HIS HONOUR: The Attorney General of New South Wales ("the plaintiff") commenced proceedings by summons filed on 2 February 2021 seeking an order that the status of the defendant as a forensic patient be extended ("an extension order") for a period of 5 years. The application was made pursuant to Sch 1 of the Mental Health (Forensic Provisions) Act 1990 (NSW), which was repealed on 27 March 2021 ("the repealed Act") by the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW) ("the Act"). The summons was amended accordingly and filed in Court at the preliminary hearing on 22 April 2021.
In 2016, the defendant was arrested and subsequently charged with four offences involving the possession or production of, and incitement to produce, child abuse material contrary to ss 91H and 80G of the Crimes Act 1900 (NSW), and an offence of contravening a prohibition order contrary to s 13(1) of the Child Protection (Offenders Prohibition Orders) Act 2004 (NSW). In 2018, he was separately charged with two offences of failing to comply with reporting obligations arising from the Child Protection (Offenders Registration) Act 2000 (NSW), without a reasonable excuse ("the index offences"). Consequent to a significant intellectual disability, on 25 September 2018 the defendant was found unfit to be tried in respect of both sets of charges, a finding which automatically rendered him a forensic patient (ss 14 and 42(a)(i) of the repealed Act) and thus subject to the supervision of the Mental Health Review Tribunal ("the Tribunal"). At special hearings in respect of each set of charges, on 19 December 2019 Ellis DCJ returned qualified findings of guilt in respect of all charges. On 1 May 2020, his Honour imposed partly concurrent limiting terms for each of the seven offences, resulting in an overall detention of 3 years and 10 months, commencing on 2 July 2017 and ending on 1 May 2021. On 2 November 2020, the Tribunal made a conditional release order and on 30 November 2020, the defendant was released from custody.
The defendant remained a forensic patient until the expiration of the limiting terms on 1 May 2021: ss 24 and 42(a)(i) of the repealed Act. As sought in the amended summons and pursuant to s 130 of the Act, Wright J made an interim extension order on 29 April 2021 extending the defendant's status as a forensic patient for three months, until 1 August 2021: Attorney General for New South Wales v Bragg (Preliminary) [2021] NSWSC 439.
The final hearing of the plaintiff's application occurred on 28 July 2021. In view of the pending expiration of the interim extension order, I made orders on that date, as follows:
"(1) Pursuant to ss 121 and 127 of the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW), the defendant's status as a forensic patient is extended for a period of 2 years and 6 months from 31 July 2021, being the date on which the Interim Extension Order made by Wright J on 29 April 2021, expires.
(2) Access to the Court's file in this proceeding is restricted such that access will be granted to a non-party only with the leave of a Judge of the Court and with prior notice to the parties, so as to allow them an opportunity to be heard in respect of the application for access.
(3) The Registrar is to notify the Mental Health Review Tribunal of the making of order (1)."
I now give my reasons for making those orders.
[3]
Background to the application
The defendant is a 35 year old Indigenous man who has a mild to moderate degree of intellectual disability. According to a 2020 report to the Tribunal by psychologist Emily Higgins, in 2004, when the defendant was aged 17, he was administered the Wechsler Intelligence Scale for Children ("WISC") which indicated he had a moderate degree of intellectual disability. In 2012, he was administered the Wechsler Abbreviated Scale of Intelligence ("WASI") and scored a similar result. In 2018, clinical neuropsychologist Dr Ilana Hepner administered the Wechsler Adult Intelligence Scale-IV ("WAIS-IV"), resulting in a score of a full-scale IQ of 52. Dr Hepner concluded that when the defendant is released into the community, he will likely need long term and intensive support, therapy and supervision.
Some significant details of the defendant's background differ between reports, doubtless due to the defendant's difficulties as an historian. The defendant was born in Bega, one of three or four children of his parents, both of whom were Indigenous. His parents separated when he was either three months old or aged between 13 and 15 (file information suggests this occurred when he was aged 13), and he was thereafter cared for by his father. When aged about 14, his father moved with him and another sibling to the Newcastle area. According to some reports, he was the subject of penetrative sexual abuse by a male member of his extended family when he was aged either 13, 14 or 15. His sisters were abused by the same relative. The family moved back to the Bega area when he was in Year 11, following the defendant having to leave school because he was "touching" female students and otherwise misbehaving.
In Bega, the defendant attended a literacy course at TAFE and, intermittently, some other courses. He found employment with the Community Development Employment Program for three months, mowing lawns and chopping wood, and for four months he collected shopping trolleys.
The defendant reported that he started drinking alcohol at age 19, drinking every day to the point of drunkenness and, as a result, losing his employment. At about age 20, he moved back to Newcastle, finding some employment for about a year with a company involved with canvas. He continued to binge-drink at weekends. He has been in receipt of the Disability Support Pension since he was aged 18.
In about June 2013, the defendant commenced a relationship with a woman who also has an intellectual disability. She has two children who at that time were aged nine and 13. By October 2013, she and the defendant were cohabiting. The children had by then been removed from their mother's care by the Department of Family and Community Services, as it was then known. In 2015, the couple were married. His wife was also charged with offences arising from the same incidents as the first group of index offences and found unfit to be tried. They were co-accused in the special hearing concerning the first batch of charges and she also was the subject of qualified findings of guilt. Since his arrest he has had no contact with her, other than at joint court appearances.
In 2019, the defendant's father relocated to Victoria. The defendant states that he has weekly phone contact with his father.
[4]
Guardianship order
On 19 November 2020, a guardianship order was made, appointing the Public Guardian as the defendant's guardian for a period of 12 months to carry out the following functions: to decide where the defendant may reside, what health care he may receive and what services may be provided to him. On 16 March 2021, a further order was made appointing the Public Guardian for a period of 1 year from 25 March 2021. On 26 March 2021, the guardianship order was amended to include an additional authority for the guardian to consent to the use of restrictive practices by the implementation of camera and motion sensor devices installed at the defendant's place of supported accommodation.
[5]
The defendant's criminal history
Pursuant to s 191 of the Evidence Act 1995 (NSW), the parties agreed certain facts as to the defendant's criminal history. Those facts may be summarised as follows.
