Attorney General of New South Wales v Kereopa

Supreme Court of NSW|2017-07-03|Before: Hulme J, Davies J

Solicitors: Crown Solicitor Legal Aid NSW File Number(s): 2017/94917

Judgment

HIS HONOUR: The Attorney General of New South Wales seeks an extension order in respect of Mr Teahu Kereopa under Sch 1 of the Mental Health (Forensic Provisions) Act 1990 (NSW) ("the Act") extending his status as a forensic patient.
More specifically, the summons filed on 29 March 2017 seeks an order pursuant to cl 7(1)(a) of Sch 1 to the Act that Mr Kereopa be subject to an order for the extension of his status as a forensic patient for a period of two years from the day on which the order commences.
Mr Kereopa, by his tutor, Keith Plunkett, does not oppose the making of an extension order but objects to the period of two years, arguing that a period of one year is appropriate.
Mr Kereopa is 26 years old. He has schizophrenia; is intellectually disabled; has a substance abuse disorder; and an anti-social personality disorder. His criminal history dates back to the age of 13 and primarily comprises property related offences. Most recently, upon being found unfit to be tried on 7 November 2014, he was found in a special hearing on 2 September 2015 to have committed a number of property offences and a driving offence, the details of which will be set out later.
On 10 September 2015 a limiting term (see s 23 of the Act) was imposed in respect of three of those offences for a period of three years and three months commencing 24 January 2014 and expiring 23 April 2017. For the remaining offences, a four year good behaviour bond pursuant to s 9 of the Crimes (Sentencing Procedure) Act 1999 (NSW) was imposed commencing 10 September 2015 and expiring 9 September 2019.

Statutory Provisions

Clause 2 of Sch 1 of the Act provides: "2 Forensic patients in respect of whom extension orders may be made (1) A forensic patient can be made the subject of an extension order as provided for by this Schedule if and only if the Supreme Court is satisfied to a high degree of probability that: (a) the forensic patient poses an unacceptable risk of causing serious harm to others if he or she ceases being a forensic patient, and (b) the risk cannot be adequately managed by other less restrictive means. (2) The Supreme Court is not required to determine that the risk of a person causing serious harm to others is more likely than not in order to determine that the person poses an unacceptable risk of causing serious harm to others. Note: Less restrictive means of managing a risk includes, but is not limited to, a patient being involuntarily detained or treated under the Mental Health Act 2007."
Clause 7 provides that this Court may determine an application for an extension order by either making the order or dismissing the application. Sub-clause 2 provides that the Court must have regard to various matters listed in that sub-clause in addition to any other matter it considers relevant.
Clause 8 provides that an extension order can be made for a period up to but not exceeding five years from the date the order commences. As previously noted, the application in this case is for an order for a period of two years.
Clause 12 provides that the Court may at any time vary or revoke an extension order on the application of either the Minister administering the Act (relevantly, the Attorney General) or the forensic patient or on the recommendation of the Mental Health Review Tribunal. One ground upon which an extension order may be revoked is if the Court is satisfied that circumstances have changed sufficiently to render the order unnecessary.
Certain terms in cl 2 require some brief discussion, although there was no controversy about them in the present case.
"High degree of probability" constitutes a standard of proof which is higher than the civil standard but lower than the criminal standard: State of New South Wales v Thomas (Preliminary) [2011] NSWSC 118 at [14]. "Unacceptable risk" is a term which should be given its everyday meaning in the context of the provision in which it appears and having regard to the objects of the Act: State of New South Wales v Thomas (Final) [2011] NSWSC 307 at [58]; Lynn v State of New South Wales [2016] NSWCA 57 at [58].
Section 54A of the Act provides for the extension of a person's status as a forensic patient pursuant to Sch 1 of the Act. That provision is within Pt 5 of the Act ("forensic patients and correctional patients"). The objects of Pt 5 appear in s 40 as follows: "40 Objects The objects of this Part are as follows: (a) to protect the safety of members of the public, (b) to provide for the care, treatment and control of persons subject to criminal proceedings who are suffering from a mental illness or mental condition, (c) to facilitate the care, treatment and control of any of those persons in correctional centres through community treatment orders, (d) to facilitate the provision of hospital care or care in the community through community treatment orders for any of those persons who require involuntary treatment, (e) to give an opportunity for those persons to have access to appropriate care."
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".
"The risk cannot be adequately managed by other less restrictive means" is the second matter upon which the Court must be satisfied to a high degree of probability. Adamson J in Attorney General of NSW v Doolan (No 2) [2016] NSWSC 107 at [96] considered that this must "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". Her Honour proceeded to discuss the contrast between the various provisions relating to civil patients with those applying specifically to forensic patients (see at [97]-[129]). I have found that useful.

