Attorney General for New South Wales v McGuire by his tutor Thompson

Attorney General for New South Wales v McGuire by his tutor Thompson - [2019] NSWSC 76 - NSWSC 2019 case summary — Zoe

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, enter and commit serious indictable offence, contrary to s 112 of the Crimes Act.
On 25 August 2008, following an enquiry under s 12 of the MHFP Act, Garling DCJ determined that the defendant was not fit to be tried, on the basis that he suffered from an intellectual disability. The defendant was referred to the Mental Health Review Tribunal (MHRT) and was remanded in custody.
On 4 September 2009, following a special hearing under s 21 of the MHFP Act, Murrell DCJ (as her Honour then was) held, on the limited evidence available, that the defendant committed the Index Offences. Her Honour permanently stayed the aggravated break, enter and commit serious indictable offence charge, on the ground that the conduct to which it related was the same as that of the s 61I charges and, accordingly, was an abuse of process.
Murrell DCJ imposed an overall effective limiting term of 5 years in respect of the Index Offences. This term expired on 31 December 2013. Her Honour also ordered the defendant be referred to the MHRT and that he remain in custody. Thereafter, the defendant was detained in a correctional facility and became a forensic patient under s 42 of the MHFP Act.
On 26 August 2013, the defendant was released by the Tribunal into the community, subject to a comprehensive set of conditions, under s 47(1)(b) of the MHFP Act.
As a result of the limiting term imposed by Murrell DCJ, the defendant's status as a forensic patient under the MHFP Act would have expired on 31 December 2013. This did not occur because this Court made interim extension orders, as permitted under cl 10 of Sch 1 to the MHFP Act, so that the defendant's status as a forensic patient would not expire until 24 March 2014.
On 21 March 2014, Garling J made an order, under cl 1 of Sch 1 of the MHFP Act, extending the defendant's status as a forensic patient for a year until 21 March 2015: Attorney-General of NSW v McGuire (No.2) [2014] NSWSC 288 (McGuire (No.2)).
After further interim orders, extension orders were made as follows: 1. On 28 May 2015, Rothman J ordered that the defendant's status as a forensic patient be extended to 10 June 2016: Attorney General of New South Wales v McGuire [2016] NSWSC 158; 2. On 24 August 2016, Campbell J made an order further extending the period during which the defendant had the status of a forensic patient to 23 August 2017: Attorney General of NSW v HRM [2016] NSWSC 1189; and 3. On 23 November 2017, Bellew J ordered that the defendant be subject to an extension order for a period of one year expiring on 22 November 2018: Attorney-General of New South Wales v McGuire [2017] NSWSC 1572.
By a summons filed on 12 November 2018, the Attorney General sought an order for the examination of the defendant, under cl 6(5) of Sch 1 of the MHFP Act, and interim extension orders, as well as a final order that the defendant be subject to an extension order for a period of one year. The order under cl 6(5) and an interim extension order were made by Button J on 21 November 2018: Attorney General of NSW v McGuire [2018] NSWSC 1795. Further interim orders have been made so that the defendant is to continue as a forensic patient until 14 February 2019.
In accordance with the cl 6(5) order made by Button J: 1. the defendant was examined by Dr Kerri Eagle, a forensic psychiatrist, on 12 December 2018, and Dr Eagle provided a report dated 21 January 2019; 2. the defendant was examined by Ms Jenny Howell, a forensic psychologist, on 15 January 2019, and Ms Howell provided a report dated 21 January 2019.
The application for a final order under cl 1 of Sch 1 to the MHFP Act came on for hearing on 7 February 2019. The Attorney General was granted leave to file an amended summons to seek an order for the extension of the defendant's status as a forensic patient for 2½ years.

[4]

Relevant Statutory Provisions

The care, treatment and control of forensic patients, among others, are dealt with in Pt 5 of the MHFP Act.
A "forensic patient" is relevantly defined in s 42 of that Act as follows: "For the purposes of this Act, the following persons are forensic patients: (a) a person who is detained in a mental health facility, correctional centre or other place, or released from custody subject to conditions, pursuant to an order under: (i) section 14, 17 (3), 24, 25, 27 or 39, or … (a1) a person in respect of whom an extension order or interim extension order is in force, ..."
The defendant is a forensic patient in that he was originally the subject of an order under s 24 of the MHFP Act and he is now a person in respect of whom an interim extension order is in force.
The objects of Pt 5 are set out in s 40 in the following terms: "40 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 are suffering from a mental illness or mental condition, (c) to facilitate the care, treatment and control of any of those persons in correctional 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 to acknowledge the harm done to victims."
Section 54A, which is found in Pt 5 of the MHFP Act, provides that "[a] person's status as a forensic patient may be extended in accordance with Schedule 1." This is what the Attorney General seeks in this matter.
The following clauses of Sch 1 of the MHFP Act are relevant for present purposes: "1 Extension orders for forensic patients (1) The Supreme Court may, on application under Part 2 of this Schedule, make an order for the extension of a person's status as a forensic patient. (2) An order made under this clause is an extension order. 2 Forensic patients in respect of whom extension orders may be made (1) A forensic patient can be made the subject of an extension order as provided for by this Schedule if and only if the Supreme Court is satisfied to a high degree of probability that: (a) the forensic patient poses an unacceptable risk of causing serious harm to others if he or she ceases being a forensic patient, and (b) the risk cannot be adequately managed by other less restrictive means. (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. … 7 Determination of application for extension order (1) The Supreme Court may determine an application under this Part 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 clause 6(5) to conduct examinations of the forensic patient, (c) the report of the qualified psychiatrist, registered psychologist or registered medical practitioner provided under clause 5 (b), (d) any other report of a qualified psychiatrist, registered psychologist or registered medical practitioner provided in support of the application or by the forensic patient, (e) any order or decision made by the Tribunal with respect to the forensic patient that is relevant to the application, (f) any report of the Secretary of the Ministry of Health, the Commissioner of Corrective Services, the Secretary of the Department of Family and Community Services or any other government Department or agency responsible for the detention, care or treatment of the forensic patient, (g) the level of the forensic patient's compliance with any obligations to which he or she is or has been subject while a forensic patient (including while released from custody subject to conditions and while on a leave of absence in accordance with section 49 or 50), (h) the views of the court that imposed the limiting term or existing extension order on the forensic patient at the time the limiting term or extension order was imposed, (i) any other information that is available as to the risk that the forensic patient will in future cause serious harm to others. (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. 8 Term of extension order (1) An extension order: (a) commences when it is made, or when the limiting term or existing extension order to which the forensic patient is subject expires, whichever is the later, and (b) expires at the end of the period (not exceeding 5 years from the day on which it commences) that is specified in the order. (2) Nothing in this clause prevents the Supreme Court from making a second or subsequent extension order against the same forensic patient. …"
Even if an extension order is made, it is not final in the sense that it can be revoked or varied at any time, under cl 12 of Sch 1 of the MHFP Act. That clause provides: "12 Extension order or interim extension order may be varied or revoked (1) The Supreme Court may at any time vary or revoke an extension order or interim extension order: (a) on the application of a Minister administering this Act or the forensic patient, or (b) on the recommendation of the Tribunal under section 47 (2A). (2) The period of an order must not be varied so that the total period as varied is greater than that otherwise permitted under this Part. (3) Without limiting the grounds for revoking an extension order or interim extension order, the Supreme Court may revoke an extension order or interim extension order if satisfied that circumstances have changed sufficiently to render the order unnecessary."