The defendant's criminal history exclusively comprises child sexual offences or the breach of obligations under the Child Protection (Offenders Registration) Act and Child Protection Prohibition Orders ("CPP Order").
The first entry is in 2004 for four counts of indecent assault on a person aged under 10, contrary to s 61M(2) of the Crimes Act, at which time the defendant was aged 17. The victims were a female aged 8 and her brother aged 6. The allegations were that he pushed the girl's swimming suit to one side, exposing her buttock and vagina, pulled down his boxer shorts and moved his body up and down for about a minute. On another occasion, he put his hand under her dress and over her underwear above her vagina and moved it in circles. In relation to the boy, he placed his hand down the boy's pants and grabbed his penis. The defendant was sentenced to 2 year probation orders pursuant to s 33(1)(e) of the Children (Criminal Proceedings) Act 1987 (NSW) and entered onto the Child Protection Register under the Child Protection (Offenders Registration) Act.
In October 2007, the defendant was charged with loitering near a public place while a convicted sex offender, contrary to s 11G(1)(b) of the Summary Offences Act 1998 (NSW) ("loitering"). Police alleged that he was observed making physical contact with a girl aged 11 or 12 at a public pool. He was conditionally discharged pursuant to s 32 of the repealed Act.
In December 2010, the defendant was again charged with loitering, the allegation being that he was at a public oval where children aged 10 to 16 and adults were doing athletics. He was observed by police to have an erection. He was sentenced to a 2 year supervised good behaviour bond.
In January 2011, a CPP Order was made against the defendant pursuant to the Child Protection (Offenders Prohibition Orders) Act.
On 30 October and 19 November 2011, the defendant committed two separate offences of aggravated break and enter with intent to commit a serious indictable offence contrary to s 112(2) of the Crimes Act. On both occasions, he entered the same residence through a bedroom window at night or in the early morning and touched the same male victim, aged 16, who was in his bed. He was sentenced by Berman SC DCJ in February 2013 to 2 years imprisonment, suspended upon entering into a bond with conditions of supervision.
In May 2012, whilst on bail for the break and enter offences, the defendant was charged with loitering. Police alleged he was seen in the company of children aged 9 and 11, said to be his mother's cousins, while walking to a shop. He was returned to custody. Whilst in custody, the defendant was sexually assaulted. In October 2012, he was conditionally discharged pursuant to s 32 of the repealed Act. A CPP Order was made for 2 years.
In December 2013, the Probation and Parole Service reported that his response to supervision had declined since October 2013, being the time that he commenced cohabitation with his wife, and that he was not obeying directions. In particular, it noted that he had contravened his CPP Order by attending public venues where children were congregating, and police had viewed on his mobile phone material that contained inappropriate age and sex-related applications. No charges were laid in respect of those allegations.
In December 2015, the defendant was charged with behaving in an offensive manner near a public place. Police alleged that he had stood behind a woman and her two daughters, aged four and 14, and told them that he was not wearing any underwear. He was convicted and sentenced to a 3 year good behaviour bond.
In April 2016, the defendant contacted a 12 year old girl on Facebook and sent her messages stating that he had seen her at the beach and mall. He then sent the girl lewd text messages, which were elicited by the girl's mother pretending to be the girl. He was charged with contravening a CPP Order. In June 2016, a CCP Order was made for 5 years against the defendant in the Local Court. In December 2017, he was discharged in relation to the charge of contravening a CPP Order pursuant to s 32 of the repealed Act.
[6]
The index offences
In June 2016, the defendant and his wife commenced supervised access with her older child. In October 2016, the defendant was arrested and subsequently charged with the first group of index offences, which involved images of that child. He received Supreme Court bail in May 2017.
In January 2018, police discovered an email address for the defendant that had not previously been disclosed, in contravention of his reporting obligations.
In February 2018, police discovered that his wife's older child had sent sexualised images and videos of herself to the defendant and her mother via Facebook. Police located a Wi-Fi modem that was hidden at his residence. His Facebook accounts and the modem had not been reported to police, constituting breaches of his reporting obligations. These matters were the basis of the second set of index offences.
The defendant has had no visits whilst in custody. He has not been the subject of any prison disciplinary charges. In 2019, he was assaulted in prison. According to medical records, he suffered a fractured cheekbone that required surgery.
[7]
The defendant's current circumstances
As noted, the defendant was released on 30 November 2020 pursuant to a conditional release order made by the Tribunal. There were 33 conditions to his release, including as to where he was to reside, the identities of his health care and therapy providers, constraints on his behaviour, movements, associations, communication and his access to electronic devices. The defendant's place of residence is supported accommodation with two other residents which is staffed 24 hours a day, and which is operated by an agency known as "Love 2 Care". The defendant has expressed satisfaction with his current living arrangements.
The defendant has been treated with antidepressant medication (Duloxetine) since the age of 20. As to physical ailments, he has type II diabetes and high cholesterol. He receives medication for both ailments.
[8]
The relevant legislation
Section 54A of the repealed Act provided that a person's status as a forensic patient may be extended in accordance with Pt 1 of Sch 1, which was titled "Extension of status as forensic patient". The legislative provisions allowing an extension of a person's status as a forensic patient are in Pt 6 of the Act which has the same title and replicates the structure of Sch 1 of the repealed Act.
Section 121(1) of the Act requires the application to extend a person's status as a forensic patient to be made under Div 2 of Pt 6, which sets out time constraints and other compliance requirements for an application, and identifies certain material that must accompany it: ss 124, 125 and 126(1)-(3). The defendant does not contest that the plaintiff has complied with these requirements and I find that they are satisfied.
The Court determines an application by either making the order (not necessarily for the period sought) or by dismissing the application: s 127(1). The Court may make a second or subsequent extension order against the same forensic patient: s 128(2). Pursuant to s 129, the making of an extension order does not affect the operation of:
"… any order as to the forensic patient's care, detention, treatment or release from custody to which the forensic patient was subject immediately before the making of the extension order."
