Attorney General for New South Wales v Rohan

Background

1. The background to this application and of the defendant's history have been comprehensively summarised by both Wilson J and Wright J, and were helpfully distilled by the parties in a document entitled "Joint Statement of Agreed Facts" dated 6 May 2024, signed by the solicitors for the plaintiff and the defendant, and which formed part of the evidence in the proceedings. Those matters need not be repeated at any length.
2. The defendant is now 45 years old. He has been diagnosed with a mild intellectual disability and a paedophilic disorder. He was arrested on 2 June 2015 in relation to the index offending, which occurred between 2007 and 2009 in rural NSW. The victim was the defendant's niece who was between the ages of 7 and 9 at the time of the offending.
3. The defendant engaged in two other sets of sexual offending against people aged under 18 years. The first set occurred in NSW in 2010 and 2011 and concerned three indecent assaults of a person under the age of 10 and seven indecent assaults of a person under the age of 16. The victims were female. Despite occurring later than the index offending, these offences were reported and prosecuted earlier. The defendant was found to be unfit to be tried for these offences on 9 May 2012 by Coorey DCJ. At a special hearing on 10 December 2012, the defendant was found guilty on the limited evidence available. He was sentenced by Sides DCJ on 8 February 2013 to a cumulative limiting term of 2 years and 3 months, to expire on 27 January 2014. The Court of Criminal Appeal allowed the defendant's appeal and altered the limiting terms so that they concluded on 17 October 2013. The defendant was released from custody at the expiry of the limiting terms on 17 October 2013.
4. The second set of offences occurred in Victoria between 1994 and 1996, when the defendant was between 15 and 17 years of age. The male victim was between 10 and 16 years of age. The defendant was convicted of four offences (an indecent act with the victim and penetrating the victim's anus with his penis on two occasions, two years apart), and sentenced on 23 March 1998 to a 2 year community based order to undergo treatment.
5. Rohan was found unfit to be tried in relation to the index offending on 16 September 2016 by Charteris ADCJ. Following the sentence hearing before Hunt DCJ, the defendant was deemed a "forensic patient" pursuant to s 42 of the Mental Health (Forensic Provisions) Act 1990 (NSW). This legislation has since been repealed and replaced by the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 ("the MHCIFP Act").
6. As I have noted, this is the second application by the plaintiff for an extension of the defendant's status as a forensic patient. On 8 November 2023, Wilson J granted the interim relief in these proceedings.
7. On 17 April 2024, the Mental Health Review Tribunal ("MHRT") ordered that the defendant be conditionally released from custody. Reasons were delivered on 13 May 2024. The MHRT considered the proposed (onerous) supervision requirements that are to be instituted whilst the defendant is to be in the community and stated that he required one to one, line of sight supervision so that he could be managed in a successful transition to the community after an extended period of time in custody. He has a significant National Disability Insurance Scheme ("NDIS") funding package which will allow for the accommodation and supervision envisioned. The MHRT will review the defendant every six months to ensure that the defendant is abiding by the conditions of his release and that the transition is successful. The defendant now resides in Supported Independent Living ("SIL") accommodation with one to one supervision.

Evidence

1. Most of the evidence tendered in the final hearing was also tendered before Wilson J. It is set out in considerable detail in Rohan Preliminary. This material comprised a large number of documents annexed to the affidavits read in the proceedings, which included information about the defendant's criminal history, psychological, neuropsychological and psychiatric reports, his engagement with the NDIS and reports from Corrective Services. Also tendered at the final hearing were the reports of the court appointed experts, Dr Kerrie Eagle, psychiatrist, dated 7 April 2024 and 30 April 2024 and Dr Amanda White, neuropsychologist, dated 19 April 2024 and 26 April 2024. Neither expert was required by the parties to give evidence at the final hearing.

