Attorney General for New South Wales v Perry

Supreme Court of NSW|2024-08-01|Before: Dhanji J

JUDGMENT (EX TEMPORE)

HIS HONOUR: By summons filed on 15 May 2024, the Attorney General for New South Wales seeks various orders pursuant to the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW) ("the Act") against the defendant Barbara Perry, who appears by her tutor Dr Katherine Pavlidis Johnson.
The primary order sought by the plaintiff is an extension to the defendant's status as a forensic patient, ("an extension order") pursuant to ss 121, 127(1)(a) and 128 of the Act, for a period of three years. Prior to seeking that order, the plaintiff seeks, as interlocutory relief, an order appointing two qualified psychiatrists, registered psychologists or medical practitioners to conduct separate psychiatric examinations of the defendant and to furnish reports to the Supreme Court on the results of those examinations and an order directing the defendant to attend those examinations.
The plaintiff also seeks an order that the defendant be subject to an interim order extending her status as a forensic patient pursuant to ss 130 and 131 of the Act. That order is sought for a period of three months from the expiry of the current order applying to the defendant. The orders sought were not opposed by the defendant. I note that the defendant reserves her position with respect to the making of a final order.
The plaintiff relies upon the affidavit of Penelope Smith which exhibits two volumes of material. [1] I have also been provided with Agreed Facts as well as a statement pursuant to paragraph 6(iii) of Supreme Court Practice Note CL 12. Each of those documents has greatly assisted me. Those documents and the position taken by the defendant has made it unnecessary to traverse the large volume of material provided on the application although I do note I have read and had close regard to the report of Dr Sathish Dayalan of 5 February 2024.