A difference between an application for an extension order made pursuant to the repealed Act and the Act, is that Sch 1 of the repealed Act was subject to an objects clause, whereas there is no objects clause applicable to Pt 6 of the Act. The operation of Sch 1 was activated by s 54A ("A person's status as a forensic patient may be extended in accordance with Schedule 1"), which was within Pt 5 of the repealed Act. Section 40 of the repealed Act set out the objects of Pt 5, as follows:
"40 Objects
The objects of this Part are as follows:
(a) to protect the safety of members of the public,
(b) to provide for the care, treatment and control of persons subject to criminal proceedings who are suffering from a mental illness or mental condition,
(c) to facilitate the care, treatment and control of any of those persons in correctional centres through community treatment orders,
(d) to facilitate the provision of hospital care or care in the community through community treatment orders for any of those persons who require involuntary treatment,
(e) to give an opportunity for those persons to have access to appropriate care,
(f) to protect the safety of victims of forensic patients and to acknowledge the harm done to victims."
The counterpart of Pt 5 of the repealed Act in the Act, also titled Pt 5, reproduces at s 69 the objects that are applicable to that Part in virtually identical terms to s 40 of the repealed Act. However, Pt 6 of the Act does not have an objects clause.
Section 122 of the Act sets out the criteria for determining an application for 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.
Note -
Less restrictive means of managing a risk includes, but is not limited to, a patient being involuntarily detained or treated under the Mental Health Act 2007."
[9]
Relevant principles
Section 122 is in identical terms to cl 2 of Sch 1 of the repealed Act. In Attorney General of New South Wales v WB (Final) [2020] NSWSC 152, I considered the operation of cl 2, as follows:
"31 Two of the key phrases in cl 2 of the Schedule appear in the context of counterpart legislative schemes for continuing supervision and detention in the Crimes (High Risk Offenders) Act 2006 (NSW) and the Terrorism (High Risk Offenders) Act 2017 (NSW), and have been the subject of appellate consideration of their meaning in those contexts. The Court concluded in Cornwall v Attorney General for New South Wales [2007] NSWCA 374, at [21]:
'The expression 'a high degree of probability' indicates something 'beyond more probably than not'; so that the existence of the risk … does have to be proved to a higher degree than the normal civil standard of proof, though not to the criminal standard of beyond reasonable doubt.'
32 The term 'an unacceptable risk' should be given its everyday meaning in the context of the provision in which it appears: see Lynn v State of New South Wales (2016) 91 NSWLR 636; [2016] NSWCA 57 at [58].
33 The level of risk is determined by the Court on the assumption that the defendant would no longer be a forensic patient. In the context of an application where the defendant has already been conditionally released, the question is whether the defendant would pose an unacceptable risk residing in the community if he were no longer subject to the oversight of the Tribunal, with its power to enforce its conditions on pain of being returned to detention.
34 If the Court is satisfied to a high degree of probability that the defendant poses an unacceptable risk of causing serious harm to others in that circumstance, the Court is then required to evaluate whether that risk is capable of being adequately managed by other less restrictive means. It is for the Attorney-General to prove that the risk cannot be so managed. I note that this approach has been adopted previously: see Attorney General of New South Wales v Christian bht Thompson [2018] NSWSC 744 per Rothman J at [92]-[93].
35 The term 'serious harm to others' is unique in the three legislative schemes, although the notion of 'serious harm' (to others or to him or herself) is the basis for a person being made an involuntary patient, pursuant to s 14 of the Mental Health Act, which is a cognate Act: see R v Mailes (2001) 53 NSWLR 251; [2001] NSWCCA 155 at [190]. This was an intentional adoption, as was acknowledged in the second reading speech by the Attorney-General the Hon Greg Smith SC for the Mental Health (Forensic Provisions) Amendment Bill 2013 (New South Wales Legislative Assembly, Parliamentary Debates (Hansard), 13 November 2013 at 25638). The Attorney-General stated:
'The test varies in one respect from the test recommended by the Law Reform Commission. Rather than requiring that the forensic patient pose an unacceptable risk of causing 'serious physical or psychological harm' to others, the bill provides that the patient must be at risk of causing 'serious harm' to others. That change brings the test into line with the test for involuntary detention under the Mental Health Act, without losing the stringency of the Law Reform Commission's test.'
36 In Attorney-General of New South Wales v Kereopa [2017] NSWSC 411, Davies J noted, at [15], that there is no authority on the meaning of the words in the context of the Schedule, although the term has received consideration in the context of s 14 of the Mental Health Act, by White J (as his Honour then was) in Re J (No 2) [2011] NSWSC 1224. In that case, White J considered, at [93], that the term 'serious harm' was wider than 'serious physical harm' and that there was 'much to be said' in favour of it meaning either physical or psychological harm.
37 In Kereopa, Davies J concluded, at [19], as to the term's contextual meaning in the Act:
'I accept that Re J must be treated carefully for a determination of the meaning of the term 'serious harm' in [the Act] because of its context in the Mental Health Act. However, there is no reason in principle why 'serious harm' in [the Act] would not include, at least, psychological harm. It may include serious economic or financial harm but it is not necessary to reach a view about that. Similarly, grievous bodily harm (the less serious part of the definition of 'serious violence offence' in the [Crimes (High Risk Offenders) Act 2006 (NSW)] is explained to juries as being 'really serious injury', a concept that must be on a higher plane than 'serious harm'.'
38 In Attorney General of New South Wales v Kereopa (No 2) [2017] NSWSC 928, R A Hulme J, referring to Davies J's conclusion in Kereopa, said, at [16]:
'… I agree with his Honour that it may concern physical or psychological harm. In terms of physical harm it does not require a concern about harm to the level of 'grievous bodily harm' (defined in the criminal law as really serious bodily harm). I accept the submission on behalf of Mr Kereopa that it contemplates something more than would satisfy the minimum threshold for 'actual bodily harm' under the criminal law. I also accept the submission that psychological harm must be something more than emotions such as fear or panic. Such things are not 'serious harm'.'
39 I agree with R A Hulme J's understanding of the term 'serious harm'. In the context of this application, the focus of the plaintiff's submissions is whether the defendant would engage in behaviour similar to that involved in the index events, which clearly would constitute 'serious harm'."
