Attorney General of New South Wales v Cooper

Background

1. The Defendant was born in Manly, New South Wales in 1971. He is currently 52 years old. He has an intellectual disability and has received a diagnosis of acquired brain injury, due to a head injury sustained as an adult. He has a mild hearing impairment and a significant speech impediment which causes stress. He has been diagnosed with alcohol use disorder, probable Paedophilic Disorder, and possible Antisocial Personality Disorder.
2. Assessments testing the Defendant's cognitive functions have generally placed him in the Mild to Moderate range of Intellectual Disability. This is compounded by his acquired brain injury. The Defendant has consequential difficulties understanding abstract concepts, conceptualising future or hypothetical situations and evaluating costs and benefits of decisions. He experiences difficulties with problem solving, regulating his emotions, inhibiting his impulses, applying insight and consequential thinking, and processing and retaining information. He finds navigating the subtleties of interpersonal relationships and social norms challenging, and his capacity for insight and self-reflection is limited.
3. The Defendant has a long custodial history and has been in and out of gaol since he was 18 years old. He has been vulnerable in custody due to his disabilities. He has been in custody from 24 November 2020 until the present. During this period in custody, he requested to be in a Special Management Area Placement, which means he was separated from the mainstream population as a vulnerable or at-risk inmate. This period of incarceration has been positive from the perspective of the Defendant's conduct and commitment to work. He has been referred to the Community Safety Program ("CSP") who are currently involved in the development of plans and coordination of services to transition him from custody to the community. The proposed accommodation upon the Defendant's release from custody is a Supported Independent Living property funded through his National Disability Insurance Scheme plan with supervision and support.
4. The CSP is taking additional steps for rehabilitation and expert support in the community. On 31 May 2024, the Guardianship Division of the NSW Civil and Administrative Tribunal appointed the Public Guardian with accommodation, health care and services functions for the Defendant for a period of 12 months. The Defendant was also made the subject of a Financial Management Order.
5. An application for the Defendant's conditional release was part-heard and adjourned by the Mental Health Review Tribunal ("MHRT") on 18 July 2024. He was then due to appear before the MHRT on 22 August 2024 (after the hearing of this application).
6. The Defendant is a "registrable person" under s 3A of the Child Protection (Offenders Registration) Act 2000 (NSW) ("CPOR Act") for life. On 1 September 2020, at Campbelltown Local Court, the Defendant was made subject to a Child Protection Prohibition Order ("CPPO") for a period of five years, pursuant to s 5 of the Child Protection (Offenders Prohibition Orders) Act 2004 (NSW) ("CPOPO Act").
7. The charges which resulted in the Defendant's current status as a forensic patient, and incarceration, are two counts of contravening a CPPO, in contravention of s 13(1) of the CPOPO Act and two counts of failing to comply with reporting obligations, in contravention of s 17(1) of the CPOR Act. On 24 November 2020, police attended the Defendant's residence at an Integrated Support Centre ("ISC"), for the purpose of conducting a home visit as permitted under the CPOR Act. Upon entering the Defendant's room, police located a second phone, a black Samsung (which was not permitted under the rules of the ISC). Upon searching the mobile phone, police located child abuse material. Further investigation resulted in the Defendant being charged with the following offences: 1. Use carriage service to access child abuse material (Commonwealth offence): between 28 October 2020 and 24 November 2020, the Defendant accessed 26 images depicting child abuse material from applications and websites including Viber, IMO, Twitter, and Telegram. 2. Use carriage service to possess child abuse material (Commonwealth offence): 14 videos depicting child abuse material were located on the Black Samsung. 3. Contravene prohibition order (2 offences): Firstly, in contravention of condition 8 of the prohibition order, between 1 October 2020 and 23 November 2020, the Defendant used the black Samsung to access the internet for purposes other than those allowed by the CPPO by using applications and websites such as Facebook and Facebook Messenger. Secondly, in contravention of condition 9 of the prohibition order, the black Samsung contained images and videos of persons under the age of 18 years. 4. Fail to comply with reporting obligations (2 offences): The black Samsung indicated use of an undisclosed Facebook profile and an undisclosed email address.
8. On 15 February 2022, his Honour Colefax SC DCJ found the Defendant unfit to be tried. On 24 February 2023, following a special hearing, his Honour Ingram SC DCJ found that, on the limited evidence available, the Defendant committed the following offences, making a qualified finding of guilt: 1. Two counts of contravening a CPPO in contravention of s 13(1) of the CPOPO Act; and 2. Two counts of failing to comply with reporting obligations in contravention of s 17(1) of the CPOR Act.
9. His Honour also determined that there was a prima facie case against the Defendant for the following offences for which he had been charged, and that he would not become fit to be tried within 12 months, pursuant to s 20BA of the Crimes Act 1914 (Cth): 1. Use carriage service to access child abuse material in contravention of s 474.22(1) of the Criminal Code (Cth); and 2. Possess child abuse material in contravention of s 474.22A(1) of the Criminal Code (Cth).
10. In respect of each of the charges, Ingram SC DCJ made the following orders: 1. Use carriage service and possess child abuse material: term of imprisonment for 24 months commencing on 5 September 2021 and expiring on 4 September 2023; 2. One count of contravene prohibition order: limiting term of 24 months commencing on 5 September 2022 and concluding on 4 September 2024; 3. One count of contravene prohibition order: limiting term of 12 months commencing on 5 March 2022 expiring on 4 March 2023; 4. One count of fail to comply with reporting obligations: limiting term of 18 months commencing on 5 September 2022 and concluding on 4 March 2024; and 5. One count of fail to comply with reporting obligations: limiting term of 9 months commencing on 5 June 2022 and concluding on 4 March 2023.
11. The qualified findings of guilt and limiting terms referred to in (2) to (5) above resulted in the Defendant's current status as a forensic patient.