Relevant matters to be considered

As indicated earlier, I am required to have regard to the matters listed in cl 7(2) of Sch 2 of the Act. I have done so but, given a concession by Mr Kereopa that he would not pose a finding that he does oppose an unacceptable risk of serious harm to others, I will not discuss them in as much detail or as comprehensively as I otherwise might. I note however that it is Mr Kereopa's contention that any order made should be for a period of 12 months or less on the basis that that is the least restrictive option available.

Criminal history

By way of general background, Mr Kereopa was born in New Zealand of Maori heritage. He came to Australia with his family when he was aged 12. He attended a school in the Sutherland Shire but left at the beginning of Year 9. Reports indicate that his attendance at high school was characterised by a high level of truancy and behavioural difficulty.
He has provided a history of substance use which included that he first tried cannabis in his early teens. He first consumed alcohol at the age of 15. Sometime later he commenced using methamphetamine. He has never attended a residential drug and rehabilitation program.
Mr Kereopa has a lengthy history of criminal offending dating back to 2005, when he was aged 13. Mr Patrick Sheehan, forensic psychologist, in his report dated 27 May 2017, provided the following useful summary: "Mr Kereopa has an extensive history of criminality and his criminal history-bail report is 66 pages in length. His criminal record commences from 2005 (aged 14 years) and proceeds with a high density of offending. […] Many of his offences have been dealt with under section 32 of the Mental Health (Forensic Provisions) Act 1990. He has served limiting terms of nine months (29 November 2012) and his most recent cumulative limiting term of three years and three months. Offences of most interest to this application would include: ● Robbery in company on 13 October 2005 when Mr Kereopa was part of a group who took items from a student whilst a co-accused threatened the person with a baton. ● Assault with intent to rob on 3 January 2007 when Mr Kereopa was in company with another male, who assaulted a male who they had asked for money. ● Aggravated steal from person and assault occasioning actual bodily harm on 22 March 2008, during which Mr Kereopa was in a group of males who all knocked a man to the ground and continued to kick and stomp the man, before stealing from him. ● 'Aggravated break enter and commit serious indictable offence people there' on 12 May 2008 when Mr Kereopa and co-accused broke into a residential home and stole items whilst the occupant was present. A similar offence was committed on 13 May 2008 and 30 May 2008 when a victim returned to their home whilst Mr Kereopa was robbing the residence. The facts suggest that Mr Kereopa was subsequently involved in a high speed police pursuit before crashing the vehicle into a residence. ● There is a further 'Aggravated break enter commit serious indictable offence people there' on 13 June 2008. ● There is a further 'Aggravated break enter with intent knowing people there' on 23 November 2008 when Mr Kereopa broke into a home at night whilst a family and four children were sleeping. ● 'Robbery in company' on 26 August 2008 when Mr Kereopa was part of a group who bullied and robbed a man at a train station, with a co-accused assaulting the victim. ● 'Assault law officer (not police officer)' on 5 December 2008 when Mr Kereopa pushed a female youth officer in the face at Baxter Detention Centre. He also poked her in the ribs, "threw air punches towards here" and was verbally abusive. ● 'Common assault' on 5 January 2009 when Mr Kereopa was confronted by an occupant during a break and enter, whereupon Mr Kereopa punched the man in the face to avoid apprehension. ● 'Common assault' on 29 April 2009 during which Mr Kereopa reacted angrily against a support worker in a CJP [Community Justice Program] home when the worker did not comply with his demands, threatening to "bash" him and pointing a kitchen knife towards the workers chest. ● 'Break and enter dwelling with intent' on 29 September 2009 when Mr Kereopa attempted to break into a residential home occupied by a 13 year old girl. ● 'Take and drive conveyance' on 1 October 2009 Mr Kereopa stole a motor vehicle and was apprehended by police driving the vehicle. He was described as stumbling and moderately affected by "a drug". Earlier that day Mr Kereopa had collided with another vehicle in the traffic. ● 'Assault Officer in execution of duty' on 21 May 2010 when Mr Kereopa did not return to his CJP home as directed, he became aggressive with police, who were injured when he struggled against them. He was considered to be slightly affected by substances. ● 'Aggravated break enter commit serious indictable offence people there' on 30 September 2010 when Mr Kereopa broke into a home whilst young children were asleep inside. ● 'Negligent driving not occasioning death/gbh' on 22 July 2010 when Mr Kereopa stole the vehicle from a CJP home in Goulburn, losing control of the vehicle and colliding into a letter box and garage, before fleeing. ● 'Aggravated break enter commit serious indictable offence in company' on 1 November 2010 when Mr Kereopa and a co-offender broke into a home occupied by a female. He had absconded from his CJP residence whilst also on bail some days earlier. ● 'Assault' on 7 March 2011 when Mr Kereopa kneed another inmate in the face, with an apparent motive of revenge. ● 'Take and drive conveyance' on 16 September 2012 Mr Kereopa stole a motor vehicle from a home whilst the family slept. He was discovered by police, driving the vehicle on 21 September 2012. He was considered by police to be drug affected. He had absconded from an intensive CJP residence whilst subject to a s.9 bond. ● On the 24 January 2014 Mr Kereopa was charged with 21 separate offences, including Take and use conveyance without consent x 2, Dishonestly obtain property by deception, Aggravated break enter and steal in company x 2, Dishonestly obtain financial advantage by deception, and Dishonestly obtain property by deception x 14. The offences were committed in January 2014 and pertain to Mr Kereopa having broken into three separate residences, using stolen credit cards to purchase goods (mostly sundries it would seem), and driving around in two cars stolen from the homes he had broken into."
Another incident that did not result in criminal proceedings for some reason was referred to in Exhibit C (p. 66). On 19 July 2010 Mr Kereopa was working on an old car with two others. (It would seem that this occurred when he was at a Community Justice Program (CJP) group home in Goulburn.) He found a can of petrol and threw the contents over the bonnet. When staff sought to intervene he set fire to the car while the other two people were sitting in it. He could not explain why he had done so.
Since 13 September 2016 Mr Kereopa has been held at the Metropolitan Special Programs Centre at Long Bay Correctional Centre.
Corrective Services NSW records include that Mr Kereopa has been the subject of a number of internal disciplinary offences. There are a number of instances of "fight or other combat". There was an incident on 16 February 2017 when an inmate was assaulted in his cell by a number of assailants including Mr Kereopa. The inmate sustained a laceration to the left eyebrow and was taken to the Price of Wales Hospital for treatment.

