Attorney-General for New South Wales v Williams

Legal principles

1. The MHCIFP Act came into force on 27 March 2021. Section 167(1) of the Act repealed the Mental Health (Forensic Provisions) Act 1990 (NSW) ("the former Act"). Clauses 121-144 of Sch 1 to the former Act contained relevantly equivalent provisions to those now contained in Pt 6 of the MHCIFP Act. The principles governing the equivalent provisions in the former Act remain relevant and applicable to Pt 6 of the MHCIFP Act: Attorney General for New South Wales v Mulipola (Final) [2021] NSWSC 1041 at [19]. In addition, assistance may be gained from authorities on applications made under the Crimes (High Risk Offenders) Act 2006 (NSW) (the CHROA): Attorney General for the State of New South Wales v Boyce BHT Jennifer Thompson [2017] NSWSC 144 at [9].
2. Section 122 of the MHCIFP Act provides that a forensic patient can be made the subject of an extension order under Pt 6 of the Act if and only if this Court is satisfied to a high degree of probability that the forensic patient poses an unacceptable risk of causing serious harm to others if the patient ceases to be a forensic patient, and the risk cannot be adequately managed by other less restrictive means. The term "serious harm" is not defined in the MHCIFP Act, but its meaning was discussed by White J (as his Honour then was) in Re J (No. 2) [2011] NSWSC 1224 in the context of s 14 of the Mental Health Act 2007 (NSW). What constitutes serious harm is broader than what is defined in the CHROA as a "serious sex offence" or a "serious violence offence": Attorney-General of New South Wales v Kereopa [2017] NSWSC 411 at [12].
3. Section 125 sets out the requirements for supporting documentation which must accompany an application, and that documentation must include a report prepared by a qualified psychiatrist, registered psychologist or registered medical practitioner. That report must be one which assesses the risk of the forensic patient causing serious harm to others, and which 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.
4. Section 130 provides for the making of an interim extension order if it appears that the limiting term to which the forensic patient is subject will expire before the proceedings are determined and, if the Court is of the view that the matters alleged in the supporting documentation would, if proved, justify the making of an extension order.
5. Section 126 provides that if, following the preliminary hearing, the Court is satisfied that the matters alleged in the supporting documentation would, if proved, justify the making of an extension order, the Court must make orders appointing two qualified psychiatrists, or two registered psychologists, or two registered medical practitioners, or any combination of two such persons, to conduct separate examinations of the forensic patient and provide reports to the Court on the results of those examinations, and directing the forensic patient to attend those examinations.
6. Section 127(2) sets out the matters to which regard must be had by the Court, in addition to any other matter the Court considers relevant.
7. The task of the Court at the preliminary stage for an interim extension order is well known from the authorities; it is similar to the prima facie test applied by magistrates in committal proceedings: Attorney-General for the State of New South Wales v Tillman [2007] NSWCA 119; Attorney-General for the State of New South Wales v Haytar [2007] NSWCA 993 and State of New South Wales v Thomas (Preliminary) [2011] NSWSC 118 at [11].

The index offence

1. On 21 September 2018, the defendant was charged with the offence of aggravated breaking and entering and committing a serious indictable offence, namely larceny, knowing there was a person in the place where the offence was committed, contrary to s 112(2) of the Crimes Act 1900 (NSW). At about 6.00pm on 20 September 2018 the defendant climbed onto the balcony of an apartment at Banora Point and entered the apartment by opening a glass sliding door. The 76 year old victim was in the kitchen talking on the phone.
2. The defendant walked into the victim's bedroom, searched her drawers, and stole a wooden jewellery box containing all of the victim's jewellery, as well as her handbag and wallet. The defendant's fingerprints were found on the balcony and on a tin in the victim's bedroom. The following morning police attended at premises where the defendant was staying, and found various items of the stolen property including the jewellery and the jewellery box. After initially denying committing the offence the defendant admitted stealing the items, saying that he was a "bit smashed" on "weed" on the night.
3. On 28 February 2020, his Honour Judge McLennan SC found the defendant unfit to be tried for the offence.
4. On 18 March 2021, following a special hearing, Judge McLennan returned a verdict pursuant to s 22(1)(c) of the Mental Health (Forensic Provisions) Act, that the accused committed the offence charged in the indictment.
5. On 7 May 2021 Judge McLennan imposed a limiting term of two years and five months commencing 6 June 2019 and expiring 5 November 2021.
6. The defendant does not oppose an interim extension order, nor the appointment of the qualified experts to examine the defendant and furnish reports. Nevertheless, the Court must be satisfied that the matters alleged in the supporting documentation would, if proved, justify the making of an extension order, before an interim extension order can be imposed.

