Attorney General for New South Wales v Mulipola

Supreme Court of NSW|2021-04-29|Before: Walton J

Solicitors: Crown Solicitor's Office (Plaintiff) Legal Aid NSW (Defendant) File Number(s): 2021/52849

EX TEMPORE Judgment - REVISED

HIS HONOUR: This matter proceeds by way of an amended summons filed in Court on 21 April 2021. That amendment is essentially in recognition of the proceedings now properly being the subject of the provisions of the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW) ("the Act") rather than the former legislative provisions of the Mental Health (Forensic Provision) Act 1990 (NSW) ("the former Act"). Having regard to the transitional provisions found in Sch 2 Pt 2 cl 3(1), the position adopted by the plaintiff in that respect was, in my view, a sound one.

The Application before the Court

In moving on the amended summons at the preliminary hearing, the plaintiff, the Attorney General of New South Wales, sought relief of an interim or interlocutory character under prayers for relief 1 and 2 of the amended summons together with ancillary relief under prayer for relief 4 of the amended summons, namely: Interim and interlocutory relief 1. An order pursuant to ss 121 and 126(5) of the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 ("the Act"): a. appointing two qualified psychiatrists, registered psychologists and/or registered medical practitioners (or any combination of two such persons) to conduct separate examinations of the Defendant and to furnish reports to the Supreme Court on the results of those examinations by a date to be fixed by the Court; and b. directing the Defendant to attend those examinations. 2. An order pursuant to ss 121, 130 and 131 of the Act, that the Defendant be subject to an interim order for the extension of his status as a forensic patient commencing from tat the first moment of 12 May 2021 and expiring three months later. … Ancillary relief 4. An order restricting access to the Court's file in this proceeding such that access would be permitted to a non-party only with leave of a Judge of the Court, and with prior notice to the parties so as to allow them an opportunity to be heard in respect of the application for access.
The application for interim and ancillary relief was not opposed by the defendant. Notwithstanding the absence of opposition, the defendant correctly submitted that the Court must still satisfy itself that an interim order is necessary on the material before it. (Counsel for the defendant also noted the defendant's opposition to prayer 3 of the amended summons and reserved its position to respond to that prayer at the final hearing.)
On that application, the plaintiff relied upon the affidavits of Ms Lucy Nichols, solicitor for the plaintiff, affirmed 24 February 2021, 25 March 2021 and 6 April 2021, respectively. I note in that respect that there is exhibited with Ms Nichols affidavit of 24 February 2021 exhibit LN-1. In light of the position adopted by the defendant at the preliminary hearing, no material was tendered by the defendant.
It is upon the bases of that material and the submissions made by the plaintiff in written submissions, together with some short oral supplementation at the preliminary hearing, that the relief claimed in the matter was urged upon the Court.
Section 103 of the Act empowers the Court to extend a person's status as a "forensic patient" in accordance with Pt 6 of the Act.
A "forensic patient" is defined in s 72 of the Act. As the definition has different wording to the former provision of s 42 of the Mental Health (Forensic Provision) Act 1990 (NSW), it is set out in full below: 72 Forensic Patients (1) The following persons are "forensic patients" for the purposes of this Act-- (a) a person who is found unfit to be tried for an offence and who is detained in a mental health facility, correctional centre, detention centre or other place, (b) a person for whom a limiting term has been nominated after a special hearing (including a person who is subsequently subject to an extension order or an interim extension order) and who is detained in a mental health facility, correctional centre, detention centre or other place or who is released from custody subject to conditions under an order made by the Tribunal, (c) a person who is the subject of a special verdict of act proven but not criminally responsible and who is detained in a mental health facility, correctional centre, detention centre or other place or who is released from custody subject to conditions under an order made by a court or the Tribunal, (d) a person who is a member of a class of persons prescribed by the regulations for the purposes of this section. (2) To avoid doubt, a person is not a forensic patient if the person has been found unfit to be tried for an offence and has been released on bail.
I accept the defendant is a "forensic patient" for the purposes of the Act.
An application for an extension order can only be filed if the defendant is on a limiting term (or an existing extension order) and any such application must be filed within the last 6 months of that limiting term (or current extension order): s 124 of the Act. Those requirements are met because: 1. on 9 December 2016, Noman SC DCJ imposed a limiting term of 6 years and 6 months, which expires on 12 May 2021; and 2. the summons was filed on 24 February 2021, whilst the defendant was still subject to the limiting term, and within the last 6 months of that term.
As required by s 125 of the Act, the application brought by the plaintiff is supported by: 1. documentation addressing each of the matters in s 127(2), to the extent relevant; and 2. two reports prepared by qualified psychiatrist Dr Andrew Ellis, dated 24 August 2020 and 22 October 2020, that assess the risk of the defendant causing serious harm to others and addresses the need for ongoing management of the patient as a forensic patient and the reasons why his risk cannot be adequately managed by other less restrictive means.

Principles

I now turn to a summary of the principles governing preliminary hearings of this kind, which, notwithstanding the new legislation, are well settled. At the outset, it may be noted that the relevant provisions of the Act substantially repeat the wording of the former Act. As such, the principles governing the application of the provisions of the former Act remain relevant and applicable in the context of the new Act.

Preliminary hearing

Before the Court can make an order under s 126(5)(a) appointing the relevant experts, or make an interim extension order under s 130, it must be satisfied that "the matters alleged in the supporting documentation would, if proved, justify the making of an extension order". Accordingly, on the preliminary hearing the Court will need to consider whether there is a prima facie case that an extension order should be made. (It may be noted that the relevant authorities address the equivalent provisions of cl 6(5)(a) and cl 10 of Sch 1, respectively, of the former Act).
In Attorney General for New South Wales v Rohan (Preliminary) [2020] NSWSC 1610 ("Rohan") at [49], Hoeben CJ at CL observed that cl 6(5)(a) of Sch 1 of the former Act is to be applied without considering what evidence might be called by the defendant at the final hearing, or any evidence called by the defendant at the interim hearing. His Honour also observed that one purpose of the preliminary hearing stage is to allow the Court to filter out unmeritorious applications at an early stage, and to give the Court the benefit of the expert opinions of two independent witnesses before making a final decision: Rohan at [47]. I adopt those principles with respect to s 126(5)(a).

