By way of a summons filed on 22 August 2019, the plaintiff, the Attorney General for NSW, seeks an extension order in respect of the defendant, John Patrick Peckham, pursuant to clauses 1 and 7(1)(a) of Schedule 1 to the Mental Health (Forensic Provisions) Act 1990 (NSW) ("the Act"), in extending his status as a forensic patient for a period of two years. Mr Peckham opposes the orders sought.
Mr Peckham has been the subject of an interim extension order from 16 September 2019 for a period of three months: see State of New South Wales v Peckham (Preliminary) [2019] NSWSC 1150 ("Peckham (Preliminary)").
The matter came before the Court on 22 November 2019 for a final hearing on the State's application for the extension order.
Mr Peckham will cease to be a forensic patient and must be discharged from detention at the expiry of the interim extension order unless he is the subject of the extension order sought. For the reasons set out herein, I am not satisfied that an extension order should be made.
[2]
The Legislative Scheme
Mr Peckham comes to be a forensic patient because, as recorded in Peckham (Preliminary), he was found by Judge Mahoney SC of the District Court to be unfit to be tried and then, subsequent to a review by the Mental Health Review Tribunal ("the Tribunal"), he was subject to a limiting term of three years commencing 17 September 2016. He is thus a "forensic patient" within the meaning of s 42 of the Act.
As set out in pt 5 div 2 sub-div 3 of the Act, there may be a number of circumstances in which a forensic patient ceases to be a forensic patient.
Specifically and relevantly for the purposes of this matter, as set out in s 52(2)(a) of the Act, a person who has been detained in a mental health facility, correctional centre or other place following a special hearing ceases to be a forensic patient if "the limiting term … imposed in respect of the person under section 23 expires and an extension order or interim extension order has not been made against the person". Mr Peckham is currently subject to an interim extension order which will expire on 15 December 2019.
Section 40 is contained within Part 5 of the Act, which deals with forensic patients and correctional patients, and sets out the objects of the Part which include:
(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 are suffering from a mental illness or mental condition,
…
(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 to acknowledge the harm done to victims.
I would have regard to the objects of the Part in making any determination in respect of the State's application.
Section 54A of the Act provides that a person's status as a forensic patient may be extended in accordance with Schedule 1.
The persons who can be made the subject of an extension order are only those who fall within the criteria set out in sch 1 cl 2(1) as follows:
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.
It follows that an extension order can only be made if the forensic patient poses an unacceptable risk within the meaning of cl 2(1)(a) and that unacceptable risk cannot be adequately managed by other less restrictive means as referred to in cl 2(1)(b) of Schedule 1 to the Act.
For the purposes of this application, the Court must be satisfied of both matters. However, as set out in sch 1 cl 2(2), the 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.
The matter has been subject to the pre-hearing procedures set out in sch 1 cl 6 of the Act. As noted in Peckham (Preliminary), the Court has made orders appointing two qualified psychiatrists to conduct separate examinations and to furnish reports to the Court. Those reports have been provided for the purposes of the hearing and those experts have given evidence.
The Court may determine the application by making the order or dismissing the application: sch 1 cl 7(1). Whilst an extension order can only be made if the two criteria set out in sch 1 cl 2(1) are established, even if the two criteria are satisfied, the Court still has a discretion whether to make an extension order.
In exercising that discretion and determining whether or not to make the order, the Court must have regard to the matters set out in sch 1 cl 7(2) of the Act as follows:
7 Determination of application for extension order
…
(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 clause 6(5) to conduct examinations of the forensic patient,
(c) the report of the qualified psychiatrist, registered psychologist or registered medical practitioner provided under clause 5(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 Family and Community Services 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 he or she is or has been subject while a forensic patient (including while released from custody subject to conditions and while on a leave of absence in accordance with section 49 or 50),
(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.
Mr Peckham is currently in detention. He has made an application for release. As he is a forensic patient, that application is to be heard by the Tribunal. That application was listed for hearing before the Tribunal on 7 November 2019. The plaintiff filed written submissions opposing his release. Mr Peckham applied for and was granted an adjournment.
Section 43 of the Act is in the following terms:
43 Criteria for release and matters to be considered by Tribunal
The Tribunal must not make an order for the release of a forensic patient unless it is satisfied, on the evidence available to it, that:
(a) the safety of the patient or any member of the public will not be seriously endangered by the patient's release, and
(b) other care of a less restrictive kind that is consistent with safe and effective care is appropriate and reasonably available to the patient or that the patient does not require care.
Section 43 is in different terms to sch 1 cl 2 of the Act. The test to be applied by the Tribunal in considering release into the community is thus not the same test as the Court must apply in determining whether to make an extension order. In particular, the Tribunal must consider the safety of the patient, which may require a consideration of a patient's propensity for self-harm.
The application for release is now likely to be heard on 13 February 2020. There is no evidence that it will be heard before then. Ms Wright, Counsel for the plaintiff, appropriately also indicated that the Tribunal may reserve its decision and take some time to come to its decision, at least some weeks, even after hearing the application. Ms Wright also candidly indicated that she had no instructions as to whether the plaintiff might or might not continue to oppose Mr Peckham's release, it having previously opposed his release.