As to the meaning of the phrase "adequately managed", in Attorney-General of NSW v McGuire (No 2) [2014] NSWSC 288, Garling J said:
"63 I would take the use of the phrase 'adequately managed' to mean that the unacceptable risk is mitigated by the proposed management regime so that the community's interest in being kept safe is outweighed by the community's interest in not having mentally ill or mentally disordered individuals or forensic patients being confined in some form of institutional care rather than taking their place in the community.
64 The notion that mentally ill individuals ought receive their treatment in the community is well recognised by the community and is entrenched in the Mental Health Act: s 12, s 38, s 53 and, in particular, s 68 …"
In Attorney General of NSW v Doolan by his tutor Jennifer Thompson (No 2) [2016] NSWSC 107, Adamson J said, at [96]:
"In my view, the principal issue in the proceedings is whether the defendant's risk cannot be managed by less restrictive means. Such 'less restrictive means', as the clause provides, include classification as an involuntary patient. Although the plaintiff submitted that it was questionable whether classification as an involuntary patient could properly be regarded as 'less restrictive means', I consider that I ought adopt the assumption implicit in the wording cl 2(1)(b): namely, that an extension of a person's status as a forensic patient is more restrictive than classification as an involuntary patient. I consider that the question whether 'means' are more or less restrictive is to be judged by the legal power of others to control the defendant's actions, locations, treatment and other matters, as well as the practical operation of how that power might be exercised in a particular instance."
[10]
Section 127(2) matters
Section 127(2) of the Act sets out a non-exclusive list of matters that the Court must have regard to in determining whether to make an extension order. These matters are now separately considered.
[11]
Section 127(2)(a): the safety of the community
This is essentially the same consideration as previously expressed in s 40(a) of the repealed Act: "to protect the safety of members of the public".
[12]
Section 127(2)(b): the reports received from the persons appointed under s 126(5) to conduct examinations of the forensic patient
Pursuant to preliminary orders made by Wright J, reports were prepared by Dr Andrew Ellis, forensic psychiatrist, dated 27 June 2021, and Patrick Sheehan, forensic psychologist, dated 16 June 2021.
[13]
Dr Andrew Ellis, forensic psychiatrist
Dr Ellis reviewed earlier reports of the defendant and concluded:
"All the available psychiatric and psychological assessments diagnose [the defendant] with an intellectual disability, and alcohol use disorder and later paraphilic disorder. Earlier psychological assessments diagnosed him with post-traumatic stress disorder, low self-esteem and social anxiety.
Reports of correctional psychologists assessed him with actuarial scales as well above average risk for sexual offending with the STATIC-99R."
Dr Ellis spoke with the defendant's caseworker as to how the defendant has settled into his supervised accommodation:
"His caseworker had known him for the six months of his release. He said that there had been no issues of concern from the service supervising him. He indicated that [the defendant] required help with cooking, travelling, and scheduling. He noted that he very frequently forgot things such as his medication or his schedule of movements. When he was reminded about this he had no problems cooperating. He was described as 'very shy' and tended to mind his own business. [There has] been no note of any problem sexual behaviours. He was not observed to watch children's television shows or stare at children when he was in public. It was noted that support would continue for him regardless of his order."
Dr Ellis made the following diagnoses:
"The diagnosis of primary concern regarding his risk of serious harm to others is a paraphilic disorder, paedophilia. This diagnosis is made on the basis of his adjudicated behaviour, which has been directed at clearly prepubescent children of both genders. The offending occurred over a number of years, indicating that this was not transient or experimental behaviour. It is common for paraphilic disorders to manifest in teenage years. His answers at interview were initially equivocal whether he was sexually aroused or fantasised about children, however with exploration indicated he did experience fantasy and sexual urges directed towards children. The behaviour indicates attraction to both male and female children. His ability to give an accurate personal account of his internal experience is questionable. His disorder is non-exclusive in that he reports sexual attraction to … adult women. Paraphilic disorders are chronic, relapsing conditions.
He would meet [the] criteria for a mild intellectual disability. Mild in this context refers to comparison with other persons with intellectual disability and nonetheless indicates a significant clinical condition. This diagnosis is made on the basis of his presentation at interview, limited functional ability outside of support from family members or in a highly structured institutional environment. He has been assessed with structured measures of intellectual function and adaptive function that are consistent with his clinical presentation and developmental history. The modern diagnosis of intellectual disability is no longer made solely on the basis of scores on intelligence measures. Intellectual disability is a lifelong condition, however people may develop better adaptive skills with training, education and habilitation. His ability to use phones and Internet sites such as Facebook is evidence of his ability to learn. No particular cause for the intellectual disability is identified." (emphases in original)
Dr Ellis considered and rejected certain additional diagnoses:
"There is no evidence for a current substance use disorder. His report of problematic alcohol use is limited to the periods of offending, and thus may qualify at times as an alcohol use disorder, which is currently in remission in his supervised setting.
There is no evidence for a current depressive disorder or post-traumatic stress disorder. I note that he has been exposed to candidate traumatic events. He is currently treated with antidepressant medication, which may mask symptoms of either of these conditions. His level of anxiety may have reduced significantly since moving out of a custodial setting where he would be easily victimised. These conditions are of potential concern for ongoing clinical review.
There is limited evidence for an antisocial personality disorder, his offending has been restricted entirely to sexual offences against children. His fighting and other reported problem behaviours as a schoolboy were more likely related to his intellectual disability, paraphilia and reaction to bullying rather than a persistent antisocial personality style."
As to the defendant's risk of serious harm to others, including threatening behaviour that could lead to psychological injury or harm, Dr Ellis concluded:
''There is highly suitable community accommodation and services in this case. As risk is contextual, this requires consideration. Should he be released to limited accommodation, without health and disability supports the risk of relapse to prior sexual behaviours exacerbated by inadequate coping skills and exposure to stressors would be considerable.
