Attorney General for New South Wales v McGuire

Attorney General for New South Wales v McGuire - [2021] NSWSC 1222 - NSWSC 2021 case summary — Zoe

[4]

THE PRELIMINARY HEARING

Pursuant to s 126(4) of the Act, a preliminary hearing was required. The Court must be satisfied that the matters alleged in the supporting documentation would, if proved, justify the making of an EO (s 126(5) of the Act) (hereinafter that test shall be referred to as "the preliminary hearing test").
If the Court is so satisfied, the Court must make the orders sought by the plaintiff in prayer 1(a) and (b) of the summons, namely, an order appointing a psychiatrist and/or psychologist to conduct separate examinations of the defendant and furnish their reports to the Court and an order directing the defendant to attend those examinations (required under s 126(5)(a) and (b) of the Act).
The plaintiff bears the onus of proof, including at the interim stage: Attorney General of New South Wales v Blanks [2021] NSWSC 303 ("Blanks") at [75].
Counsel for the defendant, Dr J Lucy, developed two contentions as to the applicable principles governing a preliminary hearing.
First, it was contended the preliminary hearing test does not apply in the same way as a Magistrate would approach the prima facie test in committal proceedings. In support of that position the defendant submitted: 1. It may be accepted that this Court has, on numerous occasions, compared the tests at a preliminary hearing under the Crimes (High Risk Offenders) Act 2006 (NSW) ("the CHROA"), the Terrorism (High Risk Offenders) Act 2017 (NSW) ("the THROA"), or the former Mental Health (Forensic Provisions) Act 1990 (NSW) ("the former Act") to the "prima facie case" test under the Criminal Procedure Act 1986 (NSW). However, this is only an analogy and, as has been judicially recognised, although there may be some similarities between the tests, there are also significant differences. Reference in that respect was made to the authorities of State of New South Wales v Loto [2018] NSWSC 1522 ("Loto") at [20]-[21] (per Rothman J); State of New South Wales v Elomar (No 2) [2018] NSWSC 1034 ("Elomar (No 2)") at [7] (per Rothman J); State of New South Wales v Golding (Preliminary) [2018] NSWSC 1041 at [18]-[19] (per R A Hulme J); State of New South Wales v DK (Preliminary) [2018] NSWSC 1947 at [11] (per Fullerton J); State of New South Wales v McGee (Preliminary) [2019] NSWSC 53 at [10] (per Fullerton J). 2. Significantly, it was contended, unlike with a prima facie case test, under the Act there is no different or lesser standard of proof in preliminary proceedings as compared to at a final hearing. The only difference is that the Court must accept certain of the plaintiff's allegations as being proven. As Cavanagh J observed in Blanks at [79], "[i]n practical terms, the only difference between what must be established on a preliminary application rather than a final application is that for the purposes of interim orders, it is not necessary that the plaintiff prove the matters alleged in the supporting documentation". 3. In this case, there is little dispute between the parties as to matters of fact. It is accepted that the defendant committed the index offences, that he has an intellectual disability, that he had problems with alcohol but now does not consume it, that he began living with his brother in Young in July 2020, and that he now lives mainly on a property he purchased nearby. In other words, in general, the factual matters which are alleged in the supporting documentation are not in dispute. It was contended that: In these circumstances, the Court's task at the interim hearing is not significantly different from what it would be if the matter was at the stage of a final hearing. The main issue is whether the Court can be satisfied to a high degree of probability on the facts that the defendant poses an unacceptable risk of causing serious harm to others if he ceases to be a forensic patient. 1. The plaintiff has the burden of persuading the Court that the defendant does pose such a risk and the plaintiff must do so to a standard of proof which is higher than the civil standard. A finding that the defendant poses such a risk is not one to be made lightly.
Secondly, emphasis was placed by the defendant upon the construction of "matters alleged in the supporting documentation" in s 126(5) of the Act and, in particular, why the Court would not accept the opinion of Professor Hayes as constituting a "matter alleged". Turning first to construction, generally, the defendant advanced the following submissions in support of that proposition: 1. Only the "matters alleged in the supporting documentation" are directly the subject of the Court's consideration, namely, matters of fact and "not the content of the plaintiff's submissions": Blanks at [81]. 2. The term "supporting documentation" is not defined in the Act (whereas that term is defined in both the CHROA and the THROA). It should, therefore, be given its ordinary meaning. In Attorney General for New South Wales v Bragg (Preliminary) [2021] NSWSC 439 ("Bragg") at [20], Wright J observed: the "supporting documentation" is "the documentation provided by the Attorney General in support of his application and does not include evidence provided by the defendant in opposition". 3. The plaintiff is obliged to identify certain facts in the supporting documentation which, if proved, would lead to a conclusion that would justify the making of an EO: Elomar (No 2) at [9]; State of New South Wales v Barez (Preliminary) [2019] NSWSC 1589 at [34]. The reference to "matters alleged" is to "matters of fact, not mere allegations"; that is, to "matters of fact that, if proved, would be open to lead to a particular conclusion": Loto at [20]; State of New South Wales v Chaplin [2019] NSWSC 471 ("Chaplin") at [19]. That submission was supported by reference to applications made under the THROA: 1. An allegation that a person is a terrorist is not a "matter alleged" within s 27(b) of the THROA, as this is a conclusion; the "matters alleged" must be facts or based on facts that are capable of being proved: Elomar (No 2) at [8] and [10]; State of New South Wales v Fayad (Preliminary) [2020] NSWSC 1681 ("Fayad") at [51]. 2. Further, a "matter alleged" has "to have some proper foundation, and could not include matters of rumour, possibilities unfounded in fact, or wholly unsupported speculation": State of New South Wales v Alam [2020] NSWSC 295 at [159]; State of New South Wales v Osman [2020] NSWSC 1646 at [103]; Fayad at [52].
Building upon those contentions with respect to the construction of s 126(5) of the Act, the defendant turned to contentions specifically concerning the opinion of Professor Hayes; particularly, her opinion expressed in the RAR that the defendant poses a "moderate risk" of causing serious harm to others if he ceases to be a forensic patient ("the opinion of Professor Hayes"). It was contended: 1. There is a question as to whether an opinion of an expert, such as Professor Hayes, is a "matter alleged". Some judges have expressed a view that "matters" may include "reports" and opinions (see, for example, State of New South Wales v Sturgeon [2019] NSWSC 559 at [11]; Attorney General of New South Wales v WB (Preliminary) [2019] NSWSC 1664 at [75]). The opinion of Professor Hayes, however, is not a "matter alleged". Rather, it is a conclusion. Therefore, it is not a "matter of fact that, if proved, would be open to lead to a particular conclusion": Loto at [20]; Chaplin at [19]. It is an expression of opinion about the very matter of which the Court must be satisfied before making an EO (see ss 122(1)(a) and 130(b) of the Act). 2. The Court should not accept the opinion of Professor Hayes as a "matter alleged" in the supporting documentation for the following reasons: 1. The ordinary meaning of the statutory provisions does not support this construction of a "matter alleged". An opinion is not a "matter" which is capable of being the subject of an allegation. "Allege" means to assert without proof (Macquarie Dictionary). An opinion is not something which may be asserted without proof. Rather, an opinion may be expressed about factual matters which are the subject of allegations. 2. If the term "matters alleged" were interpreted to include an opinion as to a matter to be determined by the Court, the question of whether to make an interim order (or part of that question) would effectively be determined by a psychologist or a psychiatrist. If all that was needed for the making of an interim EO was for an expert to express an opinion as to the degree of risk posed by a defendant, the Court's role would be usurped. That is plainly not the intention of the legislature. 1. Those contentions as to the limits of the use of the opinion of Professor Hayes (vis-à-vis risk) did not extend to the entirety of the expert's opinion expressed throughout the RAR. In that light it was submitted: 1. The RAR may provide guidance to the Court. 2. It may be accepted that the Court may take into account the opinion of an expert such as Professor Hayes when assessing whether the factual matters alleged would, if proved, justify the making of the EO. 3. It may also be the case that certain of Professor Hayes' opinions, such as that the defendant has substance use disorder, which is now in remission, are properly characterised as matters alleged in the supporting documentation (because they are, in substance, allegations of a factual nature). However, the Court is not required or permitted, at a preliminary hearing, to adopt an expert's opinion about risk on the basis that it is a matter alleged which it is to assume is "proved". Rather, the Court must exercise its independent judgment in determining whether the facts alleged by the plaintiff would, if proved, justify the making of an EO. That includes forming an independent judgment as to the risk posed by the defendant, assuming all factual matters alleged by the plaintiff to be proved. 1. The preliminary hearing test does not require the Court to simply accept the opinion of Professor Hayes as its own "because it is not a matter alleged". In oral submissions, counsel for the defendant supplemented that submission with the following: LUCY: Well, your Honour, in my submission your Honour would have regard to it but not consider it to be a matter alleged that your Honour has to accept, but the reason you might not follow it or necessarily adopt it is because your Honour would have to be satisfied to a high degree of probability that the forensic patient poses an unacceptable risk of causing serious harm to others if the patient, that is, Mr McGuire, ceases to be a forensic patient, and it might be that when your Honour, and in my submission your Honour would form the view that when your Honour looks at all the factual matters that have been alleged, looks at all the facts, they don't reach that level. You wouldn't be satisfied to that high degree. 1. During oral submissions, it was also accepted that the opinion of Professor Hayes is properly before the Court and is "a matter that the court would have regard to in the assessment required under 122(1) and, in that respect, the consideration of whether the requisite degree of probability had been established". However, turning to the test under s 130, it was contended that "the court's task is to look at all the factual matters alleged and see whether that would justify the making of an order" and the opinion of Professor Hayes is not a factual matter. As such, the Court cannot be bound by the opinion of Professor Hayes as to risk.
I now turn to my consideration of the defendant's contentions.

[5]

The First Contention

The plaintiff relied upon the judgment of Davies J in Attorney-General for the State of New South Wales v Boyce by his tutor Jennifer Thompson [2017] NSWSC 144 ("Boyce"). His Honour stated (at [9]-[12]): [9] In Attorney General of New South Wales v McGuire [2013] NSWSC 1862 I noted at [10] that those objects relevantly accorded with the two objects in the Crimes (High Risk Offenders) Act 2006 (NSW) (CHROA). I said at [12] that because the terms of the two legislative provisions are so closely aligned that I considered that the learning that has grown up in relation to the CHROA should be appropriately applied to Schedule 1 of the MHFPA. This view was followed by RA Hulme J in Attorney General of New South Wales v Skerry (Preliminary) [2015] NSWSC 859 at [7]-[8] and by Adamson J in New South Wales Minister for Mental Health v Brauer [2015] NSWSC 863 at [54]. [10] The task of the Court, therefore, at the preliminary stage for an interim order is not to predict the ultimate result. Rather, the test is said to be one similar to the prima facie test applied by Magistrates in committal proceedings: Attorney-General for the State of New South Wales v Tillman [2007] NSWCA 119; Attorney-General for the State of New South Wales v Haytar [2007] NSWCA 993 and State of New South Wales v Thomas (Preliminary) [2011] NSWSC 118 at [11]. [11] In McGuire I made reference to a number of early decisions including my own decision in State of New South Wales v Richardson (No. 2) [2011] NSWSC 276; (2011) 210 A Crim R 220 for the purpose of identifying the appropriate test to be applied for the first limb under Schedule 1 of the MHFPA. Since that time the Court of Appeal in Lynn v State of New South Wales [2016] NSWCA 57 said that the test I there proposed should not be followed insofar as that approach included having regard to: The serious consequences for the Defendant either because he will be detained beyond the period of his sentence although he has not committed any further offence or he will be subject to an onerous supervision order. [12] In that way the Court of Appeal held that the right of an offender to his or her personal liberty at the expiry of the sentence of imprisonment being served is not a relevant consideration in the determination of whether a person poses an "unacceptable risk" for the purposes of s 5E(2) of the CHROA. The correct approach to the first limb of cl 2 of Sch 1 is RA Hulme J's formulation in State of New South Wales v Thomas (Final) [2011] NSWSC 307 at [58], namely, that the words "unacceptable risk" should be given their everyday meaning in the context of the provision in which they appear and having regard to the objects of the Act: Lynn at [58] (noting that the reference to [38] appears to be a transcription error).
It may be observed, his Honour did not propose that the test was identical to a prima facie test applied in committal proceedings but there are some common elements.
I propose to apply the principles in State of New South Wales v Love (Preliminary) [2019] NSWSC 1660 ("Love") at [31]-[33], in this respect, which were accepted by counsel for the defendant. The relevant passages are extracted below: [31] The task of the Court at the preliminary hearing stage is akin to a prima facie case test: State of New South Wales v Manners [2008] NSWSC 1242 at [8]-[9] (per Johnson J) and State of New South Wales v Reay [2014] NSWSC 1362 at [29] (per Button J). [32] A preferable formulation is for the Court to proceed on the assumption that the asserted facts are proved and then to consider whether, on that assumed basis, it is satisfied as to unacceptable risk: State of NSW v McGee (Preliminary) [2019] NSWSC 53 at [10] (per Fullerton J). [33] In State of NSW v Sancar [2016] NSWSC 867, Garling J said this about the nature of the task before the Court (at [74]): [74] This Court is engaged in an evaluative task. This evaluative task requires the Court to take into account all of the material that has been placed before it, and to assume that the facts disclosed in that material will be proved at a final hearing. This includes the expert opinions of Mr Ardasinski. Having done so, the Court must then ask itself whether it is satisfied to a high degree of probability that Mr Sancar poses an unacceptable risk of committing a serious violence offence if he is not kept under supervision.
Whilst those principles were stated in the context of a preliminary hearing under the CHROA, there is no relevant distinction in the respective statutory schemes (between the Act and the CHROA) as would warrant the adoption of a different approach.
Reference might also be made to the further observation in Love at [34]: [34] The Court is, however, not absolved of consideration of the evidence put before it in support of the application. Some analysis is required, particularly where there is conflict in the evidence. In State of New South Wales v Hampton [2018] NSWSC 360, Lonergan J said at [40]: [40] Whilst it is not my task to predict decision-making at final hearing or to weigh in detail the evidence and make formal findings about that evidence, I consider it necessary to provide some analysis of what seems to be conclusions by Dr Parker that are contradicted or not supported by other material tendered in support of the application.
Dr Lucy was correct to emphasise that the legislature does not produce any different test as to unacceptable risk as between preliminary or final hearing, both apply the provision of s 122 of the Act.
However, that does not warrant a preliminary hearing being treated as if it were a final hearing. To do so would be productive of error, even if the comparison was largely theoretical. The statutory requirement is that, at the preliminary hearing stage, the Court considers whether the matters alleged would, if proved, satisfy the Court that the defendant poses an unacceptable risk of causing serious harm to others if he ceases to be a forensic patient and the risk cannot be adequately managed by other less restrictive means.
Nor does an acceptance of the operation of s 122 of the Act in the context of a preliminary hearing diminish the practical force of the observation of Hoeben CJ at CL with respect to cl 6(5)(a) of Sch 1 of the former Act in Attorney General for New South Wales v Rohan (Preliminary) [2020] NSWSC 1610 ("Rohan").
At [49], Hoeben CJ at CL observed that cl 6(5)(a) of Sch 1 of the former Act is to be applied without considering what evidence might be called by the defendant at the final hearing, or any evidence called by the defendant at the interim hearing. His Honour also observed that one purpose of the preliminary hearing stage is to allow the Court to filter out unmeritorious applications at an early stage: Rohan at [47]. I adopt those principles with respect to s 126(5)(a).

