As noted, the defendant was subject to a two year extension order made by Harrison J pursuant to Sch 1 of the repealed Act, which expired on 12 October 2021. Accordingly, at the time of the hearing of this matter on 7 October 2021, s 130(a) was satisfied.
Section 130(b) of the Act entails a consideration of the matters to be determined in an application for an extension order, which are set out in s 127(2) of the Act:
"127 Determination of application for extension orders
(1) …
(2) In determining whether or not to make an extension order, the Supreme Court must have regard to the following matters in addition to any other matter it considers relevant -
(a) the safety of the community,
(b) the reports received from the persons appointed under section 126(5) to conduct examinations of the forensic patient,
(c) the report of the qualified psychiatrist, registered psychologist or registered medical practitioner provided under section 125(b),
(d) any other report of a qualified psychiatrist, registered psychologist or registered medical practitioner provided in support of the application or by the forensic patient,
(e) any order or decision made by the Tribunal with respect to the forensic patient that is relevant to the application,
(f) any report of the Secretary of the Ministry of Health, the Commissioner of Corrective Services, the Secretary of the Department of Communities and Justice or any other government Department or agency responsible for the detention, care or treatment of the forensic patient,
(g) the level of the forensic patient's compliance with any obligations to which the patient is or has been subject while a forensic patient (including while released from custody subject to conditions and while on leave of absence granted under this Act),
(h) the views of the court that imposed the limiting term or existing extension order on the forensic patient at the time the limiting term or extension order was imposed,
(i) any other information that is available as to the risk that the forensic patient will in future cause serious harm to others.
(3) …"
Section 127(2)(b) of the Act is only relevant to a final hearing and no material was tendered by the defendant pursuant to s 127(2)(d). A report by Dr Richard Furst, forensic psychiatrist, dated 28 June 2021, accompanied the application, pursuant to s 25(c). In relation to s 127(2)(h), the remarks on sentence of the courts that imposed Limiting Terms on the defendant were not tendered. Material relevant to the remaining subsections was also tendered. The tendered material is considered insofar as it is directly or indirectly relevant to the preliminary hearing test.
[2]
The defendant's criminal history and history as a forensic patient
The defendant is a 30 year old Māori man, born on the North Island of New Zealand. He grew up in the southern suburbs of Sydney, attending school until Year 9.
The defendant has a criminal history commencing with numerous entries in the Children's Court that include two counts of common assault; two counts of robbery in company (committed when he was aged 14 and again when aged 17); steal from the person; assault with intent to rob; aggravated steal from the person; assault occasioning actual bodily harm in company; and three counts of aggravated break and enter with intent to commit a serious indictable offence.
The defendant has an extensive adult criminal history for a range of entries from relatively minor matters, such as shoplifting, to more serious offences. Most of his matters have been dealt with by the imposition of bonds or diversionary options, such as by dismissing the charge pursuant to s 32 of the repealed Act.
In March 2012, the defendant received a good behaviour bond pursuant to s 9 of the Crimes (Sentencing Procedure) Act 1999 (NSW) ("s 9 bond") for a count of aggravated break and enter with intent to commit a serious indictable offence (in company). He was called up on the bond in November 2012 and received a limiting term for a period of two years, commencing on 1 October 2011 and expiring on 30 September 2013.
[3]
The index offences
In January 2014, the defendant was charged with two counts of aggravated break and enter with intent to commit a serious indictable offence (in company); 16 counts of dishonestly obtain property by deception; one of dishonestly obtain financial advantage by deception; and one count of take and use conveyance without consent. In November 2014, the defendant was found unfit to be tried and referred to the Mental Health Review Tribunal ("the Tribunal"). The Tribunal determined that he was unlikely to become fit within 12 months, and following a special hearing by judge alone, on 2 September 2015, Hoy SC DCJ made qualified findings of guilt in respect of all charges. His Honour imposed an overall limiting term of 3 years and 3 months, commencing on 24 January 2014 and concluding on 23 April 2017. In addition, in respect of the offences of dishonestly obtaining property and a financial advantage, the defendant received a s 9 bond, commencing on 10 September 2015 and concluding on 9 September 2019.
A consequence of the finding of unfitness was that the defendant acquired the status of a forensic patient: ss 14 and 42(a)(i) of the repealed Act. The defendant would retain that status until the expiration of the limiting term. Following an application by the Attorney General for New South Wales, on 14 July 2017, an order was made by R A Hulme J extending the defendant's status as a forensic patient for two years from that date, to expire on 13 July 2019: Attorney General of New South Wales v Kereopa (No 2) [2017] NSWSC 928. As noted earlier, an extension order for a further two years, made by Harrison J on 10 October 2019, expired on 12 October 2021.