[3]
Mr Peckham's Background
Mr Peckham is currently 60. He is the oldest of 9 children and left school in Year 9. He says that he had worked in various welfare agencies for many years and also worked as a truck driver and worked assisting women in domestic violence relationships to gain long term accommodation. He had been in receipt of a disability support pension. He had been living in accommodation provided by the Department of Housing for a period of 12 years prior to the index offence. He has been assessed as falling in the extremely low range of intelligence and could be considered as having a mild intellectual disability. He has suffered from periods of heavy alcohol use and substance abuse, particularly in his earlier years. He is a long-term sufferer of depression.
Mr Peckham has had 4 relationships since he was a young man. At some point, more than 5 years before the offence, he entered into a relationship with Dorothy Blayney. She suffered from her own mental health problems and had been admitted into a psychiatric hospital immediately prior to the index offence. Mr Peckham and Ms Blayney had ceased their intimate relationship on 9 July 2016.
[4]
The index offence
On 17 September 2016, Ms Blayney and a male friend, the victim, returned home from the psychiatric facility where she had been staying to the apartment where Mr Peckham was staying, to collect some belongings. Whilst they were all in the apartment, an incident occurred involving knives being held by Mr Peckham. The victim sustained injuries leading to the charge of reckless wounding causing actual bodily harm.
According to the findings on the special hearing and, in particular, the Crown case statement, when the victim and Ms Blayney arrived at the apartment, the victim waited in the lounge room and Ms Blayney went to her bedroom to collect some belongings. Screaming was heard shortly thereafter. The victim ran towards the bedroom where he saw Mr Peckham standing with his arms behind his back. Mr Peckham said he wanted to talk and the victim attempted to usher him out of the apartment. At that time, Mr Peckham pulled his hands up to head height and the victim observed that Mr Peckham was holding a knife in each hand. The victim attempted to grab Mr Peckham's wrists. Mr Peckham made a slashing motion striking the victim's face, causing it to bleed. A struggle ensued and the victim suffered further injuries. It is not suggested that Ms Blayney suffered any injury or that Mr Peckham had attempted to use the knives against Ms Blayney.
It remains a point of contention for Mr Peckham whether he was holding one or two knives. He has always maintained that he was only holding one. Mr Peckham adduced no evidence on the special hearing.
The differing versions of the incident were again raised on this hearing, perhaps because Mr Peckham's adherence to a different version of events has at least in part caused the psychiatrist to suggest that he continues to lack insight into his offending. Mr Peckham disputes this.
[5]
Events since the index offence
Mr Peckham was found unfit to stand trial by Judge Mahoney SC of the District Court on 22 October 2018. As observed by Judge Mahoney SC, the central issue related to Mr Peckham's capacity to potentially withstand the stress of a trial and whether anxiety and cognitive problems might impact detrimentally on his ability to participate adequately in a trial and potentially harm his defence. He accepted the psychiatric evidence which was primarily related to his anxiety and cognitive problems.
Mr Peckham was reviewed by the Tribunal in April 2019, at which time the Tribunal determined that, in view of the defendant's intellectual disability and chronic depressive disorder, he was not fit to be tried and would not be within the next 12 months.
After spending some time in Long Bay Hospital, he was admitted to the additional support unit at the Metropolitan Special Program Centre at Long Bay Correctional Centre where he remains.
This application is being made at a time when Mr Peckham remains in detention but on the basis that the Tribunal will probably be considering whether he should be released in February 2020.
Despite the plaintiff opposing his conditional release when before the Tribunal in November 2019, this application has been conducted on the basis that the real issue is, when he is released, whether he should still be under the supervision of the Tribunal. If "less restrictive means" for the purposes of this matter is a reference to less restrictive means than his current situation, I suspect that even the plaintiff would agree that the criterion in sch 1 cl 2(1)(b) of the Act is not established.
It is important to emphasise that the defendant does not suffer from a mental illness within the meaning of the Mental Health Act 2007 (NSW). Further, on the evidence on the application (being the oral evidence of Dr Eagle) it is unlikely that the defendant could be the subject of a community treatment order ("CTO") as his mental health condition is depression. Dr Eagle said that none of the patients she has treated with depression have ever been the subject of a CTO.
Of course, there is an essential difference between the Act and the Mental Health Act in terms of their purposes and objects. The Tribunal may make a CTO on the application of an authorised medical officer (and may revoke a CTO) but the Tribunal is not required to take account of the safety of the community in making such decisions. On the other hand, the safety of the community is fundamental to the decisions of the Tribunal in respect of a forensic patient.
A forensic patient is subject to the oversight of the Tribunal. This is the critical point in this matter as even the plaintiff proceeded on the basis that the difference between the parties was whether the defendant should remain a forensic patient and subject to the oversight of the Tribunal or whether the risk could be adequately managed by other less restrictive means.
There is an overlap in the evidence in considering whether the threshold criteria set out in sch 1 cl 2 of the Act are established and then whether the Court should make the extension order having regard to the matters set out in sch 1 cl 7.
[6]
Views of the Court that imposed the limiting term - sch 1 cl 7(2)(h)
In his judgment on the special hearing on 9 July 2019, Acting Judge Berman SC made a finding that he was satisfied beyond a reasonable doubt that Mr Peckham realised that his actions might cause actual bodily harm to the victim if he continued to act in the way that he was, such that he made a finding that Mr Peckham had committed the offence of being reckless as to causing actual bodily harm to the victim (not Ms Blayney).
