Attorney-General for New South Wales v Riley

Supreme Court of NSW|2019-08-16|Before: Walton J, Wright J

Solicitors: Crown Solicitor's Office (Plaintiff) Legal Aid NSW (Defendant) File Number(s): 2019/153405

reasons for judgment

By a summons filed on 16 May 2019 the Attorney-General for New South Wales ("the plaintiff") sought a 12 month extension order pursuant to cll 1 and 7(1)(a) of Sch 1 of the Mental Health (Forensic Provisions) Act 1990 ("the Act") in relation to Mr Robert James Riley ("the defendant"). Mr Riley is represented by his tutor in the proceedings, Ms Linda Rodrigues.
On 22 May 2019, a preliminary hearing was conducted before Wright J (required under cl 6(4) of Sch 1 of the Act). His Honour found that the matters alleged in the supporting documentation would, if proved, justify the making of an extension order and appointed a psychiatrist and a psychologist, as agreed between the parties, to independently assess the defendant and furnish reports to the Court (cl 6(5) of Sch 1): Attorney General for New South Wales v Riley by his tutor Rodrigues [2019] NSWSC 602 ("Riley No 1"). Ms Jenny Howell, psychologist and Associate Professor John Basson, psychiatrist, were appointed.
Justice Wright also ordered a 3 month interim extension order extending the defendant's status as a forensic patient pending the final hearing (pursuant to cl 10). It commenced on 24 May 2019 and expired on 23 August 2019 (or until the proceedings are finally determined).

THE EVIDENCE

Pursuant to cl 5 of Sch 1 of the Act, an application must be supported by documentation that addresses each of the matters referred to in cl 7(2) and a report prepared by a qualified psychiatrist, registered psychologist or medical practitioner that assesses the risk of the forensic patient causing serious harm to others; and addresses the need for ongoing management of the patient as a forensic patient and the reasons why the risk of the forensic patient causing serious harm to others cannot be adequately managed by other less restrictive means.
In support of the present application, the plaintiff relied upon the affidavit evidence of Ms Jessica Murty (affirmed 16 July 2019) together with a bundle of documents. Ms Murty was not required for cross-examination. Objections were received as to the bundle of documents. The disposition of those objections appears in the record of proceedings.
The defendant relied upon three affidavits of Ms Penny Adams, the solicitor for the defendant, dated 29 and 31 July and 1 August 2019, respectively.
The two experts appointed by the orders of Wright J, Ms Howell and Associate Professor Basson, produced reports. They gave concurrent evidence with Dr Michael Giuffrida, forensic psychiatrist (collectively, "the experts"). Dr Giuffrida issued a Risk Assessment Report ("RAR"). The experts were cross-examined by counsel during the concurrent evidence of the experts. An overview of their respective opinions, as set out in their reports, together with a summary of the concurrent evidence will be returned to a later juncture.

Statutory Scheme

Part 5 of the Act concerns forensic and correctional patients.
Section 54A of the Act, empowers this Court to extend a person's status as a forensic patient in accordance with Sch 1 of the Act. An extension order means the defendant's status as a forensic patient is maintained: s 42(a1) of the Act.
The objects of Pt 5 of the Act are set out in s 40 as follows: 40 Objects The objects of this Part are as follows: (a) to protect the safety of members of the public, (b) to provide for the care, treatment and control of persons subject to criminal proceedings who are suffering from a mental illness or mental condition, (c) to facilitate the care, treatment and control of any of those persons in correctional centres through community treatment orders, (d) to facilitate the provision of hospital care or care in the community through community treatment orders for any of those persons who require involuntary treatment, (e) to give an opportunity for those persons to have access to appropriate care, (f) to protect the safety of victims of forensic patients and to acknowledge the harm done to victims.
The Court undertakes the following staged approach to determine whether to grant an extension order: 1. First, the Court asks itself whether it is satisfied to a high degree of probability that cll 2(1)(a) and (b) have been met; and (if the Court is so satisfied); 2. Then the Court goes on to determine whether an extension order should be granted having considered cl 7(2) factors (and any other relevant matters). (See Attorney-General of New South Wales v McGuire [2017] NSWSC 1572, per Bellew J at [26]).
Clause 2 provides 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. (2) The Supreme Court is not required to determine that the risk of a person causing serious harm to others is more likely than not in order to determine that the person poses an unacceptable risk of causing serious harm to others.
Clause 2 provides that a forensic patient can only be made the subject of an order "if and only if" the Court is satisfied on a number of issues. In relation to this phrase, McClellan CJ at CL stated in Attorney-General for the State of New South Wales v Gallagher [2006] NSWSC 340 (at [34]): [34] … The caution that an order can only be made "if and only if" the Court is relevantly satisfied emphasises the care with which the Court must approach the question of whether to make orders imposing continuing restrictions, in whatever form, on a person's liberty.
The plaintiff bears the onus in respect of both limbs in cl 2 and, as to the second, must prove the negative: Minister for Health v Paciocco [2017] NSWSC 4 ("Paciocco") at [8].
A "high degree of probability" indicates something "beyond more probably than not". It is higher than the civil standard of proof but lower than beyond reasonable doubt: Attorney General of New South Wales v McGuire [2016] NSWSC 158 at [28], citing Cornwall v Attorney-General for New South Wales [2007] NSWCA 374; Attorney General for New South Wales v Huckstadt [2017] NSWSC 441.
Applications for extension orders may only be made in relation to forensic patients (Sch 1, cl 3). A forensic patient is defined in s 42 of the Act. Because the defendant is subject to a limiting term and is detained in custody pursuant to an order made under s 27 of the Act, he is a forensic patient.
An application for an extension order can only be made if the defendant is on a limiting term (or an existing extension order) and the application is filed within the last 6 months of that limiting term (or current extension order): cl 4(1) and (2). These requirements were met with respect to this matter.
The structure and language of the regime has direct parallels with the Crimes (High Risk Offenders) Act 2006 (NSW) ("CHRO Act") and as such assistance is gained from authorities dealing with that legislation: see Attorney-General for the State of New South Wales v Boyce by his tutor Jennifer Thompson [2017] NSWSC 144 at [9] (per Davies J). Unlike the CHRO Act, however, this regime does not empower this Court to make specific orders about the care, treatment or control of a forensic patient. Such matters remain within the province of the Mental Health Review Tribunal ("the Tribunal"), which has the expertise in determining the best options for care, supervision, treatment and, if necessary, detention of forensic patients.

Unacceptable Risk: Clause 2(1)(a)

The Court has to be satisfied that "the forensic patient poses an unacceptable risk of causing serious harm to others if he or she ceases being a forensic patient". The phrase "unacceptable risk" is not defined in the Act, however, it has been held to have the same meaning as in the CHRO Act: Attorney General for the State of New South Wales v Boyce (No 2) [2017] NSWSC 648 at [30].
Adamson J in Attorney-General of NSW v Doolan [2015] NSWSC 1773 at [36] stated: [36] … It is clear from the express terms of cl 2(1)(a) in the Forensic Provisions Act that the unacceptable risk is that of "causing serious harm to others".
An "unacceptable risk" is one that is intolerable or far from normal expectations or required standards: Lynn v State of New South Wales (2016) 91 NSWLR 636; [2016] NSWCA 57 ("Lynn") (at [50]-[51] per Beazley P).
Determining what is the "unacceptable risk" includes a consideration of the nature and likelihood of the harm absent an extension order. In Attorney General for NSW v MZ [2017] NSWSC 1773, Fullerton J stated (at [11]-[12]): [11] The assessment as to whether MZ poses an unacceptable risk of causing serious harm to others, a risk which cannot be adequately managed by other less restrictive means, is an evaluative exercise, where the assessment of risk is to be made in the context of the Court's obligation to secure the community from harm to a reasonable or adequate degree as opposed to guaranteeing its safety and protection. [12] As an evaluative exercise, predicting the nature and extent of the risk of MZ causing serious harm to others involves considering both the likelihood of the risk of harm eventuating and the gravity of the risk that may eventuate…
The assessment of risk is based on an absence of protective measures and on the assumption that the defendant was not a forensic patient or an involuntary patient: Attorney General for New South Wales v Kapeen bht Jennifer Thompson (Preliminary) [2018] NSWSC 619 ("Kapeen") (per Johnson J); NSW Minister for Mental Health v Paciocco (No 2) [2018] NSWSC 866 (Davies J) and Attorney General for New South Wales v Skerry (Preliminary) [2015] NSWSC 859 ("Skerry") (at [40]) per R A Hulme J). In Kapeen, Johnson J stated (at [49]): [49] I am satisfied that the correct approach is to assess the question of whether Mr Kapeen poses an unacceptable risk of causing serious harm to others on the assumption that he is not a forensic patient nor an involuntary patient - that is, the risk that Mr Kapeen would present if he ceased to be a forensic patient and was released at the end of the extension order on 2 June 2018. In this regard, I agree with the approach adopted by RA Hulme J in Attorney General of New South Wales v Skerry (Preliminary) [2015] NSWSC 859 at [40], Schmidt J in Attorney General for the State of New South Wales v Huckstadt (No. 3) [2017] NSWSC 944 at [14] and Fullerton J in Attorney General for NSW v MZ [2017] NSWSC 1773 at [12] …
The unacceptable risk precondition requires the exercise of a discretionary judgment: Lynn at [82] (per Basten JA). The objects of the Act should be held in mind when undertaking this evaluative task: Lynn at [55] (per Beazley P). Intrusions on the defendant's right to liberty and privacy by the making of an order are not relevant considerations for the first stage analysis: Lynn at [44] (per Beazley P).
In Lynn, Basten JA held (at [126]): [126] … The nature of the risk he posed had to be assessed by reference to past conduct, the seriousness of the possible future conduct and the period over which the risk may come to fruition. The assessment must be based on an absence of protective measures. The criterion of unacceptability will no doubt depend upon these matters, together with a comparison, to the extent that the evidence permits, of what may be described as the background level of risk to the community from violent offenders
Determining what is an "unacceptable risk" includes a consideration of the type and nature of the offences that may be committed absent supervision and balancing those factors, if necessary, for example where there is low risk of recidivism versus likely drastic consequences to the victim: State of New South Wales v Kamm (Final) [2016] NSWSC 1 ("Kamm") at [41] (per Harrison J).
The analysis undertaken by Rothman J in State of NSW v Ceissman [2018] NSWSC 508 at [26] is instructive in the present context (albeit with respect to a different legislative scheme): [26] It is further necessary for the Court to deal with the construction of the term, "unacceptable risk", within the context of the THRO Act. Ordinarily, a risk is the possibility, chance or likelihood of "harm, hazard or loss". In many areas of the law, risk assessments are undertaken that identify and evaluate an injury that may be sustained as a result of a possible (and usually foreseeable) occurrence. In assessing a risk and whether it is unacceptable, there is a matrix of considerations that are required to be taken into account. First, there is the probability that the risk will manifest. Secondly, there is the seriousness of the harm that will ensue if the risk were to manifest.
The judgment of Adams J in State of New South Wales v Wilson (Preliminary) [2017] NSWSC 1367 at [127]-[128], adopting the observations of Harrison J in State of New South Wales v Pacey [2015] NSWSC 1983 and Wilson J in State of New South Wales v Simcock (Final) [2016] NSWSC 1805, is also applicable and in the following terms: [127] In considering the question of whether the defendant poses an "unacceptable risk" of committing a "serious sex offence" if he is not kept under supervision, I give the words "unacceptable risk their ordinary meaning. I also have regard to the observations of Harrison J concerning the question of "unacceptable risk" in State of New South Wales v Pacey at [43] as follows: "It is perhaps trite to observe that the assessment of the ordinary meaning of the unacceptability of any risk involves at least notionally the arithmetical product of the consequences of the risk should it eventuate on the one hand and the likelihood that it will eventuate on the other hand. A very high risk of occurrence of something that is insignificant, or a very low risk of occurrence of something that is significant, are both risks of similar or corresponding proportions, but neither risk could be considered to be unacceptable." [128] Similarly, Wilson J observed in State of New South Wales v Simcock (Final) [2016] NSWSC 1805 at [71]) that, "Unacceptability of risk involves considerations of both the likelihood of the risk eventuating, and the gravity of the risk that may eventuate."
The Court may legitimately find a person poses an unacceptable risk for the purpose of the unacceptable risk test, even if the likelihood of them committing a further offence causing serious harm is determined to be low: Kamm at [43] (per Harrison J); State of New South Wales v Sleeman (Preliminary) [2018] NSWSC 562 at [13] (per R A Hulme J).

