Attorney General for New South Wales v Riley by his tutor Rodrigues

Background to the present application

1. On 30 April 2018, the defendant was charged on indictment with five offences. At that time, Charteris ADCJ found that the defendant was unfit to be tried. His Honour referred him to the Mental Health Review Tribunal (MHRT) and remanded him in custody pending the determination of the Tribunal, under s 14 of the MHFP Act. Eventually the matter was listed for a special hearing, under s 19 of that Act.
2. On 6 April 2019, after the special hearing, Hunt DCJ found, on the limited evidence available, that the defendant committed the offence, charged in the fifth count, of being armed with an instrument, namely a wooden-handled axe, with intent to commit an indictable offence, namely assault, contrary to s 114(1)(a) of the Crimes Act 1900 (NSW). This is the index offence, for the purposes of the present proceedings. The defendant was found not guilty on the other four counts. Hunt DCJ imposed a limiting term of 25 months, under ss 23 and 24 of the MHFP Act, backdated to 24 April 2017.
3. Consequently, the defendant's limiting term expires on 23 May 2019.
4. The Attorney General contends that the defendant poses an unacceptable risk of causing serious harm to others if he ceases being a forensic patient. As a result, the present preliminary application has been brought, seeking psychiatric and/or psychological examinations and an interim order extending the defendant's status as a forensic patient, so that the application for an extension order for 12 months can be properly considered.