In relation to the limiting term, Acting Judge Berman SC found that Mr Peckham had suffered from a mental illness for many years, although the psychiatrists who have examined him for the purposes of this application suggest that he does not suffer from a mental illness. His Honour may have been using the term in a more general way for the purpose of considering the appropriate limiting term. His Honour also reviewed Mr Peckham's criminal history, noting that at the age of 59 he had never been sentenced to full-time custody.
[7]
Criminal history - sch 1 cl 7(2)(i)
Mr Peckham has a criminal history. However, his last offence involving violence was committed 17 years before the index offence.
He has been previously charged with a number of assault-type offences commencing when he was 16. He has also been the subject of a number of driving and alcohol related offences although they do not seem particularly relevant for the purposes of this application, particularly as the last driving offence was 20 years before the index offence.
In terms of his violence related offences, in 1976, he was convicted of assaulting Police when he was 16. Then, in 1987, he was charged with assaulting Police at the same time as driving offences, including refusal of breath test and resisting arrest. In 1995, he was convicted of assault and sentenced to 100 hours of community service. In 1999, he was convicted of common assault and placed on his own recognisance for a period of 12 months on the basis that he continue with counselling from Odyssey House. This was at a time when he had a substance abuse problem. That was his last violence related offence. In 2015, he faced charges in respect of damaging property for which he received a bond.
Mr Peckham says that the offences relating to assaulting Police and resisting arrest arose in circumstances in which he was intoxicated and resisted being placed into a Police van.
[8]
Review of the findings of the Tribunal / other psychiatric reports - sch 1 cls 7(2)(d)-(e)
The Tribunal made orders detaining Mr Peckham on 19 December 2018. The hearing was then adjourned for three months to enable an assessment of his fitness to be tried. It was then adjourned until 4 April 2019 to allow Dr Matthew Hearps to give evidence.
In its decision of 4 April 2019, the Tribunal referred to reports from Dr Johnathon Adams dated 18 April 2018 and Dr Adam Martin dated 22 July 2018. Dr Adams opined that Mr Peckham did not satisfy the minimum standards for fitness as set out in R v Presser [1958] VR 45 as, due to his decreased capacity to deal with stress, he would not have had the resilience to endure a lengthy trial. Dr Martin considered that it was likely that Mr Peckham would decompensate during a trial, harming his ability to fully participate in such a process and his ability to mount a defence.
The Tribunal also had before it the reports of Ms Louise Tunks and Ms Emily Higgings, both psychologists with the Statewide Disability Services. Ms Tunks is the psychologist who has been reviewing and treating Mr Peckham whilst in detention. She has seen him on 54 occasions.
He has engaged in one threat of self-harm when he first arrived and a subsequent incident of self-harm following a Court escort attempt. There had been one further recent threat of self-harm on 16 February 2019 following an expected visit which had not occurred.
Ms Tunks noted that Mr Peckham presented as polite, engaged and forthcoming, although he struggled with word retrieval. She said there was no evidence of perceptual or thought disturbance and he presented with overall improved mood, sleep, appetite and energy within normal limits, future oriented and improved coping. He demonstrated high levels of motivation to focus on goals. He exhibited intermittent episodes of affect instability when experiencing situational stresses. He continued to struggle with adjusting to incarceration and his mental health conditions were exacerbated by ongoing detention.
Ms Tunks believes that Mr Peckham requires a collaborative, coordinated and robust support system both in custody and in the community which is able to provide adequate supervision as well as assistance to enable him to achieve his goals across a range of life domains, for example, in education, work, social relationships and leisure activities.
Dr Hearps provided a report dated 5 March 2019. He observed that Mr Peckham may have shown improvement during his two years in custody which was attributable to regular anti-depressant medication, abstinence from alcohol and benzodiazepines, psychological support and a structured environment. His depressive disorder occurs on the backbone of child adversity and trauma. He considered that Mr Peckham should continue to take his antidepressant medication and consult a psychologist. He should continue treatment abstaining from misuse of prescribed medication and alcohol. He would require significant support from the community.
The Tribunal made findings under s 16 of the Act that, because of his intellectual disability and chronic depressive disorder, Mr Peckham did not meet the criteria for fitness to be tried for the offence and would not become fit during the period of 12 months after the finding of unfitness.
The Tribunal also made findings with reference to ss 46 and 47 of the Act, noting that the evidence before the Tribunal was that Mr Peckham's mental health was exacerbated by his ongoing custody. However, at that time, the Tribunal considered that the present placement, that is, in detention, was the least restrictive option for treatment and care which was reasonably available to him. As I have said, the evidence before the Court is overwhelmingly to the effect that he can be in the community.
[9]
Compliance with obligations whilst a forensic patient - sch 1 cl 7(2)(g)
There are extensive case notes in respect of Mr Peckham's period in custody. They tend to support the history given by Mr Peckham to his treating doctors and his accurate recollection of any periods of self-harm. In my view, they tend to demonstrate general compliance rather than lack of compliance, although I was directed to case notes of 18 February 2019 and 29 April 2019. Mr Peckham's brief non-compliance on occasions appears to have been a response to perceived problems such as being forced to miss a visit from a support worker or problems with other inmates.
