Attorney General for New South Wales v Kapeen

Supreme Court of NSW|2017-05-17|Before: Beech-Jones J

Solicitors: Crown Solicitor's Office (Plaintiff) Legal Aid NSW (Defendant) File Number(s): 2017/64522

Judgment

HIS HONOUR: By summons filed 1 March 2017 the Attorney General for New South Wales sought three orders under Schedule 1 to the Mental Health (Forensic Provisions) Act 1990, (the "Act" and "Schedule 1" respectively), against Robert Steven Kapeen.
On 9 March 2017, I made two of the orders sought, namely, an order under sub-clause 6(5) of Schedule 1 for the appointment of two psychologists or psychiatrists or a combination thereof to examine Mr Kapeen and an order extending his status as a forensic patient for 28 days (Attorney General for New South Wales v Kapeen [2017] NSWSC 226; "Kapeen (No 1)"). Further orders extending his status as a forensic patient were made on 5 April 2017 and 2 May 2017. The current order expires on 3 June 2017.
The only remaining claim for relief sought by the Attorney General is a final order extending Mr Kapeen's status as a forensic patient for a period of 2 years. This judgment deals with that claim.

The Index Offence

Much of what follows is taken from Kapeen (No 1). Mr Kapeen is 49 years of age. As I will explain, he is a schizophrenic. On or about 12 September 2014 Mr Kapeen was charged with one count of sexual intercourse with a person under the age of ten years contrary to s 66A(2) of the Crimes Act 1900. An alternative charge of assault with an act of indecency on a person under the age of ten years contrary to s 61N(2) of the Crimes Act was also laid.
On 26 October 2015, Mr Kapeen was found unfit to be tried. Pursuant to s 14(a) of the Act he was referred to the Mental Health Review Tribunal (the "Tribunal").
Mr Kapeen has not since been found fit to be tried. Following a special hearing conducted under s 19 of the Act on 13 November 2016 Bennett DCJ found that, on the limited evidence available, Mr Kapeen committed the offence of assault with an act of indecency on a child under the age of ten (the Act; s 22(1)(c)).
On 1 December 2016, Bennett DCJ nominated a "limiting term" for Mr Kapeen of 2 years and 6 months commencing 13 September 2014 and expiring 12 March 2017, (the Act, s 23(b)). His Honour also ordered that Mr Kapeen be detained in custody (the Act, s 24(1)(b)). As a consequence of these orders, Mr Kapeen became a "forensic patient" under s 42 of the Act.
In his judgment imposing a limiting term, Bennett DCJ summarised the facts that his Honour had previously found in support of the charge by reference to a witness whose evidence his Honour had accepted. His Honour stated: "She came upon the accused lying on his back with a boy straddling him and moving back and forth with the boy's bottom and the area between his legs covering the accused over, in her words, his privates. She called out and the boy rose and ran off. He saw the accused's pants were down, his penis was exposed and erect".
The boy referred to in this passage was the victim. In his judgment addressing whether, on the limited evidence available, Mr Kapeen committed the offence charged, his Honour noted that the witness referred to in this passage was a person visiting her sister in a place known as "Hillcrest" where "there are a number of homes and also a community hall".
The witness had stated that as she entered the area she was approached by two children and, as a consequence, she went to the community hall. In a grassed area outside the hall she came across Mr Kapeen and the victim.
At the hearing before his Honour there was evidence that the victim had "severe intellectual limitations" and that he had been sexually assaulted by others. Bennett DCJ noted the Crown's concession that, in light of that material, it could not disprove the "reasonable possibility" that the victim "initiated sexual contact in which the accused joined in the offence". His Honour stated that he agreed with that concession.

