Attorney General for New South Wales v Huckstadt

Background

1. The defendant is presently 59 years old. He sustained a head injury when he was hit by a car at the age of eight, as a result of which he was diagnosed as suffering from frontal lobe syndrome and mild mental retardation secondary to a brain injury. He has fathered ten children in the course of two relationships. He has only rarely been employed and has been on a disability support pension. He is functionally illiterate. He has difficulties with controlling his impulses. He had a stroke in 2016 and has hemiplegia as well as vascular dementia. He has previously engaged in alcohol and substance abuse. In January 2016 he was made subject to a guardianship order.

The special hearing and the indication of a limiting term

1. In 2010 the defendant was committed for trial for a number of sexual offences. As he was found unfit to be tried, the matter proceeded as a special hearing before Payne DCJ in December 2011 pursuant to s 19 of the Forensic Provisions Act. Her Honour held that, on the limited evidence available, the defendant had committed five of the counts on the indictment in the period between 1 January 2006 and 25 January 2007: three offences of sexual intercourse with a female child between 14 and 16 years contrary to s 66C(3) of the Crimes Act 1900 (NSW); and two offences of indecent assault under s 61M(1) of the Crimes Act (the index offences). The female victim of all five offences was 14 years old at the time of the first offences but turned 15 before the last offence. Her father had a relationship with the defendant's sister, with whom the defendant was living at the time of the offending. Each of the sexual intercourse offences involved penile vaginal penetration and both of the indecent assaults involved kissing on the mouth. The offending occurred in the victim's home, in a caravan belonging to a family friend and in a tent pitched in her father's partner's backyard.
2. Pursuant to s 23 of the Forensic Provisions Act, Payne DCJ indicated that, if the special hearing had been a normal trial of criminal proceedings against a person who was fit to be tried for the index offences, the Court would have imposed a sentence of imprisonment. On 14 June 2012 Payne DCJ nominated the following limiting terms: Count on the indictment Time period Description of offence Section of Crimes Act/ maximum penalty Limiting term imposed 2 June 2006 Sexual intercourse with child of 14 years 66C(3)/ 10 years 4 years from 27.4.12-26.4.16 4 Between 1.11.06 and 20.12.06 Sexual intercourse with child of 14 years 66C(3)/ 10 years 4 years from 27.4.12-26.4.16 5 Between 1.11.06 and 19.12.06 Assault with act of indecency on child under age of 16 years 61M(1)/ 7 years 6 months from 27.4.12-26.10.12 7 Between 23.1.07 and 24.1.07 Sexual intercourse with child of 15 years 66C(3)/ 10 years 4 years from 27.4.13-26.4.17 8 Between 1.11.06 and 20.12.06 Assault with act of indecency on child under age of 16 years 61M(1)/ 7 years 6 months from 27.4.12-26.10.12

1. Her Honour referred the defendant to the Mental Health Review Tribunal (the Tribunal) pursuant to s 24(1)(a) of the Forensic Provisions Act and ordered, pursuant to s 24(1)(b), that the defendant be detained in such place as the Tribunal directed. Accordingly, the defendant became a forensic patient by reason of the operation of s 42 of the Forensic Provisions Act. Unless an extension order is made he will cease to be a forensic patient on 26 April 2017, which is the date on which his limiting term will expire.

