Attorney General for the State of New South Wales v Huckstadt

Supreme Court of NSW|2017-07-11|Before: Schmidt J, Adamson J, Fullerton JJ, Program J

Judgment

Mr Huckstadt was residing at the Kevin Waller Unit at the Metropolitan Special Programs Centre when earlier this year Adamson J made orders under clause 6(5) of Schedule 1 of the Mental Health (Forensic Provisions) Act 1990 (NSW), appointing two qualified psychiatrists to examine him: Attorney General for New South Wales v Huckstadt [2017] NSWSC 441. His limiting term was then due to expire on 17 May 2017. Further interim extension orders have since been made by Adamson and Fullerton JJ. The present extension is due to expire on 18 July 2017, unless revoked or extended. A further extension is now sought for two years.
There is no issue that Mr Huckstadt is a "forensic patient" as defined in s 42 of the Forensic Provisions Act. Mr Huckstadt's status as a forensic patient arose from his commission of a number of sexual offences in 2006 and 2007, for which he was charged in 2010. A five year limiting term was imposed upon him by Payne DCJ in 2012. His Honour then recommended that he be held at the Long Bay Correctional Centre Forensic Hospital.
In 2012 the Mental Health Review Tribunal found that Mr Huckstadt was suffering mental illness and ordered that he be detained, to receive care and treatment. He has since then been regularly reviewed by the Tribunal, most recently in April 2017, on his twelfth review. That resulted in orders made on 19 May, releasing him to reside at a facility at Tarlo, subject to stringent conditions. He took up that residence only some two weeks prior to the hearing of this application.
By that order Mr Huckstadt is now subject to ongoing conditions regulating his residence; supervision and treatment by a nominated psychiatrist; engagement with a nominated case manager and the Community Justice Program; abstention from drugs and alcohol; compliance with management plans which it and the service provider at his accommodation, Lifestyle Solutions, devise; non-contact with children aged under 16 years; regulation of his internet use; and participation in further Tribunal reviews. Mr Lindshield is responsible for overseeing his management and he is registered in accordance with the requirements of the child sex offender registry.

The issues

In issue is thus:

Whether the Court can be satisfied that Mr Huckstadt poses an unacceptable risk of causing serious harm to others, if he ceases being a forensic patient;
Whether any risk which he poses can be adequately managed by other less restrictive means; and
The length of any extension of his limiting term.

There is no issue that the onus of establishing a basis for the orders pressed falls on the Attorney.

The Court's powers

Section 54 of the Forensic Provisions Act requires that upon a person ceasing to be a forensic patient, the person must be discharged from the mental health facility in which he or she is detained, unless classified as an involuntary patient under s 53. Under s 54A, however, a person's status as a forensic patient may be extended.
The Court's power to make the extension order sought is dealt with in cl 1 and 4 of Sch 1 to the Forensic Provisions Act. The test for making such an order is that specified in cl 2, namely, upon the Court being 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."
The Court is not, however, 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: cl 2(2).
What constitutes an "unacceptable risk" was considered in Lynn v State of New South Wales (2016) 91 NSWLR 636; [2016] NSWCA 57 at [49] - [61]. Determination of whether Mr Huckstadt poses an unacceptable risk of causing serious harm to others if he ceases being a forensic patient involves an evaluative task, directed to "the assessment of risk in the context of making the community secure from harm as opposed to guaranteeing its safety and protection": Lynn at [61]. That assessment must be undertaken on the assumption that Mr Huckstadt is not a forensic or involuntary patient and is released: Attorney General of New South Wales v Skerry (Preliminary) [2015] NSWSC 859 at [40].
The meaning of a "high degree of probability" was considered in Cornwall v Attorney General for New South Wales [2007] NSWCA 374 at [21]. It was there explained: "21 ... 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. On the other hand, the risk or likelihood itself does not have to be a probability to the civil standard of proof, but rather a sufficiently substantial probability to satisfy the criterion "likely" as explained in TSL."
That criterion does "not require a degree of probability exceeding 50%": Tillman v Attorney-General for the State of New South Wales (2007) 70 NSWLR 448; [2007] NSWCA 327 referring to TSL v Secretary to the Department of Justice (2006) 166 A Crim R 69; [2006] VSCA 199 at [85] - [89].
The reference to "adequately managed" in cl 2(1)(b) was held by Garling J in Attorney-General of NSW v McGuire (No 2) [2014] NSWSC 288 at [63] 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."
Clause 7(2) of the Schedule to the Forensic Provisions Act provides that: "(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."