Mental Health Review Tribunal consideration

Mr Kereopa was reviewed by the Mental Health Review Tribunal on 19 December 2014 when it determined that he was unfit to be tried for the then outstanding charges. Regular reviews followed. It was following a review on 30 August 2016 that Mr Kereopa was admitted to the Metropolitan Special Program Centre at Long Bay Correctional Complex on 13 September 2016. He was held in the Additional Support Unit until February 2017 when the assault on another inmate (mentioned above) occurred.
In a review on 30 March 2017 the Tribunal noted that Mr Kereopa's legal representative had applied for his conditional release and that CJP had submitted a report regarding placement in a group home at Wentworthville where he had been previously housed and had absconded. The matter was to be addressed at the next hearing before the Tribunal. The next review was on 2 May 2017, by which stage the Wentworthville accommodation was no longer available and CJP sought approval for him to be placed in another On-site Supported Living placement at Schofields. The hearing was adjourned until 29 June 2017 for further reports and assessments to be carried out regarding the suitability of that placement.
For the Tribunal hearing on 29 June 2017 Ms Thea Gumbert-Jourjon, senior clinical consultant, and Mr James Wu, team leader, CJP provided a report dated 5 June 2017. They assessed Mr Kereopa's overall risk rating as being within the "moderate range should he reside in Schofields and receive support from Ageing, Disability and Home Care". They explained that, "this suggests that while Mr Kereopa presents with risks, these can be managed by the accommodation and support service model provided by Schofields in the community". The report continues by providing "low risk scenarios" and "high risk scenarios" and a detailed behaviour management plan. A very detailed Incident Prevention and Response Plan dated 21 June 2017 was also prepared.
At the hearing on 29 June 2017 the Tribunal received the above report and plan, as well as the reports of Dr Andrew Ellis and Mr Patrick Sheehan (discussed below). There was also some oral evidence. At the conclusion of the hearing the Tribunal informed Mr Kereopa that they considered it preferable, at this stage, to place him in a medium secure unit rather than in the community because of the risks to the community in releasing him to Schofields or another low security facility. The proceedings were adjourned to a date to be determined in a month for the purpose of investigating whether Mr Kereopa could suitably be placed in a medium secure unit on release from detention.

