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[2025] NSWSC 1512
General information, not legal advice.
Supreme Court of NSW
2025-06-20
Garling J
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Source: NSW Caselaw (www.caselaw.nsw.gov.au). Converted to plain text by ZoeLaw. Not the official version.
Medium Neutral Citation: Attorney General for New South Wales v DB (a pseudonym) [2025] NSWSC 1512
Hearing dates: 21 May 2025
Date of orders: 20 June 2025
Decision date: 20 June 2025
Jurisdiction: Common Law
Before: Garling J
Decision: Order pursuant to ss 121, 127(a) and 128 of the Mental Health and Cognitive Impairment Forensic Provisions Act 2020, that defendant be subject to order for extension of his custody as a forensic patient for a period of five years from 20 June 2025
Catchwords: MENTAL HEALTH – Hearing – Review – Forensic patient – Extension of status as a forensic patient – Previous review by Mental Health Review Tribunal – Where Attorney-General seeking orders pursuant to the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW) – Where defendant has been subject to previous extension orders – Section 122 test – Whether the forensic patient poses an unacceptable risk of causing serious harm to others if the patient ceases to be a forensic patient – Whether the risk cannot be adequately managed by other less restrictive means – First limb made out – Where alternative treatment regime is unsatisfactory – Second limb made out – Extension order made
Legislation Cited: Crimes Act 1900 (NSW) ss 33(1)(a), 61M(2), 66C(2)
Mental Health Act 2007 (NSW)
Mental Health (Forensic Provisions) Act 1990 (NSW) s 33
Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW) pt 5, 6 ss 69, 121, 122, 127, 128, 133
Cases Cited: Attorney General for New South Wales v Kapeen (by his tutor Jennifer Thompson) (Preliminary) [2018] NSWSC 619
Attorney General for New South Wales v Skerry (by his tutor Thompson) (Final) [2018] NSWSC 1711
Attorney-General of NSW (NSW) v Doolan By His Tutor Jennifer Thompson (No 2) [2016] NSWSC 107
Attorney-General of NSW v McaGguire (No.2) [(2014)] NSWSC 288.
Attorney-General of NSW v Randall (Ppreliminary) [(2023)] NSWSC 226
Attorney-General v Randal (preliminary) (2023) NSWSC 226
State of NSW v Simcock (Final) [2016] NSWSC 1805
Texts Cited: Not Applicable
Category: Principal judgment
Parties: Attorney-General for New South Wales (P)
DB (a pseudonym) (D)
Representation: Counsel:
J Wilcox (P)
B Fogarty (D)
Solicitors:
Crown Solicitors (P)
Legal Aid Commission (D)
File Number(s): 2024/393134
Publication restriction: Not Applicable
On 23 October 2024, the Attorney General for NSW (“the plaintiff”) commenced proceedings against a man who has been given the pseudonym DB, who appears by a tutor, seeking various interlocutory and final orders, pursuant to the various provisions of the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW) (“the Act”)
The Court made a number of interim and case management orders, which included DB being examined by two court-appointed experts.
The proceedings for final orders were heard before me on 21 May 2025. At the conclusion of the proceedings, I reserved my judgment.
The then existing status of DB as a forensic patient expired on 21 June 2025, unless the Court made an extension order under the Act. Accordingly, on 20 June 2025, I made the following order:
“Order pursuant to ss 121, 127(a) and 128 of the Mental Health and Cognitive Impairment Forensic Provisions Act 2020, that defendant be subject to order for extension of his custody as a forensic patient for a period of five years from today.”
DB was, in March 2023, the subject of an order extending his status as a forensic patient for a period of 2 years. Rothman J, who made that order, recommended that DB be released on a Conditional Release Order not more than 12 months from the date of the commencement of his extension order. That recommendation has not been accepted. The defendant has remained a forensic patient.
Accordingly, this application is a second one, seeking that DB be subject to an order extending his status as a forensic patient for a further period of 5 years.
The issues in the case turned upon whether, as DB’s counsel contended, the unacceptable risk of DB causing serious harm to others, if he were not a forensic patient, could be adequately managed by less restrictive means.
In summary, those less restrictive means were to terminate the forensic patient status of DB and leave him to be provided for through the non-forensic mental health system, under the Mental Health Act 2007 (NSW) (“Mental Health Act”).