Legislative Framework

1. Section 121 of the MHCIFP Act empowers the Supreme Court to extend a person's status as a forensic patient. The statutory criteria for making the current application are satisfied. The objects of the Act enshrined in s 69 are concerned with safety of the public and the care, treatment, and control of persons subject to criminal proceedings who have a mental health impairment or cognitive impairment.
2. The test for making an order is set out in s 122 of the MHCIFP Act which provides as follows: 122 Forensic patients in respect of whom extension orders may be made (1) A forensic patient can be made the subject of an extension order as provided for by this Part if and only if the Supreme Court is satisfied to a high degree of probability that- (a) the forensic patient poses an unacceptable risk of causing serious harm to others if the patient ceases to be a forensic patient, and (b) the risk cannot be adequately managed by other less restrictive means. (2) The Supreme Court is not required to determine that the risk of a person causing serious harm to others is more likely than not in order to determine that the person poses an unacceptable risk of causing serious harm to others. Note- Less restrictive means of managing a risk includes, but is not limited to, a patient being involuntarily detained or treated under the Mental Health Act 2007.
3. The Court must have regard to the matters set out ins 127(2) in addition to any other matter it considers relevant. Section 127(2) provides: 127 Determination of application for extension orders … (2) In determining whether or not to make an extension order, the Supreme Court must have regard to the following matters in addition to any other matter it considers relevant- (a) the safety of the community, (b) the reports received from the persons appointed under section 126(5) to conduct examinations of the forensic patient, (c) the report of the qualified psychiatrist, registered psychologist or registered medical practitioner provided under section 125(b), (d) any other report of a qualified psychiatrist, registered psychologist or registered medical practitioner provided in support of the application or by the forensic patient, (e) any order or decision made by the Tribunal with respect to the forensic patient that is relevant to the application, (f) any report of the Secretary of the Ministry of Health, the Commissioner of Corrective Services, the Secretary of the Department of Communities and Justice or any other government Department or agency responsible for the detention, care or treatment of the forensic patient, (g) the level of the forensic patient's compliance with any obligations to which the patient is or has been subject while a forensic patient (including while released from custody subject to conditions and while on leave of absence granted under this Act), (h) the views of the court that imposed the limiting term or existing extension order on the forensic patient at the time the limiting term or extension order was imposed, (i) any other information that is available as to the risk that the forensic patient will in future cause serious harm to others.
4. These considerations are applicable in the hearing of a preliminary application by virtue of ss 126 and 130 of the Act, which facilitate the future determination of whether a final order will be made. The preliminary relief sought in this matter will only be warranted if I am satisfied that the matters alleged in the supporting documentation would, if proved, justify the making of an extension order.

Supporting Documentation

1. The supporting material was contained in four folders. By annexures to solicitors' affidavits, a large amount of material relevant to a determination under the Act was before the Court. I have been greatly assisted by the joint memorandum of facts and issues prepared by the parties, and by the annexure to the Plaintiff's written submissions which specifies where the material relevant to each of the s 127(2) criteria is located. I have considered all of this material but will address very briefly the material relating to each of the s 127(2) considerations most pertinent at this stage.

Risk Assessment Report provided by Dr Anna Farrar (s 127(2)(c))

