Attorney General for NSW v Vakapora

The background to the plaintiff's application

1. The defendant is noted to be a poor historian, no doubt due to his mental health afflictions, so a degree of reservation is appropriate as to the detail of his background that is dependent upon his account. The picture that emerges from his accounts in various reports is essentially to the following effect. The defendant is a 30 year old man who was born on Rarotonga, one of the Cook Islands. He is the eldest of five children. He was separated from his parents at age 12 to live with his maternal grandfather on another island, because they could not afford to care for him. He was often physically disciplined as a child by his father and maternal grandfather. He left school in the equivalent year of Year 7 and found work in carpentry as a labourer.
2. The defendant's family migrated to Sydney when he was aged 17. He worked in construction for two months and then, for between six and 18 months, erected marquees at The Rocks. He has not worked since. He has a son aged around 11 or 12 years, who he has not seen since his birth. Until the defendant went into custody, he was in receipt of a Disability Support Pension.

Drug and alcohol use

1. The defendant regularly smoked cannabis from around the age of 12 to 14 years and, by the age of 17, was using approximately 2g per day. He started drinking Kava at age 14. He would binge-drink Kava for approximately "three days straight" and then not drink for the rest of the week. He started drinking alcohol at the age of 17 and took ice from the age of 24, using it at least once a week and usually in a binge pattern, staying awake "all day all night for three days". He snorted buprenorphine between the ages of 24 and 26, varying between once a week to once a month.

The defendant's mental health and criminal history

1. In her report, Dr Singh reviewed the defendant's psychiatric history. It is so interwoven with his criminal history, and provides context for it, that it makes sense to consider them together.
2. The defendant's first offence was "drive while under the influence of alcohol or other drugs", committed when he was aged 18, for which on 13 January 2010 he received a 6 months' licence suspension and a 12 month good behaviour bond.
3. On 28 June 2011, when aged 20, the defendant was dealt with in the Local Court for "intimidate with intent to cause fear of physical harm", contrary to s 13(1) of the Crimes (Domestic and Personal Violence) Act 2007 (NSW), as well as "stalk/intimidate" and "assault occasioning actual bodily harm". The police facts were to the effect that at about 11:15pm on 25 January 2011, the defendant was sitting on the porch of the family residence with his father, playing music on his DVD player, loudly. A neighbour asked that they turn it down, and the defendant's father asked the defendant to do so. The defendant responded "fuck you". The defendant's father then picked up some items and, in doing so, knocked the DVD player (I note the defendant has since claimed that his father was drunk and angry, and had deliberately smashed the player).
4. The police facts continue to the effect that the defendant threatened to "smash" his father and swore at him. His father went inside and later came back outside. The defendant repeatedly punched him, causing him to fall. The defendant's mother and his 17 year old sister pulled the defendant away from his father, who went inside and phoned police. The defendant walked away and appeared at a friend's residence, carrying a length of mountain climbing rope, saying he was going to end his life. The friend called police, who, with the assistance of a dog squad, found the defendant hanging from a tree by a rope around his neck, his body being well off the ground. Police held his body up as he was cut down.
5. The defendant was conveyed to Liverpool Hospital, where he was made an involuntary patient ("scheduled") pursuant to a mental health certificate issued under s 19(1) of the Mental Health Act 2007 (NSW) in terms set out in Pt 1 of Sch 1 of that Act. The defendant was discharged four days later to a community mental health service but did not attend for follow-up.
6. The police facts also stated that the defendant's mother had made arrangements with her sister in New Zealand to pay the airfare for the defendant to go to New Zealand and spend time with his extended family. His mother informed police that she believed the defendant had an underlying mental health problem and that she knew he was using cannabis.
7. On 13 April 2011, the defendant was admitted to the intensive psychiatric care unit ("IPCU") at Concord Hospital pursuant to the Mental Health Act, following "bizarre behaviour" at a train station. He was treated for a psychotic episode from cannabis abuse.
8. On 28 June 2011, the charges against the defendant were dismissed pursuant to s 33 of the Act, conditional upon him being discharged from Cumberland Hospital into the care of his family in New Zealand.
9. The defendant arrived in New Zealand in mid-July 2011 and resided with his grandparents. He remained psychotic and continued to smoke cannabis despite compliance with intra-muscular antipsychotic medication (Risperidone).
10. In around November 2012, the defendant returned to Australia and became non-compliant with his antipsychotic medication. His behaviour again became bizarre. At one point, his family reported that he was walking around the house carrying a knife saying: "they are telling me to kill someone".