Unacceptable risk

At final hearing, the Court must be satisfied to a high degree of probability that the defendant poses an unacceptable risk of causing serious harm to others if he or she ceases being a forensic patient: s 122(1)(a) of the Act (cl 2(1)(a) of the former Act being the equivalent provision). The Court is not required to determine that the risk of the person causing serious harm to others is more likely than not in order to determine that the person poses an unacceptable risk of causing serious harm: s 122(2). The risk is to be assessed on the assumption that the defendant is not a forensic patient or an involuntary patient: Rohan at [26] (considering cl 2(1)(a) of the former Act).
Assessing whether a forensic patient would pose an unacceptable risk of causing serious harm to others is an evaluative exercise, and involves considering both the likelihood of the risk of harm eventuating as well as the gravity of the risk that may eventuate: Attorney General for NSW v MZ [2017] NSWSC 1773 ("MZ") at [11] (per Fullerton J). The assessment is to be made in the context of the objects of the forensic patient scheme - which include protecting the safety of members of the public, ensuring the appropriate care of forensic patients, and protecting the victims of forensic patients (s 40 of the former Act) - but acknowledging that the Court's obligation is to secure the community from harm to a reasonable or adequate degree as opposed to guaranteeing its safety and protection: MZ at [11]; see also Attorney-General of NSW v McGuire (No 2) [2014] NSWSC 288 at [59] (per Garling J).
Under the Act, the relevant object of Pt 5 of Act appears at s 69 (with slight alteration to the objects that appeared at s 40 of the former Act): 69 Objects The objects of this Part are as follows-- (a) to protect the safety of members of the public, (b) to provide for the care, treatment and control of persons subject to criminal proceedings who have a mental health impairment or cognitive impairment, (c) to facilitate the care, treatment and control of any of those persons in correctional centres or detention centres through community treatment orders, (d) to facilitate the provision of hospital care or care in the community through community treatment orders for any of those persons who require involuntary treatment, (e) to give an opportunity for those persons to have access to appropriate care, (f) to protect the safety of victims of forensic patients and acknowledge the harm done to victims.
The following principles, with respect to "serious harm" referred to in cl 2(1)(a) of the former Act, apply to "serious harm" as referred to in s 122(1)(a) of the Act: 1. The "serious harm" referred to in cl 2(1)(a) encompasses a broader range of conduct than the concept of "serious sex offences" or "serious violence offences" under the Crimes (High Risk Offenders) Act 2006 (NSW): Rohan at [35]. 2. The "serious harm" which must be considered is not limited to physical harm and it may include psychological harm: Attorney General of New South Wales v Kereopa (No 2) [2017] NSWSC 928 ("Kereopa No 2") at [16] (per R A Hulme J). 3. "Serious harm" need not be "grievous bodily harm" but involves "something more than would satisfy the minimum threshold for 'actual bodily harm' under the criminal law…[and] psychological harm must be something more than emotions such as fear or panic": Kereopa No 2 at [16], cited approvingly in Rohan at [36].
The expression "high degree of probability" indicates something "beyond more probably than not", so that the existence of the risk does have to be proved to a higher degree than the normal civil standard of proof, but not to the criminal standard of beyond reasonable doubt: Rohan at [22], citing Cornwall v Attorney General of New South Wales [2007] NSWCA 374 at [21] (in the context of the Crimes (High Risk Offenders) Act).
The right of a forensic patient to his or her personal liberty at the expiry of the limiting term is not a relevant consideration in the determination of whether they pose an unacceptable risk for the purposes of s 122(1)(a): Rohan at [33] (per Hoeben CJ at CL, citing Attorney General for the State of New South Wales v Boyce by his tutor Jennifer Thompson [2017] NSWSC 144 and Lynn v State of New South Wales [2016] NSWCA 57, with respect to cl 2(1)(a) of the former Act).
In considering whether or not to make an extension order, the Court must have regard to the matters in s 127 of the Act.
Section 127 provides: 127 Determination of application for extension orders (1) The Supreme Court may determine an application under this Division for an extension order-- (a) by making the order, or (b) by dismissing the application. (2) In determining whether or not to make an extension order, the Supreme Court must have regard to the following matters in addition to any other matter it considers relevant-- (a) the safety of the community, (b) the reports received from the persons appointed under section 126(5) to conduct examinations of the forensic patient, (c) the report of the qualified psychiatrist, registered psychologist or registered medical practitioner provided under section 125(b), (d) any other report of a qualified psychiatrist, registered psychologist or registered medical practitioner provided in support of the application or by the forensic patient, (e) any order or decision made by the Tribunal with respect to the forensic patient that is relevant to the application, (f) any report of the Secretary of the Ministry of Health, the Commissioner of Corrective Services, the Secretary of the Department of Communities and Justice or any other government Department or agency responsible for the detention, care or treatment of the forensic patient, (g) the level of the forensic patient's compliance with any obligations to which the patient is or has been subject while a forensic patient (including while released from custody subject to conditions and while on leave of absence granted under this Act), (h) the views of the court that imposed the limiting term or existing extension order on the forensic patient at the time the limiting term or extension order was imposed, (i) any other information that is available as to the risk that the forensic patient will in future cause serious harm to others. (3) If the Supreme Court makes an extension order in respect of a forensic patient, the Court is to notify the Tribunal of the making of the order.
Being a preliminary hearing, s 127(2)(b) is not relevant to the present application.
The orders which are sought by the plaintiff are, in my view, available in the preliminary hearing. The plaintiff makes reference to the judgment of Davies J in Vakapora at [17], which, with respect, I adopt. His Honour observed: [17] As with applications under the CHROA, the task of the Court when dealing with an application under Sch 1 of the MHFPA is not to predict the ultimate result. Rather, the test is said to be one similar to the prima facie test applied by magistrates in committal proceedings: Attorney General for New South Wales v Tillman [2007] NSWCA 119; State of New South Wales v Thomas (Preliminary) [2011] NSWSC 118 at [11]; Attorney General for New South Wales v Boyce [2017] NSWSC 144 at [10].
That judgment is relevantly applied in the context of the provisions of the Act.
I also accept the submission advanced by the plaintiff that on this preliminary hearing the Court will need to consider whether there is a prima facie case that the relevant orders sought in the proceedings, namely, the application for extension should be made and, in that respect, I note two considerations identified in the plaintiff's submission: 1. Section 122(1) of the Act, which provides that this Court can only make an extension order if satisfied to a high degree of probability that: 1. the forensic patient poses an unacceptable risk of causing serious harm to others if the patient ceases being a forensic patient; and 2. the risk cannot be adequately managed by other less restrictive means; and 1. the factors relevant to the discretion whether to make an extension order under s 127 of the Act require consideration.