Relevant statutory provisions and principles concerning interim extension orders

1. The care, treatment and control of forensic patients are matters dealt with in Pt 5 of the MHFP Act.
2. A "forensic patient" is relevantly defined in s 42 of that Act as follows: "For the purposes of this Act, the following persons are forensic patients: (a) a person who is detained in a mental health facility, correctional centre or other place, or released from custody subject to conditions, pursuant to an order under: (i) section 14, 17 (3), 24, 25, 27 or 39, or ..."
3. The defendant is a forensic patient in that he falls within s 42(a) as a result of the order made under s 24 of the MHFP Act imposing a limiting term.
4. The objects of Pt 5 are set out in s 40 in the following terms: "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."
5. Section 54A, which is found in Pt 5 of the MHFP Act, provides that "[a] person's status as a forensic patient may be extended in accordance with Schedule 1." This is what the Attorney General seeks in this matter.
6. The following clauses of Sch 1 of the MHFP Act are relevant for present purposes: "1 Extension orders for forensic patients (1) The Supreme Court may, on application under Part 2 of this Schedule, make an order for the extension of a person's status as a forensic patient. (2) An order made under this clause is an extension order. 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. … 6 Pre-hearing procedures … (4) A preliminary hearing into the application is to be conducted by the Supreme Court within 28 days after the application is filed in the Supreme Court or within such further time as the Supreme Court may allow. (5) If, following the preliminary hearing, it is satisfied that the matters alleged in the supporting documentation would, if proved, justify the making of an extension order, the Supreme Court must make orders: (a) appointing: (i) 2 qualified psychiatrists, or (ii) 2 registered psychologists, or (iii) 2 registered medical practitioners, or (iv) any combination of 2 persons referred to in subparagraphs (i)-(iii), to conduct separate examinations of the forensic patient and to furnish reports to the Supreme Court on the results of those examinations, and (b) directing the forensic patient to attend those examinations. (6) If, following the preliminary hearing, it is not satisfied that the matters alleged in the supporting documentation would, if proved, justify the making of an extension order, the Supreme Court must dismiss the application. … 7 Determination of application for extension order … (2) In determining whether or not to make an extension order, the Supreme Court must have regard to the following matters in addition to any other matter it considers relevant: (a) the safety of the community, (b) the reports received from the persons appointed under clause 6(5) to conduct examinations of the forensic patient, (c) the report of the qualified psychiatrist, registered psychologist or registered medical practitioner provided under clause 5 (b), (d) any other report of a qualified psychiatrist, registered psychologist or registered medical practitioner provided in support of the application or by the forensic patient, (e) any order or decision made by the Tribunal with respect to the forensic patient that is relevant to the application, (f) any report of the Secretary of the Ministry of Health, the Commissioner of Corrective Services, the Secretary of the Department of Family and Community Services or any other government Department or agency responsible for the detention, care or treatment of the forensic patient, (g) the level of the forensic patient's compliance with any obligations to which he or she is or has been subject while a forensic patient (including while released from custody subject to conditions and while on a leave of absence in accordance with section 49 or 50), (h) the views of the court that imposed the limiting term or existing extension order on the forensic patient at the time the limiting term or extension order was imposed, (i) any other information that is available as to the risk that the forensic patient will in future cause serious harm to others. (3) If the Supreme Court makes an extension order in respect of a forensic patient, the Court is to notify the Tribunal of the making of the order. … 10 Interim extension order The Supreme Court may make an order for the interim extension of a person's status as a forensic patient if, in proceedings on an application for an extension order, it appears to the Court: (a) that the limiting term or existing extension order to which the forensic patient is subject will expire before the proceedings are determined, and (b) that the matters alleged in the supporting documentation would, if proved, justify the making of an extension order. 11 Term of interim extension order (1) An interim extension order commences on the day fixed in the order for its commencement (or, if no such day is fixed, as soon as it is made) and expires at the end of such period (not exceeding 3 months from the day on which it commences) as is specified in the order. (2) An interim extension order may be renewed from time to time, but not so as to provide for the extension of the person's status as a forensic patient under such an order for periods totalling more than 3 months. …"
7. The statutory provisions and principles concerning preliminary hearings and interim extension orders under the MHFP Act are not substantially different from those which apply under the Crimes (High Risk Offenders) Act 2006 (NSW).
8. For the purposes of a preliminary hearing under cl 6 of Sch 1 of the MHFP Act, it is not for the Court to weigh up the evidence adduced by both parties, to consider what evidence the defendant might call at the final hearing, or to seek to predict the outcome of the proceedings for final orders: Attorney General for New South Wales v Tillman [2007] NSWCA 119 at [98]; State of New South Wales v McGee (Preliminary) [2019] NSWSC 53 (McGee) at [10]. Rather, the Court is to engage in an evaluative exercise, taking into account all of the supporting documentation relied upon by the State, together with such material as has been tendered on the defendant's behalf, and, proceeding on the assumption that the matters alleged in the Attorney General's supporting documentation are proved, to determine whether the facts would justify the making of an extension order: Attorney General for New South Wales v Kapeen [2017] NSWSC 226 at [15], McGee at [10]. If so, an interim extension order may be made under cl 10 of Sch 1 of the MHFP Act and an examination order must be made under cl 6(5) of Sch 1.
9. As a result of cl 2(1) of Sch 1, an extension order would be justified if, and only if, the Court is satisfied to a high degree of probability, on the assumption referred to above, that: 1. the defendant poses an unacceptable risk of causing serious harm to others if he ceases being a forensic patient, and 2. the risk cannot be adequately managed by other less restrictive means.
10. The "high degree of probability", referred to in cl 2(1) of Sch 1, indicates that the existence of the risk in question must be proved to a higher degree than the normal civil standard of proof of "more probable than not", but does not have to be proved to the criminal standard of "beyond reasonable doubt": Cornwall v Attorney General for New South Wales [2007] NSWCA 374 at [21]; Attorney General for New South Wales v Kapeen [2017] NSWSC 685 at [11].
11. The "serious harm" which must be considered is not limited to physical harm and it may include psychological harm: Attorney General of New South Wales v Kereopa (No 2) [2017] NSWSC 928 (Kereopa No 2) at [16]. Whether such harm is "serious" within the meaning of cl 2(1) will depend, in my view, on whether it is such harm as should attract consideration given the objects, scope and purpose of Pt 5 of the MHFP Act. In Kereopa No 2 at [16], R A Hulme J expressed the view that "serious harm" involves "something more than would satisfy the minimum threshold for 'actual bodily harm' under the criminal law … [and] psychological harm must be something more than emotions such as fear or panic".
12. Whether the risk of causing serious harm to others is "unacceptable" is to be judged according to its ordinary or everyday meaning, and the right of a person to his or her personal liberty at the expiry of a limiting term is not a relevant consideration in determining whether the person poses an "unacceptable risk": Lynn v State of New South Wales (2016) 91 NSWLR 636 at [44], [127] and [148]; [2016] NSWCA 57 (Lynn); Attorney General of New South Wales v Skerry (by his tutor Thompson) (Final) [2018] NSWSC 1711 at [14]; Attorney General for New South Wales v McGuire by his tutor Thompson [2019] NSWSC 76 at [24].
13. The nature of the risk posed has 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, based on an absence of protective measures: Lynn at [126].
14. Assessing whether the risk can be adequately managed by other less restrictive means involves determining, in respect of the alternatives available: 1. whether the risk of causing serious harm to others can be adequately managed by each alternative proposed; and 2. how restrictive each alternative is in comparison with the situation if an extension order were made. This is to be judged by reference to, among other things, the legal power of others to control the defendant's actions, locations, treatment and other matters, as well as the practical operation of how that power might be exercised in a particular instance: Attorney General of NSW v Doolan by his tutor Jennifer Thompson (No. 2) [2016] NSWSC 107 at [96].
15. It is not necessary for the Court to be satisfied 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: MHFP Act, Sch 1 cl 2(2).
16. In making its assessment under cl 2(1), the Court must have regard to the matters listed in cl 7(2)(a) to (i) of Sch 1 to the MHFP Act.