The type of risk of serious harm in this case should be considered. Given the previous pattern of offending, the diagnosis of paedophilia and previously having access to unsupervised children the most likely behaviour would be sexual activity with a young child. While any sexual behaviour with children is likely damaging, penetrative acts or attempts at the same which disrupt a sense of bodily integrity and engender fear of a physically larger adult are events where serious harm to victims are foreseeable. Encouraging sexual exposure on the Internet would be associated with serious psychological harm to a victim.
In considering structured professional and clinical parameters [the defendant] on balance would fall into a group of persons with a risk of serious harm (in particular sexual abuse of children) to others that is low in a highly controlled supervised environment. There would be clinical grounds to continue intervention to manage this risk as it would [a]rise in other circumstances. Should he be released to a less supervised community setting greater attention will need to be paid to accommodation, employment, monitoring and support with communication and decision making to keep the risk factors controlled as [is] the current situation. Management of sexual deviance, or paraphilia will be the primary target of risk management in less restrictive settings.
Overall his profile shows concern centred around his sexual deviance. The offending indicates opportunism. This may reflect impulsive decision making regarding sexual activity. Currently with significant supports and limits his impulsive decision making is moderated, he has stable patterns of activity. He cooperates with support and supervision, but does not make plans for how to translate this to other community settings, where unsupervised and without [Tribunal] oversight his risk would be considerable."
As to treatment, Dr Ellis stated that there is limited evidence that cognitive behavioural programs geared at sexual offending reduce recidivism, even less so for cognitively impaired persons. He continued:
"[The defendant] would benefit more from regular reinforcement of positive behaviours from day to day interactions with staff than completing a program. Having advice to staff as to what behaviours they can model would be of most benefit, and his current psychologist plus the [Community Justice Program] psychologist are in a good position to do this."
Dr Ellis observed that the defendant would not be considered to be a "mentally ill person" for the purposes of the Mental Health Act 2007 (NSW), as he does not have a mental illness and has not ever displayed delusions, hallucinations, thought disorder or bizarre behaviour indicative of those symptoms. Accordingly, he would not qualify for involuntary admission or a community treatment order under the Mental Health Act. For the same reason, public mental health services are unlikely to become involved in his care. I note these are relevant considerations in terms of available alternative care.
Dr Ellis contemplated whether a combination of a continuing guardianship order, anti-libidinal medication and the oversight of the Child Protection Register might provide an alternative, but recommended against it, given the level of uncertainty as to the defendant's motivations and the lack of clarity of long term community plans. He concluded:
"On this basis there would be clinical benefit to extend forensic status for five years with treatment recommendations as above. He has a concerning risk profile, with risk deriving from multiple factors, the most concerning of which (deviant arousal) has not yet been addressed. If he were to demonstrate sustained cooperation with services and be stable in other aspects of life then his risk profile may be at a point where it could be managed by himself, family and professionals with assistance from police services such as the Child Protection Watch Team, and prohibition orders could be applied if required. His paraphilic disorder and intellectual disability are long term, and will persist beyond five years. This timeframe is [recommended] on the basis that his particular profile of risk for offending is chronic.
With a forensic order he would be subject to oversight by the forensic arm of [the Tribunal]. He could only be discharged from his order by the forensic arm of [the Tribunal].
The benefit of forensic patient status is when on conditional release, recall to hospital or prison may be enacted more rapidly in a cycle of clinical deterioration. It does not require he deteriorate to a point where he becomes a 'mentally ill person'. As his risk does not relate to mental illness, this is pertinent, as relapse to paedophilic interest in the context of stress, inactivity, opportunity or boredom would be a more likely marker of risk. Recall to prison is not recommended as a useful risk management strategy, other than for short term containment. There are insufficient resources in prison for his rehabilitative needs, he is exposed to antisocial peers, assault and dislocated from supports. He received limited relevant assessment or rehabilitative services while in custody during his limiting term."
[14]
Patrick Sheehan, forensic psychologist
Mr Sheehan noted past diagnoses of post traumatic stress disorder ("PTSD"):
"There are various reports of [the defendant] disclosing symptoms of [PTSD], firstly in relation to childhood trauma (sexual abuse) and later re-emerging in response to a sexual attack in custody in 2012. Relevant reported symptoms include: distressing intrusive memories, nightmares, irritability, panic/anxiety, hypervigilance and fearfulness around other men and in busy social settings."
Mr Sheehan noted that past assessments of the defendant's degree of intellectual disability varied between "mild" and "moderate". He administered the second edition of the WASI, which gauged the defendant as being in the bottom 0.3 percentile, or "extremely low" level, which Mr Sheehan said was consistent with past assessments of the degree of disability being "mild-moderate". He also diagnosed the defendant as having a paedophilic disorder and alcohol use disorder (in sustained remission in a controlled environment).
Mr Sheehan made the following observations of the relationship between the defendant's intellectual disability and sexual offending, and how various government services have sought to address his treatment needs:
"[The defendant's] intellectual functioning undermines his ability to operate effectively in the world, impairing his ability to adequately appraise his situation and make appropriate decisions. His disability is relevant to his sexual offending and to his risk of reoffending, both through his impaired decision making and by creating emotional identification with young persons. This condition is permanent.
[The defendant] has had the benefit of significant organised professional support, being accepted by the then Department of Disability, Aging and Home Care (DADHC) from 2005 and the Community Justice Program (CJP) (later known as FACS Community Justice and Integrated Services Program or CJISP) from 6 June 2012. File information includes a large amount of assessment, planning and service provision designed to meet [the defendant's] needs as they relate to his forensic disability (the nexus between his intellectual disability and his risk of sexual offending). [The defendant] was initially managed with a drop in support model from 2012, but this would appear to have fallen short of his needs. He was non-compliant with the support plan of 23 October 2012 (presentence report - Newby, 13 March 2014). He absented himself from this support and reoffended.
In 2019 FACS was restructured with the emergence of the National Disability Insurance Scheme (NDIS). The CJP was lost in this restructure. [The defendant] is now case managed by the Community Safety Program (CSP), as part of the Department of Communities and Justice. The CSP is the appointed case manager for [the Tribunal] in this instance, playing a coordinating role between agencies and services involved in his care and supervision, reporting back to [the Tribunal].