[4]
The defendant's mental condition
In his report, Dr Furst outlined the defendant's diagnostic history. It is unnecessary to recount that history in detail for the purposes of this judgment.
Dr Furst noted: "Multiple intelligence tests conducted between 2006 and 2018 indicate his IQ falls between 40 and 64 [mild-to-moderate intellectual disability range]".
The defendant was admitted to Cumberland Hospital in 2008 and then, over the following two to three years in the community, he was treated with depot injections of anti-psychotic medication. At the time of the commission of the index offence, he had discontinued his anti-psychotic medication and relapsed into the use of prohibited drugs, including methylamphetamine, which he had first started using from the age of 17, and cannabis, which he had used on a regular basis since aged about 14.
In 2013, the defendant was diagnosed by a psychiatrist employed by Justice Health as having "a background of schizophrenia and developmental delay". In 2016, he was diagnosed by a psychiatrist, Dr Satish Dayalan, as suffering from "paranoid schizophrenia complicated by intellectual impairment and polysubstance-abuse". In 2017, by which time he was largely free of psychotic symptoms, the defendant was transferred to the Bunya Unit at Cumberland Hospital, where he had ongoing cognitive problems as a consequence of his intellectual disability. He did not display any signs of psychosis during his admission to the Bunya Unit and drug screens were negative. In the first half of 2018, he was gradually transferred to a facility known as the Schofields On-Site Supported Living and was discharged on conditional release by the Tribunal to reside there on 11 July 2018. The month before his discharge from the Bunya Unit, in June 2018, he was granted a Disability Support Pension.
Dr Furst reviewed the reports of two forensic psychiatrists, Dr Kerri Eagle (dated 5 February and 13 March 2017) and Dr Andrew Ellis (dated 5 and 20 June 2017). Both psychiatrists diagnosed the defendant as having an intellectual disability; a substance use disorder; either an antisocial personality disorder or exhibiting antisocial personality traits; and schizophrenia. Dr Furst made identical diagnoses. Dr Furst also reviewed two reports prepared by forensic psychologist Mr Patrick Sheehan, dated 27 May 2017 and 22 July 2017, which he noted provided a useful summary of relevant clinical issues and risk factors.
[5]
Forensic opinions of the defendant's level of risk
Dr Eagle assessed the defendant's historical and clinical risk factors, as well as risk management risk factors. She concluded that the defendant posed a high risk of engaging in aggressive or offending behaviour without adequate external constraints in place and that it would be unlikely that he could be managed in the community without the powers associated with him being a forensic patient. Dr Ellis identified similar historical and clinical risk factors to those identified by Dr Eagle. Based on those assessments, as well as the defendant's personal history, psychiatric issues and risk management factors, Dr Ellis considered that the defendant fell into a group of individuals who have a high risk of violent and general offending. Mr Sheehan assessed the defendant's level of risk with the assistance of two tools, the Level of Service Inventory-Revised ("LSI-R") and the Violence Risk Scale ("VRS"). Mr Sheehan was of the opinion that the defendant presented a high risk of reoffending, particularly offences including breaking into homes and robbing and stealing from people, particularly motivated by the need for drugs, transport or food.
Dr Furst assessed the defendant's level of risk as follows:
"… [the defendant] has a high loading of historical factors and a relatively low loading of current/dynamic risk factors, which essentially means that his current management plan and the restrictive measures inherent in his conditional release orders has been effective in addressing his identified risk factors and preventing a relapse into more regular drug use, addiction and related criminality over the last 3½ years. Such externally imposed provisions/restrictions have also prevented [the defendant] from gravitating towards negative peer influences, one of the biggest factors in relation to his persistent juvenile offending and his index offending for his current and previous limiting terms."
Dr Furst noted that on 26 September 2019, a limited Guardianship Order was made in respect of the defendant that provided authority to police and ambulance services to take and keep him at an approved place and return him there and to provide health care, medical, dental and other services. Dr Furst considered that this was an inadequate provision to manage the defendant's complex needs, so that his status as a forensic patient remains the appropriate option. Accordingly, he was of the opinion that there was no less restrictive option that was appropriate for the defendant.
