Attorney General for New South Wales v Peterson

Supreme Court of NSW|2020-05-19|Before: Cavanagh J, Campbell J

Judgment

By way of a summons filed on 30 April 2020, the plaintiff, the Attorney-General for New South Wales, seeks an order pursuant to cls 1 and 7(1)(a) of sch 1 to the Mental Health (Forensic Provisions) Act 1990 (NSW) ("the Act") that the defendant, John Francis Peterson, be subject to an order for the extension of his status as a forensic patient for a period of two years.
The matter comes before the Court for the purposes of the preliminary hearing. At this time, the plaintiff seeks: 1. an order pursuant to cl 6(5) of sch 1 to the Act: 1. appointing two qualified psychiatrists, psychologists and/or registered medical practitioners to conduct separate examinations of the defendant and furnish reports to the Supreme Court on the results of those examinations; and 2. directing the defendant to attend those examinations. 1. an order pursuant to cls 10 and 11(1) of sch 1 to the Act that the defendant be subject to an interim extension order commencing from 30 May 2020 for a period of three months.
The plaintiff was represented by Ms Climo of Counsel. The defendant was represented by Ms Goodhand of Counsel. Both Counsel made helpful and comprehensive submissions.
At the commencement of the hearing, I made an order appointing Linda Rodrigues, a lay advocate employed by the Mental Health Advocacy Service of Legal Aid NSW, to act as the defendant's tutor.
The defendant is currently a forensic patient within the meaning of s 42 of the Act. He comes to be a forensic patient because on 6 August 2014, following a special hearing pursuant to s 19 of the Act, Campbell J found the defendant not guilty of murder but guilty of manslaughter. [1] His Honour imposed a limiting term of eight years to date from 31 May 2012. That limiting term expires on 30 May 2020.
Unless I make the orders sought by the plaintiff, the defendant will cease to be a forensic patient on 30 May 2020: s 52(2)(a) of the Act.

The legislative scheme

The objects of pt 5 of the Act, which deals with forensic patients and correctional patients, are set out in s 40, which relevantly provides: 40 Objects The objects of this Part are as follows: (a) to protect the safety of members of the public; (b) to provide for the care, treatment and control of persons subject to criminal proceedings who are suffering from a mental illness or mental condition; … (e) to give an opportunity for those persons to have access to appropriate care; (f) to protect the safety of victims of forensic patients and to acknowledge the harm done to victims.
I would have regard to the objects of the Part in making any determination in respect of the plaintiff's application.
Section 54A of the Act provides that a person's status as a forensic patient may be extended in accordance with sch 1 to the Act.
An application for an extension order must be supported by the documentation referred to in cl 5 of sch 1. Clause 6 sets out the pre-hearing procedures, including the procedure in relation to a preliminary hearing. A preliminary hearing is to be conducted by the Court within 28 days after the application is filed in the Court.
The Court may make an interim extension order in the circumstances set out in sch 1 cl 10 of the Act as follows: 10 Interim extension order 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.
The limiting term will expire before the proceedings are determined. The issue in this matter is whether the matters alleged in the supporting documentation would, if proved, justify the making of an extension order.
It is important also to emphasise that in considering whether the matters alleged in the supporting documentation would, if proved, justify the making of an extension order (for the purposes of sch 1 cl 10(b)) - that is, whether an extension order might be made - regard must be had to the matters set out in sch 1 cl 7(2) of the Act.
The persons who can be made the subject of an extension order are only those who fall within the criteria set out in sch 1 cl 2(1) of the Act as follows: 2 Forensic patients in respect of whom extension orders may be made (1) A forensic patient can be made the subject of an extension order as provided for by this Schedule if and only if the Supreme Court is satisfied to a high degree of probability that: (a) the forensic patient poses an unacceptable risk of causing serious harm to others if he or she ceases being a forensic patient, and (b) the risk cannot be adequately managed by other less restrictive means.
It follows that an extension order can only be made if the forensic patient poses an unacceptable risk within the meaning of sch 1 cl 2(1)(a) and that unacceptable risk cannot be adequately managed by other less restrictive means as referred to in of sch 1 cl 2(1)(b) of the Act.
As the plaintiff submits, the nature of the risk posed must be assessed with reference to past conduct, the seriousness of the possible future conduct and the period over which the risk may come to fruition, based on the absence of protective measures. [2] The right of an offender to unrestricted liberty is not a relevant consideration. [3]
It is not necessary, at the preliminary stage, that the Court be satisfied that the matters alleged in the supporting documentation will be proved. The Court is only required to be satisfied that, if those matters are proved, the making of an extension order would be justified.
The scheme established under the Act, involving a preliminary hearing followed by a final hearing, is similar to the scheme established by the Crimes (High Risk Offenders) Act 2006 (NSW) ("HRO Act"). As has been emphasised in respect of a preliminary hearing under the HRO Act, [4] on the preliminary hearing, the Court is not involved in weighing up the documentation or resolving any conflicts, inconsistencies or uncertainties which appear in the documentation. It is not necessary for the Court to predict the ultimate result or assess the likelihood of the extension order being made. The Court is not considering any evidence that might be adduced by the defendant on the final hearing which might cast doubt on the matters set out in the documentation.
However, it remains for the plaintiff to establish its entitlement even to an interim extension order and an order for examination. There is a threshold to overcome, being that the matters alleged in the supporting documentation would, if proved, justify the making of an extension order. The defendant submits that I would not be so satisfied.