The evidence

1. The Attorney General's "supporting documentation" included the material exhibited to the affidavit of Mr Jonathan Vasiliou and a note of a conversation with Dr Ellis of 17 May 2019, which concerned the admission of a patient to a forensic hospital, depending on whether they were a forensic patient or an involuntary civil patient.
2. In considering the applications for an interim extension order and for the examinations, I am required to proceed on the assumption that the matters alleged in that supporting documentation are proved.
3. The defendant's evidence consisted of: 1. a confidential notice from the MHRT concerning, among other things, the Tribunal's making a 12 month forensic community treatment order (FCTO) on 3 May 2019 in relation to the defendant - exhibit 1; and 2. a report dated 1 May 2019 by a psychiatrist, Dr Matthew Hearps, to the MHRT, together with clinical notes of the assessment on 1 May 2019 of the defendant - exhibit 2.

The defendant's background

1. The defendant was born in 1963 and is currently 56 years of age. He is single and not previously married and has no children. He is not currently in an intimate relationship nor is there a history of his having been in one of any substantial duration. He has lived in the community on a disability support pension and supported by a male carer, with whom he lives.
2. He has an intellectual disability possibly dating from birth and there are indications that he was born with foetal alcohol syndrome. More recently he has been diagnosed with mild intellectual disability.
3. He attended primary and high school at Lake Illawarra until year 8 and had difficulty learning to read and write and remained functionally illiterate. After leaving school in around 1976 he found work with BHP, maintaining and painting ships, which he did for about 20 years until his mid-40s.
4. In about 2000, he developed a psychotic illness diagnosed as schizophrenia and apparently had six admissions to a psychiatric hospital. This indicated that the defendant suffered from a relapsing schizophrenic illness, possibly precipitated by non-compliance with antipsychotic medication, which eventually led to a relapse of his psychosis with the development of delusional ideas and auditory hallucinations. This was many years prior to the index offence.
5. The defendant reported previous symptoms of paranoia, insomnia and low mood as well is hearing voices, being auditory hallucinations, which apparently had in the past told him to do things. He reported believing that others could read his thoughts, which is a form of thought broadcasting.
6. There were no indications of excessive consumption of alcohol over the recent past and he denied using illicit drugs.

Criminal history prior to the index offence

1. The defendant has a limited criminal history prior to the index offence. It includes: 1. On 18 April 2012, destroying or damaging property with a value of less than $2000, stalking or intimidating with the intention to cause fear of physical harm, and assault occasioning actual bodily harm, all in a domestic violence context, for which the defendant was fined. 2. On 15 January 2013, contravening a personal apprehended violence order, for which the defendant was placed on a s 9 bond for 18 months with supervision, including a requirement to attend on a medical practitioner and to take medication as prescribed. 3. On 19 January 2013, intentionally causing fire and being reckless as to its spread, for which the defendant was placed on a similar bond as applied in respect of the 15 January 2013 offence.

