as a forensic patient.

The views of the court that imposed the limiting term - s 127(2)(h)

1. Justice Wright extracted the views of Coleman SC DCJ at some length at [51] - [53] of Andrews Preliminary. I do not repeat those matters here.

Any other information that is available as to the risk that the forensic patient will in future cause serious harm to others - s 127(2)(i)

1. There is no other relevant information available. I observe that Mr Andrews' criminal history is set out by Wright J at [43] - [50] of Andrews Preliminary.

NDIS engagement

1. Mr Andrews has a significant amount of funding from the NDIS for clinical support and assistance from a support worker. It is anticipated that his reintegration in the community will be significantly assisted with the variety of supports that he will receive from that agency.

Parties' submissions

1. The parties agreed that an extension order should be made in the circumstances of the evidence. Mr Pierce submitted that the plaintiff had not established that the defendant has the requisite risk in relation to fire setting or drink driving as concluded by Dr Furst, but accepted his risk with respect to sexual reoffending satisfied the requirements of the Act. I observe that the defendant did not require Dr Furst for cross-examination.
2. The plaintiff submitted that I should take Dr Furst's opinion into account. All parties agreed that the test in s 122 of the Act had easily been made out.

Consideration

1. With respect to the contested opinion of Dr Furst as to the defendant's risk of future fire setting and drink driving - to the extent that it was in fact contested - I leave it to one side, as I am satisfied to a high degree of probability that Mr Andrews poses an unacceptable risk of causing harm to others if he ceases to be a forensic patient and the risk cannot be managed by less restrictive means, based on his risk of sexual reoffending alone. I accept the opinions of Dr Youssef, Dr Seidler and Dr Furst in that respect. Indeed, on the totality of the evidence, in my view the court could come to no other conclusion.
2. In my opinion, an order pursuant to s 121(1) of the Act for a term of two years, as was cavilled for by the plaintiff is appropriate in the circumstances of this case.
3. Accordingly, I made the following orders on 22 November 2023: 1. Pursuant to ss 121, 127(1)(a) and 128 of the Mental Health and Cognitive Impairment Forensic Provisions Act 2020, that the defendant be subject to an order for the extension of his status as a forensic patient for a period of 2 years from 22 November 2023. 2. I direct the Registrar to notify the Mental Health Review Tribunal of these orders.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 30 November 2023