The defendant's background

The defendant is currently 67 years of age. He is single. He suffers from an intellectual disability. His life has been replete with tragedy and trauma.
At the age of 2, he was placed in a children's home by his parents, who were both alive and together. It seems that they were working and could not care for him. His older brother, Neil, was placed in the same home for a period of 9 years. He had been close to his brother but his brother died in a car accident in 2004. He also had a younger brother who was stillborn. It seems that he resided at the home until the age of 17.
His mother used to visit him from time to time but his father did not. He suffered abuse, both physical and sexual, at the home. He was developmentally delayed and his time at the school must have been aggravated by his intellectual disability. He is unable to read or write.
He appears only to have had one job throughout his life, being a job working at Goulburn jail for a short period. Other than his period in detention, he has always been in receipt of the disability pension.
He had one romantic relationship at the age of 17 but has had no relationships thereafter.

Criminal history

There are a number of minor charges such as use of offensive language and damage to property. There are three instances of more serious offending.
In 1990, he was charged with malicious wounding. Sixteen years later, in 2006, he was convicted of assault occasioning actual bodily harm. He was placed on a two-year bond. Other than the index offence, there are no other offences of any significance.

The index offence

On 31 May 2012, Rafik Makaradi died whilst visiting the defendant at the defendant's premises. The victim was a friend of the defendant.
The defendant was charged with murder.
On 26 July 2013, the defendant was found to be unfit to stand trial by Bellew J. [5] The defendant was referred to the Mental Health Review Tribunal ("the Tribunal") pursuant to the provisions of s 14 of the Act. He was remanded in custody until such time as effect was given to any determination made by the Tribunal.
In July 2014, there was a special hearing before Campbell J. Pursuant to s 19 of the Act, his Honour was required to determine whether the defendant committed the offence charged or any other offence available as an alternative to the offence charged: s 19(2) of the Act. His Honour found that the defendant was not guilty of murder but, on the limited evidence available, accepted that he had committed the offence of manslaughter on 30 May 2012. [6]
The defendant and the victim lived in separate Department of Housing units. They were both alcoholics or abused alcohol. They were said to have been in a casual sexual relationship, although that is not certain.
On 30 May 2012, the defendant and the victim consumed a large quantity of alcohol together. They were together in the defendant's unit. Shortly after 10.00 pm, the neighbours heard arguing coming from the defendant's unit.
On the day after the incident, the defendant told Police that he had been in an argument with the victim. The victim had punched him two to three times to the head and then pushed him to the ground. The defendant got up, picked up a wooden table leg and began to strike the victim numerous times to the left side of his head and face. The defendant then went to bed, leaving the victim in the front room of the unit.
The next morning, he got up and walked a short distance and spoke to another friend who was observed to be emotionally upset. He said, "I have killed Ralph". He said, "He was hitting me in the head so I hit him with the bat".
There was an issue on the special hearing as to whether the defendant was guilty of murder. Campbell J accepted that the defendant had attacked the victim whilst the victim was standing erect. The first blow may have been struck to the leg, causing him to fall. The victim was struck with a number of blows to the head after he fell to the floor. His Honour was satisfied that the only rational inference available was that when the defendant struck the victim, he intended to inflict very serious injury upon him. His Honour did not accept the defences of self-defence or provocation but accepted the partial defence of substantial impairment by abnormality of mind. His Honour found in Peterson (No 4) at [77]: "77. The commission of the offence involved no planning or premeditation. It was a spontaneous attack without any thought at all to the consequences. The attack consisted of a series of blows lasting no more than a few seconds. His inability to control himself and his lack of appreciation of the consequences of his actions were the direct result of his substantial impairment. Applying the norms of the criminal law, which the statute embodies, as serious and severe as the attack was, his moral culpability is greatly reduced. Were this a normal criminal trial, I think the appropriate verdict would be manslaughter by reason of substantial impairment."