Dr Kerri Eagle

Dr Kerri Eagle, forensic psychiatrist, provided a report dated 5 February 2017. She was of the view that Mr Kereopa met the diagnostic criteria for schizophrenia, an intellectual disability and a severe substance use disorder. She also considered that he has anti-social traits.
Dr Eagle referred to Mr Kereopa having had episodes of psychosis resulting in delusions and hallucinations. She said that his episodes of psychosis appear to have been precipitated by substance use and non-compliance with treatment. She said the illness will most likely require lifelong treatment with anti-psychotic medication and assertive monitoring by mental health clinicians.
Mr Kereopa told Dr Eagle that in January 2014, just prior to the offences that brought him into custody, he was "relapsing". He said he had stopped taking his medication and had started smoking cannabis again which made him relapse.
Dr Eagle's review of documentation indicated that Mr Kereopa's cognitive function had deteriorated. The most recent assessment in November 2015 yielded a score of 64 on full-scale IQ. She said that it was likely that his overall cognitive function will deteriorate due to his mental illness, particularly if his illness is not optimally treated. This intellectual disability is a lifelong one and complicates the management of his mental illness and challenging behaviours. It would impact his ability to develop an understanding of his mental illness and his treatment needs.
Dr Eagle also considered that Mr Kereopa's mental illness and intellectual disability made him more vulnerable to the use of substances in order to manage stressful situations or to engage with peers. She said he was highly susceptible to the influence of his peer group and this likely gives rise to an ongoing risk of relapse into substance use.
The anti-social behaviours Dr Eagle noted appear to worsen during times of deterioration in his mental illness. However, the behaviours had also been present from early adolescence. The anti-social personality traits were generally considered to be pervasive. They may be ameliorated by long-term psychotherapy or controlled by increased support and monitoring.
Dr Eagle was asked to assess Mr Kereopa's potential risk for aggressive behaviour. She said: "Primary scenarios of future violence would include those in which Mr Kereopa had inadequate support (less than 24 hours support) in the community; exposure to anti-social peers and illicit substances; was able to be non-compliant with his medication and deteriorates in mental state; was bored or did not have a purposeful vocation. The aggression is likely to be reactive and in the nature of an assault or threat. The aggression in unlikely to be prolonged. The aggression is likely to occur rapidly after Mr Kereopa is exposed to any of the above factors [identified immediately earlier in her report]. He is likely to commit a high number of potentially aggressive or other offences over a short period of time."
Dr Eagle was of the opinion that Mr Kereopa does pose a risk of causing serious harm to others if he ceased to be a forensic patient and was released into the community without adequate support. She said: "He has a high historical loading of risk factors for aggression. However the most significant concern appears to be the lack of adequate risk management strategies in place for his release. Given Mr Kereopa's history, in the event that Mr Kereopa is released without adequate risk management strategies in place he is likely to relapse in his mental illness, engage in substance use, potentially abscond from his residence and relapse into offending behaviour."
Dr Eagle was of the view that, given Mr Kereopa's history of repeated non-compliance, absconding and re-offending (which I note is amply demonstrated by a review of his lengthy criminal history), he is unlikely to comply with recommended management strategies in the absence of a forensic order at this stage. Detaining Mr Kereopa as an involuntary patient was an inadequate response in Dr Eagle's view. His history of offending appeared to have occurred during periods when it was likely that he would not have been deemed a mentally ill person under the Mental Health Act 2007 (NSW).
A guardianship order was also considered to be inadequate in the management of Mr Kereopa's needs. Dr Eagle noted that the role of the guardian was to act as a substitute decision-maker and not to have regard for harm to others or the safety of the community. Mr Kereopa was considered to need monitoring and restrictions in place in order to reduce his risk of re-offending.
As to the term of any extension order, Dr Eagle said: "An appropriate period would need to allow sufficient time to transition Mr Kereopa from custody into the community in a gradual manner; ensure an adequate trial of a management plan developed for Mr Kereopa following his release and anticipate potential, hopefully minor, breaches that inform his ongoing management plan in the community. In order to reduce the risk of re-offending in the medium to longer term, the forensic order should cover a sustained period of no breaches and/or offending. I anticipate, given Mr Kereopa's history, that a period of transition and adjustment from custody into the community might take in excess of 1-2 years following his release."
In a supplementary report dated 13 March 2017, written after Dr Eagle had been provided with further detail of the facts concerning Mr Kereopa's prior convictions, she added: "The scenarios of future violence identified at paragraph 88 of my previous report remain, in my view the most likely circumstances during which Mr Kereopa would be likely to engage in behaviours that could give rise to aggression and harm to others. The potential harms that could be caused to others from Mr Kereopa's behaviours might include motor vehicle collisions, physical aggression arising from confrontation with home owners and physical aggression towards those attempting to control his behaviour."
Dr Eagle remained of the view that in a less restrictive setting and without adequate support and/or supervision, Mr Kereopa is at high risk of engaging in behaviours that are likely to cause others harm including physical harm.

