Attorney General for New South Wales v Wright

Supreme Court of NSW|2022-04-26|Before: Wright J

Solicitors: Crown Solicitor for New South Wales (Plaintiff) Legal Aid Commission of New South Wales (Defendant) File Number(s): 2022/077954

Judgment

By a summons filed on 17 March 2022, the Attorney General for New South Wales, the plaintiff, sought orders under the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW) (MHCIFP Act), in relation to the extension of the status of defendant, Mr Matthew Wright, as a forensic patient. Mr Wright appeared by his tutor, Dr Katherine Johnson.
The orders sought included interim and ancillary relief by way of: 1. an interim extension order for three months, under ss 130 and 131 of the MHCIFP Act; and 2. an order for examinations, under s 126(5) of that Act.
The matter came before the Court on 26 April 2022 for a preliminary hearing as to whether those interim and ancillary orders should be made.

Prerequisites for the making of an application for an extension order

It can be noted at this point that there was also no dispute that the prerequisites for the making of an application for an extension order were satisfied in the present case. In particular, it was accepted that: 1. the defendant is a forensic patient who is the subject of a limiting term, for the purposes of s 124(1) of the MHCIFP Act; 2. the application was supported by the relevant documentation and the report or reports, as referred to in s 125(a) and (b); 3. the requirements of s 126(1), (2) and (3) had been complied with; and 4. the existing limiting term to which the defendant is subject will expire before the proceedings are determined, within the meaning of s 130(a).

The preliminary hearing

The principal issue at the preliminary hearing on 26 April 2022 was whether the Court was satisfied that "the matters alleged in the supporting documentation would, if proved, justify the making of an extension order": ss 126(5) and 130(b) of the MHCIFP Act. If the Court is so satisfied, this has two consequences: 1. under s 126(5), the Court must make orders appointing two qualified psychiatrists, two registered psychologists, or two registered medical practitioners, or any combination of two such persons, to conduct separate examinations of the defendant and to furnish reports to the Court on the results of those examinations; and 2. under ss 130(b) and 131, the Court may make an interim extension order for up to three months, if the limiting term to which the defendant is subject will expire before the substantive proceedings are determined.

Relevant principles concerning the making of examination orders and an interim extension order