The index offence

1. Arising out of conduct in February and April 2017, the defendant was eventually charged on indictment with the following offences: 1. count 1 - on 19 February 2017, the defendant was armed with a weapon, namely a metal bar, with intent to commit an indictable offence, namely, assault upon Carol Browne, contrary to s 114(1)(a) of the Crimes Act; 2. count 2 - on 19 February 2017, the defendant damaged property, namely, four tyres, the property of Carol Browne, contrary to section 195(1)(a) of the Crimes Act; 3. count 3 - on 23 February 2017, the defendant damaged property, namely, four fly screens, the property of Carol Browne, contrary to section 195(1)(a) of the Crimes Act; 4. count 4 - on 23 February 2017, the defendant did enter land, namely XXXXX Crescent, the property of Carol Browne, with intent to commit an indictable offence, namely assault, contrary to s 114(1)(d) of the Crimes Act; 5. count five - on 23 April 2017, the defendant was armed with an instrument, namely, a wooden-handled axe, with intent to commit an indictable offence, namely, assault, contrary to s 114(1)(a) of the Crimes Act.
2. As noted above, the defendant was found unfit to be tried in respect of these charges and a special hearing was conducted. The defendant was found not guilty by Hunt DCJ on counts 1, 2, 3 and 4 but, in respect of count 5, the index offence, was found, on the limited evidence available, to have committed the offence charged.
3. At the hearing before me, Hunt DCJ's reasons for finding the defendant had committed the index offence were not available. From the judge's remarks on imposing the limiting term, the statements of witnesses at the special hearing, and the defendant's ERISP, it appears that what occurred was as follows: 1. The intended victim of the assault, Ms Carol Browne, had a daughter with whom the defendant was infatuated. The victim's daughter had been in a relationship for seven years with a woman whose own 20-year-old daughter was the defendant's friend and co-accused. That relationship ended and the victim's daughter returned to live with the victim. 2. The victim worked at a community radio station and started work at about 6 o'clock in the morning. 3. At about 3:30am on the morning in question, the defendant drove to the co-accused's house and invited her to join him. They then drove to where the victim worked, and waited for about 2½ hours. The co-accused was armed with a hammer and the defendant was armed with a tomahawk, or small wooden-handled axe. The defendant had packed the axe in a green shopping bag together with a box of disposable gloves, a bag of cable ties, a role of clear tape and some garbage bags. 4. As the victim approached the front door of her work, the defendant had the axe in his hand. The victim saw the defendant, and told him she was calling the police. The defendant and co-accused walked off a short time later.
4. From various witness statements, it appears that: 1. the defendant had previously told one witness that he would kill the victim with an axe, knife or whatever he could get to kill the victim, on more than 20 occasions; 2. at about 5:30pm on the day before the day in question, the defendant attended that witness's house and said: "I had a hammer and a knife and I threw them into the Culburra River. I also have a tomahawk but I haven't used that 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." and "I'm going to the radio station around 3 or 3:30am tomorrow with a knife or axe, whatever I can get my hands on first. Take them with me and I'll cut off Carol Browne's head at the radio station. I don't give a fuck what the police say or do, I don't care if they come to check on me, I don't care what anyone has to say I'm going to the radio station to chop her head off and throw it down a cliff. I'm going to use a knife and cut the rest of her body up and throw it over a cliff." 1. On attending the defendant's home and speaking to his carer, the police were provided with a copy of a note to his carer, signed by the defendant, which was in the following terms: "Im Sorry I Left home early in the morning as I have to Kill Carol Browne because she wont let me near My girl Frend [her daughter] 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 about to do my Mind iS Made up". 1. At the home, the police also recovered a green shopping bag with the axe, gloves, tape, ties and garbage bags.
5. During the ERISP conducted later on the afternoon of the day in question, the defendant said that the small axe, cable ties, sticky tape, gloves and plastic bags were "what I was going to use to ah, tie her [Carol Browne] up and stuff" (A81). In addition, the ERISP contained the following: "Q99 So what were your intentions this morning by going to the community radio station where Carol Brown works? A Ah, I was threatening to kill her. Q100 [17.47] Did you want to kill her? A Ah, yeah, but I held back and I didn't do it, so - - - Q101 Why, what held you back? A The voices told me not to do it. Q102 And by voices, what do you mean by that? A I get voices in me head sometimes 'cause I've got schizophrenic. Q103 Are the voices talking to you now? A Ah, not at the moment. Q104 Are you on medication for schizophrenia? A I need some medication tonight if I can get some. Q105 And when was the last time you had any medication? A Not for a couple of weeks now. I was supposed to have me depot needle ah, me Consta, Risperdal Consta. I have it in me backside - - - Q106 O.K. A - - - every fortnight. Q107 Have you been regularly going and having your medication? A No. Q108 Why not? A 'Cause I keep forgetting to have it. … Q130 [17.52] And what did you intend to do when Carol arrived? A Ah, whack her over the head with it. Q131 And then what, and once you'd whacked her over the head, what was going to happen then? A Ah, tie her up and that's it. Q132 Did you intend to do anything else? A Ah, I was, but I didn't do it so - - - Q133 And what was, what were you going to do? A What was I going to do? Q134 Yeah. A Ah, chop her head off. Q135 So you were going to chop her head off. And, and then what? A Ah, probably throw it in the river. Q136 What made you decide that you, not to do it? A Ah, voices. Q137 Were they saying, what were they saying? A Saying, don't do it, just pulled me back sort of thing. … Q158 Do you understand what would happen if you chopped her head off? A Ah, she'll die and bleed to death, yeah. … Q195 What were the gloves for? A Ah, so as I wouldn't get fingerprints. … Q211 What was the white, the clear tape for, what were you going to do with that? A Ah, tape her mouth up with it. …"
6. In his remarks on imposing the limiting term, the judge also found that: 1. the index offence was more serious because it was committed in company and there was a degree of preplanning; 2. no action was taken of an aggressive nature by the defendant and there was no brandishing of the weapon with which the defendant was armed; 3. the defendant was "moderately intellectually impaired" and had a mental age of 10.5 years, according to the forensic psychiatrist's report that was in evidence before him; 4. the defendant suffered from time to time with paranoid schizophrenia and, at the time of the offence, the defendant was not compliant with his medication but, while he had been on a community treatment order or a forensic community treatment order and in receipt of his medication, the condition was well managed.
7. When imposing the limiting term, Hunt DCJ also dealt with two matters that were before the Court pursuant to s 166 of the Criminal Procedure Act 1996 (NSW). A stalk and intimidate charge was withdrawn and dismissed. In respect of an enter enclosed land charge, the defendant was convicted, but with no other penalty, under s 10A.
8. As has been noted above, the limiting term expires on 23 May 2019.

