Attorney General of New South Wales v Haines

Background to the Plaintiff's Application

1. The defendant is a 42-year-old man with no dependants. He has been diagnosed with schizophrenia, a neurocognitive disorder secondary to a traumatic brain injury, and a polysubstance abuse disorder which is currently in remission in a controlled environment.
2. From June 2020 until 15 June 2022, Mr Haines was residing in the Dee Why ward of the Forensic Hospital within the Long Bay Correctional Complex. The submissions filed on behalf of the defendant reveal that on 16 June 2022, he was transferred to the Eloura ward within the Long Bay Correctional Complex, however, more information about this transfer is not available at present.
3. Mr Haines had a dysfunctional upbringing. He has informed experts of his strained relationship with his parents following their separation, but denies any physical, sexual, or emotional abuse in his childhood. At the age of 20, he sustained a head injury which resulted in a brain injury and, following which, he has been unable to work.
4. His drug use began with cannabis at the age of 15. He used speed from the age of 18 to 24, and from then commenced the use of ice, which he was using (along with cannabis) in the period leading up to the index offence.

Criminal History

1. The defendant's criminal history dates back to 1999, when, at the age of 18, he appeared at the Brisbane District Court in relation to four charges of robbery with actual violence for which he served 7 months' imprisonment. Between 2002 and 2008, Mr Haines was charged with a number of offences, many of which were armed robberies and assaults.
2. The defendant's written submissions noted that between being released on parole in 2008 and committing the index offences in 2014, Mr Haines had a "successful period in the community".

Index Offences

1. The index offences comprise of a number of armed robbery and assault offences arising from Mr Haines' robberies of service stations in Smithfield, Fairfield and Strathfield between 26 June 2014 and 25 September 2014.
2. Mr Haines has been in custody since his arrest for the index offences. Following a finding that he was unfit to be tried, Judge English made a qualified finding of guilt against the defendant in respect of the following offences: 1. Five counts of robbery armed with an offensive weapon, contrary to s 97(1) of the Crimes Act 1900 (NSW) ("Crimes Act 1900"), and one count of robbery simplicita; 2. Face blackened/disguised with intent to commit an indictable offence, contrary to s 114(1)(c) of the Crimes Act 1900; and 3. Assault occasioning actual bodily harm, contrary to s 59(1) of the Crimes Act 1900.
3. On 15 May 2017, her Honour imposed nine limiting terms, the first of which commenced on 25 November 2014, and the last of which expired on 24 April 2022.
4. Her Honour, when imposing those limiting terms, commented on the difficulty of the sentencing exercise, referring to Mr Haines' mental illness and guarded prospects for rehabilitation. The limiting terms amounted to seven years and seven months, and the offender was referred to the Mental Health Review Tribunal ("the Tribunal").
5. It is relevant that at the time of the index offences, the defendant was subject to a Community Treatment Order ("CTO") and was being managed by Fairfield Mental Health Services.

Forensic History

1. As noted, at the age of 20, the defendant suffered a brain injury. The defendant is unsure of the cause of this brain injury, knowing only that he was found unconscious in Lismore.
2. When he was aged 21, the defendant attempted to cut his throat, because he wanted to see it "fusc" and believed it would immediately heal. He has cut his neck with the intention of killing himself on several occasions, including in June 2002, and June 2004. On the latter occasion, he was admitted to James Fletcher Hospital for an extended psychiatric admission of two to three months and was treated with depot antipsychotic medication.
3. He does not have a good memory of his psychotic symptoms, but it appears his delusions and hallucinations date back at least to his early twenties. In fact, this year, Mr Haines reported to Dr Youssef that he first started having delusions when he was: "4 years old… there was a cobra python… I ate it and then it came out of my finger."
4. In his thirties, he was subject to supervision from the local Fairfield Community Mental Health Team and was subject to CTOs and treated with injectable antipsychotic medications.
5. In April 2012, about a year after he was released from custody for robbery offences committed in 2007 to 2008, the defendant was admitted to Liverpool Hospital as a psychiatric patient following aggressive behaviour towards a neighbour.
6. In 2016, the defendant began being treated with a novel antipsychotic medication, Clozapine. He still takes this medication.