The statutory provisions concerning preliminary hearings and interim orders under the MHCIFP Act are essentially the same as the previous provisions found s 54A and Sch 1 of in the Mental Health (Forensic Provisions) Act 1990 (NSW) (MHFP Act) and do not differ in presently material respects from the provisions in the Crimes (High Risk Offenders) Act 2006 (NSW) (CHRO Act) and cognate legislation concerning extended and interim supervision orders. Consequently, the authorities concerning the corresponding provisions of the MHFP Act and the CHRO Act are of substantial assistance in applying the provisions of the MHCIFP Act. Nonetheless, the different circumstances in which the MHCIFP Act operates and the different legislative regime which applies to forensic patients as opposed to high risk offenders must always be borne in mind.
In considering the application of ss 126(5) and 130(b) of the MHCIFP Act in an application for interim and ancillary orders, the Court is required to address the question of whether "the matters alleged in the supporting documentation would, if proved, justify the making of an extension order". Thus, it is necessary: to identify the "supporting documentation"; to identify what matters are alleged in that documentation; and to determine, on the assumption that those matters are proved, whether they would "justify" the making of an order extending the defendant's status as a forensic patient.
The words "supporting documentation" in ss 126(5) and 130(b) in both cases clearly refer back to the "documentation" mentioned in s 125. That latter section states, "[a]n application for an extension order [by the Attorney General] must be supported by documentation" that: 1. addresses each of the matters in referred to in s 127(2), to the extent relevant; and 2. includes a report from a psychiatrist, psychologist or medical practitioner assessing the risk of the forensic patient causing serious harm to others and the need for ongoing management and why the risk cannot be adequately managed by other less restrictive means.
Thus, the "supporting documentation" is to be understood as referring to the documentation provided by the Attorney General in support of his application and does not include evidence provided by the defendant in opposition to the application for an interim order.
The matters alleged in the supporting documentation, which are to be assumed to be proved for the purposes of ss 126(5) and 130(b), are the factual matters and the opinions on matters of fact set out in that documentation: Attorney General for New South Wales v Kapeen [2017] NSWSC 226 at [15] (Beech-Jones J).
The general nature of the task to be undertaken for the purposes of ss 126(5) and 130(b) was considered by the Court of Appeal in relation to similar provisions in earlier high risk offender legislation in Attorney General for New South Wales v Tillman [2007] NSWCA 119 (Tillman). Mason P, Santow and Tobias JJA said at [98]: "The task assigned by s16(1)(b) [corresponding to s 130(b) of the MHCIFP Act] is for the Court to look at what is alleged in the supporting documentation to see whether it would, if proved, justify the making of either a continuing detention order or extended supervision order (s16(1)(b)). In determining whether the power to grant an interim order is enlivened, the Court is not involved in weighing that documentation or predicting the ultimate result. The power is enlivened if the supporting documentation would, if proved, justify the making of either category of final order bearing in mind the elevated standard of proof stated in ss17(2) and (3) [corresponding to s 122(1)]. That threshold question is to be resolved without considering what evidence might be called by the offender at the final hearing. Indeed, it is to be considered without taking into account the evidence (if any) called by the offender at the interim hearing: such evidence may go to (relevant) discretionary matters, but would not cast light upon what is alleged in the Attorney General's supporting documentation." (emphasis in original)
This approach is equally applicable in the present case. Accordingly, my task is not to weigh or assess the matters alleged in the documentation or to attempt to predict what would be the result on the final hearing of the matter. I am not required to consider what evidence might be called by the defendant at the final hearing or the evidence called by the defendant in relation to whether the discretion to make an interim extension order under s 130 should be exercised, if the power to make such an order is enlivened.
Whether the making of an extension order would be "justified" depends, in part, upon s 122, which specifies when an extension order may be made. It also depends on the proper construction of "justify" in ss 126(5) and 130.
Section 122 of the MHCIFP Act establishes that an extension order may be made if, and only if, the Court is satisfied to a high degree of probability that: 1. the defendant poses an unacceptable risk of causing serious harm to others if he ceases being a forensic patient; and 2. the risk cannot be adequately managed by other less restrictive means.
It is well established that the expression "high degree of probability" indicates, in this context, that the existence of the risk in question must be proved to a higher degree than the normal civil standard of proof of "more probable than not", but does not have to be proved to the criminal standard of "beyond reasonable doubt": Cornwall v Attorney General for New South Wales [2007] NSWCA 374 at [21]; State of New South Wales v Hackett (Preliminary) [2022] NSWSC 417 at [80] (N Adams J).
Furthermore, in relation to the requirements of s 122(1), it is to be borne in mind that it is not necessary for the Court to be satisfied that the risk of a person causing serious harm to others is more likely than not, in order to determine that the risk posed by the person is unacceptable: s 122(2) of the MHCIFP Act.
The "risk of causing serious harm to others" referred to in s 122(1)(a) involves consideration of both physical and psychological harm: Attorney General of New South Wales v Kereopa (No. 2) [2017] NSWSC 928 (Kereopa (No 2)) at [16] (R A Hulme J). As a matter of construction, whether such harm is "serious" within the meaning of s 122(1) will depend on whether it is such harm as should attract the operation of provisions of the MHCIFP Act given the objects, scope and terms of Pts 5 and 6 of that Act. In this context, it has been held in relation to physical harm, that "serious harm" does not require the harm to amount to "grievous bodily harm", but it must be something more than would satisfy the minimum threshold for "actual bodily harm", under the criminal law: Attorney General for New South Wales v Randall (Final) [2021] NSWSC 275 at [33] (Johnson J). In that case, it was noted that the threshold for "actual bodily harm" is relatively low and injury need not be permanent. It must, however, be more than merely transient or trifling, with bruises and scratches to a victim being typical examples of injuries which constitute "actual bodily harm".
The issue of whether the risk of causing serious harm to others is "unacceptable" within the meaning of s 122(1)(a) is to be judged according to the ordinary or everyday meaning of that term. The right of a person to his or her personal liberty at the expiry of a limiting term is not a relevant consideration in the determination of whether the person poses an unacceptable risk: Lynn v State of New South Wales (2016) 91 NSWLR 636; [2016] NSWCA 57 (Lynn) at [44] (Beazley P), [127] (Basten JA) and [148] (Gleeson JA); Attorney-General for the State of New South Wales v McGuire by his tutor Thompson [2019] NSWSC 76 at [24] (Wright J).
The nature and extent of the risk to the community is 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 and is to be based on an absence of protective measures, and the assessment of the risk should involve, to the extent that the evidence permits, a comparison with the background level of risk to the community from violent offenders: Lynn at [126].
Consideration of whether the risk can be adequately managed by other less restrictive means, for the purposes of s 122(1)(b) involves an assessment of: 1. whether the means proposed are less restrictive; and 2. whether the less restrictive means adequately manage the risk.
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] (Adamson J); Attorney General for New South Wales v Randall (Final) [2021] NSWSC 275 at [73] (Johnson J).
The note to s 122 of the MHCIFP 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."
In addition to being involuntarily detained or treated by way of a community treatment order, under the Mental Health Act 2007 (NSW), another means of managing the risk posed by forensic patient might be a Guardianship order made by the Civil and Administrative Tribunal of New South Wales under the Guardianship Act 1987 (NSW).
Garling J considered the meaning of "adequately managed" in Attorney-General of NSW v McGuire (No.2) [2014] NSWSC 288 at [63]-[64]: "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. The notion that mentally ill individuals ought receive their treatment in the community is well recognised by the community and is entrenched in the [legislation]. However, the position is novel with respect to a forensic patient who is not mentally ill, or mentally disordered, but as is the case here, a person with an intellectual disability."
In making an assessment under s 122(1), the Court must have regard to the matters listed in s 127(2)(a) to (i) of the MHCIFP Act.
The proper construction of "justify" in ss 126(5) and 130(b) is informed by consideration of what has been held in the context of high risk offender legislation where the same wording and structure are used in relation to the making of interim orders. In that context, it has been said that the words "would … justify the making" of a final order of the relevant type are to be construed as imposing a lower standard than that which applies to the making of the final order itself: State of New South Wales v Naaman (No 2) [2018] NSWCA 328 at [17] (Basten, Macfarlan and Leeming JJA). Given their function in determining whether an order for the examination of the defendant or a short-term interim order should be made, those words are properly construed as only requiring the Court to be satisfied that the making of a final order would be justified, in the sense of being reasonably open, in the light of the matters alleged in the supporting documentation, assuming those matters are proved: State of New South Wales v Sturgeon [2019] NSWSC 559 at [6] (Garling J); State of New South Wales v BP (Preliminary) [2019] NSWSC 699 at [59] (Wright J).

