Attorney-General of New South Wales v Calleja

Evidence

1. Pursuant to cl 5(b) of Sch 1 of the Act, an application must be supported by documentation that addresses each of the matters referred to in cl 7(2) and a report prepared by a qualified psychiatrist, registered psychologist or medical practitioner that assesses the risk of the forensic patient causing serious harm to others; and addresses the need for ongoing management of the patient as a forensic patient and the reasons why the risk of the forensic patient causing serious harm to others cannot be adequately managed by other less restrictive means.
2. In support of the present application, the plaintiff relied upon the following evidence: 1. Affidavit of Sarah Najjar affirmed 28 May 2019, together with Exhibit SN-1 (consisting of two volumes); and 2. A further affidavit of Sarah Najjar affirmed 23 July 2019.
3. A report was also obtained from Dr Sathish Dayalan dated 15 April 2019.
4. The defendant relied upon the affidavit of Linda Rodrigues affirmed 29 July 2019.

Statutory Scheme

1. Part 5 of the Act concerns forensic and correctional patients.
2. Section 54A of the Act, empowers this Court to extend a person's status as a forensic patient in accordance with Schedule 1 of the Act. An extension order means the defendant's status as a forensic patient is maintained: s 42(a1) of the Act.
3. The objects of Pt 5 of the Act are set out in s 40 as follows: 1. to protect the safety of members of the public; 2. to provide for the care, treatment and control of persons subject to criminal proceedings who are suffering from a mental illness or mental condition; 3. to facilitate the care, treatment and control of any of those persons in correctional centres through community treatment orders; 4. 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; 5. to give an opportunity for those persons to have access to appropriate care; 6. to protect the safety of victims of forensic patients and to acknowledge the harm done to victims.
4. The Court undertakes the following staged approach to determine whether to grant an extension order: 1. First, the Court asks itself whether it is satisfied to a high degree of probability that cl 2(1)(a) and(b) of Sch 1 have been met; and, if the Court is so satisfied; 2. Then the Court goes on to determine whether an extension order should be granted having considered cl 7(2) factors (and any other relevant matters). (See Attorney-General of New South Wales v McGuire [2017] NSWSC 1572 ("McGuire"), per Bellew J at [26]).
5. Clause 2 provides as follows: 2 Forensic patients in respect of whom extension orders may be made (1) A forensic patient can be made the subject of an extension order as provided for by this Schedule if and only if the Supreme Court is satisfied to a high degree of probability that: (a) the forensic patient poses an unacceptable risk of causing serious harm to others if he or she ceases being a forensic patient, and (b) the risk cannot be adequately managed by other less restrictive means. (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.
6. Clause 2 provides that a forensic patient can only be made the subject of an order "if and only if" the Court is satisfied on a number of issues. In relation to this phrase, McClellan CJ at CL stated in Attorney-General for the State of New South Wales v Gallagher [2006] NSWSC 340 (at [34]): [34] … The caution that an order can only be made "if and only if" the Court is relevantly satisfied emphasises the care with which the Court must approach the question of whether to make orders imposing continuing restrictions, in whatever form, on a person's liberty.
7. The plaintiff bears the onus in respect of both limbs in cl 2 and in respect of the second, must prove the negative: Minister for Health v Paciocco [2017] NSWSC 4 at [8].
8. A "high degree of probability" indicates something "beyond more probably than not". It is higher than the civil standard of proof but lower than beyond reasonable doubt: Attorney General of New South Wales v McGuire [2016] NSWSC 158 at [28], citing Cornwall v Attorney General for New South Wales [2007] NSWCA 374; Attorney General for New South Wales v Huckstadt [2017] NSWSC 441.
9. Applications for extension orders may only be made in relation to forensic patients (Sch 1, cl 3). A forensic patient is defined in s 42 of the Act. Because the defendant is subject to a limiting term and is detained in custody pursuant to an order made under s 27 of the Act, he is a forensic patient.
10. An application for an extension order can only be made if the defendant is on a limiting term (or an existing extension order) and the application is filed within the last 6 months of that limiting term (or current extension order): cll 4(1) and 4(2). These requirements were met with respect to this matter.
11. The structure and language of the regime has direct parallels with the Crimes (High Risk Offenders) Act 2006 (NSW) ("CHRO Act") and as such assistance is gained from authorities dealing with that legislation: see Attorney-General for the State of New South Wales v Boyce by his tutor Jennifer Thompson [2017] NSWSC 144 at [9] (per Davies J). Unlike the CHRO Act, however, this regime does not empower the Supreme Court to make specific orders about the care, treatment or control of a forensic patient. Such matters remain within the province of the Tribunal, which has the expertise in determining the best options for care, supervision, treatment and if necessary, detention of forensic patients.