DB (a pseudonym) (“the defendant”) is an Aboriginal man who was born in 1967 and is now 58 years of age. He apparently had a happy childhood, with his parents remaining married and having three brothers and two sisters. He grew up in the Emerton area and attended primary and secondary school in that area.
Shortly after he started in Year 7, his family moved to the Taree area, where the defendant attended Taree High School, completing Year 10 and achieving his School Certificate. At school, it was apparent that the defendant had a history of learning difficulties and was placed in special classes due to his categorisation as being “functionally illiterate”.
In his early 20s, the defendant suffered the onset of schizophrenia, which continued thereafter.
At present, the defendant has been diagnosed with chronic schizophrenia, which is treatment-resistant. He has an alcohol and substance use disorder, which is in remission, because he has been abstaining from alcohol and other illicit substances. As well, it is likely that he has a borderline intellectual disability.
He has other significant physical health conditions, including diabetes, Hepatitis C and chronic asthma. He is not in a good physical condition.
The defendant is a single man who has never married. He has four children with whom he has limited, if any, contact. He is estranged from his broader family.
The defendant’s first admission as an involuntary patient to a mental health facility was when he was aged 20. He has had over 30 admissions as an involuntary patient to mental health facilities since that time. Prior to his becoming a forensic patient, the last of those admissions was when he was just over 50 years old.
From the time of his diagnosis up until that time, a period of about 30 years, the defendant’s mental health was managed in the community by way of Community Treatment Orders, with a range of different anti-psychotic medications (oral and depot), and support from the Taree Community Mental Health Team and a treating psychiatrist.
DB’s criminal history commenced in 1989, when he was 22 years old. He had a series of relatively minor offences through to December 2003, when he was dealt with in the Local Court for an offence of damaging property by fire – which involved deliberately setting fire to his brother’s house.
In June 2018, he was involved in an incident which gave rise to the offence of wounding a person with intent to cause grievous bodily, harm contrary to s 33(1)(a) of the Crimes Act 1900 (NSW) (“the Crimes Act”). The victim of that wounding count was DB’s brother (“the index wounding offence”).
At the time he voluntarily presented himself to the police with respect to the wounding offence, DB made various admissions to police, which led to him being charged with three other offences – two of assaulting his niece and committing an act of indecency at that time, and one of having sexual intercourse with his niece, who was then 10 years old. The indecent assault offences were contrary to s 61M(2) of the Crimes Act, and the aggravated sexual intercourse offence was contrary to s 66C(2) of the Crimes Act.
These three offences only came to light because he volunteered admissions about them to police in June 2018, when he presented himself with respect to the index wounding offence. It will be convenient to refer to these further offences as the “index sexual offences”.
After being charged and committed to the Local Court, on 2 April 2020, the defendant was found unfit to be tried by Jeffreys DCJ, sitting at Port Macquarie District Court, due to his chronic schizophrenia. From that point, DB remained in custody in correctional centres, until detained as a forensic patient on 24 January 2022. At the time, he was referred to the supervision of the Mental Health Review Tribunal (“the Tribunal”).
Pursuant to sections 54 and 55 of the Act, a special hearing was held by Tupman DCJ at Taree District Court, on 24 March 2021. Tupman DCJ made a “qualified finding of guilt”, within the meaning of s 62(a) of the Act. On the limited evidence available, the defendant was found to have committed the index sexual offences.
On the following day, 25 March 2021, Tupman DCJ made a further finding that, on the limited evidence available, the defendant committed the index wounding offence.
On 16 April 2021, Tupman DCJ imposed limiting terms on the defendant, in accordance with s 63(2) of the Act, with expiry of all orders structured to take effect on 28 December 2022. The limiting terms imposed on the defendant were: 3 years and 4 months for the index wounding offence; 1 year and 8 months for the indecent assault index offences; and 2 years and 3 months for the sexual intercourse without consent index offence.
On 2 August 2022, the Attorney General filed an application that the defendant be subjected to an order for the extension of his status as a forensic patient, for a period of 5 years. Walton J granted an Interim Extension Order for a period of 3 months on 11 November 2022, to allow the matter sufficient time for determination.