[6]

The Second Contention

The defendant's second contention, namely, that the Court was not required to adopt the expert opinion bearing upon the question of unacceptable risk because the Court would need to weigh that opinion in the light of all the material before the Court in the preliminary hearing and form its own independent judgment, needs to be approached with some care, consistent with the requirements of ss 126(5) and 130 of the Act
Section 126(5) does not require the Court to analyse the material in the supporting documentation in terms of assessing whether or not the Court accepts the opinions given by the authors' various reports. Instead, it requires a narrower inquiry as to whether what is alleged in that supporting documentation would, if proved, justify the making of an EO. A test for whether an EO may ultimately be made is that specified in s 122(1), namely, satisfaction to a high degree of probability that the forensic patient poses an unacceptable risk of causing serious harm to others if he ceases to be a forensic patient and the risk cannot be adequately managed by other less restrictive means. If, following the preliminary hearing, the Court is not satisfied that the matters alleged in the supporting documentation would, if proved, justify the making of an EO, the Court must dismiss the application. (See also State of New South Wales v Lynn [2013] NSWSC 1346 at [17] (per Beech-Jones J); Love at [30]).
The defendant also contended that the opinion of Professor Hayes, namely, that the defendant posed a "moderate risk of causing serious harm to others if he ceased to be a forensic patient" in the RAR, did not constitute a matter "alleged in supporting documentation" for the purposes of ss 126(5) and 130(b) of the Act because, inter alia, it is a conclusion and not a matter of fact.
I do not accept that submission for the following reasons: 1. The words "in the supporting documentation" in the expression "the matters alleged in supporting documentation" is, in my view, a reference to the documentation referred to in s 125. Apart from the inclusion of the wording "supporting" and "supported" in the respective provisions (the former being situated in ss 126(5) and 130), the expression "the" in "the supporting documentation" in s 126(5) signifies a cohesive use, drawing a link with the counterpart expression where previously used (in this instance, s 125). There is a connection to that earlier referred to. Further, the rule of construction is that words are assumed to be used consistently in a statute is applicable here, particularly where the words are used in the same division of Pt 6 of the Act: McMillan v Pryce (1997) 115 NTR 19 at 23. 2. The provisions of s 125 specify the documentation which is required to support the application. Given the cohesive relationship between ss 125 and 126(5) (and s 130) as discussed above, "the matters" referred to in s 126(5) must include those expressly identified in s 125(a) and (b). It follows that the matters alleged in the supporting documentation include "the matters" referred to in s 127(2) (per s 125(a)) and the reports referred to in s 125(b), namely, a "report" prepared by a qualified psychologist, registered psychologist or registered medical practitioner (also corresponding to the provisions of s 127(2)(b) (and s 127(2)(c)). That is consistent with Professor Hayes' report and the opinions therein constituted matters alleged in supporting documentation. 3. The defendant contended that the Court exercising "its independent judgment in determining whether the facts alleged by the plaintiff would, if proved, justify the making of an extension order" (emphasis added). However, the provisions of ss 126(5) and 130(b) refer to the Court's determination being made with respect to "the matters alleged in supporting documentation". When those considerations are brought to bear upon the issue raised with respect to Professor Hayes' report, the assessment as to whether to make an interim extension order (or to make orders appointing relevant practitioners to undertake an examination) will be made "having regard to" the views expressed in the RAR. 4. Thus, ss 126(5) and 130 direct attention to the matters referred to in s 127(2). A report of a qualified psychologist is a matter the Court "must have regard to" under s 127(2)(c). The phrase "have regard to" is not, on its natural meaning, exclusive or exhaustive. When used in collocation with a list of matters to be taken into account, as appears in s 127(2), the phrase has been construed as an expression which is mandatory but not exhaustive: see Owen v Woolworths Properties Ltd (1956) 96 CLR 154 at 160 (per Dixon CJ, Williams, Fullagar, Kitto and Taylor JJ). This is consistent with the natural meaning of the phrase, namely, "to consider". 5. The adoption of this approach, and thus the rejection the approach contended for by the defendant, does not "usurp" the Court's role which is governed by the statute and requires a consideration of all of the material produced in support of the application, in the manner earlier discussed, on the preliminary hearing.

[7]

INDEX OFFENCES

On 17 August 2006, the defendant was charged with three offences contrary to s 61I of the Crimes Act 1900 (NSW), namely, that he had sexual intercourse with a person without consent knowing that the person did not consent ("the index offences), and with one offence of aggravated break and enter and commit serious indictable offence, contrary to s 112 of the Crimes Act.
On 3 September 2009, following a special hearing, Murrell SC DCJ found that, on the limited evidence available, the defendant committed the index offences: R v McGuire [2009] NSWDC 245 at [42]. Her Honour described the index offending at [21]-[25]: [21] At about midday on 4 April 2006 the accused went to premises adjacent to the complainant's residence. In the period until about 4.30 or 5p.m. he drank with two acquaintances, consuming least eight stubbies [of] beer and probably more. In the course of the afternoon, the accused observed the complainant in the next-door premises and said words to the effect of 'she would be all right for a girlfriend'. He became somewhat intoxicated and at one stage was 'nodding off'. When he left the premises he was 'a little bit intoxicated' but was 'not overly drunk' and was capable of walking. He saw a cat and was told that it belonged to the complainant. He picked up the cat and walked in the direction of the complainant's residence. [22] It was the complainant's evidence that a man (who must have been the accused) appeared on her front porch and asked to come in for a drink. According to the complainant's police statement 'he spoke of wanting to be with (the complainant) and wanting to be (her) friend'. The complainant refused the request to come into her house. The man was drinking a stubbie of beer. Later, the police seized an empty stubbie from the complainant's front porch. It was found to contain the accused's DNA. [23] The accused went to the side of the house and then to the backyard, where he played with the complainant's young daughter. The complainant removed washing from the line and took it into the house. The complainant's daughter came into the house, followed by the accused. The complainant asked the accused to leave the house but he refused to do so. The complainant walked to the front of the house, successfully enticing the accused out of the house. The complainant went back inside, securing the latch on the front screen door. She went to the kitchen to locate a key so that she could lock the front screen door. [24] When the complainant was standing in her living room, the accused grabbed her by the arms and told her to be quiet. He put a hand over her mouth. The complainant bit the accused on the hand. The complainant found herself lying on her back on the floor. The accused pulled his pants down to his knees and pulled her pants down, possibly to her knees, and proceeded to have penile/vaginal intercourse, causing the complainant to feel some pain. The complainant estimate that the intercourse continued for between five and fifteen minutes. The complainant was struggling. She managed to get onto her hands and knees and reached for the telephone, intending to dial for assistance. However, she discovered that the lead had become disconnected. She hit the accused over the head with the telephone. He was undeterred. She began to search for her mobile telephone. As she was doing so, the accused commenced penile/anal intercourse, which continued for five to ten minutes. The complainant believes that the accused did not ejaculate. [25] The complainant found herself with her back to the floor. The accused 'tried it again'. It was the complainant's evidence that the accused put his penis back into her vagina 'quite a few times'. 'Almost immediately' that the accused 'tried it again' the complainant succeeded in yanking his penis. It was soft After words were exchanged, the accused left, saying that he would 'come back next week to finish the job
Murrell SC DCJ imposed a limiting term of 5 years, which commenced on 1 January 2009 and expired on 31 December 2013.
Since 31 December 2013, the defendant has been the subject of five EOs, ordered by this Court (each of them 1 year in length, save for the EO immediately preceding the order made by the Court as presently constituted, which had a duration of 2.5 years).

[10]

Unacceptable Risk

An EO may only be granted if the Court is satisfied to a high degree of probability that the defendant poses an unacceptable risk of causing serious harm to others if he or she ceases being a forensic patient and the risk cannot be adequately managed by other less restrictive means: s 122(1)(a) and (b) of the Act (cl 2(1) of the former Act being the equivalent provision).
Section 122 provides: 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.
The Court is not required to determine that the risk of the 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: s 122(2). The risk is to be assessed on the assumption that the defendant is not a forensic patient or an involuntary patient: Rohan at [26] (considering cl 2(1)(a) of the former Act).
Assessing whether a forensic patient would pose an unacceptable risk of causing serious harm to others is an evaluative exercise, and involves considering both the likelihood of the risk of harm eventuating as well as the gravity of the risk that may eventuate: Attorney General for NSW v MZ [2017] NSWSC 1773 ("MZ") at [11] (per Fullerton J). The assessment is to be made in the context of the objects of the forensic patient scheme - which includes protecting the safety of members of the public, ensuring the appropriate care of forensic patients, and protecting the victims of forensic patients - but acknowledging that the Court's obligation is to secure the community from harm to a reasonable or adequate degree as opposed to guaranteeing its safety and protection: MZ at [11]; see also Attorney-General of NSW v McGuire (No 2) [2014] NSWSC 288 at [59] (per Garling J).
Under the Act, the relevant objects of Pt 5 appear at s 69 (with slight alteration to the objects that appeared at s 40 of the former Act). Section 69 is extracted below: 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 following principles, with respect to "serious harm" referred to in cl 2(1)(a) of the former Act, apply to "serious harm" as referred to in s 122(1)(a) of the Act: 1. The "unacceptable risk" is that of "causing serious harm to others". 2. The "serious harm" referred to in cl 2(1)(a) encompasses a broader range of conduct than the concept of "serious sex offences" or "serious violence offences" under the CHROA: Rohan at [35]. 3. The "serious harm" which must be considered is not limited to physical harm and it may include psychological harm: Attorney General of New South Wales v Kereopa (No 2) [2017] NSWSC 928 ("Kereopa No 2") at [16] (per R A Hulme J). 4. "Serious harm" need not be "grievous bodily harm" but involves "something more than would satisfy the minimum threshold for 'actual bodily harm' under the criminal law… [and] psychological harm must be something more than emotions such as fear or panic": Kereopa No 2 at [16], cited approvingly in Rohan at [36]. See also Bragg at [26].
The expression "high degree of probability" indicates something "beyond more probably than not", so that the existence of the risk does have to be proved to a higher degree than the normal civil standard of proof, but not to the criminal standard of beyond reasonable doubt: Rohan at [22], citing Cornwall v Attorney General of New South Wales [2007] NSWCA 374 at [21] (in the context of the CHROA); Attorney General for New South Wales v Huckstadt [2017] NSWSC 441.
The right of a forensic patient to his or her personal liberty at the expiry of the limiting term is not a relevant consideration in the determination of whether they pose an unacceptable risk for the purposes of s 122(1)(a): Rohan at [33] (per Hoeben CJ at CL, citing Boyce and Lynn v State of New South Wales [2016] NSWCA 57, with respect to cl 2(1)(a) of the former Act).
In considering whether or not to make an extension order, the Court must have regard to the matters in s 127 of the Act.
Section 127 provides: 127 Determination of application for extension orders (1) The Supreme Court may determine an application under this Division for an extension order-- (a) by making the order, or (b) by dismissing the application. (2) In determining whether or not to make an extension order, the Supreme Court must have regard to the following matters in addition to any other matter it considers relevant-- (a) the safety of the community, (b) the reports received from the persons appointed under section 126(5) to conduct examinations of the forensic patient, (c) the report of the qualified psychiatrist, registered psychologist or registered medical practitioner provided under section 125(b), (d) any other report of a qualified psychiatrist, registered psychologist or registered medical practitioner provided in support of the application or by the forensic patient, (e) any order or decision made by the Tribunal with respect to the forensic patient that is relevant to the application, (f) any report of the Secretary of the Ministry of Health, the Commissioner of Corrective Services, the Secretary of the Department of Communities and Justice or any other government Department or agency responsible for the detention, care or treatment of the forensic patient, (g) the level of the forensic patient's compliance with any obligations to which the patient is or has been subject while a forensic patient (including while released from custody subject to conditions and while on leave of absence granted under this Act), (h) the views of the court that imposed the limiting term or existing extension order on the forensic patient at the time the limiting term or extension order was imposed, (i) any other information that is available as to the risk that the forensic patient will in future cause serious harm to others. (3) If the Supreme Court makes an extension order in respect of a forensic patient, the Court is to notify the Tribunal of the making of the order.

[11]

Management of Risk

Evaluating whether the defendant's risk can be adequately managed by other less restrictive means involves more than considering the defendant's proposed treatment regime and care: Attorney General of NSW v Doolan (No 2) [2016] NSWSC 107 at [96] (per Adamson J).
In Attorney General of New South Wales v Skerry (Preliminary) [2015] NSWSC 859, R A Hulme J stated (at [54]): "the focus should be more on the question of adequately managing the risk, rather than identifying whether one regime is more or less restrictive than the other".
In Attorney General of New South Wales v McGuire (No 2) at [63], Garling J said that the phrase "adequately managed" means that: [63] … the unacceptable risk is mitigated by the proposed management regime so that the community's interest in being kept safe is outweighed by the community's interest in not having mentally ill or mentally disordered individuals or forensic defendants being confined in some form of institutional care rather than taking their place in the community.
In Attorney General for New South Wales v McGuire by his tutor Thompson [2019] NSWSC 76 ("the 2019 EO decision"), Wright J stated that the process for assessing whether the risk can be adequately managed by other less restrictive means involves the following (at [28]-[29] and [33]): [28] … (1) whether the means proposed are less restrictive; and (2) whether the less restrictive means adequately manage the risk. [29] As to the first of those matters, whether means are more or less restrictive is to be judged by the legal power of others to control the defendant's actions, locations, treatment and other matters, as well as the practical operation of how that power might be exercised in a particular instance: Attorney General of NSW v Doolan by his tutor Jennifer Thompson (No 2) [2016] NSWSC 107 (Doolan (No 2)) at [96]. ... [33] Adamson J in Doolan (No 2) at [100] identified a number of areas of difference in respect of the legal regimes that should be considered when assessing "less restrictive" and "adequacy of management". Although her Honour was dealing with a different alternative regime from that proposed in the present case, the areas she identified give useful guidance, provided allowance is made for the different circumstances of the defendant in the present case. The areas of difference identified by Adamson J were: "(1) The objects of the legislation; (2) The composition of the Tribunal; (3) Review by the Tribunal; (4) The basis for detention; (5) Release from detention; (6) Imposition of conditions while patient is living in the community; (7) Consequences of breach of conditions."
"Adequate management of risk" is more holistic than treatment and may involve considerations such as managing how the defendant may be reviewed, who can discharge him, monitoring risk, the ability to quickly respond to elevations of risk or deterioration of mental health, what is considered before the defendant is released and how he may be reintegrated in the community.
As the defendant is not mentally ill he cannot be managed under the Mental Health Act 2007 ("the MHA"). The Guardianship Order is limited and cannot provide the oversight of monitoring for drug and alcohol use.
I now turn to the factors under s 127(2).

[12]

The Defendant

The defendant is a 48-year-old man and the youngest of nine siblings. Born and initially raised in Ballarat, Victoria, the family moved to Katoomba and then to Department of Housing accommodation in Mt Druitt. The defendant did not finish high school (being expelled in Year 8). When the defendant was 17, he lived with his sister and held a job as a painter's labourer. Later in life, the defendant lived with his parents who had since moved to Young. He was in a romantic relationship from 1993 to 2014, and he had a daughter with this partner. He then moved to Richmond and lived with one of his brothers. Prior to the index offence, the defendant was homeless and heavily drinking alcohol.
The defendant has mild to borderline intellectual disability which affects his verbal intellect, executive functioning and behaviour. He requires assistance with life skills, problem solving and emotional regulation. The defendant has also been diagnosed with substance use disorder (in remission) and has anti-social traits.
In 2013 (after the limiting term expired), the defendant re-commenced contact with his daughter who had given birth to a baby boy. In 2015, that contact ceased. The RAR suggested that, presently, the defendant may be having occasional contact with his daughter (enough to suggest they are not estranged).
The defendant is on a limited Guardianship Order dated 13 November 2020 for a period of 1 year. The Public Guardian can make decisions about provisions of and access to services to be provided to the defendant. The defendant is receiving Disability Support Pension ("DSP") and the National Disability Insurance Scheme ("NDIS") funds supports services for him. The defendant's finances are managed by the NSW Trustee and Guardian.
In 2020 and 2021, the defendant lived with one of his brothers in Young, helping that brother with the scrap metal business.
In 2020, the defendant had received a driver's licence but in 2021, due to a number of speeding infringements, his licence had been suspended. The defendant's driver's license was reinstated in April 2021.
The defendant has been subjected to mandatory drug and alcohol testing whilst on the EO and his results are consistently negative.

