Attorney General for New South Wales v Bragg

Relevant statutory provisions and principles concerning interim extension orders

1. There was no substantial dispute between the parties as to the applicable provisions or principles. In the circumstances, it is sufficient to note what is set out in the paragraphs which follow.
2. The care, treatment and control of forensic patients, among others, are dealt with in Pt 5 of the MHCIFP Act.
3. A "forensic patient" is relevantly defined in s 72(1) of that Act as follows: "The following persons are forensic patients for the purposes of this Act - (a) a person who is found unfit to be tried for an offence and who is detained in a mental health facility, correctional centre, detention centre or other place, (b) a person for whom a limiting term has been nominated after a special hearing (including a person who is subsequently subject to an extension order or an interim extension order) and who is detained in a mental health facility, correctional centre, detention centre or other place or who is released from custody subject to conditions under an order made by the Tribunal, (c) a person who is the subject of a special verdict of act proven but not criminally responsible and who is detained in a mental health facility, correctional centre, detention centre or other place or who is released from custody subject to conditions under an order made by a court or the Tribunal, (d) a person who is a member of a class of persons prescribed by the regulations for the purposes of this section."
4. In addition, under cl 9 of Sch 2 to the MHCIFP Act, a person who, immediately before the commencement of Pt 5 of that Act, was a forensic patient under the MHFP Act is taken to be a forensic patient within the meaning of the MHCIFP Act, and that Act applies accordingly.
5. There was no dispute that the defendant was a forensic patient immediately before the commencement of the MHCIFP Act and remained so at the time of the preliminary hearing. Furthermore, the defendant falls within par (b) of the definition of "forensic patient" in s 72(1), in that he is a person for whom a limiting term was nominated after a special hearing and who has been released from custody subject to conditions under an order made by the Mental Health Review Tribunal (MHRT).
6. The objects of Pt 5 of the MHCIFP Act are set out in s 69 in the following terms: "69 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 have a mental health impairment or cognitive impairment, (c) to facilitate the care, treatment and control of any of those persons in correctional centres or detention 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."
7. Originally in this matter, the Attorney General sought, under s 54A of the MHFP Act and Sch 1 to that Act, to have the defendant's status as a forensic patient extended. By operation of the transitional provisions referred to above, this application is now to be dealt with under Pt 6 of the MHCIFP Act, which corresponds with Sch 1 to the MHFP Act.
8. The following provisions of Pt 6 of the MHCIFP Act are relevant for present purposes: "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 clause 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. 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. 123 Minister may apply for extension order A Minister administering this Act may apply to the Supreme Court for an extension order against a forensic patient. 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. 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 … (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 such further time as the Supreme Court may allow. (5) If, following the preliminary hearing, it 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 furnish 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, it 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. … 127 Determination of application for extension order … (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 s 126(5) to conduct examinations of the forensic patient, (c) the report of the qualified psychiatrist, registered psychologist or registered medical practitioner provided under s 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 a 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. … 130 Interim extension order The Supreme Court may make an order for the interim extension of a person's status as a forensic patient if, in proceedings on an application for an extension order, it appears to the Court - (a) that the limiting term or existing extension order to which the forensic patient is subject will expire before the proceedings are determined, and (b) that the matters alleged in the supporting documentation would, if proved, justify the making of an extension order. 131 Term of interim extension order (1) An interim extension order commences on the day fixed in the order for its commencement (or, if no such day is fixed, as soon as it is made) and expires at the end of the period (not exceeding 3 months from the day on which it commences) that is specified in the order. (2) An interim extension order made for a period of less than 3 months may be renewed from time to time, but not so as to provide for the extension of the person's status as a forensic patient under an order of that kind for periods totalling more than 3 months. …"
9. The preliminary hearing in this matter, which was required under s 126(4) of the MHCIFP Act, took place on 22 April 2021.
10. If, following this preliminary hearing, the Court is satisfied that "the matters alleged in the supporting documentation would, if proved, justify the making of an extension order", the Court: 1. is required, under s 126(5), to make orders appointing two qualified psychiatrists, two registered psychologists, or two registered medical practitioners, or any combination of two such persons, to conduct separate examinations of the defendant and to furnish reports to the Court on the results of those examinations; and 2. is empowered, under ss 130(b) and 131, to make an interim extension order for up to three months, if the limiting term to which the defendant is subject will expire before the proceedings are determined.
11. The statutory provisions and principles concerning preliminary hearings and interim orders under the MHCIFP Act are essentially the same as those which applied in relation to the MHFP Act. In addition, the provisions concerning preliminary hearings in the MHCIFP Act do not differ in presently material respects from the corresponding provisions in the Crimes (High Risk Offenders) Act 2006 (NSW) and cognate legislation. Accordingly, authorities concerning that other legislation can be of considerable assistance in applying the provisions of the MHCIFP Act, always bearing in mind, however, the different circumstances and context in which that latter Act operates.
12. The terms of ss 126(5) and 130(b) of the MHCIFP Act direct the Court's attention to "the matters alleged in the supporting documentation" and whether those allegations would, if proved, "justify" the making of an extension order.
13. The expression "supporting documentation" naturally refers back to the terms of s 125 which states that an application, which is to be made by the Attorney General, for an extension order must be "supported by documentation" meeting the descriptions specified in pars (a) and (b) of that section. Consequently, the "supporting documentation" is the documentation provided by the Attorney General in support of his application and does not include evidence provided by the defendant in opposition. In this case, the supporting documentation was: 1. the plaintiff's affidavit evidence and exhibits addressing each of the relevant matters referred to in s 127(2); and 2. the reports of Dr Furst, forensic psychiatrist, concerning the defendant's risk of causing serious harm, need for ongoing management and why the risk cannot be adequately managed by other less restrictive means.
14. The Court is then required to identify what matters are alleged in this documentation and, for the purposes of ss 126(5) and 130(b), to assume that those matters are proved. The general nature of this task was described by the Court of Appeal in relation to similar provisions in earlier high risk offender legislation in Attorney General for New South Wales v Tillman [2007] NSWCA 119 (Tillman) at [98] (Mason P, Santow and Tobias JJA) in the following terms, which are equally applicable in the present case: "The task assigned by s16(1)(b) [corresponding to s 130(b) of the MHCIFP Act] is for the Court to look at what is alleged in the supporting documentation to see whether it would, if proved, justify the making of either a continuing detention order or extended supervision order (s16(1)(b)). In determining whether the power to grant an interim order is enlivened, the Court is not involved in weighing that documentation or predicting the ultimate result. The power is enlivened if the supporting documentation would, if proved, justify the making of either category of final order bearing in mind the elevated standard of proof stated in ss17(2) and (3) [corresponding to s 122(1)]. That threshold question is to be resolved without considering what evidence might be called by the offender at the final hearing. Indeed, it is to be considered without taking into account the evidence (if any) called by the offender at the interim hearing: such evidence may go to (relevant) discretionary matters, but would not cast light upon what is alleged in the Attorney General's supporting documentation."(emphasis in original)
15. In Attorney General for New South Wales v Kapeen [2017] NSWSC 226, Beech-Jones J explained the position, at [15], as follows: "The reference in both these provisions [corresponding to ss 126(5) and 130(b)] to the "matters alleged in the supporting documentation" and whether those matters "if proved" would justify the relevant form of order, directs attention to the material put before the Court by the Attorney General on this application. To the extent that supporting documentation sets out factual matters and opinions on matters of fact the Court does not, at this point, engage in any considered evaluation of whether those factual matters are well-founded but instead proceeds on the basis they are proven."
16. Whether the making of an extension order would be "justified" depends, in part, upon s 122, which governs when an extension order can be made. It also depends on the proper construction of the word "justify" in ss 126(5) and 130.
17. By virtue of s 122 MHCIFP Act, an extension order can be made if, and only if, the Court is satisfied to a high degree of probability that: 1. the defendant poses an unacceptable risk of causing serious harm to others if he ceases being a forensic patient; and 2. the risk cannot be adequately managed by other less restrictive means.
18. The "high degree of probability", referred to in s 122, indicates that the existence of the risk in question must be proved to a higher degree than the normal civil standard of proof of "more probable than not", but does not have to be proved to the criminal standard of "beyond reasonable doubt": Cornwall v Attorney General for New South Wales [2007] NSWCA 374 at [21]; Attorney General for New South Wales v Kapeen [2017] NSWSC 685 at [11].
19. The "serious harm" which must be considered is not limited to physical harm and it may include psychological harm: Attorney General of New South Wales v Kereopa (No 2) [2017] NSWSC 928 (Kereopa No 2) at [16]. Whether such harm is "serious" within the meaning of s 122(1) will depend on whether it is such harm as should attract consideration given the objects, scope and terms of Pts 5 and 6 of the MHCIFP Act. In Kereopa No 2 at [16], R A Hulme J expressed the view that "serious harm" involves "something more than would satisfy the minimum threshold for 'actual bodily harm' under the criminal law … [and] psychological harm must be something more than emotions such as fear or panic".
20. Whether the risk of causing serious harm to others is "unacceptable" is to be judged according to its ordinary or everyday meaning and the right of a person to his or her personal liberty at the expiry of a limiting term is not a relevant consideration in the determination of whether the person poses an "unacceptable risk": Lynn v State of New South Wales (2016) 91 NSWLR 636; [2016] NSWCA 57 (Lynn) at [44], [127] and [148]; Attorney General of New South Wales v Skerry (by his tutor Thompson) (Final) [2018] NSWSC 1711 at [14]; Attorney-General for the State of New South Wales v McGuire by his tutor Thompson [2019] NSWSC 76 at [24].
21. The nature of the risk posed has to be assessed by reference to past conduct, the seriousness of the possible future conduct and the period over which the risk may come to fruition, based on an absence of protective measures: Lynn at [126].
22. I have previously explained, in Attorney General for New South Wales v McGuire by his tutor Thompson [2019] NSWSC 76 at [28] to [33], that the process for assessing whether the risk can be adequately managed by other less restrictive means involves the following: "28. Assessing whether the risk can be adequately managed by other less restrictive means involves determining: 1. whether the means proposed are less restrictive; and 2. whether the less restrictive means adequately manage the risk. 29. As to the first of those matters, 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: Attorney General of NSW v Doolan by his tutor Jennifer Thompson (No. 2) [2016] NSWSC 107 (Doolan (No. 2)) at [96]. 30. The note to cl 2(1) of Sch 1 of the MHFP Act [corresponding to the note to s 122 of the MHCIFP Act] states: "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." 31. In the present case, it was common ground that, as the defendant was not mentally ill but only had an intellectual disability, he could not be involuntarily detained or treated under the Mental Health Act 2007 (NSW). 32. As to whether the less restrictive means adequately manage the risk, Garling J said in McGuire (No.2) at [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." 33. Adamson J in Doolan (No. 2) at [100] identified a number of areas of difference in respect of the legal regimes that should be considered when assessing "less restrictive" and "adequacy of management". Although her Honour was dealing with a different alternative regime from that proposed in the present case, the areas she identified give useful guidance, provided allowance is made for the different circumstances of the defendant in the present case. The areas of difference identified by Adamson J were: '(1) The objects of the legislation; (2) The composition of the Tribunal; (3) Review by the Tribunal; (4) The basis for detention; (5) Release from detention; (6) Imposition of conditions while patient is living in the community; (7) Consequences of breach of conditions.'"
23. It is not necessary for the Court to be satisfied 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: s 122(2) of the MHCIFP Act. Furthermore, in making its assessment under s 122(1), the Court must have regard to the matters listed in s 127(2)(a) to (i) of the MHCIFP Act.
24. As noted above, whether the making of an extension order would be justified also depends on the proper construction of "justify" in ss 126(5) and 130. In the context of high risk offender legislation where the same wording and structure are used in relation to the making of interim orders, it has been held that the words "would … justify the making" of a final order of the relevant type are to be construed as imposing a lower standard than that which applies to the making of the final order itself: State of New South Wales v Naaman (No 2) [2018] NSWCA 328 at [17] (Basten, Macfarlan and Leeming JJA). Given their function in determining whether an order for the examination of the defendant or a short-term interim order should be made, those words are properly construed as only requiring the Court to be satisfied that the making of a final order would be justified, in the sense of being reasonably open, in the light of the matters alleged in the supporting documentation, assuming them to be proved: State of New South Wales v Sturgeon [2019] NSWSC 559 at [6] (Garling J); State of New South Wales v BP (Preliminary) [2019] NSWSC 699 at [59] (Wright J).
25. This approach when considering whether to make interim orders, such as the examination order and the interim extension order in the present case, also serves to give appropriate weight to risk-avoidance in the interim while preparations are made for the hearing in relation to final relief: Attorney General for New South Wales v Winters [2007] NSWSC 611 at [7] (Bell J).