On 21 March 2023, after hearing, Rothman J ordered the extension of the defendant’s status as a forensic patient for a period of 2 years.
The application for determination before the Court on this occasion is a second application seeking that the defendant be subject to a further order for the extension of his status as a forensic patient for a period of 5 years, made on 23 October 2024. Prior to final hearing, an Interim Extension Order was granted by N Adams J, for a period of three months, expiring on 21 June 2025.
It is convenient to set out the relevant statutory provisions. Making an extension order is addressed by various provisions. The provisions are deceptively simple, but in practice, and application, are complex and can be difficult.
The objects of pts 5 and 6 of the Act are set out in s 69 of the Act, in this way:
“69 Objects
(1) 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 acknowledge the harm done to victims.
(2) The objects of this Part extend to the provisions of Part 6.”
“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.”
“127 Determination of application for extension orders
(1) The Supreme Court may determine an application under this Division for an extension order—
(a) by making the order, or
(b) by dismissing the application.
(2) In determining whether or not to make an extension order, the Supreme Court must have regard to the following matters in addition to any other matter it considers relevant—
(a) the safety of the community,
(b) the reports received from the persons appointed under section 126(5) to conduct examinations of the forensic patient,
(c) the report of the qualified psychiatrist, registered psychologist or registered medical practitioner provided under section 125(b),
(d) any other report of a qualified psychiatrist, registered psychologist or registered medical practitioner provided in support of the application or by the forensic patient,
(e) any order or decision made by the Tribunal with respect to the forensic patient that is relevant to the application,
(f) any report of the Secretary of the Ministry of Health, the Commissioner of Corrective Services, the Secretary of the Department of Communities and Justice or any other government Department or agency responsible for the detention, care or treatment of the forensic patient,
(g) the level of the forensic patient’s compliance with any obligations to which the patient is or has been subject while a forensic patient (including while released from custody subject to conditions and while on leave of absence granted under this Act),
(h) the views of the court that imposed the limiting term or existing extension order on the forensic patient at the time the limiting term or extension order was imposed,
(i) any other information that is available as to the risk that the forensic patient will in future cause serious harm to others.
(3) If the Supreme Court makes an extension order in respect of a forensic patient, the Court is to notify the Tribunal of the making of the order.”
Section 128 provides that an extension order may be put in place for a period which does not exceed five years from the date on which it commences.
Section 133 of the Act provides that, at any time, this Court can vary or revoke an extension order if such an order is sought by either the Attorney-General, or the forensic patient, or else if the Mental Health Review Tribunal (“the Tribunal”) makes a recommendation to the Court so to do.
The defendant’s criminal history includes both sexual and violent offences. Prior to the index offences, which occurred in June 2018, the defendant had not been charged with any offence since 23 December 2003. In the context of the Attorney General’s application, it is necessary to give a brief history of the defendant’s criminal offending.
In 1989, the defendant was convicted of common assault, assault occasioning actual bodily harm and violent disorder, attracting a sentence of two 18-month behaviour bonds and a $250 fine.
In 1990, the defendant was convicted of indecent assault as a result of an interaction he had with a woman whilst urinating in a park, wherein he yelled out to her, “Do you want to see my dick?” and proceeded to walk up to her, grab her arm and squeeze her breast. The defendant was sentenced to a recognisance order for 3 years.
In 1992, the defendant was convicted of malicious wounding, assault occasioning actual body harm and malicious property damage, all of which occurred in a physical dispute with his de facto partner, resulting in a knife being used to create lacerations on her body, and damage her car. The defendant was sentenced to a six-month custodial sentence.
In 1993, the defendant was convicted of common assault and was sentenced to a 150-hour Community Service Order.
Again in 1993, the defendant was convicted of assault occasioning actual bodily harm after assaulting a man at a party. For this, the defendant was sentenced to a 4-month term of imprisonment.
In 1996, the defendant was convicted of two counts of goods in custody and one count of wilful and obscene exposure. The wilful and obscene exposure offence involved the defendant sunbaking naked at a beach, appearing to masturbate, and then approaching a woman whilst naked, with an erection. All offences attracted fines of various amounts.