Dr Andrew Ellis

Dr Andrew Ellis, consultant forensic psychiatrist, provided a report dated 5 June 2017. He was not aware at that time of a proposal for Mr Kereopa to live in the community (at Schofields).
Dr Ellis made diagnoses of schizophrenia, intellectual disability, substance use disorder (alcohol, stimulants and cannabis) and anti-social personality disorder. Dr Ellis discussed at some length the question of Mr Kereopa's risk of serious harm to others. He concluded: "In considering structured professional and clinical parameters in the absence of any treatment or supervision, Mr Kereopa would fall into a group of persons with a risk [of] violent and general offending that is high, and greater than a theoretical average offender or psychiatric patient. He would present with a risk profile equivalent to many forensic inpatients. There would be clinical grounds to continue intervention to manage this risk."
On the question of whether Mr Kereopa could be adequately managed without an extension of his status as a forensic patient, Dr Ellis was of the view that it was possible that Mr Kereopa could be safely and effectively managed under the scheme provided by the Mental Health Act. However, he identified in his report a number of disadvantages with such an approach. His reasoning provides much that is persuasive for continuation of the forensic patient's status.
As to the term of an extension order, Dr Ellis discussed this issue also at some length and concluded: "Should an extension order be applied I would recommend this be for two years total in order to stabilise his presentation, not only his acute psychotic symptoms in a hospital for one year to a point where he could be accommodated in community supported housing, and have a period of at least one year under supervision in that housing to observe his response to treatment and supervision in a community setting. Leaving him in the prison hospital for an extended period of time is unlikely to manage the risk he poses, only delay it to when release does occur."