Mental Health Cognitive Impairment Forensic Provisions Act

1. Mr Haines became a forensic patient when he received the limiting terms imposed by her Honour Judge English on 15 May 2017. While a person has a status as a forensic patient, their care, treatment and supervision, or detention, is dealt with by the Tribunal.
2. The effect of the interim extension order made by Justice Lonergan on 24 April 2022 is that the defendant retained his status as a forensic patient beyond the expiry of that limiting term.
3. Section 121 of the MHCIFP Act empowers the Supreme Court to extend a person's status as a forensic patient. A Minister administering the Act may make an application for an extension order where the forensic patient is subject to either a limiting term, or an existing extension order (s 124(1)). The defendant is encompassed by that section by virtue of being subject to an interim extension order.
4. In determining whether an order extending Mr Haines' status as a forensic patient should be made, regard must be had to the objects enunciated in s 69 of the Act. They are 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 have a mental health impairment or cognitive impairment; 3. to facilitate the care, treatment and control of any of those persons in correctional centres or detention centres through CTOs; 4. to facilitate the provision of hospital care or care in the community through CTOs for any of those persons who require involuntary treatment; 5. to give an opportunity for those persons to have access to appropriate care; and 6. to protect the safety of victims of forensic patients and acknowledge the harm done to victims.
5. In making any orders under the Act, I must have regard to those objects.
6. Section 122 sets out the test for when an extension order of a person's status as a forensic patient may be made: 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.
7. The application is to be determined in accordance with Division 3 of the Act: 127 Determination of application for extension orders (1) The Supreme Court may determine an application under this Division for an extension order - (a) by making the order, or (b) by dismissing the application. (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. (3) If the Supreme Court makes an extension order in respect of a forensic patient, the Court is to notify the Tribunal of the making of the order.
8. The Court's power to make an extension order is discretionary. Section 127(1) provides that the Supreme Court may determine an application to extend a person's status as a forensic patient by making the order, or by dismissing the application. If an order is made, it may be for a period not extending five years from the day on which it commences (s 128(1)(b)). Nothing prevents the Supreme Court from making a subsequent extension order against the same forensic patient (s 129).
9. Section 127(2) (as set out above) lists a number of matters that the Court "must" have regard to in determining whether or not to make an extension order. I note that this list is non-exhaustive, and the Court may also have regard to "any other matter it considers relevant". I now address the relevant matters in s 127(2) of the Act.

Standard of Proof

1. As stated earlier, the determination of this application turns on whether the offender poses an "unacceptable risk of causing serious harm to others" and that risk cannot be adequately managed by less restrictive means. The Court must be satisfied of this to a "high degree of probability".
2. The term "to a high degree of probability" has been held to indicate a higher standard of proof than the normal civil standard, although it requires less than the criminal standard of beyond reasonable doubt. In Cornwall v Attorney General for New South Wales [2007] NSWCA 374, the Court of Appeal observed at [21]: "The expression 'a high degree of probability' indicates something 'beyond more probably than not'; so that the existence of the risk, that is the likelihood of the offender committing a further serious sex offence, does have to be proved to a higher degree than the normal civil standard of proof, though not to the criminal standard of beyond reasonable doubt..."
3. It is also appropriate to note the effect of the words "if and only if" in s 122(1). That section provides that a forensic patient can be made the subject of an order extending their status as a forensic patient "if and only if the Supreme Court is satisfied to a high degree of probability" of certain matters. McClellan CJ at CL stated in Attorney General v Gallagher [2006] NSWSC 340 that those words: "emphasise 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".