11. On 16 January 2013, the defendant cut off his left index finger with a knife. Despite seven weeks of treatment, his mental state was not much improved and he posed management problems, with aggression and sexually inappropriate behaviour towards female patients and nursing staff, including masturbating in a public area.
12. On 27 February 2013, when aged 22, the defendant received fines in the Local Court following convictions for "make/furnish a statement which is false/misleading" and "receive/dispose stolen property".
13. On 12 March 2013, the defendant was again admitted to Concord Hospital IPCU. He was released on a Community Treatment Order ("CTO") but was readmitted as an involuntary patient to Campbelltown Hospital on 25 June 2013 and 20 November 2013.
14. On 14 April 2015, when aged 24, the defendant received a fine for "possess prohibited drug". Five weeks later, he received a fine for a further conviction of "possess prohibited drug".
15. On 1 December 2015, when the defendant was aged 25, he allegedly repeatedly punched one of his sisters and pushed his mother, whilst the three of them were standing on a street. The defendant's sister phoned police, who located the defendant three days later at a railway station, apparently affected by alcohol and/or drugs. The defendant stated that he had consumed one litre of whisky and had smoked "a couple of cones of cannabis". The defendant's sister was apparently pregnant at the time, although the defendant claimed to Dr Dayalan that he was unaware of that fact.
16. On arrest, the defendant was admitted to Campbelltown Hospital and transferred to Concord Hospital IPCU. Dr Singh reported: "He remained psychotic and insistent that he be discharged and required several more doses of Clopixol Acuphase intra-muscular injections. [The defendant] refused to take an oral mood stabiliser. His psychosis gradually resolved over the one-month period that he was in hospital and he was discharged on 15 January 2015. It is noted that he did not want to address his drug and alcohol difficulties; and he planned to resume cannabis and ice use upon discharge. [The defendant] was diagnosed with schizophrenia as well as mental and behavioural disorders due to use of stimulants (ice). He was discharged on a CTO to the Campbelltown CMHT."
17. The defendant appeared in the Local Court on 10 December 2015 on three charges of "common assault in a domestic violence context" and a charge of "fail to appear". The charges were dealt with pursuant to s 33(1)(a) of the Act, and he was taken to hospital for assessment.
18. Three months later, on 16 March 2016, when still aged 25, the defendant appeared before the Local Court on a charge of common assault. The incident occurred on 11 September 2015, thus predating the earlier charges involving his sister and mother by about three months. The police facts were as follows: "… It is believed [the defendant] has no current fixed place of abode … the victim attended an ATM machine [at] Glenfield. At this time [the defendant] was currently using the ATM. The victim noticed different behaviour by [the defendant] to which he would best describe as having a disability. To avoid [the defendant] becoming rushed, the victim stood back and allowed [the defendant] time to make his transaction. [The defendant] has become agitated and began putting his hands on his head. Another male in the line for the ATM has asked [the defendant] if he was okay, to which [the defendant] turned and looked at the victim's direction and walked away. A short time later the victim returned to a nearby bakery which is side by side with the ATM. At this time the victim has observed [the defendant] making eye contact with him … … [Soon after] the victim heard a commotion happening outside. The victim has gone outside the shop and observed [the defendant] to be running after a small blue vehicle whilst waving his arms furiously in the air … … A short time later [the defendant] entered the store in an aggressive manner and began yelling at the victim; 'Your friend took my card.' At this time [the defendant] has made a 'gun like' gesture with his hand with his thumb pointing out … [The defendant] has walked at the victim with a fast pace and raised his right hand and made a fist and with a wide swing, hit [the victim] in his left temple. This was followed by his left hand making a fist and punched the victim on his right temple. This was followed by 5-6 punches one after the other … The victim has continually told [the defendant] he did not know who he was talking about ... Several staff members within the store began yelling at [the defendant] ... [The defendant] has stopped punching the victim and apologised and attempted to hug the victim ... At this time another male of [P]olynesian appearance entered the store. This male has scanned the room and then turned and faced [the defendant]. [The defendant] has stated to the other male, 'I don't want to fight.' At this time both the male and [the defendant] have taken off their shirts and stood in what appeared to be a fighting stance with their arms raised. This has soon ended with the male and [the defendant] hugging and leaving the store."
19. The magistrate proceeded by way of s 33(1)(b) of the Act, requiring that the defendant be detained in a mental health facility for assessment.