Prerequisites for the making of an application for an extension order

1. It is useful to note at this point that there was no dispute that the prerequisites for the making of an application for an extension order were satisfied in the present case. In particular, it was accepted by both parties that: 1. the defendant is a forensic patient who is the subject of a limiting term, for the purposes of s 124(1) of the MHCIFP Act; 2. the application was supported by the relevant documentation and the report or reports, as referred to in s 125(a) and (b); 3. the requirements of s 126(1), (2) and (3) had been complied with; and 4. the existing limiting term to which the defendant is subject will expire before the proceedings are determined, within s 130(a).

The evidence and agreed facts

1. The "supporting documentation" in this case included: 1. The reports of Dr Furst dated 5 September 2020 and 19 April 2021; 2. The affidavits of Briony O'Loughlin affirmed 1 February 2021 and 26 March 2021 and a selection of the documents exhibited to the former of those affidavits; 3. The affidavits of Subhasree Roy affirmed 24 March 2021 and 20 April 2021; 4. An agreed statement of facts signed on behalf of the parties dated 21 April 2021; and 5. The variation of a Child Protection Prohibition Order made on 7 September 2017.
2. The defendant did not adduce any evidence on this application.
3. As has been observed above, in considering applications for an interim extension order and for examinations, I am required to proceed on the basis that the matters alleged in the Attorney General's supporting documentation are proved: ss 126(5) and 130 of the MHCIFP Act. Notwithstanding this, I did permit Mr Fernandez, of counsel, who appeared for the defendant to cross-examine Dr Furst and Ms Roy on topics limited to those which might be relevant to how the discretion to make or not make an interim extension order might be exercised in the circumstances of the present case.
4. There was no dispute for the purposes of the application for interim relief that the relevant factual circumstances were as alleged in the agreed statement of facts. Accordingly, I accept as proved the matters which are alleged in that document tendered by the Attorney General and which are set out in the paragraphs which follow.