[5]

Relevant Principles

There was no substantial dispute between the parties as to how the provisions set out above should be applied. As a result, the relevant principles may be stated briefly.
The "high degree of probability", referred to in cl 2(1), indicates that the existence of the risk in question must be proved to a higher degree than the normal civil standard of proof of "more probable than not", but does not have to be proved to the criminal standard of "beyond reasonable doubt": Cornwall v. Attorney General for New South Wales [2007] NSWCA 374 at [21]; Attorney General for New South Wales v Kapeen [2017] NSWSC 685 at [11].
The "unacceptable risk of causing serious harm to others if he or she ceases being a forensic patient" in cl 2(1)(a) is to be given its ordinary or everyday meaning, and the right of a person to his or her personal liberty at the expiry of a limiting term is not a relevant consideration in the determination of whether the person poses an "unacceptable risk": Lynn v State of New South Wales (2016) 91 NSWLR 636 at [44], [127] and [148]; [2016] NSWCA 57; Attorney General of New South Wales v Skerry (by his tutor Thompson) (Final) [2018] NSWSC 1711 at [14]; Attorney-General for the State of New South Wales v Boyce by his tutor Jennifer Thompson [2017] NSWSC 144 at [15].
The nature of the risk posed has to be assessed by reference to past conduct, the seriousness of the possible future conduct and the period over which the risk may come to fruition. The assessment must be based on an absence of protective measures: Lynn at [126].
The evaluation of whether the risk is "unacceptable" is directed to the assessment of risk in the context of making the community secure from harm, as opposed to guaranteeing its safety and protection: Lynn at [61]; see also McGuire (No.2) at [55]-[59].
Clause 2(1)(b) of Sch 1 has the effect that, even if satisfied to the requisite standard that there is an unacceptable risk of causing serious harm, the Court cannot make an extension order unless it is satisfied, to a high degree of probability, that this unacceptable risk "cannot be adequately managed by other less restrictive means".
Assessing whether the risk can be adequately managed by other less restrictive means involves determining: 1. whether the means proposed are less restrictive; and 2. whether the less restrictive means adequately manage the risk.
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].
The note to cl 2(1) of Sch 1 of the MHFP Act states: "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."
In the present case, it was common ground that, as the defendant was not mentally ill but only had an intellectual disability, he could not be involuntarily detained or treated under the Mental Health Act 2007 (NSW).
As to whether the less restrictive means adequately manage the risk, Garling J said in McGuire (No.2) at [63]: "I would take the use of the phrase "adequately managed" to mean that 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 patients being confined in some form of institutional care rather than taking their place in the community."
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."
Under cl 2(2) of Sch 1 of the MHFP Act, the 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.
Finally, under cl 7(2) of Sch 1, the Court must have regard to the matters listed in cl 7(2)(a) to (i), which have been set out above, when determining whether or not to make an extension order.

[9]

The Index Offences and subsequent circumstances

The three Index Offences of sexual intercourse without consent knowing that the other person does not consent, contrary to s 61I of the Crimes Act, were committed on 4 April 2006 at Nowra. I shall refer to those offences in more detail when dealing with the outcome of the special hearing in respect of those offences.
The defendant was apprehended on 17 August 2006 and remained on bail until October 2007.
On about 26 October 2007, the defendant was re-apprehended and taken into custody. Arising out of his conduct on that day, he was charged with assaulting an officer in the execution of duty, resisting an officer in the execution of duty, assaulting a police officer in the execution of duty causing actual bodily harm, goods in personal custody suspected of being stolen, possessing housebreaking implements, and inflicting grievous bodily harm on a police officer executing duty.
Because the defendant had previously failed to appear in accordance with his bail undertaking, he was convicted and sentenced to 6 months' imprisonment commencing on 2 November 2007.
On 25 August 2008, Garling DCJ found the defendant unfit to be tried in respect of the charges under ss 61I and 112 of the Crimes Act. His Honour directed that the matter be referred to the MHRT and that the defendant be detained.
In the District Court on 19 June 2009, the defendant was convicted of the offences committed on 26 October 2007, when he was re-apprehended. He was sentenced to imprisonment for 2 years and 6 months, commencing on 26 January 2008, with a non-parole period of 1 year, 6 months and 18 days, with conditions, and his release was subject to supervision.
On 31 August 2009, following a special hearing, Murrell DCJ found that, on the limited evidence available, the defendant committed the three Index Offences against s 61I of the Crimes Act. In her judgment, her Honour described the circumstances in the following terms: "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'. 26. The complainant dressed, comforted her daughter and called the police."
On 4 September 2009, in accordance with s 23(1) of the MHFP Act, Murrell DCJ imposed an effective total limiting term of 5 years, commencing on 1 January 2009 and expiring on 31 December 2013. Consequently, the defendant was referred to the MHRT and ordered into custody, under s 24 of the MHFP Act. Consequently, the defendant was a forensic patient. His status as such has been extended by the various orders of the Court referred to earlier in these reasons.
As noted above, the MHRT ordered that the defendant be conditionally released into the community on 26 August 2013. His release was subject to a comprehensive set of conditions set out in the MHRT's decision and reasons of 22 August 2013. Since that time, the defendant has remained a forensic patient on conditional release in the community, although the conditions have been revised by the MHRT from time to time. (A copy of the current conditions of the defendant's release, made on 7 June 2018, can be found in Appendix 1 to these reasons for judgment.)
Recent relevant developments in the defendant's supervision by the MHRT have included the following: 1. On 19 May 2017, the MHRT conducted its 24th review of the defendant and varied his conditions to reduce the number of hours of supervision by the Criminal Justice Program (CJP) from 25 to 12 per week. 2. On 28 November 2017, the MHRT conducted its 25th review of the defendant and varied the conditions so as to allow Dr O'Dea to conduct a test of taking the defendant off anti-libidinal medication, to remove the requirement that the defendant have 12 hours of support per week in light of his improvement in engagement, and to allow support staff to determine the amount of support per week and how often and when drug and alcohol screening tests should be undertaken. 3. At a further review of the defendant in the MHRT on 29 May 2018, Dr O'Dea confirmed he had ceased to prescribe medication to treat the defendant's alcohol dependence, acamprosate, in March 2018, and, as at 29 May 2018, there had been no reports of any relapse. Dr O'Dea also confirmed that he had reduced the defendant's dose of anti-libidinal medication, Androcur, from 100 mg to 50 mg at night, but confirmed his view that the defendant needed to remain on the medication indefinitely in order to control his sexual behaviour.
The defendant has also been the subject of guardianship and financial management orders under the Guardianship Act 1987 (NSW) for a considerable number of years. The terms of the guardianship order which is presently applicable to the defendant, made on 13 November 2018, are set out in Appendix 2 to these reasons for judgment.
The defendant's financial management order does not have any particular relevance in the present proceedings.
Currently, the defendant lives in a unit in Panania. He spends some of his time sourcing, collecting and selling or swapping scrap metal. He keeps three old trailers at the home of his sister and brother-in-law in the Richmond-Windsor area. He is interested in obtaining his driver's licence. His primary social life involves visiting his brother and his sister in Sydney. He receives support through the National Disability Insurance Scheme (NDIS) and from New Horizons, under the management and supervision of the CJP, and he remains subject to the supervision of, and conditions imposed by, the MHRT, given his status as a forensic patient.