Supporting documentation

The "supporting documentation" in this case included: 1. the affidavit of David Yang affirmed on 17 March 2022 and the documents in exhibit DY-1 to that affidavit including: 1. the defendant's criminal history and documents relating to his previous offending including the index offences; 2. orders and reasons of the Mental Health Review Tribunal (MHRT) relating to the defendant; 3. psychiatric and psychological reports including the reports of Dr Callum Smith, forensic psychiatrist, of 13 December 2021, 13 February 2022 and 27 February 2022, provided pursuant to s 125(b) of the MHCIFP Act; 4. documents relating to the defendant's parole for previous offending; and 5. Corrective Services documents, Justice Health notes and OIMS notes; 1. the affidavit of David Yang affirmed 21 April 2022 annexing a report prepared for the MHRT by Dr Matthew Gullotta, psychologist, in relation to the defendant.
The defendant did not adduce any substantive evidence in relation to this application.
Although in considering this application for an interim extension order and for examinations, I was required by ss 126(5) and 130 of the MHCIFP Act to proceed on the assumption that the matters alleged in the Attorney General's supporting documentation were proved, I did permit Mr Spohr, solicitor, who appeared for the defendant to cross-examine Dr Smith on topics relevant to whether the discretion to make an interim extension order should be exercised, if the power to do so was enlivened.
Before turning to consider the matters set out in s 127(2), I shall first deal with the defendant's background and previous offending, including the index offences, on the basis that the matters alleged in the supporting documentation are proved.

The defendant's background and offending prior to the index offences

The defendant was born in Gosford in 1994 and has a number of half siblings. He lived with his parents on the Central Coast until they separated when he was about two years old. He subsequently moved to live with his father and grandmother. His mother, who had a history of substance abuse, remained on the Central Coast and died from a heroin overdose when the defendant was about 16 or 17 years old. The defendant also described a history of physical abuse from his father.
The defendant reported attending a number of schools and said that he had been diagnosed with dyslexia and was illiterate. Justice Health records indicate he was expelled from school in year seven but returned and finished year 10. He said he was awarded a year 10 certificate "on attendance only".
The defendant reported commencing to smoke cannabis when he was aged seven and daily cannabis use from eight years of age. This apparently continued until he was 10 or 11 when he "started to schiz out, [and] got real paranoid". He also said that at the age of 16 he was using methamphetamine, or ice, "as often as I could" and "a bit of heroin".
After school, the defendant said he obtained casual employment including lawn mowing and work as a labourer but found it difficult to stick to anything for a prolonged period.
The defendant's offending commenced in late 2012 and early 2013, when he was 18 years old, with what appear to be minor property and driving offences. In late 2013, the defendant was convicted of having custody of a knife in a public place and fined.
In July 2014, the defendant committed an offence of assault occasioning actual bodily harm when he and another person visited an acquaintance. When the other person refused to leave when requested by the acquaintance, the acquaintance grabbed the other person by the arm and the defendant stepped in and punched the acquaintance in the head several times with a closed fist before pushing him into the television. The melee continued and the defendant pushed the acquaintance into a glass cabinet in the kitchen causing the glass to shatter. While the acquaintance was recovering, the defendant attempted unsuccessfully to remove two wheels from the premises. The acquaintance suffered a bloodied mouth, a scratched nose, a cut to his left buttock, soreness to the right temple and soreness behind the left ear due to the assault. The defendant was fined and made subject to a section 9 bond for two years supervised by the New South Wales Probation Service with a condition that he attend programs as directed.
In early 2015, the defendant had custody of a knife in a public place. Later in 2015 there were offences of driving in a dangerous manner, resisting an officer in the execution of his duty and common assault in a domestic context which resulted eventually in the defendant being sentenced to imprisonment for 12 months with a non-parole period of six months. The common assault offending involved verbal abuse, throwing a can of drink at the victim, pulling the victim off a fence as she tried to get away and using his arm to wrap around the victim's neck while standing behind her and pulling the victim into a laneway while he held her in the chokehold. The defendant's offending continued in 2015 with a conviction for having custody of a knife in a public place and contravening an apprehended domestic violence order.
In January 2016, the defendant committed offences of intimidation and assault occasioning actual bodily harm. The defendant and the victim had been in a relationship and had a daughter together. By the time of the offending the relationship had ended. The magistrate found that the defendant punched the victim in the face and kicked her while she was on the ground, as a result of the defendant's jealousy about the victim being in another relationship. It was also found that the defendant made a statement to the victim about him either getting someone or coming back himself "to fix her up". The defendant was eventually sentenced to 14 months' imprisonment with a non-parole period of six months in respect of that offending.
In April 2017, the defendant committed offences of possessing a prohibited drug and destroying or damaging property in relation to which a section 9 bond was imposed. The bond included a condition that he obey all reasonable directions for counselling, educational development and drug and alcohol rehabilitation.
In September 2018, the defendant committed offences of possessing a prohibited drug and resisting officers in the execution of their duty. The latter involved the defendant throwing his body around, kicking out and rolling in an attempt to avoid restraint. It took five officers to restrain him. The defendant was sentenced to 10 months' imprisonment with a non-parole period of six months.

