Attorney General for NSW v DB

Supreme Court of NSW|2023-03-03|Before: Rothman J

JUDGMENT

The Attorney for NSW (hereinafter "the Attorney" or "the plaintiff") filed a Summons on 2 August 2022 in which the Attorney sought a final order, pursuant to ss 121, 127 and 128 of the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW) (hereinafter "the Act") that the defendant, DB, be subject to an order for the extension of his status as a forensic patient for a period of 5 years from the date of the order. The defendant opposes the extension.

Factual History

The defendant is a 56-year-old man of Indigenous descent. He is one of six children who reportedly had a happy childhood but struggled at school and has a limited employment history. The documents disclosed that the defendant has a long history of schizophrenia, with at least 30 hospital admissions for psychiatric treatment since the age of 20.
The defendant has been in receipt of the disability support pension since that age. His condition is such that it interferes with the defendant's ability to sustain employment. His lifestyle has otherwise been transient as a result of polysubstance abuse. Between 2009 and 2011 his condition was managed with the assistance of Community Treatment Orders (hereinafter "CTO").
The condition under which the defendant suffers and has suffered will be discussed more fully in these reasons. He was diagnosed with "treatment-resistant schizophrenia", but some of these diagnoses predate his use of clozapine. The weight of the material indicates that when compliant with medication and treatment, the defendant has seen an improvement in his psychotic symptoms. However, the defendant has struggled with ongoing cooperation with care and abstaining from illicit drugs and alcohol, as a result of which he has suffered numerous relapses into severe mental illness symptoms.

Prior Criminal History

The defendant's criminal history is substantial, reflective of his significant engagement with the criminal justice system over his life. His first charges were laid in August of 1989 and related to common assault, assault occasioning actual bodily harm, and violent disorder. For the assault charges he was sentenced to an 18-month good behaviour bond and fined $500, and a further fine of $250 was applied for the violent disorder. He was later fined $500 and placed on a good behaviour bond for 3 years following a charge in January 1990 of indecent assault.
In 1992 the defendant was charged with malicious wounding, malicious destruction, and assault occasioning actual bodily harm, for which he was collectively sentenced to a fixed term of 6 months. This was his first prison sentence.
A common assault charge laid in March 1993 resulted in a sentence of 150 hours of community service. When the defendant reoffended resulting in charges in July 1993 for assault occasioning actual bodily harm, common assault, and acting contrary to the community service order, he was given a sentence of a fixed term for 6 months.
In 1996 the defendant was charged with two counts of having goods in custody, one count of wilful and obscene exposure, and two counts of possession of a forged prescription. He was issued various fines as a result. The defendant was fined again following a charge on 18 September 1999 for resisting an officer in the execution of duty.
In late 2000, the defendant was charged with common assault, with the charge subsequently dealt with pursuant to s 33 of the Act. Charges for damaging property with fire which were laid in December 2003 were also dealt with pursuant to the Act. There was a warrant executed in February 2005 related to breach of orders.

The Index Offences

The index offences requiring the Court's consideration are charges of aggravated sexual intercourse without consent of a child less than 14, indecent assault of a child less than 16, and wound with intent to cause grievous bodily harm (the index offences).
The circumstances of the offending are interrelated. In June 2018, the defendant was living in Taree. He had been living with his sister and her family but had recently moved into his own rental accommodation nearby. He has stated to various psychiatrists that around this time, he had ceased taking his antipsychotic medications and had been partaking in drugs and alcohol.
Also living in Taree was the defendant's brother. The defendant and his brother reportedly have a difficult relationship. Prior to the offending, the defendant's sister raised allegations that his brother's son had inappropriately touched her daughter EB.
On the weekend of 23 June 2018, the defendant and his sister went to the defendant's brother's house to collect one of his sister's sons who had been staying there. The defendant's sister and the defendant are alleged to have broken into the house and threatened the defendant's brother's son. A report was subsequently made to Police by the defendant's brother and his wife. Following this, the defendant's brother left several threatening and abusive telephone messages with the defendant's sister's son, and disparaging texts were exchanged by the siblings.
The defendant subsequently attended his brother's home on 29 June 2018 and words were exchanged. The defendant became upset and produced a knife, which he used to stab his brother twice. The defendant's brother sustained a 5cm superficial laceration to the left side of his neck and a small puncture wound to the right upper chest. Both injuries were treated with sutures.
Following the offending, the defendant presented himself to the Police station and made prompt and full admissions. He told Police that he wanted to go to gaol because he was sick of the world. While he was able to recount the circumstances of the offending fully, he made several comments that seemed thought disordered.
While speaking with Police, the defendant also admitted to inappropriately touching his niece, EB. He said that this had first occurred while he was living with his sister. He said that he had started "flirting" with her and that this eventually escalated to him touching her genitalia daily after he had moved out from his sister's residence.
He said that he had digitally penetrated her vagina once in the weeks prior to his confession, and that he had done this so he could check her for damage caused by the alleged sexual assault perpetrated by the defendant's brother's son. He also admitted to masturbating in front of EB and being naked in front of her on other occasions. The interview then had to be terminated due to the defendant's presentation deteriorating into irrationality and ranting, which Police thought was indicative of mental ill health.
EB confirmed to Police that the defendant had been abusing her for some time. She said that she told him to "stop please" but that he would not stop. She described this happening on several occasions.

