Attorney General for New South Wales v Rohan

Supreme Court of NSW|2020-11-10|Before: Hoeben CJ

Solicitors: Crown Solicitor for NSW - Plaintiff Legal Aid NSW - Defendant File Number(s): 2020/264960

Nature of proceedings By summons filed 11 September 2020, the Attorney General of New South Wales (Plaintiff) seeks an "extension order" against "Rohan" (a pseudonym) under Schedule 1 of the Mental Health (Forensic Provisions) Act 1990 (NSW) (the Act), extending his status as a "forensic patient" under the Act.

This is a preliminary hearing. The specific orders sought at this hearing are: "Appointment of experts 1. By way of interlocutory relief, an order pursuant to cl 6(5) of Sch 1 to the Act: a. appointing two qualified psychiatrists, registered psychologists or medical practitioners (or any combination of two such persons) to conduct separate examinations of the defendant and to furnish reports to the Supreme Court on the results of those examinations by a date to be fixed by the Court; and b. directing the defendant to attend those examinations. Interim orders 2. By way of further interim relief, an order pursuant to cls 10 and 11 of Sch. 1 of the Act, that the defendant be subject to an interim order for the extension of his status as a forensic patient commencing from midnight on 1 December 2020 for a period of three months until 1 March 2021. ..."
Order 4 in the Summons was made by Bellew J on 16 September 2020.

Relevant law

A 'forensic patient' is defined in s 42 of the Act and includes 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 ss 14, 17(3), 24, 25, 27 or 39 of the Act: s 42(a)(i).
Section 54A of the Act, which is within Part 5, empowers the Supreme Court to extend a person's status as a forensic patient (extension order) in accordance with Schedule 1.
The objects of Part 5 of the Act, set out in s 40, are as follows: 1. to protect the safety of members of the public; 2. to provide for the care, treatment and control of persons subject to criminal proceedings who are suffering from a mental illness or mental condition; 3. to facilitate the care, treatment and control of any of those persons in correctional centres through community treatment orders; 4. 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; and 5. to give an opportunity for those persons to have access to appropriate care.
Clause 1 of Schedule 1 to the Act provides that the Supreme Court may make an extension order. The test is in clause 2: 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: 1. the forensic patient poses an unacceptable risk of causing serious harm to others if he or she ceases being a forensic patient; and 2. 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. Note: less restrictive means of managing risk includes, but is not limited to, a patient being involuntarily detained or treated under the Mental Health Act 2007 (NSW).
The structure and language of the regime has direct parallels with the Crimes (High Risk Offenders) Act 2006 (NSW) (HRO Act) and as such assistance is gained from authorities regarding that legislation.
However, unlike the HRO Act, this regime does not empower the Supreme Court to make specific orders about the care, treatment, supervision or control of a forensic patient. Such matters remain within the province of the Tribunal, which has the expertise to determine the best options and to adjust arrangements as is appropriate.
When Schedule 1 was inserted into the Act, the Second Reading Speech indicated it implemented recommendations made by the NSW Law Reform Commission in May 2013: "... there is a gap in the New South Wales legislative framework for dealing with forensic patients who pose an unacceptable risk of serious harm to others at the end of a limiting term, but who may not come within the definition of a mentally ill person. The bill addresses that gap by ensuring that the Mental Health Review Tribunal can continue its oversight of these forensic patients."

Satisfaction to "a high degree of probability"

The test in cl 2(1) requires satisfaction to a "high degree of probability". This constitutes a standard of proof which is higher than the civil standard but lower than the criminal standard.
In Cornwall v Attorney General of NSW [2007] NSWCA 374 at [21] the Court of Appeal observed: "21 The expression "a high degree of probability" indicates something "beyond more probably than not"; so that the existence of the risk, that is the likelihood of the offender committing a further serious sex offence, does have to be proved to a higher degree than the normal civil standard of proof, though not to the criminal standard of beyond reasonable doubt. ..."
The standard of persuasion - of satisfaction "to a high degree of probability" - governs both questions in cl 2 (Minister for Mental Health v Paciocco [2017] NSWSC 4 (Campbell J).

First limb - "unacceptable risk of causing serious harm to others": (cl 2(1)(a))