Safety of the community - cl 7(2)(a)

1. The "safety of the community" is to be understood in this context as including protecting the safety of members of the public generally as well as ensuring that serious harm is not caused to other individuals. This is inherent in s 40(a) and cl 2(1)(a) of Sch 1 of the MHFP Act.
2. The defendant committed the index offence, which potentially involved the death of, or very serious harm being caused to, the victim, although no physical harm was inflicted in the particular case. The safety of the community includes being safe from threats of harm, intimidation and assault by being put in fear of physical harm as well as being safe from physical violence and injury.
3. The defendant's other criminal history establishes that his offending has extended beyond threats of harm. He has committed offences involving the infliction of actual bodily harm on a person and damage to property. He has also contravened an apprehended violence order.
4. It should also be noted that the defendant has not only expressed intentions of harming and killing a person on a significant number of occasions, but has also obtained equipment, including an axe, gloves and tape, to be used in carrying out those threats.
5. In summary, as a result of the defendant's criminal conduct, individuals with whom the defendant has come into contact have been made unsafe, suffered actual bodily harm and been threatened with serious harm, as a result of the defendant's criminal conduct. This appears to have occurred, at least in the case of the index offence, when the defendant was not compliant with his medication.
6. The defendant's intellectual disability, in addition to his psychiatric condition, may have played a part in his offending and his ability to understand the consequences of his actions. This, however, does not reduce but increases the risk posed by the defendant to the safety of the community, including those persons with whom the defendant is involved, and the need to take effective measures to protect them from serious harm and to ensure the safety of the community.
7. The safety of the community must also be considered in the light of the psychiatric evidence concerning the defendant, which is dealt with below.

Reports received from the persons appointed under cl 6(5) - cl 7(2)(b)

1. As there has only been a preliminary hearing, there are no such reports at this stage.

Reports provided under cl 5(b) - cl 7(2)(c)

1. 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.
2. 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". 1. 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. 2. 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." 1. Using the HCR - 20 risk assessment instrument, Dr Giuffrida considered a number of specific risk factors, including: 1. 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; 2. 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; 3. the choice of particular dangerous weapons, in this case a tomahawk, which was also a highly significant risk factor; 4. 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; 5. 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; 6. 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. 1. 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. 2. 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". 3. 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. 4. 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. 5. In Dr Giuffrida's view, a guardianship order by itself or in addition to the other options would not be of any additional value. 6. 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".
3. 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.