[13]

Dr Eagle's report of 21 January 2019

Dr Eagle was not required for cross examination by either party. Her report was comprehensive and logical. Her conclusions were supported by her reasoning. Apart from those opinions of Dr Eagle based on an assumption that there has been no problematic sexualised or other conduct after the reduction in the dose of Androcur, outlined below, I accept her evidence and conclusions.
Based on Dr Eagle's report of 21 January 2019, I find, subject to the qualifications set out below, as follows: 1. At the assessment in December 2018, the defendant reported finding the support of the New Horizons case worker for about two days each week helpful, and that he enjoyed going to his family's place at Richmond every weekend. He mentioned an interest in getting a driver's licence. He also said that he had not consumed any alcohol for two years and that stopping the alcohol medication (acamprosate) had not made any difference to his desire to drink. 2. He denied being in a relationship, but changed topic when questioned about his interest in having a relationship with a woman. He returned to the topic of getting a driver's licence and said that when he obtained his licence he would have no further need for the support of case workers. 3. When asked whether he thought his anti-libidinal medication, Androcur, was helping in any way, he said for "different reasons". He said that Dr O'Dea, his treating psychiatrist, told him "you're not getting sexual things". He complained about the questions concerning his sexual behaviour, which he considered private. He also expressed discontent with the number of appointments he had to attend that week. He said "it's hard to get in a likeable mood". When redirected to the Androcur, he said it was "just the taste" that he did not like. 4. When asked again about having another relationship, he said that he had "permanent arguments about relationships with my family". He became irritable at questions about the Index Offences and his sexual behaviours (such as masturbation). He maintained he would "never do it again". He said that Androcur had reduced his testosterone and "you can see me fighting the medication". He was unable to elaborate further on that comment. 5. The defendant declined to discuss the Index Offences during this assessment. In previous assessments with Dr Eagle, he had said "I don't think I'm mental enough to do that again", but he then said "if I done it". He also said "I was afraid of the person's dog next door" and "I never want to do something like that again". During the December 2018 assessment, he again maintained he would never "do it again" when asked about the Index Offences. 6. In relation to the MHRT's determination of 29 May 2018, Dr O'Dea's evidence to the Tribunal was that the defendant had ceased the acamprosate two months prior. In addition, the doctor had reduced the defendant's dose of Androcur from 100mg to 50mg at night. When asked, Dr O'Dea confirmed it was his opinion that the defendant needed to remain on Androcur indefinitely, notwithstanding that he agreed it would be better to trial a cessation of Androcur while the defendant was subject to a forensic order. In his opinion, from a risk management perspective, the defendant should continue to take the anti-libidinal medication in order to control his sexual behaviour. The defendant has clearly indicated that he would not continue with the medication if it were not mandated, and he has reported non-compliance in May 2018. 7. Dr Eagle also reported that the defendant had tolerated a reduction in his anti-libidinal medication and "had not shown any apparent increase in problematic sexual behaviours, frustration tolerance or emotional dysregulation. It is difficult to say with any certainty the role that the medication might be having in reducing [the defendant's] risk of sexual reoffending". That part of her report appears to be inconsistent with the incidents that occurred in June to August 2018. These incidents are dealt with in more detail later. As Dr Eagle's opinion appears to be based on a misunderstanding of the true situation, I do not accept her conclusions or comments in this specific regard. I accept the views of Dr O'Dea, concerning the efficacy and need for the defendant to take Androcur to control his sexual behaviour and to reduce his risk of sexually reoffending, as referred to in the preceding subparagraph. 8. The diagnosis in respect of the defendant is: 1. at this stage there is no clear information or evidence to suggest a psychotic illness; 2. mild to borderline intellectual disability, but the defendant can function adequately with the support of non-governmental agencies such as New Horizons, provided under the CJP, and with the support of his family; 3. alcohol use disorder, in remission, in a partially controlled environment, which includes monitoring and regular and random testing; 4. it is difficult to determine with any certainty whether the defendant has a paraphilia or sexual deviant disorder given his inability to fully co-operate with clinical assessment in relation to his psychosexual cognitions and function; 5. adult antisocial personality traits, but there is insufficient information of conduct disorder before the age of 15 to form a diagnosis of antisocial personality disorder. At least some of the antisocial personality traits appear to be largely secondary to his social, interpersonal and cognitive deficits (for instance, impulsivity, irresponsibility and aggression may be due to poor self-control/planning and affective dysregulation). 1. As to the risk of violent reoffending, the defendant manifests: 1. a moderate to high loading of historical risk factors, which correlate with an increased risk of violence in the longer term and will not decrease in number; 2. a moderately high loading of clinical factors, which place him at an increased risk of general violent reoffending in the short to medium term. 1. The risk of violent reoffending has been adequately managed under the current forensic order and with the benefit of the psychosocial supports in place in combination with a lower dose of Androcur. If his status as a forensic patient were to lapse, potential future problems with risk management would include: 1. Disengagement with professional services and inherent difficulties with the guardianship and mental health regimes in mandating engagement and intervening to prevent harm to others; 2. Future problems with support from the family; 3. Future problems with treatment or supervision response in that it is likely the defendant would stop taking Androcur; 4. Future problems with stress and coping without the intensive and assertive involvement of support services. He has ongoing problems with frustration tolerance. 1. As to the risk of sexual reoffending: 1. The defendant's score on the Static-99R risk assessment tool for recidivism among adult male sexual offences placed him in a group of offenders at an above average risk of sexual reoffending when compared to other offenders; 2. The ARMIDILO-S, a specific risk assessment tool for intellectually disabled populations, has been used by others to assess the defendant, and he scored low to moderate on the most recent assessment, but this was in the context of the current support service model. Previously he had scored moderate, that is, above average; 3. The defendant's sexual offending was motivated by a desire to meet his sexual needs. He had consumed alcohol. It was impulsive not planned. The victim was unrelated and the offences occurred in the presence of her five year old daughter. His underlying disinhibition arising from his intellectual disability, combined with the further disinhibition from alcohol, led to him addressing his sexual needs through coercion. The defendant's overall cognitions regarding women played a role. 1. The defendant does pose a risk of causing serious harm to others if he ceases to be a forensic patient, without adequate monitoring and supports in place, in the light of the following: 1. 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; 2. 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"; 3. 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; 4. 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; 5. 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; 6. The defendant has clearly indicated that he would not continue Androcur if it were not mandated.
Dr Eagle expressed the view that the primary value of a forensic order in the management of the defendant is the regular review by the MHRT, the ability to enforce treatment and compliance through conditions (to which he has shown himself willing to adhere), and the recall to hospital or other facility if any deterioration in mental state or the warning signs emerge and the degree of risk requires it. Guardianship arrangements, in her view, essentially allow substituted decision making and cannot provide supervision, monitoring (which, in the case of alcohol, is likely to have been a deterrent) or adequate or effective response to situations of increased risk.
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.