Does Mr Huckstadt pose an unacceptable risk of causing serious harm to others if he ceases being a forensic patient?

Despite Mr Huckstadt's age and his exemplary behaviour, to this point, while under supervision, I am satisfied on the evidence which I will discuss, to a high degree of probability, that he does now pose an unacceptable risk of causing serious harm to others, if he ceases being a forensic patient.
It is convenient to commence by referring to Adamson J's earlier judgment, where Mr Huckstadt's offending and how he came to be a forensic patient were explained at [6] - [8] to be: "6 In 2010 the defendant was committed for trial for a number of sexual offences. As he was found unfit to be tried, the matter proceeded as a special hearing before Payne DCJ in December 2011 pursuant to s 19 of the Forensic Provisions Act. Her Honour held that, on the limited evidence available, the defendant had committed five of the counts on the indictment in the period between 1 January 2006 and 25 January 2007: three offences of sexual intercourse with a female child between 14 and 16 years contrary to s 66C(3) of the Crimes Act 1900 (NSW); and two offences of indecent assault under s 61M(1) of the Crimes Act (the index offences). The female victim of all five offences was 14 years old at the time of the first offences but turned 15 before the last offence. Her father had a relationship with the defendant's sister, with whom the defendant was living at the time of the offending. Each of the sexual intercourse offences involved penile vaginal penetration and both of the indecent assaults involved kissing on the mouth. The offending occurred in the victim's home, in a caravan belonging to a family friend and in a tent pitched in her father's partner's backyard. 7 Pursuant to s 23 of the Forensic Provisions Act, Payne DCJ indicated that, if the special hearing had been a normal trial of criminal proceedings against a person who was fit to be tried for the index offences, the Court would have imposed a sentence of imprisonment. On 14 June 2012 Payne DCJ nominated the following limiting terms: Count on the indictment Time period Description of offence Section of Crimes Act/ maximum penalty Limiting term imposed 2 June 2006 Sexual intercourse with child of 14 years 66C(3)/ 10 years 4 years from 27.4.12-26.4.16 4 Between 1.11.06 and 20.12.06 Sexual intercourse with child of 14 years 66C(3)/ 10 years 4 years from 27.4.12-26.4.16 5 Between 1.11.06 and 19.12.06 Assault with act of indecency on child under age of 16 years 61M(1)/ 7 years 6 months from 27.4.12-26.10.12 7 Between 23.1.07 and 24.1.07 Sexual intercourse with child of 15 years 66C(3)/ 10 years 4 years from 27.4.13-26.4.17 8 Between 1.11.06 and 20.12.06 Assault with act of indecency on child under age of 16 years 61M(1)/ 7 years 6 months from 27.4.12-26.10.12

8 Her Honour referred the defendant to the Mental Health Review Tribunal (the Tribunal) pursuant to s 24(1)(a) of the Forensic Provisions Act and ordered, pursuant to s 24(1)(b), that the defendant be detained in such place as the Tribunal directed. Accordingly, the defendant became a forensic patient by reason of the operation of s 42 of the Forensic Provisions Act. …."