The index offences

The index offences in this case were dealt with on two separate occasions, after the defendant had been found by Bright DCJ on 1 May 2020 to be unfit to be tried: R v Wright [2020] NSWDC 162, and, on 13 August 2020 and 11 February 2021, the MHRT had determined that he would not become fit within 12 months.
First, between 8 and 16 March 2021, Harris DCJ conducted a special hearing in respect of a charge of assault with intent to rob with a dangerous weapon. At the conclusion of that hearing, it was found that, on the limited evidence available, the defendant had committed the offence. In his Honour's remarks when nominating a limiting term in respect of that offending, the circumstances of the offending, which occurred on 11 September 2018, were described as follows: "the victim …was walking home from work through streets in Wyoming when he came across the offender and a juvenile ZR, pushing a motorbike that would not start. The offender engaged the victim in conversation and asked to borrow his phone, which the victim agreed to and handed the phone to the offender. At about that time the offender produced an imitation firearm that appeared to be a real pistol. The offender threatened the victim with the pistol, pointing it near to his head and demanded the victim change the password on his phone. There was also a demand for the victim's money. The offender told ZR to go through the victim's backpack. At about this time the offender bumped the imitation firearm on the motorbike and the victim suspected that it may not have been real. The victim grabbed for the gun and a fight followed. During the fight, the offender punched and assaulted the victim causing bruising and cuts to various parts of the victim's body. During the assault the victim cried out for help on a number of occasions and those cries were heard by various witnesses living on the street. From the observations of the witnesses it was a serious assault. The offender and ZR then left the scene initially pursued by the victim who was asking for his phone back. The phone had been, in fact, been left back at the initial scene. … Not long after leaving the scene the offender called [a female] and arranged for her to collect him in her car at the speed camera near Dunbar Way. [The female] arrived and collected ZR and the offender, although the offender remained seated on the motorbike and held onto [her] car in order to leave the scene. [The female] then drove her car, pulling the offender and the motorbike along for a short period until they were noticed by police. The offender then fled from police. The replica pistol was found by police in [the female's] car. … … the offence was opportunistic, not planned and wholly unsophisticated. Ultimately there was nothing taken from the victim and the victim was not in possession of any item of significant value. … The offence involved sustained and considerable violence although perhaps by luck and not design, the victim was not seriously injured. He did suffer some injuries including bruising, cuts, and scratches and was vomiting after the assault ceased. The evidence of [one witness], a resident of the street in which the offence occurred, was that 'I thought that this guy was going to be beaten to death. It was so, so violent'. … In my view and having regard only to the objective features, the offence is to be assessed as falling somewhere in the mid-range of seriousness for offences of this type. …".
In relation to the defendant's progress while in custody, Harris DCJ said: "It appears that [the defendant] has been making some positive steps in custody at the Intensive Learning Centre where he has been enrolled since 17 October 2018, shortly after he went into custody. He has completed certificates in vocational training. His teacher writes in an email dated 20 April 2020, that he actively participates in his learning, valuing the opportunity to learn, and also assists with the running of the classes by cleaning, maintenance and any other duties for which the teachers require assistance. He participates in other activities including sports and gardening. These are all promising signs. However the [defendant's] custodial record reflects 13 infraction since he was a wreck stood and bail refused, the most recent being intimidation on 27 January this year. Six of those relate to the use or possession of drugs. It does remain to be seen whether [the defendant] can move forward once he is released. There is no doubt he requires intervention, treatment and assistance upon his release into the community. I remain guarded as to his prospects."
The limiting term nominated by Harris DCJ was, after allowing a discount of 25%, three years and four months, expiring on 16 April 2022.
Secondly, Norton SC DCJ conducted a special hearing at the end of which her Honour concluded that, on the limited evidence available, the defendant had committed two offences of aggravated breaking and entering. The circumstances of the offending were recorded in her Honour's remarks when nominating a limiting term made on 9 September 2021 as follows: "… Both offences occurred on 12 September 2018. SEQUENCE 1 At about 9:30am that morning [the first victim] was in the kitchen of her home at…, Wadalba when she heard a loud noise. She opened the door that leads from the kitchen to the garage and saw [the defendant] pushing up the garage door. She saw him try to start two motorbikes which were stored there. [She] called her son… and asked him to come home and on his advice called triple-0. [The son] arrived at the property very quickly and confronted [the defendant] whom he recognised. [The defendant] moved a motorbike from the garage to the driveway and attempted to start it but did not succeed and left without taking it or taking any further property. SEQUENCE 2 At about 9:45am [the second victim] was in the front yard of his home at… Wyong. [The defendant] broke into the garage of that home and confronted [the second victim] demanding ice. He removed two motorcycles from the garage but could not start them. [The defendant] was armed with a hammer which he waived and the hammer struck [the second victim] a number of times. As a result [the second victim] received bruises amounting to actual bodily harm. The injuries were relatively minor although [he] was required to go to hospital on 16 August 2018, four days after the incident. [The defendant] struggled with [the second victim] for some time over the possession of the bike before leaving the scene. It was obvious to those who witnessed the offences that [the defendant] was affected by drugs at the time of the offending."
The sequence 1 offence was found by her Honour to be "between low range and mid-range" in terms of the objective seriousness and the sequence 2 offence was found to be "just below mid-range".
In relation to the defendant's behaviour in custody, Norton SC DCJ noted: "The custodial record is as at 27 July 2021 showed a number of offences but nothing since April 2021. [The defendant's] behaviour in custody has been far from perfect up until April 2021. It is to his credit, however, that he has completed some courses in custody despite being on remand… … His indications to Dr Pulman [forensic psychologist] that he is anxious to engage in treatment and wishes to stay off drugs are also promising as is the circumstances there have been no punishment details since April this year."
Her Honour imposed, in effect, an aggregate limiting term of three years and two months, noting that she had allowed a discount of 25% in respect of the sequence 2 offending and 20% in respect of the sequence 1 offending. That limiting term is due to expire on 16 May 2022.

Relevant matters under s 127(2)

When determining whether to make an extension order, the Court must have regard to the matters identified in s 127(2) of the MHCIFP Act in addition to any other matters it considers relevant. I shall deal with each of those matters in turn.