[14]

Ms Howell's report of 21 January 2019

Ms Howell, forensic psychologist, provided her report dated 21 January 2019. She was not required for cross examination by either party.
The defendant's counsel, Ms Tringali, submitted that I should not accept Ms Howell's evidence, or should give it little weight because Ms Howell was not a medical practitioner and was not qualified to express an opinion concerning the prescription and reducing or ceasing acamprosate or Androcur, which were significant matters when considering the risk posed by the defendant. While Ms Howell acknowledged that she was not qualified to express an opinion on medical matters such as prescribing drugs, she is a forensic psychologist, whose opinions within her area of expertise are not diminished in value because of her quite proper acknowledgement.
Ms Howell's evidence was, in substance, consistent with that of Dr Eagle, although she did provide some additional insights concerning possible deterioration in the defendant's family relationships and his negative attitude to psychological treatment in respect of his sexual offending.
Based on Ms Howell's evidence, I am satisfied that: 1. The defendant said he did not remember any details of the assault on the victim. When Ms Howell asked him about what he could tell her about the Index Offences, he became quite agitated saying that, within his own extended family, an uncle sexually assaulted his own children and "no" consequences have been applied. At this point, the defendant became very distressed and said he has experienced consequences for his behaviour. He stated he wanted to be "left alone". He had been in custody and since release had abided by all restrictions and added his urines had been "clean". He then stated that he had said "goodbye" to the victim on leaving her home. 2. He did not want to talk about whether there had been violence between him and his daughter's mother and stated that he did not want to talk about his daughter or grandchildren or his past relationships. 3. The defendant reported that he was finding it difficult with his family as his only social interaction. He described visits to his family as "boring" and his sister always asks him to "work" around their property in order to get food to eat. He stated that his sister, brother-in-law and family friends were "spiteful" to him and he always has to pay his own way, purchase any food, smokes and any other thing, while at their home. 4. Although the defendant said he thought it would be good to live with his brother, who lives in Sydney, he added that he wanted his "independence". 5. The defendant said it was over two years since he had consumed alcohol, and denied any cravings for it. He denied recent use of illicit drugs apart from "one cone" when he visited a brother. 6. The defendant became quite agitated and angry when issues concerning sex offender treatment in relation to the Index Offences were raised with him. He has untreated risk factors for reoffending, is resistant to such treatment, and denies he poses a risk or needs treatment. 7. On the Static-99R scale, the defendant was placed in the Above Average Risk level for being charged with, or convicted of, a further sexual offence. 8. Applying the Risk of Sexual Violence Protocol, consideration of the dynamic risk factors indicates they are in the Moderate range. The dynamic factors associated with the defendant's risk of sexually re-offending 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). In particular: 1. In respect of the Social Adjustment Scale, the defendant is experiencing difficulties with his place of residence due to a belief that one or possibly two women work as sex workers from the units underneath and to one side of his own. He is aware of men, who live in the unit complex, visiting those units, which is causing him distress, and he stated that he cannot ignore what he hears and believes is occurring; 2. In respect of the Manageability Scale, the defendant did not engage with sex offender specific treatment in custody and during assessment became very agitated about this. He participated in some community based treatment but he did not complete a comprehensive treatment program. He denied the need to participate in treatment. 1. The defendant's risk of reoffending could escalate if he does 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. 2. The defendant is unable to discuss his thoughts prior to, during and following the Index Offences. He does not demonstrate any insight into the inappropriateness of his conduct and denies that his behaviour harmed the victim.
Ms Howell was of the view that the defendant's untreated risk factors, and support and supervision needs, indicated that he would benefit from management as a forensic patient, subject to the support of the MHRT and conditional release orders.