[The defendant] has had NDIS funding approval from 29 November 2017. Orders for the appointment of the Public Guardian were made on 19 November 2020, along with a financial management order. I understand that an application for the use of restrictive practices has been made. [The defendant's] current NDIS plan (approved 27 November 2020) provides funding an onsite supported living residence in Epping (Love 2 Care), with 24-hour staffing and line of sight supervision in the community. His current package is valued in the vicinity of $418,376. He is also funded for psychological support, and psychiatric support. The NDIS plan will need to [be] renewed annually."
I note that the defendant's case manager for the Community Safety Program ("the CSP"), as appointed by the Tribunal, is Ms Subhasree Roy. In an affidavit affirmed on 24 March 2021 and read at the hearing, Ms Roy explained that the CSP is an agency within the NSW Department of Communities and Justice, and described its role as follows:
"The CSP is an interim and referral-based program whose primary function is to address barriers and support the transition of clients to services in the community. CSP staff provide a range of services to National Disability Insurance Scheme ("NDIS") eligible individuals with cognitive impairment, complex support needs, serious and/or persistent challenging and/or offending behaviour. Of particular relevance, one of CSP's functions is the case management of individuals with cognitive impairment as ordered by [the Tribunal]."
Mr Sheehan assessed the defendant's current treatment services and expressed an opinion as to an alternative approach that I think aligns with Dr Ellis's opinion that the preferred strategy for modifying the defendant's behaviour is through daily guidance by the supported accommodation staff:
"Since his release to the community on 30 November 2020 [the defendant] has been seen twice per week by Carollyne Youssef, a forensic psychologist with a background in providing psychological treatment to sex offenders in community settings. The progress report of Ms Youssef (dated 8 February 2021) reveals that treatment commenced on 16 December 2020. [The defendant's] participation was described in positive terms. Ms Youssef is working towards increasing insight and developing strategies to offset risk. In [an] interview with me [the defendant] said that he finds the sessions helpful in terms of 'learning to be more honest', however he could provide no real insight into his offending, and his risk management strategies were limited to 'move away' when in proximity to children.
In my view there is a limit to what gains might be achieved with insight-based therapies in [the defendant's] case, with such treatments requiring a level of cognitive sophistication that is beyond his grasp. In my experience, whilst it is important that [the defendant] remains engaged with a skilled therapist such as Ms Youssef, it is the details of [the defendant's] support plan that will manage his risk. That is, suitable residential care and behaviour support, with a mandate that [the defendant] must participate and comply with the supports around him. This is a strategy based around managing environmental contingencies and using principles of behavioural psychology, strategies that are more in keeping with [the defendant's] level of functioning, rather than relying on insight-based strategies that he will likely struggle to implement. Ms Youssef's expertise would have maximal effect in consulting with support staff in the Love 2 Care facility, providing strategies to assist staff to shape [the defendant's] behaviour towards good habits and [away] from risk."
Mr Sheehan cautioned against over-reliance on assessment tools in assessing a person's risk of serious offending. He assessed the defendant's risk by the administration of a static risk factor test ("the Static-99R") and a tool utilised to assess his dynamic risk factors; the Risk of Sexual Violence Protocol ("the RSVP"). Mr Sheehan concluded, as to the defendant's level of risk:
"[The defendant's] profile is within the Well Above Average range according to actuarial factors. He presents several dynamic risk factors pertaining to the chronicity and diversity of his sexual offending, deviancy, substance abuse, and matters related to his cognitive impairment (impaired self awareness, problems with planning, problems with supervision). In my view the totality of information supports the view that [the defendant] presents a high risk of reoffending on the risk spectrum. The risk is well managed under the protective influence of suitably intensive community management and in my view there would be a low risk of sexual offending under the current support plan. [The defendant's] risk management may become more complicated in the event that he enters an intimate relationship. His history suggests that he is most vulnerable to offences of a sexual nature against children of either gender. His offences could involve use of a carriage service or sexual touching. There is a risk of escalation to penetration offences where offending to persist uninterrupted. Excessive violence is unlikely. The effects of [the defendant's] potential offending behaviour may well go towards 'serious harm' to the community."
As to how that level of risk is best managed, and whether an extension order should be made, Mr Sheehan stated:
"The most robust means of ensuring ongoing adequate risk management would be extension of [the defendant's] status as a forensic patient. I do not believe that classification as an involuntary patient or imposition of a Community Treatment Order would be available to [the defendant] because he is not a mentally ill person as defined in the Mental Health Act 2007.
In my experience [the defendant's] obligations under the Child Protection (Offenders Registration) Act 2000, including [CPP Orders], do not have sufficient protective value to ensure adequate risk management. [They] may provide an adjunct to more robust systems (such as forensic patient status) but cannot in itself ensure cohesive multiagency risk management. [They] can impose rules around [the defendant's] movements, use of communication services and associations, but such strategies are a poor fit to his disability, which is more responsive to supervision as opposed to a set of abstract written rules that he may struggle to recall.
The current supports as they relate to NDIS will continue regardless as to [the defendant's] status as a Forensic patient. That is, provisions for his accommodation at Love 2 Care, a behaviour support practitioner (provided staff training and evolving support plan) and a support coordinator (managing the funding and linking relevant services). In addition, the Public Guardian is given the function of determining where [the defendant] will reside, the health care that he will receive, and decisions about services he will be provided. Restrictive practices can include: seclusion, physical restraint, mechanical restraint, environmental restraint and chemical restraint. Any order for restrictive practices would be subject to periodic review. Because in this instance the CSP was engaged by [the Tribunal], this aspect of case management will end when [the defendant] is no longer a forensic patient. However, my understanding is that CSP will accept referral from a range of sources and he could feasibly be re-referred by the support coordinator for ongoing involvement.
