Attorney General for New South Wales v Kereopa

Supreme Court of NSW|2019-09-20|Before: Harrison J, Davies J, Hulme J, Fagan J

Judgment

HIS HONOUR: By amended summons dated 1 July 2019, the Attorney General for New South Wales seeks a further extension order against Mr Teahu Kereopa under Schedule 1 of the Mental Health (Forensic Provisions) Act 1990, extending his status as a forensic patient under the Act. Mr Kereopa has been the subject of two earlier decisions published by judges of this Court: see Attorney-General of New South Wales v Kereopa [2017] NSWSC 411 per Davies J and Attorney-General of New South Wales v Kereopa (No 2) [2017] NSWSC 928 per R A Hulme J. These reasons for judgment assume a familiarity with each of those decisions.
For presently relevant purposes, I note that R A Hulme J made an order on 14 July 2017 extending Mr Kereopa's status as a forensic patient for a further 2 years until 13 July 2019. On 1 July 2019, Fagan J made an interim extension order following a preliminary hearing extending Mr Kereopa's status as a forensic patient for a further 3 months until 13 October 2019. His Honour also appointed two experts to conduct examinations of Mr Kereopa and to provide their reports to the Court for the final hearing.
On 29 August 2019 the Mental Health Review Tribunal ordered Mr Kereopa to be detained at Blacktown Hospital's Bungarribee House. He has been there since that date. A further review of Mr Kereopa was conducted by the Tribunal on 3 September 2019.
The matters that I am required to consider in these circumstances are whether, having regard to the available material, including expert evidence, Mr Kereopa: 1. poses an unacceptable risk of causing serious harm to others if he ceases being a forensic patient; and 2. that risk cannot be adequately managed by other less restrictive means.
In examining these questions, I am not required to determine that the risk of Mr Kereopa causing serious harm to others is more likely than not in order to conclude that he poses an unacceptable risk of doing so. I am, however, required to be satisfied of these matters to a high degree of probability: see Cornwall v Attorney-General of NSW [2007] NSWCA 374 at [21]. Neither of the expressions "unacceptable risk" nor "serious harm" is defined in the Act. In assessing these matters, I am also required to take into account at least each of the factors listed in cl 7(2)(a)-(i) of Schedule 1 of the Act. The evidentiary material and counsel's submissions in support of these factors have all been unambiguously circulated between the parties and have been considered by me in what follows, although I have refrained in those events from what would seem to me to be an unnecessarily formulaic repetition of them in these reasons.

Index Offending

On 14 January 2014, when Mr Kereopa was 22 years old, he and a co-offender broke into a home while the residents slept and stole a handbag, purse, car key, house key, $30 cash and two credit cards. On 20 January 2014, Mr Kereopa and a co-accused broke into a home while the residents slept and stole a handbag and purse, $300 in cash, a digital camera, car keys and a car. On 24 January 2014, Mr Kereopa and others broke into a home while the residents slept and stole a phone, handbag, passport, wallet, 100GBP, car keys and a car. The accused then used the credit card to pay for a taxi, three packets of cigarettes and grocery items.
Mr Kereopa was later convicted of two counts of aggravated break enter and commit serious indictable offence in company and two counts of take and drive conveyance without consent, as well as sixteen counts of dishonestly obtain property by deception and dishonestly obtain financial advantage by deception.
Mr Kereopa is now 28 years of age.
There was a considerable degree of evidence and discussion before me during a concurrent session with Drs Furst, Farrar, Ellis and Chew concerning the question of whether or not this history of criminal activity included convictions for offences that continue to inform the question of whether Mr Kereopa poses an unacceptable risk of causing serious harm to others. The opinions expressed by the experts in joint session ultimately aligned with those respectively provided by them in reports tendered in the course of the proceedings. It is efficient to refer to those now.