[15]

Reports provided under cl 5(b) - cl 7(2)(c)

The report required to be provided under cl 5 (b) of Sch 1 to the MHFP Act was from Dr Richard Furst, a consultant forensic psychiatrist, and was dated 6 November 2018.
In that report it was noted that the defendant did not provide his consent to being examined by Dr Furst or any other practitioner for the purposes of the report. Consequently the report was prepared on the basis of the documents provided to Dr Furst.
Dr Furst provided a comprehensive review of the documentation concerning the defendant's diagnosis, treatment, and supervision by the MHRT.
In summary, Dr Furst's evidence was largely consistent with that of Dr Eagle. From the documentary material provided, he concluded that the defendant met the DSM - 5 criteria for the diagnosis of: 1. intellectual disability (mild range); 2. alcohol use disorder (in remission); 3. antisocial personality traits.
He also concluded that the defendant's primary mental health issue or disorder what his intellectual disability. Applying the Static-99R instrument for the defendant, as explained at pp 34-35 of his report, the defendant would be classified as level IV - a, that is an offender at a perceptibly above average risk compared to the typical offender. Dr Furst was of the view that this assessed risk level was likely to remain reasonably constant over time, as it was based on static (historical) factors.
In terms of the needs of the defendant for ongoing management as a forensic patient, subject to support of the MHRT and conditional release orders, Dr Furst considered the most relevant factors to be: 1. the defendant's cognitive impairment; 2. his risk profile in the moderate - high range according to the Static-99R; 3. the impulsive and opportunistic nature of his sexual offences in 2006, his previous criminality and a previous tendency to drink to excess; 4. his apparent limited capacity for emotional regulation and for problem-solving skills; and 5. the need for provisions to place him in appropriate supported accommodation, maintain abstinence from alcohol and illicit drugs, ensure testing can be conducted to establish abstinence from alcohol and illicit doubt drugs, ensure compliance with medical/psychiatric appointments, ensure compliance with appropriate medication, such as anti-libidinal medication, and ensure ongoing provision of supportive case management, programs of rehabilitation and counselling.
In Dr Furst's opinion, less restrictive means of managing the defendant, such as through the civil mental health scheme, the making of a guardianship order, or supervision by CJP/New Horizons on a voluntary basis in the absence of a forensic order, would not be sufficient to manage his clinical needs and known risk factors.
Dr Furst noted that the defendant probably does not meet criteria for the diagnosis of paraphilia according to DSM - 5. He went on to observe, however, that the defendant has been treated with Androcur over the last five years which may have controlled any such deviant cognitions and/or behaviour, should the defendant have been prone to such deviant cognitions and/or behaviour in the first place. He went on to say: "In my opinion, the available scientific studies relating to sex offenders demonstrate that anti-libidinal education such as Androcur are one of the only reliable means of reducing rates of reoffending. Therefore, I am of the opinion that [the defendant's] risk of reoffending in a sexual manner, and probably also his risk of reoffending in a nonsexual violent manner, are likely to be reduced through the ongoing prescription of an anti-libidinal medication such as Androcur."
It was also noted that ensuring compliance is more difficult with oral medication, since in the defendant's case there are insufficient clinical hours allocated for this purpose. Monitoring of his hormonal profile, especially his serum testosterone levels, would also serve as an indirect measure of compliance. Dr Furst also noted the contraindications for the use of Androcur and similar matters.
Dr Furst observed that measures to ensure that the defendant remained abstinent from alcohol and illicit drugs could also be applied and monitored as part of his conditional release requirements as a forensic patient. This would not, in his opinion, otherwise be possible. Given alcohol was clearly a factor in his Index Offending in April 2006, such measures are, in his opinion, prudent and likely to reduce the risk of future offending.
Although Dr Furst's report was based entirely on the documentation, I accept his evidence as corroborative of the evidence of Dr Eagle and Ms Howell.

[18]

Report of any government Department or agency responsible for the detention, care or treatment of the forensic patient - cl 7(2)(f)

The report of this nature, to which the defendant drew particular attention and relied upon, was the Risk Manageability Assessment carried out on 18 May 2018 by Mr Gullota, senior clinical consultant with CJP, and Mr Wu, team leader with CJP. Mr Gullotta and Mr Wu assessed the defendant's risk of reoffending using the Static-99R and the ARMIDILO-S tools.
As to the Static-99R assessment, Mr Gullotta and Mr Wu relied on research reported in a journal article by Hanson, Harris and others. Their assessment included the following: "At the time of the index offence, [the defendant] would have attained a total score placed him in the moderate - high risk category. This score inflates [the defendants] current risk of committing a new sex offence from at the current point in time. Research demonstrates that for every five years that the person is in the community since the index sexual offence, their risk of reoffending is approximately halved [footnote referred to the journal article by Hanson, Harris and others]. Given that it is over 10 years since the index sexual offence, [the defendant] would receive an adjusted score that places him in the Low risk category. Approximately 2.5% to 5.8% of people who attain at the same score the static - 90 9R go on to commit another sexual offence in a five-year period. This means that approximately 94 to 97/100 sex offenders with the same risk score will not commit another sexual offence during that time." (Emphasis in original)
Applying the ARMIDILO-S tool, Mr Gullotta and Mr Wu concluded that the defendant's rating was "Low - Moderate risk category with Moderate protective factors" (emphasis in original).
Their risk summary was in the following terms: "[The defendant] scored Low risk on the static - 90 9R, and Low - Moderate risk on the ARMIDILO - S with Moderate protective factors. Together, [the defendant] is provided an overall risk rating within that Low range should he continue to reside in his independent living arrangements at Panania, and receive up to 12 hours per week of Drop-In-Support through New Horizons with additional funding through the CJP. This suggests that the risks are being effectively managed; however, his level of support would likely be inadequate should the funding reduce, thus increasing his risk. … Moving forward the primary issues related to risk management pertained to the barriers associated with the funding and consistency of support, as well as compliance." (Emphasis in original)
In effect, the defendant submitted that Mr Gullotta's and Mr Wu's risk assessment should be accepted, and that the Court should conclude that the defendant's risk of reoffending was in the low range and, in all the circumstances, an extension of the defendant's status as a forensic patient was not justified.
Mr Gullotta's and Mr Wu's risk assessment has been considered by Dr Furst and Dr Eagle. Dr Furst did not accept the reasoning of Mr Gullotta and Mr Wu and maintained that the defendant's risk assessment was perceptibly above average. In particular, Dr Furst addressed the research relied upon by Mr Gullotta and Mr Wu in the following terms: "In my opinion, the recent study findings of Hanson, Harris et al in relation to the decline of risk over time should be treated with caution, as the authors acknowledge that further studies are indicated, and, more importantly, the samples involve a range of adult male sex offenders, the majority of whom would not have been suffering from an intellectual disability and the majority of whom would not have been subject to restrictive monitoring is forensic patient, as has been the case for [the defendant]. Those factors suggest that the apparent decrease in reoffending rates over time in those offender populations may not apply to [the defendant] at an individual level. The authors Gulotta and Mr Wu may have also been overly 'generous' in allowing for a double discount, assuming there have been 10 years in the community since his offending, when he was in fact only released from custody in 2013, i.e. 5 years ago."
Dr Eagle dealt with the issue more briefly. At paragraph 98 of her report she noted: "The ARMIDILO - S (a specific tool for intellectually disabled populations) has been used to assess [the defendant] by a number of clinicians. He has scored low to moderate on the most recent risk assessment in the context of the current support service model; and moderate previously (by Prof Hayes)." (emphasis added)
As I understand it, Dr Eagle is pointing out that the current support service model, being the conditions imposed by the MHRT and the defendant's management and supervision by the MHRT and the CJP, has achieved the result that his risk of reoffending can be assessed as low. If, however, the defendant's status were to change and he was no longer subject to those conditions, or under the supervision and management of the MHRT and the CJP, his risk of reoffending would be unlikely to remain low.
Bearing this in mind, and noting the criticisms by Dr Furst, quoted above, I am not persuaded that the defendant's risk of sexual or violent reoffending should be characterised as low if he ceased to be a forensic patient. Rather, I accept the risk assessments of Dr Eagle, Ms Howell, and Dr Furst.