Legislative framework

1. Part 6 of the MHCIFP Act deals with the extension of a person's status as a forensic patient. Sections 121 and 122 provide for the making of such applications and the level of satisfaction that the Court must reach before making a forensic patient the subject of an extension order:- 121 Extension orders for forensic patients (1) The Supreme Court may, on application under Division 2, make an order for the extension of a person's status as a forensic patient. (2) An order made under this section is an extension order. 122 Forensic patients in respect of whom extension orders may be made (1) A forensic patient can be made the subject of an extension order as provided for by this Part if and only if the Supreme Court is satisfied to a high degree of probability that - (a) the forensic patient poses an unacceptable risk of causing serious harm to others if the patient ceases to be a forensic patient, and (b) the risk cannot be adequately managed by other less restrictive means. (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.
2. The phrase "high degree of probability" constitutes a standard of proof which is higher than the civil standard but lower than the criminal standard: State of New South Wales v Hayter (Final) [2020] NSWSC 1581 at [25] per Johnson J. That standard of satisfaction applies to both criteria in s 122(1)(a) and (b). The parties submit that on the evidence I would have no hesitation in being so satisfied.
3. The parties agree that the elements of ss 124-126 have been satisfied with respect to the plaintiff's application for an extension order. Those provisions provide:- 124 Application for extension order (1) An application for an extension order may be made in respect of a forensic patient only if the forensic patient is subject to - (a) a limiting term, or (b) an existing extension order. (2) An application in respect of a forensic patient may not be made more than 6 months before - (a) the end of the forensic patient's limiting term, or (b) the expiry of the existing extension order, as appropriate. 125 Requirements with respect to application An application for an extension order must be supported by documentation - (a) that addresses each of the matters referred to in section 127(2) (to the extent relevant to the application), and (b) that includes a report (prepared by a qualified psychiatrist, registered psychologist or registered medical practitioner) - (i) that assesses the risk of the forensic patient causing serious harm to others, and (ii) 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. 126 Pre-hearing procedures (1) An application under this Division for an extension order must be served on the forensic patient concerned within 2 business days after the application is filed in the Supreme Court or within any further time that the Supreme Court may allow. (2) The Minister applying for the extension order must notify the Tribunal as soon as practicable after making the application. (3) Subject to subsections (7)-(9), the Minister applying for the extension order must disclose to the forensic patient the documents, reports and other information that are relevant to the proceedings on the application (whether or not intended to be tendered in evidence) - (a) in the case of anything that is available when the application is made, as soon as practicable after the application is made, and (b) in the case of anything that subsequently becomes available, as soon as practicable after it becomes available. (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 any further time that the Supreme Court may allow. (5) If, following the preliminary hearing, the Supreme Court is satisfied that the matters alleged in the supporting documentation would, if proved, justify the making of an extension order, the Supreme Court must make orders - (a) appointing - (i) 2 qualified psychiatrists, or (ii) 2 registered psychologists, or (iii) 2 registered medical practitioners, or (iv) any combination of 2 persons referred to in subparagraphs (i)-(iii), to conduct separate examinations of the forensic patient and to give reports to the Supreme Court on the results of those examinations, and (b) directing the forensic patient to attend those examinations. (6) If, following the preliminary hearing, the Supreme Court 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) A forensic patient in respect of whom an application for an extension order has been made is, unless the Supreme Court otherwise determines, entitled to inspect or otherwise have access to any medical records in the possession of any person relating to the forensic patient. (8) A representative of the forensic patient is entitled, at any time before or during the proceedings on the application, to inspect or otherwise have access to any medical records in the possession of any person relating to the forensic patient. (9) Subject to any order or direction of the Supreme Court, in relation to an inspection under subsection (8) of, or other access under that subsection to, any medical record relating to a forensic patient - (a) if a medical practitioner warns the representative of the forensic patient that it may be harmful to communicate to the forensic patient, or any other person, specified information contained in those medical records, the representative is to have full and proper regard to that warning, and (b) the representative is not obliged to disclose to the forensic patient any information obtained by virtue of the inspection or other access.
4. The matters to which the Court must have regard when considering an application for an extension, in addition to any other matter considered relevant, are set out at s 127(2) of the MHCIFP Act.
5. Section 127 provides:- (1) The Supreme Court may determine an application under this Division for an extension order - (a) by making the order, or (b) by dismissing the application. (2) In determining whether or not to make an extension order, the Supreme Court must have regard to the following matters in addition to any other matter it considers relevant - (a) the safety of the community, (b) the reports received from the persons appointed under section 126(5) to conduct examinations of the forensic patient, (c) the report of the qualified psychiatrist, registered psychologist or registered medical practitioner provided under section 125(b), (d) any other report of a qualified psychiatrist, registered psychologist or registered medical practitioner provided in support of the application or by the forensic patient, (e) any order or decision made by the Tribunal with respect to the forensic patient that is relevant to the application, (f) any report of the Secretary of the Ministry of Health, the Commissioner of Corrective Services, the Secretary of the Department of Communities and Justice or any other government Department or agency responsible for the detention, care or treatment of the forensic patient, (g) the level of the forensic patient's compliance with any obligations to which the patient is or has been subject while a forensic patient (including while released from custody subject to conditions and while on leave of absence granted under this Act), (h) the views of the court that imposed the limiting term or existing extension order on the forensic patient at the time the limiting term or extension order was imposed, (i) any other information that is available as to the risk that the forensic patient will in future cause serious harm to others. (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.
6. I will now address the matters set out at s 127(2) of the MHCIFP Act.