Dr Farrar

Dr Anna Farrar provided a report dated 30 August 2019. For presently relevant purposes it expressed the following opinions: "Does Mr Kereopa pose a risk of causing serious harm to others if he ceases to be a forensic patient? a. If yes, please describe the nature and level or risk posed; On the basis of my risk assessment of Mr Kereopa on 20 August 2019, which included his clinical presentation, history and HCR-20 V3 assessment, Mr Kereopa had a moderate to high risk of causing serious harm to others if he ceases to be a forensic patient. b. If yes, please describe the factors contributing to that risk; Mr Kereopa had a high loading of static or historical risk factors for future violence including a history of violence; history of other antisocial behaviour; history of problems with relationships; history of problems with employment; history of substance use; a history major mental disorder (Schizophrenia); history of personality disorder (Antisocial Personality Disorder); history of traumatic experiences; history of violent attitudes; and a history of problems with treatment of supervision response. Mr Kereopa had a moderate loading of dynamic clinical risk factors including limited insight into his substance use, intellectual disability and offending behaviour; recent substance use (cannabis and benzodiazepines) in the community in August 2019 despite restrictions and monitoring; affective, behavioural and cognitive instability with low frustration tolerance; and breach of restrictions or conditions (substance use, leaving his placement/absconding). Mr Kereopa had a moderate/high loading of dynamic risk management factors including Breach of Order on 29 August 2019 with apprehension and detention and Blacktown Hospital due to substance misuse and breach of leave restrictions; Mr Kereopa had expressed his desire to leave his current placement to live with his girlfriend; Mr Kereopa had no plan to abstain from substance use and was not engaged in any drug and alcohol treatment in the community; Mr Kereopa had contacts in the community to access illicit substances; Mr Kereopa indicated that he did not believe that he should have any restrictions regarding his community access placed on him or that he should continue to be a forensic patient; and Mr Kereopa had evidence of poor management of his finances including overspending."

Dr Ellis

Dr Andrew Ellis provided a report dated 31 August 2019. He considered the issue of Mr Kereopa's risk of serious harm to others in the following terms: "Risk of Serious Harm to Others With current risk assessment techniques in behavioural science it is not possible to determine whether an individual person will reoffend with a serious sexual or violent offence that would cause harm. Serious harm may also constitute threatening behaviour that could lead to psychological injury or harm not captured by methods aimed at assessing for potential re-convictions. Actuarial measures such as the VRAG-R, or structured professional judgment tools such as the HCR-20V3 are able to allocate individuals with particular characteristics to risk groups, and those groups have been identified as possessing greater or lesser numbers of persons within the group as reoffending. The difficulty with this approach is that it does not discriminate between those in a particular risk group who do reoffend and those who do not. There does not appear to be a particular advantage to actuarial scales over structured professional judgment scales. Both appear superior to unaided clinical impression. These scales tend to more correctly identify low risk groups who do not offend, than high risk groups who do go on to offend. Structured professional judgment tools in addition to being able to place a person in categories of risk, identify relevant risk factors contributing to that risk. The HCR-20V3 has been updated from my previous review to aid clinical assessment in determination of risk of serious harm. This approach identifies a number of historical risk factors for future offending. These are a history of problems with violence, most recently the institutional assault and prior convictions for violent offences. There is an extensive history of general offending (property and drug charges), a lack of stable family and intimate relationships evidenced by frequent social isolation and dislocation, impulsivity, substance use, a diagnosis of major mental illness and intellectual disability, diagnosis of antisocial personality disorder, employment problems and poor prior engagement with rehabilitation. These factors have not changed since my last review. There has been a clear improvement in his clinical presentation and risk factors since the previous review. This improvement has been sustained in the medium term in the presence of his current supports. There has been a recent relapse to substance use and non-compliance with curfew directions, which is not typical of his adherence over the period of release. Currently he presents with improved insight into his mental function and its relationship to prior offences. Instability in his cognitive function has improved, however impulsive decisions have occurred recently. He does not evince current attitudes that support violence but has some attitudes that would likely lead him to experience problems with supervision. He has no acute symptoms of mental illness (delusions and hallucinations). Future risk management items are considered in the context of continuing to receive his current supervised treatment, and in this context are clearly improved. His contact with family and support from them appears improved. He has comprehensive professional services in place, and appropriate supported housing. His ability to cope with stress can be supported by interactions with his caseworkers. His track record of cooperation with community supervision is poor, and the recent relapse is an indicator of this. Substance use is reported across the time of the index offences, and other general offences are directly related. Substance use serves to disinhibit underlying aggressive impulses, and predisposes to disordered mental states. Substance use is highly correlated with violent offending. If substance use is not addressed it may lead to further cognitive problems, and poor emotional regulation. The current arrangements significantly limit access to alcohol and substances. His ability to abstain from substance use outside of a supervised environment is most unlikely. In considering structured professional and clinical parameters in the absence of the current treatment and supervision, Mr Kereopa would fall into a group of persons with a risk violent and general offending that is moderate and would likely risk to high if substance use, unsuitable accommodation and non0compliance with medication occurred. This risk would be greater than a theoretical average offender or psychiatric patient. He would present with a risk profile equivalent to many forensic outpatients. There would be clinical grounds to continue intervention to manage this risk."