Management of Risk: Clause 2(1)(b)

If the Court is satisfied to a high degree of probability that the defendant poses an unacceptable risk of serious harm to others, then it must make an extension order if also satisfied to the same high degree of probability that "the risk cannot be adequately managed by other less restrictive means".
In Attorney-General of NSW v McGuire (No 2) [2014] NSWSC 288 ("McGuire No 2"), Garling J interpreted the phrase "adequately managed" as meaning (at [63] and [64]): [63] … that the unacceptable risk is mitigated by the proposed management regime so that the community's interest in being kept safe is outweighed by the community's interest in not having mentally disordered individuals or forensic patients being confined in some form of institutional care rather than taking their place in the community. [64] The notion that mentally ill individuals ought receive their treatment in the community is well recognised by the community and is entrenched in the Mental Health Act: s 12, s 38, s 53 and, in particular, s 68. However, the position is novel with respect to a forensic patient who is not mentally ill, or mentally disordered, but as is the case here, a person with an intellectual disability.
When evaluating whether the defendant's risk can be adequately managed by other less restrictive means it is the risk that is the primary consideration. This is more than considering the defendant's proposed treatment regime and care (Attorney General of NSW v Doolan (No 2) [2016] NSWSC 107 ("Doolan No 2") per Adamson J at [96]).
In Doolan No 2, Adamson J noted the assumption implicit in the wording of cl 2(1)(b) is that an extension of a person's status as a forensic patient is more restrictive than classification as an involuntary patient. Her Honour considered that the question whether "means" are more or less restrictive is to be judged by the legal powers 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: Doolan No 2 at [96].
Hulme J in Skerry stated (at [54]): [54] … The focus should be more on the question of adequately managing the risk, rather than identifying whether one regime is more or less restrictive than the other.
Garling J, in McGuire No 2, stated that the phrase "adequately managed" means (at [63]): [63] … the unacceptable risk is mitigated by the proposed management regime so that the community's interest in being kept safe is outweighed by the community's interest in not having mentally ill or mentally disordered individuals or forensic defendants being confined in some form of institutional care rather than taking their place in the community.
Treating the defendant is one aspect in managing his risk. Adequate management of risk is, however, a broader concept than treatment and may involve considerations such as managing how the defendant may be reviewed, who can discharge him, what is considered before the defendant is released, how he may be reintegrated in the community, how the defendant can be monitored after discharge and the ability to recall the defendant should his mental health deteriorate.

The Mental Health Act 2007

If the defendant were not on an extension order other alternatives (other than unconditional release) are that he could be involuntarily detained under the Mental Health Act 2007 (NSW) ("the MHA") or released to a CTO.
The defendant is presently subject to a Forensic Community Treatment Order ("FCTO"), which is reviewable every 3 months (s 46(3) of the Act).
An FCTO remains in force upon release from custody and the treatment providers details are changed from Justice Health to the local community mental health team, or other provider (see s 67(4) of the MHA).
The objects of the MHA are specified in s 3 as follow: 3 Objects of Act The objects of this Act are: (a) to provide for the care and treatment of, and to promote the recovery of, persons who are mentally ill or mentally disordered, and (b) to facilitate the care and treatment of those persons through community care facilities, and (c) to facilitate the provision of hospital care for those persons on a voluntary basis where appropriate and, in a limited number of situations, on an involuntary basis, and (d) while protecting the civil rights of those persons, to give an opportunity for those persons to have access to appropriate care and, where necessary, to provide for treatment for their own protection or the protection of others, and (e) to facilitate the involvement of those persons, and persons caring for them, in decisions involving appropriate care and treatment. Note. See also section 68 which contains principles for care and treatment and section 105 which sets out objectives for the New South Wales public health system.
Once under the MHA, the defendant is under the treatment and management of his treating psychiatrist with no oversight of the Tribunal.
Chapter 3 of the MHA concerns involuntary admission and treatment in and outside facilities.
The defendant cannot be detained unless the treating doctor finds the defendant is mentally ill and no other care of a less restrictive kind, that is consistent with safe and effective care, is appropriate and reasonably available to the person (s 12(1) of the MHA).
If those conditions are not satisfied, the defendant must be released (s 12(2) of the MHA).
By comparison, the Act prescribes that a forensic patient cannot be released unconditionally on an extension order (s 47(2A)) and can only be conditionally released if the Tribunal is satisfied on the evidence that the safety of the defendant or any member of the public will not be seriously endangered by the defendant's release; and other care of a less restrictive kind, that is consistent with safe and effective care, is appropriate and reasonably available to the defendant (s 43 of the Act). The Tribunal has the power to impose a suite of conditions for conditional release on an extension order (s 47 of the Act) such as an order requiring the defendant to be abstinent from alcohol and testing him, accommodation requirements, the ability of home visits, non-association orders (to protect potential victims) or location restriction zones (to protect potential victims).
Section 14 of the MHA is the source of power to detain the defendant as an involuntary patient.
Section 14 of the MHA provides: 14 Mentally ill persons (1) A person is a mentally ill person if the person is suffering from mental illness and, owing to that illness, there are reasonable grounds for believing that care, treatment or control of the person is necessary: (a) for the person's own protection from serious harm, or (b) for the protection of others from serious harm. (2) In considering whether a person is a mentally ill person, the continuing condition of the person, including any likely deterioration in the person's condition and the likely effects of any such deterioration, are to be taken into account.
Section 14(2) of the MHA extends the power to detain a person as an involuntary patient, beyond the point where the patient is only exhibiting ongoing active symptoms of his mental illness. It introduces the concept of "continuing condition".
The concept of "continuing condition" used in s 14(2) of the MHA has relevance in the present case, where the immediate means of managing the defendant is as an Involuntary Patient or under a CTO under s 14 of the MHA.
The term "continuing condition" is not defined in the MHA. It was first introduced into the MHA's predecessor s 9(2), in the following form: In considering whether a person is a mentally ill person, the continuing condition of the person, including any likely deterioration in the person's condition and the likely effects of any such deterioration, are to be taken into account.
Subsequently in 1997, it was expanded to include the concepts of "likely deterioration" and "likely effects of any such deterioration".
Section 48 of the MHA provides: 48 Apprehension of persons not permitted to be absent from mental health facility (1) An authorised medical officer of a mental health facility may apprehend a person, or direct a person to be apprehended, if: (a) the person fails to return to the facility on or before the expiry of a permitted period of absence granted under this Part or fails to comply with a condition of the permission, or (b) the person absents himself or herself from the facility otherwise than in accordance with this Act. (2) The person may be apprehended by any of the following persons: (a) an authorised medical officer or any other suitably qualified person employed at the mental health facility, (b) a police officer, (c) a person authorised by the Minister or the authorised medical officer, (d) a person assisting a person referred to in paragraph (a), (b) or (c). (3) A person who is apprehended is to be conveyed to and detained in the mental health facility from which the person absented himself or herself (whether directly or indirectly by way of another mental health facility).
Section 58 of the MHA provides: 58 Breach of community treatment order (1) The director of community treatment of a declared mental health facility implementing a community treatment order must take the steps set out in this section if the affected person in any way refuses or fails to comply with the community treatment order and the director is of the opinion that: (a) the mental health facility has taken all reasonable steps to implement the order, and (b) there is a significant risk of deterioration in the mental or physical condition of the affected person. (2) The director must: (a) make a written record of the opinions, the facts on which they are based and the reasons for forming them, and (b) cause the affected person to be informed that any further refusal to comply with the order will result in the person being taken to the declared mental health facility or another appropriate mental health facility and treated there. (3) On a further refusal or failure by the affected person to comply with the community treatment order, the director may cause the person to be given a written notice (a breach notice): (a) requiring the person to accompany a member of staff of the NSW Health Service employed at the declared mental health facility for treatment in accordance with the order or to a specified mental health facility, and (b) warning the person that the assistance of a police officer may be obtained in order to ensure compliance with the order. (4) On the refusal or failure by the affected person to comply with a breach notice, the director may, in writing, make an order (a breach order) that the affected person be taken to a specified declared mental health facility. (5) For the purposes of subsection (3), the director causes a person to be given a breach notice if the director ensures that: (a) the notice is handed directly to the person, or (b) if it is not reasonably practicable to hand the notice directly to the person, the notice is posted to the last known address of the person.
Section 61 of the MHA provides: 61 Review of affected person at mental health facility after breach order (1) This section applies to an affected person who is taken to or is at a declared mental health facility after refusing treatment at a mental health facility consequent on a breach order. (2) An authorised medical officer must, not later than 12 hours after the person is taken to the declared mental health facility, review the affected person's mental condition and determine whether the person is a mentally ill person or a mentally disordered person. (3) The authorised medical officer may cause the person to be given treatment in accordance with the community treatment order. (4) If the authorised medical officer determines that the affected person is a mentally ill person or a mentally disordered person for whom no other care of a less restrictive kind, that is consistent with safe and effective care, is appropriate or reasonably available, the person is to be detained in the declared mental health facility for further observation or treatment, or both. (5) The affected person may be detained until one of the following events occurs: (a) in the case of a mentally ill person, the term of the community treatment order ends or the person is discharged from the declared mental health facility under this Act, (b) in the case of a mentally disordered person, the maximum period for which a person may be held as such a person under Part 2 ends, the term of the community treatment order ends or the person is discharged from the declared mental health facility under this Act.
Justice Adamson in Doolan (No 2) (at [96]-[127]) set out key relevant differences between a patient involuntary detained under the MHA and a forensic patient on an extension order. Relevant to this application, in summary, they include: 1. That a forensic patient and an involuntary patient may be treated in the same way in terms of care in the forensic hospital does not answer the second limb of the test in cl 2(1) of Sch 1 (at [96]). 2. In the forensic setting there is oversight by the Tribunal involving a panel of three qualified people. A mental health inquiry may be conducted by one member (who is the President or a Deputy President or a member qualified to be appointed as a Deputy President): s 150(2A) and Sch 5 cl 1 of the MHA. 3. Only the Tribunal has power to release a patient (and can only do so conditionally) and the Tribunal is not permitted to release a forensic patient without an independent risk assessment report: s 74(d) of the Act. 4. The Attorney-General or the Minister has the right to appear and make submissions: s 76A(2) of the Act. 5. Section 75 of the Act empowers the Tribunal to impose conditions relating to various matters (including accommodation, treatment, medication, conduct, case management and drug-testing) when it orders the release of, or grants leave of absence to, a forensic patient. The objects in s 40 (which include to protect the safety of members of the public) are relevant to the exercise of the Tribunal's discretion under s 75. There are no such powers in relation to involuntary patients: they cannot be conditionally released by the Tribunal (albeit they can be subject to a CTO). 6. CTOs authorise the compulsory treatment of a person in the community by reference to a "treatment plan". The purpose of the CTO is confined to treatment. The matters included in a CTO are fewer than can be included in the conditions which a Tribunal can impose on a forensic patient who is released or granted leave of absence. 7. Section 68 of the Act provides for a recall power in relation to a forensic patient that is rapid and can be relied upon if: there are public interests concerns; the patient has breached a condition; or his mental condition has deteriorated. Once recalled the patient can be detained in a mental health facility, prison or other place (determined by the Tribunal) and must be reviewed. 8. The responsibility for overseeing a CTO rests with the patient (s 57(1) of the MHA) and the director of community treatment (s 58). If the patient does not comply with a CTO, the responsible mental health facility makes a written record that the mental health facility has taken all reasonable steps to implement the order and there is significant risk of deterioration in the mental or physical condition of the patient. The patient is then informed that any further refusal will result in the person being taken to the declared mental health facility or another facility for treatment: s 58(2). If the patient refuses or fails to comply again, the director can issue a breach notice requiring the person to attend for treatment: s 58(3). The breach notice must warn the patient that a police officer may assist in compliance with the order. If the patient does not comply with the breach notice, the director has the power to make a "breach order" that the patient be taken to a specified mental health facility. Once there, the patient may be given treatment in accordance with the CTO and assessed for involuntary admission to a mental health facility: s 60. These controls sit in stark contrast to those available in relation to a forensic patient.
In Paciocco, Beech-Jones J applied Doolan No 2 and summarised Adamson J's comparison as follows (at [61]-[65]): [61] For present purposes, four particular differences should be noted. The first is that her Honour noted that a forensic patient is to remain in detention, including in a mental health facility or correctional facility or other place, unless the criteria for release in s 43(a) of the MHFP Act, which includes concerns about the safety of the members of the public not being seriously endangered, are met. With an involuntary patient, that person is not to be detained in a mental health facility unless that person is mentally ill or mentally disordered (Doolan No 2 at [109] to [110]). [62] The second difference relates to release. Her Honour noted that with a forensic patient the Tribunal may not release them without an independent expert risk assessment report which addresses whether any member of the public will be seriously endangered, whereas with an involuntary patient an authorised medical officer must inform the Tribunal of their discharge as soon as reasonably practical if they consider that the patient is not mentally ill (Doolan No 2 at [111] to [112]). [63] The third matter concerns the imposition of conditions while the patient is living in the community. Section 75 of the MHFP Act empowers the Tribunal to impose conditions across a broad range of matters when it orders the release of a forensic patient. In respect of involuntary patients who become subject to community treatment orders, their purpose is to require the patient "to receive the medication and therapy, counselling management, rehabilitation and other services provided in accordance with the treatment plan" (Doolan No 2 at [115]). [64] The fourth matter concerns breaches of conditions. Her Honour stated that forensic patients are subject to the oversight of the Tribunal, which has substantial powers of recall. Her Honour contrasted that with involuntary patients who have been released where the responsibility of overseeing community treatment rests with the patient and the Director of community treatment (Doolan No 2 at [117] to [118]). [65] Broadly, her Honour also noted (at [121]) that "[g]enerally speaking the onus in the [MHFP Act] is in favour of greater restrictions on a forensic patient; the onus needs to be displaced by evidence before the Tribunal in order for restrictions to be lifted." Her Honour then stated that "[b]y contrast, the onus in the Mental Health Act is in favour of the liberty of the person and the relevant decision makers must, by and large, be satisfied that the restriction is warranted."