The defendant's offending prior to the index offences

1. The defendant was born on 18 July 1986 and is of Aboriginal heritage.
2. Between January and March 2004, the defendant, at the time aged 17 years, committed 4 counts of indecent assault on a person under 10 contrary to s 61M(2) of Crimes Act 1900 (NSW). The indecent touching of the female victim, who was then aged 8 years, and her brother, who was then aged 6 years, occurred on four separate occasions while each was in the defendant's company at a local pool or in his home. The defendant was in the victims' company as they were being babysat by his parents at their residence in Bega at the time. The occasions included: 1. an occasion at the local pool, when the defendant pushed the female victim's swimming suit, which was covering her buttock and vagina, to one side exposing both. He then pulled his boxer shorts down to his thighs and moved his body "up and down" for about 1 minute; 2. an occasion at his home, when the defendant put his hand in the female victim's dress and over her underwear above her vagina and moved it in circles; and 3. an occasion in a bedroom, when the defendant entered, approached the bed where the male victim was sitting and put his hand down the child's pants and grabbed his penis.
3. In July 2005, the defendant was sentenced to a 2-year probation order under s 33(1)(e) of the Children (Criminal Proceedings) Act 1987 (NSW).
4. On 19 July 2005, the defendant was entered on to Child Protection Register under Child Protection (Offenders Registration) Act 2000 (NSW) (CPOR Act). His obligations, at this time, were to be ongoing for 6 years.
5. In October 2007, the defendant was charged with the offence of loitering near a public place, while a convicted sexual offender, contrary to s 11G(1)(b) of the Summary Offences Act 1998 (NSW). The police alleged he was observed making physical contact with a girl, aged 11 or 12 years, at a public pool. On 30 January 2008, he was conditionally discharged under s 32 of the MHFP Act.
6. Between 2008 and 2009, the defendant and his family relocated to the Hunter Valley region. He remained under supervision of the Probation and Parole Service (NSW) until about July 2009. He also received support from the Department of Ageing, Disability and Home Care (NSW), through whom he attended three psychological sessions directed to his sexual behaviours.
7. On 7 December 2010, the defendant, as a convicted child sexual offender, loitered at a public oval where children, aged between 10 and 16 years, and adults were doing athletics, contrary to s 11G(1)(b) of the Summary Offences Act. He was observed by police to have an erection. On 25 February 2011, he was sentenced to a 2-year supervised good behaviour bond under the Crimes (Sentencing Procedure) Act 1999 (NSW) (CSP Act).
8. On 17 January 2011, a Child Protection Prohibition Order (CPPO) was made against the defendant under Child Protection (Offenders Prohibition Orders) Act 2004 (NSW) (CPOPO Act). The order contained prohibitions on the defendant to the following effect: 1. Not to be within a 50 metre vicinity of any public place where children or persons under the age of 18 years are participating or conducting sporting events or gatherings unless in the company of three nominated persons. This also included going within a 50 metre vicinity of public swimming pools, children's playgrounds, sporting grounds and their public facilities and amenities unless in the company of any of the three nominated persons; and 2. Not to attend or be in the vicinity of premises frequented by children including, but not limited to, video arcades, playgrounds, schools and pre-schools, private and public, premises being used for before or after school care, premises used for child care, concerts/shows intended for the entertainment of persons under the age of 18 years unless in the company of the three nominated persons.
9. On 30 October and 19 November 2011, the defendant, at the time aged 25 years, 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 1900 (NSW). On both occasions the defendant entered the same residence, through a bedroom window at night or in the early morning, and touched the same male victim, at the time aged 16 years, who was in his bed. The defendant was eventually sentenced by the District Court on 15 February 2013 to 2 years' imprisonment, which was suspended upon him entering into a s 12 bond with conditions of supervision.
10. In December 2011, the defendant entered custody on the charges for the aggravated break and enter offences committed in October and November 2011.
11. On 13 March 2012, the defendant was granted bail by the Supreme Court, subject to the condition that he accept the supervision of Probation and Parole Service (NSW).
12. On 12 May 2012, the defendant, at the time aged 26 years, allegedly committed the offence of loitering, as a convicted child sex offender, near a public place contrary to s 11G(1)(b) of the Summary Offences Act and was charged by police. Police alleged he was seen in the company of children aged 9 and 11 years, said to be his mother's cousins, while walking to a shop. On 24 October 2012, he was conditionally discharged under s 32 of the MHFP Act.
13. On 15 May 2012, the defendant returned to custody.
14. In June 2012, the defendant was assessed as eligible for the Community Justice Program.
15. In August 2012, the defendant was referred to psychological services at the Metropolitan Special Purpose Centre, a Correctional Centre where he was being held on remand, after it was reported he had been sexually assaulted while in custody. The defendant confirmed to a psychologist he had been sexually assaulted, and he was transferred to another wing.
16. On 10 September 2012, the defendant was released from custody.
17. On 24 October 2012, the Local Court discharged the defendant under s 32 of the MHFP Act, imposing conditions requiring the defendant: to enter the care of his then partner; to live in Farley (just outside Maitland); and, to follow directions. A CPPO was made for 2 years which included a condition he not attend public places frequented by children unless in the company of certain nominated persons.
18. On 12 November 2012, Berman SC DCJ deferred sentencing the defendant for the aggravated break and enter offences committed in October and November 2011, under s 11 of the CSP Act.
19. On 15 February 2013, Berman SC DCJ sentenced the defendant for the aggravated break and enter offences committed in October and November 2011. The defendant was sentenced to 2 years' imprisonment, suspended upon him entering into a s 12 bond under the CSP Act with conditions requiring him: to reside in Farley; to attend all appointments made for him; to attend all appointments made by ADHC; and, to comply with support plans and programs.
20. On 28 May 2013, the defendant's then partner reported concerns about the defendant's offending behaviour and that he might be struggling with controlling his thoughts in relation to young persons.
21. In June 2013, the defendant's relationship with that partner ended. Community Corrections recorded around this time the defendant reported he needed to find alternative accommodation and he was being assisted with that by a caseworker with the Community Restorative Centre (CRC).
22. In June 2013, the defendant ceased residing at his Farley residence (which was specified in his Court orders) and commenced residing in a CRC supported accommodation complex in Maitland.
23. Between June and August 2013, the defendant commenced an intimate relationship with Ms B. On 4 July 2013, he told Community Corrections that she was travelling from Bega that day with her two young children, at the time aged 9 and 13 years, to visit. The defendant was directed to disclose his prior offending to Ms B and not to travel to the Bega area. In August 2013, the Department of Family and Community Services at Bega advised Community Corrections that the defendant's new partner suffered from an intellectual disability and at times had been unable to care for her two children. On 20 August 2013, the defendant was directed by Community Corrections not to request any further visits from Ms B, who had attended reporting with him. That same month the defendant requested, but was refused, permission by Community Corrections to travel to Bega.
24. On 29 October 2013, in response to questions from Community Corrections, the defendant reported having no face-to-face contact with Ms B and that he only spoke to her by telephone. On 31 October 2013, the defendant reported to Community Corrections he "forgot" to advise that Ms B was now living with him. At that time Ms B's two children had been removed from her care by the Department of Family and Community Services.
25. In November 2013, the defendant moved from his Farley residence and was no longer in contact with his support coordinator.
26. On 17 December 2013, the Probation and Parole Service (NSW) reported the following matters. The defendant had reported as directed but had not obeyed other directions. His response to supervision had declined since October 2013. He had failed to disclose to the Probation and Parole Service his face-to-face contact with Ms B and that she lived with him. The Department of Family and Community Services had advised that his partner's children had been removed from her care. He had been at public venues where children were congregated, in contravention of his CPPO (although no charges were ever laid in respect of this allegation). He had been found with a mobile phone on 12 December 2013, which had been viewed by police and reported by police to contain inappropriate age and sex related applications (although no charges were ever laid in respect of this allegation). In the view of the Probation and Parole Service's report author, 'significant concerns' arose as to the defendant's risk and in him not adapting to lawful community life.
27. On 11 June 2014, Community Corrections, formerly known as the Probation and Parole Service (NSW), reported that the defendant had been attending interviews with Community Corrections supported by a caseworker with the Community Restorative Centre (CRC).
28. In 2015, the defendant married Ms B.
29. In late 2015, the defendant shifted from his supported living accommodation in Rutherford to his own residence in the Wallsend area.
30. On 18 December 2015, the defendant committed an offence of behaving in an offensive manner near a public place. Police alleged that he had stood close behind an adult female and her two female daughters, aged 4 and 14 years, not known to him, at a shop. He had said to them he was not wearing any underwear. He was eventually convicted and sentenced to a 3-year good behaviour bond under the CSP Act on 10 June 2016 for this offence.
31. Between 22 and 27 April 2016, the defendant allegedly contacted a girl, aged 12 years, on Facebook and sent her messages stating he had seen her at the beach and mall. He then sent lewd text messages when the child's mother conversed with him pretending to be the child. He was charged with contravening a CPPO, but was discharged under s 32 of the MHFP Act on 19 December 2017.
32. On 9 June 2016, Community Corrections reported that the defendant and his wife were having supervised access with his wife's eldest child, who can be referred to as "AO". The defendant reported that he was not engaging in social activities or supports at this time and had no friendships other than with his wife and father.
33. On 10 June 2016, the Local Court made a 5-year CPPO against the defendant under the CPOPO Act.