First Limb - Unacceptable Risk of Causing Serious Harm to Others

1. At present, the legislation does not define the term "unacceptable risk". However, the term has been held to have the same meaning under the MHCIPF Act as it does under the Crimes (High Risk Offenders) Act 2006 (NSW) ("HRO Act"). Some insight into the term is provided by s 5D of the HRO Act, namely, that in determining risk: "…the Supreme Court is not required to determine that the risk of an offender committing a serious offence is more likely than not in order to determine that there is an unacceptable risk of the person committing such an offence."
2. The expression "unacceptable risk" is to be understood according to its everyday meaning in the context of s 5B(d) and having regard to the objects of the HRO Act: see Lynn v State of New South Wales (2016) 91 NSWLR 636. Basten JA in Lynn held at [126] that: "The nature of the risk … 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."
3. The meaning of an "unacceptable risk" in s 5B(d) and the principles which are to be applied were summarised by Hoeben CJ at CL in State of New South Wales v Holschier (No. 2) [2018] NSWSC 1921 at [23] as follows: "[23] As to the meaning of the phrase "an unacceptable risk", the case law establishes the following: (a) What the court must find to be unacceptable is the "risk" of the offender "committing a serious [sex] offence if he or she is not kept under supervision" (see Lynn v State of New South Wales [2016] NSWCA 57; 91 NSWLR 636 at [51] (Beazley P)). (b) The word "unacceptable" - which means, relevantly, "so far from a required standard, norm, expectation etc as not to be allowed" - is one that "requires context in which, or parameters against which, the unacceptable risk can be measured" (see Lynn at [50]). (c) While the HRO Act does not specify "the precise parameters or standard or norm against which that determination (i.e. the determination whether an offender poses an unacceptable risk) is to be made", this "must be so" because "[a] determination as to whether something is unacceptable is an evaluative task, and evaluative determinations require a context in which to be made" (see Lynn at [51]). (d) The determination whether an offender poses an unacceptable risk has to be understood in the context of the objects or purposes of the Act; in particular, its purpose in ensuring the safety and protection of the community (see Lynn at [55]). (e) The right of an offender to his or her personal liberty at the expiry of a sentence of imprisonment is not relevant to the determination whether an offender poses an unacceptable risk (Lynn at [44], [55]-[58], [128], [148]). Nevertheless, as their Honours held, the intrusion on a subject's liberty and privacy are undoubtedly matters which the Court may take into account in its discretion to make an ESO."
4. Wilson J in State of New South Wales v Simcock (Final) [2016] NSWSC 1805 observed at [71] that: "unacceptability of risk involves consideration of both likelihood of the risk eventuating, and the gravity of the risk that may eventuate": see also State of New South Wales v Chaplin [2019] NSWSC 471 at [15].
5. In State of New South Wales v Loto [2018] NSWSC 1522, Rothman J noted at [14]-[17] that there is a "matrix of considerations" relevant to the risk assessment, and two important matters are "the probability or possibility that the risk will manifest" and "the seriousness of the harm that will ensure if the risk were to manifest." It is possible that a risk is unacceptable because of the severity of the harm that would be caused by its eventuation rather than because of its likelihood: see State of New South Wales v Devaney (Final) [2022] NSWSC 60 at [73]; State of New South Wales v Kamm (Final) [2016] NSWSC 1 at [41] and [43].
6. The determination of whether there is an unacceptable risk is a discretionary exercise. I must make an assessment based on the likelihood of a risk eventuating and the potential consequences if it does eventuate.
7. It is apt to note that the right of an offender to his or her personal liberty at the expiry of their sentence is not a relevant consideration in the determination of whether a person poses an "unacceptable risk". However, consideration of an offender's circumstances, including the offender's right to liberty and privacy, may influence the ultimate exercise of discretion as to whether or not to make an order: see Lynn at [44] per Beazley P, at [131] per Basten JA and at [149] per Gleeson JA.
8. The meaning of "serious harm" has also been considered by this Court extensively. RA Hulme J in Attorney-General (NSW) v Kereopa (No 2) [2017] NSWSC 928 said that "serious harm" could concern either physical or psychological harm (at [16]). His Honour accepted the submission that in the event that the harm is physical, it does not have to satisfy the threshold of "grievous bodily harm" but must be more than "actual bodily harm", while if the harm is psychological, it must be "something more than emotions such as fear or panic".