In 2000, the defendant was charged with common assault, however these charges were dismissed under s 33 of the Mental Health (Forensic Provisions) Act 1990 (NSW). The incident from which the charge stemmed occurred at the defendant’s family home, in the presence of his brothers and parents, wherein he grabbed a kitchen knife and made repeated threats to harm his family members and blow up the house.
In 2003, the defendant was charged and subsequently convicted of damaging property by fire. The defendant had set fire to a portion of his brother’s house whilst knowing that his brother and brother’s fiancé were asleep inside. The incident followed a day of conduct wherein the defendant had made threats on the lives of his brother and father. After being referred to a mental health facility by the Court, under s 33 of the Mental Health (Forensic Provisions) Act 1990 (NSW), the defendant was sentenced to a 12-month bond with conditions of good behaviour, reporting requirements and cooperation with mental health treatment practitioners.
The parties note that the defendant has also been convicted and received fines for stealing, false pretences and resisting officers in the execution of duty. The defendant has also incurred two institutional misconduct charges involving assaults in 1992 and 2004.
At sentencing for the index offences, Tupman DCJ noted that it was “not a significant criminal history”, and that no offending had occurred since 2003, with the last violence-related offence occurring in 2000. Further, her Honour noted that the defendant had no relevant history of sexual offending prior to the index sexual offences, including any sexual offending against children.
(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.
It is clear from the terms of the Act that the first limb is to be considered separately from the second limb. That is, the question of unacceptable risk of causing serious harm to others is to be assessed on the assumption that the patient’s status as a forensic patient will cease. Such an approach was elucidated by RA Hulme J in Attorney General for New South Wales v Skerry (by his tutor Thompson) (Final) [2018] NSWSC 1711 at [10], and Johnson J in Attorney General for New South Wales v Kapeen (by his tutor Thompson) (Preliminary) [2018] NSWSC 619 at [49].
The evidence considered below touches upon both limbs of the Act.
Dr Gordon Elliott is a forensic psychiatrist. Following an initial report regarding the defendant, dated 9 January 2023, also by Dr Elliott, he conducted a further psychiatric assessment of the defendant in the Clovelly Ward of The Forensic Hospital on 26 March 2025. The contents of Dr Elliott’s report, dated 7 April 2025, are based on this March assessment.
Dr Elliott made the psychiatric diagnosis of chronic treatment resistant schizophrenia with a more than 30-year duration of illness. Prominent features of the defendant’s illness include psychosis, auditory hallucinations and cognitive deficits, such as amotivation and a lack of initiative. Dr Elliott also notes the defendant’s diagnosis of Substance Use Disorders as being in remission in a highly controlled environment.
Dr Elliott opined that, if the defendant was discharged from care into an unsupported setting, “his cognitive impairment would lead to him being unable to initiate and coordinate continued compliance with his psychiatric care”. In summarising his position, Dr Elliott pointed to the high likelihood of homelessness and relapse into cannabis and methamphetamine use, leading to a worsening of the defendant’s psychotic symptoms and an increase in aggressive behaviours. Dr Elliott concluded that “methamphetamine use poses the greatest risk of him reoffending violently or committing a further sexual offence”.
In relation to the risk of serious harm posed by the defendant if he were to cease his classification as a forensic patient and not be subject to any other type of protective order, Dr Elliott found that the defendant did pose such a risk, to a moderate level. However, key to Dr Elliott’s finding was the assumption that the defendant would be released abruptly and unsupported to the community – a reality that Dr Elliott concluded as being “entirely implausible”.
Dr Elliott further concluded that the defendant’s likelihood of relapsing into aggressive behaviours would be increased by his significant risk of homelessness and subsequent non-compliance with treatment, and exposure to substance use as a result of release without a further protective order. His ongoing risk of recidivist sexual offending was categorised as less likely by Dr Elliott.
In his final recommendation, Dr Elliott favoured an outcome where the defendant ceased to have the status of a forensic patient, citing a combination of orders and measures which ought to be implemented on the non-forensic patient pathway as being effective in mitigating the defendant’s risk of causing serious harm upon his release from forensic patient status into the community.