Mr Sheehan

Mr Sheehan, provided similar diagnoses to those of Dr Ellis and Dr Eagle: intellectual developmental disorder (moderate), schizophrenia, cannabis use disorder (moderate, in extended remission in a controlled environment), stimulant use disorder - amphetamine-type substance (moderate, in extended remission in a controlled environment), and anti-social personality disorder.
Mr Sheehan noted Mr Kereopa's poor compliance with supervision in the past: "Mr Kereopa has a notably poor history of responding to supervision. It would appear that most of his offences have been committed whilst on conditional release for bail, bond or parole. Since 2009 his periods in the community have been brief. Reviewing the custodial admission records reveals periods of one month in early 2009, 20 days in 2010, two periods of three months in 2010, a period of 10 months between late 2011 and 2012, two months in 2013, and only seven weeks 2014. Mr Kereopa was managed under the Office of the Public Guardian (a Financial Management Order) since 2009, allowing oversight to residence and healthcare. The order was revoked on 12 June 2015, when the NCAT decided that it was no longer necessary and Mr Kereopa could go and live with his parents. He has often been co-managed in the community by the Community Justice Program (CJP), a subsidiary of Aging Disability and Home Care (ADHC) since 2007. The CJP cater for individuals who are involved in the criminal justice system and have an intellectual disability. Their aim is to minimise recidivism and enable appropriate community integration. The CJP have tried several different residential models to find the best fit for Mr Kereopa, with apparently limited success in containing or redirecting his offending behaviour. In the past he has assaulted a CJP worker and on another occasion has stolen a CJP vehicle before crashing the car. There is a general pattern of Kereopa absconding, sometimes very quickly, becoming involved in drug use and associated crime. On 24 November 2011 Mr Kereopa was released on parole to the CJP Intensive Residential Service Facility (IRSF) in Blacktown. Despite the high security of that facility, he absconded on several occasions and on 21 September 2012 was returned to custody. Mr Kereopa objected to the IRSF facility due to the tight restrictions inherent in that model. He subsequently made it clear that he would abscond if placed in a secure IRSF facility. As reported in a recent CJP report (Wu, 24 March 2017), the clinical team determined that a less secure facility may ameliorate his desire to abscond. After completing a limiting term on 30 September 2013 Mr Kereopa was released to Monterey, in a less intensive On-site Supported Living (OSSL) facility in Wentworthville. He absconded from his supported accommodation, ceased his medication and started smoking methylamphetamine and cannabis. He was returned to custody on charges of armed robbery on 20 November 2013. He returned to Monterey on bail on 13 December 2013 but absconded again on the 25 December 2013, committing further offences in the company of another Monterey resident. Mr Kereopa has been in custody since 25 January 2014."
Mr Sheehan noted that Mr Kereopa had a mixed history of institutional adjustment. He noted that following the limiting term being specified in September 2015 Mr Kereopa obtained a minimum security classification (C1). He was transferred to South Coast Correction Centre in November 2015 as recommended by the Mental Health Review Tribunal. There he engaged in challenging behaviour incurring several institutional charges. Mr Sheehan recorded what followed: "He was placed in the Additional Support Unit (for inmates with disabilities) from 13 September 2016. He struggled to comply with centre routine and discipline. On 16 February 2017 Mr Kereopa was involved in an incident in the ASU when he and other inmates have assaulted another offender who had disclosed being convicted of sexual offences. Police investigated the assault but no criminal charges were pressed. He incurred an institutional misconduct charge for 'assaults' and was regressed in his classification from minimum security (C) to medium security (B). He is now managed in 7 wing in a maximum security yard."
Mr Sheehan discussed the risk of Mr Kereopa causing serious harm to others in considerable and useful detail. He concluded as follows: "The totality of information supports the view that Mr Kereopa presents a high risk of reoffending and there is no evidence to support the view that his circumstances have changed in any way that could be seen to protect against his return to similar offending behaviour in the future. His history suggests that he is most vulnerable to offences involving breaking into homes (being indifferent as to whether the residence is occupied), stealing and driving motor vehicles, and robbing/stealing from people (most likely as part of a group, using intimidation or force). The effects of this behaviour may well go towards "serious harm" to the community, and are certainly dangerous in terms of the high risk of escalation of harm through violence or reckless accident. His offences would appear mostly motivated by meeting his immediate needs for drugs (cannabis and methylamphetamine), transport or food. There is no internalised prosocial value system to dissuade him from taking advantage of others. His pattern is to impulsively abscond from residential care, associate with antisocial peers, cease taking his prescribed medications, and commence using harmful substances such as cannabis and methylamphetamine. Under these circumstances, his self-appraisal and judgement are further impaired from an already low baseline. He experiences disordered thought, unstable affect, delusional beliefs and paranoid thought that people are "after" him. The perception of threat further reduces any capacity for consequential thinking. He may falsely attribute hostile motives to others. He stays on the move. His behaviour takes on a chaotic and disorganised quality. Once commenced he is likely to offend continuously until he is arrested or otherwise interrupted.
As to the management of this risk, Mr Sheehan wrote: "At this stage, his risk is effectively managed in the present by his containment, however the current circumstances extend no rehabilitative value at all. He is in a maximum security prison setting, with no prospect of the ideal type of graded, controlled release that is associated with more favourable community transition. In my expert view, I find it unlikely that this ideal will be achieved due to confluence of Mr Kereopa's institutional behaviour and the slow responsiveness inherent in CSNSW (with classification reviews generally occurring annually). I concur with the views expressed in a recent CFMHN report (Harnett-Smith, 26 April 2017) that a medium secure unit would be better placed to facilitate a graded transition, but also note that the waitlist demand for beds in such a unit may make this option impracticable. In recent weeks his CJP residential option has been withdrawn and the new proposed location is not ready to accept him (until current residents are moved on), meaning that he has no suitable accommodation at this time. The absence of a suitably intensive residential option is a pressing feature of risk and would seem to strengthen the requirement for consideration of Schedule 1, Mental Health (Forensic Provisions) Act 1990. I understand that the Attorney General seeks on order extending Mr Kereopa's status as a forensic patient by two years. There is a realistic danger that were such an order granted, Mr Kereopa may still be in his current position (in custody and no closer to release readiness) at the end of that period, unless expectations of his behaviour are adjusted to accept the self-defeating behaviour that has undermined his progress thus far. Given his history of absconding even under the tightest security in the community, his prospects for enduring success on release are poor under any circumstances and there is no way to re-integrate him to community life without the risk of failure. Therefore I would support an extension of Mr Kereopa's status as a forensic patient with the understanding that he would be restricted to a custodial setting for only as long as it takes for a bed to be available in either a medium secure facility or suitable CJP residence (either OSSL or IRSF).
Mr Sheehan favoured continuation of Mr Kereopa's forensic patient status in preference to other less restrictive means. One of the advantages he identified is the ability to respond quickly in the event of any deterioration of Mr Kereopa's behaviour in the community. Classification as an involuntary patient under the Mental Health Act provides some protective value but that would only provide for detention in a mental health facility and it was unclear whether he would be accepted into such a facility and what facility would be available or suitable to him. A forensic community treatment order would serve the important function of enforcing the taking of medication and detention in a mental health facility should he be unresponsive. However it was unclear to Mr Sheehan whether a forensic community treatment order would solve the current problem of there being no suitable accommodation available. It was also unclear to Mr Sheehan the extent to which such an order provided power to direct Mr Kereopa to remain in CJP residential accommodation or comply with other case management aspects.
Mr Sheehan considered the good behaviour bonds that were imposed for some of the offences that were committed in January 2014. Those bonds, which are current until September 2019, are subject to quite stringent conditions including as to supervision and management of Mr Kereopa's intellectual disability and psychiatric condition. Mr Sheehan did not consider that they adequately dealt with the current difficulty of post-release accommodation and there was no facility for incapacitation if the risk escalates, unless the bond conditions are breached and he is charged with an offence. Mr Sheehan quite bleakly noted, "by that late stage, the community is likely to have already been exposed to risk of serious harm".
Similarly, Mr Sheehan considered a guardianship order to be inadequate in that it would serve to provide protection to Mr Kereopa as opposed to community protection.
Finally, on the length of any proposed extension order, Mr Sheehan expressed the following opinion: "The features of Mr Kereopa's case that have brought him to the Supreme Court in this instance are chronic in nature and unlikely to resolve in the short or medium term. A period of two years would seem appropriate, but I stress that I would support this only in the event that there is urgency to return Mr Kereopa to the community."