Subsequent Mental State

Records before the Court indicate that after being taken into custody following these admissions, the defendant was assessed by psychiatrist Dr Elliot via telehealth on 6 July 2018. Dr Elliot was immediately able to appreciate that the defendant was floridly psychotic. He described hearing voices and referenced grandiose and illogical perceptions about how he was the spirit of Jesus, was already dead inside, and the like. While the defendant was civil and not agitated, Dr Elliot thought that he was severely thought disordered. He was prescribed antipsychotics and referred for mental health screening in custody.

Procedural History

On 2 April 2020, Jeffreys DCJ found that the defendant was unfit to stand trial due to his schizophrenia and directed that he be remanded in custody.
On 22 March 2021, Tupman DCJ conducted a special hearing which found the defendant guilty of the index sexual offences but not guilty of a further count of indecent assault. On 25 March 2021, at a separate special hearing, Tupman DCJ found the defendant guilty of the index wounding offence.
On 16 April 2021, Tupman DCJ imposed limiting terms of 3 years 4 months (for the wounding), 20 months (for the indecent assault) and 2 years 3 months (for the sexual intercourse) pursuant to s 63 of the Act. The structure of the sentence was such that the earliest expiry of all orders was 28 December 2022.
The plaintiff filed this application on 2 August 2022, and an Interim Extension Order was granted by Walton J on 11 November 2022. It is now before the Court as presently constituted for determination of the final relief sought, being a 5-year extension of the defendant's status as a forensic patient.

Defendant's Progress in Custody

Since being in custody, the defendant's progress has been documented by mental health clinicians who prepared reports either for the purposes of legal proceedings, or for the assistance of the Mental Health Review Tribunal (hereinafter "the Tribunal" or "the MHRT"). This allows for an assessment of the defendant's progress with his schizophrenia whilst in a highly controlled environment.
In July 2019, Dr Jonathon Adams prepared a report to assess the defendant's fitness to stand trial. At that stage, the defendant had been in custody for about 12 months. Despite this, Dr Adams found the defendant to be suffering from severe symptoms of mental illness at the time of assessment. The defendant referred to manifestly deluded beliefs about the world, voices he was hearing, and frequently referenced religious themes. The defendant was oriented to time and place; and was able to understand the charges he was facing, as well as the pleas available to him; but Dr Adams did not think he was fit to stand trial, given he demonstrated significant schizophrenia that would significantly impair his ability to participate in or to follow a lengthy criminal proceeding.
On 13 January 2020, Dr Stephen Allnut also prepared a report to assess the defendant's fitness to stand trial. Dr Allnut agreed with the conclusions of Dr Adams and stated that the persisting delusional belief system would impair the defendant's ability to participate meaningfully in any criminal proceeding.
On 26 June 2020, Dr Andrew White of the Justice Health and Forensic Mental Health Network prepared a report for the MHRT. He noted that the defendant had had some ups and downs in custody, with ongoing psychotic symptoms. Dr White had last seen the defendant on 23 December 2019. At that time, the defendant was acutely unwell and grossly thought disordered. Despite this, he lacked insight and asserted that he was "better" and did not believe that he was still unwell.
In a subsequent report of 21 February 2021, Dr White noted that the defendant accepted that he had schizophrenia and that his medication helped him but remained convinced that he was currently well despite adhering to his belief in the reality of his ongoing psychotic symptoms.
Reports produced throughout 2021 and 2022 confirmed the ongoing and unchanged presence of prominent and bizarre delusions. A report of Dr David Alchin and Dr Anna Farrar dated 27 April 2022 noted that while the defendant was jovial and pleasant, he maintained the same delusions which had been typical of his psychotic illness. They thought that there had been minimal change in his overall presentation.
A report of Dr Richard Furst was commissioned by the plaintiff for the purposes of the preliminary hearing. In the report, dated 29 May 2022, Dr Furst confirmed that the defendant was suffering from chronic, treatment resistant schizophrenia, alcohol and substance abuse disorder (in remission in custody), and likely borderline intellectual disability. He thought that the defendant had an above average risk of sexual reoffending and a high load of risk factors for future violence when assessed using the HCR-20 tool, based on the presence of numerous clinical and historical risk factors.

Court Ordered Reports

In accordance with the orders of Justice Walton, the following reports have been provided to the Court:

Report of Dr Gordon Elliot dated 9 January 2023

Dr Elliot assessed the defendant on 6 January 2023. The defendant was reluctant to discuss his index offending with Dr Elliot, but eventually opened up to an extent in respect of the wounding charge. He told Dr Elliot that the offending occurred in the context of significant drug use and being "taken" by "demons".
On the issue of his treatment in the forensic hospital, the defendant was excitable when describing his lifestyle there. He told Dr Elliot that he was very happy there and would like to live there forever. He was sorry or sad that he had no contact with his family and nothing on "the outside" (i.e. outside of the forensic hospital).
The defendant told Dr Elliot that he felt very well, describing his mental health as "nine out of ten" and speaking with animation about how much his mental health had improved. Despite this, he readily descended into a lengthy description of complex delusions once questioned about his current psychotic symptoms. The delusions described were similar to those referenced on previous occasions.
The defendant described being able to talk to God, being a "lost human", and "space eyes". He said that his mind could be read and his movements controlled by external forces. He spoke with conviction of these beliefs.
Dr Elliot noted that the defendant was passive about his plans for future release, stating he would leave details of accommodation to his treating team. He said that he would not return to using drugs and alcohol if released into the community, although Dr Elliot was concerned about the defendant's capacity to sustain this goal without support, despite such good intentions.
Overall, Dr Elliot described the defendant as an affable, cooperative historian who was eager to cooperate and frequently checked that he was being helpful. He was not irritable and ended the interview in a cheerful manner. While thought form was digressive, he was able to remain generally on topic. His moderate thought disorder became more prominent when he was allowed to speak about his delusions which remain ongoing. Dr Elliot did say that as a result of being in the forensic hospital and commencing clozapine, the defendant's overall presentation had improved since Dr Elliot last assessed him in 2018.
On this basis, Dr Elliot diagnosed the defendant with treatment resistant schizophrenia. He said that the defendant's delusions seemed endlessly elaborate and had continued to grow and develop even whilst on high-dose medication (clozapine and haloperidol). Dr Elliot also thought that there was a substance abuse disorder and possible intellectual disability. The defendant was still a mentally ill person within the meaning of the Act.
While Dr Elliot said that the risk posed by the defendant in his current setting was low, he thought that the risk would be considerably higher if he were released into the community in an unsupported manner. Using the HSCR-20 tool, Dr Elliot identified a number of historical and clinical risk factors which gave rise to a moderate level of risk of future offending. He thought the biggest risk factors which might contribute to future offending were drug and alcohol abuse and non-compliance with treatment, which would both likely lead to a severe aggravation of psychotic symptoms.
In terms of how best to manage this risk, Dr Elliot said that remaining in the forensic hospital would be the most conservative way to contain any risk posed by the defendant. He said that this pathway would offer the most graded progression to community living. He noted that the forensic system would be more robust in managing this process than if the defendant were to be managed as a civil patient.
On balance, Dr Elliot thought that the defendant was now progressing to a point where remaining in the highly secure forensic hospital was becoming unjustified. He thought that it might not be the least restrictive way to manage the risk, and that the defendant could be adequately managed using a combination of a NDIS funded disability provider, a supported independent living accommodation placement, transition to involuntary patient status under the Act, and the defendant being placed on the Child Protection Register.
Under this plan, the defendant would remain in the forensic hospital as a civil involuntary patient until appropriate discharge plans could be implemented. Dr Elliot's view was that the high level of caseworker support afforded by the plan would allow for early intervention at any sign of relapse or concern. Dr Elliot said that the defendant's treating psychiatrist was supportive of this initiative.

Report of Dr Sathish Dayalan dated 30 January 2023

Dr Dayalan assessed the defendant on 19 December 2022. In his report he detailed the significant clinical material on file and summarised the circumstances of the index offending.
On assessment, the defendant told Dr Dayalan that he accepted he had a mental health condition which he said made him "not well" and scored himself a "six out of ten". He described his signature delusions, including grandiose, referential, and persecutory thought disorders. Dr Dayalan said that during the interview the defendant was distracted and made reference to visual and auditory hallucinations.
Dr Dayalan also diagnosed schizophrenia and substance abuse disorder. On HCR-20, STATIC 99-R, and STABLE 2007 assessment tools, Dr Dayalan scored the defendant between well-above average and moderate risk of future offending. He said that assertive management of the defendant's mental health condition was required in order to manage the defendant's risk.
Unlike Dr Elliot, Dr Dayalan concluded that the defendant would require ongoing treatment in the forensic hospital and management as a forensic patient to manage his ongoing risk. He came to this view because, as a forensic patient, there would be more requirements for the defendant's treatment team to undertake detailed risk assessments and make plans prior to discharging the defendant into the community. Once in the community, the defendant would be required to attend regular MHRT proceedings which would add further oversight. These risk management steps would not be available if the defendant was a civil patient under the Act.
Dr Dayalan thought that the forensic placement at the forensic hospital was the least restrictive and most effective way to manage the defendant. He thought a 5-year extension order would allow for the defendant to be transitioned into the community while still under the supervisory jurisdiction of the forensic system.

Plaintiff's Evidence

The plaintiff relies on the following evidence in support of the application:

Affidavit of David Yang dated 4 August 2022 and Exhibit DY-1;
Affidavit of David Yang dated 4 November 2022;
Affidavit of Tina Wu dated 9 February 2023; and
Affidavit of Tina Wu dated 28 February 2023.

Defendant's Evidence

The defendant relies on the following evidence in support of the application:

Affidavit of Marie Iskander dated 22 February 2023.

Submissions

Both parties' submissions are thorough, canvassing the factual history of the matter, significant aspects of the treatment history, and the legal framework applicable to this application. Although as a result, they are lengthy, they are excellent and have been of great assistance. Nevertheless, I have omitted, from the summary of submissions in these reasons, any references to facts or opinions that are detailed elsewhere in the reasons.

Threshold Provisions

The plaintiff says that the threshold provisions of the Act are met, in that the defendant is a forensic patient within the meaning of the Act, and that the application has been brought in the last 6 months of his current limiting term.
In relation to the matters that must be taken into account under s 127(2) of the Act, the plaintiff submits as follows:

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

In respect of this element, the plaintiff relies on the defendant's criminal history which it says includes prior instances of violent and sexual offending.
The plaintiff also says that the defendant has been ostracised by his family as a result of the offending against his niece.
The plaintiff also refers to the circumstances of the index offending in reference to this factor, as well as the presence of the defendant's persistent and treatment-resistant mental illness.
Finally the plaintiff makes reference to the defendant's known substance abuse issues.