1. Dr Anna Farrar conducted a psychiatric assessment of the Defendant on 18 January 2024 and produced a report based on that assessment on 8 February 2024. She is of the view that the Defendant has the following conditions: Intellectual Disability (mild to moderate), Alcohol Use Disorder (in sustained remission in controlled environment), and Paedophilic Disorder (nonexclusive type; probable diagnosis). Dr Farrar further opined that the Defendant's offending history was suggestive of Antisocial Personality Disorder, although this requires further evaluation.
2. Dr Farrar does not believe that the Defendant suffers from a "mental illness" or is a "mentally ill person" as defined by s 14 of the Mental Health Act 2007 (NSW).
3. Dr Farrar conducted risk assessments. On the STATIC-99R assessment the Defendant's total score was 8, placing him in the "Well Above Average" risk category. She set out a number of relevant factors for the purposes of the Risk for Sexual Violence Protocol risk assessment.
4. Overall, Dr Farrar assessed the Defendant's risk of sexual re-offending as high. Her view is that he poses a risk of causing serious harm to others if he ceases to be a forensic patient. The Defendant's Intellectual Disability, Alcohol Use Disorder, probable Paedophilic Disorder and possible Antisocial Personality Disorder all contribute to his risk of re-offending.
5. Dr Farrar considered that it would be appropriate to manage the Defendant's risk of causing serious harm to others by continuation of his forensic patient status, as continuation would allow for appropriate restrictions and treatment, conditional release planning (if appropriate), oversight by the MHRT and 6-monthly independent assessments by the NSW Community Forensic Mental Health Service (in the community or part of release planning). Dr Farrar noted that the Defendant's complex needs would be difficult to manage without appropriate oversight and coordination between his various treatment and services providers.
6. Dr Farrar did not think it would be possible to classify the Defendant as an "involuntary patient" under s 4(1) of the Mental Health Act. She did not think it would be possible to manage the Defendant's risk of causing serious harm to others through a Community Treatment Order, as he does not meet the criteria for such an order. In Dr Farrar's opinion, a Guardianship Order would not, alone, adequately manage the Defendant's risk as he requires additional treatment, support and supervision.
7. Dr Farrar concluded that no less restrictive means (than an extension of the Defendant's status as a forensic patient) would manage his risk of causing serious harm. Dr Farrar recommended an extension of the Defendant's status as a forensic patient for a period of 2 years.

Any other report of a qualified practitioner provided in support of the application (s 127(2)(d))

1. Additional reports taken into account include the following: 1. Statement of Cognitive Functioning by Olivia Munn dated 15 October 2017; 2. Report of Dr Melissa Hughes dated 20 September 2021; 3. Report of Dr Adam Martin dated 23 November 2021; 4. Report of Dr Sathish Dayalan dated 10 February 2022; 5. Supplementary Report to the MHRT by Arity Dickerson dated 14 December 2022; 6. Supplementary report to the MHRT by Arity Dickerson dated 29 March 2023; and 7. Report of Dr Sunita Misra dated 5 March 2024.
2. These do not detract from the force of the risk assessment report of Dr Farrar, for the purposes of a preliminary application.

Any order or decision made by the Tribunal relevant to the application (s 127(2)(e))

1. The decisions and reasons of the MHRT of relevance confirm the Defendant's intellectual disability, and unfitness in connection with the criminal charges. They include orders for detention at a correctional centre for care and treatment. Since March 2024 there have been steps taken in relation to prospective release, with indications of considerable progress towards arranging suitable accommodation and support in the community. An application for conditional release was considered on 18 July 2024 but reasons are not yet available. This was to be next reviewed on 22 August 2024 (after the hearing of this application).

Factors relevant to ss 127(2)(f), (g) and (h)

1. The Treatment Report by Ms Lauren Cooper, psychologist, Self-Regulation Program, dated 12 August 2019 does not add meaningfully to Dr Farrar's report.
2. The Defendant's progress during this period of custody has been very good. His qualified findings of non-compliance with restrictions upon him is what brought about the limiting terms imposed by Ingram SC DCJ. The views of his Honour in imposing the limiting terms do not add to the consideration of risk for the purposes of the issue at this preliminary stage.

Conclusion

1. There may ultimately be an issue as to the type of harm there is a risk of the Defendant causing, given the non-contact nature of his prior offending. There may also need to be more fulsome ventilation as to the amelioration of risk offered by other regimes, such as Guardianship and CPPOs. However taking the report of Dr Farrar as proved at its highest, in combination with the other evidence before me, I am satisfied to a high degree of probability that the Defendant poses an unacceptable risk of causing serious harm to others if he ceases to be a forensic patient, and the risk cannot be adequately managed by other less restrictive means.
2. Accordingly the orders facilitating expert reports must be made. There is no discretionary reason in this matter for not making the interim order sought, and that should be made also.

Orders

1. Accordingly, I make the following orders: 1. Pursuant to s 126(5) of the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW): 1. The Court appoints two qualified psychiatrists, registered psychologists, or medical practitioners (or a combination of such persons), to conduct separate examinations of the Defendant and furnish reports to the Supreme Court on the results of those examinations by a date to be fixed by the Court; and 2. The Court directs the Defendant to attend those examinations. 1. Pursuant to ss 130 and 131 of the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW), the Defendant is subject to an Interim Order for the extension of his status as a forensic patient, commencing on 4 September 2024, upon the expiry of the Defendant's limiting term, for a period of three months. 2. Access to the Supreme Court's file in respect of any document shall not be granted to a non-party without the leave of a judge of the Court, and, if any application for access is made by a non-party in respect of any document, the parties are to be notified by the Registrar so as to allow them an opportunity to be heard in relation to the application for access. 3. The proceedings are listed in the High Risk Offenders Callover List on 5 September 2024, at 9:30am.

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: 27 August 2024