Other than these matters, Mr Peckham appears to have been generally compliant whilst in custody. He has been compliant in regularly attending psychological services, accepting treatment and taking medication.
[10]
The report of the qualified psychiatrist provided under clause 5(b) - sch 1 cl 7(2)(c).
The report of Dr Richard Furst dated 11 August 2009 was considered in Peckham (Preliminary) at [17]-[25]. It is not necessary that I repeat the comments of Bellew J contained therein except to say that I must have regard to the evidence adduced by Mr Peckham on this application, which to a certain extent might qualify or address some of the concerns raised by Dr Furst. There is now more substantial evidence addressing Dr Furst's concerns as to the level of support that Mr Peckham will receive on release.
[11]
Evidence relied on by Mr Peckham - sch 1 cl 7(2)(i)
Mr Peckham relies on affidavits of Tamlyn Holtz, Donna Boyd and Bria Hinder, all affirmed on 18 November 2019.
Mr Peckham has in place an extensive support package for when and if he is released from detention. He has an approved NDIS package which provides for support for short term accommodation until arrangements are made for permanent accommodation through the Department of Housing. He has one-on-one professional support services for four hours each day to assist him in performing any daily tasks. He will also be assisted with appointments with organisations such as Centrelink and the Department of Housing. His package includes psychological counselling and access to allied health professionals to address his living needs. Whilst the NDIS package is currently only approved for a limited period, there is no reason to expect that it will not be renewed.
He will also receive ongoing support from the Community Restorative Centre which is a specialist support programme for male prisoners which provides post-release support.
Mr Peckham relied on a letter from Mr Ramariez at Three Bridges Community dated 20 August 2019. Mr Ramariez will provide daily support.
Mr Peckham also relies on affidavits from Donna Boyd, a Client Support Officer employed by St Vincent de Paul Society. Ms Boyd also gave evidence. She has known Mr Peckham for approximately 10 years and has visited him regularly whilst he has been in detention. She refers also to another volunteer from St Vincent de Paul Society, Michael Harrington, undertaking regular visits.
Ms Boyd has been in contact with representatives of Statewide Disability Services as well as Tamlyn Holtz, the Support Coordinator, who has been involved in devising the programme to allow Mr Peckham to access the NDIS funding for accommodation in the short term after his release. Ms Boyd will be a constant in Mr Peckham's life on release. She provides another level of support to him on top of that provided by the NDIS package.
Annexed to Ms Boyd's affidavit is a letter from Bria Hinder from the Community Restorative Centre dated 19 November 2019. She first met Mr Peckham on 5 August 2019. She was working with him to assist in the transition from detention to the community in the anticipation that he would be released on 16 September 2019. She says that once a release date has been set, community support can be continued in collaboration with his NDIS support.
Ms Boyd gave evidence specifically directed at what would happen with Mr Peckham if he is released in the very near future. She explained the role of the NDIS support coordinator from Three Bridges Community and the NDIS package which involves social support and overseeing medication and support within the home.
She said that St Vincent de Paul Society has a longstanding relationship with Burwood Bed and Breakfast which provides accommodation short to long term which is financed by St Vincent de Paul. She has already ensured that there is accommodation available to him at that facility. She said that those arrangements can be put in place very quickly. He would have his own room with his own bathroom and a shared kitchen and he would be supported with his social visits as well as all the NDIS supports. She would see Mr Peckham once a week and she would also speak to him over the phone more regularly.
She says that when she first met Mr Peckham his finances were a mess, but she worked with him on a budget and he took control and responsibility for doing that. She said that it is very likely that he would have permanent housing organised but she could not start the process until he is released. She expressed confidence that, with her contacts, she could organise permanent housing. Under cross-examination, she said that he could stay in the Burwood Bed and Breakfast for up to six months which was plenty of time for her to organise permanent housing. She thought it would probably be a bedsitter or a one bedroom apartment. She also referred to the long term volunteer member, Michael Harrington, who was also present in Court, visiting Mr Peckham regularly.
The assistance of Ms Boyd and Mr Harrington will be on top of the NDIS package. Ms Boyd's evidence is to the effect that he will have daily support through the NDIS package with her additional involvement as well as the work of the volunteer, Mr Harrington. Ms Boyd has a long term professional relationship with Mr Peckham. There is no reason to suspect that she will not be providing the services or support to which she refers.
[12]
Evidence of the psychiatrists who examined Mr Peckham pursuant to clause 6(5) - sch 1 cl 7(2)(b)
Mr Peckham was examined by Dr Marcello Rodriguez on 12 and 21 September 2019, pursuant to the orders made in Peckham (Preliminary). He has provided a report dated 1 October 2019. Mr Peckham was also examined by Dr Kerri Eagle pursuant to those same orders. Dr Eagle provided a report dated 25 October 2019. Both doctors gave oral evidence.
There is a consistency of diagnosis in that it is agreed that the plaintiff suffers from a persistent depressive disorder and a borderline personality disorder. He previously suffered from an alcohol abuse disorder and a substance use disorder which are both in remission. Mr Peckham also suffers from an intellectual disability having regard to the results of his psychological testing. Both doctors agreed that Mr Peckham does not suffer from a mental illness and he is not a mentally ill person as defined by the Mental Health Act, although Dr Eagle did use the term "mentally ill" in her oral evidence, suggesting that she was using it in a clinical way.