The sentencing courts' views

In her June 2012 remarks Payne DCJ referred to earlier offending dealt with by Coorey DCJ in November 2001, again at a special hearing, albeit one involving a jury, when a limiting term was also imposed upon him. That offending had involved digital penetration and cunnilingus performed on a 10 year old female child, who was then under Mr Huckstadt's authority. The offence was committed in his bedroom, in the presence of his de facto wife. In the result, the need to protect the community was emphasised on that sentencing.
After referring to extensive psychiatric evidence and evidence of Mr Huckstadt's personal circumstances, which included that he then had ten children, Payne DCJ noted reports of ongoing diminution of Mr Huckstadt's mental capacity since 1993, which meant that he would be precluded from leading a normal life. There was also evidence that he had a poor prognosis, was at risk of caring for his own safety and likely to have ongoing difficulties with the law. Her Honour then recommended "in the strongest possible terms" that pending review by the Tribunal, he be held at the Long Bay Correctional Centre Forensic Hospital, or another mental health facility.

The extensive expert evidence

Amongst the many reports in evidence were 2000 reports of Mr Lucas, Dr Westmore, Ms Sutton of the Forensic Psychology Service and Dr Martin of the Corrections Health Service. There were also 2010 reports from Dr Ellis and Professor Greenberg, as well as a 2012 report from Dr Sowden; 2012 and 2013 reports from Clinical Nurse Consultant Ms Parsons; and 2014, 2015 and 2016 reports from Dr Reutens. Dr Reutens' 2015 report noted that Mr Huckstadt regularly declined reviews of his fitness. His 2016 report explained problems with finding suitable accommodation for Mr Huckstadt, which could manage his health, welfare and recidivism risks.
Mr Lindshield's 2016 risk management assessment explained Mr Huckstadt's personal background, including traumatic brain injury suffered as an eight year old, when he was hit by a car; his cognitive impairments; mental health diagnoses; and strokes he had suffered in 2012. Mr Huckstadt had also suffered physical and emotional abuse by an alcoholic father from a young age, with the result that he completed only year one at school and is illiterate. He began running away from home at age 14, and has had a very limited employment history since. After he left home he soon began daily drug and alcohol abuse, including sniffing glue and petrol with peers and daily cannabis use.
Mr Huckstadt's criminal record began at age 22 and includes breaching apprehended violence orders, 22 charges, as well as seven convictions of offending against female children aged 10 to 16 years, including for indecent and sexual assault and consensual and non-consensual sexual intercourse. That offending behaviour dated from 1998, when he was aged 40 and continued until his 2012 convictions at the age of 54. Mr Lindshield observed that: "Unfortunately Mr Huckstadt has poor insight into appropriate sexual relationships with females and will attempt to engage in sexual relationships with adolescent girls when the right opportunity arises and he is attracted to them. Mr Huckstadt is able to develop or encounters these opportunities to engage in sexual relationships with adolescent females when he establishes a platonic or romantic relationship with the children's parents. These relationships often involved AoD use due to Mr Huckstadt's use of these substances and these situations to create opportunities for Mr Huckstadt to have unsupervised access to victims. Mr Huckstadt will also buy gifts and provide other support to the girls once the sexual relationship has been established and advise their secrecy about the relationship from the child's parents."
Mr Lindshield also referred to statements Mr Huckstadt had made in custody about his intention to return to substance use immediately on his release. The primary behaviours identified to be of concern were thus "child sexual abuse and alcohol and other drug abuse".