The judgment on the limiting term

In his separate judgment of 6 August 2014, Campbell J nominated a limiting term of 8 years from 31 May 2012. [7] His Honour noted that the defendant's case would be reviewed regularly by the Tribunal, which would monitor the defendant's condition and in due course assess when it considers him ready to be released into the community.
Campbell J accepted that the offending was of significant objective seriousness. Because of his mental disability, the defendant so far lost self-control that he subjected the victim to a ferocious attack with a wooden bat and inflicted upon him the most severe injuries.
His Honour also noted that, putting aside the commission of the offence, the defendant's circumstances were such that would evoke great sympathy. He suffered from a mild to moderate intellectual disability compounded by the condition of epilepsy and frontal lobe damage which probably resulted from that epilepsy. His Honour found that his personal life had been tragic (as I have already observed). His Honour found that a loss of control due to his underlying condition was the most significant factor accounting for his attack on the victim.
Yet, as I have also observed, his Honour found that his criminal record was not a long one. It did not show a pattern of consistent offending or resolute disregard of the law. His Honour also accepted that there was some scope, although perhaps not very much, in considering the need to protect the public given that the defendant's inability to control himself occasionally manifested itself in crimes against the person.

Release into the community

The defendant was regularly reviewed by the Tribunal and was released into the community on 28 April 2017. On that day, he travelled from Long Bay Correctional Complex to Community Justice Program Accommodation at Penshurst, where he continues to reside.
Pursuant to s 47(1) of the Act, an order was made for conditional release. The conditions included that he: 1. accept the directions of his case manager; 2. not take illegal drugs or consume alcohol; 3. live at the specified address and not leave the address without permission and without being in the company of a support worker; and 4. attend Tribunal reviews and allow sharing of information about his treatment progress and management with the Community Justice Program, Lifestyle Solutions, his treating psychiatrists and other persons involved in his care.
Those conditions remain in place, except that the so-called "line-of-sight" condition (being that he is not allowed to leave the property where he resides without his support worker) has been removed by the Tribunal.

Review of the views of the Tribunal

At the time of its decision to grant conditional release, the Tribunal also considered whether the defendant should first complete the EQUIPS Aggression Program and progress to a minimum-security environment working towards a lower classification and daily release programmes. This was an approach favoured by Olivia Munn, a Senior Psychologist, with Statewide Disability Services.
Another psychologist, Dr Christopher Lennings, examined the defendant on 7 February 2017 on a referral from the Tribunal. He thought that there was little utility in the defendant remaining in custody and undertaking the programmes. He would not understand instructional-type programmes. He could undertake behavioural programmes and understand consequences. He thought that continuing to stay in the correctional environment would limit the defendant's development. Importantly, he considered that the community would be exposed to a risk if the defendant was simply to walk out at the end of his limiting term without any preparation.
He supported the proposal for the defendant to be housed in a community-based supportive accommodation facility with appropriate supervision, including monitoring of activities around alcohol. He believed that in those circumstances he would be unlikely to represent a serious risk of harm to the public on his release.
The Tribunal accepted that the defendant needed to be prepared for unconditional release. A lack of preparation would expose the community to a greater risk than a stepped process over some years. It considered that the proposed conditional release would be the commencement of such a process. It accepted Dr Lennings' recommendations for line-of-sight supervision. As it said, the risks posed by the defendant's release were manageable in the context of supervision, structure, training and accommodation. It noted that the law did not require zero risk or a guarantee of safety to the community. If it did, hardly any forensic patient would be able to embark upon the process of recovery and reintegration into the community.
It was also satisfied that the care that the defendant would receive at Penshurst (where he remains) is care of a less restrictive kind and consistent with safe and effective care for the defendant.
The Tribunal placed considerable weight on the opinion of Dr Lennings. In commenting on his psychological state, Dr Lennings noted that the defendant had been consistently assessed as having no mental health issues. He has not experienced any kind of bizarre thought processes. Dr Lennings noted that the defendant did not appear to have a high level of stress and typically was not anxious. Overall, his risk appeared moderate and containable within a well-managed supervised setting. The most likely scenario for elevation of risk would be linking up with similarly marginalised peers consuming alcohol and getting into an argument. He said: "On the whole he could be reactive and he could respond to situations in an ineffective way, although he does not appear to be a person who is oriented towards being aggressive, violent or nasty to people generally but does respond aggressively when using alcohol or provoked. My view is that Mr Peterson with support would be able to function but without support he would suffer significantly from being unable to meet his needs such as stable accommodation and buying food …"
He concluded that the defendant would be unlikely to present as a serious risk of harm to the public on his release.