Dr Rodriguez opined in his report that Mr Peckham falls into a moderate risk group for violent re-offending which suggests an ongoing need for a moderate level of support, monitoring and supervision. In oral evidence, he refined his view somewhat, accepting that the risk would be low with adequate support and supervision in the community. He suggested that Mr Peckham's only risk factor is currently related to limited insight into his offence. Mr Peckham does not, in Dr Rodriguez's view, present with problems related to violent ideation or intent, symptoms of mental disorder or instability.
Dr Rodriguez acknowledged that risk factors are subject to fluctuation in certain settings. As Dr Rodriguez said, there would be a high risk of violence in similar circumstances to the index offence but agreed in cross-examination that the offending was particularly focused, meaning that the circumstances existing at the time were very unusual. As pointed out by Ms David on behalf of Mr Peckham, the circumstances were so focused that they are unlikely to reoccur.
Dr Rodriguez agreed that Mr Peckham seemed motivated and agreeable to receive treatment, supervision and other assistance which would be available to him and that in this instance (meaning that if the support is provided) his risk of violence would be low. Further, if the risk management plan is effective, his risk for stress or limited coping will be reduced.
Dr Rodriguez considered it reasonable for Mr Peckham to be supervised for a period in the community under a limiting term as a forensic patient. This order would assist in managing his risk of violence within a supervised period. He identified benefits including:
Assisting him with safe accommodation options;
Ensuring that he receives public mental health treatment;
Providing regular oversight by case management and psychiatrist reviews;
Prescription and medication reviews of therapeutic benefits;
Provision of psychological treatment;
Provision of DNA services;
Provision of NDIS services and St Vincent de Paul Society services; and
Overseeing his medical condition.
Dr Rodriguez accepted in cross-examination that the practical support, meaning the implementation of the support which would lead to the benefits suggested by him, would be provided through the NDIS package and additional support Mr Peckham would receive.
Dr Rodriguez was taken to the earlier report of Dr Jones and asked about the specific focus of the offending. He agreed that he did not have any other evidence which would suggest he was using force or violence in any other context and he agreed that the circumstances were very unusual. However, he did not agree that the forensic oversight by the Tribunal is unnecessary. He said that this in part was because he did not know the people who would be providing the support package to which I have referred and was unaware of their backgrounds. He was not familiar with the Community Restorative Centre. He agreed that involvement with the community and mental health service is itself a significant protective factor.
In re-examination, he was asked about Mr Peckham's capacity to regulate his behaviour in certain circumstances. He said that "in a certain set of circumstances, including stress, using substances, forming a new relationship, it could be stressful for him, feeling isolated or lonely in the community", but he said he could not comment on whether he would reoffend.
When asked about the role of the Tribunal he said that the Tribunal can direct mental health services to provide psychiatric oversight but the practical oversight will be provided by the NDIS and his support package.
Bearing in mind that the plaintiff bears the onus of establishing the matters referred to in sch 1 cl 2(1) of the Act, it does not seem to me that Dr Rodriguez's oral evidence necessarily assists the plaintiff.
Dr Eagle provided a comprehensive report. She observed that Mr Peckham demonstrated difficulty accepting responsibility for the index offence but he could acknowledge with some prompting that his misuse of prescription medication and his unstable relationship may have contributed to the offending. He was able to identify appropriate strategies to minimise the risk of offending in the future. Dr Eagle reviewed the report of Dr Furst, noting that Dr Furst did not have the opportunity to personally assess Mr Peckham.
Dr Eagle said that Mr Peckham requires a robust support network and that the NDIS funding package has the potential to provide that level of support in combination with regular reviews by a GP and access to a community mental health team in a crisis. She said that referral to Foster House is not an ideal situation as Mr Peckham required stable accommodation in the community. At the time of preparing her report, Dr Eagle was obviously not aware of Ms Boyd's evidence about the accommodation available to Mr Peckham.
In her report, Dr Eagle opined that Mr Peckham "poses a risk of causing serious harm to others in the community if he ceases being a forensic patient at this stage". She did not specify the nature and level of the risk. She said he required a period of supervision.
This issue was taken up with her in cross-examination. She said that she preferred not to use terminology in terms of describing risk as low, medium and high. It was a matter of identifying risk factors and then considering risk management. She said that a robust risk management plan is needed to address a number of risk management factors and clinical factors that are still present.
[13]
Determination
The process of obtaining an extension order is a staged process. The plaintiff has made an application and obtained an interim extension order having regard to the evidence available at that time. In this matter, further evidence has been obtained on behalf of Mr Peckham and the expert psychiatrists appointed in accordance with sch 1 cl 6(5) of the Act have provided reports and given oral evidence. The Court has also received oral evidence on behalf of Mr Peckham.
The plaintiff bears the onus of proof and persuasion to a high degree of probability.
In Cornwall v Attorney-General for NSW [2007] NSWCA 374, the Court (Mason P, Giles and Hodgson JJA), considering similar terms used in the Crimes (High Risk Offenders) Act 2006 (NSW) (then called the Crimes (Serious Sex Offenders) Act 2006 (NSW)), stated (at [21]):
"The expression 'a high degree of probability' indicates something 'beyond more probably than not'; so that the existence of the risk, that is the likelihood of the offender committing a further serious sex offence, does have to be proved to a higher degree than the normal civil standard of proof, though not to the criminal standard of beyond reasonable doubt."