The reports of Drs Ellis, Banks and Eagle were also in evidence. In their concurrent evidence they agreed that if Mr Huckstadt ceased being a forensic patient and was released into the community without supervision, he would pose a risk of serious harm both to himself, given his ability now to self-care, and to children who he accessed unsupervised. Clinical treatment is incapable of ameliorating those risks.
Mr Huckstadt living with others in circumstances of unstable housing or unstable social situations was also identified to pose a risk. In appropriate supported housing with professional staff who could observe, monitor and support him in an environment without children, however, the experts agreed that his risk of serious harm would be substantially reduced.
The experts also considered that with the absence of forensic patient status, there would be potentially little restriction on whether Mr Huckstadt could access alcohol, even though the facility where his guardian proposed he would continue to reside, was alcohol free. On his history, that had been a driving element of his offending, as well as a tool of manipulation, which he had used in the case of some of his victims. Developing relationships with his own children and their children, thus also raised potential risks, which needed to be managed. The experts agreed that the absence of forensic patient status would mean that he would have a much lower level of supervision, to help manage these risks.
The experts also considered that having just been released from custody, Mr Huckstadt's ability and motivation to co-operate had not yet been tested in his new setting, where he has been living for only two weeks. While his guardian could direct that he continue living in that facility, a continuing forensic order would have the benefit that supervision by the Tribunal would add a level of certainty, that his new management plan was being successfully implemented, even though services such as that where Mr Huckstadt is residing, are generally able to manage issues such as access to children and alcohol, without Tribunal oversight.
Mr Huckstadt is presently in a transitional period, however. Testing him outside a custodial setting, it was also agreed, would provide the Tribunal with more information, relevant to the lifting of its current order.
The experts also agreed that ongoing research suggested that recidivism in offenders of Mr Huckstadt's age was infrequent, but that sexual re-offending does occur, particularly in the case of offenders with a diagnosis of paraphilia, that is, sexual arousal directed towards children.
Mr Huckstadt has not been diagnosed to be suffering that disorder, given his participation in review, but the experts agreed that his history did not permit the conclusion that he is not suffering from that disorder to be drawn. To the contrary, the experts considered that it was likely that he does suffer that disorder, given his pattern of offending. That and his cognitive impairment following stroke, the experts considered, made it important for Mr Huckstadt to be placed in an environment where he does not have access to children.
In the result, while Mr Huckstadt's current age, physical health and cognitive state meant that he was less likely to offend than on the last occasion when he was released from custody at 49 and offended again, given his multiple offending over time against unrelated victims, including non-familial victims, the experts agreed that he continues to pose a serious risk. Its materialisation will depend on his capacity to function within a low security environment.
The experts also considered it to be possible that Mr Huckstadt's neurocognitive decline could result in disinhibition, but that cannot be accurately predicted. He has not demonstrated such behaviour in custody, but the experts agreed that it was relevant to consider that he has not there had access to children, although there was some evidence of grooming behaviour towards another inmate of diminutive stature. It was also considered to be relevant that he has not participated in any treatment programs which might have assisted him, if his conduct was not associated with brain damage, but rather a personality trait or learned behaviour. There can also be no certainty about this.
There is a deal of other relevant expert evidence, the detail of which it is unnecessary to explain further.