The defendant's background

1. The defendant was born in Lismore on 9 March 1995 and is now aged 26 years. He is the youngest of three children born to his parents' union. He has three older half siblings from his mother's previous relationships. His parents separated when he was young. His parents drank heavily and used cannabis. He was exposed to violence in his childhood, which included his father being violent to his mother on occasions.
2. He attended the local primary school and the local high school up to year 7 (according to Professor Greenburg) or year 8 (according to the psychologist Kathryn Wakely). He had a history of learning difficulties, consistent with an intellectual disability, including broad deficits in reading, writing and maths. His literacy skills were poor at school and remain poor. He said that he stopped attending school because he had trouble concentrating, focusing and sitting still.
3. Whilst he spent time at a boys' home he completed short courses in bricklaying and cementing. He has never had formal employment, and appears only to have been in receipt of social security.
4. He has never had a girlfriend or sustained an intimate relationship until 2020, when he formed a relationship with a woman called Breana Toohey. They have now been together for about 12 months.
5. The defendant claimed a positive relationship with his mother, and is close to his grandfather who he described as being like a father figure. He does not like his father, has a poor relationship with him, and does not see him regularly.
6. He has never been diagnosed with a mental illness, nor been admitted to a psychiatric unit at a hospital.

Drug and alcohol use

1. The defendant gave inconsistent accounts of his drug and alcohol use to various psychiatrists and psychologists.
2. He was assessed by the psychologist Kathryn Wakely on 30 October 2017. He told Ms Wakely that he started smoking cannabis at the age of 12 and was using it on a daily basis from the age of 14. He told her that he was using cannabis daily since that time.
3. He told her that he started consuming alcohol at the age of 15 and this increased in frequency by the age of 17. He continued to engage in a binge pattern of abuse, consuming large amounts for several days at a time until he reached 20 years of age when he stopped consuming it all together. He told Ms Wakely that he began using crystal methamphetamine at the age of 21, and this became a daily occurrence until his incarceration, apparently for the offence of assault occasioning actual bodily harm for which he was sentenced on 7 November 2017.
4. He was assessed by the psychologist Dr Sally McSwiggan on 19 November 2019 specifically to ascertain his fitness to be tried for the index offence. He told Dr McSwiggan that he used cannabis and alcohol from the age of 13 years, and that for the prior three years he had increasingly used methamphetamine by injection.
5. He was examined by Professor David Greenburg on 5 February 2020 at the behest of the Office of the DPP, to assess his fitness to be tried for the index offence, and to consider if a mental illness defence was available. He told Professor Greenburg that he started smoking cannabis at the age of 14 years and had been smoking it on a daily basis, up to seven grams per day, since that time. He told Professor Greenburg that he drank alcohol to the point of intoxication on three occasions but then ceased to drink it. He said that he commenced using ice at the age of 21 years, and used it intravenously since the age of 22. He said that experimented with cocaine, and in custody he regularly used intravenous buprenorphine.
6. He was examined by Dr Richard Furst in August 2021 for the purpose of the present proceedings. He told Dr Furst that he commenced using cannabis at the age of 16-17 years and started using ice from the age of 22 years. He denied to Dr Furst drinking alcohol to excess, saying that he was put off drinking by his parents' drinking.
7. These varying accounts suggest that little reliance can be placed on histories provided by the defendant. However, they do show a reasonably serious drug problem.