Subsequent review by the Tribunal

The defendant has been reviewed by the Tribunal since his release. The last review took place on 31 March 2020. It noted the following: "Mr Peterson is now 67. He has made slow but considerable progress since he moved to his current premises. He told the Tribunal he is happy there and does not want to move to other premises. Mr Peterson is reported to work on skill-building with his independent use of public transport, which was a challenge for him. It is clear from the report and oral evidence, that Mr Peterson has access to considerable help in his present environment. Mr Peterson is reported to have a good relationship with other clients and with staff. He is very compliant with staff supervision and appears to enjoy being with staff. … Mr Peterson has consistently progressed in developing ways to manage his negative emotions and behaviours stemming from interpersonal conflict. The treating team are pleased with his progress. There have been no incidents of aggression and he has made good progress on all aspects of his care."
It is clear from the Tribunal report that it is satisfied that the defendant has progressed since his conditional release. Indeed, the Tribunal's aim in granting conditional release in 2017 was to ensure that the defendant did progress in developing ways to manage his emotions and behaviours stemming from interpersonal conflict. In the three years since release, there have been no incidents of aggression and, as the Tribunal says, he has made good progress in all aspects of his care.

Compliance with obligations whilst a forensic patient

The plaintiff provided a helpful summary of relevant OIMS case notes dealing with what might be termed infractions by the defendant whilst he was in detention.
As well as matters relating to his psychological care, reference was made to the defendant's completion of the EQUIPS Foundation Programme and the statement contained in the notes that having completed the programme, he still could not link the learning to his own offending behaviour. He was unable to understand the programme content and could not apply it to himself. This is consistent with the views of Dr Lennings in 2017.
There are references to conflict with inmates. In December 2016, he had an altercation with another inmate which he acknowledged but he said that he perceived a provocation by the other inmate. He had also been abusive towards other officers and had then been locked in but no force was required.
On 26 December 2016, he had a verbal outburst to an officer in 5 Wing. He became aggressive but settled and apologised.
In January 2017, he approached officers regarding concerns about another inmate touching his private parts. He acknowledged that he had hurt people on the outside but didn't want to do it again but was worried if there was no choice.
Finally, in February 2017, he became aggressive towards staff and was locked in his cell. He made a threat to an officer.
The plaintiff points to the case notes as reflective of aggressive conduct by the defendant from time to time. That may be so, except that on my reading of the notes, the instances are limited.
As Ms Goodhand points out on behalf of the defendant, he only received a total of four institutional infractions for which he received punishment whilst he was in custody. Some of those infractions were minor, such as failing to comply with correctional centre routine. Ms Goodhand also emphasises that there have been no breaches of the conditions imposed upon the defendant since conditional release. There have been no reports of adverse or problematic behaviour.
It seems to me that this latter fact is more significant than the evidence of infractions during his period of detention, none of which involved any injury to any other person.

Most recent medical evidence/risk assessment

On 2 March 2020, the plaintiff obtained a report from Dr Yolisha Singh, Forensic Psychiatrist, dated 2 March 2020. Dr Singh was asked to examine the defendant for the purposes of this application. She was asked to address a number of issues. Dr Singh considered that the defendant engaged well with the interview process. He was respectful, polite and engaging throughout the assessment process.
Dr Singh does not consider that the defendant is suffering from a mental illness as defined under the Mental Health Act 2007 (NSW). However, he has an intellectual disability of moderate severity. He has a tobacco use disorder of mild severity and an alcohol use disorder which is in remission. His social judgement and decision-making abilities are limited and he continues to require support in those areas. He is independent in personal care but requires considerable support with participation and household tasks. He also requires support with responsibility such as scheduling, transportation and meeting his health needs. These conditions are chronic and lifelong.
Importantly, Dr Singh considered that the defendant has improving self-control and significantly improved coping skills since release.
As referred to by Ms Climo in submissions, Dr Singh also considered but rejected a diagnosis of post-traumatic stress disorder. She did not consider that the diagnostic criteria had been established, although his lifelong traumatic experiences are likely to impact on his levels of hyper-reactivity when he is faced with real or perceived threats.
Dr Singh considers that the defendant's previous antisocial and offending behaviours are better understood within the framework of his intellectual disability, developmental trauma and alcohol. Dr Singh considers that the defendant's current treatment plan, with its structure and accountability combined with his excellent therapeutic engagement with his care team, serve to successfully mitigate his risk of violence. The impact of his risk factors is modified and his protective factors are strengthened.
Dr Singh was asked, "Does Mr Peterson pose a risk of causing serious harm to others if he ceases to be a forensic patient?" She answered: "It is my opinion that Mr Peterson's risk of causing serious harm to others is not mitigated by his status as a forensic patient. I form this opinion on the basis that his current risks detailed in the risk assessment … are not mediated by the conditions of the order per se, as he has no awareness or understanding of the order, but rather by the clinical interventions which have scaffolded his risk. It is my opinion that Mr Peterson's level of risk may be contained with a less restrictive order such as a Guardianship Order."
Further, Dr Singh was asked how the defendant's risk factors might change or fluctuate over time and what effect this might have on his likelihood of reoffending. She noted that current risk assessment approaches in forensic psychology and psychiatry do not predict whether an individual person will reoffend with a serious violence offence. She opined that "[e]xisting risk assessment tools provide either a probabilistic estimate of violence risk in a specified time period (Actuarial instruments) or allow for a professional judgement to be made based on a risk level (low, moderate or high) by taking into account the presence or absence of a pre-determined set of risk factors (structured professional judgments instruments)". She says: "The research demonstrates that risk assessment tools appear to identify low-risk individuals with high levels of accuracy (high negative predictive value) but have low to moderate positive predictive value. Thus, their use as the sole determinants of detention, sentencing and release is not supported by the existing evidence base."
This issue has been the subject of discussion in a recent article on predictive risk assessment in criminal procedure by Dr Carolyn McKay of the University of Sydney Law School. She states: "Prior to the uptake of actuarial or algorithmic techniques, risk was assessed in a clinical but human manner, for example, by psychiatrists or psychologists, based on professional, subjective evaluation, basically, 'unstructured clinical judgements'. Now this wholly human approach may be considered as overly subjective and lacking in reliability and consistency. The various generations of risk assessment have developed through the actuarial or statistical approach and have aimed for a greater level of objectivity. They were initially based on 'static factors (the need-to-know aspects of the offenders such as age at first offense and crime(s) committed)', then later combined with 'dynamic factors (the possibility of change in the offenders' lives)' and more recently with other specific offender factors to enable treatment and intervention." [8]
It may be that the actuarial or statistical approach which is said to produce greater objectivity provides a more accurate prediction of offenders who are a low risk of reoffending than offenders who are assessed at moderate to high risk. This may because of the influence of historical factors on the predictive tools.
Dr Singh ultimately concluded that the defendant falls into a low risk category of people with an elevated future risk of violence with a relatively low likelihood of offending, provided his current level of support is maintained.
Although Dr Singh did not consider that the defendant posed a risk of serious harm to others if he ceases to be a forensic patient, she addressed the issue of a management plan which would address such risk. She said that the defendant needed:

a continuation of his NDIS package;
the provision of safe, stable accommodation and a supportive placement;
reinforcement on a daily basis of positive prosocial response to situations;
education and support for the care staff;
an opportunity to engage with a therapist with experience working with intellectual disability should he wish to address his experience of trauma and victimisation; and
rather than a specific drug and alcohol program, engagement in activities which the defendant experiences as interesting and which strengthens his level of engagement and supports the attainment of his life goals.

Further, as he did not have a mental illness, he did not need to see a psychiatrist regularly or take psychotropic medication. He is not taking any such medication currently.
Finally and notably, Dr Singh emphasised that the defendant appeared to be unaware of his status as a forensic patient on a limiting term and this had been the case since he was placed on the order. His compliance with the conditions of the order were in the context that he had lived in institutions with a rigid structure until the age of 17 and he found the structure and rules of the current placement familiar. He does not endorse antisocial attitudes and holds the staff at the current residence and his current case manager in high regard and therefore complies with their direction. He understands that if he breaks the "house rules" he will no longer be allowed to live there.
As such, Dr Singh concludes: "Mr Peterson's risk of causing serious harm to others is therefore not mitigated by the forensic order, but rather by the clinical interventions … which [have] allowed him to engage with the care team and comply with their direction."

The risk management report

The plaintiff relied on a risk manageability assessment report of Matt Lindshield, Senior Clinical Consultant, dated 18 March 2020. Mr Lindshield noted that the defendant had been a client of the Community Justice Program since 2016.
He has transitioned to the NDIS and his current NDIS-approved plan funds his support model. He receives support from Mr Henry, his Support Coordinator with Lifestyle Solutions to assist him in utilising his funding and plan.
He has nominated to remain at Penshurst OSSL as opposed to transitioning into the aged care system. He receives daily support from staff to help him meet his health and wellbeing needs, including providing daily medication, cleaning his unit and washing laundry and taking him to medical appointments, grocery or other shopping. He has generally been polite and friendly when he engages with other residents or staff and the public whilst in the community. Mr Lindshield says that owing to the defendant's positive progress he has only maintained quarterly contact with him in his capacity as his case manager.
According to Mr Lindshield, the defendant has continued to work on skill-building in his independent use of public transport. Mr Lindshield considered that the defendant continued to show improvement in his independent regulation of his emotions, although this area appears to continue as a mild area of concern and is consistent with previous risk assessments.
Mr Lindshield notes that Penshurst OSSL is situated in close proximity to businesses that serve alcohol. Despite this, the defendant has not given any indication of a desire to consume alcohol or engage in violent behaviour. Despite his freedom to be on his own in the community, he largely chooses to remain on-site or engage in the community with staff present. He has been very compliant with support staff and supervision.
Further, Mr Lindshield says that the defendant has been noted to be aware of times when he gets frustrated and to be able to successfully manage those situations. He will remove himself from situations where there is conflict with others. He will seek out support from staff to help him manage conflict with others.
Perhaps consistent with the views of Dr Singh, Mr Lindshield says that the defendant continues to make positive progress but the challenge for him is his overreliance on support staff which relates largely to his institutionalised placement history throughout his life. Mr Lindshield refers to the ability to self-manage interpersonal conflict with others as being an area of concern but suggests that it is not a major risk factor.