Second Limb - The Risk Cannot be Adequately Managed by Less Restrictive Means

1. Section 122(1)(b) of the MHCIFP Act requires that the Court consider whether the defendant's risk to the community may be managed by "less restrictive means". The plaintiff bears the onus of proving the risk cannot be managed by less restrictive means. This must also be proved to a high degree of probability.
2. Garling J, in Attorney-General of NSW v McGuire (No 2) [2014] NSWSC 288, interpreted the meaning of "adequately managed", stating at [63]: "I would take the use of the phrase "adequately managed" to mean that the unacceptable risk is mitigated by the proposed management regime so that the community's interest in being kept safe is outweighed by the community's interest in not having mentally ill or mentally disordered individuals or forensic patients being confined in some form of institutional care rather than taking their place in the community."
3. His Honour further noted, at [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."
4. In making this assessment, I will need to consider alternative orders that could be made under the Mental Health Act 2007 (NSW) ("Mental Health Act") or the Guardianship Act 1987 (NSW) ("Guardianship Act").
5. Justice Adamson, in Attorney-General (NSW) v Doolan (by his tutor Jennifer Thompson (No 2)) [2016] NSWSC 107 noted at [96]: "… I consider that the question whether "means" are more or less restrictive is to be judged by the legal power of others to control the defendant's actions, locations, treatment and other matters, as well as the practical operation of how that power might be exercised in a particular instance."
6. Her Honour recognised that one such "less restrictive means" of managing the defendant's risk is their classification as an involuntary patient under the Mental Health Act. Her Honour noted four key differences between the regime that deals with forensic patients and the (less restrictive) regime that deals with involuntary patients. They are as follows: 1. Detention: Forensic patients remain in detention unless certain criteria for release are satisfied, while involuntary patients are not detained unless they are mentally ill or mentally disordered in which case the maximum period of detention is three months following an inquiry (see [109]-[110]); 2. Release from detention: A forensic patient cannot be released without an independent expert risk assessment report, while an involuntary patient must be discharged by the Tribunal "if no longer satisfied on the balance of probabilities that the patient is mentally ill". No independent risk assessment report is required (see [111]-[113]); 3. Imposition of conditions while patient is living in the community: The Tribunal may impose conditions for a forensic patients' accommodation, treatment, medication, conduct, case management, and drug-testing, while CTOs for involuntary patients (outlined in more detail below) relate only to the person's treatment (see [114]-[116]); 4. Consequences of breach of conditions: If a forensic patient breaches a condition of their release, they can be recalled and detained by the Tribunal, while involuntary patients are subject to the oversight of the director of community treatment at the relevant mental health facility (see [117]-[118]).
7. Therefore, it is apt for me to consider a CTO as an alternative means of managing the risk of serious harm Mr Haines poses. A CTO is an order made under s 51 of the Mental Health Act authorising the compulsory treatment of a person. Section 53 provides for the circumstances in which a CTO may be made: 53 Determination of applications for community treatment orders (1) The Tribunal is, on an application for a community treatment order, to determine whether the affected person is a person who should be subject to the order. (2) For that purpose, the Tribunal is to consider the following - (a) a treatment plan for the affected person proposed by the declared mental health facility that is to implement the proposed order, (b) if the affected person is subject to an existing community treatment order, a report by the psychiatric case manager of the person as to the efficacy of that order, (c) a report as to the efficacy of any previous community treatment order for the affected person, (d) any other information placed before the Tribunal. (3) The Tribunal may make a community treatment order for an affected person if the Tribunal determines that - (a) no other care of a less restrictive kind, that is consistent with safe and effective care, is appropriate and reasonably available to the person and that the affected person would benefit from the order as the least restrictive alternative consistent with safe and effective care, and (b) a declared mental health facility has an appropriate treatment plan for the affected person and is capable of implementing it, and (c) if the affected person has been previously diagnosed as suffering from a mental illness, the affected person has a previous history of refusing to accept appropriate treatment. (3A) If the affected person has within the last 12 months been a forensic patient or the subject of a community treatment order, the Tribunal is not required to make a determination under subsection (3) (c) but must be satisfied that the person is likely to continue in or to relapse into an active phase of mental illness if the order is not granted. (4) The Tribunal may not make a community treatment order at a mental health inquiry unless the Tribunal is of the opinion that the person is a mentally ill person. (5) For the purposes of this section, a person has a previous history of refusing to accept appropriate treatment if the following are satisfied - (a) the affected person has previously refused to accept appropriate treatment, (b) when appropriate treatment has been refused, there has been a relapse into an active phase of mental illness, (c) the relapse has been followed by mental or physical deterioration justifying involuntary admission to a mental health facility (whether or not there has been such an admission), (d) care and treatment following involuntary admission resulted, or could have resulted, in an amelioration of, or recovery from, the debilitating symptoms of a mental illness or the short-term prevention of deterioration in the mental or physical condition of the affected person. (6) The Tribunal must not specify a period longer than 12 months as the period for which a community treatment order is in force. (7) In determining the duration of a community treatment order, the Tribunal must take into account the estimated time required - (a) to stabilise the condition of the affected person, and (b) to establish, or re-establish, a therapeutic relationship between the person and the person's psychiatric case manager. (8) The Tribunal may order that the discharge of an involuntary patient for whom a community treatment order is made be deferred for a period of up to 14 days, if the Tribunal thinks it is in the best interests of the patient to do so.
8. The form and duration of a CTO is provided for in s 56 of the Mental Health Act: 56 Form and duration of community treatment orders (1) A community treatment order is to - (a) nominate the declared mental health facility that is to implement the treatment plan for the affected person, and (b) require the affected person to be present, at the reasonable times and places specified in the order to receive the medication and therapy, counselling, management, rehabilitation and other services provided in accordance with the treatment plan. (2) A community treatment order ceases to have effect at the end of the period specified in the order or, if no period is specified, 12 months after the order is made. Note - Section 53 (6) specifies that the maximum period for an order is to be 12 months. (3) A community treatment order has no effect while an affected person is detained in a mental health facility (otherwise than under this Part), or is a voluntary patient. (4) The fact that an affected person is the subject of proceedings before the Tribunal does not, unless the Tribunal otherwise orders, affect the operation or duration of the community treatment order. (5) The time for which a community treatment order is in force does not cease to run during any period in which this section provides that it has no effect. Note - The Tribunal may vary or revoke a community treatment order in accordance with section 65.
9. A person subject to a CTO is required to comply with that order (s 57(1)). The Director of Community Treatment for the declared mental health facility which is implementing a treatment plan under a CTO is also empowered to take all reasonable steps to ensure that medication is administered, and services are provided in accordance with the order, including without the consent of the affected person (s 57(2) and (3)).
10. Section 58 of the Mental Health Act deals with breaches of a CTO and s 59 authorises that the Director of Community Treatment to request police assistance in the event that the CTO is breached.
11. Another "less restrictive" means of addressing a person's risk to the community is through the appointment of a Guardian by the NSW Civil and Administrative Tribunal ("NCAT") under the Guardianship Act.