The safety of the community - s 127(2)(a)

1. It is clear on the evidence before me, some of which is summarised below, that the defendant poses an unacceptable risk to the safety of the community - and in particular children in the community - if he ceases being a forensic patient. He has little, if any, insight into his offending which he continues to deny. It is possible that this is due to his intellectual disability.

The reports received from the person appointed under s 126(5) to conduct examinations of the forensic patient - s 127(2)(b)

Report of Dr Kerri Eagle, forensic psychiatrist, 7 April 2024

1. Dr Eagle conducted a psychiatric assessment of the defendant, in person, on 26 March 2024. Dr Eagle diagnosed the defendant with a mild intellectual disability and paedophilic disorder. Testing indicated a high index of paedophilic sexual arousal to children relative to adults. The defendant placed in the above average category for risk of reoffending. In Dr Eagle's opinion, the defendant requires supported accommodation, psychosocial support and monitoring and psychological interventions to minimise this risk.
2. Dr Eagle's opinion is that the defendant may benefit from testosterone lowering medication. However, he would need to consent to an assessment of the suitability of such treatment, and once living in the community, the defendant would require a guardian to be appointed given his lack of capacity to appreciate the risks and benefits of this treatment.
3. Ultimately, Dr Eagle considers that an extension of the defendant's status as a forensic patient is appropriate and would be the least restrictive (indeed only) regime to implement the necessary supports, restrictions and monitoring systems to manage his risk factors in the community.

Supplementary report of Dr Eagle, 30 April 2024

1. In this report, Dr Eagle confirmed that her opinions had not changed after reviewing the material that was tendered as exhibit 3 in the proceedings, being the documents that were before the MHRT on 11 April 2024 and which set out a detailed transition plan based on reports from the NDIS, Romilyn Villason psychologist of Statewide Disability Services ("SDS") dated 28 March 2024, Michelle Fung, psychologist, dated 25 March 2024, Mathew Gullotta, psychologist, dated 18 March 2024, and 2 April 2024, and a Community Safety Program ("CSP") transition plan dated 4 April 2024.

Report of Dr Amanda White, forensic psychologist, 19 April 2024

1. Dr White assessed the defendant in person on 27 March 2024. She also diagnosed the defendant with mild intellectual disability and paedophilic disorder and considered both to be significant risk factors with respect to reoffending.
2. After administering a suite of neuropsychological tests, Dr White found the defendant's IQ to be within the "extremely low" range, and that he has an above average loading of static risk factors and a high loading of dynamic risk factors. Accordingly, in her view the defendant requires a high level of case management, risk management and intervention and a high level of support in the community. Without 24-hour supervision and oversight as a forensic patient, Dr White is of the view that the defendant's risk of reoffending would be significantly elevated.
3. In Dr White's opinion, there are no less restrictive means to adequately address the defendant's risk in the community other than continuing his status as a forensic patient. Dr White considers a three-year extension to be appropriate.