[6]
Determinations of the Tribunal and the level of the defendant's compliance
Since July 2019, a number of breaches of the defendant's conditions of release were reported, including breaches of his conditions of leave. On 29 August 2019, as a consequence of positive drug tests for cannabis and benzodiazepines, the Tribunal issued an order for his apprehension and detention in Blacktown Hospital. On 15 October 2019, the Tribunal ordered that the defendant be detained at the Bunya Unit. Following a visit to the Bunya Unit by his female partner on 22 October 2019, the defendant again tested positive for benzodiazepines. He admitted that she had provided the drug to him. Other minor breaches of his conditions include an occasion in late August or early September 2020 in which he overstayed an approved two-night stay at his partner's grandmother's residence by an additional night. He has been compliant with depot medication. On 4 September 2020, the Tribunal granted the defendant conditional release from detention. Since that time, he has resided in supported accommodation in Western Sydney.
The most recent determination of the Tribunal is dated 26 April 2021, following a review that was conducted on 26 March 2021. No changes were made to the defendant's conditions of release. In attendance was Dr John Basson, psychiatrist. It was noted that the defendant's psychosis and mental illness were adequately managed by his monthly depot injections. He was reported to be compliant with the current management plan, although there had been:
"… minor drug seeking episodes, which Dr Basson described as 'opportunistic … exacerbated by his intellectual disability, impulsivity, ADHD and poor insight into the consequences of his actions.'"
[7]
Conclusion
The preliminary hearing test, in context, requires the Court to determine whether the material that was tendered in support of the application would, if proved, justify a determination that the defendant poses an unacceptable risk of causing serious harm to others if he ceased to be a forensic patient, and that the risk could not be adequately managed by other less restrictive means.
I had regard to the most recent risk assessment of the defendant, undertaken by Dr Furst, and his opinion as to whether less restrictive means were available to manage that risk. I did so in the historical context of earlier risk assessments and the defendant's past offending behaviour and concluded that, if proved, the making of an extension order by this Court would be justified. Accordingly, on 7 October 2021, I made the following orders.
(1) Pursuant to s 126(5) of the Mental Health and Cognitive Impairment Forensic Provisions Act 2020:
(a) appoint two qualified psychiatrists, registered psychologists or medical practitioners (or any combination of two such persons) to conduct separate examinations of the defendant and to furnish reports to the Supreme Court on the results of those examinations by a date to be fixed;
(b) direct the defendant to attend those examinations;
(2) Pursuant to ss 121, 130 and 131 of the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 the defendant is subject to an interim order for the extension of his status as a forensic patient commencing from midnight on 12 October 2021 for a period of three months;
(3) Access to the Supreme Court's file in respect of any document shall not be granted to a non-party without the leave of a Judge of the Court, and, if any application for access is made by a non-party in respect of any document, the parties are to be notified by the Registrar so as to allow them an opportunity to be heard in relation to the application for access.
[8]
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: 14 December 2021
HIS HONOUR: The Attorney General for New South Wales ("the plaintiff") commenced proceedings by summons filed on 11 August 2021 against the defendant, Teahu Kereopa, seeking interim and final orders extending the defendant's status as a forensic patient, pursuant to s 121 of the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW) ("the Act").
The preliminary hearing took place on 7 October 2021. As at that date, the defendant was subject to an order that extended his status as a forensic patient ("an extension order") to 12 October 2021: Attorney General for New South Wales v Kereopa [2019] NSWSC 1339. Interim and interlocutory relief pursuant to prayers 1 and 2 of the summons were sought, as well as ancillary relief pursuant to prayer 4, as follows:
"Interim and interlocutory relief
1. An order pursuant to s. 126(5) of [the Act]:
a. appointing two qualified psychiatrists, registered psychologists or medical practitioners (or any combination of two such persons) to conduct separate examinations of the Defendant and to furnish reports to the Supreme Court on the results of those examinations by a date to be fixed by the Court; and
b. directing the Defendant to attend those examinations.
2. An order pursuant to ss. 121, 130 and 131 of the Act, that the Defendant be subject to an interim order for the extension of his status as a forensic patient commencing from midnight on 12 October 2021 for a period of three months.
…
4. An order that access to the Supreme Court's file in respect of any document shall not be granted to a non-party without the leave of a judge of the Court, and, if any application for access if made by a non-party in respect of any document, the parties are to be notified by the Registrar so as to allow them an opportunity to be heard in relation to the application for access."
The defendant has an intellectual disability and has been diagnosed as suffering from schizophrenia. He responded to the application by his court-appointed tutor, Barbara Ramjan, who has also been appointed his guardian ad litem. He did not oppose the application. An interim extension order ("IEO") in the terms set out in prayer 2 of the summons was made, as well as orders for the appointment of forensic experts and the limiting of access to the Court's file (prayers 1 and 4). This judgment sets out my reasons for making those orders.