The first limb of the test in cl 2(1) involves consideration of two phrases, "unacceptable risk" and "serious harm": neither are defined in the Act.
While "unacceptable risk" is not defined, cl 2(2) provides that the court is not required to determine that risk of causing serious harm to others is more likely than not.
The question of whether a defendant poses an unacceptable risk is to be assessed for the purposes of cl 2(1)(a) on the assumption that he or she is not a forensic patient nor an involuntary patient. That is, the risk the defendant would present if he or she ceased to be a forensic patient and was released into the community at the end of his limiting term without any court ordered supervision or monitoring.
The prediction undertaken by the Court as to the risk posed is directed to the period for which it can make an order - i.e., a maximum of five years (cl 8) (Tillman v Attorney-General for the State of NSW (2007) 70 NSWLR 448; [2007] NSWCA 327 at [8] per Mason P).
In Lynn v State of New South Wales [2016] NSWCA 57 the Court of Appeal held that the right of the offender to his or her personal liberty is not a relevant consideration in the "unacceptable risk" test. The Court observed that the word "unacceptable" is contextual and requires parameters against which the conduct can be measured. The precise parameters, norm or standard was not immediately evident from the HRO Act but "that must be so. A determination as to whether something is unacceptable is an evaluative task ..." (Lynn per Beazley P at [51]). The assessment of whether someone is a high risk offender (who therefore poses an unacceptable risk if not supervised after release) has to be understood in the context of the legislative object of the HRO Act; in particular, its purpose in ensuring the safety of protection of the community.
Determination of whether someone poses an unacceptable risk of causing serious harm to others if he or she ceases being a forensic patient, also involves an evaluative task, directed to "the assessment of risk in the context of making the community secure from harm as opposed to guaranteeing its safety and protection" (Lynn at [61] per Beazley P).
In Lynn, Basten J A stated 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."
More recently, Wilson J in State of New South Wales v Simcock (Final) [2016] NSWSC 1805 stated at [71]: "71 Unacceptability of risk involves considerations of both likelihood of the risk eventuating, and the gravity of the risk that may eventuate."
In Attorney General for the State of New South Wales v Boyce by his tutor Jennifer Thompson [2017] NSWSC 144 (Boyce), Davies J considered the "unacceptable risk" test in cl 2(1)(a). Davies J concluded that the words "unacceptable risk" should be given their everyday meaning and the "right of an offender to his or her personal liberty at the expiry of the sentence being served is not a relevant consideration in the determination of whether a person poses an "unacceptable risk" for the purposes of cl 2(1)(a) of the Act. Davies J was of the view that "[f]or the purpose of determining whether [the offender] poses an unacceptable risk of causing harm to others, he is relevantly in no different position from a high risk offender". In so finding, his Honour had regard to the first stated object in s 40 of the Act, namely protecting the safety of members of the public (at [14]).
Accordingly, consistent with Boyce and in accordance with the Court of Appeal decision in Lynn, the right of a forensic patient to his or her personal liberty at the expiry of the limiting term is not a relevant consideration in the determination of whether a person poses an unacceptable risk for the purposes of cl 2(1)(a).
The other part of this limb of the test is "serious harm", which is likewise undefined in the Act.
Davies J in the preliminary hearing in Attorney General of New South Wales v Kereopa [2017] NSWSC 411 observed at [12] that the Act has a wider reach than the HRO Act. This was because the unacceptable risk under the HRO Act comes to fruition by either a serious sex offence or a serious violence offence - both of which are defined, and the latter requiring a minimum of grievous bodily harm. At [13], Davies J noted that the offending making up the index offence could well be less under the Act than for high risk offenders under the HRO Act, and the unacceptable risk being guarded against could well be less because it is simply "serious harm" and not the commission of a serious sex offence or serious violence offence. His Honour agreed that the net is cast wider for forensic patients and to that extent caution should be exercised. At [14], Davies J observed that what authority there is on the undefined words "serious harm to others" in cl 2(1) tends to point to the inclusion of behaviour that would not extend nearly as far as the behaviour that constituted a serious sex offence or a serious violence offence. In his Honour's view, that matter was highlighted in Mr Kereopa's case where the index offences did not involve personal violence.
In Attorney General of New South Wales v Kereopa (No 2) [2017] NSWSC 928 RA Hulme J, agreed with Davies J at [16] that serious harm "may concern physical or psychological harm. In terms of physical harm it does not require a concern about harm to the level of "grievous bodily harm" (defined in the criminal law as really serious bodily harm)". He also accepted that "it contemplates something more than would satisfy the minimum threshold for "actual bodily harm" under the criminal law and "that psychological harm must be something more than emotions such as fear or panic. Such things are not "serious harm"."
In Attorney General for New South Wales v Kereopa [2019] NSWSC 1339, Harrison J noted at [28] that "the relevant risk that Mr Kereopa may cause serious harm to others is a risk that may exist in the absence of a risk of violence of any sort" on the basis that "the scheme of the Mental Health (Forensic Provisions) Act is plainly protective, not punitive".
Second Limb - "other less restrictive means": (cl(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". On the second question, the plaintiff must prove the negative.
In Attorney General for New South Wales v McGuire by his tutor Thompson [2019] NSWSC 76, Wright J analysed the process of assessment of "less restrictive means" as follows: "28 Assessing whether the risk can be adequately managed by other less restrictive means involves determining: (1) whether the means proposed are less restrictive; and (2) whether the less restrictive means adequately manage the risk. 29 As to the first of those matters, whether means are more or less restrictive is to be judged by the legal power of others to control the defendant's actions, locations, treatment and other matters, as well as the practical operation of how that power might be exercised in a particular instance: Attorney General of NSW v Doolan by his tutor Jennifer Thompson (No. 2) [2016] NSWSC 107 (Doolan (No. 2)) at [96]. 30 The note to cl 2(1) of Sch 1 of the MHFP Act states: "Less restrictive means of managing a risk includes, but is not limited to, a patient being involuntarily detained or treated under the Mental Health Act 2007." 31 ... 32 As to whether the less restrictive means adequately manage the risk, Garling J said in McGuire (No.2) at [63]: "I would take the use of the phrase "adequately managed" to mean 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 ill or mentally disordered individuals or forensic patients being confined in some form of institutional care rather than taking their place in the community." 33 Adamson J in Doolan (No. 2) at [100] identified a number of areas of difference in respect of the legal regimes that should be considered when assessing "less restrictive" and "adequacy of management". Although her Honour was dealing with a different alternative regime from that proposed in the present case, the areas she identified give useful guidance, provided allowance is made for the different circumstances of the defendant in the present case. The areas of difference identified by Adamson J were: "(1) The objects of the legislation; (2) The composition of the Tribunal; (3) Review by the Tribunal; (4) The basis for detention; (5) Release from detention; (6) Imposition of conditions while patient is living in the community; (7) Consequences of breach of conditions.""
In Attorney General of NSW v Doolan by his tutor Jennifer Thompson (No 2) [2016] NSWSC 107 Adamson J noted the assumption implicit in the wording of cl 2(1)(b) that an extension of a persons' 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.
Her Honour noted at [97] that the wording in cl 2(1)(b) is to be contrasted with s 43 of the Act which refers to "care of a less restrictive kind" which necessarily requires an inquiry with greater emphasis on the facts and circumstances of the person concerned rather than the powers that may be exercised in respect of him or her.
Her Honour concluded in Doolan: "121 Generally speaking the onus in the Act is in favour of greater restrictions on the forensic patient; the onus needs to be displaced by evidence before the Tribunal in order for restrictions to be lifted. By 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 a restriction is warranted ..."

Interim orders and preliminary hearing

Upon proceedings being commenced, the court must within 28 days (or such further time as it may allow) conduct a preliminary hearing into the application: cl 6(4). If at that hearing, the court is satisfied that the matters alleged in the supporting documentation would, if proved, justify the making of an extension order, it must make orders appointing two qualified psychiatrists/psychologists to conduct examinations and furnish reports: cl 6(5).
If the limiting term to which a forensic patient is subject will expire before proceedings are determined, the court may make an interim extension order if satisfied that the matters alleged in the supporting documentation would, if proved, justify the making of an extension order: cl 10.
The provisions describing the court's task on a preliminary hearing are in much the same terms as on application for interim extensions.
The test, as to whether the supporting documentation would "if proved" justify the making of an extension order, imposes an elevated standard of proof - lower than the criminal standard but higher than the civil standard. The court's task is "similar to the requirement for a prima facie case to be made out in committal proceedings". It has been observed that one purpose of the preliminary hearing procedure is to allow the court to filter out unmeritorious applications at an early stage, with another purpose being to give the court the benefit of expert opinions of two independent witnesses before making a final decision. Since that question involves consideration of the court's task on the final hearing of an application, it is also necessary to have regard to the criteria set out in cl 7(2) and the authorities on the court's task on final hearing.
The rules of evidence do not apply in proceedings for interim orders, although "It is obviously desirable, where possible, for the matters relied upon in support of an application for an interim order under the Act to be supported by material provided by those with direct knowledge of the facts concerning the individual offender" (Attorney General for the State of New South Wales v Quinn [2007] NSWSC 456 at [22] per Hall J).
Whether matters alleged "if proved" would justify the making of final orders, is to be resolved without considering what evidence might be called by the offender at the final hearing, nor any evidence called by the offender at the interim hearing. The Court is not involved in weighing the documentation or predicting the ultimate result. In dealing with interim orders, it is appropriate to give weight to risk avoidance.