The Tribunal's views

It was only recently, in June 2017, that Mr Huckstadt was released under the Tribunal's conditional release order.
In its reasons, the Tribunal also found that Mr Huckstadt posed a significant risk of re-offending. Its conclusion rested on various of the expert evidence I have referred to, as well as matters such as his denial of any involvement in sexual offending, of which he claims to have no memory; his cognitive impairments, which had limited his participation in rehabilitation programs for sexual offending while he was in custody; his lack of awareness of potentially risky situations, given his lack of awareness of his offence cycle; and identified difficulties in him being rehabilitated.

Conclusion

On all of the evidence I am well satisfied that the experts' opinions as to the serious risk which Mr Huckstadt now poses must be accepted, indeed it was not suggested otherwise for Mr Huckstadt. That acceptance is well explained by the evidence, particularly as to his pattern of past offending and the considerable mental and physical challenges which he sadly faces, which makes the avoidance of further offending, particularly against children, especially challenging for him.
That Mr Huckstadt does not have the required insight and understanding, which would permit favourable conclusions to be drawn about the considerable risks of further serious offending which he poses, is well established on the evidence.

The safety of the community

Even though Mr Huckstadt is now aged 59 and in relatively poor physical health, the evidence well establishes that he still poses a considerable risk to the safety of the community, given his other ongoing problems.
Mr Huckstadt suffered a closed head injury when he was hit by a car at age 8. He has been diagnosed to be suffering various disorders, including a major neurocognitive disorder (secondary to traumatic brain injury and vascular disease), a major depressive disorder and a cannabis abuse disorder. He may also satisfy a diagnosis of personality change. He has also suffered a stroke and has mobility problems.
Still, that he poses a risk of committing further serious offences, if the opportunity presents itself, was the common view of the experts.
As well as his most recent offending, Mr Huckstadt has a long criminal history which commenced when he was 22, for offences including stealing, receiving, break and enter, assault and breaching an apprehend violence order. In 2013, he was charged with two counts of failing to comply with reporting conditions under s 17 of the Child Protection (Offenders Registration) Act 2000 (NSW), which were discharged under s 32 of the Forensic Provisions Act.
For Mr Huckstadt it was argued that the Tribunal's conclusion that he could be released, while not binding, would be highly persuasive, particularly in respect of the second limb of the test which this Court is now bound to apply. That submission may be accepted, but the Tribunal's reasons do not support the conclusion that the safety of the community would be adequately provided for, by his supervision, at this transitional point, by his guardian.
It is relevant to consider the criteria which the Tribunal had to take into account, in coming to its conclusions about Mr Huckstadt. They are specified in s 43, which provides: "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."
Sections 74 and 75 were also relevant. They provide: "74 Matters for consideration Without limiting any other matters the Tribunal may consider, the Tribunal must have regard to the following matters when determining what order to make about a person under this Part: (a) whether the person is suffering from a mental illness or other mental condition, (b) whether there are reasonable grounds for believing that care, treatment or control of the person is necessary for the person's own protection from serious harm or the protection of others from serious harm, (c) the continuing condition of the person, including any likely deterioration in the person's condition, and the likely effects of any such deterioration, (d) in the case of a proposed release, a report by a forensic psychiatrist or other person of a class prescribed by the regulations, who is not currently involved in treating the person, as to the condition of the person and whether the safety of the person or any member of the public will be seriously endangered by the person's release, (e) in the case of the proposed release of a forensic patient subject to a limiting term, whether or not the patient has spent sufficient time in custody. 75 Conditions that may be imposed by Tribunal on release or leave of absence (1) The Tribunal may impose conditions relating to the following matters on orders for release or granting leave of absence made by it in relation to a forensic patient under this Part: (a) the appointment of a case manager, psychiatrist or other health care professional to assist in the care and treatment of the patient, (b) the care, treatment and review of the patient by persons referred to in paragraph (a), including home visits to the patient, (c) medication, (d) accommodation and living conditions, (e) enrolment and participation in educational, training, rehabilitation, recreational, therapeutic or other programs, (f) the use or non-use of alcohol and other drugs, (g) drug testing and other medical tests, (h) agreements as to conduct, (i) association or non association with victims or members of victims' families, (j) prohibitions or restrictions on frequenting or visiting places, (k) overseas or interstate travel. (2) This section does not limit the matters in relation to which a condition may be imposed."
The considerations which bound the Tribunal in the conclusions which it reached, are in the main not considerations imposed on the guardian, as I will explain further. Conditions of Mr Huckstadt's release imposed by the Tribunal are also not all ones which the guardian can impose, let alone enforce, in the way in which the Tribunal can enforce compliance with the conditions it has impose on Mr Huckstadt.
The Tribunal referred to Mr Huckstadt's assessment by Mr Lindshield in October 2016. He then found that Mr Huckstadt had a moderate to high risk of recidivism, using identified assessment tools which he considered had been shown to have reliability for predictive values for offenders with an intellectual disability. Mr Lindshield considered that residence at the property where he is now residing, would provide him with necessary support and permit close monitoring, limited access to potential victims, drugs and alcohol and would result in an overall low range risk. The correctness of that assessment has only just begun to be tested.
Mr Huckstadt was identified to pose a greater risk to if he was in the community. That is not proposed by the guardian, but could be permitted, if the guardian concluded that was in Mr Huckstadt's interests.
This report was submitted, however, to support the conclusion that any unacceptable risk which Mr Huckstadt posed, can be adequately managed by less restrictive means than an extension of the limiting term. The difficulty with that submission is that under the Tribunal's current order, Mr Huckstadt is subject to coercive supervision and if the limiting term is not extended, this will be removed, as will other layers of supervision and review, which the experts, Drs Ellis, Banks and Eagle agreed Mr Huckstadt still requires at this point and which only the Tribunal can provide.
Again, I consider that their opinions must be accepted, reflecting as they do what the evidence establishes, as to what the safety of the community presently require in Mr Huckstadt's case. That is, extension of the limiting term.