Determination

I must consider the application for an interim extension order on the basis of whether the matters alleged in the supporting documentation would, if proved, justify the making of an extension order. The test is not a stringent one. [9]
I should emphasise that the matters alleged in the supporting documentation is not a reference to the plaintiff's submissions. The supporting documentation is the material relied on by the plaintiff in support of the application. That supporting documentation may contain assertions of fact which may be in dispute, opinions which are untested at the preliminary stage and statements about a defendant which may be the subject to challenge on a final hearing.
Whether the defendant might dispute the matters alleged on the final application is not relevant to my determination at this stage. It is an unusual feature of this case that there may not be much dispute about the matters alleged on any final determination. That is because the defendant has been living peacefully in the community since being released by the Tribunal in 2017. He has been living in the same accommodation throughout and, on the evidence before me, will continue to live in that accommodation for the foreseeable future. He has had the support of Lifestyle Solutions which was proposed and arranged on his release. He is in receipt of a comprehensive NDIS support package. Further, the documentation includes the report of Dr Singh, which does not support the findings that would be necessary at this time.
There is no allegation of current alcohol or substance abuse or of aggressive behaviour towards those who assist him or any other members of the community. There is no evidence of any non-compliance with the conditions imposed by the Tribunal. The evidence of infractions whilst he was in detention is limited.
The course proposed by the Tribunal, when it decided to release him, appears to have worked. That is, in 2017 the Tribunal considered that, on the evidence before it, it would be preferable that the defendant be released into the community under supervision and on conditions for a period, rather than simply being allowed to walk free at the end of his limiting term.
As I have already observed, the Tribunal considered two alternatives based on the differing expert medical opinion. It chose the course that he should be released under conditions of supervision, hopefully allowing him to progress and adjust.
It has been now three years since the defendant's conditional release. The fact that the Tribunal was prepared to remove the line-of-sight condition speaks, in part, of its satisfaction with the defendant's progression.
One matter alleged in the supporting documentation is that the defendant is very dependent upon the support that he receives. That may be so, but there is no indication that his NDIS package is about to be withdrawn or that he will not continue to receive that support.
However, the fact that his transition to living in the community over the past three years (having regard to his status as a person with an intellectual disability) has been seemingly successful is not determinative of the outcome of this application. Nor is the fact that the defendant committed an offence involving significant violence eight years ago determinative of this application. They are merely relevant factors that must be considered.
The making of an extension order would only be justified if the defendant poses an unacceptable risk of causing serious harm to others if he ceases to be a forensic patient. The term "unacceptable risk" must be given its everyday meaning, having regard to the context in which it appears, and the statutory purpose. [10]
I am concerned with risk, not certainty. I am concerned with the risk of serious harm to others. As Beazley P said in Lynn at [61], when considering the similarly worded HRO Act: "[T]he evaluation to be made … is directed to the assessment of risk in the context of making the community secure from harm as opposed to guaranteeing its safety and protection."
Further, I am not considering risk according to an actuarial or algorithmic formula or merely having regard to predictive tools which might be prevalent in the scientific field.
Ultimately, I must exercise a discretion in determining whether to make an interim extension order. There is no prescriptive weighting of factors that applies to the task.
The defendant does not suffer from a mental illness. He has an intellectual disability. He comes to be a forensic patient because he was declared unfit to be tried. His intellectual disability is permanent. Whilst there may be programs and treatments available to him to assist in behaviour modification and instruct him and teach him in life skills, they will not diminish the level of his intellectual disability. He has an IQ of 53, which is exceedingly low. He is illiterate.
The question is not whether the defendant poses an unacceptable risk generally but whether he poses an unacceptable risk if he ceases to be a forensic patient. As he is already living in the community as a forensic patient then, for the purposes of this application, the comparison is between living in the community with the conditions imposed by the Tribunal and with oversight by the Tribunal, and living in the community without such oversight.
Ms Climo, in a thorough and analytical approach, sought to establish that the orders that the plaintiff seeks at this preliminary stage should be made based on a combination of factors. She submits, and I accept, that the Court should look not only at the likelihood of the risk but the gravity of the risk. Even a risk that may be at a relatively low level can be considered unacceptable.
She submits that there are three major reasons or factors that lead to the conclusion that the risk is unacceptable as follows: 1. the defendant has multiple risk factors which are still present, enduring and significant. They include the incapacity for the defendant to exercise self-control when there is a perceived threat and his capacity to respond when provoked with a disproportionate level of violence and his capacity or lack of capacity to deal with interpersonal conflicts; 2. the defendant's mild to moderate intellectual disability has resulted both in a limited degree of insight and an impulsivity and tendency to respond aggressively; and 3. he has a need for a further period of supervision prior to him being able to demonstrate behavioural change so as to be able to self-manage.
It is said that the defendant has an overreliance on support staff and, despite being in the community since April 2017, there has been relatively little change in his capacity to recognise risk and respond to it.
All of these matters are matters referred to by Dr Singh. Some were considered by the Tribunal when determining whether to release the applicant on conditions in 2017.
Whilst there is merit in Ms Climo's factors as a general proposition, it seems to me that some of these risk factors are historical rather than current. Of course, it is not possible to say that they will never return or that there is no risk. For example, a relapse into alcohol abuse would certainly increase the risk. However, he has not abused alcohol for eight years including three years in the community. There is no suggestion that he is likely to suffer a relapse at any particular time.
Ms Climo referred to the defendant's capacity to respond to real and perceived threats disproportionately. Dr Singh referred to the risk of harm to the defendant himself. The risk of harm to himself is a factor to be considered by the Tribunal on a release application (s 43 of the Act) but not a legislative object set out in sch 1 of the Act in relation to interim extension orders and extension orders.
Ms Climo highlighted the comments of Dr Lennings (at the time that the Tribunal released the applicant into the community), relating to his capacity for self-restraint, impulsivity and his capacity to respond in an effective way to aggression. However, she also acknowledged that Dr Lennings' report was prepared prior to the defendant's release into the community. These risk factors again arise in the particular scenario of access to alcohol and unsupervised behaviour.
Ms Climo submitted that the defendant's failure to self-manage his emotional state in unpredictable events was a matter of concern but, on my analysis, the defendant's impulsivity in reacting to conflict tends to be more verbal than physical. There is no record of any violent aggression whilst he has been living in the community for the past three years and there is no record of violent offending whilst he was in detention for the five years prior to that.