Clause 7(2) matters

In determining whether to make an extension order, the court must consider each of the matters listed in cl 7(2) of Schedule 1 of the Act, as well as any other matters considered relevant, including: 1. the safety of the community; 2. the reports received from the persons appointed under cl 6(5) to conduct examinations of the forensic patient; 3. the report of the qualified psychiatrist, registered psychologist or registered medical practitioner provided under clause 5(b); 4. any other report of a qualified psychiatrist, registered psychologist or registered medical practitioner provided in support of the application or by the forensic patient; 5. any order or decision made by the Tribunal with respect to the forensic patient that is relevant to the application; 6. any report of the Director-General of the Ministry of Health, the Commissioner of Corrective Services, the Director-General 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; 7. 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 ss 49 or 50); 8. 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; and 9. any other information that is available as to the risk that the forensic patient will in future cause serious harm to others.
The report referred to in cl 7(2)(c) is the report of Ms Lisa Zipparo, Clinical Neuropsychologist, dated 14 June 2020, that: 1. assesses the risk of the forensic patient causing serious harm to others; and 2. that 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.
Ms Zipparo has provided a supplementary report dated 2 July 2020.

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

Each of the matters referred to in cl 7(2) bears on the question of safety of the community. The safety of the community should be given significant weight. Rohan's criminal history supports the making of an order. He has been convicted of multiple sexual offences against multiple children. It is clear from Rohan's criminal history that the only offences he has ever been charged with are sexual offences against children.
The details of his offending (in chronological order) are: 1. On 1 January 1995, when Rohan was 15 years old, he had sex with a 10 year old boy. Two years later, when Rohan was 17 years old, he touched the same victim's penis. The victim would have been aged about 12 years at the time. The plaintiff has not yet been able to obtain any further information about these offences. 2. Between 31 January 2007 and 31 December 2009, Rohan sexually abused one of his nieces when she came to visit her grandparents at their house where Rohan also lived. The victim was either seven, eight or nine years old at the time. The court took into account, as tendency evidence, that Rohan started abusing this victim when she was aged about three or four. The offences, the subject of the convictions, occurred while the victim was playing a shop game with Rohan's younger siblings. The victim delivered fictitious food to Rohan's caravan where he pulled down her pants, rubbed her vagina and put his fingers into her vagina. Later that day, the victim returned to Rohan's caravan and he put his penis inside her while she was yelling and crying. When she returned later that day, Rohan made the victim put her hand on his penis and move it back and forth. Later that day, Rohan asked the victim back to his caravan and pushed his penis into her mouth and moved her head back and forth. She then bit his penis and he threw her out of the van. On another date, Rohan invited the victim into his van, again put his penis in her mouth and moved it back and forth and then put his penis in her vagina. On another date, the victim was playing a farm game with Rohan's younger siblings. He made her come into his caravan and played with her vagina under her clothes. On a later date, the victim was asleep on a couch in the house and woke up to find Rohan rubbing his penis all over her face. Rohan then dragged the victim by her hair into his caravan and put his penis into her vagina while she was screaming and kicking. Some months later, the victim was in the house and he touched her vagina on the outside of her clothing. These are the index offences. 3. Between 24 June and 23 July 2010, another of Rohan's nieces, who was aged seven years at the time, was staying at her grandparents' place, where Rohan also lived, in a caravan in the backyard. On about 10 July 2010, Rohan invited his niece into his caravan to watch a movie. He then showed his penis to her, telling her not to tell anyone what he had done. He touched his niece on her genitals, under her clothes, then told her to leave the van. On about 17 July 2010, Rohan invited his niece into his caravan and put on a movie. He again showed his penis to her and touched her genitals under her clothes. On about 18 July 2010, Rohan invited his niece back into the caravan, put on a movie, exposed his penis to her again and touched her genitals under her clothes. Rohan has already served a limiting term for these offences. 4. Between 11 February and 13 February 2011, a family friend and her two daughters stayed at Rohan's parents' house for the weekend. On 13 February 2011, Rohan invited the victim, who was six years old, into his caravan, exposed his penis to her and then rolled around on her performing an act of simulated intercourse. He then used his fingers to open her vagina and look at it. The same day, when Rohan and the victim were both in his parents' house, he touched her on the genitals and took her hand and forced her to touch his penis. Rohan has already served a limiting term for these offences.
With respect to this previous limiting term, Rohan was arrested on 5 April 2011 and taken into custody, where he remained until 25 May 2012 when he was released on bail. Rohan was returned to custody once the limiting terms were imposed on 10 December 2012. He was released from custody at the expiry of those limiting terms on 17 October 2013. He then returned to custody on 2 June 2015 when he was arrested in relation to the index offences.
As a result of Rohan's various convictions for indecent assault against a person under 16 years of age and sexual intercourse with a person under the age of 10 years, he is also a "registrable person" pursuant to s 3A of the Child Protection (Offenders Registration) Act 2000 (NSW). This means that his name appears on the Child Protection Registry in NSW. Accordingly, once he is released from custody, he will be obliged to report to the police annually and whenever his personal circumstances change pursuant to ss 10, 11 and 11A-F of that Act. It is not clear what the length of Rohan's reporting period is, but it is likely to be for life pursuant to s 14A(1)(c)(ii) of that Act.
On 4 October 2018, the Mildura Magistrates Court issued a warrant for Rohan's arrest with respect to the following pending charges: one count of threat to inflict serious injury; one count of indecent act with a child under 16; and two counts of sexual penetration of a child under 16 years.
The alleged victim is Rohan's niece, the same niece that was the victim of his index offending. The Incident Record created by the Victorian Police alleges that "Between 1 Jan 2005 and 31 Dec 2005 [Rohan] has raped (penis/vagina) his six year old niece in a caravan at the rear of ... Avenue, Mildura".
The Tribunal is aware of these pending charges, having noted in its determination dated 1 June 2020 that Rohan "faces arrest by Victoria Police upon his release to face charges in that State of a similar nature to those for which he is [sic] currently serving the limiting term, relating to the same victim".
This means that once Rohan is released from custody, steps will likely be taken for him to appear in the Mildura Magistrates Court to answer these pending charges. It appears that Rohan is aware of the warrant as he told Ms Zipparo on 10 June 2020 that he "may not go home soon because I have to go to Victoria" although he was unable to elaborate any further.
When Rohan was incarcerated in 2011, he also told a nurse that he was expelled from school when he was in Year 7 "for knocking his girlfriend out in an argument". He said that "he forgot she was a girl" and hit her when he was angry "like you would hit a boy". The plaintiff has not seen any other evidence to corroborate this admission and noted that Rohan has not been charged with any offences in relation to such an incident.