Mr Kapeen's Personal Circumstances and Dr Ellis' Report

One of the requirements for the making of an application for an extension order is that it be supported by documentation that includes a report from a qualified psychiatrist, registered psychologist or registered medical practitioner that addresses the criteria in subclause 2(1) of Schedule 1 (Schedule 1, subclause 5(b)).
To that end, when the application was filed the relevant documentation included a report from a forensic psychiatrist, Dr Ellis, dated 18 January 2017. Dr Ellis's report was re-tendered on this application as it is a factor that the Court must consider (Schedule 1, subclause 7(2)(c)).
In Kapeen (No 1) at [25] to [32], I summarised the effect of Dr Ellis's report as follows: "25. On this application the State placed before the Court a significant amount of supporting material. This included a report from forensic psychiatrist Dr Ellis dated 18 January 2017. Dr Ellis's report constitutes part of the 'supporting documentation' referred to in clauses 6(5) and 10 of Schedule 1. Dr Ellis examined Mr Kapeen in January 2017, although Mr Kapeen left the examination early. As is to be expected, Dr Ellis's report opines on Mr Kapeen's mental state. His report is also a useful synthesis of the effect of the other 'supporting documentation'. 26. Dr Ellis's report reveals that, prior to his arrest in September 2014, Mr Kapeen was living with his adoptive father in an indigenous community in the Maclean area. At that time he was not working and was receiving psychiatric treatment by depot injection. He also received support from disability services. Dr Ellis's report describes Mr Kapeen as having an extremely deprived upbringing. He has struggled to maintain employment since he had left school. 27. Dr Ellis summarised Mr Kapeen's criminal history in terms that are consistent with the other material provided to the Court. His record included a conviction at the age of sixteen in 1983 for break, enter and steal, another conviction in 1990 for the same offence, a conviction in 1992 for unlicensed driving, driving with mid‑range prescribed concentration of alcohol and unlawfully using a conveyance. Mr Kapeen was convicted of malicious damage in 1993 and fined. He was convicted of possess and self-administer a prohibited drug in 1994 and 1995. In 1995 he was convicted of failure to appear and in 1996 he was convicted of breach of recognisance, trespass and malicious damage. Prior to the index offence, Mr Kapeen had not served any period of time in custody and clearly the index offence was far more serious than any offence for which Mr Kapeen had previously committed. 28. Dr Ellis discussed the circumstances of the index offence with Mr Kapeen. Of some significance to this application is that Dr Ellis records Mr Kapeen stating that, 'sexual activity with the child went on for a period of about two or three months before he was caught'. Dr Ellis recounted Mr Kapeen's psychiatric history. He noted that Mr Kapeen was diagnosed and treated for schizophrenia in 2003. Dr Ellis noted that the medical reports record Mr Kapeen reporting auditory hallucinations from time to time. Dr Ellis stated that since being admitted into custody Mr Kapeen had been receiving antipsychotic medication. A significant feature of Mr Kapeen's condition is his psychogenic polydipsia, one consequence of which is that he drinks water repeatedly and to excess. This has had a number of adverse medical consequences for Mr Kapeen, including seizures. 29. Dr Ellis diagnosed Mr Kapeen as having schizophrenia. He also stated that Mr Kapeen meets the criteria for intellectual disability and substance use disorder. Dr Ellis considered there was insufficient evidence to conclude that Mr Kapeen had a paraphilia or psychosexual disorder but noted that there are "concerning features to his presentation and this consideration should be further reviewed." 30. Dr Ellis addressed Mr Kapeen's risk of causing serious harm to others. He noted that his score on the "Static-99R" instrument, being an actuarial measure of the risk of reoffending, was in the 'low to moderate range'. However, Dr Ellis's own assessment suggested that Mr Kapeen presented a greater risk than that. Dr Ellis noted that schizophrenia is an independent risk factor for sexual offending, as is substance abuse. He further noted that Mr Kapeen had only limited exposure to treatment and rehabilitation to moderate his risk. He stated that Mr Kapeen has only been partially responsive to pharmacological treatment, had not undergone specific psychosocial rehabilitation and that his insight was poor. Overall, Dr Ellis concluded that: "Mr Kapeen would fall into a group of persons with a risk of offending that is moderate and greater than a theoretical average offender or psychiatric patient." 31. Dr Ellis's report also addresses the desirability of Mr Kapeen remaining as a forensic patient and compares that circumstance with him becoming an 'involuntary patient' under the Mental Health Act 2007. Dr Ellis observed that the 'mainstay of effective risk management' for Mr Kapeen is 'specialised forensic mental health care' and that that type of treatment 'could only be offered in a hospital, and owing to the specialised interventions required, a forensic psychiatric unit would be recommended.' Dr Ellis also stated that it was 'possible that Mr Kapeen could be safely and effectively managed under the scheme provided by the Mental Health Act, which allows for involuntary administration to hospital and administration of psychotropic medication', as well as discharge under a community treatment order. However, Dr Ellis stated that this opinion was qualified by the concern that relying solely on the Mental Health Act may result in Mr Kapeen receiving a 'quick transfer to a generalist psychiatric unit and a rapid discharge to any available community accommodation', such that Mr Kapeen could 'theoretically be discharged from care without consultation or external review.' 32. Dr Ellis also addressed the different regimes for the recall of persons who are released into the community, noting that one disadvantage for forensic patients is that they may be returned into a prison and that that would be a poor result in terms of Mr Kapeen's rehabilitation. Dr Ellis concluded that, 'ultimately the clinical care provided to him will manage the risk associated with his conditions, rather than the specific type of legal order'. Dr Ellis noted that 'remaining on a forensic order removes the oversight from individual clinicians in health services to the automatic oversight of the forensic arm of the Mental Health Review Tribunal' and that the latter, 'guarantees the interest of the forensic mental health network and its specialist clinicians in the case'."
In addition to this, it is necessary to note that Dr Ellis's report also recorded that Mr Kapeen told him that the victim, "asked for the behaviour to happen".

