Attorney General for NSW v Delmege by his tutor Dr Johnson

The Law to be Applied

1. As noted, the Attorney's summons was filed on 5 November 2020. At that time, the relevant legislation was the MHFP Act. Section 54A, found in Subdivision 4 of Division 2 of Part 5 of the Act provided for the extension of a person's status as a forensic patient in accordance with Schedule 1 of the MHFP Act. Clause 2 of Schedule 1 provided for this Court to make appropriate orders in certain circumstances. It was in these terms: 2 Forensic patients in respect of whom extension orders may be made (1) A forensic patient can be made the subject of an extension order as provided for by this Schedule if and only if the Supreme Court is satisfied to a high degree of probability that: (a) the forensic patient poses an unacceptable risk of causing serious harm to others if he or she ceases being a forensic patient, and (b) the risk cannot be adequately managed by other less restrictive means. (2) The Supreme Court is not required to determine that the risk of a person causing serious harm to others is more likely than not in order to determine that the person poses an unacceptable risk of causing serious harm to others.
2. The interim orders made in February 2021 were made pursuant to Division 3 of Schedule 1 of the MHFP Act.
3. On 27 March 2021, the MHFP Act and the Mental Health (Forensic Provisions) Regulation 2017 (NSW) were repealed by s 167 of the MHCIFP Act. The savings and transitional provisions are found in Schedule 2 of the MHCIFP Act which relevantly include clauses 2, 3 and 9. Those clauses provide as follows: 2 Definition In this Part - former Act means the Mental Health (Forensic Provisions) Act 1990. 3 General savings (1) An act, matter or thing done or omitted to be done under a provision of the former Act and having force or effect immediately before the commencement of a provision of this Act that replaces that provision is, on that commencement, taken to have been done or omitted to be done under the provision of this Act. (2) This clause does not apply - (a) to the extent to which its application is inconsistent with another provision of this Schedule or a provision of a regulation made under this Schedule, or (b) to the extent that its application would be inappropriate in a particular case. … 9 Application of Act to existing forensic patients A person who, immediately before the commencement of Part 5 of this Act, was a forensic patient or a correctional patient under the former Act is taken to be a forensic patient or a correctional patient within the meaning of this Act and this Act applies accordingly.
4. Accordingly, the Attorney's application must be determined pursuant to Part 6 of the MHCIFP Act, rather than pursuant to the legislation under which it was made. In the context of statutory change, the difference is one of nomenclature and enumeration rather than substance. The relevant provisions of the former Schedule 1 to the MHFP Act are mirrored by Part 6 of the MHCIFP Act. A comparison between the two, namely Schedule 1 (cll 1 to 22) of the MHFP Act and Part 6 (ss 121 to 144) of the MHCIFP Act, shows that there are no material differences between the two sets of provisions.
5. The application in the present case is taken to have been made under ss 121, 123 and 130 of the MHCIFP Act and is otherwise to be governed by the relevant provisions of that Act. There is no issue as to compliance with those formal matters set out in Division 2 of the MHCIFP Act.
6. Section 122 of the MHCIFP Act provides: 122 Forensic patients in respect of whom extension orders may be made (1) A forensic patient can be made the subject of an extension order as provided for by this Part if and only if the Supreme Court is satisfied to a high degree of probability that - (a) the forensic patient poses an unacceptable risk of causing serious harm to others if the patient ceases to be a forensic patient, and (b) the risk cannot be adequately managed by other less restrictive means. (2) The Supreme Court is not required to determine that the risk of a person causing serious harm to others is more likely than not in order to determine that the person poses an unacceptable risk of causing serious harm to others.
7. The application is to be determined in accordance with Division 3 of the MHCIFP Act. Section 127 in Division 3 provides: 127 Determination of application for extension orders (1) The Supreme Court may determine an application under this Division for an extension order - (a) by making the order, or (b) by dismissing the application. (2) In determining whether or not to make an extension order, the Supreme Court must have regard to the following matters in addition to any other matter it considers relevant - (a) the safety of the community, (b) the reports received from the persons appointed under section 126(5) to conduct examinations of the forensic patient, (c) the report of the qualified psychiatrist, registered psychologist or registered medical practitioner provided under section 125(b), (d) any other report of a qualified psychiatrist, registered psychologist or registered medical practitioner provided in support of the application or by the forensic patient, (e) any order or decision made by the Tribunal with respect to the forensic patient that is relevant to the application, (f) any report of the Secretary of the Ministry of Health, the Commissioner of Corrective Services, the Secretary of the Department of Communities and Justice or any other government Department or agency responsible for the detention, care or treatment of the forensic patient, (g) the level of the forensic patient's compliance with any obligations to which the patient is or has been subject while a forensic patient (including while released from custody subject to conditions and while on leave of absence granted under this Act), (h) the views of the court that imposed the limiting term or existing extension order on the forensic patient at the time the limiting term or extension order was imposed, (i) any other information that is available as to the risk that the forensic patient will in future cause serious harm to others. (3) If the Supreme Court makes an extension order in respect of a forensic patient, the Court is to notify the Tribunal of the making of the order.
8. Section 128(1)(b) provides for a maximum period for any extension order made, that being a period not exceeding five years.
9. The Forensic Division of the Mental Health Review Tribunal ("MHRT" or "the Tribunal") continues to exercise the same functions as it previously did.
10. If an extension order is made, the defendant will continue to be a forensic patient, and Part 5 of the MHCIFP Act will apply to him. The objects of Part 5 are given by s 69, which provides: 69 Objects The objects of this Part are as follows - (a) to protect the safety of members of the public, (b) to provide for the care, treatment and control of persons subject to criminal proceedings who have a mental health impairment or cognitive impairment, (c) to facilitate the care, treatment and control of any of those persons in correctional centres or detention centres through community treatment orders, (d) to facilitate the provision of hospital care or care in the community through community treatment orders for any of those persons who require involuntary treatment, (e) to give an opportunity for those persons to have access to appropriate care, (f) to protect the safety of victims of forensic patients and acknowledge the harm done to victims.
11. Division 3 of Part 5 provides for the mandatory review of forensic patients, and preserves the authority of the MHRT to determine whether a forensic patient is to be detained or released, conditionally or unconditionally.
12. The jurisprudence which has developed with respect to applications under the MHFP Act, and with respect to the comparable provisions of the Crimes (High Risk Offenders) Act 2006 (NSW) have application to orders sought and made under the MHCIFP Act.