Views of court that imposed limiting term: (s 127(2)(h))

Consideration of the safety of the community involves consideration of the index offences and the patient's prior criminal history: Vakapora at [38] (per Davies J). The circumstances of the index offences were set out at the outset of this judgment. As earlier mentioned, Noman SC DCJ imposed a limiting term on 9 December 2016. Her Honour accepted that the offending was at the lower end of the scale of objective seriousness for manslaughter and at the lowest end for the supply offence. Her Honour noted "the [victim] was complicit in the supply of the heroin and its injection. I accept that she requested the second injection from [the defendant]": R v Mulipola at 6.
Her Honour made the following, inter alia, findings, with respect to the index offending: 1. In relation to the sexual assault offences, her Honour placed them as "slightly below the middle of the range" (at 6). 2. Her Honour noted that the victim's vulnerability - namely, being asleep - was an aggravating factor. Her Honour found that although the victim was close to death, the defendant was "unaware of this … and he performed each act believing she was asleep" (at 6-7). 3. Her Honour concluded the defendant was reckless as to consent for both the indecent assault and the cunnilingus (at 7). 4. Her Honour did not accept that the defendant had demonstrated any remorse. She said (at 7): At times, the content of the interviews demonstrated what I accept was a genuine concern for the victim. I do not doubt that the offender had genuine feelings for her. Even in light of the offender's incapacity that resulted in the nature of these proceedings I consider that he was well capable of expressing remorse. He on occasion spoke frankly to police. At other times he clearly lied about important circumstances. I note the absence of expressed remorse but find this of limited import.
The following evidence supports a findings that the defendant still does not have a full appreciation of the nature of those offences: 1. In the Psychological Assessment Report of Ms Laura Durkin, psychologist, dated 26 June 2015, she noted: Mr Mulipola seemed to have little to no understanding of the meaning of consent. He could not define the term and even after considerable education about this, he struggled to identify what might indicate a lack of consent or the factors that might interfere with someone's ability to consent. He did recognise that forced sexual contact is wrong but he does not seem to be aware of what constitutes forced contact or why this might be an issue. 1. An OIMS case note dated 26 November 2019, recorded that "he appears to be remorseful for his actions however does display a lack of insight in the actual offence and why he is serving a custodial sentence". Another case note dated 4 December 2019, recorded that the defendant "minimised the offence during the interview by stating that his actions weren't criminal. He believes that his conviction is unjust". 2. As recently as 21 August 2020, the following remarks of the defendant were recorded by Dr Ellis: 1. he took the videos of the victim "so she could have a laugh in the morning when she woke up"; 2. he said he was not aware that it was a crime to inject someone else with drugs, or to engage in sexual acts with someone while they were unconscious or asleep; and 3. he told Dr Ellis he thought the charges were "bullshit", although also said he knows he would not do it again.
Prior to the index offences, the defendant had a long history of offending, including: 1. in 1996, a conviction for assault, following which he was fined and banned from a hotel; 2. in 1997, a conviction for assault, resist police, and offensive language. He was fined and subject to probation for 12 months; 3. in 1997, a conviction for possessing a prohibited drug; 4. in 1998, a further conviction for possessing a prohibited drug; 5. in 2000, a conviction for robbery; 6. in 2000, a further conviction for aggravated robbery. He was sentenced to four years' imprisonment (Ex p 6). Hock DCJ noted that "[the defendant] maliciously inflicted actual bodily harm on the victim". Further, the offence was committed while the offender was on bail for the previous robbery offence, this was "a serious aggravating feature": R v Mulipola (Unreported, District Court of NSW, Judge Hock, 28 June 2001). Hock DCJ said (at 3): Not only that this second offence involved a cowardly attack by two men on one young man, 19 years of age, sitting on public transport, a place where he was entitled to feel safe and should indeed be safe. The seriousness of this offence is reflected in the maximum penalty of 20 years imprisonment. 1. in 2012, he was convicted and fined for various driving offences (driving uninsured, driving unregistered, driving with a mid-range PCA, driving unlicensed); 2. in 2013, he was convicted for destroy or damage property and common assault, and sentenced to 9 months' imprisonment. The defendant entered a lift at Cabramatta Railway Station and stopped in the doorway. The victim asked the defendant to step back from the doors so that they could close. A number of adults and children were present. The defendant said "I'm the king I'll do whatever I like" and lunged towards the victim and punched him in the face causing him to fall to the ground. Another passenger intervened, giving the victim time to leave the lift. The defendant then followed the victim and punched him again causing him to fall to the ground. The victim got up on his hands and knees, but the defendant pushed him back to the ground and kicked him with his right foot. The defendant stomped and fell on the victim. An OIMS case note dated 27 May 2013 suggests he "minimized his involvement in the offence", stating "I told him to watch where you are walking and I just pushed him a little"; and 3. in 2014, he was convicted of further driving and drug offences: on 14 December 2013, while on parole, he was found driving with bag of cannabis, under the influence of alcohol, not holding a licence, and performing a burnout.
As Dr Ellis noted, the defendant's offending has occurred in public places, such as on public streets and near or on public transport. The defendant's victims are strangers and sustain injury from punching to the face and kicking when they are on the ground. He has also persisted with offending despite punishment or supervision (including committing offences while on bail or parole for previous offences). This suggests that the defendant poses a risk to members of the public generally, and that the risk is one of "serious harm" because his offending has resulted in physical injury exceeding the threshold for actual bodily harm.