Unacceptable Risk

1. The Court has to be satisfied that "the forensic patient poses an unacceptable risk of causing serious harm to others if he or she ceases being a forensic patient". The phrase "unacceptable risk" is not defined in the Act, however, it has been held to have the same meaning as in the CHRO Act: Attorney General for the State of New South Wales v Boyce (No 2) [2017] NSWSC 648 at [30].
2. Adamson J in Attorney-General of NSW v Doolan [2015] NSWSC 1773 at [36] stated: [36] … It is clear from the express terms of cl 2(1)(a) in the Forensic Provisions Act that the unacceptable risk is that of "causing serious harm to others".
3. The meaning of "serious harm" was recently considered by Ierace J in Attorney General of New South Wales v Beryalay by his tutor Jennifer Thompson (Preliminary) [2019] NSWSC 252. At [20] his Honour stated: [20] The meaning of "serious harm" in the context of cl 2(1)(a) has been considered in earlier applications for an extension order, by Davies J in Attorney-General (NSW) v Kereopa [2017] NSWSC 411 and RA Hulme J in Attorney-General (NSW) v Kereopa (No 2) [2017] NSWSC 928. Davies J considered that, having regard to the use of "serious harm" in the definition of "mentally ill person" at s 14 of the Mental Health Act 2007 (NSW), "there is no reason in principle why "serious harm" in the [Mental Health (Forensic Provisions) 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" (at [19]). In Attorney-General (NSW) v Kereopa (No 2), RA Hulme J said (at [16]): The "risk of causing serious harm to others" was considered by Davies J in his judgment on the preliminary hearing of the present matter. 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".
4. An "unacceptable risk" is one that is intolerable or far from normal expectations or required standards: Lynn v State of New South Wales (2016) 91 NSWLR 636; [2016] NSWCA 57 ("Lynn") (at [50]-[51] per Beazley P).
5. Determining what is the unacceptable risk includes a consideration of the nature and likelihood of the harm absent an extension. In Attorney General for NSW v MZ [2017] NSWSC 1773 Fullerton J stated (at [11]-[12]): [11] The assessment as to whether MZ poses an unacceptable risk of causing serious harm to others, a risk which cannot be adequately managed by other less restrictive means, is an evaluative exercise, where the assessment of risk is to be made in the context of the Court's obligation to secure the community from harm to a reasonable or adequate degree as opposed to guaranteeing its safety and protection. [12] As an evaluative exercise, predicting the nature and extent of the risk of MZ causing serious harm to others involves considering both the likelihood of the risk of harm eventuating and the gravity of the risk that may eventuate…
6. The assessment of risk is based on an absence of protective measures and on the assumption that the defendant was not a forensic patient or an involuntary patient: Attorney General for New South Wales v Kapeen bht Jennifer Thompson (Preliminary) [2018] NSWSC 619 ("Kapeen") (per Justice Johnson); NSW Minister for Mental Health v Paciocco (No 2) [2018] NSWSC 866 (Davies J) and Attorney General for New South Wales v Skerry (Preliminary) [2015] NSWSC 859 ("Skerry") (at [40]) per R A Hulme J). In Kapeen, Johnson J stated (at [49]): [49] I am satisfied that the correct approach is to assess the question of whether Mr Kapeen poses an unacceptable risk of causing serious harm to others on the assumption that he is not a forensic patient nor an involuntary patient - that is, the risk that Mr Kapeen would present if he ceased to be a forensic patient and was released at the end of the extension order on 2 June 2018. In this regard, I agree with the approach adopted by RA Hulme J in Attorney General of New South Wales v Skerry (Preliminary) [2015] NSWSC 859 at [40], Schmidt J in Attorney General for the State of New South Wales v Huckstadt (No. 3) [2017] NSWSC 944 at [14] and Fullerton J in Attorney General for NSW v MZ [2017] NSWSC 1773 at [12]…
7. The unacceptable risk precondition requires the exercise of a discretionary judgment: Lynn at [82] (per Basten JA). The objects of the Act should be held in mind when undertaking this evaluative task: Lynn at [55] per Beazley P. Intrusions on the defendant's right to liberty and privacy by the making of an order are not relevant considerations for the first stage analysis: Lynn at [44] per Beazley P.
8. In Lynn, Basten JA held (at [126]): [126] … The nature of the risk he posed had to be assessed by reference to past conduct, the seriousness of the possible future conduct and the period over which the risk may come to fruition. The assessment must be based on an absence of protective measures. The criterion of unacceptability will no doubt depend upon these matters, together with a comparison, to the extent that the evidence permits, of what may be described as the background level of risk to the community from violent offenders
9. Determining what is an "unacceptable risk" includes a consideration of the type and nature of the offences that may be committed absent supervision and balancing those factors, if necessary, for example where there is low risk of recidivism versus likely drastic consequences to the victim: State of New South Wales v Kamm (Final) [2016] NSWSC 1 ("Kamm") at [41] (per Harrison J).
10. The Court may legitimately find a person poses an unacceptable risk for the purpose of the unacceptable risk test, even if the likelihood of them committing a further offence causing serious harm is determined to be low: Kamm at [43] (per Harrison J); State of New South Wales v Sleeman (Preliminary) [2018] NSWSC 562 at [13] (per R A Hulme J).
11. The analysis undertaken by Rothman J in State of NSW v Ceissman [2018] NSWSC 508 at [26] is instructive in the present context: [26] It is further necessary for the Court to deal with the construction of the term, "unacceptable risk", within the context of the THRO Act. Ordinarily, a risk is the possibility, chance or likelihood of "harm, hazard or loss". In many areas of the law, risk assessments are undertaken that identify and evaluate an injury that may be sustained as a result of a possible (and usually foreseeable) occurrence. In assessing a risk and whether it is unacceptable, there is a matrix of considerations that are required to be taken into account. First, there is the probability that the risk will manifest. Secondly, there is the seriousness of the harm that will ensue if the risk were to manifest.
12. The judgment of Adams J in State of New South Wales v Wilson (Preliminary) [2017] NSWSC 1367 at [127]-[128], adopting the observations of Harrison J in State of New South Wales v Pacey [2015] NSWSC 1983 ("Pacey") and Wilson J in State of New South Wales v Simcock (Final) [2016] NSWSC 1805, is also applicable and in the following terms: [127] In considering the question of whether the defendant poses an "unacceptable risk" of committing a "serious sex offence" if he is not kept under supervision, I give the words "unacceptable risk their ordinary meaning. I also have regard to the observations of Harrison J concerning the question of "unacceptable risk" in State of New South Wales v Pacey at [43] as follows: "It is perhaps trite to observe that the assessment of the ordinary meaning of the unacceptability of any risk involves at least notionally the arithmetical product of the consequences of the risk should it eventuate on the one hand and the likelihood that it will eventuate on the other hand. A very high risk of occurrence of something that is insignificant, or a very low risk of occurrence of something that is significant, are both risks of similar or corresponding proportions, but neither risk could be considered to be unacceptable." [128] Similarly, Wilson J observed in State of New South Wales v Simcock (Final) [2016] NSWSC 1805 at [71]) that, "Unacceptability of risk involves considerations of both the likelihood of the risk eventuating, and the gravity of the risk that may eventuate."