Views of the court that imposed the limiting term: cl 7(2)(h)

On 2 June 2015, Rohan was taken into custody for the index offences and remanded to the Broken Hill Correctional Centre. Prior to this he was living with his parents in Western NSW.
On 15 December 2015, Rohan was transferred to the MSPC at Long Bay. On 16 September 2016, his Honour Acting Judge Charteris of the District Court of NSW found Rohan unfit to be tried and referred him to the Tribunal under s 14(b) of the Act.
On 22 December 2016, the Tribunal determined that Rohan was unfit and would not become fit to be tried for the index offences within 12 months of the Court's finding of unfitness. On 18 September 2017, Rohan was refused bail. On 22 June 2018, Hunt DCJ made qualified findings of guilt, following a special hearing, with respect to the index offences. On 21 January 2019, Hunt DCJ sentenced Rohan and made orders pursuant to ss 23 and 24 of the Act that Rohan be subject to a limiting term of 5 years and 6 months, commencing on 2 June 2015 and expiring on 1 December 2020.
His Honour noted in his remarks on sentence that the maximum penalty for sexual intercourse with person under the age of 10 is 25 years imprisonment and the maximum penalties for the indecent assault charges were either 7 years or 10 years imprisonment.
His Honour made it plain that "this kind of offending across many months, and on various occasions, including different kinds of serious sexual trespass against a young girl, are objectively very serious matters". He found that the majority of the offending fell "at about the midrange of objective seriousness". His Honour did find that one of the offences involving penetration and some violence, was above the midrange of objective seriousness.
Hunt DCJ took into account Rohan's previous convictions for child sexual abuse and formed the view that he had "moderate prospects for rehabilitation". In taking into account Rohan's mental condition, Hunt DCJ considered that incarceration would be more onerous for him, that he was not an appropriate vehicle for general deterrence and that his moral culpability was reduced. Hunt DCJ noted that Rohan had not breached the law for eight years and accordingly, he had moderately good prospects for rehabilitation and that future dangerousness did not loom as large in the sentencing exercise.
On the other hand, Hunt DCJ also considered that "given that [Rohan's] condition is pervasive and that he seems at least at the relevant time to have not benefited from treatment if it was afforded to him in the 1990s, future dangerousness must remain an issue because of the intractability of his mental condition".

Risk assessment report of the registered psychologist: cl 7(2)(c)

A risk assessment report was provided by Ms Lisa Zipparo, Clinical Neuropsychologist, dated 14 June 2020. Ms Zipparo also provided a supplementary report dated 2 July 2020.
Ms Zipparo's report is based on her assessment of Rohan on 10 June 2020 via AVL from Long Bay and her review of the majority of the material in Exhibit 1K-1.
Ms Zipparo said that Rohan "presented in a child-like manner and would often smile and laugh inappropriately". She described him as a "vague historian", providing "limited responses to questions" while his "description of events, feelings and relationships appeared concrete and limited in detail". When asked about the index offending, Rohan said "it's all bullshit, crap, but I copped it on the chin".
In terms of his family background, Rohan explained that he grew up in Western NSW with his parents and siblings but that his mother died two years ago. He speaks to his father every few days and confirmed that he had never lived independently. He told Ms Zipparo that he has never had a girlfriend.
With respect to his intellectual functioning, Ms Zipparo noted his previous diagnoses of mild to moderate Intellectual Disability and that he has only very limited ability to read and write.
Ms Zipparo conducted her risk assessment using the STATIC-99R and ARMIDILO-S risk assessment tools. Rohan's score on the STATIC-99R was 4, indicating an 'Above Average' risk of sexual reoffending. The rate of sexual recidivism for sexual offenders with this score is "about 1.94 times higher than that of the 'typical' sex offender".
Using the ARMIDILO-S, which is specifically designed for individuals with a borderline or mild intellectual impairment who have sexually offended or displayed sexually offensive behaviour, Ms Zipparo identified the following risk factors which she described as "definite risk factors": 1. his continued refusal to participate in a sex offender treatment program, gives rise to a "high risk to reoffending". Ms Zipparo noted that Rohan "continues to deny any wrong-doing" and had "no insight into the serious nature of his offending behaviour". Ms Zipparo opined that this suggested limited insight and ability to implement protective strategies on the part of Rohan; 2. his significant history of sexual offences against children dating back to 1995, which "suggests possible deviant sexual preferences"; 3. his inability to recognise or manage situations which present a high risk for reoffending due to his lack of acknowledgment of his offences and the fact that he has not participated in treatment programs.
Ms Zipparo identified some other risks which she described as "somewhat of a risk factor" with respect to Rohan's future risk of harm. These included a possible sexual preoccupation/drive; the lack of evidence that Rohan ever had any caring relationship with non-family members while living in the community; and his past lack of age appropriate peer relationships which might suggest a lack of skill and motivation to seek opportunities to develop age appropriate relationships. Ms Zipparo noted that his past offending behaviour suggested a significant degree of lack of sexual impulse control when unsupervised in a community setting.
Ms Zipparo identified some protective factors from her assessment, including Rohan's high level of compliance in custody which suggested that he had a high capacity to be compliant in a supervised setting when provided with clearly articulated rules and boundaries. Ms Zipparo also credited Rohan's positive relationships with his family members and custodial staff and inmates as a somewhat protective factor suggesting that given the opportunity in a community setting, he should be able to build and maintain age appropriate relationships.
Overall, Ms Zipparo assessed Rohan's risk rating on the ARMIDILO-S as High and his protective rating was Moderate. Combined with his score on the STATIC-99R, Ms Zipparo concluded that Rohan's convergent risk rating was High. She also opined that his refusal to participate in treatment and poor level of insight into his sexual drives and behaviours were unlikely to change unless Rohan underwent appropriate treatment for his sexual offending.
Ms Zipparo assessed Rohan as meeting the criteria for Intellectual Disability in the Moderate range of severity and also noted that due to his concrete thinking and lack of insight into his sexual offending behaviour, he would require significant and appropriate treatment, together with ongoing support, in order to be able to understand and implement the necessary strategies to decrease his risk of re-offending. Ms Zipparo concluded that while he refused treatment he was unlikely to develop the necessary insights and strategies to help mitigate his current estimated high risk of re-offending in a community setting. Ms Zipparo found that it was unclear whether Rohan also has a Pedophilic Disorder.
In relation to his ongoing management, Ms Zipparo opined that the continuation of Rohan's forensic patient status remained the only available means through which adequate levels of supervision and control could be implemented because 24 hour supervision remained the most effective strategy currently available to protect him and the community from his high risk reoffending. Ms Zipparo did note, however, that given his high level of compliance in custody, consideration could be given to community release under strict conditions including 24 hour supervision.
Ms Zipparo concluded that even if Rohan was eligible to be managed as an involuntary patient, there was currently limited evidence regarding the effectiveness of many of the available treatments for sex offenders with intellectual disabilities. Similarly, there was limited evidence for the efficacy and safety of anti-libidinal medication in sex offenders with intellectual disabilities. For the same reason, Ms Zipparo did not think that Rohan was eligible for classification as an involuntary patient and he did not think that a Community Treatment Order (CTO) was applicable.