[15]

The RAR

Professor Hayes diagnosed the defendant with the following: 1. mild to borderline intellectual disability, noting the defendant functions well below his chronological age in all domains. She also opined that the defendant lacks executive functioning, an ability to control impulses and emotions, and a capacity to plan and foresee his consequences; and 2. substance use disorder (alcohol and cannabis), which was once chronic but now in remission. She noted, in that respect, the defendant was using alcohol at the time of the index offences but for at least 18 months he has not had any alcohol or illicit substances. Notwithstanding that fact, Professor Hayes commented that there is always a risk of relapse.
Professor Hayes opined that because of the defendant's intellectual disability, he is: [O]perating at the pre-conventional level of moral reasoning, typical of children under the age of 9 years. During the preconventional level, the sense of morality is externally controlled. The individual accepts and believes the rules of authority figures, such as police, Courts, parents and teachers, and they judge an action based on its consequences. They refrain from doing an action because they will be punished ([the defendant's] potential punishment being estrangement from his daughter and grandchild), not because they understand societal order or abstract concepts of right and wrong. He is able to state that some actions are right and some are wrong, because he has been told that or learned it through his own activities over the years, but he is unable to give abstract reasons about why an action might be wrong, or to balance up competing interests (for example, is it okay to steal if you are starving?). His attitude towards his past offences is one of remorse, but more because he has faced consequences, rather than understanding the implications of his actions for the victim, or being genuinely regretful.
Professor Hayes opined that the defendant presents a moderate risk of causing harm to others if he ceases to be on an EO. Professor Hayes opined that: 1. the defendant's intellectual disability may contribute to his risk of sexual reoffending (for example, because he lacks the capacity to foresee the consequences) but it is not necessarily a causal factor; 2. alcohol use elevates the defendant's risk, and it was a direct causal factor to the defendant's sexual offending. Professor Hayes advises that this factor must be monitored to reduce the defendant's risk; 3. any deterioration in family relationship would elevate the defendant's risk of reoffending; 4. the defendant has little insight into his risks and limited strategies for responding to stress; and 5. any decreases in support and supervision would increase the defendant's likelihood of reoffending.
Professor Hayes noted that other psychiatrists have diagnosed the defendant with anti-social and paranoid personality traits and commented that anti-social traits elevates the defendant's risk of reoffending and "[the defendant's] psychiatric state needs to be monitored".
During the interview, Professor Hayes found some of the defendant's remarks about women noteworthy and of concern. She stated: When asked about his attitude towards women, he made an indirect and somewhat incomprehensible remark about Ms Gorman being "a woman at the other end of the motel; ... if she'd wanted to", and then stopped abruptly before rambling onto another topic. His oblique remarks about Ms Gorman staying at the same motel as him on the night prior to the assessment are indicative of ongoing difficulties and limitations in perceptions of social boundaries and roles, which need to be addressed by a behaviour management plan.
Professor Hayes opined that "the externally imposed structures and conditions inherent in [the defendant's] forensic patient status have been highly significant in controlling the anti-social behaviours which would otherwise contribute to the risk of causing serious harm to others".
Professor Hayes commented that the treatment and management strategies provided to the defendant have contributed to the defendant's alcohol abstinence, establishment of a daily routine, acceptance of some level of responsibility for the offences, some involvement of family members, and motivation to adhere to the conditions (because of concern about consequences).
Professor Hayes opined that the static variables reflect "the high probability of having been the victim of child sexual abuse, and a history of previous offences involving violence". Professor Hayes invited consideration of psychological intervention for child sexual abuse and family violence and psychotherapy that may assist the defendant with emotional regulation and cognitive restructuring.

[22]

Dr Eagle Report

Dr Eagle conducted a face-to-face psychiatric assessment of the defendant on 12 December 2018. The assessment was conducted over a period of about 45 minutes. She had conducted psychiatric assessments of the defendant on at least two prior occasions for the purpose of expert psychiatrist reports as a Court appointed expert.
As to previous assessments, Dr Eagle reported: 48. During previous interviews, he has said "my missus might come back to me one day." He said "I've already missed her." He recalled memories of times with his ex-partner. He recalled driving a car owned by her father and nearly having an accident, for instance. He said he was not planning to contact her. He reflected that she had not been interested all these years. He volunteered that he had previously had "inappropriate" thoughts such as "she's having it off with her father." He said that she had made him jealous. 49. Mr McGuire has previously said that having a license would help him have a relationship with someone else. He said that a relationship involved having a person to spend time with. He said he would like to access his own money. He said he would like to get to know other people. During a previous assessment, Mr McGuire said "of course" when asked if he had sexual feelings. He said they were not specific to people. He said that he sometimes had "offensive thoughts." He gave an example of seeing his nephew's girlfriend "bent over in tights that were see through." He then reflected how she did not pull her weight in the relationship in his view. He said he did not say anything to her. He said he thought she needed a "good bloke." He was unable to articulate what he meant. He said "I don't want to crack onto her." 50. Mr McGuire was previously asked how he would meet his sexual needs in future and said that there were no girls available unless he went to Young. He was asked if he would go on a date. He said he would but that he had never been on a date previously. He said he had met his previous partner during a TAFE course. He said it was a gradual process. 51. Mr McGuire was asked if there were any situation that could arise that would result in a girl having sexual contact forced onto her. He said "no." He said he did not think about sex every day or every week. He then recounted a situation that occurred as they were travelling to the interview during which "a young sheila purposefully went up the stairs because I'm going up the stairs and kept going along with us." He suggested that the girl was interested in him and this was why she was walking beside them. He said "I am not trying to push myself to go looking for a girlfriend." He then referred to his sister's best friend and having a crush on her. He suggested she was wealthy, "a posh person" and in a relationship. He said he had never tried to proposition her.
Under the heading "Mental State Examination as at 12 December 2018", Dr Eagle opined: 63.Mr McGuire displayed some insight into his previous sexual offending and reported never wanting to engage in such behaviour again. He continued to maintain that he would not consume alcohol again. He displayed better control of his emotional responses and frustration and did not engage in any outbursts during the interview, as he had done previously. [Emphasis added.]
Dr Eagle noted an incident report produced by CJP, dated 12 November 2017. She stated: 69. … Mr McGuire was reported to have been assaulted when in the company of his nephews and a fight broke out. His brother was reported to have been inside a drinking establishment using poker machines. Mr McGuire reported attempting to break up the fight. He was reported to have sustained a number of potential injuries including a possible broken nose but refused to wait for assessment and treatment in hospital. Mr McGuire was not reported to have retaliated or engaged in aggression during the fight. He reported being sober.
Dr Eagle diagnosed the defendant with the following: 1. mild to borderline intellectual disability; and 2. alcohol use disorder, in remission.
She also opined that the defendant displayed "adult antisocial personality traits", but noted there was insufficient information of conduct disorder before the age of 15 to form a diagnosis of antisocial personality disorder.
Turning to risk assessment, Dr Eagle opined: 84. There are inherent limitations in any process of risk assessment, although the best evidence supports a structured professional judgment approach. Risk assessment is most effectively used to develop a risk formulation utilising evidence based risk factors for the purpose of informing ongoing management and rehabilitation (rather than for prediction of reoffending). 85. The risk assessment process in this case is further limited by Mr McGuire's cognitive deficits and his lack of engagement with clinicians. As a result of this it is difficult to clearly ascertain his cognitions particularly regarding matters relevant to offending behaviours. This limits assessment of his dynamic risk factors.
Dr Eagle made the following observations with respect to the defendant's risk of violent reoffending: 1. The defendant's historical risk factors for violent reoffending have not changed and he has had problems with violent offending, antisocial behaviours, substance use, relationships, employment, major mental disorder and treatment or supervision response. He manifests a moderate to high loading of historical risk factors and these correlate with an increased risk of violence in the longer term. She opined "[t]hese risk factors will not decrease in number and reflect an elevated baseline level of risk". 2. The defendant has continued to exhibit clinical risk factors for violence including problems with insight; affective and cognitive instability; and treatment or supervision response (reported non-compliance with androcur). He has a moderately high loading of clinical factors and these place him at an increased risk of general violent reoffending in the short to medium term. It should be noted that his emotional stability and voluntary engagement with services appears to have improved despite a reduction in the level of mandatory support to be provided. 3. The defendant's historical and clinical risk factors for violence continue to be adequately managed under the current forensic order and with the benefit of the psychosocial supports in place in combination with prescription of a lower dose of androcur. The defendant had remained stable with no emergence of violent or problematic sexual behaviours despite the lessening of formal support from the CJP and a reduction in his dose of androcur. (It may be noted, following this assessment by Dr Eagle two incidents occurred, which will be returned to in the context of the 2019 EO decision, below).
As to sexual reoffending, Dr Eagle opined: 1. The defendant's score on the Static 99R is 4 placing him in the above average risk. He scored: 1. -1 for his age; 1 for Index non-sexual violence; 2. 1 for prior non-sexual violence; 3. 1 for four or more sentencing dates; 4. 1 for unrelated victim; and 5. 1 for stranger victim (if he had not known of the victim 24 hours prior to the Index Offence). Similar to the score on the Static 2002-R, this score placed the defendant in a group of offenders at an above average risk of sexual reoffending when compared to other offenders. 1. On the basis of the Stable 2007, the defendant demonstrated: 1. problems with significant social influences (specifically exposure to alcohol consumption, gambling and fighting through his nephews and brother) (2); 2. capacity for relationship stability (no current relationship) (1); 3. general social rejection (1) and negative emotionality (1); 4. persistent problems with impulsivity (2); 5. poor problem solving (2); and 6. he also displayed recent non-compliance with medication and an expressed desire to disengage with clinicians although overall compliance with mandated supervision (1). 1. The defendant's score on the ARMIDILO-S has scored low to moderate on the most recent risk assessment (at the time of Dr Eagle's report) in the context of the current support service model (and, as mentioned, moderate by Professor Hayes in the RAR).
Dr Eagle also answered specific questions put to her, an extract appears below: 100.5 Please provide your view as to the need for ongoing management of Mr McGuire as a forensic patient (that is, subject to the support of the MHRT and "conditional release" orders). 100.5.1. It is possible that a regime of equivalent support might be developed to manage Mr McGuire's ongoing risk of reoffending involving New Horizons (under NDIS) offering 20 hours per week transportation support and additional support (so that Mr McGuire could continue his scrap metal activity and receive assistance with difficult living challenges as they arise); suitable accommodation in a stable urban area; continuation of a financial management order; and regular attendance at a GP supported by medical decision making under a guardianship order. 100.5.2. Mr McGuire's risk of non-compliance or disengagement, relapse into alcohol use (in the absence of alcohol monitoring) and an increase in problematic sexual behaviours (in the absence of androcur) remain risk factors in those circumstances. If disengagement with services, alcohol use or problematic sexual behaviours occurred, Mr McGuire risk of reoffending would substantially increase and in the absence of a forensic order there would be no mandatory regime that would be capable of addressing those factors. 100.6. If Mr McGuire requires ongoing management as a forensic patient, how would such management address the risk he poses? 100.6.1. The primary value that a forensic order provides in the management of Mr McGuire is in the regular review of his progress by the MHRT; the ability to enforce treatment and compliance through conditions (which Mr McGuire appears willing to adhere to); and the recall to hospital (or a correctional facility) if Mr McGuire displayed any deterioration in mental state (for instance, emotional dysregulation) or the emergence of any warning signs (for instance, increased problematic sexualized behaviours or increased aggression). It should be noted that return to a correctional facility would never be recommended as a rehabilitation or treatment strategy for a person with Mr McGuire's vulnerabilities but as a last resort it can provide incapacitation in terms of risk. 100.7. Please provide your view as to whether any risk posed by Mr McGuire can be managed by other, less restrictive, means. This would include through the civil mental health scheme, the making of a guardianship order (please see the assumptions below) or supervision by CJP (which would be based on voluntary participation by Mr McGuire in the absence of a forensic order). 100.7.1. This is largely addressed in paragraph 100.5 and 100.6 above. Mr McGuire would not, in this assessment, come within the civil mental health scheme given that he does not have a mental illness and is not a mentally ill person within the definition of the Mental Health Act 2007. Guardianship orders are essentially a substituted decision making regime and cannot provide supervision, monitoring or, in my view, adequately or effectively respond to situations of increased risk. The guardianship regime does not have a mechanism to enforce treatment or compliance.

[23]

Ms Howell Report

Ms Howell assessed the defendant in a semi-structured clinical interview for 2.5 hours on 15 January 2019. She described his appearance as "untidy and wearing somewhat dirty clothing and did not appear to have showered".
Ms Howell conducted psychological risk assessments using the Static 99-R and the Risk for Sexual Violence Protocol ("RSVP"). She opined: 1. Using the Sexual Violence Scale, the defendant does not score on chronicity, diversity or escalation of sexual offending behaviour. There appears to be no psychological coercion involved in the index offence, however the index offence involved physical violence. 2. Using the Psychological Adjustment Scale, the defendant does not accept responsibility for the index offence. Problems with self-awareness reflect a lack of appreciation for the factors and processes that placed him at risk of sexual violence. 3. Using the Mental Disorder Scale, there is no evidence that the defendant has a stable pattern of deviant sexual arousal nor a psychopathic personality disorder. He is diagnosed with an intellectual disability with associated impairment of cognition, affect and behaviour. She also noted the defendant has had a history of alcohol problems. 4. Using the Social Adjustment Scale, the following was noted about the defendant: 1. He was experiencing difficulties within his place of residence due to a belief that one or possibly two women work as sex workers from units underneath his and to one side. He was aware of men, who live in the unit complex, visiting which is causing him distress and he stated he cannot ignore what he hears and believes is occurring. 2. He has experienced problems with his non-intimate relationships involving a failure to establish or maintain positive social supports. He has a history of non-sexual criminal behaviour. 1. Using the Manageability Scale, the defendant requires support with planning and assistance in meeting appointments at the current time.
As to whether the defendant needs ongoing management, Ms Howell opined: It is my view that Mr McGuire requires ongoing management as a forensic patient to minimise his risk of reoffending. Mr McGuire is an intellectually disabled man with cognitive and adaptive impairments. Assessment using the Static-99R and the RSVP indicate Mr McGuire's risk of sexually reoffending is in the Above Average risk level. Mr McGuire has previous criminal history that included violence and alcohol. During the assessment Mr McGuire demonstrated problems with emotional regulation becoming agitated and angry when issues in relation to sex offender treatment were raised with him. The RSVP highlighted problems with self-awareness, problem solving skills, stress and coping and non-intimate relationships and planning. Currently, Mr McGuire resides in supported accommodation with 12 hours a week case worker support through New Horizons to attend medical and other appointments and shopping. Mr McGuire's untreated risk factors and support and supervision needs suggest he would benefit from management as a forensic patient subject to the support of the Mental Health Review Tribunal and conditional release orders.
Ms Howell further opined: Mr McGuire has problems with self-awareness, limited problem solving skills and a lack of appropriate coping strategies. He lives alone and spoke of feelings of loneliness. He became agitated when talking about a belief other men residing in the block of units are visiting several sex workers he believes are working out of a units on the floor beneath him. Talking about this situation caused Mr McGuire to become agitated and he asked how he could be expected to ignore what he hears, however, he did not respond to questions regarding what he hears. Mr McGuire's comments and emotional agitation regarding the possibility of sex workers working from units near him may be related to mental health concerns and/or may be an elevated risk factor in relation sexual behaviour problems. It is my view Mr McGuire is a lonely man who has a number of psychological needs in addition to his intellectual and adaptive functioning needs and risk of sexual reoffending. Management as a forensic patient would address the risk he poses in the community through regular contact with caseworkers and support to engage in treatment and with the community.
In considering whether the defendant could, at that time, be managed by less restrictive means, Ms Howell said: Mr McGuire has ongoing clinical needs in relation to his intellectual disability, alcohol abuse disorder currently in remission, assessed risk factors for further offending in the Above Average risk range and is resistant to engaging in treatment. It is my view Mr McGuire's clinical needs and risk factors for further offending could not be adequately managed through a civil mental health scheme, or the making of a guardianship order or supervision by CJP and New Horizons on a voluntary basis.
At this juncture, I interpose to note the conclusions reached by Dr Eagle and Ms Howell that were accepted by Wright J in the 2019 EO decision.
Wright J accepted the evidence and conclusions of Dr Eagle, save for "those opinions of Dr Eagle based on an assumption that there has been no problematic sexualized or other conduct after the reduction in the dose of Androcur": at [63]. As to the factors supportive of a conclusion that the defendant posed a risk of causing serious harm to others if he ceased to be a forensic patient, without adequate monitoring and support in place, Wright J found that Dr Eagle identified the following (at [64]): (a) His baseline risk of moderate (above average) is and will remain unchanged. His dynamic risk has remained moderate and may fluctuate. This risk is being adequately managed under the conditions imposed by the MHRT; (b) The defendant's risk factors are primarily related to his underlying intellectual disability and are unlikely to change over the longer term. Dr Eagle explained that: "[t]hey are able to be managed with increased support and supervision"; (c) Overall, if the conditions of the forensic order were removed, the defendant would be considered at a moderate risk of sexual recidivism (or above average) based on his dynamic and static risk factors. The length of time since the Index Offences does not correlate with a reduction in his risk level given that during the period in question he has been subject to a forensic order with strict conditions, and he has had the benefit of substantial monitoring and support and received mandated prescription of Androcur; (d) He also has a number of historical and clinical risk factors for violent reoffending that would place him at an increased risk of future violence in the event that the monitoring and supervision associated with a forensic order ceased; (e) The defendant's unwillingness to discuss his sexual offending at any length is an ongoing barrier to his effective risk management, particularly in the absence of external constraints, and prevents him from self-monitoring his behaviour; (f) The defendant has clearly indicated that he would not continue Androcur if it were not mandated.
His Honour also stated (at [66]): [66] Dr Eagle noted, and I accept, that the process of obtaining yearly extensions of his status as a forensic patient has been challenging for the defendant and he has expressed frustration at the repeated appointments. A longer extension would also afford an opportunity to demonstrate a sustained period without reoffending, with limited or no supervision and support, and following cessation of anti-libidinal medication. If the Court determined to extend his status as a forensic patient, a longer period than one year would be appropriate.
Based upon the evidence of Ms Howell, Wright J was satisfied as to, inter alia, the following (at [70(8)]-[70(10)]): 1. On the Static 99-R scale, the defendant was placed in the Above Average Risk level for being charged with, or convicted of, a further sexual offence. 2. Applying the Risk of Sexual Violence Protocol, consideration of the dynamic risk factors indicated they are in the Moderate range. The dynamic factors associated with the defendant's risk of sexually reoffending fall across five scales: the Sexual Violence Scale (use of physical coercion); Psychological Adjustment Scale (problems with minimisation, problems with self-awareness and stress and coping); Mental Disorder Scale (intellectual disability, and history of substance abuse and alcohol problems); Social Adjustment Scale (problems with intimate and non-intimate relationships); Manageability Scale (problems with treatment, planning and supervision). 3. The defendant's risk of reoffending could escalate if he did not receive appropriate support to reintegrate into the community, or if his family relationships deteriorate. He stated that "everything will change after he gets his driver's licence" but was unable to say how. 4. The defendant is unable to discuss his thoughts prior to, during and following the index offences. He did not demonstrate any insight into the inappropriateness of his conduct and denied that his behaviour harmed the victim.