The meaning of 'unacceptable risk' should be considered in the context of the provision in which it appears and having regard to the objects of the Act: Attorney General of New South Wales v Kereopa (No. 2) [2017] NSWSC 928 at [14]; State of New South Wales v Thomas (Final) [2011] NSWSC 307 at [58]; Lynn v State of New South Wales (2016) 91 NSWLR 636; [2016] NSWCA 57 at [58] ("Lynn").
In considering the same term under the Crimes (High Risk Offenders) Act, R A Hulme J observed in New South Wales v Thomas (Preliminary) [2011] NSWSC 118 at [20]:
"I would regard the test in s 9(2) as being satisfied if there is a risk that the person will commit a serious sex offence which is present to a sufficient degree so that the safety and protection of the community cannot be ensured unless an order is made."
In Lynn, (Beazley P at [44], Basten JA at [144]) the Court held that the right of an offender to his or her personal liberty at the expiry of the sentence of imprisonment being served is not a relevant consideration in the determination of whether a person poses an unacceptable risk for the purposes of the Crimes (High Risk Offenders) Act. Adopting the same approach to the Act (see also Attorney General of New South Wales v McGuire [2013] NSWSC 1862 at [12]), in considering whether Mr Peckham poses an unacceptable risk I would not have regard to his interests in being released from detention as soon as possible.
However, the interests of the defendant in having his liberty and the particular circumstances of the defendant may be taken into account in the exercise of the Court's discretion under sch 1 cl 7 of the Act.
In Lynn, Basten JA stated (at [117]-[120]):
"117 By way of response, the Director submitted that the consequences for the applicant were properly taken into account in considering the exercise of the discretionary power.
118 As far as they went the applicant's submissions should be accepted. First, as accepted by this court in Donovan, the principle articulated by Mason and Brennan JJ in Williams v The Queen applies:
'The right to personal liberty cannot be impaired or taken away without lawful authority and then only to the extent and for the time which the law prescribes. The issue in this case is the extent of the power of the police to detain in their custody for questioning a person who has been lawfully arrested.'
119 Secondly, it was not any risk of further offending by way of a serious violence offence which could have led to him being characterised as a high risk violent offender. The statute clearly envisages a threshold of acceptable and unacceptable risk.
120 Thirdly, as it is clear that the court should impose no more intrusive constraints than appears reasonably appropriate to effect the protective purpose, it is appropriate to ask why that is so. The applicant's answer must be that it is so, because it is necessary to balance the restrictions in contemplation against the freedom of movement and lawful conduct and his right to privacy, which he would otherwise be entitled to enjoy in full measure." (Footnotes omitted.)
The meaning of 'serious harm' in the context of sch 1 cl 2(1)(a) has been considered in a number of other cases: see, for example, Attorney-General of New South Wales v Kereopa [2017] NSWSC 411 (Davies J) and Attorney General of New South Wales v Kereopa (No 2) [2017] NSWSC 928 (R A Hulme J) ("Kereopa (No 2)").
In Kereopa (No 2), R A Hulme J considered the meaning of 'risk of causing serious harm to others' and stated (at [16]):
"it may concern physical or psychological harm. In terms of physical harm it does not require a concern about harm to the level of 'grievous bodily harm' (defined in the criminal law as really serious bodily harm). I accept the submission on behalf of Mr Kereopa that it contemplates something more than would satisfy the minimum threshold for 'actual bodily harm' under the criminal law. I also accept the submission that psychological harm must be something more than emotions such as fear or panic. Such things are not 'serious harm'."
There is a question in this matter as to the meaning of sch 1 cl 2(1)(b) of the Act, in particular, the meaning of "less restrictive means" - less restrictive means when compared to what alternative?
If the purpose of Mr Peckham remaining a forensic patient is to ensure that he can be controlled and managed in the community rather than remain in detention, then the comparison is between the ordinary power and control that the State has over a citizen, and being managed, in the sense of being overseen by the Tribunal, with the practical support being provided as it would be irrespective of any oversight.
In her submissions, Ms Wright on behalf of the plaintiff identified the real issue as being whether it would not be appropriate to impose an extension order as Mr Peckham can be adequately managed in the community (without one). In saying this, she was endeavouring to identify that the comparison (for the purposes of comparing less restrictive means) is between oversight by the Tribunal and no oversight by the Tribunal. Unless I am satisfied that the recall powers of the Tribunal and the conditions which the Tribunal might impose would have such an effect on Mr Peckham as to reduce the risk of harm to others, then the plaintiff would not have established to a high degree of probability the criteria set out in sch 1 cl 2(1)(b) of the Act.
The purposes of the requirement set out in sch 1 cl 2(1)(b) of the Act is to ensure that a person does not remain a forensic patient in circumstances in which even though he poses an unacceptable risk within the meaning of cl 2(1)(a), he can be adequately managed in a less restrictive way, that is, not as a forensic patient.
In Attorney General of NSW v Doolan by his tutor Jennifer Thompson (No. 2) [2016] NSWSC 107, Adamson J stated (at [96]):
"I consider that the question whether 'means' are more or less restrictive is to be judged by the legal power of others to control the defendant's actions, locations, treatment and other matters, as well as the practical operation of how that power might be exercised in a particular instance."