Other reports

A number of other reports were included in the material provided to the Court. They date from 2006 until quite recently. It is unnecessary to refer to them as they do not provide anything of present relevance beyond that discussed in the reports of the three experts to which I have referred. One thing that does emerge however is, as the written submissions for the Attorney put it, they indicate that it appears very little has changed for Mr Kereopa over the years.

Evidence at the hearing

Ms Thea Gumbert-Jourjon gave evidence in which she confirmed that it was the CJP recommendation that Mr Kereopa transition from custody to the accommodation at Schofields. There was no current vacancy but when one arose the transition could occur in a matter of weeks. She spoke of a regime of ongoing and regular risk management assessments. Any incidents of concerning behaviour would be reported to CJP within 24 hours she believed.
Ms Gumbert-Jourjon was asked by counsel for Mr Kereopa how long his forensic status would need to remain in place for a transition to Schofields. She said, "A year should give us time to ascertain how he was transitioning into the property and the success of that". (T10.40) She seemed to be reasonably confident that there could be a reduction in risk within that period in that Mr Kereopa would continue on the currently successful medication regime for his mental illness and various steps would be taken to foster relapse prevention in relation to substance misuse. (T12)
Drs Eagle and Ellis and Mr Sheehan gave concurrent evidence. It was most helpful. There was general agreement that nothing was being achieved by keeping Mr Kereopa in a correctional environment. Whilst it provided incapacitation, there was nothing therapeutic about it; it was ineffective in managing the risk he presents.
Dr Ellis favoured placement in a medium secure forensic psychiatric facility where there could be intervention to address Mr Kereopa's complex and interrelated issues before he transitioned into the community. Dr Eagle agreed.
A shortage of resources in terms of availability of beds in such psychiatric facilities was identified as an issue of concern. However, Dr Ellis informed the Court that the Tribunal has the power to order that somebody be held in such a place and when an order of that type is made, a bed becomes available.
There was agreement among the experts that a period of at least two years was appropriate for an extension of Mr Kereopa's forensic patient status. Such a period was generally accepted to be the highest risk time following release from custody.
The advantage of retaining a status as a forensic patient, over other less restrictive means of dealing with Mr Kereopa was regarded as particularly advantageous. If any breach of substance occurred, the Tribunal had the power to recall Mr Kereopa into a hospital setting whereas if he was the subject of conditions (for example, the good behaviour bonds imposed in September 2015) there could be incapacitating punishment likely to dislocate him from his treatment services.
If Mr Kereopa were to be dealt with under the Mental Health Act and hospitalised he would receive the same treatment there as he would as a forensic patient. But he said, "Once in the community, I think that's where there is a substantial difference in the two schemes". Dr Eagle and Mr Sheehan agreed. Dr Eagle added that hospitals have a different emphasis between civil patients and forensic patients. The former were discharged as soon as conceivably possible whereas under a forensic order there was a mandate to manage the risk prior to discharge. She regarded this as "a very important safeguard" in Mr Kereopa's case. (T25)
Dr Eagle added the observation that Mr Kereopa was relatively easily stabilised in terms of his mental illness and so dealing with him as a civil patient under the Mental Health Act would not involve treatment for his other risk factors, particularly substance abuse. Mr Sheehan agreed, noting that in relation to enforcement of the good behaviour bonds that "the lag time is certainly significant … they can't act if they see imminent risk coming. They can only act once something has happened". Further, the response to a breach of the bonds would be, potentially, to return Mr Kereopa to custody rather than a hospital setting which "doesn't go anywhere" (in terms of therapeutic treatment). (T26)
In cross-examination, each of the experts confirmed that their opinions were being expressed in relation to the risk of serious harm rather than general recidivism; although the two were related. Dr Eagle explained, "when he starts re-offending, he clearly engages in more reckless behaviours that lead to serious harm, unfortunately, or the potential for serious harm". (T27)
Dr Ellis, Dr Eagle and Mr Sheehan each expressed a concern about a prospect that Mr Kereopa would remain in custody if an extension order was made. Mr Sheehan said, "it is a real concern that there would be no outcome" and "in fact, it may be even worse at the end of it. He would simply be habituated to being associated with antisocial men during that time". Dr Eagle "completely" agreed and added, "In fact, his risk increases remaining in custody and with antisocial peers, and his ties with the community get more and more tenuous". Expressing his agreement, Dr Ellis also mentioned, "the lack of access to suitable rehabilitation and a greater distance from that in time". (T27)
In re-examination, the experts were informed that the Tribunal had indicated at its hearing on 29 June that the preferred option was to place Mr Kereopa in a medium secure facility at this stage, rather than to release him to the accommodation at Schofields or some other low security facility in the community; and that it had adjourned for a month for the purpose of investigating whether a place could be found. Each of the experts saw that as a positive development, although there was some concern as to what would happen if a place was not readily available. Dr Ellis said, "there needs to be an order from the Tribunal made for that to happen."