Reports received under s 126(5) - s 127(2)(b)

The plaintiff has set out the findings of Dr Elliot and Dr Dayalan and says that Dr Elliot's proposal is substantially the same as keeping the defendant as a forensic patient for a further 12 months, as he would need to remain there while appropriate funding packages and community care are arranged.
The plaintiff relies on Dr Dayalan's finding that the defendant does pose a serious risk of harm to others which would be exacerbated by any relapse of illness or substance abuse issues.

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

The plaintiff refers to the report of Dr Furst, detailed above, which generally concurred with the recommendation of Dr Dayalan that the defendant remain a forensic patient as the least restrictive means of managing his risk.

Any other reports of qualified practitioners - s 127(2)(d) and (f)

The plaintiff notes that there is a significant amount of material relevant to this factor due to the fact that the defendant has been mentally unwell for so long.
It refers to the reports of Dr White, Dr Farrar and Dr Alchin referred to above and their views that the defendant had a high loading of risk management factors.

Any order or decision of the MHRT - s 127(2)(b)

The plaintiff relies on the fact that the Tribunal has consistently found the defendant unfit to be tried. The plaintiff has summarised the Tribunal's findings on each occasion. The most recent review took place on 3 November 2022 which noted that the defendant remained psychotically unwell with a lack of insight and no general change to his ongoing presentation.
The Tribunal referred to the view of the defendant's treating psychiatrist that it was still "a bit early" to consider discharge planning and possible NDIS needs, and that a less-secure environment would expose the defendant to stress and triggers that may lead to a lack of adherence with treatment plans and a general increased probability of risk.

Compliance with obligations - s 127(2)(g)

The plaintiff concedes that the defendant has been compliant with obligations to which he has been subject, whilst a forensic patient.

Views of the Court imposing the limiting term - s 127(2)(h)

The plaintiff refers to the sentencing remarks of Tupman DCJ, particularly her Honour's views that this was not a case where the defendant was not aware that his actions were wrong. Her Honour was not sure whether this mental illness played a role in his offending behaviour on the evidence available. The defendant did understand the nature of the acts and that what he was doing was wrong.
Her Honour's view was that the defendant would benefit from proper monitoring and treatment in gaol and when released into the community for a lengthy period.

Unacceptable Risk

On the issue of unacceptable risk, the plaintiff says that the evidence points to the defendant needing the level of intensive supervision to which he is currently subject. He has treatment-resistant schizophrenia with a history of non-compliance and violent and reckless behaviour.
It was the common view of all experts that the defendant poses a moderate to high risk to others, and that this risk would increase significantly if he were to become non-compliant with treatment or relapse into substance abuse.
Given these factors, the plaintiff says that there is an unacceptable risk of harm present in the absence of the defendant's forensic status.

Whether Risk may be Managed by Less Restrictive Means

On this issue the plaintiff says that the defendant has only been in the forensic hospital since 24 January 2022, and there are concerns about premature release leading to substantial risk. The Tribunal has noted that there is a good deal of social work and mental health work to be done prior to a safe release into the community.
The experts all agree that a comprehensive care package is required before any release is viable. The plaintiff says that the defendant's improvements in his mental state are relatively recent and have only been achieved in the highly supported forensic setting. There is a real and tangible risk that his psychotic illness could regress, and it is probable that he will have features of psychosis present for his whole life.
Dr Elliot and Dr Dayalan agree that the forensic pathway is the most supported and graded choice for the defendant's eventual discharge into the community and have acknowledged the limitations of the alternative choice of the defendant being made an involuntary patient under the Act.
The plaintiff does not accept that Dr Elliot's proposed pathway of care can be practically implemented, given that on 6 December 2022, progress notes indicated that the defendant had not made any application to the NDIS. The plaintiff says that significant work would be required to bring the elements of care together, which even Dr Elliot acknowledges would take up to 12 months.
The plaintiff says that, while a forensic patient, the defendant's treating team will have the chance to construct a robust community treatment plan with more security than the plan proposed by Dr Elliot.
The plaintiff asks the Court to accept Dr Dayalan and Dr Furst's recommendation for a 5-year extension of the defendant's status as a forensic patient.

General Concessions

The defendant conceded several aspects. These are that the defendant remains a mentally ill person within the meaning of the Act; that he poses some risk of causing serious harm to others (but he says that this is not an unacceptable risk); that any risk would significantly increase if he ceased compliance with medication or relapsed into drug use; at present he has no access to NDIS; he does not yet have a guardian or financial manager; he has had no contact with his family since entering custody; he does not have any accommodation in the community at present; and there is currently no application afoot for a Community Treatment Order.

Threshold Provisions

The defendant does not contest that the threshold provisions are satisfied.

Matters Relevant

The defendant submits that the Court should consider the following relevant matters:

The defendant says that the Court should take into account his specific circumstances, including the fact that he has other medical issues including hepatitis C, type 2 diabetes, vitamin B12 deficiency, asthma, and has suffered pleural effusions since September 2020.
The defendant's last inpatient admissions prior to the offending were in 2017 and lasted only 3 days as the defendant absconded while on leave, but he did remain compliant with medication until about March 2018.
The defendant has been managed in the community under CTO and support from the community mental health team and a treating psychiatrist.
The defendant also says that the evidence establishes he has significant remorse. He also says he has only been in custody twice before, the last occasion being in 1994. There is no history of breaches whilst in custody.
The defendant says that there is a risk that he will become institutionalised if he remains a forensic patient for a long period. He says that Dr Elliot's proposal offers the structure that the defendant so clearly craves, while also allowing risk management and a transition to supported independent living.