Management of Risk: Clause 2(1)(b)

1. If the Court is satisfied to a high degree of probability that the defendant poses an unacceptable risk of serious harm to others, then it must make an extension order if also satisfied to the same high degree of probability that "the risk cannot be adequately managed by other less restrictive means".
2. In Attorney-General of NSW v McGuire (No 2) [2014] NSWSC 288 ("McGuire No 2"), Garling J interpreted the phrase "adequately managed" as meaning (at [63] and [64]): [63] … 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 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. However, the position is novel with respect to a forensic patient who is not mentally ill, or mentally disordered, but as is the case here, a person with an intellectual disability.
3. When evaluating whether the defendant's risk can be adequately managed by other less restrictive it is the risk that is the primary consideration. This is more than considering the defendant's proposed treatment regime and care (Attorney General of NSW v Doolan by his tutor Jennifer Thompson (No 2) [2016] NSWSC 107 ("Doolan No 2") per Adamson J at [96]).
4. In Doolan No 2, Adamson J noted the assumption implicit in the wording of cl 2(1)(b) that an extension of a person's status as a forensic patient is more restrictive than classification as an involuntary patient. Her Honour considered that the question whether "means" are more or less restrictive is to be judged by the legal powers 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: Doolan No 2 at [96].
5. Her Honour undertook a detailed analysis of the regimes for the treatment of mentally ill people under the Act as forensic patients, compared with the Mental Health Act 2007 (NSW) ("MHA") as involuntary patients. Four key differences are noted between the two regimes: 1. The first is that a forensic patient is to remain in detention, including in a mental health facility or correctional centre, unless the criteria for release in s 43(a) of the Act, which includes concerns about the safety of members of the public not being seriously endangered are met. The reverse is the case with an involuntary patient who must not be detained unless that person is mentally ill or mentally disordered and an authorised medical officer is of the opinion that no other care of a less restrictive kind that is consistent with safe and effective care is appropriate and reasonably available to the person. (Doolan No 2 at [109]-[110]). 2. The second difference relates to release. A forensic patient may not be released by the Tribunal without an independent expert risk assessment report, which addresses whether any member of the public will be seriously endangered. With an involuntary patient, however, an authorised medical officer must inform the Tribunal as soon as reasonably practicable if they consider that the patient is not mentally ill. (Doolan No 2 at [111]-[112]) 3. The third factor concerns the imposition of conditions while the patient is living in the community. Section 75 of the Act empowers the Tribunal to impose conditions across a broad range of matters when it orders the release of a forensic patient - including as to treatment, home visits, accommodation, use of alcohol and other drugs, non-association with victims and restrictions on frequenting places. Community treatment orders for involuntary patients under s 51 of the MHA are treatment focused only, requiring the patient to receive the medication and therapy, counselling and management, rehabilitation and other services provided in accordance with the treatment plan. (Doolan No 2 at [115], see s 54 of the MHA). 4. The fourth matter concerns breaches of conditions. Forensic patients are subject to the oversight of the Tribunal, which has substantial powers of recall. In contrast, for involuntary patients who have been released, the responsibility of overseeing community treatment rests with the patient and the Director of community treatment of the relevant mental health facility. (Doolan No 2 at [117]-[118]).
6. Hulme J in Skerry stated (at [54]): [54] … The focus should be more on the question of adequately managing the risk, rather than identifying whether one regime is more or less restrictive than the other.
7. Garling J, in McGuire No 2, stated that the phrase "adequately managed" means (at [63]): [63] … 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 defendants being confined in some form of institutional care rather than taking their place in the community.
8. Treating the defendant is one aspect in managing his risk. Adequate management of risk is, however, a broader concept than treatment and may involve considerations such as managing how the defendant may be reviewed, who can discharge him, what is considered before the defendant is released, how he may be reintegrated in the community, how the defendant can be monitored after discharge and the ability to recall the defendant should his mental health deteriorate.
9. The Court is to consider the material globally and be satisfied on a prima facie basis that the relevant matters have been established.