The index offence

1. Following an incident on 1 August 2016, when the defendant was aged 26, he was charged with "recklessly inflict grievous bodily harm" contrary to s 35(2) of the Crimes Act 1900 (NSW), alternatively "assault occasioning actual bodily harm" contrary to s 59 of the Crimes Act, and "stalk/intimidate". The facts are set out in a judgment of English DCJ, in which a limiting term was imposed, that was handed down on 10 December 2019: "On 1 August 2016, the complainant … was aged 61. He suffered from a number of disabilities and was living in Department of Housing accommodation ... [The defendant], who was 27 years of age, was staying nearby. At about 2.40pm on 1 August 2016, the complainant was in the garden near his unit, when [the defendant] approached him and accused him of having 'taken all of my stuff.' [The defendant] began punching the complainant in the face. The complainant fell to the ground and [the defendant] kicked him as he lay on the ground. The complainant said: 'As [the defendant] reached me, he started to punch me in the face with his right clenched fist, then he started using both fists to hit me in the face and I fell to the ground. I was in a great deal of pain. I felt the blood running out of my ears and nose and all over my face. As I landed on the ground, I could still feel [the defendant] hitting me around my head, I could feel him kicking me with the boots he was wearing. I recall hearing Dave's voice during the assault. I could not make out what Dave was saying. The next thing I know, I was laying on the ground and the ambulance and police were with me. I could feel my face and head was swollen. I was in a great deal of pain. The ambulance took me to Campbelltown Hospital, I stayed throughout the night. I received treatment at the hospital and underwent a number of tests. I did not give [the defendant] permission to assault me. I didn't say a word to him before he started punching me. I didn't want to be assaulted. I wouldn't allow anyone to do what was done to me. I am terrified of him. I can't sleep, as I am suffering nightmares of the assault.' A neighbour … who was 69 years of age, witnessed the assault. He had known [the defendant] for about 18 months. He said he saw [the defendant] storm out of unit 10 and walk towards the complainant. He said: 'When I went around the corner, I saw [the defendant] push [the complainant]. He used both hands and pushed [the complainant] in the back, away from me. [The complainant] fell onto the ground on his stomach. [The complainant's] head was turned to the left on the ground. [The complainant] didn't have a chance to get back up before [the defendant] started kicking him. [The defendant] said, 'Hey man, you've taken all my stuff.' Mr [X] was standing about 15 metres away from the complainant and [the defendant], and said: 'I could hear [the complainant] struggling to breathe. [The defendant] was standing right over him. [The defendant] started kicking [the complainant] in the head using his right foot. He was kicking [the complainant] in the head like you kick a football. His leg was not moving backwards and forwards very far, but the kicks were really hard. [The defendant] kicked [the complainant] about four or five times. [the complainant's] head was still on the ground looking to the left. The kicks were hitting [the complainant] in the face. [The complainant] wasn't making any noise while he was being kicked.' Mr [X] said to [the defendant], 'Stop, leave him alone,' and [the defendant] replied, 'Do you want to get it too?' And Mr [X] replied, 'Nope.' [The defendant] left and Mr [X] rang triple-0. He said, [the defendant] walked past me and left and I called triple-0. [The defendant] ran into unit 10 and then another neighbour … from number 6, chased [the defendant] …' A description of [the defendant] as a 'large Islander appearance, wearing black clothing and running towards … Street,' was broadcast and PolAir sighted a male matching that description running into the units at … Street, Campbelltown. Police responded and with the help from a member of the public, they found the appellant in unit 2. [The defendant] was arrested and he agreed to be interviewed. During the interview, he gave his address as … Street, Campbelltown. That he lived with his friend, John, and they'd lived there for six months. He said the complainant was, 'just doing the wrong thing by me 'cause he owes me a lot of money,' an amount of $600. He said, 'He owes me money. He owes me green and shit.' He said in answer to question 47, 'I don't know him man, he just work for, for someone.' 'Q. Okay, who was saying this stuff about you? A. The old man, the one I bashed. Q. Okay. A. I give it to him good too. Q. Okay. A. Yeah, he felt me. Q. What's his name, do you know his name? A. I don't know. Q. Do you know where he lives? A. Yeah.' Later, [the defendant] said he bashed the complainant as, 'he stole my shit in my house,' and, 'then the other, the last night, he stole my fucking bong, I told him the second time. I said, 'Mate, if you want, just know - let me know. Don't just go around and use it and then fucking just - now, it makes me sick, and when I walk past, it's in the bin, and it stinks and smelly and shit.' [The defendant] did not know what time it was that he bashed the man. He said he went back and apologised. He said he hit the man, 'about six times,' but then he said, 'five times, fourth he dropped, fifth, I gave it to him, and then left him alone because he was down, he was gone, he was smashed.' When the complainant was on the ground, 'I've got finish and I kick him in the head.' [The defendant] then said he bashed the complainant as 'he owes me gold.'"
2. The defendant was admitted into the Mental Health Screening Unit ("the MHSU") at the Metropolitan Remand and Reception Centre ("the MRRC") at Silverwater. He was assessed by Dr Spencer on 12 September 2016, who described him as displaying symptoms of mental illness.