Dr Eagle's Report

One of the two reports prepared as a result of the orders made in Kapeen (No 1) was a report from a forensic psychiatrist, Dr Kerry Eagle, dated 11 April 2017. Dr Eagle's report is one of the reports referred to in subclause 7(2)(b) of Schedule 1.
Dr Eagle assessed Mr Kapeen while he was attending Prince of Wales Hospital to receive medical treatment.
Dr Eagle noted that one of the limitations on her consultation was the nearby presence of correctional services staff. Dr Eagle accepted that their presence may have inhibited Mr Kapeen's willingness to discuss the index offence.
Dr Eagle also noted another limitation, namely, the capacity of Mr Kapeen to "self-report" because of the effects of his mental illness and intellectual disability coupled with the fact that there was little documentation available concerning his "background and presentation" especially in the period prior to the commission of the index offence.
Dr Eagle's report describes Mr Kapeen as reluctant to talk about the index offence and noted that he only proffered a statement that his conduct was "bad", "won't happen again, Miss", and was "not really" related to his medication.
Dr Eagle diagnosed Mr Kapeen as having schizophrenia, a "moderate based" intellectual disability and a substance abuse disorder". Dr Eagle considered that there was insufficient information to determine whether Mr Kapeen had paraphilia or a sexual deviance disorder.
Dr Eagle applied the static 99R actuarial risk assessment model to Mr Kapeen. She stated that this produced a score placing him in the "average risk category". In her oral evidence, Dr Eagle explained that the risk categories in the static assessment model test had recently been changed so that the relevant gradations are "below average", "average", "above average" and "high risk". Dr Eagle stated that, under the previous categories, Mr Kapeen would be classified in the low to moderate risk category.
Dr Eagle referred to the various dynamic factor risk assessment models but described them as "unlikely to be reliable" given the absence of background information concerning Mr Kapeen. Instead Dr Eagle made her own assessment based on her consideration of Mr Kapeen's individual risk factors. These included his limited awareness and insight, his cognitive impairments, his history of substance abuse and the possibility that he might have a "paraphilia".
Ultimately, under the heading "Risk Formulation", Dr Eagle concluded as follows: "79. In an analysis of Mr Kapeen's offending conduct, it is apparent that he does not have a substantial history of violent offending conduct with only one substantiated prior sexual offence and one unsubstantiated allegation of a sexual offence in his lifetime. He has engaged in a variety of other offending behaviours including stealing, malicious damage, driving offences and substance related offences over his lifetime. Little appears to be known about the period leading up to the Index Offence. It is not clear whether the Index Offence occurred at a time when Mr Kapeen had relapsed or deteriorated in his mental illness and whether he had consumed substances at the time. It is likely that his chronic illness and intellectual impairment played a role in the offending conduct. It appears likely that the Index Offence was an opportunistic act in circumstances where a victim was accessible. Mr Kapeen displayed signs of sexual arousal towards the child and did not have the capacity or control to refrain from the sexual contact. 80. Future high risk scenarios are likely to involve situations in which Mr Kapeen has access to potential victims (children); and his control is further reduced (for instance, as a result of a deterioration in his mental state or relapse into substance use). These circumstances are likely to arise if Mr Kapeen is not adequately monitored and supported in the community (for instance, monitoring of compliance with treatment and clinical reviews; supervision of access to potential victims; monitoring of substance use; support with activities of daily living to reduce the risk of stress, monitoring of hyponatraemia from water intoxication)."
In a later part of her report, Dr Eagle addressed a specific question posed to her by stating that Mr Kapeen "poses a risk of causing serious harm to others if he ceases being a forensic patient and as a result he is released into the community without further planning or support". Dr Eagle concluded that in such an event Mr Kapeen would be both a risk to others and himself.
Dr Eagle was also asked to address the means by which the risk posed by Mr Kapeen could be addressed. Dr Eagle considered that a custodial environment might address the immediate risk posed by Mr Kapeen but that this was unlikely to be therapeutic. Dr Eagle also stated that Mr Kapeen was not yet ready for supported community accommodation. Instead, Dr Eagle considered that the best option for Mr Kapeen was a "medium security secure forensic facility" or a "locked civil unit" provided that, in the latter case, Mr Kapeen had "forensic input" from "forensic services".
The necessity for forensic input in Mr Kapeen's case is evident from Dr Eagle's conclusion that: "In order to adequately manage his risk Mr Kapeen requires assertive treatment for his severe mental illness; forensic input to develop an integrated and individualised risk management plan (having regard to his criminogenic, disability and mental health needs); close monitoring in relation to his personal care and water intake; further assessment of his level of function; further assessment and consideration of factors (such as the possible presence of a paraphilia) specifically associated with his sexual offending; and careful preparation and planning for further transition into less restrictive environments".
Dr Eagle also stated that, if Mr Kapeen's forensic status was to be extended, then a period of two years was appropriate to allow for a transition from custody to a rehabilitation facility to possible supervision in the community.