Other reports provided in support of the application or by the forensic patient - cl 7(2)(d)

1. A number of earlier reports from psychiatrists, other medical practitioners and psychologists were included in the supporting material provided by the Attorney General. These included two reports of Prof Greenberg, a forensic psychiatrist, which were primarily directed to the issues of whether the defendant was fit to be tried and whether he had available to him the defence of mental illness. In a third report by Prof Greenberg of 24 February 2019, he was of the opinion that given his disability, at the time of the police interviews, it could not be said that the defendant fully understood his rights and when placed into a stressful police interview situation he was more vulnerable to give implicating responses of his involvement despite his right to silence. Prof Greenberg was also of the view that some of the defendant's answers were likely to be partly reliable or reliable because they had specific details which appeared to be "synonymous with other evidence or witnesses" and they were relatively consistent. A report dated 11 February 2019 to a similar effect was provided by another forensic psychiatrist, Dr Furst.
2. The report dated 5 March 2018 from Ms Zipparo, clinical neuropsychologist, provided an assessment of the defendant's cognitive functioning in relation to whether he could understand legal proceedings. Her findings and conclusions included: "On current testing [the defendant] was found to have wide ranging cognitive impairments affecting most cognitive domains. General intellectual abilities were in the extremely low range, placing [him] in the mild range of intellectual disability (IQ range 54 - 62). This means that [his] intellectual function is below the bottom 1% of the population. A mild intellectual disability can pose significant challenges for day-to-day functioning, generally requiring that people have extensive training, support and supervision in performing jobs and date daily tasks. … He cannot be relied upon to solve a basic problem or to work through an issue and come up with a reasonable plan of action. …."
3. There was also a report from the defendant's treating psychiatrist, Dr Pakula, of 4 December 2001 with short updates through to August 2013.
4. In a number of cases, this material was expressly referred to and considered by Dr Giuffrida. In any event, those reports were substantially consistent with the opinions expressed by Dr Giuffrida, which have been summarised above.
5. The defendant tendered a report of Dr Hearps of 1 May 2019. That report had been prepared for the purpose of assisting the MHRT in reviewing the defendant. Dr Hearps was of the opinion that the defendant had chronic schizophrenia characterised by hallucinations, delusions and negative symptoms, but the positive symptoms of the disorder currently appeared to be controlled by anti-psychotic medication, risperidone. The defendant's intellectual disability was also noted. A treatment plan for the defendant on his release from custody was put forward as follows: "1. Continue antipsychotic medication in depot form on an FCTO. When he leaves custody the FCTO can be converted to a CTO to be administered by [the defendants'] local CMHT. 2. [The defendant] will require stable accommodation and referral to disability services in the community. Psychiatric rehabilitation should form part of his community disability support plan. 3. While he continues in custody, [the defendant] will be seen by the custody or mental health service. He will be referred to the local CM HT on release for medication, monitoring, support and psychosocial rehabilitation in conjunction with disability services."
6. A treatment plan of this nature was commented upon by Dr Giuffrida in his 18 page report where he said that this option would be problematic in that it would simply bypass what he believed was the necessary forensic rehabilitation program, which he had described in that report.

Relevant orders or decisions made by the Tribunal - cl 7(2)(e)

1. The MHRT made a FCTO in relation to the defendant on 3 May 2019. The Tribunal's reasons were as follows: "[The defendant] is schizophrenic. There is a history of non-compliance with treatment, with the risk of harm by re-offending. There is a suitable treatment plan, which is the last restrictive treatment consistent with safe and effective care."
2. From Dr Giuffrida's 18 page report, it appears that he did not consider such an approach to the defendant's care to be the most appropriate.
3. Other orders and decisions made by the MHRT were included in the Attorney General's material and do not provide a basis for reaching views inconsistent with those of Dr Giuffrida.

Report of any government Department or agency responsible for the detention, care or treatment of the forensic patient - cl 7(2)(f)

1. There were no such other reports in the material provided to the Court. It can be noted however that there was a letter of 26 May 2009 which informed the defendant that he was eligible for disability services from the Department of Ageing, Disability and Homecare. There were also progress notes from the Department of Family and Community Services for the period from 10 June 2009 to 1 April 2011, with the notation on 22 August 2014 that the client had had no contact since 5 August 2011. Those notes do not appear to contain any information which would cast doubt on the material and opinions already referred to.

The defendant's level of compliance with obligations while a forensic patient - cl 7(2)(g)

1. There was no material which indicated the defendant's level of compliance with obligations while a forensic patient. In particular, it was not clear what had occurred since the making of the FCTO by the MHRT on 3 May 2019.