The index offences

1. On 12 October 2016, police executed a search warrant at the defendant's residence, and he was arrested. Three videos and five still images of AO were found on the defendant's phone, constituting Category 1 Child Abuse Material.
2. In May 2017, the defendant was charged with the above offences and released to bail soon after. He briefly returned to custody before being granted bail by the Supreme Court on 23 May 2017.
3. On 10 January 2018, police searched the defendant's property under s 16C(1) of the CPOR Act. On that occasion, an email address was found which had not previously been provided to police, in contravention of the defendant's reporting obligations.
4. On 22 February 2018, while resident at a care facility, AO was overheard talking to the defendant on the phone, which she was not permitted to do. Care workers found several naked photos and videos of AO touching herself in a sexual way, which had been sent to the defendant and her mother via Facebook.
5. On 23 February 2018, Police executed a search warrant at the defendant's residence. Police located Facebook accounts in the defendant's name and a wi-fi modem, hidden inside a pin ball machine, which he had not reported to police in breach of his reporting obligations.
6. The defendant was charged with further offences and remanded in custody. He was in custody between February 2018 until his release in November 2020 under a conditional release order.
7. On 25 September 2018, Ellis DCJ found the defendant unfit to be tried and made an order under s 14 of the MHFP Act.
8. On 18 January 2019, the MHRT conducted a review hearing, which found the defendant unfit to be tried. In its written determination dated 27 February 2019, the MHRT stated inter alia that: 1. Dr Kerri Eagle, who had assessed the defendant and prepared a report, considered him to be suffering from a mild intellectual disability and alcohol use disorder, in remission, which accorded with the views of the Statewide Disability Service; and 2. In the opinion of Dr Ilana Hepner, a neuropsychologist, who assessed the defendant in custody, the defendant's disability was: a "permanent, lifelong condition"; he is not expected to show any significant improvement in his intellectual or otherwise cognitive functions; and, he required "intensive support upon returning to the community".
9. The MHRT ordered the defendant be transferred to the Additional Support Unit (ASU), MSPC, Long Bay Correctional Complex, a correctional centre facility which houses prisoners who require placement outside the mainstream population owing to their disability being supervised by the Statewide Disability Services.
10. On 22 February 2019, the defendant was transferred from the Metropolitan Reception and Remand Centre (MRRC) to the ASU.
11. On 11 July 2019, the MHRT conducted a review hearing. In its written determination the MHRT recorded inter alia that the defendant was housed in the ASU with no behavioural problems. He was working in packaging assembly and attending an educational course. In the view of his treating team, given the "non-progressive" nature of his disability, he was "highly unlikely" to improve cognitively to become fit to plead. The MHRT considered there to be a clear risk of him reoffending in the future against children, although that risk had yet to be formally assessed. The MHRT made an order continuing his detention at the ASU and held that he would not become fit to be tried in the coming 12 months.
12. On 19 December 2019, a qualified finding of guilt was returned for the defendant pertaining to various alleged offences.
13. On 30 January 2020, the MHRT held a review of the defendant. In its written determination it said inter alia that the defendant wished to undergo a sex offender program but was unable to access therapeutic programmes until the duration of his limiting term was known. He was considered to pose both a serious and high risk of future sexual offending against children. The existing orders were continued with the defendant remaining at the ASU.
14. On 1 May 2020, Ellis DCJ set limiting terms under s 23 of the MHFP Act, which overall were for 3 years and 10 months commencing 2 July 2017 and expiring on 1 May 2021.
15. On 15 May 2020, the MHRT reviewed the defendant. It continued the existing orders with the defendant remaining at the ASU.
16. On 28 August 2020, the MHRT reviewed the defendant. The MHRT indicated it was disposed to make a conditional release order subject to certain issues being addressed. The existing orders were continued, and the review hearing adjourned to 22 October 2020.
17. On 2 November 2020, following the completion of the review hearing, the MHRT made a conditional release order providing for the defendant's release from custody. It was a condition of that order that the defendant accept Ms Roy as his case manager.
18. The supporting documentation contained the latest version of the defendant's conditional release order, amended on 2 March 2021. The orders made on that occasion were as follows: "1. The Mental Health Review Tribunal reviewed Mr Brendan Bragg on 12 February 2021. 2. The Tribunal ordered that Mr Bragg should continue to be released, but with some changes to the conditions of release. 3. Mr Bragg is now subject to the following conditions of release: Case Manager 1. Mr Brendan Bragg accepts Subhasree Roy (Sue Roy) or her delegate of the Community Safety Program as his case manager. He shall be managed by the case manager in accordance with the NSW Ministry of Health Guidelines for Forensic and Correctional Patient Ground Access, Leave, Handover, Transfer, and Release (PD2012_50). 2. Mr Brendan Bragg shall meet with his case manager, at his home or a place as determined by the case manager. The case manager will decide how often these meetings will take place, and where they are to take place. 3. Mr Brendan Bragg is to participate in any education, training, rehabilitation, recreational, therapeutic, or other programmes which his case manager asks him to attend. 4. Mr Brendan Bragg must attend a mental health facility if directed to do so by his case manager or psychiatrist. NB A forensic patient may also be scheduled and taken to a mental health facility under the Mental Health Act 2007. 5. The case manager may nominate a delegate to act as case manager in his or her place from time to time. Psychiatrist 6. Mr Brendan Bragg accept Dr Jeremy O'Dea or delegate as his treating psychiatrist. He shall be managed by the treating psychiatrist in accordance with the NSW Ministry of Health Guidelines for Forensic and Correctional Patient Ground Access, Leave, Handover, Transfer, and Release (PD2012_50). He shall also accept Ms Carollyne Youssef as his psychologist and meet with her as directed. 7. Mr Brendan Bragg shall meet the treating psychiatrist as directed by the treating psychiatrist. The treating psychiatrist will decide where and how often the meetings will take place. 8. Mr Brendan Bragg is to accept the medication and other treatment prescribed by his treating psychiatrist including any antilibidinal medications. He shall take the medication in the way prescribed by the treating psychiatrist. 9. If the psychiatrist is concerned about Mr Brendan Bragg's mental state, the psychiatrist may direct him to attend a mental health facility and seek admission to that facility as a voluntary patient. Mr Brendan Bragg must immediately comply with that direction. NB A forensic patient may also be scheduled and taken to a mental health facility under the Mental Health Act 2007. 10. The treating psychiatrist may nominate a delegate to act as treating psychiatrist from time to time. General Practitioner 11. Mr Brendan Bragg accepts Dr Habib or their delegate of the Carlingford Court Medical Centre as their general practitioner. The general practitioner is not to change medication without consultation with Mr Bragg's treating psychiatrist. Drugs and Alcohol 12. The only mind- or mood-altering drugs that Mr Brendan Bragg is to consume are those prescribed by the treating psychiatrist or regular registered medical practitioner. 13. Mr Brendan Bragg must not take any illegal drugs or substances (or legal synthetic versions of illegal drugs). 14. Mr Brendan Bragg must not consume any alcohol. 15. Mr Brendan Bragg must promptly submit to any test for the detection of the use of drugs and substances including alcohol as shall be requested from time to time by Mr Bragg's case manager. These tests may be administered randomly, at the discretion of the case manager. Accommodation 16. Mr Brendan Bragg is to live at [XXX], Epping, NSW. If he wishes to live at another address, his case manager must first agree that the alternative accommodation is appropriate, or Mr Bragg must first obtain approval from the Tribunal at a review hearing. 17. Mr Brendan Bragg must notify his case manager of his current residential address and telephone number. 18. If Mr Brendan Bragg changes accommodation or telephone number, the case manager will notify the Tribunal of the change to residential address. 19. Mr Brendan Bragg must not travel interstate or overseas without the Tribunal's approval. This approval can be granted in writing by the President or a Deputy President of the Tribunal. 20. Mr Brendan Bragg is to accept directions from the service provider Love 2 Care or delegate as determined by Mr Bragg's Behaviour Support Plan and other support plans. Conduct 21. Mr Brendan Bragg must not engage in unlawful conduct or conduct that could give rise to a reasonable apprehension that the safety of himself or of any member of the public is, or could be, seriously endangered. Other conditions 22. Mr Brendan Bragg to provide his case manager with a recent (head and shoulders) photograph of a quality acceptable to the case manager. Alternatively, he must co-operate while the case manager or delegate takes a photograph of him. The case manager is to provide a copy of the photograph to the Tribunal. 23. Mr Brendan Bragg must attend Mental Health Review Tribunal reviews according to arrangements as notified in advance to him. 24. Mr Brendan Bragg shall allow the sharing of information about his treatment, progress and management between associated teams, his treating psychiatrist and any other person or persons providing health care, management and support services. 25. Mr Brendan Bragg shall accept support and remain in the company of support staff, case manager (or delegate) when accessing the community at all times, except when Mr Bragg uses private amenities such, as whilst using a toilet or showering. 26. Mr Brendan Bragg is not to have access to communication devices and all telephone calls will be in the company of staff except if the call is with Mr Bragg's legal representatives. 27. Mr Bragg is not to have access to the internet by any means except for program or therapeutic purposes identified by his community team. Non-association requirements 28. Mr Bragg shall not associate with children. 29. Mr Bragg must not associate with any person under the age of 18 years. 30. Mr Bragg shall not contact or associate with [Ms B]. 31. Mr Bragg shall not contact or communicate or attempt to initiate any communication, in any way, or through any medium, with [XX]. 32. Mr Bragg is to remain away from the following places: (a) childcare centres, pre-schools and schools; (b) children's playgrounds and any area with play equipment for use by children; (c) amusement parlours, amusement parks and theme parks; and (d) pools, playing fields and sporting facilities. 4. These orders were made under sections 46, 47 and 75 of the Mental Health (Forensic Provisions) Act 1990."