[25]

The MHRT decision dated 2 March 2020

On 4 March 2020, the MHRT conducted a review under s 46(1) of the former Act. On 2 March 2020, having regard to the evidence before it and the relevant provisions of that Act, the MHRT held that "the present arrangements for care, treatment and control of [the defendant] [were] necessary and sufficient for the protection of [the defendant] from serious harm and/or for the protection of others from serious harm".
Relevantly, the decision noted various circumstances, which included, inter alia, the following: 1. that the defendant travelled to Queensland from 9 to 12 January 2020 to see his daughter, without notifying CSP and/or obtaining permission which was a breach of his conditions of release; 2. that the defendant was not residing at Panania and he had not notified his case manager, another breach of his conditions of release; 3. that the defendant at times resided with his brother or sister or was living in his car in front of a sibling's home, being an unstable accommodation environment; 4. there had been no recent objective testing of the defendant for alcohol or drug consumption (and that the testing that occurred had been ordered by his treating psychiatrist, Dr Jeremy O'Dea, and not his case manager); and 5. that there had been a reduction in services provided by CSP and New Horizons.
By way of explanation, the CSP is an initiative of the NSW Department of Communities and Justice that provides interim and referral-based services to individuals with cognitive impairment, complex support needs and serious and/or persistent challenging behaviours and/or offending behaviour who are NDIS eligible and are experiencing provision issues. The predecessor to the CSP was the Community Justice and Integrated Service Program ("CJ & ISP", also referred to throughout the proceedings as "Communities and Justice"); the name change occurred in June 2018.
As to "significant developments since the last review", the MHRT noted the following: 1. the defendant had obtained his driver's licence; 2. he was refusing support from his designated support workers, "in part on the basis that he no longer needs assistance with his transport"; and 3. he has failed to comply with conditions of his release "on at least two recent occasions".
Following that review the MHRT "declined to make any changes to the present conditions of release" for the defendant.

[26]

The MHRT decision dated 16 September 2020

On 25 August 2020, the MHRT conducted a review under s 46(1) of the former Act. On 16 September 2020, having regard to the evidence before it and the relevant provision of that Act, the MHRT held that "the present arrangements for care, treatment and control of [the defendant] [were] necessary and sufficient for the protection of [the defendant] from serious harm and/or for the protection of others from serious harm".
The determination of the MHRT, relevantly, noted: 1. The defendant had been with CSP since April 2010. 2. The CSP provides the defendant with services to help him in the community. A drop-in support service called New Horizons was provided to the defendant from December 2013 until May 2020. New Horizons is funded through NDIS. In March 2020, New Horizons told the NDIA that the defendant was no longer under any order and did not require support. New Horizons ceased providing the defendant its services from 19 May 2020. I accept the submission made by the plaintiff that this is an example of the uncertainty of relying on NDIA/NDIS to manage the defendant's risks. 3. On 25 May 2020, CSP, organised a case conference with relevant stakeholders in relation to the defendant's NDIS funding being reinstated. On 10 June 2020, the Public Guardian agreed to new support coordinators from the agency Ability Options, which provides behavioural support, clinical services, and housing. 4. On 30 July 2020, because the defendant had received threats where he was living, the defendant left the accommodation at Panania to live with his brother in Young. 5. The MHRT commented that the defendant's loading of dynamic risk factors had increased recently because of changes in service provision, absence of support staff, the change in living arrangements and observed "emotionally reactive" responses to these stressors and COVID-19 restrictions.
The MHRT confirmed or continued conditions of the defendant's release, including: 1. to remain managed by the CSP; 2. to see Dr O'Dea once a month or as Dr O'Dea considers necessary; 3. abstinence from alcohol and illicit drugs and submit to testing; 4. not to gamble; 5. residential condition; and 6. approval to travel interstate.
Annexure A to the MHRT determination noted the following matters of relevance: 1. around June 2014, the defendant moved to accommodation in Panania. Aside from periods of detention in Nepean Hospital, the defendant had resided in Panania until he received the threatening letter in July 2020, when he had to leave this accommodation; 2. in August 2015, the CJP treating team was concerned that the defendant was not medication compliant, failed to attend scheduled appointments with his treating psychiatrist and may have recommenced gambling. Consequently, the CJP increased its monitoring and support of the defendant; 3. on 8 January 2016, the MHRT issued an order for the apprehension and detention of the defendant consequent to the defendant being absent from accommodation without permission, admissions to using alcohol and failing to attend mental health appointments. New Horizons staff also raised concerns about inappropriate sexualised comments from the defendant (it does not set out the particulars of this allegation). The defendant was detained in Nepean Hospital. This detention enabled doctors to have the time and access to the defendant to assess him for the presence of any psychotic illness and guard against risk to the community; 4. in May 2017, the MHRT varied a condition of the defendant's release, reducing his supervision hours from 25 to 12 hours per week and to include regular urine drug screens and attendance at appointments with Dr O'Dea; 5. in May 2018, Dr O'Dea told the MHRT that he had ceased prescribing Acamprosate medication since around February 2018 and there had been no reports of the defendant relapsing into alcohol use; 6. in March 2019, the MHRT removed the condition that the defendant take anti-libidinal medication, to trial the defendant in the community without it and observe his behaviour; and 7. on 27 August 2019, the MHRT heard that there had been no reports of sexualised behaviour or deviant interests since the defendant ceased the Androcur and the defendant had remained abstinent from alcohol.
Annexure A also included the following summaries of reports produced by Dr Andrew Ellis in 2014 and 2016: 1. As to Dr Ellis' report dated 13 January 2014, which was provided to the Court in 2014, the following summary was provided: Dr Andrew Ellis's report … dated 13 January 2014 identified risk factors for Mr McGuire as including poor coping skills arising from his intellectual disability, lack of stable relationships, impulsivity, historical substance abuse, antisocial personality traits, his history of offending including whilst on conditional liberty, negative attitudes towards his offences and authority, childhood maladjustment, employment problems and poor prior engagement with rehabilitation. However, Dr Ellis noted that Mr McGuire's rehabilitation plan was extensive and individualized, it provided for robust levels of support in decision making, planning, routine activities, accommodation and the moderation of negative effects. Dr Ellis also noted that the monitoring of alcohol and illicit drug consumption provided effective motivation for abstinence. [Emphasis added.] 1. Dr Ellis also provided a report in April 2016 for the MHRT to assess the defendant's risk consequent to his detention in Nepean Hospital (as a result of concerns about elevated risk of reoffending). Dr Ellis re-commenced the defendant on anti-libidinal medication. The MHRT, when summarising Dr Ellis' report, stated that although the defendant did not need to remain at Nepean Hospital, "it was seen as a useful initial placement identifying and setting out community risks in a safe environment… the admission had, according to Dr Ellis, acted to re-orient motivation for participation and rehabilitation, abstinence from substances and medication compliance".

[29]

Incident Report - 24 September 2020

On 25 September 2020, Mr Wu sent a communication to the Department of Health titled: "Information to the Tribunal about [the defendant] … incident dated 24 September 2020". The communication refers to an altercation between the police and the defendant regarding the defendant's conduct toward a young girl at a lunch shop.
Mr Wu provided the following summary of the incident: On 24 September 2020, Mr McGuire's support staff, Mr Earl (cc'd), reported to CSP that the police approach Mr McGuire and said 'stop harassing the young girl at the lunch shop' and 'explained to him that she was scared when you turn up at the shop'. The 'lunch shop' had been the scheduled meeting spot between Mr McGuire and Mr Earl. Mr Earl advised the police that he was Mr McGuire's support staff and provided his contact details to the police. Mr McGuire advised that he would visit that shop to buy lunch. Mr McGuire reported to Mr Earl that he had handed flowers to the female in the matter. To date, we have not received any event number, charge or any further instructions from or interactions with the police.
As to the conduct of CSP after the incident, Mr Wu reported: We have consulted with Mr Earl today to discuss the incident and developed the following response strategies to mitigate risks. Mr Earl advised that he has not observed Mr McGuire to engage in alcohol and illicit substance use or present with signs suggestive of intoxication or being under the influence of substances.
The communication also summarised the response strategies being implemented by the CSP, which included: 1. changing the meeting spot for the defendant's meeting with his support worker; 2. sourcing a suitable relationship councilor/therapist to address areas related to establishing and maintaining relationships, and associated challenges (such as consent, boundaries and unhelpful attitudes); and 3. vigilant monitoring of the defendant's presentation and behaviour by the support worker, as well as reporting to CSP.
It was also noted that CSP would continue to provide information to the MHRT "as appropriate and necessary".
For consideration of the MHRT, Mr Wu stated: CSP respectfully requests that Mr McGuire is provided the opportunity to engage in the above strategies before any action is taken by the Tribunal. It is the opinion of CSP that the above strategies would be helpful in mitigating risks and supporting Mr McGuire to meeting his needs in sustainable ways.

[31]

Incident Report - March 2021

On 29 March 2021, the defendant travelled to Sydney from Quandialla for an appointment with Professor Hayes on 30 March 2021. His transport was facilitated by Ms Gorman. In Sydney, motel accommodation had been arranged.
In the incident report, Ms Gorman reported: 1. Throughout the two days, the defendant made "numerous sexualised comments about women". 2. The defendant "asked me if I could find him 5 girlfriends, I asked what he would do with so many girlfriends and he stated 'you known I'd find em, f…er em, then f..k em' [quote as recorded by Ms Gorman]. I explained to [the defendant] that was not a nice way to talk about women and not appropriate way to speak to me". The defendant "laughed this off stating he was joking". 3. A conversation was had about "employing the service of a professional to give him a massage", which included reference to inappropriate comments he said to his nephews which referred to massages and "other" services. The defendant said "if he gave me $100.00 could I give him the service". After explaining the inappropriateness of the comments, the defendant "laughing this off stat[ed] he was joking which he had done for all sexual comments made". 4. In another conversation the defendant expressed he wanted "to sleep in my motel room. I stated that was inappropriate [and] explain[ed] boundaries again". 5. "I directed a conversation with [the defendant] about what he thought would happen on the trip away. He stated he thought he would have some female company on the drive and in the motel room. I explained to [the defendant] that was not the case and asked if he remembered previous conversations we had about separate rooms and our professional relationship. [He] stated he did but still thought we would sleep together". 6. "On another occasion [the defendant] made a statement about the size of my breasts and stated he 'wouldn't mind doing a bigger woman'". The defendant, again, "laughed this off [and] stat[ed] he was joking".
On 31 March 2021, Ms Gorman had a conversation with Kirsty Courbois about the above behaviours displayed by the defendant. It was noted that Ms Courbois "will be including these behaviours and strategies [Ms Gorman] can use in an Implementation Plan to work with [the defendant] in the future".

[33]

Report to MHRT dated 22 August 2019

On 22 August 2019, Mr Wu produced a report to the MHRT, which was endorsed by Larissa Lawson, Manager at CJ & ISP. The report was produced for the defendant's hearing before the MHRT on 27 August 2019. It aimed to inform the MHRT about changes in the defendant's current situation since the last hearing, provide an opinion regarding his risk and to make recommendations regarding risk manageability.
Under the heading, "Risk Considerations", Mr Wu provided a risk assessment supportive of an overall risk rating of "very low or below average risk rating". In providing that rating, he noted that "there is no zero risk rating". I will now turn to aspects of that assessment.
As to treatment compliance, he reported that the defendant had been mandated to take anti-libidinal medication and had, overall, been compliant and not missed an appointment with his treating psychiatrist without reason in the past year. Whilst it was noted that the defendant expressed a reluctance to attend his appointment and his "participation has been low", Mr Wu reported that "[t]his can be attributable to his limited understanding and insight into the utility of his treatment".
As to protective factors, Mr Wu provided the following opinion as to self-management of risk: Mr McGuire has been reported by staff to demonstrate use of effective risk strategies (e.g., avoids anti-social peers, abstinent from AOD, occupied with scrap metal work) in situations where he might be at risk without prompting by staff. For instance, Mr McGuire has reported to staff that he is aware of the antisocial peers that reside in his local area of Panania and that he doesn't want to be like them. Although Mr McGuire demonstrated positive development in this area, it is important to note that his insight into what constitutes a high risk situation and his understanding of his strategies is also an area that has yet to be thoroughly explored by staff. Mr McGuire will benefit from further assessments in this area. [Emphasis added.]
As to other protective factors, Mr Wu observations included: Impulsivity Based on staff observations and in the domain of his shopping and scrap metal activities, Mr McGuire has been reported to demonstrate forethought (e.g., determining value of material) prior to reacting to situations and his ability to inhibit a reaction when necessary (e.g., not purchasing goods that will likely result in a loss, purchasing sale items or cheapest alternatives where possible). Abstinence of Substance Abuse Mr McGuire does not appear to exhibit interest and does not attempt to access alcohol and illicit substances. Similarly, Mr McGuire expressed interest to separate oneself from those that engage in substance abuse. Mental Health Mr McGuire does not have a mental health issue. Other unique considerations - Personal or Lifestyle Mr McGuire appears to demonstrate genuine interest in achieving his good life goals that run contrary to offending behaviour. For instance, Mr McGuire has a goal for independence in the community and his idle time is managed by his preoccupation with his scrap metal work. To further develop this goal in the positive direction, Mr McGuire is currently engaging in professional driving lessons with a view to independently access scrap metal sites and expand his scope for employment.
In summary, Mr Wu reported that the defendant "presents with a number of dynamic protective factors that may further reduce his risk of reoffending in the community".

[34]

Report to MHRT dated 17 January 2020

On 17 January 2020, Ms Roy produced a report to the MHRT, which was endorsed by Mr Wu. The report was produced for the defendant's review on 4 February 2020. It aimed to inform the MHRT about the defendant's progress since the last hearing on 27 August 2019, indicate his current situation, evaluation his risk and needs with recommendations for his supports in the community.
In addition to reviewing static and dynamic risk factors, Ms Roy identified "protective factors that [were] present and relevant" which may be associated with reduced risk. The relevant passage is extracted below: ● Absence of sexual deviancy and pre-occupation - support staff continue to report that Mr McGuire is not observed to exhibit any behaviour or presentation suggestive of sexual deviancy and preoccupation. This has been a consistent finding in past CJ&ISP risk assessments and reports (Dr Lennings, 2012; Prof Hayes, 2015) that can be interpreted as Mr McGuire's risk having limited to no association with sexual deviancy since his release from custody. ● Self-management of risk - Mr McGuire has demonstrated some awareness of his risk factors related to association with peers of negative influence and alcohol use. Mr McGuire reported to staff that he is aware of negative peers residing near his residence in Panania and would like to transition close to his family and in particular his brother's residence near Young. Mr McGuire indicated that he avoids such individuals by spending time with family, collecting scrap and with support staff in the past. Mr McGuire reported that despite alcohol being present during family gatherings he intentionally chooses not to consume alcohol Support staff report that Mr McGuire has not evidenced any concerns related to alcohol consumption or intoxication. ● Emotional coping ability - Mr McGuire has not been observed to be emotionally reactive, and instead has demonstrated problem-solving approaches to managing issues. Support staff report that Mr McGuire would seek scrap metal work and contact his Trustee at times of financial stress. Reports indicate that Mr McGuire has found it helpful to speak to staff about his daily life stressors and problem-solve situations. This is consistent with his key support workers account, and a key support need that should be maintained. ● Relationships - Mr McGuire demonstrates an emotional connection with his family (i.e., sister, brother and daughter) and this is consistent with his good life goal. Since obtaining his NSW driver licence in later September 2019, Mr McGuire spends the majority of time with his family, thus not being social isolated from his placement at Panania. This is also associated with reduced face-to-face and phone call support from staff. ● Abstinence from substances - inferred from staff report that Mr McGuire has not reported any gambling and drug and alcohol abuse behaviour.
Following a consideration of the static and dynamic risk factors, Ms Roy opined that the defendant's risk, at that time, "falls within the Low risk range for sexual recidivism". She also observed "his risk does not appear to be associated with sexual deviancy and/or preoccupation". Ms Roy considered the defendant's risk "is more related to alcohol misuse to self-regulate due to limited emotional coping skills, association with peers of negative influence and abundance of idle time, which is also complicated by his cognitive impairment" (for example, poor insight, planning, problem solving, vulnerability to peer exploitation).