The Preliminary Hearing

1. A purpose of the preliminary hearing is to allow the Court to filter out unmeritorious applications at an early stage. Another purpose is to give the Court the benefit of independent expert opinion before making a final decision: State of New South Wales v Manners [2008] NSWSC 1242 ("Manners") at [9] (per Johnson J). At the preliminary hearing, the Court is to have regard to the documentation which supports the application (see cl 5).
2. The task of the Court is not to weigh up the documentation, or predict the ultimate result, or to consider what evidence the defendant might call at the final hearing: Manners at [8] (per Johnson J); State of New South Wales v Brookes [2008] NSWSC 150 at [13] (per Fullerton J) and State of NSW v Golding (Preliminary) [2018] NSWSC 1041 (per R A Hulme J).
3. The test has been described as akin to the prima facie case test applied by magistrates in committal proceedings. The approach is to take the plaintiff's case at its highest to determine if there is merit in the application.
4. Since the question before the Court will involve a consideration of the Court's task on the final hearing of the application, it is also necessary for the Court to have regard to the matters set out in cl 7(2) of Sch 1 of the Act and the authorities on the Court's task on final hearing.
5. If, following the preliminary hearing, the Court is not satisfied that the matters alleged in the supporting documentation would, if proved, justify the making of an extension order, it must dismiss the application (cl 6(6) of Sch 1 of the Act).

MATTERS RELEVANT TO THE MAKING OF AN EXTENSION ORDER

1. In determining whether or not to make an extension order, the Court must have regard to the factors set out in cl 7(2) of Sch 1 of the Act, in addition to any other matters it considers relevant.
2. In the preliminary hearing context, the plaintiff must satisfy the Court that the matters alleged in the supporting documentation address the cl 7(2) factors which would, if proved, justify the making of an extension order.
3. The following evidence indicates there is a prima facie case for an extension order.

Safety of the Community and views of the Sentencing Court - cl 7(2)(a) & (h)

The defendant's background

1. The defendant had a troubled adolescence and significant behavioural problems from a young age. He reported that his mother suffered from a mental illness and that he had been physically abused at home. It appears he was evicted from his family home in 1984 at 11 years of age and left school at the age of 12. He then lived on the streets before being committed to the care of the Minister for being a neglected child. He was admitted to various Juvenile Justice Institutions for antisocial behaviours and conduct disorder. He commenced using cannabis at 13 and alcohol, heroin and cocaine extensively at 15. He sold drugs in Kings Cross to survive and was reportedly a gang member.
2. The following account of cl 7(2) factors is substantially derived from the written submissions of the plaintiff, which contained accompanying footnote references to the documentation before the Court, which as yet, have not been the subject of challenge.

Criminal History

1. The defendant commenced committing criminal offences when he was 13 years of age.

Armed Robbery, Forcible Detention with Intent, Obtaining Money by Deception committed in June and August 1989

1. At the age of 16 years, the defendant committed a series of offences which involved him entering on three separate occasions in June and August 1989, the homes of elderly women and threatening them with a knife in an attempt to steal money. Physical force was used, with one of the victims being bound to the bed with stockings and having a knife pressed against her neck. The offence in August was committed after the defendant had absconded from a detention centre.
2. The defendant was sentenced by Judge Urquhart on 12 December 1989 to 5 years 4 months imprisonment with a non-parole period of 4 years to be served in a detention centre.
3. The defendant appealed against this sentence to the Court of Criminal Appeal. In dismissing the appeal on 10 April 1991, Handley JA stated, amongst other things, that "the offences were serious ones and cowardly, involving violence or threats of violence and deception directed to elderly ladies living alone".

Robbery, Dishonestly obtain Money and Murder committed on 22 March 1990

1. At the age of 17 the defendant committed the offence of murder on an elderly woman while committing a robbery in her home. The defendant pleaded not guilty to the charge of murder and guilty to the other offences. He consistently expressed that he did not intend to murder the victim The jury found the defendant guilty of murder.
2. Slattery AJ found the defendant "obviously menaced and terrorised the deceased lady, compelling her to give up a cheque and sign another before binding her tightly with stockings at her hands and feet". The medical evidence from the post-mortem determined that the cause of death was manual strangulation. His Honour also found that the offence was premeditated and that the defendant treated the victim "in a cowardly and brutal manner". His Honour stated the defendant "acted in a ruthless and heartless fashion" and he had "demonstrated frequently that he had no respect for the law".
3. In sentencing the defendant, Slattery AJ stated he had been "in constant conflict with the law" and that he was a "manipulative and cunning young person". His Honour had regard to the fact that at the time the defendant committed these offences he was an escapee from a detention centre. He was serving a sentence of five years, four months imprisonment for similar offences of armed robbery and kidnapping imposed on 12 December 1989.
4. Slattery AJ imposed a sentence of 20 years imprisonment with a non-parole period of 15 years. The defendant's earliest release date was 11 June 2008.
5. The defendant was released to parole on 13 December 2010. In the community the defendant was compliant with his parole conditions and regularly reported as arranged until the commission of the index offences on 16 November 2011. However, on 17 November 2011 the defendant's parole was revoked.