Background to the Application

1. At [2] - [7] of AGNSW v Delmege Hoeben CJ at CL set out in summary form the background to these proceedings. The defendant's personal and criminal background is found generally at [10] - [38].

The s 127(2) Material

1. Section 127(2) sets out a number of matters to which the Court must give consideration in determining whether an extension order is to be made.
2. As is usual with an application of this nature, there was a significant volume of documentary evidence tendered by the plaintiff to ensure that the Court could meet the statutory requirements. Additional to the documentary evidence, the Court heard oral evidence from two witnesses.

The Attorney's Case

1. The Attorney read and relied upon: 1. An affidavit of Johanna Fisher affirmed on 5 November 2020 exhibiting a risk assessment report from Dr Jeremy O'Dea, Forensic Psychiatrist; and other relevant documents from material provided to the Attorney by various courts and agencies, including the defendant's criminal history, previous determinations, judgments, and orders of courts and tribunals, breach of parole reports, psychiatric reports, inmate misconduct reports and notes from the Offender Integrated Management System ("OIMS") related to the defendant. 2. A further affidavit of Johanna Fisher affirmed on 18 January 2021 annexing a copy of the transcript of the defendant's fitness hearing heard before his Honour Judge Ellis in the District Court on 7 October 2015. 3. A third affidavit of the same deponent affirmed on 9 April 2021 exhibiting documents extracted from material provided by the New South Wales Police Force, Corrective Services NSW ("CSNSW"), Justice Health, and the MHRT, including updated criminal history reports, medical reports and determinations by the MHRT, a report of Dr Chew, and an updated OIMS case note in relation to the defendant. Exhibited to Ms Fisher's 9 April affidavit is a wide range of material, including the defendant's criminal history, recording both the defendant's sexual offences and other offending, such as driving offences, convictions for contravening Apprehended Domestic Violence Orders ("ADVOs"), using a carriage service to menace, and assault occasioning actual bodily harm ("AOABH").
2. A significant proportion of the material was before the Court at the preliminary hearing and is set out in the decision of AGNSW v Delmege. Details of the defendant's offending background, including the circumstances of the index offending, may be found at [10] - [22] of that decision. The views of the sentencing judge who imposed a limiting term upon the defendant are at [18] - [20]. At [23] - [33] Hoeben CJ at CL set out the evidence drawn from reviews conducted by the MHRT of the defendant's circumstances. Reference to the opinion of an expert in speech pathology follows at [34]. The defendant's custodial history, including his response to previous supervision is at [35] - [38]. His Honour gave a summary of and considered the risk assessment report prepared by Dr Jeremy O'Dea, forensic psychiatrist, at [65] - [74]. At [75] and [76] the evidence concerning the defendant's response to rehabilitative programmes was noted. An assessment of the defendant's adaptive functioning is considered at [77] - [80], whilst a psychological report from August 2020 is discussed by his Honour at [81] - [82].
3. Although I have had regard to all of the evidence, particularly bearing in mind the time constraints - another feature common to matters such as this - only the most significant of the newly tendered evidence will be summarised here.