Safety of the community - s 127(2)(a)

The concepts encapsulated by the expression "safety of the community" in s 127(2)(a) are informed by a consideration of other provisions of the MHCIFP Act. The object set out in s 69(a) and the test in s 122(1)(a) of the MHCIFP Act indicate that the safety of the community includes protection of members of the public generally as well as prevention of serious harm to other persons.
The defendant's commission of the index offences, and prior offences in a number of cases, involved the violent infliction of physical harm which was more than trivial and was significantly well above the minimum threshold for "actual bodily harm". The offending on 11 September 2018 appeared so violent to one witness that it was thought that the victim was going to be beaten to death. The fact that only relatively minor injuries were suffered was said to have occurred "by luck and not design". Similarly, the defendant's use of a hammer in the offending on the next day involved the potential for very serious injury and it was fortunate that serious injury did not actually occur. The index offending, unlike some of the earlier offending, did not involve only those with whom the defendant had some previous association.
In these circumstances and in light of the psychiatric and psychological assessments and reports referred to elsewhere in these reasons, the safety of the community requires, in the defendant's case, that effective steps be taken, at least in the short term, with a view to ensuring that the defendant: 1. remains abstinent from prohibited drugs; 2. is compliant with his medication; and 3. receives appropriate supervision and support in these regards and in relation to vocational training, employment and developing skills for managing everyday life.

Reports received from the persons appointed under s 126(5) - s 127(2)(b)

As this was a preliminary hearing, there were no such reports at this stage.

Reports provided under s 125(b) - s 127(2)(c)