Expert Evidence

1. Two court-appointed experts, Dr Carollyne Youssef and Dr Sathish Dayalan, have reviewed Mr Haines and conducted risk assessments. They are of the shared opinion that his status as a forensic patient should be extended for a period of three years.

Dr Carollyne Youssef

1. Dr Youssef's report, dated 9 June 2022, was prepared following two semi-structured clinical interviews with Mr Haines on 25 May 2022 and 2 June 2022 via AVL. She noted the limitations that an assessment by AVL presents.
2. Dr Youssef outlined Mr Haines' extensive history of psychiatric problems, as well as the findings of experts who conducted prior psychiatric assessments.
3. In interview, Mr Haines acknowledged that he "had schizophrenia", but was of the opinion that he was "all better now". Dr Youssef diagnosed Mr Haines with schizophrenia, a major neurocognitive disorder due to a traumatic brain injury, and a substance use disorder.
4. She opined that the defendant's ongoing symptoms of schizophrenia, combined with his low insight into his need for ongoing treatment, meant that he posed a significant risk to himself and to the community. She formed the view that Mr Haines' risk can be adequately managed at the Forensic Hospital within the Long Bay Correctional Complex, but that his continued status as a forensic patient is necessary for the management of that risk: "Mr Haines does pose a risk of serious harm to others if he ceases to be a forensic patient. According to the risk assessments completed, Mr Haines' risk of recidivism suggests a high degree of outstanding dynamic risk needs as per the HCR-20v3...very little protective factors as per the SAPROF…and static variables that place him in the second highest category for violent recidivism…Mr Haines' history indicates that he is prepared to use violence in the commission of his offences, which are already of a violent nature given the aggravating factor of being armed. Whilst it appears his preference is to use threats to gain compliance, if met with resistance, he has shown the capacity to inflict harm to others, with the potential for this harm to be serious (e.g., stabbing, assault with a hammer, threatening to set victims alight) and has expressed an instrumental use of violence. Furthermore, his current offences point to an escalation in his offending behaviour, to be of a more brazen nature, culminating in the armed robbery of a bank, in the morning with multiple customers, with the use of violence."
5. Dr Youssef addressed the alternative of a classification of Mr Haines as an involuntary patient under the Mental Health Act, but was of the view that this would not provide him with: "the intensity of services and management required", as the defendant required a higher level of forensic intervention. Similarly, she determined that a Guardianship Order: "does not have the sufficient authority and control to manage someone with Mr Haines' risk and complex needs at present."
6. She considered an extension order to be the only appropriate means of addressing Mr Haines' risk to himself and to the community. Further, she addressed the question of the most appropriate period of time to manage, or mitigate, the risk. Dr Youssef stated: "A period of three years would allow sufficient time to firstly stabilise Mr Haines' mental health (as much as possible) and to demonstrate an increase in some independent living skills, self-care, and autonomy within an MSU. Following this, a consideration and organisation of community measures and psychosocial supports that will ideally lead to Mr Haines commencing his re-entry, reintegration and desistance process."