3. On 21 March 2017, the charges were dealt with in the Local Court by way of s 33(1)(a) of the Act, with the defendant being entered to Concord Hospital for assessment. He presented with psychotic symptoms and remained there until 30 March 2017, after which he was returned to custody at the MHSU. On 10 August 2017, the defendant was taken to Campbelltown Hospital on a schedule from Court. There were problems with him influencing other patients, bringing contraband onto the ward, and returning from leave intoxicated. He was sent to the High Dependency Unit at Liverpool Hospital, and discharged on 3 November 2017 to stay with a friend with follow-up on a CTO.
4. On 26 April 2018, the defendant was arrested for a breach of bail conditions. The next day he was taken to Campbelltown Hospital pursuant to s 33 of the Act. He remained in hospital until 7 June 2018 when he was discharged into police custody following periods of increased aggression and the use of illicit substances whilst on leave. The following day he was readmitted into prison.
5. The Director of Public Prosecutions determined to proceed by way of an ex-officio indictment. On 25 June 2018, English DCJ found the defendant unfit to be tried in relation to the three charges.
6. On 27 August 2018, the Mental Health Review Tribunal ("the Tribunal") determined that the defendant was not likely to become fit for trial within 12 months.
7. On 1 August 2019, the defendant's bail was revoked and he was brought back into custody.
8. On 10 December 2019, English DCJ held a Special Hearing, pursuant to s 19 of the Act. Her Honour delivered judgment on 4 November 2019, noting that none of the witnesses whose statements had been tendered had been required for cross-examination and therefore the prosecution case was unchallenged. The defendant did not give evidence, although his electronically-recorded interview by police, which was conducted shortly after the incident, was tendered into evidence. The defendant had admitted bashing the victim, and it was submitted on his behalf that the victim's injuries did not constitute grievous bodily harm. Her Honour found that the injuries did constitute "really serious" (grievous) bodily harm.
9. Her Honour entered qualified findings of guilt against the defendant in relation to the charges of "recklessly inflict grievous bodily harm" and "stalk/intimidate". The first charge had a maximum penalty of 10 years and a standard non-parole period of 4 years. Her Honour nominated a limiting term of 2 years and 6 months, to commence on 24 July 2018, concluding on 27 January 2021. In relation to the second charge, which had a maximum penalty of 5 years, her Honour nominated a limiting term of 3 months, with the same commencement date.
10. On 27 April 2018, the defendant appeared in the Local Court charged with contravening an Apprehended Violence Order ("AVO"). The Court proceeded by way of s 33(1)(b) of the Act. The defendant was alleged to have gone to the residence of the victim of the index offences, where he was found lying in the rear yard of the unit complex. He was not alleged to have done anything untoward, and when asked what he was doing, he explained that he was "just chilling out".

Punishments in custody

1. Whilst in prison, the defendant has received the following punishments. On 27 December 2016, he was detained in his cell for three days for "assaults", apparently on an officer. On 23 August 2019, he was ordered to pay $300 compensation for "'damage destroy or deface cell". On 28 August 2019, he was taken off buy-ups for "fight or other physical combat". On 6 October 2019, he received a reprimand and caution for "[fail] to comply with the corrective centre routine". On 16 January 2020, he received a reprimand and caution for "intimidation".

The defendant's current mental health

1. Dr Singh examined the defendant on or around 16 January 2021. She diagnosed the defendant as having a schizoaffective disorder, which she described as a chronic and severe neurological brain disorder: "… in which there is an uninterrupted duration of illness during which there is a major mood episode (manic or depressive) in addition to criterion A for schizophrenia (delusions; hallucinations; disorganised speech, grossly disorganised behaviour or negative symptoms). [The defendant] presents with perceptual abnormalities in the form of auditory hallucinations, grandiose delusional beliefs and disorganised thinking. He is also noted to present with a concurrent irritable and elevated mood, poor sleep and sexually inappropriate behaviour, indicative of mania. His symptoms have persisted since at least 2011, a period of 10 years, despite assertive treatment with antipsychotic medication including Clozapine. [The defendant] is therefore considered to have a treatment-resistant schizoaffective disorder. Although there may be some further attenuation in the severity and frequency of his symptoms, at least some symptoms are likely to remain lifelong."
2. Dr Singh considered, and rejected, a diagnosis of adolescent onset conduct disorder, which is a pre-requisite to making a diagnosis of antisocial personality disorder. She continued: "[The defendant's] long-standing psychotic symptoms obscure his underlying personality characteristics and vulnerabilities and therefore a formal assessment of personality disorder was not possible. However, it is my opinion that [the defendant] does have some traits of antisocial personality disorder. The history and current examination confirm impulsivity, failure to plan ahead, irritability, aggressiveness and reckless disregard for others, particularly his family. It is important to note however that these symptoms may also be explained by his psychotic illness and the attendant cognitive deficits as well as his substance use disorder."
3. Dr Singh noted in her report that when she examined the defendant in the forensic hospital: "[The defendant] did not understand that he had a mental illness but he was agreeable to being compliant with his current medications. He felt would fare better if he was discharged to the community as he did not see the need for ongoing inpatient care."