MATTERS RELEVANT TO THE MAKING OF AN EXTENSION ORDER: CLAUSE 7(2) of SCHEDULE 1

In determining whether or not to make an extension order, the Court must have regard to the factors set out in cl 7(2) of Sch 1 of the Act, in addition to any other matters it considers relevant.

Index offence

On 30 April 2018, the defendant was indicted on the following offences in the District Court at Nowra : 1. two charges of being armed with intent to commit an indictable offence (one alleged to have occurred on 19 February 2017 and the second on 23 April 2017), being an offence under s 114(1)(a) of the Crimes Act 1900 (NSW) (the offence for the later charge date is the "index offence"); 2. two charges of damage to property (on 19 February 2017 and 23 February 2017), an offence under s 195(1)(a) of the Crimes Act; and 3. one charge of entering land with intent to commit an indictable offence (on 23 February 2017), an offence under s 114(1)(d) of the Crimes Act.
On 30 April 2018, Acting Judge Charteris, pursuant to s. 14 of the Act, found the defendant unfit to stand trial. His Honour made this determination having considered the reports of Professor Greenberg and Dr Richard Furst. In accordance with the Act, the defendant was referred to the Tribunal and remanded in custody.
Consequent to a review hearing on 28 June 2018, the Tribunal determined that the defendant would not be fit to be tried for the offences within 12 months of the District Court's finding of unfitness on 30 April 2018 and that the defendant should remain at the South Coast Correctional Centre ("the SCCC") for care and treatment.
On 21 December 2018, the Tribunal maintained its finding that the defendant has not become fit to be tried and would not be fit within 12 months of the unfitness finding by the District Court.
On 5 April 2019, before Judge Hunt in Nowra District Court, a special hearing proceeded in respect of the charges. His Honour found, on the limited evidence available, that the defendant was not guilty of all counts except the index offence.
On 11 April 2019, Hunt DCJ set a limiting term of 25 months for the index offence, which commenced from 24 April 2017 and expired on 23 May 2019. His Honour's remarks relevant to setting that limiting term are summarised below: 1. the index offence was aggravated because it had been pre-planned and committed in company of another person; 2. there was no action of an aggressive nature taken by the defendant when the victim arrived at her workplace; 3. the defendant has a mental age of 10.5 years as found by Dr Furst and Professor Greenberg; and 4. the index offence was committed when the defendant was not taking his medication.
The following is a factual background with respect to that offence: 1. The defendant was a friend of the co-accused, Yvonne Raymonde. Ms Raymonde's mother was in a relationship with "Fiona" but that relationship ended. The victim of the index offence is "Fiona's" mother ("the victim"). 2. On 22 April 2017, the defendant attended a friend of his, Ms Fisher's, home stating he would kill the victim with an axe, knife or whatever he could get to kill the victim. He told Ms Fisher he was going to the radio station to cut off the victim's head and throw it down a cliff and that he was going to use a knife to cut up the rest of the victim's body and throw it over a cliff. The defendant stated he did not care what the Police would do to him. 3. Ms Fisher attested that the defendant also told her that: I have a hammer and a knife and threw them into the Culburra River. I also have a tomahawk but I haven't used them on anyone but I have used them to threaten people. I told people I'd cut their heads off, stab them and watch them die. 1. At 3:30am on Sunday, 23 April 2017, the defendant drove over to the co-accused's home and invited her to join him. The defendant drove him and the co-accused to the victim's workplace where they waited outside for the victim knowing the victim worked there. 2. The defendant had packed in a green shopping bag a Tomahawk and a bag of cable ties and some other tools. 3. The defendant waited outside the steps of the victim's workplace. The co-accused was near-by. 4. The defendant had the tomahawk in his hand. 5. As the victim approached the front door of her work, the victim saw the defendant and Ms Raymonde and told him she was calling the Police. 6. The defendant and co-accused walked off a short time later. 7. Later that same morning, at 9:10am, the defendant handed himself in to Nowra Police where the defendant was arrested and cautioned. He was in the company of Ms Fisher who asked to speak to Police to tell Police what the defendant had told her. 8. On the morning of the index offence, 23 April 2017, Paul Mantell, the defendant's in-home carer, found a note stating that the defendant had: left home early in the morning as I have to kill [the victim] because she wont [sic] let me near my girl frend [sic] (Fiona) I love her that much I just want her with me I had her many of times on a mattress in the garage so Paul please forgive me for what Im [sic] about to do my mind is made up. 1. At 8:20 am, Mr Mantell, the co-accused's mother, and the defendant arrived at Ms Fisher's home. Ms Fisher asked the defendant why he went to the victim's workplace and the defendant replied: "Because I wanted to cut off [the victim's] head and throw her down a cliff".

The defendant's background

The defendant is a forensic patient (because of the interim extension order) at the Metropolitan Remand and Reception Centre ("the MRRC"), transferred from the SCCC.
The defendant is a 56 year-old-man diagnosed with schizophrenia and an intellectual disability.
At the time of the index offence the defendant was supposed to be on anti-psychotic medication but admitted he had stopped taking it. He was living with his carer, Mr Mantell. The defendant, while living with Mr Mantell, was also drinking alcohol.
The defendant's current medication is as follows: 1. Risperidone tablets (antipsychotic) 2mg at night; 2. Risperidone long acting injection (antipsychotic) 37.5mg every fortnight; and 3. Quetiapine tablets (antipsychotic/sedative) 50mg at night.
On 16 April 2019, the defendant's treating doctor while the defendant was at Long Bay Hospital, Dr Hearps, applied for the defendant to be on a FCTO so that there was management of his medication while he was in the correctional centre. Dr Hearps described the defendant's condition in his report (dated 1 May 2019) provided to the Tribunal as schizophrenia and intellectual disability and expressed the need for the defendant to have psycho-social rehabilitation, medication monitoring and other disability support services if he is released.
While in the care of Dr Hearps he told the Tribunal that if the defendant was released (if the extension order ended) the FCTO would need to be varied to a community treatment order ("CTO") and noted that the defendant "required stable accommodation, a referral to disability services in the community and psychiatric rehabilitation should be part of his community disability support plan"
On 3 May 2019 the Tribunal ordered a FCTO in relation to the defendant as a forensic patient.
Since 26 June 2019, the defendant has been in the care of Dr Trevor Ma at the Mental Health Screening Unit at the MRRC at the Silverwater Correctional Complex.

Other criminal history

Other than the index offence, the defendant has a relatively confined criminal history although they are considered violent offences for the purpose of assessing risk of reoffending and "significant risk factors for future violence". He has: 1. convictions for assault occasioning actual bodily harm, stalk/intimidate and destroy or damage property, all of which occurred on 18 April 2012; and 2. contravention of an Apprehended Personal Violence Order in January 2013 for which he was sentenced to an 18 month s 9 bond (as it then was) on the condition that he attend a psychiatrist and take medication as prescribed.
(At the time of these other offences the defendant was drinking alcohol heavily and not taking his medication).

Associate Professor Basson's report

Associate Professor Basson interviewed the defendant on 21 June 2019 at the SCCC (he did not say for how long). He diagnosed the defendant with schizophrenia and noted the defendant's lifelong intellectual disability, which affects his cognitive ability "to a marked degree".
Associate Professor Basson found the index offence was "motivated by psychotic beliefs that are now controlled, moderated by medication". Associate Professor Basson confirmed medication is necessary to moderate the defendant's risk. Associate Professor Basson stated: Should [the defendant] cease his medication the false beliefs may return. His medication compliance needs to be monitored…. His social contact needs to be monitored if a repeat of [the index offence] is to be avoided. This impressionability is a product of his intellectual disability and social isolation.
Associate Professor Basson did not find the defendant posed an unacceptable risk of harming others at this time.
Associate Professor Basson did not opine in favour of an extension order in his written report. He opined that the defendant did not present an unacceptable risk of causing serious harm to others if he ceases to be a forensic patient. He stated that the reason for this opinion, inter alia, was: "I am clear that the [CTO] will continue until 2020 and that he will have become known to local Community Psychiatric Service. Also that they can renew this order". It appears Associate Professor Basson considered that this familiarity would be the impetus for protecting the community against risk. That is, the familiarity would lead to a "more comprehensive care plan" and his carer would "ensure no alcohol or illicit drugs" are used.
Associate Professor Basson relied upon the ability of a Local Community Mental Health Service together with the defendant's carer (who will be Mr Mantell, his previous carer at the time the defendant committed the index offence) to adequately manage the defendant's risks.
Associate Professor Basson's view is reliant on a FCTO varying to a CTO. The Court heard evidence that, if the extension order is not granted, in order for the FCTO to vary to a CTO it requires the defendant being brought before the Tribunal and for the treating doctor to vary the FCTO to a CTO.