Dr Furst

Dr Richard Furst prepared a series of reports, commencing with his principal report dated 17 April 2019. The following extracts relevantly reflect his current opinions concerning Mr Kereopa: "Mr Kereopa has displayed evidence of irritability and frustration when his needs are not met, coupled with a history of immaturity, impulsivity and a tendency to react poorly and/or use drugs under stress, suggesting the management of his intellectual disability, problem solving skills and general emotional stress will also be key factors in managing his future risk of relapse and reoffending Score 2/2. Combining Mr Kereopa's historical, current clinical and future risk management scale risk factors gives a total score of 20/40, placing him in a group of individuals considered to be at moderate risk of causing serious physical harm to others. Mr Kereopa is currently in a highly supervised and controlled living situation at Schofields OSSL, having multimodal input from ADHC/CJP, related psychologists and staff and case management through the Blacktown Community Mental Health Service. He is also under the supervision of the Mental Health Review Tribunal as a Forensic Patient on Conditional Release, with requirements that he adheres to supervision and treatment from mental health staff and ADHC/CJP. His conditions also mandate compliance with medication and abstinence from alcohol and drugs of abuse. In my opinion, the most significant risk scenarios in relation to Mr Kereopa's risk of causing serious harm to others would relate to non-adherence to his supervision and conditional release requirements, including, but not limited to: absconding from his current placement at Schofields OSSL; stopping his medication; disengaging from therapy sessions, using drugs; and association with pro-criminal peers. My assessment of Mr Kereopa's risk of causing serious harm to others in the future is not influenced to any significant degree by his attitude to his index offences in 2013 and 2014, offences he can barely remember. … Mr Kereopa's risk of causing serious harm to others will be reduced through adherence to appropriate medication, currently in the form of the antipsychotic medication Invega Trinza (Paliperidone) as a depot 350mg intra-muscular injection every 3 months. … I note that his current placement at Schofields OSSL and the transition plan through Bunya to Schofields OSSL have been carefully thought out and tested over recent years, have involved multiple agencies across New South Wales and have, thus far, been effective in transitioning Mr Kereopa back to the community without him absconding for more than a few hours on 25 May 2-18. He has not relapsed into drug use, his schizophrenic illness is stable, there has been no serious violence and/or reoffending and no other serious incidents. His progress in this respect is commendable and is in stark contrast to previous behaviour when Mr Kereopa was discharged from jail into various community care settings without a forensic order, including Mr Kereopa absconding, relapsing into drug use and reoffending within relatively short periods of time on prior occasions. Therefore, I am of the opinion that his Conditional Release conditions, in their entirety, and his current status as a Forensic Patient have been of high clinical utility in managing the potential risks Mr Kereopa poses of causing serious harm to others. Furthermore, based on the available history, I would consider it more likely than not that Mr Kereopa would not comply with risk management strategies suggested above, and his more detailed conditions of release, in the absence of a forensic order."