Can the risk Mr Huckstadt poses be adequately managed by other less restrictive means?

In issue between the parties was whether the regime to which Mr Huckstadt could be subject under the guardianship order, would result in the risk which he poses being adequately managed. No evidence was led from the guardian, as to what that regime would comprise, or what was proposed in relation to ongoing renewal of guardianship orders. But, there was no issue that it was intended that Mr Huckstadt would continue living at the facility where he was presently living.
There was evidence of the Incident Prevention and Response Plan (Interim) prepared for Mr Huckstadt in January 2017, which identified the risk which he posed to include aggressive/violent behaviour, his mental and physical health issues, substance use and sexual offending and the strategies for their management. That Plan was, however, premised on the footing that he remained under the control of the Tribunal.
In Ms Howell's March 2017 psychologist report to the Tribunal, Mr Huckstadt was unable to discuss his offending, which he did not deny, but could not remember, but he claimed he no longer had any "passion" to behave in an abusive way. She considered that the plan that he live at the Lifestyle Solutions' secluded 25 acre property, would minimise his opportunities to access potential victims and engage in drug and alcohol use, given proposed staff supervision. She identified Mr Huckstadt's desire to live in the community and re-establish his relationship with his family. Her assessment was that using identified tools he fell within a moderate to high risk of re-offending, noting his lack of insight into his offending behaviour. Still, she considered that the proposed plan would result in the public not being seriously endangered by his proposed release.
Dr Chew did not himself conduct a risk assessment, but in his March 2017 report to the Tribunal, agreed with the results of the risk management report and conceded that what was proposed was appropriate. That conclusion rested on his proposed proximity to schools, parks and community centres, with adequate security, supervision and health support to manage Mr Huckstadt's release into the community.
Despite this, on all of the evidence I have discussed, I am not satisfied that the risk which Mr Huckstadt presently poses can be adequately managed by other less restrictive means, than that to which he is presently subject.
As was contended for the Attorney, the differences between the powers of the Tribunal and the Guardian must be taken into account when the question of whether the less restrictive means of management of Mr Huckstadt under the guardianship order, will adequately manage the risk which he poses, if he ceases to be a forensic patient, is resolved.
Consideration must thus be given not only to the guardianship order made in relation to Mr Huckstadt, but also to the provisions of the Guardianship Act, which provides in s 4: "4 General principles It is the duty of everyone exercising functions under this Act with respect to persons who have disabilities to observe the following principles: (a) the welfare and interests of such persons should be given paramount consideration, (b) the freedom of decision and freedom of action of such persons should be restricted as little as possible, (c) such persons should be encouraged, as far as possible, to live a normal life in the community, (d) the views of such persons in relation to the exercise of those functions should be taken into consideration, (e) the importance of preserving the family relationships and the cultural and linguistic environments of such persons should be recognised, (f) such persons should be encouraged, as far as possible, to be self-reliant in matters relating to their personal, domestic and financial affairs, (g) such persons should be protected from neglect, abuse and exploitation, (h) the community should be encouraged to apply and promote these principles."
By way of contrast, s 40 of the Forensic Provisions Act provides: "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."
It must thus be taken into account, that the statutory purposes of the two schemes are significantly different, the Guardianship Act not imposing requirements of the kind imposed on the Tribunal by ss 74 and 75 of the Forensic Provisions Act. Instead, if the Guardianship Act requires that when exercising the functions specified in the order, Mr Huckstadt's guardian to observe the principles specified in s 4, including giving paramount consideration to Mr Huckstadt's welfare and interest. Some of those principles give rise to obvious concerns, given the risks which Mr Huckstadt poses if he accesses the community where he may be able to obtain drugs and alcohol and the risk which he poses to children, including his family members.
Slattery J had to consider the operation of the Guardianship Act in Sarah White v The Local Health Authority & Anor [2015] NSWSC 417. There at [74] - [77], his Honour explained its operation to involve: "74 Guardianship Act, s 21C effects the substitution of the guardian's will and decision making within the scope of the guardianship order for that of the person under guardianship. Thus even if the person under guardianship objects, "a decision made and action taken…by a guardian" has effect as if (a) the decision had been made…and action had been taken…by the person under guardianship, and as if that person had legal capacity". As the decision/action of the guardian on any given subject is taken to be the decision/action of the person under guardianship, the will and decision of the latter are wholly displaced by the guardian's decision/action. That gives a statutory warrant to overcome the conflicting will and the objections of the person under guardianship. 