Ms Howell's Report

Ms Howell interviewed the defendant at MRRC on 26 June 2019 for almost two hours. Ms Howell diagnosed the defendant with schizophrenia and noted his intellectual disability. Ms Howell considered he needs effective care and support from others and that the defendant's mental health would deteriorate without it.
Applying the Violence Risk Scale (an actuarial tool that measures static and dynamic risk factors) Ms Howell categorised the defendant in the medium-high risk range for reoffending. Ms Howell considered the defendant's dynamic risk factors included interpersonal aggression, problems with impulsivity, no insight (nor the ability to have that insight) into his violent behaviour, and lack of protective relationships.
Ms Howell opined in favour of an extension order which could provide a "treatment and rehabilitation program to manage [the defendant's] risk allowing for a range of contingencies". Ms Howell found force in the ability of an extension order to rapidly detain the defendant should his risk escalate (noting his diagnosis makes him vulnerable to spontaneous relapses of psychotic symptoms). Ms Howell considered nothing less than an extension order would provide adequate care and treatment to manage the defendant's risks, particularly because it has the ability to conditionally release the defendant with the oversight of the Tribunal.
Ms Howell opined that if an extension order were to be made she would support a period of 5 years.

Dr Giuffrida's reports: The RAR, Supplementary RAR and Further Report Dated 12 July 2019

In Riley No 1, Wright J provided a summary of the evidence of Dr Giuffrida's reports (at [51]-[53]), that summary is extracted below: [51] The reports provided under cl 5(b) of Sch 1 were those of Dr Michael Giuffrida, forensic psychiatrist, both dated 6 May 2019 (one of 18 pages and one of 5 pages). The 18 page report was prepared on the basis of the documentation provided to Dr Giuffrida. The five page report was prepared after he had had the opportunity to interview and examine the defendant on 3 May 2019. It supplements the 18 page report. [52] In his 15 page report, Dr Giuffrida opined as follows: (1) The defendant's medical condition satisfies the diagnostic criteria for schizophrenia as he had suffered for a significant portion of time from delusions and hallucinations. This condition is essentially chronic, lifelong, and enduring and spontaneous remissions are rare. (2) In addition to paranoid schizophrenia, the defendant suffers from a developmental disability, which may relate to foetal alcohol syndrome. Based on the extensive neuropsychological testing carried out by Ms Zipparo, the defendant suffers from an intellectual disability such that his IQ would be at a level suffered by less than 1% of the population. This condition is also chronic and lifelong and therefore unlikely to improve to any degree. Accordingly, he will require a high level of personal, social, and functional support for life. (3) The fact that the defendant suffers from comorbidity of schizophrenia and a serious developmental disability is significant in that such comorbidity multiplies the risk factor for future violence. (4) No assessment of the risk of recidivism and criminogenic needs using the actuarial risk instrument, known as Level of Service Inventory - Revised, or LSI-R, or any other risk assessment has apparently yet been carried out in the defendant's case. (5) The most significant risk factors relating to causing serious harm to others, if the defendant ceases being a forensic patient, relate to the very nature of the mental conditions from which the defendant continues to suffer and of which he is at risk, at any time, of suffering a relapse with potentially serious consequences. The comorbidity, referred to above, roughly doubles the risk of future violence. (6) The defendant has the specific risk factor that he is likely to have experienced, over the years, several episodes of relapsing psychosis, probably requiring psychiatric assessment and possibly requiring hospital admissions, which remain unknown at this stage and where such relapses probably occurred in the context of his non-compliance with treatment. The non-compliance indicates an absence of insight into the nature of his illness or the need for treatment for it, and this constitutes a major issue of minimal or absent insight in this respect. (7) Patients suffering from schizophrenia, and a paranoid form of schizophrenia in particular, have a substantially increased risk of violent and nonviolent offences. In particular, Dr Giuffrida said: "The Odds Ratio was 4.8 times for schizophrenia over the matched controls for violent offences over the lifetime and 7.4 times the matched controls over a five-year period". (8) A critical issue in assessing the nature of and seriousness of the risk posed is the history of the defendant's use of weapons, including a tomahawk with the stated intention of using it to chop off the head of the victim. One issue that arises out of this is to what extent this represented a violent fantasy and/or the degree to which it formed part of a persecutory delusional belief in relation to the victim. (9) In relation to the future risk to the victim's daughter, this remains a problem in that a person with an erotomanic delusion, where they believe that the other party is secretly in love with them, but the other party nonetheless rejects them, this may cause them to feel aggrieved and seek vengeance resulting in violence to that other party. Dr Giuffrida went on to say: "The problem is to the present time we do not know whether [the defendant] may indeed still harbour the same underlying delusional beliefs in relation to both [the victim] and her daughter. If that is the case then upon his release into the community there is a significant perhaps substantial risk that they would simply resume and possibly in full force, the same delusions and that he would act upon them again in the manner that he did before with dangerous potential consequences." (10) Using the HCR - 20 risk assessment instrument, Dr Giuffrida considered a number of specific risk factors, including: (a) criminal or antisocial history, and he noted that past history of violence is the most potent and reliable factor in relation to the assessment of future risk; (b) an escalating pattern of both frequency and severity of offences during 2017, even after the defendant had been interviewed by police and placed on bail with conditions to report, which did not dissuade him from acting on his delusional beliefs or violent fantasies; (c) the choice of particular dangerous weapons, in this case a tomahawk, which was also a highly significant risk factor; (d) the defendant's relationship history in relation to which it was noted that the defendant had not enjoyed any long-term intimate personal relationships and has been somewhat socially isolated and appeared to have little family support over his lifetime; (e) the defendant's employment history in relation to which Dr Giuffrida observed that the fact that the defendant had not worked for about 15 years prior to the index offence was probably a measure of his functional and psychotic deterioration over that time; (f) the defendant's history of educational problems and the fact that he remained largely illiterate and required a carer to function is a measure of impairment that of itself goes to risk. (11) As to how the defendant's risk factors might change or fluctuate over time, the major risk in that respect was that both with or without antipsychotic treatment and care by a psychiatrist and a clinical team in the community, the defendant's condition is likely to substantially fluctuate and he may suffer a relapse with all the consequential dangers. (12) The victim and her daughter continued to be at substantial risk unless the issues of the defendant's "thoroughgoing forensic patient rehabilitation program of care, supervision and treatment in a forensic psychiatric inpatient facility have been very carefully addressed over time". (13) In addition, Dr Giuffrida was of the view that the option of reclassifying the defendant as an involuntary patient under the Mental Health Act 2007 (NSW) was problematic because, should he be in remission to the extent that he did not satisfy the criteria for a mental illness within the meaning of that Act, it might well be the case that he could not be legally detained as an involuntary patient. In addition, reclassification as an involuntary patient would mean that the defendant was released from custody and transferred to a general psychiatric facility, but in his case the defendant required a more thoroughgoing forensic rehabilitation program which would not be available in such a facility. (14) The option of a community treatment order would also be problematic in that it would simply bypass what Dr Giuffrida believed to be the necessary forensic rehabilitation program described in his report. (15) In Dr Giuffrida's view, a guardianship order by itself or in addition to the other options would not be of any additional value. (16) As to the least restrictive means available capable of providing ongoing management for the defendant, it was pointed out that what is fundamental to the issue of the defendant's compliance is "his very capacity to comply with any management care or treatment program … [since he] is bedevilled by the unfortunate comorbidity of a chronic relapsing psychotic illness and a serious developmental disability impairment which both together and separately grossly impaired his capacity to understand and deal with a range of issues as indicated". [53] In his five page report, and after his interview with and assessment of the defendant, Dr Giuffrida stated that his previous opinion in relation to ongoing care and treatment of the defendant as a forensic patient remained the same, as did his opinion concerning the defendant's limited capacity to comply with recommended treatment.
At the time Dr Giuffrida first assessed the defendant, in April and May 2019, he noted that there was no care and treatment plan proposed for the defendant. Dr Giuffrida opined: It is abundantly clear that [the defendant] because of his combined mental disorders which are of serious kind will require as he has had in the past a high level of welfare support in relation to such issues as his housing and accommodation and general functional support which has been provided most recently by a carer. I could find no orchestrated plan for his overall level of care and supervision should he be released into the community. This raises the question as to what service or services would provide the overall management and treatment plan that [the defendant] would require to survive safely in the community.
Dr Giuffrida opined, in the RAR, that the defendant needs: … a thorough going forensic defendant rehabilitation program of care, supervision and treatment initially in a forensic psychiatric inpatient facility such as the Forensic Hospital at Malabar and/or with the passage of time a medium secure unit first to carry out the necessary risk assessment and in doing so determine to what extent [the defendant] is at risk of experiencing a relapse of the same delusional beliefs and again refocussing those on the same victims. As indicated, I regard the victims to continue to be at substantial risk unless all of these issues have been very carefully addressed over time. The problem that [the defendant] suffers is that it is difficult or impossible to obtain any useful level of psychiatric forensic rehabilitation or treatment program whilst on a Limiting Term in the purely custodial setting of a correctional centre as he has. Seeing a psychiatrist every month or so as he probably has in the correctional centres does not constitute in any useful way a planned rehabilitation and treatment program.
Significantly, Dr Giuffrida concluded: … what is fundamental to the issue of his likely compliance is [the defendant's] very capacity to comply with any management care or treatment program. As indicated, [the defendant] is bedevilled by the unfortunate comorbidity of a chronic relapsing psychotic illness and a serious developmental disability impairment which both together and separately grossly impair his capacity to understand and deal with a range of issues as indicated. [The defendant] has in my opinion minimal to negligible intellectual capacity judgement and insight to comply with management, treatment and rehabilitation strategies without a now proven high level of care and support in the community dealing with every aspect of his life and circumstances.
Dr Giuffrida opined that given the defendant is on injectable depot antipsychotic, the defendant is unlikely to have the judgment and insight to appreciate the critical need for continuing compliance with it.
Dr Giuffrida also expressed concern that given that the defendant's schizophrenia may be treatment resistant as he has been on strong antipsychotics and yet still hears voices.
Dr Giuffrida opined that the least restrictive management of the risk posed by the defendant was to continue his status as a forensic patient, transfer him to a medium secure unit (which is what Dr Ma intended to do), and to gradually release the defendant to the community with the Tribunal oversight and applying the suite of conditions that the Tribunal has the power to provide under a conditional release whilst the defendant is on an extension order.
In the RAR, Dr Giuffrida noted that if the defendant were subject to a CTO, it is up to the defendant's treating team to decide whether to renew the CTO. He observed: The community team has the full discretion as to whether to seek a renewal of the [CTO] by requesting a review by the [Tribunal] or alternatively to decide not to pursue that path in which case the patient would continue in the community as a voluntary patient with no conditions of an order so that the condition that the patient is obliged to comply with treatment simply lapses. The fact of the matter is that it is quite common for the community treatment team to allow the CTO to lapse if the treating team is comfortable that the patient is complying with treatment and will continue to do so voluntarily. The CTO will often be allowed to lapse at times irrespective as to whether the patient continues to be a potential risk with ongoing symptoms….. there is not automatic review by the [Tribunal] when a CTO is expiring
In in his third report, Dr Giuffrida stated that the CTO would not provide the level of care, treatment and rehabilitation the defendant required. He stated: … whilst the local MH team may use all their endeavours to manage [the defendant] within their always stretched and limited resources I fear it will not ultimately manage the complexity, type and level of risk that [the defendant] poses to the community. Ultimately should [the defendant] be released from his Limiting Term sentence then he should be released on a Conditional Release Order with the usual draft of strict conditions to manage the long term and probably lifelong risk that he poses. Conditional release orders ensure the much higher and intense level of care required to adequately manage [the defendant] in the community.
In Dr Giuffrida's view reclassifying the defendant as an involuntary patient under the MHA is "problematic" because remission may mean that the defendant is released and it could mean a transfer to a general psychiatric facility is preferred to that of a specialist forensic facility, which facility cannot provide the forensic rehabilitation that the defendant requires.