The defendant's current supervision regime

1. In addition to the current terms of the defendant's conditional release order, the allegations concerning the defendant's current supervision regime contained in the supporting documentation, which I assume are proved for the purposes of the application for interim orders, are set out in the paragraphs which follow.
2. The defendant's case manager under the MHRT orders, Ms Roy, is a case manager with the Community Service Program (CSP) within the Department of Communities and Justice. One of the CSP's functions is the case management of individuals with cognitive impairment as ordered by the MHRT. Ms Roy's case management role in relation to the defendant remains for the duration of the defendant's status as a forensic patient.
3. Ms Roy's functions as the defendant's case manager include being responsible for developing his understanding of the conditions of his conditional release order, maintaining regular meetings with him in the community, facilitation of regular interagency meetings, development of plans, completion of reports and reporting to the Tribunal, writing submissions to the Tribunal for variations in the order, and participation in all Tribunal hearings. The interagency meetings which Ms Roy facilitates include meetings with his Specialist Support Coordinator under the National Disability Insurance Scheme (NDIS) and other stakeholders involved in his care in the community.
4. The defendant currently resides in supported accommodation operated by a non-government organisation under a Supported Independent Living placement funded by his current NDIS plan. This level of funding allows the defendant to access support staff on a 24 hours / seven days per week basis at the accommodation and in the community. The accommodation is set on 1200 m² with perimeter fencing within a suburban area and the defendant has his own bedroom and shared common areas with two other residents. The defendant is supported by, and in the company of, staff not only in his accommodation but also when accessing the community at all times, including during transportation, in accordance with his current conditional release order from the MHRT. A copy of the defendant's current conditional release order is made available to all staff, and staff are requested to submit any incident reports and/or concerns to Ms Roy within 24 hours of the event.
5. In addition, the defendant: 1. receives weekly individual treatment sessions from a forensic psychologist, Dr Carollyne Youssef; 2. has access to the services of a general practitioner, Dr Fayez Habib; and 3. has been referred to Dr Jeremy O'Dea, forensic psychiatrist, for assessment to determine the utility and suitability of anti-libidinal medication.
6. The defendant is required to accept this treatment from these practitioners under conditions 6 to 11 of his current conditional release order made by the MHRT. Apart from Dr Habib, whose services are bulk billed through Medicare, the fees of Dr Youssef and Dr O'Dea are met from the Community Safety Fund (CSF) administered by the CSP within the New South Wales Department of Communities and Justice.
7. The defendant is also subject to a guardianship order and a financial management order made by the Guardianship Division of the New South Wales Civil and Administrative Tribunal (NCAT), on 19 November 2020. On 24 November 2020, Ms Roy submitted an application to NCAT to review the existing guardianship order for the defendant so as to include authority for the Guardian to consent to the use of restrictive practices by the implementation of camera and motion sensor devices installed at the supported living accommodation. The guardianship order was amended on 26 March 2021 to include such a function for the appointed Guardian.

Safety of the community - s 127(2)(a)

1. The terms of s 69(a) and s 122 of the MHCIFP Act indicate that the "safety of the community" in this context includes protecting the safety of members of the public generally as well as ensuring that serious harm is not caused to others.
2. The defendant's commission of the index offences and prior offences involved the sexual abuse of children and resulted in significant psychological harm for the victims of those offences.
3. The safety of the community requires, in the defendant's case, that effective steps be taken to eliminate or reduce the likelihood that the defendant will have unsupervised access to children. This is especially so given his level of intellectual functioning and the presently untreated status of any underlying conditions he may have.