The report of the qualified psychiatrist under s 125(b) (s 127(2)(c))

Risk Assessment Report of Dr Ellis, dated 24 August 2020

Dr Ellis, forensic psychiatrist, assessed the defendant for two hours on 21 August 2020. He noted that the defendant was polite and cooperative for the interview. He answered questions directly, and there was no evidence of any formal thought disorder, delusions or hallucinations. Dr Ellis said there was no evidence on the day of the defendant having any mood, anxiety or psychotic disorder. He said the defendant presented with no active symptoms of mental illness and or any instability in his cognition, affect or behaviour.
He said there was evidence of damage to frontal areas of the brain (likely referring to the MRI scan with which he had been briefed) but said his cognitive function did not limit his ability to participate in vocational activities in prison or the community. He was not likely to meet the criteria for intellectual disability but noted his intellectual function fell within the borderline or low average range. He noted that the defendant's communication skills had improved compared to prior assessments, likely reflecting more exposure to education and longer abstinence from substances.
He noted that his offending appeared to have commenced post immigration to Australia and introduction to heroin use. He diagnosed the defendant with substance use disorder.
Dr Ellis also noted that there is no identified community accommodation to which the defendant can transition at the expiry of the limiting term, although recorded the defendant said he would like to live with his brother in Bankstown. He said that should the defendant be released to an inappropriate accommodation setting, without health supports, the risk of relapse into substance use (and consequent impact on risk) would be considerable.
In terms of sexual violence, he noted the single episode of sexual offending was motivated by impulsive opportunity and that historical risk factors specific to sexual violence were limited, and largely stem from his history of general offending. His score on STATIC-99R was 3, placing him in the "average risk category" relative to other male sex offenders.
In terms of future treatment and supervision, Dr Ellis noted that the main area of concern for future risk is substance use. Whilst he acknowledged the defendant had completed a program in 2018, he opined that the defendant showed "limited insight into his past use" and, associated with this, possessed "limited strategies to remain abstinent". He concluded that the defendant would benefit from relapse prevention clinical input. He noted he reported ongoing cravings to use and as such consideration of substitute opioid treatment is warranted, as is anti-craving medication for alcohol use.
As to the "less restrictive means" for managing the defendant's risk, Dr Ellis considered that the defendant was ineligible for orders under the Mental Health Act 2007 (NSW) and was unlikely to have a disability within the meaning of the Guardianship Act 1987 (NSW). The result is that the only means of managing the defendant's risk is ordinary care in the community (although Dr Ellis noted the possibility of him being taken into immigration detention, which in his opinion would be equivalent to current circumstances). He concluded that an extension of the defendant's status as a forensic patient, with conditional release, would be appropriate.
Dr Ellis concluded: Overall his profile shows concern centred around historical marginal social performance associated with heavy substance use and associated cognitive impairment that manifests at times in poor communication. He has shown impulsive decision making regarding drug use, associates, physical and verbal aggression. This may reflect impulsive decision making regarding sexual activity. Currently with significant supports and limits his impulsive decision making is moderated, he has stable patterns of activity and he avoids drug use. He cooperates with support and supervision. He would present with a similar risk profile to other offenders or forensic patients near to consideration for release.

Further Report of Dr Ellis, dated 22 October 2020

In a further report dated 22 October 2020, Dr Ellis opined: 1. If released into the community without supervision, the defendant would present a similar risk profile to an ordinary prisoner, noting that approximately half of prisoners re-offend within 2 years (although this may not be for acts involving serious harm). Absent professional supports to assist with communication and decision making, this would likely render him to stress from poor coping skills. 2. Owing to his immigration status, the defendant may have less social support such as access to Medicare or social security benefits, which may increase his experience of stress and therefore risk. 3. If he resumed substance use, this would exacerbate problems with social supports and increase impulsive behaviour, and his risk would be in the high category (more than that of an average prisoner released without supervision).

Any other reports of qualified psychiatrists, registered psychologists or registered medical practitioners provided in support of the application (s 127(2)(d))

Forensic Psychiatric Report of Dr Jonathan Adams, dated 26 May 2016

The Forensic Psychiatric Report of Dr Jonathan Adams was prepared for the purposes of the defendant's fitness to stand trial of the index offences. Dr Adams concluded that the defendant's cognitive capacity was impaired. He was not able to identify the source of this (i.e. whether it was his history of head injuries, a pre-existing intellectual disability, or from substance and alcohol abuse). He did not elicit any evidence to suggest the defendant was suffering a mental illness such as a mood, anxiety or psychotic disorder.

Psychological Report of Ms Laura Durkin, dated 26 June 2015

The Psychological Report of Ms Durkin was also prepared for the purposes of the defendant's fitness to stand trial of the index offences. She noted that the defendant had little to no understanding of "consent" and was unable to articulate what might indicate a lack of consent or what forced contact constitutes. She noted his history of drug and alcohol use, that he had not undertaken a detoxification program except for a one-day course in custody and strongly recommended that he undertake drug and alcohol treatment in the future.
She noted his adaptive functioning was poor and that he had problems with communication, social participation and independent living. She noted that when in the community he seems to have limited social connections, with his associates being negative influences known to him only through drug use. He reported that he had been unable to independently locate accommodation because he was unsure how to go about this and was unsure how to set up a telephone, organise utilities, budget and pay bills. He lived with his parents until they died when he was 40, and since then has relied on his brothers for support.
She assessed his verbal skills in the extremely low range and his non-verbal skills in the low average to average range. She said his verbal skills would have considerable impact on his functioning, meaning he would struggle with verbal reasoning, expression, moderation and regulation. She formed the preliminary opinion that the defendant suffered from a language disorder and recommended that he be provided support through disability support service.

