Attorney General for New South Wales v MM

Supporting documentation

1. The supporting documentation was provided in two folders. They contained a case statement, a joint memorandum of facts and issues, and submissions by counsel for the plaintiff and the defendant. The plaintiff relied on affidavits of Jennifer Tsui which annexed various relevant documents including the defendant's criminal history, and judgments of District Court judges in respect of the defendant's unfitness to be tried, special hearing and a judgment in relation to setting the limiting term. There were also reports from psychiatrists, psychologists and other experts to which I will refer, and reports by the Mental Health Review Tribunal. The defendant relied on an affidavit by Dr Katherine Johnson, who has consented to act as MM's tutor in these proceedings, and from Callum Hair as to MM's current NDIS plan.

Background

1. By way of background, MM is 55 years old. He is not assessed as mentally ill by any of the qualified experts who have assessed him. He is assessed as having an alcohol use disorder and a mild neurocognitive disorder due to his long term alcohol abuse.
2. The defendant comes before the Court as a forensic patient in the following circumstances.
3. In 2020 he was charged with the aggravated sexual assault of his 16 year old stepdaughter, alleged to have occurred on 27 May 2020. The allegation was that while the complainant was staying overnight at the defendant's home, she woke from sleep to find the defendant having penile-vaginal sexual intercourse with her. The aggravating circumstance was alleged to be that the complainant was under the defendant's authority at the time of the sexual intercourse.
4. On 7 June 2021 Judge O'Brien AM of the District Court found MM unfit to be tried. In so finding his Honour had regard to reports of Dr Travis Wearne, psychologist, dated 30 December 2020, and Dr Adam Martin, psychiatrist, dated 12 March 2021. Dr Wearne obtained a history from MM of a "lifelong trajectory of alcohol and substance misuse". Dr Wearne assessed MM's overall level of intellectual functioning as in the extremely low range. Mr Wearne found that MM had reductions in his cognitive functioning. He said MM's impairments in his learning, memory and higher-level executive skills suggested a significant degree of alcohol-related brain injury and cognitive impairment in the context of his long history of heavy alcohol use.
5. Dr Martin said it was likely MM has mild neurocognitive disorder, substance induced. He said he presented in a manner consistent with brain damage secondary to heavy alcohol and cannabis use. He said MM did not appear to have a major mental illness such as schizophrenia, but he had a background of substance use disorder, of alcohol and cannabis, which had impacted on his intellectual functioning and likely affected issues in cognitive domains such as language, memory, concentration and capacity to process information in a sophisticated way. Dr Martin said MM's lack of capacity to participate in his trial was "in the context of cognitive deficits on a background of probable low-average intelligence ".
6. Judge Traill conducted a special hearing on 1 December 2021 and delivered judgment on 17 February 2022. Her Honour found that on the limited evidence available the defendant had committed the offence of sexual intercourse without consent with his stepdaughter when she was under his authority. On 1 September 2022 her Honour imposed the four year limiting term. The commencement date was subsequently amended so that the order expires on 27 May 2024. In setting the limiting term her Honour had regard to a report from Jeremy O'Dea psychiatrist, of 19 July 2022.
7. Dr O'Dea obtained a history from MM that he had drunk alcohol every day through his adult life from the age of 17 or 18 years until his incarceration in 2020. Dr O'Dea also noted MM's developmental history of disadvantage, with a history of sexual abuse as a child, and a history of limited schooling and limited adult employment. Dr O'Dea said MM had a history of severe and long-standing substance use disorder, in particular alcohol use disorder and cannabis use disorder. He said MM presented at the interview with him with significant cognitive impairment, consistent with a mild neurocognitive disorder, likely related, at least in large part, to his history of alcohol abuse. Dr O'Dea said he did not diagnose MM as suffering a major psychiatric illness and he noted that previous recent psychiatric assessments had also not identified MM as suffering a major psychiatric illness. He expressed the opinion that the sexual offence was related to MM's intoxication at the time and his likely level of cognitive impairment impairing his judgment and behavioural control, rather than directly related to a specific paraphilic disorder. Dr O'Dea noted that MM had no prior convictions for sex offences. He expressed the opinion that MM's risk of committing a further sex offence would be considered relatively low, particularly if he were to remain abstinent from alcohol and other illicit substance use in the community in the long-term, and if he were to have effective management and support in the community in relation to his neurocognitive deficits, and if he were not to have any children under his supervision.
8. To complete the recent history, I note that MM was released from custody by order of the Mental Health Review Tribunal on 8 November 2023, to live with his mother in Tamworth, under supervision. I note that reports from his supervising officers indicated MM has remained abstinent from alcohol use while under supervision, such that on 12 February 2024 the Tribunal reduced the frequency of his drug and alcohol testing from weekly to upon request by his case manager.