75 The Guardianship Act leaves little doubt that this displacement of the wishes of the person under guardianship can occur. The conflicting decision/action of the guardian can be enforced by "such measures as are specified in the [guardianship] order" to ensure "that the person under guardianship complies with the decision of the guardian" in the exercise of the guardian's functions: s 21A(1). And s 21B provides further practical support to enforcement of the guardian's decisions/actions, allowing a guardian, such as the Public Guardian here to sign documents such as a Mental Health Act, s 7(1) request to an authorised medical officer to be admitted to a mental health facility. 76 Draconian as this Guardianship Act regime may seem, for a person under guardianship it is ameliorated to a degree by the requirement for guardians to exercise their powers in accordance with the objects of the Guardianship Act set out in s 4, all of which involve to the extent possible giving effect to the wishes of the person under guardianship. 77 Moreover, the Guardianship Act grants wide powers of assessment and review to guardianship order under Part 3, Division 4, which could result in variation or revocation of the order if the Tribunal determined that the order was not operating in the best interests of the person under guardianship in accordance with the objects of the Act."
Despite that explanation, however, the limited functions given to Mr Huckstadt's guardian under the Guardianship order must also be taken into account. They are specified to be: "5. The guardian has the following functions: a) Accommodation To decide where Mr Allan James Huckstadt may reside. The guardian may authorise others including members of the NSW Police Force and the Ambulance Service of NSW to: - i) take Mr Huckstadt to a place approved by the guardian; ii) keep him at that place; and iii) return him to that place should he leave it b) Advocacy To advocate generally for Mr Huckstadt. c) Health Care To decide what health care Mr Allan James Huckstadt may receive. d) Medical and Dental Consent To make substitute decisions about proposed minor or major medical or dental treatment, where Mr Allan James Huckstadt is not capable of giving a valid consent. e) Services To make decisions about services to be provided to Mr Allan James Huckstadt."
It is apparent that Mr Huckstadt's guardian has not been empowered to deal with matters of the kind dealt with in various of the conditions imposed by the Tribunal upon Mr Huckstadt's release. They include engagement with a nominated case manager and the Community Justice Program; abstention from drugs and alcohol; compliance with management plans which it and the service provider at his accommodation devise; non-contact with children aged under 16; and regulation of his internet use.
The guardian is also not obliged, in performing the guardian function, to give consideration to the safety of the community, or to the risk that Mr Huckstadt will cause serious harm to others in the future. That it is proposed that Mr Huckstadt will continue to access the assistance which the Community Justice Program provides, takes the matter no further. While he is eligible for such assistance, what use he makes of it is a matter for him.
Having considered the evidence in light of these matters, I am satisfied that it cannot be accepted that the guardianship powers, in Mr Huckstadt's case, are adequate to manage the risk which he poses.
The experts' common view was that transition from the custodial environment in which Mr Huckstadt has lived until only two weeks ago, to the regime under which he has recently been released by the Tribunal, is when opportunities to access the community will arise in ways which have not been available to him for many years. That is a time at which the risks which he poses may materialise.
The supervision Mr Huckstadt was previously subject to, did not permit him access to drugs or alcohol, or to interact with children. Such opportunities will undoubtedly increase his risks of further offending in ways not possible, until now. Further relaxation of his current level of supervision and control is not appropriate, on the evidence I have discussed, until there is available further information as to how Mr Huckstadt will respond to his new circumstances.
Considerations of safety of the community will not compel the guardian's decisions, either as to where Mr Huckstadt is to reside, what treatment he is to pursue, or what access he should have to the community, where opportunities to not only access drugs, alcohol and children may arise, but also to offend against children again. On what can presently be ascertained, the risks which he poses may well increase, should his level of supervision decrease and his level of unsupervised access to the community increase, as the guardian could undoubtedly permit. His level of necessary co-operation with the supervision for which is presently subjected, has only begun to be tested and he has not yet been reviewed by the Tribunal, with all of the resources it has available.
While the order gives the guardian the function of contacting police and ambulance officers to return Mr Huckstadt to the place where the guardian proposes he would continue to live and also to keep him at that place, the evidence does not establish how, as a practical matter, that would be achieved. That pursuit of the guardian's functions could adequately ensure that Mr Huckstadt does not engage with the community unsupervised, so that he does not access drugs, alcohol and children, is not established on the evidence.
Given the differences in the functions and powers of the Tribunal and the guardian, that in the absence of its enforcement powers, the guardian's less restrictive powers can adequately manage the risk which Mr Huckstadt presently poses, cannot be accepted.
In the result, I am not satisfied that at present the risk which Mr Huckstadt poses can be adequately managed by the less restrictive means provided by the guardianship order.