Armed Robbery, Enter Dwelling with Intent to Steal committed on 16 November 2011

1. On 16 November 2011, the defendant committed the following offences whilst on parole: 1. 2 x armed robbery contrary to s 97(1) of the Crimes Act 1900 (NSW) (counts one and two); 2. 1 x enter dwelling house with intent to commit a serious indictable offence, namely larceny contrary to s 111 (1) of the Crimes Act (count four).
2. The offending involved the defendant entering a house at night armed with a kitchen knife to obtain money for drugs. He demanded money from two male residents who were sleeping in the premises. The defendant held the knife in an elevated position and instructed the victims to go with him to an ATM to withdraw money. He told the victims "don't try anything I'm not afraid to stab you".
3. The defendant and the victims left the house and commenced walking along the street towards to the ATM. The defendant walked approximately 2 metres behind the victims and was giving them instructions including "Don't try anything I know where you live". The victims withdrew money from the ATM and gave it to the defendant. The defendant directed the victims to walk towards Enmore Road. When they reached Enmore Road the defendant said, "Don't call the police, if you do wait an hour, if you do I'll come and get you I know where you live".
4. Shortly after the defendant was apprehended by police. The defendant told police he took the money to assist the "Jack Hammer Revolution being conducted by the Skull and Bones society" and that he stole on that day as the President of the United States of America, Barack Obama was visiting. He admitted to police that he had used a "shot of heroin" and was observed by police to be intoxicated.
5. On 9 August 2013, Huggett DCJ imposed a limiting term, which expired on 13 September 2019. Judge Huggett acknowledged the defendant had been suffering from a significant mental illness at the time of the index offence. Her Honour noted the defendant's criminal history and that he had been in custody for a large number of his adult years. She also noted when he was released to parole, he committed further offences resulting in his parole being revoked. Her Honour found the defendant posed a serious risk of harm to both himself and the community and needed intensive treatment and very careful monitoring to ensure any future risks of violence could be reduced.
6. In structuring the limiting term her Honour imposed wholly concurrent terms for counts one and two, however, considered it appropriate to accumulate the sentence for count four to reflect the separate criminality. In respect of count four her Honour nominated a limiting term of 4 years to commence from 14 August 2012 and expire on 13 August 2016. In respect of counts one and two her Honour nominated a limiting term of 6 years and 6 months to commence from 14 March 2013 and to expire on 13 September 2019.

History of Mental Illness

1. The defendant was first diagnosed with a chronic psychotic disorder around 1990, whilst in custody for the murder offence. He admitted to experiencing auditory hallucinations when using cocaine. In October 1991, he was reported to have become psychotic and was made a forensic patient. It was noted he had a "fixed delusion about a man coming into prison to kill him" and that he would "kill him first". He was reported to believe he was "destined to lead an organisation which will have great power and kill many people". He believed this organisation would arrange his release in 1996. He was also noted to have "delusional ideas of the CIA following him".
2. Whilst in custody, the defendant has had several admissions to the Long Bay Hospital for treatment of relapses of psychosis.
3. In 2010, following his release to parole, he was treated by the Dundas Community Mental Health team. His treatment was subject to a CTO and he received a depot antipsychotic medication fortnightly. He was reported to be doing well in the community and was able to work five days a week as a process worker. He had also received an increase in his Disability Support Pension. He was living independently and appeared to be largely compliant with follow-up. He had also reconnected with his sister and reported that he was enjoying their relationship once again. He reported they had contact three to four times per week and that he also had contact with his aunt, father and mother. He underwent a urinalysis on 24 October 2011, which indicated no drugs were detected. The Case Note Reports around the time of the index offences suggest the defendant was stable and that there were no concerns.
4. The defendant was reviewed by his case manager on 2 November 2011 and found to be free of psychotic symptoms. He was given his depot medication on the same day. On 16 November 2011 he committed the index offences. This chronology and the observations made by those treating and supervising the defendant at the time indicates there was no discernible warning or trigger that the defendant was going to relapse.
5. On 22 November 2011 the defendant was assessed in custody. He reported that he had become non-compliant with his treatment for the previous month. Dr Fay stated, "he may well have become paranoid about his medication, telling me that 'laser light coming for a socket tampered with his depot'. Though he denied THC or amphetamine use, he said he had recently used heroin, not, he said, a usual drug of choice". He also reported to Dr Nielssen that he resumed heroin use in the months before his arrest and was using the drug every day for a period (again this appears inconsistent with his urinalysis on 24 October 2011).
6. On 18 January 2012 the defendant was admitted to Long Bay Hospital when he presented as "floridly psychotic". He had expressed persecutory and grandiose delusions. After a poor response to multiple medications regimes, the defendant was commenced on Clozapine in April 2013. Although the defendant's symptoms showed some improvement with clozapine, he continued to exhibit positive signs of psychosis throughout his admission to Long Bay Hospital.
7. The defendant was transferred from Long Bay Hospital to the Forensic Hospital on 3 February 2014. In January 2015, the defendant was transferred from the acute unit of the Forensic Hospital, Bronte unit to the subacute unit of the Forensic Hospital, Clovelly. On 20 April 2017, the defendant was transferred to Dee Why ward. He is presently in the Elouera Unit within a maximum secure facility.