Dr Pullman

The other report prepared as a consequence of the orders made in Kapeen (No 1) was a report from a forensic psychologist, Dr Susan Pullman, dated 21 April 2017. Dr Pullman noted that Mr Kapeen's IQ is in the 0.1 percentile, which is below 99 percent of the normal population. Dr Pullman described Mr Kapeen as having a "pre-morbid IQ within the mildly intellectual disability range". Dr Pullman reported Mr Kapeen's stating that he did not know why he was in custody.
Like Dr Ellis and Dr Eagle, Dr Pullman considered that Mr Kapeen met the diagnostic criteria for schizophrenia. Dr Pullman concluded that Mr Kapeen "continues to be a moderate risk of harm to others should he be released as a forensic patient".
Dr Pullman stated that "[g]iven his history of sexual and non-sexual offending, his mental illness, his history of substance use and cognitive impairment, his care requires staff experienced in the care and management of forensic patients". Dr Pullman concluded that "until such time as Mr Kapeen's current risk factors can be ameliorated, he requires ongoing care and management in a custodial facility".

Other Reports (Schedule 1, clause 7.2(d))

Amongst the material tendered on behalf of the Attorney General were a number of psychiatric reports, most of which were prepared in connection with the assessment of whether Mr Kapeen was unfit to stand trial (Schedule 1, clause 7(2)(d)). Those reports address Mr Kapeen's level of intellectual impairment and psychiatric state in a manner consistent with what was stated by Dr Ellis, Dr Pullman and Dr Eagle.
Three matters should be noted about those reports. First, a number of the reports refer to the danger that Mr Kapeen's polydipsia poses and the steps that are taken to restrict his access to drinking water. A report of a psychiatric registrar from Long Bay Hospital dated 16 January 2017 describes Mr Kapeen as a "significant risk of harm to himself" and concludes "there is no less restrictive placement other than Long Bay Hospital Mental Health Unit that can provide safe and effective care for Mr Kapeen".
Second, one of the reports, namely a report from Dr Sharma dated 6 May 2016, refers to Mr Kapeen's stating that he wanted to "punch" other inmates "in their face" and "stab them" if he could get a knife because they were making faces at him. In this regard, Counsel for the Attorney General, Ms Single also referred to a Corrective Services Case Note Report dated 29 May 2016 which referred to Mr Kapeen's being "aggressive". That said, the balance of the case notes do not suggest that Mr Kapeen was generally threatening or aggressive while he was detained.
Third, none of these reports recount any statement given by Mr Kapeen about the index offence.

Tribunal Decisions (Schedule 1, clause 7(2)(e))

Following the finding that Mr Kapeen was unfit to be tried on 9 November 2015, an order was made under s 55(1) of the Act directing Mr Kapeen to be transferred to a mental health facility. This was reviewed by the Tribunal on 15 January 2016, when it was determined under s 59(1) of the Act that Mr Kapeen should be detained in Long Bay Hospital. This was reviewed again in May 2016 and January 2017 but no orders were made altering his regime.
In her oral evidence, Dr Eagle stated that Mr Kapeen remains in Long Bay Hospital. She stated that that facility is "essentially a prison" with "people locked in their cells".

Government Reports (Schedule 1; clause 7(2)(f))

The Attorney General also tendered two reports from the Community Justice Program ("CJP") within the NSW Department of Aging Disability and Home Care concerning Mr Kapeen. One was a so-called strength, needs, risk and goals report ("SNRG" report). It included a static factor risk assessment of Mr Kapeen which produced a result higher than that produced by Dr Ellis, namely "moderate/high". This assessment of the risk posed by Mr Kapeen was supported by the conclusion that Mr Kapeen has an immature mental age, which in turn meant that he finds it "easier to emotionally connect and associate with children".
The SNRG report also stated as follows: "According to Mr Kapeen the child instigated the offence insisting that Mr Kapeen pull his pants down and the older brother of the child did the same. He indicated that there was no struggle and the children enjoyed it. Mr Kapeen stated that he repeatedly said no that he didn't want to do it. Immediately prior to the offence Mr Kapeen indicated that he was distressed and angry about his daughter and went out for a smoke to calm down. Mr Kapeen received a drop in support service; however they were not with him at the time of the offence. Mr Kapeen also indicated that he had heard voices in his head telling him to 'let him pull your pants down'. Mr Kapeen has a diagnosis of schizophrenia and was due for his Fluanxol Depo[t] injection on the day of the offence. However, it is likely that the voices reported by Mr Kapeen were his thoughts rather than actual auditory hallucinations. It was not stated whether Mr Kapeen was under the influence of any substance."
Otherwise the report concludes that Mr Kapeen appeared to "continue to blame the child for the offence".
The other CJP report tendered on behalf of the Attorney General does not add to this discussion.