Any other report of a qualified practitioner provided in support of the application: cl 7(2)(d)

A number of reports have been prepared in relation to Rohan. These reports indicated that he had suffered from a mental impairment since birth, which was not expected to improve. Relevant reports were as follows:

Report of Gerald Purchase - 5 December 1995

Mr Purchase, a Clinical Psychologist, assessed Rohan when he was 17 years old for the purpose of considering his eligibility for Disability Services. Mr Purchase concluded that Rohan had an IQ of 56 and that he was functioning in the Mental Retardation range. Using the Vineland Adaptive Behaviour Scales Expanded Form, Mr Purchase concluded that Rohan was functioning at about the 1st percentile in most areas, which was well within the Mental Retardation range, noting that he was also functionally illiterate and innumerate.

Report of Dr Richard Furst - 2 May 2012

Dr Furst, Forensic Psychiatrist, assessed Rohan's fitness to be tried for the charges laid against him in 2011. Rohan was aged 33 at the time. Rohan denied the offending. He said that he could not remember any details of any past sexual allegations or convictions. He said that he was attracted to women and "went out with a couple of ladies". He also denied any sexual attraction to children, use of pornography or sexual attraction to males. Dr Furst noted Rohan's previous diagnosis of development disability (Mental Retardation) of a moderate degree with particular communication difficulties, which he described as a lifelong and pervasive condition. Dr Furst found him not fit to be tried.

Report of Dr Olav Nielssen - 9 May 2012

Dr Nielssen, a Psychiatrist, also assessed Rohan's fitness to be tried for the charges laid against him in 2011. Rohan denied having committed the offences. In relation to his disability, Rohan said that he was born like that and that he had the cord wrapped around his neck when he was born. Dr Nielssen concluded that Rohan may have had a hypoxic brain injury at birth. Dr Nielssen also noted his diagnosis of Moderate mental retardation and agreed with Dr Furst, that Rohan was unfit to be tried, noting that his condition is permanent.

Report of Dr Furst - 14 January 2013

Dr Furst provided a further report for Rohan's sentencing hearing. Rohan was aged 34. Dr Furst noted that Rohan was unable to provide any explanation for his offending behaviour towards the young girls in question, and continued to deny any sexual attraction towards children. Dr Furst stated that Rohan appeared to meet the criteria for paraphilia which was a disorder giving rise to deviant sexual arousal and a pattern of abnormal sexual behaviour dating back to his adolescence. Dr Furst recommended that Rohan be referred to Statewide Disability Services (SDS) and the Department of Ageing Disability and Home Care (DAHC) for a thorough assessment of sexual offending behaviour. Dr Furst made various recommendations for supervision and treatment if Rohan were to be released to the community or incarcerated, both of which included referral to a psychiatrist to see if Rohan should be prescribed anti-libidinal agents.

Report of Dr Kheng Chan - 17 April 2013

Dr Chan, a Psychiatric Registrar, prepared a report for the Tribunal noting that Rohan scored 60 in his IQ assessment on 9 April 2013 indicating that he continued to fall "within the category of mild intellectual retardation". Dr Chan stated that Rohan had a history of developmental delay and suffered from an intellectual disability but did not have a mental illness. He concluded that he remained unfit to plead.

Report of Romilyn Villason - 18 April 2013

Ms Villason, a Psychologist for SDS, provided a report for the Tribunal in which she noted that Corrective Services NSW psychology staff had assessed Rohan's cognitive functioning using the Wechsler Abbreviated Scale of Intelligence on 11 November 2011 which placed him as "within the extremely low range of intellectual function".

Report of Dr Furst - 16 December 2015

Dr Furst assessed Rohan as being unfit to be tried for the index offences. Dr Furst again noted Rohan's diagnosis of intellectual disability (Moderate) and his denial of the offences. Dr Furst opined that further assessment was warranted with respect to his possible paraphilia and recommended that he participate in a "Self-Regulation" program which is analogous to the CUBIT program, but for sex offenders with an intellectual disability. He recommended that Rohan be referred to a psychiatrist to assess him for the prescription of anti-libidinal agents. Dr Furst concluded that Rohan remained unfit to be tried.

Report of Dr Gordon Elliott - 18 December 2015

Dr Elliot assessed Rohan to determine if he was suffering from a mental illness or a developmental disability and whether he was a mentally ill person in terms of the Mental Health Act. In contrast to earlier reports, Rohan said that he was unaware of any problems related to his mother's pregnancy or birth of him. He also told Dr Elliot that he has had two girlfriends and a sexual relationship with one woman when he was 16 or 17 years old. Dr Elliot opined that Rohan had a mild developmental disability, but he did not present with features of a mental illness or mental condition or that he was a mentally ill person.

Report of Dr Nielssen - 23 March 2016

Dr Nielssen assessed Rohan as unfit to be tried for the index offences. He agreed that his intellectual disability was permanent. Rohan again said that he was born with the cord around his neck.

Report of Nicholas Kailis and Lauren Cooper - 30 November 2016

As SDS is the lead agency in the management of Rohan while he is in custody, Mr Kailis, Senior Services and Programs Officer, and Ms Cooper, Psychologist for SDS, provided a report to the Tribunal. They referred to Rohan's most recent cognitive functioning assessment of 19 September 2013, using the Wechsler Adult Intelligence Scale - 4th Edition (WAIS-IV), which indicated that his cognitive functioning was in the range of Mild Intellectual Disability.

Report of Olivia Munn - 13 June 2017

Ms Munn, Senior Psychologist at SDS, provided a report for the Tribunal which confirmed that Rohan remained unfit to be tried due to his cognitive difficulties.

Report of Monika Gubarewski - 11 December 2017

Ms Gubarewski, Acting Senior Psychologist at SDS, provided a report for the Tribunal which noted that CSNSW would be able to complete the recommended STATIC-99R risk assessment and the Level of Service Inventory Revised (LSI-R) once Rohan had received a limiting term or sentence for the index offences.

Report of Tanya Brunette - 9 July 2018

Ms Brunette, Senior Psychologist at SDS, provided a report for the Tribunal which confirmed that Rohan had been accepted into the Community Justice Program and that he was now an NDIS recipient.

Report of Dr Gerald Chew - 3 December 2018

Dr Chew provided a report for Rohan's sentencing hearing for the index offences. Rohan was aged 40 at the time of his assessment. Dr Chew concluded that Rohan's primary diagnosis was Moderate Intellectual Disability which was "an enduring and pervasive condition" which also made it more onerous for him to serve a custodial sentence. Dr Chew recommended a self regulation program and consideration for SSRI antidepressants and anti-libidinal medication.