The views of the court that imposed the limiting term - cl 7(2)(h)

1. These matters have been referred to above, when the remarks on the imposition of the limiting term were considered.

Any other information that is available as to the risk that the forensic patient will in future cause serious harm to others - cl 7(2)(i)

1. The note of the conversation with Dr Ellis concerned differences in obtaining admission to the Forensic Hospital for forensic patients and involuntary civil patients. There appears to be a "general wait list (which would include involuntary patients) [of] up to two years". Forensic patients coming to the end of their limiting term are prioritised for admission.
2. The offender information management system (OIMS) notes of the Department of Corrective Services in respect of the defendant for the period from 28 April 2017 to 8 April 2019 were also in the Attorney General's supporting documentation. My attention was not drawn to anything in those notes nor did they appear to me to provide any information inconsistent with what has been set out above.

Unacceptable risk

1. On the assumption that the matters alleged in the Attorney General's supporting documentation are proved, especially the defendant's criminal history, the index offence, the circumstances surrounding that offence and the opinions and material provided by Dr Giuffrida, including in particular his opinion concerning the continuing risk to the victim and her daughter, 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 being a forensic patient.

Adequate management by other less restrictive means

1. On the same assumption, and having particular regard to the opinions of Dr Giuffrida on what is required to manage, in an effective manner, the defendant's chronic paranoid schizophrenia given his level of intellectual disability, I am also satisfied to the requisite degree that the risk posed by the defendant cannot be adequately managed by other less restrictive means, such as his being treated as an involuntary patient under the Mental Health Act or under a community treatment order. This conclusion is supported by the observations of Beech-Jones J, concerning the debate as to the relative merits of the statutory regimes governing the recall of forensic patients and involuntary patients released into the community, in Attorney General for New South Wales v Kapeen [2017] NSWSC 226 at [40], which I also adopt.
2. It appears that the opinions of Dr Giuffrida concerning the suitability of an FCTO or CTO and treatment as an involuntary civil patient may differ from those adopted by the MHRT and the psychiatrist upon whose opinion the Tribunal relied. It is not appropriate for me on this hearing to attempt to resolve any conflict or difference. That will be a matter that may be determined at the final hearing.

Would the making of an extension order be justified?

1. On the assumption and for the reasons set out above, I am satisfied that the making of an extension order would be justified. In those circumstances the Court's power to make the interim extension order under cl 10 of Sch 1 of the MHFP Act is enlivened and, in accordance with cl 6(5), the Court must make the examination order.
2. Taking into account the need to protect the community, and to ensure its safety and the safety of the victim and her daughter and those with whom the defendant comes into contact while the examinations are undertaken and the reports provided, the limited time during which the interim order will apply and the objects of Pt 5 of the MHFP Act concerning the provision of care and treatment for persons in the defendant's position, I propose to make an interim extension order as well as the order sought in prayer four of the summons, which was not opposed.
3. There will also be a need for liberty to apply, both in relation to the preparation and listing of the matter for final hearing and in relation to the examination order, if agreement cannot be reached between the parties as to relevant matters.

Orders

1. Accordingly, the orders of the Court are: 1. Pursuant to clause 6(5) of Schedule 1 of the Mental Health (Forensic Provisions) Act 1990 (NSW) (MHFP Act): 1. two qualified psychiatrists or registered psychologists or registered medical practitioners (or any combination of such persons), as agreed between the parties, are appointed to conduct separate examinations of the defendant and to furnish reports to the Supreme Court on the results of those examinations by no later than a dated agreed between the parties; and 2. the defendant is directed to attend those examinations. 1. Pursuant to clause 10 of Schedule 1 of the MHFP Act, the defendant is subject to an interim extension order for a period of 3 months, commencing on 24 May 2019 and expiring on 23 August 2019. 2. Access to the Court's file in this matter by a non-party to the proceedings is permitted only by leave of a judge of the Court and only with prior notice to the parties so as to allow them an opportunity to be heard in respect of any application for access by a non-party. 3. Liberty is granted to the parties to approach the High Risk Offenders and Forensic Patients List Judge, Bellew J, to obtain hearing dates for the final hearing of the matter, and to fix a timetable for the filing and service of evidence and submissions. 4. Liberty is granted to the parties to apply on one day's notice in relation to order 1 if the parties cannot reach agreement for the purposes of that order.

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: 22 May 2019