[35]

Report to MHRT dated 11 August 2020

On 11 August 2020, Ms Roy produced a report to the MHRT, which was endorsed by Mr Wu. The report was produced for the defendant's review on 25 August 2020. It aimed to inform the MHRT about the defendant's progress since the last hearing on 4 February 2020, indicated the current situation regarding re-establishing the support service and evaluate the defendant's risk and needs.
As to a consideration of risk factors, Ms Roy identified the following risk factors: 1. changes in service provision and monitoring related to absence of support staff; 2. client specific knowledge; 3. emotional coping ability; and 4. increased idle time relating to COVID-19 restrictions to community access and services, and absence of support staff to assist the defendant maintain a weekly planner to establish a level of structure and routine.
As to those risk factors, Ms Roy made the following, inter alia, observations: 1. The defendant's transition to reside with his brother in Young "may be associated with increased informal support and access to scrap metal related activities and reduced social isolation and possibly idle time". The defendant "reports that he enjoys working on scrap metal with his brother in the Young area". 2. The defendant has been observed to be "emotionally reactive in response to the current stressors". The stressors noted included "accommodation, support service, quality of life associated with COVID-19 restrictions". However, as to the risk of "emotional coping ability", Ms Roy said "this risk factor's presence is partial and its relevance is more likely associated with increased risk of reactive aggression (verbal aggression) than increased risk of inappropriate sexualized behaviour (eg, sex to cope)". 3. As to the risk factor of "increased idle time", Ms Roy said "[t]his factor's presence is partial and its relevance is unclear given the limitations in data collection". Positive remarks were made as to the defendant's overall maintenance of his usual activities where possible. 4. Whilst noting increased contact with his brother and sister is beneficial to the defendant's goal for family connection, it was observed "the subsequent increased reliance may affect their relationship and the sustainability of their support in the long-term. Outside of his family network, [the defendant] appears socially isolated".

[36]

Report to MHRT dated 17 February 2021

On 17 February 2021, Ms Roy produced a report to the MHRT, which was endorsed by Mr Wu. The report was produced for the defendant's review on 23 February 2021. It aimed to inform the MHRT about the defendant's current support situation, progress and risk considerations. It also made recommendations.
As to service provision and accommodation, Ms Roy reported: 1. Between June and December 2020, there had been a breakdown of support between the CSP and the defendant. 2. From January 2021, that support re-commenced with Ms Gorman being the defendant's support worker. It was noted that correspondence between the defendant and Ms Gorman "suggests a positive progress with rapport and engagement". 3. In August 2020, the defendant had been allocated a behaviour support practitioner from NDIS funded service provider, ORS Group. However, at the time of this report, a behaviour support plan had not been finalised (but the process had commenced). 4. The defendant resides with his brother in Quandialia NSW. 5. In August 2020, the defendant had been billed $6000 for cleaning costs associated with his place at Panania. He is on a repayment plan managed by the NSW Trustee and Guardian. 6. The defendant's support work and support coordinators are "currently assisting [the defendant] to source a suitable long-term accommodation option". 7. There is a planned NDIS plan review in February 2021. It was also noted, prior to that review, there had been an increase in the defendant's funding, which included: 1. increase in support coordinator and specialist support coordinator to assist the defendant to implement his NDIS plan goals and access services; 2. increase in behaviour support specialist funding to develop and implement a behaviour support plan and provide clinical support and/or training to direct support worker(s); 3. funding for speech and occupation therapist assessments; 4. funding to access psychological/counselling services; 5. increase in core support funding for additional support worker hours; and 6. funding for in-home support for domestic cleaner to assist the defendant to maintain his home fortnightly or monthly.
As to compliance to conditional release order, Ms Roy reported: 1. Since the defendant's move to Sydney, contact has been primarily via telephone. It was also noted that whilst face-to-face meetings are presently restricted due to COVID-19, weekly video conferences are held between case manager and the defendant's support worker. Behaviour support practitioner and support coordinator to gather information on the current situation of the defendant. 2. The defendant's daily schedule remains stable. 3. The defendant continued to engage in scrap metal activities, repair/maintain his vehicle/trailer and assist his brother with domestic activities. 4. Random tests for alcohol and other drugs on September 2020 and February 2021 indicate nil detection of such substances. 5. Since the last hearing, there had been no information to suggest that the defendant had been non-compliant with the conditions of his order.
Turning to consideration of risk factors, Ms Roy reported: 1. There was no available information or reports at the time of the CSP report to indicate changes to the defendant's static factors. As such, for the purpose of the CSP report, "his loading on static risk factors has remained the same as last assessment dated May 2018, namely Average risk range on the Static-99R". 2. The defendant may require further support with problem-solving his stressors for improved emotional coping, and interpersonal skills develop for improved management of relationship difficulties. It was noted, in that respect, that the defendant "was recently allocated NDIS funding to access the required services… However, the challenge is how best to develop [the defendant's] motivation, insight and engagement with service providers".

[37]

Report to MHRT dated 9 July 2021

On 9 July 2021, Ms Roy produced a report to the MHRT, which was endorsed by Mr Wu. The report was produced for the defendant's review on 3 August 2021. It aimed to inform the MHRT about the defendant's current support situation, evaluate his current risk and needs and to make recommendations for his current supports in the community.
Ms Roy reported that as per the defendant's conditional release order dated 25 August 2020, the CSP continues to provide the defendant with "complex case management and risk assessment services while he remains a forensic patient under the Tribunal". She noted that should the defendant's forensic patient status discontinue "a referral can be made to CSP for time-limited/interim services".
As to service provision and accommodation, Mr Roy reported: 1. The defendant's NDIS Plan was reviewed on 15 February 2021, which funding enables the defendant to access core supports and capacity building support. 2. The defendant also accesses "mainstream services" that are not funded by NDIS, which include, inter alia, the following: 1. General Physician; 2. Forensic Psychiatrist, Dr O'Dea. Dr O'Dea was appointed under the defendant's condition release order. Due to the defendant's relocation, scheduled meetings have not been possible with support staff. Prior to 31 May 2021, support staff would assist the defendant to attend face-to-face appointments with Dr O'Dea; 3. Office of the Public Guardian; 4. Financial Manager, Anthony Rozario (Office of Trustee and Guardian); 5. Risk Assessment Manager, Mr Wu; 6. CSP Case Manager, Ms Roy (MHRT Case Management); 7. Young Community Mental Health Hospital; and 8. Young Dental Hospital.
Turning to compliance issues, Ms Roy reported: 1. Since the defendant's relocation, his support workers have expressed concerns about the Telstra network in the Quandialla area, which impacts upon their ability to contact the defendant over the phone. There is no other network available in that area. 2. Currently support workers make telephone contact and conduct face-to-face meetings with the defendant 1-2 times per week, respectively. 3. Since the defendant's relocation, she is only able to make phone contact with the defendant. Due to the pandemic, face-to-face meetings are restricted. She last met with the defendant on 31 May 2021. She continues to hold stakeholder meetings with the defendant's support workers, Behaviour Support Consultant, Forensic Psychiatrist and Support Coordinator for discussing any areas of concern and/or to get updates on the defendant's movements, accommodation, medical, dental and financial needs. 4. The defendant's driver's license was reinstated in April 2021. He is now maintaining his usual active lifestyle in scrap metal activities, assisting his brother and/or maintaining activities of daily living such as grocery shopping. 5. Random urine tests for drug and alcohol done in July 2021 came back with "nil detection".
Overall, Ms Roy reported that the defendant had been compliant with his conditional order. She said: As his public case manager, I have noted Mr McGuire has over the years, to quite an extent, proven that he has the capacity to function in the society well and with some assistance from services will continue to make positive progress within his personal and social surroundings.

[38]

Progress Notes

Before the Court was a series of progress notes compiled by the CSP, relating to the defendant, dated between March and July 2021.
On 26 March 2021, the topic of therapeutic intervention planning was addressed by Mr Wu to the various stakeholders providing support to the defendant, including Ms Gorman, Ms Courbois and Ms Roy, with respect to the introduction of a new support provider. Reference was made the following: 1. Ms Gorman's finding that the defendant values his independence, being self-reliant and exhibits a tendency to avoid others. 2. It is "very tricky to build a working relationship with him and introduce new staff/services". 3. The introductions needs to be "carefully planned so as to not reinforce his existing belief about others, which may perpetuate his preference to be alone and distrustful of others".
On 30 March 2021, Ms Gorman provided the following information about the defendant to Mr Wu: 1. Understanding that the defendant is "fiercely independent and not wishing for more support from service". As such, the "benefit to him" of the additional support/service needs to be explained and "he needs time to discuss benefits and to make positive choices for himself". It was noted this may take time. 2. The defendant was approached by someone other than his case manager last week but "I was unable to give him answers" about that person. This situations "stressed" the defendant "as he did not know what it was about". She inquired if this person was "Alicia". 3. "I believe since I commenced [the defendant's] support he had progressed well, moving forward in a positive way and complying to his mandatory conditions set by the Tribunal. I would like to continue this patten with [the defendant] as he is building confidence in himself and the support networks around him."
On 30 March 2021, Mr Wu updated the various stakeholders as to the status of the situation: 1. In light of Ms Gorman's communication about the defendant's recent reaction of "stress" to the idea of a new person being involved with his support/treatment, Mr Wu opined that "reinforces our understanding about his approach to meeting new people". As such, he advised that "the flooding of new people will likely trigger him to further push people away. This may also impact his relationship with current supports". 2. A strategy was devised, which was to be carried out by Ms Gorman. Prior to any introduction, she will communicate with the defendant about who this new person/service is and what will be happening, together with explaining the defendant's options with respect to the same.
On 9 April 2021, Mr Wu wrote to the stakeholders within the defendant's support team. The update referred to recent incident reports that were being analysed in order to determine any triggers. Mr Wu identified the following, inter alia, items as possibilities: 1. social isolation and feelings of loneliness; 2. increased stressors from attending assessment; and 3. increased idle time and boredom from not being able to drive and engage in scrap metal work.
On 16 April 2021, a communication was sent from Mr Wu to the Ministry of Health. Referring to the incident reports produced with respect to the defendant, he reported "there appears to be an escalation of risk towards the support worker". Mr Wu summarised the behaviour supportive of that conclusion: 1. the inappropriately sexualised comments about and towards the support worker; 2. persistent attempts to obtain the support workers personal information; and 3. possibly seeking opportunity to be alone and in a secluded space with the support worker.
As a result of those incidents, the relevant support worker ceased one-on-one face-to-face meetings with the defendant, save for telephone support. Additionally, future face-to-face meetings are to occur in the company of another support worker.
On 10 May 2021, Ms Gorman noted that Dr O'Dea directed the defendant to take medication "with the effect of managing his behaviour and risks". That direction was described as "a risk management strategy as well as a form of restrictive practice".
On 30 May 2021, Ms Roy provided an update to Ms Gorman, copying in Mr Wu, with respect to Dr O'Dea and the implementation of treatment plan. It was noted that Dr O'Dea would be contacting the defendant to obtain his consent for the plan.

[40]

Behaviour Support Services

An overview of the Behaviour Support Services prepared for the defendant was provided by Ms Cari, Provisional Psychologist and Behaviour Support Practitioner employed at ORS. This service, together with the Behaviour Support Plan set out below, is provided under the defendant's NDIS Plan.
The document, relevantly, noted the following: 1. The defendant does not wish to meet with a Behaviour Support Practitioner and prefers the service to be provided via his current support workers. As such, Ms Cari has never met with the defendant. Instead, her services include: "fortnightly consultations with [the defendant's] Support Workers, Jeanette Gorman and Rick Groth, [and] the development of a Behaviour Support Plan". Ms Cari is also involved in monthly case conferences with the defendant's CSP staff and support staff. 2. Ms Cari identified the primary challenging behaviours being focused on included the defendant's refusal to engage with services/support, and his inappropriate sexualising comments and inappropriateness towards females. 3. Four strategies were identified and discussed: 1. developing rapport and positive working relationships; 2. offering the defendant choices and supporting him with improving his decision making; 3. increasing his motivation to participate in support; and 4. reiterating and reinforcing appropriate boundaries. 1. As to the reiteration and reinforcement of appropriate boundaries, Ms Cari noted the following: Herbert lacks an understanding of appropriate boundaries with female supports e.g. a female Support Worker/Psychologist is not someone he should consider pursuing romantically/sexually. It was decided that this issue should be addressed in psychotherapy by a Forensic Psychologist, however, support staff are reinforcing boundaries with Herbert and supporting him to learn what a professional relationship entails i.e. "Herbert, we have a professional working relationship, which means that our personal lives are not our focus, and I am here to support you with ... ". Additionally, strategies such as deflecting personal questions i.e. "l'm not here to talk about myself Hebert, I'm here to focus on what we're doing to support you" have also been discussed/utilised. 1. As to the defendant's refusal of supports and his inappropriate sexualising comments towards (and ideas about) Ms Gorman, Ms Cari identified those factors as "barriers to implementing support". She opined: Herbert is still reluctant to engage in support and still does not appear to understand appropriate boundaries regarding working with females. I believe that Herbert is still pre-contemplative about pursuing change, and lacks insight into his support needs. Thus, we are still focussing [sic] and working on developing rapport, attending to and maintaining positive working relationships, and increasing Herbert's motivation to engage.

[41]

Behaviour Support Plan

On 15 June 2021, a Behaviour Support Plan was prepared for the defendant by the ORS Group ("the Plan"). The defendant was referred to the Plan by Katie Hancock, Specialist Support Coordinator at Ability Options. The Plan was implemented by Local Health Services Australia ("LHSA"). Ms Cari was noted as the defendant's Behaviour Support Practitioner.
The reason for the assessment was to provide guidelines for managing the defendant's challenging behaviours, which included: 1. refusing/avoiding support or hesitancy to engage in support; 2. making sexualising comments/inappropriateness towards women; 3. verbal aggression; 4. physical aggression/violence towards others; 5. impulsivity, impulsive decision making; and 6. dangerous driving.
The Plan noted: In May 2021, 2:1 support was arranged for Herbert. This was instigated because Herbert had been asking Jeanette about her personal information, made inappropriate comments about her appearance, and asked her for sexual favours. Arrangements were made for new Support Worker Rick Groth to attend appointments with Jeanette. Rick was also consulted during the development of this report.
The Plan also had regard to various incident reports produced by CSP spanning from 2015-2018. Those incidents reported were summarised as follows: gambling, attempting to avoid services, making sexualising comments about women including Support Workers, sexualised comments and behaviours towards his daughter, i.e spanking her and commenting on her breasts, and failing to take his medication. Particular mention was also made of the incident report completed by Ms Gorman relating to conduct on 29 and 30 March 2021 (summarised earlier in this judgment).
Whilst noting the above instances, the author of the Plan also recorded: …Herbert does not appear to lack remorse, as he has apologised to his Support Worker Jeanette about the sexualising/inappropriate comments he made to her. Herbert's impulsivity may also be a result of his intellectual disability, as he appears to struggle to consider the ramifications or long-term outcomes of his actions.
As to the defendant's diagnosis of alcohol use disorder, the Plan noted: Over the past 3 years, Herbert's AOD (alcohol and other drug) tests have been negative. Herbert has recently expressed that he does not like to be in the company of others whilst they're consuming alcohol. However, monitoring Herbert's alcohol use continues to be important as this has been identified as a risk factor that may increase the likelihood of reoffending. [Emphasis added.]
The Plan also included a summary of the defendant's present treatment: During 2020, Herbert's supervision and treatment had been interrupted by COVID 19 restrictions. Herbert's hesitancy to engage, and the lacking rapport between Herbert and his former Support Worker Michael were also barriers to consistent treatment. Herbert may lack an understanding of why he is required to be on a supervision order, and have trouble understanding the order conditions and the ramifications of not compliance. Herbert's Support Workers have stated that Herbert's family members have voiced grievances around Herbert being on an order when he has already served a prison sentence. These comments may contribute to or influence Herbert to dwell on feeling unjustly treated. Herbert has recently been recommended Risperidone by his treating Forensic Psychiatrist Dr. O'Dea. He has also been recommended that Herbert commence sessions with Forensic Psychologist Carollyne Youssef regarding intervention and support with managing his diagnoses and challenging behaviours. In the past, Herbert has taken anti-libidinal medication, due to his history of sexual offending, however, his compliance with taking this medication was poor.
A concern was also raised with respect to the defendant's transportation: As mentioned, Herbert can drive himself where he wants to go, however, he has repeatedly received speeding fines and has been charged with numerous driving offenses in the past. Earlier this year, Herbert's license had been suspended for 3 months. He has since received further fines e.g. for driving an unregistered vehicle. He also does not have a working speedometer in his car and does not recognise the priority of having this. Furthermore, Herbert's vehicles often need repairing and thus may not be roadworthy or safe.
In previous reports, the defendant's goals included: 1. moving closer to family; 2. getting his licence and driving; 3. having his own place; 4. abstaining from consuming drugs and alcohol and gambling; and 5. finding a partner.
The Plan included a functional behaviour assessment of two behaviours of concern: 1. refusing the assistance of supports and hesitancy to engage in support; and 2. making sexualising comments and inappropriateness towards women.
As to the frequency of the latter, it was noted that since the incident reported by Ms Gorman in March 2021, "[the defendant] has not made further comments towards Jeanette and has apologised to Jeanette for this behaviour".
For the purpose of the Plan, as to those behaviours, three goals were identified: 1. to improve the defendant's engagement with support within the next 12 months; 2. to reduce the frequency and intensity of the defendant's sexualising comments and inappropriate behaviour; and 3. to improve the defendant's independent living skills.