The Expert Reports

1. Pursuant to cl. 6(5) of Schedule1 of the MHFP Act, Dr Marcelo Rodriguez and Dr Gerald Chew each saw and assessed the defendant, and provided a report of their respective conclusions to the Court.
2. Dr Marcelo Rodriguez is a clinical and forensic psychologist. Dr Rodriguez saw the defendant on 18 March 2021 at Long Bay Prison for the purpose of providing a report to the Court, and was comprehensively briefed with the documentary record. The defendant is said to have participated well in the three hour interview with Dr Rodriguez.
3. In the history Dr Rodriguez took, the defendant said that he was born in Newcastle, and grew up on a dairy farm in Raymond Terrace. He has several siblings, including two sisters and two brothers (a twin brother and another who died at the age of 17 from drowning).
4. The defendant described his mother as a "good mother", who provided him with emotional warmth, care and attention. Similarly, he stated that his father was a good father, who was kind to him and his siblings. The defendant denied witnessing domestic violence or being a victim of any kind of child abuse. Overall, the defendant reported a happy childhood.
5. At school, the defendant said he struggled, giving as the reason for his difficulties that he was born a "blue baby". His achievement of mental milestones was reportedly delayed. The defendant was placed in special classes throughout his schooling, having experienced problems "stemming from poor attention and concentration as well as deafness". The defendant told Dr Rodriguez that he was diagnosed with a mild intellectual disability; he described being neuropsychologically tested and being unable to perform well. The defendant left school at age 15.
6. During the interview, the defendant told Dr Rodriguez that he completed a sex offender course but could not recall which one. When asked if it was CUBIT he said: "yeah that's the one. I learned something about not getting anywhere near children and the programme was alright".
7. When asked about his history of sexual offending, the defendant said that he was accused of having committed sexual offences 30 years ago and that his wife "put drugs in me drink and I went a bit loopy".
8. The defendant told Dr Rodriguez that he was accused of looking at the vagina of a 7-year-old family member. When asked whether he had done anything else, he said: "I looked at her vagina once. That drug she put me on, it made me horny. It might have been Ice…. I dunno…. I wanted it. I didn't have sex. I think me wife walked in. I wouldn't have done it. This was the first time I done it".
9. He denied having performed cunnilingus on his family member, despite having acknowledged it to police in 2017, and he denied other sexual offending.
10. Of the offence he allegedly committed on a train in the presence of two teenage girls, dealt with by discharge without conviction pursuant to s 32 of the MHFP Act, Dr Rodriguez reported that the defendant said: "I got on a train with no underwear as they were all washed. I didn't have any to wear. I was scratching my leg because a mosquito bit me and some girls said I was playing with me self".
11. Dr Rodriguez noted that the defendant "consistently denied any wrongfulness with regard to the sexual offending behaviours for which he has been convicted".
12. Because of the evidence available and his behaviour in the past, the defendant accepted that he was deemed a risk for sexual re-offending. The defendant told Dr Rodriguez that he would avoid reoffending by not having access to potential victims and that he believed it was fair that regular monitoring and supervision was in place to manage his risk. However, he was averse to the prospect of future monitoring, including the need to wear an ankle bracelet. He did not believe that he required extensive supervision but could not provide any plans about where he would live.
13. Dr Rodriguez believed that the defendant's "insight into his offending appeared to be compromised".
14. While in prison, the defendant was assessed by Dr Antony Henderson, having experienced some depressive symptoms. He was prescribed a mood stabiliser. When asked about his mood, he said "I'm not that bad. I can't read or write. I can't understand what's going on a lot of the time". He described being hypervigilant because he has been threatened and assaulted in custody. Dr Rodriguez noted that there are reports of the defendant being aggressive to others. He is not a mentally ill person.
15. The defendant completed the Self-regulation Programme: Serious Offenders ("SRP:SO") in November 2018 in custody. While his participation in the programme was considered satisfactory, he continued to display "limited insight into his problematic thoughts and behaviours, including those related to his offending behaviour".
16. Regarding employment, the defendant's last paid job was said to be in 2009 selling lawn mowers for "Sheeny". Prior to this, he held positions of short duration on an oyster farm and in a steel factory. A job in a service station as a teenager ended after two weeks because he was unable to calculate the change to be given to customers. The defendant has received the Disability Support Pension for many years.
17. The defendant reported several relationships. Dr Rodriguez noted that the defendant had been previously married for about nine years and he was a father to six children with his former wife. However, he told Dr Rodriguez that he could not confirm whether his children were biologically his. It was noted that his wife had obtained an ADVO against him, although the defendant was unaware of the reasons.
18. Dr Rodriguez reviewed the defendant's medical history. He concluded that the defendant sustained a hypoxic episode at birth. Reportedly, birthing complications meant that the defendant had to be resuscitated, and he was later told that he had sustained brain damage. The defendant stated that he had hearing and speech problems, and difficulty with literacy and communication skills. He has been diagnosed with a mild intellectual disability, with an IQ range of 50 - 60. This had an impact upon his capacity to access mainstream sex offender programmes, because he experiences significant literacy problems.
19. Scans conducted in 2014 indicated a low-density lesion in the right basal ganglia suggestive of stroke at some earlier point. The defendant has been diagnosed with Hepatitis B, asthma, epilepsy, and hypertension and has been treated for gastroesophageal reflux disease. The defendant's health conditions are managed with several medications.
20. A cognitive assessment was conducted in October 2015. The defendant's scores showed a "large discrepancy between his verbal and nonverbal abilities", meaning his overall score could not be interpreted. His results placed "his processing speed and working memory in the extremely low range of functioning" and "the combined result on these subtests fell in the 1st percentile". Similar results were noted with respect to the defendant's verbal abilities. Dr Rodriguez noted that his perceptual reasoning abilities were in the average range and considered to be a relative strength. His deficits appeared to be relatively stable.
21. The defendant reported to Dr Rodriguez that he was a heavy smoker and drinker, having started smoking cigarettes at 19 years of age, and consuming alcohol at 18 years. The defendant said that he began drinking heavily in 2011 as a result of stress and loneliness. He said that he began using cannabis in his mid-40s but denied being a regular heavy user of the drug.