Report received under cl 5(b) - cl 7(2)(c)

1. Dr Dayalan prepared a report on 15 April 2019 following a psychiatric assessment of the defendant on 25 March 2019 for approximately 140 minutes. Dr Dayalan observed the defendant to be evasive and guarded at times, especially when discussing his offending behaviour and current psychotic symptoms. He also noted that the defendant's disorder in thought form made it difficult to explore his history of offending behaviour.
2. The defendant could not recall details regarding the onset of his psychotic illness and said "I think I had a psychotic illness in the past but I am alright now". Dr Dayalan was of the view the defendant presented as someone suffering from a mental illness.
3. Dr Dayalan noted that he "spoke in a thought disordered manner about a national emergency in the United States of America, FEMA and a shadow government coming into place". He also "spontaneously added that when he saw certain people on television, he would get a thought that they were going to be sick" and "that on most occasions his predictions turned out to be accurate". The defendant eventually admitted, "the voices" had told him about the national emergency in the USA and that he continued to experience auditory hallucinations even though he had earlier denied such symptoms.
4. Dr Dayalan observed the defendant continued to talk in a thought disordered manner about historical events such as the Pope ordering the execution of people in 1244 and the Yugoslavian War.
5. When asked about the benefits of taking medication, the defendant said he felt clearer in his thinking and that he might as well continue taking it as it "keeps everyone happy". Later in the interview the defendant said he would like to have his dose of Clozapine reduced so that he would have more energy but that he didn't want to take the chance of not taking it.
6. The defendant reported that he had been using cannabis, heroin and cocaine at the time of the index offences. He also acknowledged that he had been experiencing auditory hallucinations and felt persecuted by ASIO and the NSA as he had believed he had a different set of DNA which helped him evolve into a different species.
7. In regard to insight into his mental illness, the defendant accepted that he had a history of suffering from psychotic episodes but did not believe that he had current ongoing psychotic symptoms. Dr Dayalan noted, "he expressed some ambivalence in regard to continuing on the current treatment regime". It was also noted that the defendant had avoided discussing the index offences and various aspects of his history especially those related to his risk of violence. Dr Dayalan observed the defendant's prior offending was regarded to have occurred in the context of illicit substance abuse and acute psychosis. His index offences were primarily motivated by the desire to obtain money to purchase illicit substances and partially motivated by his psychotic symptoms.
8. In terms of diagnosis, Dr Dayalan formed the view the defendant's history and presentation was consistent with schizoaffective disorder and also cannabis, stimulant and opiate use disorder that are currently in remission in a highly controlled environment.
9. Dr Dayalan conducted a risk assessment using the Historical Clinical Risk Management-20 Version 3 ("HCR-20 V3") tool. The following historical factors were noted: 1. Problems with violence: the defendant has violent criminal charges and a history of violent behaviour within the correctional centre including making threats of violence. 2. Problems with other anti-social behaviour: the defendant has criminal convictions for stealing, fraud, malicious damage, goods in custody etc. 3. Problems with relationships: the defendant has never had an intimate long-term relationship, although his opportunities to establish such a relationship have been impeded by his incarceration throughout most of his adult life. His relationship with his family members has been unstable. He is also noted to have sent letters to his brother threatening to kill him. 4. Problems with employment: the defendant has limited employment opportunities in the community due to him spending a significant amount of time in custody. 5. Substance abuse problems. 6. Major mental disorder: dating back to at least 1990 that is treatment resistant. 7. Traits of antisocial personality disorder: although a definitive diagnosis cannot be made, this is an important consideration in his future assessment of risk. 8. Problems with traumatic experiences: experience of physical and emotional abuse by his parents and carers and homelessness and poverty. 9. Problems with violent attitudes: the defendant has a history of violent offences and making threats of violence. 10. Problems with treatment or supervision response: the defendant has had several periods of non-adherence to medication. He has a history of escaping from custody, breaching community service order, breaching parole order and failing to appear in court.
10. The following clinical factors were noted: 1. limited insight into his mental illness and need for psychiatric treatment; 2. continued ongoing positive psychotic symptoms such as thought disorder, delusions and hallucinations; and 3. reluctance to take medication. The defendant requested a reduction or cessation of medication and his symptoms have only partially responded to treatment.
11. In terms of risk management factors, Dr Dayalan noted that the intensity of professional services and treatments offered by the defendant's current placement would be considered commensurate to the level of risk the defendant poses. Dr Dayalan stated, "his limited insight and reluctance to engage in discussion around his offending behaviour would pose challenges to psychological interventions targeted at reducing his risk of violence".
12. It was also observed that the defendant would have ongoing problems with his personal supports as his sister has limited ability to be supportive due to her own mental health issues and functional impairment. Dr Dayalan noted the defendant remained guarded in his interactions with his treating team and he was observed to be largely isolative on the unit.
13. Dr Dayalan expressed the view that the defendant has a high loading of historical risk factors for violence. He stated these factors are static and indicate an increased underlying risk of violence in the long term. He further opined: His risk formulation would suggest that given the high loading of historical risk factors, close and careful monitoring and management of clinical/dynamic risk factors would be required in the long term to minimise risk of violent behaviour in the future. Any reduction in the level of supervision and monitoring needs to be graded and given sufficient period of time to assess or any escalation in the risk factors.
14. Dr Dayalan was of the opinion the defendant suffered from a mental illness as per the definition of mental illness in the MHA. He noted the defendant continued to present with delusional beliefs, auditory hallucinations and thought disorder and has limited insight into his mental illness. Dr Dayalan was of the view the defendant presented a significant risk of non-compliance with treatment and possible relapse of substance use if placed in a less secure and unsupervised setting. Dr Dayalan stated: Any deterioration in his mental state would be associated with a significant risk of serious harm to others and himself. Considering the continuing condition of Mr Calleja, he would be assessed to be a mentally ill person under the Mental Health Act 2007.
15. Dr Dayalan was of the opinion the defendant's schizoaffective disorder is a chronic health condition he is likely to suffer from for the rest of his life. Dr Dayalan stated the defendant requires ongoing treatment and that his chronic illness has had a suboptimal response to treatment interventions. Dr Dayalan is of the view the structured environment of the Forensic Hospital would be regarded as having a stabilising effect on the defendant's mental state and any sudden and significant reduction in the level of structure and supervision provided "would have a detrimental effect upon his mental state".