[46]

The 2017 EO Decision

On 23 November 2017, Bellew J made the following orders (at [77]): (1) Pursuant to clause 1 of Schedule 1 of the Mental Health Forensic Provisions Act 1990 (NSW), the defendant is subject to an extension order for a period of one year from today. (2) I direct the Registrar, pursuant to Clause 7(3) of Schedule 1 of the Mental Health (Forensic Provisions) Act 1990 (NSW), to notify the Mental Health Review Tribunal of Order (1).
At the outset of the 2017 EO decision, in the context of summarising the respective cases of the parties, Bellew J said (at [23]-[24]): [23] The evidence tends to establish that over a period of time there has been a reduction in the defendant's assessed risk. However, it is the plaintiff's position that this is a result of the regime imposed upon him as a continuing forensic patient under the monitoring of the MHRT. As a forensic patient he is required to take anti-libidinal and anti-alcohol medication, and accept the support of CJP and others. It is the plaintiff's position that anti-libidinal medication represents a central component of managing the defendant's risk. Counsel for the plaintiff submitted that the evidence tends to establish that if the defendant was not compelled to take that medication by the MHRT, he would cease to do so. It is the plaintiff's position that there is no indication that NCAT would make such an order under the Guardianship Act and that accordingly there continues to be an unacceptable risk of the defendant causing serious harm to others if he ceases to be a forensic patient, and that such risk cannot be adequately managed by less restrictive options. [24] Counsel for the defendant frankly conceded that the evidence before the court was capable of establishing that the defendant continues to be an unacceptable risk of causing harm to others, and that such risk cannot be adequately managed by less restrictive options. It was the defendant's position that if I were to come to that view following an independent assessment of the evidence, any order should not be of a duration in excess of one year.
His Honour made the following, relevant, findings (at [71]-[73]): [71] In my view, the weight of the medical evidence is overwhelmingly in support of the conclusion that the defendant continues to pose an unacceptable risk of causing serious harm to others if he ceases to be a forensic patient. On the whole of the evidence, that risk, in my view, is a moderate one. [72] I accept that the breaches in 2016 were, in relative terms, towards the lower end of the scale. However, they nonetheless demonstrate that the defendant, as a number of the experts have pointed out, continues to be in need of a structured and supervised program in which his adherence to a regime of anti-libidinal and anti-alcohol craving medication can be properly monitored. Bearing in mind the opinions of Dr Ellis, I am not satisfied that the defendant would otherwise adhere to that regime. [73] I accept that the index offences occurred a number of years ago. However, two observations may be made about that circumstance. Firstly, as I have pointed out, those offences do not constitute the entirety of the defendant's criminal history. That history includes violent offending. Secondly, as a matter of common sense, it is reasonable to conclude that the absence of any significant offending since that time has been because of the structured regime which has been put in place. It is of particular significance that Dr Eagle, as well as Mr Sheehan, thought that the importance of ongoing monitoring of the defendant's regime of medication was best addressed by the making of an extension order.

[47]

The 2019 EO Decision

As earlier mentioned, on 13 February 2019, Wright J made the following orders (at [138]): (1) Pursuant to cl 1 of Sch 1 of the Mental Health (Forensic Provisions) Act 1990 (NSW), the defendant is subject to an extension order for a period of 2 years and 6 months expiring on 13 August 2021. (2) I direct the Registrar, pursuant to cl 7(3) of Sch 1 of the Mental Health (Forensic Provisions) Act 1990 (NSW), to notify the Mental Health Review Tribunal of Order (1).
Wright J found the defendant's history of sex offending, driving related offence history, episodes of violence and breaches of an AVO all relevant to assessing whether the defendant posed a risk to the safety of the community: at [59] and [121].
As mentioned, the expert reports of both Dr Eagle and Ms Howell were before Wright J. I have earlier set out his Honour's views in that respect. In light of the expert evidence before the Court, Wright J held (at [120]): [120] The evidence of Dr Eagle, Ms Howell, and Dr Furst also establishes that if the defendant were not a forensic patient there is a real likelihood that he would not take anti-libidinal medication, would not accept treatment, might not accept support, and might change his current lifestyle arrangements, especially if he was successful in obtaining his driver's licence. In these circumstances, the risk of harm to the community would be significantly raised.
In the 2019 EO decision, Wright J also considered two incidents that occurred since the production of the expert reports and at a time when the defendant's dose of androcur had been reduced. His Honour summarised the incidents as follows (at [101]-[104]): [101] The first occurred on 26 June 2018 and involved problematic sexualised behaviour. The incident report, prepared by the female support worker involved, recorded the following: "while in the car with [the defendant] he was listening to the radio. On the radio they were talking about men being masculine. For some reason [the defendant] heard men masturbating. [The defendant] was asking me if that's what they were talking about, and why they were talking about men ejaculating. I told [the defendant] that wasn't what they were talking about and explained to him what masculine meant. [The defendant] then started talking about his scrap metal. Then while we were driving [the defendant] started talking about other workers at New Horizon, he also brought up that drivers could take him to the brothel. He kept talking about a brothel but nothing he was saying made much sense. Lastly, just before I dropped [the defendant] off at home [the defendant] told me he thought he had a chance being with me. Straightaway I cut him off and told him definitely not. He laughed it off. As I pulled up outside of his apartment, [the defendant] said to me or [sic] not going to help me with my shopping. I told him I would help him carry it to the front step of his apartment but I was not coming into his house. He then said to me no that is fine he will take his shopping himself. As he hopped out of the car he told me no one ever comes up into his apartment to keep him company (sort of like an invite to go up]. I told him I was not coming inside. He told me that's okay I will see you next time. I [the defendants) apartment as soon as he got everything out of the car. Provided [the defendant] with his shopping and did not enter [the defendants] property, support suspended due to nature of conversation and safety risks…." [102] Under the heading "What actions have been taken?", the incident report stated: "Inform [the defendant] that support will not be provided and risk [the defendant] of breach if no support is rendered you to inappropriate conduct. Remind staff to be vigilant with (the defendant) when supporting him, and not to enter his property you to safety risks. Monitor level of engagement and complete incident reports." [103] This was not the only time that the defendant was noted to have raised the possibility of going to a brothel. In a client risk assessment by New Horizons of 5 July 2018, the incident on 26 June was noted and the following comment made: "Since the reduction of Androcur from 100 mg to 50 mg, [the defendant] has been informing staff that he would like to seek the service of a professional sex worker." [104] There was a further incident on 7 August 2016, which involved aggressive behaviour. The incident report concerning that incident recorded: "09:00 CSW [the case worker] arrived at HM's [the defendant's] residence. 09:15 CSW presented a letter of consent from the Public Guardian to HM and explained the content of this letter to HM. During our conversation CSW also expressed the potential benefits for HM to attend this assessment with Dr Ellis (Forensic Psychiatrist) on 10/08/18. HM acknowledged that he understood the reason of the requested assessment with Dr Ellis. HM responded: "Let me think about it". 10:00 CSW supported HM to Revesby, where HM conducted his banking. 11:30 CSW supported HM to a private residence at Picnic Point (58 Austin Boulevard). HM intended to meet with an elderly lady to purchase some items of her. Since the lady wasn't at home at arrival CSW ask HM if he has made a decision in regards to his Assessment with Dr Ellis on 10/08/18, because CSW need to email Todd Davis (HM's Layer) and inform of HM's decision. Unfortunately, Herbert declined to attend any appointment with Dr Ellis. 12:00 Whilst CSW and HM were waiting in the company vehicle, CSW opened his Lap-top to send an email to Todd Davis. CSW then reminded HM of his appointment with Mathew Gullotta on 14/08/18 at 10:00. This information has resulted in HM escalating and screaming: "You Cunts do nothing but making appointments for me to see the bloody Doctors I hate and to see the Bastard with the Ponytail in Parramatta. Than HM made a fist with his right hand and hit the dashboard in front of him as hard as he possibly could. HM turned towards CSW with both fists raised and screamed: "You fucking cunt!!" CSW removed the car key, opened the driver's door and stepped out. CSW informed HM whilst standing outside: "We do not make appointments; we just deliver the message to you. I don't tolerate such an aggressive behaviour and hereby terminate your support. I like you to step out of the car, since I do not feel safe driving you further. HM responded: "I'm not getting out; you can drive me home!" CSW answered: "Please, don't let me make a phone call to have you removed from the vehicle" HM stepped out of the vehicle and screamed: "Don't you ever come back, you fucking bastard!!" CSW drove off and pulled over when out of reach, called TL SP and informed her of the situation. CSW pulled out the car keys out and stepped out of the vehicle. Afterwards, CSW called TL SP and informed her of the Termination of support."
As to those incidents, Wright J stated (at [105]-[107]): [105] These incidents are significant as they occurred after Dr O'Dea had reduced the defendant's dose of anti-libidinal medication, Androcur. Dr Eagle does not appear to have been aware of them. Her opinions and conclusions were apparently based on the assumption set out in her report at par 100.3.1.3 as follows: "[The defendant] has also had a reduction in his prescribed dose of Androcur (cyproterone acetate) without any evident emergence of increased problematic sexual behaviours or violent behaviours. …" [106] Since the defendant's sexual offending was motivated by a desire to meet his sexual needs and his underlying disinhibition arising from his intellectual disability, combined with the further disinhibition from alcohol, these incidents in the latter half of 2018, after his anti-libidinal medication was reduced, give rise to significant concern. They indicate that a management regime that did not involve mandated regular testing for alcohol and drugs and taking of an anti-libidinal medication would be unlikely to manage adequately the defendant's risk of sexual or violent reoffending. [107] If, as has been suggested in the MHRT's determination of 26 November 2018 to adjourn a further review, the defendant is to undertake a trial of ceasing to take anti-libidinal medication, it appears to me to be necessary to ensure that he is the subject of close supervision and intensive support during the trial. It would also be important, during such a trial, to have a means of removing the defendant from the community, if the risk of harm warranted such action. [Emphasis added.]
As to the defendant's abstinence from alcohol "for several years", his Honour found (at [111]): [111] … the defendant's abstinence from alcohol while being tested and monitored does not establish that he would not consume alcohol if he were not a forensic patient and not subject to such supervision. Alcohol played a significant part in the Index Offences and in aspects of the defendant's other offending. It remains a significant risk factor if the defendant ceases to be a forensic patient.
His Honour also made findings with respect to the defendant's integration into the community and the "therapeutic effect of the scrap metal work" upon his risk (at [114]-[115]): [114] Next, the defendant submitted that his successful involvement and integration into the community and lack of risk caused in this regard were also bases for finding no unacceptable risk. The only evidence of the defendant's involvement and integration into the community relates to periods when he has been a forensic patient and subject to orders and supervision. In my view, this does not establish that there would be likely to be little or no risk, if he were not a forensic patient. The evidence of the psychiatrists and the psychologist does not support this submission. [115] The defendant also submitted that the benefits, including the therapeutic effect of the scrap metal work, referred to as a protective factor in some of the dynamic risk assessments, meant that he should not be found to pose an unacceptable risk. The support which the defendant receives as a forensic patient allows him to carry on his scrap metal collecting. It is difficult to assess what he would do if he were not a forensic patient. While it is accepted that the scrap metal work has some therapeutic benefit, it does not follow that the defendant would not pose an unacceptable risk if he continued his scrap metal activities while not being a forensic patient, given the other factors and circumstances in the present case.
As to the views of the court imposing the limiting term or existing EO, counsel for the defendant advanced the following submissions: 76. Campbell J was of the view in 2016 that, despite an instance of non-compliance with the MHRT's orders, the defendant "has indeed made excellent progress whilst subject to the supervision of the Tribunal." Bellew J stated in 2017 that "[t]he evidence tends to establish that over a period of time there has been a reduction in the defendant's assessed risk." 77. The progress which the defendant has made, and the diminution of any risk he poses, have continued. 78. Part of the reasons given by Wright J for making an extension order in 2019 was that the defendant was to undertake a trial of ceasing to take anti-libidinal medication, and it was "necessary to ensure that he is the subject of close supervision and intensive support during the trial." That is no longer a consideration. 79. The circumstances are now such that an extension order is no longer justified nor appropriate.
Whilst I will return to my conclusion as to the appropriateness of the EO in the circumstances of the defendant following a consideration of all s 127 factors, in light of the submissions advanced by the defendant, the following observations may be made with respect to the judgments of Wright and Bellew JJ, respectively: 1. It is true that Bellew J observed a reduction in the defendant's assessed risk overtime (at [23]), however, his Honour also found the weight of the medical evidence was "overwhelmingly in support of the conclusion that the defendant continues to pose an unacceptable risk of causing serious harm to others if he ceases to be a forensic patient" and that, on the whole of the evidence, that risk was "a moderate one" (at [71]). It may also be noted, counsel for the defendant in the proceedings before Bellew J conceded that the threshold vis-à-vis unacceptable risk (including the unavailability of adequate less restrictive means of management of the risk) had been met and that an EO should be made. 2. As to the Wright J's finding vis-à-vis the appropriateness of an EO for the duration of the defendant undertaking a trial of ceasing to take anti-libidinal medication, it is true that his Honour had regard to the unanimous opinion of that experts that such a factor "significantly raised" the risk of harm to the community. However, the Court's assessment of risk was also informed by the defendant's history of sex offending, driving related offence history, episodes of violence and breaches of an AVO: at [59] and [121]. The defendant's present treatment regime remains relevant but in conjunction with each of the s 127(2) factors; the absence of a recent change and/or trial with respect to his treatment does not in and of itself mitigate against a finding of unacceptable risk.

[48]

Safety of the community

Section 127(2)(a) provides that the safety of the community is a relevant consideration of the Court when determining whether an EO should be granted. In considering this factor, attention may be given to the defendant's history of sex and violent offending set out earlier in this judgment. The plaintiff contended that the defendant's criminal history, in that respect, is of "significant concern" and that an EO is, accordingly, "protective".
Counsel for the defendant contended that, whilst an EO may be "protective in that regard", it is not a proper basis upon which to make an EO. The following submissions were advanced in support of that contention: 74. The safety of the community can be protected "to an adequate or reasonable degree" if the order is not made (Attorney General of New South Wales v McGuire (No 2) [2014] NSWSC 288 at [59]). That is apparent from the defendant's conduct in the community since 2013, where he has had plenty of opportunities to offend if he had chosen to do so. 75. It was a condition of the MHRT making a conditional release order in 2013, and further conditional release orders since then, that "the safety of the patient or any member of the public will not be seriously endangered by the patient's release" (Mental Health (Forensic Provisions) Act 1990, s 43). The conditions that the Tribunal has imposed have decreased in quantity and coerciveness over time. The Court may be confident now, having regard to the defendant's conduct in the community in the eight years since his release, that the defendant does not pose a threat to the safety of the community. In any event, the test the Court has to apply is more stringent. It has to be satisfied to a high degree of probability, assuming the factual allegations in the supporting material to be proved, that the defendant poses an unacceptable risk of causing serious harm to others if an extension order is not made. The factual allegations in the supporting material would not satisfy the Court that the defendant poses such a risk.
For the reasons I will further develop below, I do not accept the submission of the defendant that the absence of serious offending in the community since 2013 simpliciter sustains a conclusion that the defendant, absent an EO, poses no risk of harm to the community. The period of absence from serious offending corresponds, in substantial measure, with the period in which the applicant was under supervision. Further, I accept the submission of the plaintiff that the defendant's criminal history, nonetheless, remains relevant to this assessment, which is considered in combination with the effect of the factors under s 127(2).