Dr Sathish Dayalan

1. Dr Dayalan, the second independent expert appointed by the Court to conduct an assessment of Mr Haines, reviewed the defendant on 30 May 2022. He diagnosed Mr Haines with schizophrenia and cannabis, opiate, and stimulant use disorders. He was of the view that a diagnosis of intellectual disability was not available, acknowledging the defendant's acquired brain injury but noting that the neuropsychometric assessment revealed Mr Haines' intelligence to be in the borderline range. The acquired brain injury, however, "increases the risk of violence due to disinhibition and impulsivity commonly associated with frontal lobe dysfunction."
2. Dr Dayalan used the HCR-20, a structured clinical judgment tool widely used to assess and manage risk of violence in psychiatric patients, to assess Mr Haines' risk of violence. He noted Mr Haines' limited insight into his mental illness and need for psychiatric treatment. He also noted that the defendant's symptoms were treatment resistant and would increase in severity should he be exposed to illicit drugs and stressful life events, or should he not comply with taking his medication.
3. Mr Haines' "high loading of historical risk factors for violence… indicate an increased underlying risk of violence in the long term". His moderate loading of clinical/dynamic risk factors influence his risk of violence in the short to medium term. Dr Dayalan stated: "His risk formulation would mandate close monitoring and management of the clinical/dynamic risk factors 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 for any escalation in the risk factors. Input from specialist mental health services such as the forensic mental health services will be required to manage his risk such as the forensic mental health services will be required to manage his risk of violence as he transitions through settings of reduced security and supervision."
4. Dr Dayalan opined that Mr Haines' risk factors would not be adequately addressed by being made an involuntary patient. He noted that Mr Haines had been managed by CTOs prior to the index offences, and that such an order could not adequately manage his risk of serious harm to others. An extension of his status as a forensic patient is most apt to address his risk factors: "no other less restrictive means are available given his current presentation. "

Dr Richard Furst

1. Dr Furst confirmed that the defendant meets the DSM-5 criteria for the diagnosis of the following mental illnesses/mental disorders: 1. Schizophrenia (chronic and treatment resistant); 2. Substance use disorder (methamphetamines and cannabis); and 3. Persistent neuro cognitive disorder (acquired brain injury).
2. Dr Furst also concluded that the defendant requires ongoing management in the Forensic Hospital as this provides a highly structured and secure setting for the ongoing treatment and management of his schizophrenic illness, his substance use disorder and his risk of reoffending and causing serious harm to others and/or himself.
3. The oversight of the Tribunal is paramount, both in the short-term and the long-term, in implementing current and future treatment interventions and ensuring adequate supervision and treatment requirements are met and complied with.

Submissions on behalf of the Plaintiff

1. Acknowledging that I must have regard to the factors set out in s 127(2) of the Act, in addition to other factors I consider relevant, the plaintiff made submissions going to the various factors set out in s 127(2). I have considered those submissions and accept them.