Consideration

I am satisfied that there is a high degree of probability of Mr Kereopa posing an unacceptable risk of causing serious harm to others if he ceased to be a forensic patient.
In this respect I have regard to the virtual inevitability that he will re-offend and continue to do so with regularity for some time, just as he has over the past ten years or so. That is not the end of the matter though, because the question is whether there is an unacceptable risk of causing serious harm to others. In relation to this it is appropriate to have regard to both the risk of causing serious physical harm as well as serious psychological harm. Dr Eagle, Mr Sheehan and Dr Ellis are unanimous in this respect and I accept their opinions. True it is that Mr Kereopa's criminal conduct in the past has involved limited acts of violence. However on the basis of the reasoning articulated by these three experts, I accept that it is the dangerous behaviour underlying the offences and the potential consequences of that behaviour, which give rise to the unacceptable risk that he poses. I have had regard not only to the potential for harm of either type to be intentionally inflicted by Mr Kereopa but also to the possibility that it would be inflicted as a result of reckless conduct by him. I am satisfied that the risk equally arises from such recklessness and perhaps more so. The incident that occurred on 19 July 2010 (see above at [22]) is particularly concerning.
It is positive that the monthly injections received by Mr Kereopa for a considerable period of his time in custody appear to have been successful in managing his schizophrenic illness. However I am concerned about statements he made to Dr Ellis. Although he told Dr Ellis "I'll behave and I'll take my meds", he also said that he needed the anti-psychotic medication "for a while" and added that, "when I'm right I'll get off". He told Dr Ellis that he knew when he would be right when, "I figured it out". He attributed his past experiences to drug use and thought that abstention from drugs would prevent any psychosis arriving in the future. His strategy for not using drugs was simplistic and unrealistic; he would "talk to someone and get help to not go the wrong way".
Even if Mr Kereopa was correct in this view, which I very much doubt, without him having successfully completed a long-term drug rehabilitation program I would have grave doubts about his ability to manage his potential for relapse in any effective way.
I am also satisfied to a high degree of probability that the risk Mr Kereopa poses cannot be adequately managed by other less restrictive means. It is clearly the case that Mr Kereopa needs a high level of support and monitoring to ensure he remains compliant with his treatment for his mental illness, abstinent from substances, and provided with adequate support to reduce the risk of re-offending.
I regard the advantage the experts discussed in their concurrent evidence about the Tribunal having the ability to recall Mr Kereopa into a hospital if events transpired such that his risk became elevated as an important one. The less restrictive means of dealing with the risk he presents (under the Mental Health Act, the Guardianship Act 1987 (NSW) and the good behaviour bonds) do not offer the same safeguard.
An extension order of two years is appropriate. It seems to be the minimum time necessary for treatment and stabilisation before transitioning to the community. Ideally, he should first be kept in a medium secure forensic psychiatric hospital setting to prepare him for such transition. If he were to move to the community quickly, the risk management effort will necessarily have to be more intense. But in either case, I accept the opinions of the experts that a period less than two years is not appropriate.
Keeping Mr Kereopa in a custodial environment is clearly inappropriate. It would be a blunt instrument in incapacitating him and protecting the community in the short term but it would be counterproductive and a retrograde step for both him and the community in ameliorating his risk in the long term. Counsel for Mr Kereopa submitted that "it is likely to potentially increase his overall risk". (T37.12) I accept this submission.

Application for suppression or non-publication order

In a separate judgment (Attorney General of New South Wales v Kereopa (No 3) [2017] NSWSC 929) I have provided my reasons for refusing Mr Kereopa's application for a suppression or non-publication order under the Court Suppression and Non-publication Orders Act 2013 (NSW). I indicated there that I would make an order restricting access to the Court file in terms commonly ordered in proceedings under the Crimes (High Risk Offenders) Act 2006 (NSW). Such an order was not opposed by the plaintiff.

Orders

I make the following orders: 1. Pursuant to cl 7(1)(a) of Schedule 1 of the Mental Health (Forensic Provisions) Act 1990 (NSW) the status of Mr Teahu Kereopa as a forensic patient is extended for a period of two years from 14 July 2017. 2. Access to the Court file shall not be granted to a non-party without leave of a Judge of the Court. If any such application for access is made by a non-party, the parties are to be notified by the Registrar so as to be given the opportunity to be heard.

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: 14 July 2017

Mental Health (Forensic Provisions) Act 1990(NSW)ss 40, 54A, Sch

Mental Health Act, the Guardianship Act 1987(NSW)

Court Suppression and Non-publication Orders Act 2013(NSW)

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