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

In respect of this element, the defendant refers to the circumstances of the index offences and the defendant's broader criminal history as particularised above.
The defendant says that prior to the index offending, the defendant had not been charged with any offence for 15 years. He says that the prior sexual offences in the 1990's were minor in nature and both victims were adult women. Tupman DCJ accepted that there was no evidence of paedophilic interests or tendencies when imposing sentence.

Reports received under s 126(5) - s 127(2)(b)

The defendant refers to the reports of Dr Elliot and Dr Dayalan, but ultimately says that Dr Elliot should be preferred given he has had the opportunity of reviewing the defendant in 2018 and 2023, and he also conferred with the defendant's treating psychiatrist when preparing his report.
The defendant says that the Court should accept Dr Elliot's view about the best way to manage the defendant going forward. He says that Dr Dayalan has failed to engage in a detailed and considered analysis of the support that could be available in the community for the defendant.
The defendant says that if the Court were minded to make an extension order, it should only be for a 12-month period, commensurate with Dr Elliot's estimate of time required to coordinate appropriate community care. He says a 5-year extension order would exceed the original 4.5 year limiting term imposed by Tupman DCJ.

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

In relation to the report of Dr Furst, the defendant says that Dr Elliot should be preferred where those two differ. Dr Furst saw the defendant 9 months ago. He says that since that time, the evidence has established that he is now behaviourally settled. Dr Furst's opinion must therefore be considered to be historical.
Dr Furst also saw the defendant prior to his commencement on Clozapine, and before he was transferred to the sub-acute ward of the Forensic hospital, which ought to reduce the weight placed on his opinion significantly.
The defendant also says that Dr Furst did not adequately take into account the NDIS and the support, care, and treatment that it could provide.

Any other reports of qualified practitioners - s 127(2)(d) and (f)

The defendant relies on reports of his treating team which have been prepared as part of his treatment and to go before the Tribunal.
The defendant says that in a letter of 7 December 2022, Dr Matthews opined that the defendant did not pose an imminent risk to himself or others. Dr Matthews thought that if his forensic order was to cease, the defendant would remain in the facility as a civil patient.
The defendant says that Dr White, Dr Alchin, and Dr Farrar's reports should all be viewed as historical, given that the defendant has reportedly made significant progress since he last saw them. On this basis the defendant says Dr Elliot should be preferred.

Any order or decision of the MHRT - s 127(2)(b)

The defendant accepts the plaintiff's submissions on this factor but submits that the November 2022 MHRT report notes that there has been positive progress, with the defendant attending more activities, engaging well with groups, and attending to laundry and keeping his room neat and tidy, reflecting an ability to undertake activities of daily living.
There were also reports of positive engagement and the defendant doing "good work" with his treating team.

Reports of government departments - s 127(2)(f)

The defendant says that DASA reports prepared between 13 December 2022 and 19 January 2023 all rate the defendant as "0" for all assessed categories such as irritability, verbal threats, and physical aggression. They say that this is consistent with the current medical evidence that the defendant is well settled.
The defendant also relies on recent occupational therapy and nursing reports and recent progress notes which reflect that he has a positive attitude on the ward, and that steps are being taken to obtain NDIS funding for him.

Compliance with obligations - s 127(2)(g)

The defendant says he has been an exemplary forensic patient and complied with all obligations.

Views of the Court imposing the limiting term - s 127(2)(h)

The defendant relies on the fact that the sexual offences were considered by Tupman DCJ as being below the mid-range, and that the wounding offence was towards the bottom of the range.
Tupman DCJ did not find that the defendant had a significant criminal history and accepted that his index offending had a scattered flavour which was potentially delusional.
Tupman DCJ found he had been quite settled in the community for some time prior to the index offences. Her Honour did not think he was a significant risk to the community given the fact 15 years had passed since the last offending.

NDIS

The defendant has put on evidence and submissions about the availability of NDIS. He says that this is relevant to the length of any extension order, if the Court is minded to make one.
The defendant says that the evidence shows his eligibility for NDIS has only not been determined because the forensic hospital has not taken steps to secure it, given it expects he will remain a forensic patient. The defendant says it is likely he would be accepted into NDIS because of the nature of his illness and that this would be determined and implemented within 3-6 months.

Unacceptable Risk

The defendant says that the Court might find that the defendant poses an unacceptable risk if the defendant ceases to be a forensic patient (if the Court is using the basis that the defendant would be discharged unsupported into the community).

Whether Risk may be Managed by Less Restrictive Means

The defendant says that if this is found, the Court should find that this can be managed by the less-restrictive means proposed by Dr Elliot.
If, however, the Court does not agree, he proposes an extension order of 1-2 years to provide his treating team time to secure community support and care so that he can transition from being a forensic patient sooner than the 5 years proposed by the plaintiff.