The jurisdiction to make an extension order

1. The term "forensic patient" is defined in s 42 of the Forensic Provisions Act. It includes a person who is found unfit to be tried who is detained. Because the defendant was the subject of a limiting term and was detained in custody pursuant to an order made under s 24, he is a forensic patient.
2. Part 5 of the Forensic Provisions Act, which deals with forensic and correctional patients, provides that the objects of the Part include the protection of the safety of members of the public: s 40(a). Section 54A provides for the extension of a person's status as a forensic patient in accordance with Sch 1. Clause 3 of Sch 1 permits the Minister administering Part 5 of the Act to apply to this Court for an extension order against a forensic patient.
3. Section 54 of the Forensic Provisions Act provides: "Release from mental health facility on ceasing to be a forensic patient A person who ceases to be a forensic patient (other than a person classified as an involuntary patient under section 53) must be discharged from the mental health facility in which the person is detained."
4. The Forensic Provisions Act confers power on this Court to make an extension order if the forensic patient is subject to a limiting term or an existing extension order: cll 1 and 4, Sch 1. The test for making an extension order is set out in cl 2, Sch 1, as follows: "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 Schedule 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 he or she ceases being a forensic patient, and (b) the risk cannot be adequately managed by other less restrictive means (including classification as an involuntary patient under section 53). (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."
5. Section 53 of the Forensic Provisions Act (which is referred to in cl 2(1)(b), Sch 1 above) provides: "Classification as involuntary patient (1) The Tribunal may, on a review of the case of a forensic patient detained in a mental health facility, correctional centre or other place following a special hearing, classify the patient as an involuntary patient if the patient would, by virtue of the operation of this Act or any other law, cease to be a forensic patient within 6 months after the date of the review. (2) The Tribunal may order that a patient classified as an involuntary patient under this section be transferred from a correctional centre to a mental health facility. Note. A person classified as an involuntary patient ceases to be a forensic patient, see section 52 (2)."
6. Clause 7(2) of Sch 1 provides: "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 clause 6(5) to conduct examinations of the forensic patient, (c) the report of the qualified psychiatrist, registered psychologist or registered medical practitioner provided under clause 5(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 Director-General of the Ministry of Health, the Commissioner of Corrective Services, the Director-General of the Department of Family and Community Services 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 he or she is or has been subject while a forensic patient (including while released from custody subject to conditions and while on a leave of absence in accordance with section 49 or 50), (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."
7. On the making of an extension order, the Court is neither required nor permitted to determine whether the order is one for detention of the individual or supervision within the community. It is for the Tribunal to determine these matters. Once an extension order has been made, it may be varied or revoked by the Court, on the application of either of the parties or on the recommendation of the Tribunal, under s 47(2A) of the Forensic Provisions Act: cl 12, Sch 1.

The procedure for applying for and making an extension order

1. An application for an extension order must be made within the last six months of a forensic patient's limiting term or an existing extension order: cl 4(2), Sch 1.
2. The applicant for an extension order is required to furnish to the Court documentation that addresses, to the extent relevant, each of the matters referred to in cl 7(2) and a report from a qualified psychiatrist, registered psychologist or registered medical practitioner that assesses the risk of the forensic patient causing serious harm to others; 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: cl 5, Sch 1.
3. Proceedings under Sch 1 are civil proceedings and are to be conducted in accordance with the law relating to civil proceedings (including the rules of evidence): cl 13, Sch 1.
4. The Forensic Provisions Act requires a preliminary hearing into the application within 28 days after the application is filed or within such further time as the Court allows: cl 6(4), Sch 1. If, following a preliminary hearing, the Court is satisfied that the matters alleged in the application would, if proved, justify the making of an extension order, the Court must appoint independent clinical experts to conduct examinations of the forensic patient and to furnish reports to the Court: cl 6(5), Sch 1. If not so satisfied, the Court must dismiss the application: cl 6(6).
5. Clause 10 of Sch 1 provides that the Court may make an interim extension order of the defendant's status as a forensic patient if the limiting term will expire before the proceedings are determined and the matters alleged in the supporting documentation would, if proved, justify the making of an extension order.

The Tribunal's power to order the release of forensic patients

1. Section 47 of the Forensic Provisions Act empowers the Tribunal, after reviewing the case of a forensic patient under s 46, to make an order, either for continued detention or for the patient's release, either conditionally or unconditionally. Leave of absence may also be granted pursuant to s 49, subject to safety considerations outlined in the section. Section 43 prohibits the Tribunal from making an order for the release of a forensic patient unless it is satisfied that the safety of the patient or the public will not be seriously endangered and: "other care of a less restrictive kind, that is consistent with safe and effective care, is appropriate and reasonably available to the patient or that the patient does not require care."
2. The Tribunal may, under s 75 of the Forensic Provisions Act, impose a range of conditions as part of a conditional release order, including the appointment of a case manager. The conditions that may be imposed include conditions relating to care and treatment; medication; accommodation; non-use of alcohol; drug testing; and agreements as to conduct. Prohibitions or restrictions on visiting certain places or associating with certain people may also be imposed.
3. Section 74 of the Forensic Provisions Act requires the Tribunal to have regard to certain matters when determining what order to make, which include: whether the person is suffering from a mental illness or other mental condition; whether there are reasonable grounds for believing that care, treatment or control of the person is necessary for the person's own protection from serious harm or the protection of others from serious harm; the continuing condition of the person, including any likely deterioration in the person's condition, and the likely effects of any such deterioration; and a report of a forensic psychiatrist.