Report of Louise Tunks - 11 December 2018

Ms Tunks, Psychologist at SDS, provided a report for the Tribunal which confirmed that Rohan's NDIS plan included funding for daily living, and 1:1 activities in the community, funding for support coordination to assist him in achieving his goals and finding relevant services. Rohan indicated that he wished to live in supported accommodation or closer to his family in Western NSW.

Report of Tanya Brunette - 12 February 2019

Ms Brunette, Senior Psychologist at SDS, provided a report for the Tribunal. She confirmed that Rohan's NDIS plan had been recently reviewed and included funding for support coordination to assist in strengthening his informal network and to coordinate a range of funded and mainstream supports.

Report of Louise Tunks - 22 March 2019

Ms Tunks, Psychologist at SDS, assessed Rohan's risk of reoffending using the STATIC-99R tool. His total score was 4 being "Above Average" risk. The rates of sexual recidivism for sexual offenders with the same total score as Rohan were between 10-12.1 per cent over five years, which is about 1.94 times higher than that of the "typical" sex offender.

Report of Louise Tunks - 1 July 2019

Ms Tunks provided a report for the Tribunal. She noted that Rohan's LSI-R was conducted on 14 February 2019, with results falling in the low/medium range of risk of recidivism. Ms Tunks stated that following her assessment of him using the STATIC-99R tool, SDS staff approached Rohan on three separate occasions to discuss his willingness to participate in a custody-based sex offender program. He declined on each occasion.

Report of Clarissa Fasanella and Tanya Brunette - 14 January 2020

Ms Fasanella a Psychologist at SDS, and Ms Brunette provided a report for the Tribunal which advised that Rohan's NDIS Commonwealth Continuity of Support would be responsible for finding suitable release accommodation for him and to further develop his plan with appropriate and adequate disability/behavioural supports. This was in line with the Risk Assessment and Adaptive Function Assessment report that Community Justice and Integrated Services Program (CJISP) would complete.

Report of Trudi Cusack and James Wu - 5 February 2020

Ms Cusack, Senior Clinical Consultant, and Mr Wu, Team Leader and Psychologist at Family and Community Services (FACS) conducted an Adaptive Functioning Assessment to evaluate Rohan, to inform his support needs in the community and to inform his NDIS funding. They noted Rohan's Mild to Moderate range of intellectual disability and his history of hypoxic brain injury at birth resulting in his ongoing hearing difficulties. They also noted his diagnosis of arthritis from Perthe's Disease.
The report noted Rohan's continued refusal to engage in a Self-Regulation Program for Offenders treatment program and his lack of interest in speaking with custodial psychologists stating that he did not enjoy the sessions and felt judged by the psychologists, although he was happy to engage with the Services and Program Officers through SDS. Rohan was also "quite emphatic that he wants to live with his father on the farm on his release, as living with his parents is the only home he has ever known" and he also wanted to visit his mother's grave in Mildura.
The assessment of Rohan by Ms Cusack and Mr Wu was conducted using the Adaptive Behaviour Assessment System, Third Edition (ABAS-3). A summary of the results is as follows:
Given the significant difference in Rohan's performance on each of the three assessed adaptive functioning domains, his true adaptive functioning ability should be interpreted from each domain as opposed to the overall estimate (i.e., GAC).
The assessed domains indicate that Rohan experiences significant difficulties or performs lower than all individuals (i.e., Extremely Low range, lowest functioning category) in his age group for areas associated with basic academic skills required for reading, writing, taking measurements and telling the time, as well as the ability to exhibit self-control, make independent choices and take responsibility. This is a significant weakness of Rohan and this finding is consistent with his reported school difficulties (i.e., unable to read and write, and left school in Year 7) and what appears to be an over- supported developmental upbringing where his mother managed his finances and his family (and in particular his father) would be present for his work, community access and social interactions. It is likely that the majority of Rohan's decisions were made for him with well intentions. This may also suggest that his performance in this domain has not been met with any improvement since his childhood or he has not had the opportunity to develop this ability.
Rohan's assessed ability to perform the required leisure skills for engaging in play and planning recreational activities, as well as interacting socially with others, appears to be lower in performance than most individuals (i.e., Low range, second lowest functioning category). Similarly, his ability to access the community to complete tasks such as shopping and utilising community resources (e.g., public transport) also fell in the same range. When considering Rohan's upbringing (as above), his limited social network outside of the family and his most recent unsuccessful social interaction with another inmate, it is likely that his functioning is lower than the stated rating. In other words, Rohan has had limited interaction with the broader community and the majority of his life has been spent with family under their support. Rohan entered custody from the care of his family, and as such there is insufficient information to determine his ability to independently navigate the social community with absolute confidence. This is an area for further exploration post release. "[Rohan's] assessed performance at engaging in communication with others (i.e., speech, vocabulary, listening conversation, non-verbal skills) is in the Below Average range. This finding is consistent with his presentation during my interview and past reports of [Rohan's] presentation during assessments. Similarly, his performance at tasks required for self care (e.g., eating dressing personal hygiene), maintaining physical health and responding to injuries also fell in the same range. However, [Rohan's] ability to function inside the home (e.g., cleaning, food preparation, chores, taking care of personal belongings) is in the Average range and a relative strength. This finding is consistent with reports that [Rohan] would assist the family on the farm and possibly in the family home throughout his life. Given [Rohan] has yet to live independently (i.e., outside of the family), it is likely that such activities occurred in the presence of family members. For this reason, there is insufficient information to assert that [Rohan] engages in home living activities independently or within the context of constant family support (e.g., prompting). Further exploration is required post release."
As a result of that analysis, Ms Cusack and Mr Wu recommended that Rohan be placed "in supported accommodation with 24/7 staff access in proximity to his family home in ... NSW (approximately 3 and a half hours from Broken Hill)" and that the staff have experience in supporting clients with an intellectual disability and contact with the criminal justice system, specifically inappropriate sexual behaviours. They also recommended that these staff members visit Rohan in custody to establish rapport and trust prior to his release and that a behaviour support practitioner be appointed to develop an interim behaviour support plan for Rohan. This practitioner can also deliver training to staff at the supported accommodation for the transition period of up to six months from Rohan's release. They also stated that the appointment of a Guardian for Rohan should be considered "due to his poor decision making and the difficulties he is likely to experience in making appropriate decisions for future services and accommodation". However, they noted that "it is not known if [Rohan's] father is willing to take on this role as according to [Rohan] his father is getting older and is having difficulties managing the family farm". Ms Cusack and Mr Wu also suggested that Rohan should be given the opportunity to develop a budget with support but if that is untenable, that it may be appropriate to make an application to the NSW Trustee to manage his finances.
Ms Cusack and Mr Wu concluded that "it is likely that [Rohan] will require an intensive level of support initially for at least 6-12 months post release" and that he should be reviewed at the end of that period to determine progress and support intensity.