Reply to Plaintiff's Submissions

The defendant takes issue with the plaintiff's description of his criminal history as extensive. Tupman DCJ described it as "not significant" which the defendant adopts.
The defendant does not accept that many of his offences involved being armed with a knife, given that only 2 of his prior offences involved the use of a knife. Only one of these involved the use of a knife to cause physical harm.
The defendant accepts he has not had contact with his family but does not agree that this is the result of the offending against his niece. He says that this is mere speculation.
The defendant does not accept that any history of suicidality is relevant to the Court's task under this application (in particular under s 122(1) of the Act).
The defendant does not accept that his offending has caused serious psychological harm and relies on Tupman DCJ's comments that EB did not experience physical pain and there was no evidence of violence other than the inherent nature of any sexual assault.
The defendant does not accept that he has failed to undergo treatment for prior sexual offending. He says he has availed himself of all treatment offered in the forensic hospital.
The defendant otherwise does not agree that he is ineligible for NDIS and refers to the other submissions on that issue.

Plaintiff's Reply Submissions

In answer to the defendant's proposed alternative pathway to managing risk, the plaintiff says that in the past the defendant has been managed with a Community Treatment Order, community mental health team, family support, treatment by a psychiatrist, et cetera, but still became lost to care, relapsed into drug use and non-compliance, and committed criminal offences.
It says that what the defendant proposes has largely been attempted in the past, and the fact that the index offending took place, despite that regime, is evidence that those measures are insufficient.
Before the Court, there is a detailed analysis of what is entailed as a forensic patient and how this differs from the concept of detention in the forensic hospital. The plaintiff states that whilst a forensic patient, the defendant would still have access to potential release, taking leave from hospital, and the making of CTO's. The plaintiff annexes a schedule to its submissions setting out the differences between the two regimes.
Otherwise, the plaintiff says that Dr Elliot should not be preferred over Dr Dayalan. Dr Dayalan is a forensic specialist currently working in the forensic hospital at Malabar and therefore has significant relevant experience. The plaintiff also says that even though Dr Dayalan did not consult Dr Matthews (the treating doctor) he did have access to Dr Matthews' notes and was therefore appraised of her views.
Other comments are advanced about the content of Dr Dayalan's report and Dr Furst's report in response to criticisms by the defendant. The plaintiff also highlights some other key sections in the reports of Dr Matthews and the other reports to the Tribunal.
There is reference to a dispute amongst the parties about the availability of NDIS support based on the clinical notes. The plaintiff says that the defendant is not currently a NDIS participant and it never sought to submit that he is ineligible for it.
The plaintiff says that the evidence points to the fact that the defendant's current care team are of the view that he should transition through the forensic pathway and that planning should not commence until he is more stable.
Otherwise, more generally, the plaintiff says that it relies on the 1992 charges of malicious wounding, assault occasioning and malicious damage in that those offences involved significant domestic violence, attempts to slash the victim with a knife when his young child was seated between them, and threats of death. The assault only ended when the defendant's family separated them.
The plaintiff says that offending in 2003 involved setting a house on fire when the defendant's family members were inside, and that the defendant admitted to starting the fire deliberately, knowing they were inside.
The plaintiff says that the proposition that the defendant's family have ostracised him is supported by the report of Dr Furst and a treating report of Dr Xia. Similarly, the plaintiff says that its contention that the sexual offending against EB caused serious psychological harm is supported by Stewart v R [2012] NSWCCA 183 and that Tupman DCJ's comments about no harm to the victim, beyond the inherent harm, was only in the context of factors of aggravation. The plaintiff says that it cannot be submitted a child would not suffer psychological harm as a result of sexual assault.
The plaintiff otherwise maintains its position as set out in its primary submissions.