Background

The defendant is currently subject to an extension order under the Act. As a result of that order the defendant is a forensic patient under the Act. She is currently detained in the Austinmer Unit of the Forensic Hospital. The defendant's status as a forensic patient initially arose as a result of events alleged to have occurred on 1 April 2014.
The events of 1 April 2014 eventuated in the context of the defendant's background of dysfunction and trauma.
The defendant is a Wiradjuri woman born in July 1980. She was raised intermittently in foster homes and in the care of her grandmother. She ran away on occasions to live with her mother. There is transgenerational trauma. The defendant was first diagnosed with schizophrenia in her mid-twenties which was complicated by substance abuse and poor medication adherence.
She has a criminal history which commenced in 1995 when the defendant was aged 15. That history covers a wide range of offending behaviour.
Returning to the events of 1 April 2014, the defendant was alleged on that occasion to have violently assaulted three women in social housing units in the areas of Surry Hills and Redfern in the early hours of the morning. She was alleged to have struck a 56 your old complainant with such force as to cause the complainant to impact against a wall. The defendant was alleged to have taken the complainant's handbag and continued to strike the complainant to the head and body. The defendant was alleged to have kicked the complainant whilst she was on the ground and stomped on her chest and face area, causing significant facial and bodily injuries.
After leaving the area in which those events occurred, the defendant encountered a second complainant, a woman aged 90, at the bottom of the building stairwell. The defendant is alleged to have shoulder barged the complainant, causing her to tumble down a set of concrete stairs resulting in the complainant sustaining a fractured shoulder blade and extensive bruising. The defendant is alleged to have left the building and then entered a nearby building and attacked a third complainant, this time a woman aged 74, by punching and head butting her.
The defendant was arrested on 2 April 2014 and charged with an offence of aggravated assault with intent to rob occasioning grievous bodily harm and two counts of assault occasioning actual bodily harm.
On her arrest the defendant entered custody and she has not resided in the community since.
On 2 November 2015, Henson DCJ determined that the defendant was unfit to be tried for the offences with which she had been charged and she was referred to the Mental Health Review Tribunal in accordance with s 14 of the Mental Health Forensic Provisions Act 1990 (NSW).
On 14 July 2017, Girdham SC DCJ found the offences were proven on the limited evidence available in accordance with the regime created by the Mental Health Forensic Provisions Act . On 18 August 2017 Girdham DCJ imposed a limiting term, the effect of which was a total of five years and two months commencing on 2 April 2014 and expiring on 31 May 2019.
Her Honour also made an order pursuant to s 24(1) of the Mental Health Forensic Provisions Act that the defendant be detained in the custody of an appropriate institution pending further assessment by the Tribunal.
Prior to the expiry of the limiting term an application was made by the Attorney General to extend the defendant's status as a forensic patient. An interim order was made on 12 June 2019. On 16 August 2019 Wright J made a final order extending the defendant's status as a forensic patient for five years. That period expires on 15 August 2024: see Attorney General for New South Wales v Perry (No 2) [2019] NSWSC 1141.
The effect of the extension orders made to date is that the defendant has remained a forensic patient beyond the expiry of the limiting term imposed by Girdham DCJ. Forensic patients are dealt with under Part 5 of the Act. The objects of Parts 5 and 6 are set out in s 69 as follows: 69 Objects (1) 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. (2) The objects of this Part extend to the provisions of Part 6.
In general terms, Part 5 provides for the review of forensic patients by the Tribunal and gives the Tribunal powers to make orders with respect to the patient's detention and release: s 81. Release may be either unconditional or subject to conditions. The conditions that can be imposed on a forensic patient are set out in s 85 of the Act. Part 6 of the Act provides for the extension of a person's status as a forensic patient.
Section 123 gives standing to the plaintiff to apply for an extension order whilst s 121 gives the Court power to make an order. The circumstances in which an application can be made and the requirements for the application are set out in ss 124 and 125 respectively. There is no issue that those requirements are met in the present case.
The test for making an order is set out in s 122(1) of the Act which provides: 122 Forensic patients in respect of whom extension orders may be made (1) A forensic patient can be made the subject of an extension order as provided for by this Part if and only if the Supreme Court is satisfied to a high degree of probability that - (a) the forensic patient poses an unacceptable risk of causing serious harm to others if the patient ceases to be a forensic patient, and (b) the risk cannot be adequately managed by other less restrictive means.
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": s 122(2).
The Court must have regard to the matters set out in s 127(2) in addition to any other matters it considers relevant. Section 127(2) provides: 127 Determination of application for extension orders … (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.
Section 126(5) provides as follows: 126 Pre-hearing procedures … (5) If, following the preliminary hearing, the Supreme Court is satisfied that the matters alleged in the supporting documentation would, if proved, justify the making of an extension order, the Supreme Court must make orders - (a) appointing - (i) 2 qualified psychiatrists, or (ii) 2 registered psychologists, or (iii) 2 registered medical practitioners, or (iv) any combination of 2 persons referred to in subparagraphs (i)-(iii), to conduct separate examinations of the forensic patient and to give reports to the Supreme Court on the results of those examinations, and (b) directing the forensic patient to attend those examinations.
Section 126(6) requires me to dismiss the application if I am not satisfied that "the matters alleged in the supporting documentation would, if proved, justify the making of an extension order."
Section 130 provides for interim extension orders, and is in the following terms: 130 Interim extension orders The Supreme Court may make an order for the interim extension of a person's status as a forensic patient if, in proceedings on an application for an extension order, it appears to the Court - (a) that the limiting term or existing extension order to which the forensic patient is subject will expire before the proceedings are determined, and (b) that the matters alleged in the supporting documentation would, if proved, justify the making of an extension order.