Dr Sathish Dayalan is a forensic psychiatrist. Similarly to Dr Elliott, Dr Dayalan had previously examined the defendant and prepared a report on 30 January 2023. The contents of Dr Dayalan’s report, dated 28 April 2025, are based on a psychiatric assessment conducted on the defendant at The Forensic Hospital on 14 April 2025.
In his report, Dr Dayalan confirmed the defendant’s diagnosis of chronic treatment resistant schizophrenia under the criterion established in the DSM-5, reflective of symptoms such as persecutory, grandiose, religious and referential delusions, thought disorder and auditory and visual hallucinations. Dr Dayalan also concluded that the defendant may have borderline intellectual functioning, evident in his cognitive deficits.
Dr Dayalan identified a moderate to high loading of historical risk factors in the case of the defendant, including violence and other anti-social behaviours, relationship issues, employment issues, substance abuse, significant mental disorders, amongst others. Dr Dayalan also observed the defendant’s clinical risk factors, assessed at a moderate loading, including “problems with insight into his mental illness, substance use and risk of violence, treatment resistant symptoms of schizophrenia, and problems with treatment response”.
In summary, he concluded that the specific combination of the defendant’s mental illness and substance abuse issues would result in a high loading of risk management variables if the defendant ceased to be a forensic patient and was returned to the community without adequate security, support and supervision.
The actuarial risk assessment instruments used by Dr Daylan returned a score which placed the defendant at a “well above average risk level”, and suggested that, in relation to his sexual recidivism, the defendant presented with a “moderate level of stable dynamic risk and needs”.
Dr Daylan concluded that the defendant poses a risk of serious harm to others, in the event he ceases to be a forensic patient and is not subject to any other type of protective order. Dr Daylan wrote:
“In the context of deterioration of his mental state and using substances, [the defendant] poses a risk of exhibiting violent behaviour and or sexually assaulting females.”
“The likelihood of causing serious harm to others will be influenced by factors such as placement, level of supervision, access to substances, exposure to stress, compliance with treatment, access to victims and association with antisocial peers.”
Dr Daylan noted that, although the defendant has not exhibited antisocial behaviour whilst compliant with treatment and abstinence from substances, his presentation in a hospital environment is not to be regarded as a representation of any potential future behaviour in the community.
Dr Daylan suggested that the continuation of the defendant as holding forensic patient status is the “most appropriate means to managing the risk of [the defendant] causing serious harm to others”. He noted that the defendant appeared to have demonstrated no progression since his initial assessment, and that any return to the community should be done extremely gradually, with the defendant maintaining his status as a forensic patient so as to ensure that the appropriate resources and supports are available to him as he makes that transition.
Dr Richard Furst is a forensic psychiatrist. On 23 June 2024, he provided a risk assessment report concerning the defendant’s application. In it, Dr Furst opined that the defendant meets the criteria for diagnoses of chronic treatment‑resistance schizophrenia, substance use disorder and likely borderline intellectual disability.
Dr Furst concluded that the defendant likely did pose a risk of causing serious harm to others if he ceased being a forensic patient.
Dr Furst identified four risk management factors which indicated that the defendant had a high loading of said factors for future violence, including an absence of accommodation, a lack of community supports, and an unacceptable risk of relapse of mental illness and addiction.
By way of final conclusion, Dr Furst opined that the strongly preferable approach was for the defendant to be gradually stepped down to a medium secure unit with attendant extra support and supervision. Dr Furst further suggested that the 2-year extension order made by the Court in 2023 was too short when considering the complex clinical problems and risk issues faced by the defendant.
The Court must also have regard to any other reports of a qualified psychiatrist, registered psychologist or registered medical practitioner provided in support of the plaintiff’s application. The plaintiff relied upon the reports of the Court‑appointed experts from the previous extension order proceedings, being Dr Elliott and Dr Dayalan, as well as Dr Furst.
The plaintiff also relied upon the report from the defendant’s treating team, Dr Nuru Tajudeen – Psychiatry Registrar, and Dr Adam Ko – Consultant Forensic Psychiatrist, dated 28 April 2025. In this report, the diagnoses of chronic treatment-resistant schizophrenia and cannabis-use were affirmed, and it was suggested that the defendant continued to have a “moderate to high” loading of historical risk factors for violence and a “low” loading of dynamic risk factors for violence in the short term whilst an inpatient at The Forensic Hospital.