Life circumstances and prior criminal history

1. MM has told report writers that he is a Kamilaroi man, born in Moree. He reported that at age 7 he was sent to the Far West Home in Manly, because of a disability with his feet and/or legs. He reported that in that institution he was physically and sexually abused by a person who worked there.
2. His criminal history includes offences of violence, mostly against former domestic partners. Those offences include:

• In 1995 the defendant was convicted of assault, by punching his partner in the face and kicking her leg. He was placed on a 12 month good behaviour bond.
• In 1999 he was convicted in his absence of common assault and breaching an apprehended domestic violence order. A warrant was ordered to issue. His record seems to suggest that when those matters came before the court by way of the warrant being executed they were dismissed, with no evidence being offered.
• In 2000 he was convicted of a common assault and placed on a 12 month good behaviour bond with a condition that he attend Alcoholics Anonymous regularly.
• In 2001 he was convicted of intimidation and assault. On appeal to the District Court he was placed on a 12 month good behaviour bond with a condition that he attend a rehabilitation facility.
• In 2001 he assaulted the same partner the subject of the earlier assault by punching her four times in the face.
• In 2003, the defendant was convicted of damaging property by breaking a window of the same partner's house by hitting it with his shoe. An AVO was made for the protection of that person.
• In 2006, the defendant was convicted of breaching that apprehended violence order by, when well affected by alcohol, threatening to kill her. He was placed on a two year good behaviour bond.
• In 2008 the defendant was convicted of assaulting the same woman, causing her actual bodily harm, by punching her to the face and grabbing her throat with his hands, causing pain and bruising to her throat and neck. He was sentenced to 15 months imprisonment, suspended.
• In 2015 the defendant was convicted of an assault and placed on a three year good behaviour bond.
• In 2015 there was a further conviction for an assault for which the defendant was fined $200 and placed on a 12 month good behaviour bond.
• In 2018 the defendant was convicted of intimidating the carer of one of his children who was in care. He was placed on a two year good behaviour bond.

1. There is an apprehended violence order in place to protect the victim of his sexual assault offence, made on 12 September 2022, for two years, expiring on 12 September 2024.