Psychiatric Report of Dr Adam Martin, dated 11 November 2015

The Psychiatric Report of Dr Adam Martin was also prepared for the purposes of the defendant's fitness to stand trial of the index offences. He also noted the defendant's limited understanding of the notion of consent. He concluded that the defendant had borderline or low-average intelligence. He had particular difficulties with communicating, likely due to a combination of developmental issues, basic education and heavy use of various substances.

Psychological Report prepared by Mr Vincent Cook and Mr Lydon Newell, dated 20 May 2004

In a Psychological Report dated 20 May 2004, Mr Vincent Cook and Mr Lydon Newell scored the defendant in the 52nd percentile on the Hare Psychopathy Check List (medium for this population) and, using the Violence Risk Appraisal Guide, assessed the probability of the defendant reoffending in the next 7 years as 55%. It was recommended the defendant be "referred to AOD for assessment for programme participation upon release". They noted that if the defendant were to start using any intoxicating substances his risk level was likely to elevate increasing his probability of offending.

Neuropsychological Assessment by Mr Andrew Kaw, Dr Skye McDonald and Dr Elzbieta Kobylinska, dated 2 April 2004

Following a referral by Mr Vincent Cook, a neuropsychological assessment of the defendant was conducted by Mr Andrew Kaw, Dr Skye McDonald and Dr Elzbieta Kobylinska. It was prepared for the Parole Board, whilst the defendant was in custody for the robbery/aggravated robbery offences.
The following aspects of the assessment may be noted: 1. The defendant was assessed as having borderline intellectual function on a structured assessment of intelligence (in the 2nd to 10th percentile). 2. His mental processing speed was in the low-average range. 3. His reading and writing in English was assessed in to be in the low average range on a structured measure (12th and 23rd percentile). 4. He was assessed in the extremely low range for spoken language abilities both expressive and receptive. 5. His comprehension of spoken language was very poor (below the 1st percentile). 6. His spoken language difficulties were said to be a significant responsivity factor that may act as a potential obstacle in addressing his offending behaviour. 7. It was recommended, inter alia, that he enter a drug and alcohol program.

Psychological Report of Ms Mary Anderson, dated 12 June 2001

The Psychological Report of Ms Mary Anderson, Clinical Psychologist, was prepared in relation to the robbery/aggravated robbery offences.
Ms Anderson made the following observations: 1. She concluded that the defendant was of borderline intellectual ability and inadequate literacy skills. 2. His reading level was assessed at 10 years and 3 months, which was assessed as barely adequate for day to day functioning. 3. She noted he has difficulty expressing himself verbally and in understanding verbal communications. 4. He had only limited and simplistic understanding of societal functioning, and of how he can adhere to the expectations of the wider community. 5. She noted he agreed he needed assistance to address his drinking habits. 6. She also recommended, inter alia, that he enter a drug and alcohol program.

Any order or decision made by the Tribunal (s 127(2)(e))

As noted above, for the purposes of the question of the defendant's fitness to be tried, with respect to the index offences, on 7 October 2016 the MHRT concluded that the defendant did not suffer from a mental illness but did suffer from a mental condition, namely, borderline or low-average intelligence with impaired cognitive functioning and communication difficulties. On the available evidence it concluded that he would not, during the period of 12 months following, become fit to be tried for an offence.
Following the imposition of the limiting term, the defendant was referred back to the MHRT under s 24(1)(a) of the former Act. On 27 March 2017, the MHRT determined under s 24(2) of the former Act that he was suffering from a mental condition for which treatment was available in a hospital and that he objected to being detained in a hospital. It concluded under s 47(4) and (5) of the former Act that he had not become fit to be tried and would not become fit to be tried within 12 months. It ordered under s 47(1) of the former Act that he be detained for care and treatment at Long Bay Correctional Complex.
There were further review hearings on 7 September 2017, 1 March 2018, 6 September 2018, 28 February 2019 and 8 August 2019. As to those hearings, the following aspects may be, relevantly, noted: 1. When questioned by the MHRT on 7 September 2017, the defendant said he did not want to use drugs anymore but was not interested in drug and alcohol programs. On being questioned by the MHRT, he said "that maybe he would in fact use drugs again in the community" and as such the MHRT noted "his commitment to abstinence was limited". 2. In relation to the review of 28 February 2019, the MHRT noted: Whilst it was apparent that his behaviour and compliance with rules had improved since he was last sanctioned in 2017, he was clearly vulnerable to being influenced by others, as reflected in his request for Buprenorphine. As noted by SDS he would require ongoing support in this area once released into the community. The MHRT also noted that the defendant had an approved NDIS plan, which meant his Support Coordinator could work with him on planning for his eventual release.
On 10 March 2020, the MHRT concluded that there were reasonable grounds for believing that the present arrangements for care, treatment and control of the defendant were necessary and sufficient for the protection of the defendant from serious harm and/or for the protection of others from serious harm. A further review was listed for 3 August 2020 but was adjourned for 6 months.
The further review hearing was conducted on 25 February 2021 and, on 10 March 2021, the MHRT made an order for the conditional release of the defendant. The MHRT noted, in that respect, the following: 1. the risk assessment conducted by a psychologist indicated the defendant was in the average range; 2. the risk assessment conducted by SDS indicated that he fell within the low/medium risk category for sexual offending and medium risk category for general and violent recidivism; and 3. the risk assessment conducted by Community Safety Program ("CSP") indicated he presented an average risk for future sexual recidivism and 4.8 times higher risk for general and violent recidivism.
The CSP report concluded that his loading on dynamic risk factors suggested the importance of intensive support, intervention and risk management and recommended he reside in supported accommodation with 24/7 staff, one-on-one support with activities of daily living and skills, and residing with co-residents with similar levels of functioning.
The MHRT also noted that the defendant had been offered two NDIS funded programs - Supported Independent Living model ("SIL") and Drop-in Support accommodation model - and concluded that he should not be released until granted funding for SIL support for at least 3 months after his release, or longer if necessary, and thereafter funding for Drop-in Support.