In my view this combination of services would go towards managing the risk of serious harm to the community and is more most robust [than] management systems offered to [the defendant] in the past. However, any transition from being a forensic patient to the Guardianship/NDIS/[CPP Order] model would inevitably involve some weakening of the system that is currently in place (losing the oversight of [the Tribunal] and losing the capacity to retrieve [the defendant] to a secure facility in the event that his risk becomes unmanageable in a community setting). … the mantle of risk manager does not sit comfortably with the principles of the Guardianship Act, which are focussed on the welfare, interests and views of the subject person, as opposed to community safety. Whilst it is possible to reconcile both personal and community interests (it is in [the defendant's] personal interest that he does not behave in a harmful way to others), there remains an undeniable ideological shift away from focussed risk management in the event that [the defendant] is no longer a forensic patient.
My view is that in the long term, transition from [Tribunal] oversight is indicated as a least restrictive option that could serve the interests of both [the defendant] and the community. However, I would encourage a slow progression, with a longer period of observation required before such a transition. I would recommend a further extension of [the defendant's] status as a forensic patient for 2-3 years, allowing for longitudinal observation and also for further improvement and consolidation of his stability and his relationships with service providers."
[15]
The evidence of Dr Ellis and Mr Sheehan at the final hearing
Dr Ellis and Mr Sheehan gave evidence jointly at the final hearing. The central issue in dispute between the parties was as to the length of an extension order. Accordingly, the questioning of the forensic experts focused on their differing views as to the appropriate period of an extension order. When each witness was asked for their view of the other's opinion as to the appropriate length, each agreed that there was no right or wrong opinion on that matter. Rather, their opinions were an estimate which was as valid as that made by the other expert.
Dr Ellis explained that his estimate of five years was based on the length of previous offending and that the diagnosis of paedophilia is not likely to change in the short term. Dr Ellis elaborated:
"He has been under I think less suitable supervision in the past. He has been under supervision in the past and returned to offending. But this is more suitable supervision and over time there will be a better indication [whether] he will voluntarily comply with that and manage his risk himself and agree to have the support structures around him to also manage that risk.
… I think that it needs further time to consolidate and to be clear that those things are going to progress in a manner that is consistent in the way that he is engaging and managing his risk.
…
I think that the very, very minimum timeframe I would suggest is two years, similar to what Mr Sheehan suggested. The reason for that is because generally if people are going to offend, they do it within the … first two years of release.
I would suggest it is probably going to be longer than that given the chronicity of his problems beforehand, but it is possible that if everything were to be going in a favourable direction with no slipbacks or lapses into concerning behaviours that need management, then I would say that the very minimum period of time would be two years, where you would have a greater amount of certainty than you do now that he is going to maintain this kind of behaviour."
Consistently with their opinions in their reports, in view of the defendant's significant intellectual disability, both forensic experts placed considerable weight on the therapeutic benefit of the daily supervisory support that the defendant received, as opposed to any insight he might gain from insight-based cognitive behaviour therapy sessions.
[16]
Section 127(2)(c): the report of the qualified psychiatrist, registered psychologist or registered medical practitioner provided under s 125(b)
In support of the plaintiff's summons, a report was commissioned from Dr Richard Furst, forensic psychiatrist, dated 5 September 2020. Dr Furst diagnosed the defendant as having a mild to moderate degree of intellectual disability, an alcohol use disorder (in remission in a controlled environment) and a paedophilic disorder (non-exclusive type). Dr Furst was asked for his opinion as to the least restrictive means for the defendant's risk to be managed. His response was to the effect that continuation of his forensic patient status was the most appropriate structure:
"A Guardianship Order may be an adjunct to treatment as [a] Forensic Patient, for certain indications, such as authorising placement/residential care, financial management, and/or providing consent with respect to administering medication; however, a Guardianship Order would not be sufficient in relation to the clinical management of the identified risks of sexual offending in relation to [the defendant's] clinical profile."
In a follow-up report dated 19 April 2021, Dr Furst reviewed documentation setting out the defendant's current accommodation and treatment arrangements, and concluded:
"A review of the available documents offers some reassurance in relation to [the defendant's] dynamic risks being identified and managed … However, it is also apparent … that the shift in his dynamic risks has been achieved almost entirely as a consequence of the higher level of supervision and interventions provided by current agencies supervising him and/or providing clinical services, not through any observable shift in relation to [the defendant's] level of insight, attitudes or self-awareness. [The defendant] acknowledged on [2 February 2021] that if not for current conditional release orders he is subject to as a forensic patient, he would 'probably get into trouble again.'
Having regard to all the additional material, risk issues and his conditions of release, I remain of the opinion that there is no less restrictive means of protecting [the defendant] and the Community from serious harm. Specifically, I am of the opinion that [the defendant] needs to continue to be a forensic patient over the long-term, currently on conditional release, in order to provide the high level of accommodation, intensive services, supervision, clinical reviews and specialised treatment necessary to manage his identified risks over the longer term."
[17]
Section 127(2)(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
There are no other reports that have been prepared expressly for the purpose of the plaintiff's application, although the plaintiff has tendered numerous other reports that have been prepared over the years for courts and the Tribunal. Those prepared since 2018 include reports by Dr Ilana Hepner, clinical neuropsychologist, dated 14 June 2018; Dr Kerri Eagle, forensic psychiatrist, dated 14 August 2018; Professor Emeritus Susan Hayes, forensic psychologist, dated 3 April 2020 and 8 August 2020; and Emily Higgins, psychologist, dated 13 October 2020. The reports prepared by Drs Eagle and Hepner primarily concerned the defendant's fitness to be tried and were of limited application to the matter before this Court. I have read those reports and, in my view, it is unnecessary to relate their contents, as they do not add to the reports of Dr Ellis and Mr Sheehan.
[18]
Section 127(2)(e): any order or decision made by the Tribunal with respect to the forensic patient that is relevant to the application
Section 46(1) of the repealed Act provided:
"The Tribunal must review the case of each forensic patient every 6 months but may review the case of any forensic patient at any time."
Following the Tribunal's conditional release order made on 2 November 2020, the Tribunal next reviewed the defendant on 12 February 2021. The Tribunal made minor variations to the conditions attached to the conditional release order which had been proposed by the CSP and agreed by the defendant. The Tribunal expressed satisfaction with the current arrangements for the defendant.