Compliance with Obligations as a Forensic Patient (Schedule 1, clause 7(2)(g))

The written submissions lodged on behalf of the Attorney General correctly noted that the evidence suggested that, as a forensic patient, Mr Kapeen has been generally compliant with the prescribed drug regime but has not been compliant with directions designed to control his excessive consumption of water.

Oral Evidence of Dr Ellis, Dr Pullman and Dr Eagle

I have already described the reports of Dr Ellis, Dr Pullman and Dr Eagle. The three of them were cross-examined and re-examined in a combined session at the hearing. Five points should be noted about their oral evidence.
First, while each of them applied the static 99 risk assessment protocol to Mr Kapeen, it was evident that each of the three doctors placed far more weight on a consideration of dynamic factors and their own clinical judgment in determining the level of risk posed by Mr Kapeen.
Second, each of the doctors was questioned about whether their assessment of Mr Kapeen's risk of re-offending was affected if it in fact was the case that the victim of the index offence had "initiated" the sexual contact, that being the circumstance that was left open by the sentencing judge. Each of the three doctors emphatically stated that it did not affect their opinion.
Dr Eagle stated that, even if that were the case, the comments Mr Kapeen made to Dr Ellis and to the author of the SNRG report reveal that he is "unable to recognise the particular vulnerability of the child" victim of the offence. Dr Ellis stated that Mr Kapeen's comments still reveal that he had "developed a justification for sexual activity with children" and was otherwise "misreading the child's behaviour". Dr Pullman considered that Mr Kapeen's comments reveal a lack of "insight".
Third consistent with her report, Dr Eagle stated that one difficulty with placing much weight on the 18 years during which Mr Kapeen did not incur a conviction prior to the index offence was that there was "very little information about what was going on with Mr Kapeen in that period".
Fourth, each of these three witnesses agreed that Mr Kapeen's risk of re-offending could be adequately managed under the regime provided by the MHA if Mr Kapeen was detained, at least initially, as an involuntary patient in a secure ward with input from forensically trained staff.
However, Dr Ellis and Dr Eagle were skeptical of the ability of the service providers acting under the MHA to provide the necessary resources to manage Mr Kapeen's risk on an ongoing basis. As noted, Mr Kapeen is currently detained in the Long Bay Hospital.
Dr Eagle considered that ideally Mr Kapeen should be transferred to the forensic hospital, which is high security, and from there transitioned to a medium security unit. Dr Eagle explained that, to her understanding, there are insufficient places in the Forensic Hospital to accommodate Mr Kapeen. Dr Eagle also stated that there are secure places available in the Forensic Hospital for civil patients, that is, patients detained under the MHA, although less than those provided for forensic patients.
Dr Eagle noted that there is a "locked civil unit" for high risk patients available in the Castlereagh Unit but stated that that has a "very long waiting list". Dr Eagle added that, even if Mr Kapeen was detained there, he would still need assistance from forensic service. Dr Eagle stated that if Mr Kapeen ceased to be a forensic patient and was instead detained under the MHA she considered it likely that he would have to be admitted to a hospital but even they have long waiting lists.
Fifth, all of the doctors agreed that Mr Kapeen's schizophrenia was likely to degenerate and that, in light of his cognitive problems, the management of his risk is likely to involve "an increased number of external restraints". They all stated that participation in various rehabilitation programs will not be effective.
Lastly, I note that each of Dr Pullman and Dr Ellis agreed with the following statement by Dr Eagle: "Given the entirety of the circumstances and Mr Kapeen's presentation and the cultural information available to me, I am of the view that he continues to pose a serious risk of re-offending in circumstances where he is released into the community without an adequate risk management plan and an adequate risk management plan has not been presented to me".
I understand the reference to "adequate risk management plan" in this answer to be a reference to a "Treatment plan" as referred to in s 54 of the MHA. In particular, in making a "Community treatment order" under s 53 of the MHA the Tribunal is required to consider, amongst other matters, the proposed treatment plan for the affected person (MHA, s 53(2)(a)). In turn, s 41(1) provides that an authorised medical officer must discharge a person who is detained in a mental health facility when a community treatment order made by the Tribunal is made concerning the patient.