Relevant statutory provisions

1. The defendant became a forensic patient when he received a limiting term: ss 24 and 42(a)(i) of the Act; and remains a forensic patient because he is subject to an IEO: s 42(a1) of the Act. Section 54A, which is in Pt 5 of the Act, provides that a person's status as a forensic patient may be extended in accordance with the Schedule.
2. Clause 1 of the Schedule requires the application to extend a person's status as a forensic patient to be made under Pt 2 of the Schedule, which sets out time constraints and other compliance requirements for an application, and identifies certain material that must accompany it: cls 4, 5 and 6(1)-(4). The defendant does not contest that the plaintiff has complied with these requirements and I find that they are satisfied.
3. The Court may determine an application by either making the order or by dismissing the application: cl 7(1). The Court may make a second or subsequent extension order against the same forensic patient: cl 8(2). The making of an extension order does not affect the operation of "any order as to the forensic patient's care, detention, treatment or release from custody to which the forensic patient was subject immediately before the making of the extension order": cl 9.
4. The title of Pt 5 of the Act is "Forensic patients and correctional patients". The objects of Pt 5 are set out in s 40, as follows: "40 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 are suffering from a mental illness or mental condition, (c) to facilitate the care, treatment and control of any of those persons in correctional 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 to acknowledge the harm done to victims."
5. The plaintiff submits that ss 40(a), (b), (e) and (f) of the Act are relevant to a determination of the application.
6. The central provision of the Schedule as to the criteria for determining an application is found in cl 2: "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. Note. Less restrictive means of managing a risk includes, but is not limited to, a patient being involuntarily detained or treated under the Mental Health Act 2007."

Relevant principles

1. In Attorney General of New South Wales v WB (Final) [2020] NSWSC 152, I considered the operation of cl 2, as follows: "31 Two of the key phrases in cl 2 of the Schedule appear in the context of counterpart legislative schemes for continuing supervision and detention in the Crimes (High Risk Offenders) Act 2006 (NSW) and the Terrorism (High Risk Offenders) Act 2017 (NSW), and have been the subject of appellate consideration of their meaning in those contexts. The Court concluded in Cornwall v Attorney General for New South Wales [2007] NSWCA 374, at [21]: 'The expression 'a high degree of probability' indicates something 'beyond more probably than not'; so that the existence of the risk … 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.' 32 The term 'an unacceptable risk' should be given its everyday meaning in the context of the provision in which it appears: see Lynn v State of New South Wales (2016) 91 NSWLR 636; [2016] NSWCA 57 at [58]. 33 The level of risk is determined by the Court on the assumption that the defendant would no longer be a forensic patient. In the context of an application where the defendant has already been conditionally released, the question is whether the defendant would pose an unacceptable risk residing in the community if he were no longer subject to the oversight of the Tribunal, with its power to enforce its conditions on pain of being returned to detention. 34 If the Court is satisfied to a high degree of probability that the defendant poses an unacceptable risk of causing serious harm to others in that circumstance, the Court is then required to evaluate whether that risk is capable of being adequately managed by other less restrictive means. It is for the Attorney-General to prove that the risk cannot be so managed. I note that this approach has been adopted previously: see Attorney General of New South Wales v Christian bht Thompson [2018] NSWSC 744 per Rothman J at [92]-[93]. 35 The term 'serious harm to others' is unique in the three legislative schemes, although the notion of 'serious harm' (to others or to him or herself) is the basis for a person being made an involuntary patient, pursuant to s 14 of the Mental Health Act, which is a cognate Act: see R v Mailes (2001) 53 NSWLR 251; [2001] NSWCCA 155 at [190]. This was an intentional adoption, as was acknowledged in the second reading speech by the Attorney-General the Hon Greg Smith SC for the Mental Health (Forensic Provisions) Amendment Bill 2013 (New South Wales Legislative Assembly, Parliamentary Debates (Hansard), 13 November 2013 at 25638). The Attorney-General stated: 'The test varies in one respect from the test recommended by the Law Reform Commission. Rather than requiring that the forensic patient pose an unacceptable risk of causing 'serious physical or psychological harm' to others, the bill provides that the patient must be at risk of causing 'serious harm' to others. That change brings the test into line with the test for involuntary detention under the Mental Health Act, without losing the stringency of the Law Reform Commission's test.' 36 In Attorney-General of New South Wales v Kereopa [2017] NSWSC 411, Davies J noted, at [15], that there is no authority on the meaning of the words in the context of the Schedule, although the term has received consideration in the context of s 14 of the Mental Health Act, by White J (as his Honour then was) in Re J (No 2) [2011] NSWSC 1224. In that case, White J considered, at [93], that the term 'serious harm' was wider than 'serious physical harm' and that there was 'much to be said' in favour of it meaning either physical or psychological harm. 37 In Kereopa, Davies J concluded, at [19], as to the term's contextual meaning in the Act: 'I accept that Re J must be treated carefully for a determination of the meaning of the term 'serious harm' in [the Act] because of its context in the Mental Health Act. However, there is no reason in principle why 'serious harm' in [the Act] would not include, at least, psychological harm. It may include serious economic or financial harm but it is not necessary to reach a view about that. Similarly, grievous bodily harm (the less serious part of the definition of 'serious violence offence' in the [Crimes (High Risk Offenders) Act 2006 (NSW)] is explained to juries as being 'really serious injury', a concept that must be on a higher plane than 'serious harm'.' 38 In Attorney General of New South Wales v Kereopa (No 2) [2017] NSWSC 928, R A Hulme J, referring to Davies J's conclusion in Kereopa, said, at [16]: '… I agree with his Honour that 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'.' 39 I agree with R A Hulme J's understanding of the term 'serious harm'. In the context of this application, the focus of the plaintiff's submissions is whether the defendant would engage in behaviour similar to that involved in the index events, which clearly would constitute 'serious harm'."
2. In this case, as will be seen in my consideration below, an alternative to the defendant being classified as a "forensic patient" pursuant to the Act is that he be classified as an "involuntary patient" pursuant to the Mental Health Act. It is therefore necessary to note the following as to the meaning of "adequately managed" and "less restrictive means".
3. In Attorney-General of NSW v McGuire (No. 2) [2014] NSWSC 288, Garling J said: "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. 64 The notion that mentally ill individuals ought receive their treatment in the community is well recognised by the community and is entrenched in the Mental Health Act: s 12, s 38, s 53 and, in particular, s 68 ..."
4. In Attorney General of NSW v Doolan by his tutor Jennifer Thompson (No. 2) [2016] NSWSC 107; [2016] NSWSC 107, Adamson J said, at [96]: "In my view, the principal issue in the proceedings is whether the defendant's risk cannot be managed by less restrictive means. Such 'less restrictive means', as the clause provides, include classification as an involuntary patient. Although the plaintiff submitted that it was questionable whether classification as an involuntary patient could properly be regarded as 'less restrictive means', I consider that I ought adopt the assumption implicit in the wording cl 2(1)(b): namely, that an extension of a person's status as a forensic patient is more restrictive than classification as an involuntary patient. 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."