In Attorney-General of NSW v McGuire (No.2) [2014] NSWSC 288, Garling J said (at [63]):
"I would take the use of the phrase "adequately managed" to mean that the unacceptable risk is mitigated by the proposed management regime so that the community's interest in being kept safe is outweighed by the community's interest in not having mentally ill or mentally disordered individuals or forensic patients being confined in some form of institutional care rather than taking their place in the community."
Whilst I acknowledge the findings made in Peckham (Preliminary), there has been significant further evidence emerge since the preliminary hearing. I am not satisfied to a high degree of probability that Mr Peckham poses an unacceptable risk of causing serious harm to others if he ceases being a forensic patient and that the risk cannot be adequately managed by less restrictive means.
I understand that this will mean that he will no longer be a forensic patient and will be entitled to be released on the expiration of the interim extension order.
The evidence that Mr Peckham poses an unacceptable risk within the meaning of sch 1 cl 2(1)(a) of the Act is hardly compelling. Dr Rodriquez described the risk as moderate in his report but accepted that, given the support package and assuming its implementation, it might be low. Dr Jones said the risk level was low.
Dr Eagle was not prepared to categorise the level of risk. Dr Furst identified that Mr Peckham did pose a risk of causing serious harm to others if he ceases to be a forensic patient based on historical, clinical and risk management factors. In my view, at least some of those risk factors will be ameliorated by the extensive support package which I consider will be implemented. In offering his opinion, Dr Furst raised concerns about the prospects of Mr Peckham having stable accommodation and the other necessary support in the community. The evidence before the Court addresses some of those concerns.
All of the evidence is to the effect that the offending was focused and particularly related to the unusual circumstances. According to Dr Eagle, a repeat of the combination of factors might lead to a high risk of re-offending but it is difficult to anticipate the circumstances in which there would be such a repeat.
Reservations were expressed in the expert reports about the adequacy of the support package and the likelihood of it being implemented and maintained. Dr Eagle expressed her reservations based on not knowing what might happen. She considered the overlay of the supervision by the Tribunal would be of benefit, but the Court's decision is related to risk.
As was said in Lynn (at [61]), the evaluation of unacceptable risk is directed to the assessment of risk in the context of making the community secure from harm as opposed to guaranteeing its safety and protection. Otherwise, every risk would be unacceptable. Mr Peckham's depressive state creates a risk of further incidences of self-harm but the question is whether he poses an unacceptable risk of causing serious harm to others. As Dr Rodriquez said, in the context of psychiatric risk assessment, there is always some risk such that, in my view, the identification of some risk by a psychiatrist should not necessarily lead to a finding that the risk is unacceptable. If otherwise, it would always follow that such an opinion from a psychiatrist would necessarily result in the first criteria being established. However, the Court is required to evaluate all of the evidence in making a finding that a forensic patient might pose an unacceptable risk.
I have had regard to the evidence of Ms Boyd. I accept that she will be providing the support to Mr Peckham to which she refers. This is on top of the NDIS support package. I accept that it is likely that she will be able to arrange permanent accommodation as she has suggested which will provide a stable environment which Mr Peckham requires.
Mr Peckham's history since being in detention is one of compliance, rather than non-compliance. The offending was particularly focused and appears to have resulted from a combination of factors which are unlikely to reoccur. Mr Peckham had not committed an offence of violence in the 17 years prior to the index offence.
Mr Peckham does not suffer from mental illness. He is not delusional and does not suffer from violent ideation. His impulsivity is more a function of his personality disorder than his depression. Dr Eagle questioned the extent to which any medication would impact upon his personality disorder such that I am uncertain as to how oversight by the Tribunal specifically for the purposes of ensuring compliance with his medication regime would necessarily reduce the risk of impulsive conduct.
The determination as to whether the risk is unacceptable is an evaluative task involving considerations of both the likelihood of the risk eventuating and the gravity of the risk that may eventuate: Lynn at [50]-[51], [55] (Beazley P).
The plaintiff submitted that the various matters (to which I have referred in this judgment) when considered cumulatively, demonstrate to a high degree of probability that the defendant poses an unacceptable risk of causing harm to others. It is submitted that the expert evidence obtained for the purposes of the application supports that proposition.
I am not convinced that it does, particularly having regard to the evidence which emerged on the hearing. It may be that Dr Rodriguez and Dr Eagle continue to see some benefit in Mr Peckham being a forensic patient in that there would be oversight by the Tribunal whilst he is in the community.
The Tribunal is an expert and independent tribunal, which no doubt performs an important role in overseeing forensic patients, amongst its other functions. However, the question is not whether there would be some benefit to the community in ongoing oversight. The plaintiff is only entitled to the order sought if the two requirements set out in sch 1 cl 2(1) are satisfied. In my view, they are not.
As I have said, I am not satisfied that Mr Peckham poses an unacceptable risk of causing serious harm to others whilst in the community. Further, even if I was so satisfied, the evidence does not establish that the oversight of the Tribunal would be such that Mr Peckham cannot be adequately managed in the community without it. In the circumstances of this matter, there would need to be evidence that the control of the Tribunal over Mr Peckham and the conditions which might be posed upon Mr Peckham, should he be released, were such as to impact upon Mr Peckham such that he cannot be adequately managed in the community without such control.