Report of Clarissa Fasanella and Emily Higgins - 1 April 2020

Ms Fasanella and Ms Higgins, Acting Senior Psychologist at SDS, prepared a report for the Tribunal which noted that Rohan's security rating was reviewed on 29 February 2020 and remained at C1 Minimum Security. They also assessed Rohan's need for a Guardianship Order and/or appointment of a Trustee and concluded that "there appears to be currently insufficient evidence to support an application by SDS to the NSW Trustee and Guardian requesting a Guardianship and Trustee Order" but noted that this could be reconsidered by community disability support providers.
In terms of his future planning, Rohan indicated to Ms Fasanella and Ms Higgins that he understood he needed supports to assist him with transitioning back into the community and that he was to live in supported accommodation upon his release, or with family. They noted that Rohan's NDIS Commonwealth Continuity of Support (Ms Sanaa Chadda, his Participate Australia Support Coordinator) would be responsible for finding Rohan suitable release accommodation and developing his support plan in line with the recommendations in the Adaptive Functioning Assessment summarised in the report prepared by Ms Cusack and Mr Wu.
Ms Fasanella and Ms Higgins summarised the steps taken to assist Rohan as follows: "[Rohan's] NDIS plan was recently updated for the period 30/03/2020 - 30/03/2021 and includes funding for supports that will assist [Rohan] in his daily activity at home, community and financial assistance with transport. [Rohan's] NDIS plan has approved funding to assist to build [Rohan's] independence, which includes funding for a Support Coordinator to provide assistance with housing, gathering information and evidence to support [Rohan's] needs when he lives independently. Funding can be provided for an Occupational Therapist (OT) to assess and make recommendations to support [Rohan] and his housing needs. An OT from Optimum Health Solutions has been organised to assess [Rohan] via Audio Visual LINK (AVL) on the 02/04/20. Funds have also been approved for a Behaviour Support Practitioner to assess his behaviour and provide recommendations to support him in independent living. Funds are also provided for implementation of the plan, training of staff when required and social skills training."

Any order or decision made by the Tribunal relevant to the application: cl 7(2)(e)

On 8 December 2016, the Tribunal reviewed Rohan for the first time with respect to the charges relating to his index offending. The Tribunal determined that Rohan was not fit to be tried because of his intellectual disability and that he would not become fit in the next 12 months. It then ordered, on 22 December 2016, that he be detained at Long Bay.
On 15 June 2017, the Tribunal conducted its second review of Rohan and confirmed that he had not become fit to be tried. It also noted that in addition to his intellectual disability, he suffered from osteoarthritis. The Tribunal ordered that he remain detained at Long Bay.
On 14 December 2017, the Tribunal conducted its third review of Rohan and confirmed that he had not become fit to be tried. The Tribunal ordered that he remain detained at Long Bay.
On 19 July 2018, the Tribunal conducted its fourth review of Rohan. On 15 August 2018, it ordered that Rohan remain detained at Long Bay.
On 28 March 2019, the Tribunal conducted its fifth review of Rohan and confirmed that he had not become fit to be tried. On 26 April 2019, the Tribunal ordered that he remain detained at Long Bay.
On 11 July 2019, the Tribunal conducted its sixth review of Rohan and confirmed that he had not become fit to be tried. On 2 August 2019, the Tribunal ordered that he remain detained at Long Bay. The Tribunal referred to Rohan's adamant refusal to participate in the Sexual Offenders Program, noting that this was causing difficulties for his supports who need a risk assessment to make further enquiries regarding accommodation for his ultimate discharge. His reason for refusing to participate in the program is that it is located in Sydney and he strongly wants to be closer to his family who live in the far west region of NSW.
On 30 January 2020, the Tribunal conducted its seventh review of Rohan and focused on plans for his possible release on 1 December 2020. The Tribunal noted that his NDIS plan was soon to be reviewed "as his changed circumstances upon release will require a greater level of funding than has been necessary whilst in a custodial setting". The Tribunal was told that SDS anticipated that suitable accommodation would be identified for Rohan in approximately June 2020. The Tribunal concluded that "there was still a great deal of work to be done to satisfactorily identify all supports and programs required to prepare Rohan for a satisfactory and safe return to the community". Accordingly, the Tribunal determined that the next review should be in three months' time so the Tribunal could assess progress with respect to his Discharge Planning.
On 16 April 2020, the Tribunal conducted its eight review of Rohan and confirmed, on 1 June 2020, that he had not become fit to be tried. The Tribunal noted that Rohan "faces arrest by Victoria Police upon his release to face charges in that State of a similar nature to those for which he is currently serving the limiting term, relating to the same victim. The Tribunal noted that Rohan's NDIS plan had been updated in March 2020 "and included funding for supports to assist him, in due course, in the community". The Tribunal also referred to "a comprehensive adaptive functioning assessment, prepared by Mr James Wu and Ms Trudi Cusack, [which] identified significant limitations in [Rohan's] adaptive functioning at present". They also referred to "[Rohan's] family situation and, in particular, his father's advanced age and declining health" which led them to have concerns about Rohan's ability to care for his father. The authors concluded that Rohan would need "an intensive level of support to develop his confidence and ability for independent living" for "at least 6-12 months after his release". The Tribunal noted that all these plans were "contingent upon the outcome of the proceedings in Victoria".

Level of compliance with obligations while a forensic patient: cl 7(2)(g)

Rohan has been in custody for the index offences since 2 June 2015. He became a forensic patient (for the second time) on 16 September 2016 when Acting Judge Charteris found him unfit to be tried.
Rohan was initially admitted to the Broken Hill Correctional Centre, then he spent a short period in Wellington Correctional Centre before being admitted to the MSPC at Long Bay on 9 July 2015. He is currently housed in the ASU at the MSPC and has been classified as a C1 minimum security inmate since 12 February 2019, following the imposition of his limiting term.
Rohan has not been charged with any institutional offences. According to information in the Offender Information Management System (OIMS) and reports by SDS staff, Rohan is a compliant inmate who adheres to CSNSW direction and routine. Ms Ashleigh Hewson, from SDS, told the Tribunal on 16 April 2020 that Rohan is a "model inmate" and that there was "not a bad word anyone can say about him".
There is, however, one unsubstantiated report suggesting Rohan engaged in inappropriate sexual behaviour directed towards another offender. The OIMS entry for 16 October 2018 states that a transgender inmate alleged that Rohan "is making unwanted sexual advances towards her". They were in cells next to each other at the top landing in 5 Wing ASU. Custodial staff have moved that inmate to cell 4 downstairs to separate them and for better monitoring. On 29 December 2018, there is an entry noting that the same inmate alleged that Rohan had inappropriately touched her. Both inmates were interviewed by staff.
Rohan denied the allegations, but both were warned to be careful in their dealings and asked to follow the required CC discipline noting that the transgender inmate did "not want any further action at the moment". On 5 January 2019, another entry states that a staff member spoke to Rohan after observing the transgender inmate sitting inappropriately in between [Rohan's] legs". The staff member "told [Rohan] that this needs to stop in light of the recent allegations. [Rohan] appeared receptive and appeared to listen to what was being said to him".
Rohan's attempts to develop a relationship with the transgender inmate were terminated "as she felt uncomfortable with [Rohan's] attentions and approaches stating he was "weird" and "creepy"." He is otherwise described as "a bit of a loner" in custody.
Rohan is employed with Corrective Services Industries Assembly and Packaging and is also a wing sweeper. He has completed units towards Certificate 1 Access to Work and Training which included IT modules, goal setting, reading and writing. He is also enrolled in Literacy, Computer and Horticulture courses.