Clause 7(2) matters

1. Clause 7(2) of the Schedule sets out a non-exclusive list of matters that the Court must have regard to when deciding whether to make an extension order. These matters are now separately considered.

Clause 7(2)(a): the safety of the community

1. Although differently drafted, this is essentially the same consideration as expressed in s 40(a) of the Act: "to protect the safety of members of the public".

Clause 7(2)(b): the reports received from the persons appointed under clause 6(5) to conduct examinations of the forensic patient

The forensic psychiatrists' reports

1. In their reports, the two forensic psychiatrists reviewed the same material, in similar terms and came to similar diagnoses, with perhaps the exception that Dr Dayalan considered that the defendant may have a cognitive deficit.

Dr Singh

1. Dr Singh utilised the Historical Clinical Risk Management-20 Version 3 ("HCR-20 V3"), which she described as: "… a structured professional judgement tool which is widely used clinically and in research to assess for risk of violence and general re-offending. This tool identifies historical, largely unchangeable risk factors associated with violence risk, current clinical factors and anticipated future risk management items that are more amenable to change. It also allows for the exploration of possible risk scenarios and hence facilitates the development of risk management plans."
2. Dr Singh identified several prominent historical risk factors for future violence on the part of the defendant. These included a history of violence and other antisocial behaviour primarily related to drug use, a history of serious problems establishing and maintaining stable personal relationships including relationships with his father and aggression towards his mother and a sister and difficulties with employment and education. Dr Singh also said: "[The defendant] also has a history of problems with substance use and is diagnosed with cannabis use disorder, methamphetamine use disorder and possible alcohol use disorder. [The defendant] has a history of problems with major mental disorder. As detailed in the psychiatric history above he has a well-established diagnosis of a psychotic illness that is treatment-resistant and has a marked history of problems with treatment or supervision response. There is no evidence of a history of problems with a personality disorder, as [the defendant] did not have a conduct disorder, so a diagnosis of antisocial personality disorder cannot be made. Furthermore, his personality development is likely markedly affected by the onset of his severe mental illness in late adolescence/early adulthood and it is difficult to ascertain any personality vulnerabilities when he has remained almost consistently unwell since 2011 … [The defendant] does appear to have a history of problems with violent attitudes; however, his clinical and criminal records indicates that [he] has a belief that the use of violent behaviour is justified to meet personal material goals. Significantly [the defendant] has a history of enduring problems with both treatment and supervision responses. As noted in his psychiatric history, he remains symptomatic even when treated with antipsychotics. It is noted that on 8 September 2017, whilst on leave from the Birunji mental health unit, he smoked ice … This was also a breach of his bail conditions. Additionally, on 8 December 2015 and 4 March 2016, [the defendant] did not appear in the local court and warrants were issued for his arrest. He has also been non-compliant with various community treatment orders. In regard to the clinical risk factors, [the defendant] has significant problems with insight into his mental illness … The risk management factors of the HCR 20 reflect features of the evaluated, anticipated psychosocial adjustment and is based on the offenders' goals and plans for the future. The timeframe for coding these factors is the near future that is a few weeks to several months immediately after the evaluation. Given that [the defendant] is currently in the high secure forensic hospital these factors are coded within the setting. There are no future issues with professional services and plans and [the defendant] is currently well managed by a skilled multi-disciplinary team of mental health professionals. He is currently in residence on the ward and therefore has a stable living situation. [The defendant] said he has limited contact with his family and no community or personal support; consequently, future problems with personal support are rated as present future problems, with treatment or supervision response also rated as present, given his past history of compliance problems, ongoing limited insight and his treatment-resistant illness. [The defendant] has poor distress tolerance skills and therefore is likely to have future problems with stress and coping. Therefore, three out of the five risk management items are scored as present."
3. Dr Singh assessed the defendant's protective factors by utilising the Structured Assessment of Protective Factors for Violence Risk 2nd Edition ("SAPROF"), which she described as: "… a structured professional judgement guideline used in combination with a valid risk assessment tool to complement the assessment of risk of future violent or sexually violent behaviour. It includes a set of 17 factors that fall into 3 domains (internal, motivational, and external items). Items are rated using a three-point system to indicate whether an item is absent, present to some extent, or clearly present. The SAPROF can be used to plan interventions and risk reduction strategies around protective factors."
4. Dr Singh concluded that the defendant had a paucity of protective factors: "… In the domain of internal items, which encompasses individual characteristics that have a protective effect against future violent behaviour; he has a secure attachment to his mother, a prosocial adult and empathy is assessed as present to some extent. The item of intelligence was omitted as [the defendant] has not had a formal neuropsychiatric assessment. It is assessed that [the defendant] has no effective coping skills and self-control is not present. The domain of motivational items was assessed, the absence of stable and suitable work, structured leisure activities, a steady income, motivation for treatment, positive attitudes towards authority, positive life goals and motivation for an effective use of medication were all absent. Of the five external protective items, [the defendant] only had 3 protective factors present; all of which are dependent on his continued involuntary treatment. Specifically, professional care is clearly present as he is currently an inpatient, his living circumstances are intensely supervised by mental health care professionals and external control is clearly present in the form of his status as a forensic patient. However, the absence of a prosocial and supportive network is noted as is the absence of a stable intimate relationship of good quality."
5. Dr Singh was asked to comment on the extent to which each psychiatric condition affects the defendant's risk of causing serious harm to others. She responded: "[The defendant] presents with a severe and enduring psychotic illness as well as substance use disorders. It is my opinion that [the defendant's] current risk of reoffending is primarily due to the severity of his psychiatric symptoms, as noted in the clinical items of the HCR 20 above. These symptoms include, but are not limited to, his paranoid delusional beliefs, his heightened level of aggression and impulsivity as well as his inability to generate prosocial responses to perceived threats or injustice. His use of illicit substances is likely to further exacerbate his risk of causing serious harm to others in that it may heighten his level of impulsivity and the intensity of his psychotic symptoms. Further, [the defendant's] limited insight is likely to lead to non-compliance with treatment, as it has in the past. His lack of prosocial supports in the community, his impaired psychosocial functioning and his lack of motivation, all reduce his capacity to engage in meaningful activities such as stable employment and developing prosocial relationships. The paucity of protective factors noted in the [SAPROF] profile above are likely to increase his risk of reoffending."
6. In response to a question as to whether the defendant poses a risk of causing serious harm to others if he ceases to be a forensic patient, Dr Singh said: "It is my opinion that [the defendant] poses a risk of causing serious harm to others due to the detrimental impact of his mental illness on his mental state and the attendant aggressive behaviours he has displayed when unwell. It is my opinion that this risk remains whether he is a forensic patient or not. In describing the nature and level of [the defendant's] violence risks, and factors contributing to that risk, I have undertaken a structured risk assessment using the HCR 20 version 3 and the [SAPROF] prof as above. With consideration of the above structured risk assessment framework and the inherent limitations detailed therein, it is my opinion that [the defendant] presents with a high loading of risk factors for violence and hence falls into the high risk category of people with an elevated future risk of violence, whether he remains a forensic patient or not."
7. Dr Singh expressed the opinion that the defendant's risk of violence is likely to remain high in the short to medium term which requires management in a high secure forensic facility, although he may be suitable for transfer to a non-forensic facility in the future if his illness is stabilised. Dr Singh noted that the defendant comes within the definition of a mentally ill person as defined in the Mental Health Act, so the Tribunal could reclassify him as an involuntary patient under that Act. He would continue to receive the same level of care in the Forensic Hospital, with either classification. However, there were additional protections in the defendant continuing with the forensic patient classification. His record of failed CTOs suggests that a reclassification, which may result in further CTOs, would not adequately manage his risk. Dr Singh said: "Furthermore, remaining on a forensic order moves oversight from individual clinicians in health services to automatic oversight by the forensic arm of the Tribunal. This allows for the collation of all relevant information in a centralised manner, allowing for more robust risk assessment and formulation than can be undertaken by individual clinicians across both health and disability services. Additionally, maintenance of [the defendant's] forensic status guarantees the interest of the Justice Health Forensic Mental Health Network. There is evidence that specialist forensic mental health care improves offending outcomes. Additionally, in the absence of a forensic order, should [the defendant's] mental health deteriorate in the community and his risks escalate, a transfer back to the high secure Forensic Hospital or medium secure hospital is likely to be more difficult to achieve as an involuntary civil patient, as was evident when he was not accepted by Bloomfield hospital, for rehabilitation in a secure environment."
8. Dr Singh was of the view that an appropriate period for the defendant's forensic status to be extended is for a period of 3 to 4 years, noting: "This time period will also allow for a longitudinal appraisal of his risks and protective factors in progressively less restrictive environments and facilitate the development of an informed treatment plan."