Reports received from the persons appointed under s 126(5) - s 127(2)(b)

1. As this was a preliminary hearing, there were no such reports at this stage.

Reports provided under s 125(b) - s 127(2)(c)

1. The Attorney General provided the two reports of Dr Furst, which have been mentioned above, in satisfaction of the requirement in s 125(b). Since these were part of the documentation provided in support of the Attorney General's application, the Court was required to assume, for the purposes of the application for interim orders, that the matters alleged in these reports were proved. Dr Furst's reports allege the matters set out in the paragraphs which follow.
2. The defendant was, when first examined by Dr Furst, 34 years old and married to Ms B. He has no children of his own but has one older sister, one older brother and a younger sister. His mother lives in Newcastle and his father lives in Victoria and has remarried.
3. The defendant was born in Bega and attended his local primary school and high school but had learning difficulties from an early age consistent with an intellectual disability. He has a very limited history of employment and has been in receipt of a disability support pension since he was 18 years of age. The defendant has never been diagnosed with a major mental illness such as schizophrenia or bipolar affective disorder. He stated that he experienced symptoms of anxiety since the age of 20 and was sexually assaulted while in custody. He has been prescribed an antidepressant medication as well as the additional psychotropic medication Seroquel during his latest period in custody.
4. The defendant commenced drinking alcohol from the age of 17 and in his 20s consumed an average of 18 to 20 standard drinks per day, indicative of harmful drinking and/or dependence on alcohol at this time. However, he reduced his drinking in his late 20s and was hardly drinking prior to his incarceration on 24 February 2018. He smoked cannabis from the age of 17 for a period of about three years with no indications of ongoing cannabis abuse or dependence. He also denied using other illicit drugs.
5. The defendant has no major medical problems apart from non-insulin-dependent (Type II) diabetes mellitus.
6. On examination, Dr Furst reported that the defendant had a noticeable latency in his responses to questions consistent with an intellectual disability. There were no indications of a major mood disorder or a psychotic disorder. He was not suicidal. He did not appear to be very insightful into his intellectual deficits or his apparent sexual deviance.
7. Dr Furst noted that the defendant had been diagnosed by Dr Eagle, psychiatrist, as having a mild intellectual disability and alcohol use disorder, in remission in a controlled environment in 2018. His IQ had been assessed as falling in the extremely low range, with a score falling on the cusp between a mild intellectual disability and a moderate intellectual disability.
8. His receptive and language skills were assessed in 2017 as equivalent to those of a 5 to 7-year-old. It was also noted that the defendant is illiterate.
9. Dr Furst also reported that the defendant was sexually abused by an uncle on two occasions at the age of 15.
10. It was noted that the defendant's wife, Ms B, also has an intellectual disability and that prior to his incarceration for the index offences, the defendant was living in Newcastle with his wife in supported accommodation, where he received 10 hours of community support per week.
11. Dr Furst's conclusions included the following: 1. The defendant does not have a major mental illness such as schizophrenia or bipolar affective disorder. 2. The defendant meets criteria for the diagnosis of the following mental disorders: 1. intellectual disability (mild - moderate range); 2. alcohol use disorder (intermission in a controlled environment); and 3. paedophilic disorder, non-exclusive type. 1. Each of the defendant's disorders constituted a well-recognised risk factor in relation to reoffending, including sexual reoffending and sexual deviance, such as paedophilic disorder, was one of the strongest predictors of sexual reoffending. It was noted that paedophilic disorders were especially problematic in relation to male victims and stranger victims. 2. Using the actuarial assessment of risk factors according to the STATIC-99R, Dr Furst's view was that the defendant belonged to the nominal risk level IV b, a group of male sex offenders considered to be at "well above average risk of reoffending". It was also noted that that the defendant's score placed him among the top 0.3% of the sample from which the STATIC-99R was derived in relation to the risk of reoffending. 3. In relation to the clinical strategies that Dr Furst would recommend for the management of the defendant's risk of causing serious harm to others, it was stated: "[The defendant] has complex needs and multiple risk factors that require management. Is intellectual disability, alcohol use disorder, his paedophilic disorder and access to children [potential future victims] are the most important clinical/situational risk factors requiring management. His management will require supervision from disability support services pursuant to an individual Client Behaviour Support Plan. Consistent with a determination on the MHRT and other agencies involved in his case [SDS and NDIS], [the defendant] will require intensive support upon returning to the community, preferably with 24-hour supervision. Other specific treatment measures are outlined in the answers (a) to (f) below." 1. In relation to (a), whether the defendant needed antidepressant or antipsychotic medication, Dr Furst said that the indication for antidepressant and/or antipsychotic medication for depression and/or anxiety symptoms was equivocal but the prescription of antidepressant medications, especially Sertraline or Fluoxetine may be of some assistance in reducing paraphilia arousal. He also recommended that a workup be conducted in preparation for the defendant being prescribed an anti-libidinal medication, most likely Androcur in the first instance. 2. In relation to (b), what steps if any does the defendant need to take to address alcohol and/or substance use, Dr Furst was of the view that general restrictions imposed in a supervised community care facility and counselling from psychologists skilled in counselling people with an intellectual disability would be the most appropriate intervention in relation to alcohol use disorder in the first instance. 3. In relation to (c), whether there was a need for regular consultations with a psychiatrist, Dr Furst was of the view that the defendant would require ongoing input from a forensic psychiatrist, especially if he was prescribed an anti-libidinal medication, and he would probably benefit from input from a psychiatrist skilled in the assessment and management of people with intellectual disabilities. 4. In relation to (d), whether there was a need for regular consultation with a psychologist and/or psychological support, Dr Furst said that the defendant has complex needs and multiple risk factors and will require intensive management, including regular clinical reviews and counselling from a clinical psychologist. 5. In relation to (e), appropriate accommodation, Dr Furst was of the view that the defendant would require supported and supervised accommodation in the community. 6. In relation to (f), any other matters needed to manage the defendant "risk of causing serious harm to others", Dr Furst said that restriction of access to the Internet and restriction of access to children were obvious considerations relating to the management of the defendant's high risk of reoffending and his risk of reoffending against children/young teenagers in particular. He went on to say in this regard: "Such measures include physical restriction in a residential care facility, Child Protection Register obligations and legal sanctions for breaching orders." 1. In relation to the continuation of the defendant's status as a forensic patient and less restrictive alternatives for managing the risk posed by the defendant, Dr Furst said: "Continuation of his forensic patient status provides the most appropriate structure, supervision and review of [the defendant's] residential care, clinical care and compliance with necessary treatment, including medication treatment, psychiatric treatment and psychological treatment under Conditional Release provisions. … [The defendant] does not have a major mental illness, is not a mentally ill person and is not eligible for the imposition of a Community Treatment Order under the provisions of the Mental Health Act, 2007. … A Guardianship Order may be an adjunct to treatment as 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 reoffending in relation to [the defendant's] clinical profile. … In my opinion, no other less restrictive means would be appropriate or sufficient to manage [the defendant's] identified risks of sexual reoffending in relation to his identified clinical profile, i.e. a high risk of offending in a sexual matter and causing serious harm to others when released from custody. … Intellectual disabilities and paedophilia disorders are both chronic conditions. [The defendant] has demonstrated his inability to desist from acting/offending in an inappropriate and/or illegal sexual matter over the last 16 years. Additionally, his management needs are complex, severe, and chronic. Therefore, his risk of offending, which fall in the top 0.3% of the male sex offender population, will require long-term management, probably lifelong, and five years would be an appropriate extension period in the first instance."
12. Dr Furst also provided a report of 19 April 2021, updated in light of the Conditional Release Order made by the MHRT and the defendant's move into supported living accommodation in the community. Dr Furst noted the additional sources of information which he reviewed for the purposes of his updated report. It was noted that the defendant's static or background risk factors had not changed and remain well above average compared to the average group of sex offenders. It was accepted that the defendant's adjusting to the community had been largely unremarkable thus far, apart from the high level of intensity of the comprehensive services, the counselling that he is being provided and his acceptance of services and counselling available to him. It was noted that the defendant had only been in the community for a short period of approximately 4 ½ months and that he had been so tightly supervised in relation to his accommodation, physical observation and restriction of access to telephone and Internet services that there really had been no practical opportunities for him to access potential victims and/or to reoffend, apart, of course, from the opportunity to abscond from his current care setting or from carers supervising him in the community, or the opportunity to offend against current residents/staff of his residential accommodation.
13. It was noted that the shift in his dynamic risk had been achieved almost entirely as a consequence of the high level of supervision and interventions provided by current agencies supervising him and/or providing clinical services, not through any observable shift in relation to his level of insight, attitudes or self-awareness. Dr Furst concluded: "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'm 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."