The legislative provisions
The Act commenced on 27 March 2021. The application is made pursuant to the provisions of Pt 6 of the Act, which is titled "Extension of status as forensic patient". Pursuant to s 121, this Court is empowered to make an order for the extension of a person's status as a forensic patient in circumstances where the Court finds that s 122 is satisfied. Section 122 is as follows:
"122 Forensic patients in respect of whom extension orders may be made
(1) A forensic patient can be made the subject of an extension order as provided for by this Part if and only if the Supreme Court is satisfied to a high degree of probability that -
(a) the forensic patient poses an unacceptable risk of causing serious harm to others if the patient ceases to be a forensic patient, and
(b) the risk cannot be adequately managed by other less restrictive means.
(2) The Supreme Court is not required to determine that the risk of a person causing serious harm to others is more likely than not in order to determine that the person poses an unacceptable risk of causing serious harm to others.
Note -
Less restrictive means of managing a risk includes, but is not limited to, a patient being involuntarily detained or treated under the Mental Health Act 2007."
A preliminary hearing is required pursuant to s 126(4), its purpose being for the Court to determine whether the documentation supporting the application would, if proved, "justify the making of an extension order" ("the preliminary hearing test"). If the Court is so satisfied, it must make orders appointing two psychiatrists, psychologists or medical practitioners, or any combination thereof, to separately examine the forensic patient and furnish reports to the Court: s 126(5). If the Court is not so satisfied, it must dismiss the application: s 126(6).
Section 130 of the Act provides as follows:
"130 Interim extension orders
The Supreme Court may make an order for the interim extension of a person's status as a forensic patient if, in proceedings on an application for an extension order, it appears to the Court -
(a) that the limiting term or existing extension order to which the forensic patient is subject will expire before the proceedings are determined, and
(b) that the matters alleged in the supporting documentation would, if proved, justify the making of an extension order."
The use of the word "may" in s 130 infers that a residual discretion rests with the Court to not make an IEO in circumstances where the matters alleged in the supporting documentation would, if proved, justify the making of an extension order. However, the existence of such a discretion is difficult to reconcile with the obligatory terms of s 126(5). If the Court, in an exercise of its discretion, does not make an IEO even though the material would, if proved, justify the making of an extension order, there would appear to be no point in the Court making an order requiring a forensic examination of the defendant, since the status of the defendant as a forensic patient would cease: s 72(1)(b) of the Act. That issue does not arise in the instant case, as will become apparent from my finding that an IEO should be made and, therefore, I do not consider it further.
A departure in the current legislative scheme from that which applied previously, in the Mental Health (Forensic Provisions) Act 1990 (NSW) ("the repealed Act"), relates to an objects clause that was applicable to the previous legislative scheme for the making of an extension order. See, for example, Attorney-General of NSW v McGuire (No 2) [2014] NSWSC 288 at [55] and Attorney-General of New South Wales v McGuire [2017] NSWSC 1572 at [25]. In the repealed Act, the scheme came within Pt 5, titled "Forensic patients and correctional patients", which had an objects clause. Part 5 of the current Act, which has the same title, has an objects clause in almost identical terms, absent references to the new terminology for qualifying mental conditions. However, the legislative scheme to make an extension order was moved from a schedule to a section in Pt 5 of the repealed Act (s 54A, Pt 1 of Sch 1) to its own Part in the current Act (Pt 6), to which the objects clause is not expressed to apply. The objects clause in Pt 5 of the current Act (s 69) is in the following terms:
"69 Objects
The objects of this Part are as follows -
(a) to protect the safety of members of the public,
(b) to provide for the care, treatment and control of persons subject to criminal proceedings who have a mental health impairment or cognitive impairment,
(c) to facilitate the care, treatment and control of any of those persons in correctional centres or detention centres through community treatment orders,
(d) to facilitate the provision of hospital care or care in the community through community treatment orders for any of those persons who require involuntary treatment,
(e) to give an opportunity for those persons to have access to appropriate care,
(f) to protect the safety of victims of forensic patients and acknowledge the harm done to victims."
The protection of the safety of members of the public is a consideration in any event in the determination of an application for an extension order (s 127(2)(a)), as it was in the Schedule to the repealed Act (cl 7(2)(a)). However, the remaining objects are not expressly identified as matters for consideration in Pt 6 of the current Act. Accordingly, express regard to considerations of the provision of care and treatment of forensic patients and the safety of victims (other than as members of the public generally), are lost.