Criminal history

1. The defendant has an extensive criminal history. He was first convicted in April 2011 of break and enter a dwelling house with intent to steal in February 2010. For that offence he received a four months control order.
2. There were further similar offences in April, October and November 2010, 2011, 2012, 2013, 2015 and 2016. Interspersed with that type of offending, there have been serious motor vehicle offences, dishonesty offences, and an assault occasioning actual bodily harm in company in 2016, for which he was sentenced to 15 months' imprisonment.
3. A number of these offences were committed whilst the defendant was on parole or other conditional liberty. Whilst on parole for an offence of aggravated break and enter and commit an indictable offence in company, the defendant committed the offence of assault occasioning actual bodily harm on 23 October 2016, and a further offence of aggravated break enter and steal in company on 16 November 2016.
4. Whilst on bail for the index offence and on a Community Correction Order imposed on 9 April 2019 for four counts of dishonestly obtain property by deception, the defendant was charged with a number of offences: having goods in custody suspected of being stolen, and hindering police, both offences occurring on 30 April 2019; possessing an unregistered firearm, possessing an unauthorised pistol, possessing prohibited drugs, dealing with property suspected of being the proceeds of crime, possessing housebreaking implements, and committing a s 114 offence having previously been convicted of an offence against that section, all committed on 30 May 2019; drive while disqualified, and drive with illicit drug in his blood, committed on 11 August 2020.
5. In addition, while on bail for the index offence, the defendant was charged with possessing an unauthorised firearm on 17 October 2020, and being armed with intent to commit an indictable offence and robbery armed with an offensive weapon on 3 January 2021.
6. The defendant's offending shows a worrying increase in seriousness. Up until 2019, the offending had been mainly break and enters, drug, motor vehicle and fraud offences (the one exception being the assault occasioning actual bodily harm in 2016). However, more recent charges have involved firearms and armed robbery. I accept that a number of these charges have yet to be tried.
7. Since committing the index offence, he was granted bail on 9 April 2019, 6 May 2019, 29 April 2020, 21 May 2020, 11 August 2020, 13 October 2020 and 5 January 2021. On every occasion he breached bail by committing further offences.
8. The defendant also has numerous institutional conduct charges whilst in prison up to August 2021, which include sanctions for not obeying directions, fighting, and assaulting other inmates.

Psychological and psychiatric assessments

1. Psychometric testing by Ms Wakely assessed the defendant's Full Scale Intelligence score within the Lower Extreme Range. His score was equivalent to a percentile of less than 0.1%.
2. Dr McSwiggan assessed the defendant's functioning in the Extremely Low range of intelligence, saying that his results fell below 99% of peers in his age range. His General Ability score and his Perceptual Reasoning Index were both within the Extremely Low range. She noted that he was illiterate, and on a standardized test of spelling to dictation, he operated at a preschool level. His ability at mathematics was at a kindergarten level. She diagnosed him with an Intellectual Disability (Mild) and Substance Use.
3. Professor Greenburg agreed with Dr McSwiggan that the defendant had an Intellectual Disability (Mild), and a Substance Use Disorder. Professor Greenburg thought that he also suffered from Antisocial Personality Traits/Disorder.
4. Dr Furst considered that the defendant was not very insightful, reflective or remorseful in relation to his past offences or his personal deficits. Dr Furst considered that the defendant's criminal history generally suggested that drug use had been more of a problem than was acknowledged by the defendant when Dr Furst assessed him. Justice Health records indicated that the defendant was sharing needles whilst in prison.
5. Dr Furst considered that the defendant met criteria for a diagnosis of Intellectual Disability and a Substance Use Disorder. He considered that the defendant posed a risk of causing serious harm to others if he ceased being a forensic patient. The primary risk factors in relation to his potential to cause serious harm to others included an early onset of criminal offending, a consistent pattern of reoffending, previous violence, parole violations, bail breaches and community supervision in order violations, substance use disorder, intellectual disability, negative/pro-criminal peer associations, exposure to violence in the family home, parental drinking/alcoholism and drug addiction, lack of employment, lack of insight into his personal deficits, a pattern of escalating offending over recent years, immaturity and impulsivity.
6. Dr Furst said that a combination of those factors, coupled with the defendant's inability to learn from previous criminal sanctions and sentences, made it highly likely that he would continue to commit further crimes in the future, most likely associated with an escalation of violence, including the use of weapons, placing members of the community at risk of serious harm as a consequence of his criminal/offending tendencies. Dr Furst said that there were no indications that the defendant wants to and/or is committed to change or to rehabilitate himself.
7. Dr Furst considered that the defendant required ongoing management as a forensic patient. He considered there were no other less restrictive means available in all the circumstances, and having regard to the defendant's clinical profile and identified risks, to manage the defendant.
8. In relation to the risk of reoffending, Ms Wakely placed him within the High-Moderate range in November 2017. That assessment has been borne out by his level of offending since that time.
9. The defendant was also assessed by two psychologists at the Statewide Disability Services, for the purpose of a report to the Mental Health Review Tribunal in July 2021. On the Self-Appraisal Questionnaire the defendant was placed within the High-Moderate range for general and violent recidivism when compared to a group of offenders. He was also assessed on the Level of Service Inventory - Revised, and those results indicated medium risk/needs for general recidivism.