Consideration

As I have noted, the defendant does not oppose the making of an order. Nonetheless, it remains for me to be satisfied that an order should be made. I am firstly satisfied that the existing extension order will expire before these proceedings are finally determined.
The question for resolution is therefore whether "the matters alleged in the supporting documentation would, if proved, justify the making of an extension order". If I am so satisfied there remains a discretion in s 130 as to whether an order should be made. The test has been described as akin to the test of a prima facie case in committal proceedings (under the regime that existed prior to 2018): see Attorney for New South Wales v Kapeen bht Jennifer Thompson (Preliminary) [2018] NSWSC 619 at [16].
The question of unacceptable risk is to be determined by considering the risk that would arise on the assumption that the defendant is not a forensic patient nor an involuntary patient under the Mental Health Act 2007 (NSW). In approaching the second limb of the test for an extension order, namely whether the risk cannot be adequately managed by other less restrictive means, the focus should be more on the question of adequately managing risk rather than identifying whether one regime is more or less restrictive than the other: see Attorney General of New South Wales v Skerry (Preliminary) [2015] NSWSC 859 at [54].
In determining the application for an extension order, as I have noted, the Court is required to have regard to the various matters in s 127(2).
Section 127(2)(a) requires that I have regard to the safety of the community.
Section 127(2)(b) requires me to consider any report received from persons appointed under s 126(5) to conduct examinations of the defendant. At this stage, that is, the preliminary hearing, no such reports have been received and this paragraph is not presently applicable.
Section 127(2)(c) requires consideration of the report of a qualified psychiatrist, registered psychologist or a registered medical practitioner provided under s 125(b).
Dr Dayalan provided a risk assessment report in relation to the defendant dated 5 February 2024. With regard to the defendant's psychiatric diagnosis Dr Dayalan provided the following opinions: 1. The defendant meets the DSM-5 criteria for a diagnosis of schizoaffective disorder. In this regard, Dr Dayalan noted that the defendant suffers from a severe chronic psychotic illness characterised by delusions, hallucinations, health disorder and disorganised behaviour. 2. The defendant suffers from substance abuse disorder, currently in remission in a controlled environment. 3. Cognitive deficits are in evidence but in the defendant's current mental state it is difficult to conduct a neuropsychometric assessment.
Dr Dayalan assessed the defendant against the HCR20 testing regime for the risk of future violence and found that the defendant has a high loading of historical risk factors. Dr Dayalan observed there to be a causal link between the defendant's psychotic symptoms and acts of violence and that her substance abuse contributed to her prior offending.
Dr Dayalan considered the defendant to be a "mentally ill person" as that term is used in the Mental Health Act.
Section 127(2)(d) and (f) of the Act provides: 127 Determination of application for extension orders … (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 - … (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, … (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, …
A number of reports have been prepared in relation to the defendant both in relation to the criminal proceedings in the District Court and in the proceedings seeking the first extension order, as well as in relation to the various reviews conducted by the Mental Health Review Tribunal. Those reports are generally consistent in reporting that the defendant has a suspected cognitive impairment and, more significantly, treatment resistant schizoaffective disorder or schizophrenia, including schizoaffective psychosis and a history of substance abuse disorder.
Section 127(2)(e) requires this Court to have regard to any order or decision made by the Tribunal with respect to the forensic patient that is relevant to the application. The defendant has been before the Tribunal a number of times and, as a forensic patient, is reviewed at intervals of six months. The Tribunal most recently reviewed the defendant on 8 February 2024 and made no changes to the current orders. The Forensic Hospital was considered to be appropriate for the defendant's needs having regard to the safety of the defendant and other persons. The Tribunal also noted that there was no evidence to suggest that the defendant has become fit to be tried.
Section 127(2)(g) requires this Court to have regard to the level of the forensic patient's compliance with any obligations to which the patient is or had been subject while a forensic patient (including while released from custody subject to conditions and while on leave of absence granted under this Act). Between 2019 and 2020 the defendant has on numerous occasions displayed violent and aggressive behaviour to both co-patients and staff at the Forensic Hospital. She was reported as having persistent interpersonal conflicts with some co-patients.
Since February 2022 there has been a decrease in the incidents of violent and aggressive conduct, though such incidents have not ceased altogether, with two events occurring in October 2022.
The defendant has had instances of therapeutic day leave in the community and one instance of overnight leave at NDIS accommodation, in the course of which there were no significant incidents.
Section 127(2)(h) requires this Court to have regard to 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. At the time the limiting term was imposed Girdham DCJ noted that the defendant's offending was "brutal" and referred to one instance as "unprovoked and vicious". Her Honour accepted that there was a causal link between the defendant's mental health and her offending.
With respect to the extension order, Wright J was, in accordance with the statutory test, "satisfied to a high degree of probability that the defendant posed an unacceptable risk of causing serious harm to others if she was released" and further that the risk posed could not adequately be managed by less restrictive means than by extending her status as a forensic patient.
Section 127(2)(i) requires this Court to have regard to "any other information that is available to the Court as to the risk that the forensic patient will in future cause serious harm to others." As I have already observed, there have been various incidents of aggression whilst the defendant has been in the controlled hospital setting suggesting continued difficulties with aggression and insight.