22. As to his history of sexual activity, the defendant told Dr Rodriguez that he learnt about sex from "me teachers and from seeing the girls go [swimming] in the water, that's when I saw the girls. I was 6 or 7 years old, may be 8". The defendant told Dr Rodriguez that he first masturbated at age 12 and denied hypersexuality. He reported that his first sexual experience was at age 19 with a sex industry worker. The defendant asserted that he was "attracted to females in the age range 16 or 17 to about 40 years old". He said that he was aware that the age of consent to sex is 16 years old. He denied a sexual interest in children.
23. The doctor observed that the defendant was reluctant to be regarded as at high risk of sexual re-offending.
24. Dr Rodriguez confirmed earlier diagnoses of intellectual disability, noting the "extensive and well-established history of intellectual disability", consistent with the defendant's presentation. The doctor thought that his communication problems were evident, and compounded by deafness and dysarthric speech. The doctor concluded that the defendant's "condition will not change with time or treatment".
25. Dr Rodriguez believed that the defendant would have met the Diagnostic and Statistical Manual of Mental Disorders ("DSM-5") criteria for Alcohol Use Disorder. He noted that Korsakoff syndrome, an irreversible form of brain damage that affects memory, may also be present as a result of the defendant's excessive alcohol consumption.
26. Dr Rodriguez also concluded that the defendant meets the DSM-5 criteria for a Paedophilic Disorder. Significantly, he was: "not convinced that [the defendant's] deviant sexual behaviour is better explained by an intellectual disability and the problems that arise from substance intoxication. This condition [a paedophilic disorder] is permanent and relapsing if the social conditions are present, such as an opportunity when unsupervised with female children"
27. Dr Rodriguez opined that the diagnoses "increase his risk of committing a further serious offence" because: 1. As a result of the defendant's mild intellectual disability "he has an impoverished capacity to distinguish right from wrong"; 2. The defendant's alcohol abuse would be a risk factor should he relapse; and 3. It is difficult for individuals with a paraphilic disorder to control sexual urges.
28. Importantly, Dr Rodriguez noted that it was likely that the efficacy of the sex offender treatment programmes was limited because of issues including impaired verbal skills, limited motivation and limited self-awareness. In his conclusion the defendant probably suffers from "an underlying paraphilic disorder, characterised by persistent (and sometimes intermittent) fantasy, urges and behaviour", this being a relapsing condition.
29. To formally evaluate the defendant's risk of sexual offending, Dr Rodriguez used a number of methods, including the Static-99 Risk Assessment tool ("Static-99R") and the Risk for Sexual Violence Protocol ("RSVP").
30. Using the Static-99R, Dr Rodriguez found that the defendant falls within the average risk category (being three); consistent with other actuarial assessments previously undertaken. The score was calculated based on the defendant's official criminal history and other documentation provided. The sexual recidivism rates for offenders who score three are between 7% and 8.8% over five years. The recidivism rate of individuals convicted of or charged with sexual offences with the same score as the defendant would be expected to be 1.39 times higher than the "typical" sex offender.
31. Age aside, Dr Rodriguez stated that the defendant's risk category score on the Static-99R will not vary over time.
32. Using a Dynamic Risk Assessment, Dr Rodriguez identified the following risk factors which should guide future management: 1. Although he denies a sexual interest in children, demonstrating little insight, the defendant has a history of serious sexual violence, and a pattern of offending against female children. 2. He consistently minimizes his sexual offending and blames others for his offences. Comments made by him in sex offender treatment programmes suggest that he may have "some entrenched negative views against women". 3. He has some problems with self-awareness concerning his mental processes. 4. He has difficulty coping with stress and interpersonal problems, primarily due his intellectual disability. 5. He has some antisocial traits, and problematic drinking and drug taking. 6. He has and is likely to continue to face problems with employment due to his age, period of unemployment, the restrictions of any mandated orders, and his intellectual capacity; all of which curtail employment opportunities. 7. He has demonstrated problems with planning, an example being his desire to live on his boat upon release from custody, refusing NDIS-supported accommodation. 8. He has demonstrated problems with accepting treatment in the past, ceasing alcohol rehabilitation and not co-operating with psychologists in custody. 9. He has difficulties accepting supervision, having previously breached parole and having failed to comply with rules when living in the Community Offender Support Program ("COSP").
33. Overall, Dr Rodriguez opined that the defendant falls into a group of offenders who are at a moderate to high risk for sexual re-offending. He concluded that the defendant's "risk can only be reduced by behavioural management, which involves placement, strict monitoring and supervision".
34. Dr Rodriguez believed that the defendant is at an "increased risk of committing further sexual offences particularly unsupervised and relapsing into alcohol abuse". He observed that, despite the defendant's age, serious concerns remain that he could commit another sexual offence should the opportunity present. As the defendant ages, his risk for sexual offending may diminish, however "there is no guarantee that he would not develop an interest in a new victim or re-offend". That risk is compounded by the defendant's limited emotional support, and limited employment prospects.
35. Risk could be mitigated by the absence of use of substances of addiction, including alcohol; and by the maintenance of a good mental state by taking prescribed medication. Engagement in work might promote a better self-image and provide the defendant with a sense of purpose, and potentially increased self-esteem and feelings of self-worth.
36. Dr Rodriguez was of the view that the defendant would need a comprehensive multi-agency risk management plan in place to manage his risk of re- offending. He observed that the defendant should never be unsupervised in the company of children under the age of 16. The doctor concluded that it is reasonable for the defendant to be supervised in the community as a forensic patient. An order extending forensic patient status would assist in managing his risk of violence within the period of supervision.
37. Dr Rodriguez concluded that accommodation in shelters would not be appropriate for the defendant due to his clinical profile and risks. He did not regard a Guardianship Order as able to effectively manage risk of sexual recidivism due to the limited powers the guardian has. The doctor regarded the defendant's registration on the Child Protection Register in New South Wales as of assistance in risk management insofar as it would add to police intelligence, deter the defendant from re-offending, and help monitor and manage him in the community. He observed that there may be a role for anti-libidinal medication.