Supplementary report of Dr White, 26 April 2024

1. Dr White also reviewed the material in exhibit 3 and confirmed that her opinions expressed in her primary report had not changed.

The report of the qualified psychiatrist, registered psychologist or registered medical practitioner provided under s 125(b)-s 127(2)(c)

1. The reports of Dr Andrew Ellis dated 28 July 2023, Svetlana Chekhourdina dated 17 August 2021 and Dr Sunita Misra dated 30 March 2022 were addressed by Wilson J in Rohan Preliminary at [14]-[17], which I do not repeat.

Any other reports provided in support of the application or by the forensic patient - s 127(2)(d)

1. A risk assessment report of Fatima Al-Sobai dated 11 July 2022 is summarised at [18]-[22] of Rohan Preliminary. An assessment of the defendant for the purposes of NDIS funding prepared by Amy Stinson, occupational therapist, is also set out by Wilson J at [21] of her Honour's judgment. A CSP report prepared by Caitlyn Rogl and James Wu of 29 September 2022, a specialist psychologist's report under the hand of Dr Sunita Misra and Romilyn Villason dated 30 September 2022, a report of Cynthia Pham and Michelle Fung of 27 January 2023 and a supplementary report of Amity Dickerson of 29 March 2023 are also included in the material before me and were before Wilson J, who summarised their conclusions at [21]-[22] of Rohan Preliminary. I have taken all of this material into account.

Supplementary Report to the Mental Health Review Tribunal prepared by Romilyn Villason, 28 March 2024

1. Ms Villason is a senior psychologist at SDS within Corrective Services NSW. Her report was prepared for the purposes of the hearing before the MHRT regarding the defendant's conditional release to the community on 11 April 2024.
2. Ms Villason notes that the defendant has been assessed as at above average risk of sexual reoffending. He is a "categorical denier" and is therefore ineligible for participation in sex offender programs. He has previously declined consent to be referred to any sex offender treatment program.
3. The defendant has been reported to be well regarded in custody and has not incurred any institutional misconduct charges during the many years he has spent in custody. He does not require assistance with self-care or hygiene. Ms Villason reported that engagement with SDS psychology services, participation in the CSP and a package of funding from the NDIS will assist the defendant in his transition to living as independently as possible in the community, including meeting the costs of living in SIL accommodation.

Comprehensive Behaviour Support Plan of Michelle Fung, 20 March 2024

1. Ms Fung is a psychologist and prepared this report in relation to the defendant's transition to living in the community. She identifies the defendant's behaviours of concern as social isolation and inappropriate sexual behaviour with minors. Ms Fung recommends that restrictive practices be put in place to ensure that the defendant is within arm's length of staff when in the community for at least the first six months of his return to the community. Ms Fung noted that the defendant's NDIS package included funding for his SIL accommodation.

Risk assessment reports of Matthew Gullota, 18 March 2024 and 2 April 2024

1. Mr Gullotta is a forensic psychologist who prepared two reports for the MHRT. In his opinion, the defendant's static and dynamic risk factors place him at an above average risk for sexual reoffending, which, in Mr Gullotta's opinion would most likely be opportunistic in nature. Mr Gullotta approved of the plan to transition the defendant into SIL.

Statewide Intellectual Disability Mental Health Outreach Service complex case consultation report of Dr James Smith and David Thompson, 4 April 2024

1. Dr Smith and Mr Thompson interviewed the defendant on 27 February 2024 for the purposes of their report. They assessed the defendant as having a mild to moderate intellectual disability. In their opinion, the defendant should reside in a locked SIL environment for at least 6-12 months, with at least one to one supervision whilst in the community.

Any order or decision of a Tribunal that is relevant to the application - s 127(2)(e)

1. As I have noted, the MHRT ordered the defendant's conditional release on 17 April 2024 into the supervision of the CSP. He now resides in SIL accommodation.