The defendant put forward the opinions of two medical practitioners, pursuant to s 127(2)(d) of the Act.
Dr Trevor Ma, the defendant’s treating psychiatrist, expressed a desire for the defendant to be classified as a civil patient in the event that his forensic status expires. He also expressed the firm view that the defendant could be managed as a civil patient, and that such management would, in fact, be preferable to forensic patient status, which Dr Ma labelled as “harsh”.
Dr Xia was the defendant’s treating psychiatrist between December 2022 and December 2024. She opined that the defendant was currently presenting as a low risk of harm whilst at The Forensic Hospital, and since no plans existed suggesting the imminent discharge of the defendant into the community, that he would be better managed as a civil patient under the Mental Health Act. She also posited that that the defendant’s sexual offending was in the context of acute psychosis and substance use, and that she did not believe him to have paedophilia on repeated assessment.
In the years following the defendant’s sentencing for the index offence, he was subject to several decisions of the Tribunal.
On 13 May 2024, the Tribunal refused to vary the orders then applying to the defendant, being for his detention at The Forensic Hospital with escorted day leave. The Tribunal concluded that the defendant continued to display ongoing signs of disturbance in his mental state in spite of ongoing treatment.
Both on 15 November 2024 and 1 May 2025, the Tribunal, again, refused to vary the orders then applying to the defendant, being of the opinion that the current orders were sufficient and necessary.
In relation to the Court’s consideration of s 127(2)(f) of the Act, the plaintiff and defendant both advanced material from variety of sources as being persuasive of their case’s merit.
The plaintiff cited various Justice Health notes and materials as confirming the ongoing nature of the defendant’s psychotic symptoms, expressing delusions to his nurses several times between March and April of 2025.
The defendant cited two nursing reports, dated 24 March 2024 and 29 March 2025. The earlier report conveys that the defendant is socialised, compliant with his treatment plan, participatory in ward-based groups, polite and pleasant, and clean from all substances. The later report conveys much of the same one year on from the 2024 report.
The defendant also cited select progress notes, which he submitted as evidence that he required salbutamol and/or Ventolin treatment, that he was actively engage in group programs, that he was compliant with medication and not aggressive to staff, and that he now has a NDIS coordinator, guardian and financial manager supporting him.
When considering the defendant’s compliance with his obligations as a forensic patient, both the plaintiff and defendant are agreed in finding the defendant to be, at the minimum, a ‘largely compliant’ forensic patient. The defendant cited that fact that he has received nil DASA scores and IIMS since his transfer to Clovelly as being suggestive of his ongoing compliance.
The plaintiff, despite acknowledging the defendant’s compliance, was pointedly less persuaded as to his compliance translating to the outside world, following the revocation of his status as a forensic patient. The plaintiff submitted that the specific environment of The Forensic Hospital, which is itself staffed by individuals with considerable expertise in crisis management and de-escalation against violence, allows the facility to intervene at an early stage, once the defendant exhibits the early warning signs suggestive of aggressive behaviour. Notably, Dr Dayalan opined that the defendant’s “presentation in the hospital cannot be regarded as a representation of his future behaviour in the community”.
In considering the view of the Court which imposed the limiting term or extension order, both the plaintiff and defendant cited the sentencing judgment of Tupman DCJ and her Honour’s comments contained therein.
Her Honour saw the connection between the defendant’s severe mental illness and offending behaviour to be unclear, but noted that his reasoning for the sexual offence was “at the very least bizarre and possibly delusional”, and that the wounding offence “had a somewhat scattered flavour to it, as did some of the statements he made immediately afterwards”. Her Honour went on to necessitate for the defendant a system of “proper monitoring and treatment”, and to recommend that, upon release to the community, such a system remain in place for a lengthy period of time, at a minimum.
Her Honour also remarked that the index sexual offences were below the midrange of objective seriousness, and the index wounding offence was towards the bottom range of offences under s 33(1)(a) of the Crimes Act. In addition, the defendant’s criminal history was held not to be a significant one, and his apparently peaceful existence in the community since his previous offending 15 years ago, and lack of history of sexual offending, let alone with a juvenile, were all found to be factors going to his merit.