38. Despite such measures, Dr Rodriguez concluded that "an extension of his forensic order is the least restrictive means of care". The doctor noted that the defendant requires status "as a forensic patient for a period of 5 years as his condition is permanent and unchangeable".
39. Dr Gerald Chew is a Senior Consultant General and Forensic Psychiatrist. For the purposes of preparing his report of 22 March 2021 to the Court, Dr Chew saw the defendant on 22 March 2021 at the Metropolitan Special Purpose Centre ("MSPC") at Long Bay for approximately 90 minutes. Like Dr Rodriguez the doctor had additionally been provided with relevant documentary material.
40. Dr Chew noted that at the time of the assessment the defendant was a 62 year old man had been detained in custody since 7 October 2015, being subsequently clinically managed by the Statewide Disability Services of CSNSW, Justice Health and Forensic Mental Health Network. Dr Chew described the defendant as cooperative, expressing himself in "simple language".
41. The defendant told Dr Chew that he was "pretty good", and spoke of his enjoyment of the area within the MSPC where he was housed. He noted, however, that he was pleased that accommodation was being arranged for him in the community.
42. Dr Chew took a history from the defendant, recording that he had six siblings, including a twin brother. The defendant said that he had been born "a blue baby", a reference to hypoxia at birth, and later attended special classes at school. His education ended when he was aged 15 years, and he left school. The defendant continues to struggle with literacy and told Dr Chew he "can only do the easy words". He is functionally illiterate.
43. Dr Chew noted that the defendant was married at the age of 22, with the marriage ending eight years later. There were six children of the marriage, and the defendant now has 13 grandchildren. Between 2006 and 2007 the defendant was in another relationship, but at the time of his arrest he was living alone on a boat.
44. The defendant has only ever been employed in casual roles in unskilled work such as labouring and lawn mowing. He has been in receipt of the Disability Support Pension since 1987 when in the community, due to his hearing impairment, low literacy and a back injury. In custody, the defendant was supported to work "doing packing".
45. In relation to his criminal background, the defendant denied being sexually attracted to children or having committed any of the sexual offences recorded in his criminal history, including the index offence. After prolonged prompting from Dr Chew, the defendant vaguely admitted "I may have done something once" and suggested this may have been because his wife was "trying to get at him and spiked his drink".
46. The defendant claimed that he was only attracted to females his own age and, although he had previously experienced a normal sex drive, it was now low and he "can't get it up".
47. In relation to the defendant's psychiatric history, Dr Chew noted that the defendant was assessed using the Wechsler Adult Intelligence Scale 4th edition ("WAIS-IV") in 2015 and 2019. The defendant's processing speed and working memory abilities were in the "extremely low range of functioning". His verbal abilities were in the moderate range and his perceptual reasoning abilities were in the average range. Primary hypoxic brain injury caused at birth, cerebrovascular disease, and his chronic excessive alcohol consumption are thought to have contributed to the defendant's cognitive impairment.
48. The defendant denied any symptoms consistent with psychosis, major mood disorder, anxiety disorder, previous major depressive or manic episodes, or severe mood fluctuations. The defendant told Dr Chew that he does not and has not experienced thoughts of self-harm or of harming others, although the doctor observed that there are documented incidents of violence towards others and some threats of self- harm in the documentary record.
49. Dr Chew noted that the defendant was commenced on an antidepressant, citalopram, in 2014 by a general practitioner ("GP"). Before he was incarcerated, the defendant had no contact with specialist mental health services and he has had no admissions to psychiatric hospitals.
50. In custody the defendant has been seen by a number of psychiatrists and GPs through the Justice Health and Forensic Mental Health Network and he has been treated with mirtazapine relatively consistently. Dr Chew noted, however, that the defendant "wasn't sure why he was taking an antidepressant".
51. Whilst in custody, the defendant has completed offence-related programmes, including the SRP:SO, and the EQUIPS Addiction programme.
52. Dr Chew noted the defendant's numerous medical problems. The defendant was reportedly "born blue" and required resuscitation at birth. He has chronic back pain resulting from a motorbike accident when he was 19 year's old, although he denied experiencing any head injury or loss of consciousness during that accident. Dr Chew noted the defendant also suffers from "moderate to profound sensorineural hearing loss". The defendant reported knowing of a sister and niece who also experience deafness.
53. Dr Chew also reported that the defendant has significant cardiovascular disease and is prescribed medication for hypertension and hypercholesterolemia. Dr Chew opines that the numerous heart attacks and seizures suffered by the defendant were caused by alcohol withdrawal. Further, Dr Chew noted that there were signs of a previous stroke.
54. With respect to the defendant's use of alcohol, Dr Chew noted that the defendant began drinking at around the age of 19, and by the age of 30 years he was drinking daily. Documentation reviewed by Dr Chew recorded that the defendant had previously admitted to often drinking to the point of "blackout", generally consuming at least 10 drinks per day. Dr Chew regards the defendant's history of alcohol misuse as contributory to his offending behaviour.
55. Regarding illicit drugs, Dr Chew noted the defendant denied using any illicit drugs but, when challenged about his cannabis use in 2009, he conceded "I smoked a little here and there, not much".
56. The defendant told Dr Chew he intended to abstain from alcohol and illicit drugs in the future.
57. Dr Chew had regard to the defendant's previous criminal history, including breaches of ADVOs in 1996 and 2005, a conviction for damaging property that occurred at a police station in 2008 when he was intoxicated, a conviction for AOABH in 2011 when intoxicated, a stalking offence committed when intoxicated, and allegations he was intoxicated with alcohol during access visits to his children. Plainly, alcohol use has been a significant risk feature.
58. Dr Chew diagnosed the defendant with an Intellectual Disability, a Mild Neurocognitive Disorder, and a Substance Use Disorder. Although the doctor was unable to diagnose the defendant with a paraphilia, specifically paedophilia, he was suspicious that "this may be a clinical concern."
59. Dr Chew had regard to the defendant's previously diagnosed depressive disorder but opined that it was of low clinical significance as he is in remission on medication.