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

1. A number of reports from psychiatrists, other medical practitioners and psychologists were included in the supporting material provided by the Attorney General. These included the report of Dr Youssef dated 8 February 2021 which reported on the defendant's attendance at sessions with the psychologist since16 December 2020. Nothing in that report was inconsistent with Dr Furst's opinions.
2. In addition, there was a report by Ms Sinead Corcoran, Senior Clinical Consultant with the CSP, dated 5 February 2021. Ms Corcoran assessed the defendant's static risk factors using the STATIC-99R risk assessment tool and concluded that the defendants loading on static risk factors was consistent with individuals that fall within the "Well Above Average risk range". As to the defendant's dynamic risk factors, Ms Corcoran used the Assessment of Risk and Manageability of Individuals with Developmental and Intellectual Limitations who Offend - Sexually (ARMIDILO - S) structured professional approach. Her conclusions were: "27. While [the defendant's] loading on static risk factors is considered with his past assessments, namely within the Well Above Average range, there are several protective factors that significantly mitigate and reduce his overall risk. For this reason, and in the context of his current model of support (including the conditions of his order and access to services), [the defendant's] risk is likely lower than the above-stated risk range. 28. More specifically, [the defendant's] risk is largely mitigated by the current external controls associated with the conditional release order and consistent intensive level of support that presents a barrier to his risk (e.g., access to potential victims or means). [The defendant] has yet to develop the required knowledge, skills and ability to practice self-management strategies to know what are high-risk situations or factors are risks for him, and additionally what strategies to use to mitigate the risks. Specifically, [the defendants] risk factors associated with his poor emotional coping ability, interpersonal and relationship difficulties, institutionalisation, and extremely poor self-esteem present as profound barriers to his ability to undertake effective self-management (e.g. 'if I was not or the order and on my own, I would probably get into trouble again'). Therefore, should [the defendant] be supported in the absence of his high level of environmental restriction, his dynamic risk may significantly increase and he will pose significant risk of harm to self and others in the community. Therefore it is critical that [the defendant's] current model of support continues and any meaningful change and development is likely to require intensive and consistency support over an enduring period."
3. On a proper understanding of Ms Corcoran's conclusions, it appears to me that they are entirely consistent with Dr Furst's views that the defendant's risks can only be adequately managed by supervision by the MHRT of the defendant as a forensic patient, albeit presently subject to a conditional release order.

Relevant orders or decisions made by the MHRT - s 127(2)(e)

1. The most significant orders or decisions of the MHRT are the current terms of the conditional release order which have been quoted in full above. This order provides the framework and structure which allows the defendant to be in the community with the risk he poses being managed by the combination of the conditions imposed and the sanctions available, including returned to custody, if the conditions are not complied with.
2. As has already been noted, Dr Furst is of the view that management of the defendant as a forensic patient subject to a conditional release order by the MHRT is the appropriate and least restrictive means of managing the risk he poses.
3. There have been a number of previous decisions or orders by the MHRT in relation to the defendant. These have concerned the defendant's fitness to be tried and reviews following the imposition of the limiting term for the index offending. Nothing in those decisions or orders is markedly at odds with the opinions of Dr Furst, Ms Corcoran or Dr Youssef, referred to above.

Report of any government Department or agency responsible for the detention, care or treatment of the forensic patient - s 127(2)(f)

1. There were a number of reports from psychologists and a psychiatrist concerning the defendant between 2004 and 2016. These were reviewed by Dr Furst and taken into account in his recent reports. They did not contain material which is inconsistent to any significant extent with Dr Furst's opinions.
2. Since 2017, the following have reported on the defendant: 1. On 8 March 2017, Prof Hayes, forensic psychologist, concerning his mild intellectual disability and the need for substantial support as well as his limited capacity to understand order and obligations. 2. On 14 June 2018, Dr Hepner, neuropsychologist, concerning his intellectual functioning being in the extremely low range and his having significant limitations in his adaptive functioning such that he will require intensive and ongoing support. 3. On 14 August 2018, Dr Eagle, forensic psychiatrist, concerning the absence of signs or symptoms of any mental illness, such as a major mood disorder or psychotic disorder but his having an intellectual disability such that he was not fit to be tried. 4. On 3 April and 23 July 2020, Prof Hayes, whose reports were largely consistent with previous reports but noted that his mental state appeared to have deteriorated owing to his having been sexually assaulted in custody. In effect, Prof Hayes's opinion was that provided proposed supports were implemented, he received intensive intervention and supervision, the supports remained in place for a lengthy period of time and his functioning and compliance was monitored, the risk posed by the defendant might be adequately managed. 5. On 23 May, 23 August and 16 October 2020, Ms Higgins and Ms Brunette, psychologists, concerning their assessment that the defendant's score on the STATIC-99R was at the "well above average" risk level.
3. Once again, these reports were reviewed by Dr Furst and did not provide any basis for rejecting Dr Furst's views.

The defendant's level of compliance with obligations while a forensic patient - s 127(2)(g)

1. It appears that both while a forensic patient in custody and since his release into the community in November 2020, the defendant has been under intensive supervision. There is generally no indication that the defendant has been other than compliant with any relevant obligations in the circumstances.
2. In light of the psychological and psychiatric reports, however, I accept that this level of compliance has only been achieved with the benefit of the intensive supervision received by the defendant.

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

1. On 1 May 2020, in his remarks on sentence in relation to the index offending, Ellis DCJ said, inter alia: "It is noted that there was an absence of ongoing support for [the defendant] from family and other support personnel. 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. … 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 towards a child, but there is no suggestion that his mental health issues caused any type of paedophilia issue. … In terms of his prospects of rehabilitation, having regard to his prior offending, it is a little difficult to be entirely positive about it. But it seems likely to me that his experience of being in custody for what will be the better part of four years is likely to make it clear, even to him, that sexual contact with a person under the age of 16 years is wrong and regarded seriously by the judicial system and the community and likely, if repeated, to lead to further lengthy terms of imprisonment. In his case, the sentence will be longer than that imposed upon [Ms B] because I am dealing with him as a person who does not have the same subjective case, because of his prior criminal history and because, in my view, his role was more significant, in the sense that it is likely he was the motivator for this behaviour. However, it does appear that the appropriate arrangements will be in place when he is released, given the support arrangements that he is currently entitled to under [NDIS]. …".