Submissions on behalf of the Defendant

1. The defendant, through his tutor, does not oppose the making of the extension order.
2. The defendant accepts that it would be open to the Court to reach a state of satisfaction, to a high degree of probability, that he would pose an unacceptable risk of causing harm to others if he ceases to be a forensic patient.
3. The defendant also accepts that it is open to the Court to reach a state of satisfaction, to a high degree of probability, that the risk posed by the defendant cannot be adequately managed by less restrictive means.

Consideration

1. Although, as noted above, the defendant does not oppose the making of an extension order, it is still necessary for me to be independently satisfied that such an order should be made.
2. While the defendant's mental illness (schizophrenia) is resistant to treatment, he has been passively compliant with prescribed medications. He participated in two psychological therapy groups in the first half of 2021. Although his participation was described as improving with time, it was observed that he continued to lack insight into his mental illness.
3. Between May 2020 and June 2020, the defendant participated in the "MegaCog" group, which is a psychologist lead cognitive training group for patients with a psychotic illness. Although he engaged in activities during five sessions, it was noted that he otherwise remained quiet in the sessions and, at times, struggled to articulate his thought processes.
4. Having regard to the terms of s 122 of the Act, 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. The expert evidence was uniformly to that effect. In reaching this conclusion, I have had regard to: 1. The defendant's persistent psychotic symptoms which have been treatment resistant and are likely to remain that way given their limited response to extensive treatment; 2. The defendant's acquired brain injury which, in conjunction with the frontal lobe function deficits, increases the risk of violence due to disinhibition and impulsivity commonly associated with frontal lobe dysfunction; 3. The defendant's limited insight into his mental illness; 4. The expert opinions that, if left unsupervised, the defendant is likely to not comply with treatment and relapse into substance use; 5. The defendant's previous history of serious violence; 6. The defendant's prior supervision violation, including violations of bail conditions and parole conditions; and 7. The existence of a number of dynamic risk factors, as set out in the report of Dr Furst, dated 31 January 2021.
5. Turning to the second limb in s 122(1)(b), I am further satisfied that there are no other "less restrictive means" to "adequately" manage the risk posed by the defendant. The expert opinions support this conclusion.
6. Dr Youssef opined that classification as an involuntary patient under the Mental Health Act would not provide the defendant with the intensity of services required and would not provide sufficient regulation and management. Dr Youssef did not consider a CTO a viable option in the present case where the defendant does not have accommodation, social support, NDIS support, or insight and consistent willingness to continue with his medication.
7. Equally, Dr Youssef was not of the view that a Guardianship Order, on its own, would have sufficient authority and control to manage someone with the defendant's risk and complex needs.
8. Given the risk of reoffending the defendant poses, Dr Youssef recommended an extension period of three years.
9. Dr Dayalan ultimately expressed the view that the forensic patient status is most relevant to managing the defendant's risk of violent behaviour in the community. Unless there is a dramatic shift in his dynamic risk factors during his stay at the secure psychiatric facility, management of the defendant's risk of serious harm to others in the community is said to be challenging if he was not a forensic patient. Dr Dayalan concluded that given the defendant's risk of serious harm to others, he will not be adequately managed by a CTO or a Guardianship Order.
10. Dr Furst concluded that the defendant requires ongoing management in the Forensic Hospital as a forensic patient as this provides a highly structured and secure setting for treatment of his mental illness and substance use disorder, and is the appropriate course for managing his risk of reoffending or of causing serious harm to others or himself.
11. Dr Furst also concluded that there are no viable or realistic "less restrictive means" available for the defendant and recommended a period of three years in the first instance as an appropriate period for extension of the defendant's status as a forensic patient.
12. In concluding that the statutory test in s 122(1) is met, I have had regard to the mandatory considerations in s 127(2) of the Act. I have had particular regard to the reports from the experts.
13. There is no issue between the parties as to the appropriate length of the extension order. I am satisfied that the appropriate length is one of three years from the date of the making of the order.

Orders

1. Accordingly, I make the following orders: 1. Pursuant to ss 121, 127 and 128 of the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW), I order that the defendant be subject to an order for the extension of his status as a forensic patient for a period of three years from midnight on 24 July 2022. 2. Access to the Court file in this proceeding is restricted such as that access would be permitted to a non-party only with the leave of a Judge of this Court, and with prior notice to the parties so as to allow them an opportunity to be heard in respect of the application for access.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 13 July 2022