Reports of government departments/agencies responsible for detention, care or treatment of forensic patient (s 127(2)(f))

The following is a summary of select reports that were prepared whilst the defendant was in custody for the robbery/aggravated robbery offences in 2003-2004 (it is not an exhaustive list of all reports prepared with respect to the defendant): 1. A pre-release report of 2 October 2003, which noted that his behaviour in custody had been problematic, including various infringements related to drug use. He was described by custodial officers as having difficulties complying with the custodial regime. He had attended in some group programs in 2002, including drug and alcohol programs, but in 2003 had failed to turn up at the appropriate time for various courses. 2. A pre-release report of 1 April 2004, which described the defendant's progress in custody as "unsatisfactory" and cited that he "ha[d] not participated in programs as directed and he has tested positive to cannabis used in December 2003". In relation to Drug And Alcohol Assessment/Treatment, it was also noted that the defendant was described by his counsellor as "not engaging, either being not interested in, or not comprehending the counselling process". 3. A pre-release report dated 2 December 2004, noted the following: 1. Between 15 June and 11 August 2004 he had broken correctional centre regulations on four occasions. Two were for minor matters, but another was after a urinalysis test on 21 June 2004, which showed positive for cannabis, and for a "cone" being found in his cell on 2 August 2004 (for the latter matter he was charged with "Possess Drug Implement"). 2. Following a further urinalysis test on 12 November 2004, the defendant's results were positive for cannabis. 3. He received positive reports for his work as a welder. 4. He had been participating in English classes and was a good student, although found the work difficult. 5. He continued to take part in drug and alcohol counselling but did not complete a Relapse Prevention course in August 2004. 1. An intention to refuse parole report dated 10 February 2005, indicated that he had failed another urine test on 8 December 2004 (once again positive for cannabis). The report said that despite ongoing attempts to help him understand what is required for him to be released into the community, the defendant continued to be unable to grasp the importance of remaining drug free. 2. The defendant was subsequently released on parole on 16 February 2005. A parole progress reported dated 25 April 2005 noted that he had passed a urine test and that he presented as sober and stable and there was no apparent need for ongoing counselling.
The defendant served a further 9 months for the incident in the lift at Cabramatta Railway station (a 2013 offence) and was released to parole on 2 October 2013. As to that period of parole, the following is, relevantly, noted: 1. A breach of parole report dated 17 December 2013 indicated that the defendant had breached parole on 14 December 2013 by committing various drug/driving offences. The report included the following: 1. It noted that his response to supervision had been poor, characterized by failures to report, failure to engage in interviews, failure to follow directions, dishonesty and aggressive behaviour. 2. It appeared to the author that the defendant had not been entirely honest regarding his use of alcohol and was resistant to intervention. 3. It noted that on 12 November 2013, the defendant's sister had contacted the Parole Office stating he had arrived home from work intoxicated and had threatened to kill her, her husband and her children. No charges were laid. She later indicated she was happy for him to keep residing at her address, but then changed her mind on 25 November 2013 following further incidents of him being intoxicated and verbally abusive. 4. The report recommended the Authority revoke the parole order. 1. That report was consistent with the OIMS case notes from around that time: 1. The case officer recorded on 20 November 2013: "It would appear that Levi is flat out lying about his drinking, associated behaviour and its consequences". 2. It was also recorded on 2 December 2013: "He doesn't think alcohol is a problem in his life. He is either in denial or has no insight into his drinking". 1. A breach of parole report dated 25 July 2014 indicated that the defendant had been evicted from his approved accommodation on 15 July 2014 due to alcohol consumption and he was now residing in support accommodation. However, it was stated that his response to supervision was satisfactory. He had attended a drug and alcohol counselling appointment on 21 July 2014 and the counsellor assessed him as not requiring further intervention. It was recommended that he be issued with a warning in relation to failing to advise his officer of his change of accommodation at the earliest opportunity. 2. A breach of parole report dated 5 August 2014 indicated that his accommodation remained unsatisfactory. The defendant had told the officer that he remained in his supported accommodation but it was revealed through third party checks that he had left that accommodation. The defendant then admitted he was homeless and had been sleeping out in numerous locations. He was issued an instruction to attend Housing NSW for support. He appeared to be intoxicated when interviewed by the officer. Telephone contact with his employer indicated he was employed full time but his participation had been poor. It was recommended that given his accommodation and ongoing excessive alcohol consumption, parole be revoked.
Since being taken into custody for the index offences, various reports have been prepared for the purposes of the MHRT hearings. Those reports, inter alia, indicate the following: 1. the defendant has been sanctioned for institutional misconducts, namely, possessive offensive weapon/instrument (25 May 2016), possess drug implement (7 August 2016) and fail prescribed drug test (8 February 2017), but has received no further institutional misconducts since then; 2. the defendant has completed following programs: Health Strategies (2017); Remand Addition (2018); EQUIPS Addiction (2018); Access to Vocational Program, containing 11 units of study (23 May 2019); driver knowledge test (3 July 2019); 10 week EQUIPS Foundations program (12 July 2019); Certificate I in Skills for Vocational Pathways, containing 11 units of study (20 November 2019). He has also been learning basic computer skills; 3. while he has expressed a strong desire to remain abstinent from drugs and alcohol upon release, he lacks a plan on how he can meet this goal, aside from citing willpower; 4. he has been employed in Corrective Services Industries Packaging and Assembly as a packaging team leader assistant, and as at February 2021 was employed in the Corrective Services Industries kitchen; 5. he has been coping well in the custodial environment. CSNSW staff consistently described him as quiet and polite. There were no reports of concerning behaviour that required specific intervention and management within ASU; 6. custodial staff advised that he takes care of the vegetable garden in the wing, takes pride in preparing dinner for the offenders in the wing, cleans common areas, enthusiastically participates in card games or a game of pool, but generally keeps to himself; and 7. he is an NDIS participant and his current plan includes funding for support coordination.
In the latest Report to the MHRT by SDS, dated 18 February 2021, the following was recommended: 1. the defendant have continued contact with psychology staff to develop an alcohol and other drugs relapse prevention plan, in consultation with NDIS staff, to assist the defendant in the community; 2. that there be continued engagement in education/vocational programs where available to improve vocational and communication skills, and increase employment opportunities in the community; 3. that the defendant continue his behaviour in custody and work towards a reduction in his classification, with a view to external leave programs; and 4. that SDS liaise with NDIS to assist in the coordination of community supports.