Concurrent Evidence

Whilst each expert prepared a report for the proceedings, there was no joint report before the Court. Concurrent evidence was heard before this Court on 2 August 2019.
In the absence of a joint report, the experts were directed to a document entitled "Statement of Issues" ("the Statement of Issues"), which document contained a joint set of issues prepared by the parties.
The Court appointed experts were not in agreement in their reports. In their evidence at the hearing, whilst able to reach agreement in relation to a number of procedural matters relevant to the mental health legislation, Dr Giuffrida and Associate Professor Basson essentially maintained the opinions expressed by each in their respective reports. It may also be noted, Dr Giuffrida also qualified his opinion in his reports as he did not consider he had access to all the material. It was not suggested that he was subsequently provided with that material, prior or at the time of his oral evidence, accordingly, the defendant submitted, the weight that can be given to his opinions must be reduced.
The Statement of Issues contained 10 questions, which broadly concerned three topics: FCTO vs CTO, risk posed and risk assessment, and duration.
I will turn to a summary of the concurrent evidence, in that respect, by addressing the evidence as to the three topics in seriatim.

FCTO vs CTO

The first topic concerned FCTOs and how they may vary or transpire to CTOs in relation to the defendant. At the outset, the experts all accepted that the defendant was presently subject to a FCTO for a duration of 12 months.
Associate Professor Basson gave evidence that an FCTO applies while the defendant is a prisoner and that it becomes a CTO when he moves to the community. He described the way that worked from a practical perspective, The Prison Psychiatric Service (the psychiatrists looking after the defendant in prison) would liaise with the local mental health teams in the area where he is going to live and establish an agreement that the health teams would be willing to take over, take him on a CTO in the community and they would agree to the conditions which are laid out in that record and that there are various rules around how the Tribunal get involved in that process.
Dr Giuffrida, by his evidence, sought to clarify the distinction between the two forms of order. He stated: First of all they operate in entirely different jurisdictions. The FCTO only applies in the prison and the CTO obviously in the community but the conditions that would apply to each are really entirely different. The conditions that apply to an FCTO relate specifically to the treatment that is available in the gaol system which usually comes down to the supervision and monitoring of medication.
He also noted, "the community treatment order is, effectively, an order on a patient, but it also places a responsibility on the treating team in the community".
In the context of risk management, Associate Professor Basson stepped back from reliance on the CTO to manage the defendant's risk (per his written opinion). Associate Professor Basson confirmed to the Court that conditional release orders have more success for patients such as the defendant than CTOs because of the regularity with which the Tribunal reviews the patient. The expert also stated that CTOs "have their failings". He agreed that a conditional release order would also more successfully manage the defendant's risks because of its ability to rapidly recall the defendant and to gradually release the defendant into the community with the supports he needs.
Turning to the procedures following a breach of a CTO, Associate Professor Basson noted "there are powers available to them to take appropriate action to mitigate that; whether it means admission to hospital or other - or insisting that they turn up at the clinic". (Associate Professor Basson clarified that his reference to "admission" concerned an involuntary patient).
Dr Guiffrida accepted that if a forensic patient is put on conditional release, their status as a forensic patient remains in place until that release either becomes unconditional or as otherwise determined by the Tribunal. He accepted that the defendant would need to be a forensic patient in order for it to be a conditional release order.
Dr Giuffrida did not consider a conditional release order would only be available if the defendant were on an extension order. He provided the following explanation: … the reason is because, whilst there may be an initial period of an extension order, it provides for the - it can provide for the opportunity for it to be - the person to be reviewed by the Mental Health Review Tribunal, such that they could make an order for the person's detention in a hospital; or, in the alternative, for them to be conditionally released with a set of orders.
During the course of concurrent evidence, the experts were directed to consider the obligations imposed upon the defendant by the Tribunal by the CTO and to provide an opinion on that plan's management of the defendant's risk.
Associate Professor Basson gave the following evidence: GOODHAND: In terms of the CTO, you express the opinion in your report that you were of the view that Mr Riley did not pose a risk of serious harm and you qualified that in your earlier evidence that that was on the basis that he was subject to a CTO. Is that still your opinion? WITNESS BASSON: It has to be a well negotiated CTO in which the local I'd anticipated that, by now, the local mental health team would have been negotiated with; we'd know what their names were and what they were prepared to do, so that that could be considered as part of the evidence. It does seem to me that we are somewhat deficient in knowing how they would feel about a case like this. I don't know; I've never worked in Nowra, I've never worked with Shellharbour and the other hospitals around that area who provide a service for that community. … GOODHAND: In terms of the forensic hospital, can you confirm, if you were aware, that Dr Ellis has confirmed that it was not expected that Mr Riley would be transferred to the forensic hospital? WITNESS BASSON: I understood there'd been some that it was in the notes, a telephone exchange with Dr Ellison and I'm not responsible for the forensic hospital these days. I was for a period. The situation would he would seem to me that he's not a patient who the forensic hospital would be giving a high priority to and given the waiting list at the present time for a forensic hospital is extensive, he would stand very little chance of getting services of the forensic hospital and probably, within that set up, it might do him harm.
Dr Giuffrida gave evidence that when a person was coming to the end of their sentence and they were on an FCTO, then the Tribunal reconvenes and usually makes an order for a CTO in the community and that is done before the person is released from custody. The treatment plan subject to the CTO would be expanded to accommodate the person re-entering the community: GOODHAND: In terms of the current FCTO, it is your expectation that that would be expanded if an application were to be made by the treating team for a CTO? WITNESS GIUFFRIDA: A lot of the elements for a CTO are in the FCTO. But, yes, it would be broadened to deal with exactly the issues that have been raised by Ms Howell and Dr Basson in terms of the broader psychosocial milieu of therapy and issues of accommodation and placement and so on.
Dr Giuffrida and Ms Howell also expressed their concerns with a CTO not adequately managing the defendant's risks. The CTO is limited in that regard when compared to the ability of the Tribunal to impose conditions on a forensic patient when released (such as drug and alcohol prohibitions).
The experts were unanimous that management of the defendant's risks require more than medication. He requires holistic support and public interest oversight.
The experts were clear in their oral testimony that having certainty prior to the defendant's release and known supports in place with conditions on his release is the best management of the defendant's risks before moving to a CTO. Under an extension order, if released from a mental health facility (that release decision being made by the Tribunal), the FCTO remains, conditions could be imposed regarding accommodation, alcohol and substance use, drug-testing and the ability to rapidly recall if the defendant's health deteriorates.
Dr Giuffrida commented that a conditional release of the defendant is "clearer, much more intensive and there's kind of a sense for the community team taking over the care, that there is a high level of responsibility and they know - this is the important point - they know that they will be asked at the review date in six months by the Tribunal to provide a an update report as to exactly the progress the patient". Dr Giuffrida gave evidence that a conditional release order would get the defendant the services he needs.
Ms Howell commented that CTO's are not followed up as often and with Tribunal oversight on a conditional release order the defendant's risk would be managed and there was no other less restrictive means of managing the defendant's risk.
Associate Professor Basson endorsed a conditional release order as a regular system which has greater success than CTOs because of the Tribunal oversight and the greater powers provided thereunder.