The supporting documentation provided by the Attorney General in satisfaction of the requirement in s 125(b) included three reports of Dr Callum Smith, which have been mentioned above.
Dr Smith's reports allege the matters set out in the paragraphs which follow.
After reviewing the comprehensive documentation referred to in his report of 13 December 2021, Dr Smith diagnosed the defendant as suffering from: 1. complex post-traumatic stress disorder resulting from his experiences during his formative years including physical abuse, pre-birth exposure to drugs, poverty, neglect, drug abuse from a young age and emotional abuse; 2. substance use disorder reflecting his multiple and long-standing issues with prohibited substances over the years. It was noted that his apparent abstinence, since starting buprenorphine while in custody, represented progress in this regard but may only represent abatement due to external circumstances; 3. cognitive impairment based upon previous diagnoses of intellectual disability which were consistent with Dr Smith's clinical impression on interview; and 4. attention deficit hyperactivity disorder.
Dr Smith did not see any compelling evidence that the defendant had schizophrenia, a major depressive disorder or bipolar disorder. His understanding of these was that they were best understood as symptoms of psychosis in the presence of substance use that may indicate a substance induced psychotic disorder that is in remission. Dr Smith said that the importance of this was not to be minimised because studies established that a significant number of people diagnosed as "drug induced psychosis" progress to schizophrenia at follow-up over time and any re-emergence, or worsening, of the symptoms needed to be carefully monitored.
It was noted that the potential cognitive impairment, complex trauma and likely ADHD were all life long conditions. As to the substance abuse disorder, it was noted that prognoses could vary but relapse rates for crystal methamphetamine use were high and given the period and extent of his substance abuse, his disorder was likely to be a chronic condition in the defendant's case.
As to the likelihood of the defendant reoffending, Dr Smith opined: "if there is no provision of service to [the defendant] that is different (or more accurately, additional) to what he has previously been provided with, then it is likely that he will continue to conduct himself in the manner he has done previously, namely abuse drugs and commit crime to pay for it. Violence could be a feature of this. This risk may ameliorate if [the defendant] is treated assertively, with a plan based on the needs in the community, taking into account empirically established factors. The available evidence is that planning in this way reduces the risk of harm associated with misuse of drugs and reoffending."
Dr Smith was also of the view that the defendant did not at the time of his report suffer from a mental illness within the meaning of the Mental Health Act 2007 (NSW) nor did he qualify as a mentally ill person under that Act. The doctor continued: "As far as I can make out, the risk in [the defendant's case] largely comes from his use of illicit substances and the interaction of this with his significant cognitive impairment and a precarious social situation. The current management of this; enforced abstinence in a controlled environment and injectable buprenorphine - appears to be managing this to this extent, but additional input would be required to manage this in the community."
In relation to the question of whether the defendant posed a risk of causing serious harm to others if he ceased to be a forensic patient, Dr Smith said as follows: "Therefore, overall, the answer is yes, should he be released to the community without a robust plan in place then there is a significant risk of harm to other people. I would envision a brief period of stability, before likely relapse into drug use, which would likely lead to similar chaotic and dangerous behaviour that we saw before. The issue regarding an opinion as to whether the risk could be safely managed would depend on the plan. There is a significant gap between forensic patient status (a legal framework with significant attended follow-up requirements), and release to the community to live with his sister in the manner he did before. [The defendant] needs a formal, detailed, bespoke, and holistic management plan in order to manage his complex and intersecting needs when returning to the community. … He has a small amount of NDIS funding in place (which seems to be to help him decide on service providers, although even with this will be difficult for him due to his cognitive impairment.… Plans such as these take some time to develop and implement.…".
Addressing the issue of his recommendations for the least restrictive form of management of the defendant's risk of harm to others, Dr Smith indicated that: 1. his treatment for post-traumatic stress disorder should include appropriate medication in addition to psychological intervention, by way of a form of trauma focused talking therapy; 2. his long-standing substance abuse would make him a candidate for residential drug rehabilitation programs and his being on long-acting injectable buprenorphine meant that a transitional plan to the community which linked into the mental health plan and rehabilitation unit that he would be attending would need to be established; and 3. in the community, the defendant would need a significant amount of support around him that would be best provided through the NDIS and that he would likely need significantly more NDIS funding than the amount already allocated to him. This support would include occupational educational opportunities adapted to his level of cognitive functioning, stable housing and a structure around him to help manage his multiple and complex needs, and ongoing physical health follow-up.
Dr Smith was of the opinion that the defendant would be unlikely to be classified as an involuntary patient and similarly would be unlikely to qualify for a community treatment order, unless circumstances changed.
Although his cognitive impairment and his being illiterate, innumerate and unable to remember important dates might make him suitable to be managed under a financial management order there did not appear to be any aspects in relation to accepting medical or dental treatment which would need to be managed under a guardianship order.
Dr Smith's ultimate conclusion was as follows: "…[a]n extension of the forensic order should only be to put a plan that covers these aspects - and others - in place. Whilst I have outlined that he is 'high risk', as I have also stated above, risk is not static. If he is placed on a management plan to modify, support and treat him and it could be that he is manageable on such a lesser restrictive plan, and the risk and lowered and deemed acceptable, on this plan. The reality is that [the defendant] may not be compliant, but it is probable he will not be without a much more assertive treatment framework around him. … As I have outlined above, I do believe there could be a role for an extension of this patient's forensics status. I also believe that it is potentially possible for him to managed under less restrictive means. Any recommendation that the extension ought to be made would only be for a short period so that a formal bespoke plan to manage this person's needs can be generated, and then for it to be established that it is working, or not. My recommendation would be for a one-year extension."
In his second report dated 13 February 2022, Dr Smith clarified his opinion that there is a risk of "serious harm" if the defendant's forensic status is not extended. The doctor went on to explain that it is notable that the defendant had previously failed under community custodial management in the sense that he continued to behave in the same way and ended up arrested and re-incarcerated. In effect, Dr Smith was of the view that persons such as the defendant, who have complicated and intersecting needs, are best dealt with by continuing or extending their forensics status, at least initially, so as to allow a detailed, bespoke, management plan to be put in place to deal with the various risk factors and to ensure that the defendant does not return to previous behaviours which present a risk of serious harm as he transitions to the community.
Dr Smith's third report dated 27 February 2022 noted the progress that the defendant had made in decreasing markedly or stopping entirely his use of illicit substances. On that basis Dr Smith was of the view that his original suggestion of residential rehabilitation was unnecessary given his established abstinence but he would like to see some clear linking in to drug and alcohol services prior to release, not when being released. In particular, it was noted that the "window of concern" is always that shortly after discharge, when the highly containing structures of prison have been left behind.
The doctor explained the basis for his opinion as follows: "the pattern I have observed is that people in the initial period of release tend to avoid using; they are highly motivated and there is a lot of family support. What appears to happen is that as family are understandably busy, and time goes on without occupational or social activities, people tend to relapse back to drug use. The aim is to limit the risk as much as possible. What we are seeking to avoid is a person is released, there is some delay and engagement with the service and during that delay (or potentially even because of that delay) the person starts using. Having an already established person/ service to engage with is part of minimising this risk, although it is accepted it is the nature of services and addictions that there will be shortfalls in take-up. This is likely to be helped with by having a NDIS support worker, who can coordinate such things. In fact, this is one of the main reasons why NDIS coordinators are so crucial in such cases."
Dr Smith also was of the view that, in relation to management of the defendant's ADHD, it would be preferable if some form of psychiatric review were arranged prior to discharge. The doctor's ultimate conclusion was: "as I have stated above, I note the above planning and agree with it. It changes at least one view expressed in my report - that he needs to go to a residential rehabilitation facility. The plan for accommodation with his sister appears sufficient. Otherwise I suggested in the original report that although the risk is overall high, systemic management could be able to reduce and manage this risk. This appears to be in progress, so it may be the case that [the defendant] continues as a forensic patient for only a short period in the community."
In his written submissions, the defendant contended in substance that the reports of Dr Smith did not provide substantial support, even if the matters alleged were assumed to be true, for the conclusion that the making of an extension order would be justified. The three main reasons were said to be that: 1. Dr Smith "approached the question in part by starting with an unwarranted presumption (that extension is typically or ordinarily warranted)" rather than considering the defendant's specific position as required by the statute; 2. Dr Smith "applied an artificially-low standard of harm" in that he did not in his first report address the risk of serious harm; and 3. "many of the key 'opinions' offered by Dr Smith are in truth not within his training, study, or expertise, and are therefore inadmissible" and his risk assessment did not explain the significance of any of the identified factors to the question of "serious harm".
It was submitted that, taken together, these reasons meant that there was an insufficient evidentiary basis for the plaintiff's application.
Although Dr Smith did make some comments in a generalised form to the effect that persons such as the defendant, with complicated and intersecting needs, were best dealt with by continuing or extending their forensics status, Dr Smith's opinions were nonetheless specifically directed to the defendant's particular circumstances and were not addressing irrelevant issues.
In addition, while the first report from Dr Smith may not have expressly focused on the concept of "serious harm", his second report did so. I did not form the view that he addressed an artificially low standard of harm when his three reports are read as a whole.
Finally, I did not accept that Dr Smith's opinions were outside his specialised knowledge as a psychiatrist especially when he was addressing the risk posed by the defendant to others if he ceased to be a forensic patient and how that risk might be effectively addressed so as to render it acceptable if he was released into the community.
For these reasons, I did not accept the defendant's submission that the matters alleged in Dr Smith's report, assuming they were proved, did not provide significant support for the Attorney General's application.