Recent behaviour and recent assessments of the defendant

1. The defendant was taken into custody on 28 May 2020 in relation to his recent sexual assault offence. Reports note that he did not incur any institutional offences while in custody, but there were observations of him behaving in an aggressive, intimidating, bullying, and threatening way in relation to other inmates and some staff. However, he was also reported to have completed a number of educational, vocational and rehabilitation programs, including a driver knowledge test, and attending Narcotics Anonymous sessions and sessions with a psychologist. He was said, in a report of 11 October 2022 by Emily Higgins, psychologist, Statewide Disability Services, Corrective Services New South Wales, to have engaged well with her in interview and brought course certificates to the interview to demonstrate his progress.
2. In July 2023 Dr Sathish Dayalan, psychiatrist, was asked to interview and assess MM. He interviewed him on 7 July 2023 and prepared a report dated 4 August 2023. MM told Dr Dayalan of his childhood abuse and said he was looking forward to "getting help when [he] got out because [he] never had before". He told Dr Dayalan that he had been advised he was not eligible for a sex offender program (which is confirmed elsewhere in the supporting documentation). To Dr Dayalan he denied his past domestic violence offences, stating they had occurred in the distant past, and he had been drunk at the time. He attributed his sexual assault offence to being intoxicated and having drunk a lot. He denied any intent to drink alcohol in the future. He said if he felt the urge to drink he would speak to a family member or his NDIS worker, and he intended to attend AA meetings in the community as a form of alcohol rehabilitation.
3. Dr Dayalan said the extent of alcohol use MM reported supported a diagnosis of alcohol use disorder. He said MM's personality traits and alcohol use disorder predisposed him to anxiety and depressive disorders. Dr Dayalan said although he did not undertake a formal assessment, it was apparent that MM has ongoing cognitive impairment. He said MM suffers from mild neurocognitive disorder due to substance use.
4. In terms of his risk assessments Dr Dayalan acknowledged the challenges to predicting a person's risk of reoffending using the risk assessment instruments.
5. Dr Dayalan said MM has a: "…high loading of historical risk factors including history of violence, history of other anti-social behaviour, problems with relationships, problems with employment, problems with substance use, borderline personality traits, a history of traumatic experiences and problems with treatment or supervision response".
6. He said MM also has problems with insight, affective and behavioural instability and problems with treatment response. He said the risk management variables if MM were to be released into the community without formal supervision would include problems with professional services and plans, potential problems with living circumstances, problems with personal support, problems with treatment and supervision response and problems with stress or coping.
7. Using the Static-99R risk assessment instrument for sexual reoffending Dr Dayalan assessed MM as in the average risk level. Using the Stable 2007 instrument to identify dynamic risk factors relevant to sexual reoffending, whilst acknowledging limitations in that instrument, Dr Dayalan assessed MM as presenting with a moderate level of dynamic risk and needs. Dr Dayalan said MM's risk of sexual reoffending was assessed to be in the average range, and alcohol use and emotional dysregulation would probably increase that risk.
8. Dr Dayalan said MM's alcohol use disorder has been chronic but cannot be classified as a permanent condition; his mild neurocognitive disorder is a permanent condition.
9. Dr Dayalan said MM's past violent offences were mostly committed in the context of being intoxicated with alcohol, and he was described as "very intoxicated" at the time of the sexual offence. Dr Dayalan said MM's alcohol use disorder has a significant correlation to his risk of reoffending. He said mild neurocognitive disorder is not identified as a condition commonly associated with a significant risk of reoffending, but it could impact on MM's ability to follow conditions of any legal order made, thereby increasing the risk of any breaches.
10. Dr Dayalan said MM's high loading of historical factors indicates that he poses a risk of violence in the long-term. He said the most relevant dynamic risk factor is substance use, and any relapse into use of alcohol will be associated with a significant risk of causing serious harm to others. He said MM has had brief periods of abstinence followed by relapses, often in the context of psychosocial stressors. He said MM is unlikely to engage in treatment and ongoing rehabilitation unless his participation is mandated. He said: "If he ceases to be a forensic patient and there were no other means to implement and monitor treatment interventions, he would be regarded to pose a risk of causing serious harm to others".
11. Dr Dayalan said the nature of the risk posed is more likely to result in physical harm than sexual harm, according to the risk assessment instruments. He said MM does not present with features of sexual deviance. He said his future partners are most likely to be the victims of violence, especially if he were to relapse into alcohol use. He said his level of risk will be influenced by his abstinence from substances, engagement in treatment and rehabilitation, mental state, psychosocial support and level of supervision. He said exposure to stressful events or circumstances and limited support would exacerbate MM's risk of relapse into alcohol use and emotional and behavioural dysregulation. He said there are concerns MM will not engage in ongoing treatment and rehabilitation and that he has a history of not engaging with services that intended to assist him. He said a continuation of his forensic patient status in the community would be recommended to manage the dynamic risk variables relevant to his risk of causing serious harm to others. He said the least restrictive means capable of managing the risk posed by MM would be placement in the community as a forensic patient.
12. In a report dated 19 April 2023 Emily Higgins, psychologist for Statewide Disability Services, Corrective Services New South Wales, assessed MM's risk of sexual reoffending using the Static-99R instrument as average.
13. In a report dated 30 June 2023 Rhianna Merhi, a Behaviour Support Practitioner, prepared an Interim Behaviour Support Plan in relation to MM's NDIS support. The report noted that MM had expressed motivation and willingness to remain abstinent from alcohol and cannabis after his release from custody. MM has a current NDIS plan which commenced on 17 April 2024 and expires on 17 April 2025.
14. Mathew Gullotta, psychologist, prepared a Risk Assessment Report dated 20 September 2023 for the purposes of the MHRT considering MM's conditional release. Mr Gullotta said MM's most significant risk factors relate to alcohol misuse, emotional coping and sexual knowledge. MM reported to Mr Gullotta that he drank alcohol because he was "a bit depressed" but recognised that his problems came back when he stopped drinking. When Mr Gullotta asked MM about his interest in attending alcohol and substance intervention, he said MM said he never knew he could ask for help but now he knew there were people who would help.
15. Mr Gullotta said it is important to note caution with the practice of risk assessment. He assessed MM as in the average risk level for another sexual offence, and in the above average risk level for another general or violent offence. He said MM had struggled with alcohol and cannabis but had sustained periods of stability with some long-term intimate relationships. He said MM's most significant risk factors and intervention needs are related to difficulties with substance use (alcohol), childhood trauma, poor emotional coping, relational issues, poor sexual knowledge, associated with his cognitive impairment.
16. Mr Gullotta said: "Should he sexually reoffend, I would speculate that it would be an opportunistic act involving a post-pubescent woman known to [MM]. The offence will likely occur while under heavy alcohol influence… Increased reoffending risks could stem from stressors like unemployment, negative affect resulting from traumatic experiences; and/or relationship difficulties, including boredom".
17. He said: "Should he generally reoffend, I speculate it would be on the minor end of the spectrum. It would be impulsive and opportunistic. The likeliest offences would be related to driving, theft, or violence, especially if he relapses into alcohol abuse, exacerbating his disinhibition, emotional coping deficits, and reactive aggression."
18. Mr Gullotta said that his opinion was that if MM was conditionally released with the proposed plan, his opinion was the likelihood of his sexual reoffending would fall in the low range and the likelihood of general reoffending would fall in the moderate range. He said MM presents some risk of causing physical harm to others, although such harm would most likely be perpetrated in the context of relapse into alcohol and substance abuse.
19. On 21 September 2023 Glenn Williams, Senior Clinical Consultant in the Community Safety Program, Department of Communities and Justice, prepared a Transition Plan for the MHRT. He said the key approach to mitigating MM's risk and needs in the community included building his connection with his family and community, access to supports and services to address his assessed risk and needs, finding ways to socialise and cope with stressors beyond alcohol use, and access to recreation, employment, education and culture. He noted that the Community Safety Plan would end should MM's forensic patient status expire, although his NDIS supports and services would continue, and that he had informal social supports from his mother and sister. Mr Williams noted that MM's mother was a senior member of the Aboriginal community in Tamworth and was involved in many community-based programs and had expressed her willingness to assist MM to engage in those programs.
20. Emily Higgins's report of 3 October 2023 assessed MM's risk of sexual reoffending as in the average risk level.
21. In a letter dated 1 February 2024 to the Mental Health Review Tribunal Glenn Williams advised the Tribunal that since his conditional release and last review, the Community Safety Plan Case Management Team had met weekly with MM and had case conferences with the community-based supports and services in Tamworth. He advised MM was living with his mother, had attended his local Centrelink/Medicare office to obtain his Medicare card, had commenced casual work and had promptly submitted to all weekly alcohol testing, with constant negative results recorded. Mr Williams sought to reduce the frequency of his alcohol testing in response to MM's positive progress. He reported MM had engaged with a general practitioner and obtained his learner's drivers licence and was accruing driving experience.
22. Community Safety Program progress notes annexed to a further affidavit of Jennifer Tsui included a note of 30 March 2024 that MM was staying away from drugs and alcohol and was not tempted by family members using them in front of him at his mother's home, and a note of 6 April 2024 that he has been helping his twin sons who are using the drug ice, the previous night he had had a fight and physical altercation with his son, after which MM went for a walk to calm down and was able to stay away from drinking, recognising that he was accustomed to using alcohol as a coping mechanism in highly emotional times, but on that occasion, did not think about having a drink.