[20]

The views of the court that imposed the existing extension order at the time the extension order was imposed - cl 7(2)(h)

The existing extension order was imposed Bellew J on 23 November 2017 and continued on an interim basis until 14 February 2019. His Honour's views in Attorney-General of New South Wales v McGuire [2017] NSWSC 1572 included the following: "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. … 74. In terms of the second limb of the test, in my view, the most significant factor is that the defendant has never been diagnosed as suffering from any mental illness. Whilst there have been passing references to his having exhibited symptoms of such illness (notably in the opinions of Dr O'Dea) the fact remains that at no stage has the defendant been so diagnosed. As counsel for the plaintiff pointed out, that necessarily limits the options in terms of his effective management. 75. I am satisfied to the requisite standard that at present there is no other less restrictive means by which the defendant can be managed. There are a number of reasons for that. They include, perhaps most importantly, the fact that there is no obligation upon a guardian to review the defendant's ongoing adherence to medication. Moreover, a guardian cannot compel, or in my view satisfactorily monitor, the defendant's adherence to anti-libidinal and anti-alcohol craving medication. I am satisfied, on the evidence, that if left to his own devices, there is a real risk that the defendant would not continue to take that medication. In the light of the evidence of Dr Eagle in particular, the importance of its continuation is self-evident. The evidence also establishes that what is equally important is that if the medication is to be ceased at any time, it is best carried out under strict supervision. Clearly on Dr Eagle's evidence, the defendant's regime of medication forms an important, if not critical, part of his ongoing management. Those circumstances, without more, satisfy me to the requisite standard, that the identified risk cannot be managed by any less restrictive means."
It was not suggested that any of the views expressed by the Court at the time when the limiting term was imposed, or when the other extension orders in respect of the defendant were made, justified separate consideration or different conclusions from those reached by Bellew J.
The views of Bellew J support the conclusions I have reached.

[21]

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

At this point, it is appropriate to deal with two incidents, which appear not to have been specifically addressed in the latest psychiatric and psychological reports.
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 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…."
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."
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."
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."
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. …"
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.
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.
It is now necessary to address the particular questions raised in this matter, having regard to all of the matters set out above.

[22]

Does the defendant pose an unacceptable risk of causing serious harm to others if he ceases being a forensic patient?

The defendant submitted that he did not pose such a risk, having regard to a number of factors.
First, it was said that his abstinence from alcohol for several years, and his unwillingness to consume alcohol again without any order requiring this, supported the conclusion that the defendant does not pose an unacceptable risk.
While the defendant has not consumed alcohol for some years and, commendably, had not consumed alcohol when with his family and a fight occurred, Dr Eagle expressed the view that the testing and monitoring of the defendant are likely to have been a deterrent that ensured he did not consume alcohol. In my view, 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.
Secondly, it was submitted that the defendant's intention not to reoffend in future and lack of signs of reoffending were a further ground for finding that he did not pose a relevant risk. The problem with this submission is that the defendant's underlying intellectual disability, together with his refusal or inability to discuss his conduct or to engage with or complete psychological treatment in relation to the Index Offences, means that little if any weight can be placed on the defendant's statements that he does not intend to reoffend. Further, he has not had a significant opportunity to reoffend because of his status as a forensic patient. Thus, the absence of signs of reoffending is not significant.
Thirdly, the defendant submitted that lack of demonstrated benefits from anti-libidinal medication was another reason to find that he did not pose an unacceptable risk. This submission was based, at least in part, on the comment by Dr Eagle that there had been a reduction in his prescribed dose of Androcur without any evident emergence of increased problematic sexual behaviours or violent behaviours. As explained above, this comment did not take into account the incidents in June to August 2018. On the evidence, there has been some re-emergence of problematic sexual behaviours and violent behaviours since the reduction in dosage. I accept Dr O'Dea's view, expressed to the MHRT in May 2018, that the defendant needs to remain on the anti-libidinal medication indefinitely in order to control his sexual behaviour.
Fourthly, the defendant's submission was that the lack of increased problematic sexualised or violent behaviour, and improved emotional responses to being medically assessed, also supported the conclusion that the defendant did not pose an unacceptable risk. Dr Eagle does say in her report that the defendant displayed "better control of his emotional responses" when he was assessed by her in December 2018. Nonetheless, in the light of the incidents and reported comments in June to August 2018, and the defendant's negative comments concerning attending medical appointments, and an expressed intention of going to see "no one after I'm off this thing", I do not accept that the premises for this submission are established.
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.
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.
The risk assessment undertaken by Mr Gullotta and Mr Holper from New Horizons was relied upon by the defendant in opposing the making of an extension order. This assessment was referred to in the MHRT's determination of 7 June 2018 but little information is given beyond the conclusion that the Static-99R and ARMIDILO-S tools disclosed "low-moderate risk category with moderate protective factors and in the low risk category for future sex offending". A similar assessment by Mr Gullotta and Mr Wu, later in 2018, has been dealt with above. In the absence of the information as to the specific factual basis for that assessment, and in the light of the comments made in relation to Mr Gullotta and Mr Wu's assessment, I would not adopt this assessment of risk rather than those of Dr Eagle, Ms Howell, and Dr Furst.
Another submission made by the defendant was that his age was a factor which tended to support the conclusion that he does not pose an unacceptable risk. While it might be accepted that an absence of offending conduct after release, and as a person ages, can be an indicator of reduced risk, this is unlikely to be applicable in the defendant's case for at least two reasons. First, the defendant has been released into the community but subject to strict conditions and supervision as a result of his status as a forensic patient. Consequently, the likely inference is that these conditions and supervision have reduced the opportunity for, and likelihood of, reoffending. Secondly, the defendant's intellectual disability is a significant underlying cause of many of his risk factors and the experts were agreed that this is not likely to change in the future as he ages.
In my view, the overwhelming weight of the psychiatric and psychological evidence is that the defendant's risk of sexual reoffending and violent reoffending is moderate, that is, above average compared to other offenders. The defendant's dynamic risk assessment, while he has been subject to the orders and supervision of the MHRT and receiving support from the CJP, is not indicative of the risk he poses if he were not a forensic patient.
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.
The defendant's prior history of offending, including but not limited to the Index Offences, the seriousness of possible future sexual or violent offending by the defendant, and the fact that the risk of such offending will arise in the immediate future if the defendant is not a forensic patient, establish that the risk is unacceptable, in the context of making the community secure from harm.
For these reasons, and given the circumstances referred to in detail in these reasons for judgment, I am satisfied to the high degree of probability required in cl 2 of Sch 1 of the MHFP Act, that the defendant does pose an unacceptable risk of causing serious harm to others if he ceases being a forensic patient.