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

A number of reports from psychiatrists, a clinical nurse consultant and psychologists were included in the supporting material provided by the Attorney General. There were a number of reports from 2015 and more recent reports including those of: 1. Dr Chew, psychiatrist, dated 5 November 2019 which included a diagnosis of bi-polar affective disorder. This appeared to be based solely on the defendant's self reporting of such a diagnosis and was not accepted by Dr Callum Smith for the reasons stated in his first report. Otherwise, Dr Chew's views were generally consistent with those of Dr Smith; 2. Dr Pulman, forensic psychologist, dated 30 March 2020 and 10 August 2021 whose opinions are, in my view, consistent with those of Dr Smith; 3. pyschologists prepared for and considered by the MHRT which did not contain information that called into question in any significant way Dr Smith's opinions; and 4. Dr Elliott, psychiatrist, dated 29 November 2021 prepared for and considered by the MHRT which also did not call into question any of Dr Smith's opinions.

Relevant orders or decisions made by the MHRT - s 127(2)(e)

On 13 August 2020, the MHRT reviewed the defendant and ordered that he be detained at a correctional centre for care and treatment. A further such order was made by the MHRT on 12 August 2021.
In November and December 2021, the MHRT reviewed the defendant and on 14 December 2021 made no change to the then current order.
The Court was informed that an application for the defendant's supervised release into the community was due to be heard by the MHRT on 6 May 2022.

Report of any government Department or agency responsible for the detention, care or treatment of the forensic patient - s 127(2)(f)

There were a number of reports and documents from Justice Health and Corrective Services NSW concerning the defendant. These were included in the material reviewed by Dr Smith and were taken into account in his reports. They did not contain material which in my view called into question, or was inconsistent to any significant extent with, Dr Smith's opinions.

The defendant's level of compliance with obligations while a forensic patient - s 127(2)(g)

As disclosed in the Corrective Services NSW records and documents, it appears that between April 2016 and April 2021, there were a number of incidents while the defendant has been in custody which have resulted in punishment. These are most clearly set out in the defendant's custodial history dated 10 February 2022. It appears that since April 2021, the defendant has not engaged in any conduct in the custodial setting which has attracted punishment.

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

The views of Harris DCJ and Norton SC DCJ, being the judges who nominated the limiting terms in respect of the defendant have been set out above when the index offending was dealt with.

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)

To the extent that there was any other significant information available as to the risk that the defendant would in the future cause serious harm to others, it did not appear to me to be at odds with the views expressed by Dr Smith.

Unacceptable risk

Assuming the matters alleged in the supporting documentation, which I have referred to or summarised above including when considering the matters to which s 127(2) directs attention, are proved, if the defendant ceases to be a forensic patient when his limiting term expires on 16 May 2022, he will not be subject to the supervision of the MHRT and would be likely to be in the community without the planning and support described by Dr Smith as being necessary to ensure, as far as possible, the defendant's continued abstinence from illicit drugs and participation in the opioid treatment program, his receipt of appropriate treatment and support in relation his ADHD and other mental and physical health issues, and his having sufficient support to manage his significant cognitive impairment and precarious social situation.
If this occurred, I am satisfied, assuming that the allegations as to the defendant's criminal history, the index offences, the circumstances surrounding those offences and the opinions of, and material reviewed by, Dr Smith and the other psychiatrists and psychologists who have assessed the defendant are proved, that it is well open to the Court to be satisfied to a high degree of probability that the defendant posed an unacceptable risk of causing serious harm to others if he ceased to be a forensic patient.
Further and in any event, it can be noted that Dr Smith was of the opinion in his supplementary report dated 13 February 2022 that "there is a risk of serious harm if [the defendant's] forensic status is not extended" on the basis that the risk could be managed by putting in place a comprehensive plan to address the defendant's complex needs but this would have to occur while he was still a forensic patient. Assuming these matters to be proved, it would follow that the Court would be satisfied to the requisite standard that the defendant posed an unacceptable risk of causing serious harm to others if he ceased to be a forensic patient when his limiting term expired.

Adequate management by other less restrictive means

On the same assumptions and having particular regard to the opinions of Dr Smith on what was required to manage, in an effective manner in the future, the defendant's behaviour given his cognitive impairment, substance abuse disorder, ADHD and other circumstances, I also concluded that it was clearly open to the Court to be satisfied to the requisite standard that the risk posed by the defendant could not be adequately managed by other less restrictive means in the short term.
Since he does not suffer from a relevant mental illness and is not a mentally ill person, the defendant could not be dealt with as an involuntary patient or have a community treatment order imposed, under the Mental Health Act.
Furthermore, although a guardianship order might allow decisions to be made as to the defendant's accommodation, treatment and similar matters and would be likely to be less restrictive than continuation of the defendant's status as a forensic patient, it would not be sufficient, in my view, adequately to manage the risk of serious harm to others that would be posed by the defendant if he ceased to be a forensic patient and was released into the community without a comprehensive, bespoke plan providing the level of supervision and support outlined by Dr Smith.

Would the making of an extension order be justified?

On the assumptions and for the reasons set out above, it appeared to me that the making of an extension order would be "justified", in the sense of being reasonably open to the Court in the circumstances of the present case having regard to the matters in s 122(a) and (b).
Consequently: 1. under s 126(5), the Court was required to make the examination orders sought by the Attorney General; and 2. under s 130(1), the Court's power to make an interim extension order was enlivened.

Should an interim extension order be made?