Relevant authorities

1. I was referred to decisions of this Court in which the Forensic Provisions Act was considered. Judicial consideration of the Crimes (High Risk Offenders) Act 2006 (NSW) (the High Risk Offenders Act) is of particular relevance where the same, or similar, wording is used: Attorney General of New South Wales v McGuire [2013] NSWSC 1862 by Davies J at [12]. Guidance as to the meaning of "high degree of probability" under the Forensic Provisions Act can, accordingly, be obtained from a consideration of its meaning in the High Risk Offenders Act. In Cornwall v Attorney General for New South Wales [2007] NSWCA 374 (a decision under the High Risk Offenders Act), the Court of Appeal (Mason P, Giles and Hodgson JJA) said at [21]: "The expression 'a high degree of probability' indicates something 'beyond more probably than not'; so that the existence of the risk, that is the likelihood of the offender committing a further serious sex offence, does have to be proved to a higher degree than the normal civil standard of proof, though not to the criminal standard of beyond reasonable doubt ..."
2. The question whether "the matters alleged in the supporting documentation would, if proved, justify the making of an extension order" also arises under the High Risk Offenders Act. The Court of Appeal (Mason P, Santow and Tobias JJA), in Attorney General for the State of New South Wales v Tillman [2007] NSWCA 119, said of similar wording in the High Risk Offenders Act at [98]: "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 ss 17(2) and (3) [of the High Risk Offenders Act]. 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 added.]
3. The phrase "unacceptable risk" is not defined in the Forensic Provisions Act. However, it is a common expression in Bail Acts: see, for example, Div 2 of Part 3, Bail Act 2013 (NSW). It is clear from the express terms of cl 2(1)(a) in the Forensic Provisions Act that the unacceptable risk is that of "causing serious harm to others".

Consideration

1. As referred to above, an interim extension order can be made following a preliminary hearing if I am satisfied that the matters alleged in the supporting documentation would, if proved, justify the making of an extension order. In other words, before I can make an interim extension order I must be satisfied that the supporting documentation is capable of satisfying the Court (at a final hearing) to a "high degree of probability" of the following two matters: 1. that the defendant poses an unacceptable risk of causing serious harm to others if he ceases being a forensic patient; and 2. that the risk cannot be adequately managed by other less restrictive means (including classification as an involuntary patient under s 53 of the Forensic Provisions Act).
2. I propose to address such matters in cl 7(2) as are relevant for the purpose of considering whether I am satisfied that the supporting documentation is capable of establishing that there is a high degree of probability that the defendant poses an unacceptable risk of causing serious harm to others if he were to cease being a forensic patient and in circumstances where the risk cannot be managed by less restrictive means.

The safety of the community (cl 7(2)(a))

1. The supporting documentation is capable of establishing that, if not supervised, there is a risk that the defendant will engage in impulsive sexual acts against children, as he has done in the past. This tendency creates a risk of serious harm to persons in the community if the defendant ceases to be a forensic patient. Moreover, it is some years since the defendant has been at liberty. His adjustment to life in the community may make him more susceptible to such impulses, if he is not assisted and managed on his release.

The report of the qualified psychiatrist provided under cl 5(b) (cl 7(2)(c))

1. On 23 December 2016 the Crown Solicitor's Office (CSO) briefed Dr Kerri Eagle, forensic psychiatrist, to prepare a risk assessment report in respect of the defendant pursuant to cl 5(b) of Sch 1 to the Forensic Provisions Act. Dr Eagle, who did not examine or interview the defendant, prepared a report, dated 17 January 2017, based on the documents briefed. Dr Eagle considered that the defendant poses a risk of causing serious harm to others if he ceases to be a forensic patient. She postulated that the risk of harm would be substantially increased if the defendant were to have unsupervised contact with children, particularly in circumstances where he had access to drugs or alcohol. She opined that "his ongoing risk management needs would best be managed by the continuation of his forensic order particularly in the period of transition from custody into the community". Dr Eagle also considered that he would be unlikely to comply with recommended management strategies in the absence of an extension of his forensic status.