The plaintiff also cited the remarks of Rothman J at the time his Honour imposed the extension order on the defendant. At the time, his Honour opined that the conditions of s 122(1) had both been satisfied to a high degree of probability. Imposing the extension order, his Honour made a “strong recommendation” that steps be initiated to release the defendant on a Conditional Release Order within 12 months of the imposition of the order, and that a regime reflective of Dr Elliot’s suggestion be implemented in the 12 months following.
The plaintiff made no submissions positing any other information available concerning the risk that the defendant will cause serious harm to others in future which would advance its cause.
The defendant engaged in lengthy submissions, referencing several sources of information which would suggest that such a risk is not unacceptable and thereafter unmitigable. For the purposes of brevity, the information relied upon by the defendant in relation to s 127(2)(i) of the Act can be sorted into eight categories:
evidence of former and current treating psychiatrists;
expert evidence of civil patient designation;
child protection reporting obligations;
state guidance and resources allocated to assist those in the defendant’s position;
risk of institutionalisation;
compliance with prior escorted leave arrangements;
guardianship and financial management; and
risk of substance abuse.
The gravamen of these submissions is that the risk posed by the defendant can be adequately managed through classification as an involuntary non‑forensic patient, and that the unique set of circumstances which would otherwise accompany his release all function to aid the defendant in ensuring that he is sufficiently supported and supervised during any scheduled release into the community so as to avoid any re-offending or non-compliance.
As the first limb has been made out successfully, independently of the second limb, it is necessary now to consider whether the unacceptable risk of causing serious harm to others, which has been identified in the course of the evidence before the Court “… cannot be adequately managed by other less restrictive means”. In the context of the legislation, the alternative means of adequate management are required to be less restrictive than the categorisation of DB as a forensic patient.
It is also necessary to give weight to the phrase “adequately managed”. That phrase qualifies the extent to which the unacceptable risk of causing serious harm to others can be mitigated to the level that it is now no longer an unacceptable risk.
The unacceptability of risk involves consideration of both the likelihood of the risk eventuating, and the gravity of the risk that may eventuate: see State of NSW v Simcock (Final) [2016] NSWSC 1805 at [71].
I have earlier expressed the view in Attorney-General of NSW v McGuire (No.2) [2014] NSWSC 288, at [63], to which I adhere, with respect to adequate management in these terms:
“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 … forensic patients being confined in some form of institutional care rather than taking their place in the community.”
Clearly, in making any such assessment, it is necessary to consider what orders may be able to be made under the Mental Health Act.
Yehia J in Attorney-General of NSW v Randal**l (Preliminary) [2023] NSWSC 226, at [33], adopted what Adamson J had said in Attorney-General of NSW v Doolan By His Tutor Jennifer Thompson (No 2) [2016] NSWSC 107. Yehia J said of her Honour’s judgment in Doolan, this:
“33. Her Honour recognised that one such ‘less restrictive means’ of managing the defendant’s risk is their classification as an involuntary patient under the Mental Health Act’. Her Honour noted four key differences between the regime that deals with forensic patients and the (less restrictive regime) that deals with involuntary patients. They are as follows:
(1) Detention: Forensic patients remain in detention unless certain criteria for release are satisfied, while involuntary patients are not detained unless they are mentally ill or mentally disordered, in which case the maximum period of detention is three months following an inquiry …;
(2) Release from detention: A forensic patient cannot be released without an independent expert risk assessment report, while an involuntary patient must be discharged by the Tribunal ‘if no longer satisfied on the balance of probabilities that the patient is mentally ill’. No independent risk assessment report is required …;
(3) Imposition of conditions while patient is living in the community: The Tribunal may impose conditions for a forensic patients’ accommodation, treatment, medication, conduct, case management and drug-testing, while CTOs for involuntary patients … relate only to the person’s treatment …;
(4) Consequences of breach of conditions: If a forensic patient breaches a condition of their release, they can be recalled and detained by the Tribunal, while involuntary patients are subject to the oversight of the director of community treatment at the relevant mental health facility.”
The assessment to be undertaken is an evaluative one which occurs in the overall context of the primary objective of the Act. I note that the objects of the Act include the protection of the safety of members of the public, to protect the safety of victims of forensic patients, and acknowledge the harm done to those victims: s 69 of the Act.