First limb: unacceptable risk

The first issue to be considered is whether Rohan poses an unacceptable risk of causing serious harm to others if he ceases being a forensic patient. This is an evaluative task which requires consideration of a number of factors. Those factors include: 1. his past conduct; 2. the likelihood of him reoffending; and 3. the gravity of his reoffending.
The assessment is made in the context of making the community secure from harm. This means that the risk must be considered on the basis that Rohan will be living, unsupervised, in the community upon his release. However, the Court is not required to determine that the risk of causing serious harm to others is more likely than not. Nor is the court required to consider Rohan's right to liberty at the expiry of his limiting term or extension order.
In State of New South Wales v Simcock (Final), Wilson J stated (at [68]) that: "68 Having considered all of the evidence, the task for the Court is an evaluative one to be undertaken in the overall context of the primary objective of the Act, that being to ensure the safety and protection of the community. The evaluative task involves a prediction: the Court must be satisfied to a high degree of probability that the offender poses an unacceptable risk of committing a serious violence offence if not kept under supervision. It is not to the point if the Court is satisfied to that degree of probability that the defendant will re-offend more generally."
Rohan's past conduct includes multiple sexual offences against multiple children. His first offence against a male child was in 1994 when he was aged 15. He then sexually offended against one of his nieces on multiple occasions between 2007 and 2011, when she was aged between seven and nine and Rohan was aged between 28 and 32. In 2010, Rohan sexually offended against another of his nieces, who was aged seven at the time. In 2011, he sexually offended against a six year old girl who was a friend of his family.
The offending against these children ranged from indecent touching to sexual penetration and included acts of physical violence such as pulling one of the victims by the hair into his caravan.
Hunt DCJ concluded that Rohan's previous offending against children "demonstrate[d] to [his] mind beyond reasonable doubt that the accused has a tendency to have a sexual interest in girls under the age of 11 and had a tendency to act on that tendency". It is clear, therefore that his past conduct indicates that the risk of harm that Rohan poses to others if he were released is the risk of him committing serious sexual harm (which can include both physical and psychological harm) against young children.
In terms of the likelihood of Rohan reoffending, Ms Zipparo concluded that the risk is high. She also stated that this is unlikely to change in the absence of any appropriate treatment, which Rohan refuses to participate in.
It follows therefore and I am satisfied that the seriousness of Rohan reoffending is high, due to the potential for him to sexually offend against children and the likelihood of him reoffending is also clearly high, should he be released into the community without supervision. I am satisfied to a high degree of probability that Rohan poses an unacceptable risk of causing serious harm to others if he ceases to be a forensic patient.

Second limb of the test

This limb states that an extension order can be made if the court is satisfied to a high degree of probability that Rohan's risk cannot be adequately managed by less restrictive means.
If an extension order is not made, Rohan will be released from custody and will be free to reside anywhere he chooses in the community. It is likely that he would return to live with his father in Western NSW, at the same property where the majority of his offending took place. He would not be compelled to utilise the services of the CJISP, nor would he be subject to the supervision of the Tribunal.
He would still have his reporting obligations under the Child Protection (Offenders Registration) Act 2000 (NSW) but this only requires him to report to police once a year or if his circumstances changed. The police could inspect Rohan's residence, without notice, to verify his personal information but that is restricted to two times in the first 12 months after his initial report and then once for every year after that.
It is obvious that such a regime is not adequate to manage Rohan's risks.
There is no Guardianship Order in place for Rohan but even if there were, Ms Zipparo does not believe that this alone is sufficient to mitigate the risks of Rohan reoffending. Ms Fasanella and Ms Higgins from SDS also assessed Rohan's need for a Guardianship Order and/or appointment of a Trustee in April this year, and concluded that there was insufficient evidence to support such an application. Moreover, the support provided by Rohan's NDIS Plan, focuses on his treatment, not his supervision. It is also clear from Ms Zipparo's reports that Rohan's risks cannot be managed under the involuntary patient regime as he does not have a "mental condition" or "mental illness" and is not "a mentally ill person" as defined in the Mental Health Act. It follows in accordance with Ms Zipparo's views that there are no other "less restrictive" means under cl 2(1)(b) of the Act available to manage Rohan's risks as he requires 24 hour supervision to protect children in the community from his high risk of sexual reoffending. It also follows that the only appropriate means of managing his risk is to extend his status as a forensic patient. The making of an extension order does not restrict the Tribunal's ability to grant him conditional release to live in a supervised facility in the community in the future should such an application be made on his behalf.

Conclusion

All of the matters referred to above, and particularly the repeated and serious nature of Rohan's offending, the chronic nature of his intellectual disability, his refusal to participate in Sexual Offending Programs and his lack of insight into his offending are relevant to the question of the safety of the community which is one of the primary objects of the Act if he were released from custody without the ongoing supervision of the Tribunal.
It follows that I am satisfied that the evidence if proved would meet the test in cl 2 of Schedule 1 of the Act and justify the making of an extension order.
I therefore make the following orders: 1. By way of interlocutory relief, an order pursuant to cl 6(5) of Sch 1 to the Act: 1. appointing two qualified psychiatrists, registered psychologists or medical practitioners (or any combination of two such persons) to conduct separate examinations of Rohan/the defendant and to furnish reports to the Supreme Court on the results of those examinations by a date to be fixed by the Court; and 2. directing the defendant to attend those examinations. 1. By way of further interim relief, an order pursuant to cls 10 and 11 of Sch 1 of the Act, that the defendant be subject to an interim order for the extension of his status as a forensic patient commencing from midnight on 1 December 2020 for a period of three months until 1 March 2021.

I certify that this and the 40 preceding pages are a true copy of the reasons for judgment herein of the Honourable Justice Hoeben, Chief Judge at Common Law. Morna Lynch Associate Date: 17 November 2020 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: 17 November 2020

Mental Health (Forensics Provisions) Act 1990(NSW)

Mental Health (Forensic Provisions) Act 1990(NSW)

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