I do not consider that an analysis of the OIMS notes suggests any pattern of aggression or violence or non-compliance. Certainly, the evidence points towards increased risk if the defendant relapsed into alcohol abuse but none of the evidence points to that occurring. Further, historical risk factors which perhaps led to earlier offending, such as impulsivity and lack of a capacity for self-restraint appear to have reduced, at least according to the latest evidence both from Mr Lindshield and Dr Singh to which I have already referred.
It is significant that the defendant is not even aware that he is subject to conditions imposed by the Tribunal. According to Dr Singh, he complies with the conditions, not because he is aware of them but because he is used to living in institutionalised situations and is aware that he must comply with the rules of the house. He gets on with the staff and is described as polite and friendly. He prefers to spend his time in the institution rather than out in the community.
The primary object of interim extension orders and extension orders is protection of the community. A community is protected from a person who is a forensic patient either because the person is in detention or is in the community under the supervision of the Tribunal, having regard to the conditions imposed by the Tribunal. An ongoing extension order ensures that the person will remain under the supervision of the Tribunal and subject to those conditions. Further, as the Tribunal has coercive powers, it has the means to ensure compliance with its conditions or sanctions may ensue.
In circumstances in which the defendant does not even know that he is subject to the supervision of the Tribunal or that there are conditions imposed upon him, I asked Ms Climo how keeping him under the supervision of the Tribunal would affect or alter his behaviour. She submitted that the capacity for review on a six-monthly basis enables the Tribunal to adapt the nature of the conditions to the needs of the defendant and to prescribe that those conditions are complied with. She referred to the coercive power of the Tribunal as supporting the recommendations of the treating team and giving them a level of compulsion. She acknowledged that "at the moment the risk is contained" but submitted that "in the plaintiff's position, the risks are contained to a degree by the conditions that are imposed".
In my view, whilst the existence of the coercive power of the Tribunal might, in many cases, impact upon a forensic patient's behaviour, it is unlikely to have any impact on the defendant. The proposition that it does is expressly rejected by Dr Singh. The defendant happens to comply with all of the conditions because he considers them to be the "house rules" of the institution where he is residing and wishes to reside and will reside, at least into the foreseeable future.
I should not make a decision based on the prospect that the defendant might relapse into alcohol abuse or simply leave his current place of residence sometime in the next two years, when there is no evidence that this is at all likely. There is no comment in the supporting documentation that the defendant will relapse. It is not permissible to assume that something will occur in assessing the risk when there is nothing in the supporting documentation that would provide a basis for the assumption. Otherwise, the outcome of any preliminary hearing would hardly have an evidentiary basis.
The task of determining whether the defendant poses an unacceptable risk if he ceases to be a forensic patient is predictive and evaluative. I am not weighing up competing evidence or evaluating alternative facts at the preliminary stage but, unusually, in this matter there may be no competing evidence or alternative facts.
It is not alleged by the plaintiff that the defendant's current arrangements are likely to change in the near future. He has an NDIS package as provided by the National Disability Insurance Scheme Act 2013 (Cth). The package is likely to continue.
In my view, the matters alleged in the supporting documentation, if proved, would not justify the making of an extension order. This is because the defendant could only be the subject of an extension order if the Court is satisfied to a high degree of probability that he poses an unacceptable risk of causing serious harm to others if he ceases being a forensic patient. I do not consider that the matters alleged in the supporting documentation would support that conclusion.
If I were wrong in that conclusion, it would have been necessary to consider whether the risk (being the unacceptable risk) cannot be adequately managed by other less restrictive means.
As Ms Goodhand submitted, the existence of the NDIS package is not "other less restrictive means". As I said in Attorney General for NSW v Peckham (Final) [2019] NSWSC 1775 at [100]: "[T]he comparison is between the ordinary power and control that the State has over a citizen, and being managed, in the sense of being overseen by the Tribunal, with the practical support being provided as it would be irrespective of any oversight".
In Attorney General of NSW v Doolan by his tutor Jennifer Thompson (No. 2) [2016] NSWSC 107, Adamson J stated at [96]: "I consider that the question whether 'means' are more or less restrictive is to be judged by the legal power of others to control the defendant's actions, locations, treatment and other matters, as well as the practical operation of how that power might be exercised in a particular instance."
The Tribunal is an expert and independent tribunal, which no doubt performs an important role in overseeing forensic patients, amongst its other functions. However, the question is not whether there would be some general benefit to the community and the defendant in ongoing oversight. The plaintiff is only entitled to the order sought if the two requirements set out in sch 1 cl 2(1) of the Act are satisfied. In my view, they are not.
The plaintiff submits that the most relevant less restrictive means in the current case is the recommendation by Dr Singh that the defendant be subject to a guardianship order pursuant to the Guardianship Act 1987 (NSW). A lay advocate, employed by the Mental Health Advocacy Service of Legal Aid NSW, has applied to the guardianship division of the NSW Civil and Administrative Tribunal for a guardianship order in respect of the defendant. The application has been set down for hearing on 10 June 2020.
The defendant submits that the guardianship orders, if made, will further support the current NDIS package and will optimise the basis upon which the defendant can be managed in the community. I accept that submission.
However, I also accept that the nature and scope of any guardianship order which might be made is uncertain. Further, I doubt that the appointment of a guardian is a means of managing an unacceptable risk of causing serious harm to others. Section 4 of the Guardianship Act sets out the duties imposed upon anyone exercising a function under the Act with respect to persons who have disabilities. There is a duty to observe a number of principles, including: (a) the welfare and interests of such persons should be given paramount consideration, (b) the freedom of decision and freedom of action of such persons should be restricted as little as possible, (c) such persons should be encouraged, as far as possible, to live a normal life in the community, (d) the views of such persons in relation to the exercise of those functions should be taken into consideration, … (f) such persons should be encouraged, as far as possible, to be self-reliant in matters relating to their personal, domestic and financial affairs …
It is not necessary to further consider the scope of any guardianship orders that might be made. The appointment of a guardian does not have as one of its purposes or functions the management of the risk of a person causing serious harm to others.
It is not necessary to further consider sch 1 cl 2(1)(b) of the Act. Having regard to my conclusion on unacceptable risk, I am not satisfied that the matters alleged in the supporting documentation would, if proved, justify the making of an extension order. As such, the plaintiff is not entitled to the orders it seeks.