Any other report of a qualified psychiatrist or registered psychologist or medical practitioner - cl 7(2)(d)

1. The plaintiff placed reliance upon the following reports in this respect: 1. Dr Westmore, Psychiatrist, 15 March and 11 July 1991; 2. Rosalind Foy, Psychiatric Registrar, 29 January 1999; 3. Dr Cullen, MRC Psychiatry, 5 July 2000; 4. Dr Chan, Forensic Psychiatrist, 1 February 2012; 5. Dr Furst, Forensic Psychiatrist, 30 April 2012; 6. Dr Nielssen, Forensic Psychiatrist, 19 June 2012; 7. Dr Chan, Psychiatric Registrar, 7 September 2012, 25 March 2013 and 21 August 2013; 8. Dr Martin, Forensic Psychiatrist, 24 July 2013; 9. Dr Clark, Forensic Psychiatrist, 31 July 2013; 10. Dr Eagle, Forensic Psychiatrist, 7 March, 2 December 2014, 22 May 2015; 11. Dr Grama, Psychiatry Registrar, 15 May 2016; 12. Kaur and Yee, Psychologists, 8 June 2016; 13. Dr Jacobs and Dr Roberts, Psychiatry Registrar/Forensic Psychiatrist, 15 February 2017; 14. Dr Grama, Forensic Psychiatrist, 9 August 2017, 15 February, 13 September 2018; and 15. Dr Zia, Psychiatric Registrar, 1 May 2019.
2. As to the most recent reports, the following may be noted: 1. On 9 August 2017, it was recorded that the defendant's Clozapine dose had been increased to 900mg per day. Dr Grama reported that the defendant continued to exhibit psychotic symptoms and diminished insight into his mental illness and its symptoms. It was noted the defendant regularly attended perimeter walks, morning meetings, healthy life-style and Rec Hall activities. He stated the defendant had "agreed to participate in Monday Recovery group where his participation has gradually improved and became more consistent with time". 2. On 15 February 2018, Dr Grama reported that the defendant continued to express multiple bizarre delusions, mostly regarding various ways in which governments/agencies were controlling the population. For example, the defendant described the use of the Opal Card as a method of controlling the population by European Royal Families and Governments. Dr Grama noted this appeared to be a new delusion, however, it remained in keeping with his overall delusional system regarding the world's future. He also reported new delusions regarding DNA being obtained from people at funerals. Dr Grama stated, "Mr Calleja tends to delusionally misinterpret information acquired from TV, radio and other sources and incorporates this into his delusional system". It was noted Mr Calleja's insight remained impaired in the context of his mental illness and symptoms; however, he was able to acknowledge that his beliefs may not be reality based. 3. In a mental state examination conducted on 14 August 2018, it was noted the defendant's judgment and insight were impaired. Dr Grama noted the defendant still had to successfully complete a program concerning offence related behaviour. While he was reported to have been relatively settled, he continued to exhibit positive psychotic symptoms in the form of auditory hallucinations, bizarre and persecutory delusions, negative symptoms and diminished insight into his mental illness and its symptoms. He remained relatively guarded, evasive and avoidant in terms of discussing his psychopathology. 4. On 13 September 2018 it was noted the defendant was yet to successfully complete a substance abstinence program and that his cooperation with therapeutic interventions had been inconsistent, limited and superficial due to a lack of insight. Dr Grama stated: Mr Calleja continues to exhibit ongoing positive symptoms of schizophrenia, especially delusions. His delusional beliefs contribute to his ongoing risk and limit his participation in various groups or one to one work. Mr Calleja continues to avoid discussing his index offence and various aspects of his history, especially ones related to his actuarial risk of violence factors. He continues to have no insight into his mental illness, need for treatment and management of risk of violence. 1. In a Mental State Examination conducted on 17 April 2019 by Dr Zia, the defendant was noted to have showed partial insight into his illness and an understanding of staying abstinent from illicit drug use in the future. He was reported to have stated that "people and psychiatrists do not agree with his beliefs". Dr Zia expressed the opinion there were reasonable grounds for believing that care, treatment and control of the defendant is necessary for his own protection and the protection of others from serious harm. In his opinion, there was no less restrictive placement option available consistent with the safe and effective care of the defendant and it was recommended that he remain at the Forensic Hospital and undertake further interventions to minimise risk of relapse into illness and substance use.