Reports received from medical experts (cl 7(2)(d))

1. The defendant's treating psychiatrist, Dr Sharon Reutens, reported on 27 October 2016 that the defendant needed a high level of assistance with personal care due to his physical and intellectual disabilities. She noted that the defendant "always denies the charges when they are discussed" and opined that "any potential accommodation venue would have to be secure, a distance from children's facilities and from alcohol venues".
2. Jenny Howell, forensic psychologist, prepared a report dated 10 March 2017 which was submitted to the Tribunal at a recent review. Ms Howell assessed the defendant's risk by reference to Static-99R and Static-2002R and determined that he fell into the moderate-high risk category. She noted that he has little insight into the prospect of future offending and identified the two areas of "primary risk" as being "offence management and mental health concerns".
3. The evidence includes several other reports from experts concerning the risk posed by the defendant. However, as many of them were prepared before the special hearings before Coorey DCJ and Payne DCJ, they are not of particular relevance to this application, which requires consideration of more current material to determine the present risk posed by the defendant.

Any orders or decisions made by the Tribunal: cl 7(2)(e)

1. The Tribunal is obliged, by s 46 of the Forensic Provisions Act, to review the case of a forensic patient every six months but may review the case of any forensic patient at any time. On 9 August 2012 the Tribunal found that the defendant was suffering from a mental illness and that he was mentally impaired. The Tribunal has expressed the view in a determination for review held on 10 November 2016 that the defendant poses a risk to children. This risk has constrained the choice of accommodation for the defendant. The nature of his offending has constituted, according to Dr Reutens, "a major barrier for placement".
2. I was informed in the course of the hearing that the Tribunal reviewed the defendant on 13 April 2017 and has foreshadowed that it is considering conditionally releasing him from custody. Suitable accommodation has been found for him under the Community Justice Program (CJP).

The views of the court that imposed the limiting term on the defendant at the time it was imposed: cl 7(2)(h)

1. Judge Payne (who imposed the limiting term for the index offence) did not specifically address the question of the future risk of harm which the defendant might pose to the community. Her Honour referred to the defendant's "significant intellectual impairments" as rendering him an inappropriate vehicle for general deterrence and found that his moral culpability was "reduced".

Any other information that is available as to the risk that the forensic patient will in future cause serious harm to others: cl 7(2)(i)

1. The defendant's criminal history, which dates from 1980, includes convictions for assault, receiving stolen goods and break enter and steal. This history is of little relevance having regard to the passage of time. Of more significance are the findings at a special hearing conducted by Coorey DCJ before a jury in 2001 that the two counts of sexual intercourse without consent in 1996 had been proved. One count involved digital penetration of a ten-year old female and the other involved cunnilingus of the same victim, who was under the defendant's authority at the time. Following the special hearing, a limiting term of three years was imposed by Coorey DCJ.
2. These earlier sexual matters tend to indicate that the defendant is unable, without supervision, to control his impulses. When he acts on his sexual impulses, there is the potential for serious harm to be caused to others.

Other matters

1. I also take into account the circumstance that the defendant (without admissions) does not oppose the orders in prayers 1 and 2 of the summons.

Conclusion as to whether the matters in the supporting documentation would, if proved, be capable of establishing unacceptable risk to the requisite standard

1. On the basis of the matters referred to above I am satisfied that the matters alleged in the supporting documentation referred to above would, if proved, establish 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. The defendant's lack of insight, lack of impulse control and past conduct indicate that the risk of his sexually assaulting a child is high unless he is living in a regulated and controlled environment. His capacity to control either his conduct or his impulse to gratify his sexual urges or desire for drugs or alcohol is compromised by his intellectual disability.

"Less restrictive" means available to manage the risk posed by the defendant

1. The plaintiff submitted that, in the context of the present case, means which might be regarded as "less restrictive" than an extension of the defendant's status as a forensic patient comprised either: classification of the defendant as an involuntary patient; or guardianship with an arrangement for secure accommodation supervised by the CJP. The relevant statutory provisions for these two options are set out below. The provisions relating to community treatment orders are also set out, as they were considered by Dr Eagle in the preparation of her risk assessment report.