[49]

The Plaintiff

The plaintiff contended that the Court can be satisfied that the preliminary hearing test has been met based upon six primary contentions: 1. The defendant's intellectual disability means he requires assistance with living in the community. When those support structures are absent, the lack of daily routine and instability in his life elevates his risk of relapse to alcohol and his risk of sexual or physical violence. 2. The defendant's intellectual disability and anti-social traits suggests that the defendant lacks the capacity for moral reasoning, and problem solving. The defendant has borderline verbal IQ and his risk factors include reacting emotionally and aggressively to stressors. 3. The defendant's intellectual disability means he misreads cues from women and responds inappropriately. 4. The likelihood of these risks eventuating without support structures is evidenced by the defendant's criminal history. The defendant abused alcohol and committed serious sex offences and violent offences in such circumstances. 5. Other than the defendant's family, the defendant does not have relationships as a protective factor in his life. Any deterioration in family relationships could readily elevate the defendant's risks. 6. Professor Hayes opined that if the defendant ceases to be a forensic patient then he poses a risk of serious harm to others. (For ease of reference, each contention shall hereinafter be referred to as the "first contention" through to the "sixth contention" and, collectively, as "the primary contentions").
In support of the primary contentions the plaintiff relied upon the following conclusions said to be available in light of the material before the Court: 1. The experts opined that decreases in support and supervision would elevate the defendant's risk of causing serious harm to others. 2. The nature of the defendant's intellectual disability means he responds to treatment when directed to adhere to conditions and knows there are consequences for breaching them (an intrinsic measure of motivation for the defendant); put simply, his risks are managed by rules. The MHRT is the effective conduit for that oversight. 3. The defendant lacks the capability to reason right from wrong and lacks insight into consequences of his behaviour. The defendant's antisocial traits elevates the risk of reoffending as he may react aggressively and emotionally to external stressors. The defendant may have an unaddressed sexual abuse history and, although he heavily relies on family relationships, he is otherwise isolated. 4. The defendant is somewhat nomadic at the moment although living with his brother, and he was homeless when he committed the index offence. 5. The defendant's risk must be considered in the absence of an EO and the experts all opined that, absent these structures, there is a significant concern of relapse to alcohol and an inability to live in the community without assistance which would have the consequence of elevating his risks. 6. The defendant's family is a protective factor in his life but should that deteriorate, and given the defendant does not have stable accommodation, the Court may readily find his dynamic risk factors would elevate. This suggests the defendant poses an unacceptable risk of causing serious harm to others. 7. As to the management of risk, the material before the Court points strongly toward the success of the EO managing the defendant's risk. It has enabled him to live in the community but address risk and motivate the defendant to remain abstinent from alcohol. 8. As the defendant is intellectually impaired, he cannot be managed under the MHA. 9. A behaviour management plan under the NDIS has the capacity to manage some of the defendant's risks but it does not have the ability to monitor the defendant's alcohol use and to readily respond to deterioration in the defendant's circumstances or mental health. The EO has in the past readily responded to the defendant's elevated risks which has ensured the protection of the community. 10. The NDIS therefore is too unpredictable a measure, governed by funding, to be the only way of managing the defendant's risk. Further it was submitted the Court cannot be confident that the NDIS could provide ongoing support or management of the defendant. The NDIS is dependent on funding and not guided by public interest oversight to the extent that the MHRT provides. 11. Equally, a Guardianship Order cannot provide the support, treatment needs and monitoring of alcohol and illicit substance use that the EO provides to manage the defendant's risk.

[50]

The Defendant

In lengthy written submissions the defendant provided contentions as to why the plaintiff has not established that the defendant poses an unacceptable risk, in particular, disputing the six contentions advanced by the plaintiff (those submissions appear at paras 41-70). Those submissions were also supplemented with oral submissions at the preliminary hearing. In summary, in reply to the primary contentions advanced by the plaintiff, the defendant submitted: 1. In answer to the plaintiff's first contention vis-à-vis the intellectual disability of the defendant and its connection to risk, reliance was placed upon evidence of periods of time in which the defendant's support structures were either absent or diminished and the defendant did not relapse into alcohol use or engage in sexual or physical violence. Reference was made two examples: 1. New Horizons ceased to provide the defendant with support in May 2020. From 5 August 2020, when the defendant resided with his brother in Young, "the support services he had in Sydney were not at that time established in Young," but there was no suggestion that he was non-compliant with the conditions of his order. Although he "came to be disconnected" from New Horizons (his support service), he did not reoffend. 2. Due to COVID-19, the defendant's meetings with his case manager had been occurring by telephone for some time in August 2020. At this time, he had not met with his psychiatrist since October 2019. None of these factors led to problematic behaviour. On the contrary, the defendant strengthened his relationship with his brother, continued collecting scrap metal, obtained his driving licence (albeit that it was also suspended for three months), bought a car and purchased a property. 1. As to the second contention, namely, the suggested connection between the defendant's intellectual disability, together with anti-social traits, that he lacks "moral reasoning" and problem solving skills, the defendant's intellectual disability may impact to some extent upon his moral reasoning, but there is no evidence that it makes him incapable of reasoning morally. This was supported by the following further submissions: 1. His borderline verbal IQ does not create a risk of reoffending. It may be accepted that reacting emotionally and aggressively to stressors is a risk factor. However, he has not reacted in this way whilst living in the community independently. That is highly significant. 2. Reliance was also placed upon evidence that his emotional regulation has improved: 1. Professor Hayes considered that the defendant has "reasonable emotional stability" and that this is a "risk-decreasing" factor for him. 2. In January 2020, Communities and Justice considered that the defendant "has not been observed to be emotionally reactive, and instead has demonstrated problem-solving approaches to managing issues". 3. Dr Eagle commented, in 2019 (having prepared reports about the defendant in 2016 and 2017) that he "displayed better control of his emotional responses and frustration and did not engage in any outbursts during the interview, as he had done previously". 4. Dr Eagle also referred to an incident where the defendant broke up a fight involving his brother, who was consuming alcohol and gambling on power machines. The defendant sustained injuries including a possible broken nose. Nevertheless, he "was not reported to have retaliated or engaged in aggression during the fight" and Dr Eagle considered that it was "to his credit he did not consume alcohol or become aggressive." 5. One of the defendant's goals, in his NDIS Plan, is that he "would like to learn to manage my negative emotions with the support of a Multidisciplinary Allied health support team." Funding has been provided for services to help him with this. 6. In his draft case plan of September 2020, the defendant identified one of his goals as being to receive counselling in order to develop self-esteem and to manage his emotional regulation. It was contended that the support structures currently in place are assisting him with that goal. 1. The defendant's need for assistance with emotional regulation does not, however, indicate that he poses a risk of causing serious harm to others, in circumstances where he has not caused harm to others for many years, whilst living independently in the community. 2. Subsequently at the preliminary hearing, counsel for the defendant made reference to Professor Hayes' statement in the RAR that the defendant is "generally regretful" towards his past offending and, in particular, that he understands repeating the behaviour will result in deprivation of liberty and potentially damage his relationship with his daughter. Whilst this might not equate to a level of moral reasoning that appreciates the wrongness of past behaviour, it is still relevant top risk, namely, his intention to not reoffend. 1. Turning to the third contention, that the defendant's intellectual disability means he misreads cues from women and responds inappropriately, the following was submitted: 58. This may be a reference to Professor Hayes' comment, in her report, that "[w]hen asked about his attitude towards women, he made an indirect and somewhat incomprehensible remark about Ms Gorman being 'a woman at the other end of the motel; ... if she'd wanted to', and then stopped abruptly before rambling onto another topic." Ms Gorman is his caseworker. 59. Whilst the remark the defendant made to Ms Gorman is inappropriate, it is significant that the defendant qualified his implied proposal with the words "if she'd wanted to." It is very unclear from the defendant's reported words whilst "rambling," whether he was contemplating sexual intercourse with Ms Gorman, or something else. The remark was, as Professor Hayes commented, "incomprehensible." The words "if she'd wanted to" make it clear, however, that whatever he was contemplating was contingent upon Ms Gorman's consent. 60. The plaintiff may also be referring to the "incident of concern" which occurred in June 2018, when the defendant tried to invite a female support worker into his home. Wright J quoted from an incident report made by the female support worker involved in his judgment in 2019. Her report is as follows: Lastly, just before I dropped [the defendant] off at home [the defendant] told me he thought he had a chance being with me. Straightaway I cut him off and told him definitely not. He laughed it off. As I pulled up outside of his apartment, [the defendant] said to me or not going to help me with my shopping. I told him I would help him carry it to the front step of his apartment but I was not coming into his house. He then said to me no that is fine he will take his shopping himself. As he hopped out of the car he told me no one ever comes up into his apartment to keep him company (sort of like an invite to go up]. I told him I was not coming inside. He told me that's okay I will see you next time. I [the defendants] apartment as soon as he got everything out of the car. 61. This incident shows that the defendant made remarks which were inappropriate in the context that they were made to his case worker. However, it also shows that his behaviour has changed since the index offences. He told the case worker that it was "fine" when she said she did not want to come into his house, and, when she repeated this, said "that's okay." That is, the defendant accepted it when the case worker rejected his advances and did not do anything to force himself on her or to try to persuade her to change her mind. 62. Neither incident demonstrates that the defendant poses a risk to women of serious harm. What is most significant is that, whilst the defendant may occasionally make inappropriate comments, he has not committed any act of sexual violence since he committed the index offences. The comments he made may simply reflect his own feelings and hopes for intimacy and female company. [Footnotes omitted.] 1. At the preliminary hearing, further submissions were advanced with respect to third contention: 1. As to the incident with Ms Gorman, it was submitted that whilst the incident report reveals that Ms Gorman was concerned about the comments, it is also evident that she did not feel that she was at such risk that she could not work with him in the future. The defendant has also since apologised to Ms Gorman. 2. Further, whilst the records reveal the defendant has been making sexualised commence since at least 2015, "there has been no incidents where he has attempted to force a woman into any kind of sexual relationship or force himself on any woman". Thus, "although he is struggling with understanding boundaries, he certainly appears to be clear on the fact that he needs consent before engaging in any sexual activity with women or with anyone". It was submitted that his difficulty distinguishing between a professional and personal relationship is no doubt a function of his intellectual limitations. However, in light of the lengthy period of time that has passed since his last sexual offence, "it doesn't follow from that that there is an increased risk that he would reoffend". 1. Additionally, whilst acknowledging the sexualised comments made, counsel for the defendant placed significant reliance upon the following: 1. The plethora of protective factors, including improving his relationship with his family and establishing a business in buying and selling scrap metal, operating at the present time. Further, the defendant has set and achieved goals. He has secured accommodation closer to family, had his license re-instated and has abstained from alcohol and drugs. 2. The description by Ms Gorman of the defendant being "fiercely independent". 3. As to the defendant's ability to exhibit control, reference was made to a fight that occurred in a pub in 2013. It was submitted: "his role in that was not to drink even though he was in a presumably a pub, an establishment where his brother was drinking, and he broke up the fight rather than getting involved in it and he didn't retaliate or get into any aggression even though he might have broken his nose. He was certainly injured. So that shows a significant amount of control which would suggest at least he is unlikely to behave violently". 4. Elements of the NDIS Plan, which may operate independent of an EO, were highlighted. In particular the report by Ms Cari. This is significant, it was submitted, because through the NDIS, "there are service providers who are working on those inappropriate comments and inappropriate behaviour towards women with the defendant and finding strategies to help him understand they are inappropriate and to behave differently". This is evident in the Behaviour Support Services material and Behaviour Support Plan (extracted earlier in this judgment). 5. Returning to the 2016 and 2017 EO decisions, it was submitted: I would suggest is that, looking at those three judgments, that there has been recognition, probably more so by Campbell and Bellew JJ, that the defendant has been progressing towards a lower risk category and that part of the need in the past for an extension order has been so as to ensure that he takes his medication or that when he was in the trial period of not having the medication, that he was supervised. But we are now in a position, of course, where he's not been on the medication for I think three years; over three years in the case of alcohol and over two years in the case of the anti libidinal medication and there has been no offending in that time. So the Court would be, in my submission, more confident now that any risk that he might have posed whilst that medication was being reduced or taken away altogether is now minimal. 1. Reliance was also placed upon the positive observations made by Ms Roy and Mr Wu in the CSP Reports to the MHRT (which have been earlier extracted in this judgment) with respect to the defendant's use of effective risk management strategies without prompting and the several protective factors identified. 2. The Court can have regard to the fact a referral may be made to the CSP for the defendant to continue as a client in the event his forensic patient status expires. 1. As to the fourth contention, reference was made to the fact that the defendant's last violent offence occurred about 14 years ago and the index offences occurred over 15 years ago. Since the defendant committed those offences, he has given up alcohol. He has also recognised that drinking alcohol detracts from the independence he wants. Further, he has many support structures in place which are not dependent upon his status as a forensic patient. 2. Turning to the fifth contention, the Court should not accept the plaintiff's submission concerning the deterioration in family relationships and its potential to elevate the defendant's risk, which submission was advanced "without any evidentiary basis". Reference was made the following: 1. He lived with his sister when he was seventeen years old. 2. He also spent significant amount of his sister's house in 2014 and in 2017 it was also reported that he generally visited her on the weekends. 3. In 2020, he spent his time moving between his brother's and sister's homes. 4. He has longstanding relationships with both of these siblings, and has spent considerable time visiting or living with both of them. 1. Further, in that respect, it was submitted, deterioration in his relationships with them is unlikely to occur in the next two years. The plaintiff has not established that the supporting documentation provides a sound evidentiary basis for concluding that a deterioration in the relationship with the defendant's siblings is likely to occur. Even if the defendant's relationship with one of his siblings deteriorated, that would not necessarily mean that the relationship with the other would also do so. Further, a decline in the quality of those relationships would not necessarily lead to reoffending. 2. Finally, as to the plaintiff's reliance on Professor Hayes' opinion that "if the defendant ceases to be a forensic patient then he poses a risk of serious harm to others". The defendant advanced the following submissions: 1. The inherent limitations in relation to all risk assessment approaches. 2. The Court's view as to the risk posed by the defendant need not be informed by Professor Hayes, as her opinion was based upon the basis of the defendant's "lapses in engagement in treatment, lack of provision of some categories of programs (such as education, living skills or vocational preparation), and uncertainty of the nature and frequency of formal and informal counselling/interventions provided by case workers" - all matters which the Court is in a position to assess. 3. The defendant has an intellectual disability, not a mental illness, and it is not susceptible of "treatment." As Professor Hayes acknowledged, the defendant "appears to have coped with changes with supervision/treatment, including less supervision" and this is a protective factor. 1. Additionally, as to Professor Hayes' opinion concerning the relevance of "recent breaches of conditions" being a factor heightening risk, the defendant submitted: 66. …This may be a reference to the defendant travelling to Queensland to see his daughter from 9-12 January 2020. Support staff engaged with the defendant on his return "and nil issues was observed." He was reminded of his conditions on 21 January 2020 and agreed that he would inform his case manager in future and seek the Tribunal's consent before travelling to Queensland. Following this, there was nothing to suggest that he was non-compliant with the conditions of his order. In February 2021, Communities and Justice reported that "there has been no information to suggest that Mr McGuire has been non-compliant with the conditions of his order." 67. As Communities and Justice observed, the defendant's non-compliant "behaviour needs to be considered with his intellectual disability, which can influence his understanding of his conditions, insight into this behaviour and planning and consequential thinking." The plaintiff acknowledges that the defendant's breaches of his conditions of release "suggest a desire for independence but could also be attributed to his intellectual disability and failing to understand how to respond to changes in circumstances" (PS [90]). 68. The breach of conditions by travelling interstate to see his daughter for a period of four days has no direct relationship with any risk that he will commit a sexual or violent offence. The defendant has been clear when asked on numerous occasions that he is determined not to offend again.
The defendant submitted the plaintiff has the onus of persuading the Court that the defendant poses an unacceptable risk of causing serious harm to others if the Court declined to make a further EO. The defendant contended that the plaintiff has not discharged that onus, in the following circumstances: 1. The index offences occurred over fifteen years ago, when the defendant was thirty-three. He is now forty-eight. 2. The defendant has not committed any violent offences since 2007 (about fourteen years ago). 3. The defendant has not caused any harm since his conditional release in 2013, despite a lack of supervision. 4. The index offences occurred whilst the defendant was intoxicated. As Campbell J found, "dis-inhibition brought about by intoxication was a significant factor in what occurred". A behaviour support plan in June 2019 described alcohol and cannabis as "a major contributor" to the defendant's past "aggressive and sexual offence behaviour". In other words, alcohol was a significant causal factor in the offending. 5. The defendant no longer consumes alcohol and has not been required to take medication for alcohol addiction since March 2018. His drug and alcohol testing has consistently been negative (that is, it has shown he has not consumed drugs or alcohol). The defendant told Ms Howell that he did not have any cravings for alcohol. In August 2019, he told the MHRT that he drinks Coca-Cola when the rest of his family consumed alcohol and did not find that difficult. The defendant has insight into the risks of alcohol consumption, stating that he tends to make irrational decisions when under the influence of drugs and alcohol and that his stops him from being more independent. Dr Eagle recognised that he had improved in his awareness of some of his risk factors, such as alcohol use. As a report of Communities and Justice stated, the defendant's self-management of risk in respect of alcohol is a protective factor. 6. The defendant has denied any desire to offend again and has expressed remorse for the offences. He stated, in relation to the index offences, "I don't think I'm mental enough to do that again" and "I never want to do something like that again". Dr Eagle commented in 2019 that the defendant "displayed some insight into his previous sexual offending and reported never wanting to engage in such behaviour again". He has also said that he regrets hurting others and would like to move forward with his life. The defendant told Professor Hayes that he is a "changed person" and "couldn't do that". Those statements should be accepted. The Court would be wary of taking a paternalistic approach to the defendant's statements and disbelieving them, on the basis that the defendant has an intellectual disability. 7. The defendant has not been required to take anti-libidinal medication since March 2019 and he has not committed any sexual offences in that time, despite a lack of supervision. In August 2019, a Communities and Justice report stated that the defendant "has been reported to not demonstrate deviant sexual interest" and that there is "no evidence to suggests that Mr McGuire presents with a preoccupation in sexual thoughts and behaviours". A report in early 2020 stated that support staff had continued to report that the defendant had not been observed to exhibit any behaviour or presentation suggestive of sexual deviancy. It was noted that this "has been a consistent finding in past CJ&ISP risk assessments and reports". Professor Hayes is also of the view that the defendant "does not exhibit a tendency towards sexual deviance, or sexual preoccupation/sexual drive". 8. The defendant is occupied with scrap metal collecting, which also provides him with a source of income. It is "a very important hobby for [the defendant] and gives him purpose". This is a protective factor. 9. The defendant has significant family support. He resided with his brother in Young for some time and now lives near his brother and visits him and his family on the weekends. He also visits his father who lives nearby. Another brother also lives in the area and "his brothers and their friends are his major source of social interaction". He also provides money to his daughter and grandchildren when he is able to do so. His goals include to live close to family and he has identified that maintaining positive contact with his family is something important to him. He identifies the most important people in his life as being his daughter, his brother and sister. 10. The defendant identifies his strengths as including his family, living independently and not breaching the MHRT conditions. 11. The defendant's goals are inconsistent with reoffending. They include to have autonomy and control over his life, which he understands to mean to be able to make decisions without others having control. He also wants to have an intimate, romantic relationship and to maintain good health and wellbeing. To achieve this, he recognises he needs to be away from people who are on drugs and alcohol. Reference made to the CSP Report to the MHRT dated 17 January 2020, which reported that the defendant "has actioned his goals in relation to independence, increased family connection, which can be perceived as protective". 12. The defendant has significant support through the NDIS including an NDIS Plan approved in June 2020 and increased funding in February 2021. This support is not dependent upon the existence of an EO. 13. According to a Communities and Justice report in August 2019, the defendant "has been reported by staff to demonstrate use of effective risk strategies (e.g., avoids anti-social peers, abstinent from AOD, occupied with scrap metal work) in situation where he might be at risk without prompting by staff". 14. Even in circumstances where there have been reductions in the defendant's contact with support staff, the defendant "does not appear to have gravitated towards situations that may place him at risk".
In further opposition to the application before the Court, the defendant relied upon the following submissions: 8. The defendant has now been subject to five extension orders. 9. The restrictions on the defendant's liberty cannot simply be extended for many decades, perhaps until his death, based upon one incident that occurred over fifteen years ago. 10. The defendant has lived independently, with varying levels of support, since being conditionally released by the Mental Health Review Tribunal (MHRT) in 2013 (eight years ago). Irrespective of whether he has been receiving support, or engaging with services, he has avoided alcohol and drugs and has not committed any further offences. The MHRT trials of reducing the dosage of his anti-libidinal medication, then removing the requirement that he take it at all, and of removing the requirement that he take medication for alcohol addiction, have been successful. The defendant has demonstrated that he does not engage in behaviour of risk whilst in the community, including when coercive means of supervising his behaviour are not in place and when, to use Professor Hayes' words, "the level of supervision has been less intensive." 11. In these circumstances, the Court would not be satisfied, to a high degree of probability, that the defendant poses an unacceptable risk of causing serious harm to others. [Footnotes omitted.]
Finally, with respect to the Court's consideration of the degree of probability that the defendant poses an unacceptable risk of causing serious harm, the defendant submitted: 69. The plaintiff identifies some other factors in support of the orders he seeks, being that: a. The nature of the defendant's intellectual disability means he responds to treatment when directed to adhere to conditions and knows there are consequences for breaching them (PS [96]); b. The defendant lacks the capability to reason right from wrong and lacks insight into consequences of his behaviour (PS [97]); c. "The defendant's antisocial traits elevates [sic] the risk of reoffending as he may react aggressively and emotionally to external stressors" (PS [97]); d. The defendant is somewhat nomadic at the moment although living with his brother, and he was homeless when he committed the index offence (PS [98]); e. Absent an extension order, "there is a significant concern of relapse to alcohol and an inability to live in the community without assistance" (PS [99]). 70. These are broad assertions which do not support a finding, to a high degree of probability, that the defendant poses an unacceptable risk of causing serious harm to others. It is paternalistic to assert that the defendant's "risks are managed by rules" (PS [96]) without having regard to his own self-regulation, and to assert that he has no ability to reason right from wrong. The claim that the defendant's risks are managed by rules is not supported by the evidence, given that his supervision has been inconsistent and the risk assessments identify protective factors which reduce risks. The defendant has shown insight into the consequences of his behaviour … His emotional regulation has improved and he is receiving support in this regard. The suggestion that being "somewhat nomadic" is a basis upon which the Court could conclude that he poses a risk of causing serious harm has no reasonable basis. The evidence indicates that he does not wish to consume alcohol any more and this is not dependent upon being subject to an extension order.
As to the consideration of less restrictive means, the defendant advanced the following submissions: 81. If the Court finds, contrary to the defendant's submissions, that it can be satisfied to a high degree of probability that he poses an unacceptable risk, the Court must then consider whether that risk can be adequately managed by other less restrictive means. 82. It is acknowledged that the defendant cannot be managed under the Mental Health Act 2007 (NSW) and that the scope of the Guardianship Order is limited (cf PS [34]). However, guardianship orders are subject to regular reviews, and a guardianship order may specify that the guardian is empowered to take such measures or actions as are specified in the order so as to ensure that the person under guardianship complies with any decision of the guardian in the exercise of the guardian's functions. 83. The NDIS provides the defendant with the supports he needs to assist him with matters such as emotional regulation, which help to address any risk he may pose. 84. The general criminal law also provides a "less restrictive means" of managing the defendant's risk than the imposition of a further extension order. The defendant has suffered significant consequences as a result of his convictions, including being detained in both prison and hospital and having his liberty restricted for a very long period of time. He has abided by the rules imposed by the criminal law consistently over the course of his detention and conditional release (even when his compliance with the MHRT orders has been, at times, inconsistent). It may be inferred that the deterrent effect of the criminal law is particularly high for the defendant, as he knows the gravity of the consequences, should he reoffend against that law. 85. The NDIS support services, the guardianship orders and the general criminal law provide less restrictive means for adequately managing any risk which the defendant may pose.
At the preliminary hearing, the defendant also tendered a comparative table of supports and restrictions for the defendant, which illustrated the supports would continue and/or cease in the event the defendant's forensic status was continued or brought to an end. It is extracted below (together with references provided by the defendant): Forensic Status Continues Forensic Status Ends MHRT reviews defendant at six monthly intervals and makes orders as to conditions of liberty. Defendant may be apprehended then detained in hospital or other place (i.e. prison) if it appears to the President of the Tribunal that he has suffered a deterioration of mental condition and is at risk of causing serious harm (See the Act, ss 78, 85,109) MHRT has no jurisdiction. CSP case manager appointed by MHRT under s 85(1)(a) of the Act to case manage the defendant. This involves: ● having regular contact with defendant, either face-to-face or over the phone; CSP no longer provides case management but may still accept referrals to provide advice, assessment, and other assistance to NDIS support providers, including in assessing and managing risk. ● liaising with NDIS support providers and clinicians involved in defendant's care; Ref: Report to the Tribunal, Sue Roy; 13 August 2020 (EB-1, Tab 25, p 310 at point 3) ● liaising with the MHRT in the context of the defendant's circumstances and behaviour insofar as they are relevant to compliance with MHRT orders. NDIS-funded services provide support according to the needs identified in functional, risk, and other assessments, as well as behaviour support. This involves provision of numbers of hours of practical day-to-day support spent in the company of the defendant as well as help with general life management (eg. dealing with government services, the Trustee and Guardian, Housing etc) NDIS-funded services continue to provide support according to the needs identified in functional, risk, and other assessments. NDIA continues to review required funding and supports. Ref: For a summary of funded supports, see: Report to the Tribunal, Sue Roy, 9 July 2021 (EB-2, Tab 2, p 4, under "Service Provision and Accommodation")