Consideration

The Court has, in the course of summarising the submissions of each of the parties, referred to each of the criteria, which the Court is required to consider in dealing with the Extension Order. As has been made clear by the defendant, the defendant does not dispute that the defendant poses an unacceptable risk in the absence of some or any regime. Because it is a jurisdictional precondition, it is necessary for the Court to satisfy itself of that situation.
The principles that have been established in relation to sentencing refer to some degree to issues associated with mental health. Ordinarily, when sentencing an offender, mental health is an ameliorating subjective consideration. However, as pointed out by Gleeson CJ [1] (with whom Allen and Sully JJ agreed), a causal relationship, if any, between mental disorder and the commission of an offence goes to the circumstances of the individual cases that are, in sentencing, required to be taken into account in the application of the relevant sentencing principles. Nevertheless, as the Chief Justice said: "The existence of such a causal relationship in a particular case does not automatically produce the result that the offender will receive a lesser sentence, any more than the absence of such a causal connection produces the automatic result that an offender will not receive a lesser sentence in a particular case. For example, the existence of a causal connection between the mental disorder and the offence might reduce the importance of general deterrence, and increase the importance of particular deterrence or of the need to protect the public. By the same token, there may be a case in which there is an absence of connection between the mental disorder and the commission of the offence for which a person is being sentenced, but the mental disorder may be very important to considerations of rehabilitation, or the need for treatment outside the prison system."
When dealing with an Extension Order in circumstances where one of the major considerations, if not the most important consideration, is the safety of the community, a causal relationship between a mental disorder and offending may render the likelihood of an offence occurring at a level significantly higher than would be the case in circumstances where no mental disorder of that kind existed. The determination of whether the defendant poses an unacceptable risk depends upon an evaluation by the Court weighing both the likelihood (being that which is more than a mere possibility) of a criminal offence being committed together with the damage that would be caused by the commission of that offence. The likelihood of the criminal offence being committed does not need to be more probable than not, but it needs to be significant and not ephemeral.
The reliance by the defendant on the comments of Tupman DCJ, at sentence, are, at least to some extent, misplaced. The Court is required by the legislation to take account of the comments of the sentencing judge, but comments of a sentencing judge as to the objective seriousness of an offence should not be taken out of context.
In measuring objective seriousness, a sentencing judge is determining where, within the range of offences that can occur for such an offence, the offence for which the sentence must be imposed fits. Such a determination, while relevant to the relative seriousness of a particular offence within that range, does not determine objectively the seriousness of offending other than for the purpose of that range.
Thus, a murder at the level of well below mid-range, is, nevertheless, an extremely serious offence. Conversely, shoplifting at the level that warrants the maximum sentence may not be a serious offence for the purposes of dealing with an unacceptable risk. In part, the latter comment deals with the fact that shoplifting does not pose a risk to the safety of the community.
Similarly, where the sentencing judge has, as is the case before the Court, suggested that no damage was done to a victim, beyond that inherent in the offence, it says nothing about the damage occasioned to a victim that is inherent in the offence itself. It is notorious that sexual abuse of a minor is often, if not always, a life-long problem, often causing irreparable damage. That there was no additional damage or gratuitous violence associated with the sexual offending says nothing about the harm that would be created if such offending occurred.
Each of the factors summarised above, relevant to the criteria in s 127 of the Act have been considered by the Court. The Tribunal referred to the view of the defendant's treating psychiatrist that it was "a bit early" to consider discharge planning and possible NDIS needs. It also referred to the less-secure environment, exposing the defendant to stress and triggers that may lead to a lack of adherence with treatment plans and general increased probability of risk.
The foregoing assessment by the defendant's treating psychiatrist was in November 2022. It was also before the defendant had been stabilised on clozapine. The stability that seems to have been effected by clozapine affects expressions of opinion of that kind. However, the clozapine does not treat or ameliorate the defendant's delusional beliefs. Nor does it provide, on the report before the Court, the defendant with greater insight into his illness, its causal relationship with his offending, and the seriousness of his offending.
I take the view that the assessment of whether the defendant is "an unacceptable risk" is an assessment based upon the risk posed by the defendant in the absence of the orders sought by the plaintiff, being that which would otherwise apply. The package of support and control proposed by the defendant on the basis of the report of Dr Elliott is a regime that is not currently in place and would not be in place were the Court to refuse to extend the period during which the defendant is to be a forensic patient. The regime proposed by the defendant is, nevertheless, relevant to the second aspect of the satisfaction of the Court, namely, whether there exists a less restrictive means for managing the defendant's risk.
There are a number of factors which require comment. The material before the Court refers to the difficulty that the defendant suffered as a consequence of the change from one forensic facility to another. It is clear from the material before the Court that the defendant does not react well to change.
This is confirmed by the defendant's expression of view that he would like to stay in the facility. There are two aspects to that comment.
First, it points to the validity of the submission of the defendant that, if the defendant remains a forensic patient in a forensic hospital for very much longer, he will be wholly institutionalised. Secondly, it points to the risk associated with any alteration in the living circumstances and controlled circumstances under which the defendant is regulated.
As is not uncommon, the fact that the evidence of each of Dr Elliott and Dr Dayalan was taken jointly or in conclave has assisted the Court significantly. The differences that seem stark from a reading of the reports are, when tested and subject to each of them commenting on the other, largely nuanced.
Each of the experts accepts that the defendant must remain at a forensic hospital for a further period of approximately 12 months. Each of the experts agrees that during the course of the ensuing 12 months, the forensic team should seek to establish circumstances that would lead to the defendant being accommodated in the community in some form of supported accommodation.
Each expert accepts that, ultimately, the defendant may be managed and his risk managed by the combination of support services envisaged by Dr Elliott and for which the defendant agitates. The real issue between them is how to achieve that course in a manner that manages the defendant's risk.
Dr Elliott prefers a process which abandoned the status of the defendant as a forensic patient and simply permitted or required him to be at the forensic hospital as an involuntary patient. That would still be for a period of 12 months.
There is no difference in the treatment of a forensic patient and an involuntary patient at a forensic hospital. During that time, on the regime proposed by the defendant, the relevant support services could be established and the risk, thereafter, managed under those services.