Involuntary detention and treatment in a mental health facility under the Mental Health Act 2007 (NSW)

1. Part 2 of the Mental Health Act 2007 (NSW) provides for involuntary detention and treatment of patients in mental health facilities. An involuntary patient is defined as: "(a) a person who is ordered to be detained as an involuntary patient after a mental health inquiry or otherwise by the Tribunal, or (b) a forensic patient who is re-classified as an involuntary patient under section 53 of the Mental Health (Forensic Provisions) Act 1990, or (c) a correctional patient who is re-classified as an involuntary patient under section 65 of the Mental Health (Forensic Provisions) Act 1990."
2. For present purposes it is sufficient to refer to the provisions that require that, before a person becomes an involuntary patient, he or she must be a "mentally ill person" or a "mentally disordered person". For a person to be "mentally ill" the person must be suffering from "mental illness". The term "mental illness" is defined in s 4 of the Mental Health Act to mean: "a condition that seriously impairs, either temporarily or permanently, the mental functioning of a person and is characterised by the presence in the person of any one or more of the following symptoms: (a) delusions, (b) hallucinations, (c) serious disorder of thought form, (d) a severe disturbance of mood, (e) sustained or repeated irrational behaviour indicating the presence of any one or more of the symptoms referred to in paragraphs (a)-(d)."
3. Dr Eagle considered that treatment under the Mental Health Act would not ensure adequate care and treatment of the defendant because his mood disorder might not justify involuntary care and his risks are pervasive and require management, regardless of his mood.

Community treatment orders under the Mental Health Act

1. The Mental Health Act makes provision for community treatment orders in respect of "affected persons". Such orders authorise compulsory treatment of persons in the community. Section 53(4) provides that the Tribunal may not make a community treatment order unless it is of the opinion that the person is a "mentally ill person". Dr Eagle opined that the defendant required management rather than treatment, which would not appear to be covered by a community treatment order.

Relevant provisions under the Guardianship Act 1987

1. Section 4 of the Guardianship Act provides, in part, that it is the duty of everyone exercising functions under the Act with respect to persons who have disabilities to observe the following principles: the welfare and interests of such persons should be given paramount consideration (s 4(a)); the freedom of decision and freedom of action of such persons should be restricted as little as possible (s 4(b)); and such persons should be encouraged, as far as possible, to live a normal life in the community (s 4(c)).
2. Part 5 of the Guardianship Act governs the provision of medical and dental treatment. Section 36 authorises a responsible person, including a guardian (or the Tribunal), to provide consent to the carrying out of medical treatment (minor and major). If a patient objects to the carrying out of medical treatment, the consent of the guardian has no effect (s 46(2)(a)) unless the patient has minimal or no understanding of what the treatment entails and the treatment will cause the patient no distress or if the stress is reasonably tolerable and only transitory (s 46(4)). The patient's objection may also be overridden if the Tribunal has conferred on the guardian a power to override (s 46A(1)), such power being conferred only if the Tribunal is satisfied that the objection will be made by the patient because of a lack of understanding as to the nature of, or reason for, the treatment (s 46A(2)). A guardianship order, appointing the Public Guardian, has already been made in respect of the defendant.
3. Dr Eagle considered that there could be potential for conflict between a risk management plan which was aimed at protecting others from serious harm and the obligations owed by a guardian to the defendant.

Conclusion as to whether the risk could be managed by "less restrictive means"

1. The plaintiff submitted that none of the other options set out above would be sufficient to manage the risk posed by the defendant. No "less restrictive" means were contended for on behalf of the defendant at the interim hearing.
2. I am satisfied, on the basis of the evidence before me (which has not been challenged), that the risk posed by the defendant cannot adequately be managed by other less restrictive means (including classification as an involuntary patient under s 53 of the Forensic Provisions Act).

Conclusion

1. In my view the matters alleged in the supporting documentation would, if proved, justify the making of an extension order. I am persuaded that it is appropriate, in these circumstances, to make an interim extension order for the maximum period allowed of 28 days.
2. In light of the view to which I have come, I am obliged by cl 6, Sch 1 to appoint two qualified professionals to conduct examinations of the defendant and furnish reports to the Court on the results of those examinations and to direct the defendant to attend such examinations.

Orders

1. I make the following orders and directions: 1. Pursuant to cl. 6(5)(a) of Schedule 1 to the Mental Health (Forensic Provisions) Act 1990 (the Act), appoint qualified psychiatrist Dr Andrew Ellis and qualified psychologist Professor Susan Hayes to conduct separate examinations of the defendant and to furnish reports on the results of those examinations to the Court by no later than 5pm on 22 June 2017. 2. Direct the defendant, pursuant to clause 6(5)(b) of Schedule 1 to the Act, to attend examinations by the Court-appointed experts named in order (1). 3. Order, pursuant to cll 10 and 11 of Schedule 1 to the Act, that the defendant be subject to an interim extension order commencing on 26 April 2017 for a period of 28 days.

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: 20 April 2017