Plaintiff's submissions

1. I have referred above to the submissions made on behalf of the defendant.
2. The Plaintiff submitted that if the defendant was not supervised in the community his main risk factors would be:

• housing instability - as he wishes to not live with his mother as he does at present, and there is some tension among family members about MM living with his mother.
• relapse into alcohol misuse - and there will be no requirement for him to be tested.
• he would not continue to see psychiatrists or psychologists or take medication, as he told Dr Daydan he would not do once his forensic patient status ended.

1. The Plaintiff submitted that MM would be unlikely to be eligible for a Community Treatment Order (which I accept) and that his NDIS Plan does not provide the same level of support as when he is supervised as a forensic patient, and it contains no provision for accommodation support.
2. Therefore the Plaintiff submitted that there are no less restrictive means than an extension of the defendant's forensic patient status that will adequately manage his risks of causing serious harm to members of the community, especially women and children close to him.

Consideration

1. I have had regard to all of the material in the supporting documentation, which I have summarised above, and considered pursuant to s 127(2) of the Act to the extent available.
2. The defendant's primary risk factors identified in that material are relapse into alcohol abuse and aggressive behaviour, and to a lesser extent sexual reoffending if intoxicated.
3. I note that while under supervision in the community since November 2023 the defendant has been compliant with his supervision requirements and abstinent from alcohol.
4. I accept there is a risk that if he is not under supervision he may relapse to alcohol use, given his past lengthy history of such, and he may stop attending medical practitioners and taking medication which assist his behaviour. He may then, in times of stress, without the support of professionals, resort to alcohol to attempt to cope.
5. As to his risk of causing serious harm, I do note that apart from his sexual offence, which was undoubtedly serious, the harm he has caused in the past has not gone beyond actual bodily harm. That is not however necessarily an answer to his future risk of causing serious harm to members of the community.
6. Between extending MM's forensic patient status, and his being in the community unsupervised, there are no other options. That is, there are no less restrictive means available to adequately manage his risks than extending his forensic patient status.
7. I am satisfied that the matters alleged in the supporting documentation would, if proved, justify the making of an extension order, in that I am satisfied to a high degree of probability that MM 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, and his current limiting term will expire before these proceedings are determined.

Orders

1. Therefore I make the following orders: 1. Pursuant to ss 130 and 131 of the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 the defendant is subject to an order for the interim extension of his status as a forensic patient commencing from 28 May 2024 for a period of 3 months. 2. Pursuant to s 126(5) of the Act: 1. I appoint two qualified psychiatrists, registered psychologists or medical practitioners (or any combination of 2 such persons) to conduct separate examinations of the defendant and to provide reports to the Supreme Court on the results of those examinations by a date to be fixed by the Court when a date for the final hearing is fixed; and 2. I direct the defendant to attend those examinations.

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