60. Dr Chew noted the defendant scored 3, being an "average" risk assessment score, when assessed using the Static-99R and he has a moderate risk of reoffending. He opined that the defendant is unable to set realistic plans without assistance and noted his issues with supervision, evident in his previous breaches of parole.
61. Dr Chew recommended that the defendant should be subject to an adequate risk management plan to reduce the risk he poses, specifically a risk of sexual harm to young females. Dr Chew noted the defendant would benefit from a structured daily routine, a behavioural support plan, and continued drug and alcohol intervention. Dynamic risk factors, such as exposure to pro-social activities and positive relationships, stable and supportive accommodation, and a reduction in alcohol and substance misuse will assist, in the doctor's opinion, to minimise the defendant's risk of re-offending.
62. He considers that the defendant should be continually assessed by a psychologist or psychiatrist regarding potential paraphilia. If such a diagnosis is made, Dr Chew considered that anti-libidinal medication may assist in reducing the defendant's risk of sexual re-offending.
63. Whilst the defendant suffers from a complex set of psychiatric diagnoses he is not a mentally ill person or a person who is suffering from a mental illness as defined by the Mental Health Act 2007 (NSW) and thus a Community Treatment Order or classification as an involuntary patient is not available to him. Intervention under that legislative scheme will not be an option for managing any behavioural difficulties the defendant may manifest in the future.
64. Although Dr Chew regarded the Guardianship Order that is now in place over the defendant as a positive feature for his future stability, the doctor did not regard it as capable of adequately managing the risk the defendant poses to others.
65. It was Dr Chew's opinion that continuing the defendant's status as a forensic patient for a period of between three and five years would best manage the risks he poses to society and continue to mitigate the risks of serious harm to himself and others. The doctor considered that, by continuing forensic patient status, the defendant would be assisted to progress from a custodial environment to a suitable community facility, allowing him to increase independence under appropriate supervision. Acknowledging that services for forensic patients with an intellectual disability are not always adequate or even available, he said: "As a continuing forensic patient, in periods of instability, crisis or more minor breaches prior to any harm eventuating, it would be possible to breach Mr Delmege into various facilities including the Civil or Forensic mental health system. While I acknowledge that civil and forensic psychiatric hospitals are not ideal places for his treatment it is because there is a lack of specialist intellectual disability psychiatric beds in NSW. I note that in other jurisdictions globally there exists specialist intellectual disability forensic beds. However, in the current NSW system this would be in my view be an appropriate placement".
66. In addition to the report prepared pursuant to the Court's order, Dr Chew was also asked to provide a report to the MHRT as to the prospect of the defendant's conditional release. For that purpose, he saw the defendant for a second time on 29 March 2021. His resultant report of 30 March 2021 was also before the Court as part of the evidence relevant to the Attorney's application.
67. Much of the report echoes that which the doctor provided to this Court and it is not necessary to repeat it. In short, the defendant maintained his complete denial of the offences recorded in his criminal history, and asserted that his sexual interests were "normal". Despite that, the defendant was "open" to the use of anti-libidinal medications.
68. On administering risk assessment tools Dr Chew concluded that the defendant posed an average risk of recidivism for sexual offenders. His denial of sex offending and limited insight coupled with his history of sexual offending are material factors to the assessment of risk, as are his cognitive difficulties and the sequelae. Dr Chew told the Tribunal that: "Mr Delmege does pose a risk of harm to others without an adequate risk management plan. In particular the major risk of concern is sexual harm towards a minor".
69. He concluded that the defendant requires "ongoing management" to mitigate risk, and particularly "stable specialist disability supported accommodation" with 24 hour staffing; a structured and supervised daily routine; continued drug and alcohol intervention, perhaps including an anti-craving medication; a continuation of guardianship; continuing registration on the Child Protection Register; and consideration of an anti-libidinal medication.
70. Dr Chew observed that conditional release: "[…] would constitute care of the least restrictive kind that is safe and effective and available to him [and would best] ensure that both his safety and the safety of any member of the public are not seriously endangered".
71. Dr Chew was required by the defendant for cross-examination and gave evidence at the hearing before me.
72. He confirmed in evidence that the defendant had expressed a willingness to abstain from alcohol upon release to the community, observing that, although that willingness was in itself a positive feature, the defendant's capacity to abstain was difficult to predict. In the past, the defendant has consistently minimised his alcohol use to clinicians, and that and other features did not necessarily support the reality of his expressed intent. If the defendant's mood and domestic circumstances were equable it would be more likely that he could cease to abuse alcohol.
73. The doctor was equally cautious about predictions as to the defendant's future co-operation with support services. Acknowledging that the defendant had appeared accepting of and even pleased with the engagement of community based support services, Dr Chew observed that the defendant's interaction with such programmes in the past had been "pretty superficial and brittle". It was difficult to predict his level of future engagement.
74. One of the positive features of the defendant's management as a forensic patient under the auspices of the MHRT in Dr Chew's opinion was the Tribunal's experience and expertise in dealing with patients with the defendant's range of cognitive and other issues. Assistance to the defendant funded through the National Disability Insurance Scheme ("NDIS") was positive, but could not replicate the expertise and authority of the MHRT.
75. Despite the defendant's potential for alcohol abstention, and the community based support services that could be available to him, Dr Chew continued in the view that the risk posed to others by the defendant will be best managed in the future through the supervision of the Forensic Division of the MHRT. The powers available to the Tribunal meant that any escalation in problematic behaviour could be immediately and appropriately dealt with, mitigating risk as necessary. Whilst Dr Chew regarded as significant the oversight available through the Guardianship Order, supported accommodation, and the defendant's status as a person on the Child Protection Register, he did not consider these measures to be sufficient to adequately minimise risk. Dr Chew was not in favour of the defendant's unconditional release to the community, opining that the defendant's supervision as a forensic patient by the MHRT was necessary.