Dr Chew

Finally, Dr Gerald Chew provided his opinions in a report dated 28 August 2019. Part of that report was as follows: "Mr Kereopa does pose a risk of harm to others without an adequate risk management plan. I note that the gravity of his historical violent acts towards others has been of a less serious nature compared with other forensic patients in general, particularly those on long term forensic orders. He has a number of static risk factors outlined above which cannot be changed however he has a number of dynamic risk factors which can be managed. These dynamic risk factors by definition can fluctuate over time and his risk profile can change. It is of note that many of his dynamic risk factors have improved over the past few years in his rehabilitation pathway. His current low loading of dynamic risk factors along with his development of protective factors have reduced his current risk profiles. I think that the key modifiable risk factors which impact on his risk profiles are: 1. maintenance of psychiatric treatment; 2. alcohol and drug misuse; 3. stability of accommodation and disability supports; 4. continued development of protective factors such as suitable employment and positive relationships. Management of the above dynamic risk factors in particular will improve his risk profile, poor management of above will put him at increased risk of harm. It appears that his current management plan has managed his clinical condition and his risk well. It appears that there has been great benefit in the stepped approach to his rehabilitation pathway from the ASU at Long Bay through Bunya Medium Secure Forensic Unit to Schofields OSSL. During his time out of the prison system there has been no violence or reoffending. His risk has been reduced through good treatment of his mental illness, structured support and accommodation, abstinence from substances (with only one relapse into cannabis not associated with any reoffending or violence), and development of other protective factors including improving insight, engagement with professionals and positive relationships. … I am therefore of the opinion that continuing his forensic patient status would manage his risk adequately. However, while continuing his forensic patient status will enable the same supports and conditions to continue currently, I am of the opinion that on the balance of probabilities that this is NOT the least restrictive means of providing ongoing management that can continue his rehabilitative pathway and mitigate [sic] against risk of serious harm."
I am satisfied to a high degree of probability that Mr Kereopa poses an unacceptable risk of causing serious harm to others if he ceases being a forensic patient. All of the specialists who have examined and reported on Mr Kereopa speak with one voice about this issue.
It is important immediately to observe, however, that none of these specialists has expressed the view that Mr Kereopa is now or is likely to become dangerous in the sense that he will commit serious offences putting members of the public at risk of danger to their personal safety. As the experts have noted, Mr Kereopa is to a considerable extent quite different to individuals regularly dealt with under the legislation dealing with high risk violent offenders. As the details of Mr Kereopa's offending reveal, his criminal behaviour is of an entirely different order.
That is not to say that the risk which the experts have identified is not a matter of concern. The authorities make it clear that harm in the context of serious harm to others contemplates non-physical harm such as psychological or emotional damage. It is plain that entering a person's home in order to steal from them is capable of causing harm of that kind. A determination of whether Mr Kereopa poses an unacceptable risk of causing serious harm to others if he ceases to be a forensic patient necessarily involves an evaluative task directed to "the assessment of risk in the context of making the community secure from harm as opposed to guaranteeing its safety and protection": Lynn v State of New South Wales (2016) 91 NSWLR 636; [2016] NSWCA 57 at [61].
I have also taken account of a Justice Health and Forensic Mental Health Network report prepared as recently as 11 September 2019 upon which Mr Kereopa relied. That report included the following: "Despite his recent substance use and breach of conditions, the public is unlikely to be seriously endangered by his Conditional Release provided that he adheres to the risk management plan."
Under the general heading Risk Management Plan, that report also said this: "Legal Status …It is our opinion that there are reasonable grounds to support that Mr Kereopa requires care, treatment and control for his own protection and the protection of others. In addition, it is our opinion that Mr Kereopa's condition is likely to deteriorate in the absence of such care, treatment and control."
It is presumably uncontroversial that the assessment of whether a risk is unacceptable requires a consideration of both the seriousness of the harm associated with the risk eventuating on the one hand and the likelihood of it doing so on the other hand. The concept of serious harm for the purposes of the Mental Health (Forensic Provisions) Act is not limited to a serious violence offences or a serious sexual offence. It is in that sense a concept that appears to extend to cover or to include harm falling short of either of these types of behaviour. So much is clear from what Davies J said in Attorney-General of New South Wales v Kereopa [2017] NSWSC 411 at [19] as follows: "[19] I accept that Re J must be treated carefully for a determination of the meaning of the term 'serious harm' in the MHFPA because of its context in the Mental Health Act. However, there is no reason in principle why 'serious harm' in the MHFPA would not include, at least, psychological harm. It may include serious economic or financial harm but it is not necessary to reach a view about that. Similarly, grievous bodily harm (the less serious part of the definition of 'serious violence offence' in the CHROA) is explained to juries as being 'really serious injury', a concept that must be on a higher plane than 'serious harm'."