The alternative means for addressing the unacceptable risk depends upon the workings of the non-forensic mental health system.
The proposal is that, if the defendant ceased to be a forensic patient, he would be immediately scheduled as an involuntary non-forensic patient under the Mental Health Act by his current treating psychiatrist. As a consequence of that scheduling, he would either be detained and cared for in the Forensic Hospital or discharged with an appropriate plan and transferred for detention and care to a long-stay non-forensic rehabilitation ward. There are such wards at Campbelltown Hospital, Bloomfield Hospital, Concord Hospital and Macquarie Hospital.
During any such non-forensic involuntary detention, it would be possible to undertake discharge planning, and arrange transfer of care for him so that, in due course, he might live in the community.
Living in the community would require:
(a) the appointment of a guardian and financial manager to decide where the defendant would live, with whom he would live, what services he would receive and how his money would be budgeted and spent; (b) a Behavioural Support Plan of a kind similar to that which is presently in place on an interim basis, which recommends restrictive practices of environmental restraints, of locked doors, locked cupboards and supported community access; (c) the ongoing administration of medication such as Clozapine; (d) a Community Treatment Order for a period of either 6 to 12 months which can then be renewed; (e) monitoring by police as a registrable person on the NSW Child Protection Register; (f) some National Disability Insurance Scheme funding and supports to provide supported independent living accommodation; (g) various treatment and medication requirements; and (h) some oversight, or a provision of Risk Assessment Advice from Community Forensic Mental Health Services.
In those circumstances, once discharged as an involuntary patient, there would be no oversight by the Tribunal.
It is inevitable that, in the alternate plan proposed, there would be significant changes from time to time in the identity of those responsible for the treatment of the defendant as he changed from being in one institution to another, and then as he moved from a lower-level institution to live in supported accommodation in the community.
The plan which is submitted to be less restrictive than being a forensic patient, may, for the purposes of argument, be accepted. However, it is not one with any real certainty, except that the defendant would be being treated and cared for under the Mental Health Act.
It is to be recalled that the expert opinion about the defendant’s mental illness of chronic, treatment-resistant, schizophrenia is that it is a lifelong condition. He will therefore remain mentally ill, within the relevant definition in the Mental Health Act for the balance of his life.
I do not accept that the alternative treatment regime which is proposed is at all satisfactory. It is not a plan. It is a broad, general proposal characterised more by hope and wishful thinking, than a real treatment plan.
It is a proposal which points to available options which can be engaged with if circumstances warrant. But that only serves to emphasise the inherent uncertainty which characterises the plan.
Where the defendant is to live is an important question when considering the safety of the public, or his victims. The defendant, in conversation with various treating doctors and others, has suggested that he may well become homeless. Whilst I doubt that anyone supervising the defendant would wish or intend that to happen, the prospect does not seem to trouble the defendant.
Were the defendant to be homeless, there is no way in which the community could be protected.
I do not suggest that the defendant being homeless is a characteristic of any plan which may be brought into place. However, it emphasises the necessity for an adequate alternate management plan to provide for clear, available proposals for accommodation, which would be both supported and supervised.
The proposals advanced by the defendant do not, in my evaluation, reach anywhere near a level which would be capable of allowing this Court to be comfortable with the plan as being one which would be satisfactory to protect the community.
The absence of the ongoing oversight by the Tribunal, is a significant disadvantage for the alternative of option pointed to by the defendant. The Tribunal is an independent body well experienced in the management of forensic patients, can be relied upon, when clinically appropriate, and when appropriate from the perspective of community safety, to transfer the defendant to suitable facilities, including medium security units as appropriate. If the Tribunal is not satisfied that it is appropriate, then such transfers will not be made.
This control-mechanism is critical to ensuring the safety of the community, so far as it is possible. Such mechanism does not exist in the alternative plan. In my evaluation, the proposed alternative plan will not result in the unacceptable risks upon which the parties are agreed, and which have been identified, to be ameliorated so that they become a risk which can be tolerated, keeping mind the safety of the community.
It is for these reasons that I extended the status of the defendant as a forensic patient and for the period of 5 years.
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Attorney General for New South Wales
DB