Dr Dayalan

1. Dr Dayalan considered that the defendant's history and presentation was suggestive of a diagnosis of schizoaffective disorder, with a differential diagnosis being schizophrenia. The defendant's history of substance abuse supported a diagnosis of alcohol, cannabis and stimulant use disorder that are currently in remission in a controlled environment. In relation to conduct disorder, Dr Daylan said: "A history consistent with diagnosis of conduct disorder in childhood was noted. [The defendant] also displayed features of antisocial personality disorder such as repeated offending behaviour, poor impulse control, tendency for irritability and aggression and consistent irresponsibility. Some of these features can also be attributed to his severe mental illness and therefore a diagnosis of antisocial personality disorder cannot be definitely made."
2. As to the possibility of intellectual impairment, Dr Dayalan said: "I note comments about intellectual impairment in the documents reviewed. The history gathered and his presentation during the assessment was certainly indicative of cognitive deficits. In the absence of a formal neuropsychometric assessment, a diagnosis of intellectual disability cannot be made. It is quite likely that a neuropsychometric assessment would be completed during his stay in the Forensic Hospital."
3. Later in Dr Dayalan's report, he said: "A formal neuropsychometric assessment is required before confirming or ruling out the diagnosis of intellectual disability".
4. Dr Dayalan also utilised the HCR-20 V3 and arrived at a similar conclusion to Dr Singh, finding: "Based on his current presentation, [the defendant] will be considered to be at risk of causing serious harm to others if placed in the community."
5. Dr Dayalan made similar observations to those of Dr Singh as to the comparative features of the defendant remaining a forensic patient, as opposed to being made an involuntary patient under the Mental Health Act and, for similar reasons, favoured him remaining a forensic patient.
6. As to the preferred length of an extension order, Dr Dayalan said: "[The defendant] has only been recently admitted to the Forensic Hospital and it is unlikely that he would be transitioned into the community via a medium secure unit within the next three to four years. If [the defendant] were to continue as a forensic patient, an order extending his status five years may allow for his transition into the community on conditional release as a forensic patient … It would be recommended that his treating teams endeavour to facilitate his transfer into the community within the next four years to allow for management of [the defendant] in the community as a forensic patient."
7. Dr Singh and Dr Dayalan gave evidence jointly in a "hot-tub" fashion at the hearing of this matter. The effect of their evidence was that, consistently with their opinions expressed in their reports, they differed as to the timeframe within which the stabilising of the defendant's mental illness may progress to a point of him being safely returned to the community, and the reasons for that, and the utility of maintaining the defendant's status as an involuntary patient beyond that point.
8. Both forensic psychiatrists envisaged the defendant's treatment progressing to a point that he would initially re-enter the community through a Medium Secure Unit ("MSU"). Whereas Dr Dayalan thought that it was unlikely that the defendant would be transitioned to the community within three to four years, Dr Singh thought two to three years was realistic. They agreed that a period beyond that point during which the defendant would remain a forensic patient was appropriate. Dr Singh thought that a period of one year after the defendant is returned to the community in which he would remain a forensic patient "does not seem unreasonable".
9. Dr Singh considered it likely that a shorter period would be required in the Forensic Hospital than that envisaged by Dr Dayalan, because there were no reported instances of the defendant being violent to other persons, and while there were instances of him being generally aggressive, such as punching walls, "he was able to self regulate with the support of the Multi-Disciplinary Team, within a reasonable time frame". Dr Singh also noted that the defendant had experienced difficulty submitting to mental health care, and the shortest possible period of him being a forensic patient would assist his relationship with his mental health care providers.
10. Dr Singh and Dr Dayalan agreed that, while the defendant remained in the Forensic Hospital, there was little difference in the quality of care he received, whether he was a forensic patient or involuntary patient. The benefit of the defendant being a forensic patient for a period once he is returned to the community is that he would have oversight by the "specialty network", which was explained by Dr Singh as follows: "… the Justice Health Forensic Mental Health network … remains involved for patients who are under [a] forensic order, which means that you have specialist expertise from the perspective of forensic psychiatrists and people who work with forensic mental health and the evidence supports the outcomes for patients under specialty treatment is better. … The better outcomes include compliance with treatment, reduction in rates of recidivism, and also better engagement which would work towards better treatment. … … we have a limited number of secure beds in New South Wales and we also have a limited number of Medium Secure Units. So there is again a pragmatic approach to who gets those transfers and beds and they generally are accorded to people who are considered to be higher risk and those people are generally forensic patients. So it is a clinical approach to how you dispute or access very minimal resources. … … from a practical and clinical perspective I think there can be no argument that community mental health services are overwhelmed, under resourced and it is difficult for people or patients to remain, particularly within an inpatient unit for a prolonged period of time and so they have in some ways less access to the resources that forensic services have."
11. In relation to the absence of any assessment of the defendant's cognitive functioning, Dr Singh explained that it would be difficult to undertake clinical testing until such time as his psychosis is controlled.

Clause 7(2)(c): the report of the qualified psychiatrist, registered psychologist or registered medical practitioner provided under clause 5(b)

1. In support of the plaintiff's summons, a report was commissioned from Dr Jeremy O'Dea, forensic psychiatrist. His report is dated 27 October 2020. He interviewed the defendant on 28 September 2020, at which time the defendant was still at the MRRC. Based on his clinical assessment on that date and the documents made available to him, Dr O'Dea diagnosed the defendant as having a severe chronic treatment resistant schizophrenic illness, complicated by a significant and ongoing substance use disorder. Dr O'Dea elaborated as follows: "63. [The defendant's] severe chronic treatment resistant schizophrenic illness has been characterised by a number of positive symptoms of schizophrenia, including a history of hallucinations, paranoid delusions, marked disorder in the form and content of his thinking, an elevated and irritable affect, disorganised and disinhibited behavior; and a number of negative signs of schizophrenia and associated cognitive impairment, including problems with judgement, insight and compliance; and significant associated problems with anger, aggression and violence. 64. At our interview on 28 September 2020, [the defendant] presented with ongoing positive symptoms of schizophrenia, including marked disorder in the form and content of his thinking, a fatuous affect, disorganised behavior; and significant cognitive impairment (including poor insight and judgement, and poverty of content of thought), despite his history of assertive treatment under the civil arm of the New South Wales Mental Health Act 2007, in community psychiatric hospitals and in the general community over the past 10 years, and in custody over the past 5 years. … 67. In [the defendant's] case, both his Schizophrenic Disorder and his Substance Use Disorder are likely to be chronic long term conditions requiring long term, assertive, structured and supervised psychiatric treatment, monitoring and supervision. 68. On the basis of [the defendant's] current mental state and response to treatment to date, he requires ongoing structured and supervised psychiatric treatment in a secure psychiatric facility at the present time, in order to bring his schizophrenic illness under adequate control, and in order to adequately and appropriately manage the significant risk of him causing serious harm to others."
2. Dr O'Dea made observations similar to those of Dr Singh and Dr Dayalan as to the different features of the classifications of forensic patient and an involuntary patient, expressing a preference for the former, in view of the defendant's past behaviour when resident in the community, including his poor compliance with CTOs.