I emphasise these matters because it is important for Mr Kereopa to understand that in forming the views that I have formed, I am neither concluding nor deciding that he is a violent offender. The relevant risk that Mr Kereopa may cause serious harm to others is a risk that may exist in the absence of a risk of violence of any sort. The scheme of the Mental Health (Forensic Provisions) Act is plainly protective, not punitive. A conclusion that Mr Kereopa poses an unacceptable risk of causing serious harm to others is one formed in a context that significantly includes specialist medical opinion directed to the question of whether he should remain as a forensic patient.
Similarly, the question of whether the relevant risk can be adequately managed by other less restrictive means is also ultimately a medical issue. Drs Farrar, Ellis and Furst all share the view that the current regime should not be disturbed. They consider that there is a risk that dealing with Mr Kereopa by way of a combination of a Community Treatment Order and a Guardianship Order would be less likely adequately to respond in a timely way to Mr Kereopa's possible needs should he encounter difficulties with conforming to directives and behavioural standards in the future. They emphasise that even though Mr Kereopa has good prospects of managing his schizophrenia with medication, he suffers from an intellectual disability that is only responsive to behavioural modification requiring constant learning and support. They are also concerned that an expansion or decentralisation of official influences from one to possibly two or more bodies is likely to operate less efficiently than if Mr Kereopa were to remain as a forensic patient. Mr Kereopa's recent breaches would appear to have been satisfactorily managed in the context of his current status as a forensic patient.
I acknowledge that Dr Chew takes a different view and has recommended the imposition of a Community Treatment Order providing for ongoing psychiatric treatment and drug screening with recourse for breach available through admission to a declared psychiatric inpatient unit if required. Dr Chew is also of the opinion that the Guardianship Order would be useful, particularly regarding accommodation, in association with the involvement of the Community Justice and Integrated Services Program. In this last respect I note that a Guardianship Order was made for Mr Kereopa on 26 September 2019.
Additional portions of the Justice Health and Forensic Mental Health Network report referred to earlier should also be noted as follows: "OPINION Mr Kereopa recently breached his conditions of his Forensic Order. He provided a narrative about his difficulties at Schofields, which conflicts with the reports by CJ&ISP. It is possible that Mr Kereopa has experienced some stress due to limited intellectual function, although, it is also possible that he has been manipulative and distorted the truth. At this stage, without a resolution of the conflicting accounts of his alleged misdemeanours, it is difficult to reliably ascertain his true motivation and provide an accurate account of the facts. Mr Kereopa has a long-standing diagnosis of schizophrenia. His illness has been characterised by command and visual hallucinations, as well as persecutory and referential delusions. He manifests mild negative symptomology characterised by cognitive deficits, some of which are associated with his intellectual disability. From the current presentation, his symptoms are well controlled on antipsychotic treatment and he demonstrates no affective dysregulation. In the past he has experienced bouts of depression, suicidal ideation and self-harming behaviour. He has previously been treated with antidepressant medication. He does not present with current depressive symptoms or suicidal ideation. He meets DSM-5 criteria for Cannabis Use Disorder and Amphetamine Use Disorder. He recently tested positive for cannabinoids. He presents with a likely mild intellectual disability. He has demonstrated significant problems with literacy. His executive function appears to be problematic when in novel situations or when there are competing forces. He meets DSM-5 criteria for antisocial personality disorder, which is supported by a childhood diagnosis of conduct disorder. Analysis of Problem Behaviour Mr Kereopa's problem behaviours are reactive aggression and general offending. The victims were strangers and the offences occurred in the victims' homes. There were usually co-offenders involved in the offences. On some occasions, the offences were psychotically derived, ie Mr Kereopa was experiencing command hallucinations. He was also under the influence of substances. Some of the offences are likely to have been financially motivated, as Mr Kereopa has stolen personal items, credit cards, and cars. In addition, he has a history of violence, which is highlighted by his criminal history. He seems to have little recall for these offences. Risk Factors for Problem Behaviour Static/Historic Factors