The term of the order

Drs Eagle and Ellis considered that Mr Huckstadt required the ongoing supervision of the Tribunal for a further 12 months. Dr Banks considered that at least 12 months was required. The Crown pressed for 2 years and for Mr Huckstadt a period of between 6 and 12 months was submitted to be sufficient, to permit the required stability to be demonstrated, particularly given Mr Huckstadt's physical frailty and the nature of the facility where he currently resides, which is secure, alcohol free and does not permit access to those aged under 18 years.
The answer, I consider, is to be found in the fact that under the Tribunal's order, he is to be reviewed within three months. Otherwise, its reviews are conducted six-monthly. As the experts discussed, these reviews will permit testing of the likelihood, in the event that an opportunity to reoffend arises, of Mr Huckstadt availing himself of that opportunity, as he did on the last occasion that he was released unsupervised back into the community. That requires ongoing management by the Tribunal, which has authority to revoke his release, in the event of further transgression. I do not consider that supervision proposed by the Community Justice Program, is an adequate substitute, in Mr Huckstadt's circumstances.
In the result, I consider that the term of the order should be for 18 months. That will permit the Tribunal to thoroughly review his compliance with his conditions in his new residence, during the transition period which the experts have discussed. If compliant, the Tribunal has the power to relax his conditions over time, if that be found to be appropriate.
If the parties consider it necessary, during the term of the order, applications to shorten or extend its term can be made, in which event evidence as to the operation of the order will be led for the Court to consider.

Orders

For these reasons, I order that Mr Huckstadt's limiting term be extended for a period of 18 months from today. The order will accordingly expire on 16 January 2019.

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: 17 July 2017

Mental Health (Forensic Provisions) Act 1990(NSW)

Court Suppression and Non Publication Orders Act 2010(NSW)

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