Conclusion

Throughout her extension order the defendant's illness has, regrettably, remained treatment resistive. This has rendered therapeutic activities such as occupational therapy and psychology almost impossible. Dr Dayalan notes that the defendant's treatment has continued to present a challenge despite assertive treatment at the Forensic Hospital.
In an interview with Dr Dayalan, for the purposes of his risk assessment report, the defendant acknowledged that she does continue to experience auditory hallucinations including commands to hurt others. Positively, she was able to make clear that she had not acted on these commands in recent times. Dr Dayalan observed that she continues to harbor delusionary beliefs. As I have already indicated, there has been some progress in the management of the defendant, particularly having regard to the reduction in incidents of violence. In that context, the determination in this matter should not be seen as a further step in an endless cycle of extensions. Indeed, it is encouraging that there have been, in total, in 2023, 14 successful occasions of escorted leave in the community and five successful occasions of supervised leave.
Going back, there did appear to be very significant progress in management of the defendant in early 2022 with the defendant's treatment team identifying supported accommodation in Maitland as suitable for overnight leave, potentially leading to a permanent arrangement. Unfortunately, there was a recurrence of violent behaviour, some of which was provoked, and some of which was not, in late 2022 and into 2023.
Dr Dayalan noted that it was suspected anxiety in relation to the transition may have contributed to a decline in the defendant's mental state. Dr Dayalan noted that the defendant over time has displayed a pattern of "stable presentation followed by increased incidents of physical aggression". He further observed that "placement within a high security hospital and monitoring by staff members with experience in forensic psychiatry has probably limited the seriousness of injuries caused to victims".
It may be accepted that in an uncontrolled environment without proper medication and with exposure to illicit substances, the severity of the defendant's symptoms may be exacerbated with a consequent and significant increase in the risk of serious harm to others.
Importantly for present purposes, Dr Dayalan expressed the opinion that the least restrictive means of managing the defendant's risk of serious harm is the continuation of her forensic patient status in order to facilitate her safe transition into the community.
Noting that the matter is at a preliminary stage and noting the applicable test, I am satisfied that the matters alleged in the supporting material relied on by the plaintiff would, if proved, justify the making of an order.
I am also satisfied, having regard to all the material, that any discretion contained in s 130 should be exercised to make the interim order sought. It follows from my satisfaction of the test applicable to the making of the interim extension order that the test in s 126(5) with respect to the appointment of experts is also satisfied. In relation to that test there is no discretionary aspect.

Orders

Accordingly, I make the following orders: 1. Pursuant to s 126(5) of the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW) (the Act) I appoint two qualified psychiatrists, registered psychologists or medical practitioners (or a combination of 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 I direct the defendant to attend those examinations. 2. Pursuant to ss 130 and 131 of the Act the defendant is subject to an interim order for the extension of her status as a forensic patient commencing from the expiry of the existing extension order on 15 August 2024 for a period of three months. 3. Access to the Court file in this proceeding is restricted such that access is permitted to a non-party only with the leave of a Judge of the Court and if any application for access is made by a non-party in respect of any document the parties are to be notified by the Registrar so as to allow the parties an opportunity to be heard in respect of the application for access.

Endnote

Exhibit A 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: 12 August 2024

Mental Health Forensic Provisions Act 1990(NSW)

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