[23]

Can the risk be adequately managed by other less restrictive means?

As to the second limb of the test in cl 2(1)(b) of Sch 1, one matter that must be borne in mind is that the defendant has not been diagnosed as suffering from any mental illness. That means he cannot be managed as a patient being involuntarily detained or treated as a patient under the Mental Health Act.
The defendant submitted that his guardianship and financial management orders, with appropriate ongoing funding from the NDIS, provide an effective, less restrictive means of adequately managing the risk. This was said to be so, because of recent findings by Dr Eagle and the defendant's attitude towards his future, particularly in relation to alcohol, seeking assistance when required, and his future plans for himself and his scrap metal work.
I accept that a regime of guardianship and financial management orders, with appropriate ongoing funding from the NDIS, would be a less restrictive regime than maintaining the defendant's status as a forensic patient.
The defendant acknowledged in his written submissions, however, that the principles relating to guardianship do not provide for community protection, nor the protection of others generally. This is correct. Section 4 of the Guardianship Act establishes the principles to be observed by everyone exercising functions under that Act as follows: "(a) the welfare and interests of such persons should be given paramount consideration, (b) the freedom of decision and freedom of action of such persons should be restricted as little as possible, (c) such persons should be encouraged, as far as possible, to live a normal life in the community, (d) the views of such persons in relation to the exercise of those functions should be taken into consideration, (e) the importance of preserving the family relationships and the cultural and linguistic environments of such persons should be recognised, (f) such persons should be encouraged, as far as possible, to be self-reliant in matters relating to their personal, domestic and financial affairs, (g) such persons should be protected from neglect, abuse and exploitation, (h) the community should be encouraged to apply and promote these principles."
Persons appointed, under the Guardianship Act, as guardians or financial managers for a person are therefore required, among other things, to give paramount consideration to the interests of that person. Further, the views of the subject person should be taken into account. The need to protect the community from harm and to protect the safety of members of the public do not figure as principles to be applied by guardians or financial managers. This is different from the situation under the MHFP Act. The objects of Pt 5 of the MHFP Act, which are set out above, cover both the interests and protection of the safety of members of the public, as well as providing for the care, treatment, and control of persons who are forensic patients.
There is some scope for a guardian to take coercive action if a person the subject of a guardianship order refuses to take medication that the guardian decides the person should take, or refuses to attend medical or similar appointments, or receive treatment that the guardian determines should be attended or received. Action to force a subject person to comply with a guardian's decisions might be able to be taken, for example, if, in the guardianship order, a coercive function was expressly conferred pursuant to s 46A of the Guardianship Act. It should be noted, however, that s 46A(4) provides: "The guardian may exercise such an authority only if satisfied that the proposed treatment is manifestly in the best interests of the patient."
No such coercive function is conferred under the current guardianship order applicable to the defendant. In addition, enforcement by coercion could not generally be undertaken by a guardian promptly or without admission to a hospital. Furthermore, there would also be significant doubt whether a guardian could require a person the subject of a guardianship order: 1. to take medication; 2. to undergo testing for alcohol or illicit drugs; or 3. to undergo testing to monitor their testosterone level, against their express wishes and in order to ensure the protection of the public rather than because it was in the best interests of the subject person.
An appreciation of the differences between how the risk posed by the defendant could be managed by the MHRT, as compared to how that risk could be managed under a guardianship order can be gained by comparing: 1. the orders of the MHRT presently applicable in respect of the defendant, set out in the Appendix 1 to these reasons for judgment; and 2. the current order of the Guardianship Division of the Civil and Administrative Tribunal of New South Wales (NCAT) concerning the defendant, set out in Appendix 2.
In my view, given their respective natures and functions, the MHRT is better able to manage the risk of causing serious harm to others posed by the defendant than the Guardianship Division of NCAT. The evidence of Dr Eagle and Dr Furst as to the difficulties and risks involved in having the defendant managed under a guardianship and financial management regime, instead of as a forensic patient, support this conclusion.
As to the defendant's attitude towards his future, particularly in relation to alcohol, seeking assistance when required, and his future plans for himself and his scrap metal work, Dr Eagle's comments in relation to these matters, taken in the context of her report as a whole and in the light of the other information available, do not support the conclusion that a guardianship and financial management regime would adequately address the risk posed by the defendant. Ms Howell and Dr Furst are also of the view that such a management regime would not adequately address the defendant's risk level.
Finally in this regard, I note the comments of the CJP and New Horizons staff responsible for managing and supervising the defendant, concerning the possibility of adequate funding not being available. While the evidence does not allow any definitive conclusions to be drawn, it is distinctly possible that the risk of lack of funding, leading to inadequate management of the defendant, would be greater if the defendant is managed under a guardianship and financial management regime instead of as a forensic patient.
On the evidence, I am satisfied to the requisite standard that the risk in relation to the defendant cannot be adequately managed by other less restrictive means than the making of an order extending the forensic status of the defendant.