The Defendant's Case

1. The defendant read and relied upon: 1. An affidavit of Dr Katherine Johnson affirmed 23 November 2020 in which Dr Johnson acknowledged her appointment by the Court to act as tutor for the defendant; 2. An affidavit of the defendant's solicitor, Rand Al-Majed, affirmed 24 March 2021, which annexes a copy of a Guardianship Order made over the defendant on 3 March 2021, the defendant's NDIS plan that commenced on 10 February 2021, a copy of the brief provided to Care Metaz, Gorkan Villa (where the defendant hopes to be accommodated upon release from custody), and a copy of an Interim Behaviour Support Plan for the defendant prepared by Paul Williams, behaviour support practitioner; 3. A further affidavit of Ms Al-Majed affirmed on 19 April 2021 annexing correspondence about potential accommodation, funding by the Community Safety Fund ("CSF") and correspondence concerning a review of the defendant's NDIS plan. This evidence was somewhat overtaken by Ms Al-Majed's final affidavit of 28 April 2021. 4. Another affidavit of Ms Al-Majed affirmed on 19 April 2021 producing a copy of the Statutory Notice issued to the defendant on 2 February 2021 under the Child Protection (Offenders Registration) Act 2000 (NSW); and 5. Ms Al-Majed's final affidavit, of 28 April 2021 concerning funding available to the defendant in the community.
2. The Guardianship Order made 3 March 2021 appointed the Public Guardian as guardian of the defendant. Pursuant to the Order, the Public Guardian has functions of advocacy for the defendant, making decisions relating to health and medical care and accommodation and services. The Order also empowers the guardian to give or withhold consent regarding the use of restrictive practices as a last resort where necessary to prevent the defendant harming himself or others, and in accordance with a behavioural support plan. The guardianship order will continue for 12 months.
3. The NDIS plan annexed to Ms Al-Majed's 24 March 2021 affidavit commenced on 10 February 2021 and sets out the defendant's goals, and total funding by "Core Support". The "About me" section of the NDIS plan states: "I am not as good at looking after myself as I was before I was in gaol and might need more help when I am released than I needed before until I can improve. I am not confident I can cook and clean for myself and I will need help to take my medication. I worry that I might start using alcohol again when I find things are difficult".
4. The defendant's goals as recorded in the NDIS plan include reconnecting with family and making new friends, finding accommodation to support his needs, finding a suitable job, and improving his communication skills.
5. The Behaviour Support Plan ("BSP"), prepared by Paul Williams with respect to the defendant commenced on 2 December 2020 and concluded on 19 April 2021. The BSP summarised the defendant's mental and physical health diagnoses (available at the time) and his social skills. The BSP noted the defendant's concerning behaviours, including alcohol and cannabis use, sexualised behaviours and physical aggression. The BSP also set guidelines for communicating and interacting with the defendant to improve his likelihood of understanding and engaging, and to assist him to develop emotional regulation, social skills and skills to reduce his risk of sexual reoffending.
6. As at the date of Ms Al-Majed's affidavit of 24 March 2021 the defendant's intention, subject to adequate funding, was to reside at the Gorkan Villa operated by Care Metaz.
7. In her affidavit of 19 April 2021, Ms Al-Majed provided the draft transition plan outlining the persons and agencies intended to support the defendant upon release, at Gorkan Villa. At that time, the Community Safety Fund had declined the application for 24 hour "Supported Independent Living and Medium Term Accommodation" for the defendant, and the funding available to the defendant was insufficient for his acceptance at Gorkan.
8. The draft transition plan included a fall-back position if sufficient funding for accommodation at Gorkan Villa was not approved, which included accommodation in a staffed boarding house. Ms Al-Majed was called to give evidence before the Court at the hearing of the matter, principally as to the plan for the defendant if greater public funding to support the defendant in the community than that approved to date was not forthcoming. Ms Al-Majed explained that NDIS funding is available to people with disabilities, whilst the CSF deals with the transition of people with a disability into the community where assistance is needed in managing risks that may be posed to the community by such individuals. Ms Al-Majed gave evidence that the application to the CSF for the funding required to support the defendant's accommodation at Gorkan was refused, but that he still has separate funding through the NDIS for drug and disability support.
9. The evidence concerning alternative accommodation to that at Gorkan Villa has been superseded by Ms Al-Majed's affidavit of 28 April 2021, in which she advised the Court of the success of the defendant's appeal against the decision to limit funding to him.
10. By correspondence of 23 April 2021 the CSF advised that funding in an amount of just over $51,000 had been approved to facilitate eight weeks of supported independent living for the defendant, to be paid to Care Metaz for the defendant's accommodation at Gorkan Villa. The correspondence concludes: "Please note approval is subject to stakeholders understanding that this is temporary funding assistance. CSF is not a source of ongoing funding and additional requests will not be supported. Relevant stakeholders will need to identify and ensure sustainable funding is sourced".
11. On the basis of the revised funding amount available to the defendant, Gorkan Villa has indicated it will accept the defendant as a resident, and recruit appropriate staff to support his accommodation. The funding available to the defendant between the NDIS allowance and that of the CSF is sufficient to pay for 21.1 weeks of accommodation at Gorkan, inclusive of "8 hours per week Community Access".
12. The transition plan, which could be enacted given the enhanced funding, provides a transition timeline including weekly case conferences with Care Metaz staff and the defendant, to build rapport and introduce him to Gorkan, a proposal for transport to Gorkan on 12 May 2021, and arrangements for him to see a psychologist on 20 May 2021. After a time an occupational therapy assessment will be conducted and a further Interim BSP will be prepared.