Risk Posed

Nextly, the experts were asked to consider the risk posed by the defendant, namely, the risk of serious harm to others.
Ms Howell recognised the defendant's diagnosis of schizophrenia and described it as "an enduring condition… [which] will get worse with age to some extent". She noted the source of her concern, in that respect, as whilst the defendant's condition was being managed with medication, the defendant continues to exhibit symptoms of schizophrenia. The defendant reported that he hears voices and responds to them. Ms Howell observed that the defendant appeared "overwhelmed" by the voices in his head.
Ms Howell noted that the defendant expressed a desire to be on a CTO and that "he talked about being in the community saying that his schizophrenia is better in the community and he is compliant with his medication. So, that is a little at odds with, I would have thought, his complying with medication in custody as well, but he was having this response".
In summary, Ms Howell maintained the position set out in her report, she identified the risk posed by the defendant as relating to combination of factors, namely, the defendant's schizophrenia, desired living arrangements (to go back and live with the person that he was living with at the time of the index offence) and his intellectual and cognitive ability. She commented that the defendant needs more than just medication management but support and oversight which is best provided if he remains a forensic patient which has the ability to conditionally release the defendant and provide the defendant with the holistic support he needs
As to the same, Associate Professor Basson highlighted the importance of the fact the defendant is now receiving medication. He observed: "…prior to the events that led to the offence he said he wasn't taking his medication, so I think that's quite important. I agree that he was living in a particular circumstance and people didn't pick up the fact that he was becoming unwell in the circumstances".
Associate Professor Basson also commented upon the defendant's cognitive ability and his association with certain people: "it has been suggested in a lot of the reports that he was influenced and that he was easily led into the situation that he was being encouraged to join and to be involved; the others had equal culpability".
As to the issues associated with the company kept by the defendant and, to an extent, problems relating to alcohol consumption, Associate Professor Basson opined: … [that] with a community care program, that some of these factors could be mitigated if we could guarantee that his medication was up to date; if there was people visiting the house and making sure that he was monitored and would sound an alarm if they felt that things were going off the rails, and that does not require intensive psychiatric input, but it requires input from social agencies that are aware. And, finally, that there were opportunities were being found for him in the community. I'm not sure that he's rehabilitatable back to work, but he would be, perhaps, rehabilitatable into some social circumstances which did not involve alcohol or people who might lead him into problems with the criminal justice system.
Associate Professor Basson opined "that the community treatment order with all of the conditions and checks and balances would mitigate his risk of re offending". Thus, provided the defendant is subject to a CTO he would not consider that the defendant posed an unacceptable risk.
Dr Giuffrida maintained the view expressed in his report, that the defendant represents a potential serious risk of harm to others, in particular, the original victims. He supported that opinion with reference to "the delusional beliefs that he had and the hallucinations associated with it directed to him are related specifically to those people and if they should return, and it seems that they too, then they would be at risk". He also noted that the 2017 psychiatric reports, together with the recent reports of Ms Howell and Associate Professor Basson, all report that the defendant continues to experience auditory hallucinations and delusional beliefs that relate to victims. This is notwithstanding the fact that the defendant is currently taking "what, on the face of it, would seem to be an effective, normally an effective injectable antipsychotic medication".
Dr Giuffrida described the defendant's schizophrenia as a "highly treatment resistant paranoid schizophrenia". He emphasised: We cannot assume that because someone is on an antipsychotic medication, even in, you know, the most effective doses, that that will relieve them of all symptoms. In many cases, there are people who remain utterly treatment resistant and I think Mr Riley is an example of that, and that is the reason why I think he needs to be so closely managed.
Turning specifically to the adequacy of a CTO in managing the risk posed by the defendants, Ms Howell identified the following dynamic risk factors as relevant concerns, in that respect, but also "treatable sort of goals": 1. The defendant's belief systems - "while he doesn't have a significant history of violence" - the violence inherent in his belief of what he was going to do at the time of the index offence. Ms Howell referred to the defendant's limited progress, in that respect, "that concerns me that, given that he's been in a situation where someone could have been working with him around his belief systems and around those thoughts, he was still holding them". 2. The defendant's general impulsivity, together with "some suggestion of really disinhibited anger, frustration". Ms Howell reported that the defendant showed littler tolerance around frustration. 3. The defendant limited degree of insight into his own thought processes around the behaviour. 4. An absence of past intimate relationships, other than one very short one. 5. An absence of a group of friends/peers.
Dr Giuffrida considered Ms Howell's understanding of the defendant's history - or perceived lack thereof - of violence was not correct. He referred to, in that respect, the defendant's convictions in 2012 in relation to stalking, intimidation and assault and an AVO in 2013, as well as a fire setting incident in the same year. He described those occurrences as "a very significance risk factor for future violence".
Ms Howell also observed that the defendant "doesn't seem to have criminal attitudes; you know, when I look at his life, it's quite prosocial but anchored in the fact that he was employed for a long period of time". She also observed that the defendant appears to be an "isolated and a lonely man" who is "easily led".
During concurrent evidence, Ms Howell also made clear that she "did not take into account" a note written by the defendant to his carer, which referred to a plan to commit a violent offence. Ms Howell said such evidence "was more of a concern to me about the quality of his care… why did he [the defendant's carer] not know something was going on with Mr Riley. Why was that no even - or did not seem to have been picked up". As to the impact of the note upon risk assessment, Ms Howell opined that it speaks to intention only and its exclusion does not change the overall score vis-à-vis risk.
Ms Howell also confirmed that the trial judge's finding that the defendant's intention to hurt Ms Brown "evaporated upon her arrival" does not change her assessment of the defendant's risk of serious harm: He was carrying the weapon for a purpose that when I did my interview with him which was in June or July he mentioned having the axe and what he intended to do with the axe so there is that part of it. I was not aware of the co accused, I did not speak with him about that. He went there with an intention although he did not act on that intention. The factors for risk is there was a certain amount of preparation, there was a certain amount of behaviour directed towards an outcome. At the point of which that outcome could have or may have happened he did not go through with that. It does not negate the behaviour leading up to that part of the day or leading up to that point in terms of risk. Preparedness is an attitude, it is a belief, it is looked at in a number of ways but behaviour in and of itself is still indicative of a higher risk than a person who is not engaged in that behaviour.
Both Associate Professor Basson and Dr Giuffrida agreed that it would not have a great impact upon the calculation of risk. Associate Professor Basson, in particular, opined: … it is not uncommon with people who have a psychological illness that they form an intent and start the process and it goes off in a different direction and stops or something else that they did not intend comes about. It does not detract from the fact they offer a considerable risk and that initial intent becomes an important factor in their management and in their assessment and in the future care that you have to put into looking after them.
Ms Howell ultimately opined that the defendant is "not in the picture as a functioning adult male" and, whilst medication compliance is "absolutely vital", more support is needed to ensure that if the defendant is in the community he is benefiting from that. Ms Howell considered: I think there is more needed and I see that more as a wraparound service around psychological needs, emotional needs, clarifying the issues, clarifying the rules, clarifying why decisions are important, why appointments are important and those sorts of things.
In light of her earlier opinions as to risk and dynamic factors, Ms Howell opined that she did not believe that a CTO could adequately manage the risk posed by the defendant. She confirmed that a CTO in combination with a guardianship order, as well as having read the document provided by the Wellways organisation, would not alter that opinion.
Ms Howell did not appear convinced as to the effectiveness of the Wellways program: There is no specificity around what they would do. "Develop an individualised support plan", there is nothing in here that actually says when they do that what they are looking at, what they will be addressing, what they will be treating, what they would be hoping to achieve.
In contrast, Ms Howell considered that a holistic approach to treatment and rehabilitation could be addressed under an extension order. An extension order was also preferred due to the oversight of the Tribunal.
Throughout her evidence, Ms Howell repeatedly emphasised that for the defendant's risks to be adequately managed it requires more than just medication management to be provided to the defendant but for treatment and rehabilitation and for the ability to gradually release him to the community, observe his behaviour and if necessary (for the protection of the public) to detain him rapidly should his mental health deteriorate or his psychosis rapidly relapse. For these reasons Ms Howell did not consider involuntary detention under the MHA could adequately manage the defendant's risks.
Associate Professor Basson's opinion was consistent with that of Ms Howell, with respect to the Wellways organisation and the guardianship order, without passing judgment over either, in the sense neither appear to provide the necessary support for the defendant. Associate Professor Basson identified that it was critical that the organisation supports the defendant and works with the clinical team to regularly report to them. The Wellways document before the Court provided no evidence as to how they would report back to the clinical team.
Further, Associate Professor Basson opined that involuntary detention under the MHA could not adequately manage the defendant's risks. He gave evidence that the civil regime does not consider or address the criminal aspects of the defendant's behaviour. This is relevant to this context given there is a need to protect the community from the defendant's risk of causing serious harm to others.
As to the CTO, he qualified his opinion: The question of the community treatment order is very dependent on what has been the negotiating and agreement that has been struck between the prison psychiatric team and the community team. There doesn't seem to be any information from the Nowra Community Mental Health people at the present time. That is always going to be quite crucial in a question of what is their understanding, what is their capacity to provide.
As to the effectiveness of a CTO in managing the risk posed by the defendant, Dr Giuffrida did not consider it adequate. He opined: … my concern about managing the risk on a CTO is no because, in my observation, and this is an observation made by many of my colleagues, the community mental health system is actually quite weak, and that there are very patchy standards of quality and care and standards in community mental health teams. To be fair, that is often largely because of difficulty in staffing, so recruitment and retaining. That causes me to have some doubts about how effective that would be.
Turning to the combination of a CTO with Wellways or a guardianship order, Dr Giuffrida stated that he substantially agreed with what Ms Howell and Associate Professor Basson said in that respect. In summary, despite the well intentions of the Wellways program and/or a guardianship order, in the absence of specificity to the circumstances of the defendant, in particular "the essential issues" going to risk - both options are "really so-non-specific, so general as to be of no value".
Neither Associate Professor Basson or Dr Giuffrida were particularly familiar with the Wellways organisation but considered the plan had inadequate detail to manage the risk. Dr Giuffrida also opined that the program offered by Wellways, by itself, appeared insufficient: "I think, as I've said before, I think the whole thing hinges upon a negotiating with a local community mental health team and a firmly in place and comprehensive NDIS plan".
Dr Giuffrida opined that an extension order could manage the risk posed by the defendant. However, he emphasised the status of the defendant as a forensic patient. He noted: Well, because if he remains a forensic patient then it provides for the opportunity either for him to be transferred to the forensic hospital or to a medium secure unit so he can undergo the necessary rehabilitation and recovery plan such that his risk in the longer term could be managed, but it also then allows for the future opportunity for a conditional release to the community.
Associate Professor Basson gave evidence as to what he meant by the words "comprehensive care plan" in his report. He outlined the biological, social and psychological aspects as follows: 1. The "biological aspects" of the case are that the defendant needs to get his medication and it needs to be at the right levels and it needs to be the right medicine. There has been some reference to the fact that he may still be having breakthrough symptoms and the question around that. 2. The "social aspects" relate to his status as a fairly isolate man. Whilst he like to be in social situations, he need help to avoid social situations that get him into trouble. He also needs help avoiding overindulgence in alcohol. 3. The "psychological" component, was also identified as relevant, and concerns what the defendant would be capable of making use of. Reference, in this respect, was made to the beneficial service provided by Wellways (and similar institutes).
Associate Professor Basson expanded upon the necessary considerations to be had prior to the imposition of a CTO: The community mental health team, the question is what is available in that community mental health team, what can it provide in terms of help. It may be a consultant psychiatrist once every three months. It might be that the consultant psychiatrist can see them reasonably often. How often would the case manager see them? The case manager would be involved in any order, whether it is a CTO or a conditional release. Would the case manager be seeing them on a weekly basis or a fortnightly basis? What sort of service would be offered there? What else is possible within that area health set up? Are there other things or other opportunities that the community mental health team knows about within its area to which they could introduce Mr Riley in the course of their work? They are the people who know their area, who know the services available and are particularly astute once they have assessed somebody saying: I think we should be getting you involved with so and so, or with a particular project, because we know that they have helped people with problems like yours and there's been some positive result of that involvement. I think we need to have all of those things as part of a comprehensive plan laid out, plus the risk assessment and how the risks are going to be addressed.
Turning to the current FCTO and his expectations, if imposed, for a CTO, Dr Giuffrida opined: A lot of the elements for a CTO are in the FCTO. But, yes, it would be broadened to deal with exactly the issues that have been raised by Ms Howell and Dr Basson in terms of the broader psychosocial milieu of therapy and issues of accommodation and placement and so on.
Dr Giuffrida explained what is meant by "treatment and rehabilitation" in his report: What that means for a forensic patient, and initially one would be talking about that which would occur in either the forensic hospital or a medium secure unit, and that is the patient needs to be tested for their safety to release to the community. That is something that has to occur repeatedly over a period of time. This in many cases takes years. What does it involve? It involves giving people increasing levels of leave. They start off with escorted ground leave with staff, and then supervised leave with family and friends, and then they get unsupervised ground leave and so on. So at each stage they are tested for their safety with lessening degrees of monitoring and supervision, so that over a period of time we are able to make an assessment as to the likelihood that they will be safe in the community. That's really what needs to happen with someone like Mr Riley.
Dr Giuffrida described a "continuing condition" (used in s 14(2) of the MHA) concerns the nature of a person's mental illness and whether that illness has symptoms that have essentially continued and are present from day-to-day.

Risk Assessment

During concurrent evidence, the experts were also asked to expand upon their respective opinions vis-à-vis risk assessment tools and scales.
Ms Howell used the VRS and stated that her overall assessment of the defendant placed him in the "moderate to high", before applying measures to contain the risk.
Dr Giuffrida used the HCR-20, which he noted "has been repeated validated for its predictive reliability". He opined: In Mr Riley's case, the risk is so critically linked to the existence and expression of symptoms more than anything else. In his particular case, the issue also critically goes to his level of insight. The issue about insight is that it is a multilayered concept. People can well understand, as Mr Riley does, he will readily offer. When you ask him what does he suffer from he says schizophrenia. Why do you take this medication? That's to keep me on the level. But when you ask him what do you actually mean by schizophrenia, do you know what are the symptoms, he really has no idea. When you ask him why do you take your medication, he does not really know. If you press him further, would you continue to take it, he can't see why he should. So at a very, very basic level he has a certain level of understanding that he has some sort of illness, but once you try to explore what that actually might mean then it all falls down. It is in that respect that he is really a problem because if you don't understand why you need to take your medication then you are a real problem.
Dr Giuffrida also noted that HCR-20 "looks at violence in general. It does not pick out specific forms of violence". Associate Professor Basson provided some additional remarks as to the HCR-20 instrument, which were adopted by Dr Giuffrida: The HCR, as Dr Basson has pointed out, really looks at populations of people, so it does not tell you precisely about the individual. You have to go back and look at the individual's characteristic features in terms of their history of violence.
Whilst he did not precisely score the defendant, during oral evidence he stated: "I would be very confident in saying any attempt to score it would put him in the moderate to high risk range".
Both Dr Giuffrida and Associate Professor Basson gave concurring opinions as to the validation of the risk assessment tools in the context of a defendant with an intellectual disability, as follows: GOODHAND: In terms of its validation in use of people such as Mr Riley with an intellectual disability does it have validation in that respect? WITNESS GIUFFRIDA: That is a good question. Look I only know of one other study and I gather there are others that roughly estimate the co morbidity between having a psychotic illness and serious intellectual disability kind of roughly doubles the risk but I don't know of any one particular instrument that is used to refine that risk. GOODHAND: Dr Basson do you want to add anything to that? WITNESS BASSON: I tend to agree. The two together obviously produce or increase the risk and the use of illicit substances such as alcohol etcetera moves the risk further and then there are usually underlying personality features and it becomes additive through if you do that. It is not uncommon to think of for a variety of reasons but for very complex reasons intellectually disabled people probably become involved more frequently in the criminal justice system. It may be sometimes they are more easily caught. We maintain it is also that because sometimes their mental illness is not being as conscientiously identified and treated and therefore it probably needs more conscientious identification of treatment than a person with normal intelligence because there are greater risks with regard to that particular group and I think that is another way of putting what Dr Giuffrida has said.