As I understood the defendant's position, it was in effect that: 1. since about April 2021 and while on the opioid treatment program he has been abstinent from prohibited drugs; and 2. if his status as a forensic patient is not extended, on the expiration of his limiting term: 1. he will have accommodation with, and support from, his sister; 2. he will have some NDIS funding available to provide required support; 3. he will be able to seek treatment initially from his general practitioner for his mental and physical health needs.
In these circumstances, it was said that the risk posed by the defendant will be adequately managed by those means so that, even if it was concluded that an extension order "would be justified", an interim extension order should not be made, as a discretionary matter in this case.
In light of Dr Smith's evidence, in particular, and the other circumstances identified in the supporting documentation more generally, however, I do not accept that the circumstances identified by the defendant are sufficient to lead me to refuse to exercise my discretion to make an interim extension order.
It appeared to me that the defendant's status as a forensic patient should be extended, on an interim basis, for three months, given: 1. the limited three month duration of the interim extension of the defendant's status as a forensic patient; 2. the likelihood that the level of support and supervision envisaged by Dr Smith would not be in place by the time the defendant's limiting term expired; 3. the protection of the community in the short term and in the longer term that would be likely to be achieved if the defendant's status as a forensic patient were extended for three months so as to allow the support and supervision envisaged by Dr Smith to be put in place; and 4. the risk posed by the defendant if he ceased to be a forensic patient without the support and supervision envisaged by Dr Smith because of his cognitive impairment, his prior offending, his mental health diagnoses and the other circumstances identified in more detail above.
I was confirmed in this view by Dr Smith's evidence in cross examination that, if the defendant were released into the community without the support and supervision by way of a comprehensive and bespoke plan, Dr Smith envisaged likely relapse into drug use within weeks rather than months. Relapsing into drug use would involve the concomitant likelihood of violent behaviour leading to a risk of serious harm to others due to the defendant's history of drug-related offending. Even if that risk were marginally less than 50%, as Dr Smith estimated, given the nature of the likely serious harm, it appeared to me that the risk was unacceptable.
As I understood the evidence, the comprehensive and bespoke plan envisaged by Dr Smith would not be in place for the defendant, if he were to be released into the community immediately at the end of his limiting term. Such a plan would involve: 1. NDIS support twice a week to ensure that he accessed occupational and vocational opportunities, completed required paperwork, was reminded to attend and was taken to appointments for his physical and mental health and drug and alcohol treatment; 2. drug and alcohol assessment and management by a general practitioner with referral to appropriate services as required and continuation on the opioid treatment program, such as injections of buprenorphine; 3. psychiatric assessment and management by a general practitioner with referral to appropriate an appropriate specialist for development of a treatment plan; 4. continuation on other medication for mental health and physical health issues; and 5. emergency support in case the defendant's sister becomes unable to provide required support or some other emergency or unforeseen circumstance arises.
Extending the defendant's status as a forensic patient for three months will allow: 1. the defendant to be examined under s 126(5) and reports to be prepared so that a final hearing in this matter can be conducted on a properly informed basis; 2. proper planning and implementation of the support and supervision as envisaged by Dr Smith to be undertaken; 3. consideration by the MHRT in the relatively near future of the nature and extent of support and supervision required in the defendant's case in order to ensure his safe and supported release into the community; and 4. evidence to be prepared and put before the Court concerning the planning and implementation of the support and supervision as envisaged by Dr Smith so that the Court can make a properly informed decision at a final hearing as to whether the risk posed by the defendant can be adequately managed by other less restrictive means than an extension of his status as a forensic patient, while at the same time ensuring that the community is protected from the risk of serious harm during that period of three months.
In the present case, it also appeared to me that there was potentially significant benefit for the defendant, as well as protection of the community, if his status as a forensic patient were extended by way of an interim order for three months so as to enable the steps outlined above to be taken. This was, in my view, another factor which weighed in favour of making the interim extension order having regard to the objects of the MHCIFP Act.
In oral submissions, Mr Ng of counsel, who appeared for the plaintiff, referred to the judgment of the Court of Appeal in Attorney General of New South Wales v WB [2020] NSWCA 7, and drew attention to the comment of Basten JA at [52] which indicated that if an interim extension order was not made and the defendant's limiting term expired with the consequence that he ceased to be a forensic patient, the Court could not make a final extension order after the expiration of the limiting term. In addition, in such a circumstance, the examination orders made under s 126(5) would serve no purpose. Mr Spohr did not contend to the contrary. This was a further consideration in favour of making an interim extension order in the present case.

Orders

For these reasons, the Court must make an examination order under s 126(5) of the MHCIFP Act and, in my view, it is appropriate in this case to make an order extending the defendant's status as a forensic patient for three months. In addition and having regard to the terms of s 127(3) of the MHCIFP Act, the Court is required to notify the MHRT of the making of the extension order.
Accordingly, the Court: 1. Makes an order pursuant to s 126(5) of the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW) that: 1. two qualified psychiatrists or registered psychologists or registered medical practitioners (or any combination of such persons), as agreed between the parties, are appointed to conduct separate examinations of the defendant and to furnish reports to the Supreme Court on the results of those examinations by a date agreed between the parties; and 2. the defendant is directed to attend those examinations. 1. Makes an order pursuant to ss 130 and 131 of the Mental Health and Cognitive Impairment Forensic Provisions Act, that the defendant is subject to an interim extension of his status as a forensic patient commencing from midnight at the end of 16 May 2022, for a period of 3 months. 2. Grants liberty to the parties to apply on two days' notice in relation to order (1) if the parties cannot reach agreement for the purposes of either paragraph of that order. 3. Directs the Registrar pursuant to s 127(3) of the Mental Health and Cognitive Impairment Forensic Provisions Act to inform the Mental Health Review Tribunal of the making of the extension order referred to in order (2) by providing to the Tribunal a copy of the orders and the judgment in this matter.

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: 05 May 2022

Mental Health (Forensic Provisions) Act 1990(NSW)

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Cases Cited (16)