[26]

The defendant's current conditions on his release into the community imposed by the MHRT "Having reviewed Mr Herbert McGuire on 29 May 2018, pursuant to s46 and s47 of the Mental Health (Forensic Provisions) Act 1990, the Tribunal orders that Mr McGuire remain conditionally released by the conditions of release be varied as follows: Case Manager 1. Mr McGuire accepts Mr Mathew Gullotta or his delegate, of the Community Justice Program (CJP) as his case manager. He will be managed by his case manager in accordance with the Family and Community Services (FACS) Policy and Guidelines that are applicable to CJP clients. 2 Mr McGuire accepts such case management and support of case manager and/or such other support persons or authorised officers nominated by the CJP for the purpose of carrying out the CJP's SNRG Case Implementation Plan, with such regularity and in accordance with such arrangements as to time and place of such attendance or visits as shall be determined from time to time by his case manager. 3. Mr McGuire accepts such community based mental health services and case management from such Community Mental Health Service as shall be nominated by his case manager for additional psychiatric care and case management. 4. Mr McGuire is to participate in such education training, rehabilitation, recreational, therapeutic, or other programmes, including drug and alcohol programmes, as shall be directed from time to time, in consultation with his case manager. 5. Mr McGuire must attend a mental health facility if directed to do so by his case manager or psychiatrist. NB: A forensic patient may also be scheduled and taken to a mental health facility under the Mental Health Act 2007 6. The case manager may nominate a delegate to act as case manager in his or her place from time to time. Psychiatrist 7. Mr McGuire is to accept as his treating psychiatrist, Dr Jeremy O'Dea of the Level 8 Practice, 17/235 Macquarie Street, Sydney, or his delegate. 8. Mr McGuire shall meet with his Dr O'Dea, or his delegate, with such regularity as determined by Dr O'Dea or his delegate. Dr O'Dea will determine when and where these meetings are to take place. 9. Mr McGuire is to accept all medication and other treatment prescribed by his treating psychiatrist. He shall follow the directions of his treating psychiatrist as to the identity of the person to administer the medication and the place, mode and regularity of administration of such medication. He shall take the medication in the way prescribed by the treating psychiatrist. 10. Mr McGuire is to accept and engage in such psychotherapeutic interventions as are recommended by his treating psychiatrist. 11. If the treating psychiatrist is concerned about Mr McGuire's mental state, the treating psychiatrist may direct him to attend a mental health facility and seek admission to that facility as a voluntary patient. Mr McGuire must immediately comply with that direction. NB: A forensic patient may also be scheduled and taken to a mental health facility under the Mental Health Act 2007 12. The treating psychiatrist may nominate a delegate to act as treating psychiatrist from time to time. Drugs and Alcohol and Gambling 13. Mr McGuire is only to take those mind or mood altering drugs prescribed by the treating psychiatrist only in accordance with the prescribe and with the consent of Mr McGuire's regular registered medical practitioner. 14. Mr McGuire is not to take non-prescription drugs or medication without the knowledge and approval of his case manager or regular registered medical practitioner. 15. Mr McGuire is to remain totally abstinent from alcohol, illegal drugs and substances. 16. Mr McGuire must submit to any tests for the detection of the use of drugs and substances including alcohol as shall be required from time to time by his case manager and/or treating psychiatrist. These tests to be administered randomly, at the discretion of the case manager and/or treating psychiatrist. 17A. (1) If Mr McGuire's Case Manager (or delegate) reasonably believes that a search (of the type referred to in sub-paragraphs c to d below) is necessary: to monitor Mr McGuire's compliance with the conditional release order; or because the case manager (or delegate) reasonably suspects Mr McGuire of having used alcohol or illicit drugs or having such alcohol or illicit drugs on his person or in his residence; then the case manager (or delegate) may direct, and Mr McGuire must submit to: a search and inspection of any part of, or anything in, Mr McGuire's approved accommodation; a search and examination of his person in his approved accommodation. (2) For the purposes of sub-paragraph (1) above: a search of Mr McGuire means either or both a garment search or a pat down search. to the extent practicable a pat-down search will be conducted by a person of the same sex as Mr McGuire, or by a person of the same sex as Mr McGuire under the direction of the case manager (or delegate). (3) During a search carried out pursuant to sub-paragraph (1) above, Mr McGuire must allow the case manager (or delegate) to seize any alcohol or illicit drugs, or any vessels or other accoutrements relating to alcohol or illicit drugs. NOTE: "Garment search" means a search of any article of clothing worn by Mr McGuire or in Mr McGuire's possession, where the article of clothing is touched or removed from Mr McGuire's body. "Pat-down search" means a search of Mr McGuire where Mr McGuire's clothing body is touched. 18. That Mr McGuire is not to engage in any form of gambling. Accommodation 19. Mr McGuire is to live at Unit 5, 9-11 Cammarlie Street, Panania NSW 2213. If he wishes to live at another address, his case manager must first agree that the alternative accommodation is appropriate. 20. Mr McGuire must notify his case manager of his current telephone number. The Tribunal must be notified in writing of any plans to change address. 21. Mr McGuire is entitled to be absent overnight from his agreed accommodation, but must first obtain the approval of his case manager and agree to carry out any reasonable directions given by his case manager as to leave or absence from that accommodation. 22. Mr McGuire must not travel interstate and overseas without the Tribunal's approval. This approval can be granted in writing by the President or a Deputy President of the Tribunal. Conduct 23. Mr McGuire must not engage in unlawful conduct or conduct that could give rise to a reasonable apprehension that the safety of himself or of any member of the public is, or could be, seriously endangered. Other conditions 24. Mr McGuire to provide his case manager with a recent (head and shoulders) photograph of a quality acceptable to the case manager. Alternatively he must cooperate while his case manager or delegate takes a photograph of him. The case manager is to provide a copy of the photograph to the Tribunal. 25. Mr McGuire must attend Mental Health Review Tribunal reviews according to arrangements as notified in advance to him, his case manager, his treating psychiatrist and his solicitor, in writing by the Tribunal. 26. Mr McGuire shall allow the sharing of information about his treatment, progress and management between his treating psychiatrist, case manager and any other person or persons providing health care management and support services to Mr McGuire. Non Association and Place Restriction 27. Mr McGuire shall not approach, or initiate any communication, or attempt to initiate any communication, in any way, or through any medium, with [XX] or any member of her family. 28. Mr McGuire is not to enter the Queanbeyan Local Government Area at any time."

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Judgment (28 paragraphs)

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Cases Cited (12)

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