Consideration

1. Ms Caldwell of Counsel for the Attorney set out at length in her helpful written submissions all of the matters which she said demonstrated that the defendant posed an unacceptable risk of causing serious harm to others. In her oral submissions, she highlighted six principal factors. These were the defendant's history of offending; his lack of remorse and insight into the impact of his offending; his chronic and severe substance use disorder; his repeated breaches of bail, parole and other conditional liberty, together with his institutional misconduct; his assessed risk of recidivism; his poor prospects of rehabilitation. Reference was made to the fact that Judge McLennan had said, when imposing the limiting term, that it was impossible for him to make a positive finding about prospects of rehabilitation, given the defendant's consistent offending over eight years.
2. The documentation provides support for all of these matters. It shows, in particular, that the defendant has an intellectual disability, poor insight, serious substance abuse issues, an extensive criminal history including breaches of various forms of conditional liberty, and a significant risk of recidivism. These matters are capable of showing to a high degree of probability that the defendant poses an unacceptable risk of causing serious harm to others if his status as a forensic patient is not extended.
3. Dr Furst sets out the reasons why no less restrictive means are available to manage the defendant. I accept those reasons. Ms Alderton of counsel for the defendant frankly, and quite properly, accepted that it is hard to see what other means are available in the present circumstances, where the defendant is charged with a number of further offences.
4. In those circumstances an interim extension order should be made.
5. I make the following orders:
6. I order that the defendant's status as a forensic patient be extended from midnight on 5 November 2021 for a period of three months.
7. I order that two qualified psychiatrists or two registered psychologists, or a combination of both, be appointed to conduct separate examinations of the defendant, and to furnish reports to the Court on the results of those examinations.
8. I order that the defendant attend the examinations referred to in order (2).
9. The Court appointed experts are to submit expert reports to the Supreme Court by 5pm on Friday, 10 December 2021.
10. The plaintiff is to file and serve any evidence and submissions for the final hearing by 5pm on Tuesday, 22 December 2021.
11. The defendant is to file and serve any evidence and submissions for the final hearing by 5pm on Friday, 21 January 2022.
12. The plaintiff is to file and serve any updating evidence and submissions in reply by 5pm on Tuesday, 25 January 2022.
13. The parties are to notify one another of any witnesses they require for cross-examination at the final hearing by 5pm on Tuesday, 25 January 2022.
14. The plaintiff is to deliver a working folder to the chambers of the Judge allocated to the final hearing by 4pm on Wednesday, 26 January 2022.
15. The matter is listed for final hearing on Friday, 28 January 2022.
16. An order pursuant to s. 77(1) of the Crimes (Administration of Sentences) Act 1999 that the defendant be required to attend the final hearing on 28 January 2022, by way of audio-visual link.

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 October 2021