Mr Kereopa has a history of problems with violence and antisocial behaviour; problems with relationships; employment, substance use (recurrent), major mental disorder, personality disorder, traumatic experiences, violent attitudes, and treatment and supervision response. Dynamic Factors In terms of dynamic factors that could precipitate episodes of non-physical and physical violence, Mr Kereopa manifests inconsistent and limited insight into his mental illness; and ongoing difficulties in executive and adaptive functioning arising from his intellectual disability. Risk Factors • Mr Kereopa is likely to present with future problems with professional services and plans in the community, unless a comprehensive management plan with supports is provided. • He could experience problems with his living situation due to breakdown in monitoring and supervision; and breaching conditions. • He may experience problems with personal supports, as his community acquaintances have been antisocial and criminogenic. In the past, he has been easily manipulated into engaging in criminal behaviours. In the event that he relapses into substance use, he could distance himself from his parents and other family members. • Due to past compliance problems, Mr Kereopa may experience future problems with treatment and supervision response. • He is likely to experience stress due to multiple cognitive deficits, including emotional dysregulation. Strengths/protective factors In terms of strengths and protective factors that may ameliorate Mr Kereopa's risk of non-physical violence, his mental illness is currently well controlled; he is housed in supported accommodation; he demonstrates insight into his past offending behaviour, and motivation to continue treatment. Synopsis Mr Kereopa presents with a high loading of static risk factors and a low loading of dynamic risk factors at present, which indicates he has capacity to manage his vulnerabilities for criminal behaviour, including violence. Overall, Mr Kereopa falls into a group of individuals who pose a high risk of identified problem behaviours."
As counsel for the plaintiff has pointed out in her written submissions, if an extension order is not made, Mr Kereopa will be free to leave his current accommodation on 13 October 2019 and will not be compelled to utilise the services of the Community Justice and Integrated Services Program or the Blacktown Mental Health Team. He will, in short, no longer be subject to the ongoing supervision of the Mental Health Review Tribunal. Dr Ellis considered the possibility of a Community Treatment Order as a less restrictive means of managing Mr Kereopa's risk but ultimately concluded that an extension of his forensic patient status was to be preferred to relying upon the Mental Health Act provisions. Drs Farrar and Furst were of similar opinions. Only Dr Chew considered that Mr Kereopa could be adequately managed by the imposition of a Community Treatment Order, even though such an order can only be made for a period of 12 months.
Doing the best I can, I consider that not only can management of the risks Mr Kereopa poses be best achieved if he remains as a forensic patient but also that it is in his own best interests that he does so. No less restrictive approach appears to me to provide the same level of secure and coordinated supervision in the particular circumstances of this case. I accept that Mr Kereopa has opposed the present application and that his opposition is borne of a genuine desire to alter his current status. I foresee the prospect of that occurring in the future if things proceed as he would hope. Moreover, the maintenance of Mr Kereopa's status as a forensic patient for now seems to me to be likely to be a positive contributor to that prospect. I take comfort from the fact that Mr Kereopa's recent breaches of conditions attaching to him have been both minor in the scheme of things and very appropriately and satisfactorily resolved under the current regime, which has been demonstrated to provide effective legal oversight of Mr Kereopa's clinical care.
The question then arises as to the length of time for which Mr Kereopa's status as a forensic patient should be extended. The plaintiff has sought an extension for a period of 5 years, which is the maximum period for which the legislation provides. A range of views was provided by the experts.
In my view, it is appropriate in this case to order an extension for a period of 2 years. Dr Chew has noted that Mr Kereopa's "insight into his offending, mental disorder and substance abuse appears to be increasing" and that "his psychotic disorder is well treated". Dr Chew also identified a series of protective factors. It is important in such circumstances not to foreclose the prospect of progress through self-determination, a not insignificant matter to be considered as Mr Kereopa gets older, in order to provide him with ongoing management required "to continue his rehabilitative pathway and [militate] against risk of serious harm".

Orders

I make the following orders: 1. Pursuant to cl 7(1)(a) of Schedule 1 of the Mental Health (Forensic Provisions) Act 1990 the status of Mr Teahu Kereopa as a forensic patient is extended for a period of two years from 13 October 2019. 2. Access to the Court file shall not be granted to a non-party without leave of a Judge of the Court. If any such application for access is made by a non-party, the parties are to be notified by the Registrar so as to be given the opportunity to be heard.

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: 10 October 2019

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