Unacceptable Risk (Schedule 1, Clause 2(1)(a))

The above discussion covers all the factors referred to until subclauses 7(2)(b) to 7(2)(i) of Schedule 1. Needless to say any consideration of whether or not to make an extension order will involve consideration being given to subclause 7(2)(a) of Schedule 1, namely, the safety of the community.
The test posed by subclause 2(a) requires a consideration of the risk that would arise if there were "an absence of protective measures" in respect of Mr Kapeen (see Lynn at [126] per Basten JA).
The Attorney General submitted that the evidence of Dr Ellis, Dr Eagle and Dr Pullman as well as the material suggesting Mr Kapeen had threatened to harm inmates clearly demonstrated to a high degree of probability the existence of the risk referred to in subclause 2(1)(a). In particular, it was submitted that as Mr Kapeen has no insight, has not undertaken any sex offender treatment and is incapable of exercising any self-control, there is clearly an unacceptable risk of him once again causing serious harm to another person.
The detailed written submissions of senior counsel for Mr Kapeen, Mr McGrath SC, took issue with the reasoning that supported each of Dr Ellis, Dr Pullman and Dr Eagle's assessments.
The submissions noted the limits on the predictive instruments the doctors applied, particularly the limited use of static factors in order to assess the risk posed by Mr Kapeen ceasing to be a forensic patient. Consistent with the points raised in the cross-examination, the submissions took issue with the reliance placed by each of the three doctors on Mr Kapeen's apparent attempts to minimise the seriousness of his conduct. The submissions contend that this overlooks the fact that Mr Kapeen was sentenced on a basis that did not involve him initiating the sexual contact with the victim.
Mr McGrath's submissions also contend that the assessments of the three doctors were in part based on an unreliable personal history of Mr Kapeen and ignored the period in his history where no offending occurred. Mr McGrath's submissions disputed that Mr Kapeen lacked insight. Instead it was contended that the description of events he provided to Dr Ellis was relevantly accurate. Mr McGrath submitted that Mr Kapeen had not completed any sex offenders treatment programs because none had been offered to him.
Mr McGrath ultimately submitted that, while it can be accepted that Mr Kapeen was a risk to himself, particularly through his polydipsia, this is not the type of risk referred to in subclause 2(1)(a) as it refers to risk to others.
In relation to the threats to others as recorded in the case note to which I have referred, Mr McGrath submitted that Mr Kapeen had not yet acted on any impulses. Otherwise Mr McGrath's submissions contended that the commission by Mr Kapeen of one serious offence was not in the circumstances sufficient to satisfy subclause 2(1)(a).
Many of the points raised by Mr McGrath SC were addressed by the three psychiatrists in their oral evidence. Generally, my assessment of those matters accords with those doctor's assessments. Even allowing for the possibility that the victim "initiated" sexual conduct, the comments of Mr Kapeen as reported by Mr Ellis and in the SNRG report went beyond the mere recitation of what occurred. Instead they reveal that Mr Kapeen lacks any insight into the wrongfulness of his offending behaviour. Given his intellectual impairment and mental illness, this is not surprising. The circumstances of the offending do not suggest that Mr Kapeen is a sexual predator in the sense of someone who seeks out victims. However, consistent with what is known about Mr Kapeen's intellectual impairment and mental illness, the circumstances of the offence suggest that he has no concept of self-restraint and no capacity for insight into the wrongfulness of his own conduct. His sexual assault on the victim was brazen. It was carried out in an open area near a community hall. It appears to have only ceased because the witness scared the victim away; it was not the presence of the witness that caused Mr Kapeen to stop his conduct.
The 18 year period in which Mr Kapeen was not convicted of any offence is a matter that must be considered. However, as noted by Dr Eagle, little is otherwise known about Mr Kapeen during that period. What is now known is that he had sexual intercourse with a six year old boy in a public place and that he is effectively incapable of learning to regulate his behaviour.
As noted, Mr Kapeen's history does not suggest that if he was to be released into the community straight away he would seek out children to sexually abuse. However, it does appear that he has an affinity with children and it seems likely that he would tend to gravitate towards them. If he has access or any contact with children it seems there is a clear risk that he would act without restraint. Needless to say, if he repeated his conduct the consequences would be severe.
It follows that I am satisfied to a high degree of probability that Mr Kapeen poses an unacceptable risk of causing serious harm to others if he ceases being a forensic patient.
For the sake of completeness, this assessment of risk is based on a risk of his repeating a similar offence to the index offence. Although there was material suggesting that there may be a risk of his inflicting violence on others, I was not satisfied to a high degree of probability that he posed an unacceptable risk of causing serious harm in that form.