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. To the extent that there was any other significant information available as to the risk that the defendant would in the future cause serious harm to others, it did not appear to me to be at odds with the views expressed by Dr Furst.

Unacceptable risk

1. On the basis of these allegations contained in the supporting documentation, which I assume have been proved, it appears to me that if the defendant was not a forensic patient and, as a result, was not subject to the supervision of the MHRT and was in the community: 1. there would be no case management of the defendant by the CSP and no one would perform Ms Roy's co-ordination and management role, because if the defendant ceases to be a forensic patient, Ms Roy's role as his case manager also ceases; 2. the defendant's NDIS funding may not include having access to the support and company of staff both in his accommodation and when accessing the community at all times including transportation; 3. staff at the defendant's supervised living accommodation would not be required or requested to submit any incident reports and/or concerns to any supervising body if the defendant was absent from his supported living accommodation or was not otherwise complying with his treatment or support plans; 4. there would be no obligation on the defendant to attend on or accept the treatment, or advice, of Dr Youssef, Dr Habib or Dr O'Dea; 5. the cost of the defendant's treatment by, and consultations with, Dr Youssef and Dr O'Dea would be unlikely to be met from the CSF; 6. there would be no case manager, such as Ms Roy, to promote or protect the defendant's interests by way, for example, of applications to the Guardianship Division of NCAT; and 7. there would be few if any effective sanctions, or steps to protect the community, such as returning the defendant to custody, able to be imposed on, or taken in respect of, the defendant if he did not seek and accept treatment or abide by restraints designed to eliminate, or reduce to an acceptable level, the risk of his reoffending sexually against children.
2. In these circumstances and on the assumption that the matters alleged in the Attorney General's supporting documentation are proved, especially the defendant's criminal history, the index offences, the circumstances surrounding those offences and the opinions of, and material reviewed by, Dr Furst, I am satisfied that the defendant poses a high risk of committing further sexual offences against children unless he is subject to stringent, enforceable conditions supervised by the MHRT and he is provided with intensive support in the community, which are only likely to be maintained if the defendant remains a forensic patient.
3. Thus, on the assumption that the matters alleged in the supporting documentation are proved, it is well open to the Court to be satisfied to a high degree of probability that the defendant poses an unacceptable risk of causing serious harm to others if he ceases to be a forensic patient.

Adequate management by other less restrictive means

1. On the same assumption and having particular regard to the opinions of Dr Furst on what was required to manage, in an effective manner in the future, the defendant's behaviour given his cognitive impairment and circumstances, I also concluded that it was clearly open to the Court to be satisfied to the requisite degree that the risk posed by the defendant could not be adequately managed by other less restrictive means.
2. Since he does not suffer from a major mental illness and is not a mentally ill person, the defendant could not be classified as an involuntary patient or have a community treatment order imposed, under the Mental Health Act 2007 (NSW).
3. Given the nature of a guardianship order and the principles that are to be applied by a guardian exercising functions under the Guardianship Act 1987 (NSW), I also accept that the defendant merely being subject to a guardianship order with funding provided by the NDIS will not adequately address the risk posed by him. A guardianship order might provide a means of allowing the defendant to live in the community with accommodation, treatment and similar decisions made by a guardian but it does not appear to me that such a regime would be sufficient to protect the community, and especially children, from serious harm. This is because the principles set out in s 4 of the Guardianship Act, which must be observed by a guardian when implementing a guardianship order, require the welfare and interests of the subject person to be the paramount considerations. In addition, the subject person's views must also be taken into consideration. The protection of the community from serious harm is not a relevant consideration identified in s 4. Thus, the matters that a guardian could properly address in performing functions under a guardianship order would not be likely to include restrictions or conditions designed only or principally to ensure the safety of the community from serious harm. It is these types of restrictions and conditions which are particularly required in the defendant's case.
4. To take a specific example relevant to the present case, the Guardianship Division of NCAT could empower a guardian to determine whether the defendant should receive antilibidinal medication. Whether such a power would actually be granted and whether the guardian would determine that the defendant should receive such treatment must be guided by the principles in s 4 of the Guardianship Act and not primarily by reference to the need to reduce the risk of the defendant engaging in sexual offending against children and, thus, causing serious harm to the community.
5. For these reasons, although a regime of guardianship orders would be likely to be less restrictive than continuation of the defendant's status as a forensic patient, it would not be sufficient, in my view, adequately to manage the risk of serious harm to others that would be posed by the defendant, if he ceased to be a forensic patient and was released into the community without the level of supervision currently available and provided for him.
6. Finally, Dr Furst was of the view that no other less restrictive means of managing the risk posed by the defendant were available. On this interim application, I have to proceed on the basis that this matter, since it is alleged in the supporting documentation, is proved.
7. Accordingly, I accept that it is more than reasonably open for the Court to be satisfied to a high degree of probability that the risk posed by the defendant could not be adequately managed by other less restrictive means than extending his status as a forensic patient.

Would the making of an extension order be justified?

1. On the assumption and for the reasons set out above, I am satisfied that the making of an extension order would be "justified", in the sense explained above. In those circumstances, the Court is required to make the examination orders under s 126(5) and the Court's power to make an interim extension order under s 130(1) of the MHCIFP Act is enlivened.
2. Given the limited duration of the interim extension of the defendant's status as a forensic patient and the risk posed by the defendant if he ceased to be a forensic patient because of his intellectual disability, his prior offending and the other circumstances identified in more detail above, it is my view that the defendant's status as a forensic patient should be extended for three months. This will allow him to be examined under s 126(5) and reports to be prepared so that a final hearing in this matter can be conducted on a properly informed basis, while at the same time ensuring that the community is protected from the risk of serious harm.

Limitations on access to the Court file

1. As noted above, the Attorney General sought that access to the Court file in this matter be limited so that a person who was not a party to the proceedings would not be permitted to have access to the file without leave of a judge and after the parties had been given notice that such access had been sought.
2. Given the sensitive nature of the subject matter of these proceedings and the fact that access to the file is not prohibited but was merely to be supervised, such an approach is appropriate and suitable.
3. An order to this effect has, however, already been made by consent by Bellew J on 10 February 2021. Accordingly, it is unnecessary for me to make a further order to the same effect.

Orders

1. In the circumstances, the Court must make an examination order under s 126(5) of the MHCIFP Act and it is appropriate in this case to make an order extending the defendant's status as a forensic patient for three months. In addition and having regard to the terms of s 127(3) of the MHCIFP Act, the Court is required to notify the MHRT of the making of the extension order.
2. Accordingly, the Court: 1. Makes an order pursuant to s 126(5) of the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW) that: 1. two qualified psychiatrists or registered psychologists or registered medical practitioners (or any combination of such persons), as agreed between the parties, are appointed to conduct separate examinations of the defendant and to furnish reports to the Supreme Court on the results of those examinations by a date agreed between the parties; and 2. the defendant is directed to attend those examinations. 1. Makes an order pursuant to ss 130 and 131 of the MHCIFP Act, the defendant is subject to an interim extension of his status as a forensic patient commencing from midnight on 1 May 2021, for a period of 3 months. 2. Grants liberty to the parties to apply on two days' notice in relation to order (1) if the parties cannot reach agreement for the purposes of either paragraph of that order. 3. Directs the Registrar to inform the Mental Health Review Tribunal of the making of the extension order referred to in order (2) by providing to the Tribunal a copy of the orders and the judgment in this matter.

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: 29 April 2021