Any report of any government department responsible for the detention, care or treatment of the forensic patient - s 127(2)(f)

1. The defendant has been assessed by a variety of medical and other professionals since he entered custody in 2015. Their findings have been summarised in Rohan 2021, Rohan Preliminary and in this judgment.

The level of compliance by the forensic patient with any obligations subjected to while a forensic patient - s 127(2)(g)

1. The material discloses that the defendant was well-regarded in custody and worked in a senior position within Corrective Services Industries. He did not incur institutional misconduct charges. He denied the use of anti-libidinal medication.

The views of the court that imposed the limiting term and the existing extension order - s 127(2)(h)

1. Hunt DCJ stated that the defendant's offending which was "across many months, and on various occasions, including different kinds of serious sexual trespass against a young girl" was "objectively very serious" matters. However, he found that the majority of the offending fell at about the mid-range of objective seriousness. He found that one of the offences involving penetration was above the mid-range, given that it was accompanied by an act of violence, that the sexual intercourse went on for about 20 minutes and was described as being "hard and fast". He also found that the incident where the defendant touched his niece's vagina on the outside of her clothing when they were in the kitchen fell towards the lower end of objective seriousness.
2. Taking into account the defendant's mental condition, his Honour considered that incarceration would be more onerous for him, that he was a less appropriate vehicle for general deterrence, that his moral culpability was reduced and that specific deterrence, punishment and denunciation had less work to do in the sentencing exercise for that reason. On the other hand, his Honour also considered that given the defendant's condition was pervasive, and he seemed at least at the relevant time to not have benefitted from treatment, future dangerousness remained an issue because of the intractability of his mental condition. Judge Hunt considered that the defendant had a tendency to have a sexual interest in girls under the age of 11 and had a tendency to act on that sexual interest. With respect to the impact of the index offending on the victim, the defendant's niece told the court that the memories of the defendant's abuse of her haunt her in her sleep, and that fear has severely impacted her ability to form valuable relationships, destroyed her ability to develop a solid foundation of trust with anyone and left her terrified of intimacy. It had also caused her to hate her body and suffer from anxiety, depression and post-traumatic stress disorder, leading her to self-harm.
3. Justice Wright was satisfied that the three-year extension which he ordered was appropriate given the greatest risk of reoffending is during the first two years following release from custody. His Honour considered there to be clinical benefit, based upon the expert reports before him, in extending the defendant's forensic status to allow for a properly prepared and supported application for conditional release to be made: see Rohan 2021 at [89]-[90]. This has since occurred.

Any other information that is available as to the risk that the forensic patient will in future cause serious harm to others - s 127(2)(i)

1. The defendant has a significant package of funding from the NDIS for clinical support and SIL accommodation. It is anticipated that his reintegration into the community will be significantly assisted with the variety of supports that he will receive from that agency and state-based supports.

Parties' submissions

1. The parties agreed that the order sought by the plaintiff should be made. The defendant concedes that the statutory preconditions are met and that the conclusions of the court appointed experts support the making of an extension order. The defendant does not oppose a three-year extension order.

Consideration

1. Taking into account all of the evidence before me, I am satisfied to a high degree of probability that the defendant poses an unacceptable risk of causing serious harm in the form of sexual offending to others if he ceases to be a forensic patient. I am also satisfied to a high degree of probability that the risk cannot be adequately managed by other less restrictive means.
2. Having regard to the defendant's circumstances, in my opinion his status as a forensic patient should be extended. I agree with the parties that a period of three years is appropriate.
3. Accordingly, on 21 May 2024, I made the following orders: 1. Pursuant to ss 121, 127(1)(a) and 128 of the Mental Health and Cognitive Impairment Forensic Provisions Act 2020, that the defendant be subject to an order for the extension of his status as a forensic patient for a period of 3 years from 21 May 2024. 2. I direct the Registrar to notify the Mental Health Review Tribunal of these orders.

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: 28 May 2024