Determination

1. The weight of the evidence before the Court supports the inevitable conclusion that the defendant presents a risk to others in the community and, particularly, of committing sexual offences against young girls.
2. As the defendant observed in submissions to the Court, there are gaps in his history of sexual offending. Whilst it is possible that those gaps evidence a capacity for self-control and positive change, as he submits, and support a determination by this Court to refuse to make the order sought, it seems more likely on the evidence that any absence of offending is the result of good fortune rather than good management.
3. It is likely that the defendant has a paraphilic disorder. His criminal history suggests as much, and the court appointed experts regarded that as either likely (Dr Chew, who suspected clinically that the disorder was present, without being able to diagnose it), or certainly so (Dr Rodriguez). Sexual dysfunction of that nature is ordinarily enduring: something to be managed rather than cured. Management of the defendant's predilection towards children as sexual objects is made even more challenging by his profound lack of insight, his intellectual disability, and his hearing loss, all of which tend to militate against learned improvements in behaviour, or a capacity for self control.
4. The defendant's alcohol and occasional drug abuse is another feature of his ordinary lifestyle in the community that points towards heightened risk. It is of course positive that the defendant has expressed an intention to remain free from substance abuse when released to the community, but there is a world of difference between intention and achievement, and the defendant's capacity to achieve his stated intent without significant support and supervision must be doubted. His previous inability to remain abstinent, his poor response to behavioural modification programmes in the past, and his cognitive difficulties, all lend weight to that conclusion.
5. Although it may be accepted that the defendant's access to young girls when in the community could be limited, and thus risk mitigated by lack of opportunity, that is hardly an acceptable failsafe. That is particularly so when consideration is given to the consequences of any risk manifesting, which would likely include severe and enduring psychological trauma to any victim, in additional to the harm done by the physical assault. The devastating and far reaching consequences to children of being used for the sexual gratification of adults is increasingly well recognised and understood: R v MJR [2002] NSWCCA 129 at [57]; (2002) 130 A Crim R 481. It can be concluded that, if the defendant were to sexually assault or otherwise sexually engage with an underage child, the outcome for that child will be an adverse one, and likely severely adverse.
6. Dr Chew, Dr Rodriguez, and Dr O'Dea are unanimous in regarding the defendant as posing a risk to the community if unsupervised, a risk which I conclude is an unacceptable risk of causing serious harm to others. It is relevant to observe in that regard that, although the likelihood of the risk manifesting may not be high, if it did manifest, the consequences would be catastrophic for the child involved. It is that which grounds my conclusion that the risk is an unacceptable one.
7. The next consideration is whether that risk can be managed by measures less restrictive than an extension of the defendant's status as a forensic patient.
8. The defendant argues that the combination of supervisory and support regimes available to him in the community are sufficient to mitigate risk such that an extension order is not warranted.
9. Firstly, as the evidence of Ms Al-Majed demonstrates, the defendant is a person subject to the Child Protection (Offenders Registration) Act 2012 (NSW), meaning that he will be subject to a regime of police supervision when in the community. Secondly, a Guardianship Order empowers his guardian to decide questions relating to treatment, medication, and accommodation, all matters that have a significant potential to mitigate risk. Thirdly, the supported accommodation regime that is now available to him is such as to negate any real risk of offending by him.
10. It is submitted that the comprehensive and now funded discharge plan devised for the defendant achieves an appropriate balance between managing risk, and permitting the defendant to reintegrate into the community in the least restrictive circumstances possible.
11. If the defendant's current status as a forensic patient expires without an extension order having been made, he will be discharged from prison in a matter of a few days time with no mandatory supervision. Instead, the network of community based support services would work voluntarily with the defendant. He argues that this is enough, and the least restrictive means, of mitigating risk.
12. I accept that there are agencies and persons who are available to assist the defendant, and that the assistance he would receive would be beneficial to both him and the community. The documentary record annexed to Ms Al-Majed's affidavit of 19 April 2021 is testament to the dedication and commitment of various persons - not least of them Ms Al-Majed - who have worked continuously in the period leading up to the hearing of this application to find and put in place services to support the defendant, with the view to making it possible for him to live in the community without the potentially restrictive intervention of the State. Staff of the Mental Health Advocacy Service, Statewide Disability Services at the Department of Communities and Justice, the NDIS, Lifestyle Solutions, and others are to be commended for their respective efforts, and their passion for their tasks.
13. However, the supportive regime put in place is neither an acceptable means of mitigating risk, nor is it necessarily the least restrictive, in my conclusion.
14. Supported accommodation will go some distance to ensuring that the defendant is able to live in a positive way in the community. The proposed accommodation, Gorkan Villa, provides accommodation to people over 55 with a disability within a complex secured by gates at the entry points: Annexure C to the affidavit of Ms Rand of 24 March 2021.
15. Staffing levels are determined by the funding allocated to the individual. It is not entirely clear from the material annexed to the 24 March 2021 affidavit, or that annexed to Ms Al-Majed's affidavit of 28 April 2021, if the allocated funding, about $51,000, together with NDIS funding, is adequate to pay for both accommodation and for appropriately trained staff to be on hand 24 hours a day, but I proceed on the most favourable inference to the defendant, being that, for a period of 21.1 weeks, staff would be available at that level to support the defendant at the proposed accommodation.
16. Although staff supervising the defendant at the villa would have no power to direct the defendant, it may be that the Public Guardian would give consent to "the restrictive practice of environmental restraint" to influence the defendant's behaviour, noting that such consent can only be given pursuant to the Guardianship Order as "a last resort to prevent [the defendant] harming himself or others; and in accordance with a behavioural support plan": Guardianship Order of 3 March 2021.
17. If "environmental restraint" was authorised, concerns arising from the location of the villa in close proximity to schools, one of which - a primary school - is only a seven minute walk away, could be addressed.
18. However, the immediate observation that arises on the evidence is the question of what is to happen to the defendant at the expiration of those 21.1 funded weeks of supervised accommodation if no extension order is made. Correspondence in evidence before the Court from the CSF makes clear that the funding it has now approved is not renewable, and alternative sources of monies must be found once the current grant is exhausted. There is no evidence as to what other public funding might be available to the defendant to meet the relatively high costs of supported living, beyond that provided through the NDIS. That funding alone is not sufficient.
19. There must be at least some prospect that the defendant would leave the villa for less suitable accommodation after the funded period expires, such as that suggested for the defendant in Ms Al-Majed's oral evidence to the Court, as a back-up plan to Gorkan Villa.
20. A boarding house is not suitable accommodation in my view: there would be no means of knowing who other residents might be, and whether any vulnerable young people may be of their number; no dedicated staff would be consistently available to the defendant to support him; and his past conduct when in residence at a COSP does not suggest that the defendant would be able to live harmoniously in such an environment.
21. The Guardianship Order would continue until March 2022, but is of lesser utility to mitigate risk if the defendant were not fully supervised by appropriately trained support staff.
22. More generally, the Order is a positive feature but, as Dr Chew observed in his oral evidence, the guardian's powers do not match those of the MHRT. Whilst s 21A of the Guardianship Act 1987 (NSW) provides for a guardianship order to specify that the person appointed as guardian - in this case the Public Guardian - "is empowered to take such measures or actions as are specified in the order so as to ensure that the person under guardianship complies with any decision of the guardian in the exercise of the guardian's functions", there is no such specification in the order made relevant to the defendant.
23. Thus, the guardian has no power to compel the defendant to do a particular thing, or to sanction him if he failed to do as directed. The guardian could, for example, make a decision about medication that the defendant was to take, potentially including anti-libidinal medications, but that decision would not ensure that the defendant took the medication and, if he did not do as the guardian had decided he should, the guardian could not take coercive action against the defendant.
24. The defendant is a registrable child sex offender for the purposes of the Child Protection (Offenders Registration) Act, and the supervisory powers of police under the Act are relied upon by the defendant as a means of mitigating risk. Registration certainly has consequences for the defendant's life in the community and will require him, upon release from custody, to report to the Commissioner of Police (NSW) and provide particular information to the Commissioner. The information required pursuant to s 9 of that Act is considerable, and includes his residential address and details of others who reside there, details of any internet service he may use, all email addresses and internet usernames, the details of any telephone service he may have or use, and advice of any proposed travel out of New South Wales.
25. Police have some limited powers to search a registrable person's residence for particular reasons, without warrant: s 16C.
26. The problem with reliance upon the statutory regime provided by the Child Protection (Offenders Registration) Act to manage risk is twofold. Firstly, it is a regime of reporting and prohibition, rather than continuous supervision. The defendant will be required to do certain things, and there will be (potentially severe) consequences for any failure. For an individual with the defendant's level of cognitive impairment, and his lack of insight, it is highly questionable as to whether this regime, and the fear of the sanction of a criminal prosecution and potential imprisonment, will have the effect of controlling the defendant's conduct. In my view, it is highly doubtful that it will achieve much beyond exposing the defendant to the risk of imprisonment.
27. That risk is the second problem: the consequences of any breach of the terms of registration are potentially severe. Failure to comply with the obligations imposed upon the defendant by the Act is a criminal offence carrying a maximum penalty of five years imprisonment upon conviction: s 17. The potential for the defendant to breach the Act, and be imprisoned as a consequence, is hardly a measure of least restriction. By contrast, if the defendant exhibited problematic behaviour following conditional release to the community as a forensic patient, the option would be available for him to be placed by the MHRT in a therapeutic setting, as opposed to necessarily a custodial one.
28. As Dr Chew observed in his evidence and in his report to the MHRT, even considering all of the community support available to the defendant, the least restrictive means of mitigating risk is an extension of the defendant's status as a forensic patient.
29. For these reasons I am satisfied to a high degree of probability that the defendant poses an unacceptable risk of causing serious harm to others if he ceases to be a forensic patient, and that the risk cannot be adequately managed by other means less restrictive than that extension.
30. It is not at all inevitable that an extension of that status will mean that the defendant will continue to be incarcerated beyond the expiration of his limiting term, as he seems to fear. That will be a matter for the Tribunal, but it may be that the Tribunal will order the defendant's conditional discharge, perhaps to live at the Gorkan Villa, or some other appropriate place, in the near future. Whatever course the MHRT determines is appropriate, only by extending the defendant's status as a forensic patient can the community be adequately protected.
31. As to the term of the order, the weight of the evidence points to it being for the maximum term of five years, the commencement date being 11 May 2021, in accordance with s 128(1)(a) of the MHCIFP Act. The defendant's difficulties are enduring; he will not "get better". I accept the evidence of Drs Chew, Rodriguez and O'Dea in that regard. It is likely that the defendant will require lifelong support and supervision.

orders

1. The orders the Court makes are: 1. Pursuant to ss 121(1) and 128 of the Mental Health Cognitive Impairment Forensic Provisions Act 2020 (NSW) the defendant's status as a forensic patient is extended for a period of five years from the date of commencement of this order. 2. The Registrar of the Court is to notify the Mental Health Review Tribunal of these Orders.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 05 May 2021