Duration

Turning to the duration of an extension order, both Dr Giuffrida and Associate Professor Basson considered that 2-3 years was appropriate and ideally in a medium secure unit.
Whilst initially recommending the maximum duration in her report, which was supported by reference to the defendant's "enduring mental health condition", "very low IQ" and "impulsivity", Ms Howell considered that 5 years might be "too much" but that 2-3 years is required. She also opined that anything less than that period of time "would fail him in terms of not being able to provide exactly what we've been talking about; the need for predictable and service that will meet his needs".
As whether an extension order was the "least restrictive" means to adequately managed the defendant's risk, Associate Professor Basson opined: WITNESS BASSON: I feel that he probably isn't a patient who needs the forensic hospital, but he certainly needs the medium secure and in order for the negotiation with the community and to set up the plan and then to slowly move him into the community and I think that will take a good two years and then another year to consolidate the position in the community afterwards so that, covering him over that period is the least restrictive. Anything beyond that would perhaps be seen a little bit more than is necessary but would guarantee it better, but the least restrictive we could manage is in three years.

Any other report of a qualified psychiatrist or registered psychologist or medical practitioner - cl 7(2)(d)

Medical report of Dr Pakula, psychiatrist, dated 4 December 2001

Dr Pakula interviewed the defendant on 1 December 2001. Dr Pakula noted the defendant smoked cannabis and had an alcohol and gambling problem. Notes attached to that report suggest the defendant continued to receive treatment from Dr Pakula and was medicated with Risperdal for schizophrenia.
Consistently from 2006 to 2009 Dr Pakula had no concerns about the defendant from a psychiatric point of view but noted that the defendant continued to drink alcohol heavily and had a gambling problem. Some relevant notes included: 1. December 2009: the defendant had occasional auditory hallucinations and was getting anxious with a paranoid view of the world; 2. November 2010: the defendant had missed his injections for 6 weeks between September and October and Dr Pakula noted that the defendant can become "quite behaviourally disturbed" when he stops medication; 3. July 2012: the defendant has poor temper control once he gets angry. The next review was noted to be in 12 months' time; and 4. August 2013: the defendant was dressed in two jackets. The defendant denied any auditory hallucinations but continued to have paranoid ideation that people are following him or watching him. Notwithstanding these observations, Dr Pakula opined that the defendant was "quite stable for now" and indicated a review in 12 months' time.
It is observed that in April 2012 and January 2013 the defendant was convicted for the additional offences on his criminal record outside of the index offence.

Professor Greenberg's reports dated 17 February 2018, 24 March 2018 and 24 February 2019

Professor Greenberg, psychiatrist, provided reports for the fitness hearing. He opined that the defendant was unfit to be tried (according to the Presser criteria). Professor Greenberg did not consider the defence of mental illness available to the defendant for the index offence. Professor Greenberg found that the defendant understood his actions and that it was his intellectual disability that made him more suggestible to the index offence; that is, he was influenced by Carol and Yvonne Raymonde.
The RAR and Dr Furst found the defendant had erotomania and his schizophrenia had a role to play in causing the index offence.
Professor Greenberg did not find the defendant had schizophrenia. Professor Greenberg opined that there was no "formal evidence that [the defendant] has a diagnosis of schizophrenic disorder". Professor Greenberg considered that the defendant's description of the content of his "voices": …is not characteristically of acute schizophrenic episode. Characteristically, auditory hallucinations are usually not self-serving and are usually derogatory, speaking [to] a third person or command hallucinations.

Dr Furst's reports dated 3 December 2017

Dr Furst, psychiatrist, provided a report for the fitness hearing and determined the defendant was unfit to be tried (according to the Presser criteria). Relevantly, Dr Furst opined that the defendant had schizophrenia compounded by low level intellectual function. Dr Furst noted the defendant was not taking his medication at the time of the index offence which made it likely that the defendant became obsessed with "Fiona". Dr Furst opined that this "delusional thinking… and possibly hallucinations… led [the defendant] to believe that his actions were morally justified".

Lisa Zipparo report dated 5 March 2018

Ms Zipparo, psychologist, conducted a cognitive or neuropsychological assessment of the defendant. The "Wechsler Adult Intelligence Scale" was administered, the outcome of which found that the defendant's visual and verbal information was in the extremely low range, being better than only 0.1 per cent of the population. Ms Zipparo found that the defendant showed: … significant executive dysfunction, including poor planning and organisational skills, difficulties with mental flexibility, verbal fluency and verbal reasoning. This means that [the defendant] is very slow in taking in information and likely to have a limited understanding of basic concepts and information.
Ms Zipparo opined that the cognitive deficits are unlikely to improve with time, particularly as the defendant has schizophrenia:

Any order or decision made by the Tribunal with respect to the forensic patient that is relevant to the application - cl 7(2)(e)

From September 2017 to December 2018, while the defendant was in custody, the Tribunal determined to continue a FCTO to ensure the defendant's medication regime is managed.

June 2018

The Tribunal considered the report of Dr Dayalan, forensic psychiatrist at the SCCC dated 25 June 2018. Dr Dayalan opined that the defendant has schizophrenia, gambling and alcohol use disorder and the defendant appeared to have prominent cognitive impairment or was suspected as having "mild intellectual disability". Dr Dayalan observed a more stable mental state while in custody and with oversight as to his medication regime.

December 2018

In the Tribunal's review on 13 December 2018, the Tribunal considered a report by Dr Dayalan dated 20 November 2018, in similar terms to the June 2018 report. Dr Dayalan commented that the defendant, as at November 2018, was still and would most likely remain unfit to be tried for the offences because of his cognitive deficits.
On considering Dr Dayalan's report, the evidence from the defendant's carer and a psychologist's report at Statewide Disability Services, the Tribunal determined that the defendant has an intellectual impairment and mental illness and that the defendant remains unfit to be tried. The defendant remained in detention at the SCCC for care and treatment.
The Tribunal commented that the various witnesses at the review hearing had found the defendant had stabilised in the custodial setting and on his medication regime.

May 2019

In the Tribunal's review on 3 May 2019 it was noted that the defendant's treating team was seeking a FCTO. Additionally, the Tribunal considered and ensured oversight as to the progress of the defendant's National Disability Insurance Scheme application.
This is an example of how the Tribunal can ensure oversight of matters outside of treatment relevant to effective care and management of the defendant's risks.
The Tribunal heard evidence at the review hearing that the defendant would look to reside with his carer Paul Mantell.

The level of the forensic patient's compliance with any obligations to which he is or has been subject while a forensic patient - cl 7(2)(g)

The defendant has not been granted any period of leave of absence or release on conditions by which to measure his level of compliance.
There is no evidence to suggest he has posed an issue in respect of complying or non-compliance with authorities while in custody. The defendant submitted that, importantly, the defendant has not incurred any institutional charges or demonstrated violence in custody.