[19]
Section 127(2)(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
As noted, the plaintiff tendered forensic reports that were prepared over many years in relation to the defendant that do not relevantly add to the material that has been prepared expressly in support of the application. Much of this material comprises early assessments of the defendant's intellectual disability.
[20]
Section 127(2)(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 a leave of absence granted under this Act)
The defendant had a poor record of compliance with his obligations pursuant to the Child Protection (Offenders Registration) Act and CPP Orders. However, whilst detained in prison as a forensic patient following the finding that he was unfit to be tried, and since his conditional release into supported accommodation in the community, his compliance with prison discipline and the conditions of release imposed by the Tribunal has been excellent.
[21]
Section 127(2)(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
Judge Ellis noted that the defendant was on bail at the time he committed the later offences and that he was subject to a bond at the time that all of the offences were committed.
Judge Ellis acknowledged the defendant's significant intellectual disability and the absence of ongoing support for him from family and other support personnel in his early adult years, as well as his limited capacity for compliance with conditions of liberty without support. His Honour stated:
"… it is noted that he has limited insight and cognitive impairments are likely to impact upon his ability to respond adequately to any conditions and/or recommendations that are imposed upon him, in the absence of any support."
Conformably with expert forensic opinions, Judge Ellis rejected any causal connection between the defendant's intellectual disability and the commission of the offences:
"I do not accept that there is any real causal connection between his offending and his mental health issues, other than perhaps the reality that his lack of personal skills, his learning disability and cognitive functioning may have left him without an appreciation of the appropriateness of conduct of this type toward a child, but there is no suggestion that his mental health issues caused any type of paedophilic issue."
His Honour nevertheless found that the defendant's mental condition was relevant to the sentencing exercise in a number of ways. Although his Honour did not articulate what these were, he indicated that he took into account what was said by the Court of Criminal Appeal in Director of Public Prosecutions (DPP) (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194.
His Honour expressed reservations as to the defendant's prospects of rehabilitation, although noting that his experience of being in custody for almost four years would likely have a deterrent effect upon him. His Honour took into account that upon release the defendant would have the benefit of services funded through the NDIS scheme.
At the time that the limiting terms were imposed by Judge Ellis, Covid-19 restrictions applied in prison, meaning that for the entire period of the limiting terms, the defendant would be the subject of harsher custodial circumstances, including the loss of any opportunity to participate in courses. Judge Ellis noted that the defendant had been assaulted and bullied in custody and that he remained vulnerable in prison in that sense.
[22]
Section 127(2)(i): any other information that is available as to the risk that the forensic patient will in future cause serious harm to others
The plaintiff read three affidavits by Ms Roy who, as noted earlier, is the defendant's case manager. Her affidavits were affirmed on 24 March 2021, 20 April 2021 and 7 July 2021 and set out in some detail the services and treatment that the defendant is currently receiving. The plaintiff also tendered a report that Ms Roy had prepared for the Tribunal's review of the defendant on 5 February 2021.
Ms Roy gave evidence at the hearing. She confirmed that there is no suggestion of inappropriate behaviour by the defendant since he has been released into supported accommodation. Ms Roy explained that a behaviour support plan ("a BSP") for a period of 12 months commencing on 30 November 2020 was prepared in relation to the defendant's risk management therapeutic needs by an agency known as "Ability Consultants".
The defendant's material included an affidavit affirmed by Rachael Henderson on 27 July 2021 that was read at the hearing. Ms Henderson is the defendant's NDIS specialist support coordinator. She stated that the defendant has been granted funding for an NDIS plan that was approved on 27 November 2020 and will be reviewed on 27 November 2021. That review process involves a comprehensive overview of how he has progressed towards his plan goals, and the formulation of new goals and new budgets to achieve those goals.
[23]
The submissions of the parties
The defendant conceded that it was open to the Court to determine that an extension order was appropriate, but disputed that it was necessary for it to be for a period as long as 5 years.
In essence, the plaintiff's submission was that, in the absence of an extension order, the defendant would lose the oversight of the Tribunal and, through it, the services that proactively manage his risk of causing serious harm.
The defendant submitted that, absent an extension order, the defendant would still have the benefit of the clinical and accommodation services funded through the NDIS which address the issues addressed in his BSP and thus his ongoing treatment.
[24]
Consideration
Having regard to the matters identified in s 127(2) of the Act, I am satisfied to a high degree of probability that if the defendant is not subject to an extension order, he poses an unacceptable risk of causing serious harm to others.
I am also satisfied that the risk cannot be managed by other less restrictive means than by him remaining as a forensic patient, and thus subject to the supervision of the Tribunal.
The operation of the Tribunal is nuanced and responsive to the on-going progress of the defendant in the community. Whereas a breach of a CPP Order would automatically constitute an offence and, potentially, further incarceration by way of punishment, that does not necessarily follow if the defendant breaches a condition of his release order made by the Tribunal. In my opinion, the Tribunal is ideally placed to manage the defendant since it has the institutional expertise of the management of persons who have a significant degree of intellectual disability and also a paedophilic disorder.
I accept the evidence of Dr Ellis and Mr Sheehan that the defendant is benefitting in a therapeutic way from the daily supervision he presently receives. The staff ensure his compliance with the comprehensive conditions that have been imposed by the Tribunal as to his use of electronic devices and potential contact with children as he moves in the broader community, outside his supported accommodation. If he slips up, the Tribunal is ideally placed to modify, if needed, his conditions or treatment. The essence of that control would be lost if he was no longer a forensic patient, although he would continue to have available to him a high level of support.
As noted, the Act does not limit the number of applications that may be made for an extension order. That being so, a lesser period of an extension order has the benefit of encouraging compliance by the defendant and enabling a timely review of the necessity or otherwise of the defendant's status as a forensic patient.
In determining the length of the extension order, I note Mr Sheehan's opinion and Dr Ellis' view as to the absolute minimum period, of 12 months. I particularly note Dr Ellis' observation that non-compliance is likely to manifest within a period of two years. If that occurs, it would of course be of significance on any further application in respect of the defendant's status.
Taking into account all of those matters, I regard it appropriate to order that the status of the defendant as a forensic patient be extended for a period of two years and six months.
[25]
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: 25 August 2021