Clause 7(2)(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

1. There are no other reports that have been prepared expressly for the purpose of the plaintiff's application, although there are numerous reports that have been prepared over the years for the Tribunal. The plaintiff tendered two such psychiatric reports that were prepared for the Tribunal, by Dr Andrew White, dated 17 July 2020, and Dr Reece Anderson, dated 13 October 2020.
2. Dr White's opinion as to the appropriate diagnosis of the defendant's mental condition was: "There is no doubt that [the defendant] suffers from a severe and persistent mental illness. The only question is whether his diagnosis is schizophrenia or schizoaffective disorder."
3. Dr White recommended that the defendant be admitted: "… to a forensic rehabilitation facility for thorough assessment of his needs and the development of a comprehensive management plan … in an environment of high therapeutic security … as soon as a bed becomes available."
4. Dr Anderson is the defendant's treating psychiatrist in the Bronte unit of the Forensic Hospital. Dr Anderson's diagnosis of the defendant was in similar terms to that of Dr White, as follows: "There is no doubt that [the defendant] suffers from a severe and persistent mental illness. I note [from] previous court reports and discharge summaries, there has been some uncertainty as to whether his diagnosis is schizophrenia or schizoaffective disorder. … He has a history of limited education but there also appears to be a possibility of some intellectual impairment. Whether this reaches a diagnostic threshold requires further evaluation. There is a significant history of adult antisocial behaviour but in the presence of severe mental illness, and in the absence of significant evidence of juvenile conduct disorder, I would not make a diagnosis of antisocial personality disorder. There does not appear to be evidence of any other personality disorder."

Clause 7(2)(e): any order or decision made by the Tribunal with respect to the forensic patient that is relevant to the application

1. Section 46(1) of the Act provides: "The Tribunal must review the case of each forensic patient every 6 months but may review the case of any forensic patient at any time."
2. The Tribunal has reviewed the defendant three times since the imposition of the limiting term. On 15 April 2020, the Tribunal made an order pursuant to the Act that the defendant be detained for care and treatment in the Forensic Hospital as soon as a bed became available, and in the meantime, that he be detained at the MRRC for care and treatment. On 6 August 2020, the Tribunal made no further order in relation to the defendant's care, treatment and detention, noting that the existing order remained in effect.
3. The Tribunal's most recent review of the defendant was on 12 November 2020. It determined that the defendant suffered from a severe and persistent mental illness which has been variously diagnosed as schizophrenia or a schizoaffective disorder and that the defendant remained unfit to be tried.

Clause 7(2)(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

1. The plaintiff has tendered a selected bundle of documents produced by the Department of Corrective Services (NSW), Justice Health and Concord Hospital relating to the care and treatment provided to the defendant in the course of his various admissions to those hospitals and into prison. The relevant entries in these documents were canvassed in the tendered reports of the forensic psychiatrists.

Clause 7(2)(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)

1. As noted earlier, the defendant has breached AVO and bail conditions and has been the subject of disciplinary actions whilst detained in prison.

Clause 7(2)(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

1. English DCJ found that, in terms of the objective seriousness of the offence of recklessly causing grievous bodily harm, although it was spontaneous and no weapon was used, it was prolonged, starting with punches to the face and head and ending with the defendant kicking the victim to the head. The victim was vulnerable by virtue of his age, 61 years, and disabilities that he was suffering at the time.

Clause 7(2)(i): any other information that is available as to the risk that the forensic patient will in future cause serious harm to others

1. I take into account the evidence of Dr Singh and Dr Dayalan at the hearing.

The submissions of the parties

1. The focus of the parties in their submissions was on the appropriate length of an extension order.
2. The plaintiff submitted that Dr Singh and Dr Dayalan were agreed on the stages through which the defendant must progress before he is released into the community, but Dr Singh's evidence as to the likely timeframe for the defendant to progress in his treatment to a point when he would be released to the community was "rather aspirational", her best-case scenario still involving the defendant not being released from a MSU until three and a half years' time.
3. The defendant did not concede that he poses an unacceptable risk of causing serious harm to others if he ceases to be a forensic patient on 26 April 2021, but equally, does not oppose that finding being made, if the Court is satisfied by the evidence before it to the requisite standard.
4. The defendant opposed an extension order of the length sought by the plaintiff, submitting that an extension order of no more than three years is the least restrictive period necessary to manage his risk.

Consideration

1. The defendant has a history of established violent acts that are intertwined with his history of mental illness and use of prohibited drugs, in a causative way. Thus far, he has been largely unresponsive to drug and counselling therapy, although since he has been a patient in the Forensic Hospital, by virtue of the greater resources available for his treatment and care, he is finally likely to make progress. For the reasons expressed by Dr Singh and Dr Dayalan, the test at cl 2(1)(a) of Sch 1 of the Act is satisfied to the requisite degree. Namely, 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 being a forensic patient on 26 April 2021.
2. The next phase of the determination of the matter is to consider whether the risk cannot be adequately managed by other less restrictive means; in the context of this case, by the defendant being classified as an involuntary patient pursuant to the Mental Health Act. The immediate answer to that question is "yes", since the evidence is to the effect that the care the defendant receives in the Forensic Hospital would essentially be the same regardless of his status as a forensic patient or an involuntary patient, and since being an involuntary patient is "less restrictive".
3. However, in my view, it is appropriate for the Court to respond to that question in a more nuanced way, taking into account not only the comparative treatment and care that is immediately available, but whether the risk can be "adequately managed" as the defendant progresses through the successive stages of his treatment, to eventual release and beyond. From that perspective, the repeated failures of the defendant to understand the need to not take prohibited drugs and to attend for community-based mental health treatment and otherwise comply with CTOs, with the attendant risk to the community of serious harm, satisfies me to a high degree of probability that the risk cannot be adequately managed by other less restrictive means until such time as the defendant has resided in the community for six to 12 months in compliance with the Tribunal's conditions and directives.
4. An order must be expressed in temporal terms rather than in terms of stages of treatment. The evidence as to when that stage will be reached varies between "three to four years" to "five years". I am of the view that an extension order for period of four years is appropriate, because it recognises what in my opinion is a reasonable minimum period of time for the defendant to progress to the point of successfully residing in the community. If in the plaintiff's view a further period is required, a further application is possible under the legislative scheme of the Act.

Orders

1. I make the following orders: (1) Pursuant to clause 7 of Schedule 1 of the Mental Health (Forensic Provisions) Act 1990 (NSW), the defendant's status as a forensic patient is extended for a period of 4 years from 27 April 2021 until 26 April 2025. (2) Access to the Court's file in this proceeding is restricted such that access will be granted to a non-party only with the leave of a Judge of the Court and with prior notice to the parties, so as to allow them an opportunity to be heard in respect of the application for access.

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: 10 March 2021