The level of the offender's compliance with obligations as forensic patient (s 127(2)(g))

The defendant has not been granted any period of leave of absence and has not yet served any significant period of release on conditions by which his level of compliance could be assessed. However, the defendant has faced several institutional misconduct charges, as outlined earlier in this judgment.

Drug and alcohol use

The defendant reported to Dr Ellis drinking alcohol from the age of 12. At his heaviest, he was consuming 24 cans of beer in one sitting. He would drink on a daily basis. He would blackout where he could not recall events while drinking. He would experience withdrawal symptoms in the morning that would be settled by drinking.
Dr Ellis reported that the defendant began smoking cannabis at the age of 12. He would smoke one "cone" every second day. The defendant said that he would become paranoid when smoking, which he described as being suspicious of people. He reported having experimented with speed, ice, cocaine and synthetic cannabis. He reported that he had a period of time in his first year in Australia (about 1995) where he injected heroin on a daily basis. He said that he had begun injecting heroin again in 2012 before his offences.
Despite having engaged in various drug and alcohol programs whilst in custody in 2004, the defendant continued to have problems with drugs and alcohol while living in the community. As noted above, there have been a few instances since 2004 of him driving whilst intoxicated or being found with prohibited drugs. He continued to use cannabis while in custody from 2014 (although, it may be noted, his last urinalysis test that was positive for cannabis was in February 2017).
As to his current relationship with drugs and alcohol, as noted above, Dr Ellis has diagnosed the defendant with substance use disorder, particularly opioids and alcohol, but that is currently in remission in a controlled environment. The defendant had denied to Dr Ellis that he had experienced problems with drinking (although Dr Ellis noted that his convictions would indicate otherwise). He reported having cravings for heroin but felt he could live with them. Dr Ellis noted that the defendant had never entered into a substance use rehabilitation or detoxification admission, but has attended some substance use courses whilst in prison. The defendant reported learning from this "not to take too much drugs". While he said he felt better for his health now without using alcohol or drugs, he also said he did not know and could not say if he would use drugs again.

Occupational Therapy Living Skills Assessment Report by Ms Rachel Lewis, dated 20 November 2018

The defendant described himself to Ms Rachel Lewis as an "alcoholic". Ms Lewis noted that the defendant's cognitive processing difficulties were evident. She said he struggled to grasp complex, abstract and multi-step information/instructions and showed deficits with working memory. He also showed difficulty with high level reasoning, problem solving and consequential thinking.
The following aspects of Ms Lewis' report are of particular relevance: 1. Ms Lewis concluded that the defendant is able to manage the basics of living independently such as cooking, cleaning, shopping, and showering but that he lacked the psychosocial skills to live successfully and independently in the community. 2. She identified areas of concern as: substance misuse; mental health; lack of confidence; risk of social isolation; decision making/problem solving; and ability to navigate interpersonal relationships. 3. She concluded that he will initially require daily support and monitoring upon release. 4. She noted if his family cannot provide this, then workers dropping in daily will be required. 5. She suggested the level of support could be reviewed over time as he gains employment, establishes a routine, builds a network and gains confidence. 6. She noted that his brother, Fala, would prefer that the defendant live nearby (not with him) but that he would consider housing him temporarily (but would need to move to a bigger house first to offer this). 7. She said that if living with his brother was not possible, then a complex with independent living units with staff onsite would work well for the defendant. Independent living or boarding house style could also be considered, but is less ideal.
Ms Lewis also suggested that the defendant would require the following support to achieve his goals: 1. support to gain employment; 2. ongoing treatment and monitoring of mental health; 3. addiction supports to ensure he does not engage in substance misuse; 4. assistance to establish/maintain relationships; 5. build leisure options and support to attend activities; 6. development of money management and budgeting skills; 7. assistance with making life decisions/complex problem solving; 8. support coordination to arrange and maintain services to help him to live independently; and 9. psychology services to develop coping and emotional regulation skills; develop social skills/confidence; and develop problem solving skills.

Support in the community

The following is relevant to the support available to the defendant in the community: 1. As earlier mentioned, the defendant has been offered SIL and Drop-in Support, as at 10 March 2021 and NDIS funding for those programs had not been confirmed. 2. However, Dr Ellis noted there was no identified accommodation, as at the time of his report, to which the defendant could transition at the expiry of his limiting term, although the MHRT's orders of 10 March 2021 require that he reside at a specified address. 3. The extent of his family's support is also unclear: 1. There is a report from the defendant's sister to his parole officer in 2013 that she refused to have him live with her because he was often drunk and verbally abusive. 2. An OIMS case note from 25 May 2017 records that he reported "loneliness as he is no longer supported by his family". More recently, an OIMS case note dated 16 July 2019 recorded that he had not been in contact with his family for over a year.