Any order or decision made by the Tribunal with respect to the forensic patient that is relevant to the application - cl 7(2)(e)

1. For the purpose of this preliminary hearing, I will focus on the original and most recent report of the Tribunal. The Mental Health Review Tribunal ("the Tribunal") determined on 27 September 2012 that the defendant would not become fit to stand trial during the period of 12 months after the finding of unfitness by the court. Further the Tribunal ordered that the defendant be transferred to the Forensic Hospital once a bed became available.
2. The Tribunal reviewed the defendant on 22 February 2018. The Tribunal noted the defendant had limited insight into his experiences and limited engagement with treatment. Dr Grama described the defendant's illness as being "very treatment resistant" and advised the Tribunal he would not take medication without an order. The Tribunal noted the defendant's risks were very much associated with his likely reluctance to take medication outside of a ward environment and his ongoing psychotic symptoms, along with his ongoing lack of any engagement with drug and alcohol treatment. The Tribunal were satisfied that the present arrangements for the care, treatment and control of the defendant were necessary and sufficient.
3. The Tribunal reviewed the defendant on 27 September 2018. Dr Grama told the Tribunal that the defendant's continuing symptoms impacted significantly on his capacity to engage in and sustain recovery work. Dr Grama stated an important aspect of recovery was the capacity to do work around the index offence with the goal of discussing what had happened to him and how a similar situation could be avoided in the future. In Dr Grama's opinion, the high dose of Clozapine reflected the nature of the defendant's illness.
4. The Tribunal noted the defendant's response to treatment had been slow. They also accepted Dr Grama's opinion that the defendant continued to remain unfit for trial. The Tribunal determined that no change should be made to the defendant's current placement at the Forensic Hospital, which was the least restrictive option for his current care and treatment.
5. The last Tribunal review occurred on 22 May 2019. The Tribunal determined that no change should be made to the defendant's current placement at the Forensic Hospital, which was the least restrictive option for his current care and treatment. The Tribunal also noted there was no evidence to suggest any change in relation to the defendant's fitness to stand trial.

The level of the forensic patient's compliance with any obligations to which he is or has been subject while a forensic patient - cl 7(2)(g)

1. The defendant has been reported to be generally compliant with his obligations as a forensic patient. The defendant has utilised leave on a regular basis for unescorted perimeter walks and off ward activities such as chapel or computer group. He has been noted to follow directions.

CONCLUSION

1. In my view, the supporting documentation, if proved, justifies the making of the orders referred to at the outset of this judgment.
2. Based on that material both limbs of cl 2 of Sch 1 of the Act are satisfied for the purposes of the preliminary hearing.
3. As to whether the defendant poses, to a high degree of probability, an unacceptable risk of causing serious harm to others is he is not a forensic patient the following considerations are applicable based upon the material before the Court: 1. The opinions of Dr Dayalan and the other expert reports to which I have referred demonstrate that the defendant is severely mentally unwell. He has spent little time in the community during which, whilst on parole, he committed serious offences. 2. The defendant continues to have delusional beliefs, auditory hallucinations and thought disorder. The persistent symptoms of psychosis impact on rehabilitation and recovery. 3. His prognosis appears poor and there is a need for treatment and supervision. 4. The risk of serious harm is illustrated by the defendant's criminal history and the nature of that offending. 5. This is exacerbated by a reluctance to take medication outside a hospital situation. 6. This difficulty correlates with the defendant's lack of insight into his mental health and the need for treatment. 7. Dr Dayalan refers to a risk of relapse into substance abuse which insured the risk of relapse. For example, it would appear the defendant commitment the index offence in order to obtain heroin. 8. Both Dr Dayalan and the defendant's treating team's consider that the appropriate placement for the defendant's treatment and case is a Forensic Hospital.
4. As to the second limb of cl 2 of Sch 1 of the Act, on the material presently before the Court, the defendant's risk cannot be managed by a less restrictive means.
5. I have reached that conclusion for the following further reasons: 1. The defendant appears to require close monitoring and supervision. Forensic patient status will permit more comprehensive management of the risk of violence. 2. Dr Dayalan opined that a CTO or guardianship order will not adequately manage the defendant's risk at this stage. Dr Dayalan opined that the defendant's presentation to him there was no less restrictive means available. 3. There are limited or inadequate arrangements in place for the treatment and care of the defendant either by community-based support and housing or family support. 4. The index offences occurred during the operation of a CTO. As the plaintiff submitted "despite the supervision provided by the treating team and probation and parole, the defendant relapsed and reoffended". 5. The treatment afforded in a Forensic Hospital at the time of the preliminary hearing seems to have mitigated the risk notwithstanding new delusions. 6. Dr Dayalan's concern is that, if the defendant was managed as an involuntary patient under the MHA to a Forensic Hospital, the defendant may be discharged into the community directly without control by the Tribunal. Thus, the safeguards otherwise available for the release of forensic patient would be missing. The breach of parole report noted the index offence occurred with the defendant appearing relatively stable and without any identifiable trigger. This illustrates the unstable nature of the defendant's condition. 7. Dr Dayalan's view was that there should be a gradual reintegration of the defendant into the community with transition through a less severe psychiatric unit. Such a transition would be best achieved if the defendant was a forensic patient, in which case he would receive periodic reviews by the Tribunal. Dr Dayalan stated that such reviews do occur under a CTO but reviews by the Tribunal under a CTO only occur upon the instigation of a treating team and are not necessarily accompanied by a risk assessment).
6. For the foregoing reasons, I confirm the orders made on 12 September 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: 25 November 2019