CONSIDERATION

The reports of the experts and their oral evidence comfortably results in the following description of the defendant's mental illness, symptoms arising from the same, the nature of co-morbidity and preliminary consideration of the question of the risk of the defendant causing serious harm to others: 1. the defendant has chronic schizophrenia which is a mental illness. He is vulnerable to further spontaneous relapses of psychotic symptoms both with and in the absence of antipsychotic medication; 2. the defendant had heard voices in his interviews with the experts suggesting his symptoms may be active; 3. the defendant's serious impairment due to his developmental disability and the co-morbidity with his schizophrenia significantly increased the risk of future violence; 4. Dr Giuffrida sets out that the empirical literature shows that the overall incidence of both violent and non-violent offences was 4.8 times for schizophrenia over the matched controls for violent offences over the lifetime and 7.4 times the matched controls over a 5-year period; and 5. the experts opined that the defendant lacked insight into the nature of his illness, how to manage it or the need for treatment for it.
As properly conceded by counsel for the defendant there was no dispute between the experts that the defendant posed a risk of serious harm to others if he ceased to be a forensic patient.
Dr Giuffrida and Ms Howell opined that the defendant posed a potential serious risk of causing harm to others because of his diagnosis, the way it manifested itself and, in particular, because the defendant is intellectually impaired and lacked the ability to understand his schizophrenia and how to manage it. They each assessed the defendant's risk of causing serious harm to others by considering the index offence and how the defendant may behave if unconditionally released.
Associate Professor Basson's opinion tended to merge with that view during the concurrent evidence and, in any event, his earlier opinions were based upon how the defendant presented to him in a correctional centre, medicated and subject to a FCTO and, further, was premised upon the defendant being under a CTO which premise did not conform with the assessment the Court is required to undertake.
The opinion of the experts may be readily accepted in view of the facts and circumstances of the index offence (not diminished, as I will discuss below, by the last minute determination not to proceed); the defendant's schizophrenia and intellectual disability and co-morbidity of schizophrenia with his development disability; the spontaneous, relapse-prone nature of his mental illness and the defendant's lack of insight into the same and the likelihood of relapse of psychosis and its nature and degree if the defendant was unmedicated.
The defendant contended that the expert opinion did not extend to a view that the risk was "unacceptable" and the risk assessments conducted, using various risk assessment tools, were limited by the inability of such methodologies to predict the risk of serious harm as contemplated by the Act.
That submissions summons for consideration, in addition to consideration discussed above, further questions as to the nature of the risk.
The risk that the defendant posed by reference to the facts and circumstances of the index offence is the risk of very serious harm to the victim. The defendant stated a desire to carry out the murder of the victim using a weapon, namely, a tomahawk.
The fact that his intention "evaporated" immediately before execution did not change the risk assessment of the experts. Ms Howell observed that the factors for risk were "a certain amount of preparation [and] … behaviour directed towards an outcome. The fact of no carry through does not negate those considerations". Associate Professor Basson and Dr Giuffrida agreed that that fact would not greatly reduce the risk and that, it was not uncommon for people with psychological illness to form an intent and start a process but then head in a different direction.
The consequence of his intentions would, as the plaintiff submitted, be catastrophic if he carried them out. There were threats of violence.
The risk posed was one where the defendant was unmedicated in the community, underpinned by his present inability to understand his actions and that he is easily influenced by others.
There was also a risk to the victim's daughter. The RAR stated that the defendant's infatuation with the victim's daughter appeared to have developed on the basis of one meeting and on one intimate relationship three or four years before, which raised, to Dr Giuffrida, the possibility that the defendant had developed a delusionally driven infatuation, sometimes referred to as delusional erotomania. Dr Giuffrida defined "delusional erotomania" as "a delusional belief of an erotic kind often where the person believes that the other party is secretly in love with him".
Central to the assessment of risk was the history of the use of weapons including an iron bar and a tomahawk. The latter weapons employed were, as stated in the RAR, accompanied by a violent fantasy. There was an element of vengeance towards the victim, accompanied by delusional beliefs about the victim's daughter. This itself represents a future risk for the daughter.
So described the conclusion must be reached that the risk of serious harm is unacceptable. Further, I do not accept the limitations in the application of the assessment tools, relied upon by the defendant, as diminishing the opinions reached by the experts. Their assessments were reached in knowledge of the nature of the predictions of violence available under the tools and their limitations, which were then applied as part of their professional judgment.
Further, I accept the submission the plaintiff that the defendant was diagnosed with schizophrenia and cognitive impairment. The defendant's diagnosis and impairment caused him to react impulsively, irrationally and he held delusional beliefs in relation to the targets of his index offence. Those victims are at significant risk of being victimised again. The defendant lacked the ability to comply with his medication regime (which includes depot injections) without directive support to that regard.
In the circumstances, I am satisfied to a high degree of probability that the defendant poses an unacceptable risk of causing serious harm to others if he ceases to be a forensic patient. The requirement of cl 2(1)(a) have been met by the plaintiff.
The next consideration is whether the Court may be satisfied to a high degree of probability, pursuant to cl 2(1)(b) the risk cannot be adequately managed "by less restrictive means".
A preliminary issue raised by the defendant should be dealt with at the outset of this conclusion, namely, the weight to be given opinions of Dr Giuffrida and Ms Howell, which was significantly reduced with respect to this topic (in Ms Howell's case to the point of having no weight).
First, I do not accept that the third report of Dr Giuffrida, as read, represents advocacy to bolster the evidence of Ms Howell. Nor are his opinions outside of the area of his experience, skills or expertise.
Secondly, there was an attack on Ms Howell's evidence regarding CTO's, FCTO's and conditional release orders on an extension order in the community. It was said that Ms Howell's evidence, by various examples, demonstrated a lack of knowledge of the subject areas and that no weight should be attached to her opinions.
I do not accept that submission. Whilst the weight attached to Ms Howell's evidence may be diminished to some extent in this area due to her lack of familiarity with the nomenclative and her concession that her experience with conditional release orders was less than that of Dr Giuffrida, her evidence was admitted and may be reached on the basis of her knowledge, skill and experience as to the assessment of risk and how it may be managed; she demonstrated that knowledge. For example, notwithstanding Ms Howell stating "confusion" in her mind when asked about treatment and rehabilitation and an extension order, she nonetheless proceeded to address some salient features as to managing and rehabilitating the defendant based upon her knowledge and expertise.
I turn then to the issues raised with respect to cl 2(1)(b).
The defendant submitted that any risk of serious harm to others posed by the defendant, which was not conceded by the defendant, could be adequately managed by the existing FCTO/CTO the implementation of which is to be transferred to the defendant's local community mental health team. It was contended that this was supported by Wellways involvement and the Guardianship and Financial Management Orders.
The conclusion I reached with respect to cl 2(1)(a) and the reasons for the same are applicable to assessments made with respect to cl 2(1)(b).
The experts (as well as Dr Ma and Dr Hearps) have all stated that for the defendant's risk to be adequately managed he required more than medication management: the defendant requires "comprehensive care" (Associate Professor Basson), "treatment and rehabilitation" (Ms Howell) and "to be tested for safety before release and in a system that is able to gradually transition the defendant to the community" (Dr Giuffrida stated this is only available if the defendant was a forensic patient under an extension order).
Associate Professor Basson gave evidence that an FCTO applied while the defendant was a prisoner and that it became a CTO when he moved to the community. He described the way that worked from a practical perspective, The Prison Psychiatric Service (the psychiatrists looking after the defendant in prison) would liaise with the local mental health teams in the area where he is going to live and establish an agreement that the health teams would be willing to take over, take him on a CTO in the community and they would agree to the conditions which are laid out in that record and that there are various rules around how the Tribunal got involved in that process.
Dr Giuffrida's evidence was consistent with Associate Professor Basson as to that process and he further described that the conditions applicable to each an FCTO and a CTO are entirely different. In terms of the conditions that would apply in the community on a CTO, he said that they could be much broader and go to a whole range of issues including accommodation, even down to the precise address where they were going to live, the community mental health team to whom they had been placed, who was going to treat and supervise a person released, the treating psychiatrist who was going to see them or his or her delegate, the case manager in the community, the precise medication that was to be given (and in what form and at what frequency) and whether the person required urine drug screening or other screening for illicit substances. He described broad range of things that go beyond the FCTO.
The difficulty with these scenarios, which were relied upon by the defendant, as constituting a basis for defeating the plaintiff's case that the risk cannot be managed by less restrictive means for the purposes of cl 2(1)(b), such as a CTO, is that the only evidence before the Court is that there is the possibility of a CTO and as the plaintiff submitted "the case plan for that is not identified beyond that which was in the plan under the forensic CTO". A guardianship order and a proposed Wellways plan do not, in substance, alter a conclusion that the risk cannot be adequately managed by other less restrictive means.
There is no evidentiary foundation as to what Nowra Community Mental Health Service could or would provide and how it could provide it. Associate Professor Basson conceded the same in oral testimony and that this uncertainty was concerning. It may be noted that in his oral testimony, Associate Professor Basson appeared to express a preference for an extension order which would allow for conditional release order first before moving to a CTO.
As earlier mentioned, the experts were unanimous that management of the defendant's risks required more than medication. He requires holistic support and public interest oversight.
Further, the intellectual disability of the defendant, in the context of his schizophrenia, suggested a CTO could not adequately manage the defendant's treatment and care because it relied, in significant part, on the defendant being in a position to proactively comply with the CTO. As to an AVO, if the defendant is unmedicated then he is prone to relapses of psychotic episodes, making his comprehension of the requirements of an AVO significantly reduced.
It may be noted, additionally, the defendant had a private psychiatrist, Dr Pakula for over 10 years, who did not provide the adequate care and treatment the defendant and community required. This is evidenced by the fact the defendant continued to drink alcohol, gamble, use drugs and his mental health declined, which eventuated in the index offence.
The defendant was also drinking alcohol heavily when living with his carer, Mr Mantell. Ms Howell expressed concern as to whether Mr Mantell is an appropriate and reliable carer to manage the defendant's risks given the defendant's mental health deteriorated in Mr Mantell's care and that the incriminating handwritten note was left with the carer stating that the defendant intended to chop off the head of the victim which Mr Mantell did not appropriately address.
Dr Giuffrida and Ms Howell, as detailed above, expressed their concerns with a CTO not adequately managing the defendant's risks. The CTO is limited in that regard when compared to the ability of the Tribunal to impose conditions on a forensic patient when released (such as drug and alcohol prohibitions).
There are additional difficulties with the CTO as a less restrictive means of managing the risk with respect to the defendant. First, it is substantially reliant on self-reporting. In addition to the above discussion, Professor Greenberg opined in a report dated 24 March 2018 that the defendant was a poor historian and had concerns regarding the way he disclosed the circumstances of his life. (In contrast, the FCTO is less reliant on self-reporting in favour of independent reporting.
Associate Professor Basson acknowledged that there have been failings with the CTOs, more failings than there were with the conditional release orders. Conditional release orders rarely fail because the Tribunal is conscientious and assiduous in the way it policed them.
Dr Giuffrida commented that a conditional release of the defendant is "clearer, much more intensive and there's kind of a sense for the community team taking over the care, that there is a high level of responsibility and they know - this is the important point - they know that they will be asked at the review date in six months by the Tribunal to provide a an update report as to exactly the progress the patient". Dr Giuffrida gave evidence that a conditional release order would get the defendant the services he needs.
Ms Howell commented that CTO's are not followed up as often and with Tribunal oversight on a conditional release order the defendant's risk would be managed and there was no other adequate less restrictive means of managing the defendant's risk.
Further, s 68 of the Act provides for a recall power in relation to a forensic patient that is rapid and can be relied upon if there are, inter alia, public interest concerns. Public interest concerns, in this case suggest there is a need for a rapid recall in the event of breach, noting that the defendant's condition is vulnerable to spontaneous relapses of psychotic symptoms.
No expert accepted that the Wellways supported plan could, in the absence of considerable additional detail, adequately manage the risk posed by the defendant (as mentioned above) particularly where there was no community mental health team yet identified to take over the defendant's care in the community should he be placed on a CTO.
I do not accept the submission of the defendant that the detail set out in the Wellways document was adequate or that the Court could be satisfied that it could be adequately explained as the care plan progressed. In my view, the proposal for the Wellways program in evidence before the Court was wholly inadequate to manage, with or without that a CTO (as presently known), the risk as I have found it.
Nor do I accept a guardianship order on the evidence before the Court, is sufficient to manage the risk.
With regard to the guardianship order, Associate Professor Basson said that, whilst being respectful of the Guardianship Tribunal and the work it does, he did not think that the order provided the necessary control over the situation. He said that his experience of this sort of order has not been particularly good. He thought that the tribunal had been most useful with regard to the control of patient's finances. They are able to assist in variable orders which ensure that the patient is protected, has enough money, rents are paid, electricity is kept on. The sort of practical support that is necessary for a person to live effectively and comfortably in the community, and safely, is provided. The defendant is also subject to an Financial Management Orders.
The nature of the unacceptable risk the defendant poses suggests the safety of the community is at risk and therefore there are public interest concerns. In my view, the plaintiff has established that, pursuant to cl 2(1)(b) the risk previously found in this decision cannot be adequately managed by less restrictive means.

Whether an Extension Order Should be Granted

The factors under cl 7(2) must be considered when, after cl 2(1) is satisfied, the Court determines whether or not to make an extension order. The cl 7(2) factors, considered above, present, in my view, a cogent case for an extension order.
The defendant is diagnosed with schizophrenia and cognitive impairment. The defendant's diagnosis and impairment causes him to react impulsively, irrationally and he holds delusional beliefs in relation to the targets of his index offence. Those victims are at significant risk of being victimised again. The defendant lacks the ability to comply with his medication regime (which includes depot injections) without directive support to that regard.
The risks the defendant currently poses require broad ranging treatment and care and public interest oversight: this can only be achieved by the ordering of the extension order.
The experts unanimously opined that the defendant's risk will escalate if he is transitioned into the community without any support.
The proposed plan is to move the defendant to a medium secure mental health facility and on an extension order the defendant can be conditionally released. After the extension order has lapsed, the treating team can more confidently provide an opinion as to whether the extension order required further extension or whether the defendant is, at that time, better managed as a civil patient under the MHA.
The summons sought a 12 month extension order.
The defendant submitted, if contrary to the defendant's submissions, the Court proposed to make an extension order, then such an order "should only be made for a period that it continues to be the least restrictive means of managing the defendant's risk of serious harm to others (not any risk generally)".
The experts unanimously opined in oral evidence for an extension order in the order of 2 to 3 years which would allow for transfer to a medium secure unit, conditional release order and the observation of the defendant on that order. Notwithstanding the longer duration proposed by the experts, the order made should be confined to those sought in the summons.
The Court made orders for a 12 month duration in accordance with the summons.

CONCLUSION

The Court confirms the orders made on 22 August 2019. 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: 19 December 2019

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