Conclusion

Having considered the written submissions of the plaintiff, in this respect, it does appear to me that in this preliminary hearing that the orders sought may properly be made. I note, in that respect, that in particular within the limit of the scope of this preliminary hearing it may be concluded on the evidence presently before the Court that the defendant poses an unacceptable risk of causing serious harm to others. I also note, in that respect, the submissions of the plaintiff that the risk may not be adequately managed by a less restrictive means.
In coming to that conclusion, I have had particular regard to the factors identified by the plaintiff in support of the preliminary hearing, which appear in summary form at para 5 of the plaintiff's written submissions, which are extracted below: (a) the serious nature of the index offences, and the defendant's ongoing inability to appreciate why they were wrong. As recently as 21 August 2020, he described the charges to Dr Ellis as "bullshit" and said he was not aware it was a crime to engage in sexual acts with someone while they were unconscious or asleep (Ex p 34). Psychologist Ms Durkin observed in June 2015 that he has little to no understanding of the meaning of "consent" (Ex p 122, [23]): […]; (b) the long history of his other offending, extending from 1996 to 2014 (when he was taken into custody for the index offences) (Ex p 1-13). They have involved repeated instances of assaulting strangers in public places (usually while under the influence of drugs or alcohol), resulting in serious harm in the form of lacerations, bleeding and bruising. His other offending has included robbery, drug possession, and repeated instances of driving unlicensed or while intoxicated: […]; (c) he has been diagnosed with substance use disorder, and has had ongoing problems with drug and alcohol use for a sustained period. Psychologists and psychiatrists have repeatedly identified his drug and alcohol use as a source of risk of his reoffending, noting that most offences have occurred while he was intoxicated: […]. He continued to use cannabis while in custody (although the last time he failed a drug test was in February 2017 and he has not had an incident since: Ex, p 175): […]. Although he has undertaken various drug and alcohol programs while in custody, he still fails to understand the impact of drugs and alcohol on his risk factors. As recently as 21 August 2020, he denied to Dr Ellis that he has a problem with drinking (Ex, p 32). He also said to Dr Ellis that he did not know and could not say if he would use drugs again (Ex p 32). Dr Ellis notes that should the defendant be released to an inappropriate accommodation setting, without health supports, the risk of relapse into drug use (and consequent impact on risk) would be considerable (Ex p 38). Dr Ellis has noted in his further report of 22 October 2020 that if the defendant resumed substance use, his risk would be in the high category (Ex p 44). (d) the plaintiff accepts that, since the defendant's last institutional misconduct charge in 2017, his behaviour in custody has been positive. However, his behaviour while under supervision in the community has been poor. In 2000, he committed aggravated robbery while on parole for another robbery. In 2013, while on parole for common assault/destroy or damage property offences, he committed further offences of possessing cannabis and driving unlicensed and with a mid-range PCA. In 2014, while on parole, he was evicted from his approved accommodation for alcohol use and failed to report his change of accommodation immediately. Again in 2014, while on parole, he failed to report that he had left his accommodation and was living on the street: […]; (e) an Occupational Therapist's report, dated 20 November 2018, concluded that he has the skills to perform key tasks of daily living (such as cooking, cleaning) but lacks psychosocial skills required to live independently, such as confidence, developing social connections and managing interpersonal relationships, managing his mental health and substance use, problem solving and decision making (Ex p 228): see [62] below. This is consistent with the MHRT's decision on 10 March 2021 that he should be released but only once funding is granted for supported living: […]; (f) the extent to which the defendant will be supported in the community is unclear. As at 10 March 2021, NDIS funding for supported living was yet to be confirmed. It is also unclear whether he will be supported by his family: an OIMS case note from 2019 suggested that the defendant has not been in contact with his family for over a year (Ex p 319): […]. [Internal cross-referencing omitted.]
Each of those factors are cogent for present purposes giving rise to the determination of the present limited application before the Court.
Before finally passing upon the relief presently sought under the amended summons, I note that the material in the proceedings is presently supportive of the conclusion sought to be drawn by the plaintiff in para 6 of the plaintiff's written submissions.
It would not appear that the defendant is a mentally ill person or mentally disordered within the meaning of the Mental Health Act. It follows that he cannot be the subject of involuntary detention or community treatment orders under that Act. I accept that, as is submitted in that respect, that it is unlikely that he will be the subject of a Guardianship Order under the Guardianship Act, because he is unlikely to have a disability within the meaning of that Act. It further follows that the only means of managing his risk in the community, as presently revealed on the evidence before the Court, would be the ordinary means available with respect to any member of the community. Dr Ellis' view, in that respect, was that this would be insufficient, and suggests that an extension of his status as a forensic patient, with conditional release, would be appropriate.
Dr Ellis said that there is little to be gained by the defendant remaining a forensic patient "if he remains detained in prison custody without release planning" given that the extent of rehabilitation that can be achieved in such an environment has been reached. Dr Ellis opined that there may be clinical benefit to extending forensic status for one year with the defendant being on conditional release and having available treatment pathways in the community and monitoring for substance use/abuse. He also noted that if the defendant remained a forensic patient on conditional release, recall to hospital may be enacted more rapidly in a cycle of clinical deterioration (for example, relapse to drug use). He would be subject to clinical oversight by the forensic arm of the MHRT. (In written submissions the plaintiff noted that at the time of Dr Ellis's report, the defendant had not yet been granted conditional release but that has now occurred).
I note two other matters. There is a reference to the level of support presently being thought to be available to the defendant under the NDIS. It would appear that, as the evidence presently reveals, the level of assistance in that respect remains limited. I further note that there does not appear to be any change in the defendant's immigration status or visa status as was identified in para 7 of the affidavit of Ms Nichols affirmed on 25 March 2021. Ms Nichols deposed: 7. On 9 March 2021, my instructing officers at the Department of Communities and Justice, acting on behalf of the Attorney General contacted the Department of Home Affairs requesting an update regarding the status of the Defendant's visa. The Department of Home Affairs advised my instructing officers that the Defendant had been granted an extension until 17 March 2021 to respond to the Notice of Intention to cancel his Class TY, Subclass 444 Special Category (Temporary) visa under s 501(2) of the Migration Act 1958 (Cth).
It follows for these reasons that I have come to the conclusion that the matters alleged in the supporting documentation would, if proved, justify the making of an extension order. I note, in that respect, that an extension order of 12 months is sought in the final relief before the Court. In those circumstances, it is appropriate that the Court make the orders as sought in paras 1, 2 and 4 of the amended summons. I make orders in those terms.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 30 June 2021

Mental Health (Forensic Provision) Act 1990(NSW)

At a glance

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Judgment (26 paragraphs)

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Legislation Cited (8)

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Cited By (3)