Orders

The Summons is dismissed.
I order that the plaintiff pay the defendant's costs.

Endnotes

R v Peterson (No. 4) [2014] NSWSC 1056 ("Peterson (No 4)").
Lynn v State of New South Wales (2016) 91 NSWLR 636; [2016] NSWCA 57 at [126] ("Lynn").
Attorney-General for the State of New South Wales v Boyce by his tutor Jennifer Thompson [2017] NSWSC 144 at [12] ("Boyce").
State of New South Wales v Sturgeon [2019] NSWSC 559 at [6]; State of New South Wales v Wilmot (Preliminary) [2019] NSWSC 776 at [7].
R v John Francis Peterson [2013] NSWSC 1002.
Peterson (No 4).
R v Peterson (No. 5) [2014] NSWSC 1080.
Carolyn McKay, 'Predicting risk in criminal procedure: actuarial tools, algorithms, AI and judicial decision-making' (2020) 32(1) Current Issues in Criminal Justice 22, 28.
State of NSW v Holschier (No 2) [2018] NSWSC 1921 at [25] (Hoeben CJ at CL).
Lynn at [49]-[54]; State of New South Wales v Thomas (Final) [2011] NSWSC 307 at [58]; Boyce at [12]. 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: 29 May 2020

Mental Health (Forensic Provisions) Act 1990(NSW)

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