[52]

CONCLUSION

Having considered the supporting material before the Court, in particular, the expert reports and the material prepared by the CSP, together with the respective submissions of the parties, the Court is satisfied that the plaintiff has met the statutory requirements for the making of the orders sought on the present application. In particular, I am satisfied that on the material before the Court that the defendant poses an unacceptable risk of causing serious harm to others having regard to the provisions of s 122 of the Act. I also note, in that respect, the submissions of the plaintiff that the risk may not be adequately managed by a less restrictive means.
In coming to that conclusion, the Court had particular regard to the following: 1. In the RAR, Professor Hayes assessed the defendant as posing a moderate risk of causing harm to others in the community, commenting that the structures provided in earlier EOs have successfully reduced his risk. Professor Hayes opined that the possible reduction in support structures may elevate the defendant's risks. The RAR also stated that the EOs in the past have been "highly significant in controlling the anti-social behaviours which would otherwise contribute to the risk of causing serious harm to others". It may be noted that both Dr Eagle and Ms Howell had earlier opined that decreases in support and supervision would elevate the defendant's risk of causing serious harm to others. 2. The RAR, together with the reports and progress notes by the CSP, indicate that the defendant continues to demonstrate a limited capacity for moral reasoning and problem solving. His risk factors, in that respect, include reacting emotionally and aggressively to stressors. 3. Professor Hayes opined that there is no other less restrictive means of managing the defendant's risk, other than an EO. That opinion is also supported by the earlier reports of Dr Eagle and Ms Howell. It may also be noted that both Professor Hayes and Dr Eagle opined that if the defendant ceases to be a forensic patient then he poses a risk of serious harm to others. 4. The experts unanimously opined that, absent the existing support structures, there is a significant concern of relapse to alcohol and an inability to live in the community without assistance which would have the consequence of elevating his risks. As to the management of risk, the material before the Court points strongly toward the success of the EO managing the defendant's risk. It has enabled him to live in the community and address risk as well as motivate the defendant to remain abstinent from alcohol. Thus, whilst it is commendable that the defendant was able to refrain from consumption of alcohol (as well as aggressive conduct) in an incident involving a fight at a pub, that isolated incident does not diminish the recognised risk associated with relapse in the case of the defendant. It may also be noted, in that respect, that Dr Eagle recognised the positive aspects of the defendant's conduct in that respect, but still found, after taking in to account all the matters before her, the defendant posed a risk of causing serious harm to others if he ceased to be a forensic patient; she formed an opinion based on the material before her that he was still a risk. 5. The defendant's intellectual disability means he requires assistance with living in the community. When those support structures are absent, the lack of daily routine and instability in his life elevates his risk of relapse to alcohol and his risk of sexual or physical violence. Each of the experts identified the risks associated with relapse. This risk is also consistently addressed by the CSP. It may also be noted, in that respect, that as the defendant is not mentally ill he cannot be managed under the MHA and the Guardianship Order cannot provide the oversight of monitoring for drug and alcohol use. 6. The likelihood of the defendant's risks eventuating without support structures is evidenced by the defendant's criminal history. The defendant abused alcohol and committed serious sex offences and violent offences in such circumstances. Whilst it is true the defendant has not re-committed a serious offence since the index offending, as has been observed by this Court, there is a need for caution with respect to ceasing the defendant's EO, particularly in the present circumstances where the defendant has shown increased sexualised comments and the experts, together with the CSP and his support workers, acknowledge this elevates the risk posed by the defendant. To remove such support could render the risk inadequately managed and endanger the community. 7. It is true that the CSP and the MHRT have recognised the numerous protective factors operating with respect to the defendant, in particular his improved relationship with his family. However, other than the defendant's family, the defendant does not have relationships as a protective factor in his life. I accept the opinion of Professor Hayes that any deterioration in family relationships could readily elevate the defendant's risks. I have also had regard to the recent comments of the MHRT, namely, that the defendant's loading of dynamic risk factors had increased recently because of changes in service provision, absence of support staff, the change in living arrangements and observed "emotionally reactive" responses to these stressors and COVID-19 restrictions. 8. The defendant's intellectual disability means he misreads cues from women and responds inappropriately. Further, his lack of perception, in this respect, is not confined to his understanding of his relationship with female support workers. The incident of the sexualised comments towards Ms Gorman was not an isolated incident. Mr Wu has also noted an incident in a public lunch area in which police intervention was required. Following both incidents, the CSP re-assessed the risk and implemented strategies in consultation with relevant stakeholders and support services. Counsel for the defendant also accepted that the defendant's incidents with respect to sexualised comments have been documented since around 2015. The CSP, in conjunction with relevant stakeholders providing support of the defendant such as Dr O'Dea and the defendant's Behaviour Support Practitioner, work together to manage this risk. Additionally, even though the defendant has made commendable progress with respect to achieving goals, which have been documented by the CSP, Mr Wu recorded "his insight into what constitutes a high risk situation is also an area that has yet to be thoroughly explored". 9. Following the incident with Ms Gorman on 30 March 2021, the CSP progress notes acknowledge an escalation of risk in the current climate as at April 2021. The CSP developed a plan to manage that risk. In a subsequent progress note, consideration of a referral to Dr O'Dea is noted. This is significant, as whilst subject to an EO the defendant "would be required to take that medication to manage his risks". 10. As to the defendant's concern that "the restriction of the defendant's liberty cannot simply be extended for many decades, perhaps until his death, based on one incident that occurred over 15 years ago", reference may be made to the remarks of Button J in Attorney General of NSW v McGuire [2018] NSWSC 1795 at [9], [29] and [30]. Notwithstanding the positive remarks of his Honour that conditions may "gradually" become less onerous and slowly reduced, his Honour had regard for a recent incidence of non-compliance that was a matter of concern (at [9]). Similarly, on the material before the Court, the defendant's recent increase in making inappropriate sexualised comments is cause for concern. His Honour also had regard for the fact that "for the past five years, judges of this Court have been prepared to make an extension order, in my assessment of whether or not a judge could be prepared to do so again in the future" (at [29]). There is a need for caution with respect to ceasing the defendant's conditional liberty, which, as Button J observed, "could lead rapidly to isolation, a return to alcohol abuse, an unwillingness or inability on the part of this intellectually disabled man to get help, and a real risk serious offending, not least in a sexual way, thereby endangering the community. And it is not unimportant, I think, that the reasonably recent period of deterioration showed hints of a return to sexual dysfunction" (at [30]). 11. Finally, whilst the support provided on the NDIS Plan is beneficial, it does not include the support of a forensic psychiatrist nor does it include the CSP. This is because NDIS is not a mental health service, it is a service that provides support for those with disabilities. The material before the Court from the experts, the CSP and the MHRT all acknowledge the benefit of the support provided by Dr O'Dea, in particular with respect to the risk associated with sexual offending. Whilst the increase in sexual comments has not resulted in a serious sexual offence, it has elevated the risk and required the implementation of strategies to manage it. Additionally, the CSP have worked with the defendant since 2010 and have documented his progress and setbacks. In the absence of an EO, the current CSP services would have expired on 13 August 2021. 12. In light of the significant role the CSP service provides in management of the defendant's risk, it would have been inappropriate to allow the support to be cancelled at the expiration date on 13 August 2021 upon the basis of an option and/or possibility of a referral, in particular, when regard is had to the level of risk identified by Professor Hayes and the potential adverse impact upon the defendant's progress and the endangerment of the community. There was no roadmap before the Court to enable any satisfaction as to that opaque course. It follows, in my view, the support provided by the NDIS Plan, together with a possible referral to the CSP, is insufficient to mitigate the risk. Thus, the risk cannot be adequately managed by less restrictive means.
The Court confirms its orders made 12 August 2021.

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