Further, this application is proceeding at a time when Mr Peckham remains in detention and in circumstances in which the plaintiff does not concede that it will even support his release when the matter comes before the Tribunal in February 2020. On one view, the evaluative task required under sch 1 cl 2(1)(b) involves a comparison between Mr Peckham's current status and whether he can be adequately managed in the community, that is, not being in detention. If that is the appropriate comparison (that is, the less restrictive means) then there could be no doubt that sch 1 cl 2(1)(b) is not satisfied.
Finally, whilst I must have regard to all the factors set out in sch 1 cl 7 of the Act, and I have done so, even if, contrary to my findings, the requirements of sch 1 cl 2(1) might be established, I still have a discretion as to whether the order should be made or the application should be dismissed.
In determining whether to exercise that discretion I am entitled to have regard to the fact, as a relevant factor, that if an extension order is made at this time, Mr Peckham will remain in detention for a number of months after the expiry of his limiting term. This is in circumstances in which the evidence establishes that his ongoing detention is deleterious to his mental health and the expert evidence relied on in this application (which would also have been relied on before the Tribunal) is not to the effect that the safety of the community warrants him remaining in detention. I am entitled to balance his interests in exercising my discretion. However, whilst these matters would have been relevant, bearing in mind my earlier findings I need not further consider how the discretion might have been exercised.
In all of the circumstances, I decline to make the extension order and the summons is dismissed.
The plaintiff is to pay the defendant's costs.
[14]
Amendments
18 December 2019 - 18 December 2019 - Addition of costs order at [124].
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Decision last updated: 18 December 2019
Parties
Applicant/Plaintiff:
Attorney General for NSW
Respondent/Defendant:
Peckham
Legislation Cited (4)
Mental Health (Forensic Provisions) Act 1990(NSW)sch 1
However, it is notable that she had earlier agreed with the proposition that Mr Peckham will have a robust network in place prior to his release (being the support package that is now available). She also agreed that the particular circumstances of the offending were focused; that Mr Peckham was able to identify appropriate strategies to minimise the risk of offending behaviour in the future; that the relationship with Ms Blayney was certainly a significant risk factor in terms of the offence, and that his emotional instability was being self-medicated at the time of the commission of the index offence.
She also believed that Mr Peckham's past ability to stop drinking (that is, prior to 2013) was an indication of a capacity to regulate and change his behaviour. It was a positive sign that he could overcome any substance use disorder which is now in remission.
However, she ultimately maintained that Mr Peckham should be subject to the oversight of the Tribunal. She said there were still a lot of questions as to how the package would be implemented and how he would respond and whether he would be able to manage his emotions without using benzodiazepine and there would be risks that he would have some interpersonal problems. She described all these things as risk factors. She suggested that a lot of things remained unknown. She said the support plan that is proposed is very hopeful, positive and optimistic and potentially could meet Mr Peckham's needs, subject to his ability to implement the support he is being offered.
It is not clear to me how the oversight of the Tribunal, which would necessarily involve imposing conditions with which Mr Peckham must comply and further review perhaps on a 6 or 12 monthly basis, would necessarily improve Mr Peckham's ability to implement the support he is being offered.
I asked Dr Eagle to explain what the oversight of the Tribunal would mean in circumstances in which Mr Peckham might be released into the community but remain a forensic patient. She said that usually in the community they are reviewed either on a 6 or 12 monthly basis unless there was some sort of breach or concern about his conditions. She said it is up to the Tribunal and that once he is reviewed on release, it could be 3, 6 or 12 months depending on how robust they feel the plans are. Mr Peckham would be subject to a number of conditions on his release, one of which may be that he not seek benzodiazepine from his general practitioner and that his medication be prescribed by a local mental health service and he would have to abide by that.
She agreed that Mr Peckham had demonstrated compliance with his medication but compliance with medication is only one small part of the risk. As she said, there will not be a medication that can simply address his emotional instabilities. As such, if I assume that the Tribunal would impose a condition on release that requires Mr Peckham to take his medication, that condition will not have any impact upon any emotional instability which Mr Peckham might suffer.
Again, importantly, she identified that it was a misuse of benzodiazepine which may have led to his emotional instability on the day of the commission of the index offence. She acknowledged that abuse of medication had not contributed to any other offending. She said that becoming non-compliant or refusing medication is a significant risk factor when Mr Peckham returns to the community. I did not take that answer to suggest that she believed that will occur but it presents as a significant risk factor if it does occur.
Further, in re-examination, Dr Eagle explained the role of the Tribunal in overseeing and monitoring and referred to the recall power under the legislation in the event of breach. She identified other conditions which might be imposed by the Tribunal on release, including that he attend reviews as requested; that he attend psychological therapy; that he avoid consumption of alcohol, at least in the first instance; that he make some attempt at a vocation; and that he accepts the services of a caseworker.
It might be surprising if it was a condition of Mr Peckham's release that he attempt a vocation in circumstances in which he is being released into the community at the age of 60 having previously been a recipient of disability benefits and being engaged on a long term basis in voluntary work.
She agreed that he does not have any form of mental illness which would warrant him being admitted into a psychiatric facility; that he would not be classified as suitable for involuntary detention; that he would not be subject to a CTO and that his depression was in remission. There is a degree of speculation in predicting what conditions the Tribunal might impose if it approves Mr Peckham's release in 2020.