Less Restrictive Means (Schedule 1, Clause 2(1)(b))

The Attorney General's submissions conceded that there was "little doubt" that if Mr Kapeen ceased to be a forensic patient he would become an "Involuntary civil patient" that is, a "mentally ill person" detained under the MHA. The submissions also acknowledged that Dr Eagle's preferred option is for Mr Kapeen to be detained under the MHA in a secure unit with input from forensic services. Nevertheless, the written submissions point to three matters which were said to justify a conclusion that clause 2(1)(b) of Schedule 1 was satisfied.
First, the submissions pointed to the possibility of Mr Kapeen ceasing to meet the definition of a "mentally ill person" in s 14 of the MHA while he still posed an unacceptable risk. It was submitted that this could arise if medication was found for his condition but nevertheless "given the intractability of his complex set of conditions" he continued to pose an unacceptable risk.
This argument can be dismissed at the outset. Section 14 of the MHA provides: 14 Mentally ill persons (1) A person is a mentally ill person if the person is suffering from mental illness and, owing to that illness, there are reasonable grounds for believing that care, treatment or control of the person is necessary: (a) for the person's own protection from serious harm, or (b) for the protection of others from serious harm. (2) In considering whether a person is a mentally ill person, the continuing condition of the person, including any likely deterioration in the person's condition and the likely effects of any such deterioration, are to be taken into account.
In light of what I have already described about Mr Kapeen's medical history, there is no prospect of Mr Kapeen ever ceasing to suffer from a "mental illness" as referred to in s 14. To the contrary, the unanimous evidence is that his schizophrenia is deteriorating.
Further, none of the doctors refer to the possibility of the medication of the kind referred to in the Attorney General's submissions becoming available. However, even if there was such medication and it had the effect that Mr Kapeen no longer satisfied both of subsections 14(1)(a) and 14(1)(b) of the MHA, then it is impossible to see how he could pose an unacceptable risk.
The second point made in the Attorney General's submissions was to refer to the differences between the legal regimes for the detention and release of involuntary patients under the MHA compared with forensic patients under the Act, a matter I will return to. The Attorney General submitted that "these features weigh strongly in favour of the Court being satisfied" of clause 2(1)(b) of Schedule 1.
The third aspect of the Attorney General's submissions reflects Dr Eagle's concerns about the lack of available places in a secure facility for involuntary patients detained under the MHA. In particular, the submissions contend that: "At present there is no plan or strategy to transition Mr Kapeen from being a forensic patient including identification of an appropriate rehabilitation facility which would have the capacity to deal with Mr Kapeen's unique combination and mental illness and cognitive ability. As Dr Pullman stated at page 12 until such time as Mr Kapeen's current risk factors can be ameliorated he requires ongoing care and management in a custodial facility".
Mr McGrath's submissions on this point also rely on the passages from the reports of Dr Ellis and Dr Eagle to the effect that Mr Kapeen ideally could at least be "managed" under the provisions of the MHA. He contended that it was no answer for the Attorney General to rely on a lack of availability of suitable secure venues for the detention of involuntary patients under the MHA in order to support a contention that Mr Kapeen's status as a forensic patient should be extended.
The approach stated by Adamson J in Doolan (No 2) at [96] requires a comparison of the legal regime that would govern Mr Kapeen if he was to be treated as an involuntary patient under the MHA compared to his treatment as a forensic patient under the Act as well as a consideration of the "practical operation" of those laws in Mr Kapeen's case.
Her Honour undertook the former analysis in Doolan (No 2) at [101] to [129] which I gratefully adopt. In relation to the particular circumstance of Mr Kapeen who, as I have stated, will continue to be a mentally ill person, I note three features of her Honour's analysis.
The first is that the principal focus of the Act is the "protection of the safety of members of the public" whereas the principal focus of the MHA is the "interests of the person concerned" (Doolan (No 2) at [119] to [120]).
The second concerns the process of decision-making, especially decisions to release persons in detention. Her Honour characterised the decision-making process for forensic patients as being "more centralised" since under the Act, the Tribunal is the relevant decision‑maker whereas under the MHA that Tribunal has a much more limited role. Her Honour stated that, under the MHA, "several people may have and exercise decision-making power over a person who is a civil patient" which means that the "collation of relevant information is likely to be more difficult" (Doolan (No 2) at [123]). In that regard, her Honour also considered the Attorney General's right to be heard before a forensic patient is released to be "an important safeguard" (Doolan (No 2) at [122]).
Third, in Doolan (No 2), her Honour reached the overall conclusion as follows (at [121]): "Generally speaking the onus in the Act is in favour of greater restrictions on the forensic patient; the onus needs to be displaced by evidence before the Tribunal in order for restrictions to be lifted. By contrast, the onus in the Mental Health Act is in favour of the liberty of the person and the relevant decision makers must, by and large, be satisfied that a restriction is warranted. The classification from involuntary patient to voluntary patient can readily be changed. Moreover, any authorised medical practitioner can discharge the patient at any time and, indeed, is obliged to do so if the patient is not "mentally ill".