The services have not yet been organised and, while the Court accepts that it is likely the services could be organised, the organisation of them depends upon decisions by third parties, beyond the forensic team, the Court or the Tribunal. Thus, for example, while the Court accepts that the defendant would most likely obtain NDIS support, such support depends upon an application and its approval by the relevant authority.
Similarly, the Court accepts that it is likely, were a Community Treatment Order ("CTO") to be sought, the order would be granted, but it still depends upon an assessment. The foregoing examples are significant, as are the other aspects of the proposed regime.
The difference between the supervision implemented by the regime envisaged by Dr Elliott, and for which the defendant agitates, and the regime envisaged, during the conclave, for the defendant as a forensic patient, is extremely nuanced. There are differences. Those differences depend on the role of the Tribunal in the determination of any regime and the reversion to the status of forensic patient where there has been a breach. The method of treating breaches is significant.
I accept, because of the potential and the level of regulation imposed by legislation, the means envisaged by Dr Elliott and for which the defendant agitates is a less restrictive means than the extension of the defendant as a forensic patient. I am satisfied of that circumstance, notwithstanding that the treatment regime between a forensic patient and an involuntary patient in a forensic hospital is identical.
The material before the Court satisfies the Court that a premature release would lead to a substantial risk and that there is a need for significant social work and mental health services to be provided prior to the defendant's safe release into the community. Each of the experts agrees to that process and the Tribunal has so noted.
I accept the experts' analysis that a comprehensive care package is required if the defendant is in the community, in order for the otherwise unacceptable risk to be managed. It is not the function of the Court to determine the outcome of this application on the basis of which of the two regimes is either better for the defendant or better deals with the risk.
Once an alternative means is established that is capable of managing the risk posed by the defendant, the Court is required to be satisfied, to a high degree of probability, that such alternative means would not manage the defendant's risk. Each of the experts expressed the view that the forensic pathway is the most supported and graded choice for the defendant's eventual discharge into the community. The regime proposed by Dr Elliott is not currently in existence. As a consequence, there are no current means available that would manage the defendant's risk.
Nevertheless, the availability of the alternate means, at some time in the future, is a factor that is also relevant to the term for which any extension order should subsist.
The Court is not satisfied that the alternate means are available immediately. The Court is not satisfied that the alternate means would be available before 12 months or that such alternate means would manage the risk posed by the defendant before a 12-month period.
Further, the Court is not satisfied that the alternate means would manage the risk posed by the defendant in circumstances where the defendant was experiencing a significant change in his environment and in the level of supervision imposed upon him. It is a feature of the material before the Court that it shows the defendant does not cope well with the kind of change envisaged either by his release on a Conditional Release Order ("CRO") or his release into the community on a CTO.
As a consequence, the Court is satisfied to a high degree of probability that, currently, there is no other less restrictive means that is capable of adequately managing the risk posed by the defendant. Further, the Court is not satisfied that such other less restrictive means would be available for 12 months.
Further again, the Court is satisfied that no less restrictive means should or could be such as to manage the risk posed by the defendant for the ensuing 12 months. As a consequence, a 12-month extension is the minimum that the Court would be required to order.
The Court is unable to order the Tribunal to undertake to organise the release of the defendant on a CRO. However, the Court makes clear that it is a strong recommendation that over the next 12 months, there should be steps taken by the Tribunal and/or the forensic team to ensure that in 12 months' time, the defendant can be released on a CRO and the alteration in his regime of supervision and the alteration in his accommodation managed so as to reduce the risk otherwise posed by the very fact of the alteration itself.
It would seem that a period of six months to 12 months of such supervision would enable the Tribunal and/or the forensic team to manage the alteration in the defendant's circumstances and, therefore, that from a period of 18 months to 24 months there would become available and be available a less restrictive means that could manage adequately the risk posed by the defendant, which, I reiterate, would otherwise be unacceptable.
The circumstances of the move of the defendant from the forensic hospital to supported accommodation under a CRO or CTO may exacerbate, on the material before the Court, the issues with which the defendant suffers, and certainly increases the risk. The defendant's capacity to keep clean from alcohol and illicit drugs while in the community is a very different circumstance than the capacity so to do while in a forensic hospital and subject to full-time supervision.
Circumstances may change that would render the findings as to time inapplicable, but the plaintiff has the capacity, if there be changed circumstances, for further application to be made for another extension order. As the material has been assessed by the Court in the present proceedings, the Court is satisfied, to a high degree of probability, that the defendant poses an unacceptable risk.
Further, the Court is satisfied to a high degree of probability that there are no current alternate means that are capable of managing adequately that risk. The Court has formed the view that the defendant's status as a forensic patient should be extended and that the risk posed by the defendant cannot be adequately managed by other less restrictive means for a period that would allow the settlement of the defendant into a different regime. Nevertheless, the Court is of the view that such alternate, less restrictive means would be available, assuming a continuation of the current circumstances and stability of the defendant, in two years.
For the foregoing reasons, the Court makes the following orders: 1. Pursuant to ss 121, 127 and 128 of the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW), the status as a forensic patient of the defendant, DB, is extended for a period of two years, commencing from the date of this order. 2. Access to the Supreme Court's file in respect of any document shall not be granted to a non-party without the leave of a judge of the Court and, if any application for access is made by a non-party in respect of any document, the parties are to be notified by the Registrar so as to allow them an opportunity to be heard in relation to the application for access. 3. The Court strongly recommends that the Mental Health Review Tribunal and/or the forensic team providing care to the defendant initiate steps for the release of the defendant on a Conditional Release Order at a convenient time not more than 12 months from the date of this order and, within that further 12 months, organise for a regime of the kind recommended by Dr Elliott in the expert report to the Court.

Amendments 24 March 2023 - Names anonymised at [12], [13], [14], [17]. Correction to affidavits at [49], [50]. Psychologist changed to psychiatrist at [53] at bullet point 11. Civilian changed to civil patient at [65] at bullet point 15. Typographical errors corrected at [69], [105], [111]. Psychologist changed to psychiatrist at [91]. Psychologist changed to psychiatrist at [92].

27 March 2023 - Pseudonym order granted over the Defendant and anonymisation over the defendant's siblings. 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: 27 March 2023

At a glance

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Judgment (42 paragraphs)

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Legislation Cited (2)

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