These matters point in favour of the court being satisfied in cases such as this of clause 2(1)(b). However, there remains to be considered the "practical operation" of the relevant laws.
As I have twice stated, at the present Mr Kapeen is being detained in Long Bay hospital. Dr Eagle is of the view that that is an unsuitable environment in the medium term because it is, in effect, a prison. At least, however, in the short term it is secure. As he is a forensic patient, it is open to the Tribunal to cause Mr Kapeen to be transferred to the forensic hospital or to a medium security forensic institution. To date that has not occurred. There was no explanation given in the evidence as to whether that option has been considered. Dr Eagle's evidence suggests that the most likely explanation for the transfer not having taken place is simply a lack of available places.
If Mr Kapeen's status as a forensic patient is not extended then, as I have stated, he will continue to satisfy the definition of a "mentally ill person" under the MHA. As such, he will be capable of being detained under the MHA. However, there is an absence of evidence as to where that might occur. The effect of Dr Eagle's evidence is that there appears to be no accommodation available for Mr Kapeen outside of Long Bay Hospital, which is not a facility that can be used for civil patients.
In summary, if Mr Kapeen becomes an "involuntary patient", the effect of Dr Eagle's evidence is that there is nowhere that can accommodate him other than the possibility of a local hospital, which themselves have waiting lists and which can only be utilised for the short term.
Section 42(1) of the MHA enables an involuntary patient to apply to an authorised medical officer to be discharged. Section 42(2) of the MHA empowers the authorised medical officer to discharge the person. There are no express constraints on the power. The exercise of the power is, however, governed by s 12(1) of the MHA, which provides: (1) A patient or other person must not be involuntarily admitted to, or detained in or continue to be detained in, a mental health facility unless an authorised medical officer is of the opinion that: (a) the person is a mentally ill person or a mentally disordered person, and (b) no other care of a less restrictive kind, that is consistent with safe and effective care, is appropriate and reasonably available to the person.
As stated, Mr Kapeen cannot be detained at Long Bay Hospital under the MHA. Accepting Dr Eagle's evidence as to the absence of any available position in a suitable facility for an involuntary person, it follows that it is conceivable that, if an application were made for Mr Kapeen's release under s 42, an authorised medical officer could, and possibly must, release him. On the other hand, if there is no suitable place available and Mr Kapeen retains the status as a forensic patient, then he can continue to be detained at Long Bay Hospital.
Thus, if Mr Kapeen continues to be a forensic patient then the status quo can be continued, but if he becomes an involuntary patient then, apparently due to the absence of any available places, there is a realistic possibility he could be released.
In these circumstances where the evidence demonstrates that Mr Kapeen poses an unacceptable risk, and the only explanation for why he is not currently in a mental health facility is that there is no place available, then subclause (2)(1)(b) is satisfied. Overall, the comparison of the two legislative schemes and the practical operation of the laws to Mr Kapeen's circumstances means there is a high degree of probability that the risk posed by Mr Kapeen cannot be adequately managed by other less restrictive means.
In his submissions, Mr McGrath described his potential path of reasoning as "Kafkaesque" in that the State, via the Attorney General, achieves its aim of extending Mr Kapeen's forensic status because the State has not taken steps to secure Mr Kapeen a place in a suitable mental health facility or explained why that has not occurred while, at the same time, relying on expert evidence from Dr Eagle, stating that that was the most suitable accommodation.
I agree that this position is unsatisfactory, bordering on the totally unacceptable. It is inconsistent with the tenor of the various legislative schemes for a person's status as a forensic patient to be extended in such circumstances. It is difficult to see how it is an effective use of the State's resources to keep Mr Kapeen at Long Bay Hospital and bring this application rather than finding accommodation for Mr Kapeen in a secure mental health facility under the auspices of the MHA. That said, this Court is not an inquisitorial body and the public safety objects of Schedule 1 nevertheless require the extension of Mr Kapeen's status as a forensic patient.
However, there still remains the question of the term of any extension of his status. As stated, the Attorney General sought an extension of 2 years. However, where the extension comes about in the circumstances I have just described, a period of 2 years is too long. An extension for that period has the capacity to encourage bureaucratic inertia rather than require a proper focus on the appropriate medium term accommodation needs for Mr Kapeen, especially as his schizophrenia and polydipsia may worsen. Instead, I only propose to grant the orders sought for a period of 12 months. This is a sufficient period to provide immediate protection against the risk posed by Mr Kapeen while enabling the Attorney General and the State, if they choose, to bring a further application and provide information concerning the availability and utility of less restrictive means as referred to in clause (2)(1)(b).
I will make the orders sought by the Attorney General but only for a period of 12 months, not 2 years. Accordingly, the Court orders that pursuant to clause 1 of Schedule 1 of the Mental Health (Forensic Provisions) Act 1990 the status of Robert Steven Kapeen as a forensic patient be extended for a period of 12 months from 3 June 2017.

Amendments 09 June 2017 - [25] and [26] - Date of Dr Ellis' report amended. 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: 09 June 2017

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